BOOK NOTICES.

THE AMERICAN REPORTS.

VOL. 19. With Notes and References. By ISAAC GRANT THOMPSON. Albany: John D. Parsons, Jr. 1877.

This last volume to this excellent and acceptable series of Reports, (the American), is as usual enriched by notes-all of them valuable, and some of them elaborate of the learned and able editor, Mr. Thompson, and contains the decisions of general interest and permanent value in 10 Bush (Ky.); 50 Cal.; 41, 42 Conn.; 6, 7 Heiskell (Tenn.); 50, 51 Ind.; 13, 14 Kansas; 114, 117, 118 Mass.; 49, 50 Miss.; 3, 4 Neb.; 60, 61 N. Y.; 38-42 Tex., inclusive; 47 Vt., and 37 Wis. Our opinion of the usefulness of this series of Reports remains unchanged. D.

A TREATISE ON THE LAW OF MORTGAGES OF REAL AND PERSONAL PROPERTY IN THE STATE OF NEW YORK; WITH AN APPENDIX OF FORMS. By ABNER C. THOMAS, Counselor at Law. New York: Baker, Voorhis & Co. 1877. pp. 638.

We can cordially recommend this treatise to the profession. The work is well done. Most questions likely to arise in the law of mortgages have been adjudicated by the courts of New York, and the result is a reasonably symmetrical system, which is here very fairly exhibited. It would be a great mistake to suppose that this work will be useful to the bench and bar of New York alone. The decisions cited are chiefly based upon the general doctrines that prevail in England and in the other states of the Union; and it would be difficult to find anywhere a more instructive exposition of these doctrines than that which they afford. The arrangement of the book is excellent, and the style of the author is unusually terse and clear. We do not, indeed, know why he should always say "proven" for "proved;" but, with the exception of this peculiarity, there is scarcely room for even verbal criticism. There are certainly a great many poorer books that make far higher pretensions. The work may well be regarded as one of general and somewhat durable interest for the profession of the whole country. The statutes which principally affect the law of mortgages in the State of New York are the registration laws; but they are no longer peculiar, since similar statutes exist in all the states. As to the law of vendor's lien, which is also treated in this volume, there is a notorious diversity in the decisions of the different states. It might be said with truth that every state has a peculiar judicial code, either complete or fragmentary, on this vexed subject; but in the law of mortgages proper, fortunately, no such discord exists.

A TREATISE ON CRIMES AND MISDEMEANORS.-BY SIR OLDNALL RUSSELL, KNT., late Chief Justice of Bengal. Edited in England by Charles S. Greaves, Esq., Q. C. Ninth Am. from 4th London Edition. Edited by GEORGE SHARSWOOD; in Three Volumes. Philadel phia: T. & J. W. Johnson & Co. 1877.

Whoever is familiar with the treatises on Criminal Law, is already aware of the solid merits of this wellestablished standard work. For comprehensiveness and accuracy it has, in the general literature of the Bar of Great Britain, no superior, and its popularity in this country is demonstrated by the fact that the present is the ninth American edition. The work is exclusively confined to indictable offenses, and with the exception of High Treason, prosecutions for which, even in Great Britain, are now happily quite unfrequent, and with us almost unknown, it treats exhaustively of every crime and every misdemeanor which is made indictable by act of Parliament down to the date of the last London Edition. We have had the curiosity

to see whether the criminal law of Great Britain, within the past quarter of a century, had felt the effect of that change (which, originating in a desire for reform, has in our judgment generally effected its purpose), to which within that period the great body of the common law and equity systems of that country has been subjected. By comparing this edition of Russell with the preceding one, we perceive the almost numberless changes and additions, which have been made in the body of the criminal enactments of Parliament. These have made it necessary for the English editor (whose learning and abilities in this department of the law are so well known, as to lead those who had in charge the completion of the new Code of the Criminal Law for the State of New York to obtain his assistance) to revise and recast the whole work, noting what statutes have been repealed, what have been changed, and what have been substituted or added. In preparing the work, both the author and the editor have pursued the plan of giving a correct statement of the statute, its exact language, and the cases which have been decided under it, accompanied with a reference to repealed statutes, and giving the decisions under those so far as they have a bearing upon the existing statute, or where they turn on general principles or illustrate the canons of construction.

We have no hesitation in declaring our sense of the great value of this edition, which omits nothing in the English edition, and under the editorship of Judge Sharswood contains a reference to the leading cases of this country. It displays, with fulness and precision, the exact state of the criminal law of Great Britain, which is the foundation of American criminal legislation and American adjudication. Many of the acts of Parliament are re-enacted by the States of America, and the principles of judicial construction, laid down and established by the learned and able judges in that country, have equal application with us. To reduce expense of publication, American publishers sometimes insist upon abridging English works by omitting statutes and discussions which are stated to be inapplicable here. We abominate abridgments, and will never buy, or recommend others to buy them, when it is possible to procure the complete work. The exceptions to this rule are very rare and should be made, if at all, by editors of great learning and experience on their own judgment, and not to suit the notions of publishers. For the profession at large we thank the Messrs. Johnson for giving us this excellent work "entire and unmutilated." The two advance volumes we have received will be followed by the third and last within a few weeks. D.

ing the Leading Decisions upon the Subject, both American and English, bringing the law down to the present time. By RANSOM H. TYLER, author of "American Ecclesiastical Law," "Commentaries on the Law of Infancy and Coverture," etc., etc., etc. Albany, N. Y.: William Gould & Son. 1877.

Elwes v. Mawe, the leading case on the law of fixtures, was decided by Lord Ellenborough, in the Court of King's Bench, on the 12th day of November, 1802, just after his elevation to that place, where he was to devote all his ability to the vain attempt to muzzle the press; a long effort, which finally broke down in the acquittal of William Hone, which so discomfited his lordship that it was thought to have hastened his death. The amount involved in Elwes v. Mawe was sixty pounds; but the principles involved were of lasting importance, though the magnitude of their importance was at that time, doubtless, but dimly perceived.

Few cases have been more celebrated. After having received the most careful attention from many com

mentators, after infinite citation in volumes that are usually regarded as being rather prosy, poetry has recently encased it in amber, and commended it anew to the consideration of posterity. About the time that our writers of centennial odes had fairly convinced all men that the poetic muse had distinguished our American era by wholly retiring from the world, a "mighty orb of song" arose in England, and reflected its brilliant light in the columns of the Pall Mall Gazette. Such was the demand for the "Leading Cases Done into English," that they were soon reproduced in book form, and were thus introduced to a wider circle of readers. Old men read the work with delight; young men scuffled for it at the book stalls, and young ladies shed gusty tears when they learned that the last copy had been borrowed from the circulating library. Perhaps no literary event of similar magnitude has occurred, since Mr. Tupper's "Proverbial Philosophy" ran through thirty-two editions in the United States, before any one found out that there was nothing in it.

As to the relative merits of the different poems that make up the "Leading Cases Done into English," there has not been an entire unanimity of opinion. Several of the most acute of living critics have declined to indicate any choice, where everything was so undeniably excellent. But the majority of suffrages have been apparently cast in favor of the poem which embodies the legal doctrines announced in the case of Elwes v. Mawe; and probably with good reason. Not the "Minstrel's Curse," nor the "Curse of Kehama," nor anything in the whole range of the literature of malediction, so abounding in extent, and so rich in gems, can equal in sublimity the fine closing lines, which have given a new meaning to the fearful burden of human imprecation; though it may be doubted whether the poet has the moral right to harrow the feelings of his readers by such direful threats as that here breathed out:

"Stay now and rest, O Muse! some breathing space from thine headlong

64

Flight, and abate thy storms, whose harmony thunderladen,

Harmony called by profane ones a vile accentual jingle, Leaves all Greeks outsung, outstorms all thunder of Homer.

This we have shown them, O Muse! But if they presume to deny it,

Say these hexameters jingle, or fail in the notes of the grand style,

Deadly and swift thy revenge on such carping and cavilling creatures,

Grievous and grim their 'reward at thine hand, and the sword of thy vengeance.

All the reports at large we will take and versify likewise."

It is three-quarters of a century since

Elwes, the shrewd, maintained his cause and his verdict,

Had great worship of all men there, and went homeward rejoicing,

Bearing the postea, goodly engrossed, the prize of the battle;"

and doubtless, if the parties to that memorable fray could come back now, they would be not a little surprised to see the length of their afternoon shadows, and to observe in what an odd way they have attained to immortality, both in prose and verse. The halo around their names grows continually wider, though it can hardly be said that its light increases in clearness.

It takes our present author a whole chapter, much longer than the opinion of Lord Ellenborough, to tell us the meaning of the word "fixture," and at the end of it we are by no means clear on that point. It seems that there has been, in all writings on this subject, a

deal of what Mr. Roberts, in his sweet and child-like simplicity, was wont to call "amphibology of diction and delitescence of meaning." Our author furnishes various definitions tentatively offered by many textwriters, and then proceeds to harry the Reports in search of similar booty. It would seem that judges had retired to the cave of Trophonius, had supped full of dictionaries, and had grappled with the word with all the energy of despair; and yet they have not met with a perfect success. After recounting these melancholy failures, our author turns to the lexicographers, the "harmless drudges" of Sam. Johnson; but they, being out of their element, blunder signally. Pondering all these hair-splitting attempts at definition, one comes somehow to feel an affectionate respect for the memory of that individual, of whom hardly any one of the present generation knows anything more than that it was confidently asserted of him, during his early youth, that

"A primrose by the river's brim

A yellow primrose was to him,
And it was nothing more."

If any one will carefully read over this chapter of definitions three or four times, he will hardly ever afterward have the slightest idea of what a fixture is. By repeating a word over and over again in our minds, it comes to have no meaning at al; the symbol being worn out by too much handling. It is useless to compare all the definitions given of this word. Doubtless, there has been much wild shooting, that would be shamed by the archery of William Tell. The human intellect has its limits; and it is possible that the man has not yet been born who could give a perfectly satis factory explanation of the meaning of the word "fixture." When Boswell asked the same Sam. Johnson, above referred to, whether it was better for one to sleep with a night-cap or not, the great philosopher answered, skeptically: "Sir; it will probably never be known whether it is better to sleep with a night-cap or not." A metaphysician of the seventeenth cent ury, famous enough then, but who has long since passed under the waters of general oblivion, ventured to assert that it is possible for a man to believe that there is somewhere such a thing as a Blictri, for example, though neither he nor any one else has the slightest conception of what it is. Since his time, very many volumes have been written on that question, though no definite conclusion has ever been reached. If, however, we accept the affirmative of the proposition thus made, we may console ourselves with the reflection that there are such things as fixtures, though with them to converse can seldom be our lot, and though we may be as ignorant on the subject, in its most occult phases, as were "Elwes, the Shrewd," or "Mawe, the Thrifty, defendant," when they first engaged in that controversy, which has so effectually perpetuated their memories.

Having disposed of the definition, the author proceeds in fifty-four additional chapters, to explain the law of fixtures. The law is confessedly in a muddle, and our author has evidently bestowed a praiseworthy amount of labor on the subject, and in endeavoring to bring order out of confusion; and his book will, doubtless, prove useful to any one having to do with this branch of the law.

The author does not pretend to cite all the cases. Among the later cases that are omitted, we may mention Meigs' Appeal, 62 Penn. 28, (1869); Stockwell v. Campbell, 39 Conn. 362, (1872); Wagner v. Cleveland R. R. Co., 22 Ohio, 563, (1874); Richardson v. Borden, 42 Miss. 71, (1868); Madigan v. McCarthy, 108 Mass. 576, (1871); Meux v. Jacobs, 7 H. L. C. 481, (1875).

We incline to think that, in a work on a subordinate title of the law, like that of fixtures, it would have

been well, as it would have been easy, to cite all the cases; but we make no serious complaint on this score, as there is a considerable difference of opinion on the point, as to the proper extent of citation in textbooks.

A more unquestionable ground of complaint exists in the prolixity in which the author indulges. As the lovers in the orthodox English novel are inevitably doomed to traverse the traditional three volumes before they are dismissed to substantial happiness, so there has come to be a book-maker's or book-seller's edict, requiring that every law book shall contain at least 750 pages. Originally it was probably the rule, that no law book should contain more than that number of pages; but now it is reversed. It must have demanded a good deal of experience in the art of book-making, to enable the author to close his treatise exactly on the 750th page, as he has done in this instance. The matter might be easily compressed into a much smaller compass; indeed, it must have been difficult to have expanded it into its present amplitude. Only about a thousand cases are cited; yet this work contains as much printed space as Benjamin on Sales; one-third as much as Washburn on Real Property, and about the same space as the recent work of Freeman on Executions, in which nearly seven thousand cases are cited and fairly classified. We can not but think, that if the work had been condensed into a hundred and fifty pages, it would have been greatly more useful, as it would have been cheaper. The method of making big books out of limited materials is here painfully apparent. Long citations from the reports are eked out with extracts from editorial articles taken from the law journals. Everything is suggestive of the book trade, the paste-pot and the scissors. It is sincerely to be hoped that we shall not have a new edition, "greatly enlarged." A new edition, greatly reduced and condensed, would be entirely appropriate.

CORRESPONDENCE.

To the Editor of the Central Law Journal:

U. M. R.

In an interesting article on " Notice by Publication," contained in your issue of the 9th instant, in referring to the statute of this state (2 R. St. 368, § 34), which provides that "the time and place of holding any sale of real estate, pursuant to any execution, shall be publicly advertised previously for six months successively," and requires that notices thereof shall be posted as therein directed, and that "a copy of such notice shall be printed once in each week in a newspaper of such county, if there be one," it is stated that it was decided in Olcott v. Robinson, 20 Barb. 148, that it was necessary that the first publication should be made six weeks previous to the day of the sale, and that it was not sufficient that the notice received six separate insertions, one in each week for six weeks, where it was first published only thirty-nine days previous to the sale. It doubtless escaped the attention of the writer of that article, that this case was reversed in the court of appeals, 21 N. Y. 150, where it was held that it was sufficient, if the notice was published in six successive numbers of a weekly newspaper, although the first publication was made less than six weeks prior to the day of sale. This decision is opposed to an anonymous case in 1 Wend. 90, but is in harmony with Sheldon v. Wright, 5 N. Y. 497, et seq.; S. C. below, 7 Barb. 39.

The case of Olcott v. Robinson has been followed in many other cases, and the principle therein laid down is now well established in this state. Wood v. Morehouse, 45 N. Y. 368, et seq.; S. C. below. 1 Lans. 415; Wood v. Terry, 4 Lans. 80; Merritt v. Village of Port

chester, 8 Hun, 40. See Steinle v. Bell, 12 Abb. (N. S.) 171, where it was held that a week is a definite period of time, commencing on Sunday and ending on Saturday; and that, under the rule requiring a service by publication to be made by publishing the notice "for not less than once a week for six weeks," the notice need not be published on the same day in each week, but may be published on any day in each week, and that it was not necessary that an interval of seven days should elapse between each successive publication. Yours, truly, L. G. H.

ALBANY, N. Y.

RECENT LEGISLATION.

AN ACT to amend Section thirty-two, Article eight, Chapter forty-two, of Wagner's Missouri Statutes, the same being Section thirty-two, Chapter two hundred and six, of the General Statutes of 1865. Be it enacted by the General Assembly of the State of Missouri, as follows:

SEC. 1. That section thirty-two, article eight, chapter forty-two of Wagner's Missouri Statutes, the same being section thirty-two, chapter two hundred and six of the General Statutes of 1865, be amended so as to read as follows: Section 32. Every person who shall either labor himself, or compel or permit his apprentice, or servant, or any other person under his charge or control, to labor or perform any work, other than the household offices of daily necessity, or other works of necessity or charity, or who shall be guilty of hunting game or shooting, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars. Approved March 16th, 1877.

AN ACT to provide for the custody of minor children, in proceedings in habeas corpus, between the parent of such minor and any person not the parent.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SEC. 1. In all cases where a writ of habeas corpus shall issue, on the application of the father or mother of a minor, for the purpose of obtaining the custody of his or her minor child, directed to any person or persons other than the father or mother or legally appointed guardian of such minor, the court or judge or justice hearing the same, shall award the custody of such minor to such father or mother, unless it appear that such father or mother has been adjudged according to law incompetent or unfit for the duties of guardian of such minor, or that such minor has been legally apprenticed, or is legally held for violation of law.

SEC. 2. This act shall take effect and be in force on and after its passage, the emergency for the same so taking effect being to immediately settle the now uncertain condition of the law on the subject named in this act.

Approved March 15th, 1877.

AN ACT amendatory of an act entitled "An Act to amend an Act entitled An Act 'dividing the State into Judicial Circuits, prescribing the time of holding courts therein, and providing for the election of five additional Circuit Judges and Circuit Attorneys,' approved March 15th, 1872."

Be it enacted by the General Assembly of the State of Missouri, as follows:

SEC. 1. That section one of an act entitled "An Act to amend an act entitled' An Act dividing the State into judicial circuits, prescribing the time of holding courts therein, and providing for the election of five

additional circuit judges and circuit attorneys,' approved March 18, 1875," is hereby amended so as to read as follows: Sec. 1. In the twelfth judicial circuit, in the County of Buchanan, on the first Mondays in January, May and September, for civil cases, and on the first Mondays in March, July and November, for criminal cases; and in the County of DeKalb on the first Mondays in April and October; and at any term held in the County of Buchanan for criminal cases, said courts may, with the consent of the parties, dispose of any civil case.

Approved March 15th, 1877.

AN ACT to amend Section fifty-five of chapter two hundred and one of the General Statutes of Missouri, 1865, the same being Section fifty-five of Article three of Chapter forty-two of Wagner's Missouri Statutes, 1872, entitled "Offenses Against Public and Private Property."

Be it enacted by the General Assembly of the State of Missouri, as follows:

SEC. 1. Section fifty-five of chapter two hundred and one of the General Statutes of Missouri, the same being section fifty-five of article three of chapter fortytwo of Wagner's Missouri Statutes, is hereby amended to read as follows: Section 55. Every person who shall willfully and maliciously kill, maim or wound any cattle of another, shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding three years, or by imprisonment in the county jail not less than six months, or by fine not less than twentyfive dollars, or by both a fine not less than twenty-five dollars, and imprisonment in the county jail not less than one month.

Approved March 16th, 1877.

AN ACT to amend section ten (10) of chapter one hundred and seven (107) of the General Statutes of Missouri.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SEC. 1. Section ten (10) of chapter one hundred and seven (107) of the General Statutes of Missouri is hereby amended to read as follows:

SEC. 10. Every sale made by a vendor of goods and chattels in his possession or under his control, unless the same be accompanied by delivery in a reasonable time (regard being had to the situation of the property), and be followed by an actual and continual change of the possession of the things sold, shall be held to be fraudulent and void, as against the creditors of the vendor or subsequent purchasers in good faith; and no sale of goods or chattels, where possession is delivered to the vendee, shall be subject to any condition whatever, as against creditors of the vendee, or subsequent purchasers from such vendee in good faith, unless such condition shall be evidenced by writing, executed and acknowledged by the vendee, and recorded as now provided in cases of mortgages of personal property. Approved March 15th, 1877.

AN ACT to provide that no property shall be exempt from seizure and sale under execution for personal services rendered in the capacity of house-servant or common laborer, to an amount not exceeding ninety dollars.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SEC. 1. That for all personal services rendered, after this act shall take effect, by any person acting in the capacity of house-servant or common laborer, to an amount not exceeding ninety dollars, no property shall be exempt from seizure and sale under execution;

provided that suit be instituted to recover the same within the time in the next section limited.

SEC. 2. The persons specified in the foregoing section, in order to secure the benefit thereof, shall commence their actions within six months next after the last services shall have been rendered.;

SEC. 3. The court, justice, or jury trying such action shall, if they find for the plaintiff, also find how much he or she is entitled to recover for services, such as are specified in the first section of this act, for which suit was commenced within the time limited in the second section of the same; which facts shall be set forth in the judgment rendered, and recited in the execution issued therein.

SEC. 4. All acts and parts of acts inconsistent with this act are hereby repealed.

Approved March 15th, 1877.

AN ACT to amend Sections nine and eleven of Chapter one hundred and seventy-two of the General Statutes of Missouri.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SEC. 1. Sections nine and eleven of chapter one hundred and seventy-two, of the General Statutes of Missouri, are hereby amended to read as follows:

Section 9. Any person aggrieved by any final judg ment or decision of any circuit court, or the St. Louis Court of Appeals, may make his appeal to the Supreme Court in any civil case.

SEC. 11. No such appeal shall be allowed, unless: First, it be made during the term at which the judgment or decision appealed from was rendered; and, second, the appellant or his agent shall, during the term, file in the court his affidavit stating that such appeal is not made for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment or decision of the court; and, third, all appeals from the St. Louis Court of Appeals shall be taken within fifteen days after the day upon which judgment is rendered, or within ten days after a motion for a rehearing, if made, shall have been overruled, if the term shall so long continue; if not, then during the term.

Approved February 15th, 1877.

NOTES OF RECENT DECISIONS.

EVIDENCE-LATENT AMBIGUITY-GUARANTY OF COVENANTS "IN FOREGOING AGREEMENT."-Clarke v. Adams, Supreme Court of Pennsylvania, 3 Weekly Notes, 381. Opinion by WOODWARD, J. A agreed with P and M to sell them his interest in a partnership: they agreeing to give notes with approved indorsement in payment, and to give an obligation of indemnity against debts, the settlement under the agreement to be made before a certain day. C signed a guaranty for the "faithful performance of the covenants on the part of P and M in the foregoing agreement set forth." Later, on the same day, P and M delivered to A the agreement of purchase and sale, the bond of indemnity and C's guaranty. The papers were then separated, but were afterwards fastened together. Upon a breach of the indemnity bond, and a suit by A against Con the guaranty, Held, (reversing the judgment of the court below), that evidence of what took place at the signing of the guaranty was admissible to show to what agreement it applied. By its own terms it was insensible, and to give it vitality and application required extrinsic proof. In Aldridge v. Eshelman, 10 Wright, 420, where an agreement had been made to become "responsible for merchandise bought," parol evidence

was admitted to show that both past and future sales had been comprehended in the agreement. In Wagner's Appeal, 7 Wright, 102, parol evidence was allowed to determine a question of doubt, as to who was a legatee, and to show that a name had been inserted by mistake. In McCollough v. Wainright, 2 Harris, 171, it was said that, where a writing possesses an ambiguity arising from reference to extrinsic defects, it may be explained by parol testimony relative to the nature, situation and circumstances of those defects, at the time of the contract. The same rule was illustrated in Doe v. Burt, 1 Term, 701; Bertsch v. L. C. & N. Co., 4 Rawle, 130, and Bamhart v. Riddle, 5 Casey, 92.

ASSESSMENT OF SEWER TAX-WHEN ILLEGAL.— Thomas v. Gain. Supreme Court of Michigan, 4 Am. L. T. Rep. 1. Opinion by CoOLEY, C. J. 1. It is not competent to provide by law, that sewer taxes shall be assessed upon lots and lands benefited according to their superficial area. 2. Parties whose property is to be taken under summary tax proceedings are entitled as of right to be heard before the tax becomes a charge on their property.-1. The proper method of levying assessments for sewers, has not been much discussed by the courts. In England they have generally been laid in proportion to benefits received, estimated according to the yearly value of the lands within the district. Brook's case, 5 Rep. B.; Masters v. Scroggs, 3 M. & S. 447; Netterton v. Ward, 3 B. & Ald. 21; Stafford V. Hamston, 2 B. & B. 691; Loady v. Wilson, 3 Ad. & El. 247; Metropolitan Board of Works v. Vauxhall Bridge Co., 7 L. & Bl. 946. In this country assessments for sewers and also for drains have generally been levied upon an estimate of special benefits. Reeves v. Treasurer of Wood Co., 8 Ohio St. 333; Sessions v. Crunklinton, 20 Ohio St. 349; Draining Co. case, 11 La. An. 338; O'Reiley v. Kankakee Draining Co., 32 Ind. 169; Cove v. Hartford, 28 Con. 363; Commonwealth v. Woods, 44 Penn. St. 113. It was decided in Connecticut that an arbitrary assessment by the frontage of lots was unreasonable and invalid. Clapp v. Hartford, 35 Conn. 66. But, in Pennsylvania, assessments which charged upon lots a portion of the cost of sewers, not to exceed a certain maximum per foot front, have been sustained. Lipps v. Philadelphia, 38 Penn. St. 503; Philadelphia v. Tryon, 35 Penn. St. 401. The assessment of sewer taxes by the superficial area is quite unusual. In the Southwest levee taxes are sometimes assessed in that proportion, and the right to make such assessments has been sustained. Daily v. Swope, 47 Miss. 367; Alcorn v. Hamer, 38 Miss, 652; Williams v. Cammach, 27 Miss. 209; Smith v. Aberdeen, 25 Miss. 458; McGehee v. Matthis, 21 Ark. 40; Wallace v. Shelton, 14 La. An. 498. In the latter case it is intimated that, while no basis of assessment which could be fixed upon would be absolutely just, yet, as it costs as much to protect one acre of land from overflow as it does to protect another, the apportionment by the area is not presumptively unjust. A like decision has been made in Missouri; the court's attention being directed apparently only to the question, whether the assessment was such taxation as under the Constitution was required to be apportioned according to the value of property. Egyptian Levee Company v. Harden, 27 Mo. 497. This decision was afterwards applied to an assessment for sewers; the court apparently being of opinion that there was no difference in principle between the cases, and discussing the subject with a bare reference to previous decisions. St. Louis v. Creamer, 36 Mo. 456. It has been decided in this state that an assessment for paving and similar taxes may constitutionally be made in proportion to the frontage of lots along the improvement. Williams v. Detroit, 2 Mich. 560; Motz v. Detroit, 18 Mich. 495; Hoyt v. East Saginaw, 19 Mich. 39.

The idea that underlies statutes for this purpose is, that the benefit to the abutting lots is generally in proportion to the length of their respective front, and that as a rule this principle of apportionment is more just than any other. There is a basis of truth to this idea, and it is so generally accepted that assessments for street improvements are perhaps now more generally apportioned by the frontage than by any other standard. In Warner v. Grand Haven, 30 Mich. 24, it was held that the court could not say, as matter of law, that an assessment for a sewer, estimated by the foot front of abutting lots, was not laid in proportion to actual or probable benefits. In Brown v. Springfield, 97 Mass. 152, an assessment of benefits by the value of the lands exclusive of buildings was sustained. In several cases it has been decided that in assessing benefits the future probable advantages may be considered, as may, also, the incidental benefits equally wtth those which the land receives directly. See Loady v. Wilson, 3 Ad. & El. 247; Hammersmith Bridge Co. v. Overseers of Hammersmith, L. R. 6 Q. B. 630 But it is generally agreed that an assessment levied without regard to actual or probable benefits is unlawful, as constituting an attempt to appropriate private property to public uses. This idea is strongly stated in Lodi Water Co. v. Costar, 18 N. J. (Eq.) 519, which has often been cited with approval in other cases. It is admitted that the legislature may prescribe the rule for the apportionment of benefits, but it is not conceded that its power in this regard is unlimited. The rule must at least be one which, it is legally possible, may be just and equal as between the parties assessed. If it is not conceivable that the rule prescribed is one which will apportion the burden justly, or with such proximate justice as is usually attainable in tax cases, it must fall to the ground, like any other merely arbitrary action which is supported by no principle. Wright v. Boston, 9 Cust. 233; In re Washington Ave., 99 Penn. St. 360; Patterson v. Society, 24 N. J. 400. 2. And the parties have the unquestioned right to be heard, at some stage in the proceedings, before the tax shall become an established charge against them or their property. It was said by Agnew, J., in Philadelphia v. Miller, 49 Penn. St. 440-448, that 'notice, or at least the means of knowledge, is an essential element of every just proceeding which affects rights of persons or property." The principle was recognized by this court in Butler v. Supervisor of Saginaw, 26 Mich. 22. In England, until appeals were given from sewer assessments, it was held that the party taxed might sue the officer in trespass or replevin for a levy on his property, and in that suit might defeat the assessment, if he could show that he was not benefited as the commissioners had adjudged. See Dore v. Gray, 2 T. R. 358; Masters v. Scroggs, 3 M. & S. 447; Netherton v. Ward, 3 B. & Ald. 21; Stafford v. Hamston, 2 B. & B. 691; Loady v. Wilson, 3 Ad. & E. 247; Emmerson v. Saltmarshe, 7 Ad. & El. 266; Metropolitan Board of Works v. Vauxhall Bridge Co. 7 El. & Bl. 964. In this country we do not allow the justice of an assessment to be inquired into, in a suit to charge the officers with a personal liability; but it follows legitimately from this, that parties taxed must have an opportunity to be heard regularly at some stage in the proceedings. Their rights are not to be concluded by proceedings which are wholly ex parte.

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NOTES OF RECENT ENGLISH DECISIONS.

WILL-CONSTRUCTION-GIFT TO WIDOW-PRECATORY TRUST-UNCERTAINTY AS TO SUBJECT.-Cole v. Hawes, High Court of Justice, 25 W. R. 95. Where a gift of testator's property to his wife was followed by the words "and for my dear wife to do justice to