State, and shall in other respects be entitled to such examination.

If the time of clerkship served in another State, and the time that such applicant has practiced law after his admission in another State, including the year of clerkship required in this State, shall not in the aggregate equal five years, then the applicant shall only be licensed as an attorney, and after such time shall aggregate five years, he may apply for admission to an examination as counselor, and be licensed as in case of other applicants.

VII.

Any person who has been admitted, and has practiced three years as an attorney and counselor in the highest court of law in another State may be admitted and licensed without examination. But he must possess the other qualifications required by these rules and must produce a letter of recommendation from one of the judges of the highest court of law of such other State, or furnish other satisfactory evidence of character and qualifications.

VIII.

Not more than three months vacation shall be allowed in any year. The time of clerkship shall be computed by the calendar year, and if the period of clerkship shall expire during the term at which application is made, the applicant may be admitted on any day during the term. The same period of time shall not be duplicated for different purposes. The judges of the Supreme Court may adopt regulations for conducting the respective examinations, and may require a portion of either or both to be in writing.

IX.

These rules shall take effect on the first day of October next.

COURT OF APPEALS ABSTRACT.

CONSTITUTIONAL LAW.

1. Amendment of 1875 as to railroads in streets: does not affect franchises already granted: street steam railways: non-compliance with corporate charter: waiver.— By an amendment to the State Constitution which went into effect January 1, 1875, the legislature is prohibited from passing a private or local bill granting to any corporation the right to lay down railroad tracks, or any exclusive privilege or franchise. Held, not to prohibit a local bill to amend the charter of a corporation (1) by regulating franchises, etc., previously possessed; or (2) giving new franchises not exclusive; or (3) to waive a forfeiture of corporate rights. Matter of Petition of New York Elevated Railway Company. Opinion by Earl, J. (Folger, Andrews and Rapallo, JJ., dissented).

2. Sovereign only can enforce forfeiture of charter of corporation.-A cause of forfeiture in a corporate charter can be taken advantage of only by the sovereign, and cannot be enforced collaterally or incidentally, or in any other mode than by a direct proceeding.

3. Rapid transit act: section 36, chap. 606, Laws 1875, not unconstitutional.- By Laws 1875, chap. 606, which is entitled "An act to further provide for the construction and operation of a steam railway or railways in the counties of the State," it is provided that upon the application of fifty householders and tax payers, commissioners may be appointed in counties by the

board of supervisors, or if the proposed railroad is wholly within a city, by the mayor. These commissioners shall determine whether a steam railroad is necessary, and if they so determine, they may fix routes which may be over, under or along streets (provided the consent of property owners or of the general term of the Supreme Court, required by the Constitution, be obtained), and they are then to superintend the organization of a company to build the railroad. By section 36 of the chapter, it is provided that where the route established by the commissioners shall coincide with the route already fixed upon by any company previously formed, the company may, upon complying with the terms and conditions imposed by the commissioners, have the same rights as a company formed under the act would have, and shall be entitled to construct its railroad upon the route established by the commissioners, with all the rights and with like effect, as though the same had been part of the original route of such railroad. It also gives the commissioners power to determine the route by which any elevated railroad already constructed and in operation, may connect with other railroads or with specified points, and gives to the company owning and operating such railroad the right to construct such connections with all the rights and the same effect as though they had been a part of its original route.

Held, that the act was not unconstitutional, either upon the ground (1) that it delegates legislative power to the commissioners, or (2) that it is not a general law and contravenes art. 3, § 18 of the Constitution, or (3) that it is in conflict with art. 8, § 4, of the Constitution which went into effect in 1875, requiring the consent of property owners or of the general term of the Supreme Court to the laying of a steam railway in a street, or (4) because it grants exclusive privileges or franchises to any corporation which is forbidden by the same amendment. Ib.

4. Provisions contained in section 36, chap. 606, Laws of 1875, general. The provisions contained in section 36, of chap. 606 of the Laws of 1875, are general within the meaning of the Constitution, although there might be but one company which could take the benefit of them. A law conferring rights upon all existing railroad or insurance companies would be general, and any law which relates to persons or things as a class in general, while one which relates to particular persons or things of a class is special and private. People v. O'Brien, 38 N. Y. 103; White v. The Utica and Syracuse Railroad Co., 14 Barb. 559; Cricket v. State, 18 Ohio St. 9; Welker v. Potter, id. 85; Chicago, B. and Q. Railroad Co. v. Cutts, 4 Am. Law R. 174; McCormick v. Rusch, 15 Iowa, 129; McArenwick v. Loper, 39 id. 112; Wheeler v. Philadelphia, 77 Penn. St. 348. [Decided Sept. 18, 1877. Reported below, 7 Hun, 239.]

EASEMENT.

What is not: what is not appurtenant to land.-P. and wife conveyed to a railroad company a strip of land, running through a farm owned by them, by a deed containing this reservation: "Said parties of the first part also to have the privilege of mowing and cultivating the surplus ground of said strip of land not required for railroad purposes." Held, not strictly an easement, and not appurtenant to the remaining portion of the farm, so as to pass to the grantee of such remainder without description or specification. Judgment below affirmed. Pierce v. Keator. Opinion by Church, C. J. [Decided Sept. 18, 1877.]

court, depends upon the condition of the alleged controversy as it appears at the time of the filing of the complaint, and where the right of removal is to be determined by the fact of one of the defendants being a necessary or unnecessary party, the complaint is what is to be looked to, to determine the question, and it is immaterial whether such defendant in its answer, accepts or declines the issues tendered. U. S. Circ. Ct., Dist. Minnesota, August 24, 1877. Latham v. Barney (N. W. L. Rep.).

Slander: interpretation of language: quo animo: remote injury: rumor.-When slauderous words imputing a crime are spoken, they are to be considered in an actionable sense, unless the evidence tends to show that, from the circumstances of the speaking, or from facts known to the hearer, they were not calculated to impress him with the fact that a crime was charged. Proof of the speaking of slanderous words at times not charged in the petition, is admissible for the purpose of showing malice. It is not competent, in an action of slander, to prove that the plaintiff has been troubled and suffered mental anxiety because of the speaking of the words. In such an action it is not competent for plaintiff to prove that because of the speaking of the slanderous words, there was a rumor in the neighborhood in reference to the charge. Sup. Ct., Iowa, Sept., 1877. Prime v. Eastwood (Cent. L. Jour.).

Title to personal property: bill of lading: priority of lien: goods in transitu.-If a bill of lading is signed before the goods are placed on board a vessel, but upon the faith and assurance that they are to be delivered, and afterward they are placed on board as and for the goods embraced in the bill, as against the shipper and master, the bill of lading becomes operative and effectual to pass the title of the property to a bona fide holder of the bill, by way of relation and estoppel. Priority of lien or title does not depend on the mere priority of signing one of several bills of lading. It is the shipment - the delivery of the property on board with notice to the party, which fixes the right and vests the property. D. chartered a vessel to carry 16,300 bushels of wheat from Detroit to Buffalo. The

master signed and delivered to D. a bill of lading for 8,000 bushels of No. 1 wheat, consigned to R. & Co., of New York. Five days later, the master signed and delivered to D. a second bill of lading for 8,300 bushels of No. 1 wheat, consigned to B. & Co. of New York. Both bills of lading were by D. attached to drafts drawn on the respective consignees, and negotiated through the bank, and both were duly paid. There was no wheat on board the vessel when either bill of lading was signed. Subsequent to the execution of the second bill, wheat was placed on board, to the amount of 9,300 bushels, when D. failed and was unable to deliver any more wheat. There was no designation by the shipper of any portion of the wheat as intended to fill either bill, it being his intention to fill both bills. On demand of R. & Co., the masters delivered to them, as holders of the bill of lading earliest in date, 8,000 bushels of the wheat, being the full amount called for by their bill, and tendered to B. & Co. the remaining 1,300 bushels. Held, that both bills of lading became concurrently operative, when the wheat was placed on board, and in the absence of any appropriation of any portion of the wheat to either bill by the shipper, the holders of the two bills were entitled to share pro rata in the wheat actually deliv

ered; and that the vessel was liable to B. & Co. for nou-delivery to them of their proportionate share of the grain. U. S. Dist. Ct., E. D. Wisconsin, Sept. 1877. Burkam v. Schooner Farwell (Chic. Leg. News).

BOOK NOTICES.

FREEMAN ON VOID JUDICIAL SALES.

Void Execution, Judicial and Probate Sales, and the legal and equitable rights of purchasers thereat, and the constitutionality of special legislation validating void sales, and authorizing involuntary sales in the absence of judicial proceedings. By A. C. Freeman, author of treatises on "Judgments," Executions," Cotenancy and Partition," etc. St. Louis The Central Law Journal, 1877.

THIS

HIS is another of the valuable monographs which are being issued from the press of the Central Law Journal. It presents in a clear, yet concise form, the entire law relating to the topic upon which it treats, and will be found of very great value to every practicing lawyer. The work is divided into seven chapters, and contains 137 pages octavo. Its plan and scope will appear from the following heads, one of which is treated upon in each chapter: Definitions; sales void because the court had no authority to enter the judgment or order of sale; sales void because of errors or omissions subsequent to the judgment or order of sale; the confirmation and deed; the legal and equitable rights of purchasers at void sales; the constitutionality of curative statutes; constitutionality of special statutes authorizing involuntary sales. The work is well indexed, contains a table of cases cited, and is excellently printed.

WEEKS ON MINERAL LANDS.

A Commentary on the Mining Legislation of Congress, with a preliminary review of the repealed sections of the Mining Act of 1866; the whole constituting a complete statement of the law and practice relative to mines, mining and mineral lands under United States laws, as construed by the general land office, the secretary of the interior and the courts, from 1866 to the present time. By Edward P. Weeks, Counselor at Law. San Francisco: Sumner Whitney & Co., 1877.

The law relating to mines and mineral lands is very important in several parts of the country, and that governing where the mines of the precious metals exist is almost sui generis. Instead of being, as a whole, derived from the body of the common law, as is the case with most rules governing in respect to other matters or from the civil law, it is made up of acts of congress, decisions and instructions of department officers and opinions of United States attorney-generals, together with a multitude of customs and usages prevailing in the section of country where the mines exist, derived from Spanish, Indian and various other sources. The collection and arrangement of such a mass of material into a systematic treatise must have involved considerable labor and have required, not only an excellent knowledge of the law itself, but a faculty of selection and condensation which is not common. Mr. Weeks has, however, done his work well, and those of the profession who are interested in actions relating to mines will thank him for presenting, in a clear and concise form, the entire statute and other law governing this subject. The work is exhaustive, covering every point likely to arise, and though the sources from which the principles enunciated have not, in all instances, the authority of a court of last resort, they are such as exist and which must

exist until the mining regions are more thickly settled than now. The subject has but recently been developed, and a great share of the statements of principle therein are the production of the last ten or twelve years. It is not therefore to be supposed that the treatise is as complete and accurate as would be one upon a subject, the features of which had been elaborated during several centuries. Yet as stating the law as it now exists, the book will be found a safe guide, and it is not likely the courts or other bodies assuming to pronounce what the law is, will change many of the conclusions arrived at by the author. The book deserves a wide circulation among those of the profession needing assistance upon the subject of which it treats.

CLEMENS ON CORPORATE SECURITIES.

The Law of Corporate Securities as Decided in the Federal Courts. By G. C. Clemens, of the Topeka Bar. St. Louis: W. J. Gilbert, 1877.

The object of this book, as set forth by the author, "is to give in systematic shape the law of municipal securities as stated by the Federal Courts." It treats first upon municipal securities and secondly upon railroad securities. Under the first head it discusses the following topics: Municipal powers, legislative powers, conditions precedent to the issuance of bonds, subscription, the bonds and coupons, provisions for payment, pleading, practice and evidence, mandamus, proceedings in equity, and municipal warrants. Under the second head it treats of corporations, railroad bonds, railroad mortgages, what may be mortgaged, statutory mortgages, priority of mortgages, receivers, the Circuit Courts, procedure in equity, and evidence. An appendix contains the chancery rules of the Circuit Courts. The author intimates in the preface, that the work, though small, is comprehensive, and the contents above mentioned indicate that it attempts to cover a great deal of ground. Precisely what connection there is between the rules governing practice and procedure in the Federal Courts and the law of corporate securities, we cannot conceive. We agree with him that a small but comprehensive book, carefully written, may require more labor than is necessary to compile a massive one. But a volume, large or small, should comprehend only the subject it treats upon. The book also professes to set forth the law as decided in the Federal Courts. The author says, however, he has felt it his duty to criticise judicial opinions freely, on the ground that an argument, though uttered by the chief-justice of the United States, may be fallacious. We would suggest that a criticism upon a judicial opinion is also likely to be fallacious, and whether so or not, the decision of the court determines the law, and elementary writers are not justified in too free criticism upon such decisions. The volume is well printed and bound, and contains a fair index and table of cases cited.

MASSACHUSETTS REPORTS, VOL. 121.

Cases argued and determined in the Supreme Judicial Court of Massachusetts, September, 1876-January, 1877. John Lathrop, Reporter. Boston: H. O. Houghton and Company, 1877.

IT is always a pleasure to us to take up a volume of

the Massachusetts Reports, for we know it will be filled with interesting and valuable cases, carefully reported and presented in as attractive a shape as is possible, by the most elegant paper, press work and binding. The present number forms no exception to the

rule, and contains a large number of decisions worthy of being permanently incorporated into American case law. The decisions of the Supreme Judicial Court are brought down to the close of January, 1877, which is about as late as is consistent with careful reporting. Among the cases worthy of attention we notice these: Jamaica Pond Aqueduct Corporation v. Chandler, p. 3. A right of way, whether acquired by grant or prescription, is not extinguished by the habitual use by its owner of another way equally convenient instead of it, unless there is an intentional abandonment of the former way. Murphy v. Collins, p. 6. There is no presumption that the statutory law of another State is the same as that of this Commonwealth. Commonwealth v. Jennings, p. 47. Here there was an objection of misnomer. The defendant was named "Gigger" in the indictment. It was in evidence that proper spelling of the name was "Jiger," or "Jigr.' The court held that the question of misnomer was properly submitted to the jury. Commonwealth v. Holt, p. 61. If a man speaks of a woman living in a house with him as his wife, it is sufficient proof of cohabitation in an indictment for adultery with her. Wassum v. Feeney, p. 93. The fact that an infant served on a jury is not sufficient to warrant the setting aside of the verdict, though the unsuccessful party was ignorant of the fact of infancy. Warren v. Hodge, p. 106. An agreement to forbear to sue on a debt due upon payment of part of the debt, is without legal consideration and cannot be availed of by the debtor either by way of contract or of estoppel. Darling v. Boston & Albany R. R. Co., p. 118. A horse escaped from his pasture into the highway and went upon the railroad track through a place where the railroad company was legally bound to maintain a cattle guard, but did not. Held, that the horse was a trespasser and the company were not liable for his being killed by the cars, unless it was wantonly done. Wellington v. Jackson, p. 157. One who knowing the signature to a promissory note to be forged and intending to be bound by it, acknowledges it as his own, is bound by it just as if it had been originally signed by his authority. Cobb v. Fisher, p. 169. A writing not under seal, signed by an owner of land, purporting to convey the right of flowing the same and to release all claims for damages therefor, does not bind the land or estop a subsequent grantee to recover damages for the flowing thereof in the future. Crossman v. City of Lynn, p. 301. A maid servant, without fault on her part, was prevented from returning from her mother's house to her employer's on Saturday night. The employer used his horse on Sunday to bring her to his house from her mother's, her help being required on that day to prepare food needed by the family. Held, that the use of the horse was necessary and the town liable for an injury to the horse from a defect in the highway. Low v. Elwell, p. 309. The owner of land who forcibly enters thereon and ejects without unnecessary force a tenant at sufferance, who has had reasonable notice to quit, is not liable to an action for an assault. Commonwealth v. Filkins, p. 356. A city had authority to pass ordinances with penalties for violation not exceeding $20 for one offense. An ordinance prescribing for a continuing act a penalty of not less than $1 nor more than $5 for every hour the act was continued, held, invalid. Commonwealth v. Hoffman, p. 369. An acquittal on an indictment for breaking and entering a dwelling-house and stealing the property of A, held no bar to a com