CHARITABLE BEQUESTS. — An important, and as we think a wise, change has been made in the power of testamentary disposition by a bill recently passed, almost unanimously, by the New York Assembly and Senate. The act provides that "no person having a husband, wife, child, or parent shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious, missionary, or social society or corpora tion, or to any eleemosynary society or corporation whatever, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts and the lawful expenses of administration. And such devise or bequest shall only be valid to the extent of such one-half, and no more; and no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator."

MURRAY HOFFMAN, the well-known author, died May 7, 1878. Mr. Hoffman was born in 1791, and was graduated at Columbia College in 1809. From 1839 to 1843, he was Assistant Vice-Chancellor; and from 1853 to 1861, he sat on the bench of the Superior Court. Among the works of which he was the author, were, "Office and Duties of Masters in Chancery;" "Treatise on the Practice of the Court of Chancery; Chancery Reports" (1839

40);

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"Provisional Remedies;" and "Ecclesiastical Law."

JUDGE ALLEN. William F. Allen, associate judge of the Court of Appeals, died June 3. Judge Allen was a native of Connecticut, but moved to New York at an early age. In 1845, he was appointed United States District Attorney for the Northern District of New York; in 1848, was elected Judge of the Supreme Court; and in 1856, re-elected to the same office. In 1870, he was chosen judge of the Court of Appeals, a position which he held at the time of his death.

LAW'S DELAY. An unusual instance of longevity, considering the trifling amount involved in the suit, is afforded by the case of Yale v. Dederer, lately reported in 68 N. Y. The action, which was brought to charge the estate of a married woman with a promissory note signed by her, was finally determined Jan. 30, 1877, having been three times before the Court of Appeals, — the first time in December, 1858 (18 N. Y.), and the second time in 1860 (22 N. Y.). The note was payable May 1, 1854, and the action was commenced and tried, so as to be heard afterwards by the Special Term of the Supreme Court, in August, 1855 (21 Barb. 286). The Court of Appeals, at its first chance, held, that a promissory note did not charge the separate estate, unless she intended that it should have that effect; at the second, that the intention must be expressed in the instrument; at the third and last, that, while regretting the rule they had established before, they would not change it.

The report in the 68th N. Y. would have an additional interest, if the costs were stated. The amount of the note was $998, and judgment was for the defendant.

PENNSYLVANIA.

CONTRIBUTORY NEGLIGENCE. -"STAY" LAW. SUPREME COURT. West Philadelphia Passenger R. R. Co. v. Whipple. — A woman, while riding in one of the plaintiff's cars, in which she was unable to find a seat, was thrown down and injured by the sudden stopping of the car. In a suit for damages, the plaintiffs contended that she had been guilty of contributory negligence in not taking hold of the hand-straps with which the car was provided. To this the defendant answered, that it would not have been convenient for her to do so, and would have "disarranged her dress," and that, in consequence, she had taken hold of the hand of a friend. At the trial, the question of her negligence was left to the jury, with the instruction that, if they found she could not conveniently reach the strap, and so took hold of the hand of a fellow-passenger, it was for them to say whether this was a sufficient precaution. The Supreme Court held this instruction to have been correct; adding, that "possibly a woman may be so fantastically and foolishly hooped, wired, and pinned up, as to deprive her of her natural power to help herself; but, if so, the question is one of fact and not of law, and so we incline to leave it, instead of imposing upon our brethren below the difficult duty of prying into the artificial stays of the plaintiff's case."

" ARIZONA REPORTS." The methods of some, at least, of the Pennsylvania judges in reaching their conclusions seem not to meet with general approval, if we may judge from the following prospectus" which has reached us:

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ARIZONA REPORTS. - PROSPECTUS.

The undersigned beg respectfully to call the attention of the profession to a forthcoming volume of the Reports of the new Territory of Arizona. This Territory has for a number of years possessed a regularly organized judicial system; but its Reports have hitherto been contained only in manuscript volumes. The extreme ability of many of the judges has now induced the undersigned, at a considerable expense, to undertake the regular publication of their opinions for the future. Specimens of the style in which these Reports will be issued will be found at the end of this Prospectus, and are submitted to the judgment of the profession. Pennsylvania lawyers, in particular, will be agreeably surprised to observe how closely the peculiar style of the judicial opinions in their own State has been followed.

The Reports will be published annually, at a cost of three dollars a volume. Subscriptions will be received by

VALES & GREEN,

No. 35 Plymouth Street, Pittsburg.

SUPREME COUrt of ArizonA, AT MESILLA. JANUARY, 1858.

Orlando Brown v. Valasquez Smith.

1. A contract which does not express the intention of the parties thereto in the plainest words, is void. Mowry, C. J.

2. No recovery can be had on a promissory note in these words: "Sixty days after, I promise to pay," &c.

The opinion of the court was delivered by MowRY, C. J.

It is an established principle of social science that customs vary in different countries, and at different epochs even of the same people. The manifold and everchanging necessities of progressive civilization tend constantly to evolve new combinations and evoke new wants. The relative rights and duties of mankind become in time more complex, or present themselves under different conditions and in novel aspects. I do not speak of moral axioms, which, being founded on the eternal principles of ethics, always lurk, in however vague and undefined a shape, among the instincts of a nation, and mould its inner life. It is with the juridical side of man's nature alone that we, as a court, can hope to deal. There, historical development is every thing, positive conceptions nothing. It cannot be doubted that a locomotive is different from a hand-plow, and a feudal baron from a filibuster. Why, then, apply to them the same principles of decision? Precedents are merely the embodiment of the obsolete ideas of past ages, the cast-off chrysalis of a thought which has long since transmigrated into and through other forms of expression. We must, therefore, take care lest, by following decided cases, we miss the living idea which they manifest, in grasping at the accidents of its externality. We must regard them only as pleasing illustrations of the customs of other states of society, not as authorities for our own.

In the same manner, it is agreed by all profound philosophers that language is the human method of conveying thought. It does not cease to be so when put in writing. Ink and paper only supply or follow the organs of speech. We must always go back to the thought itself, and scrutinize that. Now, as law is the outward and concrete expression of the aggregate sentiment of a community, it is obvious that every man who, contrary to that aggregate sentiment, or, in other words, to this general law, claims a right from another, must show not merely a writing from that other, but in that writing a clearly defined exposition of the thought. The law is so equitable in its dispositions, that we ought not to be asked to interpret ambiguous phraseology. If men will not set down their meanings in plain words, their conventions should be treated as absolutely void. If this doctrine were generally recognized, we might hope to have contracts and other instruments easily construed by parties or their counsel, without the necessity of always resorting to the courts for an authoritative construction of them.

From these principles it follows that this judgment must be affirmed. Smith made his promissory note in the following words: "Sixty days after, I promise to pay twelve dollars and seven cents to Orlando Brown, Esq." After when? It does not appear. Smith's true intention is left unexpressed. The note may have been meant to be paid in sixty days after its date, or after his death. It is justly said by Javolenus (Digest, lib. xviii., tit. 121, 3), Qui facit per alium facit per se; and the same principle is to be found in our own recent decision. 12 Ariz. 3; 13 id. 201, 145, 73; 21 id. 346, 267. The plaintiff below had no case.

With respect to the other assignments of error, it is true that they involve all the material points in controversy; but they are not assigned according to the rules of court, and we cannot notice them. We have constantly to repeat to counsel that we sit here for the determination of abstract principles, not of particular cases. Judgment affirmed.

Silas Tompkins v. The Commonwealth.

1. A defendant may be convicted of murder by poisoning, on an indictment which charges a murder by a clasp-knife.

2. It is no objection to a conviction that it nowhere appears on the record that the judge before whom the case was tried was duly commissioned by the governor.

3. It is not an error to ask a prisoner, when called up for sentence, "what he has to say why judgment should not be pronounced," &c.

4. The course of the administration of criminal justice cannot be stopped for six cents. Per Ayle, J.

The opinion of the court was delivered by AYLE, J.

The defendant below was found guilty of the gratuitous murder of a mother and her ten children, under circumstances of useless and offensive barbarity. We were quite prepared to hear his counsel arguing that the conviction was erroneous, and their client innocent. It is always so in aggravated cases. But with the innocence of Tompkins, we, as a court of error, have really nothing to do. Law is the hypothenuse of a right-angle triangle, of which logic and moral philosophy are the other two sides. Though it touches them each at one point, its general direction is quite distinct.

Mistakes will happen, of course, in our judicial system, as accidents do on our railways; but we can do without neither the one nor the other. Each usually carries its passengers in safety; and when the wrong man is now and then hung or blown up, he must console himself with the reflection that he is a sacrifice to the necessities of society.

With the law of this case alone it is our province to deal. We find here the usual parade of exceptions and points and assignments of error, and a paper book encrusted with authorities like barnacles. Every thing that the ingenuity of counsel could suggest has been done to confuse and complicate the decision of the case, in the hope, perhaps, that the prisoner, concealed by the dust of argumentation, might escape in a sort of legal disguise. But the eyes of Justice are too quick for that sort of thing, and we, as her ministers, will block any such game without re

morse.

The plaintiff in error, in the first place, complains that he is charged, in the third count of the indictment, with committing the alleged murder by means of a “clasp-knife of the value of six cents," whereas the proof was that he destroyed his victims by strychnine, infused in lager beer. We know nothing of this from the record. The verdict was guilty on all the counts, which means that he killed the mother and children, or some of them, in some way; and this, for aught we can tell, may have been both by the knife and the beer. There is nothing in the law to restrict a man to one mode of homicide, as there is in respect to duplicity in pleading. At any rate, it is a matter in which the Commonwealth alone is interested, to the extent of the value of the knife as a deodand. We cannot stop the administration of justice for six cents!

Another objection urged to this conviction is, that it nowhere appears that the judge who tried the case was duly commissioned by the governor. Of some things the court is supposed to be in profound ignorance until instructed by counsel; but this is not one of them. Whether or not we find time to read the election returns, we are judicially bound to recognize the existence of our brethren of the inferior courts.

The third error is, perhaps, somewhat more deserving of consideration. The prisoner, it appears by the record, was asked, when called up for sentence, "what he had to say why judgment should not be pronounced," &c., instead of "whether he had any thing to say," &c. The forms of administration of justice are doubtless the life of the law. Except through them, we have no means of ascertaining the law itself. A judge who should substitute his own theories for received doctrines, would be guilty of the grossest injustice to suitors and the community. But we are unable to discover, in the present case, any very important variation from established usage. It

is true that the form used here is rather abrupt, and contains, perhaps, an implied şarcasm. Still, the meaning was substantially conveyed, and the ends of justice sufficiently served.

In the case of Sargent v. Coffin, 12 Mass. 315, it was properly decided that an erection in a navigable river was a nuisance; and in Smith v. Mildmay's Adm., 31 Ala. 410, it was held that notice to the indorser of a note of its dishonor, might be waived. I need not refer to the rule in Shelley's Case, 1 Rep. 88, nor to the wellknown Woodworth Patent Case of Wilson v. Barnum, 8 How. (U. S.) 253. These, and other decisions which it would be mere pedantry to cite, show that the plaintiff in error has no cause to complain of the charge of the court.

The other errors are merely supernumeraries, joined to the principal characters in order to give them an air of fictitious importance on the stage. We shall do the prisoner no wrong by disregarding them. A criminal, at his trial, plays at pitchand-toss with the law for his life, and, if he loses, he must pay the stakes. It is too late to contest here the minor points of the game, which ought to have been settled as it went on. Judgment affirmed.

ENGLAND.

SURFACE WATER. ADJOINING OWNERS. Hurdman v. The NorthEastern R. R. COURT OF APPEAL. The court in this case has rendered a decision which, if sound law, puts a very considerable limitation on the full enjoyment of his property by an owner of land. The paragraphs of the claim material to the decision are:

"1. At the time of and before the commencement of the damage hereinafter mentioned, the plaintiff was, and is still, possessed of a house known as No. 16 Lodge Terrace, Sunderland.

"2. The defendants then were, and still are, possessed of a certain close of land adjoining the said house of the plaintiff.

"3. The defendants placed and deposited in and upon the said close of the defendants, and upon and against a wall of the defendants which adjoins and abuts against the house of the plaintiff, large quantities of soil, clay, limestone, and other refuse, close to and adjoining the said house of the plaintiff, and thereby raised the surface of the defendants' land above the level of the land upon which the plaintiff's house was built.

"4. The rain which fell upon said soil, clay, limestone, and other refuse so placed as aforesaid, oozed and percolated through said wall of the defendants' into said house of the plaintiff, and the plaintiff's house thereby became wet, damp, unwholesome, and unhealthy, and less commodious for habitation.

"5. By reason of the said acts of the defendants, the walls of the house of the plaintiff became and were very much injured, and the paper and plaster upon the said walls have been destroyed.

"6. In the alternative, the plaintiff alleges that the defendants so negligently and improperly placed, and deposited the said soil, clay, limestone, and refuse upon the defendants' said land, that the rain-water, falling thereon, oozed and percolated through and into the plaintiff's house, whereby the plaintiff's house was damaged, as before mentioned."

On appeal from the judgment of the court below on a demurrer to this statement of claim, the Court of Appeal (COTTON, L. J.) said:

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