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WAY.

Land taken and used for a plank-road by a private company was abandoned by them, and thereupon claimed by the county commissioners as a highway, and used as such. Held, not such a change in the use as to entitle the owner of the fee to new compensation. Both were similar public uses, and equally onerous. Heath v. Barman, 49 Barb. 496.

See CONSTITUTIONAL LAW, STATE; DEED, 3; ESTOPPEL.

WILL.

1. Testator asked a witness to read a paper, which he did, silently. The testator then asked him to witness his signature, and said, in answer to questions, that he had heard the paper read, and thought it was all right. Another person was then called into the room, and asked by the testator to witness his signature. Both witnesses then signed. Nothing was said as to what the paper was. Held, that this was not a sufficient publication. - Abbey v. Christy, 49 Barb. 276.

2. A party who had destroyed a will under an impression, mistaken, but justifiable, that it was inoperative, was allowed to prove the substance of it by his own testimony, only aided by circumstances, although he was made thereby residuary legatee. Wyckoff v. Wyckoff, 1 C. E. Green, 401.

3. Devise and bequest of "all the rest and residue of my real and personal estate" to trustees. "To give to my sister C. N. 250 shares of the capital stock of the N.Y. & B. T. Line." Similar legacies to other relatives, and legacies of other specified stocks to other friends. The trustees were "authorized to retain and hold" testator's present investments, "unless requested, in writing, by his wife to change the same;" and the trust fund, in fact, contained stocks of the specified kinds in excess of the amount bequeathed. There were provisions as to surplus interest and dividends. Held, from these and other circumstances (reversing the decree of the chancellor), that the legacies of stock were specific. Norris v. Thomson, 1 C. E. Green, 542, ib. 218; s.c. 2 McCarter, 493.

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4. Bequest and devise to executors in trust to pay over the same to officers of a charitable school, "when the available means of such school shall amount to $40,000." More than eleven years had elapsed without any thing having been done toward raising the rest of the sum. The executors took the residue of the testator's estate in trust "to be distributed by them to deserving relations, and such indigent persons as they may think worthy." A provision for a son of the testator was expressed to be "in full for his share in my said estate." Held, that the condition precedent to the payment to the charitable school had not been performed within a reasonable time; and that, allowing the distinction between a lapsed devise and a lapsed legacy having been abolished by a statute by which a devise would pass after acquired real estate, both the land and money given for the school fell into the residuum; that, under the clause disposing of the residuum, the trust for deserving relations was to be preferred; and that, after the failure of the original trust, the said son was not excluded from a share by the above expressions. - Drew v. Wakefield, 54 Me. 291.

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5. Gift of residue to A., B., C., and D., " four children of E. and F. A.

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died, living the testatrix. Held, that his share did not survive to the other residuary legatees, but went to the next of kin as undisposed of. Webb, 1 Phillips, N.C. Eq. 1. See Hastings v. See Hastings v. Earp, ib. 5.

Winston v.

See CONDITION; CONFEDERATE MONEY, 3; CONTINGENT INTEREST; DISTRIBUTION; ELECTION; LEGACY; SLAVE, 2, 3; VESTED REMAINDER.

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BOOK NOTICES.

A Treatise on the Law of Marine Insurance and General Average. By THEOPHI-
LUS PARSONS, LL.D., Dane Professor of Law in Harvard University, at
Cambridge. Boston: Little, Brown, & Company. 1868. 2 vols.

IN 1859, Mr. Parsons published a treatise on Maritime Law. This included the law of Shipping, Insurance, and Admiralty, and was published in two volumes, about five hundred pages being devoted to Insurance. Since this treatise appeared, we have had frequent occasion to consult it, and have always found the authorities fully and accurately collected. We regard it as one of the most valuable of Mr. Parsons' works. In preparing a second edition, Mr. Parsons found that the recent cases made it impossible to confine the work within its former limits. He therefore determined to prepare a new book on the law of Marine Insurance, founding it on the former work, but so increasing its size as to enable him to make it as complete as he could; and the result is before us in two volumes, which contain more than double the space devoted to Insurance in the former work. That this treatise will be of great value to the profession we have no doubt. The principles of insurance law are stated in the text with great fulness and with great accuracy, and in the notes are to be found, we will venture to say, a far more complete collection of the authorities than is to be found elsewhere. We were struck, when the work on Maritime Law appeared, with the great number of cases which Mr. Parsons had caused to be obtained in advance of their publication in the reports. Cases which were not reported until 1864 were known to the profession by the means of his work in 1859. We find in this work the same commendable enterprise.

Mr. Parsons' plan of stating in his text the principles of law, and in his notes referring to every case bearing with any force upon the statements in the text, with copious extracts from the leading authorities, has been followed in this work. This plan has many advantages and some disadvantages. It certainly is better than that adopted by some writers, of putting every thing but the name of the case in the text, and of stating at length case after case, without any attempt to extract the principles involved. Where a point is well settled, no elaborate history of the law respecting it is necessary; but, as every lawyer knows, there are very many questions still undetermined, or, if settled in one State, not so in another; and in regard to these it is certainly very important that one should know exactly how the question stands, what courts have passed upon it, and how they have decided. There is, however, some danger of yielding to the temptation of making longer citations than are necessary, and we think Mr. Parsons sometimes errs in this respect; but this is a fault of excess which can readily be pardoned. In conclusion, we heartily commend this work to the profes

sion.

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A Treatise on the Law of Highways. By JOSEPH K. ANGELL and THOMAS DURFEE. Second Edition, with Notes and References to the later Cases. By GEORGE F. CHOATE. Boston: Little, Brown, & Company. 1868. SINCE the year 1857, in which the first edition of this standard work was published, there have been a great many cases on the various topics of the law of highways. These Judge Choate has arranged after the same plan as that adopted in the original treatise of Mr. Angell, and he has incorporated his additions in the text and notes. We think that he has done his task thoroughly, and that the present edition now presented to the profession will be found to contain all, or nearly all, the law on the subject. We have, however, been disappointed in the index. It is by no means full enough.

Perhaps the only other criticism we should be inclined to make of the editor's labors-for the original work is, as we have said, the standard work on the subject-is, that he has hardly given sufficient prominence to the new phases of the law. Thus in discussing the much-mooted question of the liability of towns and cities for accidents occurring through snow and ice making the roads, and especially the sidewalks, unsafe, he mentions only in a part of a foot-note (note to § 266, pp. 309, 310) the recent, and certainly important, Massachusetts doctrine, that a person, using due care, being injured by falling on a slippery sidewalk, has no remedy against the city; although it is a substantial reversal of the view laid down elaborately by Mr. Justice Nelson, in City of Providence v. Clapp, 17 Howard, 168, whose opinion forms the substance of §§ 264-266.

We are glad that the publishers have issued a new edition of this book; and the constantly recurring cases on the subject assure for it an extensive circulation.

Reports of Cases heard and decided in the Supreme Court of Michigan, from July 11, 1867, to April 28, 1868. WILLIAM JENNISON, Reporter. Vol. III., being Vol. XVI. of the series. Detroit: Wm. A. Throop & Co. 1868. Ir is our fortune, good or bad, to be called upon to examine pretty carefully nearly all the new volumes which appear in the different series of State Reports. In doing so, we have been much struck by the unaccountable diversity of merit which they manifest. We say unaccountable, for the distribution of excellence is according to no principle which we can ascertain; contiguous States sometimes offering the most striking examples of learning and ability on one side, and of the want of those qualifications on the other side, of their dividing boundary. We are most happy that in the present case our only duty is to praise. The Michigan Reports are among the best in the country at the present time. The reporter is better than the average, and the judges are candid, able, and wellinformed. We shall here refer to but three cases, as the American Digest of our next number will glean the field which we have partially reaped before. (See 2 Am. Law Rev. 352, 573, 775.) As to the point on which the court were divided in McMillan v. Mich. S. & N. I. R.R. Co., p. 79 (ante, 2 Am. Law Rev. 352), we feel a strong leaning to the view of Campbell, J., and the Chief Justice, that notice to the consignee of the arrival of goods at the end of their transit is not necessary to terminate the liability of a railroad company as common carriers. The adverse argument seems based upon the assumption that the undertaking of the railroad is to deliver the goods to the consignee at his house or store, from

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which it is excused, to be sure, on showing its inability to run its cars beyond the end of its track, but excused only on accepting the substituted duty of giving notice. We should have thought, on the other hand, that when goods have reached the consignees' end of the road, the contract of carriage, which was made with knowledge of and with reference to the nature of the road, was fulfilled. (See Norway Plains Co. v. B. & M. R.R. Co., 1 Gray, 263, 272.) As a question of expediency, too, while there is an obvious reason for holding carriers to be insurers of goods in transitu, in the difficulty, in case of loss, of ascertaining their whereabouts or circumstances, this reason loses its force when the goods are housed and at the end of the transit.

The second case we would mention is Hyatt v. Adams, p. 180 (ante, 2 Am. Law Rev. 352). We question whether there should not be a civil remedy for causing the death of a human being, just as for any other felony. So far as we know, the only authority which even hints at such a distinction in the English cases is a somewhat broad remark of Lord Ellenborough, at nisi prius, in Baker v. Bolton, Camp. 493. The other cases, and especially the argument of Bosanquet, Sergt., in Stone v. Marsh, 6 B. & C. 551, which was approved by the court, look the other way. If there is no difference, it is hard to see why an action might not have been brought against one who had been convicted of manslaughter, had his benefit of clergy, and been burnt in the hand (6 B. & C. 558), unless the analogy of the appeal of death was followed (4 Bl. Com. 315). Had we room, we should like to discuss the allowing of damages for loss of service before the death, but not for the death. The death having taken place within a year and a day, we should have thought, that, just as thereby the act which caused it became felonious, that act (in this case, malpractice) would have received its character from the same fact, in like manner, when made the foundation of a civil suit. The cause of action was not simply malpractice sufficient to cause loss of service; it was malpractice grave enough to cause death. If damages were allowed, how could that element of the case be left out? If the death had taken place after a year and a day, we suppose there would have been no more legal connection for civil than for criminal purposes between it and the unlawful act, its supposed cause. In that case, therefore, the fact of death would

have been immaterial.

In People v. Cicott, p. 283 (ante, 2 Am. Law Rev. 574), ballots giving the initials only of the candidate's Christian name were rejected with some hesitation, and, apparently, chiefly on the authority of earlier cases. The House of Representatives in Massachusetts arrived at a different conclusion in a similar case, in 1867, in spite of a strong argument by ex-Governor Andrew, who relied a good deal on the earlier Michigan decisions. Six votes for Jonas Champney and one for J. Champney were admitted, although the candidate's name was Jonas A. Champney, and although he had a father living and eligible, whose name was Jonas C. Champney. House Documents, 1867, No. 64. See Peabody v. Brown, 10 Gray, 45. See notice (p.150) of 3 Ellis & Ellis, ad finem.

The Civil Practice Act of the State of California. By THEODORE H. HITTELL. San Francisco: Sumner Whitney.

1868.

WITHOUT professing to know more than our brethren in the Eastern States generally, we should say that the profession in California could not fail to be

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