CONTRACT-RESTRAINT OF TRADE.-A., being a physician in J., sold his practice to B. and agreed never to locate again in J. to practice medicine, and further, never to practise within five miles of J. Subsequently B. agreed to permit A., on payment to him of $500, to practice within five miles of J., but this agreement contained the further clause: "Nothing herein contained shall refer to or include any place without the limits of the city and county of P." A. practiced afterward within five miles of J., and outside of the city and county of P., without objection on the part of B., who frequently saw him and met him in consultation. Held, that in view of the construction placed upon the supplementary contract by the parties, it must be taken only to preclude A. from locating in J., and not to preclude him from practicing without the city and county of P., within five miles of J. Caley v. R. Co., 80 Peun. St. 363. Parson's Appeal. Opinion by Trunkey, J. [Decided May 19, 1884.]

PARTITION-LESSEE FOR YEARS-MUST HAVE NOTICE. -A lease for twenty years of an exclusive right for the sole and only purpose of mining and excavating for petroleum in one-half of certain lots, in alternate quarters, passes an interest in the land to the lessee. He has an estate in the land, and not a lien merely. Hence the lessee is not bound by an amicable partition made by a purchaser under a mortgage of the interest of one of the tenants in common who owned said lots with the other tenants in common, which divides the land to his prejudice. See Chicago, etc., Mining Co. v. U. S. Petroleum Co., 57 Penn. St. 83; Long's Appeal, 77 id. 151; 1 Danl. Ch. 257; 1 Story Eq. Jur., § 656. Under the statute of 32 Henry VIII, ch. 32 (reported by the judges to be in force in Pennsylvania), no person having an interest in the land, even as a tenant for years, can be prejudiced by a partition thereof to which he is not a party. In support of the position that a person who has not a freehold interest in the land cannot be made a party in partition with the owners of the fee, the plaintiffs cite McKee v. Straub, 2 Binn. 1; Long's Appeal, 77 Penn. St. 151; and Mark v. Mark, 9 Watts, 410. The last two cases are not in point. Mark v. Mark was decided on the ground that neither the widow nor the executors of a decedent, who was a tenant in commou in his lifetime, had au estate in the land. Long's Appeal ruled that a mortgagee cannot be a party in partition of land owned by the mortgagor and others as tenants in common, and that the lien of the mortgage attached to the part taken by the mortgagor in severalty. In McKee v. Straub the decision was put on two grounds, first, that the action had abated by the death of one of the parties; and second, that the tenants had not a freehold estate. The first was fatal. The second received very brief remark, and neither counsel nor court noted the statute of 32 Henry VIII, ch. 32. Had that statute been brought to the attention of the court, instead of others which did not touch the point, the reversal might have been on the first ground alone. Be that as it may, it seems clear that the statute was not considered, and that misconstruction thereof is

[Decided Oct. 6, 1884.]

son, 20 id. 448, distinguished. A contract to deliver ore of a certain weight, and of a certain price per ton, but where no time is fixed for the completion of the contract, nor any amount as a monthly delivery, and where a payment is made before any delivery, is an entire contract. 2 Pars. Cont. 29-31. To determine the value of ore which has been found unfit for the uses for which it was sold, evidence is admissible to show its unfitness for other purposes. The legal measure of damages when inferior ore has been furnished is the difference between the contract price of the ore and the market value. Where shipments have been received without any protest by the buyer, or inducements by the seller, the dates for estimating the market price are the dates when the shipments were received. Interest should be allowed in all cases of contract where it is the duty of the debtor to pay money without a previous demand by the creditor; the debtor can ouly relieve himself of liability by tendering payment of the debt. Where a definite time is fixed for the payment of money the law imposes the obligation to pay damages by way of interest at the legal rate for the detention of the money after the breach of the contract for its payment. Foote v. Blanchard, 6 Allen, 221. The right to interest upon money owing upon contract depends not on discretion but upon legal right. Dana v. Fiedler, 12 N. Y. 40; Adams v. Fort Plain Bank, 36 id. 255, "It is a legal and uniform rate of damages, in absence of any express contract, when payment is withheld after it has become the duty of the debtor to discharge the debt." Minard v. Beans, 64 Penn. St. 411. If that was a dictum we think it accords with the policy of this State. Soon after this court decided that no judgment could bear interest from the date of the verdict on which it was entered, unless entered on the same date, the Legislature enacted that it shall be lawful for a party in whose favor a verdict may be rendered for a sum of money, after judgment thereon, to collect interest from the date of the verdict. Where land is taken by a corporation in the exercise of eminent domain, interest should be added to the amount of damages from the time the landowner was entitled to compensation. Delaware B. Co. v. Burson, 61 Penn. St. 369. Generally in this country interest is looked upon as an incident of the money, to be paid with the principal when the latter has been withheld after it became the duty of the debtor to pay it. The conflict on this subject between the English and American cases need not be noted, nor would it profit to note some exceptional cases in this country. West Rep. Mining Co. v. Jones. Opinion by Trunkey, J. [Decided Jan. 5, 1885.]

CRIMINAL LAW.

ELECTION

INDICTMENT-ALLEGATIONS-PERJURY LAW-REGISTERS ARE JUDICIAL OFFICERS-"IMFAMOUS CRIME."-(1) In an indictment for perjury under the statute (Code, art. 30, § 155) it is sufficient to charge that the traverser swore willfully, knowingly,

E. Warner, Albion; Edward O. Woods, Marion, S. C.; Abram Newcomb, Luzerne.

The class day exercises were held at the Law School building, on the evening of the 27th inst., and were as follows: President's Address by J. P. Philip; Poem by H. D. Stevens; History by F. L. Michael; Oration by F. M. Andrus; Prophecy by C. M. Reed. These exercises also were of unusual interest.

The Alumni had a business meeting and a banquet on the 28th inst.

NEW BOOKS AND NEW EDITIONS.

GILBERT'S THE RAILROADS AND THE COURTS. Under this title Mr. Hiram T. Gilbert, of Ottawa, Illinois, writes aud himself publishes the breeziest book that has blown across our path in many a day. It is good warm weather reading, and it is for reading rather than for reference. It consists in a very ingenious, industrious, and vigorous exposure of the inconsistencies of the courts of Illinois in railroad cases. The author apologizes for his own shortcomings as follows: "Certainly, when the Supreme Court are compelled to acknowledge, as they did in the Wilson case, 94 Ill. 426, that in the Ferguson caso, 90 Ill. 510, they had unanimously overlooked that provision of our Constitution which declares that the Circuit Court shall have original jurisdiction of all causes in law and equity, the errors of one humble member of the profession, whose knowledge of the law is derived chiefly from the Illinois reports, should be viewed with great cbarity." But although the book will be soothing to the lawyers, the author makes things hot for the judges. He lays down some forty "rules," like Wigram and Lawson, and in almost every instance he lays down a rule embodying the precise contrary immediately afterward, and fortifies both by citations from the Illinois reports. Thus: "Rule Thirtieth. Errors in the admission of evidence will be cured by instructions to the jury to disregard such evidence." (64 Ill. 334.) "Rule Thirty-first. Errors in the admission of evidence will not be cured by instructions to the jury to disregard such evidence." (66 Ill. 222.) Again: "Rule Fourteenth. An instruction should not state the law in the language of the statute. (96 III. 42.) "Rule Fifteenth. It would be unheard of to reverse because an instruction was given in the language of the statute." (97 Ill. 74.) Once "Rule Third. The jury should not be left at liberty to speculate on probabilities, but should be required to be satisfied by the greater weight of evidence." (65 Ill. 195.) 'Rule Fourth. The jury should only be required to believe from the evidence, and should not be required to be satisfied from the evidence." (83 Ill. 85.) Of course, we cannot vouch that the author has correctly deduced these rules in every instance, but in view of recent inconsistencies in our own State-not in railroad cases, however-we can easily believe that he has done so. At all events, he has constructed a very trenchant and damaging piece of criticism, and if we had not promised ourselves to keep still about codification from now till next winter, we should say, under our breath and under favor, it shows the crying need of a Code.

more:

DUNNING'S REPORTS.

Reports of Cases argued and adjudged in the court of King's Bench in the latter part of the reign of George the Second. By John Dunning, Lord Ashburton. With Notes of Reference to English and American cases, by Charles G. Delano. Boston, George B. Reed, 1885. Pp. x, 65. This is the most elegantly printed volume of law reports since the issue of "Star Chamber Cases," by

Soule and Bugbee. The cases were decided about 1753-4, and are of slender interest. We do not understand that Mr. Dunning argued and adjudged them, although the title-page says so. There is a good portrait of the reporter prefixed.

THEA

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, June 2, 1885:

Judgment reversed, new trial granted, costs to abide event-Kathleen Hickey, infant, etc., respondent, v. John P. Taaffe, appellant.- -Judgment of Supreme Court and Court of Oyer and Terminer reversed and new trial granted-People, respondent, v. James L. Lyon, appellant.-Order of General Term, so far as it modifies that of Special Term, reversed. Order of Special Term affirmed with costs in all courts-People ex rel. M. F. Collins, appellant, v. John D. Spicer, comptroller, etc., respondent.-Judgment reversed, new trial granted, costs to abide event-Charles W. Cook, infant, etc., respondent, v. LaLance and Grosjean Manfg. Co., appellant.- -Order of General Term reversed and certiorari quashed in first case, order affirmed in the other-People ex rel. part of Cayuga Indians residing in Canada, respondents, v. Board of Commissioners of land office, appellants. Same v. State of New York (Board of Claims).-Judgment affirmed with costs-Health Department of New York, appellant, v. James Purdon, respondent.Judgment reversed, new trial granted, costs to abide eventAlfred Knower et al., respondents, v. W. H. Reynolds, appellant. As much of judgment of General Term as awards judgment for plaintiff for six cents damages should be reversed and new trial granted, costs to abide event-Eliza A. Thomas, executrix, etc., appellant, v. New York Life Ins. Co., respondeut.Judgment affirmed with costs-Martin T. McMahan, receiver of taxes, etc., respondent, v. Isaac S. Platt, appellant.- -Order affirmed with costs- People v. Western Union Tel. Co., appellant, v. Commissioner Taxes, etc., respondents.-Judgment affirmed with costs-Susan E. G. Balcom, executor, etc., appellant, v. State of New York, respondent.-Affirmed with costs-First National Bank of New York, respondent, v. Continental National Bank of New York, appellant.

-Judgment affirmed with costs-John W. Sanderson, appellant, v. County of Kings, respondent.Judgment affirmed with costs-Lewis N. Putnam, respondent, v. N. Y. C. & H. R. R. Co., appellant.Motion to recall remittitur. Denied with $10 costsAustin D. Moore v. Joseph Hegeman,

NOTES.

Ex-Judge Dillon is to deliver the address before the Bar Association of South Carolina next December. His address at Saratoga last summer was one of the most original, vigorous and interesting ever made.Behold how they love one another! The Texas LawJournal, which has "borrowed" our peculiar copyrighted title-page device, without asking leave, thus faintly encourages the Texas Court Reporter, a new publication in that State : "The first issue bears a very respectable appearance, though its typographical execution could be much improved by the omission of a few of the many errors appearing therein, and the meagerness of its head notes to cases furnish a very poor indicia to the contents of the opinions."-A bad case of mixed metaphor. The London Law Journal tells about "A charge coming home to roost."

The Albany Law Journal.

ALBANY, JUNE 13, 1885.

CURRENT TOPICS.

extend to Van Brunt the same charity which it feels for Munsell and say "" poor man " in his behalf also. But again we say, to talk of impeachment is too nonsensical even for the newspapers.

The Century for June has seven columns of fine type, partly editorial and partly communicated, on

was not a contempt, but an indictable misdemeanor if any thing. And now, The Nation, after denouncing Judge Van Brunt for his tyranny in committing Munsell, denounces the General Term for the reasons which they give for discharging him. Verily, as we have said before, these newspapers are hard to suit. It is nonsense for them to defend Munsell. It is incredible to suppose that so bright a man did not know that he was going out of his appointed way in taking that private view of the premises. He is no fool, as his vicarious communications to the newspapers show, and it will be impossible for him to make unprejudiced people believe him such a fool as he tries to make himself appear. "Poor man," says The Nation. Not at all. Simply an officious, over-busy, would-be influential man, sharper than his fellows, and anxious to be sharper than the public prosecutors and the courts. He deserved just such a punishment as he got not that punishment, not that punishment, perhaps so the General Term say, and they are probably right-but an exemplary warning, and we hope he will place what he got to the account of what he ought to have had. It would probably be unjust now to inflict a conviction under indictment upon him, although he may technically deserve it, but if he is a wise man, as he would fain have us think he is not, let him reflect on what he deserved and call it square.

.

But The Nation says: "It is, of course, greatly to be regretted that such acts as Judge Van Brunt's can be committed with impunity in a community like this. In a more sensitive state of public opinion it would not pass unpunished. We print below an account of the impeachment of a Federal judge for abusing his discretionary power by imprisoning a man for a single day. But impeachment is too slow and expensive a process in this State to be attempted by a private individual without aid from the bar." The case of Peck is the one alluded to. Under the decision in Lange's action against Judge Benedict, Munsell could not maintain an action for damages, and we very much doubt that there is even a colorable ground of impeachment. There is a great difference between the two cases. Benedict had no authority to do any thing more- he had exhausted his power; Van Brunt certainly had authority to do something- he had not exercised his power. We are not certain that even Benedict ought to have been impeached, assuming that a judge ought to be impeached for a single grossly wrong act; but we confess his case comes pretty near the line. Van Brunt's does not approach it. If The Nation were not too hot for reflection, it would VOL. 31-No. 24.

not one new idea nor a novel setting out of an old one. The well-known causes are adduced, and the well-learned arguments are urged, and the wellworn patience of suitors and readers is once more tried. It is indeed amusing to hear a man in such hackneyed and long-drawn phrases reproach the judges for writing too long opinions. These critics set a very bad example for the courts. We may be allowed to say, at the risk of being accused of like vain repetition, that Mr. Hill, in his communication, unquestionably hits the two weak points of the administration of justice — defects in the jury system and fewness of judges. These may be subordinate causes, and these principal causes may well be dwelt upon and elaborated, but after all, here we have it, and the long discussion, or rather assertion, of The Century does not enlighten nor enliven. What we

need and want is an oracle. Shall we find it in the report to the American Bar Association next August? We hope so, but we shall sec.

We give a great deal of space this week to "Important institutions in relation to Citizenship, Domicile and Marriage," a correspondence between the Federal Secretary of State, by Dr. Wharton his legal adviser, and the Attorney-General of the United States, on these important topics. We regard the modifications which have been made as eminently judicious, and they show the wisdom of the State Department in calling to its assistance so distinguished, so learned, and so influential a jurist as Dr. Wharton.

The Indiana Law Magazine says: "Having faithfully performed their duties in aid of the Supreme Court, the commissioners, at the close of their legal term, have gracefully retired to the ranks again. Judge Black has opened a law office at No. 241 West Washington street, in Indianapolis; Judge Franklin is successfully recruiting his health for the present in the corn-field; and Judges Best, Bicknell, and Colerick have re-entered practice respectively at Waterloo, New Albany and Fort Wayne. We wish them all success." So do we. But why did not the State retain them as proper judges? It is very likely to need more judges; indeed, the need seems present. Commissions are unpopular, deservedly so. The Indiana Commission has done as well as any that we know of, but the decisions of commissions are doomed to have scant popular respect, as the decisions of "journeymen" judges. Popular respect is essential in this matter. There are other objections to commissions, which we need not specify now. Again we wish the down-coming