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THE ALBANY LAW JOURNAL.

PRYOR, J. For a valid consideration, the defend-
ant covenanted with Ann Wilson to "pay and dis-
charge any and all charges and expenses for necessary
attendance in case of illness."
proof of necessary service rendered to Ann Wilson in
Upon allegation and
her illness, the plaintiff has recovered a judgmeut
against the defendant, and the question is, whether
the defendant's covenant with Ann Wilson so inured
to the benefit of the plaintiff as to support an action
by her against the defendant.

Lawrence v. Fox, 20 N. Y. 268, decided in 1859, is
commonly cited to the proposition that a promise by
one for the benefit of another, will sustain an action
by that other; but so long before as 1806 the point was
expressly ruled in Schermerhorn v. Vanderheyden, 1
Johns. 139, was reaffirmed in Barker v. Bucklin, 2
Den. 45, and was recognized and approved by repeated
adjudications. D. & H. Canal Co. v. Westchester Bank,
4 Den. 97; Hale v. Boardman, 27 Barb. 85; Judson v.
Gray, 17 How. 296; Therasson v. McSpedon, 2 Hilt. 3.
Since Lawrence v. Fox the principle has been applied
by the courts of New York in a multitude of cases,
and it must now be regarded as fundamental in the
jurisprudence of the State.
41, 44. Indeed it is the prevalent law of the Union.
Barlow v. Myers, 64 N. Y.
Hendrick v. Lindsay, 93 U. S. 143, 149, and cases col-
lected in a note to Schermerhorn v. Vanderheyden, 3
Am. Dec. 305, 306. Whatever of technical doubt or
difficulty may have hindered its acceptance by the
courts has been dissipated by the provision of the
codes authorizing an action by the real party in inter-
est. Pom. Rem., § 139.

The fact that the promise is evidenced by a specialty instead of a simple contract, is ineffectual to render it unavailable to one not a party or privy. Coster v. Mayor, 43 N. Y. 399.

appear to be made for the plaintiff's benefit. Garnsey v. Rodgers, 47 N. Y. 233, 240; Beveridge v. Railroad Co., 112 id. 2. That such is its intent is apparent upon its terms. In full, the engagement is to " attendance and advice, or other necessary attendance charge any and all charges and expenses for medical pay and disin case of illness, and the funeral charges and expenses of the said Ann Wilson, which shall include the purchase of a grave in Woodlawn Cemetery and the erection of a monumental headstone." The provision for stipulated payments were not to be made to Ann Wilfuneral expenses and monument demonstrates that the son, and so the inevitable inference is that the defendant engaged to pay the person rendering the services The circumstances of the case confirm the conclusion. for which the defendant assumed the responsibility. The consideration of the defendant's promise was the transfer of all Ann Wilson's property-“of all the assets to which creditors had the right to look for payment of their claims, and hence the promise of the defendant to pay such claims must be deemed to have been made for their benefit." Arnold v. Nichols, 64 N. Y. 116, 119. In fact, the defendant did pay the physicians for their attendance on Ann Wilson and the undertaker for the expenses of her funeral-did discharge to her creditors all the claims for which defendant assumed liability, except the demand of plaintiff, and that demand the defendant's treasurer attempted to compromise. Indeed, the evidence authorizes the inference that the defendant recognized its liability to plaintiff upon its promise to pay Ann Wilson, but denied that the plaintiff had rendered the stipulated service.

That plaintiff rendered the service-necessary attendance in illness-is abundantly apparent in the evidence. The defendant insists that Ann Wilson was

Accepting the rule, then, as inveterate and unim-affected only by the infirmities of old age; but the inpeachable, the point for adjudication is, whether the case be within its operation?

firmities incident to her period of life-eighty-seven to ninety-one years-and with which in fact she was less debility, constitute illness in any and every sense afflicted to the extremity of utter prostration and helpof the term. They were infirmities of which she died. Again, defendant objects that the plaintiff is allowed compensation for the attendance of members of her

We are not unmindful of the admonition by the Court of Appeals against any extension of the principle beyond the scope of its legitimate application. Wheat v. Rice, 97 N. Y. 302; Lorillard v. Clyde, 122 id. 498; Duruherr v. Rau, 135 id. 219. But it is clear to demonstration that the conditions essential to the opera-family upon Ann Wilson. If such were the fact the

tion of the rule as prescribed in Lawrence v. Fox, are present in the case at bar; namely, a liability of Aun Wilson to the plaintiff, and a promise by the defendant, on a sufficient consideration, to discharge that Jiability.

True, in Lawrence v. Fox the debt of the third person to the plaintiff, which the defendant promised that person to pay to the plaintiff, was then in existence and ascertained, whereas here the claim of Sara Riordan against Ann Wilson accrued after defendant's promise. But that this diversity is ineffectual to avoid the application of the rule, is settled by the Court of Appeals. Coster v. Mayor, 43 N. Y. 399, 411; Little v. Bank, 85 id. 258.

True, also, that in Lawrence v. Fox the beneficiary of defendant's promise was identified and named; whereas here, when the defendant engaged to pay for attendance upon Ann Wilson, the defendant was not apprised that Sara Riordan would render that service. But this circumstance, too, is immaterial. Cases supra; Arnold v. Nichols, 64 N. Y. 117; Melvain v. Tomes, 14 Hun, 31; Kingsbury v. Earle, 27 id. 141; Spingarn v. Rosenfeld, 54 N. Y. State Rep. 128, 129.

True, again, that when plaintiff rendered the services to Ann Wilson she was not aware of defendant's promise to pay for them; but "such promise is to be deemed made to a third party, if adopted by him, though he was not cognizant of it when made." 1 Pars. Cont. 468, and citations passim.

Still, to maintain this action on defendant's promise to Ann Wilson, it is indispensable that the promise

judgment would not be invalidated, for services to Ann Wilson on behalf of the plaintiff by members of her family, for which they made no charge, in legal effect were services by the plaintiff, and for them she judge explicitly admonished the jury to exclude them was entitled to remuneration. But the learned trial from consideration, and we are to intend that the instructions of the court were not disregarded.

The exception to evidence upon which appellant relies is, that the plaintiff was permitted to testify to personal communications and transactions with Anu by a party to transactions or communications with a Wilson. The Code, section 829, precludes testimony deceased person, against a person deriving his title or interest from, through er under such deceased person. It is obvious, at once, that in this action, the defendant does not sustain the relation to Ann Wilson which the Code prescribes as indispensable to the rejection of plaintiff's testimony. Indeed with characteristic oandor the learned counsel for the appellant concedes that the case is not within the letter of the statute, but contends that it is within its spirit. This is not enough. To make the evidence incompetent, it must appear to Lobdell, 36 N. Y. 327, 334; Severy v. Nat. State Bank be within the terms of the prohibition. Lobdell v. of Troy, 18 Hun, 228.

We have accorded all possible consideration to the elaborate argument of counsel for the appellant, and our conviction still is that the judgment is correct. Judgment affirmed, with costs.

DALY, C. J., and BISCHOFF, J., concur.

CHILD'S DEATH-NEGLIGENCE OF MOTHER

-WHAT CONSTITUTES.

MASSACHUSETTS SUPREME JUDICIAL COURT, OCT. 20, 1893.

GRANT V. CITY OF FITCHBURG.

Where the mother of a child twenty months old permits him, while in her custody, to wander from the yard gate into a public street, unattended, for fifteen minutes, during which time he falls into a catch-basin, and is killed, she is guilty of such negligence as will preclude a recovery against the city for his death by the administrator of his estate, in the absence of evidence justifying or excusing her failure to look after him after she saw him at the gate.

case.

is about him that presumption, and it attaches to the entire The burden is on the people to prove his guilt beyond a reasonable doubt, * * * and all of the jury must be satisfied beyond a reasonable doubt in order to convict." Held, to be all the law requires, and the refusal of a further instruction on the same subject was proper. N the Circuit Court of Ionia county, John Curtis was convicted of robbery, and brings error. Foote & Dooling, for appellant.

A. A. Ellis, Attorney-General, and R. A. Hawley, Prosecuting Attorney, for the People.

GRANT, J. The only error alleged is that the court refused to give the following request on behalf of the

ACTION by Elmer E. Grant, administrator of the respondent: "The jury are instructed that in their

estate of Harry L. Grant, deceased, against the city of Fitchburg, to recover for the death of plaintiff's intestate, caused by defendant's negligence in leaving au opening in a catch-basin in its streets unprotected, whereby deceased, a child twenty months old, fell into it. There was a verdict directed by the court in favor of defendant and plaintiff excepted. ** C. F. Baker and Herbert Parker, for plaintiff. Edward P. Pierce, for defendant.

KNOWLTON, J. In this case we have no occasion to consider whether there was evidence of negligence on the part of the defendant, for we are of opinion that there was no evidence that the plaintiff's intestate was in the exercise of due care. He was a child twenty months old, and was incapable of exercising care for himself. It was the duty therefore of his mother, in whose custody he was, to care for him, and if his death is imputable to her negligence the plaintiff cannot recover. He was last seen by her, before his death, at the open gateway of the dooryard at the boundary of the public street. He had been playing about there, and once before on the same afternoon had been alone to the house of a neighbor, which was the third house from his home, on the same street; and bis mother had been obliged to go and find him, and bring him back. When she saw him at the gate, she was sitting, talking with another woman, on the steps at the rear of the house; and she gave no further attention to him, and took no measures to ascertain where he was for a quarter of an hour or more. In the meantime he had been out on the street unattended, and had been playing with other children, and in some way, no witness knew when or how, had got through the hole in the curbstone into the catch-basin. His

absence from home, unattended, on the public street, was prima facie evidence of negligence on the part of his mother, and there was no evidence in the case which tends to show a justification or excuse for her failure to look after him for fifteen minutes after she saw him at the gate. In this last respect the case differs from Slattery v. O'Connell, 153 Mass. 94, and Creed v. Kendall, 156 id. 291. The doctrines stated in Gibbons v. Williams, 135 id. 333, are applicable to the facts of this case, and are decisive of it. Wright v. Railroad Co., 4 Allen, 283; Callahan v. Beau, 9 id. 401. Exceptions overruled.

CRIMINAL LAW-INSTRUCTIONS-REASONABLE DOUBT.

MICHIGAN SUPREME COURT, NOV. 10, 1893.

PEOPLE V. CURTIS.

In a criminal case the court charged the jury that "this man is presumed to be innocent until he is proven guilty. There

deliberating, if any one or more of their number, after deliberating with their fellow-jurymen, retains a reasonable doubt as to defendant's guilt, the jury should not find him guilty." Upon this point the court instructed the jury as follows: "Now, gentlemen, I have said to you that this man is presumed to be innocent until he is proven guilty. There is about him that presumption, and it attaches to the entire case. The burden is upon the people to prove his guilt beyond a reasonable doubt. He is presumed to be innocent until proven guilty, and all of the jury must be satisfied beyond a reasonable doubt in order to convict." The instruction given was all that the law requires. This case is not ruled by People v. Hare, 57 Mich. 519. In that case it does not appear that the court instructed the jury at all upon the subject, but, on the contrary, said that it was not the duty of the court to charge individual members. The decision goes no further than to say that when such a request is presented it is the duty of the court to call the attention of the jury to the subject. To hold that jurors, under the instruction, would not understand their duty would be to say that they were not possessed of common sense. Such a request was held properly refused in State v. Hamilton, 57 Iowa, 596; State v. Young, 105 Mo. 634. Conviction affirmed.

The other justices concurred.

ETHICS IN RELATION TO INTERNATIONAL LAW.

PROF

ROF. JOHN GRIER HIBBEN of Princeton College contributes the leading article in the International Journal of Ethics for January, 1894, on the subject of "The Relation of Ethics to Jurisprudence." We quote so much as relates to the application of ethios to international law. Prof. Hibben says:

"International law has been called the vanishing point of jurisprudence.' That which is true in mathematical relations may obtain here, namely, that in limiting cases there are revealed important facts which in approaching the limits escape observation. The point of view of international law presents law without any sanction whatever. The parties are all sovereign. There is no superior, and therefore no positive law is possible. The appeal in all coutroversy must be to generally recognized principles of justice and equity.

"The history of international law shows its origin in Roman law. A part is derived from treaties and precedents; but over and above this is a considerable remainder called by Vattel the necessary law of nations.' This corresponds to the jus gentium of Roman law.

"The Greek State recognized certain mutual obligations (see Morey Roman Law, 207, 208), and the Romansadhered to certain formulæ in declaring war, as

indicated in their jus feciale; and during the Middle Ages the Papacy at times exercised international authority; also the Holy Roman Emperor appeared as international arbitrator; and certain rules regarding international trade existed in maritime codes, as the Consolato del Mare,' and the laws of Oléron, of Wis buy and of the Hanseatic towns. Nevertheless, international law received its systematized form originally in the work of Grotius. And Grotius himself was versed in Roman law and imbued with its spirit. The chief idea of Roman law in his writings, and of the publicists after him, was that of the jus gentium. While the Romans had not conceived of the jus gentium as applying to the relation between independent States, it was nevertheless so interpreted by all early writers on international law.

"International law relative to treaties also was founded largely upon the Roman law of contracts, which were derived largely from the jus gentium, and were liberally interpreted according to the principles of national equity. We find therefore that international law is largely derived from the jus gentium of Roman law, which in turn expressed the common sentiment of mankind in reference to the principles of justice and right.

"Also, where there are no treaty rights and no precedents, disputes between nations are often arbitrated by appeal to the principles of national equity, This was urged by Mr. Carter, the United States counsel before the Bering Sea Commission at Paris, and in opposition to the proposition of England's counsel, Sir Charles Russell, who insisted that international law is for all practical purposes a code, and ethics and equity have nothing to do with it.

"The common ideas of equity and justice have been applied in recent years to the control and governing power of an immense territory, in which were found forty-two million six hundred and eight thousand people in 1885, namely, the government of the Congo Free State. This had its rise in the Berlin Conference of 1885. The African International Association had obtained through treaties with four hundred and fifty independent African chiefs rights of sovereignty. This ceded sovereign power rules over a large complex whole composed of small sovereign principalities. The right to make any such cession of sovereignty is confirmed by the opinions of Sir Francis Twiss, of England, and Professor Arntz, the Belgian publicist. The International African Association was first recognized as a government by the United States on April 10, 1884. And in the Berlin Conference of 1884-85 it received formal recognition as the Congo Free State from all the European powers. 2 Stanley's Congo, 380. A nation was thus born in a day. It came into existence not by conquest, nor hereditary right, but by the sufferance of the great powers of the world; or, as it was put by one of the presiding officers of the Conference, "The new State owes its birth to the generous aspirations and enlightened initiative of a Prince (i. e., King of the Belgians) respected throughout Europe. It has been devoted from its cradle to the practice of every liberty.' 2 Stanley's Congo, 423.

At the Conference the avowed policy of the newborn government was indicated as that of the free exercise of all rights of all peoples throughout the length and breadth of that territory. Africans, Germans, English and Belgians were put upon a footing of equality. Commercial intercourse, rights of water-way. State protection of property and person, were placed upon the broad basis of justice and equity. We behold a nation without a history, without precedents, without traditions, its laws ready-made, and these laws of such a nature that they met with the approval of the great powers of the world, because they represented that which was common to all these several

governments. In cases of difficulties arising between the powers regarding Congo matters they agreed to appeal to the International Congo Commission, which is substantially an International Court of Arbitration. Moreover, the Congo State seeks to establish a higher standard of individual conduct, the abolition of the slave trade in Africa, the decrease of intemperance, etc. It is a State dedicated to the noble task of developing an ideal citizenship. It is a unique instance in history. It indicates how thoroughly ethical ideas have permeated public policy. It is an index of the common consolousness of nations regarding the claims of justice. One hundred years ago such an undertaking would have been impossible. The time has come in the history of mankind when it is generally recognized that a State possesses certain moral responsibilities. There is a civic as well as an individual conscience. Napoleon could not say to-day: With the armies of France at my back I shall be always in the right.' The prophecy of the Grand Duke of Weimar concerning Napoleon's empire is more consonant with international sentiment: 'It is unjust; it caunot last.' Nor could Charles Augustus of Sweden to-day declare, as he did when he broke the truce of Roskild: 'There is always just cause of war as soon as there is found a realm incapable of resisting.'

"There has been a marked ethical progress in international relations. A national altruism has been developed, to this extent at least, that the claims of another nation are regarded with due consideration whenever founded upon truth and justice. As in private ethics a healthy altruism is corrective of a false egoism, go national altruism should supplement and check a governmental policy of short-sighted egoism. International law, with its common restrictious and concessions, has at least partly realized such an ideal, and it in turn bas influenced the spirit of all law. Law is becoming more akin to equity. Punishment is becoming more humane. It has become reformatory as well as penal, in which conception the State has in view an enlarged ethical end, not only the greater good of society, but also the realization of good instead of evil in the criminal as well. Courts of arbitration are settling international disputes rather than the arbitrament of war. Might is no longer synonymous with right. There is a progressive movement in all law, national and international, and the progress is along ethical lines, and it is toward the recognition of a solidarity of mankind, toward that reign of law which is justice and which is peace. After all, Burke's fancy of an ideal State may not be merely a passing dream, but a fact manifoldly realized:

"The State ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, calico or tobacco, to be taken up for a little temporary interest, and to be dissolved by the fancy of the parties. It is to be looked on with other reverence, because it is not a partnership in things subservient only to the gross animal existence of a temporary and perishable nature. It is a partnership in all science, a partnership in all art, a partnership in every virtue and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead and those who are to be born. Each contract of each particular State is but a clause in the great primeval contract of eternal society, linking the lower with the higher natures, connecting the visible and the invisible world according to a fixed compact sanctioned by the inviolable oath which holds all physical and all moral natures each in their appointed places."-Edmund Burke's Reflections on the Revolution in France. Clarendon Press, Select Works, edited by Payne, vol. II, pp. 113, 114.

ABSTRACTS OF VARIOUS RECENT DE

CISIONS.

ATTEMPT TO COMMIT EXTORTION-FEAR.-Defendant was charged in the indictment with an attempt to obtain money from A. by threatening to accuse her of keeping a disorderly house. Held, that as the evidence showed that A. was acting as a decoy of the police, and received money paid by her to defendant from the police, who were endeavoring to procure evidence against defendant, it did not appear that A. had been put in fear, and therefore the crime of an attempt to extort could not be established, and the prisoner must be discharged. In a criminal case, when it is proved that defendant has committed an act, and the motive with which it was done is material, he may testify in regard to his motive, and may prove facts by others tending to show his intent. When evidence tending to show a guilty motive has been given, the accused has a right to introduce evidence to prove a different motive and repel the imputation. From the evidence offered, the jury were asked to infer, and probably did infer, that the motive which induced defendant to associate with A. was unlawful, and for the purpose of obtaining money from her. Held, that it was competent for him to prove, in explanation of his conduct, that he associated with the woman by the direction of the Society for the Prevention of Crime, for the purpose of procuring a statement from her, and that the exclusion of such evidence was error. People v. Gardineer, N. Y. Sup. Ct., Gen. Term, First Dept., Nov., 1893.

-

CRIMINAL PRACTICE WITHDRAWAL OF PLEA. — Defendant, a sixteen-year-old boy, on being arraigned for larceny, pleaded guilty, having been informed by persons not authorized to do so that some of his associates, on arraignment for the same crime, had pleaded guilty that sentence had been suspended against them during good behavior, and that he would probably receive the same judgment. The court advised him that he might withdraw his plea at any time before sentence, told him the punishment he was to receive, and gave him an opportunity to withdraw his plea; but no steps having been taken to do so, sentence was passed. Held, not an abuse of discretion for the court to refuse to permit defendant to withdraw his plea after sentence. Monahan v. State (Ind.), 34 N. E. Rep. 967.

DELAY IN DELIVERING TELEGRAM-DAMAGES FOR MENTAL SUFFERING ALONE.-One to whom a telegraph message has been sent notifying him of the death of his father and the time of burial, which the telegraph company has failed, through the negligence of its agents, to deliver in due time, may recover damages for injury to his feelings, although unaccompanied by any pecuniary loss or physical suffering. In this case a verdict in favor of plaintiff against defendant telegraph company for $1,000 on account of mental suffering caused by delay of defendant in delivering to plaintiff a message announcing the death of his father and time of burial is sustained. The fact that the agent made inquiry of several citizens of the town concerning the plaintiff's whereabouts, none of whom knew him, is not sufficient to authorize the court to say that the verdict is not supported by the evidence, there being testimony to show that the agent had, a short time before, been introduced to plaintiff, and afterward admitted that he had met him, but had forgotten it. W. U. Tel. Co. v. Smith, Ky. Super. Ct., Nov., 1893.

SPECIFIC PERFORMANCE-CONTRACT.-An agreement by a wife, in consideration of a present conveyance to her of certain property and a promise of a specified legacy, to release all claims of dower or otherwise to her husband's estate, will be specifically performed in a court of equity after she has accepted the legacy. Dakin v. Dakin (Mich.), 56 N. W. Rep. 562.

CORRESPONDENCE.

THE NEW BASIS OF ACTION FOR SEDUCTION IN NORTH CAROLINA.

Editor of the Albany Law Journal:

I noted in your issue of September 23, 1893, on pages 253 and 254, your quotation from an exchange as to the basis of "actions for seduction." Have you noted that this court-and probably others-have placed this action upon an entirely different basis? See Hood v. Sudderth, 111 N. C. 215, Sept. Term, 1892-if you care to look at it. My object in writing this letter is merely to call your attention to the fact that all our courts are not amenable to the sharp criticism of the article referred to. I think the position of the Supreme Court of North Carolina is the only logical one. RALEIGH, N. C., Dec. 27, 1893.

LEX.

[The case of Hood v. Sudderth is fully reported in 47 Alb. L. J. 91 (Feb. 4, 1893), that is, the opinion of the court, as delivered by Clark, J., and concurred in by MacRae, J., is there printed in extenso, but the reader will have to go to 111 N. C. 223, for the dissenting opinion of Shepherd, J.]

AS TO PLEADING THE STATUTE OF FRAUDS-CRANE V. POWELL AGAIN REFERRED TO.

Editor of the Albany Law Journal:

With your kind indulgence, I have one word further to say in reference to the recent case of Crane v. Powell. Independent of the question concerning the right of the defendant, under the pleadings in this case, to urge the statute of frauds as a defense, and assuming that no legal bar prevented its operation, there appears to be some difference of opinion as to whether the contract established upon the trial belongs to the class provided for in subdivision 1, section 2, title 11, chapter 7, Revised Statutes, or whether it is comprehended under section 8, title 1, chapter 7, Revised Statutes; in other words, whether the agreement constituted a lease of lands, or of an interest in lands, or whether it was, technically, an ordinary contract for board and lodging. If this agreement constituted a lease, it was clearly valid, being for one year, to commence in futuro. If it was a contract simply for board and lodg ing, and as such was not to be performed within one year from the making thereof, it was obviously void. Let us look at this contract for a moment, and see what lineaments, if any, it bears that seem to characterize it.

In the first place, it does not appear that the plaintiff used the premises comprising the rooms leased to the defendant, as a boarding-house. She was in possession of the house under a lease, and she simply sublet the unoccupied rooms.

Second. When we contemplate the object for which the rooms were to be used, the intention of the parties becomes more apparent. The defendant was a practicing physician and surgeon. He engaged the rooms to be used by him and his assistant, in part at least, as an office in the practice of his profession. He had the exclusive right to the possession and custody of the rooms, and could legally put any one out whom he deemed an intruder. The plaintiff had parted with the possession, and the same was vested in the defendant during the continuance of the term. His interest was something more than a mere lodger's privilege, the title and possession remaining in the proprietor.

Again, the letting was for exactly one year, showing that the parties fully appreciated the statutory limitation upon their power to lease by parol.

Finally, it was agreed that defendant should pay to plaintiff the sum of $3,250, in mouthly instalments, for

the occupation of the premises for the stipulated term. An arrangement of this character is seldom found in a mere contract for board and lodging.

In addition to the enjoyment of the rooms, defendaut and his assistant were also to be boarded and attended by plaintiff. Now, the question here arises, was the contract for board and attendance collateral to the contract of letting, or was the contract of letting collateral to the contract for board and attendance? It seems to me that the controlling animus of the defendant in securing the rooms was to provide a place for the practice of his profession; that the arrangement as to board and attendance was subsequent and collateral to the principal contract of leasing; that the intention of the parties was, on the one part to relinquish possession of the rooms, and on the other to assume it. Now, if this view be true, the intention of the parties, consonant with the rules of law, must control, and the contract must be characterized as lease.

The case of Oliver v. Moore, 53 Hun, 472; affirmed, 131 N. Y. 589, involved a like state of facts, and it was held that the undertaking to board the lessee was collateral to the principal agreement, as was the case in Shalhis v. Wilcox, 2 Hun, 419, where a similar undertaking was likened to “a covenant for repairs, or other collateral covenant in a lease running with it, and part of the contract." In Oliver v. Moore, supra, the contract was in writing, but this is immaterial, as a like oral arrangement would have been equally a lease, the term being but for eight and one-half months. WALTER I. HOVER. AMSTERDAM, N. Y., Dec. 20, 1893.

JUDGE STORY'S AGE WHEN APPOINted.

Editor of the Albany Law Journal:

Why, in your issue of December 23, 1893, do you perpetuate the erroneous statement that Joseph Story was forty when he was nominated for the Supreme beuch, when it is so well known that he was born in 1779, and appointed in 1811, when he was thirty-two?

A. H. JOLINE.

A

NOTES.

BARRISTER defending a prisoner in Limerick said: "Gentlemen of the jury, think of his poor mother-his only mother."

In England the makers of ice-cream are henceforth to be subject to the same rules and sanitary regulations as the purveyors of milk.

Coleridge once defined a gentleman as a man with an indifference to money matters. If this definition be accepted, this is an age of gentlemen; and there are those, even among us, who are "perfect gentlemen."-Boston Journal.

An important discovery has been made in Hamburg of forged seals and deeds of various kinds. The discovery was made in the course of the trial of three persons charged with falsifying legal documents. From the papers seized it appears that a regular manufactory of forged seals and deeds has been in existence since 1888, and that its activity has been extended to all parts of Germany, Italy, France, Austria and Turkey.

Kaiser Wilhelm keeps haranguing his officers and men against gambling, which is an old German vice. Tacitus told us long ago: "What is marvellous, playing at dice is one of their most serious employments, and even sober they are gamesters; nay, so desperately do they venture upon the chance of winning or losing, that when their whole substance is played away, they stake their liberty and their persons upon one and the last throw. The loser goes calmly into voluntary bondage."

Dr. McCosh, a man of undoubted ability, as all know who have read his writings, is said to be quite egotistical, without the tact to conceal his weakness and without being aware of it even. Some years ago he was lecturing before the senior class. He had been discussing Leibnitz's view of the reason of evil, to the effect that mankind was put upon the earth because there was less evil here than elsewhere. One of the seniors inquired: "Well, doctor, why was evil introduced into the world?" "Ah!" said the doctor, holding up both hands, "ye have asked the hardest question in all feelosophy. Sukkrates tried to answer it and failed; Plato tried it, and he failed; Kahut tried

begged the whole question, as I've been tellin' ye; and I confess (gnawing at his thumb knuckle), I confess I don't know-what-to make of it myself.”

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1 WEST 72D STREET, NEW YORK, Dec. 26, 1893. [The statement to which our correspondent very properly takes exception was inadvertently copied from a Washington letter in the New York Times,it and made bad work of it; Leibnitz tried it, and he and ought to be corrected. It was probably a typographical error. Mr. William W. Story, in his "Life and Letters of Joseph Story," says: When, in 1811, my father was appointed to a seat on the bench of the Supreme Court of the United States, he was only thirty-two years of age. He was not only the youngest judge on that bench, but, with the exception of Mr. Justice Buller, who at the same age was elevated to a seat on the King's Bench in the mother country, at the side of Lord Mansfield, and who is conceded to have been one of the brightest luminaries by which it was ever adorned, I am not aware of any instance in which so young a man was ever called to the highest judicial station of his country, either in England or America." Joseph Story was born September 18, 1779, graduated at Harvard in 1798, and was speaker of the Massachusetts House of Representatives, when President Madison appointed him, November 18, 1811, an associate justice of the Supreme Court of the United States, which office be held nearly thirty-four years until his death, September 10, 1845.]

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A London gentleman advertised for apartments at a fashionable watering-place, and received many replies. He pitched upon one, chiefly because it mentioned a splendid sea view," and as it was not convenient for him to leave his business to see the apartments, he closed with the offer by post, sending a substantial deposit. When the time came for him to take his holiday he duly arrived at his destination, and was surprised to find that not a glimpse of the sea was obtainable from any window of his apartments. "I thought you said there was a splendid sea view?" he said angrily to the landlady. “So there is, sir,” replied the landlady, drawing his attention to a picture on the wall, a really excellent painting of the sea. "Why, you-er-er. What do you mean by such a swindle?" gasped the gentleman. I meant a view of the real' sea. “O, did you, sir?" coolly said the landlady. "If you will refer to my letter, you will see that I distinctly stated there was a splendid sea view 'in' the drawing-room. Had I meant a view of the real sea, I should have said there was a splendid sea view from' the drawing-room. I cannot think how an educated gentleman, as you evidently are, could have made such anfegregious error!"-Boston, Globe.

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