BOOK NOTICES.

The Law of Injunctions. By Francis Hilliard. Third Edition. Philadelphia: Kay & Brother, 1874. This is a thoroughly practical work, and one which has been, and will continue to be, of much service to the profession. The present edition presents the work "revised, re-arranged and in some portions re-written; about one hundred pages being added, and a very large number of cases, particularly the most recent ones, not merely cited, but the points which they decide briefly stated." The merits of Mr. Hilliard's book are so well known and appreciated, that it is unnecessary to comment at length upon its contents. An author who has put his work through three editions is not likely to make in subsequent editions, if called for, any change in his style of treatment or classification. A marked characteristic of the book is the non-appearance of the author's own thoughts or suggestions in respect to the topics of which he treats. Mr. Hilliard's work is not a dissertation or treatise; it is a compilation and classification of the adjudged cases. His subdivisions into sections are in many instances exceedingly minute. Thus on pages 262 and 263 there are no less than fourteen sections. One of these is comprised in the following language: "§ 144. A few miscellaneous points remain to be noticed." Again on page 259 there is a section in these words: "§ 142. Questions have often arisen in reference to successive executions." Surely there is no need of "catchwords" in such cases; and Mr. Hilliard does not employ these very convenient devices in any part of his work. But on the other hand, some of the sections are remarkably long. Thus section 3, commencing on page 192, occupies three full pages; and section 37, commencing on page 119, occupies two and a half pages. We have endeavored in vain to ascertain the author's basis of sectional division. The consequence of this manner of subdivision is to break up many continuities in the case of short sections, and to aggregate many distinct matters in the case of long sections. Many of the pages present the disjointed appearance of a mere digest. On page 491 we find the following sentences: "So an injunction does not lie against registrars of votes who have misconceived their duty or violated their trusts by proposing to applicants improper questions. Nor against officers of registration as holding other offices, upon the ground of unconstitutionality. Or, at any rate, the bill must show by exhibits such concurrent holding of offices. Nor for refusal of a vote. The remedy is at law. And the joinder of several plaintiffs does not furnish ground of injunction. Nor against commissioners of milldams, for failure to take an oath of office." On page 631 we find the following unique expression: "Equity will enjoin a mill-dam, which may cause irreparable injury."

Except in matters of style and form, Mr. Hilliard's work is decidedly praiseworthy; and can be cheerfully recommended to the profession for a continuance of that support which it has received in the past. Argument of Mr. Riddle in the Conspiracy Case. Washington: Government Printing Office, 1874. The title of this pamphlet indicates the scope and character of its contents. The entire title is as follows: " Closing Argument of the Hon. A. S. Riddle for the prosecution at the trial of Hiram C. Whitley, Richard Harrington aud Arthur B. Williams, for conspiracy, in the criminal court of the District of Columbia, November 23, 24 and 25, 1874." This case, popularly known as the "Safe Burglary" case, has so com

pletely "flashed in the pan that the people, if not the profession, are tired of hearing about it. But this does not prevent us from examining Mr. Riddle's argument in a professional way. In the course of his argument he says some very good things; as indeed he could not well help doing, while talking three days and uttering words enough to fill over two hundred good-sized pages. What Mr. Riddle did say is summed up by himself in these words: "Here, gentlemen of the jury, the labors of this protracted argument close. It was begun without exordium, it will close without peroration. With much care, and I trust not without some effect, these two days and a half have been devoted to picking up all the curious, apparently disconnected fragments of little acts and incidents, and words, telegrams, little, seemingly, unmeaning lines and links, and placing them together in the order of their sequence, their chronology, and in their order of happening, sorting them around to their own proper places, so that their significance is made to appear." But we leave it to the reader of the argument to determine exactly what value it has as a legal or forensic effort.

Nebraska Reports. By Lorenzo Crounse. Vol. III. Lincoln: State Journal Company, 1874.

This volume contains cases decided in 1873 and 1874 in the Supreme Court of Nebraska, together with some cases decided in 1872. The cases were prepared for reporting principally by Mr. G. A. Brown, the clerk of the court. In the preface we find the rather startling statement: "Liberty has been taken to omit portions of the briefs of counsel, where they are quite lengthy particularly such parts as relate to questions not considered by the court, and some attention has been given to verifying references, to see that the correct volume and page are given."

Among the more important cases may be noticed McCann v. McLennan, p. 25, which holds that "agreements relating to the conduct of a suit, and its proceedings during the trial, made by attorneys in the case in open court, and entered upon the record, are binding upon the parties." In Cropsy v. Wiggenham, p. 108, it was held that although a defendant appears specifically for the purpose of objecting to the jurisdiction of the court, but also, by motion or otherwise, he seeks to bring the powers of the court into action, except on the question of jurisdiction, the defendant will be deemed to have appeared generally. In Byer v. McCandless, p. 161, it was held that the lien of an attorney upon a judgment obtained by him, to the extent of his reasonable fees and disbursements, is paramount to any rights of the parties in the suit or to any set-off. In McCormick v. Lawton, p. 449, it was held that where a husband, with the knowledge and consent of his wife, entered into a contract for the erection of a dwelling-house upon her separate estate, the wife assisted in giving the instructions to the workmen, the building is subject to the mechanic's lien. The cases reported in this volume are generally pretty well considered. The Supreme Court consists of but three judges, and there are scarcely sixty cases in a volume of about 500 pages. The arguments of counsel are given too much space, unless it was necessary to set forth productions of counsel, somewhat at length, in order to make a good-sized book. The head-notes are rather too general and present too many commonplace principles of law. A head-note should be a succinct account of the case, and the holding of the

case.

court; it should be a sort of miniature photograph of the General principles can be learned from the text writers; the applications of principles are to be gathered from the reports. Perhaps the model head-note would be a brief statement of the principle involved, followed by a brief statement of the facts of the case and the holding of the court. But an abstract of the case, without a statement of the principle, is far better than the principle without the abstract. A few of the cases reported in the present volume conform to the above rules of reporting. Thus Hughes v. Kellogg, p 186, has an excellent head-note, and would be well reported throughout if nearly as many pages had not been given to the counsel as to the court. The defects which we have pointed out, however, are not peculiar to the Nebraska reports. They are common in series of reports published in States much older than Nebraska and edited by reporters who have more experience and far less excuse for "padding." Taken as a whole this volume is a creditable representative of the jurisprudence of a new State.

The present volume contains cases decided at the November term, 1873, in the Supreme Court of Judicature of Indiana. The work of the reporter is very much abridged in this series of reports, from the fact that the arguments of counsel are not set forth, and the statements of fact are given in the opinions. In this volume we notice the following important decisions: In Musselman v. Pritt, p. 126, it appeared that the court, in an action of slander, limited the argument of plaintiff to one hour and a half, and the defendant to one hour. Held, that this was no abuse of the discretion of the court. In this case it also appeared that during the trial the court adjourned without giving the jury the statutory charge touching their duty during adjournment. Plaintiff was personally present, acting as his own counsel, and made no objection to the action of the court, until the next meeting of the court. Held, that the irregularity must be deemed waived. In Sherlock v. Alling, p. 184, it was held that in an action against the owners of a line of steamboats for causing the death of a passenger, the receipt of money by those for whose benefit the action is brought, on a 'policy of life insurance, cannot be shown, in reduction of damages. In Wiley v. Starbuck, p. 298, it was held that the remedy given by the national banking act for recovery of excessive interest is exclusive, and cannot be interfered with or supplemented by State statutes. This is contrary to the theory of the celebrated decision in this State of National Bank of Whitehall v. Lamb, 50 N. Y. 95. In Board of Commissioners of Tippecanoe Co. v. Reynolds, p. 509, it was held that where the president of a railway company purchased stock of a stockholder for its nominal market value, which value was less than its actual value as the president knew from certain facts which came under his cognizance by reason of his official position, and which facts were not disclosed to the stockholder, the purchase was, nevertheless, not fraudulent in law, nor invalid.

We notice several reportorial curiosities in the volume. For instance, on page 472, a brief case is entitled "Wild Cat Dilch v. Bale et al." Again, in Gordon v. Commissioners, etc., p. 475, it appears from the opinion of the court that one Cheek was indicted for murder in Dearborn county. He was poor and unable to employ counsel to make his defense. On this being

shown, the court appointed Gordon, a lawyer, to defend the prisoner, which service was fully rendered, and the court made him an allowance of $200, and ordered that the county should pay it. The court then proceeds to say: "Is the defendant liable to Gordon for his services, is the only question in this case. The court below answered the question in the negative, but we answer it in the affirmative." And Board of Commissioners, etc., v. Wood, 35 Ind. 70, was cited to sustain the point. This was a brief and effective way of disposing of a case which originated in the misdeeds of one "Cheek," and the services for whose defense the county had the "cheek" to refuse to pay for.

The cases in this volume are of considerable general interest; and are in the main well decided and reported.

CORRESPONDENCE.

TAXATION OF MORTGAGES.

Editor Albany Law Journal:

In your issue of December 5, is contained an article on the "Taxation of Mortgages," and which seems to have been suggested by a recent decision of the Supreme Court of California to which you refer. In a new State, where it is perhaps the rule rather than the exception, that valuable tracts of real estate are ornamented with one or more mortgages, this question becomes important, and is not only frequently discussed by the legislature, but such taxation is universally condemned by those affected thereby.

At first glance the system might appear, as claimed by Justice Crockett, to be an unjust one, in that the same property is twice taxed; but I cannot believe that it is legitimately susceptible of such construction. It is by no means a double taxation of the same property. To illustrate: B purchases of A a farm at an agreed price of $1,000. Not being able financially to pay this purchase price in cash, he is obliged to use his credit; he gives his note for the amount and thus puts in market this credit to the amount of the indebtedness incurred. So far as the principle is concerned it does not matter whether B's note is secured by a mortgage upon this or some other property, or whether the payee relies entirely upon the solvency of the maker, as the mortgage but determines the value of the indebtedness, and if ample security establishes the value at par. The note and mortgage (if there be a mortgage) are taxed in A's hands. Not as the property sold, but as the representative of the value of the credit received therefor. The capital with which the debtor has purchased his farm, consisting alone in the secured credit, this credit must be considered as standing in lieu of $1,000 in money, the purchase price of the property; and which, if it had been paid, instead of the credit, would have been justly taxable in the hands of the seller. So soon as B shall, from the proceeds of his farm or otherwise, create a fund to take the place of the credit with which he made his purchase, then such credit will be retired and the tax will be levied upon the money which is substituted therefor. The subject of taxation, however, was created, not when the money was earned, with which to pay the debt, but when such fund was anticipated by the creation of the credit, with which the original purchase was made. It is true, as Justice Crockett says, this credit is not property, and possibly no new value has been created, but it anticipates the creation of a new value, and fully serves the purpose of the same, in that it has been valuable or available in the purchase of property.

The interest which the purchaser pays is, so far as he is concerned, but the discount which he pays upon his credit, thus thrown upon the market; or perhaps for the value of the use of the property which he has purchased with his credit.

So far, then, from this being a double taxation of the same property, it is but the taxation of the property in the hands of the purchaser, and a taxation of what stands in lieu of the purchase-price thereof in the hands of the seller. The only question which can legitimately arise is, should this tax levied upon the representative of value remain in abeyance until the value is created? Inasmuch as the credit may, for an unlimited time, serve all the purposes of the real value, which it anticipates and represents, being marketable at a discount but little if any greater than the credit of the government in the case of its "treasury notes," it certainly should serve as a source of revenue to the State.

The learned justice assumes too much when he argues that it is the borrower who pays the tax upon the debt in the increased rate of interest exacted; facts will not bear out this assumption. The government, in establishing a legal rate of interest, approximately determines the value of the use of money. If thus the capitalist holds his money for his own use, he is obliged to pay precisely the same tax out of the value of the use as he is required to pay out of the interest he receives on his securities; and there is, therefore, no excuse for the lender exacting a rate of interest greater than would be the value of the use of the money in his own hands, and upon which he would pay precisely the same tax as upon his securities.

MINNEAPOLIS, Minn., December 8, 1874.

A. H. YOUNG.

COURT OF APPEALS ORDER.
COURT

ALBANY, December 16, 1874. Ordered, That the term of this court, for the year 1875, be held at the Capitol, in the city of Albany, commencing on Tuesday, the 19th day of January, at 10 o'clock A. M., and that a calendar be made up for that term, upon which shall be placed only such causes as shall be noticed for argument at said term, and in which notice' of argument, with proof of due service thereof, shall be filed with the clerk of the court on or before the 5th day of January next.

E. O. PERRIN, Clerk.

The American Law Times states that the oath used among Highlanders in judicial proceeding under the feudal system contained a most solemn denunciation of vengeance in case of perjury, and involved the wife and children, with the arable and the meadow land of the party who took it, all together in one abyss of destruction. When it was administered there was no book to be kissed, but the right hand was held up while the oath was repeated. The superior idea of sanctity which this imprecation conveyed to those accustomed to it may be judged from the expression of a Highlander, who at a trial at Carlisle had sworn positively in the English mode to a fact of consequence. His indifference during the solemnity having been observed by the opposite counsel, he was asked if he would confirm his testimony by taking the oath of his own country to the same. "Na, na," said the mountaineer, "ken ye not thar is a hantle o'difference 'twixt blawing on a buke, and domming ane's ain saul?"

NOTES.

It is reported that Judge Learned will be designated as presiding judge of the Third Department, General Term, to succeed Judge Miller.

The report that Justice Swayne, of the United States Supreme Court, contemplates resigning, is denied.

Charles Joseph Bonaparte, a grandson of Mrs. Elizabeth Patterson Bonaparte, of Baltimore, a grandnephew of the First Consul of France, was admitted to practice at the bar of the Maryland Court of Appeals on Wednesday. He is said to resemble Napoleon Bonaparte more than any other member of his family.

Mr. N. Hamer, tipstaff to Lord Chief Baron Kelly, was taken suddenly ill a few days since as he was going to the court. He was taken to Westminster Hospital, where shortly after his admission he died of apoplexy. He was about seventy years of age, and had held the post of tipstaff to the court of exchequer for about thirty years.

The Solicitors' Journal says: We regret to learn that Lord Justice Mellish is suffering from an attack of illness which has rendered him unable to take his place in the court of appeal. It was stated from the bench on Wednesday that it was very uncertain when the learned judge would be able to resume his duties. In the meantime Lord Justice James has taken the bankruptcy appeals and appeal motions. While we read in an American contemporary that the United States supreme court commenced its annual session with five hundred and seventy cases on the docket and some thirty cases ready for docketing, in all about seventy more cases than were on the calender a year ago, it is eminently satisfactory to find that one of our highest courts is not only without arrears, but absolutely likely to be almost without work. It is a striking testimony to the energy of the chancery appeal court that besides Parker v. M'Kenna, now part heard, there was on Thursday but one appeal ready for hearing. There were then, we understand, in all about ten other appeals in the paper, but all of these stand over for various reasons.

Professor Seelye, in a recent lecture, speaking of the punishment of Sepoys by blowing them from a cannon's mouth, says: "It is well for us to understand, when we see the papers, as they occasionally do, taking up the subject of English barbarity, what is the meaning of this barbarity.' I have found persons who supposed the punishment of firing Sepoys from a cannon's mouth meant that Sepoys were actually put inside the cannon and fired out. In reality the victim was put about six feet in front of the cannon, which was heavily loaded with powder alone; and I was told that no person unfamiliar with artillery would have any idea of the minuteness of the fragments into which the body was scattered. This was a great punishment, not on account of the death, or of the manner of death, but because the body was scattered and denied the rites of burial. That is a terrible thing for a Hindoo, and the English report and believe that a rebellion was stopped there just by the sturdy statement of an English officer who said that if there were any signs of mutiny he would subject all mutineers to this punishment, and it cannot be doubted that this punishment was the most salutary one, so far as affected the success of England."