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THE LORD CHANCELLORS OF IRELAND.

The last number of the Law Magazine and Review contains a lengthy review of J. R. O'Flanagan's Lives of the Lord Chancellors of Ireland — a work which has not yet made its way this side of the Atlantic-from which we take the following brief sketch of the Irish lord chancellors:

The origin of the Irish chancellorship is involved in obscurity; and for a century or more after the memorable invasion nothing is known, except that some bishop, baron, prior or canon held the office of chancellor. The first chancellor who can be said to possess more than the mere shadow of a name was a certain Archbishop de Bicknor, in the reign of Edward II. Like all the early judges and officers of state, he was an Englishman. It is no small praise for a man who lived in the "dark ages," to have distinguished himself by encouraging education, and by repressing idleness and mendicancy. Several of his successors were also archbishops; of many of them nothing is known; others were involved in the disputes and troubles which retarded Irish civilization, and proved that "Ireland was never subdued." After a long interval we arrived at Lord Loftus, founder of the noble house of Ely, who, after possessing the confidence both of Charles I and of the haughty viceroy Strafford, fell from power with unusual suddenness in 1639; and the great seal, rudely snatched from his grasp, was handed to Sir Richard Bolton, who, like many others of his time, had, in early life, crossed the sea to seek his fortune in Ireland. Of his later years it is singular to find so little on record. It is even doubtful whether he held office under Oliver Cromwell, or whether he died in the land of his adoption. The loss or destruction of records has, in Ireland, left many curious historical gaps, which may, perhaps, be filled hereafter.

In 1655, one of the three commissioners of the great seal was a man of note, Miles Corbet, who had signed the king's death warrant, and was afterward chief baron at Westminster. Shortly after the restoration unfortunate Corbet was arrested in Holland, cruelly treated by his captors, and publicly executed as a regicide in London. Then succeeded Steele and Eustace, not exactly remarkable men, yet living and acting in times of such profound interest, that their brief biographies possess, undeniably, the qualities which readers most appreciate. Lord Chancellor Michael Boyle was the last clerical chancellor, and he did no discredit to the episcopal order. Although an archbishop, he had a competent knowledge of equity, and his collection of general rules entitles him to the character of a law reformer. He was one of the sons of the famous Richard Boyle, who, at the age of twenty-two, walked into Dublin, with no fortune beyond his native shrewdness, and who founded in his own family several remarkably well-endowed peerages. Any estimate of this lucky adventurer's wealth at the time of his death would appear fabulous. His son Michael, archbishop and chancellor, built a country house among the hills south-west of Dublin. The house has now disappeared. but the park, the inclosure, the church and peal of bells, are all shown to the tourist who visits the picture que village of Blessington, as memorials of its founder. His suc

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cessor, Porter, after holding the great seal of Ireland for a time, resumed practice at the bar in London; and, judging from an extravagant compliment paid to him by Lord Clarendon, he must have been a singularly upright man when compared with his contemporaries. Of a string of his successors, we merely note that they do not seem to have been very remarkable men, or to have influenced the course of history in any appreciable degree. Several of them founded peerages, but few were very distinguished either at the bar or on the bench. In truth, only two men of the very first order of intellect and capacity have held the office of lord chancellor of Ireland; and it is necessary to pass over in silence a long series of their predecessors, in order that we may devote the short space that remains to some mention of John, earl of Clare, and William, baron Plunket, with but very slight references to some intermediate names.

John Fitzgibbon, first earl of Clare, was one of those men who leave their mark on the history of their country. No one can scan carefully that full length portrait of Lord Clare, which adorns one of the largest halls in Trinity college, Dublin, without being conscious that such a man was capax rerum, no idle recipient of high honors and large emoluments, no mere ornamental figure-head of a vice-regal government. Power and originality are visibly impressed on the lineaments of a face and form which required no flattery on the part of the artist to make them remarkable. Mr. O'Flanagan found himself unable to sketch the earlier history of the Fitzgibbon family, without some parenthetical and rather uncalled-for denunciation of the penal laws. Those laws were, as every man of this and of the last generation will have freely admitted, in the highest degree unjust and impolitic. But they militated little against the success in life of the elder Fitzgibbon, and of thousands of other Catholics. He was originally a Catholic, and the son of a Limerick farmer. Yet he had the manifold advantages arising from an excellent education in France; and he seems to have entered at once into a very lucrative practice after his return to his native country. While yet a law student, he distinguished himself by publishing a volume of reports of cases determined in the English king's bench, thereby causing some offense to some of the higher legal authorities, who disapproved of unauthorized reports by an irresponsible reporter. Notwithstanding all penal laws, and other drawbacks of the kind, which certain modern writers delight to dilate upon, Fitgibbon the elder, the father of Lord Clare, enjoyed a career so prosperous, that, although no orator, and not possessed of any commanding abilities, he contrived to amass a hundred thousand pounds. This was no bad career for an unhappy victim of the penal laws. His more famous son started with the advantage of a large fortune, in addition to all other gifts and advantages. During the very first year of his practice the future chancellor realized a considerable income; and, at the early age of thirty-four, he was made attorney-general for Ireland. It could hardly be otherwise than that so successful an advocate, feared, if not loved, by all his contemporaries, rivaled by none of his professional brethren, and backed by very large private resources, should become a ruling power in his native country. For nearly twenty

years Fitzgibbon appears to have been the virtual governor of Ireland. He was, in the largest sense of the word, an imperialist. He disapproved of the volunteer movement, and of every other movement which, in his opinion, threatened to separate Ireland from England.

Of course these political sentiments rendered him obnoxious to Curran, to Grattan, and to all other prominent men of the patriotic or nationalist party. This animosity did not limit itself to rhetorical warfare; for Fitzgibbon and Curran fought a duel from which no fatal result followed. In 1789 the Irish chancellorship became vacant; and Lord Thurlow for a time exercised all his influence to prevent the appointment of an Irishman. Ultimately he gave way, and wrote a particularly gracious and flattering letter to Fitzgibbon, who on gaining the great seal became Earl of Clare. Curran's antipathy soon exhibited itself in bitterly satirical outbursts, even in open court, for in those days men who hated each other made no secret of their feelings. The chancellor was bold and inflexible in his determination to suppress all insurrectionary movements and tendencies; yet his biographer is enabled to recount many acts of personal kindness exercised toward the unfortunate victims of the national furore of 1789. But the most remarkable passage of Lord Clare's career are found connected with the legislative union, which seems to have owed its accomplishment in a high degree to his ability and determination. The history of this stormy epoch is not briefly to be summed up. Sufficient to say, that the favorite project of Pitt and Castlereagh was most cleverly and rapidly carried into effect by the Irish chancellor, regardless of the cloud of unpopularity with which he was covering his name and fame. He did not long survive the act of union; and on the occasion of his funeral in January, 1802, the Dublin populace exhibited their hatred of his memory in a very unusual and most undesirable manner. Lord Clare's gallant descendant, the young Viscount Fitzgibbon, perished in the light cavalry charge of Balaclava; and the male line being now extinct, the brilliant chancellor of the legislative union is represented by his granddaughter, the countess of Kimberly.

The next chancellor of Ireland in all respects presented a contrast to his immediate predecessor. John Mitford, while a very young man, wrote his wellknown treatise on equity pleadings, and soon after his call to the bar he attained to a considerable practice in chancery. He was solicitor-general-Scott, afterward Lord Eldon, being attorney-general during the stormy years which followed the French revolution. It must have been a relief when, after conducting far too many prosecutions for sedition and libel, he was lifted into the more serene atmosphere of the judicial world. He went over to Ireland as chancellor in the year 1802; and there appears to have been no outery against the appointment of an Englishman to the Irish chancellorship, as there certainly would be were such an appointment attempted at present. The indirect, yet powerful, influence of the legislative union still for many years subsisted; and during the four years of Lord Redesdale's chancellorship, the Irish bar were content to acknowledge his

profound and exact knowledge of equity jurisprudence, without complaining that his earlier years were spent on the eastern instead of the western side of St. George's channel. The ex-chancellor died in 1817, leaving a son who is known to fame as the chairman of committees, and one of the most able and publicly useful members of the house of peers. For a short interval the great seal of Ireland was held by George Ponsonby, to whose credit or discredit nothing very special can be said. To him succeeded Thomas, Lord Mauners, a grandson of the third Duke of Rutland. He was educated at the Charterhouse, and at Emmanuel, Cambridge. In 1805 he became one of the barons of the exchequer; and in 1807 he was promoted to the Irish chancellorship, with a peerage. Mr. O'Flanagan is very unlikely to flatter unduly the memory of this staunch old English tory, and therefore the following criticism of Lord Chancellor Manners has a special value:

"He was attentive, decorous, gentleman-like, distinguished for his urbanity; not indeed deeply read, but evincing ability to understand and judgment to decide. He tried to expedite business, and to simplify the practice of the court of chancery."

His reign in chancery almost coincided in point of time with that of Lord Eldon in England; and he may perhaps be described as a small-print edition of Eldon. Politically they were alike; yet Lord Manners, although of smaller intellectual caliber than his great cotemporary, appears to have excelled him in one very important particular. He was uniformly averse to delay; and he delivered his judgments very speedily; clearing off his list of causes in a most exemplary manner. Mr. O'Flanagan quotes several satirical and incisive passages from the writings of the brilliant R. L. Sheil, which are more or less unfavorable to the worthy chancellor; but Sheil was a rhetorician by nature; and his lively descriptions, although destined to be read for many a long year, will always be read cum grano by the cautious student of cotemporary history. The next chancellor of Ireland, Sir Anthony Hart, was also an English lawyer. His name appears in the equity reports of many a term, while Eldon presided at Lincoln's Inn. In 1827 there must have been "reasons of state," at this distance of time unfathomable, for passing over Plunket, the foremost member of the Irish bar, and transporting Hart to Dublin, where he remained for about four years. His amiability, patience and impartiality made a deep impression on the practitioners in his court, and they seem to have sincerely regretted his departure in 1831.

The next Irish chancellor was the famous W. C. Plunket, of whom we shall say but little. The bar of England or of Ireland never produced a more deservedly renowned advocate. The history of his life has been told more than once of late; and it has been very fully set forth in a biography recently published by his grandson, Mr. D. Plunket, who at an unusually early age has deservedly gained the distinction of a silk gown, and the still higher honor of a seat in parliament as one of the representatives for the University of Dublin.

Plunket, as all the world knows, began life as a flaming nationalist, and as such he consistently and resolutely opposed the legislative union. Many of

his countrymen have, however, never forgiven his memory for a display of energy in prosecuting some of his former friends, whose patriotism outran all bounds of discretion. But it is admittedly hard to convince the public that an advocate, having taken a brief, whether from the crown or from a prisoner, is bound to use his best exertions for his client.. In later years, Lord Plunket, who had a numerous family, happened to find ready to his hand extraordinary and unexampled methods of providing for them at the public expense. Mr. O'Flanagan quotes (vol. II, p. 563) a list of these emoluments enjoyed by Lord Chancellor Plunket and his sons and dependents, amounting to nearly 28,000l. per annum. Probably there are several inaccuracies in this remarkable catalogue; but, making due allowance for errors, there can be little doubt that Plunket and his family drew greater revenues from the public than any domestic group in modern days. It is fair, however, to add that several other legal and political men of renown might have been equally ready to have availed themselves of opportunities of enrichment, if such had offered. Plunket was in no way remarkable as a judge. His fame, which will not quickly be obscured, rests upon his manly, eloquent and spirit-stirring utterances in parliament and at the bar, and it is very questionable whether this empire ever produced a man who surpassed Plunket as an orator.

The work before us does not carry down to a later date the history of the Irish chancellorship. Lord Campbell himself succeeded Plunket, his tenure of office being limited to a few days. Then came the learned Sugden, who for several years enlightened the domain of equity jurisprudence in a manner familiar to those who have read the reports of Drury and Warren. Then followed a very long tenure of office by Sir M. Brady, a very just, accurate and painstaking, if not a brilliant, chancellor. Later changes have occurred, of which there is no need to speak, further than to note that this great office is now worthily filled by one who combines the character of the upright judge with that of the accomplished orator. The warmest friend of Ireland cannot utter a more fitting prayer than this-that her destinies may henceforth be guided by the hand of men possessed of moral qualities and mental endowments like those exhibited by Lord Chancellor O'Hagan.

CURRENT TOPICS.

The legislature of Illinois has fixed the salaries of the judges of the supreme court of that state at $5,000 per annum. This sum is certainly no very adequate compensation for the ability required and the amount of labor to be performed, but it is a considerable improvement over the legislation of many of the states on the subject.

Benjamin Vaughan Abbott and Victor C. Barringer, two of the commissioners selected to revise the statutes of the United States, have addressed a letter to the chairman of the committees of the two houses of congress on that subject, giving a history of the progress of the work. They are desirous to obtain the decision of congress as to the time of the completion

of the work. If the time designated in the act of May 4, 1870 (three years), is to be adhered to, they advise the increase of the commission to five instead of three, as at present.

The high court of impeachment, which has been for some time sitting for the trial of Governor Holden, of North Carolina, ended its labors and the governor's tenure of office on the 22d ult. Conviction was voted on six of the eight charges, namely: instigating the unlawful seizure and imprisonment of citizens; 1efusing to obey the writs of habeas corpus issued by the chief justice, and drawing moneys from the public treasury for unlawful purposes. Mr. Holden claims that seven of the senators voting for his impeachment, and without whose votes the requisite two-thirds could not have been obtained, were disqualified under the fourteenth amendment, and he therefore proposes to test the matter before the United States supreme court.

In the case of Green v. Halway, 101 Mass., the supreme judicial court of Massachusetts re-affirms its former decision that the provision of the United States stamp act, that unstamped instruments shall not be admitted or used as evidence in any court, applies only to United States courts. It also decides that the provisions which declare that unstamped instruments shall be deemed invalid and of no effect do not render instruments, not duly stamped, absolutely void without proof that the stamp was omitted with intert to defraud the revenue. This is certainly a very just and equitable construction of the statute; and, although opposed to the decisions in some of the states, will ultimately be adopted as the correct one.

Notwithstanding the fact that the present court of appeals has been in almost continuous session since its organization, it has been unable to keep pace with the vast number of cases presented to it for determination. This fact has led to the introduction into the legislature of a resolution providing for the amendment of the constitution, so as to authorize that court to order any causes, not exceeding five hundred in number, pending therein, to be heard and determined by the commission of appeals, and empowering the legislature to extend the service of the commission for a period not exceeding one year. Unless some means be adopted for a more expeditious disposition of cases, it may become necessary to make the commission a perpetual adjunct of the court.

The correspondent of the Springfield Republican, writing from New York, says that a movement is on foot, among some of the prominent lawyers of that city, to "depose" Judge Blatchford, of the United States district court. The modus operandi is, to have the southern district, except the city of New York, annexed to the eastern district, but exactly how this is to result in the ouster of Judge Blatchford the aforesaid correspondent saith not. The ground of the crusade against Judge B. is, that his treatment of lawyers practicing in his court is "insufferable," and "many of these gentlemen of refinement, courtesy and culture have resolved to endure it no longer, if relief is possible." The story should be taken cum grano sulis.

The English nation has been considerably exercised over the result of a trial that has recently taken place in London, and in which was exemplified the folly of that ancient doctrine that a wife is not answerable for any felony committed in presence of her husband, except treason and murder. The facts were briefly these: A Mr. Torpey induced a jeweler to bring a case of diamonds to his house for the inspection of his wife, with a view, as he pretended, to making a purchase. While the husband engaged the attention of the shopman, Mrs. Torpey applied to the nostrils of that individual some anæsthetic, which soon reduced him to a state of somnolence, and Torpey, male and female, absconded with the jewels. The husband, with the diamonds, reached the continent in safety, but Mrs. Torpey was seized, indicted, tried, and acquitted, on the ground that the law presumed her part in the plot to have been enacted in matrimonial subjection to the will of her lord. All the facts in the case went to rebut this fiction of the law, as it clearly appeared that she was the chief conspirator and actor, but the fiction was triumphant nevertheless. Blackstone declares that this doctrine about the immunity of a wife "is at least a thousand years old in this kingdom, being to be found among the laws of King Ina, the West Saxon." It occurs to us that it has outlived its usefulness, and that a rule should be adopted more in accordance with the altered condition of the matrimonial relation, and the actual status of society.

COURT OF APPEALS ABSTRACT. JANUARY AND FEBRUARY DECISIONS, 1871. AGENCY. See Principal and Agent. CRIMINAL LAW. See Larceny.

EVIDENCE.

1. Presumption of non-indebtedness from act of claimant. An application for a loan of money is inconsistent with the idea that the person applied to is at the time indebted in a much larger sum to the applicant, and raises the presumption that such debt does not exist, and the fact that the loan was not made does not destroy the presumption. Richmond v. Richmond. Opinion by Church, C. J.

2. But the ruling of the court below, that such application "in connection with the other evidence" does not raise such presumption, will not be interfered with by this court. Ib.

See Larceny, 2; Principal and Agent, 3.

EXECUTORS AND ADMINISTRATORS.

1. Liability for debts of estate: effect of power to sell real estate.- -Executors and administrators conforming to the statute, and giving the prescribed notice, may proceed in the disposition and distribution of assets of the estate, as if no claim other than those presented to them existed. But creditors who may have omitted to present their claims within the six months are protected from loss by the remedy given against legatees, devisees, etc. Erwin v. Loper, exr., etc. Opinion by Allen, J.

2. Real estate devised by a will, which also gives to the executors a power to sell said estate, is not devised to the executors, but the title is vested in the devisees, subject to be divested by the exercise of the power of sale conferred by the will. Ib.

INNKEEPERS.

1. Liability to guest for loss of watch. By the common law hotel keepers were absolute insurers of the property

of their guests. And while the statute permits innkeepers to relieve themselves from this strict liability, in respect to certain classes of property, upon compliance with prescribed conditions, this exemption is limited to the particular species of property named, and, being in derogation of the common law, cannot be extended by doubtful implication, so as to include property not fairly within the terms of the act. Ramaley v. Leland. Opinion by Allen, J.

2. Hotel keepers are not liable for loss of money, jewels, or ornaments stolen from guests, where they, as directed by statute, provide a safe, etc., and post the required notice. But a watch is neither an ornament nor a jewel. but an article of use, and, where the same is lost from the room of a guest, without his negligence, the proprietor of the hotel is liable for its loss. Ib.

INSURANCE.

Construction of accident policy: meaning of public conveyance. The defendants by contract of insurance with plaintiff's intestate agreed to pay a sum named to her legal representatives in event of her death from personal injury, etc., when caused by any accident "while traveling by public or private conveyances provided for the transportation of travelers," etc. While making a journey and in passing on foot, by the usual way from a steamboat to a railway train running in connection with it, the intestate accidentally fell, from which fall she sustained injuries whereof she died. Held, that the defendants were liable under the contract. That an injury received while necessarily walking in the actual prosecution of a journey, involving changes from one public conveyance to another, is received while traveling by public conveyance, as such walking is the actual and necessary accompaniment of such travel. Northrup, admr., v. Railway Assurance Co. Opinion by Grover, J.

LARCENY.

1. Taking with consent of owner's wife: right to cross-examination. The taking of personal property, although done with the consent of the wife of the owner, is larceny, when such taking is against the will of the owner, and with the intention wrongfully to deprive him of his property, and the prisoner knew at the time that the wife had no authority to give such consent. People v. Cole. Opinion by Grover, J.

2. Where the cross-examination of a witness has been prevented by circumstances occurring without the fault of the party entitled thereto, the party may have the testimony given by such witness on direct examination stricken out. Ib.

3. A witness for the people, after giving material testimony on direct examination, fainted away, and the prisoner was thereby deprived of an opportunity to cross-examine her. Held, that a refusal by the court to strike out her testimony, when requested by prisoner's counsel so to do, was error. Ib.

MASTER AND SERVANT. See Principal and Agent.

MORTGAGE.

Sale under, when ralid.-The sale of mortgaged property for its full value, and the application of the proceeds to the payment of debts of the mortgagor to the amount of the proceeds, is not contrary to public policy, whether the mortgagor is insolvent or not, where there is no agreement not to bid, or to purchase as low as possible, or none, in substance, to repress or prevent competition. Bradley v. Kingsley. Opinion by Peckham, J.

NEGLIGENCE.

1. Injury received while saving human life. - Negligence implies some act of commission or omission wrongful in itself. An attempt to save human life, if from appearances one believes it can be done without serious injury to himself, is not negligence, although he believes he possibly may fail and receive injury himself. Eckhart v.

Long Island Railroad. Opinion by Grover, J. (Allen and Folger, JJ., dissenting.)

2. The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons. Ib.

3. The plaintiff's intestate was killed while endeavoring to rescue a child who was upon the track in front of an approaching train on defendant's road; held, that the exposure of the defendant for that purpose was not wrongful, and that the jury were warranted in finding him free from negligence. Ib.

4. Facts constituting. - The plaintiff's testator, while passing from a train of defendants on which he had been a passenger, stepped aside from the track along which he was walking and which was safe, behind some cars standing on a side track, to attend to a call of nature. While there an engine belonging to defendants backed against the car on the other side and pushed it along the track, whereby he was run over and killed. He was accustomed to travel upon defendant's road, was familiar with the locality and the manner in which the defendant usually run its trains. The train in which he had arrived was not intended for passengers, but persons were allowed to ride in a caboose car upon the payment of fare Held, that the deceased was negligent, and that, while the company were bound to furnish safe egress from their trains, they were not liable for an accident happening to one who abandoned the usual track for his own purpose and placed himself in a position of danger; that the urgency of nature formed no excuse for the action of deceased. Van Schaick v. Hudson River Railroad Co. Opinion by Folger, J.

PRACTICE.

1. Waiver: appeal to court of appeals.-The defendants demurred to the complaint, the demurrer was overruled as being frivolous, and judgment given for plaintiffs. No appeal was taken from this judgment. Defendants then moved to be allowed to answer, which motion was granted and defendants given five days to serve answer. No answer was served, and judgment was taken by default, from which judgment defendants appealed to general term and then to this court Held, that the defendants must, by asking leave to answer, be held to have acquiesced in the judgment overruling their demurrer, and to have waived their right of appeal from the judgment on the demurrer, and that this appeal was but an appeal from a judgment for failure to answer. Wright v. Miller. Opinion by Folger, J.

2. From such a judgment no appeal lies to this court. The remedy of the party is by motion in the court below, and the order made on such motion is, in some instances, reviewable in this court. Ib.

3. Time to appeal.-The code has not changed the rule that the statutory time for bringing an appeal or writ of error cannot be enlarged by the court. Sherwood v. Pratt. Opinion by Rapallo, J.

4. Venue of action affecting real estate; what is such action. An action brought to have the title to real estate adjudged to be in the plaintiff, on the ground that the deed conveying the title to defendant is a mortgage, and asking for a conveyance thereof to the plaintiff, and accounting by defendant, is an action for the recovery of an interest in real property and the determination of such interest. It is a local action, and must, under § 123 of code, be tried in the county where the real estate is situated. Bush v. Treadwell. Opinion by Church, C. J.

5. Proceedings under statute of forcible entries not an action when order is not appealable. - Proceedings to obtain possession of land forcibly entered upon, or withheld pursuant to the statute of forcible entries and detainers (2 R. S. 507), are not to be regarded as an action under § 11 of the code, but are, from their commencement to their conclusion, whether removed into the supreme court or not, special statutory proceedings provided for the redress of partic

ular wrongs. People ex rel. Cooper v. Field. Opinion by Grover, J.

6. An order made in such proceedings is not appealable to the court of appeals under the second clause of § 11 of the code. Ib.

7. Where such order directs a new trial, it is not appealable under the third subdivision of § 12, for the reason that it is not final in the supreme court. Ib.

8. Effect of delay as to defendant. - Whatever obstructions and hinderances may be interposed by defendant to the speedy trial or decision of an action, they do not forfeit the right to a regular and statutory notice of trial and hearing. Lodwick v. Ford. Opinion by Allen, J.

See Summary Proceedings and Statutes.

PRINCIPAL AND AGENT.

1. Agency, when terminated: evidence of. An agency to transact business for an individual is terminated by the formation of a copartnership. Hoppock v. Moses, exr., etc. Opinion by Church, C. J.

2. C. M., who was agent of the defendant's testator individually, had purchased goods, from time to time, for such testator from plaintiffs, subsequently assumed to act as the agent of a firm of which said testator was a member, and purchased goods in their name. Held, that by reason of the purchase of the goods in the name of the firm the plaintiffs were bound to take notice of the termination of the agency of C. M.; that a new authorization was necessary to enable him to purchase property on the credit of the firm, and that he could not bind the defendants' testator by virtue of his former agency. Ib.

3. The declarations of one member of a firm are not evidence to prove a partnership against another member, nor can the declarations of an individual agent of one member be used for that purpose against either. Ib.

4. Liability of principal for act of agent in the commission of a trespass.-The principal in the commission of a trespass who puts others in motion is answerable for all the necessary and legal and natural consequences that ensue, such as might in the ordinary course of events follow, and he will be held liable for all that is done by his agents in furtherance of the general design, or which legitimately and naturally result from the purpose of the agency. Frazer, admr., v. Freeman. Opinion by Allen, J.

5. But he is not liable for the malicious and willful act of the servant, done without his direction or assent. Ib. 6. Where a homicide is committed willfully by a servant, while assisting a master in the commission of a trespass, and the same was not authorized by the master, or committed in furtherance of his plans and purposes, or was within the consequence of his acts in the necessary and ordinary course of events, the master is not liable. Ib.

7. And in an action against the principal for death of plaintiff's intestate, by act of agent while assisting principal in the commission of a trespass, a refusal of the judge at the trial to charge the jury, that, if they believe the act of the agent to be with the premeditated design to effect the death of the person killed, the principal would not be liable for such act, is error. Ib.

8. The law does not hold the master liable for the malicious act of the servant. Ib.

RAILWAYS. See Statutes.

SALE AND DELIVERY.

1. What constitutes delivery of gold. -The delivery of gold upon a contract is analogous to paying money, and it is the duty of the party bound to deliver to place the gold in the actual possession and control of the party who is to receive it, or his agent. It cannot be effected by leaving the property where the deliveree may possibly obtain possession and control of it. Kinne v. Ford. Opinion by Grover, J.

2. The plaintiffs, in pursuance of an agreement to deliver $10,000 in gold to defendants, sent a check for that

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