by the servant of the defendants, not in the course of any common employment or operation under the same master, but by negligence in the discharge of his ordinary duty to the defendants alone, this case is distinguishable from all which have been decided in relation to the above doctrine of exemption, and that, therefore, this action is maintainable." Both these cases were, no doubt, properly decided, upon the ground that in each of them it could be correctly affirmed that the servant who did the injury was in the employ of the defendants, and doing their work, and not what was common to that in which the plaintiff was employed. In the present case the circumstances material to the legal position of the parties and the rights flowing therefrom are very different. The deceased man, Swainson, though engaged by the Great Northern Company, and wearing their uniform, was one of a joint staff, and for four years had received his weekly wages as such, and he was, therefore, practically in the service of two companies, who, quoad his service and employment, were partners. But further than this, as was said by Lord Colonsay in Wilson v. Merry, ubi sup.: "We must look to the functions the party discharges, and his position in the organism of the force employed, and of which he forms a constituent part." Referring, then, to the duties of Swainson, and the very acts on which he was engaged at the time of his death, the evidence shows that they were not performed by him as servant of, or for the benefit of one company only, but were essentially necessary for the common business of both, namely, the interchange of the traffic between the two stations. The case, therefore, falls within and is governed by the principle that where there is common employment in common service the master is not liable, and our decision must be for the defendants, for whom judgment must be entered. HUDDLESTON, B., concurred.

Judgment for the defendants.

COURT OF APPEALS ABSTRACT.

ACTION.

1. Recovery back of moneys paid on illegal assessment: involuntary payment.-Where money has been obtained upon an erroneous judgment or tax levy, which has been reversed after payment, it is recoverable back (Bank of U. S. v. Bank of Washington, 6 Pet. 8; Sturges v. Allis, 10 Wend. 355; Clark v. Pinney, 6 Cow. 297); but to authorize a recovery the payment must be involuntary or compulsory, from coercion either in fact or by law. Judgment below reversed. Peyser v. Mayor of New York. Opinion by Folger, J.

2. Coercion in fact and by law defined.-Coercion in fact is that duress of person or goods where present liberty of person or immediate possession of goods is so needful and desirable that an action or proceeding at law will not at all answer the pressing purpose. Forshay v. Ferguson, 5 Hill, 154; Eadie v. Skinner, 26 N. Y. 9, duress of person; Maxwell v. Griswold, 18 How. (U. S.) 747; Harmony v. Bingham, 12 N. Y. 99, duress of goods. Coercion by law is where a court having jurisdiction of the person and subject-matter has rendered a judgment which is collectible in due course. The quasi adjudication of assessors of taxes, when proceedings are regular on their face, and on presentation make out a right to have and demand the amount

levied, and to have and demand it on due course of law by sale of goods or real estate, also constitutes coercion by law. (N. Y. C. & H. R. R. R., 12 N. Y. 308, and Fleetwood v. Mayor, 2 Sandf. 475, distinguished.) Ib.

3. What necessary to warrant action to recover moneys paid on erroneous assessment.-To warrant an action to recover back money paid by coercion of law upon a judgment, or tax levied, or assessment laid, it must appear that the judgment or proceedings were prima facie regular, so as to themselves to furnish evidence of their own validity. Where the facts showing invalidity must be furnished aliunde the action is maintainable. Ib. [Decided Sept. 25, 1877. Reported below, 8 Hun, 413.] APPEAL.

1. When not allowable.-This was an appeal from an order granting a new trial in a case tried by a jury. A motion for a new trial on the evidence was made at Circuit and denied, and an appeal from that order taken to the General Term where a new trial was granted. Held, that it is well settled that an appeal will not lie to this court in such a case. (Wright v. Hunter, 46 N. Y. 409; Sands v. Crook, id. 464.) Appeal dismissed. Wagner v. Long Island Railroad Co. Opinion by Rapallo, J.

2. Judgment for less than $500.-The judgment in the case which was reversed was for only $325, exclusive of costs. Held, that this court had no jurisdiction to hear the appeal. Ib. [Decided Sept. 25, 1877.]

ATTACHMENT.

of goods in hands of carrier who has issued bills of lading: failure to give bond.-When goods have been shipped and bills of lading issued by the carrier, such goods cannot be attached without giving the bond of indemnity provided by the statute (Laws 1841, chap. 242) and the common law, and a seizure made by the sheriff without giving such indemnity is a trespass, and the sheriff is liable to the carrier for the value of the goods. Judgment below affirmed. Campbell v. Conner. Opinion by Church, C. J. [Decided Sept. 18, 1877.]

CONSTITUTIONAL LAW.

1. Statutory construction: title to local act not embracing provisions: delegating legislative power.-By Laws 1873, chapter 505, entitled "An act to reorganize the village of Gloversville," passed May 14, 1873, it is provided (§ 51) that at each annual election in said village a vote shall be taken to regulate the granting of license to sell intoxicating liquors, and that if a majority of votes cast shall be for the granting of license the board of trustees may grant said license, and if a majority of votes be against, the said board shall have no power to grant the same. It also provides that the commissioners of excise of the village shall possess the powers and perform the duties of boards of commissioners of excise and be subject to the excise laws of the State and that all license moneys and all penalties for violation of excise laws shall be paid to the village treasurers and be recoverable in the corporate name of the village, etc. A vote was taken in the village which resulted in a majority against granting license. In an action against defendant for penalties for selling intoxicating liquors in February and March, 1875, in which defendant set up a license obtained from the commissioners of excise of the town wherein the village is situated: Held, that the provisions of sec

tion 51 were not unconstitutional as (1) not being embraced in the title of the act (People v. Mayer, 50 N. Y. 504; Harris v. People, 59 id. 599); or as (2) delegating legislative power to the electors of the village. (Bank of Rome v. Village of Rome, 18 N. Y. 38, 44; Bank of Chenango v. Brown, 26 id. 467; Clarke v. City of Rochester, 28 id. 605.) Judgment below affirmed. Village of Gloversville v. Howell. Opinion by Rapallo, J. (Church, C. J., dissented.)

2. Statutory construction: amendments to general excise law: when not applicable.— Held, also, that the provisions in question were not abrogated by Laws 1873, chap. 820, as to the power of the village to sue for the penalties, or as to the granting of licenses by Laws 1874, chap. 444. Ib.

[Decided Sept. 18, 1877. Reported below, 7 Hun, 345.]

CONTRACT.

Construction of: sale of invalid patent right: rescission.- Plaintiff's testator, Peck, by two contracts, sold and conveyed to defendant certain interests in two patent rights. The consideration of the first contract was paid in part by government bonds and defendant gave his note for $1,500, which was the whole consideration for the second contract. Subsequently, a contract in writing was made between the parties containing this recital and having reference to the second contract: "And whereas, said contract was given after the letters patent had been surrendered up for a reissue, and in ignorance of the fact that under certain circumstances the letters patent would not be returned to the owner of said patent; and, whereas, the said Peck desires a release from his obligations under said contract in case he shall not be able to fulfill such obligations." It was then agreed that in consideration of the return of the $1,500 Peck was to be released, and it was further agreed that "when the said Peck shall notify him of his readiness to fulfill the said contract by deeding to said Collins his interest in said patent or any re-issue which may be granted under said application," the amount mentioned was to be repaid by defendant to Peck. Another contract was contained in a receipt for the government bonds signed by defendant, acknowledging that the bonds had been returned to him and agreeing to repay them to Peck "as soon as Byron Mudge (the patentee whose patent was the subject of the sale) succeeds in getting a re-issue of " the patent in question, "now in the patent office, or providing the old patent is returned." In the application for re-issue the patent was declared void, but the agent of Peck procured the original letters patent. Held, that the contracts called for a valid patent, and that Peck or his representative by offering to return the original letters patent could not claim a return by defendant of the government bonds or the $1,500. Judgment below affirmed. Peck v. Collins. Opinion by Church, C. J.

[Decided Sept. 18, 1877.]

NEW YORK CITY.

1. Consolidation of county and city: rights of holders of claim against county to sue city.- Plaintiff held a claim against the county of New York before the city and county governments had been consolidated which had been duly audited and allowed by the board of supervisors. Held, that before the city officers could pay, plaintiff's voucher for the claim must have been (Laws 1873, chap. 335) examined and allowed by the auditor and approved by the comptroller, and this was a condition precedent to payment (People v. Green, 2

T. & C. 18; 56 N. Y. 476); but it was the duty of the city auditor to allow the voucher if it was in proper form. He could not revise it and readjust the claim, and after the admission by him that the voucher was in proper form, and its approval in that respect by the comptroller, suit might be maintained for the claim against the city. Judgment below reversed. Lanigan v. Mayor of New York. Opinion by Earl, J. 2. Estoppel: what does not constitute.- A receiver of plaintiff in supplementary proceedings took possession of the voucher and upon the refusal of the auditor to examine and allow it, procured a peremptory mandamus directing the auditor to do so. The auditor examined the voucher and reduced the amount, and there being enough to satisfy the judgment the receiver took no further steps. Held, that plaintiff was not estopped from maintaining an action for the balance due beyond such reduced amount. Ib. [Decided Sept. 18, 1877.]

RECENT ENGLISH DECISIONS.

CRIMINAL LAW.

1. False pretenses: evidence of pretenses.-C. was convicted of obtaining potatoes by falsely pretending that he was then in a large way of business, that he was in a position to do a good trade in potatoes, and that he was able to pay for large quantities of potatoes as and when the same might be delivered to him. The evidence that C. had so pretended was the following letter written by him to the prosecutor: "SirPlease send me one truck of regents and one truck of rocks as samples, at your prices named in your letter; let them be good quality, then I am sure a good trade will be done for both of us. I will remit you cash on arrival of goods and invoice. Yours, etc. P. S.-I may say if you use me well I shall be a good customer. An answer will oblige saying when they are put on." Held, affirming the conviction, that the words of the letter were fairly and reasonably capable of a construction supporting the pretenses charged, and that it was a question for the jury, whether the writer intended the prosecutor to put that construction upon them. The Queen v. Cooper, L. R., 2 (C. C. R.) Q. B. D. 510.

2. Malicious injury to property: 24 & 25 Vict., c. 97, 8. 41: placing poisoned flesh in inclosed land: 27 & 28 Vict., c. 115, s. 2.-The placing of poisoned flesh in an inclosed garden, for the purpose of destroying a dog which was in the habit of straying there, is not an offense punishable under 24 & 25 Vict., c. 97, s. 41. But, semble, that it is within 27 & 28 Vict., c. 115, s. 2. Daniel v. Janes, L. R., 2 C. P. D. 351.

LANDLORD AND TENANT.

Liability of landlord for injury happening to stranger during tenancy: liability of landlord for defective repair of demised house: negligence.-A landlord is liable for an injury to a stranger by the defective repair of demised premises only when he has contracted with the tenant to repair, or when he has been guilty of misfeasance, as, for instance, in letting the premises in a ruinous condition; in all other cases he is exempt from responsibility for accidents happening to strangers during the tenancy. The defendants let to F. a house by an agreement in writing, by which F. agreed "to do all necessary repairs to the said premises except main walls, roof, and main timbers." There was no agreement by the defendants to repair, and the house was in good condition at the time of letting it.

PARTNERSHIP.

.

1. Liability of partner for contracts of copartner. The liability of one partner for the contracts of another, when not estopped from denying the liability, is founded on the relation they sustain of being each principal and agent in the joint business. That relation is, therefore, the true test of a partnership, and the liability rests on the ground that it was incurred on the express or implied authority of the party sought to be charged. Harvey v. Childs.

2. Facts constituting partnership.- Participation in the profits of a business, though cogent evidence of a partnership, is not necessarily decisive of the question. The evidence must show that the persons taking the profits shared them as principals in a joint business, in which each has an express or implied authority to bind the other. Ib.

SURETYSHIP.

Waiver of defense of fraud by surety.-Where a person, with knowledge that he had been induced to sign the promissory note, on which suit had been brought, as surety, through the agency of the principal maker and payee, by fraudulent representations that would have been for him a valid defense in the suit thereon, after the note had matured, with a full knowledge of the facts constituting the fraud, but ignorant that the fraud was a defense in law, voluntarily requested the payee to extend the time of payment of the note, which was done, and upon that consideration promised to pay. Held, he thereby waived his defense to the note. In an action on such note, a parol waiver of such defense by the surety, voluntarily made upon a sufficient consideration, upon a full knowledge of all the facts, is binding. Rindskopf v. Doman.

TAXATION.

What is not voluntary payment of taxes.-Where a corporation is assessed on its gross receipts, under the provisions of "an act for the assessment and taxation of express and telegraph companies (S. & S. 769-771), and pays such assessment to avoid the penalties and disabilities incurred by a refusal to pay, but under protest, and after notifying the treasurer that an action would be brought to recover back; such payment is not voluntary, and an action may be maintained to recover back the amount so paid, if the tax is illegal. W. U. Telegraph Co. v. Mayer, treasurer.

BOOK NOTICES.

LOWELL'S DECISIONS, Vol. II.

Judgments delivered in the Courts of the United States for the District of Massachusetts. By John Lowell, LL. D., District Judge. Vol. II. Boston: Little, Brown and Company, 1877.

THERE is an old saying, speaking slightingly of one

who acts as his own lawyer, and it is also suggested in another saying that a physician is not able to cure his own ailments, but we think a like principle would not apply to the reporting of decisions, and that a judge can be his own reporter not only with safety, but with a certainty of having his decisions produced in better form than could be the case if another undertook the labor. The volume before us is so excellently prepared that we trust that it may be long before Judge Lowell commits the task of reporting his adju

contained in the volume we notice these: Sawyer v. Turpin, p. 29. A change in the form or even the substance of a security within four months of bankruptcy is protected if the first security was unimpeachable, and no greater value is given to the creditor than he had before. Re The Massachusetts Brick Co., p. 58. The stockholders of a trading corporation agreed to lend money to the company in proportion to their respective shares. One of them made the loan by giving his note which the company indorsed and agreed to care for at maturity. It failed to take it up for fourteen days after maturity, when the promisor paid it. Held no suspension of commercial paper under the bankrupt law. Pratt v. Curtis, p. 87. It seems that to render a voluntary deed for the benefit of wife and children fraudulent as to creditors, it would be enough to prove that the grantor was in a doubtful position in respect to solvency. Wrentham Manuf. Co., ex parte Southwick, p. 119. A receipt not negotiable and intended as a memorandum of indebtedness by the maker thereof to the holder, does not come within the rule of law in Massachusetts that one who indorses a note not being the holder of it, is an original promisor. Re James McGlynn, p. 127. It is not illegal to hold a court of the United States on a day appointed by the president of the United States and by the governor of the Commonwealth as a day of thanksgiving, and a meeting of the creditors of a bankrupt on that day was held valid. Re Krueger, ex parte Bugbee, p. 182. Letters written by one partner to another concerning a lawsuit which the partners expect to begin and do presently after begin are privileged. The Belknap, p. 281. A ship manned with landsmen only while being towed by a tug collided with another vessel. Held, that the tug was prima facie liable. In re Peter Kelley, p. 339. A judge of the United States Court can, under the extradition treaty with Great Britain and the statutes, upon due complaint issue a warrant for a supposed criminal without a previous application being made to the president. In re Dugan, p. 367. The extradition treaty with Great Britain does not give the accused a right to be confronted with the witnesses against him. Re Cote, p. 374. A farmer who occasionally sold horses, cattle and hay, held not bound to keep books as a tradesman under section 29, of the bankrupt law. The volume is, as is the case with all works published by this firm, elegantly printed and bound.

DIGEST OF INTERNATIONAL LAW. Digest of the Published Opinions of the Attorneys-General and of the Leading Decisions of the Federal Courts, with reference to international law, treaties and kindred subjects. Washington, D. C.: W. H. & D. H. Morrison, 1877. To the student of international law and to every one interested in the various subjects embraced under that head this digest will prove of great value. The opinions of the attorneys-general which form a considerable part of the unwritten law upon these subjects, have to most readers been heretofore practically inaccessible, but an effort has here been made to give a reference to every published decision relating thereto and arising upon questions coming before the department of State. The leading decisions of the Federal courts upon all the titles named in the volume are given, and in those of treaties and extradition it is intended to embrace all decisions bearing upon these subjects. The work upon the digest seems to be carefully and accurately done, the statements of principle are full