that on her death it should be equally divided among his other children, unless she disposed of it by will. As to the share of one of the sons, testator provided that in case of the son's death without a will testator's executors could, in their discretion, pay his share either to the son's children or to testator's other children. Held, that these provisions clearly contemplated the death of the devisees after that of testator, as well as during his life-time, and that under a further provision in the will that in case of the death of any of the childreu, except the daughter above referred to," without child or children or heirs of the body," the share of such deceased child should go to the testator's other children, "subject to the like limitations as the bequests hereinbefore given," the share of such a child dying without issue after testator's death went to the surviving children, and not to the deceased child's administrator. March 1, 1892. Mead v. Maben. Opinion by Gray, J. 12 N. Y. Supp. 5, affirmed; 14 id. 732, reversed.

GROSS NEGLI

BANKS LIABILITY OF DIRECTORS GENCE. (1) A director of a bank, whose services are gratuitous, and whose duties are to attend the bank once or twice a week to assist in discounting paper, to see how much money there is to lend, and once or twice a year to count the cash on hand, and examine the bills receivable and securities to see whether they correspond with the statement furnished by the offcers, does not owe the creditors of the bank such care as a reasonably prudent man exercises in his own business, but is amenable only for fraud or for such gross negligence as amounts to fraud. Upon this point there is a general misapprehension in the popular mind. This finds expression after bank failures in severe condemnation of directors, and a general assertion of the doctrine that their duty requires them to be familiar with all the details of the management. In the popu lar mind they are held to the rule that they ought to take the same care of the affairs of the bank that they do of their own private business. Even the learned judge below evidently adopted this view when he said in his opinion: "If we were to decide this case on

WILLS-ESTATES IN REMAINDER.-Testator gave to his executors his real estate in trust, during the life of his wife, to pay her $2,000 a year, and out of the income remaining to pay the current expenses of the real estate and apply the balance once a year between "my children." The trustees were all empowered during the life of the wife to sell part of the land, and in case of such sale they were to retain one-third of the proceeds as a trust fund for the benefit of the wife, and divide the remaining two-thirds among "my chil-first impressions as to the conclusions of fact to be dren." Testator provided that whereas the will made devises and legacies to "my children," if any of them should be dead leaving issue surviving them, the issue should take the same share their parent would have received had such parent remained living. The executors were further empowered and directed, on the death of the wife, to sell the remaining real estate and divide the proceeds among "my children." Testator also gave the residue of his personalty, one-third to his wife and two-thirds to my children," and provided that, if certain money advanced to one of them should not be repaid, it should be deducted from his share in testator's property. Held, that at testator's death there vested an absolute estate in remainder in his children, with a substitution of their issue for those of his children then dead, the trust postponing only the period of enjoyment, and the provision for sale after the wife's death being intended to conveniently sever the interests of those already entitled. March 1, 1892. Tienken v. Tienken. Opinion by Finch, J. 15 N. Y. Supp. 470, affirmed.

PROBATE-DISMISSAL WITNESSES-COMPETENCY-TRANSACTIONS WITH DECEDENT-INTERESTINCOMPETENT EVIDENCE.—(1) Though the executor by whom a will is propounded for probate moves to dismiss the proceedings, and the contestant assents thereto, dismissal is properly refused where counsel of a party who has been cited announce that they appear in support of the will. (2) A witness was offered by the contestants of a will, who had theretofore herself been a contestant, and who would, in case of the intestacy of deceased, have taken absolutely one-fifth of his whole estate. By the will she was given for life the income of one-third of the residuary estate. dence was given to show which was of the most value. Held, that it would be assumed, in support of the surrogate's ruling that she was incompetent, under the Code of Civil Procedure, section 829, to testify to personal transactions and communications with deceased that her pecuniary interests would be promoted by defeating probate. (3) Evidence incompetent when received may subsequently be stricken out by the trial judge, though no objection was made to its reception.

No evi

drawn, and under the decisions cited and rules laid
down in the minority opinion in Briggs v. Spaulding,
we would say there was gross negligence or want of
the ordinary care that a man of fair intelligence would
take of his own affairs." It cannot be the rule that
the director of a bauk is to be held to the same ordi-
nary care that he takes of his own affairs. He has lit-
tle to do with either the cash or the books of the bank.
They are in the care of salaried officials, who are paid
for such services and selected by reason of their sup
posed integrity and fitness. To expect a director, un-
der such circumstances, to give the affairs of the bank
the same care that he takes of his own business is un-
reasonable, and few responsible men would be willing
to serve upon such terms. In the case of a city bank,
doing a large business, he would be obliged to abandon
his own affairs entirely. A business man generally un-
derstands the details of his own business, but a bank
director cannot grasp the details of a large bank with-
out devoting all his time to it, to the utter neglect of
his own affairs. In Spering's Appeal, 71 Penu. St. 11,
the subject is very fully discussed by the late Justice
Sharswood, and the rule of ordinary care is laid down.
Not however the ordinary care which a man takes of
his own business, but the ordinary care of a bank di-
rector in the business of a bank. Negligence is the
want of care according to the circumstances, and the
circumstances are every thing in considering this ques-
tion. The ordinary care of a business man in his own
affairs means one thing, and the ordinary care of a
gratuitous mandatary is quite another matter.
one implies an oversight and knowledge of every detail
of his business, the other suggests such care only as a
man can give, in a short space of time, to the business
of other persons from whom he receives no compensa-
tion. We may also refer to Briggs v. Spaulding, 141 U.
S. 132, which goes even further than our cases upon
this point. It does not relieve a director from the con-
sequence of gross negligence in the performance of his
duty, but it holds that he is not responsible where he
has used the ordinary care which bank directors usu-
ally exercise. It is true this was the case of a Na-
tional bank, but we apprehend that what is negligence
on the part of a director of a National bank would, as

The

cautious to guard the train as were possible, such evidence not being contradicted, it is proper to direct a verdict for defendant, the flood being an act of God. The loss was not made possible by the negligence of the defendant, but happened in spite of the utmost care exercised by agents and employees to escape the dangers it knew to exist or had reasonable ground to apprehend. It may be possible for us, looking back coolly and in the clear light of history on that terrible catastrophe, to see how property and life might have been saved if men on the ground had realized the awful magnitude of the impending calamity. It was not realized. The inhabitants of the populous valley sat in their homes, or went about their business, while the deluge was approaching. So swift was its approach that the horseman ruuning to warn the city was overtaken and swallowed up, and the flood fell unannounced, and swept the day express and the city of Johnstown before it. What was done on that day must be considered in the light of what was then

a general rule, be negligence by a director of a State
bank, and subject to the same liability. In regard to
what is ordinary care, regard must be had to the
usages of the particular business. Thus, if the director
of a bank performed his duties as such in the same
manner as they were performed by all other directors
of all other banks in the same city, it could not fairly
be said that he was guilty of gross negligence, and care
must be taken that we do not hold mere gratuitous
mandataries to such a severe rule as to drive all hon-
est men out of such positions. This thought is well
expressed by Sir George Jessel, M. R,, in his opinion
in Re Dean Coal Min. Co., 10 Ch. Div. 450. (2) A bank
president, abetted by the cashier and several clerks,
embezzled almost all the funds of the bank, and con-
cealed the fraud by false entries in the books. His
statements to the directors from time to time showed
the bank to be in good condition. No fraud was dis-
coverable in any of the books except the individual
ledger, which by a rule of the bank conforming to a
custom largely prevalent, the directors were not al-known, and what, from such knowledge, it was rea-
lowed to see. The directors were among the heaviest
stockholders, and at the first suspension they raised
nearly $300,000 on their individual credit to enable the
bank to resume payment. Held, that the directors
were not guilty of gross negligence. The individual
ledger contains the accounts of the individual deposit-
ors, and this book, by the rules of a large majority of
the Pittsburg banks, the directors are not allowed to

see.

This is a rule of policy on the part of most city
banks, and the reason for it is at least plausible. A
director largely engaged in business may have a num-
ber of rivals in the same business who are depositors
in the bank. If he is permitted to examine their ac-
counts it gives him an advantage, and au insight into
a rival's affairs that few business men would tolerate.
Hence it is a question with many banks whether to
adopt this rule, or lose valuable customers, and they
generally prefer the former. We are not speaking of
the wisdom of the rule, only of its existence, as bear-
ing upon the question of the directors' negligence. Are
they to be held to be guilty of gross negligence in not
examining a book which, by the rules of their own
bank, and of four-fifths of the other banks in Pitts-
burg, the directors are not permitted to see? Nordo
we think the directors were bound to regard the state-
ments submitted to them as false, and the president,
cashier and clerks as thieves. They had nothing to
arouse suspicion. All of these gentlemen stood high.
They were the trusted agents of the corporation, paid
for their services, and regarded in the community in
which they lived as honest meu. They did not desert
the ship like a parcel of drowning rats, but imperilled
their private fortunes in an effort to keep it afloat.
Under such circumstances it would be au act of gross
injustice to hold them liable for the frauds of others,
in which they had not participated, of which they had
no knowledge, and which have only been brought to
light with the aid of experts. We must measure this
transaction by the light which these directors had at
the time the transactions occurred. It would be un-
fair to judge them by the calcium light which has been
turned on for six years and which has enabled us to
trace at last the sinuous path of Riddle and his con-
federates in crime, and the means by which this bank
has been robbed and plundered. Penn. Sup. Ct., Jan.
4, 1892. Swentzel v. Penn Bank. Appeal of Warner.
Opinion by Paxson, C. J.

sonable to apprehend. So considered, the defense was complete. There was no question of fact for a jury to decide, and it was exactly right for the learned judge to tell them so, and to direct their verdict. Moore v. Railroad Co., 108 Penn. St. 349; Railroad Co. v. Cadow, 120 id. 559; Railroad Co. v. Bell, 122 id. 58. Sup. Ct. Penn., Feb. 1, 1892. Long v. Pennsylvania R. Co. Opinion by Williams, J.

INDUSTRIAL SOCIETY-APPLICATION OF PROFITS"LAWFUL PURPOSE"-SUBSCRIPTION TO STRIKE 1876. The application to "any lawful purpose" of the FUND-INDUSTRIAL AND PROVIDENT SOCIETIES ACT, profits of an industrial society authorized by section 12, subsection 7, of the Industrial and Provident Societies Act, 1876, and by the rules of the society, must be taken to mean an application to any lawful purpose ejusdem generis with the general purposes and objects of the society as contained in its rules. Where therefore an industrial society established to carry on the trades of general dealers, manufacturers and farmers, passed a resolution at a properly-constituted meeting to devote a portion of the profits to a subscription to a strike fund for the support of workmen on strike in the neighborhood, held, that the purpose was not "a lawful purpose" within the meaning of the rules of the society, and that the society must be restrained from such an application of its profits. 1 Q. B., '92, p. 213. Warburton v. Huddersfield Industrial Society. MARRIAGE-CONTRACTS IN CONTEMPLATION OF DIVORCE. It is not against public policy for a wife, pending suit for divorce, to give her husband a writing acknowledging an indebtedness from herself to him, creating a lien on her land to secure the same, and promising to pay the debt on sale of the laud, upon the condition that if divorce is not decreed the instrument shall be void. That a husband and wife may contract with each other with reference to a division of the property on the dissolution of the marriage relation by divorce, provided the contract is reasonably just and fair, see Blake v. Blake, 7 Iowa, 46, and Martin v. Martin, 65 id. 255. Sup. Ct. Iowa, Jan. 28, 1892. Nieukirk v. Nieukirk. Opinion by Rothrock, J.

MASTER AND SERVANT-MANUAL LABOR.-The test of whether an employee is engaged in manual labor, within the meaning of the Employers and Workmen Act, 1875, is, whether such labor is his real and substantial employment, or whether it is incidental and accessory to such employment. The appellant, a grocer's assistant, whose duty it was to serve customers in a shop, had also other duties involving manual labor, such as making up parcels for customers, carrying parcels from the shop to the cart at the door, and bringing

CARRIER-ACT OF GOD-FLOOD.-Where in an action by a passenger for loss of baggage it is admitted that the baggage was on a train which was destroyed by a flood, and the defendant introduces evidence showing that the flood was of such extraordinary character that it could not be foreseen or provided against, and that defendant's servants and agents took such pre- up goods from the cellar to the shop. Held, reversing

the decision of the Queen's Bench Division, that such occupations were incidental to his real and substantial employment as a salesman, and that he was not engaged in manual labor within the meaning of the Employers and Workmen Act, 1875. 1 Q. B., '92, p. 226. Bound v. Lawrence.

come to be well settled in recognized texts and by ad-
judications of courts of high standing that the wife is
not only competent in such cases, but is compelled to
testify. Mr. Justice Stephen, in his Digest of the Law
of Evidence, which is incorporated bodily in the
American and English Encyclopædia of Law, as
16 con-

WILLS-CHARITY-EVIDENCE-Testatrix made a be-taining the most clear and concise statements of the

quest to the "Christian Missionary Society of this State." She was a member of the Church of Christ in Indiana, and that church had but one missionary society in the State, which was commonly known by the name mentioned in the will, although its legal name was the "Missionary Society of the Churches of Christ in Indiana." Held, that evidence of the above extrinsic facts was admissible to identify the legatee, and the bequest was not void for uncertainty. The authorities seem to settle the rule in the construction of a will to be that, in looking for the intention of the testator surrounding circumstances may be taken into consideration, but that extrinsic evidence will not be received to vary, contradict or coutrol the terms of a will, yet that evidence of surrounding circumstances, of the subject-matter of the devise, and the person to be benefited thereby, is receivable to enable the court to determine both the subject and object of the testator's bounty, and for the purpose of determining the object of a testator's bounty, or the subject of disposition, a court may inquire into every material fact relating to the person who claims under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator and his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator. Wig. Wills, 101, 109, 112, 142; Redf. Wills, 488, 578-587, 597-623; 1 Greenl. Ev. (13th ed.), § 287, and note; Skinner v. Harrison Tp., 116 Ind. 139; Elliott v. Elliott, 117 id. 380; Noe v. Kern (Mo.), 6 S. W. Rep. 239; Hall v. Stephens, 27 Am. Rep. 302. In a note to Chambers v. Watson, 46 Am. Rep., on page 77, the law is stated thus: That "a misnomer or misdescription of a legatee or devisee, whether a natural person or corporation, will not invalidate the provision or defeat the intention of the testator, if either from the will itself, or evidence dehors the will, the object of the testator's bounty can be ascertained." No principle is better settled than that parol evidence is admissible to remove latent ambiguities, and when there is no person or corporation in existence precisely answering to the name or description in the will, parol evidence may be given to ascertain who were intended by the testator. A corporation may be designated by its corporate name, by the name by which it is usually or popularly called and known, by a name by which it was known and called by the testator, or by any name or description by which it can be distinguished from every other corporation; and when any but the corporate name is used, the circumstances to enable the

court to apply the name or description to a particular

corporation, and identify it as the body intended, and to distinguish it from all others, and bring it within the terms of the will, may in all cases be proved by parol. St. Luke's Home v. Association for Indigent Females, 52 N. Y. 191; Holmes v. Mead, id. 332; Garduer v. Heyer, 2 Paige, 11; 1 Jarm. Wills, 330; 1 Redf. Wills, p. 691, § 42, pl. 40, and page 695, pl. 49. App. Ct. Ind., Jan. 19, 1892. Chappell v. Missionary Society of the Churches of Christ in Indiana. Opinion by Robinson, C. J.

WITNESS-COMPETENCY-HUSBAND AND WIFE.-On the prosecution of a husband for au assault committed ou his wife, she is not only competent, but may be compelled to testify against the husband. The public has an interest in her testimony, to the end that crime may be punished, which is distinct from any purely personal right of hers, and which she cannot waive. Upon considerations of this character, the law has

law of evidence extant," declares the rule to be "that in any criminal proceeding against the husband or wife, for any bodily injury or violence inflicted upou his or her wife or husband, such wife or husband is competent and compelled to testify." 7 Am. & Eng Enc. Law, 102. And so it has been expressly declared in the following well-considered cases: Turner v. State, 60 Miss. 351; Dumas v. State, 14 Tex. App. 465; Bramlette v. State, 21 id. 611. Moreover, the wife's competency being conceded, and her testimony being relevaut, it is not perceived that any legal wrong is done to the defendant by compelling her to testify. As was said in Turner v. State, supra: "If the proposition be [as is contended in this case] that the wife has only a privilege of testifying or not, as she may elect, it is clear that the appellant cannot assign for error the action of the court in compelling her to give testimony over her objection, for if the action of the court be error, it is the privilege of the witness, and not the legal right or immunity of the defendant, which is impaired. 1 Greenl. Ev., § 451; 2 Phil. Ev. 941; Rosc. N. P. Ev. 146; Reg. v. Kinglake, 11 Cox Crim. Cas. 499;" Bramlette v. State (Tex. App.), 2 S. W. Rep. 765. In State v. Neill, 6 Ala. 685, may be found expressions which seem to give importance to the wife's willinguess to testify in cases of this sort; and so in Cotton v. State, 62 Ala. 12, and Woods v. State, 76 id. 35, some basis for an argument opposed to our conclusion of the first point considered may be afforded, but in the first case the language used was a mere dictum of the court, employed casually and arguendo only; in the last two what was said had no reference to the competency of the wife to testify against her husband when an offense against her person is charged; and in all of them the declarations of the court were palpably made in view of or with reference to the principles which obtain in cases where the husband's rights are only collaterally involved, and of course where the element of violence toward the person of his wife is not the gravamen of the proceeding. There is nothing in any of these cases which militates against the power of the court to compel the wife to testify upon the trial of the husband on a charge of assault and battery committed upon her. Sup. Ct. Ala., Jau. 7, 1892. Johnson v. State. Opinion by McClellan, J.

HE

NOTES.

frequent appearance of pauper litigauts in the

House of Lords has called for some strong expresnoble law lords. The public are under the impression sions of opinion from the lord chancellor and other that the House of Lords provides a means by which the rich may oppress the poor. They know nothing of the reverse picture of the intolerable oppression by which the impecunious suitor may drag up to the ultimate tribunal an adversary however well or ill able to bear his own costs, which he will have to do in any event. A pauper litigant is generally found as appellant before the House of Lords when he has been hopelessly beaten in the courts below, and the game is always "heads I win, tails you lose," because if the pauper is successful he gets his costs, while if he loses of course he can pay none. The last victim was a solicitor, and he will have at least the cold consolation of reflecting that his case has called attention to an abuse of large dimensions in such a way as to insure a remedy being applied.—London Law Times.

CURRENT TOPICS.

G. TIEDEMAN, of the New York University Law School, publishes some remarks on "The Methods of Legal Education," in the Yale Law Journal for March, which are well worth reading. We observe that the learned

PROF. CHRISTOPversity Law

professor is inclined to tangle himself up in the useless discussion about the origin of law, in which so much valuable time has been squandered and so many fair quires of paper have been spoiled. At first, he says, he was inclined to adhere to Bentham's theory that the judges make the law, but he continues:

"When I look deeper into the origin of the law, and satisfied myself that all law, so far as it constituted a living rule of civil conduct, whether it takes the form of statute or of judicial decision, is but au expression of the popular sense of right through the popular agents, the legislator or the judge, as the case may be - then a new light was thrown upon what I was inclined to pronounce an unwarrantable fiction, and I believed all the more firmly that neither the judge nor the legislator makes living law, but only declares that to be the law which has been forced upon them, whether consciously or unconsciously, by the pressure of the popular sense of right, that popular sense of right being itself but the resultant of the social forces which are at play in every organized society."

Now we undertake to say that there is very little law which is the resultant of the popular sense of right, but that most of it is the resultant of the eclectic sense of right in the Legislatures and judges. The popular sense is that common law is not common sense no dictum is more current than that, The great body of our common law originated in ages when the people were ignorant and debased, and were generally incapable of understanding the laws which the magistrates pronounced for them. Even in this time of education and enlightenment the popular sense of right frequently is utterly at war with the judicial sense of right. It is the popular notion that if one murderously assails another, the latter may stand his ground and resist to extremity, but the judges tell him that he must run away if he can. It is the popular notion that if one seduces another's wife, the injured husband may lawfully kill him at sight, but the judges instruct the juries that such conduct is murder, and the juries invariably side with the people. Before the populace could read or write, the judges laid it down that if a wife killed her husband it was petty treason, and if a wife committed certain crimes in presence of her husband, she was not responsible because he was presumed to have coerced her. The former probably never popular among wives nor the latter among husbands. It is the popular notion that if a man owns a grain elevator he has a right to fix his own VOL. 45 - No. 17.

was

charges for the use of it, but the judges say not so, and that the Legislature may regulate his charges. It is the popular notion that a man ought not to lose his vote because of the blunder of an official, but the judges tell the people that this is an erroneous notion. It is the popular notion that a master ought to insure the care and fitness of all his servants and machinery, but this is not the law. true that so far from laws being the expression of So one might go on indefinitely. In fact, it seems the popular will they are generally in derogation If law were the expression

of

or restraint of it. of the popular will, and not the emanation of the law in the United States upon any given subject, magisterial sense, there would be but one kind of instead of many diverse kinds, for it would be folly to suppose that the popular sense of right could house which stands across the boundary line bedepend upon State boundaries. We know of a tween Vermont and Massachusetts. There was a time when the occupant could lawfully sell rum in Now what had the popular notion of right to do the Vermont end but not in the Massachusetts end. with those conflicting laws, and in what sense did they spring from the conscience or mind of that evasive tenant as a unit of the populace? How far does the Supreme Court of Vermont represent the popular idea of justice by its judgment in the O'Neil case, in which it sentences a citizen of New York, for sending intoxicating liquors C. O. D. to a citizen residing at Rutland, to about $7,000 fine, and in case of non-payment, to imprisonment for more than fifty-four years? -this in spite of the constitutional (popular) inhibition of cruel and unusual punishments. To our own reasoning powers, so incapable of metaphysics, there seems nothing more incomprehensible than the argument that the judges do not make all the common law, and have not always made it, without the slightest regard to and often in utter defiance of what the people thought about it, and generally in the absence of any popular thought on the subject.

On the exact subject of the best method of legal instruction, Prof. Tiedeman steers a middle course between case-law and text-book, or rather he circumnavigates them. He says:

"If I were called upon to establish a course of legal instruction, I would follow the German methods as nearly as the situation and public opinion in America would allow. I would make the course in the law fine the student to the study of the fundamental prinschool three years. During the first year I would conciples of the law with the aid of the most approved treatises, and without any resort to cases, except by the instructor, who would use them in the class-room for the purpose of illustrating the text. The second year would be in the main similar to the course of instruction of the first year, with a partial introduction of legal clinics and of the seminary methods. third year the instruction would largely consist of the In the study of cases and of practice and pleading. During the entire course in the law school I would place the ban upon the resort of the student to the law office. His clerkship in the law office should begin upon his graduation from the law school."