her will that in case either should die the share of the one dying should go to the survivors for life, and by the eleventh clause that, upon the death of said cousins, one-third of the real estate should go to the children of each of them, and that the share of a cousin dying without children should go to the children of the survivors. Held, that the time of the death of a cousin referred to in the tenth clause was not in the life-time of the testatrix, and that no division was intended until all the cousins should die, so that the devise was a restraint of alienation for a longer period than the continuance,of two lives in being at the death of the testatrix. The rule is well settled by authority and precedent that when there is a devise or bequest simpliciter to one person, and in case of his death to another, the contingency referred to is a death in the lifetime of the testator. So when there is a devise to A., and in case of his death without issue or without children then to B., the weight of authority is that the words refer to a death without issue in the life-time of the testator, and that the primary devisee surviving the testator takes an absolute estate in fee-simple. The words of contingency are substitutionary merely, and are intended to prevent a lapse in case the first devisee is not living at the death of the testator, and do not create an executory devise or a remainder over upon the death at any time of the first taker. But this rule has no application when the first devisee or legatee takes a life-estate, and is applied only when the prior gift is absolute and unrestricted. The reason assigned for the rule is that as death is the certain event, and time only is contingent, the words of contingency can only be satisfied by referring them to a death before some particular period, and none being mentioned the time referred to must be presumed to be the testator's own death. In re New York, L. & W. Ry. Co., 105 N. Y. 89; Vanderzee v. Slingerland, 103 id. 47. But this reason fails in the case of a life-estate, as in such case the presumption would be that the words of contingency referred to the event which would determine the life-estate. The rule is so stated in 2 Jarman on Wills (5th ed.), page 759. And many cases could be cited where the courts, having construed the prior estate to be less than an absolute fee, have held that the words of contingency referred to a death whenever it may happen. In re New York, L. & W. Ry. Co., supra; Buel v. Southwick, 70 N. Y. 581; Nellis v. Nellis, 99 id. 505. Moreover the construction contended for by the appellants is only given to the words when the context of the will affords no indication of an intent on the part of the testator other than that indicated by the words of absolute gift, followed by a gift over in case of the death of the first-named devisee. Vanderzee v. Slingerland, supra; In re New York, L. & W. Ry. Co., supra; Nellis v. Nellis, supra; O'Mahoney v. Burdett, L. R., 7 H. L. 388. The rule is an arbitrary one, and has often been said to rest more upon precedent than upon reason, and in Vanderzee v. Slingerland Judge Andrews said that “the tendency is to lay hold of slight circumstances in the will to vary the construction and to give effect to the language according to its natural import." We find ample evidence in the will before us that the testatrix intended by the tenth clause to refer to a death whenever it occurred, and not to a death before her own. Second Division, Oct. 6, 1891.

Fowler v. Ingersoll, et al. Opinion by Brown, J. 2 N. Y. Supp. 833, affirmed.

almost immediately. "Now, Sellers," said Judge Black, "there's a nice restaurant down the street here. Suppose you and I take a walk down to the river to get up an appetite, and about 4 o'clock we'll go to this restaurant and have a nice, quiet dinner all to ourselves." Mr. Sellers was willing, and the two lawyers started off on their walk. They went down to the river, up to State street, around the capitol grounds, through several other streets until Mr. Sellers began to get very hungry and suggested that it was about time for that dinner. The judge stopped with a puzzled expression on his face, and finally bringing his large right hand down on his knee with a whack, exclaimed: "By George, Sellers, that restaurant is in Baltimore."Philadelphia Record.

The following table gives the number of States, judicial districts, square miles and population included in each Federal circuit, as well as the number of cases docketed for the present term:

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to ignore. The shield which equity has thrown over her frailty and the obstructions to baron's power it has interposed, are withdrawn, and the young woman who has vowed at the altar to love, honor and obey' the despot, whose dominion your reform would destroy, holds her right without shield or obstruction in the utter impotence of her frailty to resist the superior power and arts of her forceful or adroit baron. Quasi agnum committere lupo ad devorandum is the motto of N a paper read by Mr. John Randolph Tucker, at this sham reform for married women. You propose

This sounds very old-fashioned and fantastic in the ears of States where the theory of equality of property rights has been in practice for from twenty to forty years. We have never heard of any abrogation of these laws in any community, nor of any modification of them except to broaden them. If marital dissension is what Mr. Tucker is afraid of, we should think there would be a great deal more under the old equity system, by which the husband cannot possibly get any thing, than under the new system by which he may possibly coax or bully the wife into surrendering something or every thing. Nor can we exactly follow Mr. Tucker in his glow

mony" in a single note- it requires at least two notes. Home will be apt to be the more harmonious and respectable where the wife is not regarded as an idiot in worldly matters, and where at least she has a voice as to what shall become of her own.

ory to his less gifted survivors. If Mr. Page had informed us that his hero drank, gambled and fought duels like a gentleman, we should not have doubted his accuracy; but we suspect that his idea of "old" is a young man's, and that such weaknesses are not so common as they were half a century agowhich is our idea of "old."

Our attention is called to the fact that in our recent remarks upon judicial pensions, no reference provision works. was made to the inequality with which the pension upon that defect in the law, but it is well to call We had previously remarked attention to it again. Our correspondent very forci

of admiration of "the moral beauty and excellence of that true community," in which the wife may be robbed or stripped by "unthrift or even miscon-bly says that the constitutional provision "enables one judge who has served a shorter term to obtain duct of her unworthy baron." None of those sentia pension for a greater number of years than a judge mental robber-barons for us, if you please! Those who has served a much longer term. I know of who like Mr. Tucker fear for the destruction of dothree ex-judges, who have served twenty-five years, mestic "harmony," are too apt to regard "harmony" and who have received only two years' pension, as the contentment of the husband rather than of while others, who have served for less, will, if they both husband and wife. There is no true "harlive long enough, receive pensions from seven to ten years." This is certainly a serious injustice, and if But we are inclining to the view that it would be the pension system is kept, should be remedied. better to do away with pensions altogether or restrict them to a small number of years, say four. And it might also be well to provide that no retiring judge should be at liberty to draw the pension if he returned to practice. Some of our retired judges have been enabled by reason of their former judgeships to earn great fees in the very courts which they had just left. This seems a little inconsistent with the pension theory, which is that the grant is made on account of a helpless old age.

It is our belief that under the new system, while marriage is not apparently less harmonious, woman has grown much more self-helpful, influential and

admirable than in the status which treated her as an inferior or a child.

At the same meeting, Mr. Thomas Nelson Page read a paper on "The Old Virginia Lawyer." We take it that the personage thus commemorated is an individual and not a type; otherwise we should be inclined rather to award the prize for correctness of portrayal to Mr. Page's inimitable characterizations of the southern darkey as he was "before the war," which have charmed the whole country. Certainly the old Virginia lawyer as here described is such a faultless and able monster as the world ne'er saw or has seen but once in a great while. Mr. Page seems to have a little higher idea of the married woman's capabilities than Mr. Tucker has, for this lawyer's wife was regarded by him "as the incarnation of all wisdom and virtue," and he "entrusted to her all his personal affairs, both temporal and spiritual. He could not have secured an abler administrator." We have said that Mr. Page's lawyer was faultless. This must be qualified. He would swear in an exigency, and he would use his clients'

moneys.

As Mr. Page says: "He sometimes even borrowed money from his clients; but it was done in a frank, open way, and always without the least idea of not repaying it. The case may be cited of one who in a suit, being asked what he did with his client's money which he had collected, replied: 'Put it in my bank, sir, to my credit, and drew on it at my own sweet will, as is customary among gentlemen of ample means and great expectations."" These are the amiable traits which endear his mem

We feel very much complimented by the Bancroft Company's sending us a prospectus of their forthcoming "San Francisco Blue Book and Pacific Coast Elite Directory," and soliciting us to We could not of subscribe for and advertise in it. course expect the social angel of the Pacific Coast to write our names in his book, as geographical considerations forbid it, but we are modest, like Abou Ben Adhem, and pray him then to write us as one of the Elite of the Hudson River Valley. We assume that all the Elite lawyers already take the ALBANY LAW JOURNAL, and therefore there can be no object in advertising it through the social medium in question.

Mr. James T. Ringgold, of the Baltimore bar, has written a work on "The Law of Sunday," which comprises all the law on the topic, but a considerable portion of which is given up to an able and adroit argument against the constitutionality of Sunday legislation, which is worthy of a careful reading and a deliberate review. We hope to be able to treat it as it deserves at some not very distant day. It is already evident that the author's argument is "a hard nut to crack," and deliberation is necessary to obviate the danger of cracking one's fingers.

NOTES OF CASES.

felt. It moves with incredible velocity and power. It carries the tones and inflections of the human

voice, or moves loaded cars, depending on the volume of the cure, in the hands of the physician, a current and the manner of its applicasoothing remedial agent, and in the hands of the law an instrument of execution swifter and surer than the headsman's axe. It may be too early to say just what it is. The scientists whose views the learned judge adopted may be right or wrong. We have no need to decide that question. Laws are written ordinarily in the language of the people, and not in that of science; and, if this case de

pended on the question on which it turned in the court below, we should be led by the findings of fact to a different conclusion of law from that which was there reached, and which held that this company was a manufacturing company. But we think the controlling question in this case is that of the sense in which the words, 'manufacturing companies' are used in the statute under consideration. It provides that the taxes laid on corporations by the revenue laws of the Commonwealth are repealed Now, if there were a class of corporations existing or abolished as to manufacturing corporations. at that date known by the name of manufacturing companies or corporations,' we must assume that the Legislature intended that class when it used the name by which the class had been known in previous legislation; and we need go no further intent in the act of 1885. The appellant is not than the statute-book to determine the legislative act of 1885, but we prefer to rest our judgment on within the exemption or immunity provided by the the definition of manufacturing corporations' which the Legislature has adopted and adhered to for more than half a century, rather than upon the meaning of the word 'manufacture' as it is given by lexicographers."

N Commonwealth v. Northern Electric Light and Potter Co., Supreme Court of Pennsylvania, October 5, 1891, it was held that a company generating electricity and selling it to customers for power, illuminating or heating purposes, is not a manufacturing company, within act of Pennsylvania, 1885, exempting the capital stock of manufacturing companies from taxation. The court said: "Notwithstanding these findings, which showed a creation, or bringing into being where it did not exist before,' of the electricity sold by the company, the learned judge held as matter of law that the process was not one of manufacture, because the product was not a material substance. Conceding that the thing sold was brought into being,' made-manufactured,' in the common use of that word — he denied that such making was in a legal sense a manufacture, because it did not appear affirmatively of what the mysterious product was made, and that it was material, as matter is now defined. This conclusion appears to have been drawn from the derivation and definition of the word 'manufacture,' and is forcibly presented in a learned opinion, in which lexicons and books of reference are largely drawn upon. It is very clear that the word originally meant 'hand-made.' It is equally clear, in the light of the definitions collated by the learned judge, that its meaning has expanded with the advance of the arts and sciences, until it has come to mean, as a verb, the making of any thing by human art or skill (Burrill Law Dict.), and as a noun, any thing made by art or skill (Rap. & L. Law Dict.). The mere appropriation of an article which is furnished by nature is not a manufacture. Thus the liberation of natural gas or oil from the earth, and its transportation to consumers, is not a manufacture; but the production of illuminating gas is. Gas-Light Co. v. Brooklyn, 89 N. Y. 409; also, Emerson v. Com., 108 Penn. St. 111. The collection, storage, preparation for market and transportation of ice is not a manufacture, but the production of ice by artificial means is. People v. Ice Co., 99 N. Y. 181. A telegraph company produces electricity by artificial means, but it uses it in its own business as a carrier of messages for the public; so does a telephone company. Both receive messages for carriage, and deliver them at the point of destination. They transport for their customers. This company whose charac-struck the plaintiff in the eye, destroying it. Deter we are considering sells the electricity it makes, or brings into being,' as a commodity. It provides the lamps or appliances for the use of its customers, by means of which the light is produced. It sells them the electricity, measures it as it is delivered, and is paid according to the quantity furnished. Whatever electricity may be, it seems to be absolutely within the power and under the control of the company that brings it into being. It is compelled by the process employed to come into being. It is secured, stored, poured out or liberated at will, Its manifestations are both seen and

In Chaddock v. Plummer, Supreme Court of Michigan, October 30, 1891, the defendant bought a toy air-gun for his son, nine years old, and some shot such as is used in air-guns; after the shot was expended the boy's mother bought shot for him without defendant's knowledge. Another boy found the gun standing within the storm-door, and asked defendant's wife for some shot, which she handed him. He then went out near a much-frequented street, and fired at a board. The shot glanced, and

fendant had cautioned his son to be careful, and not to lend the gun to other boys. Held, that the defendant was not liable. The court said: "The contention of the plaintiff is that the air-gun in question is a dangerous weapon, and that plaintiff did not use sufficient care in the keeping of it upon his premises; that (at any rate) the question whether he did use such care or not should have been submitted to the jury. But as the facts are the defendant cannot be held responsible for the injury to plaintiff, unless it was negligence, sufficient to support this action, in buying the gun and allowing

too many intervening causes without the act or
knowledge of the defendant, between the buying
of the gun and the injury, to hold the defendant
liable for its use in this case." To the same effect,
Haggerty v. Powers, 66 Cal. 368; S. C., 56 Am. Rep.
| 101.

In Hoyt v. Hoyt, Supreme Court of Pennsylvania, October 5, 1891, it was held that the fact that a manufacturer has adopted a particular style of bot

his son to use it. He cannot be considered negligent in any other respect. He cautioned his boy to be careful in its use, and no carelessness of his own son was shown at any time in his use of it. The defendant and his son were neither of them responsible in any way, except owning the gun, for the use of it by the Tabor boy. It was kept inside the house, for the storm-door was an inclosure. If it came into the hands of Tabor through the negligence of any one, it was the negligence of the wife, for which the defendant is not liable. This air-tle does not prevent a rival from using a bottle of gun may be a dangerous weapon in a certain sense. the same style, if the bottle is sold to the public The shot fired from it will not penetrate clothing, generally. The court said: "All monopolies are but it will put out the eye of a person, and will kill odious, and their maintenance in favor, even, of small birds and some smail animals. These guns inventors, is limited in duration. When a statutory are in common and every-day use by children; over term of protection is over, whatever is valuable in four hundred of them were sold in one season by the subject of the patent becomes, as does an unpatone dealer at Benton Harbor. But it is not more ented invention, a contribution to the public weldangerous in the hands of children than a bow and fare, and may be freely used as such. Competition arrow and many other toys. It would hardly be is essential to commerce, and, within legitimate good sense to hold that this air-gun is so obviously lines, should always be encouraged. The 'survival and intrinsically dangerous that it is negligence to of the fittest' is a law of trade no less than of the put it in the hands of a child nine years of age; and development of living organisms; and from the that such negligence would make the person so struggle which determines who and what is 'fittest' putting it in the hands of the child, responsible for come general development and progress. As a genthe act of another child, getting possession of it eral proposition, it may be said that one may imiwithout defendant's consent or knowledge. Even tate what is excellent in the processes and business if the gun had been left lying on the ground in the methods of his neighbor as freely and as safely as yard of the defendant, and the Tabor boy had he may imitate what is good in his moral character, picked it up outside the house, and used it, the de- as long as he infringes no right secured to him by fendant would not have been responsible for the statute, and does not fraudulently personate him, damage done by the boy. An axe is considered a or simulate his products. An inventor who secures dangerous weapon, but if one leaves an axe by his a patent for his device is protected in his exclusive wood-pile, and a child comes into the yard, picks it right during the period fixed by law. When that up, and injures another with it, is the owner of the period expires his exclusive right expires with it, axe liable for damage because he has not put this and thereafter he stands on no higher ground than deadly weapon under lock and key? And if it be any other citizen who may desire to use the thing or granted that this air-gun loaded is a dangerous combination covered by the patent. The rules apweapon, as is a gun loaded with powder and ball, plicable to trade-marks are quite different. A would this fact make the defendant liable? I think trade-mark may increase in value to its owners by not. Suppose a person, owning a shot-gun, should use, and the law could not put a time limit on the put the same unloaded within the storm-door of his owner's right to it any more than it could put a house, and a neighbor's boy, ten years of age, with- limit upon his right to use any other article of propout the knowledge or consent of the owner, should erty. A trade-mark is not an invention, It does pick up the gun, and obtain from the wife or some not relate to or affect processes of manufacture or other member of the household a loaded cartridge, mechanical combinations. It is a sign or mark by and take the gun out and discharge it, accidentally which the manufactured articles produced by one wounding some one, would the owner of the gun person, or firm, or maker are distinguishable from be responsible for the damage resulting to the in- those produced by rival manufacturers. It must be jured person? To so hold him responsible would distinctive, and indicate the personal, as distinnecessitate the keeping of unloaded firearms under guished from the geographical, origin of the article lock and key, with the key in the possession at all to which it is applied. Laughman's Appeal, 128 times of the owner. This is not a case of leaving a Penn. St. 1. Thus 'Sonman,' the name of a large torpedo or dynamite where it may be expected that children will find and play with it. loaded gun is harmless; a torpedo or dynamite is not, but is dangerous anywhere, and under all circumstances, to those not acquainted with the proper method of handling it, and liable to explode even in the hands of those who are expert in using it. In my opinion, it was not negligence per se for the defendant to buy this toy gun, and place it in the hands of his boy nine years of age; and there were

An un

tract of land, cannot be appropriated by one of several owners of land within the tract, to the exclusion of the other owners; nor 'Lackawanna Valley,' by one operator in that valley, to the exclusion of all others. But the trade-mark must relate to and distinguish the goods to which it is applied. For this reason, among others, the size or shape or mode of construction of a box, barrel, bottle or package, in which goods may be put, is not a trade-mark. If there is any new and useful