Editor of the Albany Law Journal:

Is not the decision of Justice Bockes in Adams v. McPartlin, 11 Abb. N. C., p. 369, to the effect that a junior incumbrancer may not make a prior incumbrancer in foreclosure a party defendant, and have the amount of such prior incumbrance liquidated and either paid or allowed to remain a lien on the property, rather strong law? See Thomas on Mort., p. 247, and cases cited. Also 16 Hun, 246, and cases cited.

The case of McReynolds v. Munns, 2 Keyes, 214, did not decide any thing whatever on the point in question. The only point decided there was that a certain order vacating a foreclosure judgment was not appealable. The opinion (which was not concurred in by the court) holds that a junior incumbrancer could not in the absence of any averments in his complaint in relation thereto, and without the consent of or notice to prior incumbrancers, take a judgment for the payment off of their liens. I think if I were the counsel for the plaintiff I would take the case higher.

77 66

Lawyer and Client; or the Trials and Triumphs of the Bar. Illustrated by scenes in the court room, etc, etc. By L. B. Proctor, author of "The Bench and Bar,' Lives of the New York Chancellors, "Eminent Lawyers and Statesmen, etc. New York: S. S. Peloubet & Co. 1882. Pp. xii and 324.

This is a very cleverly written collection of scenes and incidents that interested the profession in this State during the first half of the present century, with brief references to events and individuals in other parts of the country. Nearly all the actors in these reminiscences have passed away, but their lives are an important part of the history of their State and nation. Their struggles, their successes, their every-day habits, their sallies of wit, will always entertain and instruct their brethren at the bar, who we are sure will feel grateful to Mr. Proctor for the work he has done so well.

-

The

Co. v. The Gilbert (Metropolitan) Elevated Railroad Co., Littlefield v. Littlefield, Brackett v. Harvey.Judgment affirmed - The People v. Magone.court having been informed that the use of steam motors upon the defendant's road has been discoutinued, the decision of this appeal is suspended until the defendant shall resume, or threaten to resume, the use of some motor on its road, other than horse power-Suydem v. Broadway Railroad Co.- Order of General Term affirmed, with costs in favor of the receiver against the appellant In re Attorney-General v. Continental Life Insurance Co.- Order affirmed, with costs · Blumenthal v. Anderson-Hall, The People v. Globe Mutual Life Insurance Co.(claim of Mix), In re Attorney-General V. Guardian Mutual Life Insurance Co., McKenna V. Edmunstone, In re Dissosway. Order of General Term affirmed, and judgment absolute ordered for the defendant, dismissing complaint with costs-O'Brien v. Jones. Appeal dismissed, with costs People ex rel. Cavanagh v. McAdam, justice, etc.- - Reargument ordered - Prouty v. Lake Shore & Michigan Southern Railroad Co.- Motion to change cause from preferred to general calendar. Granted, with $10 costs · Bank of Attica v. Metropolitan National Bank of New York. Motion to amend remittitur denied, without costs Heilman v. Lazarus. Motion to compel clerk of court below to certify return denied, with $10 costs - Husted v. Sweeney.Motion to strike cause from calendar denied, with $10 costs-Dodd v. Haggerty.- Motion to strike case from preferred calendar. Granted, without costsKelly v. Devlin; Mechanics' & Traders' Bank v. The Mayor, etc., of New York.- - Motion to advance cause. Denied, with $10 costs - Hatch v. Union Telegraph Company; Williams v. Western Union Telegraph Company. Motion for reargument denied, with $10 costs Walsh v. Walsh; In re Hood; Irving National Bank v. Adams.- Default opened upon condition that the appellant submit cases and points within ten days People v. Sawyer.

WE

NOTES.

E copy the following guide to pronunciation of reporters' names, from Soule & Bugbee's Legal Bibliography: Alderson, Aul der-sou; Aleyn, Al'len; Anstruther, An'struth-er; Barnardiston, Bar-nar-dis'ton; Beatty, Beet'ty; Beavan, Bev'an; Bellewe, Bel-lew'; Bevan, Bev'an; Bosanquet, Bo-san'kay; Brougham, Broom; Caldecott, Call'de-cot; Carpmael, Carp'male; Carthew, Car'thew: Cockburn, Co'burn; Colles, Col'les; Comberbach, Com'ber-back; Comyns, Cum'ins; Craig, Crayg; Curteis, Cur'tis; Deacon, Dee'con: De Gex, De Zhay'; Espinasse, Es'pi-nass; Finlason, Fin'la-son; Finnelly, Fin'nel-ly; Fortescue, For'tes-cu; Giffard,* Jif'fard; Gifford,* Gif'ford (G hard); Hardres, Har'dress; Jameson, Ja'mie-son; Keble, Kee'bl; Kelyng (J.), Kel'ing; Kelynge (W.), Kel'inge (g soft); Latouche, Lah-toosh'; Leigh, Lee; Lewin, Lu'in; Ley, Lay; Lutwyche, Lut'wich; Maclaen, Mac-lane'; Macnaghten, Mac-naw'ten; Macnamara, Mac-namar'ra; Macrory, Mac-ror'y; Malkin, Maul'kin; M'Cleland, Mac-clell'and; Mylne, Miln; Napier, Nay-peer'; Nevile, Neville, Nev'il; Payton, Pay'ton; Pollexfen, Pol'lex-fen; Romilly, Rom'il-ly; Saunders, Sahn'ders; Sausse, Sawss; Savile, Sav'il; Schoales, Sholes; Siderfin, Sid'er-fin; Simons, Si'mons; Swabey, Sway'by; Talbot, Taul'bot; Taunton, Tahn'ton; Tothill, Tot'hill; Tyrwhitt, Tir rit; Willes, Wil'less.

*The name of the reporter is pronounced with G soft; that of the vice-chancellor with G hard.

THE HE recent civil rights decision by the United States Supreme Court in the Tennessee case seems to have been quite inevitable. The question arose under the Supplementary Civil Rights Act of 1871, commonly called the "Kuklux" law. The object of the legislation in question was to assert the National authority in suppressing outrages on citizens in reconstructed States. It denounces penalties for the offense of conspiring or going in disguise "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State of Territory the equal protection of the laws." The Fourteenth Constitutional Amendment which this enactment was designed to effectuate, declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens," that no State shall"deprive any person of life, liberty or property without due process of law," and that no State shall "deny to any person within its jurisdiction the equal protection of the laws." It is clear that State legislative action, and not individual action, is aimed at and covered by this provision. In the case in question it was not alleged that the State of Tennessee had made or enforced any law abridging the privileges or immunities of citizens, that it had through any department of its government deprived any person of life, liberty or property without due process of law, or denied to any person the equal protection of the laws. On the contrary, it was assumed that the laws of Tennessee afforded all needed protection, but that the indicted persons had conspired to prevent certain citizens from enjoying the benefit of that protection. This statement would seem to make it evident that the statute in question was not warranted by the constitutional provision. The New York Times well sums up the result when it says: "The practical effect of the judicial interpretation of the Fourteenth Amendment is to leave to the States the doing of justice, and the enforcement of laws for the protection of rights within their borders. They cannot themselves make or enforce laws that abridge the privileges or immunities of citizens; they cannot by any exercise of their own authority or power deprive persons of life, liberty or property, and they cannot by constitutional provision, by legislative act, or by judicial proceeding deny the equal protection of the laws to any person, and yet they may permit, by failure or incapacity to act, the practical results which they are prohibited from working. The fact is that so long as we have State governments, within their field of action we cannot by National authority VOL. 27-No. 5.

It seems that the English have statutes regulating advertising in the city of London. One act provides

that "it shall not be lawful for any person to carry about on any carriage, or on horseback, or on foot, in any thoroughfare within the limits of this act, to the obstruction or annoyance of the inhabitants or passengers, any picture, placard, notice or advertisement, whether written, printed or painted upon, or posted or attached to any part of such carriage, or on any board or otherwise." Another provides that "no picture, print, board, placard or notice, except in such form and manner as may be approved of by the commissioners of police, shall by way of advertisement be carried or distributed in any street within the general limits of this act by any person riding in any vehicle." Under these provisions a recent conviction was had in the police court of London, of several persons, who accompanied by a band of music, drove about in a van, on which was a large placard, "never shop after five o'clock on Thursday.' This advice was intended in the interest of the

movement for "early closing" of the shops on Thursdays. We are a much more patient people. We suffer the steps of our houses to be littered up with hand-bills; we allow all sorts of advertisements to be thrust into our hands on the streets; we permit vendors of books, newspapers and candy on the railway trains to load us down and cover us up with their wares. It is true, however, that we are so esthetic that in this State we have by legislative enactment forbidden the defacement of natural scenery, bridges, fences, etc., by advertisements. So far as our experience shows nature is the only one who does not yield to a pecuniary inducement for a relaxation of the law.

The "intervenors" have received a hard blow in our Court of Appeals. It has been the practice that when a corporation went into the hands of a receiver, individual policy holders or stockholders would appear by counsel, ostensibly to protect their individual interests, and their counsel would claim fees to be paid out of the general fund, und this when it was the business of the receiver to look after all interests alike. A case was made up, and the intervenors were decided against by the General Term. An appeal was taken to the Court of Appeals, and that court has affirmed the decision of the court below, holding that if they had any claim at all it was against their clients only; that the receiver and his counsel looked after the interests of the policyholders generally. The effect of this decision will be to save large amounts of assets for the policyholders which have gone to intervening lawyers heretofore.

appeals with the old, to the disadvantage of the new. He says: "Save writs of error which could only be had upon grounds appearing on the face of the record (therefore not including matters arising at the trial, unless put upon the record by bill of exceptions-a course rarely taken), appeals were formerly not as of right, but only on leave granted by the courts appealed to. The course was for a party dissatisfied with the verdict (whether on the ground that the judge had improperly admitted or refused evidence, or had misdirected the jury on the law, or that the verdict was against the weight of the evidence), to move the court in in banco for a rule calling upon his opponent to show cause why the verdict should not be set aside, and a new trial had; and this rule was not granted unless the mover made out a prima facie case. Thus the party who had gained the verdict could not be harassed at the mere will or caprice of his defeated opponent. (Under the old practice the verdict was never set aside on the ground that it was against the evidence, unless the judge who tried the same was dissatisfied with it. With some judges and some juries, however, the finding of the jury is really the verdict of the judges. In this respect therefore the old practice was open to improvement.) And there was no appeal from the court in banco on the ground that the verdict was against the evidence. * ** But now a party, even though he has not the ghost of a case, may of his own mere will enter an appeal against any decision, whether on law or fact, and may drag his unhappy opponent from court to court up to the House of Lords. And in these appeals judges seem sometimes to take a pleasure in showing their acuteness in starting hypotheses, which, had they heard the evidence, they would see to be groundless, and instead of, as formerly, never setting aside a verdict as against evidence, unless satisfied that the jury had come to a wrong conclusion, the courts now proceed to re-try the cause, as it were, on the notes, and often order a new trial because, with their very imperfect means of judging of the evidence, as compared with the jury who heard the witnesses examined, they are not quite satisfied that the verdict was correct. Moreover appeals are now by way of rehearing, so that new matters may be introduced, and thus the cause be gone over afresh." A prominent judge writes us that he thinks these remarks "applicable to the state of things in this State." We have always been inclined to believe the supervisory power of appellate courts over verdicts wisely granted, especially for the reason stated by Mr. Hill in his last parenthesis. It seems to us now that setting aside a verdict because it is against the weight of evidence is comparatively rare. Hill thinks appeals should be only on leave, and not as matter of right. In this we cannot agree with him. If leave is granted, then the time of the court has been unnecessarily consumed. If not granted, not infrequently the decision is hasty. We believe in the policy of allowing appeals as of right, and in enforcing the almost dead letter of imposing damages for frivolous or vexatious appeals.

Mr.

6

In a very excellent recent address before the Law School of the University of Pennsylvania, the Hon. Craig Biddle, speaking of the constitutional privilege in that State of dispensing with jury trial by agreement in civil cases, remarked: "The Legislature, on the 22d of April, 1874, passed the act necessary to give this provision effect. That is now over eight years ago, and the total number of agreements filed since that time, in all the courts of this county, does not exceed twenty. If we exclude equity cases, mechanics' liens, judgment notes and divorce cases, there will probably be an average of about eight thousand cases a year to which this system would be applicable. So that in about sixty-four thousand cases, the litigants in twenty have availed themselves of this constitutional privilege. May we not say, then, that our people have thus indorsed, without qualification, the declaration of their fathers, as expressed in the Constitution of 1790, 'that trial by jury shall be as heretofore, and the right thereof remain inviolate.' Like the nobles of England in the reign of Henry III, when an innovation upon the common law was proposed una voce responderunt quod nolunt leges Anglia mutare.' In California they seem to have tried the experiment of dispensing with a jury, but how it has succeeded there I am not informed. In one case, which was carried up to the Supreme Court of California, and appears in their reports, Touchard v. Crow, 20 Cal. 150-163, their determination to have an imaginary jury, if not a real one, is ludicrously exhibited." In that case counsel requested the court to charge itself as a jury, and handed in certain instructions for that purpose. The court thereupon charged itself, addressing itself as "gentlemen of the jury," and instructing itself that if they found certain facts they should decide for the plaintiff, but otherwise for the defendants, and that they were not concluded by the statement of the court, but were at liberty to judge of the facts for themselves! So it seems that Mr. Gilbert was not so very absurd in making the Lord Chancellor in "Iolanthe," struggle for his own consent to marry one of the wards in chancery. This reminds us of "The Divided Jury" (of one) in Mr. Albert Mathews' "Bundle of Papers." Mr. Biddle's statistics show that the system of jury trial is not falling into disrepute in Pennsylvania.

NOTES OF CASES.

VERY timely decision is that in Faulkner v.

City of Aurora, Indiana Supreme Court, December, 1882, that a city is not liable for injuries received by a pedestrian from the sled of a person coasting on one of the streets. The complaint alleged that a certain steep street in the city of Aurora was occupied by large numbers of persons in sliding and coasting, which sport was carried on in the presence of its officers; that the city had prohibited by ordinance all persons from engaging in any sport on its streets that might be dangerous to life or property; that said coasting was danger

ous, and no efforts were made by the city to prohibit it, and that the appellant's son was struck by the sled of one of the coasters, and had his leg broken, etc. It was held by the court that the city was not liable, because of its failure to prohibit by ordinance coasting upon its streets. Nor for the failure of its officers to enforce the ordinance which it had adopted. That the city was not legally bound to abate the nuisance complained of, and that if the city were liable for the injury thus produced it would follow logically that it would be liable for all injuries caused by loafers lounging upon its streets, occurring in the presence of its officers, if it were known that such persons were accustomed to lounge on such streets. To the same effect, Schultz v. City of Milwaukee, 49 Wis. 254; S. C., 35 Am. Rep. 779; Calwell v. City of Boone, 51 Iowa, 697; S. C., 33 Am. Rep. 154; Steele v. City of Boston, 128 Mass. 583; S. C., 35 Am. Rep. 781, note. In the latter case the city had licensed coasting and prepared the paths therefor.

In Peniston v. Chicago, St. L., and N. O. R. R. Co., Supreme Court of Louisiana, May, 1882, 15 Rep. 87, it was held that railway companies carrying passengers over long journeys are bound to provide easy modes and to allow a reasonable time to their passengers to obtain food and necessary refreshments; to furnish safe and proper means of ingress and egress to and from trains to the eating stations, whether said eating houses be under the control of the railroad or a third person; to provide sufficient lights for the safety of their passengers going to or coming from meals had at night, and giving them correct information as to the exact location of their respective trains, when trains have been moved during the absence of the passengers at their meals, and that passengers receiving injuries for want of sufficient light and correct information of the whereabouts of their train on returning from the eating station are entitled to recover damages against the company. The court said: "It is well established in jurisprudence that railway companies are under the legal obligation to furnish safe and proper means of ingress and egress to and from trains, platforms, station approaches, etc., and it is well settled that any person injured, without fault on his part, by any dereliction of its duty in the premises by a railway company, can recover damages against the corporation for injuries thus received. Cooley on Torts, 605, 606, 642; Add. on Torts, & 245; Shearm. & Red. on Neg., 327, § 275. This principle has been applied in a case where a passenger, an old lady, was put out at her destination at a station where there was no light to guide her steps, and no employee of the company to show her the way out of the station grounds, and was injured in trying to go from the station to a friend's house by falling from the platform. Patten v. R. R. Co., 32 Wis. 528. Under the same rule a railway company was held responsible for injuries received by a passenger in walking from one of its trains to a transfer

boat by falling on a wharf on which there was not sufficient light. Beard v. R. Co., 48 Vt. 101. In the enforcement of the same rule a railway company was mulcted in damages in a case where a lady passenger, alighting from her train at her destination, and finding no safe and convenient platform leading to the highway, attempted to walk across three of the railroad tracks, and falling in a 'cattle-guard' filled with snow, was run over and killed by another train of said company. 13 Hun, 589; see, also, 56 Me. 244; 16 How. 469. The obligation of furnishing, by railway companies, safe and easy ingress and egress to and from their platforms has been extended so as to embrace cases of persons who were not passengers on their roads, but who came on business to their stations, and were injured by means of insufficient or defective platforms, such as a hackman who had transported passengers to a railroad depot." Tobin v. Portland, etc., R. Co., 59 Me. 183; see, also, Jamison v. R. Co., 56 Cal. 593; Low v. R. Co., 72 Me. 313; S. C., 39 Am. Rep. 331; Com. v. Boston and Maine Railroad, 129 Mass. 500; S. C., 37 Am. Rep. 382; Stewart v. International, etc., R. Co., 53 Tex. 289 S. C. 37 Am. 753.

For the first time we find "Mark Twain engaged in serious business, namely, a lawsuit. He sued Belford, Clark & Co., of Chicago, to restrain them from publishing a book written by another person under the assumed name of "Mark Twain.” The decision made by Judge Blodgett, in the United States Circuit Court, for the Northern District of Illinois, is given in the Chicago Legal News, of January 20th, and sustains a demurrer to the bill. The court, after showing that no question of infringement of copyright arises under the pleadings, remark: "The position assumed by the complainant in this bill is, that he has the exclusive right to the use of the nom de plume, or trade-maak of 'Mark Twain,' assumed by him, and that defendants can be enjoined by a court of equity from using such name without the complainant's consent or license. It does not seem to me that an author or writer has or can acquire any better or higher right in a nom de plume, or assumed name, than he has in his Christian or baptismal name. When a person enters the field of authorship he can secure to himself the exclusive right to his writings by a copyright under the laws of the United States. If he publishes any thing of which he is the author or compiler, either under his own proper name or an assumed name, without protecting it by copyright, it becomes public property, and any person who chooses to do so has the right to republish it, and to state the name of the author in such form in the book, either upon the title page or otherwise, as to show who was the writer or author thereof. * * * The bill rests then upon the single proposition that the complainant is entitled to invoke the aid of this court to prevent the defendants from using the complainant's assumed name of Mark Twain' in connection with the publication of sketches and writings which com