decisions in cases tried before the court or referee by victing. When however the prisoner admitted in her me in future. Yours respectfully, NEW YORK, Sept. 9, 1889. PHILIP L. WILSON. NEW BOOKS AND NEW EDITIONS. ABBOTT'S TRIAL BRIEF ON THE FACTS. Mr. Abbott, in his particular field of law writing, stands alone; and his works will always find a cordial reception to those members of the profession who are actively engaged in the practice of the law. The above is the third volume of "Briefs" that has appeared, and completes a consolidation into one systematic whole of such briefs as have stood the test of experience. The work will be found of great service in the trial of causes in any jurisdiction. IN NOTES. statement that she had placed a white powder in the Solicitors' Journal. Our regret at being obliged to once more recur to Donnelly is mitigated by the impression that the present recurrence is final, and that no more attention to him will be necessary. Readers of Shakespeariana will recall that the Rev. A. Nicholson, D. D., of Leamington, England, was sincere enough to give the Donnelly figures a careful analysis, as the result of which he stated that "by the arithmetical law of combinations, Mr. Donnelly's contrivance secures to the operator an almost incalculable number of chances (viz., 3,309,000 to 1) for picking up from the column any words required for the manufacture of stories." To this statement (respectful enough and calm enough one would suppose) Donnelly sent out a "reply in the vein he bas seen fit to recently adopt, of which Dr. Nicholson says: "I am surprised to find that, because I cannot accept his arithmetic, Mr. Donnelly assails me in terms of violent abuse" (Dr. Nicholson should not have been surprised), adding: "As Mr. Dounelly resorts at once to personal invectives, it would appear that reasons for the Cryptogram do not abound; and, as he does not impute to me ignorance of the working, but con N the course of the argument in the House of Lords of Lyell v. Kennedy, a case was mentioned which seemed to cause a gleam of intelligence to pass between Lord Selborne and Sir Horace Davey. It was a decision of Vice-Chancellor Malins in a case in which, when it came before him, he at once took a strong line against the plaintiff. Something was said of an opinion of counsel advising the action, whereupon the vicechancellor looked up with a smile and said: "I am curious to know who that counsel could be." The plain-scious fraud, it appears by Mr. Donnelly's account tiff's counsel proffered the opinion, and the vice-chancellor took it, protesting that he "should not like to injure the reputation of the young man who wrote it, and he would carefully cover the signature with a piece of paper, so as not to see his name." Said the counsel: "There is no objection to your honor reading or giving the counsel's name." The vice-chancellor proceeded to read the opinion, exposing its fallacies one by one in his humorous conversational way, and at the end of it be found the name of "Roundell Palmer," then lord chancellor. It was the last opinion he wrote before he accepted the Great Seal.-London Law Journal. Writing on the subject of "Prisoners as Witnesses" a few years ago, Mr. Justice Stephen remarked that "it may seem paradoxical to say so, but it is nevertheless true that the class of accused persons who will get least advantage from having their mouths opened are those who are entirely innocent of and unconnected with the crime of which they are charged-persous who have nothing to conceal and nothing to explain." It is rather remarkable that the learned judge should this week have presided at the trial of a case in which, not only did the prisoner get no advantage from, but it seems probable that conviction was due to, her mouth being opened. Down to the time of Mrs. Maybrick's statement, a verdict of "not guilty" did not seem improbable. It was not established beyond doubt that the deceased died of arsenical poisoning; the facts did not show beyond doubt that, even if he died from arsenic, Mrs. May brick administered it. There was no proof that she purchased arsenic, except in the fly-papers; there was the clearest evidence that the deceased had been in the habit of taking arsenic. There were doubtless many circumstances of the gravest suspicion, and there was the statement of the prisoner to her paramour that her husband was "sick unto death," made at a time when the doctors had not suggested that he was dangerously ill. But there was probably doubt enough to prevent a jury from con * * that I at least understand his Cryptogram." But Dr. The Albany Law Journal. ALBANY, SEPTEMBER 21, 1889. CURRENT TOPICS. ticket, good from April to November. The respect in which it differed from the ordinary ticket was in a description of Mr. Miller. It was a non-transferable arrangement, and in order to make certain of the identity of the owner it had written in the last coupon a full description of the purchaser. Mr. Miller got along well going out to New Mexico. He went there in April. He bought a broncho and a cowboy's outfit, and for six months he breathed the free air of the plains. Every day he gained UDGE MCADAM of New York makes the follow-flesh. He let his beard and hair grow, and gained JUD ing suggestions in reference to divorces, which substantially meet with our approval: "Apart from a constitutional amendment authorizing a national law making marriage and divorce uniform throughout the States (a measure I favor), I know of no better plan of reforming abuses in existing laws than to hear all applications for divorce in open court. In this way the judge is brought face to face with the attorneys, the parties and their witnesses, and every thing is done in the light of day. Fraud is made successful only by concealment. The divorce lawyer advertises that he will procure divorces without publicity,' and the present practice of the courts makes this possible. This leads to the numerous frauds that make the divorce lawyer successful. The evidence taken in the referee's private office is, with the decree, carefully sealed by the court, and fraud is closed to every avenue leading to discovery. These vicious rules must be amended, and this Star Chamber' mode of procedure must cease. There is no intelligent reason for its continuance. The law should be amended by requiring every decree of divorce to be recorded in the office of the secretary of state at Albany before it becomes effective. This is important in view of the fact that a divorce may be granted by the courts in any of the sixty counties of the State, and it is at present a difficult and expensive task to ascertain whether a person has been divorced or not. The marriage relation is too sacred and important to be dissolved without publicity. Every marriage must be recorded in the county where it is performed, and the record is open at all times to public inspection, but after the parties have entered upon the marital relation all traces of its subsequent dissolution are sealed and effectually hidden by the rules of court under the guise of morality. The practice is contrary to public policy, and is not warranted by any rule of morals.” one hundred pounds in flesh. On his return to his home the conductor read the description of Miller, which said he was slim and wore only a moustache. Then he looked at Miller's two hundred pounds of flesh and 'sized up' his full beard of six months' growth, and the long brown hair which dropped in curls to Mr. Miller's stout shoulders. You ain't the man that's described here,' said the conductor, and put Mr. Miller off the train." There is room for a good deal of argument here, which no doubt the attorneys will improve. Was there not an implied warranty on Miller's part to live up to the description? Had he a right to impose on the company the burden of carrying a hundred weight more of passenger than the ticket called for? Was not the contract simply to carry a person of that precise description? How can a written description of the subject of a bill of lading be changed by parol? And so on. We feel sure that Mr. Bourke Cochran would make a good deal of the railroad's side of the case - as much, for example, as he is making of his patentee's side of the electrical-execution problem. A very important undertaking has been well accomplished in "Notes on the Revised Statutes of the United States, and the subsequent legislation of Congress," by John M. Gould and George F. Tucker, aided by a number of subordinate writers. This great work cites nearly thirty thousand decisions. The references are under each section, and consist in very concise and clear statements of the decisions. The work has been many years in preparation, and must have involved a vast amount of drudgery. The result is a book which is quite indispensable to every practitioner in the Federal courts, and highly useful to all other lawyers. The volume is a sumptuous specimen of book-making, and is nearly as big, if not so authoritative, as a family Bible. The Tribune records an account of a sort of JekyllHyde case in a court of law: "The case is one in There has been a quite excited inquiry recently in which John H. Miller, a resident of Michigan, seeks England whether a man can have his case tried by $10,000 damages from the Atlantic and Pacific Rail-only one lawyer, or whether the bondage of the way Company for being thrown from one of its trains public to the profession is like their slavery to the while on his way north from Albuquerque, New plumber, who never appears without his " 'helper." Mexico. Mr. Miller left his home in Michigan to We extract the following instructive paragraph take a south-western trip. He started in the spring, on this important subject from the London Law buying a through ticket to Albuquerque and return. Journal: "The opinion attributed to the attorneyHe calculated to spend the summer in the south-general that a queen's counsel may appear for a west and to return in the fall. There are not many plaintiff without a junior in a case tried without a tickets like his sold. It was a first-class limited jury, must not be supposed to extend to cases in VOL. 40-No. 12. which there is a jury. The reason why there must be a junior in jury cases is that the pleadings must be opened to the jury, while in cases without a jury the leader begins and opens the case, pace Charles Dickens, who made Mr. Phunky, and not Serjeant Buzfuz, open the case, not from ignorance, but in design for a joke. 'Cessante ratione cessat et ipsa lex,' is good etiquette as well as law." Our wits may have waxed Boeotian in the country air, but it seems to us that Dickens, according to the writer's own description of the practice, was not making a joke in having Phunky open the case. In jury cases there must be a junior to open; the case in "Pickwick" was a jury case; Phunky, the junior, opened it. Where's the joke? willfully and unlawfully open, carry on and conduct for money a certain banking-game played with a certain device, to-wit, a wheel marked with numbers and colors, said game being then and there a banking game, commonly known as the 'wheel of fortune,' contrary to the form, force and effect of the statute in such cases made and provided, and against the peace and dignity of the State of California.' The section of the Code under which the prosecution was instituted provides: 'Every person who deals, plays or carries on, opens or causes to be opened, or who conducts, either as owner or employee, whether for hire or not, any game of faro, monte, roulette, lansquenet, rouge et noire, rondo, tan, fan-tan, stud-horse poker, seven and a half, twenty-one, or any banking or percent The Century for September has an excellent full-age game played with cards, dice or any device, for page portrait on wood of Chief Justice Marshall, after a crayon drawn by Saint-Mémin in 1808. It is in profile, and thus lacks the charm and power of Marshall's brilliant eyes, which were very dark gray, approaching black, we believe. Mr. Justice Bradley contributes an accompanying short memoir, very justly concluding as follows: "With a few modifications, superinduced by the somewhat differing views on two or three points of his great successor, and aside from the new questions growing out of the late civil war and the recent constitutional amendments, the decisions made since Marshall's time have been little more than the application of the principles established by him and his venerated associates. It must be confessed that the business of the Supreme Court at that period allowed more time for elaborate argument and judicial deliberation than at present. It has increased since Marshall's time more than sevenfold. Against forty-two cases reported in January term, 1835, more than three hundred were reported in October term, 1887. Another advantage enjoyed by the old court was the selectness and distinguished ability of its bar. Dexter, Webster, Pinckney, Ogden, Wood, Binney, Sergeant, Ingersoll, Taney, Livingston, and many others of almost equal fame are frequently named as counsel. The system of railroads and the consequent ease of communication with all parts of the country now enable the local counsel to argue their own cases, and have had the effect of lessening the elevated and eclectic character of the arguments made before the Supreme Court of the United States." Since Marshall's day the calling of the lawyer has degenerated from a profession into a trade or business, and greed of money has obscured the talents of its followers. money, checks, credit or any other representative of name or nature * * * thorized agent or employee " of defendant, within the meaning of the statute making railroad companies liable for damages by fires. The court said: "We have examined the numerous cases referred to by the counsel, and while there are expressions in many of them, and decisions which seem to sustain respondents' view of this contract, yet we think at last each case must rest on its own facts, with the conceded doctrine overhanging all the cases that the question of liability depends on the fact whether the company is doing the work, or whether it is being done by an independent contractor. Here we think in this case that Mr. Hardin was an independent contractor. It is said however that there are certain exceptions to the rule above, under one of which the case may be brought. * * * 'poker,' ,'' because it was not specified by name as one of the devices prohibited by the statute. State v. Munn, 2 Or. 238. The appellant relies upon this case, but it is not in point. Our Code does specify a banking game by name. It may be that there are games known by different names which are included under the term 'banking game,' but this does not, in our judgment, render the statute so indefinite as to be inoperative. Such a construction would greatly facilitate the discovery of new games or old ones under assumed names, and embarrass the law-making power in a laudable effort to suppress a habit so pernicious and hurtful to society. But the case of State v. Mann, supra, was in effect overruled by the same court in a later decision, in which a statute very similar to our own was held to be sufficiently definite. State v. Gitt Lee, 6 Or. 426. In that case the court said: 'We are of the opinion that it is not necessary in an indictment for a violation of this statute to state the name of the game, or the name of the device by which it is played. There is much force in the suggestion of the district attorney, that if it were essential, either in a statute defining the offense of gambling, or in an indictment for the violation of such statute, to give the name of the game or of the device by which it is played, it would always be easy to evade the statute by changing the name of either the device or the game. We think that part of section 1 which prohibits any banking or any other game played with cards, dice or any other device, whether the same be played for money, checks, credits, or any other representative of value,' is sufficiently definite, and renders unlawful all games not previously enumerated in that section, and which are played for 'money, checks, credits, or any other representative of value,' with 'cards, dice or other device.'' See also to the same effect, In re Lee Tong, 18 Fed. Rep. 253; Miller v. State, 48 Ala. 122; Smith v. State, 17❘ning, supra, the numerous cases there cited in the Tex. 191. We think the section of the Code under consideration is sufficiently definite in this respect, and that it includes the offense attempted to be charged in this case." In Rogers v. Florence R. Co., South Carolina Supreme Court, July 22, 1889, defendant made a contract with H., a railroad contractor, for the grading of a section of its road, by the terms of which H. was to employ and pay the laborers, and do the work subject to the approval of defendant's engineer; to increase the force of laborers whenever required by the engineer; to discharge any laborer who might be offensive to defendant. If he failed to complete the work within the time stipulated, defendant was authorized to employ laborers and complete it at his expense. He agreed to remove or burn up all trees, logs and other perishable material along the line of the road, and to be responsible for damages as between himself and defendant. Defendant's assistant engineer was to personally direct the execution of the work. Held, that H. was an independent contractor, and not an "au The second exception claimed to the general rule above is that the employer is liable where he does not release the entire charge of the work to the contractor, but retains supervision of its construction.' This is nothing more than saying that where the contractor is not an independent contractor, but is under the control of his employer, the employer is liable. In other words, instead of its being an exception to the admitted doctrine above, it seems to be nothing more than stating it in different phraseology; or rather, while recognizing the doctrine it states a certain condition where the employee would not be an independent contractor, towit, where the employer had not released the entire charge of the work to him, etc. In Railroad Co. v. Hanning, 15 Wall. 649, this matter is fully discussed, both in the opinion by Mr. Justice Hunt, and in a note attached; and without incumbering this opinion with a discussion of the character of the control reserved, which will hold the employer responsible, we may say that no such control was reserved here. See the case of Railroad Co. v. Han opinion, and the notes. The reserved control, to have that effect, must be both general and special, and not only as to what work shall be done, but also how it shall be done. See Hughes v. Railroad Co., 15 Am. & Eng. R. Cas. 101, and notes attached. See also Lesher v. Navigation Co., 56 Am. Dec. 495; Bailey v. Mayor, etc., 38 id. 669; Hilliard v. Richardson, 63 id. 743, and the notes. Nice shades exist, and many of the cases are hard to reconcile, but all seem to recognize the common rule that liability is to be determined upon the fact whether the party doing the work is an independent contractor or an agent and servant of the company, which must be ascertained from the facts of each case." EXTRADITION-- INTERNATIONAL-SUBSE IN RE REINITZ.* The implied limitation in extradition treaties, that the per son extradited shall not be arrested for any offense ex *39 Fed. Rep. 204. cept that for which he was extradited until the lapse of a reasonable time after the termination of the extradition proceedings, to enable him to return to the country from which be was brought, and the provisions of the Revised Statutes of the United States, section 5275, giving the president power to secure the accused against lawless violence until his final discharge, and for a reasonable time thereafter, apply to a subsequent arrest in a civil action, as well as to an arrest for crime. An extradited person arrested in a civil action before he has had time, after his acquittal of the offense for which he was extradited, to return to the place from which he was brought, is in custody in violation of the Constitution or of a law or treaty of the United States," within the meaning of the Revised Statutes of the United States, sections 752, 753, relating to writs of habeas corpus in the Federal courts, though the prisoner is held under process from a State court. HABEAS CORPUS. Benno Loewey, for relator. Salomon, Dulon & Sutro, for respondent. BROWN, J. The prisoner, upon the demand of this government, was extradited from Queenstown, Ireland, in April, 1889, under the treaty of 1842, upon a charge of forgery. He was tried upon that charge in this city before a court and jury, and was acquitted on June 19. Within a few minutes thereafter, as he was leaving the court-house, he was arrested by the sheriff of this county upon an order of arrest granted by the Supreme Court of the State on April 22 in a civil action for the recovery of $4,220.90, moneys of the plaintiff alleged to have been wrongfully converted by the prisoner to his own use. Writs of habeas corpus and certiorari from this court were thereupon obtained under section 752 of the Revised Statutes. Upon the returns made to the writs by the sheriff, including copies of all the papers in the civil action, there is no controversy as to the above facts, and the only question is whether the prisoner after his acquittal was liable to arrest before the expiration of a reasonable time for his return to Ireland, from which be was extradited. A preliminary objection is made that this court has no jurisdiction to issue a writ of habeas corpus in such a case. But sections 752 and 753 of the United States Revised Statutes provide for writs of habeas corpus to inquire into the "cause of restraint of liberty" where the prisoner is "in custody in violation of the Constitution or of a law or treaty of the United States." The petition presents facts sufficient to raise an inquiry upon that subject, and if a case under that clause of section 753 is made out, habeas corpus from the Federal courts is an appropriate remedy, though the prisoner be held under process of the State courts. Ex parte Royall, 117 U. S. 241; United States v. Rauscher, 119 id. 407, 431; Wildenhus' Case, 120 id. 1. The preliminary objection therefore presents no different question from that on the merits of the application. Until the decision in the Case of Rauscher, supra, in December, 1886, wide differences of opinion had prevailed in both the Federal and State courts whether a prisoner extradited under a treaty for one offense could be tried for another. The Supreme Court, in the Case of Rauscher, upon full consideration and a review of the leading authorities, has definitely settled that question, holding that an extradited prisoner cannot be arrested or tried for any offense except that for which he was extradited, until the termination of the extradition proceedings and the lapse of a reasonable time thereafter, to enable him to return to the country from which he was brought. The Case of Rauscher however, like nearly all the other reported cases on this subject, was a case of arrest and trial on a criminal charge. The only reported case to which I have been referred of a prisoner extradited from a foreign country and arrested in a civil suit is that of Adriance v. Lagrave, 1 Hun, 689; 59 N. Y. 110; S. C., 17 Am. Rep. 317, which arose in 1874, and does not essentially differ from the present case. The order of arrest was there set aside at the General Term, but was upheld in the Court of Appeals. The Supreme Court, in the Case of Rauscher, referred to the Lagrave Case, and while alluding to the difference between an arrest on a criminal charge and an arrest in a civil suit incidental to the collection of a debt, withheld any expression of opinion as to the legality of an arrest in a civil suit under such circumstances. The question to be now determined is whether there is any difference in the principles applicable that should lead to a different result in the case of an arrest in a civil suit. The main difference of opinion has been as to the construction to be put upon extradition treaties; whether the surrender of the prisoner is to be deemed a surrender for a particular purpose only, with the implication that he is not to be restrained of his liberty for any other cause, and whether, if so, the surrendering government alone can take any advantage of such a limitation; or whether the surrender, when made upon compliance with the preliminary conditions of the treaty, becomes an absolute surrender and without any such implied limitation. The latter was the view of a majority of the Court of Appeals in the Case of Lagrave, while the opposite view was maintained at the General Term. The decision of the Court of Appeals however was not based upon any grounds peculiar to an arrest in a civil suit, but upon grounds applicable alike to a civil and criminal arrest, without distinction. As those grounds are disapproved by the Supreme Court in the Case of Rauscher, and the right of criminal arrest denied, the Lagrave Case, as an authority for a civil arrest, fails also. The opinion in the Supreme Court, treating the subject in the broadest manner, upholds in its general scope the views of Daniels, J., at the General Term in the Lagrave Case; and it re-enforces them by its construction of sections 5270, 5272 and 5275 of the Revised Statutes, which are declared to be supplementary to the extradition treaties, and to enforce their implied limitations. The right of asylum is a principle of public law, recognized by all sovereignties. No concession by a sur. render of a prisoner in abridgment of this right is made, except for grave offenses, and under careful restrictions that exclude minor misdemeanors, most political offenses, and, much more, mere claims for the collection of debts. Though the implied restrictions of the treaty are for the most part spoken of by the Supreme Court in reference to a criminal arrest, since that was the question before the court, yet there are many passages in the opinion that in principle embrace equally arrests in civil suits. At page 420, 119 U. S, it is said: "It is therefore very clear that * * * it was not intended that this treaty should be used for any other purpose than to secure the trial of the person extradited for one of the offenses enumerated in the treaty." Again, at page 422, 119 U. S.: "As this right of transfer, the right to demand it, the obligation to grant it, the proceedings under which it takes place, all show that it is for a limited and defined purpose that the transfer is made, it is impossible to conceive of the exercise of jurisdiction in such a case for any other purpose than that mentioned in the treaty, and ascertained by the proceedings under which the party is extradited, without an implication of fraud upon the rights of the party extradited, and of bad faith to the country which pemitted his extradi tion." A civil arrest is clearly as incompatible with such limitations as an arrest on a criminal charge. So just |