The two decisions cannot stand together. One is directly opposed to the other, and still the General Term of the First Department has planted itself on both sides of this question, the eminent presiding justice, Davis, concurring in both decisions. If the later decision is correct, then a defeudant who has information from which he believes the allegations of a complaint are false, but has no positive knowledge on the subject, is in a very embarrassing position. He cannot, Judge Daniels says, deny on information and belief. If he denies that he has any knowledge or information sufficient to form a belief as to the truth of the allegations of the complaint and swears to his answer, he commits perjury. If he de. nies unqualifiedly, and it should turn out that the information which he believes to be true is in fact false, he is liable to be convicted of perjury, under section 524. Judge Daniels says in his opinion, speaking of the denial on information and belief in that case: "It to see. (the defendant) might very well have had the requisite knowledge or information to form a belief that all the allegations contained in the complaint were true consistently with the answer as it was served in the action" (p. 144). Exactly how this can be, it is difficult If the defendant was informed and believed that the allegations in the complaint were false, as the verified answer stated in that case, such information and belief were hardly consistent with the defendant's having knowledge or information sufficient to form a belief that the allegations were true. It would seem to the ordinary unjudicial mind that a man having information which led him to believe that a complaint was true, could not consistently swear that he was informed and believed that it was false. The decision in 21 Hun, 439, seems clearly to be right; otherwise the provision in section 524, speaking of the allegations or denials in a verified pleading, that "unless they (the allegations, or denials) are therein stated to be made upon the information and belief of the party, it must be regarded for all purposes, including a criminal prosecution, as having been made upon the knowledge of the person verifying the pleading," would be entirely inoperative in regard to denials. The language of that section makes it clear, as Judge Barrett says in 21 Hun, that where a defendant has knowledge or information sufficient to form a belief as to the allegations in the complaint, and such allegations are not within his personal knowledge, he is bound upon his peril to deny upon information and belief." ALBANY, Feb. 10, 1885. H. P. S.-Since writing the above, I have noticed that a motion for a re-argument in the Pratt Manufacturing Co. case was made and denied, as appears at p. 544 of 33 Hun. The court there attempts, but it seems to me without success, to distinguish the case before it from Brotherton v. Downey. The cases of Swinburne v. Stockwell, 58 How. Pr. 312, and Powers v. R., W. & O. R. Co., 3 Hun, 285, are cited as sustaining its decision. The case in 58 How. was a Special Term case; that in 3 Hun was under the old Code, and is no authority as to the construction of the Code of Civil Procedure. The court say that section 500 permits no such form of pleading. But why not? True, it does not in so many words say either that the "denials," or the new matter," therein authorized may be stated on information and belief. Neither does section 481, which provides what a complaint shall contain, say any thing about "information and belief." Section 500 does not provide that the denials shall not be made on information and belief, any more than it prohibits new matter to be thus alleged. Indeed the permission to make allegations on information and belief at all is not anywhere expressly given, but it is implied from the provisions as to verification, which apply to "denials," as well as to "allegations." NEW BOOKS AND NEW EDITIONS. ARISTOTLE'S POLITICS. The Politics of Aristotle, translated, with an analysis and critical notes by J. G C. Waldron, M A., Fellow of King's College, Cambridge, and Master of Dulwich Col. lege. MacMillan & Co., London. A work so celebrated as Aristotle's Politics was eutitled to the most judicious and skillful treatment at the hands of the translator and editor. It is hardly necessary to say that in this edition this celebrated work receives the care and scholarship it is fairly entitled to. No library of political philosophy is complete without Aristotle's Politics and Plato's Laws, for they mark a phase of human thought at its infancy. It is almost useless to read Vico, Montesquieu, Hobbes, or Bodin unless we know what Aristotle and Plato have said in a spirit not far removed from those of later political philosophers. In this edition of Aristotle we have the entire scheme of the work in the shape of a preliminary analysis of great value to the student, and so far as we have been able to compare the text of the original, a translation of singular fidelity, yet indicating an elegant and liberal scholarship free from servility. NOTES. TWO of the leading lawyers of our State and Nation were honored in the city of New York last week by receptions. Mr. Evarts was entertained by the Union League Club, of which he is the president, by a reception in honor of his election to the United States Senate, an office which he richly deserves and which he will greatly adorn. Mr. David Dudley Field, on the occasion of his 80th birthday anniversary, was entertained by his brother, Mr. Cyrus W. Field, and a crowd of friends testified to their admiration and good will. The following verses were addressed to Mr. Field by Mr. F. J. Parmenter, of Troy, who is famil iar to our readers as a poet: Except in years, thou art not old; There's scarce a wrinkle on thy brow, You must have followed Nature's code Where you so much have wrought. To aid your task, vast mental powers, Comparing with your works your years, You're twice that age to-day. Men born for such achievement high Are cast in Nature's choicest mould, Some frost may round your temples cling, Now, when Time's rapid wheel shall bring The Albany Law Journal. ALBANY, FEBRUARY 28, 1885. CURRENT TOPICS. HE current number of The Century magazine is two excellent portraits of two of the most eminent of deceased American lawyers, if not on account of the accompanying comments. The frontispiece of the number is a portrait of Daniel Webster, with his hat on, a most striking and admirable likeness. The article accompanying it, by Stephen M. Allen, is of the slenderest interest, and contains very little of novelty. There is rather too much gush in it; it is hardly fair to represent Webster as a "Colossus" of morality, although he was an intellectual giant. Mr. Lodge gives a fair estimate of him in his memoir in the "American Statesmen " series. There is more of human nature and of the Webster nature in the editor's note to the paper than in the paper itself. Webster was a grand figure, and perhaps Mr. Allen is right in saying that "he stood alone in his massiveness among twentyfive million of people." Our country has produced greater lawyers - not a greater constitutional lawyer; Hamilton was a greater genius in statecraft, yet he lacked the divine faculty of oratory; but Webster was a great statesman, and one of the half dozen greatest orators of all history, and his published works remain to attest his supremacy, and will live as long for Americans as Burke's for Englishmen. Webster was a man of colossal talents and colossal vices and weaknesses. The writer ot these lines heard him on Bunker Hill in 1843-most precious remembrance of his youth! and he saw him once afterward, when dissipation and disappointment had marked that magnificent face, and the weakness of mortality had asserted itself in the grandest of men. It is difficult for his contemporaries who lived under the spell of his greatness to remember his defects, but at the rate at which history is going the next generation of school boys will not believe that the greatest of Americans had any faults. The other portrait is of Charles O'Conor, with a paper of considerable interest by John Bigelow. Mr. Bigelow conveys a good deal of information that will be new to his readers. It is touching to read the record of O'Conor's early poverty and struggles, of his generosity and beneficence, and of his chivalric devotion to his early benefactor. These are tender traits in a character usually considered cold and stern. But Mr. Bigelow strikes too high a strain when he says at the outset and at the close: "The death of Mr. O'Conor has left a large vacancy in the American bar, larger perhaps than was ever created before by the death of any single individual;" "I once heard Governor TilVOL. 31-No. 9. race." den say of him that he thought he had a more precise knowledge of the science of jurisprudence than any other person living of the English speaking Mr. O'Conor was undoubtedly a very busy lawyer, but he was no genius and he has not been sorely missed. His death created no such vacancy as the death of Webster and Choate, for example. There are a score of lawyers to-day just as competent as O'Conor, but where are the successors of those great men? Mr. Bigelow discloses an unpleasant credulity in O'Conor, who it seems could believe that Chancellor Walworth decided all Burr's causes against him from personal pique. As Mr. Bigelow says, there is too much vanity in the Chancellor's address on assuming office, but the man must have been prejudiced who could believe Aaron Burr as against Reuben H. Walworth. It is amusing to read the following: "He said that as far as he knew, he as much as any one was entitled to the credit of originating the reform of our system of procedure in 1847-8, the abolition of forms of action, and the abolition of the Court of Chancery. He said he made the plea for those reforms in the Constitutional Convention of 1846. He would on no account, he said, claim for himself, or have any one claim for him the credit of these, but he was quite willing to be instrumental in defeating the pretensions of any other person to their authorship. The line of remark had been suggested by the news then just received that Governor Cornell had vetoed the Field-Throop Civil Code - an act on the governor's part with which he repeatedly expressed the greatest satisfaction. Recurring to this subject of codification later, he said he doubted whether our civil law could be codified successfully; he inclined to think it could not, and proceeded to place his doubts upon grounds substantially the same as those which have been more recently set forth in Mr. James C.Carter's exhaustive and masterly discussion of that subject." The italicized words show the true dog in the manger spirit. The reference to his former associate in business, Mr. Carter, is significant. We had supposed however that Mr. Carter's views were original with Mr. Carter, but it now seems not impossible that he absorbed them from association with O'Conor. Perhaps O'Conor wanted to get rid of chancery on account of his dislike for the chancellor. But to claim him, or for him to claim himself as the originator, or even as a champion of practice codification, is ridiculous. Our old readers will not have forgotten his celebrated letter on code pleading, and his avowal of his utter inability to "state the facts" in any case, and his fling at "the pleadings which come from the office of the chief codifier himself." But even according to O'Conor, as stated in Mr. Bigelow's paper, the old system of pleading was at least as bad as the new, for he said "he never knew a case in which the parties had been pleading for an issue a year that he could not find a defect of sufficient gravity to set their proceedings aside." Really, when Webster is pronounced a Colossus of morality, and O'Conor the originator and champion of codification of practice, Two distinguished British lawyers have just died Of Lord O'Hagan there is appreciative remark in our current London letter. Of Sir Robert Phillimore the London Law Journal says: "With the death of Sir Robert Phillimore probably disappears the last of the civilian lawyers. They were distinguished, with notable exceptions, like Lord Stowell, rather by learning than capacity, by subtlety in argument rather than depth of insight. For the future, the law which they practiced will less and less possess a special class of practitioner devoted to it alone, but will be taken up as occasion requires by the ordinary practitioner who may have turned his attention in that direction in spare moments. This is not a subject of regret, as special lawyers and special courts have a tendency to narrowness; and it would be a step in the right direction if the probate, divorce and admiralty division were merged in the Queen's Bench, or at all events, if divorce were distributed in turn among the Queen's Bench judges. Sir Robert Phillimore represented the transition period between the old school and the new. His name will be remembered at once as the last of the admiralty judges, and as the introducer of the modern system of trial in ecclesiastical We know Doctor Phillimore mainly by his long warfare with the Ritualists, and his par causes." ticular tussle with Chief Justice Cockburn. Some busy fellow, who has not the courage to sign any thing more than his initials, writes us as follows: "I have just had time to look at your number of February 14th. In it I find the following, speaking of the scrap-book of Judge Folger: 'The editor feels greatly distinguished by being made the recipient of this precious legacy, and when he has done with it and with all other earthly affairs, will deliver it to our Court of Appeals for preservation among its archives.' Is the Court of Appeals' an earthly affair, or not? How, after done with all earthly affairs, will you deliver it?" This is a sample of the letters which an editor gets. Is it any wonder his waste-basket is so full? The first question is of course too absurd to need As to the last, we answer that we shall deliver the book to the Court of Appeals by will, but we should never think of employing such a critic to draw the will. an answer. Mr. Culver, librarian of the Chicago Law Institute, writes us: "Referring to your article on Lawyers Tools in No. 5 of the current volume of your esteemed journal, we send you to-day a copy of our catalogue and the three supplements, which will probably show you that this institution of the west contains almost everything on Roman law, general jurisprudence and international law that is written in the English language." We have received the catalogues, and they go far to bear out the librarian's assertion. Having been personally in the library we can testify to its excellence, and to the good method in which it is arranged and the good order in which it is kept. It is one of the most convenient law libraries in this country. the subject of text books, and there is a good deal A Vermont lawyer thus frees his mind to us on of justice in what he says: "Will you inform me what work on damages you consider the best for practical use? I have Sedgwick, but the text does not state what the law is upon a given subject. The notes are full of all kinds of decisions and after two hours' consultation with the books no point is gained. I am disgusted with such compilations for elementary books. This book is only one of many at the three volume work, probably by the number of vol. present day. I see, by the name only, that there is a umes, a compilation "thorough and complete" of all trash and law ever written or enunciated by judges upon the subject, and for a practitioner how many days would it take to find the law upon the case in hand, if at all? If a man is capable of making a book, let him write in the text and tell what the law is and then cite authorities to sustain it. A book of 700 pages can hold all that is necessary upon the subject. Jones' Laws of Bailments of 1796 make books full of "exhaustive research." There is a good pattern and guide for those editors who is one other among many others I wish to speak of, Story on Agency. Many half pages are given in Latin. If it is an English book and for English educated people to read, in Heaven's name why go back into an old dead language to give Americans an elementary treatise? Much more reason for incorporating into such books the French language; either would be a fault." IN NOTES OF CASES. N Coup v. Wabash, St. L. & P. Ry. Co., Michigan Supreme Court, January 28, 1885, 22 N.W. Rep. 215, it was held that a railroad company that contracts with a circus proprietor as a hirer, and not as a common carrier, to furnish men and motive power to transport his circus and menagerie in special cars owned by him, to be operated under the management and control of the proprietor, but to run according to the rules, regulations and time-tables of the company, from a point designated to certain other points, at greatly reduced rates, with the privilege of stopping at places and times stated to give exhibitions, is not liable as a common carrier, and may stipulate for exemption from responsibility for damages caused by the negligence of its servants while in this special employment. The court said: "The duty to receive cars of other persons, when existing, is usually fixed by the railroad laws, and not by the common law. But it is not incumbent on companies, in their duty as common carriers, to move such cars except in their own routine. They are not obliged to accept and run them at all times and seasons, and not in the ordinary course of business. The contract before us involves very few things ordinarily undertaken by carriers. The trains were to be made up entirely of cars which belonged to plaintiff, and which the defendant neither loaded nor prepared, and into the arrangement of which, and the stowing and placing of their contents, defendant had no power to meddle. The cars contained horses which were entirely under control of plaintiff, and which under any circumstances may involve special risks. They contained an elephant, which might very easily involve difficulty, especially in case of accident. They contained wild animals, which defendant's men could not handle, and which might also become troublesome and dangerous. It has always been held that it is not incumbent on carriers to assume the burden and risks of such carriage. The trains were not to be run at the option of the defendant, but had short routes and special stoppages, and were to be run on some part of the road chiefly during the night. They were to wait over for exhibitions, and the times were fixed with reference to these exhibitions, and not to suit the defendant's convenience. There was also a divided authority, so that while defendant's men were to attend to the moving of the trains, they had nothing to do with loading and unloading cars, and had no right of access or regulation in the cars themselves. It cannot be claimed on any legal principle that plaintiff could, as a matter of right, call upon defendant to move his trains under such circumstances and on such conditions; and if he could not, then he could only do so on such terms as defendant saw fit to accept. It was perfectly legal and proper, for the greatly reduced price, and with the risks and trouble arising out of moving peculiar cars and peculiar contents, on special excursions and stoppages, to stipulate for exemption from responsibility for consequences which might follow from carelessness of their servants while in this special employment." Citing Mann v. White River Log and Booming Co., 46 Mich. 38; S. C., 41 Am. Rep. 141. In People v. Shriver, U. S. District Court, Illinois, Judge Treat has just decided upon the effect of a sale with delivery to a carrier, C. O. D. The defendant was indicted for carrying on the business of a retail liquor dealer at Fairfield, Illinois, without having paid the special United States tax there. He lived at Shawneetown, Illinois, where he had paid the special tax, and the goods were sent by express from Shawneetown to Fairfield, C. O. D. The court said: "In deciding this case it only seems to be necessary to consider the effect of the sales made by shipment from Shawneetown to Fairfield by express, C. O. D.,' to be delivered at Fairfield by the agent of the shipper to the consignee upon payment of the price. It is clear that the express agent at Fairfield was also the actual agent of the defendant in receiving and delivering the liquor shipped to Fairfield, and in collecting the money for it, for the defendant employed him for that purpose, and agreed to pay him ten per cent on the money collected by him, without reference to whether the liquor was shipped 'C. O. D.' or by tags attached to the jugs, with the price and address marked thereon. Certainly then, as to all the packages shipped 'C. O. D.,' the ownership and possession of the liquor remained in the defendant after reaching the hands of his agent in Fairfield, just as completely as before it left his store in Shawneetown, and the sale did not take place until the defendant, by his agent, received the money at Fairfield, and delivered the liquor there to the purchaser. This would be true, too, even if the Fairfield express agent had not been specially emploved as the defendant's agent in the handling of this liquor, for in the case of liquor shipped by the defendant to Fairfield by express, 'C. O. D.,' the liquor is received by the express company at Shawneetown as the agent of the seller, and not as the agent of the buyer, and on its reaching Fairfield it is there held by the company, as the agent of the seller, until the consignee comes and pays the money, and then the company, as the agent of the seller, delivers the liquor to the purchaser. In such case the possession of the express company is the possession of the seller, and generally the right of property remains in the seller until the payment of the price. An order from a person in Fairfield to the defendant at Shawneetown for two gallons of liquor, to be shipped to Fairfield 'C. O. D.,' is a mere offer by the person sending such order to purchase two gallons of liquor from the defendant, and pay him for it when he delivers it to him at Fairfield, and a shipment by the defendant according to such order, is practically the same as if the defendant had himself taken two gallons of liquor from his store in Shawneetown, carried it in person to Fairfield, and there delivered it to the purchaser, and received the price of it. It would be different if the order from Fairfield to the defendant was a simple order to ship two gallons of liquor by express to the person ordering, whether snch order was accompanied by the money or not. The moment the liquor under such an order was delivered to the express company at Shawneetown it would become the property of the person ordering, and the possession of the express company at Shawneetown would be the possession of the purchaser the sale would be a sale at Shawneetown - and if it were lost or destroyed in transit the loss would fall upon the purchaser. But in the case at bar the shipping of the liquor to Fairfield, C. O. D., the defendant made no sale at Shawneetown; the right of property remained in himself, and the right of possession, as well as the actual possession, remained in him through his agent. Had it been lost or destroyed in transit the loss would have fallen upon himself. He simply acted upon the request of the purchaser, and sent the liquor to Fairfield by his own agent, and there effected a sale by receiving the money and delivering the liquor. In the case of Pilgreen v. State, 71 Ala. 368, cited by defendant's counsel, the distinction between absolute and conditional sales seems to have been overlooked." In Miller v. Ruble, 15 W. N. Cas. 431, Pennsylvania Supreme Court, Nov., 1884, it was held that signing by the grantor is essential to the validity of a deed. The deed in question recited six grantors, and had six seals, but was signed by only four of the described grantors. The court said: "It is true at an early day in England signing was not considered essentially necessary to the validity of a deed. It is not stated as one of the things necessarily incident to a deed at common-law. Co. Litt. T. 1, C. 5, Sec. 40, 35b. A due sealing thereof was deemed a sufficient execution. This however was by reason of a very general inability to read or write. 1 Reeves Hist. of Eng. Law, 184, in note. In 1 Blackstone's Com. 305, it is said to be requisite that the party whose deed it is should seal, and now in most cases, I apprehend, should sign it also. He proceeds to state that under Saxon rule seals were not of much use in England. Their method, for such as could write, was to subscribe their names, and whether they could write or not to affix the sign of the cross. On the conquest by the Normans they introduced waxen seals only, instead of the English method of writing their names and signing the sign of the cross. These seals however generally had specific devices to distinguish them from each other. The statute of 29 Charles II, and the first section of our act of March 21, 1772, indicated a necessity that all transfers of land should be put in writing, and be signed by the parties making the same. This was deemed necessary for the prevention of frauds and perjuries. Our act makes no reference to a seal for the purpose therein mentioned, but requires the writing to be signed. It was however held more than one hundred years ago that the signing of a deed was a material part of the execution thereof, and that the seal had become a mere form, and a written or ink seal, as it was called, was good. McDill v. McDill, 1 Dall. 64. The sufficiency of such a form of seal, when the deed is signed by the maker, was affirmed in Long v. Ramsay, 1 S. & R. 72. It is true in Maul v. Weaver, 7 Barr. 329, Mr. Chief Justice Gibson did say that he did not entirely concur in what was said in those cases, that the signing of a deed was the material part of its execution, yet he admitted it to be the most powerful evidence of the joint or separate ensealing thereof. In that case however the question was whether covenant could be maintained against the grantee in a deed when he had neither signed nor sealed it, but it concluded "in witness whereof the said parties have hereunto interchangeably set their hands and seals the day and year first above written,' and was signed and sealed by the grantor alone. In Liggett v. Long, 7 Harris, 499, a treasurer's deed was held sufficiently executed where he had omitted to write his signature near the printed impression of a seal, but had put it on the deed, to a receipt for the taxes and costs, and for the bond, for the surplus purchase-money, and had also acknowledged the deed in open court, which acknowledgment was entered on the records of the court, and duly certified on the deed. Cases may undoubtedly be found in which judges of this court have cited English authorities to prove that at common law, irrespective of statutes, signature was not essential to a deed. Hoffman v. Bell, 11 P. F. S. 444, cited by counsel for plaintiff in error, is one of them. That case however was not ruled on the validity of a deed sealed and not signed, but on the fact that the evidence failed to prove that any deed had been delivered or executed. The great industry and careful search of counsel have not resulted in his being able to cite a case since McDill v. McDill, in which it was held by this court, on a direct presentation of the question, that a deed professing to convey land was sufficiently executed without any signature of the vendor. On the contrary, in Watson v. Jones, 4 Norris, 117; McDill v. McDill is cited approvingly by Mr. Justice Gordon. The recognition of any rule which dispenses with the necessity of the signature of the grantor would be fraught with great mischief. Aided by a pliant justice of the peace, or by a false personation before an honest one, it would provide a convenient way to rob a man of his land without the trouble and danger of forging his signature." sistant librarian of the New York Law Institute Library, directly impugning some of our statements in a former issue, in regard to the defects of that library. We had fully intended to compliment Mr. Winters upon those strong points of the Institute Library which we deemed largely due to his intelligent interest; in this we referred more especially to case-law, and to the post-Revolutionary statute law of the various States of the United States. Our statement in regard to the bad condition of our colonial laws, not affecting that library more than all others, is not challenged, and we presume is conceded to have been accurate, and accurate it certainly was. Mr. Winters however does distinctly challenge our statement that the literary material, used by Story and Wheaton, in their great commentaries, did not exist in the Institute Library, and if we understand him aright he says it does so exist. The issue is a plain and simple one, and in so far as it is consistent with a very brief outlay of time we propose to make good our assertion, although those who inconsiderately deny the statements of others are not justly entitled to be furnished with evidence. No doubt the Institute Library is a great library: It represents care, intelligence, and a cer |