is four calendar months; and to March 19, 4 months and 19 days.

By the second statute (1 R. S. 773, § 9) for the purpose of calculating interest, a month (by force of first statute a calendar month) shall be considered the twelfth part of a year * * * and interest for any number of days less than a (calendar) mouth, shall be estimated by the proportion which such number of days shall bear to thirty. It would seem then that the only correct and legal method for Inquirer to compute his sum" in interest by is to reckon interest for a year, and for the time supposed, take fourtwelfths plus nineteen-thirtieths of one-twelfth of it. The time supposed from October 25 to March 19 (no intercalated day intervening) would by the same rule be 4 months and 22 days. If our early answer helps Inquirer we are gratified; only next time "give us something a little harder."

66

ELMIRA, N. Y., April 11, 1885.

PRO TEM.

A very useful little pocket manual containing the rules and calendar practice of the Court of Appeals of the State of New York, and the United States Supreme Court; also the rules for the admission of attorneys and counsellors at law, and other useful information in relation to the courts, has been compiled and published by Thomas W. Stevens, attendant upon the Court of Appeals, in a neat form, selling at fifty cents per copy. The book is well printed and neatly bound, and for completeness and accuracy the book is unequaled.

All orders addressed to Thomas W. Stevens, Albany, N. Y.

COURT OF APPEALS DECISIONS.

THE following decisions were handed down Tues

day, April 14, 1885:

Order granting new trial affirmed, and judgment absolute entered against the defendant on the stipulation, with costs-Edward Ellsworth, executor, etc., respondent, v. St. Louis, Alton & Terre Haute R. Co., appellant.- -Order of county judge and of Supreme Court at General Term reversed as to the judgment debtor, with costs-James A. Buchanan, respondent, v. L. Victor Hunt, appellant.-Judgment reversed, new trial granted, costs to abide the event-Richard Burke, administrator, respondent, v. Silas H. Witherbee and others, appellants; Robert R. Westover, executor, respondent, v. Ætna Life Ins. Co., appellant.Judgment affirmed with costs-Maria J. Myres, exec'x, appellant, v. Mutual Life Ins. Co., judgment affirmed, and judgment absolute for defendant on stipulation, with costs; Alice J. Tiers, appellant, v. Alex. H. Tiers, executor, respondent; Malinda Mangan, administratrix, appellant, v. City of Brooklyn, respondent; Chas. G. Alvord, administrator, appellant, v. Syracuse Savings Bank, impleaded, respondent; Stephen Lee and another, respondent, v. Lewis A. Stegman, sheriff, appellant; Randolph Burt, respondent, v. Hugh J. Jewett, receiver, appellant; John F. Peppard, v. Albert Daggett, sheriff; Minerva J. Dudley, administratrix, appellant, v. N. Y., L. E. & W. Railroad, respondent; Wm. H. Ellis, administrator, etc., respondent, v. N. Y., L. E. & W. Railroad, appellant; Isaac I. Cole, general assignee, appellant, v. Germania Fire Ins. Co., respondent; Mary C. Langley, respondent, v. Richard Wadsworth, executor, appellant; Cyrus H. McCormick, jr., executor, respondent, v. Pennsylvania Cen

tral Railroad, appellant; Frank A. Miner, administrator, etc., respondent, v. City of Buffalo, appellant; Joseph Audrade and others, administrators, appellants, v. Samuel M. Cohen, administrator, respondent; People ex rel. Joel W. Mason, appellant, v. John McClave, respondent; Elizabeth J. Graham, executrix, appellant, v. Lewis H. Meyer, respondent; In re Settlement of account of Martin H. Yates, executor; Peter J. Ferris, appellant, v. Roswell R. Burrows, executor, respondent; Henry S. Dermott, executor, appellant, v. State, respondent; Susan A. Wheeler, administratrix, respondent, v. Delaware & Hudson Canal Company, appellant.-Appeal dismissed without costs-Ansonia Brass & Copper Co., appellant, v. Wm. C. Connor and others, executors, respondent; George H. Converse, by guardian, appellant, v. Artemas B. Walker, respondent.Order of General Term reversed, judg ment of Special Term affirmed, with costs, payable out of the funds in the hands of the executors - - Edgar Williams and others, executors, respondents, v. Laura R. Freeman and another, appellants; Edm. M. Freeman and others, respondents.-Judgment of General Term modified by striking out provisions relating to the "brick-house" property, and restoring as to that the judgment of the Special Term, and by changing the option for two years for one of six months, with permission during that period to apply to the Supreme Court for leave to deal with the tax titles or protect them from destruction, and as so modified affirmed, without costs to either party in this court-Jefferson Jackson, executor, respondent, v. Benjamin Andrews and others, appellants.- -On appeal of plaintiff; judg ment of General Term affirmed with costs. On defendant's appeal, judgment of General Term reversed, new trial granted, costs to abide the event-Daniel R. Lyddy, executor. v. Selah Chamberlain, respondent.

-Judgment affirmed, without costs to either party on this appeal-George Hyland and another, administrators, appellauts, v. Bernard Baxter and others, respondents.- -Order affirmed-Petition of the N. Y., L. E. & W. R. Co. lands of steamboat company.Order of General Term reversed, that of Special Term affirmed, with costs-Henry D. Kuight, respondent, v. N. Y., L. E. & W. R. Co., appellant.-Judgment affirmed and judgment absolute ordered against defendant, with costs-Mary L. Peck, respondent, v. William Vandemark, executor, appellant.-Judgment of General Term affirming judgment of trial court affirmed, with costs-People ex rel. Edward T. Wood, appellant, v. E. Henry Lacome, respondent.--Judgment reversed and complaint dismissed, with costs-Elisha Carpenter, executor, etc., respondent, etc., v. N. Y., L. E. & W. Railroad, appellant.-Judgment affirmed and judgment absolute ordered against the plaintiffs, with costs-Sarah H. Peck, executrix, appellant, v. Andrew J. Peck, respondent.-Judgment of General Term, so far as it reversed the decree of surrogate, reversed and decree of surrogate affirmed, with costs to the appellants against the respondents, Mr. and Mrs. Stimson, In the Supreme Court and in this court. Dennis v. Stimson, executor, and others, respondents, v. Frederick C. Vrooman and others, appellants.Judgment modified without prejudice to the rights of any party in any subsequent proceeding to determine rights of Lucinda Comstock, whether upon an accounting before the surrogate, or otherwise, and as so modified affirmed, with costs, to be paid by the appellants, Bolton and Scriber, to the respondent, Gray-Ezra Caulkins, respondent, v. Danforth D. Bolton and others, administrators, appellants.-Order of General Term affirmed and judgment absolute ordered against the defendant on the stipulation, with costsHenry D. Babcock, assignee, respondent, v. George R. Read, appellant.—Appeal dismissed-People, appellant, v. Charles E. Poucher, respondent.

We give place with pleasure to Mr. Cowen's elaborate essay against the Code in another column. We are always ready to give our antagonists a hearing, to show them that we are not afraid of them, if for no other reason. If we are not afraid of Mr. Cowen we certainly need not be afraid of any body. His communication forcibly demonstrates how little the greatest wit of the New York bar can find to say against the Code. The passage of the Code will increase the number of law reports, and subsequent codifiers will tinker with it - this is the substance of Mr. Cowen's argument. We have never denied that the enactment of the Code will temporarily increase the number of law reports. But it will not do so to the same extent as the enactment of the Code of Procedure, because that inaugurated an entirely new and strange system, while this will simply enact the law as now settled. Then again, in considering the number of law reports, two things must always be borne in mind; a new system is not responsible for the vast number of unnecessary and unauthorized reports spawned by the booksellers, and the enormous increase of litigation in our time will necessarily account for a considerable increase. We thank Mr. Cowen for his the stock argument of duller wits and ask him - not that we expect an answer is it not about time to re-enact the statute in language that shall tell what it means, as the sum of all the constructive judicial legislation upon it? As to subsequent codifiers, sufficient unto

reference to the Statute of Frauds

the day is the evil thereof. We must do right, although others may do wrong. But it is quite possible - nay, altogether certain, that revisions of any Code will be demanded and needed. Whatever may occur in this way, we may be sure that the law makers will not be changing the law every day, as the judges are now doing.

But after all, Mr. Cowen and all the rest in this State are mere theorists. Testimony as to the practical working of the Code is much more valuable than the most ingenious theories. This Code is substantially the law of California, and has been for several years, and here is what ex-Chief Justice Wallace, of that State, says of it: "I think the Civil Code the most important and beneficial piece of legislation that has ever been enacted in California. It has effected more for our people than all other legislation taken together since the foundation of the State. I have never seen an unfavorable criticism of it which was in my judgment well founded. I believe that while at first there was some inclination in our profession to hesitate about the propriety of its adoption, our bench and bar

are now, with remarkably few exceptions, unanimous in its commendation."

IN

NOTES OF CASES.

[N City of Rochester v. Close, 35 Hun, 208, it was held that a city charter authorizing ordinances "to regulate the ringing of bells and the crying of goods, and other commodities for sale at auction or otherwise, and to prevent disturbing noises in the streets," does not authorize an ordinance forbidding all sales of watches, jewelry, silver and silverplated ware, diamonds, pearls, and other jewelers' goods by auction after sunset of any day. The court said: "We think it is manifest from a careful reading of this statute that taken together it was intended to authorize the common council to pass such ordinances relating to the matters embraced therein as would insure the peace and quiet of the public, and prevent such noises and disturbances in the streets of the city as would tend to destroy the same. It has been, and is an almost universal custom to employ persons known as criers to announce sales of property at auction, such crier going about the streets ringing a bell for the purpose of attracting attention, and then making proc lamation of the place where, and of the kind of goods or property to be sold at auction. Webster defines the word cry as follows: To make oral and public proclamation of, to notify or advertise by outcry, especially things lost or found, goods to be sold, etc., public advertisements by outery, proclamation, as by hawkers of their wares.' The statute authorizes the council to regulate the 'ringing of bells, and the crying (not selling) of goods and

other commodities for sale at auction or otherwise, and public proclamation, by outery, and it is to that is, the advertising of any sale of goods by oral this manner of advertising a sale that the statute refers, and to regulate which it confers authority upon the common council. It will be observed that the statute authorizes the council to regulate the crying of goods and other commodities for sale in any other manner than at auction, which, if the sale is authorized to be made the subject of regulation, would extend to every sale made at retail over the counter in the ordinary course of business. It will not be contended that the statute would apply in such a case, or confer any authority upon council to in any manner regulate such a sale, yet the language of the statute includes such a sale as completely as a sale at auction. Should a merchant adopt the plan of advertising his goods for sale by oral and public proclamation by outcry, such manner of advertising could be regulated by ordinance of the common council. This was the authority intended to be conferred by the Legislature in passing the statute under consideration, and the language employed being apt for that purpose, it cannot be extended to embrace other subjects not within the legislative intent. The ordinance in

the

question was doubtless passed for the purpose of protecting the public from imposition in the purchase of a class of goods, the quality of which cannot well be determined by artificial light, and for that reason every intendment should be indulged in support of its validity, but the statute, which it is claimed confers the only authority upon the council for its passage, is in derogation of the common law, and must be strictly construed."

In Kennedy v. New York Cent., etc., R. Co., 35 Hun, 187, it was held that a widow is entitled to the services of her minor child. The court said: "Whatever notion may have previously been entertained upon this subject, that question has lately been answered in the affirmative by a series of cases which must be deemed to settle it in this State. In Gray v. Durland, 50 Barb. 100, 211, the plaintiff, a widow, sued for the seduction of her minor child. It appeared that the daughter was of the age of sixteen years; that at the time of the seduction she lived at the defendant's house as a domes

tic and servant, receiving her wages and using them for her own support. The sole question pre

sented in the case was whether the mother of the minor was entitled to her services. This appears from the opinion of Miller, J., delivering the opinion of the court, and by the opinion of Hogeboom, J., dissenting. The decision was that the mother, as such, had the right to maintain the action as the natural guardian of the minor, as the person bound to maintain and support her, and as the parent who is entitled to her services upon the death of her father. The case of Gray v. Durland was followed in Simpson v. Buck, 5 Lans. 337, which was an action by the mother to recover for the services of her minor son while in the employ of defendant. The only question presented was whether the mother was entitled to the services. The court below held that she was not, and judgment went against her. Upon appeal the General Term reversed the judgment, saying that Gray v. Durland was put upon the ground stated above, and was decisive of the question. The same point was again presented in Furman v. Van Sise, 56 N. Y. 435; S. C., 15 Am. Rep. 441. In that, as in the former case, the daughter at the time of the seduction was not in the actual service of the mother, and the case turned upon the same question presented here, whether the mother being a widow was entitled to the service of her minor child. Judge Grover, delivering the opinion of the court, says that the law imposes upon the father the duty of providing for and maintaining the infant offspring; but after the death of the father the same law casts this duty solely upon the mother who must, if of sufficient ability, maintain, educate and take care of her infant children. As the result of this obligation, he says she is entitled to the custody and control of such children; succeeding in this respect not only to the obligations and duties primarily resting upon the father during life, but

also to his right of custody and control, and to the services of the children. In this case, as in Gray v. Durland, there was strong dissent, so that it is clear that the decision was made upon full consideration of both sides of the question, not only at the argument, but in consultation. These cases are cited by Gilbert, J., in Certwell v. Hoyt, 6 Hun, 575, 577, as deciding that the widowed mother is entitled to the services of the minor child. We regard the rule as now firmly settled in this State upon the authority of the cases above cited." To the same effect, Hammond v. Corbett, 50 N. H. 501; S. C., 9 Am. Rep. 288; Matthewson v. Perry, 37 Conn. 435; S. C., 9 Am. Rep. 339.

RULES AS TO THE PRIVILEGES OF WIT

NESSES. V.

RULE. Where a witness refuses to answer a question on any of the grounds mentioned in the preceding rules, the court is bound by his refusal, (a) unless the grounds of his privilege being before him, the judge can see that the witness is mistaken concerning his liability as a matter of law (1) (b).

ILLUSTRATIONS. (A.)

posses

1. A party is asked whether he has in his sion any deeds or writings relating to the lands in dispute. He replies that he has, but that they relate exclusively to his own title to the lands, and do not show any title in the opposite party. He cannot be compelled to disclose their contents or to describe them (2).

In case 1 it was said: "The course of administration of the law in this country has always been never to compel a witness to answer a question which has a tendency to criminate himself. This is

(1) In R. v. Garbett, 3 C. & K. 474; 1 Den. C. C. 236 (1847), which was considered by all the judges, it was laid down that If a witness claims the protection of the court on the ground that his answer would tend to criminate him, and there appears reasonable ground to believe that it would do so, he is not compellable to answer. In New York it has been held that the judge should explain to the witness what acts amount to a crime or subject him to a penalty, and what not. Close v. Olney, 1 Denio, 320 (1845). The question of privilege is for the court, not the jury. Phelin v. Kenderdine, 20 Penn. St. 363 (1853); Floyd v. State, 7 Tex. 215 (1851). In some of the

English cases it seems to be laid down that the witness must satisfy the court that the effect of his answer will be to criminate himself, before he will be excused from answering. Short v. Mercer, 3 Mac. & G. 212 (1851); Parkhurst v. Lowten, 2 Swanst. 203; Chambers v. Thompson, 4 Brown Ch. 433. When he places himself upon his privilege he will be protected, unless the court can see from the circumstances of the case that he is in error; that it is a mere pretext on the part of the witness to avoid answering, and that his answer cannot, from the nature of things, criminate him. It must be manifest however that in many cases it will be impossible for the court to anticipate what effect the answer may have, and whenever they cannot see that he will not be criminated, the privilege will be recognized and protected." Janvrin v. Scammon, 29 N. H. 290 (1854).

(2) Adams v. Lloyd, 3 H. & N. 351 (1858).

considered so sound a principle that the right of a plaintiff or defendant in a civil suit is taken away by it, however important the testimony may be, even though it might establish his title to an estate or interest ever so large. Doubts have arisen as to the extent to which the privilege may be carried, and whether there are any limits to the protection of a witness. The only exception I know of is this: where the judge is perfectly certain that the witness is trifling with the authority of the court, and availing himself of the rule of law to keep back the truth, having in reality no ground whatever for claiming the privilege, then the judge is right in insisting on his answering the question. But it would be very inconvenient to lay down as a rule, that the party questioned is bound to go so far as to satisfy the judge that the answer to the question might criminate him. In disclosing the source of danger he might place himself in peril, and cause the very mischief which the law meant to prevent. It appears to me therefore that the law is as pronounced by Maule, J., in Fisher v. Ronalds, and although some doubts may have been expressed as to the correctness of his view, I do not find any conflict of decision on the subject. In the case of Fisher v. Ronalds the other judges did not state the rule so broadly; none of them however dissented from it. Williams, J., gave a judgment quite sufficient for the purposes of the case before him, saying that he thought it abundantly clear that the answer of the witness must have a direct tendency to place him in danger, but he declined saying: Who is to judge whether that is so? It is impossible to satisfy the judge without exposing the whole matter; and a man may be placed under such circumstances with respect to the com mission of a crime, that if he discloses them he might be fixed upon by his hearers as a guilty person; so that the rule is not always the shield of the guilty, it is sometimes the protection of the innocent, although very likely it was originally introduced from humane motives, being probably derived from the maxim nemo tenetur se ipsum accusare.' Such being the rule, we are enabled to come to a just conclusion with respect to the proposition which the plaintiff's counsel so ably advocated. That proposition is, that if a plaintiff or defendant has deeds in his possession, and says that they do not relate to the title of the opposite party but solely to his own, then the opposite party has no right to say, 'I should like to be satisfied of the fact myself; I doubt whether you entertain a correct view of the meaning of the documents, or are quite honest in your representation of their Lature.' If the information respecting them can be obtained, the mischief is done the opposite party would acquire some knowledge which he is not entitled to. Moreover, the answer might enable some one else to take proceedings, and thus a person might lose his estate. The distinction between title deeds and other things is in a great measure dependent on the dogma which makes

every man's house his castle, and attaches such importance to the protection of property in land. The distinction which the law has at all times made between real property and personal property may in part have arisen from this: that if a man has land he is considered as holding it under a grant from the crown; if he has some personal property he holds it directly or indirectly, by reason of some contract. The rule that a man shall not refuse to answer, because the answer would subject him to a civil suit, has long prevailed; for though at one time there was considerable difference of opinion on that point, the matter was finally settled by 46 Geo. 3, chap. 37, which makes the broad distinction in this respect between civil suits and criminal proceedings. To apply these remarks to the case now before us: The question is, whether the plaintiff is bound to produce his title deeds. To compel him to do so would introduce a new rule, which certainly was never intended by this act of Parliament, and would render a title deed of no more importance than a bill of exchange or any other written document. I think that a man's title deed is still protected, unless it tends to prove the case of the opposite party; if it does not, it is irrelevant. The recent changes in the law have made no alteration in that respect. There is a power to call for documents; first, one party may inquire whether the other has in his possession or power any documents relating to the matter in dispute; that means, 'have you any documents which I am entitled to see? If so, state them, and then I will call for them.' If the party interrogated says on oath, 'I have no such documents; you have no right to know how many deeds I have in my chest, but I swear that I have no documents which relate directly or indirectly to the matter in dispute,' then the other party has no right to inquire any further. That is in accordance with the right of search in other cases. After a dissolution of partnership one of the partners may have in his possession a book which the other wishes to inspect. The latter has a right to see such portions of the book as relate to matters in which he is concerned, but he has no right to see the rest. Then the book is produced with those parts sealed up. But how is that determined? By the oath of the party. Such has always appeared to me to be the law, and I think that after this discussion it will no longer be looked upon as uncertain."

*

In Fisher v. Ronalds (3), Maule, J., said: "The witness might be conscious that there was evidence against him which his answer might render complete. * * It is the witness who is to exercise his discretion, not the judge. The witness might be asked, 'were you in London on such a day? and though apparently a very simple question, he might have good reason to object to answer it, knowing that if he admitted that he was in London on that day his admission might complete a chain of evidence against him which would lead

(3) 12 C. B. 763 (1852).