tion is to supply this want in the index, which will be contained in the second volume, not yet issued. But this will only partially remedy the fault. A digest should, to a great degree, be its own index. The subjects are arranged alphabetically, and where a principle is given that belongs to more than two subjects, it should be stated in full under one head and referred to under the other We will show how this rule has been disregarded. Under the head of "Draft" abstracts of only four cases are given. A number of cases relating to drafts are given under "Bills of Exchange," which are neither given nor referred to under "Drafts." And there is also one case under "Drafts" which is not given or referred to under "Bills of Exchange." Another matter which we notice and cannot commend is the reproduction in full under the different heads to which it may belong of the same syllabus. Many of the syllabi (which, as a rule, are verbatim copies of the head-notes of the New York Reports) are thus given two or more times. This adds to the size of the book without in a like degree increasing its value. We need not give instances of this. They are found on almost every page. The nomenclature of subject-heads is, to a great extent, a matter of taste, yet we cannot see the need of separate titles of "Bailment " and "Bailee," neither can we see the line of division between "Banks and Banking" and "Bank Stock." These faults, however, do not prevent the book from being a useful one, and it will, we presume, find its way into every law library in the State.

UTAH REPORTS, VOLUME I.

Reports of Cases determined in the Supreme Court of the Territory of Utah, from the organization of the Territory up to and including the June Terin, 1876. Albert Hagan, Reporter. Volume I. San Francisco: A. L. Bancroft & Co. 1877.

This volume, which contains 424 pages, includes cases decided by the Supreme Court of Utah during a period of nearly twenty-six years, more time probably than is covered by any volume of reports lately published. The mass of the opinions were delivered since 1869, the first eighteen years furnishing only seven or eight of the seventy-five or more cases given. The early decisions are not dated, so that it is impossible to determine when the first decision published was rendered, but it was upon an appeal from a judgment entered in November, 1855. The next succeeding case was one originating in 1867 and tried in 1868, so that the first seventeen years furnish but a single case. Most of the cases involve questions of only local interest, the following being all that we discover that pass upon general questions of any importance: Lawrence v. Howard, p. 142. This is upon the liability of hotel keepers, and it is held that a party living in a hotel as a regular boarder by the month, at a fixed price, is in no sense a guest so as to hold the proprietors liable as innkeepers. People v. Mahon, p. 205. It is here held that if a party informs an attorney at law of his intention to commit forgery, and asks advice as to the effect thereof, such communication will not be privileged, and the attorney may be required to disclose it. United States v. Reynolds, p. 226. It was here held that in a trial for polygamy under the United States statute of 1862, evidence that polygamous marriage was part of defendant's religion was not admissible. It was also held in this case that a person who had conscientious scruples against indicting for the offense of polygamy was incompetent to sit as a grand

juror in the investigation of such a charge, or to sit upon the petit jury upon a trial therefor. Thomas v. Union Pacific R. R. Co., p. 232. This case recognizes the common law as furnishing the measure of personal rights and the rule of judicial decision in the Territory, and holds that under that law a father cannot maintain an action for the death of his son caused by negligence. Groesbeck v. Bell, p. 338. It is held in this case that the rule that an infant is bound by his contracts, unless he disaffirms them within a reasonable time after his majority, applies only to such contracts as are beneficial to the infant. There are one or more decisions of the Supreme Court of Utah which do not appear here which have had a worldwide name. We mean those in which Brigham Young has figured as defendant, and in which some of the members of the court have made use of the judicial position to harass him. Perhaps in those famous proceedings there were no opinions written. We think, however, the reporter has thought it better to omit those cases from his volume out of a regard for the reputation of the court. If so, we admire his discretion. The head-notes to the cases are well made, the index is fair, and the book is excellently printed and bound.

CORRESPONDENCE.

JUSTICES' COURTS.

To the Editor of the Albany Law Journal.

SIR-Justices of the peace and their courts are as useful, in their way, as higher tribunals. They afford a cheap and expeditious mode of settling neighborhood disputes and collecting small debts, and some method ought to be adopted to remedy the evils incident to their operation.

These evils are of long standing, some of them dating back hundreds of years, and one of the most serious is the ignorance of law which afflicts nearly every successor of Mr. Justice Shallow. These men are seldom lawyers, and have very little legal learning. They are generally men of good common sense, as well informed on current topics as their neighbors, but seldom any better, and they bring to the decision of their cases little law, which is just as dangerous as a little learning.

This is more the fault of the system than of the justices. They are chosen for short terms, have only a few cases in a year, their compensation is meagre and not always paid, and as a consequence they decide at random, because they don't know how to decide at all, have few books, and little leisure to read those they have. The result is that every case of any importance, and many trifling ones, are removed by appeal to the County Court.

There are other evils. A case may occur of a justice who is not immaculate. In that event he encourages litigation, assists the plaintiff in divers cunning ways, gives him advice when he applies for a summons, and proves his counsel sound by rendering judgment against the defendant at the trial; decides against the party who can pay costs, and saves himself and the constable their fees: and in many shrewd methods demonstrates his incapacity and unfitness.

The remedy for all these troubles is very simple, and will never be adopted. Elect justices during good behavior, retiring them at the age of seventy years. Allow them no fees, but pay them salaries proportioned to the number of inhabitants in their respect

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, APRIL 7, 1877.

CURRENT TOPICS.

THE Governor last week vetoed a bill providing for the appointment of an additional number of notaries public, upon the ground that there are already enough holding that office to satisfy the necessities of the people. The vetoed act would have increased the number by upwards of two thousand, making an aggregate of more than thirteen thousand individuals who would be clothed with the authority of that once-important position. There clearly is a need of terminating the business of making notaries, though it is probable that the bill was introduced and passed to meet some local necessity. The manner in which the appointments to this office have been heretofore made has caused many of the places to be filled with individuals who are incompetent to perform the duties which they undertake, while those who are competent to do so are excluded. The office has, as a rule, been used by members of the legislature as a means of rewarding political favorites or gratifying personal friends, and as the supply of positions has given out, by reason of reaching the prescribed limit of appointments, a legislative enactment has created a new supply. This resource has now, by the firmness of the Governor, been cut off. We would, however, suggest a plan whereby the necessity of such legislation would be avoided, and that is, by imposing a tax of five or ten dollars, to be paid by the appointee before the commission could issue to him. There would then be no difficulty in accommodating all who applied with appointments, and the sum received for taxes would pay all the expense to the State attending such appointments.

The legislature of the province of Ontario, at its late session, passed an act in relation to the subject of notaries public which we would recommend to the law-making body of our own State. It provides that persons other than barristers desirous of being appointed notaries public must undergo an examination as to their qualifications by a county judge, and that no person shall be appointed unless the county judge of the county where the applicant resides shall certify to his fitness, and also, that it is necessary for the convenience of business to appoint him.

VOL. 15.- No. 14.

The pathway of a judicial officer in Great Britain is not entirely free from thorns, as has been made apparent by several events which have lately happened in London and in Dublin. The controversy between the Lord Chief-Justice of Ireland and the bar upon the propriety of remarks made by him upon the bench in respect to the decision of another judge has already been noticed. Another controversy between Lord Coleridge and the gentry of England, also in respect to remarks made on the bench, was referred to by our London correspondent last week. The last-mentioned judge has an unfortunate penchant for expressing in plain English certain ideas which are acceptable to the people at large, but which are offensive to that class of individuals who believe that the chief end of the law is to secure to them certain special luxuries at the expense of the people at large. This class occupies a high position, socially and politically, and of course controls the leading newspapers. When, therefore, Lord Coleridge, in refusing costs in a prosecution for poaching, said that, "as the law protected the amusements of the rich, the rich must pay for its enforcement," he uttered what, to many ears, sounded almost like treason. It is not surprising that at once the political press took up the cry of alarm, and launched against the offending judge all manner of opprobrious epithets; that even the law journals, in a milder form, joined in the attack, and that the imperial parliament itself should be stirred up to put a stop to the enunciation of such doctrines as the law of the land. It is gratifying, however, to know that Lord Coleridge has not been frightened by all this display of indignation, but has met it by, in substance, telling the parties concerned in fomenting it, not excepting parliament itself, to mind their own business. The result has been that he has been triumphant, and his opponents have been discomfited. The latest example of annoyance is the attack made upon Vice-Chancellor Malins by a plaintiff whom he had defeated. The attack was not a dangerous one, consisting merely in throwing an egg at his Lordship as he was rising from his seat at the close of a day's business. The missile did not hit its mark, but passed by and was broken upon the canopy behind the judicial seat.

The decision of the Supreme Court of the United States in the case of Doyle v. Continental Insurance Company, which will be found in our present number, is one of great practical interest to insurance companies and those dealing with them, and involves an important question as to the right, under the Federal Constitution, of a State to impose upon a corporation, organized under the laws of another State, as a condition for doing business within its boundaries, that such corporation will not remove to

the Federal courts suits commenced in the State courts. The circumstances under which the question arose are briefly these: As is well known, the ordinary contract of insurance, whether upon a fire, life or other policy, is so incumbered with conditions and provisions that it is possible to make a defense to every claim that may arise under it. These defenses are usually unsuccessful, but they have the effect to give the claimants a vast deal of trouble, to put them to expense, and to postpone the time of payment. As the parties who hold the claims are usually in necessitous circumstances, the insurance company is generally enabled to drive a hard bargain with them, and compromise the debts it justly owes and has solemnly promised to pay at for a fraction of the face amount. But the expense, delay and uncertainty in litigation in the State courts do not frighten every claimant into settlement, therefore, a new contrivance was resorted to. As most companies do the larger share of their business in States other than the ones in which they are incorporated, they are enabled to remove a majority of the suits brought against them into the Federal courts. This renders the prosecution of these suits much more expensive and troublesome to the plaintiffs, and, by reason of the slow progress made by unpreferred litigation in the Federal courts, delays the final result. As the exercise of this right of removal to the Federal court in many instances resulted, in effect, to a denial of justice, the legislature of the State of Wisconsin, by law, provided that a foreign insurance company who was unwilling to forego it could not do business in that State. The constitutionality of this legislation was denied, but the Supreme Court upholds it, thus establishing still further than before in the States the power to control the business of corporations.

There seems to be a possibility of quo warranto proceedings being instituted to try the title of Mr. Hayes to the presidential office, and it has during the past week been rumored that papers to that end have been served or issued. There seems to be a considerable discussion as to whether there is any available provision for the trial of the question at issue. There can be no doubt that, under the constitutional grant of authority "over all cases in law and equity arising under this constitution, the laws of the United States and treaties," etc. (Art. III, § 2, subd. 1), a dispute between persons claiming to hold the highest executive office might be adjudicated upon, and if there has been no statutory direction as to the manner in which such a question can be brought before the courts, the practice under the common law which prevails in the District of Columbia will probably furnish enough precedents to enable one who has a right so to do to properly institute proceedings.

The people of Michigan have re-elected to the supreme bench of that State Hon. Thomas M. Cooley. The eminent reputation of Judge Cooley as a constitutional lawyer renders his continuance in the judicial position a matter of gratification to the bar of the whole country. Indeed, we all would be glad to see him occupy a place in the highest Federal court, his training and inclination peculiarly fitting him for the investigation of the important questions in relation to the fundamental law which come before that tribunal. In Wisconsin Judge Lyon has been re-elected to the supreme bench, the satisfaction he has heretofore given being such that there was no opposing candidate for the position.

In the State Legislature bills relating to the following subjects were introduced during the past week: Providing for the compilation of laws relating to taxation and their distribution among local officials; directing the preparation of a uniform series of school books; forbidding municipal officials to act as receivers or referees; prohibiting the advertising or distribution by mail of any lottery scheme; modifying the tax laws so as to relieve to some extent from general taxation towns which have issued railroad aid bonds; to amend section 256 of the Code of Procedure, so as to require the filing of stenographic notes of evidence; to amend the Revised Statutes in respect to divorces; regulating the forfeiture of life insurannce policies, and amending the law as to granting new trials in criminal cases. Amendments to the constitution, embodying the recommendations of the commission upon municipal government, have also been proposed.

Various bills have been introduced into the Legislature having for their object the reduction of public expenditure. The end sought is good enough, but the means suggested are not always to be commended. One of the favorite plans for relieving the burden of taxation is the cutting down of judicial salaries. Perhaps our judges receive too much pay for their services, and that they ought, in the interest of public economy, to be willing to take less than they are now entitled to. But it occurs to us that there are other officials who are paid, for services that require very little intelligence or previous training, three or four times as much as is allowed to those holding judicial positions. We refer to county clerks and sheriffs. Yet there has not, to our knowledge, been any attempt made to lessen the compensation awarded to these officers; in fact, all the legislation of late years has been in the direction of increasing it. Another mode of spending large sums of public money is in printing in local newspapers the enactments of the Legislature. This is a perfectly worthless service, yet there is paid for it in every county several times as much as is paid by that county toward judicial sal

aries. If the Legislature will first do away with expenditure for useless public printing of this kind, and will cut down the remuneration of such offices as sheriff, county clerk, etc., so that those filling them shall receive no more than their services are worth, it will be proper to attack the smaller salaries of the judiciary.

IN

NOTES OF CASES.

the case of Boyle v. Wilson, decided by the Supreme Court of Pennsylvania on the 5th of February last, it was held that a sale of chattels by the production of a sample, but without fraud or circumstances to fix the character of the sample as a standard of quality, is not attended by any implied warranty of the quality. The court say that, under such circumstances, it becomes a guaranty only that the articles to be delivered shall follow its kind, and be simply merchantable. The court cites as sustaining its holding the Pennsylvania cases of Borrekins v. Bevan, 3 Rawle, 23; Jennings v. Gratz, id. 168; Kirk v. Nice, 2 Watts, 367; McFarland v. Newman, 9 id. 55; Fraley v. Bispham, 10 Barr. 320; Carson v. Baillie, 7 Harris, 375; Wetherill v. Neilson, 8 id. 448; Eaton v. Cole, 10 Carey, 236; Weimer v. Clement, i Wright, 147; Whitaker v. Eastwick, 25 P. F. Smith, 229. The decision appears to be in conflict with the statement made by Professor Parsons as to the general American law (1 Parsons on Cont. 467). He says: "If goods are sold by sample, there can be no examina

held that it was governed by the law of Indiana, saying that the covenant of seizin there, if it existed, was a personal one, did not run with the land, and was broken as soon as made, and that the contract that the parties entered into was not executory, but fully executed, and was, therefore, not included within the rule that, if a contract is to be performed in a place different from that in which it is made, the law of the place of performance is to govern it. The case of Thurston v. Rosenfield, 42 Mo. 474, is cited as analogous to this in principle. Here the defendant, who resided in New York, assigned his property for the benefit of creditors by an instrument executed in New York, and valid there. His creditors resided in New York and New Jersey. A part of the assigned property consisted of real estate situated in Missouri, and the assignment contained certain provisions which would render it invalid there. The court held that the contract was governed by the laws of New York, and was valid as to creditors outside of Missouri to convey the lands situated in Missouri, though it would not have been valid as to a Missouri creditor. however, Bryan v. Brisbane, 26 Mo. 423; Plestero v. Abraham, 1 Paige, 236; 3 Wend. 540; Hall v. Boardman, 14 N. H. 38; Hoag v. Hunt, 21 id. 106; Richardson v. Leavitt, 1 La. Ann. 430; Burloch v. Taylor, 16 Pick. 335; Moore v. Bonnell, 2 Vroom, 90; Warren v. Van Buskirk, cited, 35 N. Y. 658.

See,

In the case of Regina v. Flattery, decided by the

There is, therefore, in this country an implied warranty that the goods correspond to the sample." But the cases he cites to support this proposition hardly go to the same length. See Bradford v. Manley, 13 Mass. 139, which is a leading case upon the subject; Oneida Manuf. Co. v. Lawrence, 4 Cow. 440; Andrews v. Kneeland, 6 id. 354; Hargous v. Stone, 5 N. Y. 73; Bierne v. Dord, id. 95; Williams v. Spafford, 8 Pick. 250; Salisbury v. Stainer, 19 Wend. 159.

The case of Bethel v. Bethel, decided by the Supreme Court of Indiana at the February (1877) term (4 Cent. L. J. 297), involves an interesting question upon the subject of conflict of law. The appellant, who was a citizen and resident of Indiana, by a deed executed in that State conveyed to the appellee, who was also a citizen and resident of Indiana, certain lands situated in the State of Missouri, but of which the vendor was not in possession. The deed contained no covenant of seizin, but did contain the words, "grant, bargain, sell and convey." The question was, whether the contract was to be construed by the law of Missouri or by that of Indiana. If by that of the latter State, there would be no covenant of seizin; if by that of the former, there would be such a covenant. The court

of February last (36 L. T. Rep. [N. S.] 32), a man who kept a stall in a public market, and professed obtained possession of a girl's person, pretending to give medical and surgical advice, fraudulently that he was going to perform a surgical operation to cure her of her illness. The girl was nineteen years old, and made a feeble resistance, and only submitted to the act of connection under the belief that the prisoner was treating her medically, and performing a surgical operation. The court held that there was no consent to the act of sexual intercourse, and that the prisoner was guilty of the crime of rape. This decision is in accordance with Rex v. Case, 4 Cox's C. C. 220, but in that case the prosecutrix was only fourteen years old. And it has been held that a conviction cannot be had of an assault with intent to ravish, where an attempt is made to commit rape under pretense of giving medical treatment, unless it is shown that there was an intent to use force in case the artifice failed. Pleasant v. State, 3 Ark. 360; Clark v. State, 30 Texas, 448; Walter v. People, 50 Barb. 144; Commonwealth v. Fields, 4 Leigh, 648. See, also, Rex v. Stanton, 1 Car. & Kir. 4150; Reg. v. Fletcher, 8 Cox's C. C. 131; Camplins' Case, 1 Den. C. C. 89; Reg. v. Clarke, 6 Cox's C. C. 412; Reg. v. Jackson, Rus. & Ry. 487; State v. Farr, 28 Iowa, 397; Stephen v. State, 11 Ga. 225.