-- Develin. 40. Tilton v. Ormsbee. 41. Crowell v. Jackson. 42. Pierce v. Keator. 43. Markey v. Brewster. 44. Bigelow v. Benedict. 45. Besel v. N. Y. C., etc., R. R. Co. 46. Curry v. Powers. 47. Tenth National Bank v. Mayor. 48. Dickel v. Mayor. 49. Health Department v. Krowl. 50. Peyser v. Mayor. BENCH AND BAR. One of the Chicago divorce lawyers named Dexter is himself a defendant in a divorce suit, his wife having commenced an action against him asking for a severance of the nuptial on the ground of cruel conduct. He was married to the plaintiff as recently as September, 1876. An English newspaper tells this anecdote of Chief Justice Grant, who was named by those practic risters argued before him for two whole days the point whether a certain offense came within the purview of a certain act of Parliament. When his lordship was quite sure they had exhausted their arguments, if not themselves, he quietly observed, "the Act you refer to has been repealed." writer, cannot find materials for a better test than in pages from 533 to 675; of course the principal materials for what is presented must be found in the English and American digests, and the reports of the cases there indexed. This is the key to the situation, but it is only the key to a chaos of apparently inharmonious decisions from the conflict the labor is to extract the leading and controlling principles. All the cases will be found reproduced here, and clothed in perspicuous and brief outline, so that a symmetrical whole is presented. This was no easy task. A pedant might have made a heavy book. A dreamer might have made a more sentimental one, but for practical uses no more efficient work could have been written. Its doctrines are the most metaphysical of all branches of legal science. Its distinctions are most intricate and wire drawn; its lines of liability and exemption are thin, and sometimes most grotesque, and yet to the clearing before him "the silent man." A couple of barhead its doctrines constitute the most satisfactory testimony to the exactness, simplicity, and natural justice of the science of jurisprudence as presented in the common law. Some of its doctrines may seem to Field principle to expediency, and raise the incident to the supremacy of the superior, but this is inevitable in all relations which cannot be fixed upon exact lines of obligation. A code of Master and Servant, however thorough, exhaustive and complete on paper, would in practice turn out a cast-iron code, and would, in its application to the business of life, need reforming every day, and, therefore, as often be demonstrated a practical failure. It follows that the elastic principles of the common law can alone be adapted to such a changing and shifting scene. But these principles, as illustrated in the cases, are in jarring conflict. To simply reproduce the adjudications would be a useless task. To bring order, simplicity and symmetry out of them was the work of a man of genius, and this we have before us. Let any experienced practitioner who has heretofore been confused by the conflict of authorities on some of the leading topics of the master's responsibility, turn to this chapter, and he will see what a writer of genius can do to aid him in obtaining fixed views of the law of Master and Servant. A new judge has been introduced into the English courts, and counsel are at a loss how to entitle him. On the 18th ult., in the Exchequer Division, during the hearing of the first motion, counsel manifesting some uncertainty as to whether he should address the Lord Chief Justice Baron's colleague as Mr. Baron Hawkins or Mr. Justice Hawkins, the Lord Chief Baron said: "Please address the learned judge by his proper title. He is not Mr. Justice Hawkins any more than I am Lord Chief Justice, and as yet we are not allowed to call him Mr. Baron. He is, therefore, Sir Henry Hawkins." On the following day, however, in the Queen's Bench Division, Mr. Prentice, Q. C., having remarked that he moved in a case tried before "Sir Henry Hawkins," as he termed him, Mr. Justice Mellor remonstrated, and said the proper title of his Brother Hawkins, as of all his brethren, was "Mr. Justice Hawkins." "We are all," said the learned judge, "justices by virtue of our office. It is not correct to call my brother Hawkins, Sir Henry Hawkins.' I don't like these crotchets." COURT OF APPEALS CALENDAR. S. CORRESPONDENCE. PADDED REPORTS. To the Editor of the Albany Law Journal: SIR-Now, on the other hand, to me Vol. I of Ab THE following are the first fifty cases on the calendar bott's New Cases has proved of special value; the of the Court of Appeals, made for May 21, 1877: 1. Armstrong v. People. 2. Children's Aid Society v. Loveridge. 3. Provost v. Provost. 4. Erie R. R. Co. v. Vanderbilt. 5. Hays v. Miller. 6. Eisenlord v. Snyder. 7. Tooley v. Bacon. 8. Peck v. Collins. 9. Howell v. Van Sicklen. 10. Same v. Same. 11. Same v. Same. 12. Cordell v. N. Y., etc., R. R. Co. 13. McAlpin v. Powell. 14. Cushman v. U. S. Life Ins. Co. 15. Francis v. Mut. Life Ins. Co. 16. Alexander v. Dutcher. 17. Church v. Maloy. 18. Wood v. N. Y. C., etc., R. R. Co. 19. Smith v. Frost. 20. McLean v. Freeman. 21. Pierce v. Pierce. 22. Wilson v. Knapp. 23. Chittenango Cotton Co. v. Stewart. 24. Leonard v. Collins. 25. Moody v. Smith. 26. Robinson v. Kline. 27. Stevenson v. Lisley. 28. Kavanagh v. Wilson. 29. Williams v. Slote. 30. Getty v. Develin. 31. Lambert v. Staten Island R. R. Co. 32. Van Valkenburgh v. Am. Pop. Life Ins. Co. 33. Ferris v. Van Vechten. 34. Parhan v. Moran. 35. Taylor v. Mut. Ben. Life Ins. Co. 36. In re Hathaway. 37. Smith v. Starr. 38. Tone v. Mayor. 39. Getty v. seventy pages of part 6, and the valuable notes on improved. The volume commences with the May number, which contains a valuable leader upon the Ohio Liquor Law," or what is better known as the "Civil Damage Law," a number of valuable cases in full, notes upon current legal matters, and abstracts of the recent decisions of the Supreme Courts of Indiana and Illinois.- The Northwestern Reporter is a new legal paper, published at St. Paul, Minnesota. It takes the place of The Syllabi, until recently issued by the same publishers. It contains decisions in full of the Supreme Court of Minnesota, abstacts of decisions of the Supreme Court of Wisconsin, abstracts of selected cases of other courts and miscellaneous matter. The failure of Congress to appropriate sufficient funds to carry on judicial business during the coming year has caused the United States District Court for New Jersey to dispense with holding the June term. - Mr. Lang, of St. Lawrence county, in a speech supporting some resolutions introduced by him in the Assembly, asking for a repeal of the Federal bankruptcy law, makes some forcible points against that statute. The resolutions were passed with but two dissenting votes.- -In the case of Newell v. Ridgway, recently decided at the Special Term of the Supreme Court of this State in the First District, the question as to the presumption of survivorship, where several relatives perish in a common calamity in this case the sinking of the steamer Schiller-where a woman, her husband and two children were drowned. The court held that at common law there is no presumption arising from age or sex, either for or against survivorship, among persons whose death is occasioned by a common cause, but the burden of proof is on the one who asserts either survivorship or non-survivorship affirmatively. The Connecticut legislature have passed an act concerning patent-right notes, requiring the consideration to be set forth in the note under penalty of fine and imprisonment. The act is in this respect similar to the statute passed by the New York legislature at its present session, but it contains also this provision, which we believe will be more effective than the one we have mentioned: "Section 1. That upon the trial of all actions brought upon any note or bond, or other writing, given and executed for any interest in any patent or patented article, or pretended patent or patented article, and wherein the plaintiff shall claim to be the bona fide holder of any such note, bond, or other writing, it shall be competent for the defendant or defendants to offer evidence and prove that the plaintiff received his title thereto under such suspicious circumstances as ought to have prevented a person of ordinary judgment from purchasing the same, and in connection with such evidence, the defendant or defendants may offer evidence and prove that any such note, bond, or other writing, was obtained by fraud and deceit." In the case of Commonwealth v. Jones, recently tried before the Philadelphia Oyer and Terminer, a verdict of guilty of assault with intent to kill was set aside because one of the jurymen was a German who did not understand English intelligently. In more ways than one the English bar is changing its practice. On Sunday the 15th ult., in accordance with the ancient custom on the first Sunday in the Easter law term, the judges and serjeants-at-law were expected to attend the afternoon service at St. Paul's Cathedral; and the Lord Mayor, accompanied by the Lord Mayoress and the Sheriffs and Under-Sheriffs, and escorted by the City Marshal and the Corporation sword and mace bearers, went in state from the Mansion House to the cathedral to receive their lordships, but not one of the judges or serjeants-at-law attended the service. -An action for the price of a suit of clothes was tried in New York before Judge Lawrence and a jury. The defense was that the clothes were a misfit. The defendant put them on, and appeared before the jury in them. The evidence was overwhelming, and a verdict was at once returned for defendant. The Philadelphia Court of Common Pleas decided on the 16th ult., in the case of Thompson v. Buckley, that the Pennsylvannia Stay Law, recently enacted, is constitutional as to writs of execution issued previous to its passage. The courts of Common Pleas of Penusylvania for Mercer and Venango counties have decided that the provisions of the same law may be waived by contract-that of Venango county in the case of Gordon v. Green, and that of Mercer county in Griffith v. Thomas. The English High Court of Justice is unequal to the business brought before it. It is said that at the commencement of the long vacation it will be in arrear more than six hundred cases, which must go over until November. - The legislature of Missouri have passed "An act to encourage the destruction of rats." By it each county court is authorized to offer a bounty of five cents for each scalp of a rat killed therein. Judge Neilson's articles on Rufus Choate are attracting wide attention and are meeting with the highest commendations on every hand. Many of the most prominent journals in the country either reprint the articles in full as they appear, or give copious extracts from them, while other papers speak of them editorially. The Boston Advertiser of the 28th ult. introduces a leading editorial on these articles in the following words: "Judge Thomas, speaking recently of the mortality of legal reputations, said that a lawyer's studies and labors were so closely connected with the life around him, that the fame thereof usually died with him. Some, by independent services to the State, to letters, or to jurisprudence, won enduring distinction; but with the rest there was a brief twilight of tradition, and then night shuts in. Mr. Choate seems to be an exception to the fate of his profession. For there were left very few printed memorials of his genius; and one will search his reminiscences in vain for contributions of original and permanent value. But, though the generation which knew him is passing away, the twilight of tradition through which that rare and fascinating figure is shown to us is still unfaded, and seems to resemble the light of those northern skies where there is no night. The last good service to the memory of Mr. Choate has been rendered by Judge Neilson, of Brooklyn, N. Y., in a series of articles to the ALBANY LAW JOURNAL, in which he has given many fresh incidents of the life of Mr. Choate, and a very interesting and just analysis of the professional and personal traits of this rarely gifted man." 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, MAY 19, 1877. CURRENT TOPICS. THE courts, the lawyers and the people of this State have been able to bear up under the new Code for a fortnight, and, notwithstanding the great over-turn it was supposed to make, legal business has gone on about as it formerly did. There has, indeed, been uncertainty in the minds of many practitioners as to how they should proceed in such matters as they were engaged in, but it has been an uncertainty resulting from an indisposition to look up the provisions of the new law, which affected what they had to do. Yet we have not heard of any careful practitioner being caught in a mistake by reason of an unsuspected provision of the Code of Remedial Justice. In fact, a careful practitioner under the old Code, who drew all his papers as they should be the older lawyers, and most of the judges were opposed to a code, and did all that they could to embarrass its action. Many of the judges, as will be seen by decisions in the earlier volumes of Howard and Abbott, construed the new law in such a way as to make it inoperative, reading the provisions brought under their notice liberally or strictly as suited the end in view. To-day there is undoubtedly as much opposition to a change as there then was, but the change is met in a different spirit, and a purpose manifested on every side to make the provisions in force operate as smoothly and satisfactorily as possible. There is one thing, therefore, evident, that whatever else may be said of the Code of Procedure, it has made the bench and bar liberal toward other systems of practice. At the time of our present writing, Thursday, May 17, the legislation relating to the Code is in this condition: 1. The bill to suspend the operation of new Code until September 1st, it is expected will pass the senate to-day, and come down to the assembly, where it will doubtless pass. 2. The supplementary chapters, with the amendments thereto, have been ordered to a third reading in the assem bly, and will probably pass to-day. 3. The repealing houses, and have gone to the governor. The whole Code of Remedial Justice is to take effect September 1, 1877. act which accompanies the first thirteen chapters has drawn, and transacted all his business as it should been ordered to a third reading, and will probably be transacted, complied with all the requirements of the later law. We do not mean to say that plead-senate to the first thirteen chapters have passed both pass to-day. 4. The amendments proposed by the ings and proceedings which might barely pass muster under the old Code would do as well under the new. But a careful attorney does not do his business so that it is barely right, but so that it is beyond all question right, and shows for itself that it is so. The courts have indeed frowned down any attempt to take any technical advantage of mistakes in practice under the law as it has been since the first of the month, in some instances going so far as to announce in advance that amendments would be allowed, without costs, wherever necessary to cure errors which might result from the changed mode of procedure. This disposition to deal liberally with formal faults has perhaps smoothed much of the asperity which might have been anticipated in the working of the new law, and has taken from those pests of the profession, the special motion practitioners, much of the opportunity to annoy, which they would have otherwise obtained from the sudden and unexpected change in the formalities of procedure. Those members of the Bar of this State whose professional experience covers the period of time during which the Code of Civil Procedure was in force, must have particularly noticed the different manner in which a change in procedure is received by the courts and profession to-day, from what it was when that code went into force. At that time VOL. 15.- No. 20. The law schools are at this season sending forth numerous graduates to take their places in the profession. Most of these young men have received a comparatively thorough training in the theory of the law, but in many instances they have no knowledge of the practical part of the calling they have chosen. Those of them who have, in connection with their school training, had the advantage of a seat in a lawyer's office, are somewhat more nearly qualified for doing what the officers of the court certify they are competent to do, than those who have learned only in the school, but not much more so. Only such persons as have actually been engaged in the routine work of an office in good practice, can be said to be at all fitted to act in the profession they have entered. This they will, in time, find out, and they will also discover that even of the law as a science they know but little. We think also that some of them will, in time, appreciate that such topics as were chosen by members of a recently-graduated class in a neighboring institution, namely: "True Greatness," "Grit," and "Plato the Christian Pagan," are not precisely appropriate for discussion in public exercises connected with a law school. The governor has vetoed a number of items in the general appropriation bill, properly, but we think that his action in reference to appropriations for law libraries is not founded upon good reasons. In explanation of his disapproval of appropria- | tions for the several district law libraries of the State, he says that "it is unequal and unjust to compel the tax payers of the State to contribute money for the establishment of law libraries in the various counties of the State. There is no more reason for supplying lawyers with their books, than for supplying doctors and clergymen with theirs, or farmers and mechanics with their implements and tools." The governor entirely mistakes the purpose of these county law libraries. It is not to supply the lawyers with books, but the courts. The State pays large sums for buildings in which to hold courts, and for the salaries of officials, compared with which the appropriation for books is but a trifle. The lawyers are not furnished with books by the existence of these libraries; in fact, we do not believe the establishment of a law library in a county makes any difference whatever with the purchase of books for private libraries therein. The fact is, that at present, in many places the lawyers supply the courts with the law books necessary for their use. The circumstance that these libraries are usually accessible to, and are used by the lawyers, does not affect the matter. The books are for the use of the courts and the public, and only incidentally benefit the legal profession, who indeed have no greater rights there than any other class of citizens. The bills of general interest introduced in the legislature during the past week are these: In relation to the time for commencing actions in cases of fraud, providing that except in replevin and ejectment suits the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud; for the repeal of the Code of Remedial Justice, making the repeal absolute and unconditional, and providing that all actions and proceedings commenced since April 30, 1877, shall be continued under the law in force at that date; to secure safety on railroads by requiring closed platforms to cars running through cities. The English judges have proved unable to transact the increased business which the adoption of a Code brought before them, but the block occurring in the nisi prius courts, instead of the appellate ones, the remedy was a very easy one, namely, the appointment of a new judge. This remedy has been adopted, and Mr. Edward Fry, Q. C., appointed to fill the newly-created position. We do not imagine that the relief which will be experienced when the appointee begins his judicial labors will be at all permanent. With an increased facility for the disposal of litigated causes, will come increased litigation, and parliament will again be called upon to enlarge the judicial force. This State has a small field for possible litigation, compared with that of England, yet we have a judicial force fully as large, and the judicial office is no sinecure here. We do not doubt that if the English courts were able to dispose promptly of the business brought before them, and the lawyers acted with expedition, there would result legal business sufficient to fully employ the entire profession, and the briefless barrister would become a myth. The difficulty is not that there is not enough business to employ the profession, but that the profession do not get along with what business they have. The influence of this is to prevent those who would go into the courts with their matters from doing so, parties preferring to suffer wrong and loss rather than to undergo the tedious vexation of a legal proceeding. The same may be said with regard to legal business in this country, though litigation proceeds somewhat more rapidly here than in England. South Carolina lost its chief justice, and was at one time in danger of continuing without one. As the court of last resort consists, when complete, of but three members, the absence of a single one of its complement leaves a numerically weak bench, and one whose opinions, when divided, are of no value whatever. We are glad the difficulty was not permanent. It could not have occurred if the bar of the State had taken the determination of the question out of the control of the politicians, where it has remained too long. The United States District Attorney for Utah, Mr. Sumner Howard, who has been charged with certain irregularities in connection with the confession made by the late John D. Lee, has made a statement to Attorney-General Devens, in which he denies all the charges made. His statement is indorsed by the judges of the Supreme Court of Utah, by ex-Judge McKean, by several prominent members of the bar, including the leading one of Lee's counsel, and by other prominent citizens. This would seem to fully establish the fact that Mr. Howard has been guilty of no improper conduct in the matter. That he was so we do not think was believed by any sensible person, yet he has taken the proper course to effectually silence all the calumnies which have appeared in public prints in respect to his dealings with Lee. NOTES OF CASES. N Barnett v. Young, 29 Ohio St. 7, the Supreme Court of Ohio pass upon the question of the liability between themselves of the drawer and acceptor of a bill which was drawn and accepted for the sole accommodation of the payee. In this case the payee becoming insolvent, the acceptor was compelled to pay the bill. Such acceptor had no funds belonging to the drawers. The court held that there was no implied obligation on the part of the drawers to reimburse the acceptor, and that the drawers and acceptor, as between themselves, in the absence of any understanding to the contrary, were not co-sureties for the payees, or liable to contribution. The court, in deciding this case, disapprove of Douglass v. Waddle, 1 Ohio, 413. In that case it is held that several accommodation indorsers, all of whom indorsed a note before it became operative by being transferred to some person not a party for value received, should be treated as co-securities, and contribution allowed between them as such. The court say, however, in the principal case, that as the doctrine in Douglass v. Waddle has been undisturbed so long as to promissory notes, it would not overrule it, but would not extend it to bills. The court follow what appears to be the recognized rule as to negotiable accommodation paper of all kinds. See 3 Kent's Com. 86; Fentum v. Pocock, 5 Taunt. 192; Church v. Barlow, 9 Pick. 547; Wil liams v. Bosson, 11 Ohio, 62; Wright v. Garlinghouse, 26 N. Y. 539; Douglass v. Waddle, 1 Ohio, 413; Thurman v. Van Brunt, 19 Barb. 409. in his work on Evidence (§ 306), says: "A receipt under hand and seal is conclusive evidence of the payment of money." Gilb. Ev. 458. But in Jones v. Ward, 10 Yerg. 160, such a receipt was held to be open to explanation by parol, and parol evidence was admitted to exclude an item from its operation that was clearly embraced in its terms. See, however, State v. Messick, 1 Houst. 347; Deland v. Amesbury, 7 Pick. 244; Ill. Cent. R. R. v. Welch, 52 Ill. 183. But such an instrument may be avoided for Martin v. Righter, 10 N. J. Eq. 510. fraud. In Brown v. Camden & Atlantic R. R. Co., 4 W. Not. Cas. 21, decided on the 5th of February last by the Supreme Court of Pennsylvania, the plaintiff bought a ticket in Philadelphia for a passage from Philadelphia to Atlantic City, N. J., over the Camden and Atlantic Railroad, which railroad is situated wholly in the State of New Jersey, and belongs livered his trunk to the defendant at its office on to defendant, a New Jersey corporation. He de the Pennsylvania side of the Delaware, and did not inform the defendant's servants taking it of the value of its contents. The trunk was lost, and plaintiff brought action for its loss and recovered a verdict of $1,300. Under the statute of Pennsylvania the liability of a railroad company for the loss of a passenger's baggage is limited to $300. The court held that the contract made between plaintiff drawer was only a surety for the drawer; though and defendant was governed by the law of New the authority of that case has been denied in several of the cases above cited. In the case of State of Maryland to the use of Barnard v. Gott, 44 Md. 341, the doctrine that a receipt under seal is conclusive against the party giving it was maintained. In this case certain property was sold by a trustee under a decree in equity, and an account distributing the proceeds of sale was audited and finally ratified. This action was brought on the trustee's bond by one of the parties, to whom a share of the proceeds of the sale had been audited, to recover the balance of such share, which the trustee had failed to pay. The surety on the bond interposed to the right of Barnard, the equitable plaintiff, to recover a receipt in full of such plaintiff under seal, and a note of the trustee to him at six months for the balance due. The note not being paid at maturity, was subsequently returned to the maker, and the receipt returned to the equitable plaintiff. Both papers were afterward destroyed, and secondary evidence of their contents admitted. The court held that the receipt given by the equitable plaintiff being under seal, was conclusive, and he could not recover against the surety. In giving this effect to a receipt under seal, the court follow the rule of law applicable to other instruments under seal, and which has been extended to receipts. Best, Jersey, and not by that of Pennsylania. By the New Jersey law there is a limitation to the amount of liability for the loss of baggage, but a general notice of the limitation is required to be posted in the office of the carrier, and to be inserted in the ticket given for passage. A compliance by defendant with these provisions was not shown. Judgment was ordered on the verdict of the jury, the court reversing the decision below. The rule that every one is understood to have contracted in the place in which he has bound himself to perform the contract, is adopted by the court in this case. Story on Confl. of Laws, § 233; Wharton on Confl. of Laws, § 401; Ferguson v. Fyffe, 8 Cl. & Finn. 121; Connor v. Bellamont, 2 Atk. 382; Houghton v. Page, 2 N. H. 42; Peacock v. Banks, 1 Minor, 387; Mullon v. Morris, 2 Barr. 85; Althouse v. Ramsey, 6 Whart. 531. In regard to the omission to declare the value of the baggage, the court hold that, by the common law, as settled in Pennsylvania, a party who sends goods by a common carrier is not bound to declare their value, unless required to do so, and that plaintiff was not bound to declare the value of his trunk at the time he delivered it, though a different rule would be adopted, perhaps, had he attempted to carry merchandise under the guise of luggage. See Relf v. Rapp, 3 W. & S. 26; Camden & Amboy R. R. Co. v. Bauldaut, 4 Barr. 67. |