tiff in that action), on a criminal charge arising out of the same matter. M., when on remand, wrote a letter to the said plaintiff's solicitors, marked "Private and confidential. Without prejudice," offering to give evidence against H. "in, any case after this case is over." H. and M. were discharged on the criminal matter, and brought a counter-claim in the aforesaid action for malicious prosecution. It was held by Mr. Justice Charles that the plaintiff could not be prevented from reading that letter on the trial of the action. Why not? Why did the mystical formula fail to produce its usual effect? The best way to answer these questions will be by shortly glancing over the leading cases on the subject. prejudice." For instance, in a bankruptcy case, where a letter was notice to the petitioner of an act of bankruptcy by the writer, it was held that such a notice cannot be given "without prejudice," because the document in question might prejudicially affect the recipient. Re Daintrey, cited below. Again, in the very case which Mr. Justice Charles was trying, a criminal libel was put in evidence, which the writer had inscribed with the words "without prejudice." We need scarcely say the words had not availed him at the Old Bailey, nor stood between him and a sentence of two years' imprisonment; nor could it for a moment keep the letter out in cross-examination now. The test has been well stated by Mr. Justice Williams. "The rule," said he, "which excludes documents marked without prejudice' has no application unless some person is in dispute or nego the settlement of the dispute or negotiation;" Re Daintrey; Ex parte Holt (1893), 2 Q. B. 116. It will be well to apply this test to the letter in question. Here one person was undoubtedly in dispute with the other, both at the police court and in the Queen's Bench Division of the High Court. The first part of the test was therefore satisfied. In 1852, Sir John Romilly, the then master of the rolls, more than once protested against a practice that was growing up of violating this flag of truce, and refused to admit letters written "without pre-tiation with another, and terms are offered for judice." And he gave his reasons for so doing. "If parties," he said, "were to be afterward prejudiced by their efforts to compromise, it would be impossible to attempt an amicable arrangement of differences. Hoghton v. Hoghton, 15 Beav. 321. "Such letters," he said, "are admissible for one purpose only-to prove that an attempt at compromise has been made (e. g., to account for lapse of time), but never for the purpose of fixing the person making them with any admissions contained in such letters." Jones v. Foxall, 15 Beav. 396. And this had long been the law. Cory v. Bretton, 4 C. & P. 462, decided in 1830, shows that a letter written to a creditor, "not to be used in prejudice of my rights now or in any future arrangements," cannot be read to take a case out of the statute of limitations; and Paddock v. Forester, 3 Scot. N. R. 734, supports this, and extends the protection to a letter written in answer to another which was marked "without prejudice," even though the reply is not similarly guarded. It seems moreover if the letters have once become inadmissible on the ground that they were written "without prejudice," they do not become any the more admissible "after the issues have been dis posed of," as was argued in Walker v. Wilsher, 23 Q. B. Div. 336, for any subsequent purpose-e. g. (as in that case), with regard to costs.. Why then did Mr. Justice Charles admit the letter in that case, in spite of its being maked "without prejudice?" Let us consider the reason of the rule. Its reason is the facilitating of amicable negotiations, as the above mentioned cases show. It is a mistake to suppose that you can prevent any letter which you may choose to write from ever being made evidence against you in a court of law by simply writing across it as a cabalistic sign the words "without But were terms offered for the settlement of the dispute? Contrariwise, the letter expressly limits itself to "any case after this case is over "—a flag of truce to negotiate a treaty about not this, but some subsequent war which may in the future be declared! The thing so stated is ridiculous. But may we not read rather more between the lines of this letter? Is not the real proposal rather this: "Do me a good turn now, and I will do you one if ever the chance should come." If that be the real meaning of the letter, this was an attempt at a real negotiation about the matters at issue between the parties; and the letter should then have been excluded according to Mr. Justice Williams' test. It must be observed, however, before we pass from this case, that one of the differences between the parties had taken the form here of a criminal inquiry, and that no one can be heard to say that he was negotiating for the abandonment of criminal proceedings. In conclusion, while we acknowledge the importance of the words "without prejudice" in any correspondence which is by way of negotiation about a bona fide existing dispute, we would caution our readers not to place too much reliance on them until it is quite certain that those conditions exists which are essential to make the protection available.The Law Times. JURISDICTION OVER ENGLISH MAR- the question of domicile did not arise, and the case must be regarded as one in which the parties had HE petition for a decree of nullity of marriage not an English domicile. It is submitted that, if The for a dare, in the recent cure of this is the correct way of putting the case, the authorities quoted do not apply, for clearly ex hypothesi, if there was no marriage the petitioner, having lived in England since 1882, had acquired an English domicile for herself, and was in no way affected by the domicile of a man who was not her husband, and the application was by her as an ordinary domiciled subject to deal with a contract entered into by her within the jurisdiction. If the marriage had been a valid one, and it was only sought to dissolve it, the question of the wife's domicile must of necessity have been inquired into, for prima facie that is the same as her husband's, though, after the well-known decision of Niboyet v. Niboyet, 4 P. Div. 1, which was further extended in the more recent case of Ingham v. Sachs (1887), 56 L. T. 290, special circumstances, where the marriage is an English one, entitle the English court to grant a divorce against a husband whose domicile is not English, and the cases cited would have been applicable. As was remarked by Lord Selborne, L. C. in his luminous judgment in Harvey v. Farnie (1882), 8 App. Cas. 43 H. L. (E.), Lord Broughman upon more than one occasion contended that a foreign court could not dissolve a marriage made in England on any grounds whatsoever; but that view was not accepted by the House of Lords in the leading case of Harvey v. Farnie, who there laid down the principle which, in the opinion of many jurists, ought to be universally followed, that in all questions of marriage or divorce the law of the husband's domicile ought in every case to govern. The dissenting judgments of Sir J. Phillimore and Lord Justice Brett in Niboyet v. Niboyet, also proceeded on the same ground, though the effect of that case has certainly been to weaken the claims of marriage to be considered in England as governed by the law of domicile only.- Law Times. Linke, otherwise Van Aerde v. Van Aerde, is one more step toward putting the marriage contract on the same footing as other contracts. Indeed, in this case, although the application was made to the Probate, Divorce and Admiralty Division of the High Court of Justice, it would have been equally well made in the Chancery or Queen's Bench Divisions in another form. In answer to a question put by the learned judge to the counsel who appeared for the petitioner, it was admitted "that the question in this suit is whether the court can deal with the validity or invalidity of a marriage entered into in this country whatever the domicile of the parties to the marriage may be. In other words, whether the court can deal with such marriage as it could with any ordinary contract." Whilst not giving any formal judgment, Mr. Justice Barnes said, at the close of the arguments for the petitioner, the respondent not being present or represented, "I think the allegations in the petition have been established, and that this court has jurisdiction; but before making a decree I shall look through the authorities." As this case will certainly mark a distinct epoch on the much-debated question as to whether a marriage ought to be considered simply as an ordinary contract, and dissoluble as such, or as something more owing to the natural relationships and consequences which spring from it, it is worth while considering the facts of it. It is somewhat remarkable that these facts should bear even more than a passing resemblance to the facts in the well-known Lolley's case, R. & Ry. 237, decided in 1812, which is often quoted as the strongest authority in favor of the essentially peculiar nature of the marriage contract. That there has been a steady and gradual change in the legal views on this subject is quite clear to any one who carefully reads the intervening decisions. The present petitioner was an American woman of German extraction, and the respondent was a Belgian. On the 9th of December, 1882 they went through the ceremony of marriage at St. Mary's chapel, St. Pancras, and lived together in England till September, 1887. The petitioner then found out that the respondent had been lawfully married to another woman at Brussels in November, 1861, who was living in December, 1882, and she therefore left him. In May, 1889, she married a Dutch-ant were such as to render it unnecessary. The poman at the registry office in Deptford, and owing to the respondent's persecutions brought the present suit to have the contract of the 9th of December, 1882, declared null and void. The respondent's domicile was unknown. It was suggested by counsel that Recently a woman was on trial before a Police Court, in Charlotte, N. C. She had figured as a defendant before. Knowing that fact, her counsel on this occasion, who was proving an alibi for her, took occasion to put on an unusual number of witnesses, and some of them of undoubted character. So confident was he that, when through the examination, he refrained from making any speech, saying to the court that the witnesses for the defend lice justice promptly entered up sentence. Observing the astonished looks of the lawyer, he politely said: "Mr. B, your client has been before me several times. If I were to believe her witnesses I could never convict her."--Green Bag. Abstracts of Recent Decisions. CONSTITUTIONAL LAW-REGULATION OF BURIAL GROUNDS.-The Legislature, in the exercise of its police power, can lawfully prohibit the use of lands for the purposes of burial when such lands are held by a municipal corporation. Mayor, etc., of City of Newark v. Watson (N. J.), 29 Atl. Rep. 487. CORPORATION-POWER OF OFFICERS.-Where the directors of a corporation, by resolution, authorize its vice-president to sign all legal documents relating to its business, he is empowered to retain an attorney for the corporation and to pay him for his WILLS-VESTED INTEREST.—A testator gives to N. the income of one-third of his property, and provided that, "to take effect at N.'s decease, I give and devise said one-third part to N.'s children in equal shares, to them, their heirs and administrators forever." Held, that the interest of a child of N.'s did not depend on the contingency that it survived N., but was a vested interest at its birth, which, on its death before N., went to its heirs or representatives, subject to N.'s life interest. Marsh v. Hoyt (Mass.), 37 N. E. Rep. 454. BEQUESTS BY WILL. NE of the most prominent lawyers in New York services. Streeten v. Robinson (Cal.), 36 Pac. Rep. said recently that if the Constitutional Conven 946. PRESUMPTION. An NEGLIGENCE-EXPLOSION explosion in a building, unaccompanied by any explanation by the owner, or by evidence of care on his part, furnishes a presumption of negligence, and places on the owner the burden of showing rea sonable care taken to avoid the accident. Warn v. tion had given its attention to the general question of bequests by will it might have accomplished a vast amount of good. Testamentary laws," he said, are so curiously drawn that no man can tell what construction will be put upon his will. The number of instances of money left for a specific purDavis Oil Co., U. S. Dist. Ct. (N. Y.), 61 Fed. Rep. large that there is practically no certainty in the pose being diverted into entirely alien channels is so 631. SERVANT NOT UNDER CONTROL OF MASTER. -A railroad company is not responsible for negligence in the operation of an engine, when at the time of the accident the engine and the crew by which it was operated were rented to and under the control of another company. Byrne v. Kansas City, Ft. S. & M. R. Co., U. S. Cir. Ct. of App., 61 Fed. Rep. 605. PARTY WALL-LIABILITY FOR USE-AGREEMENT. -Under an agreement that when any portion of a party wall shall be used by the party who did not construct it, or by his heirs or assigns, he or they shall pay half the cost thereof to the party who did construct it, one is not liable for such payment, because at the time the party who did not construct the wall built a house on the adjoining lot, he was mortgagee of the lot. Nor is he liable because he afterward became owner of the lot through foreclosure, continuation of the building, after its erection, not being a use of the wall within the agreePfeiffer v. Matthews (Mass.), 37 N. E. Rep. ment. 571. SALE-CONTRACT.-A vendee who has accepted goods delivered under a contract, but not at the times or in the quantities required by it, with knowledge of the vendor's breach of the contract, and who fails without legal excuse to pay for them according to the contract, cannot maintain an action on the contract for the vendor's breach of it. Harber Bros. Co. v. Maffat Cycle Co. (Ill.), 37 N. E. Rep. 677. matter except that in the great majority of cases the courts take a common-sense view of the matter, and disregard the wishes of the testator in the interests of justice. It is a curious thing that nearly all men who have made great fortunes are enthusiastically in favor of the law of entail, and all sorts of efforts are made to direct the distribution of their property to future generations in spite of the antagonism of the old laws to the system of entail in vogue in Great Britain. The Pond will case, which is coming up in Connecticut, will very likely call for an exact and authoritative decision upon this question. It is an ideal case for such a decision. The head of was a the Pond family, Mr. C. F. Pond, left an enormous block of real estate in the form of a country seat in Hartford to his oldest son, and in his will he expressed his desire as strongly as possible that the estate should be kept intact and passed along to his descendants. Every effort was made to practically entail the property, although the laws of Connecticarry out his expressed wishes. The son cut forbade it, and he solemnly adjured his son to curious sort of recluse, and a man who quarrelled with most of his relatives, and in defiance of his father's will, he bequeathed the whole estate to the city of Hartford. It is a very clearly defined issue, and as the other children of the late C. F. Pond will have to contest the will in the interests of their own children, whom the head of the family clearly intended should receive his estate, it is likely that a precedent will be established concerning one of the most widely disputed questions among the professional makers of wills."- N. Y. Sun. Correspondence. ENGLISH JURISPRUDENCE. Editor of the Albany Law Journal: I send you herewith a copy of a letter received by me from Judge Hukm Chand, of Hyderabad, and also copy of a letter which I have received from These Dr. Asutosh Mukhopadhyay, of Calcutta. letters are of great interest as evincing the wonderful extension of the principles of English jurisprudence over new regions and alien peoples, and the interest that is taken therein. The letter from Judge Chand was accompanied with a treatise on the law of res judicata of about nine hundred pages, in which this technical and recondite subject is treated with exhaustive learning. Very truly yours, JOHN F. DILLON. HYDERABAD DECCAN, India, 26th July, 1894. SIR: I am agreeably surprised to read in your recently published lectures that in your law libraries you "find the learn ing and labors of judges administering this [American] sys-lished, and will contain the General and Stock, tem in law reports from India, South Africa, etc." I therefore beg you will kindly accept for your library a copy of my last work on res judicata, from the preface of which you will observe that I had thought that decisions of Indian courts were virtually quite unknown in the United States, and I certainly have not been unable to find any reference to them in the published arguments and decisions in the American courts. Nor are we better acquainted with your work. You quote a passage from a letter of the late Lord Chief Justice Cockburn, in which he said: "There is scarcely a discussion of any im portance in which American decisions and American authors are not cited, and the judgment and dicta of a Marshall or a Story are as familiar to us as those of a Mansfield or an Ellenborough." I would that were the case in this country, where it is only in one High Court in all India that I have been able to find a set of reports of the United States Supreme Court only; and to say nothing of the State court reports, even the names of West Publishing Company and Whitney-Bancroft, and of their publications, are absolutely unknown to the highest judges. Nothing, however, is more useful than acquaintance by jurists and lawyers of one country with the laws of other countries, especially of those whose jurispru dence is derived from the same main stock. I have often seen an English case cited in the High Courts here, without the slightest reference to the repeated and valuable discussions that have taken place about it in your courts, or to the re Business, Transportation and Miscellaneous Corporation Laws, the Railroad Law, Rapid Transact Act, Interstate Commerce Act, Code provisions applicable to corporations, the Condemnation Law, statutes relating to Dissolution and Receivers, Taxation, including the Federal Income Tax Act, Constitutional Provisions, Statutory Construction Law, and a compilation of all the miscellaneous provisions affecting corporations, which are found in the various statutes of this State, and of the United States, with all amendments to date. In addition, the book will contain a very large collection of forms of procedure by the aid of which much time will be saved in the practice under these laws. Mr. White's Manual of Corporation Laws (1890), was the first work with any considerable number of forms, and those forms have served as a basis upon which nearly all cor strictions and modifications with which that case has been poration papers have been drawn in the past four adopted by you, and should be adopted by us. The object of the work I am sending you is mainly to remove the chief cause of this, and to introduce to the lawyers here the textbooks of your lawyers and the decisions of your judges, and if possible, to introduce our judges to you and to place them within your ken, though not on the same firmament on which you "behold Hale and Marshall, Hardwicke and Story, Black stone and Kent, Erskine and Webster." I trust you will find time at least to read the preface of the work, and favor me with your views about its plan, as I am engaged now on a work on Fraud, and intend to take up other subjects for treatment on the same lines, and your mature expression may lead to valuable suggestions for the furtherance of my object. I inclose a paper, which will give you some idea of the view taken of the work here. Yours faithfully, HUKM CHAND, years. The forthcoming work is very fully annotated, being replete with citations down to August 1, 1894. Mr. White has for nine years been at the head of the corporation division in the office of the secretary of state, in which position the duty devolves upon him to examine and pass upon the corporation papers presented for filing. He is, therefore, eminently fitted to prepare a work on this subject; but he is so well and favorably known to lawyers, that his name itself is a gurantee of the excellence of his work. It will be published October 15, by the White Law Book Co., Albany, N. Y. ERRATA. By a mistake of the printer, in our issue of September 22, 1894, the book on Railroad Laws, by Benham, was said to have been published by W. C. Nichols & Co., of Albany, N. Y. The publishers are W. C. Little & Co., Albany, N. Y. The Albany Law Journal. ALBANY, OCTOBER 6, 1894. Current Topics. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] WHEN and careful consideration of the lawyers, doctors. and scientists as well as the public at large. Judge Sterling of England has recently decided on a question which is certain to be of more than passing interest to the legal profession in the case of Aldin v. Latimer, Clark, Muirhead & Co. The plaintiff and defendants The THEN the mysterious woman now confined derived title to certain property, part of which each occupied, from the same individual. plaintiff first procured a lease of the property, which was accompanied by a revokable parol license, and erected certain ventilators in the stables forming part of the demised premises and which he erected at his own expense. Subsequently the other half of the property, together with the plaintiff's land, was sold to the defendants subject to the lease of the plaintiff. The plaintiff sought by an action to restrain the defendant company from violating his rights as lessee by interfering with the access of air to the drying sheds used in connection with his business of a timber merchant, and secondly in the Tombs and known as the wife of Dr. Henry C. F. Myer, who is now serving a life sentence for the murder of Ludwix Brandt, and indicted as a co-defendant to that charge, is brought to trial, the eyes of the legal, medical and scientific world will be turned to the probable outcome of the defense in the action. Vague rumors have been afloat ever since the trial of Dr. Myer that the defense in his alleged wife's case would be hypnotism, and that the defendant would try to show that it was by reason of this force that she took part in the murder. Only once before has this defense been set up and that was in the case of Eraud, the Parisian strangler, in which case a woman who was jointly indicted with him, turned State's evidence and claimed that she was forced by reason of the hypnotic influence to assist him in his crime. From the legal standpoint it is certain that in the minds of jurors at least, a practical demonstration of the power of hypnotism will raise a reasonable doubt such as would entitle the defendant to an acquittal at the hands of a jury. Hypnotism has had many private trials and has given the public ground for believing that there is some force which may be exerted by one individual to control the actions of another against his will and without any physical contact. The proof of such a force as hypnotism, if publicly demonstrated during a trial, would open up a new defense which undoubtedly could be used in many cases to defeat the ends of justice, though it must be recognized that no person under the influence of such a force should be convicted to suffer the penalty for a crime which he did not intend to commit, and which at the time he did not know he was committing. If hypotism is a sham, it were better now to fully demonstrate the fact and end, once for all, the dangerous consequences of such theories, but the defense in the Myer case will at least receive the earnest VOL. 50- No. 14 from interference with certain ventilators in his stables. The first case considered was North- |