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so as to bind. L., and such material alteration being made without the consent of L., releases him from all liability upon it. The material alteration of a note with the consent of a maker is virtually making a new note and ante-dating it. We therefore conclude that the material alteration of the note in question released L. Broughton v. Fuller, 9 Vt. 373. That the bank purchased the note before maturity, for a valuable consideration, and is therefore a bona fide holder of the note, does not prevent L. from asserting the material alteration of the note as a defense. Wait v. Pomeroy, 20 Mich. 425; Benedict v. Cowden, 49 N. Y. 396; Bank v. Stowell, 123 Mass. 196; 2 Dan. Neg. Inst., SS 1410-1413. Sup. Ct. Kans. Horn v. Newton City Bank. Opinion by Horton, C. J. [32 Kans. 517.]

CORRESPONDENCE.

ANSWER TO A QUERY. Editor of the Albany Law Journal:

In 30 Alb. L. J. 340 is found a query which the sub. sequent numbers of your journal do not show to have been answered. Will you kindly refer your correspondent to State ex rel. Laclede Bank v. Lewis, 76 Mo. 370, as being the latest and a very full discussion of the question asked?

Respectfully, L. C. KRAUTHOFF. JEFFERSON CITY, Mo., May 1, 1885.

NEW BOOKS AND NEW EDITIONS.

PAINE'S BANKING LAWS.

The Laws of the State of New York relating to Banks, Banking and Trust Companies, and companies receiving money on deposit, also the National Bank Act and Cognate United States Statutes, with amendments and annotations. By Willis S. Paine. Weed, Parsons & Co., Albany, N. Y. 1885.

The title shows the scope of the volume, and the arrangement of the material was no doubt as the author says, "A difficult task involving very arduous labor." The work though intended for use in New York State will doubtless be found of value throughout the several States of the Union. Throughout the work, references are made to the decisions of the courts, the whole preceded by an historical sketch of the banking methods of the State of New York.

DIGEST OF AMERICAN DECISIONS.

This volume of 1245 pages embraces the decisions reported in volumes thirty-one to sixty, inclusive. It is of course indispensable to the owners of the series, and appears in every respect thoroughly executed. Published by A. L. Bancroft & Co., San Francisco.

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, May 5, 1885:

THE

Judgment affirmed with costs-Charles H. Russell, receiver, respondent, v. George W. Nelson et al., appellants; John Craigill et al., respondents v. Sterling G. Hadley, receiver, appellant; Henry A. Gildersleeve, appellant, v. Mayor, etc., of New York, respondent; Carrie Hagenlocher, infant, respondent, v. Coney Island and Brooklyn R. Co., appellant; Board of Education, of Auburn, respondent, v. Henry V. Quick and others, administrators, appellants; Board of Commissioners of Pilots, respondents, v. John W. Ambrose, appellant; George S. Riley, respondent, v. Francis A. Schoeffel, sheriff, appellant; James Roach, appellant, v. Benjamin B. Odell, sheriff, respondent; In re Final Accounting of Kendrick E. Morgan, assignee, etc.; In re Petition of George A. Harding, etc.; Augusta W.

Frary, appellant, v. Orleans County Bank, respondent; Henry J. Goodwin and others, appellants, v. Leopold Westheimer, impleaded, respondent.-Order of General Term reversed; judgment of Special Term affirmed, with costs-James Jackson, receiver, appellant, v. St. Paul Fire Ins. Co., respondent.-Judgment reversed, new trial granted, costs to abide the event-Sarah R. Odell, infant, respondent, v. Solomon B. Solomon and others, appellants. Order affirmed, with costs-People ex rel. Mary S. Prendergast, appellant, v. Anna H. Fargo, respondent; Annie Smith, respondent V. Philip Smith, appellant; People ex rel. Thomas Byrnes, appellant, v. Stephen B. French and others, commissioners, respond. ents; Amelia Merritt, respondent, V. John H. Merritt, appellant.Appeal dismissed, with costsLewis J. Goddard, receiver, appellant, v. Stephen Stiles, respondent; People ex rel. Abraham Dowdney, appellant, v. Hubert O. Thompson, respondent; Jacob Crounse and others, appellants, v. Harlow G. Boothwick, sheriff, respondent; People ex rel. William H. Osgood and another, appellants, v. Commissioner of Texas, respondent; Pardee Carpenter,, appellant, v. Harriet P. Wood, respondent.- -Order affirmed, with costs. No opinion, all concur-People v. Merchants' Bank (claim of Whittaker).-Motion to advance as preferred, denied, with costs-Elias Q. Horton, respondent, v. Coffin L. Brown, executor, appellant.Motion to date decision nunc pro tunc as of March 24, 1885, granted, without costs-Ezra Caulkins, respondent, v. Danforth D. Bolton and another, commissioners, appellants.

NOTES.

An important decision concerning innkeepers. Among the anecdotes of Judge Walton is the following: Early after his first appointment he went to Alfred to hold court, and called on Landlord Berry, who offered him his best room with a proviso that after ex-Judge Howard's arrival he would have to put him in another room. "Well, what room?" asked Judge Walton. He was shown a little 7 by. 9 den, whereupon he told Berry that he would take the best room, as Judge Howard would not want it. "Why not?" asked Berry. "Because," said Judge Walton, "I shall adjourn the court to-morrow to Saco." "Who is going to take your place here?" asked Mr. Berry, who was not quick to take in the situation. "Why, nobody," said Judge Walton. "A judge can't stay in town and hold court and sleep in the street; he must have a room." "Oh," said Berry, "I will see." He saw, and was conquered. He told Judge Walton he could have his best room. At the end of the term Judge Walton gave the landlord this advice: "Court week is your harvest. If you want a long term and to make lots of money make the judge just as comfortable as you can. He has power to break up the court just when he pleases; but if he is made comfortable he will stay just as long as he finds any thing to do."Lewiston (Me.) Journal.The Central Law Journal informs its readers that it has received commands from one or two subscribers to "stop the paper," but says the Journal, "the paper, our readers perceive, is not stopped." One of the subscribers was dissatisfied because of the Journal's opposition to champerty and an alleged attack upon the Bible. The Journal says: "This really hurt our feelings. We confess to being opposed to champerty, but we have never spoken disrespectfully of the Holy Scriptures. In fact it was from a story told in the Divine Book, of the soldiers casting lots for the garments of our Saviour, that we imbibed our antipathy to champerty.'Good news. Mr. J. W. Donovan writes that he has sold his book, "Tact in Court," to his publishers for $2,500, and that he is going to make no more books, being too busy.The West Coast Reporter evidently has a Chinese proof reader. He transforms our case of Kortright v. Cady into Kortoryght v. Kaday.

The Albany Law
Law Journal.

THE

ALBANY, MAY 16, 1885.

CURRENT TOPICS.

HE lower house of our Legislature have defeated the Civil Code by a vote of 67 to 52. This result was not unanticipated, but some of the arguments that brought it about were. Many of them were puerile, both in the house and out of it. What kind of an argument is it that 160 of the 180 lawyers of Syracuse are opposed to the Code? Or that it proposes 3000 "new" laws? Or that the members have not read it? When will they read it, and know anything about it, or about any thing that pertains to the reform of our laws? Will it be the next week or the next year, or will it be when they have passed from their brief tenure of authority, and the battle has to be fought over again with a new set of legislators? To illustrate how little the public press understand of this matter, outside of a few journals that have taken pains to understand it, the Troy Times, one of the most iufluential and respectable newspapers in the State, published two or three weeks ago an argument of some length in favor of the Code, but referring to the bill as an act to "amend" the Field Code, as if that were an existing law. Now that the act is defeated, the same journal characterizes the defeat as a "meritorious" act, and one of the three only meritorious acts of the house! Such are the instructors of our people, and such are our law makers. We say nothing of the inner history of this winter's campaign, although there is a history. We only say that we believe that the lawyers of the New York City Bar Association have left no stone unturned to effect their purpose. Of course, no one believes that a profession too lazy or indifferent to read the proposed Code have ever read Mr. Carter's or Mr. J. Bleecker Miller's oracular utterances on the sub

ject. We believe we are the only man in the State who has read them all. Any candid man who read the speeches in the House on the third reading must admit the great superiority of those of the friends of the bill. Personally, we say, as we said a year ago, the result is not disadvantageous to us as editor and reporter of opinions. But, how will it suit even such code-phobists as Mr. Cowen, who used columns of this journal in blaming the Court of Appeals because they thought there is a legal difference between a ditch and a drain, and who would like to have some certainty about such things? But we are not discouraged. We shall be alive and lively, long after Prof. Dwight, the great constructor of lawyers upon the "elastic" principles of the common law, and Mr. Carter, a really great lawyer, and Mr. J. Bleecker Miller, who doubtless will be greater some time, and all the rest of our opponents shall be dead and mainly forgotten. We might feel discouraged were it not for the recollection that the first law writing we ever VOL. 31- No. 20.

did was a thesis in 1857 in favor of allowing parties to be witnesses for themselves. A long and thorny and up-hill road is that of law-reform. Mr. Field also will be alive for twenty years; and he says: "I am not in the least discouraged. We have gained largely in circulating a knowledge of the Code, and the fifty-two members, who voted for it, acted upon a better knowledge of the subject than any fiftytwo members ever did before." In closing, we would remark, that if it is the purpose of our Legislatures to know the Code before voting for it, why did not Gov. Cleveland sign last year's bill for a commission! Will some of the New York clique rise to explain?}

Although we desire to be known as the "

organ

of our profession in this State, we also desire it to be understood that we are not to be played upon So we frequently by others upon every occasion. suppress what seems to us trivial fault-finding with our courts. We rather like to reserve that privilege for ourselves. Occasionally we make an exception in favor of a well-known lawyer of high standing, like Mr. Cowen, who adjourned his case to the tavern, and now in favor of Judge Peck, who finds fault in another column. Readers will draw their own conclusions. Judge Peck publishes on his own responsibility and signs his name like a man. If some of his readers come to the conclusion that he was beaten upon a technicality savoring more of old times than of Code practice, we shall not be surprised. We feel free to say, however, that such a state of things is a reproach to our system of law, which professes to be superior to such doctrines.

Now that we are in a fault-finding mood, we may as well inquire what right Judge Van Brunt had to tell the jury in the Short case that he was surprised at their verdict? He probably was, and so perhaps were others, but we conceive that it was no more in his province to tell them so than it is in ours. Two hundred years ago he would have had the power to emphasize his surprise by putting them in jail. The result was no more surprising to us than the usual verdict in corporation cases, whether tried by judge or jury, or in cases of emotional killing for injured honor's sake. It is unfortunate that the people cannot have a new trial in this case on the ground of the judge's surprise.

At a meeting of the Tennessee Bar Association last year, papers on codification were read by J. A. Cartwright, W. O. Vertrees and J. M. Dickinson, of Nashville, and ex-Judge Sneed, of Memphis. Messrs. Cartwright and Dickinson, pro, and the others, con. But Judge Sneed made the following telling argument in favor of codification: "In my judgment, one of the greatest evils under the sun is the rapid accumulation of books of reports which contain no new doctrine. Just think of it. A hundred years ago there was not a book of reports on this side of the sea. Ninety years ago there

were only two. And yet that was confessedly the Augustan age of great American lawyers. Now, there are between three and four thousand, and they are accumulating in this country at the rate of about a hundred every year. It was found that there were not geese enough in all the world to supply the judiciary with quills to write opinions with, and an ingenious artisan at Sheffield invented steel pens and scattered them broadcast over the world, mainly to meet the demands of the cacoethes scribendi, which, like an epidemic, had smitten the common law and equity courts of England and America." This we glean from the Central Law Journal.

According to the Tribune, a witness in the Hoyt will case, answering to a certain question by General Butler, on cross-examination, that "he could not tell," that refined and universally respected gentleman observed: "Very well, don't answer then; it will take a good while to tell all you don't know." It was hardly necessary to send to Boston to get a vulgar brute to treat a witness in this way. There are plenty of shysters hanging around the Tombs who could do this just as well, without having been generals, and congressmen, and governors, or tried to be presidents, and for much less money.

The Language Club at Columbia College have been discussing "Iteration.” According to the Tribune, David Dudley Field gave an exhaustive exposition on "Iteration in Law." He said that there were 860 superfluous words in every deed and 1,240 in every mortgage, and that the people of the State pay every year $100,000 for the recording of superfluous words. It was generally stated by lawyers, he said, that the use of so many unnecessary words was a matter of habit. Ex-Judge Dillon said

The

that since he represented the bar he was obliged to plead guilty to the charge of Mr. Field. remedy, he added, was in the hands of the Legisla

ture. When these old forms were first used there were reasons which made the iteration necessary, but since the reasons no longer existed legal forms could be shortened without detriment to any one. The laws and forms covering the credit system in this country and in Europe were explained and as a

moral, Mr. Dillon said that the Code should protect those who sold goods on credit to such an extent that all legal documents could be exceedingly brief. Mr. Field might have instanced the senseless iteration in assignments for creditors and in wills. Some of this springs from habit, but more from uncertainty in the law or in the writer's knowledge of it. The author of "Lorna Doone " says, in that admirable novel, that the lawyer "takes a careful delight in covering his traps and engines with a spread of dead-leaf words, whereof he himself knows little more than half the way to spell them."

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the father placed the child with relatives of the mother, who nursed and cared for it until it had attained the age of seven years. After the child had been cared for while very delicate and sickly, the father gave a written promise to the relatives by which he agreed that the child should never be taken from them. Subsequently, the child having been allowed to visit the father, the latter refused to allow him to return to his relatives. Upon the return to a writ of habeas corpus, procured by the relatives, the court refused to receive evidence tending to show that the present wife of the father was an improper person to have charge of the child, and that his home was an improper place in which P. J., said: "It is not clear from the authorities to bring up a young child. Held error. Barnard, that a father may recede from an engagement in ceived the child under it. If the subject were respect to his child, made with one who has reany thing but a child it would not be averred to be the correct and legal thing to avoid the engagement because it was against public policy and against the paternal right. I do not think these cases call for such a rule. They hold that the father's right is paramount as to the custody of the child. That as against the mother all things being equal his right is the best. That an agreement between husband and wife as to the custody of the child is bad. It is not necessary to decide this question upon the present record. It may be stated as a general rule in this state that the rights and interest of the child are paramount upon the question of the custody of the child. Wilcox v. Wilcox, 14 N. Y. 576. This ques tion includes the home of the ladies from which the boy goes. That is clearly seen from the case. It includes also the home of the father. The Special Term refused to receive proof that would show it to be an improper home to which a child of seven and upwards should go. The glimpse obtained from the eviof the divorce of a former husband of his present dence is not favorable. The father was the cause wife by her adultery with him. After the divorce he married her, Proof is refused which would show or tend to show that the present wife is very intemperate in some cases, at times to such an extent as to be helpless. Proof tending to show practices in what is known as spiritualism is also what this home is in respect to assemblages and refused. The proof of the character of the respondent's home should have been received." See note, 40 Am. Rep.

In Buck v. Moore, 35 Hun, 338, while the defendant's dog was following her along the street, it ran into an adjoining yard and there seized and killed the plaintiff's dog, without passive volition or the defendant's knowledge. Held, that defendant was not liable. Dykman, J., said: "It must be noticed in the outset that the action is not for trespass on the plaintiff's close, aggravated by the mischief' done thereon, but is simply for the damage sustained by the death of the dog. The case therefore seems to fall within rule 3 of Moak's

Underhill on Torts. 'No person is legally responsible for any act or omission not attributable to active or passive volition on his part.' In other language, no person is responsible for an involuntary injury. If while following its owner along a highway, a dog discovers game and follows it, the owner is not liable. By the common law the owner of a dog that worried and killed sheep was not responsible for the damage done, and it required a statute in our State to create such liability. The reason of this rule was that the killing and worrying of sheep could not be anticipated or expected to result from a dog running at large. That rule applies here. The defendant could not know or believe that her dog would kill or injure the dog of this plaintiff, simply because she permitted her dog to follow her along the street.” Chemot v. Larson, 43 Wis. 536; S. C., 28 Am. Rep. 567, and note, 569; Fallon v. O'Brien, 12 R. I. 518; S. C., 34 Am. Rep. 713; Saunders v. Teape, Q. B. Div., 29 A. L. J. 321.

** *

In People v. Dennin, 35 Hun, 327, the defendant and two other men played ball on Sunday in private grounds with the consent of the owner thereof. They simply pitched the ball from one to another and made no noise. Held, that their playing was not prohibited by section 265 of the Penal Code, which provides that "all shooting, hunting, fishing, playing, * upon the first day of the week, and all noise disturbing the peace of the day, are prohibited." To constitute a violation of that section the "playing" must seriously interrupt the repose of the community on Sunday. Barnard, P. J., said: "From the three sections it is manifest that the thing done must be a serious interruption of the repose of the community on Sunday. The thing prohibited must be to a greater or lesser extent public. The proof in the present case fails to make out an offense. The grounds were private. The defendant was not even a trespasser, as his entry thereon was by permission of the owner. There was no noise. There was no assembly of persons beyond the three persons, and the offense was made up entirely by one person, the defendant, throwing the ball to another person to catch. the third person was a party to the play of ball, throwing it would make no difference. The essential character of the crime was wanting. There was nothing done to disturb the repose of the community. That is in terms declared to be the object of the law."

If

In Belford v. Canada Shipping Co., 35 Hun, 347, the plaintiff, a carpenter, was employed in erecting some cattle stalls on the upper or hurricane deck of a steamer belonging to the defendant. On stopping work in the evening he went with the assistant engineer to the deck below where his tools were placed by the engineer in the boiler to hide them over night. On returning to the vessel the next morning the plaintiff, while walking along the lower deck to get his tools, fell into a bunker hole

and sustained injuries. Held, that defendant was not liable. Pratt, J., said: "It was no part of the duty of the assistant engineer to assist the plaintiff in hiding his tools, or show him where to hide them for the night, therefore the plaintiff voluntarily and at his own risk went to a part of the vessel where no duty called him and where the defendant could not presume he would be likely to go. The plaintiff's work was upon the spar deck, and if he chose for his own purposes to go upon other parts of the vessel he went there upon his own risk. It would be a harsh and unreasonable rule to hold that if a person was employed to work upon a certain portion of a vessel, all other use of the remainder must be suspended in anticipation that the workman might travel to parts where no duty called him, and thereby receive some injury. So long as the master keeps the places where the workman is employed, or likely to go, in a safe condition, he discharges his whole duty in that regard. It has been held that the owner of a vessel is not bound to close the hatches at night so as to protect from injury a trespasser, or one who has no right or license to be on the vessel. Severy v. Nickerson, 120 Mass. 306; S. C., 21 Am. Rep. 614; Zoebisch v. Tar

bell, 10 Allen, 385. It cannot be said that the plaintiff was invited or licensed to go forward to the boiler, or that he went there in any connection with the work he was employed to do. I fail to see any negligence or breach of duty on the part of the defendant causing the injury to the plaintiff. The case must turn upon the single point whether there was either an expressed or implied invitation by the defendant to the plaintiff to go where he was injured, and there being no conflict of evidence it was a question of law for the trial judge to determine. To say that every portion of a vessel over 300 feet long must be guarded and kept safe, because at a particular place a workman is employed and may assume to leave his work and travel over the whole ship where no duty calls him is unreasonable." See note, 36 Am. Rep. 403; Wright v. Rawson, 52 Iowa, 329; S. C., 35 Am. Rep. 275; note, 40 Am. Rep. 327.

RULES AS TO THE PRIVILEGES OF WIT

NESSES. VII.

RULE. The risk of prosecution to avail the witness as an excuse for refusing to answer a question must be to himself (a), and must be a reasonable one in the ordinary course of justice (b).

ILLUSTRATIONS.

(A.)

A. being called on to give certain evidence declines, on the ground that it will subject B. and C. to penalties. This is no answer and A. must testify (1).

"The privilege is confined to penal consequences (1) King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 329 (1851).

likely to be occasioned to the party himself; nemo
tenetur seipsum prodere; but there is no privilege
against disclosing matter within the knowledge of
the party merely because it might subject other
persons to punishment."
(B.)

1. On a trial of B. for bribery, C. a witness is asked if he had received a bribe from B., C. refuses to answer, on the ground that it may criminate him. It is shown that C. has received a pardon from the Crown covering the matters inquired into. C. will be compelled to answer, although there is a possibility that the pardon may be informal or that he may be impeached by the House of Commonspardons from the Crown not covering this (2).

In case 1 Cockburn, C. J., said: "We are of the opinion that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things-not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and naked possibility, out of the ordinary course of the law, and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice. The object of the law is to afford to a party, called on to give evidence in a proceeding inter alios, protection against being brought by means of his own evidence, within the penalties of the law. But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice. Now in the present case no one seriously supposes that the witness runs the slightest risk of an impeachment by the House of Commons. No instance of such a proceeding in the unhappily too numerous cases of bribery which have engaged the attention of the House of Commons has ever occurred, or so far as we are aware, has ever been thought of. To that such a proceeding would be applied suppose to the case of this witness would be simply ridiculous; more especially as the proceeding (in this case) was undertaken by the attorney general by the direction of the House itself, and it would therefore be contrary to all justice to treat the pardon provided in the interest of the prosecution, to insure the evidence of the witness as a nullity and to subject him to a proceeding by impeachment. It appears to us therefore that the witness in this case was not in a rational point of view, running the slightest real danger from the evidence he was called on to give when protected by the pardon from all legal proceedings; and that it was therefore the duty of the presiding judge to compel him to answer. And Crompton, J., asked: "There is always the remote possibility that there may be (2) R. v. Boyes, 1 B. & S. 311 (1861).

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1. A witness, a foreigner, refuses to produce certain documents on the ground that they would expose him to prosecution in his own country. There is no proof as to what acts are penal in his country. The proof is not privileged (3).

In case 1 Lord Cranworth, after pointing out that as to the laws of the former the judge is able to determine whether or not the act which in the opinion of the witness is a crime, does or does not amount to a crime, said: "In respect of penal consequences in a foreign country, this cannot be. No judge can know, as matter of law, what would or would not be penal in a foreign country; and he cannot therefore form any judgment as to the force or truth of the objection of a witness, when he declines to answer on such a ground. In the present case indeed there will probably be no difficulty in believing that the defendants are speaking quite truly; as the documents may, in all probability, form links in a chain of evidence which might enable the courts in Sicily to convict the defendants of high treason. But if the principle is once admitted, it must be admitted in all its ramifications. Thus, for instance, in a bill against a firm, some of whom, though resident here, are Spanish subjects, seeking an account of mercantile transactions in Spain, the defendants might refuse to set out an account of these transactions, on account of the dealings having been (as probably they would have been) to a great extent, contraband, and so tending to subject them to penalties for having infringed the fiscal law of Spain. The case was put, at the bar, of a bill for an account of an opium transaction in China; and instances might be multiplied, to almost any extent, by ascertaining, as matter of fact, what acts, by the laws of any foreign country, are penal, though not so here, and which might become the subject of investigation in our courts. The impossibility of knowing, as matter of law, to what cases the objection, when resting on the danger of incurring penal consequences in a foreign country, may extend, furnishes very strong, and to my mind, satisfactory evidence that the objection cannot be sustained. It is to be observed that in such a case, in order to make the disclosure dangerous to the party who objects, it is essential that he should first quit the protection of our laws, and willfully go within the jurisdiction of the laws he has violated. Now in the present case, the parties objecting are Sicilian subjects; and so the probabil

(3) King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 301 (1851).

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