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unjust, un-American, to infer thence that the bar is degraded."

Another change is thus expressed by Mr. Hammond: "The whole tendency of legal science, especially in this country, is to simplify rules and processes-to make legal institutions and relations more uniform, natural, harmonious. The results interest us here in two ways. (1.) The science of law is simplified, and thus rendered easier of access. But in this respect its effects coincide with those of many other causes, and will be mentioned hereafter. Of more particular interest is it (2) that all these changes in the law have exposed the law itself, and its practitioners to popular criticism, as they never were exposed before. The law is not only so expressed that laymen as well as lawyers may understand it; but its rules and institutions are subjected to the judgment of the whole community. It is no longer sufficient to excuse injustice or absurdity, that the law is so. Public intelligence asks why it is so, and demands that it shall be brought into harmony with the moral convictions of its subjects. Public opinion reviews the code of the legislature, and the decisions of the bench, distrusting all that it cannot fully comprehend, and mercilessly warring upon all that is not consistent with its own sense of right and justice. Never in the history of our race have the bar and the bench been subjected to so thorough and unsparing criticism as now, and it would be remarkable indeed, if some traits of human imperfection were not found in both. Every act of theirs is scrutinized to see whether the slightest trace of selfinterest, or human passion spots the ermine or stains the entire devotion of the advocate to the interests of his client."

There is a good deal of truth in Dr. Hammond's remarks when he says that "admission to the American bar is so easy that men secure it first, and then determine whether they are to be lawyers or something else. There are even certain occupations -not of the highest rank: e. g., politics and office-seeking, to which the bar has become a sort of recognized thoroughfare. Others try it confessedly as an experiment; and with such it is almost, of course, a losing one. Still others fancy that it adds respectability to some of the less recognized, but more immediately lucrative occupations-real estate, brokerage, tax-paying, insurance agency, etc., etc. All these classes together have made the nominal bar a great, ill-sorted, disjointed body of self-appointed members, having little or nothing in common with the true bar, composed of men who study the law for its own sake and practice it as the work of their lives."

In respect to the absolute merits of the legal profession, Dr. Hammond has some very fine views, which he utters in an impassioned style. Toward the close of his address he says: "A man can find no nobler occupation on earth than the practice of the law; and such men there have been, and are, in the profession; would that they were more frequent! It is a regret such as every profession must feel in viewing its own short-comings. But in this world of shortcomings, it is something at least to cherish a high ideal." The address does not afford any practical suggestions for the reformation of the legal profession; nor does it attempt to seek a corrective for the tendencies of the times. But the noble sentiments and high ideals which the address endeavors to infuse will doubtless do much toward preparing the rising profession in Iowa for the reformation of itself.

INCOME TAX-THE CONSTITUTIONALITY OF THE ACT OF CONGRESS OF JULY 14, 1870. In Smedberg v. Bentley, a case decided recently in the United States Circuit Court for New Jersey, the constitutionality of the tax on incomes imposed by the act of congress of July 14, 1870, was considered. The plaintiff paid his tax under protest, and brought this action against the collector to recover back the amount so paid. The ground which the plaintiff took was that the income tax was unconstitutional, because it was a direct tax within the meaning of the constitution, and ought to have been apportioned among the States according to population. Nixon, J., before whom the case was argued, proceeded to examine into the meaning of the phrase, "direct tax." In his opinion reference is made to the celebrated case of Hylton v. United States, 3 Dal. 171. That case was elaborately argued and considered, and it was then held that a tax on carriages was not a direct tax. Judge Nixon also cited Pacific Ins. Co. v. Soule, 7 Wall. 443, and Veazie Bank v. Fermo, 8 id. 533, arising under the act of June 30, 1864, and its amendments. The opinion closes in the following language: "Under the constitutional designation of the different kinds of taxation to which resort might be made by congress, a tax upon incomes must be classed amongst the duties authorized, rather than among the direct taxes. No apportionment is necessary when it is laid, and there is nothing to be done but to sustain" the validity of the



In Baulac v. The New York & Harlem Railroad Co. the Court of Appeals recently decided an important point in the law of master and servant, to wit., that in an action by a servant against a master to recover for injuries received through the negligence of a coservant, in order to charge the master with negligence in retaining the co-servant in his employment, evidence of the prior acts and conduct of such co-servant on specific occasions may be given, with proof that the master had knowledge of such acts.

In that action, it was alleged that the plaintiff's intestate came to his death through the negligence of one McGerty, a switchman of defendants. On the principal point the court, Rapallo, J., delivering the opinion, said:

"The complaint is, that he (the switchman) was retained in the service of the defendant, and in the same capacity, as a switchman, after he had shown himself unfitted for the position, and unsafe to be trusted in it. Proof was given of a single occurrence, in respect to which it was claimed an accident, similar to that which resulted in the death of the deceased, was occasioned by his negligence and carelessness, and that knowledge of the fact was brought home to the general agents of the defendant. When, as here, the general fitness and capacity of a servant is involved, the prior acts and conduct of such servant on specific occasions may be given in evidence, with proof that the principal had knowledge of such acts. The cases in which evidence of other acts of misconduct or neglect, of servants or employees whose acts and omissions of duty are the subject of investigation, have been held incompetent, have been those in which it has been sought to prove a culpable neglect of duty on a particular occasion, by showing similar acts of negligence on other occasions.

This class of cases have no bearing upon the case in hand, and may be laid out of view. Proof of specific acts of negligence of a servant or agent on one or more occasions does not tend to prove negligence on the particular occasion which is the subject of injury. When character, as distinguished from reputation, is the subject of investigation, specific acts tend to exhibit and bring to light the peculiar qualities of the man, and indicate his adaptation, or want of adaptation, to any position, or fitness or unfitness for a particular duty or trust. It is by many or by a series of acts that individuals acquire a general reputation, and by which their characters are known and described, and the actual qualities, the true characteristics of individuals, those qualities and characteristics which would or should influence and control in the selection of agents for positions of trust and responsibility are learned and known. A principal would be without excuse should he employ for a responsible position, on the proper performance of the duties of which the lives or persons of others might depend, one known to him as having the reputation of being an intemperate, imprudent, indolent or careless man. He would be liable to the fellow-servants of the employee for any injury resulting from the deficiencies and defects imputed to the individual by public opinion and general report. Still more, should he be chargeable if he had knowledge of specific acts, showing that he possessed characteristics incompatible with the duties assigned him, and which might expose his fellow-servants and others to peril and harm. Frazier v. Pennsylvania Railroad Co., 38 Penn. St. 104, is adverse to these views. There evidence was admitted, over the objection of the defeudaut, of repeated acts of negligence of the conductor, by whose carelessness the plaintiff, a brakeman on the train, was injured, resulting in collisions before the time of the injury to the plaintiff, for which the conductor had been fined by the company, and that the agents of the defendants knew these facts, and it was held error. The court, while conceding that character grows out of special acts, held, that it could not be proved by them, and the case was classed with those in which character is proved by way of impeachment, and in which it would be impossible to investigate specific acts, and in which general reputation alone can be given in evidence. It is safe to say that this decision has not been received with approval by the profession. Wharton on Negligence, 238, and notes. It is reviewed in Pittsburgh, Fort Wayne & Chicago Railroad Co. v. Risley, 38 Ind. 394, in a very satisfactory opinion by Buskirk, J. The court in that case was of the opinion, and so held, what I think the most reasonable doctrine, that, for the purpose of showing that the officers of a railroad corporation did not exercise due care, prudence and caution in the employment of or in retaining in service careful, prudent and skillful persons to manage and operate its road, and for the purpose of charging such corporation with notice of the incompetency of its employees, specific acts of negligence or unskillfulness of such employees may be proved."

The Hartford Evening Post publishes a number of laws which remain on the statute books in Connecticut, but which are practically inoperative. These statutes relate to horse-racing, betting on elections, lotteries, proper observance of the sabbath, blasphemy, baggage smashing, etc.

COURT OF APPEALS DECISIONS. The following decisions were handed down in the New York Court of Appeals on Tuesday, February 9, 1875:

Judgment affirmed with costs-The Mechanics' and Traders' National Bank of New York v. Crow; Slawson v. The Albany Railway; Hackley v. Draper; English, administratrix, v. Brennan.- - Judgment reversed, new trial granted, costs to abide the eventsLarned v. Hudson.. -The judgment against Walbridge affirmed with costs, and the judgment as to the other defendants reversed, and a new trial granted, costs to abide the event-Hoag v. Lamont.- -Judgment of the Supreme Court and the decree of the surrogate reversed, and the proceedings remitted to the surrogate for a rehearing of the claim and a re-settlement of the amount-Elmore v. Jacques. Judgment modified by deducting $221.89, the amount of interest included in the report at the date of the report, and as so modified judgment is affirmed without costs to either party-Smith v. Velie, adm'r, etc.Order affirmed and judgment absolute for plaintiff, on stipulation, with costs-Planch v. The N. Y. C. & H. R. R. R. Co.-Appeal from order of December 22, 1873, dismissed, and order of April 15, 1874, affirmed, with costs- - Bartlett v. McNeil.Order of general term reversed and judgment ordered on verdict for plaintiff if plaintiff stipulates to deduct from the verdict $1,574.44, the difference between the value of the wheat allowed upon the trial and the value of the wheat at the time of the conversion, neither party in that event to recover costs in this court against the other. If the plaintiff does not so stipulate within thirty days, the order of the general term must be affirmed and judgment absolute for defendants, with costs-The Manufacturers' and Traders' Bank of Buffalo v. The Farmers and Mechanics' Bank of Buffalo and others. Motion to stay proceedings denied, without costs-Thompson v. Tracey, ex'r, etc.Motion for re-argument denied, with $10 costsDowdney v. McCollom; McGrath v. N. Y. C. and H. R. R. R. Co.; Skinner v. Valentine, impleaded, etc. Motion to restore cause granted-The People ex rel. Mann v. Mott and others, comm'rs.


Judge W., of whom we have before spoken, used to give the following, among his experiences in holding court, in what was called the Old Colony: A respectable-looking, middle-aged woman had testified in a case, and an attempt was made to impeach her testimony, by showing her bad reputation for truth and veracity. Some balf a dozen witnesses were called and sworn, and the inquiry was put to them, one after the other, whether they knew her reputation, and what it was in that respect? As is common in such cases, the witnesses made wretched work in answering the inquiry, running off into all kinds of beliefs and opinions, and guesses and statements that they had never had any difficulty with the witness, etc., notwithstanding every effort of court and counsel to get a categorical auswer to the question. One of the witnesses, who had not yet been called, seemed greatly interested in this colloquy; he was evidently impatient to be called, and, by his manner, showed his disgust at the rambling, indefinite testimony of the other witnesses. He looked first at the judge, then at the witness, and then at the

counsel, and could hardly be kept from volunteering his statement before he was called. At last his time came, and he quickly mounted the witnesses' stand with an air of entire confidence. The counsel began: "Mr. Jones, have you heard the question put to the other witnesses?" "Yes, sir." "What do you say, do you know the reputation of Miss So-and-so for truth and veracity?" "Yes, sir." "Well, then, we hope you will give us an intelligible answer." "Yes, sir," replied the witness. "Tell us, then, what is her reputation for truth and veracity?" "Her reputation, sir, for truth is good, but for veracity it is decidedly bad." The witness subsided, and the examination was not pursued any farther.


The portrait of the late Judge Peckham, which has been on exhibition at a well-known art gallery in Albany, and which will be ultimately transferred to the walls of the Court of Appeals chamber, does credit to the artist, Jared B. Flagg of New York, and is a magnificent likeness of the deceased judge. No one can look upon this portrait without a feeling of admiration for the nobility of character, the fixedness of purpose, the intellectual powers which are so excellently and completely portrayed. Few jurists have better claims upon the remembrance of the bench and bar of the State, and these are to be congratulated on the existence of this portrait.

The Journal du Droit International Privé contains the continuation of an article from Prof. Mancini, of Rome, on the utility of rendering obligatory upon all countries (in the form of one or several international treaties) a certain number of general rules of private international law, for the purpose of securing the uniform settlement of conflicts between different laws, civil and criminal. The Journal also contains reports of cases in Germany, Belgium, Egypt, Italy, Russia and Switzerland; also, a brief history of legal events in Europe and America of international importance. The Journal also contains a notice of Mr. David Dudley Field's "Outlines of an International Code," as translated into Italian by Prof. Aug. Pierantoni, of Naples; and states that the translation has been accomplished in the interests of science and of liberty. The Irish Law Times says: It is a matter to be regretted that our most distinguished law students, when they have obtained the prizes within their reach in Ireland, carry their knowledge to England, and become members of the English bar; but there is now an instance of a gentleman who, having obtained high distinction as a student in England, has come back to Ireland to study for the Irish bar, as we learn from the list of new students, that Mr. Edward Cuming, who obtained the first studentship this term at the Inns of Court, London, has entered as a student at the King's Inns, and also obtained third prize in equity, 1873-4, at the English Inns, equity being the only class in which prizes are awarded.

Sir Henry Singer Keating will resign his seat in the court of common pleas, England, before the spring circuits. The learned judge was appointed in December, 1859.—Robert French Sheriff, Esq., has been appointed attorney-general for the Leeward Islands.- Hugh Riley Semper, Esq., has been appointed attorney-gen

eral for the Island of Barbadoes.- -The Canada Law Journal says that it is stated in the English law papers that the long-pending controversy among the English common law courts, touching the meaning to be given to the words "cause of action," has been adjusted. The point arising on the construction of the 18th section of the first common-law procedure act (1852) was before the court of common pleas in Vaughan v. Weldon, last January. Whereupon a general conference of the judges was held and a majority determined in favor of the exposition given to these words by the judgment of the common pleas. All the judges adopted this conclusion, so that now there is complete unanimity on the result, viz., that this expression means "the act on the part of the defendant which gives the plaintiff his cause of complaint."

The Toronto Globe says that the necessity for a supreme court of appeal for the dominion of Canada has been long foreseen and admitted. The constitution of such a tribunal was anticipated in the British North America act. In the 101st section of that statute it is provided: "The parliament of Canada may, notwithstanding any thing in this act, from time to time provide for the constitution, maintenance and organization of a general court of appeal for Canada." Sir John A. Macdonald made two or three attempts to establish such a court, but on each occasion he failed to carry out his intentions. It will be, therefore, greatly to the credit of the present government if they have been able to reconcile conflicting views and opinions, and present a scheme generally acceptable to parliament and the country. One difficulty in the way of such a measure has been the jealousy of Quebec of the proposal to submit her causes in appeal to judges not specially versed in her peculiar system of civil law. We believe, however, that these objections have been to a large extent overcome, and that the ensuing session will witness the passing of an act for the organization of and giving powers to a supreme court of appeal, and thus supplying the final want of the judicial system of Canada.

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At the regular monthly meeting of the New York Bar Association the executive committee reported that there were 645 members of the association, and that there was a balance in the treasury of over $21,000. The chairman of the committee to consider the project of obtaining better accommodations for the association reported that a suitable location had not yet been found. The expense was the chief difficulty to be overcome. A resolution was adopted that the committee report a plan at the next regular meeting for securing a new building, based upon a subscription by the members. A resolution was also adopted in opposition to the bill before the legislature compelling lawyers to employ the sheriff instead of the marshals to levy executions in cases in the marine court.

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.



couragement I feel at finding my earnest and unselfish labors in the public service diverted from their legitimate ends, by this decision of the grand jury, the inevitable consequence of which will be to double the already onerous duties of this society." He writes, that although he does not mean to 66 censure "the grand jury, yet "a scandalous stain on our civilization has been condoned." But there is a sequel to this letter which may cause Mr. Bergh to be sorry that he ever wrote it. The foreman presented the letter to Recorder Hackett, who said that no man had a right to send a communication to any grand juror, and that Mr. Bergh would be summoned to appear and make such excuses as he can to justify his conduct.

The contest in regard to the "legal paper bill " goes on with much interest and vigor. The New York dailies continue to advocate the passage of the repeal bill and the Daily Register continues strongly to oppose this. The Register has at last been driven to the expedient of getting up a petition in favor of its continued existence. It claims to have obtained the names of the leading firms and lawyers in New York, and to have presented to the assembly judiciary committee a petition of which it has “just cause to be proud." It has been sometime since so small a matter caused so great a commotion, for now the Register calls upon the lawyers of New York "to take advantage of this auspicious occasion to assert and vindicate the power of the profession in defeating" the so-called attempt of the non-professional papers to dictate what shall be the rule in matters relating to the judiciary and the profession.

The Court of Arbitration, in New York, has been so successful and occupies so prominent a place in the judicature of the metropolis, that additional legislation is demanded in reference to it. An act has been introduced into the legislature amending, in some respects, the act of last year creating the court; and providing that the salaries of the Arbitrator and the clerk shall be paid by the city and county of New York. In support of the proposed legislation, a committee of the New York Chamber of Commerce has addressed the judiciary committees of the legislature. The remarks of Mr. Elliot C. Cowdin, in regard to the subject, were particularly interesting and elaborate. He traced the origin of the system of arbitration from the time of Justinian. Tribunals of arbitration were also early established in France; and the French Tribunal of Commerce has virtually existed ever since 1563. In Germany a congress of jurists assembled in 1864, and declared that the Court of Arbitration of Hamburg was the best because it introduced the legal element, in the person of the presiding judge. In Denmark the "Court of Reconciliation" has existed since 1795. Tribunals of arbitration for the settlement of commercial disputes, now exist in France, Germany, Russia, Austria, Spain, Italy, Belgium, Denmark, and it may be said throughout Europe. The New York Court of Arbitration is the outcome of the same conditions which necessitated the European tribunals of like character; it is the result of demands for a more prompt, simple and cheap method of disposing of disputes than can be afforded by the ordi-detached by the holder of certain of the bonds, nary courts of law.

The president of the society for the prevention of cruelty to animals, Mr. Bergh, not content with ferreting out and prosecuting those who offend against the laws for the protection of animals, has now begun to instruct the grand jury on its duty in cases brought before it. The grand jury failed to find a bill against a person accused of being engaged in a dog fight, although the facts implicating him were, as Mr. Bergh alleges, fairly stated to the grand jury. Mr. Bergh then adopted the most extraordinary method of writing a letter to the foreman of the grand jury in which he says, "I think on reflection you will, in a measure, realize the disVOL. 11.- No. 8.

The United States Supreme Court, in Clark v. City of Iowa, has decided a question of the greatest importance to the financial community. It appeared that in 1856 Iowa city issued bonds, payable in 1876, with interest payable annually. Coupons were attached to the bonds for the interest, and the coupons for interest due January 1, 1860, were

negotiated to other parties, and finally came into plaintiff's possession. The bonds were subsequently taken up and canceled. This action to recover the value of the coupons was brought, and the question was, whether the statute of limitations was a bar to an action on the coupons when it would not be a bar to an action on the bonds themselves had they not been canceled. Upon this question Judge Field, who delivered the opinion of the court, said: "Coupons, when severed from the bonds to which they were originally attached, are, in legal effect, equivalent to separate bonds for the different instalments of interest. The like action may be brought upon each of them, when they respectively become due, as upon the bond itself when the principal

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The Solicitor's Journal referring to the fact that Sergeant Ballantine has been offered 10,000 guineas to defend the Guicowar of Baroda says, that the time of the sergeant's absence from England will probably be about three months. The retainer fee alone is 5,000 guineas. This honorarium is said to be among the largest ever paid to counsel. In England, except in the ecclesiastical courts, as is well known, the rule has always been that a barrister has no legal right to a fee. But the fee always comes nevertheless. It is one of those customs which need no law to enforce them. In recent periods two attorney-generals and a late leader of the parliamentary bar are said to have received thirty thousand pounds each in a single year. The Journal concludes its remarks with the statement that "as far as we remember although refreshers have often been very liberal in proportion to the retainers, no retainer since the fee of four thousand guineas marked on the brief of Sergeant Wilde in Small v. Atwood, has at all approached in amount that given to Sergeant Ballantine."

One of those novel questions which occasionally vex the legal mind, and which are the outcome of peculiar legislation, was decided this week by Attorney-General Williams. The law declares that no portrait shall be placed on any of the bonds, securities, notes, fractional or postal currency of the United States while the original of such portrait is living. The question now arises whether, in placing the portaits of living persons upon internal revenue stamps, there has been a violation of this law. The Attorney-General has reached the conclusion that the law does not prohibit such portraits on internal revenue stamps.

The Judiciary Committee of the United States Senate has put an agreeable, if not conclusive, construction upon the act of June 22, 1874, which has been known as the "Press Gag Law." This act provides that the criminal court of the District of Columbia shall have jurisdiction of all crimes and misdemeanors committed in the District not lawfully triable in other courts, and which are required by law to be prosecuted by indictment or information. The thirty-third section of the Judiciary Act of 1789 was also made applicable to courts created by act of Congress in the District of Columbia. This act having been construed by the newspapers as being aimed at a restriction of their liberties, the Senate, in December last, authorized the Judiciary Committee to inquire into the meaning of the act, and particularly to examine and report whether,

under its provisions, persons charged with libel or other crime, in the District of Columbia, could be brought from a State or other place under federal jurisdiction to the District to answer therefor, and also whether the act had any application to prosecution or indictment for the crime of libel in any case.

The Senate Judiciary Committee report that the so-called "Press Gag Law" is necessary and proper, and in perfect accordance with the principles of justice and the course of civilized jurisprudence. That without provisions of this character the District of Columbia would be an asylum for offenders committing crimes against the laws of the United States, and escaping thither. The committee are also of the opinion that, under its provisions, no person charged with the crime of libel can be brought into the District of Columbia; and that no person charged with the crime of libel in any other district or place in the United States can be arrested here and sent to such district or place. The committee observe that the jurisdiction of the courts of the United States in criminal cases is confined to offenses created by the statutes of the United States, and that no offense at law is indictable or triable in the federal courts. Public Statutes v. Hudson, 7 Cranch, 32; Bishop's Criminal Law, § 199. Libel, it is held, is not a crime against the laws of the United States in any of the States, so that no case could arise in which a court or judge in the District of Columbia could be called upon to arrest a person there and send him to any State for trial for libel. The committee are of opinion that the act is not obnoxious to the criticism which has been made against it.

The governor has sent to the senate the names of Alexander S. Johnson of Utica, and Sullivan Caverno of Lockport, to fill the vacancies in the commission to revise the statutes, caused by the resignation of Messrs. Stebbins and Werner. Judge Johnson has been twice upon the Court of Appeals bench; the last time by appointment upon the death of Judge Peckham; and he was the republican candidate for that position last fall. He is a lawyer of very decided ability and will make a very excellent reviser of the statutes, provided he have the "capacity for drudgery" necessary to a prompt completion of that work. Of Mr. Caverno we know nothing except that he is recommended by several prominent western men. He has been, we believe, a master in chancery. At this writing the appointments have not been confirmed.

The irrepressible Dr. Kenealy, of whom so much has been said and written in England and America for the past year or two, and who has been compelled to meet the displeasure of English society and the English legal profession, has at last triumphed over his opponents, and procured an elec

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