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under 29 & 30 Vict. c. 90, s. 10, the defendant, as "owner," might have been required by the sewer authority to make, but which the plaintiff had made under an arrangement with the defendant by which the expense was to be borne by the party liable. Crosse v. Raw, L. R., IX., Ex., 209.


Authority-scope of employment. A local board of health, being in occupation of a sewage farm, had given plenary powers for the management of such farm in the most beneficial manner to one B. A ditch ran between the farm and the land of the plaintiff. With a view to rendering such ditch more capable of carrying off the drainage from the farm, B. wrongfully went upon the plaintiff's land and pared away his side of the ditch, and cut down so much of the brushwood and underwood on the plaintiff's side as impeded the flow of drainage along the ditch. Held, that the acts so done by B. were not within the scope of his employment; and consequently the local board were not liable for them at the suit of the plaintiff, there being no implied authority from the board to do them. Lord Bolingbroke v. The Local Board of Swindon New Town, L. R., IX., C. P., 575.


Evidence: railway company: level crossing.— A public footway crossed a railway on a level, The plaintiff, while crossing on the footway in the evening, after dark, was knocked down and injured by a train of the defendants on the crossing. He stated in evidence at the trial, that he did not see the train until it was close upon him; that he saw no lights on the train and heard no whistling. He stated also, that he did not hear any caution or warning given to him by any servant of the company. The driver and fireman of the engine were called in behalf of the company, and stated that there were lamps on the engine and train, which were lighted in due course on the night in question, at the commencement of the journey, and which, if lighted, could be seen for a considerable distance by any one standing at the crossing. A porter in the defendants' employ also stated that he had seen the plaintiff at the crossing on the night in question, and had called to him not to cross. The judge at the trial ruled that there was evidence to go to the jury of negligence on the part of the defendants which caused the injury to the plaintiff. Held, on a bill of exceptions, by Bramwell, B., Mellor, J., Pollock and Amphlett, BB. (Cockburn, C. J., and Cleasby, B., dissenting), that there was no evidence of negligence to go to the jury. Ellis v. The Great Western Railway Company, L. R., IX, C. P. (Ex. Ch.) 551.


Payment of price: condition precedent: insolvency.— Where there is a contract for the sale of goods to be delivered by installments, the price of each installment being payable on delivery, and the buyer does not pay for one installment under such circumstances as to give the seller reasonable ground for believing that he will be unable to pay for the installments to be delivered in future, and that he does not intend to go on with the contract, the seller is justified in repudiating the contract. Withers v. Reynolds (2 B. & Ad. 882) followed. Bloomer v. Bernstein, L. R., IX, C. P. 588.


Charter-party: demurrage: delay in loading: "to be loaded with the usual dispatch of the port."- By charter

party the master of the plaintiff's vessel, the D., engaged to receive on board and load a cargo of coal at the port of L., "to be loaded with the usual dispatch of the port, or if longer detained to be paid 408. per day demurrage." and the defendants engaged to load upon the above terms. The loading was to take place at the B. docks, and by one of the regulations of the docks no coal agent was to be allowed to have more than three vessels in the B. docks loading and to load at the cranes at one time The defendants acted as their own coal agents, and when the charter-party was entered into they had three ships loading in B. docks, and ten other charters in their books having priority over the plaintiffs. In consequence of these engagements the D. was not allowed to go into the B. docks until thirty days after she was ready to do so. Held, that the contract by the defendants was absolute to load with the usual dispatch of the port of L.; that the D. had not been so loaded; and that the defendants were therefore liable to pay for the delay. Tapscotts v. Balfour (Law Rep., 8 C. P. 46), distinguished. Ashcroft v. Crow Orchard Colliery Company, limited, L. R., IX, Q. B. 540.

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Leasehold, sale of: conditions of sale: “no requisition or inquiry shall be made respecting lessor's title."-Certain leasehold premises were put up for sale by auction on the following, amongst other, conditions: The abstract of title shall commence with an indenture of underlease, dated the 1st of May, 1869, being a lease from W. S. to W. B. S. for a term of fourteen years less two days, from Lady Day, 1869, and it shall form no objection to the title that such indenture is an underlease; and no requisition or inquiry shall be made respecting the title of the lessor or his superior landlord, or his right to grant such underlease." The defendant having agreed to purchase the premises, discovered that W. S. had, previously to the 1st of May, 1869, mortgaged the premises. The defendant objected that the legal estate being outstanding, W. S. had no power to grant the lease of the 1st of May. Held, that the defendant was not precluded by the condition from taking the objection; and that he was not bound to complete the purchase. Waddell v. Wolfe, L. R., IX, Q. B. 515.


Roscoe's Criminal Evidence. By Horace Smith. Seventh American Edition. With Notes and References to American Cases. By the Hon. George Sharswood, LL.D. Philadelphia: T. & G. W. Johnson & Co., 1874. This standard work on criminal evidence has gone through eight editions in England, and seven editions in America. This, of itself, is excellent evidence of the value of the treatise. The whole of the English law in the department occupied by this book, is admirably stated and classified. The American notes set forth the modifications of English law to meet the requirements of our courts. But the changes required to be made, in this respect, are not great. They consist mainly of statutory enactments, and these are comparatively few. The common-law rules of criminal evidence are considered of sufficient adaption to our social and legal conditions. This is fortunately the case, for the present treatise has not been very much Americanized by its American editors. There are a large number of American cases bearing directly upon the subjects treated in this work, which are not cited. The larger number of notes are very meagre, and the

table of cases cited does not contain the cases cited in the notes. With these exceptions this work is all that the profession can desire. Roscoe's Criminal Evidence deserves a place on the shelf beside the works of Bishop and Wharton, Archibald and Russell.

Wisconsin Reports. Vol. XXXIII. By O. M. Conover. Chicago; Callaghan & Co., 1874.

The present volume of Wisconsin Reports contains cases decided at the June Term, 1873, by the Supreme Court, consisting of Chief Justice Dixon and Judges Cole and Lyon. The decisions of this court have reached a considerable degree of prominence within a few years, and the reporter should bring them out at a date nearer that of their rendition. A year and a half is manifestly too long a time before the publication of a decision. But Mr. Conover is not the only reporter who is in arrears in this respect.

Among the important cases reported in the present volume may be noticed Gorman v. Ketchum, p. 427 This was an action on a note payable to plaintiffs only, and the complaint averred that H. K. indorsed the note for the purpose of procuring credit for the maker, and that plaintiffs paid the consideration for the note on the credit of the indorsement. Held, on demurrer, that H. K. was liable as an original promissor. One who writes his name on the back of a non-negotiable note is not liable as an indorser. In Hawes v. Town of Fox Lake, p. 438, it appears that plaintiff, who was walking along the highway in defendant town, left the traveled way because "the wagon-track was muddy and slippery, and the turf was pleasanter walking." Plaintiff, while so walking, fell into an excavation which was unguarded. Held, that plaintiff at the time of the accident was not a traveler on the highway so as to make the town liable. It seems that in this case persons who kept the wagon track passed the excavation in safety. There are a large number of very interesting cases in the volume. The reporting is well done, and the causes are fully and admirably considered.


The justices of the General Terms of the Supreme Court of this State, have designated the following times and places for holding general terms for the years 1875 and 1876:


The undersigned, justices of the Supreme Court, assigned to hold the General Terms in and for the First Judicial Department, hereby designate the General Terms to be held in the years 1875 and 1876, as follows:

On the first Mondays of January, March, May and October in each of said years, at the county court house in the city and county of New York. December 12, 1874.

NOAH DAVIS, Presiding Justice.
JOHN R. BRADY, Justice.


The justices of the Supreme Court hereby appoint General Terms to be held, in and for the Second Judicial Department, as follows:

Second Monday of February, 1875, at the court house in Kings county.

Second Monday of May, 1875, at the court house in Poughkeepsie, Dutchess county.

Second Monday of September, 1875, at the court house in Kings county.

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In pursuance of an act of the legislature of the State of New York, chapter 766, passed April 27, 1871, and acts amendatory thereof, the undersigned justices assigned to hold the general terms in and for the Third Judicial Department of said State, do hereby appoint the following general terms to be held within the said department during the years 1875 and 1876.

At the capitol in the city of Albany on the first Tuesdays of January and April in each year and second Tuesday of November in each year.

At the court house in the city of Elmira on the second Tuesday of June in each year.

At the court house in the city of Schenectady on the second Tuesday of September in each year. Dated Schenectady, November 13, 1874.

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The undersigned justices of the Supreme Court assigned to hold the general terms in and for the Fourth Judicial Department of New York, do hereby assign the following times and places for holding said terms in said department for two years from the 1st day of January, 1875, viz. :

The first Tuesday of January at the court house in Syracuse.

The first Tuesday of April at the court house in Rochester.

The second Tuesday of June at the court house in Buffalo.

The first Tuesday of October at the court house in Rochester.

Dated at Rochester, the 9th October, 1875.


Forty-three life-insurance companies have been compelled to suspend business during the last five years in the United States.

In a chancery suit, one of the counsel, describing the boundaries of his client's land, said, in showing the plan of it, "We lie on this side, my lord." The opposite counsel then said, "And we lie on that side." The chancellor, with a good humored grin, observed, "If you lie on both sides, whom will ye have me to believe?"


Judge Cooley, of Michigan, who, by the way, is the "legal editor" of Appleton's Cyclopedia, new edition, has an article in the January number of the International Review, in which he discusses the legality of executive interference in cases similar to the Louisiana case. -Judge Lowell, of the United States District Court of Massachusetts, is preparing a treatise on the Bankrupt Law.- Soule, Thomas & Wentworth announce a work on "The Law of Attorneys," meaning thereby attorneys at law. We have received from Mr. Peter G. Webster, of Fort Plain, a very excellent photograph of the late Daniel Cady, accompanied by copies of a number of letters from various prominent gentlemen to Mr. Webster eulogistic of Mr. Cady. Mr. Webster was a personal friend of Judge Cady, and the photograph is a copy of one presented to him by the Judge two years prior to his demise. Mr. Webster says: "My purpose was to give one to every honest lawyer in Montgomery county, which may be a more economical distribution, if becoming modesty is manifested by each recipient, although a general distribution may be more beneficial for reasons hereafter contained."

The British public are at a loss to understand what President Grant means by his allusions to Cuba in his annual message. If the President means intervention, it is retorted that the jewel of consistency has been unsettled and that we have forgotten our pretensions in the war of the rebellion, when we so strenuously urged that no government had a right to interfere between the North and the South. Thus is raised again in the public mind one of the greatest questions of International Law, the right of intervention. The London Law Journal says: "The commerce of all nations, and especially of England, was injured by the confederate war, and the flag of England was insulted, but we did not recognize the confederacy. We do not offer any opinion as to the expediency of intervention, but we say that intervention for the reasons alleged will be a violation of public law as construed by the United States government when that government was involved in civil war." We opine, however, that "intervention" will be for some time to come rather an abstract subject. There are no evidences of any practical application of the theory of intervention in the case of Cuba.

A correspondent of the Central Law Journal makes a suggestion as to the reclamation of "lent law books" that is curious if not practicable. He says: "Let all the lawyers of a town or city unite in the employment of some worthy, quick and capable young student, whose duty it must be to make out and keep up a complete, classified catalogue of every library in the place. This catalogue should show every book in every library, its date, edition, editor and owner, and copies of the original (which should not leave the custody of the librarian), could be furnished by the librarian, at a slight cost, to every lawyer who desires it. It should be the duty of this librarian to make frequent periodical visits to each library, noting changes, loans and returns, books missing and found, and to "keep the run" of every volume, searching for those unaccounted for, and as far as possible, keeping all in

their proper places. This labor, once reduced to a system, would be very slight, and the compensation therefor, contributed by so many, could be easily adjusted, and paid without hardship to any individual. If there exists no law association through which the matter could be arranged, let some enterprising student take hold of it and secure subscripions, or go on without subcriptions, and as soon as the utility and value of the plan is demonstrated, every lawyer who has the slightest feeling of regard for his books,'or sentiment of justice and gratitude for a service rendered, will gladly join in the good work. Besides this, the simple contact with the books, and acquired familiarity with their names, dates, editions, editors, authors, contents and relative value, will, in itself, furnish the librarian with a fund of information scarcely less valuable than his course of reading."

The recent trial and conviction of Count Von Arnim. in Germany, call to mind the fact that history presents a record of many trials of personages, some of whom occupied even higher rank than the Count. Not to go outside of British history, we shall find some remarkable instances of the trial of great persons for offenses more or less heinous. Earl Ferres was tried, convicted and executed in 1760 for the murder of his steward. The Duchess of Kingston was tried in 1776 for marrying two husbands, and was found guilty. The Earl of Abingdon was tried for libel, in 1794, and found guilty. Lord Louth, of Dublin, was sentenced in 1811 to fine and imprisonment for oppressive conduct as a magistrate. In 1812, the Marquess of Sligo was tried for concealing a sea-deserter. In 1813, the divorce case against the Duke of Hamilton, for adultery, was tried. In 1831, the Earl of Mar, Scotland, was tried for shooting at one Mr. Oldham. Royalty, too, has been on trial in England, as will be seen by reference to the trial of Queen Caroline, in 1820, before the House of Lords, for adultery. Other instances might be mentioned; but enough has been adduced to show that history is only repeating itself in the trial of the German Count.

The statistics relative to the vote on the constitutional amendments in this State have been slowly gathered. The amendment forbidding special legislation had a majority of more than 300,000 in a vote of somewhat more than 500,000, the exact figures, according to the report of the council of political reform, being 414,345 in favor of the amendment, and 97,965 against it. The largest vote was on the amendment to the second article, which provides additional security against bribery at elections. The whole number in favor was 459,658, and against it 179,891. This was the amendment which Mr. John Kelly tried to defeat in New York, which gave a majority against it of more than 2,000. Mr: Dorman B. Eaton, chairman of the committee of the council of reform, which was charged with the care of the amendments, reports that it engaged the services of more than 10,000 citizens in the State, and distributed 20,000 documents, and he mentions that some 400 newspapers actively advocated the amendments. The result is in every way satisfactory, and must be peculiarly gratifying to the thirty-two eminent citizens of both parties whe composed the commission that prepared the amend ments which have proved so signally acceptable to the people of the State.

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.



A Berlin correspondent of the Nation calls attention to some legal aspects of the Arnim case, and disposes of a notion entertained, we presume, very generally in this country, that the whole matter was a sort of Star Chamber affair, which "people in a free country would not submit to." The fact is, that

the proceedings were conducted in strict conformity

to laws in no wise materially differing from laws on the statute books of many of the States. We pride ourselves on our immunity from domiciliary visits, but they are quite as possible here as in Prussia, under the mild prohibition in our constitution, of unreasonable searches. Indeed, in this State and in some of the others, searches are provided for where books or papers of a public character are retained from their lawful custody, which was precisely the offense charged against Arnim. It seems, also, that the arrest and imprisonment of Arnim was under a law quite familiar to us, wherein it is provided that if the plaintiff in an action makes an affidavit showing good grounds of belief that the defendant is about to leave the country, or the jurisdiction, or otherwise to evade legal process, the court may grant an order of arrest. There were good grounds for such a belief in Arnim's case, and they were duly presented to the court before his arrest was ordered. We are so in the habit of believing that we monopolize all freedom and orderly procedure that it is somewhat difficult to believe that this "arbitrary act of a military government" was in precise conformity to the laws of this country.

Mayor Wickham, of New York, in a communication of no doubtful purport, has ordered Mr. E. Delafield Smith, the corporation counsel, to show cause why he should not be removed from his office. The Mayor said, in substance, that the Court of Appeals having decided that frauds upon the city treasury were remediable only at the suit of the city officials, thus turning over the interests of the local tax payers to such remedial justice as may be procurable through the agency of the City Law Department, it became his duty to take care that this single available remedy be not rendered vain and illusory. The Mayor then charged Mr. Smith with the practice of improperly submitting suits against the city to referees, even after the frequent remonstrances of the late Mayor, VOL. 11.- No. 2.

and more than intimated that the Corporation Counsel entertained a much too tender regard for the interests of the members of the late Ring. The Mayor closed by saying: "No gentleman standing in your relation to Tweed and his associates could prosecute them with the zeal and active energy needed to compete successfully with the large corps of eminent and able counselors whom their stolen millions enable them to employ."

Mr. Samuel Warren, Q. C., who has, for twentytwo years and upward, held the position of Recorder of Hull has resigned that office, and the town council has expressed an "earnest hope that the late Recorder may long be spared to enjoy, in full vigor and strength, all the happiness which he has so well earned by his upright discharge of important judihim his distinguished reputation.” cial duties, and by those labors which have secured We are sure that a very large number of lawyers, young and old, in this country, will as earnestly repeat the hope. We do not forget that it is to him we owe, what a writer in Blackwood has justly termed, "the most complete beginning book that was ever put into the hands of a young person seeking or entering a profession. He has given us also two very charming novels; and, among minor matters, two very interesting and valuable biographical sketches of two very interesting men-John William Smith, the compiler of Smith's Leading Cases, and Sir William Follett, the English Attorney-General and advocate-which sketches were published in Blackwood. It has been reserved to American enterprise to make Warren the "author" of a book of which he was entirely innocent. The "Adventures of an Attorney in Search of Practice" was issued by Cockroft & Co., about a year ago and bore upon the title page the name of Samuel Warren, Q. C., as author, and it was also issued at about the same time and from, what the internal evidences justify us in saying were, the same plates, by a Boston firm and accredited to Sir George Stephen, which was correct. Whether the New York firm erred honestly or willfully, we do not know the fact remains and is curious.

The Washington correspondent of the Times says, that the proposition to increase the number of the judges of the Supreme Court has been again revived in congressional circles. The notion that relief for delayed suitors as well as for the Court is to be found in an increase of the number of judges is simply fatuous. Twelve judges could not possibly hear an argument more quickly than nine, nor could they decide it more quickly, for, fortunately, the Court has not yet gotten into the bad practice of distributing the cases among its members, and leaving the judge to whom the case is allotted to write the opinion, and the court to come in as a chorus,

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after the style of the decision concerning a woman having a settlement." Every judge now gives his full consideration to every case, and if the number were increased it would be more likely to impede than to expedite the business. We have several times pointed out the measures needed to afford the required relief, and they are few and simple. They are briefly these: first, make the court the appellate tribunal of the District of Columbia and of the territories only in the same class of cases that it now is of the States; second, in admiralty cases and in bankruptcy, revenue and other cases originating in the district court, allow an appeal only when the District Court and the Circuit Court have differed, or upon a certification of the judges of both courts; third, in all chancery and admiralty cases limit the review to questions of law, and fourth- and most effectual enlarge the sum which now limits the jurisdiction of the court to $5,000. With these changes effected, and they are none of them radical, or unusual or inexpedient, the court would be abundantly able to keep abreast of the business, and to give to each case that consideration which the importance of the litigation and the character of the court both demand.

The letter of the Hon. William Beach Lawrence to M. Rolin Jacquemyns, the General Secretary of the Institute of International Law, which we publish as a supplement to this number, will be found to contain a very interesting review of the position and prospects of the "three rules" of the treaty of Washington, some comments upon arbitration, and a cogent argument in favor of an international law to regulate the contract of marriage. Mr. Lawrence is of the opinion, and the opinion seems certainly to be well founded, that that provision of the treaty which required the contracting parties to communicate the three rules to other powers, asking the adoption of them, will never be carried into effect, "and," adds the writer, "no one can regret that rules growing out of the exigency of the moment, established, as Vernon Harcourt has well explained, by the electrical telegraph, will not enter into the law of nations and transfer from belligerents to neutrals the expenses of wars to which the latter are strangers." Mr. Lawrence also discusses, at some length, the relations between belligerents. class of philanthropists devote themselves to the mitigation of the evils of war, while another class, among whom is M. Hautefeuille, believe that the cause of humanity is best served by making war more terrible, and thereby forcibly abridging its duration. Mr. Lawrence says, 66 that the cause of humanity can only be advanced by putting an end to war itself, and it is precisely to accomplish this result by good offices and arbitration that the efforts of publicists are now directed." The prospects of arbitration have, however, been seriously damaged by the action of


Congress relative to the Award its claim and exercise of the right arbitrarily to retain the fund or to distribute it as it should deem proper, and its denying to the underwriters the right of subrogees vested in them by the municipal law. Mr. Lawrence's closing remarks on this branch of his subject are so forcible that we give them here: "Although in no respect interested in any manner, either for myself or for others in the fund in question, I have protested by all the means at the disposition of a simple publicist against the action of Congress, calculated, as it is, to give a fatal blow to the so much vaunted principle of arbitration. It was at this moment when Congress was violating the most sacred obli gations of a trustee, by repudiating the best considered judgment that arbitrators were capable of rendering, that the senate passed a resolution to recommend the adoption of arbitration as a method just and practicable to terminate international differences and to cause war to cease, and that arbitration ought to be considered as a suitable form of procedure among nations." Of that portion of the letter relating to marriage we have not space to speak, nor is it necessary. As a publicist and a writer on International Law, Mr. Lawrence stands facile princeps in this country, and is known and honored in Europe, and his words are sure to be read with interest by all lawyers whose horizon is not bounded by the strictly municipal law.

The traditional immunity of judges from responsibility for acts done on the bench has not prevented Judge Van Brunt of the New York Superior Court from sustaining the complaint in the action of Lange against Judge Benedict, for false imprisonment. The facts of the Lange case, out of which this action arose, were very fully stated in volume 9 of this journal, at pages 102, 150 and 154. They were briefly these; Lange was convicted in the United States district court, Judge Benedict presiding, of appropriating to his own use certain mail bags, the punishment for which is imprisonment or fine. Judge Benedict imposed both imprisonment and fine.

The prisoner was committed to prison and paid the fine. Afterward, on a writ of habeas corpus granted by Judge Blatchford, and returnable before Judge Benedict, the latter dismissed the writ, vacated the sentence, and resentenced the prisoner to one year's imprisonment; without regard to the fact that the fine had been already paid. The Supreme Court of course, reversed this action and discharged the prisoner. Lange now brings his action for false imprisonment, claiming heavy damages. If a judge be ever liable for acts done "under the ermine" Judge Benedict should be mulct. His proceeding was most extraordinary. If it came from ignorance of the law it was that sort of negligence which the civilians called dolus; if it proceeded

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