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ment for so much of the premises mentioned in the complaint as were, at the date of the deed to Mrs. Hoppough, flowed by the waters of the mill-pond, at high-water mark, and dismissing the complaint as to the residue, and in that court the judgment is so modified, without costs to either party in this court, and the judgment for costs to the defendant in the Supreme Court affirmed - Hoppough v. Struble.


YOUPON 4 of ticket No. 21,101, in the fourth grand


gift concert of the Public Library of Kentucky, has given rise to the case of Bibb v. Miller, recently argued in the Court of Appeals of Kentucky. The petition in the case alleged that appellees formed a club for the purchase of tickets for the concert which was held at Louisville, March 31, 1874. That among the tickets purchased, coupon 4 of ticket No. 21,101 drew $7,500, a sum which will be paid to the holder on presentation of the coupon; that the coupon is in possession of appellants, who retain it without right. The petition asks that appellants be ordered to surrender the coupon, and that the prize be drawn and the proceeds paid into court for pro rata distribution. It seems that appellants were the agents employed by the appellees to purchase the tickets. Messrs. Walker and Hubbard, counsel for the appellants, prepared an argument in the Court of Appeals, which, from the gushing rhetoric it contains, we judge must have been the joint production of at least two fertile and imaginative intellects. They say, that "tested by elementary distinctions so old that they are surrounded by the halo of time, this ticket, this coupon, is without a local habitation or a name, tempest-tossed on a legal sea which refuses to float it." It cannot be claimed by appellees, because it is intangible and has no legal value. Counsel do not believe that the Kentucky statute relating to the public library of Kentucky has made those coupons property which can be recognized by the courts. "This tremendous scheme, this Pandora's box of unmitigated evil, this enterprise which has entrapped men of all denominations, creeds and sects, this institution serving Satan in the livery of heaven, this grand concert whose echoes rival the discord of Dante's hell, depends, in so far as the enterprise scheme is concerned, upon five lines, forty words, contained in the act of incorporation, and which are as follows: Also to give, not to exceed five in number, public literary, musical, dramatic entertainments, at which they may distribute, by lot, to patrons of the entertainments, a portion of the proceeds arising from the sale of the tickets of admission.'" Messrs. Walker and Hubbard are of opinion that these “forty sub rosa words" have “called into existence a gigantic outrage which has absorbed ten millions of money," much of which has gone to "aggrandize private individuals." It is contended that the only ticket authorized to be sold is a ticket of admission to a concert, not a lottery ticket. Lotteries are contrary to good morals, and the statute cannot therefore be construed into the establishment of a lottery without express words to that effect. And, in any event, "that the coupon ever becomes a chattel is a delusive idea." Another point made in the case by appellants' counsel was, that among the contributors to the fund with which the tickets were bought were several infants; and the question is asked, "Shall infants, young in experience and immature in thought, * ** over whom courts have

spread the shadow of great and awful power, shall infants be allowed to engage in wild, ruinous and speculative enterprises?" "It is insisted that the action as to infant appellees cannot be maintained, and that such a decision will be a legal monument long after those who have erected it shall have become dust." We have not heard what the Court of Appeals thought

about the matter.

The suit of Archbishop McCloskey v. The Mayor of New York was argued on demurrer, in the Supreme Court, special term, recently, before Judge Van Brunt. The Archbishop claims that St. Joseph's Church should be relieved from an assessment of $697, assessed on it for the Morning Side Park opening. The assessment was confirmed in July, 1870. In 1871 Mayor Hall and Comptroller Connolly, acting under a law which authorized them to relieve from assessment such property as was relieved from taxation, granted a certificate relieving St. Joseph's Church from that assessment. The certificate was, however, disregarded, and this suit was brought to enforce it. The city demurred, and it was argued that, under the act, no relief could be given after an assessment was once imposed, and that an act of 1874 precluded any such suit as this against the city. The decision was reserved.

-Chief Justice Ryan of the Supreme Court of Wisconsin has been re-elected without opposition. He is an able, upright, and industrious judge - Judge Grover of the New York Court of Appeals has improved in health somewhat, and it is thought that with rest and travel he will overcome the nervous prostration which seems to be his main trouble. It is expected that he will start soon on a southern trip.

The king of Portugal has commenced a suit in one of the English chancery courts, with a view to obtain possession of the collections of botanical specimens and other natural objects made by Dr. Welwitsch while he was employed by the Portuguese government in Africa. The collector died in London in 1872, and by his will, assumed to dispose of parts of the collection to various bodies.- Sir James Hannan, in summing up a divorce suit, said that certainly more than one-half of the cases that he had to deal with arose in some way or other out of drunkenness.-Sir Charles St. Julian, the first and last chief justice of the late kingdom of Fiji, expired at his residence, Vadratau, New Zealand, on Thursday, the 26th of December, after a protracted and painful illness. The deceased was for many years the chief law reporter of the Sydney Morning Herald.

The inevitable squabble over a rich man's will has begun in Detroit. Mr. E. B. Ward, dying a few months ago, left a fortune of $5,000,000, and the funeral was hardly over before the heirs began to quarrel about the bequests. One relative, who had received $10,000, said he deserved ten times that amount, and gave notice that he would contest the will. The latest move is a combined one by the widow and some of the other heirs, and consists of a petition to the Michigan Legislature for an amendment to the present law relating to the settlement of estates, so as to do away with the special administrator who may now be appointed to take charge of the estate until it is settled, and instead, to give the executors control. The sons resist the proposed change in the law, and as a powerful lobby is enlisted on both sides, a bitter contest is anticipated.

- In the United States Supreme Court, Monday, on motion of Mr. Matt H. Carpenter, Messrs. J. H. Gillpatrick, of Leavenworth, Kan., and Charles R. Gill, of Madison, Wis., were admitted to practice as attorneys and counselors of that court. -Lord Chief Justice Cockburn in a speech before the Southampton Chamber of Commerce referred to the confidence which should be reposed in the bench, and in the course of his remarks used the following language: "Woe to those who seek to undermine that confidence, to those who, by calumny and vituperation of the most detestable and the most villainous kind, seek to shake the confidence of the people in the administration of the justice of this country."

The Washington Chronicle says: "It is most difficult to discover what laws are in force in the District of Columbia. Within the past few days a statute enacted by the legislature of Maryland in the year 1722, providing that the government attorney shall not lay before the grand jury evidence in his possession of the commission of a crime unless expressly ordered to do so by the court, is still in force in this subjugated territory." At a regular meeting of the New York Bar Association held on Tuesday evening, the building committee reported that they had purchased the premises No. 7 West Twenty-ninth street for $100,000 and had already paid $5,000. On the execution of the deed $15,000 more was to be paid, and the remaining $80,000 was to be secured by mortgage. $30,000 has been already subscribed for the object. The report was adopted and the secretary and president were authorized to sign and deliver the proper bonds and mortgages.

The bill repealing the Daily Register law has been reported adversely. The report after much opposition was agreed to, and the Register goes on its way rejoicing. The Register makes the rather strong assertion that "neither the legislature nor those self-appointed leaders of public opinion" (the daily papers) "have the least power over our existence as a journal!”The San Francisco Chronicle demands the restoration of the whipping-post in the case of garroting, petit larcency, and wife beating.- -In Sallin v. London and Northwestern Railway Co., a case in the court of Queen's Bench, the construction of a contract to carry a passenger at his own risk was considered. The plaintiff, a drover, who had traveled with cattle by the defendants' railway, on the terms that he was to be free of charge, but at his own risk, was, in consequence, as the jury found, of the negligence of the defendants' servants, injured, after leaving the train, in the course of his departure from the defendants' premises. Held, that the plaintiff took upon himself the risks incidental to the whole transaction, the access to and departure from the train as well as the actual transition, and therefore that the defendants were not liable.

The Atlanta Herald recently said: "Yesterday in conversation, some one remarked that General Toombs never crosses a court-house door for less than $5,000, when Judge Lochrane replied that there was nothing strange about that, 'I wouldn't take any case for a smaller fee than $10,000.' This caused the crowd to discuss legal fees, and it was found that several large fees had been paid Atlanta lawyers since the war. Mr. Hill, in the celebrated Metcalf case, received a $100,000 fee. Judge Lochrane a fee of $40,000 in the Brunswick and Albany case. Mr. Hill received a fee of $25,000 for his management of Kimball's case. Judge Lochrane received $15,000 as a fee from Mrs. Kimball in the Kimball House case."

A curious case has been tried at Rouen, France, which grew out of the following circumstances: Near Neufchatel there is a celebrated shrine called Norte Dame du Pardon. It recently became such a rival of Notre Dame de Bon Secours, that the archbishop disavowed it. Nevertheless pilgrims flocked thither with their offerings, and the courts were appealed to. It appears that Notre Dame du Pardon was invented and conducted by a tinman named Fagot. He built a chapel, fitted it up with a colossal virgin, a cradle in stone, and numerous bas-beliefs representing passages of scripture. Fagot dwelt in a cottage near the chapel, and made a very fine living out of the alms which were received from the faithful pilgrims. He also sold indulgences, took money for neu vaines to his virgin; he suspended crutches on the wall to make lame pilgrims think they could be cured. He was charged with false pretenses in all these things, and was convicted and condemned to 100 francs fine, and six months imprisonment.


The church property of Rhode Island exempted from taxation amounts to $4,117,200.- The Pall Mall Gazette gives a most striking illustration of the evenhanded justice dealt out to offenders against the laws in England, in referring to a fine of a pound sterling being inflicted upon an old woman who had gathered sticks valued at a sixpence in the forest belonging to a noble lord. "So evenly are the scales of justice balanced in this country," says the Pall Mall Gazette, "that an old woman who picks up a stick and the ruffian who knocks an old woman down with a bludgeon are mulcted in about the same penalty."— A movement is progressing in Hartford, Conn., to revise the schedule of minimum fees of attorneys. Matt. H. Ellis delivered an address, some time since, before the Bar Association of Yonkers, advocating the theory that the subordinate officers of a municipal government should be appointed instead of elected.Apropos to the recent publication of Mr. Freeman's Treatise on Co-tenancy and Partition is the following anecdote from the January number of The Journal of Jurisprudence, illustrating the inconvencies of a joint tenancy: "An attorney and another person possessed a house as joint tenants. The attorney resided in it, and his co-tenant asked him for a rent. The attorney cooly referred to the law relating to joint tenancy, and declined to pay any thing. A few days afterward, on returning from business to dinner, the attorney found his co-tenant in company with a litter of pigs, in possession of the drawing-room. The co-tenant politely explained that he was resolved to possess, and that he preferred to keep his pigs up-stairs. A rent was im

Mr. John H. Campbell, the editor of the Philadelphia Legal Gazette since its foundation six years ago, has retired, and Mr. George P. Rich assumes the editorial chair. -It is suggested by a correspondent of the Albany Argus that each judge of the Court of Appeals be allowed to appoint a clerk at a salary of $2,000 or $2,500 per year. Such a clerk would be relief, it is claimed, to the hard-worked judges. - Some rather queer stories are told about lawyers' fees in Georgia. I mediately offered."

All communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.


ALBANY, APRIL 24, 1875.


HE New York Bar Association has, it seems, resolved to "recommend the profession to buy the 'official' reports," but its action comes too late to have any other significance than to indicate the tenacity and singleness of purpose with which it adheres to its own scheme of one day controlling the reporting of the State. During the four or five years of its existence it has never, in any way, asked the legislature to carry out the constitutional provision for the appointment of a Supreme Court reporter. During the last two sessions, in which the matter has been actively urged, at the capitol, neither by word or deed has the Bar Association or any of its committees exerted its influence in behalf of a provision for the appointment of a reporter by the judges. It has confined its efforts to futile attempts to secure the passage of an act giving its "Council of Law Reporting" the entire management of the business, and of twenty thousand dollars a year. But now, when the question of reporting has been substantially settled by the passage of an act for the appointment of a reporter in accordance with the constitution, when nothing remains but the selection of a reporter, and when both of the principal existing series are, under present auspices, soon to cease - when all this has been done - the Bar Association comes to the front and modestly resolves that "it is desirable that there should be but one, and that an official series of Supreme Court Reports," and requests the profession "to give their countenance and support to the reports published " by the official reporter-meaning, no doubt, the reports prepared by Mr. Hun.

We should not, of course, find fault with the Bar Association for preferring one series of reports to another, or for honestly expressing such preference; but we do say, that it is tolerably discreditable for that Association to attempt to subserve its own purposes in any such way. It is a species of false pretense, that an association, originated "for high moral purposes," ought not to be guilty of. If the Association had honestly believed Mr. Hun's reports to be the better reports, and that it owed a duty to the profession to say so, it would have said so a year or so ago; if it believed that the appointment of Mr. VOL. 11.- No. 17.

Hun, under the new act, was a necessary step toward the accomplishment of its own scheme, and that that appointment could be furthered by "indirection," it would be likely to pursue the very course it has recently pursued. There is one thing that Mr. Delafield and his associates might as well make up their minds to now, and that is, that they cannot, by any possibility, accomplish the plan of universal reporting that they have in view; and it would be more creditable for them to come forward and give Mr. Hun a frank, square, manly support, than to attempt to aid him under the guise of "disinterested advice" to the profession at large.

Gen. George S. Batcheller, of Saratoga, has been designated by our government as a member of the new international court, in Egypt. This court is intended as a substitute for the consular courts in Egypt, and has jurisdiction over all matters to which a foreigner is a party. The convention establishing this court has been entered into by nearly all the European powers and by the United States. The court is divided into two tribunals, one of first instance and one of appeal. Each of the powers is to appoint to the tribunal of first instance two members, and the tribunal is to sit in two divisions, for the better dispatch of business. Each power is to appoint one member and a judge-advocate to the tribunal of appeal. We understand that Mr. Batcheller has been appointed to the tribunal of first instance. The proceedings of this court will be watched with great interest, and if it proves a success, as it can hardly fail to do, other countries will learn wisdom from the Khedive of Egypt, and endeavor to procure the establishment of similar courts in their midst.

The London Law Journal, under the head of "Criticism," discusses the well-known case of Johnston v. The Athenæum, and says that it is not true that criticism is a dangerous trade unless the critic exceeds the well-defined limits of literary and art criticism. The Journal supposes the case of a reviewer of a novel, who should say: "This is the most vile story it was ever our cruel fate to read. The plot is a jumble of plagiarized incidents. The personages are not characters, but Punch and Judy puppets. The author's style is weakest slip-slop. We observe that the price of this novel is is 1£. 11s. 6d., but whoever pays for it a penny more than the waste-paper dealer will give for it, will pay a penny too much." This the Journal tells us might be unjust, but not unlawful. But when a critic imputes immoral purposes to the author, for instance, he renders himself liable. And if a reviewer draws on his extraneous knowledge or suppositions he writes at his peril. As in the case of Johnston v. Athenæum, the reviewer wrote: "The Atlas now before us, though

* * *


bearing the name of A. Keith Johnston, is the work of neither the primus nor secundus of that name, for the son is no longer connected with the house established by his late father, * * but has gone to Paraguay. On the whole, we miss in this Atlas the presence of the master-mind which, in both father and son, gave the house of W. & A. K. Johnston the character it has so long enjoyed, but we fear is now losing, in the world of science." The reviewer evidently intended to convey the impression that the work was not A. Keith Johnston's or that of his son, although reputed to be so — hence the liability to the charge of libel. The Journal says that this case is an instance of the danger of a critic exceeding his legitimate jurisdiction and writing some thing that does not lie on the very face of the book he is criticising.

In the case of Seaman v. Third Avenue Railroad Co., recently decided in New York city by Judge Larremore of the Court of Common Pleas, the liability of a street railroad company for the acts of its conductors was considered under the following circumstances: The plaintiff got on the rear platform of a car, and, as he claims, gave the requisite fare to the conductor. As the rear end was crowded he walked to the front end, where he was met by the conductor, who again demanded his fare. This demand was refused, whereupon the conductor violently ejected plaintiff from the car. To break his fall, plaintiff grasped the railing of the splash-board, but the conductor kicked his hand and compelled him to let go his hold. He fell, and the wheels of the car passed over one of his arms, rendering amputation necessary. The plaintiff brought suit against the railroad company, but, on this state of facts, the complaint was dismissed. It is quite probable that this ruling is within the principle laid down in the Court of Appeals, which is, in effect, that the master is not liable for the malicious and unauthorized acts of the servant, although done in the apparent course of his employment. But it certainly is not within the rule laid down in Massachusetts, where the railroad companies are held liable for the malicious and unauthorized acts done by conductors and others in the general course of the employment.

The Supreme Court of Pennsylvania in Central Railway of New Jersey v. Cook, 1 Weekly Not. Cas. 319, considered the constitutionality of statutes limiting the amount of recovery against railroads. The plaintiff in this case was injured in consequence of defendant's negligence. Under the Pennsylvania act of April 4, 1868, the maximum amount of recovery for injuries not resulting in death was fixed at $3,000. The court charged that the right to recover for personal injuries was one of the personal rights belonging to men before the statute law, and

that when the legislature attempted to limit a remedy which it did not give, it transcended its authority. A verdict for plaintiff was given for $5,000; and the judgment thereon was sustained by the Supreme Court. By the constitution of 1874, however, the rights claimed by railroads, under the legislation referred to, have been abrogated. The case of The Central Railway v. Cook was brought before the new constitution was adopted.

The Australian Jurist has closed its career; and its suspension is due to the fact that it was mainly a publication of the decisions of the courts. This fact taken in connection with the fact that a system of report

ing has been adopted, similar to that prevailing in

England, has rendered the continuation of the Jurist unnecessary. The attorney-general has resolved to give the support of the government entirely to the new series of reports, and — the Jurist says "as no series of law reports can be carried on in this small community without the aid afforded by the government * * * the publication of the Australian Jurist must cease - for the present at least." We think that the Jurist, as well as a majority of legal journals in this country, has mistaken the true province of legal journalism. A journal which is simply a series of reports, or a compilation of reported cases, can hardly claim the name of a "legal journal." It may be a "reporter" but not a "journal." The true function of legal journalism is principally to present the various phases of the legal profession, disquisitions on legal topics, a condensed record of legal events, and a summary of the most recent legal decisions. A journal which does this will not fail of adequate support.

A case was tried recently in the United States Circuit Court at New York city, before Judge Wallace, involving the following facts: Lemmy Rosenthal, who was indebted to Lazarus J. Leberman, insured his life, in favor of the latter, for $10,000 in the Germania Life Insurance Company. Two years afterward Rosenthal committed suicide having paid, two hours before, the last premium on the policy. Leberman demanded the amount of the policy from the company, but payment was refused. The policy contained a clause that if the insured died by his own hand it should be void. Judge Wallace, in charging the jury, said, that "if Rosenthal committed suicide, the policy is void; but if he was insane when he killed himself, and was driven to that act by his insanity, he did not kill himself within the meaning of the law, and his killing himself does not vitiate the policy. It is, therefore, for the jury to find whether or not Rosenthal was insane when he took his own life. The jury, however, must remember that in and of itself, suicide is not evidence of insanity." This is in accordance with the law laid

In Goetzmann v. Connecticut Mut. Life Ins. Co., 5 N. Y. Sup. 572, the construction of a clause in a life insurance policy rendering it void if the insured should die "in consequence of his violation of any law," was considered. The insured was killed by H. shortly after having had illicit intercourse with the wife of H. At the trial the judge made the following rather astonishing charge: "It is a violation of

down by the United States Supreme Court in Mut. Life Ins. Co. of New York v. Terry, 7 Alb. L. J. 310. The rule was there held to be this: If the assured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches, and there can be no recovery. If the death is caused by the voluntary act of the assured, he knowing and in-law for a man to interfere with the most sacred relatending that his death shall be the result of his act, but when his reasoning faculties are so far impaired that he is not able to understand the moral character, the general nature, consequences, and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse, which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable.


IN N Flynn v. Canton Company of Baltimore, 40 Md. 312, the Court of Appeals of Maryland considered the responsibility of the occupant of a building in a city for damages resulting from a fall on the ice on the sidewalk in front of the building. The action was based on the neglect of the occupants of the building to clean the sidewalk in compliance with a city ordinance, which imposed a penalty of two dollars for every neglect, beside the expense of clearing the walk. It was held that the action would not lie, and that the only liability resting upon the occupants of the building was that imposed by the ordinance itself. It is a well-settled principle that, whenever a party causes or creates a nuisance or obstruction in a public street or highway, he is responsible in damages to one who receives special injury therefrom; but in this case the court held that the nuisance, if any, was not caused or created by act of the defendants. The ice was not placed on the sidewalk through their instrumentality; it was formed solely and exclusively by the action of the elements. Miller, J., delivered an elaborate opinion, at the close of which he said: "The only case discoverable by the researches of counsel and our own, in which the very question now before us has arisen and been adjudicated, is that of Kirby v. Boylston Market Association, 14 Gray, 249. There the accident occurred in the city of Boston, in the same way and from the same cause. The suit was against the property-owner, and the same ordinance was in force, and there was the same neglect on the part of the defendant. The court held that the action would not lie against the property-owner, and that the remedy for all damages sustained in this way is exclusively against the inhabitants of the city in their corporate capacity." The decision in this case was in accordance with this view.



tions we have in social life, and when he undertakes to commit adultery with the wife of his neighbor, he has violated the law; and if the death he suffers grows out of that fact, then the policy is forfeited. Whether H. saw him or not is not absolutely material in this case, if he saw him in the act of adultery, or under such circumstances as was satisfactory evidence to him that he had committed adultery, then he had a right to shoot him, if he did it directly after the offense-not exactly the right, but the law is careful of the feelings of individuals in that regard, and has so much respect for the natural impulses of a man who is placed under circumstances of that kind, that it says he does not commit murder; so that, while the commission of that act is fresh, and he shoots a person under circumstances that satisfy him that the act has been committed, * * * If he was actually doing the illegal act, and the death resulted as a consequence of that act, then the plaintiff is not entitled to recover in this case." The general term took a different view of the case, however, and held that, although the act of the insured were in violation of the law, he did not die in consequence of it, within the meaning of the policy. The theory of the trial judge as to the justification of homicide under such circumstances was also repudiated by the court above.

In Paine v. Agricultural Ins. Co., 5 N. Y. Sup. 619, where a policy of insurance against fire upon a dwelling-house contained a provision that if the house should be "left unoccupied, without giving immediate notice to the company, the policy should cease and be of no force or effect," it was held that the absence of the one who resided in the house, without notice to the company, for six weeks, although he frequently returned and looked after the house and the property therein, would avoid the policy. Occupation of a dwelling-house, according to the view of the court, is living in it, not mere supervision over it, and while a person need not live in it every moment, there must not be a cessation of occupancy for any considerable portion of time. The following authorities were relied upon to sustain the decision: Western v. City Fire Ins. Co., 15 Wis. 138; Harrison v. City Fire Ins. Co., 9 Allen, 231; Keith v. Quincy Mut. Fire Ins. Co., 10 id. 228.


if there is no express stipulation that the premises shall not be left vacant, the policy will not be void. Gamwell v. Merchants & Farmers' Mut. Fire Ins. Co., 12 Cush. 167; May on Insurance, 270.

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