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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.

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dressed to the publishers.

The Albany Law Journal.



The operation of the eighteenth section of Article III of the Amended New York Constitution is to

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be tested in the case of the "Midland" railroad, for which a special statute of relief is demanded. By section eighteen it is provided that "the legis lature shall not pass a private or local bill in any of the following cases: Granting to any private corporation, association or individuals any exclusive privilege, immunity or franchise whatever." There is, however, a large opportunity for the exercise of the legislative discretion to be derived from a subsequent clause: "The legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which, in its judgment, may be provided for by general laws." We do not understand that the legislative discretion extends to those cases previously enumerated in the section. In cases not enumerated, the discretion as to whether general or special laws shall be passed, is to be exercised. Whether the statute grants "to any private corporation exclusive privilege, immunity or franchise whatever " is, it seems, a matter for judicial construction, and such a statute must be, judicially, a general one. But in Missouri it has been held that where the constitution provides that the legislature "Shall pass no special law for any case for which provision can be made by a general law," the legislature is the sole judge as to whether a general law is possible. State v. County Court of Boone Co., 11 Am. Rep., 415; S. C., 50 Mo., 317.

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A case was recently argued before the United States Supreme Court involving substantially the construction of the Fifteenth Amendment, and the constitutionality of the enforcement act of May 31, 1870. The defendants, who were inspectors of elections in Kentucky, were indicted for refusing to receive the vote of a citizen of African descent, on account of race or color. The defense is that as the Fifteenth Amendment is not a grant of the right of suffrage, and only prohibits the States and Congress from passing any law denying or abridging the right, Congress cannot interfere directly for the protection of the right, and that jurisdiction to punish the class of offenses which the enforcement act attempts to reach, belongs exclusively to the States. It is argued VOL. 11.- No. 5.

that the enforcement act is unconstitutional because it provides a code of registration and election laws for the States. It is claimed to be invalid because it imposes penalties on the inspectors in respect to the exercise of judicial functions. This is a question of immense importance, and we await the decision of the Supreme Court with much interest.

Judge Christiancy, who has been elected to the United States Senate from Michigan, was upon the bench in that State for many years, and is conceded to be a man of great ability as a jurist. His career as a statesman has only just begun; but we assume that he has qualifications for the senatorial office which, when developed, will render him the peer of the most distinguished senators. The bench has lost some of its brightest ornaments during the last year, the political arena appearing to be more attractive than the forum. We cannot but notice the difference between the course of things in this country and in England. There, men enter parliament as a stepping stone to high judicial positions; here, men often regard the bench as a stepping stone to high political position. The reason is that in England the social and pecuniary rewards of a great judge, are all that the most exacting can demand. While here the supreme social and pecuniary advantages are accorded to the great politician. For although the salaries of our political officers may be no greater than those of the corresponding judicial officers, the fact is that political offices have few things incompatible with private business; while judicial offices are practically incompatible with the discharge of any other duties. Notwithstanding the fact that many excellent judges leave the bench for political offices, yet we believe that our courts are ably and efficiently manned. We only wish the rewards of the judges were equal to their deserts.


The method of securing relief for the United States Supreme Court calls out considerable discussion, and the weight of opinion is in favor of restricting appeals, and against increasing the number of judges. The Chicago Legal News has protested emphatically against the proposition of the President for an increase of the judges. The Central Law Journal records itself against the President's proposition. This is a subject upon which the profession should express itself with emphasis. should not be left entirely to the representatives in Congress, who may not be sufficiently conversant with the real needs of the Supreme Court. The professional organizations throughout the country should express their views. Our contemporary, the Central Law Journal, asks the pertinent question: "Will these exponents of professional opinion suffer this matter to remain without counsel and without protest, in the hands of the demagogues who,

under the name of statesmen, shape the legislation of the country?" Here is a splendid opportunity for the New York Bar Association to give an influential professional utterance to wise and practical suggestions.

We would call attention to the recent case decided in the Supreme Court of the United States, holding that a provision in an express company's receipt that it would not be responsible for loss unless notified of the claim for loss within ninety days after the receipt of the goods of the company, is valid. The case is Southern Express Company v. Caldwell, and must proceed on the ground that such a regulation is reasonable and necessary for the company's protection, in analogy to the restrictions as to time for using railroad tickets, and the restrictions in insurance policies as to time for giving notice of loss.

When a juror in New York is fined for non-attendance by any judge, and does not pay his fine, he is cited to appear before the Board of Enforcement of Jury Fines which is composed of the presiding justices of the various courts of record of the city. If the fine is not paid or the respondent does not appear judgment is entered for the amount and an execution issues. Mr. Rufus Hatch, having been fined several times in this manner, and judgment and execution having issued against him for more than $500, he has brought suit against the commissioners of jurors and others to set aside the judgment and to restrain the defendants from enforcing payment of the fines. This will be an interesting and important case, as it involves among other questions, the validity of the present method of adjudicating penalties of this character.

The General Term of the New York common pleas has declared the constitutionality of the game laws of this State under the following circumstances: The defendant had in his possession, in March, a number of grouse, and he was prosecuted therefor under the provision requiring a penalty of $25 for having in his possession prohibited game. The defense was that the grouse came from outside the State, and that it was preserved game, killed before the "close time" and was not offered for sale. The court held that the mere possession of game, no matter from what source, was within the meaning of the act; and that the act was constitutional. The argument for the defense is, to say the least, very ingenious. It is to the effect that the game laws, in respect to the matter under consideration, are unconstitutional as interfering with inter-State commerce. It forbids the having in possession, or transporting, of moose, carriboo, elk, or wild deer at a certain season, and of prairie hens-a bird never found in this State - at another season. The dealing in these and in all game, coming from other

States, it is argued, is clearly inter-State commerce, and a law forbidding citizens to receive such a product from another State is against the United States Constitution. The case is now before the Court of Appeals.

All the parties interested in current series of Supreme Court Reports of this State, having agreed upon the details of a bill providing for the appointment of a Reporter by the General Term justices, there seems to be no reasonable doubt that the bill will be passed by the present legislature and that very soon we shall come to the end of this disagreeable contention between rival editors and publishers. With the bill passed and the Reporter appointed, it will be his fault if any series of reports of the Supreme Court, either of the General or Special Terms, continue. Should he lapse into the methods of the "official reporter" of the last four years, private enterprise will have fair swing, but should he follow faithfully the example recently set for him, he will have the field to himself and will deserve well of his day and generation.

It seems that the movement in favor of inserting a reference to a Supreme Being in the federal constitution has still some evidences of existence. Judge Strong, of the United States Supreme Court, who is the "head and front" of the movement, delivered a lecture recently before the students of the Union Theological Seminary on the relations of law to ecclesiastical polity, discipline and property. Although the lecture was not ostensibly upon the relations of the constitution to religion, yet the appearance of Judge Strong on the lecture platform with such a subject, has given admirers of his peculiar views an opportunity to show that they still hope for a recognition of God in the constitution. The Independent, however, in speaking of Judge Strong's lecture says, that "the opinions on questions of this class of a jurist who believes in Christianization by force had better not be taken on trust." We fear that Judge Strong's reputation as a jurist has suffered somewhat from his position in regard to the religious element in law. The layman, at least, is apt to think that a law-reformer is not at home on the bench, where justice is blind and knows only the law as it is.

In the course of some remarks in last week's LAW JOURNAL, we stated that so far as we knew the judges had not yet paid the "official" reporter the compliment of citing his reports. We beg now to say that we were not fully informed. We have been shown the opinion of Mr. Justice Davis in Wallack v. The Society for the Reformation of Juvenile Delinquents, not yet published, wherein the learned presiding justice cites "People v. Harlem Railroad (2 Hun), 9 N. Y. S. C." But oddly enough the case is not in Hun's reports at all.


An important decision respecting the relations of master and servant, was handed down by our Court of Appeals, at the commencement of the present term, in the case of Brennan, admx., v. Holbrook. The defendants, residing in the city of New York, were proprietors of a cotton manufactory at Troy, which they carried on by means of an agent at the mill, who had general powers to hire and discharge hands and procure supplies; the business being conducted by correspondence and personal consultation with his principals. The decedent was an employee in the mill, who received an injury by the breaking of an elevator upon which she was riding in the mill, she having been sent by her overseer, for bobbins, to an upper story. The elevator was not originally designed for the hands to ride on, but only for goods, but the hands had long been in the habit of riding on it, to the knowledge of the agent but not to the knowledge of the defendants. The elevator was unsafe for persons, and the agent had been notified of that fact, but the defendants had no knowl

edge of it. It appeared that it was not necessary

for the decedent to ride on the elevator and that she had not been directed to do so, and that there was access from one story to the other by stairways. It also appeared that the defendants had been in possession of the mill only six weeks, and did not even know there was an elevator in it, and the decedent had been employed in the mill some eight months. The referee found for the plaintiff, on the ground that the notice to the agent was to be imputed to the principals. This was reversed by the general term of the Supreme Court, and now the Court of Appeals reverse the latter decision and sustain the referee. This rule has been applied in case of corporations, but never before in cases of individuals, to our knowledge, and we think the holding is in opposition to the uniform tenor of decisions in England and America (See A. L. J., vol. 9, p. 69). We are not prepared to say, however, that it is not right and reasonable.

In Keefe v. Milwaukee & St. Paul Railway Co., 7 Leg. News, 138, the Supreme Court of Minnesota decided an important question in the law of negligence. This was an action by a child, seven years of age, to recover for personal injuries caused by defendant's alleged neglect in allowing a turn-table, situated in a public place, to remain unfastened and unguarded, and permitting children, among whom was plaintiff, to turn and play upon the table. The court held that it was error to give judgment for defendant on the pleadings. It was also held that the plaintiff occupied a very different position from that of a mere voluntary transgressor upon the defendant's property; and that when defendant sets before young children a temptation which it has

reason to believe will lead them into danger, it must use ordinary care to protect them from harm. What would be a proper care is for the jury to decide. Townsend v. Walthen, 9 East, 277, a peculiar case, was cited by the court to support the decision. It was held in that case to be unlawful for a man to allure even his neighbor's dogs into danger by setting traps on his own land, baited with strongscented meat. And the court say that the defendant, in the present case, knew that by leaving the turn-table unfastened and unguarded, it was not merely inviting young children to come upon the turn-table, but was holding out an allurement which, upon the natural instincts by which children are controlled, drew them into a hidden danger. The doctrine of this case is certainly a great protection for infants.

In O'Hare v. National Bank, 32 Leg. Intel. 29, the Supreme Court of Pennsylvania decided that the National Banking Act of 1864 (section 29) does not prevent recovery on securities taken by a national bank for a loan in excess of one-tenth of its capital, the transaction not being collusive between the bank and the borrower. The court said: "Evidently the limitation of the indebtedness to the one-tenth in the twenty-ninth section was intended as a general rule for conducting the business of the bank; a rule laid down from experience to regulate its loans for its own best interests and those of stockholders and creditors, not a rule to regulate its customers. It was * ** * a regulation to prevent these associations from splitting on the rock which has ruined so many banks, to wit, that of lending too much of their capital to one person or firm. The intention being to protect the association and its stockholders and creditors from unwise banking, we cannot suppose it was meant to injure them by forbidding recovery of the injudicious loans." This is a sound construction of the law in question.

In McLaughlin v. City of Corry, 7 Leg. Gazette, 13, the Supreme Court of Pennsylvania held that a municipal corporation is responsible for injuries to a foot passenger caused by a dangerous accumulation of ice and snow on the sidewalk. The principle laid down in the case is this: "A municipality cannot prevent the general slipperiness of its streets, caused by the snow and ice during the winter; but it can prevent such accumulations thereof, in the shape of ridges and hills, as render the passage dangerous.” This point is sustained by Collins v. Council Bluff, 32 Iowa, 324; City of Providence v. Clapp, 17 Howard; Luther v. Worcester, 97 Mass. 269. For other cases illustrating this liability, see Horton v. Ipsuich, 12 Cush. 488; Loker v. Brookline, 13 Pick. 343; Hall v. Lowell, 10 Cush. 260, 262; Landolt v. Norwich, 37 Conn. 615; Barton v. Montpelier, 30 Vt. 650,

LEGAL EDUCATION IN ENGLAND. The subject of legal education and what shall be the requisites to being called to the bar, have been exciting much interest and discussion in England for several years past. It had come to be a matter of grave doubt, whether, if a young man had actually eaten a certain number of dinners in the hall of one of the four Inns of Court, it should be accepted as sufficient evidence of his fitness to act as a barrister and entitle him to admission to the bar. It seems, at last, to have occurred to some of the more reflecting members of the profession, that better evidence of the fitness might be derived from an inquiry into what, and how much, he knew of the science which he proposed to take part in administering, and that something like a preliminary examination should be resorted to as a test of his attainments. When this plan was proposed by the Benchers of the other Inns, those of Lincoln's Inn withheld their approbation, though, at last, they acquiesced in the scheme which is now in practical operation. One difficulty had been, that no system of instructions had been provided, beyond what a student was able to obtain in the chamber of a barrister, and the extent and thoroughness of his preparation, it was thought, need be no further provided for than his own consciousness that upon these depended, in no small degree, his success or failure at the bar. Great stress, moreover, was laid upon the practical training to which a student was supposed to be subjected in the chamber of a conveyancer or special pleader, which, it was thought, would prompt him to a good share of private reading.

To supply the supposed necessity of a more thorough legal training as preparatory to a prescribed examination of candidates for admission to the bar, it was proposed to establish a Law University; but as that would, if it was to supply the requisite education for the bar, oblige the Inns of Court to accept a subordinate place, a traditional respect for what had been, and a constitutional aversion to every thing that looked like innovation, have thus far prevailed over this scheme of a University, and left those Inns to provide the requisite relief.

Without attempting to trace the steps by which the system, now in force, was settled, we have before us the "Consolidated regulations of the several societies of Lincoln's Inn, the Middle Temple, the Inner Temple and Gray's Inn, as to the admission of students, the mode of keeping terms, the education and examination of students, the calling of students to the bar, and the taking out of certificates to practice under the bar." These bear date Michaelmas Term, 1872, and were "sanctioned and confirmed" in April, 1873, and number sixty-eight in all. We have also before us "Rules for the examination of students" to be held in October, 1874, adopted at Michaelmas Term, 1874. They are too

much in detail to admit of inserting them here, and we shall only note a few of the leading points which they present. Students are admitted as such without any examination, if they have passed a public examination at any university. Otherwise, they are subjected to an examination in "the English language," the "Latin language,” and “ "English History," unless a dispensation is granted by the masters of the Bench of the Inn of which the person applying may desire to be admitted as a student. But there are persons who are excluded from becoming such students, the exclusion growing out, in a great measure, it would seem, of that impassable gulf there is between the class of barristers and that of attorneys and solicitors in England. Among these are attor neys at law, solicitors, clerks to barristers, conveyancers, special pleaders and the like, making more than twenty-five classes of persons connected with the practice of the law, who are not admissible as students in any of the inns, until they shall have entirely ceased to act or practice in any of those capacities.

Any student who shall be a member, at the same time, of either of the universities, is "enabled to keep terms" by dining in the hall of his inn, "any three days in each term." And if he is not a member of a university, he is "enabled to keep terms " by thus dining any six days in each law term. But what is most essential to such a dining is, that the student must be "present at the grace before dinner, during the whole dinner, and until the concluding grace shall have been said," unless the treasurer thinks proper to permit the student "to leave earlier."

In order to be called to the bar, the student must be twenty-one years, at least, of age, and have kept twelve terms with certain rare exceptions, and have passed a public examination, and obtained a certificate to that effect from the Council of Legal Education. This Council consists of twenty Benchers. They have a permanent committee of eight called the Committee of Education and Examination, of whom three may be a quorum.

Systematic instruction is given to students in Jurisprudence, International law, public and private, Roman civil law, Constitutional law and Legal history, Common law, Equity, the Law of real and personal property and criminal law. The educational year is divided into three terms, and the instruction is given by lectures and private classes, at which, however, the attendance is optional on the part of the student. There are four professors, one of Jurisprudence, to give instruction in jurisprudence, including international law, public and private, the Roman civil law, constitutional law and legal history; a second to give instruction in the common law and criminal law; a third, in equity, and a fourth in the law of real and personal property. Besides these, the Council appoint as many tutors as they deem

necessary to give instruction to private classes. Each of the three last mentioned professors gives lectures to two classes of students, one, an elementary, the other, a more advanced class; but the schemes of these lectures are first to be approved by the Committee on Education. The instruction of the private classes is "in a more detailed and personal form than can be supplied by lectures." Occasional lectures, besides these, are to be provided from time to time. Students are advised to attend in the chamber of a barrister or pleader for studying the practice of the law.

The board of examiners consists of six, and the subjects of examination are Jurisprudence, including International law, public and private, the Roman law, Constitutional law and Legal history, Common law, Equity, the law of Real and Personal property, and Criminal law, and no one shall receive a certificate of fitness for call to the bar unless his examination be satisfactory in Roman law, the law of real and personal property, and common law and equity. But if a student have a degree in law from any university, it may be accepted by the council as an equivalent to the other subjects, except common law and equity, the examinations are partly in writing and partly viva voce. Previous thereto, notice is given to the students as to the books and subjects upon which they are to be examined.

Sundry other provisions are contained in these "regulations," which are rather matters of detail than essential parts of the system. The examination which was to be held in October last, occupied three days, forenoons and afternoons, partly by printed questions and partly orally. The books used in constitutional law and legal history were Broom's Constitutional Law, Hallam's Middle Ages, chapter 8, and Hallam's Constitutional Law, but an examination in two only of these was required, which was left to the option of the student.


The subjects in equity were Trust and Partnership. In the law of real and personal property," the subjects were the feudal law as adopted in England, and the statutory changes in it, estates, rights and interests in real and personal property, and assurances and contracts concerning the same, mortmain, perpetuity or remoteness, conditions, easements, notice, election and satisfaction. In "common law" the subjects were the law of contract and mercantile law, the law of torts, the law of crimes, and the law of procedure and evidence, and the examination was "on general and elementary principles of law." In jurisprudence, civil and international law, and Roman civil law, the book was Sander's Institutes of Justinian. But at the Hilary examination, which is to come off in 1875, the books upon the latter subjects are to be Institutes of Gaius and of Justinian, the first book of the Institutes of Justinian, illustrated by corresponding portions of the Digest, Ortolan's history of Roman law, principles of jurispru

dence as developed by Bentham, Austin and Maine, Woolsey's Elements of International Law, and Story's Elements of Private International Law.

This exhibit, certainly presents a most gratifying assurance that the English bar have begun a radical reform in the preparatory training of those who are, hereafter, to fill the places now occupied by the Benchers of the four Inns of Court. What changes are to be wrought in their relative rank and condition by the revolution through which the courts of England have, of late, been passing, remains to be seen. But we suppose the same line of distinction between a stuff gown and a silk one, is still to mark the rank of precedence at the bar, and that no attorney would presume to commit the sacrilege of speaking aloud within the sacred precincts of the Queen's Bench or Court of Common Pleas. One would as soon think of the Chief Justice appearing in court without his wig, as to conceive of a reform which should touch the actual or relative rank and dignity of an English barrister. The profession are to be congratulated upon these measures which contemplate an improvement in their ranks, and it would be pleasant to record, if such were the fact, that the public were as ready to extend a growing patronage to its members as they are emulous to merit it. This movement on the part of the English bar, it is to be hoped, will not be without its effect upon that of America. Without any such organization as that of the Inns of Court to act upon the policy or status of the profession in the several States, so significant a testimony on their part in favor of a more thorough preparatory education on the part of those who are proposing to enter its ranks, can hardly fail to call for some measure of reform, in this respect, in the bars of the different States. As it now stands, the only training which we have, which answers to that required by these new regulations of the Inns of Court, is that which is to be had in some one of the numerous law schools scattered over the country, which, in fact, have no common standard or system, differing all the way from a curriculum of study of two years, with a careful and thorough examination to test the proficiency of the student to a residence for nine months, with the forms of initiation and graduation, under which one may claim admission to the rights and privileges of an adept in his profession.

If the profession hope or desire to keep pace with the advancement of science in other departments, they must avail themselves of whatever new methods are found useful and efficient in facilitating the attainment of the requisite qualities of success, as well as of the new discoveries which are being made in the elementary structure of law and government. The old method of studying mere formulas, and how to apply technical rules with mechanical accuracy, has now to be supplemented by liberal culture and the laying in of an ample store of general knowledge

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