If another in the absence of any emergency or other exceptional circumstances. The defendant relies on the case of Commonwealth v. Thompson, 6 Mass. 134, and that to constitute manslaughter the killing must have been a consequence of some unlawful act. this means that the killing must be the consequence of an act which is unlawful for independent reasons apart from its likelihood to kill, it is wrong. Such may once have been the law; but for a long time it has been just as fully and latterly, we may add, much more willingly recognized that a man may commit murder or manslaughter by doing otherwise lawful acts recklessly, as that he may by doing acts unlawful for independent reasons, from which death accidentally ensues. But recklessness in a moral sense means a certain state of consciousness with reference to the consequences of overt acts. There is no denying that Commonwealth v. Thompson, although possibly distinguishable from the present case on the evidence, tends very strongly to limit criminal liability for reckless conduct, in cases where the recklessness is moral, in the sense above explained. But it is to be observed that the court did not intend to lay down any new law. They cited and meant to follow the statement of Lord Hale, 1 P. C. 4-29, and we think that they fall into the mistake of taking him too literally. Lord Hale admitted that other persons might make themselves liable by reckless conduct. We doubt if he meant to deny if a physician might do so as well as any one else. He has not been so understood in later times. In dealing with a man who has no special training, the question whether his act would be reckless in a man of ordinary prudence is equivalent to an inquiry into the degree of danger attaching to the act of common experience, under the circumstances known to his action. It is here implied, and is undoubtedly true as a general proposition, that a man's liability for his acts is determined by their tendency under the circumstances known to him, and not by their tendency under all the circumstances actually affecting the result whether known or unknown. Another cannot escape on the ground that he has had less than a common experience. Common experience is necessary to a man of ordinary prudence, and a man assuming to act as the defendant did must have it at his peril. Here the defendant knew he was using kerosene. More than that, he saw from day to day how it worked. The jury found that it was applied in a foolhardy manner, and hence arises a presumption of gross negligence, and that is enough. When the defendant applied the kerosene to the person deceased, in a way in which the jury have found to have been reckless, or in other words, seriously and unreasonably endangering life according to common experience, he did an act which his patient could not justify, by her consent, and which therefore was an assault notwithstanding that consent." This is contrary to the recent cases of State v. Schulz, 55 Iowa, 628; S. C., 39 Am. Rep. 187; but in harmony with State v. Hardister, 38 Ark. 605; S. C., 42 Am. Rep. 5. In Hart v. Western Union Telegraph Co., California Supreme Court, Sept. 1884, 18 Rep. 676, it was held that a telegraph company is liable for the damages consequent upon the incorrect transmission of a cipher dispatch, and that a stipulation for nonexemption unless the message is repeated, is void. The court said: "The rule of damages, as applied to telegraph companies, is that although the message be unintelligible to the company, yet as its undertaking was to transmit the message promptly and correctly, both parties contemplated that whatever loss should naturally and in the usual course of things follow a violation of that obligation, the company should be responsible for. The same conclusion was reached by the Supreme Court of Alabama in Daughtry v. Teleg. Co., decided in December, 1883, a note of which will be found at p. 731, 46 Am. Rep., and by the Court of Appeals of Virginia in Teleg. Co. v. Reynolds, 77 Va. 173; S. C., 46 Am. Rep. 715. See also Rittenhouse v. Teleg. Co. 1 Daly, 474. It is contended on behalf of the defendant corporation that as the message in question was not repeated,' defendant is not responsible under any circumstances beyond the amount received for its transmission; and this because it is so declared in the conditions printed at the head of the form upon which the dispatch was written, and to which, as is claimed, the plaintiff assented. There are numerous cases that hold that such a rule on the part of the company is reasonable, valid, and binding on the sender of the message. The cases that so hold are too numerous to be here referred to in detail. They will be found collated in a note to Teleg. Co. v. Blanchard, 45 Am. Rep. 486. But there are many cases to the contrary, and the latter class we think based on the better reason. We agree with the Supreme Court of Illinois in the case of Tyler v. Teleg. Co., 60 Ill. 421; S. C., 14 Am. Rep. 38; and S. C., 74 Ill. 170, where it is held that the regulation requiring messages to be repeated is not a contract binding in law, for the reason that the law imposed upon the company duties to be performed, for the performance of which it was entitled to a compensation fixed by itself, and which the sender had no choice but to pay; that among those duties was that of transmitting messages correctly; that the tariff paid was the consideration for the performance of this duty in each particular case, and when the charges were paid the duty of the company began, and there was therefore no consideration for the supposed contract requiring the sender to repeat the message at an additional cost of fifty per cent of the original charge. To the same effect is Bartlett v. Teleg. Co., 62 Me. 218; S. C., 16 Am. Rep. 437; and Candee v. Teleg. Co., 34 Wis. 477; S. C., 17 Am. Rep. 452. Rep. 452. We hold that the stipulation purporting to exempt the corporation defendant from all liability for mistakes or delays in the transmission or delivery, or for non-delivery of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same, is void for want of a consideration to support it. And further, that it is not competent for telegraph companies to stipulate against or limit their liability for mistakes happening in consequence of their own fault, such as want of proper skill or ordinary care on the part of their operators or the use of defective instruments. See authorities above cited and Sweatland v. Teleg. Co. 27 Iowa, 433; Wolf v. Teleg. Co., 62 Penn. St. 83; S. C., 1 Am. Rep. 387; Breese v. Teleg. Co., 48 N. Y. 132; S. C., 8 Am. Rep. 526; Teleg. Co. v. Gildersleve, 29 Md. 232; Teleg. Co. v. Buchanan, 35 Ind. 429; S. C., 9 Am. Rep. 744; Hibbard v. Teleg. Co., 33 Wis. 558; Teleg. Co. v. Griswold, 37 Ohio St. 301; S. C., 41 Am. Rep. 500. We think the true rule is that such companies are exempt only for errors arising from causes beyond their own control. In Kingman v. Frank, 33 Hun, 471, a wife employed her husband to manage her separate business, at a stipulated compensation, and there was a certain amount unpaid therefor. Held, that this could who while he could not maintain an action in this State to recover a demand due to the testator or intestate, might still assign it to another person who could upon the title so acquired successfully prosecute such an action. And that an assignee might in like manner recover this demand would seem to follow from the principle of Fitch v. Rathbun, 61 N. Y. 579; for if the assignee of the wife may maintain an action against her husband for the conversion of her property, it would seem to follow that the assignee of the husband might also maintain an action against the wife to recover the amount of an indebtedness she had lawfully incurred to her husband. The case of Perkins v. Perkins, 62 Barb. 531, when its circumstances are considered, will not appear to be an authority sustaining the conclusion arrived at by the Special Term." WOMAN AND THE LEGAL PROFESSION. THE foregoing heading is a translation of the title be reached by a judgment creditor of the husband. of a very able and entertaining work, "La Donna e l'Avvocatura," recently published in Rome, written by the advocate FERD. SANTONI DE SIO, for the purpose of maintaining the right, moral and legal, of women to practice the learned professions, particularly that of the law. In his preface the learned author states, that inasmuch as it has been said by those who are opposed to his side of the case, that the greater part of the advocates of the female sex are celibates, "that is, contrabandists by profession in the kingdom of women," he deems it proper to declare that he is a husband and a father. The work is divided into two parts. First, the judicial question. Secondly, the social question. of these the first part only has reached my hands, and I propose to afford the readers of the ALBANY LAW JOURNAL an opportunity to learn the mode in which the great question of woman's rights is now being treated by the successors of Cicero, Hortensius and Quintilian. Daniels, J., said: "As she could enter into a lawful contract for the employment of her husband in this manner, and has been required by the statute to be considered as a feme sole in the exercise of the authority conferred upon her, it would seem to follow that she could obligate and bind herself for the payment of the stipulated compensation. From the facts made to appear, the sum of money alleged in the complaint has been earned by him, and become payable from her for the performance of his services under a lawful agreement entered into by her, and it is to be presumed in support of the plaintiff's action that she would be willing to pay over the amount voluntarily to him in satisfaction of his demand against her husband as soon as the legal right to receive payment shall be acquired in these proceedings from her husband. Certainly the court has no ground to assume, and for that reason to defeat the action, that she would not honestly and fairly perform her contract by payment of the money as soon as the plaintiff shall be placed in a position where he would have a legal right to receive it. But it will not follow, from the inability of the husband to collect the debt by means of legal proceedings, that the plaintiff would be prevented from doing so by reason of the same disability, if it should be considered to exist, for this disability would extend no further than to affect the remedy, and would not stand in the way of the plaintiff to recover the debt, or of a receiver appointed for that purpose, under a proper judgment of this court. To theoretical and practical legal examination, which warrant such a recovery all that would seem to be was approved by forty-five out of fifty votes; and necessary is an obligation on the part of the wife to thereupon, on the 9th of August, 1883, pursuant to pay the money, and that obligation has been created the deliberation of the council of the order of adby her contract and the performance of her hus-vocates at Turin, she was inscribed upon the roll of band's services under it. Those facts, together with the acquisition of the demand by the plaintiff, or by a receiver in the action, would be all that could be legally required to maintain an action for the recovery of the debt. In this respect the case would resemble that of a foreign executor or administrator, The circumstances which led to the writing of this work are the following: A lady of Pinerolo, unmarried, and presumably young and attractive, the Signorina Lidia Poët, having been admitted to the courses of jurisprudence in the University of Turin, and passed her examination by a full vote, received her degree on the 17th of June, 1881; and for two years afterward, "attended forensic prac tice" in the office of an advocate, and assisted at the sessions of the tribunals. Then she sustained a that body. By the Italian statute of June 8, 1874, these proceedings entitle a man, (and our author contends, a woman) to practice as an advocate. Then, as our author says, her troubles began. The inscription of Signorina Poët upon the roll "did not please" the office of the Procuratore-gen eral (attorney-general), who entered a complaint with the Court of Appeal of Turin, of the same general character as a mandamus or quo warranto with us; to which Signorina Poët answered with great ability, maintaining her legal and moral right to practice, the substance of her argument, with liberal extracts, being given in the book. Among other instances she cited the case of "Signora Foltz," of San Jose in California, who "admitted to the bar in 1881, has been able to maintain five children of tender age, with the fruits of her professional labbors." Alas! the star of Belva Lockwood had not then risen above the Italian horizon! To this the procuratore-general replied, contending that the law and public policy forbade women to enter the "milizia togata ;" and sneering at poor Mrs. Foltz's case as having taken place in a "falda " (skirt) of North America. Signorina Poët was heard in rejoinder, and the Court of Appeal, after due deliberation, delivered its judgment to the effect that the inscription of Signorina Poët upon the roll of advocates at Turin was illegal. From this decision, the Signorina appealed to the Court of Cassation of Turin, where, after full argument, the decision of the court below was affirmed. The opinions of the two courts are given in extenso by our author from the decision of the court of last resort, our author, and the other supporters of woman's right to practice, appeal to the public opinion of Italy, with the ultimate intention of calling upon the Italian Parliament to redress a grievous wrong, as they characterize the ruling of the two courts. will be most interesting to American lawyers. The author begins, more Americano, with the list of the newspapers which have contained articles favorable to the admission of women to the bar, of which he enumerates twenty-five in Italy, and seven in other European countries, and on the other side only three. all Italian. The former, he says, neither blame nor approve the decisions of the courts, but they demand the passage of a law which shall clearly "fill so enormous a void." Then we are presented with the opinions of the other councils of the order of advocates, in answer to a request from the council of Turin. The council of Naples declined to express an opinion. The council of Milan gave no official opinion for want of a quorum, but its illustrious president gave his opinion that unmarried women and widows were admissible to practice, but not married women. The council of Venice, by a majority vote, expressed an opinion adverse to the right claimed for women; and the council of Rome, like that of Milan, failed to procure a quorum. But many illustrious professors of jurisprudence, and advocates, members of these councils whose names and the summary of their arguments are contained in the book, gave opinions at length in support of the right of women to practice; several of the discussions having taken place at public meetings, or in the course of lectures at the public institutions. Our author also gives the arguments of those who espoused the other side, upon several of whom, particularly upon an unfortunate Professor Gabba, he empties floods of irony and sarcasm. Inasmuch as the example of the United States was often quoted by those on the ladies' side, it occurred to a Signor Taverni, a teacher in the University of Padua, to "interview" our minister at Rome, Mr. William Waldorf Astor, and Signor Taverni gave the results of the interview in an address before a large The arguments of the parties, and the decisions of the two courts, are exceedingly interesting and instructive; they discuss the question at great length; from every standpoint. Upon the question of the construction of the statute the pith of the argument on the one side is that the words used are of the masculine gender, and that long estab-public meeting held in Rome on the 18th of April lished custom and sound policy forbid a construction of this statute which will include women. On the other side it is contended that in this statute, as in all others, masculine words include women; that although women had not actually practiced at the bar, they have distinguished themselves, through many centuries of Italian history, in studies, lectures and treatises connected with jurisprudence and other sciences, and are now actually practicing other professions; that the laws of "redeemed Italy" have emancipated them from their former disabilities; and that there is now no rule of public policy which excludes them from the forum. These arguments are greatly extended and profusely illustrated throughout the entire work with a fervidness of language and a richness and boldness of metaphor and illustration, which sound very odd and quaint to us, colder blooded Anglo-Saxons, whose taste prefers the discussion of scientific questions in a much less fervid and glittering style. I cannot attempt within the limits to which I must restrict myself, to do justice to either the courts, the disputants or the author; but I will select, for very brief consideration, a few of the points which last, which was attended by many ladies and gen- "who It appears that the literary ladies of Italy have also taken up the discussion of this question, and they are quite as much divided in opinion thereupon as the men. As might be expected, where the men argue so fervidly, some of the ladies push their arguments to the extreme. From an article by one of them whose name the author says that he suppresses "out of respect to her," the following extracts are given: "How would a lawyeress (avvocata) be able to consult with her clients, when she was attacked by the nausea of the first months of pregnancy? And afterward what a figure she would make in court, when, the months of her interesting situation being advanced, her curved lines become crushed with an anterior round line? And if the pains should come upon her in the heat of argument! That would indeed be fine! Would she invite her colleagues to serve her as midwives? And in childbirth, farewell to business! Poor clients! I assure you that I laugh to myself thinking of the ridiculous figure that a woman lawyer would make." To which our author sarcastically adds, "And let us leave this lady to laugh, and thus she will make good blood, and will see her own curved lines increase, without giving cause for any malignant remarks." A lady on the other side says "You say that women-lawyers are ridiculous. Why, I beg, any more than women editors?" (She is addressing an editoress). "And you add, that nothing can save a woman lawyer from the laughter of the public. Does this good public laugh, when it sees from the window of the railway car, either first class or third class, along-side of the track, the mother or the wife of the watchman, with his (uniform) cap placed over her headdress, waving the little green flag, which shows that the way is clear for the hissing machine? You continue, women who are intelligent, courageous and honest will find work every where. But that is not true, and the women lawyers prove it. They wish to work, to earn a living as you do as a journalist, and I as a teacher-by defending from the bar the widow and the ward; and you drive them away, although they are intelligent, because they have studied, learned, obtained the same degree in jurisprudence as a man; courageous, because they have presented themselves to seek for work, in spite of the prejudices and outcries of the crowd; honest, because they wish only to work, and to work honestly. You repelling them, in effect say to them, with your degree, if you wish to live, make stockings!" The book contains much more of this very vivacious writing, but I must hasten to a conclusion. A chapter follows entitled "The common law and women lawyers; " then another in which the author contends that advocateship is not a public office. The next chapter relates to Italian legislation as affecting women lawyers. Under this head the author gives with great fullness the substance of the various statutes relating to and affecting women in all capacities; thus laying before his readers a very interesting account of the present state of the woman question" in general in the Kingdom of Italy. Coming down to that part of the decision 64 of the courts in Signorina Poët's case, wherein it was held that the ancient customs and usages of Italy forbade the extension to the statute relating to advocates of the ordinary rule of construction that masculine expressions include women, he gives many instances of Italian women who have been distinguished for their learning and abilities in jurisprudence as well as in other sciences. Among them in the thirteenth century were Dotta Accursio, professor of civil law in the University of Bologna; the sisters Calderini, who taught civil law, one in the same University of Bologna, and one in that of Padua; Maddalena Buonsignori who wrote a book "De Legibus Connubialibus;" and in the fourteenth century, Novella D'Andrea; professor of canon law in the University of Bologna, who, while delivering her lectures, "in order that the scholars should not be distracted, covered her most beautiful face with a thick veil." Various women are also mentioned as eminent professors of and writers upon medicine, letters and philosophy; one of whom, Laura Maria Gaetani Bassi, 1732, at the age of only twenty-one years, was made professor of philosophy, and after thirteen years service in that capacity, was promoted to the chair of experi mental physics, in which she continued for thirtyfour years, having to the last the esteem and respect of all, and the veneration of the numerous scholars who flocked to her lectures; and she was, in addition, a most exemplary wife and mother. Another boast of the University of Bologna was Maria Gaetana Agnesi an illustrious author whose treatise was regarded by the University of Paris as covering every thing then (1748) known upon the differential and integral calculus; and who was also during, all her life of eighty-nine years so distinguished for works of charity that she was known as the consoling angel of the poor." She received her appointment from the Pope. Summing up these and other like cases, our author after noting that the Italian Universities are open to women, indignantly asks, what distinction can be made between degree and degree? Shall a degree in jurisprudence couferred upon a man open to him the career of an advocate, and the same degree conferred upon a woman compel her to mend stockings or rinse out the washing? The next chapter relates to the question whether the authorization by the husband of a married woman is necessary in order to enable her to exercise the legal profession. Upon this point there is a great difference of opinion among those who maintain that women should be allowed to practice. The author states all the arguments with his characteristic fullness and fairness. These involve considerations of some peculiar featuresof the Italian law with reference to restrictions upon the general power of married women to conduct their own business, whereby the husband's consent is required, in any matter wherein the woman may incur a liability. The author concludes with his own opinion, which is to the effect that although a procuratore (attorney), may render himself liable not only to costs and punishment, but to an action for damages, an advocate incurs no liability whatever, and therefore a married woman does not require her husband's authority to enable her to practice as an advocate. This very brief and imperfect summary of the first part of the learned advocate's work will enable my readers to form some idea of the mode in which Italy is agitated by the question which has also vexed us so much. Doubtless the second part, relating to the social question, will prove to be equally interesting and instructive. ALBANY, N. Y. MONTGOMERY H. THROOP. proposed ferry structures. These plans have been approved by the proper city authorities; and the defendant being about to begin the erection of these structures, the plaintiff seeks to enjoin the prosecution of the work on the ground that it will inflict irreparable injury on his alleged riparian rights as lessee of the premises along the bulk-head line at the head of the slip between Twenty-second and Twenty-third streets, by occupying nearly one-half of the slip at a distance of 145 feet directly in front of his bulk-head, thereby obstructing his business in the slip and on shore as at present conducted. The proposed ferry is evidently conducive to the public convenience and utility. No irregularities are suggested in the defendant's proceedings. 1 must assume therefore that the defendant has all the authority for the erection of these structures which the city or the State could confer; and a work thus authorized, and for the public RIFARIAN RIGHTS-PUBLIC GRANT-INJUNC. benefit, should not be arrested at the instance of a TION-FERRY. CIRCUIT COURT, S. D. NEW YORK, JULY 15, 1884. TURNER V. PEOPLE'S FERRY CO.* Exclusive riparian rights do not attach, as a matter of course, to a grant of lands under water. Whether they do so or not, depends upon the express terms of the grant, or upon the intent of the parties as shown by prior use, by the object of the grant, or by other circumstances from which the intent may be inferred. In the absence of an express grant of the right of wharfage, and of any manifest intent to convey it, no exclusive right of wharfage passes as incident to a grant by the state of land under water, below high-water mark, in a harbor or navigable stream. An injunction to restrain the prosecution of a work, like a new ferry, of great public convenience and utility, should not be granted at the instance of a private party alleging threatened damage, except his right and his injury be clear. The defendant being about to erect new ferry structures, under authority from the State and the city, in the slip between Twenty-second and Twenty-third streets, East river, occupying nearly half the slip in width, at a distance of 145 feet from the bulk-head, far below the original high-water mark, on motion by plaintiff for injunction as obstructing his riparian rights along the bulk-head as hitherto excerised, held, that no exclusive riparian rights were established in the plaintiff, and that all the access which he could legally claim was still left him, and the injunction was denied. private party, unless both his right and his injury be clear and certain. Taylor v. Brookman, 45 Barb. 106. I am not satisfied that the proposed structures would not leave the complainant in the enjoyment of all the rights which he can legally claim; and without reference to the other points raised, the injunction, pendente ltte, should on that ground be denied. The plaintiff in March, 1881, leased from the executors of John L. Brower certain premises between Twenty-second and Twenty-third streets for nine years from May 1, 1881, with the privilege of a renewal for ten years afterward. The premises leased are described in the lease as bounded on the east "along the East river," and no reference is made in the lease to any bulk-head or wharf, or to any wharfage or riparian rights of any kind. The complainant hired the premises for the purposes of a coal-yard, expecting to receive and to deliver coal in boats moored along-side the bulk-head, as he has hitherto done. His affidavit states that at times he has had twenty canal boats moored there at once. It appears however that prior to this lease the Pennsylvania Coal Company, a former lessee, had been accustomed to receive and to deliver coal there in like manner, using the bulk-head as a place of landing; and that this privilege enhances the rental value of the premises. It can scarcely be doubted that this use was contemplated by the lessor, as well as by the lessee, and that the terms were in reference to it. The complainant has sublet the northerly half of his premises to Clark & Allen, who have erected thereon a grain elevator, used in connection with the landing of boats at the bulk-head. It must be assumed therefore under such circumstances, that the lease to the complainant was intended to pass and did pass, as an incident thereto, whatever rights of wharfage the Brower estate held. Huttemeier v. Albro, 18 N. Y. 48; Voorhees v. Burchard, 55 id. 98. It could not pass more. What their rights were, is the turning point. The premises in question are far to the eastward of the line of 400 feet below low-water mark, and hence were formerly the property of the State, from which Brower's title to the lots and his rights of wharfage, if any, must be deduced. Omitting any reference to various acts and grants by the Legislature and the city, which present some complications of title, and which are set forth in detail in the elaborately considered case of Nott v. Thayer, 2 Bosw. 10, the view most fa M. J. O'Brien and S. G. Clarke, for defendant. BROWN, J. A motion is made for an injunction, pendente lite, to restrain the defendant from erecting its proposed ferry-rack and ferry-house along the southerly side of the Twenty-third street pier, in the slip between the wharves at Twenty-second street and Twenty-third street, East river. The defendant was empowered by act of the Legislature (Laws 1882, ch. 193) to establish and operate a ferry from near Broadway, Brooklyn, across the East river to Twenty-third street, New York; and to acquire the necessary franchise therefor. It subsequently acquired this franchise by purchase from the city of New York, at pub-vorable to the title and rights of John L. Brower is lic auction, at a fixed yearly rental; and it also obtained a lease from the city of the Twenty-third street pier. It has given bonds for the performance of all the various conditions of the lease, and of the franchise to operate the ferry, and has submitted its plans for the *S. C., 21 Fed. Rep. 90. that which deduces the complainants' alleged title from the act of the Legislature of April 9, 1813 (Laws 1813, ch. 86, §§ 220, 221), in connection with the ordinance of the common council of December 31, 1856, laying out East street. By the act of 1813 (re-enacting the act of April 3, 1798) the Legislature authorized the |