CORRESPONDENCE.

"APPARENTLY INCONSISTENT DATA" EXPLAINED. Editor of the Albany Law Journal:

The cases of Armstrong v. Cummings, 20 Hun, 313, and People ex rel. Denhardt v. Kelly, id. 549, are entirely consistent with each other.

In the first case the premises were described as No. 149 West Forty-fifth street, and as all of West Fortyfifth street was contained in one judicial district, and as the names of the streets and parts of streets contained in the several wards and districts in the city of New York could be ascertained from the public laws, the court held that they would take judicial notice of the number of the district in which the premises were situated.

In the second case the premises were described as No. 341 Fifth avenue, and as Fifth avenue does not lie wholly within any one district, but extends through several, the court held that they could not from the number of the house determine upon what portion of the avenue it stood, and hence could not determine in which of the several districts through which that avenue extends it was located.

The difference between the two cases is clearly stated in the second paragraph of the head-note to The People ex rel. v. Kelly.

ALBANY, Sept. 29, 1880.

RELEASE Of Dower.

Editor of the Albany Law Journal:

L. G. H.

In examining a title I have encountered a deed by a husband owning the fee in which the wife is joined, which contains the usual full covenants and is properly acknowledged, but the usual words, "dower and right of dower" are omitted, and there are no other words which might operate as a release eo nomine. I have been greatly surprised at the diversity of opinion among lawyers of the highest standing here, upon the question as to whether express words must be used to bar any claim for dower. I have exhausted authorities and treatises bearing upon the subject, and have found that there are decisions in point in many of the States except New York; notably among the many cases is that of Smith v. Handy, 16 Ohio, 191, which holds flatfooted in favor of the deed as stated. But I am unable to satisfy myself that the law in this State is the same, and while I am convinced that the law as laid down in the case cited is sound, yet I hesitate to pass upon the subject owing to the fact that so many of our best conveyancers here hold firmly to an oppo

site view.

If not too much trouble, will you kindly publish your views upon the subject, not only for my benefit, but for the information of many others who are greatly interested in a solution of the question, and oblige Very truly yours, F. L. M.

NEW YORK, Sept. 29, 1880. [It would seem that the joining of the wife with the husband in a conveyance of the premises to a third person should bar her dower, without express

We

18 Pick. 9, and Dustin v. Steele, 27 N. H. 431. think this principle is the universal one, and can find no case making any exception to it. -ED. Alb. L. J.]

Editor of the Albany Law Journal:

I wish to call your attention to section 1725 of the new Code, and also to subdivision 2 of section 1762. What is the policy of the former, or what benefit can arise to the defendant by reason of it?

In subdivision 2 of the latter section should not the words "former" and "latter" be transposed? The substitution of the words "defendant" and "plaintiff" for the "husband" and "wife" of the R. S. was an improvement; but may not the commissioners or engrossers have made an error in the latter part of the subdivision? J. H. N.

[1. Mr. Commissioner Throop states that this is a substitute for the practice of stating in the answer the disposition that has been made of the property and demanding a judgment for its return, such practice being inconsistent with the existing mode of procedure and the proper functions of an answer. 2. We think the language is correct as it stands, although perhaps the other way would be equally correct.ED. ALB. L. J.]

In reply to the wish expressed by you in the ALBANY LAW JOURNAL of 18th inst., "that some of our London contemporaries would supply us with statistics showing the number of judicial officers and the amount of litigated business in England," I, though not a London contemporary, have endeavored to comply with the first part of your requisition. I have no means of ascertaining "the amount of litigated business in England," but judging from the statistics contained in the current number of the Law Magazine and Review, to which I used to be a contributor, relating to the county courts during the year 1877, and taking into account my own experience as a practicing barrister in England so late as the year 1874, and the accounts which I receive still from professional friends there, I should say that the cases tried in the Superior Courts and at the Assizes, and in sundry local courts, would amount to double the number tried in the

county courts alone. This, however, is mere conjecture, as I have no means at hand to test such belief, but the difficulty experienced by the judges, so late as last year, in reducing the arrears, confirms my view. I have, however, much pleasure in furnishing you with the inclosed. It is an abstract of the approximate cost of all judicial officers in England and Wales:

SUPERIOR COURTS.

About forty judges, including the ex-chancellors and retired judges (who give good valuo for their pensions by rendering their services and matured experience available in the House of Lords, if peers, and in the judicial committee of the Privy Council) discharge the law business of the Superior Courts of England and Wales at an aggregate cost somewhat exceeding $1,000,000.

The statistics are as follows:

INFERIOR COURTS.

There are also fifty-eight judges of county courts, at a salary of £1,500 each, aggregating therefor...

The registrars of these county courts, having judicial duties in undefended causes, number upward of 500, and their aggregate remuneration cannot amount to less than.... The recorders of cities and boroughs number 112, some of them having a civil jurisdiction for the trial of causes, and all possessing a quasi civil jurisdiction in matters of appeal in rating, assessments, granting or refusing licenses, bastardy cases, and appeals against summary convictions; their aggregate cost may be set down at about...

Magistrates of the Metropolitan Police
Courts.

£87,000

250,000

17,000

Other judicial officers, such as the common serjeant, commissioner and judge of sheriff's court in the city of London, assistant judge and deputy assistant judge of the Middlesex Sessions (having a like civil jurisdiction with all courts of quarter ses sions)

Two Masters in Lunacy, aggregating....

Master of the Rolls

22,000 6,000

....

20,000

7,000

4,000

£410,000

$2,070,000

Four Puisne Judges of Court of Q. B..

20,000 20,000 20,000 10,000

5,000

25,000 £211,000 $1,055,000

If to these are added Registrars of the Court
of Bankruptcy, who sit judicially and as
connected with the above courts, the
Queen's Remembrancer- the Masters of
the Courts of Q. B.-C. P. and Exch., who
exercise judicial duties as referees, a fur-
ther sum must be computed, aggregating.. £24,000
And if, in addition, the chief clerks of the
Judges of the Chancery Division of the
High Court of Justice, who sit judicially to
take evidence and report the result to the
court, are taken into account, a further
sum must be computed of at least......

Total extra cost of Superior Courts......
Or.........

Assistant Commissioners of Assize, engaged on circuit trials and appointed pro hac vice as circumstances require, to supplement the Judges of the Superior Courts, at a probable aggregate cost of....... Additional cost of the same... Or.....

6,000 £30.000 $150,000

Total Or....

cases.

This estimate does not embrace clerks of the peace for counties and boroughs, numbering at least 200 or 250, high sheriffs or sheriffs and their deputies, though the latter exercise judicial duties in trying certain cases where damages alone have to be assessed, and also compensation Neither does it include such judicial officers as vice-chancellors of the Duchy of Lancaster, of the county Palatine of Durham, the judge of the Hundred of Salford: the passage court of Liverpool; the vicewarden of Stannaries, and other local courts; nor yet the judges of the courts of survey; the wreck commissioners, nor the forty-three district registrars of the probate court, most of whom are paid by fees not easily ascertainable.

Barristers appointed to revise the list of voters for Parliamentary elections, and numbering about 100, exercise judicial functions in investigating disputed property qualifications, and an appeal lies from their decisions to one of the Superior Courts. Their aggregate cost, together with two commissioners for the trial of municipal election petitions, amounts to about

£6,000 £6,000 $30,000

HUGH WEIGHTMAN.

NEW YORK, Sept. 25, 1880.

CONVENTION OF JUDGES TO REVISE THE GENERAL RULES OF PRACTICE.

HELD AT THE CAPITOL AT ALBANY ON SEPTEMBER 29, 1880 PURSUANT TO AN ADJOURNMENT

-

FROM JUNE 1, 1880.

Present Hon. Judges Mullin, Talcott, Smith, Learned, Sheldon and Daly.

On motion of Judge Learned, Judge Mullin was appointed Chairman.

On motion of Judge Smith, Judge Learned was appointed Secretary.

On motion of Judge Smith it was resolved that the Convention adjourn to meet at the Capitol at Albany on December 15, 1880, at 11 A. M., and that the secretary be requested to write to the several judges, required by section 17 of the Code of Civil Procedure, to meet and establish rules of practice, notifying them of such adjournment, calling their attention to the fact that three unsuccessful efforts to secure the attendance of a sufficient number to constitute a quorum have been made, and urging upon them the necessity of altering and revising the existing rules so that they may conform to the practice established by the new Code.

That he also request each of the said judges to inform him before December 10th as to whether or not he will be present at the meeting to be held on December 15th.

Judge Daly seconded the motion, which was adopted. WM. L. LEARNED,

Judg

Judgment affirmed with costs- Ward v. Warren. Judgment affirmed - Henze v. The People. ment reversed and new trial granted, costs to abide event Greenwood v. Schumaker; Eggleston v. President, etc., of the Columbia Turnpike Company. Order affirmed with costs Belmont v. Cornen; Walker v. Walker. Motion denied with costsBenedict & Burnham Mfg. Co. v. Thayer; People ex rel. Thayer v. Bowe.- Orders of General and Special Term reversed with costs, and the order of removal reversed and annulled - People ex rel. Campbell v. Campbell. Order of General Term reversed, and judgment on report of referee affirmed with costsHoward v. Johnson. Judgment of General Term modified so that it shall direct a reversal of the Special Term, and that the writ be quashed without costs -People ex rel. Weeks v. Board of Supervisors of Queens County. Motion for reargument denied, with ten dollars costs - Fisher v. Raab.

THE

NOTES.

American Law Review for October contains tho third part of Mr. Jones' contribution on the Law of Negotiable Securities - Pledge of Negotiablo Paper. Also copious extracts from the address of Hon. Benjamin H. Bristow, president of the American Bar Association, delivered at the late meeting. We have received the first number of the Colorado Law Reporter, a new periodical, to be published at Denver, and to be issued monthly in 8vo. of forty-eight pages, and to contain opinions in full, more especially those of local interest, and digests and notes of recent cases. The number before us is well printed, and the contents are of interest. The number of causes for

trial and argument in the city of New York on the fall opening of the courts is as follows: Supreme Court, General Term, 199 causes; trial term, 2.717; Special Term, 845; Superior Court, trial term, 950; Common Pleas, trial term, 804. Total, 4,625. This does not include the general terms of the Superior Court and Common Pleas.

M. B. Wright, county judge of Iroquois county, died Tuesday night, September 21, from the effects of an operation performed in the surgical hospital at Indianapolis. This case bears a singular resemblance to that of Judge Manning, of Alabama. Our lively friend, Mr. Bradwell, of the Chicago Legal News, complains of Judge Harker for holding that a woman cannot be a master in chancery! But it is too bad in the News to insist that Chief Justice Taney held, in the Dred Scott case, that a colored slave had no rights which anybody was bound to respect.

· RENDER UNTO CESAR THE THINGS THAT ARE CESAR'S.- In our last issue we reproduced from the columns of the Luzerne Legal Register an exceptionally pointed and readable article, entitled "Drinks, Drinkers, and Drinking," and naturally gave credit to that journal. We have since ascertained that the article in question is from the pen of R. V. Rogers, Jr., in the ALBANY LAW JOURNAL. We presume our friend of the Legal Register neglected to give the usual credit, or omitted it by mistake, and therefore led us astray. This is to make amends.-Ohio Law Journal.

During the week beginning October 11, the city of Baltimore propose to celebrate the 150th anniversary of its founding. There is to be a grand procession, in two divisions, the first "illustrating the progress and development of the city from 1730 to 1812, the second from 1812 to 1880." We are glad to observe that the progress in the administration of justice is to be illustrated. The programme of the first division is as follows: "Two heralds in English costume of 1730. Lords and baronets of 1730 on horseback, the trappings, etc., of the horses and the sashes being the colors of Maryland-orange and black. An Indian chief (to represent the chief from whom the ground now occupied by Baltimore was purchased) and his followers. Indian life, represented by a scene of Indians drawn in a wagon. Capt. John Smith and thirteen men in a boat on wheels. Smith was the first man who cast his eye on what is now Baltimore, and explored the Chesapeake. Settlers in a wagon, among the representations being the log cabin and the outfit of the settlers in colonial times. Representation of the old courthouse, the first one built for Baltimore town, which formerly stood on a bluff forty feet high, on Monument Square, where the Battle Monument now stands; the stock and pillory will also be represented in this tableau. An old watch-box, with a squad of watchmen in the olden time in old-fashioned caps and overcoats and using rattles. Continental fifer and drummers. Military camp of the revolutionary war. A company of Maryland minute men, known as the Maryland Line, commanded by a personification of Baron DeKalb; it was thought proper to introduce a representative of the latter in the procession, which will be in charge of the German committee, as DeKalb was a German and lost his life at the head of the Maryland Line. Trade and commerce of Baltimore, represented by a clipper in full rig, on the deck being tobacco, wool, grain and other Maryland products. A representation of the Star-Spangled Banner, consisting of a collection of shells and bombs in pyramid form, the topmost being a bursted shell, out of which emerges the Goddess of Liberty. A representation of the Battle Monument."

The Albany Law Journal.

THE

ALBANY, OCTOBER 16, 1880.

CURRENT TOPICS.

HE different views of New York and Massachusetts as to the essentials of a contract of marriage are illustrated in two very recent cases in which the facts strain the different theories to their utmost. In the New York case, in the Court of Appeals, the administration and succession of the estate of a New York merchant of some wealth was disputed on the strength of an oral contract of marriage entered into before witnesses by the deceased, first in London, next on a ship crossing the channel, and third in Paris. Neither by French law nor by English does such a contract constitute a valid marriage. Whether it does on board a vessel on the high seas is a delicate question into whose solution many elements would enter. One of the most important would be the nationality of the vessel, and this was not in evidence before the court, nor does it appear that the marriage law in France was proved, a singular, not to say unaccountable oversight. The court, therefore, declining to take cognizance of a foreign law unless it was proved as an issue of fact, rendered its decision on the presumption that the marriage contract on board the vessel and in France was made under law like that of New York, and declared the marriage valid and the issue legitimate. In the Massachusetts case (Commonwealth v. Munson, 127 Mass. 459), the defendant, at a public religious meeting called by him, at a chapel, in Worcester, Mass., at which about fifty were present, but at which no magistrate nor clergyman was present, gave out a text, talked awhile about " repentance," read Matt. xx, 1-5; then a woman came forward and read from the 6th to the 10th verse of the same chapter; they then joined hands and the defendant said: "In the presence of God and of these witnesses, I now take this woman whom I hold by the right hand to be my lawful wedded wife, to love, to cherish, till the coming of our Lord Jesus Christ, or till death do us part;" the woman then said: "And I now take this man to be my lawfully wedded husband, to love, reverence and obey him until the Lord himself shall descend from Heaven with a shout and the voice of the archangel and with the trump of God, or till death shall us sever;" and the parties then bowed, and the defendant offered prayer; neither party was a Friend nor Quaker, and the ceremony was not conformable to the usage of any religious sect; the rite was performed in good faith and followed by cohabitation. Held, no marriage. The learned chief justice, Gray, at the close of an elaborate opinion, said: "Whether it is wise and expedient so to change the law of Massachusetts as to allow an act, which so deeply affects the relations and the rights of the contracting parties and their offspring, to VOL. 22.- No. 16.

become binding in law by the mere private contract of the parties, without going before any one, as a magistrate or minister, is a matter for legislation, and not for judicial consideration." We believe the statutes of the two States do not essentially differ. Both provide for ceremonial marriage, but neither enacts that the absence of such ceremony shall render the marriage void.

The Pennsylvania Supreme Court have, so to speak, sat down on Judge Patterson, of the Quarter Sessions of Lancaster, in the matter of Messrs. Steinman and Hensel, attorneys and editors of the Lancaster Intelligencer newspaper. It will be remembered that the judge summarily expelled these gentlemen from the bar of his court for publishing a libellous article in their newspaper in reference to his judicial conduct. We urged pretty stoutly at the time that Judge Patterson had exceeded his judicial power, and that an attorney could only be disbarred for misconduct in his professional capacity or affecting his professional character. The Supreme Court have taken this view, and have vacated Judge Patterson's order, and restored the attorneys to the bar. The court also adopt the view that a libel, to amount to a breach of professional duty, must have been designed to acquire an influence over the judge in the exercise of his judicial functions by the instrumentality of popular prejudice a motive which is not alleged to have existed in this case. Now we have Judge Patterson set straight, we think it would be in order for Messrs. Steinman and Hensel judge for a publication which they do not underto set themselves straight by a public apology to the take to justify, and which was, therefore, clearly libellous. This is due to themselves as gentlemen and lawyers, and to the judge as a public functionary. By the way, the county of Lancaster has to foot the costs of the proceeding. We shall publish the opinion in full.

We are pleased to learn that this winter the bar of New York city are to have the benefit of a course of lectures on the Roman Law, by Adolphe L. Pincoff, of the University of Leyden. Professor Pincoff has received the degree of Doctor of Civil and Modern Law in its highest form -- summa cum laude, and is a member of the bar of Rotterdam, his native city. Professor Pincoff will deliver his course in English, of which he is a complete and elegant master. The civil law is receiving close attention in England, where it has many disciples among the more scholarly-inclined members of the bar. There is no doubt that in its relations as a subject of comparative jurisprudence the civil law is of practical use to lawyers; nor, that in its historical aspects, it is of the first importance to the science of general jurisprudence. It is the only system of law, which, thus far, may be traced from its most primitive forms to its maturest development - the birth and death of an actual juridical system and to it we look for some of the most important legal phe

Of

A leading topic of discussion in the London legal and lay newspapers, at the present time, is the cost of litigation. A correspondent of the Times attributes the great cost of litigation to the law of evidence, and the necessity of calling and keeping in attendance a crowd of witnesses. He says: "In former days causes were tried and witnesses examined on much stricter lines than they are now. late years cross-examination 'to the credit of a witness' has become an insidious cause of the protraction of trials. It has always been a rule in England not to admit secondary evidence of any fact if primary evidence can be obtained. The attendance of witnesses and the preparation of briefs for counsel and the fees of the latter are all regulated by these exigencies of the law of evidence. There appear to be two remedies for this evil: (1) A return to the old system of winnowing out each case by a process of pleading and extracting out one or two precise questions of fact which will constitute the issues to be tried, and to confine the evidence strictly to those questions; or (2) to relax the law of evidence and to permit the judges and juries to consider documents and other matters of evidence, although not constituting primary evidence; and to modify the practice of the courts so as to allow of trials being postponed for such further evidence on controverted points as the judge may think necessary. The first alternative remedy would no doubt be a retrograde movement, although probably an improvement on the present state of things. I believe that the second remedy is the only one that could be successfully applied." He recommends the adoption of the French system upon the latter point. Much more conclusive is the reason assigned by another writer, who says: "Another great reason for the increase of costs nowadays is to be found in the division of the legal profession into the two branches of counsel and solicitors. Looked at by the light of reason alone, there is no logical argument whatever in support of that division. What can be more absurd than compelling a suitor to filter his case through the brains of one man into the ears of another? Even if a solicitor of talent and honesty wishes to act personally for his clients in those courts where he has equal audience he can only do so at a loss; for the authorized scales of costs are so arranged as to discourage this attempt at independence. Such a solicitor can get but a wretched fee for his own work, while, if he employs counsel, he can pay him well, and also run up a neat little bill for himself. We doubt not but that a time will

come when, all this old-world nonsense being swept away, the lawyer will be one man complete in himself, and not, as at present, two people chained to

gether by an absurd custom, and compelled, for their own profit, to make as much as they can out of their unhappy clients."

The Canada Le

In

This question of the cost of litigation arises collaterally on the consideration of the claim of Mr. Doutre, Q. C., upon the Dominion Government, for services as counsel before the Fisheries Commission, which services he values at $50 a day, the aggregate being some $20,000, we believe. gal News informs us that "Mr. Doutre deposed that in the test case of Angers v. Queen Ins. Co. he received $500 in fees, although he spent but two days in court. In another case, in which he obtained a $12,000 verdict, he was three days in court, and received $1,800 in fees besides the taxed costs. the case of Grant v. Beaudry, known as the Orange trial, he was paid $10 per hour. Mr. F. X. Archambault, of Montreal, stated that in the case of Wilson v. Citizens' Ins. Co. the amount claimed in the suit was $2,000, but he received $1,000 as a retainer, besides other fees. In the case of Rolland v. Citizens' Ins. Co., his retainer was $2,000. In three capias cases which were presented as one, and which lasted about a month, he received $2,800 altogether. In the criminal case of a woman charged with stealing some silks, he received a retainer of $1,500. This client was merely admitted to bail. To defend a criminal case, which would not occupy more than two days, he had received $2,000." These amounts seem large, no doubt, but they are by no means unThere are a number precedented in this country. of counsel in the city of New York who command $250 a day. There would seem to be no reason why a British lawyer should not be paid as much as a British physician, both standing equal in their respective professions; and a British jury recently gave Dr. Phillips a verdict of £16,000 damages for two years' loss of business.

A correspondent writes us: "Referring to the comments of some of your correspondents upon the use of bad English by judges and reporters, is there any possible justification for the use of the word 'saloonist,' in the head-note of Thomas v. People, 39 Mich. 309? 'Saloon' is bad enough as a synonym for dram-shop, but 'saloonist!' Surely the reporter must have risen from a perusal of Artemas Ward, to indite that head-note." Our correspondent is probably right. Saloon" may be an Americanism, but it has grown into very general use. "Saloonist" is undoubtedly a coinage. "Baloonist," however, probably commenced in the same

way.

NOTES OF CASES.

IN Shepard v. Wright, New York Supreme Court,

June, 1880, it was held. by Van Vorst, J., that a judgment recovered in Canada against a person residing in this State, without the service of process in Canada or appearance by the defendant, will not