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right of action for the trespass. (Sherman v. The M., Smith. For the student it is undoubtedly the best L. S. & W. Railway Co., 40 Wis. 645, and earlier cases text-book upon the law of contracts. The additions in this court.) Blesch v. C. & N. W. Railway Co. and annotations made by the American editors are Opinion by Cole, J.

uniformly excellent, and have fitted the work for use 2. Damages recoverable in such action.-In this ac- on this side of the water. The citations of authority tion for such a trespass it was error to give instruc- in this edition appear to embrace all the important late tions implying that the plaintiff was entitled to re- cases, and are as full as is to be expected in an elementcover the difference between the value of the use of ary work of this character. The details, indeed, of the premises with the railroad constructed and used the law of contracts are not as thoroughly considered as it was, with all its inconveniences, and the value of as in the treatise of Professor Parsons, but the general such use as it would have been with the railroad where principles are stated clearly and logically, and the it was, but without such inconveniences. The damages annotations of the editors render the book sufficiently recoverable in this case could not exceed the dif- comprehensive to answer the purpose of almost any ference between what would have been the rental reader or student. The work is well indexed and exvalue of the premises (during the continuance of the cellently printed and bound. trespass, down to the commencement of the action), in case there had been no railroad on the street, and

THE AMERICAN LAW REVIEW, its actual rental value with the railroad constructed

The American Law Review, January, 1878. Editors Moorand operated as it was. The fact that only a part of

field Story, Samuel Hoar. Vol. XII, No. 2. Boston:

Little, Brown & Co. the width of defendant's track was upon plaintiff's land will not affect the rule of damages. Ib.

The January number of this excellent periodical contains several articles of importance and value. “The

amendment of the Patent Law," by Chauncey Smith, is Official bond given by constable.-The liability of a an elaborate review of the history and present condition surety cannot be extended by construction or doubt- of the American law regulating patents, with suggesful implication. By the conditions of a bond duly tions for improvement. “Jeremiah Mason and the given by P. as a coustable, he and his sureties jointly Bar,” by C. H. Hill, is an interesting collection of remand severally agreed to pay to the persons entitled | iniscences of the distinguished lawyer whose name is thereto, "all such sums of money as the said constable mentioned, and of those, from time to time, associated (might) be liable to pay by reason of or on account of with him in one way or another. “The Parliaments any summons, execution or other process or proceeding of France," by James Beck Perkins, is an instructive which (should) be delivered to him for collection, and and entertaining description of a tribunal long since for all money, which (should) come into his hands as passed away. “Liquidated Damages,” by John Prof. such constable.Held, that no action will lie upon fatt, is the concluding article. The case law in relathe boud for the amount of a judgment recovered by tion to the subject is considered at length, but the plaintiff against P. for the value of plaintiff's property points intended to be presented are not stated with seized by P., under an attachment against the sufficient clearness to render the article of great imgoods of a third person. It seems that the bond would portance or value. The digests of English, State and cover a breach of duty by the constable not only in Bankruptcy decisions, as usual, constitute a valuable omitting to serve a fi. fa., but also in omitting to serve feature of the Review. The book notices are well writa summons or other process. Taylor v. Parker. Opin- | ten, and conscientiously critical, and the summary of ion by Cole, J.

events is very readable and presents in a brief form

the leading legal events of the past three months in NEW BOOKS AND NEW EDITIONS.

various parts of the world.

SURETYSHIP.

THE

SMITH ON CONTRACTS — SIXTH EDITION.

CORRESPONDENCE.
The Law of Contracts. By John William Smith, Esq., late
of the Inner Temple, Barrister at Law, author of " Lead-

THE NEW GRAMMAR OF THE CODE.
ing Cases," ** A Treatise on Mercantile Law," etc. Sixth
American, from the sixth London edition, by Vincent To the Editor of the Albany Law Journal:
T. Thompson, Esq., M. A., of Lincoln's Inn, and of the

SIR-I did not intend, after my "extraordinary Midland Circuit, Barrister at Law. With notes and references to both English and American decisions by attack on the grammar of the New Code,'' to trespass William Henry Rawle. And with additional notes and references

further on your space. But, as the mild sarcasm of to recent American cases by: George Sharswood, LL. D. Philadelphia: T. & J. W. Johnson An Enlightened Ignoramus” has been followed by & Co., 1878.

the gentle raillery of “H. F.," and as the subject has CHE reputation of John William Smith for exten- aroused considerable discussion among lawyers, I think

sive legal knowledge and ability of the first order in justice to myself I should write a few last lines in is such that every work with which his name is associ- reply. Putting aside the temptation to indulge in a ated is accepted, without question, as being as excel- little pleasantry at the expense of my adversary's first leut an exposition of the subject-matter contained Dogberry-like nom de plume, I pass on to his assertion therein as could be produced. We are not surprised, that I am not “familiar with the new grammars therefore, that since the publication of the work be- (names of authors not given). I did not kuow that fore us, in 1846, the unusual (for a law book) number of there was a new grammar any more than a new multisix editions should have been required to meet the de- plication-table; but I have read the last editions of mand of the profession. The treatise is too well most of the standard grammars, including Brown, known in every country where the common law pre- Kerl, Clark, and, last of all, Swinton, and find that vails to require any recommendation from us. Like they all retain the poor “old fashioned statutory subseveral other elementary works familiar to all, it is junctive.” That any reputable grammar can sanction made up of lectures prepared for delivery to law stu- such a phrase as (sec. 450 New Code) “A married dents. It was not printed until after the death of Mr. woman appears * * * as if she was single," we can

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scarcely believe. The statement that Mr. Field only Doscher; 27, McNulty v. Hurd ; 28 Townsend y. O'Conarrived at “mature judgment" in 1865 seems to me nor; 29, Dorrity v. Rapp; 30, The People v. Starkin rather doubtful taste. But “Ignoramus” entirely weather; 31, Moore v. Hegeman; 32, Adair v. Brimmer; misapprehends the point of my letter. I did not say 33, Kettletas v. Kettletas; 34, Cook v. Sanderson; 35, that the best writers never made a confusion between Evans v. Cleveland ; 36, Shakespeare v. Markham; 37, the indicative and the subjunctive, or that overworked New v. Nicholl; 38, Read v. City of Buffalo; 39, First judges could spend time in polishing their sentences, National Bank of Chittenango v. Morgan; 40, Samuels but I did say that a statute, on account of its great im- v. Northern Central Railroad Company ; 41, McMurray portance, should be perfect in form, and I do now fur- v. Noyes; 42, Fordham v. Hendrickson; 43, Beers v. ther say that a code in conversational style is a disagree Shannon; 44, Hastings v. Westchester Fire Insurance able novelty. And now a few words to “H. F.,” who Company; 45, Munson v. Lutell; 46, Garvey v. Mcplayfully hurls at my head an old edition of Webster's | Devitt; 47, Sturgis v. Vanderbilt. CLASS 4- No. 48, dictionary. The introduction he so much admires is The People ex rel. Thompson v. The Board of Supernow a thing of the past, having been omitted in the visors of Hamilton county. GENERAL CALENDAR.last edition of the great dictionary. The brief state- No. 49, Young v. Hunt; 50, Booth v. Farmers and ment about the subjunctive in the new edition (page Mechanics' National Bank. xxvii) covers but a small portion of the ground. All the examples cited in the old introduction prove sim- A false alibi was recently successful in a trial in ply that there has been in the minds of many good London. Two men were indicted for housebreaking writers great doubt as to the employment of the sub- at Wood Green, on the night of Sunday, October 21. junctive, some even, in the same sentence, using both They were positively identified by three persons, who the correct and incorrect form. But what did the intro- saw them under very favorable circumstances going to duction propose? Merely to use the indicative form and coming from the house with a cart drawn by a when the present or the past is referred to. But in brown pony. A fourth man, who knew one of the regard to a future contingent event, when the old prisoners well, swore that he saw him in his cart four form of the subjunctive properly applies, Webster pro- miles from his house, and that he read the name on the posed, “If it shall," "If it should," etc. Even Swin- cart. The three who saw them near the spot had no ton, the newest of “the new grammars," does not fol- previous knowledge of them, but at once gave a full low Webster in this. I now close this discussion, so description to the police, who recognized the prisoners far as I am concerned, hoping that when i next meet as answering that description; and then it was found “An Enlightened Ignoramus," and his ally, they can that they were brothers-in-law, living near together, find more formidable weapons than a phantom gram- and had a cart and a brown pony exactly like that seen mar and an old dictionary.

T. C.

by the witnesses. This appeared to be conclusive NEW YORK, January 7, 1878.

proof; but it was met, as usual where the criminals are

not caught at the time, by an alibi. Twelve witnesses, NOTES.

chiefly relatives and friends, were called to prove that E have received the first number of a new Cana- | two hours before the robbery the prisoners were at

They were It is published weekly at Montreal by Messrs. T. & R. unshaken as to any of the incidents of the evening White. It contains sixteen pages royal octavo, and is and it was clear that, if the alibi was not a true excellently printed upon good paper. Its contents one, it had been contrived by transferring to the Suncomprise leading articles upon legal topics, notes and day in question the history of some previous Suncomments upon legal news, condensed reports of inter-day. As most of the witnesses had been out of esting and important decisions rendered by the courts doors on that night, it occurred to one of the magisof the various British American provinces, and notes trates on the bench to question them as to the state of of the leading decisions of the courts of the United the weather, when, being unprepared on this point, all States, England and France. It is well and carefully agreed in describing it as a rough, wet, and dark night. edited, and is, we should judge, just what the profes- | An almanac was sent for and it was found that the sion in Canada need, and we trust it will be heartily moon was then at full; but no person present could sustained by them.

remember what was the weather and the prisoners

were acquitted. The next morning the deputy assistThe following is a list of the first fifty causes on the

ant judge received a letter from a gentleman who had Court of Appeals calendar made for January 15, 1878: heard the trial, stating that he kept a diary of the CLASS 1 – Criminal Actions. — No.1, Phelps v. People; weather, and that on his return he had referred to it, 2, People v. Brown; 3, Polinksky v. People; 4, People

and tbat on the 21st (the day in question) the moon was v. Casey; 5, People v. New York C. and C. Railroad

at full, and the night fine and light; but on the preCompany. CLASS 2 - Probate Cases.- No. 6, Jones v.

vious Sunday was gusty and rainy, as described by the Smith; 7, Horn v. Pullman; 8, Auburn City National witnesses. The judge said that he also kept a siinilar Hunsiker; 9, Sutton v. Ray. CLASS 3 - Ex-diary, and that he would examine it and inform the

When the court next met he said ecutors and Administrators. — No. 10, Erie Railroad jury of the result.

that his diary showed the 21st to have been fine and Company v. Vanderbilt; 11, Kraushaar v. Meyer; 12, bright; but the 14th was the night of the great hurriField v. Field; 13, Elwell v. Van Liew; 14, Davis v. cape. His residence was only five miles from the scene Van Buren; 15, Kohler v. Mattlage; 16, Scholey v.

of the robbery, and, therefore, the state of the sky must

have been the same. This left no doubt that the inciHalsey; 17, Craighead v. Peterson; 18, Sherwood v.

dents described for the alibi occurred on Sunday, the Agricultural Insurance Company; 19, Brewer v. Pen- 14th, and not on Sunday, the 21st, as sworn, and that niman; 20, Law v. Harnomy; 21, Holden v. New York there had been a miscarriage of justice. The case is and Erie Railroad; 22, Mehan v. Syracuse and C. Rail- interesting, as showing how difficult it is to meet an

alibi based upon a mere change of time. It is also inroad Company; 23, Jordan v. Valkening; 24, Boran v.

structive as giving a useful hint for one method of Cooper; 25, Wallace v. Freeland; 26, Schofield v. defeating it.

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Bank v.

The Albany Law Journal.

In Section 1944 of the new Code, requiring that “a

ALL communications intended for publication in the The judges of Philadelphia have asked the legisLAW JOURNAL should be addressed to the editor, and the lature of their State to abridge the powers conname of the writer should be given, though not necessa

ferred upon them. Under the law, as it exists at rily for publication. Communications on business matters should be ad

present, they are charged with the appointment of a dressed to the publishers.

number of local officials. They say that a just regard for the independence of the judicial office and for the preservation of public confidence in the adminis

tration of justice and of respect for the constituALBANY, JANUARY 19, 1878.

tional and legitimate authority of the judiciary re-
quires that they be relieved from the duty men-

tioned.
CURRENT TOPICS.
WE
JE should judge from what is said in the

We supposed that in the matter of dishonest Solicitors' Journal, that the English bench and lawyers America was in advance of the old world, bar are, after a two years' trial, fully satisfied with but a solicitor in London, named Dinsdale, has the working of the judicature reforms. The in

eclipsed all of our rascals. He is charged with termediate appellate court has been found fully manufacturing and disposing of fictitious leases equal to keeping up with the business sent to it, and

to the amount of over $1,500,000. Numerous parties possesses in a high degree the confidence of the have parted with money on the faith of these leases profession. The final Court of Appeals (the House which were ingeniously forged. There being no reof Lords) is declared to have but one defect—it cording act in force in London, the fraud was not keeps the highest judicial talent comparatively un

immediately discovered, which accounts for the exemployed. The result of increased experience of

tent of the transactions. the new system of pleading and procedure is equally favorable. That system not only strangles at an early stage undefended actions, and compels parties conveyance of property sold by virtue of an executo show their hands, but it has recently achieved

tion or sold pursuant to a judgment, must distinctly the triumph of pushing a chancery action through state in the granting clause thereof whose right, the several stages of writ, pleading, notice of trial title or interest was sold, and is conveyed without and hearing, in less than two months, a result which naming in that clause any of the ot!.er parties to the English editor declares "approaches as near to the action," has given so much trouble to those a legal millennium as could be expected.” We are foreclosing mortgages that compliance therewith in glad to know that the experience of the profession all cases has been thought by many impracticable. in England in this matter bas been so satisfactory, The General Term of the Supreme Court in the as it affords overwhelming evidence in favor of the

First Department, in the case of Randell v. Von superiority of a system vf practice under a code. Ellert, decided on the 11th inst., has given an exWe have in this State long appreciated the advan- | position of the meaning of the section which will tages possessed by the system in force here over

render its practical application easy hereafter. The that prevailing in the New England and some other purpose of the statute will ordinarily be effected, States but we could not persuade those living where says the court, “by stating that the interest sold the common law still has sway of the truth known is that which the mortgagor had at the time when

The testimony of the profession in Eng- the mortgage was recorded." land will, we trust, prove more persuasive than ours.

The report of the Commissioner in Lunacy to the The lower house of the Pennsylvania legislature legislature makes some very valuable suggestions in is engaged in a controversy somewhat similar to respect to the laws relating to insane persons, which that between the Assembly in this State and Judge we trust will be carefully considered by our lawPotter occurring some years ago. Representative makers. We refer more especially to the recomBullard, of Delaware county, who was arrested mendation to create the office of Master in Lunacy, upon a charge of embezzlement, claimed exemption as it exists in England, and the remarks made on on the ground of privilege, alleging that he was the relations of insanity to crime. He recommends, at the time of arrest on his way to the State capi- in substance, that power be conferred upon the Sutal to attend to his official duties. Judge Clayton, preme Court in each Judicial Department to appoint of Delaware county, refused to discharge him, not

a certain number of Masters in Lunacy, who shall withstanding the request of the judicial committee be experts, and to whom all issues involving quesof the House, and the sergeant-at-arms has been tions of insanity shall be referred. The subtlety, directed to bring the imprisoned member before the delicacy and difficulty of such questions render it House to argue the question of privilege.

necessary that their examination be intrusted to 17

to us.

Vor

No 3

men specially trained, and in no other way can thereof, will have that effect. By it police magisthey be so conveniently had as by the method trates and justices of the peace are required to comsuggested by the Commissioner. The duty of the mit those convicted of vagrancy to the work-house State to those unfortunate beings, who are criminal for not less than ninety days; for a second offense because they came into the world mentally deformed, not less than six months, and for the third offense is strongly urged. The Commissioner presses the an indefinite time, it being provided that no term idea that punishment will not reform these persons, shall be stated in the commitment. Vagrant laws because there is no basis upon which to perform of a stringent character, passed in Maine and Illiwork. A prison is not, therefore, the place for nois, have been declared unconstitutional. We them, and it would be a step in the way of prison trust that any enactment of our legislature upon the reform to periodically weed out from the inmates of subject may not be open to the same objection. penal institutions all persons of doubtful mental capacity, and transfer them to the State asylum for insane criminals. The Commissioner in Lunacy,

The Court of Appeals resumed its sitting on the

15th inst. On that day it handed down a large Dr. Ordronaux, has shown himself thoroughly well

number of decisions, among which were those in fitted for the position he occupies, and we trust he

the cases of People v. Lord and People v. Stephens, will long remain there.

known as the canal contract cases. By thesc de

cisions the judgments of the court below, nonsuiting Dr. Spear's second article on Extradition gives a plaintiff, were affirmed. general view of the Extradition treaties of the United States and the laws enacted by Congress for carrying them into effect. Following this, the

It seems that there is some legal limit to the aulearned writer will discuss the specific question that thority of revenue officials to intrude upon private was the matter of dispute between Mr. Secretary premises in search of evidence of violations of the

revenue law. In United States v. Mann, just decided Fish and Lord Derby, in several articles treating of “The Extradition Remedy”; “ Extradition Cases;” | by the Supreme Court of the United States, an ab

stract of which appears in our present number, it is "The Cases of Caldwell and Lawrence” and “The

decided that a bank officer who refused to permit a Cases of Lagrave and Hawes.” Dr. Spear is a

collector to come into the bank and look over the thorough student of Constitutional and Interna

checks which had been paid in, to see if he could tional law, and his contributions to the literature of

find any which had no stamps on, did perfectly those subjects place him in the ranks of the foremost thinkers and writers of the age. The subject right, and was liable to no penalty for his action. to which his attention is now devoted is one not

The case will be given in full in our columns at an alone of interest to jurists, but of immediate prac

early date. tical importance to every lawyer who has a client or who hopes to have one; and the treatment which it

In Congress nothing is being done of interest to will receive at his hand will, we are confident,

the profession, the attention of that body appasatisfy the expectations of both the theorists and rently being absorbed in the measures before it, havthe lawyers.

ing reference to financial questions. This is to be regretted, as the proposed reforms in the organiza

tion of the federal judiciary and the legislation The excise law still occupies the attention of the legislature, several bills for the amendment or re

amending or repealing the bankruptcy law, are

The peal of the existing statutes now being before that

liable to be postponed until another session. body. Comparatively few bills of general interest practicing lawyers in Congress should see that this

is not done. That the financial laws of the nation relating to other subjects were brought forward

are in need of amendment is possible, though there during the past week. We only notice these as worthy of mention: One to organize a bureau of

is a great conflict of opinion both as to the fact of

this need, and if it exists, what changes should be statistics; one to prevent frauds in the sale of fertilizers, and one for the punishment of tramps. The

made, but in respect to the pressing necessity for a

radical change in the national judicial organization latter bill provides for the establishment of two State workhouses, and the commitment of vagrants

there is no dispute whatever. As to the bankruptcy thereto by police magistrates.

law there is no diagreement in regard to the propositions that it is in many features not what it ought to

be, and that its operation is not productive of as The bill in relation to vagrants introduced in the much good as could be wished, but as to the remedy legislature is stringent enough in its provisions to for these things there is a want of harmony. We besuppress the tramp nuisance, that is, if severe penal- | lieve, however, that outside of a small body of interties, with a possibility of the prompt enforcement ested persons, there are very few either lawyers or business men who would mourn over the absolute re- an alienation. See McIntire v. Norwich Ins. Co., peal of the law. In some other matters of interest | 102 Mass. 230; 3 Am. Rep. 458. to the profession legislation is wanted, but if the present Congress will enact Senator Davis' bill for In the case of Ex parte Dement, 6 Cent. L. J. 11, the reorganization of the courts and repeal of the recently decided by the Supreme Court of Alabama, bankruptcy law, it will be entitled to the thanks of it is held that a physician, like any other person, may all.

be called to testify as an expert in a judicial investigation, whether it be of a civil or criminal nature,

without being paid for his testimony as for a proNOTES OF CASES.

fessional opinion, and upon refusal to testify is punNN N the case of Loy v. Home Ins. Co. of Columbus, ishable as for a contempt.

This conclusion is sup2 N. W. Rep. 83, decided on the 13th ult. by ported by authority. In Collins v. Godefroy, 1 B. & the Supreme Court of Minnesota, plaintiff held a Ad. 950, plaintiff, an attorney, who had attended policy of insurance given by defendant upon her six days on subpæna as a witness for defendant, to dwelling-house containing the following clause: testify in respect to the negligence and unskillful“ If the property be sold or transferred or any ness of another attorney, sued for a fee of six change take place in title or possession whether by guineas, which there was evidence that defendant legal process or judicial decree or voluntary transfer had agreed to pay him. The court of King's Bench or conveyance this policy shall be void.” The court said: “If it be a duty imposed by law upon a party hield (1) that the policy was not avoided by a mort- regularly subpænaed to attend from time to time gage upon the property, given after it was issued, and give his evidence, then a promise to give him and (2) that the foreclosure of such mortgage by any remuneration for loss of time incurred in such advertisement and a sale of the premises on such attendance, is a promise without consideration. We foreclosure, the period of redemption not having think such a duty is imposed by law, and that a party expired and no change having taken place in the cannot maintain an action for compensation for loss possession, did not operate as a sale, transfer or of time in attending trial as a witness.” But see change in title within the meaning of the clause so Webb v. Puge, 1 Carr. & Kirw. 23, where it is said: as to defeat a recovery for a loss accruing after the “ There is a distinction between the case of a man foreclosure sale and before the expiration of the who sees a fact and is called to prove it in a court time of redemption. The grounds of the decision of justice, and that of a man who is selected by a were these: First the clause being inserted by the party to give his opinion about a matter with which defendant for its benefit and in language of its choice he is peculiarly conversant from the nature of his must be construed strictly against it and liberally in employment in life. The former is bound as a matfavor of the assured. See Hoffman v. Utica Ins. Co., ter of public duty to speak to a fact which happens 32 N. Y. 405; Westfall v. Hudson Riv. Ins. Co., 2 to fall within his knowledge. Without much testiDuer, 495; Ins. Co. v. Wright, 1 Wall. 456 ; Western mony the course of justice must be stopped. The Ins. Co. v. Cropper, 32 Pa. St. 351. Second, the latter is under no such obligation. There is no clause prohibits only a complete transfer of the necessity for his evidence, and the party who selects title and not a lien or incumbrance, and the fore-him must pay him. And in Matter of Roelker, closure by advertisement was not a legal process or Sprague's Decis.276, the court says: "When a person a judicial decree, nor did it operate to transfer title has knowledge of any fact pertinent to an issue to until the time for redemption has expired. See as be tried, he may be compelled to attend as a witness. sustaining the view taken as to the effect of the In this all stand upon equal ground. But to commortgage, Commercial Ins. Co. v. Spankneble, 52 III. pel a person to attend merely because he is 53 ; 4 Am. Rep. 582, where it is held that a mort-accomplished in a particular science, art or progage upon property insured is not in violation of a fession, would subject the same individual to be clause forbidding sale, conveyance, alienation, called upon in every cause in which any question transfer or change. Also, Hartford Fire Ins. Co. v. in his department of knowledge is to be solved.” Walsh, 54 III. 164; 5 Am. Rep. 115; Smith v. Mut. See, also, Lonergon v. Royal Exch. Ins. Co., 7 Bing. Fire Ins, Co., 50 Me. 96; Masters v. Madison Ins. Co., 731; Elwell Med. Juris, 592 ; Ordronaux Juris. of 11 Barb. 624; Rollins v. Columbian Ins. Co., 5 Fost. Med., § 113; Lyon v. Wilkes, 1 Cow. 591. In a 204; Ayers v. Hartford Fire Ins Co., 17 Iowa, 180.

paper on the “ Testimony of Experts," read before

the Academy of Arts and Sciences, the late Prof. In Kane v. Hibernia Mut. Ins Co., 20 Am. 409, it was Washburn said: "Nor do I understand that a party declared in a policy conditioned to be void in case has a right to call upon a man of skill or science to of alienation of the insured property, that “a judg-exercise these in the trial of an ordinary question ment of foreclosure” should be deemed an aliena- involving the right to property, or damages of a

personal character, by simply summoning him, and tion. It was held, however, that a decree in a fore- | tendering him the ordinary fees of a witness in closure suit without further proceedings was not court."

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