Gambar halaman

right of action for the trespass. (Sherman v. The M., L. S. & W. Railway Co., 40 Wis. 645, and earlier cases in this court.) Blesch v. C. & N. W. Railway Co. Opinion by Cole, J.


2. Damages recoverable in such action.-In this action for such a trespass it was error to give instructions implying that the plaintiff was entitled to recover the difference between the value of the use of the premises with the railroad constructed and used as it was, with all its inconveniences, and the value of such use as it would have been with the railroad where it was, but without such inconveniences. The damages recoverable in this case could not exceed the difference between what would have been the rental value of the premises (during the continuance of the trespass, down to the commencement of the action), in case there had been no railroad on the street, and its actual rental value with the railroad constructed and operated as it was. The fact that only a part of the width of defendant's track was upon plaintiff's land will not affect the rule of damages. Ib.


Official bond given by constable.-The liability of a surety cannot be extended by construction or doubtful implication. By the conditions of a bond duly given by P. as a constable, he and his sureties jointly and severally agreed to pay to the persons entitled thereto, "all such sums of money as the said constable (might) be liable to pay by reason of or on account of any summons, execution or other process or proceeding which (should) be delivered to him for collection, and for all moneys which (should) come into his hands as such constable." Held, that no action will lie upon the bond for the amount of a judgment recovered by plaintiff against P. for the value of plaintiff's property seized by P., under an attachment against the goods of a third person. It seems that the bond would cover a breach of duty by the constable not only in omitting to serve a fi. fa., but also in omitting to serve a summons or other process. Taylor v. Parker. Opinion by Cole, J.



The Law of Contracts. By John William Smith, Esq., late of the Inner Temple, Barrister at Law, author of "Leading Cases," "A Treatise on Mercantile Law," etc. Sixth American, from the sixth London edition, by Vincent T. Thompson, Esq., M. A., of Lincoln's Inn, and of the Midland Circuit, Barrister at Law. With notes and references to both English and American decisions by William Henry Rawle. And with additional notes and references to recent American cases by George Sharswood, LL. D. Philadelphia: T. & J. W. Johnson & Co., 1878.


HE reputation of John William Smith for extensive legal knowledge and ability of the first order is such that every work with which his name is associated is accepted, without question, as being as excellent an exposition of the subject-matter contained therein as could be produced. We are not surprised, therefore, that since the publication of the work before us, in 1846, the unusual (for a law book) number of six editions should have been required to meet the demand of the profession. The treatise is too well known in every country where the common law prevails to require any recommendation from us. Like several other elementary works familiar to all, it is made up of lectures prepared for delivery to law students. It was not printed until after the death of Mr.

Smith. For the student it is undoubtedly the best text-book upon the law of contracts. The additions | and annotations made by the American editors are uniformly excellent, and have fitted the work for use on this side of the water. The citations of authority in this edition appear to embrace all the important late cases, and are as full as is to be expected in an elementary work of this character. The details, indeed, of the law of contracts are not as thoroughly considered as in the treatise of Professor Parsons, but the general principles are stated clearly and logically, and the annotations of the editors render the book sufficiently comprehensive to answer the purpose of almost any reader or student. The work is well indexed and excellently printed and bound.


The American Law Review, January, 1878. Editors Moorfield Story, Samuel Hoar. Vol. XII, No. 2. Boston: Little, Brown & Co.


The January number of this excellent periodical contains several articles of importance and value. "The amendment of the Patent Law," by Chauncey Smith, is an elaborate review of the history and present condition of the American law regulating patents, with suggestions for improvement. "Jeremiah Mason and the Bar," by C. H. Hill, is an interesting collection of reminiscences of the distinguished lawyer whose name is mentioned, and of those, from time to time, associated with him in one way or another. "The Parliaments of France," by James Beck Perkins, is an instructive and entertaining description of a tribunal long since passed away. "Liquidated Damages," by John Proffatt, is the concluding article. The case law in relation to the subject is considered at length, but the points intended to be presented are not stated with sufficient clearness to render the article of great importance or value. The digests of English, State and Bankruptcy decisions, as usual, constitute a valuable feature of the Review. The book notices are well written, and conscientiously critical, and the summary of events is very readable and presents in a brief form the leading legal events of the past three months in various parts of the world.


THE NEW GRAMMAR OF THE CODE. To the Editor of the Albany Law Journal:

SIR-I did not intend, after my "extraordinary attack on the grammar of the New Code," to trespass further on your space. But, as the mild sarcasm of "An Enlightened Ignoramus" has been followed by the gentle raillery of "H. F.," and as the subject has aroused considerable discussion among lawyers, I think in justice to myself I should write a few last lines in reply. Putting aside the temptation to indulge in a little pleasantry at the expense of my adversary's first Dogberry-like nom de plume, I pass on to his assertion that I am not "familiar with the new grammars " (names of authors not given). I did not know that there was a new grammar any more than a new multiplication-table; but I have read the last editions of most of the standard grammars, including Brown, Kerl, Clark, and, last of all, Swinton, and find that they all retain the poor "old fashioned statutory subjunctive." That any reputable grammar can sanction such a phrase as (sec. 450 New Code) "A married woman appears * * * as if she was single," we can

scarcely believe. The statement that Mr. Field only
arrived at "mature judgment" in 1865 seems to me
in rather doubtful taste. But "Ignoramus" entirely
misapprehends the point of my letter. I did not say
that the best writers never made a confusion between
the indicative and the subjunctive, or that overworked
judges could spend time in polishing their sentences,
but I did say that a statule, on account of its great im-
portance, should be perfect in form, and I do now fur-
ther say that a code in conversational style is a disagree-
able novelty. And now a few words to "H. F.," who
playfully hurls at my head an old edition of Webster's
dictionary. The introduction he so much admires is
now a thing of the past, having been omitted in the
last edition of the great dictionary. The brief state-
ment about the subjunctive in the new edition (page
xxvii) covers but a small portion of the ground. All
the examples cited in the old introduction prove sim-
ply that there has been in the minds of many good
writers great doubt as to the employment of the sub-
junctive, some even, in the same sentence, using both
the correct and incorrect form. But what did the intro-
duction propose? Merely to use the indicative form
when the present or the past is referred to. But in
regard to a future contingent event, when the old
form of the subjunctive properly applies, Webster pro-
posed, "If it shall," "If it should," etc. Even Swin-
ton, the newest of "the new grammars,” does not fol-
low Webster in this. I now close this discussion, so
far as I am concerned, hoping that when ì next meet
An Enlightened Ignoramus," and his ally, they can
find more formidable weapons than a phantom gram-
mar and an old dictionary.
T. C.



NEW YORK, January 7, 1878.

A false alibi was recently successful in a trial in London. Two men were indicted for housebreaking at Wood Green, on the night of Sunday, October 21. They were positively identified by three persons, who saw them under very favorable circumstances going to and coming from the house with a cart drawn by a brown pony. A fourth man, who knew one of the prisoners well, swore that he saw him in his cart four miles from his house, and that he read the name on the cart. The three who saw them near the spot had no previous knowledge of them, but at once gave a full description to the police, who recognized the prisoners as answering that description; and then it was found that they were brothers-in-law, living near together, and had a cart and a brown pony exactly like that seen by the witnesses. This appeared to be conclusive proof; but it was met, as usual where the criminals are not caught at the time, by an alibi. Twelve witnesses, chiefly relatives and friends, were called to prove that two hours before the robbery the prisoners were at home and there remained for the night. They were unshaken as to any of the incidents of the evening and it was clear that, if the alibi was not a true one, it had been contrived by transferring to the Sunday in question the history of some previous Sunday. As most of the witnesses had been out of doors on that night, it occurred to one of the magistrates on the bench to question them as to the state of the weather, when, being unprepared on this point, all agreed in describing it as a rough, wet, and dark night. An almanac was sent for and it was found that the moon was then at full; but no person present could remember what was the weather and the prisoners were acquitted. The next morning the deputy assistant judge received a letter from a gentleman who had heard the trial, stating that he kept a diary of the weather, and that on his return he had referred to it, and that on the 21st (the day in question) the moon was at full, and the night fine and light; but on the previous Sunday was gusty and rainy, as described by the witnesses. The judge said that he also kept a similar 3-Ex-diary, and that he would examine it and inform the jury of the result. When the court next met he said that his diary showed the 21st to have been fine and bright; but the 14th was the night of the great hurricane. His residence was only five miles from the scene of the robbery, and, therefore, the state of the sky must have been the same. This left no doubt that the incidents described for the alibi occurred on Sunday, the 14th, and not on Sunday, the 21st, as sworn, and that there had been a miscarriage of justice. The case is interesting, as showing how difficult it is to meet an alibi based upon a mere change of time. It is also instructive as giving a useful hint for one method of defeating it.



E have received the first number of a new Canadian law periodical, entitled The Legal News. It is published weekly at Montreal by Messrs. T. & R. White. It contains sixteen pages royal octavo, and is excellently printed upon good paper. Its contents comprise leading articles upon legal topics, notes and comments upon legal news, condensed reports of interesting and important decisions rendered by the courts of the various British American provinces, and notes of the leading decisions of the courts of the United States, England and France. It is well and carefully edited, and is, we should judge, just what the profession in Canada need, and we trust it will be heartily sustained by them.

Doscher; 27, McNulty v. Hurd; 28 Townsend v. O'Connor; 29, Dorrity v. Rapp; 30, The People v. Starkweather; 31, Moore v. Hegeman; 32, Adair v. Brimmer; 33, Kettletas v. Kettletas; 34, Cook v. Sanderson; 35, Evans v. Cleveland; 36, Shakespeare v. Markham; 37, New v. Nicholl; 38, Read v. City of Buffalo; 39, First National Bank of Chittenango v. Morgan; 40, Samuels v. Northern Central Railroad Company; 41, McMurray v. Noyes; 42, Fordham v. Hendrickson; 43, Beers v. Shannon; 44, Hastings v. Westchester Fire Insurance Company; 45, Munson v. Lutell; 46, Garvey v. McDevitt; 47, Sturgis v. Vanderbilt. CLASS 4-No. 48, The People ex rel. Thompson v. The Board of Supervisors of Hamilton county. GENERAL CALENDAR.No. 49, Young v. Hunt; 50, Booth v. Farmers and Mechanics' National Bank.

The following is a list of the first fifty causes on the Court of Appeals calendar made for January 15, 1878: CLASS 1- Criminal Actions. - No. 1, Phelps v. People; 2, People v. Brown; 3, Polinksky v. People; 4, People v. Casey; 5, People v. New York C. and C. Railroad Company. CLASS 2- Probate Cases.- No. 6, Jones v. Smith; 7, Horn v. Pullman; 8, Auburn City National Bank v. Hunsiker; 9, Sutton v. Ray. CLASS ecutors and Administrators. - No. 10, Erie Railroad Company v. Vanderbilt; 11, Kraushaar v. Meyer; 12, Field v. Field; 13, Elwell v. Van Liew; 14, Davis v. Van Buren; 15, Kohler v. Mattlage; 16, Scholey v. Halsey; 17, Craighead v. Peterson; 18, Sherwood v. Agricultural Insurance Company; 19, Brewer v. Penniman; 20, Law v. Harnomy; 21, Holden v. New York and Erie Railroad; 22, Mehan v. Syracuse and C. Railroad Company; 23, Jordan v. Valkening; 24, Boran v. Cooper; 25, Wallace v. Freeland; 26, Schofield v.

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

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.



E should judge from what is said in the WE Solicitors' Journal, that the English bench and bar are, after a two years' trial, fully satisfied with the working of the judicature reforms. The intermediate appellate court has been found fully equal to keeping up with the business sent to it, and possesses in a high degree the confidence of the profession. The final Court of Appeals (the House of Lords) is declared to have but one defect-it keeps the highest judicial talent comparatively unemployed. The result of increased experience of the new system of pleading and procedure is equally favorable. That system not only strangles at an early stage undefended actions, and compels parties to show their hands, but it has recently achieved the triumph of pushing a chancery action through the several stages of writ, pleading, notice of trial and hearing, in less than two months, a result which the English editor declares "approaches as near to a legal millennium as could be expected." We are glad to know that the experience of the profession in England in this matter has been so satisfactory, as it affords overwhelming evidence in favor of the superiority of a system of practice under a code. We have in this State long appreciated the advantages possessed by the system in force here over that prevailing in the New England and some other States but we could not persuade those living where the common law still has sway of the truth known to us. The testimony of the profession in England will, we trust, prove more persuasive than ours.

The lower house of the Pennsylvania legislature is engaged in a controversy somewhat similar to that between the Assembly in this State and Judge Potter occurring some years ago. Representative Bullard, of Delaware county, who was arrested upon a charge of embezzlement, claimed exemption on the ground of privilege, alleging that he was at the time of arrest on his way to the State capital to attend to his official duties. Judge Clayton, of Delaware county, refused to discharge him, notwithstanding the request of the judicial committee of the House, and the sergeant-at-arms has been directed to bring the imprisoned member before the House to argue the question of privilege. Vor 17- No. 3.

The judges of Philadelphia have asked the legislature of their State to abridge the powers conferred upon them. Under the law, as it exists at present, they are charged with the appointment of a 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 administration of justice and of respect for the constitutional and legitimate authority of the judiciary requires that they be relieved from the duty mentioned.

We supposed that in the matter of dishonest lawyers America was in advance of the old world, but a solicitor in London, named Dinsdale, has eclipsed all of our rascals. He is charged with manufacturing and disposing of fictitious leases to the amount of over $1,500,000. Numerous parties have parted with money on the faith of these leases which were ingeniously forged. There being no recording act in force in London, the fraud was not immediately discovered, which accounts for the extent of the transactions.

Section 1244 of the new Code, requiring that "a conveyance of property sold by virtue of an execution or sold pursuant to a judgment, must distinctly state in the granting clause thereof whose right, title or interest was sold, and is conveyed without naming in that clause any of the other parties to the action," has given so much trouble to those foreclosing mortgages that compliance therewith in all cases has been thought by many impracticable. The General Term of the Supreme Court in the First Department, in the case of Randell v. Von Ellert, decided on the 11th inst., has given an exposition of the meaning of the section which will render its practical application easy hereafter. The purpose of the statute will ordinarily be effected, says the court, "by stating that the interest sold is that which the mortgagor had at the time when the mortgage was recorded."

The report of the Commissioner in Lunacy to the legislature makes some very valuable suggestions in respect to the laws relating to insane persons, which we trust will be carefully considered by our lawmakers. We refer more especially to the recommendation to create the office of Master in Lunacy, as it exists in England, and the remarks made on the relations of insanity to crime. He recommends, in substance, that power be conferred upon the Supreme Court in each Judicial Department to appoint a certain number of Masters in Lunacy, who shall be experts, and to whom all issues involving questions of insanity shall be referred. The subtlety, delicacy and difficulty of such questions render it necessary that their examination be intrusted to

men specially trained, and in no other way can they be so conveniently had as by the method suggested by the Commissioner. The duty of the State to those unfortunate beings, who are criminal because they came into the world mentally deformed, is strongly urged. The Commissioner presses the idea that punishment will not reform these persons, because there is no basis upon which to perform work. A prison is not, therefore, the place for them, and it would be a step in the way of prison reform to periodically weed out from the inmates of penal institutions all persons of doubtful mental capacity, and transfer them to the State asylum for insane criminals. The Commissioner in Lunacy, Dr. Ordronaux, has shown himself thoroughly well fitted for the position he occupies, and we trust he will long remain there.

Dr. Spear's second article on Extradition gives a general view of the Extradition treaties of the United States and the laws enacted by Congress for carrying them into effect. Following this, the learned writer will discuss the specific question that was the matter of dispute between Mr. Secretary Fish and Lord Derby, in several articles treating of "The Extradition Remedy"; "Extradition Cases;" "The Cases of Caldwell and Lawrence" and "The Cases of Lagrave and Hawes." Dr. Spear is a thorough student of Constitutional and International law, and his contributions to the literature of those subjects place him in the ranks of the foremost thinkers and writers of the age. The subject

to which his attention is now devoted is one not alone of interest to jurists, but of immediate practical importance to every lawyer who has a client or who hopes to have one; and the treatment which it will receive at his hand will, we are confident, satisfy the expectations of both the theorists and the lawyers.

The excise law still occupies the attention of the legislature, several bills for the amendment or repeal of the existing statutes now being before that body. Comparatively few bills of general interest relating to other subjects were brought forward during the past week. We only notice these as worthy of mention: One to organize a bureau of statistics; one to prevent frauds in the sale of fertilizers, and one for the punishment of tramps. The latter bill provides for the establishment of two State workhouses, and the commitment of vagrants thereto by police magistrates.

The bill in relation to vagrants introduced in the legislature is stringent enough in its provisions to suppress the tramp nuisance, that is, if severe penalties, with a possibility of the prompt enforcement

thereof, will have that effect. By it police magistrates and justices of the peace are required to commit those convicted of vagrancy to the work-house for not less than ninety days; for a second offense not less than six months, and for the third offense an indefinite time, it being provided that no term shall be stated in the commitment. Vagrant laws of a stringent character, passed in Maine and Illinois, have been declared unconstitutional. We trust that any enactment of our legislature upon the subject may not be open to the same objection.

The Court of Appeals resumed its sitting on the 15th inst. On that day it handed down a large number of decisions, among which were those in the cases of People v. Lord and People v. Stephens, known as the canal contract cases. By these decisions the judgments of the court below, nonsuiting plaintiff, were affirmed.

It seems that there is some legal limit to the au

thority of revenue officials to intrude upon private premises in search of evidence of violations of the revenue law. In United States v. Mann, just decided by the Supreme Court of the United States, an abstract of which appears in our present number, it is decided that a bank officer who refused to permit a collector to come into the bank and look over the checks which had been paid in, to see if he could find any which had no stamps on, did perfectly right, and was liable to no penalty for his action.

The case will be given in full in our columns at an early date.

In Congress nothing is being done of interest to the profession, the attention of that body apparently being absorbed in the measures before it, having reference to financial questions. This is to be regretted, as the proposed reforms in the organization of the federal judiciary and the legislation amending or repealing the bankruptcy law, are liable to be postponed until another session. The practicing lawyers in Congress should see that this

is not done. That the financial laws of the nation are in need of amendment is possible, though there is a great conflict of opinion both as to the fact of this need, and if it exists, what changes should be made, but in respect to the pressing necessity for a radical change in the national judicial organization there is no dispute whatever. As to the bankruptcy 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 much good as could be wished, but as to the remedy for these things there is a want of harmony. We believe, however, that outside of a small body of interested persons, there are very few either lawyers or

business men who would mourn over the absolute repeal of the law. In some other matters of interest to the profession legislation is wanted, but if the present Congress will enact Senator Davis' bill for the reorganization of the courts and repeal of the bankruptcy law, it will be entitled to the thanks of


an alienation. See McIntire v. Norwich Ins. Co., 102 Mass. 230; 3 Am. Rep. 458.


In the case of Ex parte Dement, 6 Cent. L. J. 11, recently decided by the Supreme Court of Alabama, it is held that a physician, like any other person, may 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 professional opinion, and upon refusal to testify is punN 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 subpoena 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 held (1) that the policy was not avoided by a mort-regularly subpoenaed 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. Page, 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 Ill. 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 Ill. 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 paper on the "Testimony of Experts," read before 204; Ayers v. Hartford Fire Ins Co., 17 Iowa, 180. 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 decrce in a fore- tendering him the ordinary fees of a witness in closure suit without further proceedings was not


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