good ground-work of accepted-general doctrines is thus presented to the reader at the outset.

Following this are the several chapters of the work proper. Before proceeding to speak particularly of a few of the matters discussed therein, it may not be amiss to mention their subjects as tending to give an idea of the scope and bearing of the work.

Chapter I gives a synopsis of lunacy legislation in Great Britain; chapter II, a history of lunacy legislation in New York; chapter III consists of a copy of our Revised Lunacy Statutes, with a commentary on the several sections and citations of cases; chapter IV deals with the law as affecting habitual drunkards, their status being by legislation closely assimilated to that of the insane; chapter V gives details of special acts relating to counties; chapter VI is devoted to the whole subject of procedure in Lunacy, and deals with it exhaustively; chapter VII relates to the civil disabilities of persons of unsound mind; chapter VIII to the testamentary capacity of persons of unsound mind; chapter IX is devoted to the criminal responsibility of the insane; while the tenth chapter, in the nature of an appendix, consists of Forms, including those which the Commissioner of Lunacy is by statute required to prescribe, and the observance of which is regarded as obligatory on those who undertake to certify to the fact of insanity.

At the very beginning of the work it may be observed that the author looks with favor upon what might be called the physical theory of insanity, that, namely, which regards aberration of mind as invariably associated with disease of the bodily organs, and which, therefore, suggests a resort to the knowledge and skill of physicians as aids both in the making and in the administration of the laws relative to lunacy. In his preface he says:

"It cannot be necessary to demonstrate why, under any system of jurisprudence, the Department of Lunacy must always be one dealing with problems of an exceptionally perplexing character. Nor, again, that in every age it must reflect to a high degree the prevailing ideas entertained by the medical philosophy of that day touching those mysterious physical conditions affecting both the intellect and the moral affec

tions.

*

* * When great medical luminaries, like Mead or Sydenham, believed in the witchery of stellar influences upon the mind, or in the influence of draperies of a particular color upon the treatment of disease, or upon this or that occult and profane agency as a physical disturber, it was natural that the authority whence the dogma sprang should have given it a standing in law as well as in medicine.

*

*

*And, despite exhibitions of flagraut ignorance in self-styled experts, retained under the same contract as attorneys to secure a verdict for their clients; despite the confusing opinions which often disfigure the scientific value of such testimony because of its inherent crudity, there is still a growing feeling that it is a form of evidence which, in the nature of things, cannot be dispensed with, and which, therefore, needs to be fostered by legislation or rules of procedure in such a way as to exclude the ignorant and pretentious, while, at the same time, giving to the learned and deserving a higher standing in judicature than has yet been accorded to them. Not until this be done can we expect to see justice informed by science through the agency of skilled assessors (not party witnesses), though summoned by legal fiction as experts quoad hoc.

And, again, at page 90, he expresses his satisfaction with the recent changes in the law as follows:

"The statute has very properly modified the common law procedure by substituting a commission of experts for a jury of non-experts. The experience of every day adds weight to the conviction that a jury

of laymen is an unsafe tribunal to which to commit an issue of insanity. So far from such a tribunal affording any protection to personal liberty it happens to operate so frequently in an opposite and oppressive direction that its findings have ceased to have any weight in the eyes of scientists. As an example of the perils to personal liberty from jury trials in issues of insanity may be cited the report of the superintendent of the State Lunatic Asylum at Utica for 1872, which shows that to this one asylum during that year fourteen persons were committed as lunatics upon verdicts of juries, none of whom were insane, and all of whom had to be discharged as inproperly and erroneously adjudged so. In England, such trial by jury is very generally dispensed with."

While firm in the belief that the right of trial by jury is essential to the full protection of all other individual rights, and that it should be available, in some form, in all emergencies wherein a man is sought to be deprived of his liberty, we do not think it possible to controvert the proposition that, in the ordinary course of legal transactions, much greater certainty would be attainable in cases of lunacy by reference to the opinion of experts acting as a part of the court than by any other mode of adjudication. And it has occurred to us that the practice might, with appropriate modifications, be extended with advantage to other cases than merely issues of insanity. We have often thought that it was a defect in the law to submit questions of negligence, for example, in the use of certain machinery, or in the conduct of recondite processes in the arts, to a jury almost without knowledge of the meaning of the terms employed, and not capable, without special education, of a full understanding of the technical merits of the question, on the conflicting testimony of experts, who oftentimes seemed amenable to the criticism above suggested, and conscious, moreover, of the inability of the jury to determine, otherwise than by guess-work, a fact which they might choose to put in controversy. In the complicated conditions of modern society, and under a system of division of labor and a multiplication of avocations which never could have been foreseen when the institution of trial by jury was cast in its present shape, large numbers, even of the educated classes in the community, must remain in comparative ignorance of details of manufacture, and almost as incompetent to consider questions in reference to them as the average layman to interpret symptoms of an obscure disease and to group them together so as to grasp and appreciate their true significance. Why should not questions of negligence, and perhaps other questions arising in reference to such matters, be submitted to a jury of experts, on the testimony of other experts, if need be, and so placed where they could receive intelligent consideration? What reverence is due to the utterances of ignorance, even though declared oracular by express enactment or ancient precedent? The law should find means to base its decisions only upon the highest evidence and the fullest information.

In the consideration of the criminal responsibility of the insane it is apparent that, while the author treats fully the subject in the light of the adjudicated cases, without seeking to advocate any specific doctrine, he yet incidentally reveals his complacency at the ameliorations which have been introduced into our practice by considering insanity as a disease, and his regret at what he evidently regards as a defection from sound scientific views on the part of the Court of Appeals in the case of Flanagan against The People, 52 N. Y. 467, where it was held that the test of respousi

bility is the capacity of the defendant to distinguish between right and wrong at the time of, and with respect to, the act complained of, and that the law does not recognize a form of insanity in which the capacity of distinguishing right from wrong exists without the power of choosing between them."

Against this he sets the testimony of many authorities, and finally appeals to the very consciousness of those having dealings with the insane. Thus, he says:

An hour's conversation with the insane in any asylum will suffice to show that delusions are not omnipresent, and that the knowledge of right and wrong is common in all forms of mental unsoundness outside of idiocy and dementia. All experts in insanity affirm this, and it has also been put upon record in the most emphatic manner. Thus: At the annual meeting of the British Association of Medical Officers of Asylums and Hospitals for the Insane, held in London, July 14, 1864, at which were present fifty-four medical officers, it was unanimously resolved, That so much of the legal test of an alleged criminal lunatic as renders him a responsible agent, because he knows the difference between right and wrong, is inconsistent with the fact, well known to every member of this meeting, that the power of distinguishing between right and wrong exists very frequently among those who are undoubtedly insane, and is often associated with dangerous and uncontrollable delusions.'"

The subject of the definition and tests of insanity, always an important one, is treated in a large and generous way, and the fallacies likely to result from an exclusive reliance upon any particular test are exposed. He cites in this connection, with approval, the declaration of Dr. Ray, to this effect:

"Jurists who have been so anxious to obtain some definition of insanity which shall furnish a rule for the determination of responsibility, should understand that such a wish is chimerical from the very nature of things. Insanity is a disease, and, as is the case with all other diseases, the fact of its existence is never established by a single diagnostic symptom, but by the whole body of symptoms, no particular one of which is present in every case.'

The author does not attempt, on his own account, the oft attempted and always futile task of reducing the definition of insanity to some short, general expression, thinking perhaps as Hovenden and later authors have thought in regard to the definition of fraud, that, if it were possible, it was not desirable. And, indeed, it is difficult to see of what utility it would be except to the "cramming" student who desires to be ready with an answer to an expected question. He has occasion, however, incidentally, to refer to several definitions which have been offered. If we might suggest an impression derived from the perusal of those, it would be that insanity be declared to be any thing which was not sanity, leaving the latter to be the subject of definition. And some of the definitions suggested amount to just about this, except that they do not define sanity. Take for instance one which is cited as of the best, that of Dr. Andrew Combe, viz.: that "it is the prolonged departure, without an adequate external cause, from the state of feeling and modes of thinking usual to the individual when in health, that is the true feature of disorder in mind." To recognize the uselessness of this definition, consider the multitudinous processes through which only it could be applied to a given case.

First comes the determination of the "state of feeling and modes of thinking usual to the individual when in health." A tolerably difficult thing we should imagine it to be for a witness to testify as to the state of feeling." The "modes of thinking" would present an even more serious obstacle; direct

testimony out of the question. Nothing but elaborate statements of conduct in all the relations of life, from which the "state of feeling and modes of thinking' could be inferred would help the definition. And when we remember how constantly from motives of policy or of passion the outward expression and acts are carefully modulated so as not to express or betray the real "state of feeling or "mode of thinking," or

so as to suggest every thing but them, some complication is added to the problem. Then, there remains the qualification expressed, "when in health," a matter possibly not within the cognizance of those who may happen to be conversant with the individual's daily walk in life. But suppose the "state of feeling and modes of thinking usual to the individual when in health" to be set forth in all their amplitude and significance, what remains? Why, only to establish that they have been departed from "without an adequate external cause!" That is, it is for whoever is to determine the fact of insanity, by this test, to pass upon the adequacy of the external causes which have led to this modification of conduct. It is apparent that in a consideration of the adequacy of causes to produce certain effects, it is understood that the operation of such causes upon an ordinary normal intellect is the standard to which we are to recur. And that would bring us to the consideration of what is normal, a matter about as difficult to define, and as much in need of definition as what is abnormal.

A few words as to the use of the phrase "external cause and we are done with this definition. La Rochefoucauld says, "That conduct often seems ridiculous the secret reasons of which are wise and solid." A man may for secret reasons which are wise and solid choose to feign insanity, and as in such a case it is highly probable that no "adequate external cause " will be discoverable for the change in his state of feeling and modes of thinking it will come to pass that he may be adjudged insane!— a conclusion which does not seem to have occurred to the commentators upon Hamlet's "distemper."

But it is not our purpose to follow out further the indications of the opinions of the author. He has not sought to make this volume a vehicle for the advocacy of any particular theories, but has designed and completed a useful work. The cautions on pages 59 and 60 on the gravity of the trust reposed in physicians by the statute of 1874, in relation to the commitment of lunatics; on pages 63 and 64, in reference to their detention, and on pages 74, 75, 76 and 77, in reference to the forms and formalities to be observed by medical examiners, are such as no physician who deals with the subject at all can afford to disregard. J. N. BROOKLYN, N. Y.

POLLOCK'S DIGEST OF THE LAW OF PARTNERSHIP.

A Digest of the Law of Partnership. By Frederick Pollock, of Lincoln's Inn, Esq., Barrister at Law, late Fellow of Trinity College, Cambridge; author of Principles of Contract at Law and in Equity. St. Louis F. H. Thomas & Company. 1878.

This is a handy volume on the subject of partnership, giving the law relating thereto in the form of a code, similar to those in criminal law, etc., of Mr. Stephen, which have now become familiar to the profession, a principle being stated and illustrations explaining it appended. We give a single extract to show the manner in which this is done:

ing superintendent of the bank department, construes this to mean that any single deposit shall not exceed three thousand dollars. That this construction of the statute is contrary to the intention of the person who drew it is admitted by the attorneygeneral, but he thinks that if the Legislature had intended to restrict the aggregate deposits of one individual to the amount mentioned, it would have used the phraseology of Laws 1875, chap. 371, § 23, which restricts the "aggregate amount of deposits" to $5,000. As it appears to us, the construction of the attorney-general is not correct. The object of the act was to prevent the use of savings banks by large capitalists, and, therefore, a limit was placed upon the amount which could be received from any one person. A provision that no greater deposit should be made at one time than the sum specified would accomplish nothing. Under the rule, therefore, that such construction shall be made as will suppress the mischief aimed at by the statute, and advance the remedy (Lyde v. Bernard, 1 M. & W. 113), if the statute will bear two constructions, as the attorney-general admits it will, the one which we have suggested should be preferred. But the statute says that a bank shall not receive "a deposit or deposits" in excess of $3,000. By the use of the plural term, in addition to the singular, the provision is made applicable to successive deposits. Under the attorney-general's construction the words "or deposits" are surplusage. If they are read so as to mean any thing, the statute forbids deposits from one individual in excess of $3,000 in the aggregate.

A correspondent (G. B.) writes as follows: It is perhaps now possible to make a statistical contribution toward the settlement of the much disputed questions whether the New Code is likely to produce much litigation. Of course the time is yet too short since it went into effect, to speak conclusively from actual experience. But the Code has been in force nearly ten months; and reporters have been vigilant in seizing upon decisions made under it, even at Circuit and Chambers. Hun's reports give the decisions of the October, January and March terms in the First Department, the November and February terms in the Second, the November and January terms in the Third, and the October and January terms in the Fourth Department. Questions arising upon motions since the Code took effect have, therefore, had ample time to reach a decision in the General Term. Your own JOURNAL and the Weekly Digest furnish decisions upon motions in the Court of Appeals and the Supreme Court, while Abbott and Howard have rivaled one another in industry in gathering up decisions on the New Code, wherever made. As a result I find that in 12 Hun, 13 Hun, Part 1, 54 How., 55 How., No. 1, 2 and 3,

Abbott's New Cases, 4 Abbott's New Cases, No. 1, 43 N. Y. Superior, No. 1, 16 and 17 ALBANY LAW JOURNAL, and 5 and 6 Weekly Digest, there have been published 81 decisions in which the New Code is construed or referred to. This number includes a few decisions from the New York Daily Register. These 81 decisions construe or refer to 63 sections of the New Code; 5 at least of them, however, would have arisen had the Old Code remained in force. Several of the cases contain a mere reference to the section, but can hardly be called decisions upon the Code. On the other hand, during the same time there have been published about 20 decisions on points under the Old Code, which the New Code would have prevented the necessity of. There have, moreover, been published since the New Code went into effect, 515 decisions upon questions of practice, or which are ordinarily cited as such, which still remain of present applicability, but either arose under the Old Code or do not turn upon the language of any Code. Of these, 153 are upon the 158 sections of the Old Code which remain unrepealed.

NOTES OF CASES.

́N Davie v. Lynch, 2 Texas L. J. 347, decided by

tour of Tox. 27th

March last, it is held that auctioneers in possession of personal property who sell and deliver the same without disclosing the name of their principal, are liable upon an implied warranty of title, and that evidence of a local custom will not be received to alter this rule. In Franklyn v. Lamond, 4 C. B. 637, it was held that the fact of selling as auctioneers was not such an indication of agency as to absolve the defendants from personal responsibility. The disposition of the courts is to apply the rule, that an agent who does not disclose his agency may be held as principal to every kind of business, even to those kinds which are of themselves agencies. In Holt v. Ross, 54 N. Y. 472; 13 Am. Rep. 615, it was applied to an express company. Here a draft drawn upon plaintiffs was fraudulently taken from the postoffice, the indorsement of the payee forged thereon and the same intrusted by the wrong-doer to the express company for collection, and was by it presented to plaintiffs, who paid it. The company did not at the time disclose the fact that it was acting as agent. It was held that plaintiffs could recover from the company the amount paid. The court here said: "It matters not that the general business of the express company was to act as agent for others. It could have owned this draft and have collected it as principal. Knowledge in plaintiffs that defendant might have acted as agent was not enough, and it was not the duty of plaintiffs to inquire, before paying, whether the defendant was acting as principal or agent. It was the duty of defendant, if it desired