again, but could have sued without a new request, and all his rights passed to his transferee. So that the question comes back to the necessity of a demand. The case principally relied on by the appellant is Southwick v. First Nat. Bank, 84 N. Y. 432. The case is not at all pertinent. There the defendant had "lawfully and innocently received the draft and the money paid thereon." He was not and could not be put in the wrong until he had refused restoration. This disdinction was drawn in Sharkey v. Mansfield, 90 N. Y. 329; 43 Am. Rep. 161, and the necessity of a demand denied where the receipt of the money was a conscious wrong. The party already in the wrong would only become more so by a refusal. Here the defendant had explicitly disavowed any obligation to H., and denied his ownership, and caused the stock to be sold as the property of S. What had occurred was a distinct denial of H.'s right to the stock or any of the dividends. After such a denial it was not needed that H. should make a demand to put the defendant in the wrong, for it already stood deliberately and defiantly in that attitude. Its action was equivalent to a refusal to pay any one except its own chosen transferee, whose right alone it recognized. H. himself and his assignee were not bound to make a demand. The refusal was already complete by the defendant's own action. It was of no concern to whom H. assigned, for the denial of his right was a denial as to those succeeding to that right. The defendant's complaint comes to no more than this: that having once refused, it ought to have a new opportunity to repent, solely because the right of action had passed to a new owner. Our conclusion does not stand upon any fancied inability of the bank to pay these dividends, or even to issue sixty-one shares of stock, but upon the action of defendant in totally repudiating the whole of H.'s rights. It is further argued that plaintiff's remedy was an action in equity to compel a transfer on the books, or an action against the bank for its wrong, and to recover the damages suffered. That such remedies exist does not alter plaintiff's right to pursue that which he has chosen. Each of those remedies would inevitably fall upon H.'s ownership. To compel the bank to register is to concede the validity of the transfer and found a right upon it, and damages could only be awarded to the extent of the stock and dividends on the same theory. And if, as we have said, H. became the absolute owner as between himself and the bank, he must be awarded the right of an owner, whatever other remedies exist. The condition the defendant may find itself it we need not consider. There are always consequences of a wrong to a wrong-doer. Robinson v. National Bank of New Berne. Opinion by Finch, J. [Decided April 29, 1884.]

MISSOURI SUPREME COURT ABSTRACT.*

MARRIAGE-WIFE'S PROPERTY-HUSBAND'S DEBTSCREDITOR.-In the absence of evidence that property in the name of a married woman has been paid for by her separate means, the presumption of law is that it was paid for with those of the husband; and in such case it is not within the protection of the statute (Rev. St. 1879, § 3295) securing to the wife the moneys arising from the sale thereof. Gault v. Saffin, 44 Penn. St. 367; Seitz v. Mitchell, 94 U. S. 580; Weil v. Simmons, 66 Mo. 620; Sumner v. McCray, 60 id. 493. (2) The promise of a husband to repay his wife the proceeds of land which belonged to her, but not as her separate estate, and which has been disposed of and used by him Appearing in 79 Missouri Reports.

with her consent, is without sufficient consideration to make her his creditor. Tillman v. Tillman, 50 Mo. 40. Sloan v. Torry. Opinion by Hough, C. J.

MASTER AND SERVANT-INJURIES FROM PATENT DANGERS DECLARATIONS OF AGENT.-If a servant knows of the danger in prosecuting his master's work, or if it is so patent that an ordinarily observant man would have seen it, and without any assurance from the master he continues at work, he cannot hold the master liable if injury result to him therefrom. Citing Porter v. R. Co., 71 Mo. 67; Flynn v. R. Co., 78 id. 292; distinguishing McGowan v. R. Co., 61 id. 528. Declarations of an agent made one hour after the occurrence to which they related, held, no part of the res geste, and not admissible in evidence against his principal. Citing McDermott v. R. Co., 73 Mo. 516. Aldridge v. Midland Blast Furnace Company. Opinion by Henry, J.

INSURANCE LAW.

LIFE-ALLOWING TO LAPSE-RIGHTS OF BENEFICIARIES MAY CHANGE--ADMINISTRATOR.--If the insured. even by collusion with the company, suffers his policy to lapse, with the intention of securing another policy containing the name of a new person as beneficiary, the courts will not regard the second policy as a mere continuation of the first. A policy of insurance may be considered as an inchoate or uncompleted gift from the assured to the beneficiary. The former ought to be able to make it at will, or to change the direction of its benefits. There is no doubt that there is a conflict of authority as to the power of a person to change the direction of the money to accrue in an insurance on his life so as to divert it from the person named as beneficiary in the original policy. The most notable cases, and probably the ones most directly in point, and which have been most generally followed, are the cases of Pilcher v. N. Y. L. Ins. Co., 33 La. Ann. 332, and Ricker v. Charter O. L. Ins. Co., 27 Minn. 195; S. C., 6 N. W. Rep. 771, where it is held that there is a vested right in the beneficiaries in a policy of life insurance which renders the policy irrevocable as to them. The contrary rule has been held in Wisconsin, Missouri, and Illinois. Clark v. Durand, 12 Wis. 248; Kerman v. Howard, 23 id. 108; Foster v. Gile, 50 id. 603; S. C., 7 N. W. Rep. 555; Charter O. L. Ins. Co. v. Brant, 47 Mo. 419; Baker v. Young, id. 453; Gambs v. Cov. M. L. Ins. Co., 50 id. 44; Swift v. R. P., etc., Assn. 96 111. 309. Where a question has never been decided by the Supreme Court of the United States, and as to which the State authorities are conflicting, this court is at liberty to follow such authority as is deemed most consonant with what seems to be just and equitable. It strikes me very forcibly that this policy, at the time the change was made, was at most, an inchoate or uncompleted gift from Samuel P. Stevens to his wife and heirs. He had the right to change his mind. He was in a position where he could revoke that gift, and di rect that the money secured by this policy should go elsewhere. I can see no reason why he was not as much at liberty to change the direction of the money which would accrue at his death upon this policy, as he was to change his will in reference to the disposi tion of any of his estate at any time preceding his death. If the assured himself appears by name in the policy as the beneficiary, the money accruing on the policy at his death becomes assets in the hands of the administrator. Dist. Ct., N. D. Illinois. Dec., 1883. Union Mutual Life Ins. Co. v. Stevens. Opinion by Blodgett, J. (19 Fed. Rep.)

The Albany Law Journal.

ALBANY, SEPTEMBER 20, 1884.

CURRENT TOPICS.

E hope none of our readers will be deterred from reading Mr. Courtlandt Parker's address by its length. It contains references to some curiosities of legislation. One of the most curious is the Kentucky statute, allowing the lawyers in attendance to elect a special judge to hold court when the regular judge is absent. "Not but that it is a very good way to get a good judge," says Mr. Parker. We cannot agree to this; we think it is a very bad way to get any kind of a judge. The lawyers alone should never be suffered to pick the judges. It will be seen, too, that Mr. Parker and Mr. Sterne, whose admirable paper we publish this

week, are not of the like mind on bi-ennial sessions of the Legislature. It is a little amusing to hear, at the same convocation, such warm praise, and such unmeasured denunciation of the same system, from two men of such eminence and abilities.

But

we shall leave them to fight it out. It is a very pretty difference as it stands. By and bye, perhaps, when we have a mind to make up, and time to make it up, we will come in and "settle" it. The Ohio experiment of allowing convicts twenty per cent of their earnings for their families or themselves on release is certainly novel. It sounds well in a humanitarian sense, but our doubts and fears, like our wishes, are as Mr. Parker's. There is such a thing as making the prison too endurable, not to say desirable-too much like "an enforced boarding-house," as Mr. Parker aptly calls it. Mr. Parker gives a very eloquent description of the physical characteristics and resources of our country, but we wish he would not, like all "the rest of mankind," misquote Bishop Berkley's line, "Westward the course of empire takes its way." We also wish that the members of the association would pay serious heed to his sensible suggestions about the usefulness of the association. The members may have thought that we have been at times caustic and satirical in our comments on their meetings. We have at least been honest, and disposed to be friendly, and they should remember that "faithful are the wounds of a friend." A man's portrait frequently looks less beautiful to him than his image in the glass, but it is more apt to be right.

It has lately been held in England, we believe, that an ivory and silver-mounted pistol may be a necessary for an infant. A pistol would certainly be a necessary for a Texas infant, or for the nurslings of the mining countries of the far west, but we can hardly imagine the need of one in England. Certainly the ivory and silver appurtenances might well be considered superfluous. The Law Times remarks in connection with this case: "The Master VOL. 30 No. 12.

of the Rolls has said that any judicial person must look with regret on the defense of infancy when put forward by youths of nineteen or twenty. Mr. Justice Manisty recently expressed very similar views, adding that such a defense appeared to him a very lamentable thing. However, as the law stands, it is a perfectly valid one, and justice bids us blame rather the regulations which afford scope for it. As a general matter of convenience the absolute atmosphere of artificiality which surrounds the idea of a 'necessary' is much to be regretted. It is curious to contemplate the peculiarities of a social status in which an ivory and silver pistol is a necessary, and an air-gun is a mere luxury. Not that it is surprising to find a flaw in the present statutes. A good parliamentary authority stated the other day that of the laws made within his experience only a third were even tolerably good. Of the remainder he reckoned one-half as inoperative, and the other as defeating their own objects. Without going so far as this, it is evident that constant revision is pretty often needful. The rules for the protection of minors have been as carefully considered as any that can be cited. There have been strong principles, both of public policy and of justice to guide the legislator. Yet it only requires one or two cases involving no special features to cast doubt on the expediency of existing regulations. The other day an act of Parliament rabbit-hole. was required for the satisfactory definition of a It is now suggested in legal circles that a stricter definition of what is or is not a 'necessary' would be quite as useful."

A superb portrait of Secretary Folger has been hung in our Court of Appeals room, over the bench. It is by Mr. Eastman Johnson, one of the best artists of the day. It is of life size, three-quarters length, and sitting, and beyond question the best portrait in the room. This and that of Judge Peckham are two very picturesque works, and one cannot look on them without emotion, for the fate of the last departed was only a little less tragic than that of the former. Judge Peckham was the most superb looking man of his day, and his por trait is like a Spanish grandee by Velasquez, or an Italian nobleman by Titian. Judge Folger was also an eminently distinguished looking man, and the firmness of his square jaw, the power and dignity of his forehead, and the mingled sadness, humor and kindness of his beautiful eyes, are happily united with the easy pose so characteristic of the man. But there is one thing, alas! which the accomplished artist could not give us "the sound of a voice that is still"- one of the most melodious and charming that ever sounded in the ear of a friend, but which we seem to hear as we gaze upon the familiar features.

A very experienced law publisher, a man of liberal culture, too, writes us: "Glad to see what you say about the citation ‘Oreg.,' which I fixed on in

preparing the Lawyer's Reference Manual,' page 49. An abbreviation ought to be like a telegram, as brief as possible, but not so baldly brief as to give room for doubt as to its meaning, either in type or in manuscript."

The new French divorce act has already given rise to several thousand suits in Paris alone. We are inclined to believe that some privilege of divorce ought to exist, but that the causes of absolute divorce ought to be very few. Our own State is perhaps a little too strict in recognizing no cause but adultery. Gross and habitual cruelty, and gross and habitual drunkenness with failure to support, might perhaps wisely be added. In regard to the French law the London Times says: "How often have we not been moved to pity by the wrongs of French wives! The woman indissolubly joined to a convict, to a drunkard, to a gamester, or to a debauchee, was sure to excite interest on the stage or in a novel, because it was felt that she was a type of woman actually existing. There was no maltreated heroine of melodrama whose wrongs could not be matched by some story of real life within the personal knowledge of every individual spectator. Nobody could take up a French paper and read the report of judicial separation cases without asking himself, with a shudder, what sort of lives would be led henceforth by the wretched people who were disjoined without being disunited, who were going to live apart but would yet have the power to tease and torment each other. It was a monstrous feature of the old law that when a husband and wife had been judicially separated either party might at any moment sweep down upon the other with a criminal prosecution for misconduct. All this put a premium upon immorality. People pitying ill-joined couples lapsed into easy indulgence toward matrimonial sins, and the whole tone of society was corrupted by the fact that profligacy had to be condoned in many cases because it was palliated by circumstances so romantic and touching. But now, that an ill-used wife will be able to get a divorce easily and cheaply, romancers will find it difficult to make much of her as a heroine. On the other hand, this very plain consideration will suggest itself to every man about to take a wife namely, that he ought to make a good choice. This appears a truism, but it has not generally been treated as such by the French, who have rather been accustomed to look upon the indissolubility of the marriage bond as a guarantee of the harmonious living together of couples who ought never to have been united. Again and again has the event proved that this guarantee was illusory, but marriages continued to be made without any reference to the inclination or the compatibilities of the persons to be joined. They were called mariages de raison or de convenance, and they often ended in unreason and inconvenance, or else in silent sorrow and painfully concealed miseries. It is pleasant to think that a happier time is dawning over French married life.

When ill-assorted marriages come to be recognized as speculations too risky even from the mercenary point of view, when the excuses for misconduct are made few, and when happy homes increase, we may expect to see some little severity, if not primness, in morals, take the place of that levity with which marriage among our neighbors has been for so long contracted, written about, and talked of. Assuredly this will be no bad thing."

L

COMMON WORDS AND PHRASES.

ODGER. — The appellant occupied the first floor and basement of premises at a yearly rent, carrying on the business of a publisher there, but sleeping and residing elsewhere. He had no key of the outer door, which was under the control of his immediate landlord, who admitted him every morning. Held, that the appellant was not a "lodger" within the meaning of the Lodgers' Goods Protection Act. Heawood v. Bone, 13 Q. B. Div. 179. The court said, Stephen, J.: "I come to the conclusion that it meant a 'lodger' in the popular sense of the word, that is, one who sleeps upon the premises. In the ordinary use of language a person of average education would not call the appellant a 'lodger,' because lodging in the common acceptation of the term means living and residing at a place; and if you went further and asked what was meant by living and residence in general, the answer would be that the person fulfilled the description if he slept there, that is, if he undressed and went to bed, staying there until he rose the next morning in the usual way. If it is asked why the act should have meant this rather than any thing else, the answer is that the object was to prevent poor persons from having their homes broken up by distresses for rent by the superior landlord. That view of the meaning of 'lodger' seems to me a fair one. It would be a strange thing that all persons who occupy rooms for business in the daytime are lodgers within the meaning of the act."

MODERATE SPEED.-Eleven knots an hour in a fog is not "moderate speed" for a steamer. Clare v. Providence and Stonington Steamship Co., U. S. Circuit Court, Southern District of New York, June 7, 1884. The court said, Coxe, J.: "No case has been found, where this rule was under consideration, which holds that twelve and a half or thirteen miles an hour is moderate speed for a steam vessel in a fog. On the contrary, the decisions are unanimously the other way. The Pennsylvania, 19 Wall. 123, 125 (7 knots); The Colorado, 91 U. S. 692 (5 or six miles); The Blackstone, 1 Low. 488 (8 knots); The Rhode Island, 17 Fed. Rep. 554 (15 miles); The State of Alabama, 17 id. 847 (8 or 84 knots); The City of New York, 15 id. 624 (10 knots); The Eleanora, 17 Blatchf. 88 (between 5 and 6 miles); The Leland, 19 Fed. Rep. 771 (8 miles); The Bristol, 4 Ben. 397 (16 miles); The Hansa, 5 id. 501 (7 knots); The Manistee, 7 Biss. 35 (7 miles). *

spectators in this contest and are anxious to secure committees not adverse to them. The juntas of municipal politicians in power, or those who desire to be so, are willing to support this or that politician for the position of speaker, dependent upon his pledge to appoint members on the committee of cities. Thus combined and corporate interests, which should engage the watchful and jealous eye of government, and against whose power for evil it is the province of the Legislature to protect the community, are generally the most active during the earliest days of the legislative session to secure advantages of position, so as to prevent unfriendly action or secure favorable measures during its progress.

The result of this contest is that to some degree, varying from year to year as to extent, sinister elements control or influence the composition of the committees, and these courts of preliminary inquiry for legislative action are either packed or made harmless or baneful, by having injected into them members whose action upon a large body of legislation is determined or pledged in advance of the session. In many individual cases that action is already determined upon, before this contest takes place, indeed, as preliminary to candidature; but as this condition of things belongs rather to the domain of representation than to that of legislation, I can pass it by.

The speaker elected, and committees formed, bills are then in rapid succession, presented by individual legislators, are read by their titles, and referred to their appropriate committees. They are generally bills which have been placed in the hands of the legis lators to give some one man or body of men some advantage over his fellows, or through the instrumentality of the law to exonerate some man or body of men from the burden or pressure of the general law, or to give to some locality the right or privilege to do or refrain from doing something which either the law forbids or requires to be done. Here and there a general bill is offered, intended for the general public good. But the majority of the bills, which find their way to the speaker's desk, and are by him referred to the respective committees, do not belong to the latter class. These bills are not prepared by the individual legislators themselves, who are frequently ignorant of the contents of the measures they propose, but by lawyers who are privately retained for the special interests which the bill is intended to serve, and who-naturally zealous to serve a client and incorporate in the bill all that may be of service to him or it-are little mindful of the consequences, in the event of its passage, of such a bill on the general body of the law. That legislation so conceived and so promoted requires the most jealous watchfulness at the hands of a body of impartial and scientifically educated legislators would appear to be self-evident. Instead of this however but few of the members are experienced lawyers, and the methods of legislation fails to aid them in sifting bills thus proposed and promoted, but on the contrary the exist. ing machinery is an aid to bad, and au impediment to good law-making.

When a corrupt or ignorant judge renders an erroneous judgment he wrongfully transfers property from but one individual to another, and the direct pecuniary mischief is probably ended with that single case. In the case of legislation, the consequences are much more far reaching. The damage created by a bad law applies to hundreds of cases and is incalculable in extent.

Prof. Walker in his recent work on Political Economy says of the evil effects of a few lines in the English Poor Law, 22 Geo. III:

"Such may be the effects of a foolish law. The legislator may think it hard that his power for good is so closely restricted; but he has no reason to complain of

any limits upon his power for evil. On the contrary it would almost seem that there could be no nation, or any race of men which a few laws respecting industry, trade and finance, passed by country squires or labor demagogues, in defiance of economic principles, could not transform within a half generation into a nation of beasts."

The nisi prius trial machinery of the common law, which is given as an aid to a judge in the formation of a sound judgment and to prevent injustice, should characterize the procedure of the law-making body so as to prevent them from committing the more serious injuries arising from the greater consequence of their acts.

Yet how far short of this procedure is the practice of the Legislature, even during the earlier period of the legislative session. Then the committees give some degree of consideration to the bills which come before them; they read them; appoint a day for argument by giving notice to the advocates of the bill, and if by any happy accident, adversaries to the bill know that a measure is pending which affects them injur iously, they also have a chance to be heard. At such hearing assertions are made in favor and against the bill.

There is no attempt made to take proof and all that is done judicially to advise the committeemen is by short and unsupported statement of counsel. If the bill involves large interests, the more effective work is done by the trained lobbyists, who through political influence, by promises to obtain support for other measures in which the members of the committee are interested, sometimes even by promise or payment of moneys, manage to secure the consent of a requisite uumber of votes to secure either the passage or defeat of a measure. I am quite willing to concede that there is not nearly so much corruption in our legislative halls as would be implied by the moneys expended upon lobbyists. As from the nature of his operations he need not give to his principals, an account of his expenditures, he is irresistibly tempted to exaggerate the sum that he is called upon to pay to the legislators. That the lobbyist can however obtain any money at all from persons or corporations of large means, whose interests may be menaced or promoted, under the pretense of bribing members, shows the low esteem in which our legislative bodies are held by the chiefs of our industrial community.

Toward the end of the session, bills then introduced are frequently not printed; they are acted upon by committees under great pressure to finish their work before the end of the session. They are frequently not placed in the hands of the standing committee, but are at once referred to the committee of the whole and by it to a sub-committee of the whole, known as the grinding committee, and when the vote is taken. it is generally taken in ignorance of the scope and purport of the measure. In these last days of the session. votes are generally bargained away for counter votes from fellow members for measures of a like nature. We can make clear to our minds the monstrous character of this proceeding if we would suppose a court of justice, on finding its calendar incumbered with causes which cannot be tried before the summer vacation, dispensing with the taking of the testimony of witnesses and argument of counsel, and deciding such causes upon the pleadings alone. The miscarriage and travesty of justice which would result from such a course partakes of the same nature, if we would but see it, as the mischief which annually takes place at Albany, and at most, if not all, other capitals of the country, in the corrupt and slip-shod method of grinding out laws toward the end of a legislative session.