But do what we might, some pert blockhead would claim He never could equal his ancestor's fame! And at the fool's whisper his proud heart would sob, Yet conceal with grim hauteur each agonized throb. But in the meantime he had taken his seat, This imperfect sketch pose "In this throng of jesters, if any there be He paused, and the stately head, solemn and slow, And to leave at God's bidding an unsullied name He dashed with his white hand the bead from his Judgment affirmed with costs-Smith v. The State. -Judgment of General Term and that entered on the report of the referee reversed, new trial granted, costs to abide the event-Jacob P. Finley et al., appellants, v. Edwin Tracy, respondent. Order affirmed and judgment absolute ordered against the plaiutiff on the stipulation with costs-Robert S. Hayward, appellant, v. Fred. A. Conkling, respondent.— Appeal dismissed with costs-Charles G. Hill, respondent, v. Wm. H. Van Schoonhoven et al., appellants.—Order when the judge did im- affirmed with costs-Catherine W. Prentiss, respondent, v. Charles M. Cornell et al., appellants.Appeal dismissed with costs-John R. Duff, respondent, v. Wm. J. Hutchinson et al.- -Appeal dismissed with costsPeople v. Knickerbocker Life. Ins. Co.; claim of Borda. Order affirmed with costs-People v. Globe Mut. Life Ins. Co.; claim of Oeslerte.-Order affirmed with costs-People ex rel. Ernest Drevet, respondent, v. New York Fire Commissioners,appelants.-Order affirmed with costs-Remington Paper Co., appellant, v. Anna M. Dougherty et al.-Order affirmed with costs; in two cases-. -Attorney-General v. Continental Life Ins. Co.- -Order of General Term reversed and that of Special Term affirmed with costs-In re Petition of Hearn to vacate assessment.-Order affirmed with costs-Irving C. Cooper et al., respondents, v. William Jolly, appellant.- Appeal dismissed with costsPhilip Weeks, respondent, v. Wm. H. Clark, et al., appellants.Appeal dismissed with costs-Nelson C. Reed et al., respondents, v. Equitable Life Ins. Co., appellants.- -Order affirmed with costs-Toronto General Trust Co., respondents, v. Chicago, B. & Q. R. Co. et al., appellants. -Appeal dismissed with costsNorthampton Nat. Bank, respondent, v. Lucien H. Niles, appellaut.-Order affirmed with costs-Mary F. Rogers v. Sarah James et al.-Order reversed and appeal to General Term dismissed with costs-In re Edna Elvira Larson.-Order affirmed with costsChristine Erickson, un infant, respondent, v. Gonzalo Polly et al., appellants.-Order affirmed with costsAmerican Tool Co., appellant, v. George J. Smith, respondent. Order affirmed with costs-Horatio G. Onderdonk, respondent, v. Wm. Conselyea et al., appellants. Order affirmed with costs-Kate Moebus, appellant, v. Henry Harmon, respondent.-Order of Special and General Terms reversed, and motion to change place of trial to Albany county granted, with costs of appeal in the Supreme Court and in this court and $10 costs of motion-David D. Acker et al., respondents, v. Charles E. Leland and another, appellants.Appeal dismissed with costs-In re Petition of Prescott H. Butler, administrator, etc.-. -Appeal dismissed with costs-Alex. T. Arthur, appellant, v. Sol. H. Kohn, respondent.-Order affirmed with costsThomas Kelly, respondent, v. Emeline W. Kerr, individually, etc., et al., appellants.-Order affirmed with costs-In re Bank of Sing Sing, appellant, v. Horace Baker, respondent. Judgment of General Term and proceedings of commissioners removing relator reversed, with costs in the court and in the Supreme Court-People ex rel. Edward A. Damahout, appellant, v. New York Fire Commissioners, respondents. Judgment affirmed with costs-John Logan, respondent, v. Ogdensburgh and Lake Champlain R. Co., appellant. -Motion to amend remittitur granted and judgment ordered as specified in memorandum-Herman Veeder et al. v. Wm. Neudget, et al.- -Motion to amend remit titur denied-People v. Joseph Bork. O'er the hushed bar a scornful, defiant glance threw, Bent low to his Honor, and sternly withdrew. NEW BOOKS AND NEW EDITIONS. 4 MYER'S FEDERAL DECISIONS. This volume contains the titles Bonds-By-Laws The subject of Bonds is supervised by Mr. John W. Daniel, the well-known author of the best treatise on Negotiable Instruments, and covers 926 pages. The table of cases reported and digested covers 10 pages; that of cases cited. 14 pages; and the index 39 pages. Certainly so far the work is amply fulfilling the publisher's promises, and our confidence in its practicability increases with every issue. SHARSWOOD'S LEGAL ETHICS. An Essay on Professional Ethics. By Hon. George Sharswood, LL. D. Fifth edition. Philadelphia, T. & J. W. Johnson & Co., 1884. Pp. 214. We are glad to see that a new edition of this admir able and celebrated production is required. So much grave, pure, and mild wisdom is not contained in equal compass in any other words ever addressed to qur profession. It will constitute an invaluable legacy to us and a lasting monument to its revered author. The volume is prefaced by an excellent memorial of the late chief justice. THE COURT OF APPEALS DECISIONS. HE following decisions were handed down Friday, June 27, 1884: Ordered: That this court take a recess from this date to Monday, October 6, 1884, at ten o'clock A. M., at the Capitol, in the city of Albany, then to proceed with the call of the present calendar. The Albany Law Journal. ALBANY, JULY 12, 1884. CURRENT TOPICS. HAT promised pamphlet on Codification in the we would make Mr. Carter sorry, has been published. It is by Mr. Robert Ludlow Fowler, who needs no introduction to our readers, for his "Organization of the Supreme Court of Judicature of the State of New York," and his "Observations on the Particular Jurisprudence of the State of New York," published in this journal, are familiar to them all, and to all legal scholars in this country. Mr. Fowler is a student of the greatest patience and exhaustiveness of research, and he writes in a style of singular elegance, exactness and clearness, disfigured by none of the affectation of abstruseness which characterizes too many of our modern law-writers who treat of the scientific or philosophic side of the subject. He possesses a sufficient amount of vigor, too, when vigor is necessary, and yet he is never offensively personal. He justly deprecates the personalities into which the argument on Codification has fallen, in newspaper and legislative discussion. We have read Mr. Fowler's pamphlet with great pleasure and instruction. It seems to us quite conclusive. It is evident that the author knows what he is talking about, and if he leaves the impression that Mr. Carter did not always exactly know what he was talking about, we must charitably assume that as all things are not to all men, it is too much to expect that one man can at once be a leader of the bar in these times and a profound civil law scholar. We heartily wish that we could find room for some adequate extracts from this admirable essay, but really it deserves a consecutive reading by every lawyer who has any care for any thing beyond bills of costs. We cannot however deny ourselves the pleasure of quoting a few words in answer to Mr. Carter's argument that Codes savor of despositism. Mr. Fowler says: "In this State where the people make the laws, the people alone codify them, and they are not likely to be frightened by shadows into remaining buried under a mountain of laws, statute and non-statute a very Pelion on Ossa because once under other circumstances and conditions a people with a despot had a code." We can safely assure our readers that this essay is the most accurate and condensed statement of the origin, growth, characteristics and capabilities of Codification that has been written in English, and that there is not a dry or obscure paragraph in it. continuous sitting of thirty-seven working days the Court of Appeal cannot try appeals as fast as new ones are set down, and the labor of five judges of first instance can only reduce the arrears by two matters apiece, and this at a time when the slackness of new business is the subject of universal complaint. Much as we deprecate the unnecessary increase of the judicature, it now seems inevitable." (Sic). The Massachusetts Supreme Court in the Cowley case have made a decision that will be a surprise to the bar and to the public. This was an action of libel, against the Boston Herald, for publishing a petition for the disbarment of the plaintiff, before hearing. At the trial the action was dismissed, on the ground that the publication was privileged, but the Supreme Court have reversed this. They observe: "It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed. If these are not the only grounds upon which fair reports of judicial proceedings are privileged, all will agree that they are not the least important ones. And it is clear that they have no application whatever to the contents of preliminary written statements of a claim or charge. They do not constitute a proceeding in open court. Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual, who may not be even an officer of the court. It would be carrying privilege further than we feel prepared to carry it, to say that by the easy means of entitling and filing it in a cause a sufficient foundation might be laid for scattering any libel broadcast with impunity, and we waive consideration of the tendency of a publication like the present to create prejudice, and interfere with a fair trial." This sounds to us like good sense. It will teach the newspapers not to be too "previous." Mr. John D. Lawson has prepared the third and concluding volume of his “Leading Cases Simplified," devoted to criminal cases. This is perhaps the most interesting volume of the series, and fully establishes the author's claim to be admitted into the select "circle" of American humorous law reporters, hitherto consisting of Mr. Rogers and ourselves. (We have some doubt whether Mr. Wallace ought not to be admitted by reason of his eloquent head-notes.) It is probably supposed that we carefully read every law book through before we review We have had England cited to us all our days as it, but this is a mistake. We do not read every law a country where fewer judges than we have in this book clear through, but we read enough to get hold State keep up with the business of the courts. But of the plot and see how it turns out. We have now it seems that the business is getting the upper however substantially read this volume ot Mr. Lawhand of the judges. The Law Times says; "in a son's through, and any lawyer taking it up will find VOL. 30 No. 2. it hard to lay it down. It is not only beautifully clear and concise in its statement of the cases, to say nothing of its lambent humor, but it is furnished with most excellent notes. In short, as a serious and useful handy treatise on criminal law it has no rival. We commend it to all our brethern for vacation, as not only palatable but nutritious. Especially do we commend Mr. Lawson's "Assize Sermon to the Judges of Appeal," appended as a note to the Chicago newspaper contempt case of People v. Wilson, 64 Ill. 195. Would that all clergymen had as much sense as our learned and reverend brother! The book is published by F. H. Thomas & Co., St. Louis. When we published Mr. Parmenter's verses last week we expected to be overwhelmed with letters of inquiry as to the originals of the complaisant judge and the inebriate attorney, and we even anticipated receiving some remonstrances from bench and bar on the score of the evident "personality" of the verses. So we wrote Mr. Parmenter, asking who the attorney was. To which he replied that it is a fancy sketch, and exhorts us not to be distressed for ourselves, as he has never heard of our being intoxicated! In a very excellent after-dinner speech in Arkausas recently, Judge Caldwell, of the United States Court, thus spoke of the common law: "For a thousand years judges have been talking about the common law and affecting to decide cases according to that law. What the common law is, who made it, and where it is to be found, not one of them can tell you. They tell you the United States has no common law of its own and that the States have none, but that the English common law is our inheritance. I am sorry we fall heir to any such myth. You all recollect Mrs. Gamp, Sarah Gamp, Dickens' celebrated professional nurse. During a long life she was constantly quoting the opinions of Mrs. Harris, a purely imaginary person, in order to give more weight to her own. When we come to the common law the judges are all Sarah Gamps and the common law is Mrs. Harris. Notwithstanding that the common law is the invisible and intangible thing I have described, it is the most difficult law to get rid of in the world. You can repeal one statute by another, but it takes three statutes to repeal a rule of the common law. This results from the maxim that a statute contrary to the common law shall be strictly construed, which is interpreted by the judges to mean, shall be construed to have no effect. This maxim is applied by the judges until the Legislature has re-enacted the statute in different forms about three times. * Law like everything else is amenable to the law of evolution. It must grow, expand and develop to meet the altered conditions of society. Judges and lawyers, as a class, are extremely conservative. They are slow to adopt new methods of procedure, or change rules of decision, although it may be obvious that justice would thereby be promoted. It is probably * * well that this is so. In a country where changes of opinion and policies are so frequent it is well to have one conservative department. For much of the uncertainty of the law judges are not justly censurable. The law is not an exact science, and neither legis. lation nor judges can make it so. Science is truth ascertained — in law you can never feel certain you have reached that point." IN -- NOTES OF CASES. N Norton v. Knapp, Iowa Supreme Court, June 10, 1884, 19 N. W. Rep. 867, it was held that the words kiss my foot," with the drawee's signature written on the face of a bill presented for acceptance, do not constitute an acceptance. The court said: "The rule we understand to be, if the drawee does any thing with or to the bill, or writes thereon any thing which does not clearly negative an intention to accept, then he can or will be charged as an acceptor. The question then is what construction should be placed on the words 'kiss my foot,' written on the bill and signed by him? They cannot be rejected as surplusage. Such language is not ordinarily used in business circles or polite society. But by their use the defendant meant either to accept or refuse to accept the bill. It cannot be he meant the former, therefore it must be the latter. It seems quite clear to us that the defendant intended, by the use of the contemptuous and vulgar words above stated, to give emphasis to his intention not to accept or have any thing to do with the bill or with the plaintiff. We understand the words, in common parlance, to mean and express contempt for the person to whom the words are addressed, and when used as a reply to a request, they imply, and are understood to mean, a decided, unqualified and contemptuous refusal to comply with such request. In such sense they were undoubtedly used when the defendant was requested to accept the bill. The question asked upon this point must be answered in the negative." In Merchants' Bank v. Schulenberg, Michigan Supreme Court, June 11, 1884, 19 N. W. Rep. 741, it was held that when a defendant has given notice of a set-off, and claims a balance, the plaintiff cannot discontinue without consent of the defendant. Sherwood, J., said: "The right of the plaintiff at common law to voluntarily submit to a non-suit, or to discontinue his suit at any time before the jury have rendered their verdict is well supported by the authorities, and has always been the practice in this State when no set-off has been pleaded. 3 Chit. Pr. 910; 1 Burrill Pr. 241; Wooster v. Burr, 2 Wend. 295; Circuit Rule 26; 1 Greenl. Pr. 447, 279; Slocomb v. Thatcher, 20 Mich. 52. I think that when the set-off is purely defensive, and no affirmative action is required on the part of the court or jury, the right of the plaintiff to become non-suited at his pleasure, before verdict or judgment, should be in the discretion of the court; which discretion should not be exercised against the right, except in cases where the rights of the defendant might be prejudiced. Under the statute however, authorizing a judgment to be rendered in case of set-off for any balance found due the defendant upon the trial, the rule is and should be different. In such a case really two suits are pending before the court to be tried at the same time. In the one the plaintiff has the affirmative of the issue, and in the other the defendant has the affirmative. It is only after the trial, when the extent of each party's claim has been ascertained, that the liquidation of the smaller claim occurs by way of set-off, or can be made by the court or jury. The statute requires the defendant to bring forward his claim for adjudication at the time the plaintiff brings his suit, and thereby determines the time when the defendant shall have his claim adjudicated, at the peril of doing so at his own expense. In all other respects the case stands as though two separate suits were brought to determine the rights of the parties, and I fail to see why both cases should not be governed by the same rules, and receive the same treatment at the hands of the court. Simple justice requires this, and I can see no reason why the equitable rules upon which the whole doctrine of set-off is based should not be carried out in the practice in these cases. eis v. the plaintiff to discontinue, which is all that is necessary to sustain this judgment." M COMMON WORDS AND PHRASES. OLESTATION.- Adultery on the part of the wife, resulting in the birth of a child, is not "molestation" of the husband within the meaning of a covenant in a deed of separation. Fearon v. Earl of Aylesford, 12 Q. B. Div. 539. Denman, J., said: "Molestation must be, as it seems to me, by some act. The fact of having a child is not an act done by the woman herself in the sense of being a voluntary act. If the act of adultery is not per se an act of molestation, how can it become an act because it is followed by the birth of a child?" But it was left to the jury to say whether holding out the child as the son and heir of the defendant "molestation." was To. This sometimes means "toward." In Moran v. Lezotte, Michigan Supreme Court, June 11, 1884, the court said: "The difficulty here is in harmonizing the part of the description which extends the tract conveyed to the rear of the said Gazette Trombley land,' with the part which specifies the quantity. If the rear line of the tract is to be the rear boundary of the parcel conveyed, this is impossible. The question then is whether effect can be given to every part of the description without making the rear line of the tract the rear line of the parcel conveyed. And the solution of this question must depend upon the meaning to be imputed to the words to the rear,' as here made use of. The word 'to,' as commonly made use of, conveys to the mind the idea of movement toward and actually reaching a specified point or object, and the meaning is not satisfied unless the point or object is actually attained. But this use is not universal; the word is sometimes employed in a sense that embraces a part of this idea only, or simply as a word of direction, as we say to the north or to the south, when we mean in those directions merely; or as in the army an officer might command a wounded man, or any impediments, to be taken to the rear. In many cases the word has a meaning nearly synonymous with 'toward,' and if in the Bonay deed it has been used in that sense all the parts of the description can be perfectly harmonized." Adopting this rule the plaintiff would have no more right to discontinue the defendant's suit than the latter would that of the former; and such, I think, should be the law. These views find support in the following authorities, which I think should govern this case: Thomas v. Hill, 3 Tex. 269, 270; Bradford v. Hamilton, 7 id. 55, 58, 59; FranEdwards, 77 N. C. 271, 275; Riley v. Carter, 3 Humph. (Tenn.) 230; Rees v. Van Patten, 13 How. Pr. 258; Cockle v. Underwood, 3 Duer, 676; Van Alen v. Schermerhorn, 14 How. Pr. 287." Cooley, C. J., and Champlin, J., dissented, Cooley, J., observing: "The Texas cases are not in point, as they are decided under the civil law, which does not prevail in this State. Egery v. Power, 5 Tex. 501; Walcott v. Hendrick, 6 id. 406; Bradford v. Hamilton, 7 id. 55. The case of Francis v. Edwards, 77 N. C. 271, was decided upon a construction of the code of that State, and therefore has no bearing. In Riley v. Carter, 3 Humph. 230, the defendant had obtained judgment for his set-off in justice's court, and the plaintiff removed the case to the Circuit Court by certiorari, and then, in that court, was given leave to dismiss his suit. This was palpable error, and the court so held; but we discover no analogy between that case and this. The defendant had his judgment, and unless error was shown had a right to retain it. The three New York cases of Cockle v. Underwood, 3 Duer, 676; Rees v. Van Patten, 13 How. Pr. 258; and Van Alen v. Schermer-policy for a less sum. The company was held lia horn, 14 id. 287, are not in point, because decided under the State code; but so far as they can be considered as having a bearing, they are against the defendant instead of for him, for they all recognize the power of the court in its discretion to permit DROP. This word received construction in Winne v. Niagara Fire Ins. Co., 91 N. Y. 185. The general agent at a certain place sent the company a statement of policies to expire in a certain month, which was called the "expiration sheet." Opposite the plaintiff's policy the company wrote "drop," and returned the sheet to the agent. He construed the word to mean "decrease," and issued a new ble on this, on the ground that the word was am- SHOW, INDICATE.-In Coyle v. Commonwealth, Pennsylvania Supreme Court, January, 1884, the court said: "It is true, perhaps, that what is merely indicated by certain facts may not be shown by them. Although the words 'show' and 'indicate' are sometimes interchangeable in popular use, they are not always so. The present ordinary use of the words discioses a difference in signification, and that difference is, perhaps, more recognizable when these terms are applied to the law or to medical science. To show' is to make apparent or clear by evidence, to prove, whilst an 'indication' may be merely a symptom, that which points to or gives direction to the mind." PRESENCE. In People v. Bartz, Michigan Supreme Court, April 23, 1884, the court said: "Was the offense committed in the presence of the officer? If it was, he was authorized to make the arrest without a warrant. I think it was committed in his presence. The distance was the width of the avenue. He was in sight of the person discharging the pistol, and did not lose sight of him while pursuing to make the arrest. Had the shooting occurred in the day-time no such question would be raised. A person's presence does not depend upon whether he can be distinctly seen or discerned by another. An assemblage of persons in a room lighted with gas do not cease to be present when the gas is turned off and they are left in total darkThe presence of the officer in this case was so apparent to respondent that he deemed it prudent to absent himself as soon as he discharged the revolver. The court instructed the jury, as matter of law, that when a pistol is fired off in that way the testimony tended to show this was so. The officer could see the flash of the pistol and hear the shot, and the person who fired the shot could have been in sight, if it had been light, so he could have seen him. It was sufficiently in his presence in the meaning of the law." ness. ACTUAL USE.— In Astor v. Merritt, United States Supreme Court, April, 1884, the court thus construed the words "wearing apparel in actual use.” "It is contended here for the defendant that unworn wearing apparel, purchased for an approaching season, cannot be exempt from duty, as ‘in actual use,' before that season has arrived, while wearing apparel proper for the season of arrival | from abroad may, unless there is a want of good faith, be considered as in actual use,' whether it has been already used or not. We are of opinion that the court should have given a different construction from that which it gave to the statute, as applicable to the facts of this case. If the articles in question were: 1. Wearing apparel owned by the plaintiff, and in a condition to be worn at once without further manufacture. 2. Brought with him as a passenger, and intended for the use or wear of himself or his family who accompanied him as passengers, and not for sale, or purchased or imported for other persons, or to be given away. 3. Suitable for the season of the year which was immediately approaching at the time of arrival. 4. Not exceeding in quantity or quality or value what the plaintiff was in the habit of ordinarily providing for himself and his family at that time, and keeping on hand for his and their reasonable wants, | in view of their means and habits in life, they were to be regarded as 'wearing apparel in actual use' of a person arriving in the United States, even though they had not been actually worn. If a person residing in the United States should purchase wearing apparel here, in a condition ready for immediate wear without further manufacture, intended for his own use or wear, suitable for the immediately approaching season of the year, and not exceeding in quantity, quality or value the limit above mentioned, no one would hesitate to say that such wearing apparel was 'in actual use' by such person, even though some of it might not have been actually put on or applied to its proper or personal use. The word 'actual' in the lexicon has as a meaning 'real,' as opposed to 'nominal,' as well as the meaning of 'present.' 'In use' is defined to be 'in employment;'out of use' to be 'not in employment;' 'to make use of, to put to use,' to be 'to employ, to derive service from.' These definitions aid in showing that it is too narrow a construction of the words in actual use,' as applied to this case, to say that they require that the wearing apparel should have been actually worn. It is manifest that by the words 'in actual use,' Congress did not intend that those words should be limited to wearing apparel on the person at the time. They must have a more extended meaning. The test of having worn the article, as a criterion whether it is 'in actual use,' is arbitrary, and without support in the statute. An article of wearing apparel bought for use, and appropriated and set apart to be used by being placed in with, and as a part of, what is called a person's wardrobe is in common parlance, in use, in actual use, in present use, in real use, as well before it is worn as while it is being worn or afterward. The test of wearing must therefore be rejected. What test shall be adopted? We are aided by the other language of the statute in saying that the articles must be 'personal effects,' and must not be 'merchandise,' and must not befor sale.' These words of limitation, on the one hand, serve to indicate that on the other, if the articles, being wearing apparel of the arriving passenger, are fairly personal effects of his, and not merchandise, and not for sale, a construction of the words in actual use' is to be sought for which will carry out the spirit and intent of the entire provision of the statute, and while it comports with the ordinary habits of passengers and travellers, will not open the door for fraud. Such a construction we believe that one to be which we have laid down for a case like the present. As regards citizens of the United States returning from abroad, and foreign-· ers visiting this country, it cannot be supposed that Congress intended they should have worn all the wearing apparel they bring, or else pay duty on it, or that they shall not bring with them, free of duty, wearing apparel not worn, bought in good faith |