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election, and upon actual count of the ballots as then made by the officers whose duty it is to do so.' "Const. Lim. side p. 625. McCreary, in his work on Contested Elections, p.209, lays down the rule: "Before the ballotboxes should be allowed in evidence to overturn the official count and return, it should appear affirmatively that they have been safely kept by the proper custodian of the law; that they have not been exposed to the public, or handled by unauthorized persons, and that no opportunity has been given for tampering with them. If this is believed to be a rule founded upon a presumption that a fraud or crime has been committed, the answer is that the rule does no more than make choice between two presumptions of law, which in this instance come in conflict, and cannot both prevail." In People v. Livingston, 79 N. Y. 290, the Court of Appeals held the trial court erred in charging the jury, that to justify the rejection of the ballots as proof, it must appear affirmatively, by direct evidence, or from circumstances, that the ballot-boxes had been interfered with and fraud committed, Church, C. J., saying: "The error is in putting upon the party against whom the ballot-boxes are introduced, the onus of proving that they had in fact been tampered with. *The burden was upon the relator to satisfy the jury that the boxes had remained inviolate; the returns are the primary evidence of the result of the election. ** *The returns may be impeached for fraud or mistake, but in attempting to remedy one evil we should be cautious not to open the door to another and far greater evil. After the elec tion it is known just how many votes are necessary to change the result; the ballots themselves cannot be identified-they have no ear-marks. Every consideration of public policy, as well as the ordinary rules of evidence, require that the party offering this evidence should establish the fact that the ballots are * * * genuine. If the boxes have been rigorously preserved, the ballots are the best and highest evidence, but if not, they are not only the weakest, but the most dangerous evidence. The jury might not be satisfied with the proof of identity, and yet be unable to find from the evidence that actual tampering or fraud had been committed." Coglan v. Beard. Opinion by McKinstry, J. [Decided Feb. 12, 1884.]

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JUDICIAL SALE-SUBJECT TO EXISTING MORTGAGE— KEEPING LIEN ALIVE.-Where the purchaser at an execution sale takes, subject to an existing mortgage, any party in interest (not the principal debtor) may pay off the mortgage, and even though it be discharged and satisfied of record, may keep the lien alive so far as is necessary for his equitable protection, as though he took merely an assignment of the mortgage. The rights acquired by the purchaser at the execution sale are not affected by the assignment of the mortgage, either in fact or by operation of law. "In general, when any person having a subsequent interest in the premises, and who is therefore entitled to redeem, for the purpose of protecting such interest, and who is not the principal debtor primarily, and absolutely liable for the mortgage debt, pays off the mortgage, he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lien so far as may be necessary in equity for his own benefit; he is subrogated to the rights of the mortgagee to the extent necessary for his own equitable protection." 3 Pom. Eq. Jur., § 1212. And this equitable result follows, "even though a receipt was given speaking of the mortgage debt as being fully paid, and sometimes even though the mortgage itself was actually discharged and satisfied of record." Id., § 1211. Matzen v. Shaeffer. Opinion by Sharpstein, J. [Decided Feb., 1884.]

RECENT ENGLISH DECISIONS.

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MARRIAGE-DEED OF SEPARATION-COVENANT TO PAY ANNUITY "MOLESTATION A DEFENSE. In a deed of separation between the defendant and his wife and under which the plaintiff was trustee, the defendant covenanted to pay to the plaintiff 500l. per annum during the joint lives of himself and his wife; and the plaintiff covenanted that the defendant's wife should not at any time thereafter molest the defendant. The plaintiff brought an action to recover 475l. for arrears of the annuity, and the defendant pleaded as a defense that his wife had molestd him, and counterclaimed for damages. The jury found that there had been molestation, and assessed the damages at 1001. Held, that the covenants were not independent, and the jury having found that there had been molestation, the defendant had succeeded in establishing his defense, and was entitled to judgment upon the claim and upon the counter-claim, without damages. Held, also that the conduct charged against the defendant's wife was consistent with molestation, and might be found by the jury to be molestation, if they considered it proved, using the word "molestation" in the sense of injury knowingly, and without lawful excuse inflicted upon another in his person, character, social position or property. High Ct. Just., Q. B. Div. March 11, 1884. Fearon v. Aylesford. Opinion by Day, J. [50 L. T. R. (N. S.) 598.]

WILL-POWER UNDER MARRIAGE SETTLEMENT—“ ISSUE"-ELECTION.-The word "issue" may bear different interpretations in different parts of the same deed, and it is not an inflexible rule, that because the word evidently means "children" in the proper sense of the term in one part of a settlement, it must be necessarily so construed in another part of the document. See Wyth v. Blackman, 1 Brown. Sen. 196; Harrison v. Symons, 14 W. R. 959. By a marriage settlement the wife received a power to appoint certain property by her will among the issue of the marriage, and it was provided that in default of such appointment the property was to be held in trust for the issue of the marriage, if more than one, in equal shares, for sons at twenty-one years and for daughters at that age or marriage, and that in the event of there being but one child issue of the marriage, or only one should live to become entitled, the property should be held in trust for such only or such surviving child, and if there should not be any issue of the marriage or no issue thereof should live to become entitled, then upon the other trusts. Held, that the word "issue" in the power of appointment was to be strictly construed as referring to children of the marriage. In re Hopkins' Trusts, 9 Ch. Div. 131, which was a case of a will, Hall, V. C., said that he must decline to speculate as to probable intentions. He says: "I cannot guess, but must do my best to construe the instrument upon the words themselves;" and then he says: "Taking the words as I find them, the true interpretation is that the word issue' was used by the testator in the sense of 'children,' and he has, I consider, thus explained himself." The wife by her will appointed part of the fund upon trust for one of her sous for life, with remainder to his children who should attain twenty-one years; and she further bequeathed certain property, not within the settlement, to the persons entitled under the settlement in default of appointment. Held, that since the appointment was ex facie void for remoteness, the will was to be read as if it were not contained therein, and the persons entitled under the settlement in default of appointment were not put to their election. High Ct. Just., Chan. Div. Feb. 16, 1884. Matter of Warren's Trusts. Opinion by Pearson, J. [50 L. T. Rep. (N. S.) 453.]

The Albany Law Journal.

ALBANY, OCTOBER 4, 1884.

CURRENT TOPICS.

N speaking of a recent volume of the New York Reports, the Chicago Legal Adviser says the syllabi "deal too much with the facts of the cases, and the index is nothing but a redistribution of the points of the syllabi, a most vicious system of reporting." In regard to the construction of a headnote it is our belief that head-notes usually deal too little with the facts of the cases, and too much with the steps of the argument by which the court arrive at the conclusion. In our opinion a head-note ought to consist neither in a series of legal formulas, nor in a bare and detailed statement of the particular facts, but that it ought to state the facts very concisely, where that is reasonably practicable, with the legal conclusion; or when the facts are too intricate for convenient statement, to impregnate the statement of the legal conclusion with the leading facts. The latter course is sufficient in a majority of instances, perhaps. But unless the facts are stated or rendered inferable, the head-note is apt to degenerate into a statement of legal truisms, and to get any idea of what the decision is, the statement of facts and the opinion mnst be read. The head-note ought to be a minute photograph of the case and decision. There are a few reporters who know how to do this.

An eminent and admirable example is Mr. Chaney of Michigan, who makes the most concise head-notes in this country, and generally all-sufficient and admirable ones. We can hardly remember a head-note of his that could be improved. We seldom see any head-note by any other reporter that could not be improved. Our own theory of syllabus-making is illustrated in the American Reports, the head-notes of which are certainly concise, which generally state or infer the ruling facts, and which never give the logical steps of the argument. It is a very much more difficult thing, however, to construct a head-note originally than to improve on one already constructed, and in preparing the American Reports we have the advantage of seeing what has already been done by the State reporters. We regard Mr. Sickels' headnotes as far above the average in merit. It must be remembered that he frequently has cases of great intricacy and novel characteristics to report.

As to the construction of an index, we agree with the Adviser, that merely reproducing the statements of the syllabi is generally a vicious system. But it would not be a bad system if the headnotes were constructed as we have suggested. No better index for Michigan Reports can be devised VOL. 30- No. 14.

than the reproduction of Mr. Chaney's head-notes, for they are concise enough, and at the same time generally save the trouble of turning to the case. The same, we think, may correctly be said of the indexes of the American Reports. Taking the last nine volumes of this series, which report probably some 1,600 or 1,700 cases, the indexes, which merely reproduce the head-notes, cover only 338 pages, or an average of about 37 pages. We have had fault found with us by one or two lawyers who seem to measure their law by the yard, because these indexes are so short, whereas the indexes of some of the State reports are twice as long! This reminds us of the preacher who apologized for the excessive length of his sermon by saying that he had no time to make it shorter. The art of making things short is difficult but very useful.

The Adviser also remarks in the same paragraph: 'Among the cited cases we notice only one case from the Breese reports, and the citation is found in a dissenting opinion. We had occasion for some time to examine the lists of cases cited in this court, and find, to our regret, but few citations from the Illinois reports." This gives us leave to say that the Illinois reports are less cited generally in the east than those of any other State of any thing like its importance. It may be said without vanity that our State is and always has been more in the habit of furnishing law for other States than of borrowOur State is not alone in this reing it from them. spect. The Pennsylvania judges seldom cite any reports but their own. The Massachusetts judges, since Chief Justice Gray's departure, do not travel much abroad in their citations. These three States are perhaps the most affluent and influential sources of American law. At the risk of bringing down the Adviser and the Chicago Legal News upon us, we will further say that considering the enormous wealth and business activity of Illinois, we find her law reports singularly uninteresting. This is no new reflection of ours. We have felt the conviction for a long time in making selections for the American Reports, and have wondered why the fact should be. But we are free to maintain that in comparison with any of the New England States, with any of the middle States, except Delaware, with Ohio, Michigan, Wisconsin, and perhaps Iowa, the judicial decisions of Illinois are singularly uninteresting. This is, of course, not the fault of the bar or bench, nor of the reporter.

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The Canadian Law Times has the following on judicial notice, entitled "Judicial Ignorance: " "We do not intend to attribute ignorance to any member of the bench. Far from it. But we contend that a learned man when he takes his seat on the bench is not called upon to make himself judicially ignorant of the ordinary affairs of life. In a judgment lately delivered by Mr. Justice Rose, which was printed in the newspapers, his lordship is reported as having put the question: 'Am I to take

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judicial notice that beating a drum is playing a menced. On the other hand, he may not write letdrum?' His lordship is further reported to have ters on the client's behalf, issue process, 'effect the refused to do so, and in consequence, to have engrossing of briefs, or do any similar business.' quashed a conviction for making a noise in the Without recommending this resolution for adoption street by playing a drum. The question arose in en bloc at the earliest convenient bar meeting in the case, we believe, whether or not the playing of London, it may safely be said that the bar and bar drums was an unusual noise. His lordship held it committee of Victoria have set a notable example was not an unusual noise. If not, then it is one of of activity and decision to the corresponding instithe usual sights and sounds of our public streets. tutions of this country." There is nothing in legal Must a judge shut his eyes to all that is going on affairs that strikes an American lawyer as so ludiabout him, and become absolutely ignorant of the crous as this separation of attorneys from barristers We commonest things when he ascends the bench? this chaperoning" of the client. The custom hope not. In R. v. Woodward, 1 Moo. C. C. 323, of course is in one way a good one for the lawyers the judges unanimously took notice that beans were - it entails the employment of at least two lawyers on the same side in every case. But if one is fit to a species of pulse. In R. v. Swatkins, 4 C. & P. 548, Patteson, J., after conferring with Bosanquet, do all the work, why not let him? England is gradJ., took judicial notice that barley was corn. But ually learning good sense from her children, the colin R. v. Blaney, R. & R. 416, the judges refused onies and the States, and we hope to live to see her to take notice that a colt was of the horse species legal institutions more like our own. But let us be We do not believe however that the modesty of careful that she does not get a code ahead of us. the bench would extend so far to-day. One of our learned judges is an accomplished player upon the flute. Must he forget this on the bench, and solemnly take evidence as to the manner in which the sound of a flute is produced when the occasion calls for it? We hope Mr. Justice Rose was a little wrong on this point." But does not everything depend on how the drum was beaten or played, in determining whether it was an "unusual noise?"

NOTES OF CASES.

N Pence v. Commonwealth, Kentucky Court of IN Appeals, July, 1884, 6 Ky. L. Rep. 113, the defendant, a distiller, was indicted for selling five gallons of whisky at one time. The court discussed the meaning of the term "wholesale dealer" as follows: "In the absence of a statute giving a legal The London Law Times says: "It has lately been definition to the word wholesale with regard to a roundly asserted that England has everything to particular commodity, it is a question of fact learn in her political system, her judicature, and whether, according to the usual course of trade in her social arrangements, from her own children in that commodity, a given transaction is to be rethe United States and the British colonies. In par-garded as at wholesale or retail. These are relative tial support of this view it would seem that the terms. Etymologically considered, it might be said Australian colonies have lately been exercised by that the sale of a thing as prepared and put up by the great question of the amalgamation of the two the manufacturer, to be sold as put up, without branches of the legal profession, which lately prom-subtraction, is a wholesale transaction; but if only ised to suddenly come within the range of practical politics,' in the mother country. The question is so much nearer ripeness at the Antipodes than here, as to have formed, as we gather, the subject of a bill before the Victorian Legislature. In face of the growing movement the bar of Victoria has found it necessary to organize in its own defense, has appointed a committee to inquire into its relations with the solicitors and the public, and has adopted resolutions at the instance of the commitThe Melbourne committee has not only recommended that the etiquette of the bar should be reduced, so far as practicable, to a written code, and an organization adopted with the duty of watching over and enforcing observance of the code, but has also advised a practical step, by way of modification of accepted etiquette, which has been a good deal discussed in England. conformity with this report, the Melbourne bar generally has adopted a resolution to the effect that a barrister may henceforth see his client personally, 'advise him, and earn a fee,' without the intervention of a solicitor, provided no litigation has com

tee.

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In

a part of the thing is sold, if there is (as the word retail implies) a cutting or severing of the thing as put up, the sale is a retail transaction. It is however a very hazardous rule to interpret legislative language by reference to the obscure etymology of words. In its active life business loses sight of philological proprieties. It divides things by the rule of utility, and seizes on apt words to designate the divisions. But even if the meanings of the words wholesale and retail are taken from the dictionary, it is still a question of fact as to the minimum quantity of whisky, or of any other fluid, or of any thing made entire, as nails, pins and needles, which constitutes a whole package, as originally put up. With respect to such matters it seems clear that the condition in which the wholesale dealer chooses, for safety or convenience, to keep his stock is unimportant. A dealer in grain may keep a hundred thousand bushels in an elevator; a dealer in liquors may keep them in casks of immense capacity, but it could not be said that the sale of fifty thousand bushels of the grain out of one elevator, or the sale of one thousand gallons of

wine out of one cask, would therefore be a retail dealing. What constitutes a wholesale dealer in a given commodity, and what constitutes a wholesale transaction, if made by a wholesale dealer, are questions of fact to be proved by evidence, and found by the jury. It is the usual course of trade' which determines the answers. It may be that only a minimum quantity is considered in deciding | whether a dealer is wholesale or retail, and it may be that the question as to the purpose of the purchaser, as whether buying for personal use or for resale, may be an element. But we do not think it can be assumed, as matter of law, as the second instruction seems to assume, that the sale of no quantity, however great, is a wholesale transaction, unless the purchaser buys as a dealer to resell, the instruction going somewhat further by requiring that the purpose of the purchase should be to sell again at retail." As to "wholesale dealer," see Taylor v. Vincent, 12 Lea, 282; as to "retail dealer," see Tennessee Club of Memphis v. Dwyer, 11 id. 452; and 30 ALB. LAW JOUR, 64.

In State v. Brainerd, 56 Vt. 532, an indictment against the president of a trust company for misapplication of the funds, found by twelve, was

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v. People, 89 Ill. 571; Mesmer v. Commonwealth, 26 Gratt. 976. Proffatt on Trial by Jury, section 46, says: If the necessary minimum number are on the grand jury when an indictment is found it will be good.' The above views also cover the ground of the claim as to the five who were present, but did not vote on account of being depositors in the bank of which the respondent was president, there being twelve who agreed to the bill. But it is further claimed that these five were disqualified by favor, being interested on account of being depositors, and that one other who was one of the twelve who agreed to the bill, was also disqualified on account of his wife being a depositor, though in her own right. The ground of this claim is that if the respondent is guilty of the charges alleged in the indictment, he would be liable to these men for any loss in their deposits. This is plainly too speculative and remote. In Middletown v. Ames, 7 Vt. 166, it was held that a juror was not disqualified, though the fine might go into the treasury of the town of which he was a ratable inhabitant. In Commonwealth v. Ryan, 5 Mass. 90, that the indictment was good, though the foreman of the grand jury that

found the indictment was a taxable inhabitant of the town to which the fine would go. Thompson and Merriam on Juries cite two cases, one in Penn

held valid, although one of the rest of the panel gylvania and one in Virginia, where it was held

was disabled from acting by sickness, others were depositors in the company, and the wife of one of the twelve was a depositor. The court by Veazey, J., said: "Before a person could be convicted of a

capital offense, twelve at least on the grand jury

must assent to the accusation, and twelve more find him guilty on the trial. Judge Dillon, in State v. Ostrander, 18 Iowa, 435, after referring to the common-law rules, and citing numerous authorities, says: The requiring of twenty-three to be summoned, though we have found no reason stated in the books, was probably in order to make sure of obtaining a jury of twelve, possibly to be sure of having a few over, so that if the accused should have a friend or two upon the panel, the course of justice might not be defeated; possibly to prevent a dissolution of the jury by the death or sickness or absence of one or more of the jurors, or it may be for all of these reasons combined.' It is plain from this that it never occurred to him, in the elaborate investigation which he gave the subject, as that opinion shows, that the absence of one or more on account of sickness or death would prevent those remaining from proceeding with their investigations, provided there were twelve left.

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We think the above construction is consistent with the decisions generally in other jurisdictions. The difference in the statutes prohibits such decisions from being controlling either way, but the course of reasoning found in some opinions applies with more or less force to this case. See State v. Davis, 2 Ired. 157; Commonwealth v. Wood, 2 Cush. 149; State v. Miller, 3 Ala. 343; People v. Roberts, 6 Cal. 214; People v. Hunter, 54 id. 65; Pybos v. State, 3 Humph. 49; Hudson v. State, 1 Blackf. 317; Beasley

that an indictment for embezzling the money of a bank was good, although one of the grand jurors who found the indictment was a stockholder in the

bank, and possessed a large amount of the notes, and therefore was greatly interested in procuring the indictment. The authors say: 'Such a juror cannot be said to be interested in the event of the conviction or acquittal of the accused. He is not prosecution. He can neither gain nor lose by a interested beyond that common interest which every member of society must feel in the conviction of such persons as offend against the peace, the order and well-being of society.' Add. (Pa.) App. 45; Commonwealth v. Strother, 1 Va. Cas. 186. See also Prof. Jur., § 169, and cases there cited; also Waters v. Day, 10 Vt. 487; State v. Newfane, 12 id.

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A. "That was what they wanted."

Q. "And what did the Court of Appeals say?"
A. "They held that it was a valid bequest."
"But what is this other case, please?"

Q.

A. "This is the case of Pritchard v. Thompson, decided by the same court, and reported in 95 N. Y. 76."

Q. "And what is it about?"

A. "A testator made a bequest to his executors, to be distributed by them among such incorporated societies organized under the laws of the State of New York or the State of Maryland, having lawful authority to receive and hold funds upon permanent trusts for charitable or educational uses, as said executors or the survivors of them might select, and in such sums as they should determine."

Q. But that is very much like the other case, isn't it?

A. "Very much."

Q.

"And must be decided on the same principle as the other case, mustn't it?

A. "One would think so."

Q. "Of course that made it very easy for the Court of Appeals?"

A. "That is the natural inference."

Q. "My, how glad the court must have been to get a case just like one they had decided a little while before!"

A. "Very glad."

Q. "And so they held that the bequest in this last case was valid?"

A. "On the contrary."

Q. "What! They couldn't hold that it was

invalid?"

A. "That is precisely what they did hold."
Q. "Gracious! How could that be?"

A. "Well, it was, you know."

Q. "And if the executors failed to carry out the trust?"

A. "The court said that, in that event, in the case of Power v. Cassidy, all the Roman Catholic charities, institutions, schools and churches in the city of New York would share equally in the fund." Q. "But why couldn't the same thing be done in the case of Pritchard v. Thompson?"

A. "The question is too hard for me."

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Q. Well, what reason did the court give?"

A. "They said it wouldn't be so easy."

Q. "Then the only difference between the two cases is that it might be a little easier to carry out the trust in one case than in the other?"

A. "That is the only difference."

Q. "And the cases are alike in all other respects?"
A. " 'Exactly alike."
Q." And any rule of law or equity that applies
to one case applies just as well to the other?"
A. "Certainly."

Q. "My, what a funny thing law is!"
A. "Yes."

J. H. H.

THE LAWYER AND SOME OF HIS DUTIES.

T is proposed to notice in this paper certain commonplace and yet all-important duties which every lawyer at all worthy his high calling must diligently perform. For the present, broad and liberal culture, ex act and exhaustive mastery of the principles of the law, and an elevated moral sense of the duties and responsibilities of the profession must be assumed as cardinal qualifications for every one entering upon the practice of the law, and it is only proposed here to note some of the duties absolutely essential to successful and honorable continuance in its practice.

Although the propositions may appear trite and selfevident, they are shamelessly ignored and disregarded

Q. "Had the court forgotten the case of Power by a large percentage of the members of the profession,

V. Cassidy?"

A. "Oh no, they referred to it."

Q. "Did they overrule it?"

A. "No."

Q. "What did they do with it, then?

A. "They distinguished?""

Q. "What does that mean?"

A. "Why, you see, in one case the beneficiaries were limited to a particular class, i. e., incorporated societies lawfully authorized to receive and hold funds upon permanent trusts for charitable or educational uses, and to a particular locality, i. e., the States of New York and Maryland, while in the other case the beneficiaries were limited to a particular class, i. e., Roman Catholic charities, institutions, schools or churches, and to a particular locality, i. e., the city of New York."

Q. "Is that all the difference between the two cases?"

A. "That is all."

'Then in each case the selection of the beneQ. ficiaries, and the amounts to be given to them, were left to the discretion of the executors?"

A. "Yes,"

and this is my excuse for this discussion.

The first duty I insist upon is diligent, prompt and respectful attention to all correspondence. To neglect or delay answering any letter is positively uncivil, and such neglect of any ordinary business letter is not only a breach of good manners, but exhibits vulgar education and an utter want of any sense of appreciation of patronage. Letters may sometimes be trivial; they may be petulant or unimportant, but they must be auswered. It will however be found generally true that men who write letters have something worthy to write about, but I quite agree with that distinguished lawyer and scholar, David Hoffman, "that all notes and letters must be answered, politely, if possible, but rudely rather than not at all."

In this respect our profession may profit by the example set by business men. Instances will indeed be found rare where successful business men fail to answer their correspondents. We are dependent to a great extent on this class of men for our business, and waiving all questions of mere civility, lawyers ought as a matter of business to be prompt and courteous to all correspondents. I know that the business men of the country hold the profession at large responsible for the delinquencies of some of its members in this matter, and that this is one of the chief grounds of complaint against the legal profession. Nothing is better calculated to foster distrust upon the part of business men of lawyers than indifference to their correspond

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