for the benefit of creditors, including the General Assignment Act of 1877, as amended, together with a chapter on compositions and composition deeds, and an appendix of forms. By James L. Bishop. Second, edition. New York: Baker, Voorhis & Co., 1884. Pp. xxxiii, 575. This seems a very opportune book for these "hard times." The subject is of great practical importance, and Mr. Bishop's work, approved by several years' use of the first edition, is now thoroughly revised and brought down to the present time. It may safely be commended as a trustworthy and convenient compendium, and is nearly indispensable to the practitioners of our State. The publishers' work has been well performed.

BOONE ON MORTGAGES.

The Law of Mortgages of Real and Personal Property, including also the law of pawn or pledge and collateral securities, as determined by the courts of England and the United States. By Charles T. Boone. San Francisco: Sumner, Whitney & Co., 1884. Pp. xvii, 552.

This is a "pony" volume after the style and character of the same author's book on corporations. We think that Mr. Boone has made a great success in condensing the law on this subject into so small a space, expressing it with clearness, arranging it conveniently and giving sufficient references to authority. This little volume can be put into a coat pocket, and affords a very good substitute for Mr. Jones' and Mr. Herman's more ponderous and learned volumes. The book is very well printed.

LAWRENCE ON MARRIED WOMEN'S PROPERTY. The History of the Laws Affecting the Property of Married Women in England (being an essay which obtained the Yorke prize of the University of Cambridge. By Basil Edwin Lawrence. London: Reeves & Turner, 1884. Pp., xvi, 183.

This is an interesting work if considered in the exact sense of its title, as a history, and is a valuable addition to the library of a liberal lawyer, but is of no especial value in any other view to the practical American lawyer. After all, it is rather superfluous for any one to write on marriage after Bishop.

TUCKER ON WILLS.

A Manual Relating to the Preparation of Wills; with an appendix of forms. A book of Massachusetts law. By George F. Tucker. Boston: George B. Reed, 1884. Pp., Xxxii, 750.

A compact and comprehensive digest, and undoubtedly useful within its professed limits. Very handsomely printed, like nearly all Boston law books.

SPEAR ON EXTRADITION.

This is a second edition of this well-known and highly approved work, the first having been published in 1879. It has this field all to itself, we believe, and is accepted in the courts as a cogent authority. Published by Weed, Parsons & Co., Albany.

BAYLIES' TRIAL PRACTICE.

Trial Practice, or the rules of practice applicable to the trial of civil actions in courts of record under the Code of Procedure, with an appendix of forms. By Edwin Baylies. Rochester, N. Y.: Williamson & Higbie, 1884. Pp. lxxxvii, 681.

This is a work of much the same character as Mr. Abbott's excellent Trial Evidence, and from a cur

Judgment modified in accordance with opinion in the case, and as modified, affirmed-Lewis H. Bailey, executor, etc., appellant, v. A. M. Bailey and others, respondents and appellants. Judgment affirmed with costs-Robert L. Crooke and others, appellants, v. John D. Prince, respondent: Crooke v. County of Kings. Judgment reversed, new trial granted, costs to abide the event-Carl John Jonsson, respondent, v. Nelson Thompson, appellant: John Gay and another, appellants, v. William H. Seibold, impleaded. etc., respondents.-Judgment reversed, new trial granted, costs to abide the event, unless the plaintiffs stipulate to deduct from the judgment the amount awarded as treble damages, with interest on the same, in which case judgment so modified is affirmed without costs of this appeal to either party-Margaret Loff and others, respondents, v. Cyrus Lawton, appellant. -Motion for reargument denied with ten dollars costs-Henry L. Nagle, respondent, v. Robert McFeeters and another, appellants.-Motion to amend return granted, but as the amendment gives the respondent a better position, it should be on payment of costs of opposing motion to the defendant's attorney, and with leave to the defendants to withdraw its appeal and go to a new trial under the order of the Supreme Court if it elects to do so, without costs of the appeal-National City Bank of New York, appellant, v. New York Gold Exchange Bank, respondent.Motion to open default for not serving cases granted, on condition that appellants serve the cases required within twenty days and to pay to respondents ten dollars costs of this motion; otherwise motion denied with ten dollars costs-Jonathan E. Robinson and another, ex'rs, etc., respondents, v. Ephriam A. Smith and others, appellants.-Motion to dismiss appeal denied with ten dollars costs-Edgar M. Payn, respondent, v. Charles H. Field and another, appellants.

NOTES.

In Sinclair v. Railroad Co., MacArth. & Mack. (Dist. Columbia) 13, MacArthur, J., says: "Although the surgeons, who were examined as experts, testify that a broken bone when once cemented is better and stronger than one that has never been subjected to fracture, yet I have great doubt whether any person will submit to that operation for the purpose of strengthening his ribs."- -The American Law Register for November contains a leading article on Power of partners to withdraw at will from partnerships entered into for a definite period, by Benjamin F. Rex: and the following leading cases: Loog v. Bean (Eng. Ct. App.), on injunction of slander, with note by Robert P. Clapp; State v. State Medical Examining Board (Minn.), on statute requiring physicians to have certificates from the State board, with note by Wm. Drayton; Wilson v. St. Louis, etc., R. Co. (U. S. Circ.), on removal of causes, separation of controversies, with note by Eugene McQuillin.

The Albany Law Journal.

Ο

ALBANY, DECEMBER 13, 1884.

CURRENT TOPICS.

UR London legal exchanges have at last found time to express opinions upon the AdamsColeridge case. The Solicitors' Journal and the Law Times both speak of it. Both these authorities condemn the course of Justice Manisty in submitting the case to the jury, and then setting aside their verdict. It seems that the ground of this proceeding was that there was no express proof of malice. It would seem then that the natural and ordinary course would have been to order a nonsuit. It looks however as if the judge left it to the jury hoping or expecting a verdict for the defendant, and disappointed in this, exercised the legal right which he ought to have exercised at the outset. The Journal says: "That a letter which should not have been written should have been followed by an action which should not have been brought is not surprising, but it is surprising indeed that some of the steps above detailed should have been taken by the learned judge, and the amazement both of the profession and the public is, we believe, without parallel." The Journal says that the judge could legally take this course, and that although unusual, it is not unprecedented, citing Bridges v. North London Ry. Co., L. R., 6 Q. B. 377. But continues: "We cannot however think that Adams v. Coleridge was one of the cases in which the unusual course of leaving the case to the jury, and at once entering judgment non obstante veredicto ought to have been taken. In favor of such a course there was the doubtful advantage of saving the parties the expense of an intermediate application to the Divisional Court, while against such a course there was a clear disadvantage, arising from obvious peculiarities of the case itself, of giving the defendant the benefit of the verdict if it should be in his favor, and the benefit of the judgment if it should be against him; and there was a further disadvantage of applying a practice suitable to cases where the law is doubtful and the witnesses many, to a case where the law was clear and the witnesses necessarily few. It is to be observed too that judgment was directed to be entered with costs against the plaintiff, on the ground no doubt that in the opinion of the learned judge the action ought not to have been brought(an opinion shared by ourselves and by many, but not by the jury), and did not legally lie. In thus exercising his discretion under order 65, r. 1, the learned judge appears not to have been merely carrying his judgment to its logical consequences, but to have visited the plaintiff with a penalty he was under no legal obligation to visit him with. * * On the other hand the defendant, if the judgment had been entered in accordance with the finding, would have been able to move for a new trial. and with very

VOL. 30- No. 24.

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good reason on the ground of excessive damages, for the jury were left with absolutely no direction as to damages, and may have taken into account all manner of things not legally proper for consideration, such as a supposed unkindness of the defendant to his correspondent, the non-appearance of the defendant as a witness, and so on." The Times says: "We are sorry to be compelled to express the very serious conviction that the proceedings in this too famous action of libel have struck a blow at the administration of justice more severe than any which has been given in the memory of living lawyers. * But the question whether malice exists destroying the protection afforded to bona fide false statements made on a privileged occasion is for the jury, and the only way in which, legitimately and regularly, the determination of that question can be withheld from them is by directing a nonsuit, which is now equivalent to a judgment for the defendant, on the ground that there was no evidence of malice upon which a jury could reasonably find a verdict for the plaintiff on that issue. To leave the question of malice to a jury is to proceed upon the assumption that there is some evidence to go to them. Every summing-up to a jury is necessarily founded upon the existence of some evidence. Therefore to sum up and leave such a question to a jury, and on their verdict being given upon the evidence left to them, to enter judgment in the teeth of that verdict is in our judgment to stultify the whole proceeding. Mr. Justice Manisty says that it has been the practice of the judges to do as he did, and he shall do it again. We would never see it done without making a strong protest; but whether the course he adopted was in strictness regular, or whether he was actuated by a motive which he has since suggested of facilitating the final settlement without the expense of proceedings by way of new trial, it is universally agreed that in such a case it was calamitous in its result. Had the verdict been entered with judgment and costs for the plaintiff, or had the plaintiff been left to move for judgment no harm could have been done; indeed, had the latter course been taken the question of law could have been argued on the motion for judgment, and if judgment had been entered one way or the other the dissatisfied party could have gone to the Court of Appeal." We do not yet clearly understand whether the plaintiff has lost any rights by the procedure. The Times seems to intimate that he has; the Journal, in language which we have not quoted, implies that he has not. We are inclined to regret that this unusual course should have been taken, and we should think that the Lord Chief Justice would feel annoyed by it. Undoubtedly he would have preferred to have his son's case tried just like the case of the humblest and obscurest subject of the realm, and undoubtedly he does not thank Justice Manisty for this parade of service, which certainly has done no good, possibly has done some hurt, but ought not to prejudice the Lord Chief Justice in the opinions of his fellow-citizens. A man frequently has more

need to be saved from his friends than from his enemies, as Job discovered, and as the distinguished Republican candidate in our late election can vouch.

In the Divisional Appellate Court in the Mignonette cannibal case the three judges had no difficulty in pronouncing the defendants guilty of murder. We do not see how there ever could have been any doubt about it, except for the novelty of the case. The simple question is, is hunger an excuse for murder? It certainly is not, any more than for larceny. The appeal will probably be carried to the ultimate tribunal, at least we hope so, for we are thinking of taking a sea-vayage next summer, and are curious if not anxious to learn what our chances may be in a shipwreck. If this conviction should be affirmed, the defendants must rely on the clemency of the Crown, whereas if the case had been left to the jury out-and-out, it might have been found that they were not in a state of mind to be morally responsible. The well-fed Briton has a very tender feeling for all hungry men except Frenchmen.

We are aware that our current topics have taken a decidedly English turn of late. But this is not our fault. The English have recently been much more interesting than the Americans in a legal sense. The presidential election seems to have taken all the virtue and all the humor out of us. But we ought to be very civil to the English when we find the House of Lords citing us. In Thomson v. Weems, 9 App. Cas. 671, Lord Watson cites Knickerbocker Life Assurance Co. v. Foley, 29 ALB. LAW JOUR. 70; 105 U. S. 350, on the meaning of " temperate habits" in an insurance policy. His lordship declined to adopt the doctrine of that case, that a man may have delirium tremens and yet be of "temperate habits," and observed: "I believe it to be useless to attempt a precise definition of what constitutes ' temperate habits,' or 'temperance,' in the sense in which these expressions are ordinarily employed. Men differ so much in their capacity for imbibing strong drinks that quantity affords no test; what one man might take without exceeding the bounds of moderation, another could not take without committing excess. In judging of a man's sobriety, his position in life, and the habits of the class to which he belongs must, in my opinion, always be taken into account; because it is the custom of men engaged in certain lines of business to take what is called refreshment,' without any imputation of excess, at times when a similar indulgence on the part of men not so engaged would be, to say the least, suspicious. * In the present case the evidence clearly establishes that the assured was a most able and estimable man, but that circumstance is not of much weight, because able and estimable men are not necessarily exempt from social failings." Lord Fitzgerald dropped into poetry on the occasion. He said: "Temperate in habits' is a sentence to be interpreted, and though not to be taken in the

* *

Pythagorean sense of 'total abstinence,' yet seems to import abstemiousness, or at least moderation

'The rule of 'not too much.'

By temperance taught.'

I am, my Lords, inclined to adopt a fair and liberal interpretation, having regard to the position of the individual, the habits of the locality, and even the peculiarities of the local municipal authorities in adjourning to neighboring public houses to 'continue the debate,' but notwithstanding all these allowances, I am coerced to come to the conclusion that the evidence is sufficient to establish that the assured was not a person of temperate habits; on the contrary, his habits of intemperance had been repeatedly observed at the town council and on other public occasions. He has been shown at times to have been incapable of transacting business or taking care of himself. He was remonstrated with by friends, and does not seem to have denied the impeachment, and finally there is evidence that he was elected provost in the hope that his responsibilities of office might produce reformation of habit. The evidence for the defenders is not in my judgment displaced by the negative evidence led for the pursuers. The cause of death too is confirmation strongly of the assured having fallen into that fatal habit which produces

'All the kinds

Of maladies that lead to death's grim cave,
Wrought by intemperance.'

Now we would like Mr. St. John's opinion. We know what Mrs. Hayes would say. We are glad to see the English legal authorities inculcating temperance in drinking as well as in eating.

The answer to Mr. Carter's objections to the proposed codification of the common law has reached a second edition and is being distributed throughout the State under the auspices of George Ticknor Curtis, Edwards Pierrepont, William Dorsheimer, George H. Yeaman, Leslie W. Russell, Wager Swayne, William H. Arnoux, William S. Opdyke, John G. Milburn, John Frankenheimer, Roger Foster, and the editor of this journal, a committee on publications relating to codification. We have had occasion to say before, that we regard this answer, prepared by Mr. Fowler, as the fairest and most intelligent exposition of the principles of Mr. Field's work which has yet been made. It will repay a careful perusal even if the reader differs from some conclusions reached by its writer.

NOTES OF CASES.

[N Commonwealth v. Franklin Pierce, (!) Massachu

a physician, was held guilty of manslaughter in causing the death of a patient by keeping her in flannels saturated in kerosene. The court, by Holmes, J., said: "The defendant's duty was not enhanced by any expressed or implied contract; but he was bound at his peril to do no grossly reckless act when he intermeddled with the person of

competent for telegraph companies to stipulate against or limit their liability for mistakes happening in consequence of their own fault, such as want of proper skill or ordinary care on the part of their operators or the use of defective instruments. See authorities above cited and Sweatland v. Teleg. Co. 27 Iowa, 433; Wolf v. Teleg. Co., 62 Penn. St. 83; S. C., 1 Am. Rep. 387; Breese v. Teleg. Co., 48 N. Y. 132; S. C., 8 Am. Rep. 526; Teleg. Co. v. Gildersleve, 29 Md. 232; Teleg. Co. v. Buchanan, 35 Ind. 429; S. C., 9 Am. Rep. 744; Hibbard v. Teleg. Co., 33 Wis. 558; Teleg. Co. v. Griswold, 37 Ohio St. 301; S. C., 41 Am. Rep. 500. We think the true rule is that such companies are exempt only for errors arising from causes beyond their own control.

In Kingman v. Frank, 33 Hun, 471, a wife employed her husband to manage her separate business, at a stipulated compensation, and there was a certain amount unpaid therefor. Held, that this could be reached by a judgment creditor of the husband. Daniels, J., said: "As she could enter into a lawful contract for the employment of her husband in this manner, and has been required by the statute to be considered as a feme sole in the exercise of the authority conferred upon her, it would seem to follow that she could obligate and bind herself for the payment of the stipulated compensation. From the facts made to appear, the sum of money alleged in the complaint has been earned by him, and become payable from her for the performance of his services under a lawful agreement entered into by her, and it is to be presumed in support of the plaintiff's action that she would be willing to pay over the amount voluntarily to him in satisfaction of his demand against her husband as soon as the legal right to receive payment shall be acquired in these proceedings from her husband. Certainly the court has no ground to assume, and for that reason to defeat the action, that she would not honestly and fairly perform her contract by payment of the money as soon as the plaintiff shall be placed in a position where he would have a legal right to receive it. But it will not follow, from the inability of the husband to collect the debt by means of legal proceedings, that the plaintiff would be prevented from doing so by reason of the same disability, if it should be considered to exist, for this disability would extend no further than to affect the remedy, and would not stand in the way of the plaintiff to recover the debt, or of a receiver appointed for that purpose, under a proper judgment of this court. To warrant such a recovery all that would seem to be necessary is an obligation on the part of the wife to pay the money, and that obligation has been created by her contract and the performance of her husband's services under it. Those facts, together with the acquisition of the demand by the plaintiff, or by a receiver in the action, would be all that could be legally required to maintain an action for the recovery of the debt. In this respect the case would resemble that of a foreign executor or administrator,

who while he could not maintain an action in this State to recover a demand due to the testator or intestate, might still assign it to another person who could upon the title so acquired successfully prosecute such an action. And that an assignee might in like manner recover this demand would seem to follow from the principle of Fitch v. Rathbun, 61 N. Y. 579; for if the assignee of the wife may maintain an action against her husband for the conversion of her property, it would seem to follow that the assignee of the husband might also maintain an action against the wife to recover the amount of an indebtedness she had lawfully incurred to her husband. The case of Perkins v. Perkins, 62 Barb. 531, when its circumstances are considered, will not appear to be an authority sustaining the conclusion arrived at by the Special Term."

WOMAN AND THE LEGAL PROFESSION.

THE

THE foregoing heading is a translation of the title of a very able and entertaining work, "La Donna e l'Avvocatura," recently published in Rome, written by the advocate FERD. SANTONI DE S10, for the purpose of maintaining the right, moral and legal, of women to practice the learned professions, particularly that of the law. In his preface the learned author states, that inasmuch as it has been said by those who are opposed to his side of the case, that the greater part of the advocates of the female sex are celibates, "that is, contrabandists by profession in the kingdom of women," he deems it proper to declare that he is a husband and a father. The work is divided into two parts. First, the judicial question. Secondly, the social question. Of these the first part only has reached my hands, and I propose to afford the readers of the ALBANT LAW JOURNAL an opportunity to learn the mode in which the great question of woman's rights is now being treated by the successors of Cicero, Hortensius and Quintilian.

The circumstances which led to the writing of this work are the following: A lady of Pinerolo, unmarried, and presumably young and attractive, the Signorina Lidia Poët, having been admitted to the courses of jurisprudence in the University of Turin, and passed her examination by a full vote, received her degree on the 17th of June, 1881; and for two years afterward, "attended forensic practice" in the office of an advocate, and assisted at the sessions of the tribunals. Then she sustained a theoretical and practical legal examination, which was approved by forty-five out of fifty votes; and thereupon, on the 9th of August, 1883, pursuant to the deliberation of the council of the order of advocates at Turin, she was inscribed upon the roll of that body. By the Italian statute of June 8, 1874. these proceedings entitle a man, (and our author contends, a woman) to practice as an advocate.

Then, as our author says, her troubles began The inscription of Signorina Poët upon the rol "did not please" the office of the Procuratore-gen