In

tribunal, which consists of one or more arbitrators. Cases involving considerable amounts are thus disposed of in short meter outside of the court-room. the second place, corporations are in active operation, such as collecting agencies, on a large scale, title companies to search titles and guarantee the result; bond companies to furnish guarantee bonds, etc. In the third place, the expensiveness of litigation prevents many an interesting legal contest; in the fourth place the slowness of such litigation, and lastly the state of the law and statutes in regard to the collection of debts.

We conceive this last to be a serious obstacle in the way of legitimate litigation. The legislation since 1840 has been all for the benefit of the debtor. An examination of the judgment docket in New York shows that millions upon millions of dollars are presumably justly due judgment creditors, not a cent of which has ever been collected. There should be some wholesome legislation in regard to the "wife racket," as it is facetiously called, by means of which a debtor may fail for half a million, may cause any amount of misery and suffering, and still live with his wife, in the same house, drive the same horses, enjoy the same social distinction which wealth brings, purely upon a fiction of law that his property, over which he exercises the same control, is really his wife's, and so cannot be reached.

A gentleman of large wealth said recently in our hearing: "I never sue a debt unless my lawyer can assure me that he can collect it. The result is that I have almost no litigation, my lawyer, who is unwilling to make experiments, and is extremely cautious, seldom assuring me of success."

We would suggest also a reform in the law of executious to sheriffs, by changing the limit of sixty days to six days, or even two days, within which an execution must be returned, satisfied or otherwise. The law as it stands now puts it in the power of a sheriff to first collect a good fee from the debtor for not levying, and then a bigger fee from the creditor for returning the execution within the sixty days, so that the creditor may take proper steps to secure himself, in case the execution is returned unsatisfied. Section 2436 of the Code is practically a dead letter, since it is next to impossible without an examination of the debtor to learn whether he has any personal property or not. Any reform measure directed to the better management of sheriff's offices would facilitate the collection of debts and increase legitimate litigation. A scheme by which the Civil Service Act could be applied to deputy sheriffs would be advisable. Deputies should pass an examination on languages, arithmetic, the Code of Procedure, collection of debts, law of contracts, etc., etc.; they should be paid a good salary, of say $1,500 a year; should be dismissed for intemperance; should be held rigidly to their duties; should be subject to heavy fine and imprisonment on proof of any receipt of money or thing of value from the debtor, except to be applied upon the judgment, and they should, if possible, be chosen from members of the bar. What young starying attorney but would be glad to be the recipient for the first three years of his admission to the bar of a salary of $1,500 a year? Instead of drunken loafers who have obtained their position through some political favoritism we would have a set of honest, active assistants in the collection of moneys due on judgLEX.

ments.

Albany R. Co., respondent: James Ferguson, appellant, v. Fred B. Hubbell, respondent. Judgment of Supreme Court reversed, that of the Court of Sessions of Jefferson county affirmed-People, appellant, v. David Augsbury, respondent.-Judgment affirmed with costs-Johanna Voos, respondent, v. Second Avenue R. Co., appellant; Emma F. Temple and another, respondents, v. William D. Sammis, appellant. Judgment affirmed with costs, but since the defect in the complaint is capable of correction, the plaintiff should have leave, upon costs of the demurrer, including those of the appeal to the General Term and to this court, to serve within twenty days from notice of entry of this judgment, an amended complaint in the action-Joseph F. Knapp, appellant, v. City of Brooklyn, respondent.-Motion to prefer granted without costs-David P. Newhouse, receiver, etc., respondent, v. Second National Bank of Oswego, appellant. -Motion to amend return denied, with $10 costs-Henry Stedeker, appellant, v. Henry O. Barnard, respondent. Motion to amend remittitur granted without costs-Moses May, respondent, v. Nelson Morris, appellant. -Motion to amend remittitur denied-Mechanics and Traders' National Bank v. Mayor, etc., of New York, appellant; Bigelow Blue Stone Company and others, respondents.

WE

NOTES.

WE find the following mixed metaphor in a recent volume of law reports. "No inclination is shown to cut loose from the safeguards and well settled rules which have been judicially established for the protection of trust estates, and to launch upon the open sea of speculation and peculation which some trustees and their agents have brought to the management of trust property." We did not know before that trust estates come within admiralty jurisdiction.

-We wish that somebody would send Mr. Justice Scott a supply of "thats." A writer whose style is otherwise good ought not to write: "The position taken on this branch of the case is much weakened by the consideration it appears from the averments of the plea itself the bringing of the defendant into the State * ** * was," etc.-Although ducking female scolds has fallen into disuse, yet there are still some legal disadvantages in having the reputation of a scold. Thus in Tompkins v. Staw, Ohio Supreme Court Commission, Oct. 28, 1884 (6 Ohio L. J. 151), where T. claimed and had offered evidence to show that S., her brother, had agreed to furnish her a home as long as she lived, if she would act as his housekeeper, and 8. claimed that by the arrangement T. was to be his housekeeper only so long as they could agree or so long as they could get along together. Held, that it was competent for S. to prove that T. was a person of peevish, nervous, and disagreeable temper, and that none of her relatives who had tried to live with her could do so; and that these facts were known to S. when the arrangement to live together was made.— In Boston a man has lately recovered $3,025 against the New York Central Railroad Company for injury to a Stradivarius bass viol. The instrument was pronounced by experts to be the only one of that maker they had ever seen.-Corneilson, the lawyer who as saulted Judge Reid of Kentucky, inducing his suicide, and who was convicted and sentenced to three years imprisonment, it is said has disappeared. Let us hope he never will enter an appearance again. The Canada Legal News sends us the first number of "The Montreal Law Reports," a new series, to be published in connection with that journal, containing decisions of the Superior Court, court of review, and courts of Queen's Bench. The number is very handsomely printed, and apparently well edited.

The Albany Law Journal.

ALBANY, DECEMBER 27, 1884.

CURRENT TOPICS.

Bar Association, appointed to urge the rejection of the proposed Civil Code, reported by Mr. Field and his co-workers to the Legislature of this State. We venture to think that the City Bar Association did itself great credit in passing Mr. Vanderpoel's amendment striking the word "adopted" out of the resolution, thus virtually indicating a lack of confidence in the report by the special committee. The fact is that this report fully evinces that a few spirits in the New York City Bar Association propose to array themselves against the organic law of the State, and to oppose all codification; against the progressive spirit of the age, and against what we firmly believe to be the wishes of the majority of lawyers, both in and out of the city of New York, as well as against the hopes of the sentient non-legal portion of our political society. Every thinking person among us must concede that there is something fundamentally wrong in our judicial system, a system which some think does not keep pace with the advancements either of science or of commerce. Many who feel thus look forward to codification of substantive law as likely in some measure to alleviate recognized evils. They think

the time has come when the inchoate revolution in old conceptions of legal administration should be accomplished. The codes of practice only began the work of reform; they fused the dual system of law and equity in so far as administration was concerned, but no abolition of these contradictory systems can be fully accomplished without a fusion of the principles of substantive law in a code of substantive law. This is not our opinion only, but the opinion of those whose lives have been spent in an exhaustive study of political science. As a legal organ, quite as independent of outside dictation as any member of the committee whose report lies before us, we believe that the signs of the times, and duty to our readers, justify and dictate the upholding of the principles we have enunciated. The report in question is not only reactionary, disputing as it does, through Professor Dwight, the obligation of any further codification whatever, but it is aggressive and decidedly hostile to Mr. Field as a competent codifier. Did we not think what we have already expressed, that the duty of codification is positively obligatory upon the Legisture and the exccutive of this State, and that Mr.

Field's large experience, training and accomplishments render him the best exponent of accurate codification, we might have some sympathy with

for codification. He denies by implication that the Constitution even authorizes codification, which conclusion if valid, would destroy every legislative tion. Surely this is a vagary, and not sound law. action, past and present, looking toward codifica

How can it be accounted for? It seems to us in this wise: Professor Dwight's whole active life has been practically the high one of an instructor, and no one can impeach his extraordinary faculty of imparting knowledge to unwilling youths, or youths with legal aspirations. But his vocation has been what the historian of philosophy, Lewes, characterizes as "an objective aim through subjective methods." Now an examination of law in the abstract has an inevitable tendency toward a reaction from codification. Abstraction has but one method of building up a jurisprudence, and that is the method which makes the perfect law conform

to the abstractions. If these abstractions are reduced by the jurist to form, or to a commentary on the existing state of the law, we may as well expect a camel to go through the eye of a needle as to expect the abstraction to be made all over again so as to conform to the revolutions of a revolutionary code. At this writing we have neither time nor space to give a more minute criticism of this practically rejected fourth annual report. It ends with a poem selected by Mr. J. Bleecker Miller as suitable to the solemn occasion. We give it verbatim :

"Plastering our swallow nests on the awful past,
And twittering round the works of larger men,
As we had builded what we but deface."

So say we!

Mr. J. Bleecker Miller is the most imaginative of men. He attributes lynching to codification. He says: "In Ohio we have just seen the effects of a similar reaction against the effects of this system of wholesale, cheap codification; that State adopted a penal code in 1878; the increase of lynching in other States may be due to the same cause; the same results are to be expected in this State when the Penal Code shall have had time to make

we have heard Mr. Miller so long to this purport that we feel tired. There is only one other possible evil for him to lay to the Code, and that is the cholera. Possibly however the English tendency to codification had something to do with that attempt to blow up London bridge the other day.

The queen has commuted the sentence of the Mignonette cannibals to six months' imprisonment. The case involved a question of comparative horrors. It is horrible for a starving man to eat his fellow sufferer. It is also horrible to hang him for it. We think that the clemency of the crown was properly extended, but the prisoners would be more entitled to sympathy and to mercy if they had given their victim a chance for his life. It is a grim subject to legislate upon, but as experience shows that such cases do occasionally arise, would it not be well to compel the survivors of such catastrophes to give one another the chance of lot? Otherwise it will always turn out, as in this case, that might will make right. It was argued, to be sure, that the boy had no one depending on him, while the others had dependents. But then the boy had a natural right to have some one dependent on him in the future, and he had a natural right to live longer than the adults. It was a very selfish and cruel piece of business, this killing of the unresisting and helpless boy, and the killers get off well with this light punishment. The sentence might well have been heavier. It was no more than might have been imposed upon a starving man for stealing a loaf of bread. It would not have been amiss to make more distinction between a loaf and a life.

The right to eat is really getting to be a serious business in the courts. Hardly have the Mignonette cannibals been safely settled, when a case arises in this country. Mad. Scalchi, the famous contralto singer, sues Mr. Abbey, the manager, for salary. He defends on the ground that she refused to sing in The Prophet. She replies that he asked her too soon after breakfast, that term meaning a quarter past twelve; that she couldn't rehearse so soon after eating. And now the court is gravely and anxiously examining this question. The lawyers are looking into all the digests for precedents. But there was no disagreement of the jury. They agreed with the

woman.

Mr. R. Vashon Rogers, Jr., of Kingston, Canada, has put forth another of his clever little books. This is entitled "The Law and Medical Men," and is published by Carswell & Co., of Toronto. The chapter on "Dentists" was originally published in this journal. The book is characterized by the author's peculiar research and humor, and contains every thing that it is essential for medical men to know concerning their relations to the law. The case of Commonwealth v. Pierce, just decided in

Massachusetts, and overruling the "well-my-gristle" and "ram-cats case of Thompson, is too recent for Mr. Roger's book. He might however well have included the English case of Latter v. Bradwell, 44 L. T. Rep. (N. S.) 369, where the servant maid sued her master and mistress and a physician for compelling her to submit to a medical examination on the charge of pregnancy, and her reluctant submission was held to absolve the doctor.

The New York Daily Register, speaking of the recent charge and verdict in the Cleveland oil transportation case says: "The doctrine of the decision is the condemnation of what are known as special rates. The railroad company favored the Standard Oil Company by charging it less for a carload transported than it did other shippers, and the plaintiff, who was compelled during a certain period to pay the railroad company some $5,000 more than the rates charged to the oil company during the same season would have amounted to, brought an action against the railroad company to recover back the

excess. The defense insisted that it was allowable to charge a very large customer less than others, but the court held, that while it was allowable to charge less rates in proportion for a large quantity than for a small, the charge for either must be uniform to all customers. It may be that a sliding scale could be adopted which might practically give a large customer a lower rate per load on a thousand loads than any shipper who had not so much to send could get the benefit of, and perhaps this would not be an infringement of the rule; but the rule itself is clear and its justice is plain. Whatever rate the company fix must be fixed for all alike." Special rates to large customers have been approved in several recent cases. See Ragan v. Aiken, 9 Lea, 609; S. C., 42 Am. Rep. 684: Concord and Portsmouth Railroad v. Forsaith, 59 N. H. 122; S. C., 47 Am. Rep. 181; Johnson v. Pensacola, etc., R. Co., 16 Fla. 623; S. C., 26 Am. Rep. 731. In the latter case the test

was held to be the reasonableness of the remuner

ation, and it was held that the same price for all is not essential. These three cases will give the clue to all the adjudications.

Messrs. Sullivan and Greenfield, the pugilists, have triumphed over those craven spirits who would fain keep the peace. The jury have found that their fisticuffs were quite harmless — nothing like a "contention or fight." To be sure, Professor Greenfield lost a little blood, but he said it was

due to his own carelessness in running his eye against Professor Sullivan's head, and it satisfactorily appeared that if he was guilty of any offense it was only that of embracery. "Hugging" is a very serious offense among English barristers, but it does not count among men of science.

NOTES OF CASES.

N Badenach v. Slater, the Supreme Court of

IN and hold that an explicit power to sell on

credit in an assignment for creditors does not avoid it. 7 Can. Leg. News, 392. Strong, J., observed: "I cannot agree that a clause which invests such a trustee with a discretionary power, which so far from being necessarily prejudicial to the general body of creditors is actually essential to their protection, renders the assignment invalid merely because it hinders and delays' them. It is to be presumed that the trustee will do his duty; in other words, that he will execute the trust in the interest of the creditors exclusively, and that he will not sell on credit unless it is for their benefit that he should do so. If he fails in his duty or proposes to act in contravention, his conduct can be controlled by a Court of Equity, who can also supersede him in the office of trustee. Supposing there are but a small body of creditors, and that the assignment is made to them directly without the intervention of any trustee, the property being admittedly less in value than the debts, there should be no reservation of an ulterior trust for the assignor, could it be said that such a clause as this conferring on them a power to do what they like with their own was void? Then what difference does it make

they lay down, to the effect that a debtor might with equal justice prescribe any period of credit which to him should seem fit, as that which the trustee should give upon sales of property assigned to him, as assume to vest in him a discretion to sell upon credit if such a mode of selling should seem reasonable and proper and in the best interests of the creditors. With the utmost respect for the high authority of the Court of Appeals for the State of New York, this seems to me to be equivalent to saying that to express an intent of vesting in the trustee authority and permission to exercise his best judgment by selling on credit, if such mode of disposing of the property should seem to be in the interest of the creditors whose trustee he is made, and to express an intent of divesting such trustee of al such authority, and to prescribe to him a rigid, unalterable course, which in the discharge of his trust he must pursue against the dictates of his own judgment, and against the will of the creditors whose trustee he is made, are one and the same thing. There are other parts of the reasoning upon which this judgment is rested which seem to me to lead to the conclusion, that delaying a creditor in obtaining satisfaction of his debt by the particular process of execution in a suit at law is equally a defeating and delaying of him within the prohibition of the statute as the vesting the trustee with author

clared for the debtor? To the amount of the debts the goods are still the property of the creditors, who through their trustees have the control and management of them for their own behoof. Then to say that the trustee may or may not in his discretion sell on credit, is but to say that he shall dispose of the property in the way most advantageous for the whole body of creditors." Gwynne, J., said: "To hold that this clause in the deed operates so as to compel the court to hold, as an incontrovertible conclusion of law, that the deed was not made and executed as in its terms it professed to be, for the purpose of paying and satisfying ratably and proportionately all the creditors of the debtors their just debts, but was made and executed with intent to defeat and delay such creditors, appears to me to involve a manifest perversion of the plain language of the deed, and such a construction of the clause in question is not warranted by any decision in the English courts or in those of the Province of Ontario, from which this appeal comes, and there is in my judgment nothing in it which so recommends it as to justify us in making a precedent by its adoption. * I have however carefully perused the judgments in the case of Nicholson v. Leavitt, so much relied upon by the counsel for the appellant, as it was decided by the Court of Appeals for the State of New York, as reported in 6 N. Y. 10, and also the same case as decided in the Superior Court of the State, and reported in 4 Sandf. 254. The Court of Appeals, when reversing the judgment of the Superior Court, seem to me to rest their judgment in a great degree upon a proposition which

* *

would be a reasonable and proper course to pursue in the interest of the creditors, and that the former is not within the prohibition of the statute is established in our courts beyond all controversy."

We cannot say that we are glad to see that Roderigas v. East River Savings Institution has at last found one friend. In Plume v. Howard Savings Institution, 17 Vroom, 217, it was held that a decree of the Orphans' Court, granting letters of administration, founded on a petition and proofs, presenting a colorable case of the decease of the alleged intestate, and as to his residence, cannot be called in question in a collateral proceeding. Beasley, C. J., said, obiter: "With respect to the authorities cited in the briefs of counsel, it is sufficient to say that they are conflicting, and that none of them ap pear to be strictly in point. In most, if not all of such cases, it was affirmatively shown that the alleged decedent was actually alive at the time of the issuance of letters of administration, while in the present case there is no reason for even surmising such to have been the fact. In almost all the instances cited in which the fact of the death of the alleged intestate was allowed to be shown in order to overthrow the administration, the tribunal granting it was held to be a court of limited and special jurisdiction. On the other hand, an authority to administer, granted even by such a court, was declared to be invulnerable to all collateral attacks, in the carefully considered case of Roderigas v. East River Savings Institution, 63 N. Y. 464; S. C., 20 Am. Rep. 555. The point decide was that a pay

ment by a debtor to an administrator duly appointed was valid, and a bar to a second action, although the supposed intestate was alive at the time, and the letters of administration were subsequently revoked for that reason. As we are dealing in the present case with the decree of a court of general jurisdiction, it is not necessary to affirm the doctrine of this reported case, though in passing it may not be out of place to remark that its reasoning, notwithstanding the adverse criticism to which it has been subjected, appears to be of great weight. That a conclusive efficacy should be given to letters of administration by whatever tribunal issued, so far as merely collateral impeachment is concerned, is a plain dictate of sound public policy, for few things can be more oppressive than to require the debtors of a person, who chooses so to absent himself as to give rise to a judicial conclusion that he is dead, to bear the burden of paying the debts they owe to such absentee, to his representative duly appointed according to legal forms, and at the same time to assume the risk of such payment being afterward declared to be invalid, on the ground that such absentee was still alive. The doctrine of the nullity of such grants of administration would also be attended by the further disastrous result of rendering the surrogate or other court of limited jurisdiction liable to be treated as wrong-doers for everything that should be done by virtue of such letters, and which might prove detrimental to the interests of the person supposed to be dead. But this question is not now before the court; for all that we are now called upon to declare is the doctrine already stated, that this decree of the Orphans' Court is not contestable in this collateral way." All the chief justices in the United States could not make us believe that a court can confiscate a live man's estate by decreeing that he is dead. The contrary has very recently been held in Thomas v. People, 107 Ill. 517; S. C., 47 Am. Rep. 958; and Devlin v. Commonwealth, 101 Penn. St. 273; S. C., 47 Am. Rep. 710. The Roderigas case stands solitary in its absurdity.

Two cases interesting to college students are decided in Maine. In Strout v. Packard, 76 Me. 148, it was held that in an action against several individuals for a joint assault, evidence of misconduct on the part of some of the defendants before and after the assault, tending to show a combination among them, should be limited in its application to those defendants against whom such acts of prior or subsequent misconduct are proved; it is not evidence against the other defendants. This was an action for hazing a freshman. The court said: "The declaration alleged a joint assault. The averment of a conspiracy was of no account except that under it it might be proved in any legal way that the hand which threw the coal carried into execution the purpose of the seven. Evidence of prior or subsequent misconduct on the part of some of the defendants was only admissible for the purpose of proving, as among them, the existence and character of the

combination or conspiracy alleged. The fact that a conspiracy exists, or the extent to which it goes, is not to be proved as against A., by the declarations or the acts of B., with which no connection on the part of A. is shown, and which do not appear to have been made or done in furtherance of a common design entertained by both. That a joint purpose of the seven was carried into effect by throwing the coal in this instance, was not to be proved by showing previous acts of combination and torts committed in pursuance thereof by three or four only. Precisely the limitation which the request contained was required in the legal statement of the case; that the testimony to misconduct on the part of some of the defendants before and after this assault, tending to show a combination among them, and offered and received only as evidence of the intention and purpose for which the seven defendants were out together that night, and what kind of acts and invasions of the Freshmen in their rooms were to be expected when parties were out on such an expedition, and so to indicate what kind of a concert of action subsisted between the defendants on the night when the plaintiff was hurt,' should have been limited in its application to those defendants against whom such acts of prior or subsequent misconduct were proved. The evidence was offered only for the purpose of proving the presence and the scope of a joint intent in the single act, whether there was on this occasion a common purpose among the several defendants and whether it extended to the throwing of such a missile under such circumstances. previous act of one was not evidence to prove this against another, who did not participate in that act. The mind of one is not to be revealed by the act of another, till some relation between the two is shown in the doing of that act. ** The existence of a conspiracy, as we understand it, is not in the first instance to be proved against one by the mere act or declaration of another, but beyond that, if the existence of the conspiracy were fully proved as to some of the defendants, that fact had no tendency to decide adversely to the other defendants the vital question whether they took part in that conspiracy, and in such a way, to such an extent, as to make them joint trespassers in this transaction."

The

In Sanders v. Getchell, 76 Me. 158, it was held that although the Constitution of the State provides that the residence of a student at any seminary of learning shall not entitle him to the right of suffrage in the town where such seminary is situated, this does not prevent a student gaining a voting resi dence in such place if other necessary conditions exist; he does not acquire a residence because a student, but may acquire one notwithstanding that fact. The court said: "It is clear enough that residing in a place merely as a student does not confer the franchise. Still a student may obtain a voting residence, if other conditions exist sufficient to create it. Bodily presence in a place coupled with an intention to make such place a home will estab