the action of the company was not prompted by the principles of honesty.

Vice-Chancellor Bacon has given general satisfaction by his decision that the executrix of Lady Lytton was not entitled to publish the late Lord Lytton's love letters to his wife before the days of their disagreement. This venerable judge is as sound a lawyer as any man on the judicial bench, and has the merit of being extremely entertaining. Amongst his peculiarities is the correctness of his English style, for this is not a common characteristic of the judges. Lord Coleridge is always elegant in his diction, and Mr. Justice Stephen is severely correct when he speaks deliberately, but the majority of the judges are, by reason of an affection for hanging sentences, the despair of the reporters. So much is this the case that the reports, which purport to be taken verbatim, cannot do more than represent the substantial meaning of judicial observations. But slipshod style and inarticulate pronunciation are fiercely mocked by Vice-Chancellor Bacon, who is apt to say, "he may be talking double Dutch, but English it is not." Moreover he is a great stickler for old customs, and objects strongly to that anomalous thing, a bearded barris

Editor of the Albany Law Journal: "Attentive readers of the opinion of Mr. Justice Field (U. S. Cir. Ct., Ninth Circuit) in the matter of Look Tin Siug, reported in the last number of the JOURNAL, will not fail to remember that his honor limits the words 'subject to the jurisdiction' in the first section of the fourteenth amendment, to except from citizenship only children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. But in the Slaughter House case, 16 Wall. 36, Mr. Justice Miller delivering the opinion, the court say: 'The phrase, 'subject to its jurisdiction,' was intended to exclude from its operation children of ministers, consuls and citizens or subjects of foreign States born within the United States.' (The italics are mine.)"

I clip the above from a communication in your JOURNAL of the 22d inst., signed "Alex. Porter Morse." He is evidently a very inattentive reader of the opinion of Mr. Justice Field, to which he refers, or he would not have stated that the justice had limited the words, "subject to the jurisdiction" of the United States in the fourteenth amendment, so as to except from citizenship only children born in the United States of persons engaged in the diplomatic service of foreign governments.

So far from limiting the words to such persons, the justice also says that they except from citizenship persons born on a public vessel of a foreign country, whilst within the waters of the United States." He

also extends their application to "persons who, though born or naturalized in the United States, have renounced their allegiance to our government," expatriated themselves, and became citizens of a foreign government. It is to such subjects that the language of Mr. Justice Miller, in the famous Slaughter House cases applies.

It would be a very strange state of things, if all the children born in the United States of foreigners, who had never become naturalized, were aliens. Probably more than a million of citizens of the United States are so only from the fact of their birth here, their parents having been foreigners who were never naturalized. The doctrine laid down in the opinion in question goes a little further than that contained in the revised Code of Italy on this subject, referred to by your correspondent, that "the child of an alien is an alien." The child of an alien born in this country, as emphatically enunciated in Justice Field's opinion, is a citizen; entitled to all the rights and privilges of such a status, except in the cases specially mentioned. GEORGE O'DOHERTY.

WASHINGTON, Nov. 22, 1884.

BUSH V. LATHROP.

Editor of the Albany Law Journal:

The Supreme Court of Nevada in Haydon v. Nicoletti, 30 A. L. J. 386, cites and follows Bush v. Lathrop, 22 N. Y. 547. The exact status of this case in New York is an interesting study. In Moor v. Metropolitan Bank, 55 N. Y. 41 (opinion by Grover, J.), the Reporter head-notes the case as overruled. In Greene v. Warnick, 64 N. Y. 225 (opinion by Earl, J.), the court quotes Judge Allen's opinion in Schafer v. Reilly, 50 N. Y. 61, approving Judge Denio's opinion in Bush v. Lathrop, as a just exposition of the law as well upon principle as upon authority." I have followed up Bush v. Lathrop somewhat, and am inclined to think (from the reports) that Judge Grover, who gave the opinion as above, carried a kuife for that case. I hope some correspondent of yours will give us the benefit of his investigations about it.

A CORRECTION. Editor of the Albany Law Journal:

There are typographical errata in a communication written by the undersigned, and published in the last number of the JOURNAL, which I desire to correct. Referring to constitutional provisions and to statute law in the United States, I said that there was "inconsistency and inequality.” The types have it "irregularity," which may be an appropriate term, but it was not in my mind. Again, "dominant northern States" may not be as intelligible to the casual reader as "dominant modern States." The substitute of “that” for "than" in concluding paragraph is obvious. Very truly yours,

ALEX. PORTER MORSE. WASHINGTON, D. C., November 24, 1884.

NEW BOOKS AND NEW EDITIONS.

BISHOP ON INSOLVENT DEBTORS.

A Treatise on the Common and Statute Law of the State of New York relating to Insolvent Debtors, including article first, second and third of title 1, chapter xvii, of the Code of Civil Procedure, and the law of voluntary assignments

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

sory examination, unfortified by practical resort, we deem it to be well executed and likely to prove useful. It does not embrace the subject of appeals. It cites three thousand cases, and is well printed. We do not hesitate to recommend it, for it occupies a place by itself.

THE

COURT OF Appeals DECISIONS.

THE following decisions were handed down Tues day, Dec. 2, 1884:

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 dol lars 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.

to

e

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 fracture, yet I have great doubt whether any person will submit to that operation for the purpose of strengthening his ribs."-The American Law Regier for November contains a leading article on Powerof partners to withdraw at will from partnerships tered into for a definite period, by Benjamin F. Ret: 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.

OUR

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.

* *

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

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

*

*

'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 tak ing 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