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tion of claimants who have not already filed their claims is invited to this notice.

"HAMILTON FISH, Secretary."

The following notice has also been given by the State department, namely:

"Notice is hereby given that by the terms of the treaty concluded on the 8th day of May, 1871, between the United States and Great Britain, all claims on the part of corporations, companies or private individuals, citizens of the United States, upon the government of her Britannic majesty, arising out of acts committed against the persons or property of citizens of the United States during the period between the 13th of April, 1861, and the 9th of April, 1865, inclusive, not being claims growing out of the acts of the vessels referred to in Article 1 of said treaty, generally known as the Alabama claims and which yet remain unsettled, are referred to three commissioners to meet in Washington for the examination, investigation and decision of such claims, as well as like claims on the part of her Britannic majesty upon the government of the United States. By the terms of said treaty, all such claims, whether or not the same may have been presented to the notice of, made, referred, or laid before, said commission, shall, from and after the conclusion of the proceedings of said commission, be considered and treated as finally settled and barred, and thenceforth inadmissible.

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"Robert S. Hall, Esq., of New York, has been appointed, under said treaty, agent of the United States, to present and support the claims on its behalf, and to answer the claims made upon it, and to represent it generally in all matters connected with the investigation and decision thereof before the said commission. Corporations, companies or private individuals, citizens of the United States, having claims against the government of her Britannic majesty, and coming within the terms of the above-recited provisions of the treaty, are requested forthwith to send to the agent above named, at the department of state, Washington, D. C., a statement of their respective claims, showing the name and residence of the claimant, the nature and amount of the claim, with a brief general statement of the time, place and circumstances of the transaction out of which the claim arose. It will be understood that the statement so invited is preliminary merely, and does not preclude the necessity of a subsequent formal memorial or statement, to be presented in conformity with such rules or regulations as the commission, on its organization, may prescribe. It is provided by the treaty that the commissioners shall meet at the earliest convenient period after they shall have been respectively named. It is expected that they will meet during the ensuing month of September. "HAMILTON FISH, Secretary."

tion. There are not a dozen lawyers in the country who take, or have access to-outside of State libraries -complete sets of the current American and English reports. The number of these reports is so large as to render it a very heavy burden, pecuniarily, to take them, and life is too short to justify an examination of all of their contents. With the aid of this digest a lawyer engaged in the examination of a question, or in the preparation of a case for argument, can very easily ascertain the current of adjudications on the subject outside of his own State, and avail himself of all the cases. The plan and execution of this volume are exceedingly good; indeed the arrangement-the rock on which so many digests founder-could hardly be better.

Is it not about time that these twenty-eight volumes were recast and consolidated into one work? It would certainly be a great convenience to the profession; and although the expense attending the consolidation would be large, we should suppose that its increased popularity and sale would justify the attempt.

A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union. By Thomas M. Cooley, one of the Justices of the Supreme Court of Michigan, and Jay Professor of Law in the University of Michigan. Second edition, with considerable additions, giving the results of the recent cases. Boston: Little, Brown & Company, 1871.

Illinois Reports, vol. LI, by Norman L. Freeman, Reporter. Springfield, 1871.

The most important decisions in this volume are the three or four growing out of the act to establish a park in the city of Chicago, and involving the question, whether the legislature has power to compel a municipal corporation to incur debts for local improvements without its consent. The act providing for the establishment of the park appointed a board of commissioners, and authorized this board to procure lands to be paid for by the bonds of the city, to be issued by the mayor, etc., on demand of the commissioners. The mayor, etc., refused to issue the bonds, and a mandamus was sought. The court refused the mandamus on the ground that the consent of the corporation was necessary to its incurring indebtedness of the kind.

Some of our readers may remember that a strenuous effort was made last winter by certain interested parties to have Mr. Freeman ousted from the reportership, or else to render his office a profitless one. We are glad to believe-though without information on the subject that the attempt was a failure. He is a thoroughly good reporter, and the laborer in such a field is justly entitled to all the income that he is likely to reap from his labors.

BOOK NOTICES.

United States Digest. Vol. XXII. By P. F. Burnham, Counselor at law. Boston: Little, Brown & Company, 1871.

This volume-the twenty-eighth of the United States Digest proper, and the twenty-second of the annual eries-contains an abstract of the decisions rendered in the courts of common law, equity and admiralty in the United States and in England during the year 1868. The general merits of the series is, or ought to be, so well known as to render unnecessary any commenda

BOOKS RECEIVED.

We have received the following books, which will be noticed at length at an early day:

A Manual of the Laws of Fixtures, by John Ward
Hill, LL. B. Second edition, revised and en-
larged. New York: Baker, Voorhis & Co., 1871.
A Treatise on the Common and Civil Law, as embraced
in the Jurisprudence of the United States, by W.
M. Archer Cocke, author of the Constitutional
History of the United States. New York: Baker,
Voorhis & Co., 1871.

Maryland Reports, Vol. XXXIII, by J. Schaaff Stockett, State reporter. Baltimore: John Murphy & Co., 1871.

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The Albany Law Journal.

ALBANY, SEPTEMBER 23, 1871.

THE MINORITY REPORT OF THE REVISION COMMISSION.

The most important legislation of the last twenty years, so far as law reform is concerned, was the act of 1870, providing for a revision of the statute law of this State, and it is greatly to be regretted that the commissioners appointed under that act have been unable to harmonize their views as to the manner in which the work was to be performed. We have heretofore published in this journal the substance of the report of the majority of the commission Messrs. Throop and Parker; and, also, the report of Mr. Waterbury, the dissenting member. Mr. Parker has retired from the commission since that report was made, and Mr. Stebbins has been appointed to fill the vacancy. As the retirement of Judge Parker left the commission equally divided, it is a matter of more than ordinary interest to know to which side Mr. Stebbins will adhere.

We purpose in this article to notice briefly some of the objections raised by Mr. Waterbury to the plan of the majority. We have no hope or desire to exhaust the subject, but shall return to it again hereafter.

Two things are patent upon the face of Mr. Waterbury's report-first, that the breach in the commission is of a character altogether too serious to justify a very strong hope for reconciliation; and, second, that the report itself was not prepared with that care and regard to logic that we should have expected at the hands of its author; and the latter point is the more remarkable, from the fact that the minority report was made some three months subsequent to that of the majority, and after the latter had been debated by the entire commission long and anxiously.

But, by marshaling the arguments that Mr. Waterbury has presented, there appear to be three principal objections to the majority report, which may be stated thus, in the order of their apparent importance:

I. That the majority propose to amend existing statutes to such an extent as to exceed the powers granted to them by the act under which they were appointed.

II. That the amendments which they propose to make are of such a character as to assure the opposition of powerful interests, which, by applying the usual means of influencing the legislature, will defeat the proposed revision.

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III. That the writer has an insurmountable object to the use of the word code as a designation of the principal or primary divisions of the revision, and incidentally to there being any primary divisions except the chapters.

Of these we will speak in the order stated. That there may be an honest difference of opinion as to the scope of the act providing for the revision, and of the powers of the commission under it, we can very well understand, but that the majority of the commission design deliberately to exceed their powers and thereby violate the law no one can for a moment believe; and yet this is the impression conveyed—no doubt unintentionally-by Mr. Waterbury's report. On page 3 of his printed report he says: "In my opinion such amendments should be restricted to those which are expressly authorized by the act under which we were appointed; while my associates think that they should be upon a more comprehensive basis." Again, on page 4, after denying that "a large portion of the legal profession and the general public' expect us to report a series of codes," he says: "I could not believe that reasonable men expect us to depart from the instructions of the legislature; but if any do, I deem it better to disappoint them than virtually to disobey the statute from which all our powers are derived." And again, on page 7, he says: "In dissenting from the report of my associates, I am not forgetful of the general rule that the majority should control, and that the office of the minority is to accept the result. This rule, however, loses its force when a principle is involved; and I hold the duty of obedience to the law under which we were appointed to be matter of principle."

Now, the obvious purport of all this language is, that Messrs. Throop and Parker, for certain reasons, had deliberately planned to disobey the statute. Of course, we do not say or suppose that Mr. Waterbury meant this, but the language chosen conveys the impression.

But, passing this by, let us examine Mr. Waterbury's first objection on its merits. The act of 1870, chapter 33, provides in substance as follows:

1. The commissioners are to "revise, simplify, arrange and consolidate all statutes," etc.

§ 2. They are (1) to bring together all statutes and parts of statutes, etc.; (2) to omit redundant and obsolete enactments; (3) to make such alterations as may be necessary to reconcile contradictions, supply the omissions, and amend imperfections of the original text; (4) to arrange the revision under suitable divisions and subdivisions.

§3. They are to suggest to the legislature (1) the contradictions, omissions and imperfections of the original text and the modes in which they have reconciled, supplied and amended the same; (2) “such statutes or parts of statutes as in their judgment ought to be repealed, with their reasons for such repeal;" and (3) they "may also recommend the passage of new acts as such repeal may in their judgment render necessary.”

It seems to us that this is about as broad a commission as could be given. It is in fact even broader than that given to the original revisers by the act of April 21, 1825 (5 Edmonds' Stat. at Large, 497), for

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the grant of power is in the same language and the restriction placed upon the original revisers is omitted. Indeed, in this age and country the power to "revise" imports, by common understanding, a grant of power to at least suggest all needful amendments not in conflict with the fundamental policy of legislation; and a much broader meaning was given to it by the same legislature which passed the act for the revision of the statutes. A joint resolution was at that session passed "to revise the laws for the assessment and collection of taxes." (Laws 1870, p. 2149.) The report of the commission appointed under that resolution recommends and proposes about as radical a change in the existing laws as could well be imagined. If Mr. Waterbury's theory, that a power to "revise" means simply a power to segregate, be correct, these tax commissioners must have taken a most extraordinary departure from the line of their duty.

It did not escape the attention of Mr. Waterbury, that the act under which he was appointed followed literally the act of 1825, under which the revisers reported and the legislature adopted more radical and extensive changes in the recognized principles of civil and criminal jurisprudence, and the practice and proceedings of the courts, than had ever before been effected by ordinary and peaceful legislation. But he must have strangely neglected to study the history of the act of 1825, or he would not have committed himself, upon paper, to the extraordinary statements which are found in his report, respecting the action of the revisers which led to such a result. For he tells us, in substance, that they exceeded the letter of the statute defining their powers, but the necessity of doing so was so urgent, and the proposed changes were so beneficial, "that their work was readily accepted by the simple-minded and honest-hearted patriots of the day; " in other words, that they broke the law, but were forgiven for having done so because they broke it so well.

Now Judge Edmonds has saved any investigator the labor of hunting through the journals, documents and session laws of the period, in order to learn accurately the history of the revision of 1830 (so called), and the majority report of the present commission mentions that fact and expressly calls attention to his resumé. By turning to the 5th volume of Edmonds' Statutes at Large, pages 493 and onward, some very striking coincidences between the early stages of the last and of the present revision will be discovered. In 1824 an act was passed appointing James Kent, Erastus Root and Benjamin F. Butler to revise the statutes; but Chancellor Kent declined the appointment and John Duer was appointed by the governor in his place. The commission thus constituted found itself unable to act harmoniously; General Root insisting that the statutes should be revised upon the plan of the revisions of 1801 and 1813, namely, in independent chapters, consisting of the

existing enactments, with such changes only as might be necessary to consolidate them and supply manifest oversights, etc.; while Messrs. Butler and Duer preferred the " new and more scientific method," which was afterward adopted. At the session of 1825 the legislature adopted a resolution calling upon the revisers for information as to their progress, etc., "and also what alterations, if any, were necessary in the law directing the revision to attain more effectually the objects for which it was enacted;" in pursuance of which Messrs. Duer and Butler made a report, which will be found at length in 5 Edmonds, 494 496. It is sufficient to state here that it sets forth with great minuteness the leading features of the plan which they propose to pursue, not only as to arrangement, etc., but as to the general character of the changes and amendments which they propose to make, and asks for an additional power for that purpose. The act of 1825 was passed in consequence of this report and (in its essential features) in the very language employed by Messrs. Duer and Butler in their request for additional power, and the act of 1824 was repealed, Mr. Wheaton being appointed by the new act, in place of Gen. Root. As already stated the act of 1870 is essentially a transcript of the act of 1825.

At another time we shall notice the other two objections urged in the minority report.

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THE NEW YORK CITY IMBROGLIO. The case, in the supreme court of this State, of Foley v. The Board of Supervisors et al. is worthy of more than a passing notice, involving, as it does, the municipal government of a city so populous and wealthy as New York. At the present time, the political incidents of the matter so overshadow and obscure its purely legal elements, that it is somewhat difficult to understand, properly, the merits of the litigation, or the real position of the parties. The nominal plaintiff, for Mr. Foley acts but as a figure-head, representing the tax payers of the city, brings suit against those in charge of the city government, claiming that they have, in the administration of public affairs, been guilty of gross breaches of duty, and asks that they be restrained and enjoined from proceeding further in their alleged maladministration until the termination of the suit. On the 7th of September Mr. Justice Barnard, of the first district, issued, ex parte, a temporary injunction, of the character asked for, and included therein an order to show cause, on the 11th, why it should not be continued until the determination of the action. On the 11th the real struggle began, and, as was to be expected, excited great local interest. The arguments of counsel were given, more or less, to personal crimination and vindication, but the hearing was brought to a close on the 15th, when the court announced its decision, sustaining substantially the demand of the plaintiff, and granting an injunction of like purport as before.

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This injunction, while not restraining the city government from paying out of moneys already in the treasury, for certain legitimate and necessary ordinary expenses, such as for the maintenance of the public parks, police, water-works, etc., forbids the use of the public funds for any other purposes. It also prohibits the raising of taxes until certain acts are performed, which, though required by law, have been heretofore neglected by those in power. It also prohibits the further issue of city bonds, or the increase of the city debt. Justice Barnard holds, that the plaintiff is a trustee for the people, and has a right to commence the action (the right being claimed, we suppose, under the act of 1864). Some points were also raised and passed upon, as to the constitutionality of certain provisions relative to the city of New York, which, however, only partially affect the merits, and are of little general interest.

The grounds upon which this remarkable order was claimed and allowed are briefly these. By the laws applicable to the city of New York, and to municipalities generally, a person who is a member of a common council, or board of supervisors, or other body of like character, is prohibited from being interested in any contract authorized by the body to which he belongs. It is alleged by the plaintiff, which allegation is, however, denied by the defendants, that the chief officers of the city government, in disregard of the law, formed themselves into associations, with the object of securing to themselves large sums from the city treasury. Two newspapers, one printing and one stationery association, are particularly named, whose combined receipts from the city are stated to be $1,084,146,53.

It is further alleged, and denied, that fraudulent claims to the amount of many millions have been paid without authority, and in violation of law, for services never rendered and materials never furnished. The other charges are, that the city indebtedness has been unlawfully increased to the enormous amount of one hundred and forty-seven millions of dollars, nearly one hundred millions having been added within the last two years; that assessments have been made and taxes levied without authority; and that in all their transactions the heads of departments and their subordinates pay no attention whatever to the provisions of a statute passed by the legislature in 1871, and known as the two per cent act (chapter 583). The principal charges are made against three individuals, who constitute what is denominated by that act the board of apportionment.

What the ultimate result of the struggle may be cannot now be determined. The plaintiffs have at the outset obtained a substantial advantage, which has apparently been greatly increased by the inharmonious action of the defendants. The injunction may be set aside or modified by the appellate courts, but the action of Justice Barnard has produced a moral effect, which the overruling of his decision on

technical grounds will but little influence. It has determined these things: that the courts will, when properly addressed, interfere in the affairs of municipal bodies, and, so far as lies in their power, right any wrong that is found to exist, and that wealth, position and political influence will not shield the transactions of public officers from legal investigation.

CURRENT TOPICS.

Since the last article on "The Minority Report of the Revision Commission" was written and in type, we have received the cheering intelligence that the commissioners have unanimously agreed upon the principles which are to guide them in the future discharge of their duties, and that there is a fair prospect of their hereafter working in harmony.

The trial of the French communists by military instead of civil courts is, according to the London Law Times, considered by some writers as a gain to the prisoners, but, if the manner of procedure in the court at Versailles is indicative of what prevails generally, the accused have hardly a fair chance. One of the judges of this court is given to addressing the prisoners as assassins. The counsel for the prisoners are of little help, as they make no attempt even at cross-examination, but content themselves with declaratory attacks upon every body connected with the prosecution. But then the prosecuting counsel is just as useless to his side, as he does not trouble the evidence, but depends on the power of Billingsgate to carry his points. Were it not that the lives and liberty of large numbers of men and women depended upon these ridiculous performances, we might laugh at them. The whole thing is an illustration of the impossibility of maintaining character and dignity among the lawyers under a despotic government.

There are many objections raised to the code by common-law practitioners-that it is crude and imperfect; that it only seems to simplify legal procedure, but does not really do so; that the old system, though somewhat faulty, is about as perfect as we can over hope to have, etc., etc. We believe, however, that very much of the opposition to the adoption of a code comes from the fact that such a measure would render comparatively useless a certain knowledge, the acquisition of which has cost its possessors much time and labor. We all remember the old-style stage-coachman, who could never be brought to see the superior advantage of railways as means of communication. He would produce various reasons why the new mode of traveling could not succeed, and show, by lucid argument, the greater excellence of the old. He advocated, however, his wishes rather than his convictions, because he saw in the impending change the destruction of his means of livelihood. So, too, with our com

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William Whitaker, who was a serjeant-at-law and king's serjeant about a century ago, was once conducting an examination at the bar of the house of lords. An objection being taken to some question, counsel were ordered to withdraw, and there was a deliberation of two hours. Nothing was resolved on, and, when he was re-admitted, he was requested to put the question again. He answered cleverly: "Upon my word, my lords, it is so long since I put the first question that I entirely forget it, but with your leave I'll now put another."

Serjeant Hill, of the greatest ability in black letter law, was a good mark for Lord Mansfield. "I have seen the serjeant," says Hawkins, "standing up in the court, immovable as a statue and looking at no object, and arguing in support of his client's cause, so wrapt up in the workings of his own mind as seemingly, at least, to be insensible to any objects around him. In the midst of his argument, which was frequently so perplexed by parenthesis within parenthesis as to excite the laughter of the whole court, Lord Mansfield would interrupt him with: 'Mr. Serjeant! Mr. Serjeant!' He was rather deaf; the words were repeated without effect. At length the counsel sitting near him would tell him that his lordship spoke to him. This roused him. Lord Mansfield would then address him with, 'The court hopes that your cold is better.'"

It is amusing to see how little it takes, sometimes, to convince a man that a joke is first rate. Witness the following extract from Woolrych's "Lives of Eminent Serjeants," which abounds in anecdotes of a standard character, and a few not particularly brilliant:

"Smith, a name derived from the Hebrew, notwithstanding its endless and varied repetitions, afforded the sergeant (Wilkins) an opportunity of making a good-humored jest at the expense of one who bore that name. It is customary to propose a new comer for the men of the circuit, and the candidate was a Smith. If we could tack on the leading jovial countenance to the jest which he uttered upon the occasion, we might do some small amount of justice to it. Slowly he reared his portly frame. 'Smith, Smith, Mr. Smith!' He then looked round complacently upon all. I think I have heard that name before." "

Every body has certainly heard this witticism before, and it is worth while to know who has the honor of having originated it.

GENERAL TERM ABSTRACT. FOURTH DEPARTMENT.

COMMON COUNCIL.

Parliamentary law: local improvements.-This is a motion for an order reversing and annulling all ordinances, assessments and other acts of the common council relating to a local improvement known as a "pipe sewer in Savannah street, in the city of Rochester; also, enjoining further proceedings in relation thereto, and declaring the assessments therefor null and void.

At a meeting of the common council of Rochester, October 5, 1869, a resolution was adopted declaring it to be expedient to construct a sewer through Savannah street in said city, declaring that the expense should be borne by the property benefited, and also describing the property benefited, and directing the clerk to publish a notice requiring all persons interested in said improvement and opposed to the same to attend before the common council on the 19th October. The clerk duly published the required notice. On the 19th October the parties interested in the said improvement were heard by the common council, and an ordinance directing the construction of the sewer was lost; the next evening, at another meeting, the vote of the previous evening, by which the ordinance was defeated, was, on motion of one of the aldermen who voted with the minority on the previous evening, reconsidered and the clerk again directed to give notice to persons interested that they would be again heard on the 2d November. On the 2d November there was no meeting of the council, but on the 3d November an ordinance directing the construction of the sewer was duly passed, three-fourths of all the aldermen voting in the affirmative. The local assessment was made by the city assessors.

Held, that it was unquestionably competent for the board to reconsider the vote by which the ordinance of the 19th October was lost; that the question as to the enforcement of, or dispensing with, the parliamentary law requiring that any motion to reconsider must be made by one who voted with the majority on the motion proposed to be reconsidered, rests exclusively in the discretion of the body whose action it is proposed to reconsider, and no other tribunal has the right to treat such a reconsideration as void; the members of the body alone have the right to object to the violation of parliamentary rule. That the description in the clerk's notice was sufficient. That the depth under the surface that it is proposed to lay the pipes is no necessary part of the description. That, if the sewer is not low enough, the owners of property are not benefited and cannot be assessed. That the failure to give the necessary notice for the meeting of November 3 does not invalidate the proceedings; the persons interested had had one opportunity to be heard; the charter provides for but the one notice, and it was purely a matter of discretion whether another hearing should be allowed. That the provisions of the charter prescribing the length of notice to be given, by the assessors, of grievance day on local improvements, and by the treasurer, of the receipt of the assessment roll by him, are directory merely, and the failure to comply with the statute does not invalidate the proceedings. Certiorari quashed, with costs. The People ex rel. Locke v. The City of Rochester.

COUNTY COURT.

Jurisdiction: pleadings.- Appeal from order overruling demurrer.

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