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Hutchinson v. St. Paul, etc., R. Co

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Learned v. Tillotson..

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Ihmseu v. Lathrop....

Importers', etc., National Bank v. Littell..

Independent School District v. Hall..
Innis v. Oil City Boiler Works..
Insurance Cos., Matter of.
Ivins' Appeal

Kerrick v. Stevens

King v. Ohio, etc., R. Co

Knapp v. Sioux City & P. R. Co
Kuight v. Town of Ashland..
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New Castle, etc., R. Co. v. Simpson..

New England, etc., Co. v. Sanford.

Newman v. Nellis

Newrath v. Hecht..
Neyer v. Wheeler...
New York & Harlem R. Co., Matter of
New York Infant Asylum v. Roosevelt..
Niver v. Crane....

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Noel v. Kinney.
Norris v. Corkhill..

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Northern Liberty Market Co. v. Kelly.
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Peters v. Railroad Co

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Soule v. Frost......
Spanogle v. Doane..............................................................
Stadler v. Grieben.
State v. Ambler
State v. Barrows............................................................................
State v. Bixler.

State v. Board of Education.

State v. Davis....
State. Fleming..
State v. Gordon
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State of Tennessee v. Whitworth
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Steele v. United States
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Stephenson v. Stephenson.
Stockes v. N. J. Pottery Co........................................................................
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A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

The Albany Law Journal.

ALBANY, JANUARY 8, 1885.

cluding the Clayton-Bulwer treaty and Professor Lawrence's presentation of the British arguments. The matter was hardly in print before the news of the Nicaraguan treaty reached us. The news however confirms all we then said to the effect that public discussion would soon be directed to this subject, and to the rules of international law, claimed to be relevant to the American canals. The London Times and the Pall Mall Gazette have already protested, as we learn by cable to the New York Times, against any violation of the Clayton-Bulwer treaty, while the St. James Gazette says that the powers whose representatives are now assembled at Berlin are directly interested in the Nicaraguan treaty. It may be that this treaty is only a counterblast of the administration against Mr. Blaine's pretensions to the exclusive advocacy of our national policy, but if it is what we presume it is, a genuine assertion of the paramount rights of the United States in continental questions, no good American will admit, without considerable reflection, the claims of the British to a joint control of the contemplated canal. There never was a time in our history when a knowledge of international law was so important to our leading men as now, and there never was a nation in history to which international law afforded so many important illustrations as to this country, with its peculiar inter-State relations. The time is not far distant when our States will have to meet in convention in order to adopt some common plan of codification, or our commercial intercourse will be as much fettered as were the States of Prussia in the days of Frederick the Great, our central government being powerless, under the Federal Constitution, to meddle with private law. Had New York State adopted the Civil Code, Japan and China would both have adopted it instead of the French Codes which now VOL. 31-No. 1.

Europeanize instead of Americanize them. Truly the code question is a far-reaching and all-important one to this country, and to this State as the foremost State in population and material resources.

CURRENT TOPICS.

Judge Cooley's paper in the December number of the North American Review seems to invite discussion

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We recently called attention to the very great and notice, for it is from the pen of one of our most

grave problem in the science of politics. When Judge Cooley departs from the arena of municipal law, in the constitutional branch of which he is certainly an acknowledged master, and discusses the relations of labor and capital to the law, he no longer speaks ex cathedra, and all of us are at liberty to differ from either his reasonings or his conclusions. It is a most noticeable fact that in this essay Judge Cooley discusses certain great elements of the law without precise regard to the value of several technical terms, the import of which is settled beyond controversy. This disregard is however rather the fault of his school than that of this writer: All those who consider themselves disciples of the Blackstonian school of common law persist in adopting Blackstone's errors, and in confusing public opinion, popular standards and other ethical views with custom as a source of law. That judiciarymade law should be dictated by public opinion everyone will concede to be a dangerous sentiment for a popular government. That well marked custom should, on the other hand, be regularly converted into law, at certain epochs, is a recognized phase of the development of any body of law. But that popular opinion should be mistaken for custom is a confusion of the two divergent conceptions and is fraught with great peril to the liberty of a republic. Yet many common lawyers seem to resent being forced to rigorous speech. Like the enemies of Socrates they prefer the loose flowing language of indefinite associations to precise valuations of words. The importance of precise reference to custom as a source of law is apparent in the North American article to which we now allude, and for this reason it deserves a more emphatic refutation than we are able to give it in so short a space. Judge Cooley thinks that the common law is still in

formative process, and that popular legislation, as he calls public opinion, is all-powerful in determining the decisions of the courts on moral questions of public interest. He cites the Chicago Warehouse cases and several others as evidence, and frankly avows that the courts of judicature have even reversed their former judgments at the instance of public dictation. This seems to us a very mischievous doctrine, calculated to destroy the entire authority of our courts. Yet it is very prevalent, and this is one reason why we prefer to relegate law-making to the legislature proper. Let the courts adhere to their true functions, the application and interpretation of law. Let the legislature, on the other hand, enter upon an era of better legislation, consulting more frequently those who are versed in the science of legislation. Judge Cooley's article shows plainly the necessity of a new departure unless our courts are to usurp the functions of the legislature and deal out to us popular sentiments, thinly disguised, instead of the law that fixed and immutable law which alone should proceed from courts of justice. It is now become a question whether we shali have law from the legislature or law from the courts made as Judge Cooley says it is.

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In a recent discussion in the New York MedicoLegal Society, on Madness and Crime, Mr. Austin Abbott, speaking of "emotional insanity," very wisely said: "I believe that those qualities of selfrestraint which mark the highest notch of civilized character have come largely through the existence and administration of the penal sanctions of law, against men who but for those penal sanctions would have had much less capacity of distinguishing between right and wrong, and no power to restrain the impulses of nature. If this be so, the way to increase immensely the mischiefs of uncontrollable impulse in the community is to put an end to punishment for acts committed under uncontrollable impulse, and the way to increase those faculties by which we control impulse is to maintain the punishment which the law inflicts for criminal acts, irrespective of the attempt to prove such impulses as a justification or excuse. It may well be that the time will come when penal justice will be put on a better footing, but the refusal of the law to recognize such justification or excuse is made in view of the present state of public opinion, in view of the present imperfect adaptation of tribunals of justice to the investigation of uncontrollable impulse, and we ought to add, in view of the present condition of society. I do not think that medical men appreciate generally the power which the existence of the law and its penal sanctions exercises on the lawless in aiding the control of what would otherwise be uncontrollable impulse. Those who are familiar with the administration of criminal law, those who are charged with its administration, those who have the responsibility of maintaining public peace and order, will not, I think, deem it an exaggerated statement to say that in all

probability if those salient assistants to self-control, which came from the existence of the penal law, were taken away, New York would be a ruin in a week, from what would, without those sanctions, be called the uncontrollable impulses of reckless, lawless and criminal classes."

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In the case of Graff v. Kennedy, Judge Brown, at special term of the Supreme Court of this State, has recently held that husband and wife may form a valid copartnership with reference to the wife's separate estate. It is said that this question has never been passed upon by a general term or the Court of Appeals of this State, but that Judge Westbrook at special term has held the contrary. Judge Brown says: "I am unable to see the distinction between a contract which a married woman enters into with her husband, under which he manages her separate estate or business as her agent, and a contract of partnership, which is nothing more than a mutual agency by each in reference to the common business of both.' 'By this section the Legislature intended to confer upon married women the power to do three things: first, to bargain, sell, assign and transfer their separate personal property; second, to carry on any trade or business; third, to labor on their sole and separate account. The first two a married woman had no power to do under the common law; the last she could do, but the wages for her labor belonged to her husband. To confer upon her the power to carry on a trade or business was to give her a right, that prior to the passage of this act, she had not enjoyed. To declare that she might labor and perform services would have conferred no new right upon her, but to declare the wages of her labor to be free from the control of her husband was to confer upon her a new and substantial right, and to accomplish this the Legislature declared that she might perform labor and services upon her sole and separate account.'" In Bitter v. Rathman, 61 N. Y. 512, the commission of appeals held that a married woman could contract a valid partnership with third persons, although she held her interest in the firm upon a secret trust for her husband, and that she could maintain an action for dissolution to protect her apparent rights, and that she was liable as a partner to the creditors of the ostensible firm. The court say: "If the wife has the capacity to contract with the husband with reference to her separate estate, there is no limit put upon the power in the statute. The courts of this State have decided that she has such power, and I am unable to see by what principle it may be upheld by one class of contracts and denied as to others." And in Scott v. Conway, 58 N. Y. 619, it was held that a married woman, apparently carrying on a separate business, cannot interpose as a defense against creditors that she had a dormant partner, namely, her husband. This was by a divided court. By chapter 381, Laws of 1884, it was provided that a married woman may contract as if unmarried, but "this act shall not

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