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F. Pittsford, 7 Vt. 158; Patterson v.Colebrook, 29 N. H. | tachment creditor pursues his remedy to judgment, 94; Hutchinson v. Inhabitants of Methuen, 1 Allen, 33. and then transfers his rights under the judgment to a

I believe it is better and safer to hold in accordance third person, and pending these proceedings the with the authorities last cited. The rule that the facts | debtor makes an assignment, and a second attachmust be shown, and not the opinions of the witnesses, ment is sued out, returnable to the same term, the atshould be adhered to in all cases where the nature of tachments will participate pro rata in the proceeds the thing to be described is such that opinious are not of the property attached. But if, as in this case, the absolutely necessary to correctly inform the jury of third person who had acquired the first judgment also the fact in issue in relation to such thing or object. / purchases the rights of the debtor's assignee, he then This is a case where there can be no great difficulty in holds the position of both debtor and creditor. There that respect. What is a hindrance, rather than an aid will be a merger of these two characters, his lien will to the jury should be excluded, especially when it is cease, and he will not participate in the attachment but the conclusions of witnesses upon facts from lien. Abbott, in his Law Dictionary (vol. 2, tit. “Mer. which no one but the jurors have any right to draw ger,”') says: “Merger is the equivalent of confusion inferences.

in the Roman law, and (when used with reference to The Superior Court judge was right in excluding demands) indicates that when the qualities of debtor these offered opinions, but in other respects, as noted and creditor become united in the same individual, by the chief justice, I think he was in error, and there there arises a confusion of rights which extinguishes fore join in the reversal of the judgment below. both qualities; whence also merger is often called ex

tinguishment.” Bouvier, in his dictionary, vol. 2, tit.

*Merger," under the head of “Rights,” says: “Rights NEW YORK COURT OF APPEALS ABSTRACT.

are said to be merged when the same person who is ESTOPPEL-JUDGMENT – WRONG DECISION.-Where bound to pay is also entitled to receive. This is more in a former action the appointment of plaintiff as gen- properly called a confusion of rights or extinguisheral receiver was alleged in the complaint, and denied

ment. When there is a confusion of rights, and the in the answer, and the same issue was framed and debtor and creditor become the same person, there can tried as in this, the legality of the appointment is res

be no right to put in execution.” The same rule is adjudicata, and cannot be the subject of review upon recognized in Pomeroy's Equity, vol. 2, SS 789, 790. this appeal. Even if the decision was wrong, it does The extinguishment is complete at law, though in not impair the effect of the former judgment as a bar equity, under certain circumstances, a merger or exto the right to raise the same question. Nor does it tinguishment will be prevented. Id. Ill. Sup. Ct., change the effect of the judgment, because the amount

May, 1886. Donk v. Alexander. Opinion by Scholrecovered was not sufficient to entitle the plaintiff to field, C. J. appeal, as a matter of right, from the General Term CARRIER — NEGLIGENCE - EJECTING INFANT TRESto this court. June 1, 1886. Griffin v. Long Island PASSER.–A street car of the defendaut was being R. Co. Opinion by Miller, J.

driven by a boy, at whose invitation several other FRAUD-MISREPRESENTATIONS OF VALUE OF PROP- boys got on the car, riding on the front platform. The ERTY OF STOCK COMPANY-AS TO BOUNDARY OF REAL driver, who was also conductor, was inside the car at ESTATE-QUESTION OF FACT.-(1) A falso and fraudu- the time, cautioned the boys to be careful, and afterlent representation as to the property of a corporation ward twice ordered them to leave the car.

He finally of material facts which necessarily affect the value of came toward the platform in a threatening manuer shares of stock therein, constitutes a cause of action

and ordered the boys to get off. The boy who was against a party inducing another, by means of such driving, attempting to tighten the brake, was pushed fraudulent misrepresentations, to purchase shares, away by the driver. The brake was loosened, and the quite as much as if the purchase had been of the prop- speed of the car increased, just as one of the boys, beerty of the company with regard to which the repre- coming frightened, either jumped or fell off the car, sentation was made. Nor is it material in either case and was instantly killed. Held, that the defendant that the purchase price of the property, or the money

was liable to the parents of the boy, his death being advanced, on the faith of the representation, be caused by its employee's negligence. That the defend paid to the party making it for his individual benefit. ant's driver or conductor was grossly begligent in If known to be false, and made with intent to deceive compelling a child of twelve years of age to jump, and and defraud the person who is thereby induced to pay

that backward, from the platform of a moving car, no out his money, the person guilty of the fraud is liable one can well deny. Even the boy Salpack knew be:to respond in damages on the same principle on which

ter than that, and did what he could to prevent the one person is held liable in damages for fraudulently accident. To discuss therefore evidence which giving a false recommendation by which another is in throughout shows a reckless carelessness, of which no duced to give credit to a third party. (2) The pur

man of ordinary discretion ought to have been guilty, chaser of an interest in real estate may rely upon the

would be to no purpose; hence we may regard the owner's representations as to its boundary line, there case as fully disposed of when we have made a brief being nothing to indicate to the purchaser at the time

statement of the law which ought to have governed of inspecting the premises before purchase that the line

the court below. It was a mistake to hold that bewas different from that described by the owner; and

cause the child was a trespasser, it could therefore be the purchaser may maintain an action for damages ejected in a manner which endangered its life or sustained by reason of such false and fraudulent rep- limbs. Pennsylvania R. Co. v. Lewis, 79 Penu. St. 33 : resentations. (3) Where there is a conflict in the evi- Hydraulic Works Co. v. Orr, 83 id. 332; aud Phildence as to whether the representations were frandu-adelphia & R. Co. v. Hummell

, 44 id. 375; Pittsburgh, leutly or mistakably made, it becomes a question for A. & M. P. Ry. Co. v. Caldwell

, 74 id. 4:21, and Same v. the jury. June, 1, 1886. Schwenck v. Naylor. Opinion Donahue, 70 id. 119. It is very true, as was held in by Rapallo, J.

Hestonville Pass. Ry. Co. v. Connell, 88 Penn. St. 5:22,

and Philadelphia & R. Co. v. Hummell, supra, extra ABSTRACTS OF VARIOUS RECENT DE

precautions are not required in anticipation of the inCISIONS.

trusions of trespassers, even though they be children;

but when they do so intrude, and are knowu to be in ATTACHMENT--MERGER - PURCHASE OF JUDGMENT an improper place, they must not be so wholly negAND RIGHTS OF DEBTOR'S ASSIGNEE.--Where an at- lected as to endanger their lives or limbs. Any other

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doctrine would so illy accord with Christian civiliza- which a person passing fell into the same, and retion as to render its maintenance impossible. It fol- ceived injuries for which au action was brought lows from what we have said that the court below, against the owner of the premises, who had come into instead of ordering a peremptory ponsuit, ought to possession after the dilapidation had occurred, but have sent the case to the jury. Penn. Sup. Ct., May 3, during the continuance of the tenant's lease, held, 1886. Biddle v. Hestonville, M. & F. P. Ry. Co. Opin- that the tenant's possession was not of a kind to exion by Gordon, J.

empt the landlord from any liability arising from a

breach of his duty to repair the pavement, and a verCONTRACT-RESCISSION.- A. contracted with B. to

dict for the plaintiff was therefore sustained. (2) The furnish certain grist-mill machinery, and to put it in

fact that there was a good pavement, six feet wide, place and operation. When all was supplied, and the

between the hole into which the plaintiff fell and the putting in place completed, the machinery was set in

curb, and that the way was lighted by two gas-lamps motion, but owing to defect in one portion of it the

sufficiently to have enabled her to see the opening, working was not satisfactory; for five days A. endeav

and avoid the accident, is not a sufficient ground for ered to correct the defect, but with no success. B., in

concluding contributory negligence, provided she consequence of the experimenting, having suffered a

used her eyes and ears, and was no more careless than large loss of wheat, was desirous of terminating the

an ordinary passer-by. Penn. Sup. Ct., Feb. 8, 1886. trials made at his expense, aud proposed that A, should

Brown v. Weaver. Opinion per Curiam. exhaust one more day with the use of one hundred more bushels of wheat. This proposition A. declined

MALICIOUS PROSECUTION-REQUISITES OF accept, alleging that it would take at least thirty

The suit in hand is founded on the alleged malicious days more. Held, that A. was entitled to a reasonable

use of the writ of capias, by which the person of the time after the supposed completion, to make tests,

plaintiff was seized and imprisoned. In order to susetc.; further that under the circumstances he should

tain this action, the plaintiff must not only allege in have taken the day that was offered him, and further

his narrative, but also prove on the trial, that the dethat B. having within due time notified A. to take

fendant had not probable cause for his prosecution), away the defective part of the machinery, and he hav.

and was actuated by malicious motives. The want of ing failed so to do, B. was justified in taking it out

probable cause without malice is not sufficient; so and sending it to him, and that A. could not recover

where probable cause appears the motive for the prosan uupaid installment which he claimed to be due

ecution, however malicious, goes for nothing. Kramer from B. for the machinery, which installment

v. Stock, 10 Watts. 115; McCarthy v. De Armit, 99 amounted to less than the cost of supplying the place

Penn. St. 63. Aud as was said by Mr. Justice Trun. of the defective part of the machinery. Albert v.

key, in the case last cited, something more than mere Frick, 1 Pennypacker, 132, distinguished. Penn. Sup.

legal or theoretical malice is requisite to sustain an acCt., Feb. 15, 1886. Cleaver v. Bullock. Opinion by

tion of this kind, for it must be proved as a fact, and Trunkey, J.

whilst it may be inferred from a want of probable

cause, its existence nevertheless is for the jury. From DAMAGES—IN ACTION ON INJUNCTION BOND--COUNSEL this it follows that a jury ought not to be permitted to FEES.-Counsel fees are not recoverable as damages in

infer malice from the mere want of probable cause, action on an injunction bond. Good v. Mylin, 8 Penn.

when by other circumstances it is disproved. The disSt. 51; Stopp v. Smith, 71 id. 285. Penn. Sup. Ct., May continuance of the capias was undoubtedly prima facie 31, 1886. Sensenig v. Parry. Opinion per Curiam.

proof of the want of probable cause for the institution GUARANTY CONDITION THAT CO-GUARANTOR BE of the suit, but only primu fuċie, and required but SECURED.-Where the president of a corporation, as a slight evidence for its rebuttal. In this case, as in guarantor of a draft by the corporation upon a bank, others of the same kind, proof of a discontinuance is directed the treasurer of the corporation to inform the chiefly important as showing the determination of the cashier of the bank that the draft was not to be taken previous action, without which it would seem a suit unless A. placed his name on the back of it, which the like that in hand could not be maintained. Mayer v. treasurer communicated to the bank cashier, and A. Walker, supra. But as we have seen, where malice is did not place his name on the back of the draft, but disproved, the want of probable cause is of no congave a subsidiary separate writing of guaranty, where- sequence, and in this is found the chief defect in the upon the bank took the draft, there was no perform- plaintiff's case. The discontinuance and other eviance of the condition, and no guaranty by the presi- dence of a prima facie character, going to establish deut. JII. Sup. Ct., May 12, 1886. Belleville Sav. Banke malice in the original prosecution was, if there is any v. Bornman. Opinion by Sheldon, J.

force in authority, completely rebutted by the fact,

which no one pretended to gainsay, that the defendINSURANCE CROPS AGAINST STORM GROWING CROPS.— A fire insurance company, authorized by its

ants in good faith acted upon the advice of counsel. We charter to insure “hay, grain, and other agricultural

have said, and that very recently, in the case last

above cited, per Mr. Justice Trunkey: “When the products in barns, stacks, or otherwise," and by a supplement, to insure against storms and hurricanes,',

prosecutor submits the facts to an attorney-at-law, insured B.'s “stock, crops," etc., which were after

who advises they are sufficient, and he acts thereon in

good faith, such advice is often called probable cause, ward destroyed by a hail-storm while growing. B.

and is a defense to an action of malicious prosecution; brought suit for insurance. Held, that as it had a

but in strictness the taking the advice of counsel and power to insure the articles specified, whether in field or barn, the language was broad enough to cover grow

acting thereon rebuts the inference of malice arising

from the want of probable cause." If what is here ing crops, and such was the manifest intent of the

said be law,and that it is so is too well settled for doubt parties. Pend. Sup. Ct., May 3, 1886. Mutual Fire

or discussion, then was judgment properly entered for Ins. Co. of Montgomery Co. v. Dehaven. Opinion per

the defendants. Both Mr. Cochran and Mr. Ewing, Curian.

reputable attorneys-at-law, detail the statements made LANDLORD AND TENANT-LIABILITY OF LANDLORD to them by James Cochran, immediately before the TO THIRD - CONTRIBUTORY

issuing of the writ concerning the behavior of the (1) Where a basement of a building was leased, and rioters, and his reasou for thinking they were aided during the occupation of the tenant an area, used as and abetted by the plaintiff, and allege that without an entrance to said basement, and the pavement ad- any suggestion on part of the defendants they advised joining thereto, became in bad repair, by means of the issuing of a capias. This, unless rebutted by

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showing that they submitted a false statement to their her dower, it will be good in equity." Ill. Sup. Ct.,
counsel, was sufficient to rebut the presumption of June 12, 1886. Barth v. Lines. Opinion by Magru-
mualice. But the evidence of the plaintiff, so far from der, J.
showing that the statement thus made was false, in all

material particulars sustained it. Penn. Sup. Ct.

STONES-ASSESSMENT.-A. had set at his own expense, Emerson v. Cochran. Opinion by Gordon, J.

along the edge of the sidewalk in front of his house in MARRIAGE-WILL-REVOKED BY MARRIAGE. - The Philadelphia, a curbstone; it was similar to those in will of a woman is revoked by her subsequent mar- use in the neighborhood, was in proper place, and in riage; and where, after the execution of a will by a good condition. The municipality determined to woman, she married, and had a child born, who sur- change the character of the cartway paving on the vived her, a revocation of the will is implied, and this street from cobble-stone to Belgian block, and for the implication cannot be rebutted by parol evidence that purpose of giving uniformity of appearance to the the parties did not know the rule of law, or that they work, commanded all the property-owners along the did not intend that the subsequent marriage and birth line of the improvement to take up and replace their of & child should operate as a revocation. Mass.

curbs with cut granite ones of a specified kiud. A. Sup. Jud. Ct., July 3, 1886. Nutt v. Norton. Opin- declined to do so, whereupon the city had it done, and ion by Morton, C.J.

assessed the costs thereof against his property. Held,

that as the setting of the new curb was an incident to DOWER-ANTENUPTIAL AGREEMENT RELEAS

the repaving of the cartway and not of the sidewalk, ING PROSPECTIVE CLAIMS.-An antenuptial agreement

the lien entered against the property of A. could not be reciting that each of the parties is possessed of a sep

enforced. Citing Wistar v. Philadelphia 30 P. F. S. 505. arate estate, and providing that each, in consideration

In the case at bar, the alignment of the curb was pot of the agreements of the other, waives all claim which changed, the defendant was simply required to lift the he or she may acquire by the marriage in the estate vf

curb then in place, and set another and a different the other, is valid, aud bars the claim of the widow of kind in the same place; and if the city cannot require such marriage to dower in her deceased husband's es

the resetting of the curb when the curb line has been tate, although it may lack some of the formalities of a

changed, and the footway widened, it is difficult to jointure agreement. McGee v. McGee, 91 Ill. 548,

see how the power can be exercised when the line is seems to be decisive of the question. The statutes of

unchanged, when the city may see proper to require most of the States now make the wife as free and in

a still different curb, to take the place of the cut grandependent, iu the control of her property, as the hus

ite, must depend of course upon the judgment or capband is in the control of his property. As a result of

rice of the city councils, and it seems reasonable and this legislation, the tendency of the modern decisions just,

it such a requirement shall be made, when no reis to uphold antenuptial contracts made fairly and

pairs are needed, that the city should pay the price. without fraud by adult single women. A woman

If the law was correctly stated in Wistar v. Philadelmay bar her dower in any lawful manner since by the

phia, supra, this lien cannot be sustained, and we see statutes she can make any lawful contract." Went

no reason why the rulings in that case should not be worth v. Wentworth, 69 Me. 247. “There is perhaps adhered to. Penn. Sup. Ct., Feb. 15, 1886.

Wistar v. no principle better settied than that any provision which an adult, before marriage, agrees to accept in

City of Philadelphia. Opiniou by Clark, J. lieu of dower, will amount to a good equitable joint- NEGOTIABLE INSTRUMENT-- CHECKS-INDORSEMENT ure." Andrews v. Audrews, 8 Conn, 79. “Where the -PAYMENT BY DRAWEE AFTER DEATH OF PAYEE.-On parties agree beforehand, that after marriage each the 16th day of September, 1885, McLennan purchased shall hold his or her antenuptial property to his or her merchandise of Walsh, and gave his check on defendseparate use, and on the death of one of them neither ant, payable to Walsh's order. Walsh had a clerk shall have any marital claim on the estate of the named Phillips, who was bis general agent, and had other, this is, at least in a court of equity, generally authority to receive, indorse, and otherwise deal with esteemed to be a good bar to dower.” Bish. Marr. negotiable paper for Walsh, and this check was putin Wom., $ 4:23. The provision of our statute that when his hands in payment for the goods by McLennan. a coureyance is made to or in trust for an intended Phillips at once put upon it a blank indorsement, but wife, for the purpose of creating a jointure in her fa- did not present it that day. That night Walsh died. vor, with her assent, to be taken in lieu of dower, | Phillips gave the check to his widow, and on the 21st buch jointure shall bar any claim for dower by her in of September, at her request, he presented it to dethe lands of her busbond (Hurd. Rev. Stat., 1885, ch. fendant for payment, aud it was paid to Phillips, and 41, 87) “cannot be said to deprive her of the power to the money given to Mrs. Walsh. At that time debar her right to dower by any other form of antenup- fendant had no knowledge of Walsh’s death. On tial contract. * * * This however is not the case of McLennan's periodical settlement with the bank this a settlement or jointure, but of a contract.” Naill v. check was returned with the rest as paid. He subseMaurer, 25 Md. 532. Scribner in his work ou Dower, quently handed the check back to plaintiff, who sues vol. 2, pp. 409, 413, says: “With respect to the legal the bank upon it. Why he returned it is not showp. requisite that the estate limited in jointure be such The court below gave him judgment. In our opinion al estate of freehold as should continue during the the ruling was erroneous. As appears from the case, wife's life, no such circumstance will be necessary in and as was admitted on the argument, the indorseequity in order to make the jointure an absolute bar ment by Phillips has the same effect as if made by to dower, if the intended wife be of age and a party to

Walsh. It is undoubtedly true, tbat generally an inthe deed, because as she is able to settle and dispose of dorsement not delivered is not sufficient to create the all her rights, she is competent to extinguish her title responsibility of an indorser. But where a person bas, to duwer upon any tering to wbich sbe may think by his own act, given negotiability in appearance to proper to agree.

* The cases are not entirely an instrument drawn by another, which is an existing agreed upon the question as to whether an antenup- contract, and valid, in his bands, and it gets into cirtial contract, which merely secures to the wife her culation, and is paid by the person on whom it is separate property, and makes no provision for her out drawn, without notice of any thing wrong, the payof the husband's estate, is a good equitable jointure; ment will be protected. The bank in this case acted but in a majority of the cases it is beld that if it be a on the faith of an indorsement which was put upon part of such agreement that the wife shall relinquish the check by Walsh's authority, and made the check

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payable to bearer. If it had been lost in that condi- the last item, and thus leave him liable on the earlier tion, any bona fide purchaser could have collected it.

This we think is the outcome of all the cases in There is no authority that we have found which holds this court; and the cases cited by counsel of the plainthat the death of a payee or indorser after a note has tiff in error (Postmaster General v. Norvell, Gil. 106, been negotiated can affect its negotiability further or and Com. v. Reitzel, 9 Watts & S. 109) are not, as we prevent the drawee from safely paying it. A different understand them, in conflict with this view. Penn. question might have arisen in case of the death of the Sup, Ct., Feb. 15, 1886. Pardee v. Markle. Opinion by drawer. But there is little dispute that even then a

Clark, J. payment of a genuine check, in the due course of business, by the bank, in ignorance of his death, would be

NOTES. protected. Byles Bills, 24; Chit. Bills, 429; 2 Pars. Notes & Bills, 82; 2 Dan. Neg. Inst., $ 16180. And

It is a relief to record that in the "Law Reports" while there is some authority for holding that death, when known to the banker, revokes the check, so far figures as a substantive title.- London Law Journal.

Digest the “ Woman Past Childbearing" no longer as the drawer is concerned, the authorities, such as they are, go no further. Here the check itself was un

The Royal Courts of Justice seem to have supplied a doubtedly good, and bound the drawer. It had been new peril to the occupation of counsel. A learned genmade payable to bearer before Walsh's death, and the tleman the other day was addressing the court, when bank knew nothing to impeach that coudition. The suddenly it appeared that the skirts of his gown were payment was authorized by the apparent condition of

in flames. Whether the flap of the too-ingeniously the paper, for which Walsh was responsible, and was

contrived seat behind him collapsed upon a box of protected. Dan. Neg. Inst., $ 1582, and citations.

matches in his pocket, or whether a wax-light careMich. Sup. Ct., July 8, 1886. Brennan v. Merchants lessly dropped and stepped upon caused the combusand Manufacturers' Bank, Opinion by Campbell,

tion is not likely to appear without a careful post inorC. J.

tem inquisition on the coat-tails. Recent visitors to

· Faust,”' with popular views of the agencies with PAYMENT - APPLICATION

which lawyers are supposed to ally themselves might Payments made in discharge of items on a running ac- have attributed the incident to a supernatural manicount, in the absence of appropriation by the parties, | festation. In any case the profession is to be conwill ordinarily be appropriated by law to the earliest gratulated that its representative on this trying occaitems. There are however exceptions to this rule; as sion did not forget his cloth-in the ideal, not the mawhere there are unsecured items, payments will be terial sense-but duly apologized to the bench for appropriated to them, rather than to the secured ones. being so unceremoniously on fire before beating a digA surety who is liable on the earlier items has the nified retreat.-London Law Journal. It may have right to demand that the exceptions to the general arisen from the heat of debate. rule be vot enforced to his detriment; but he has no

A layman correspondent writes us: “I have taken right, wben he is liable on the later items, to have the the ALBANY LAW JOURNAL from its beginning, and general rule altered by reason of his suretyship alone. hope I may be able to take and pay for it, not to its, The cases which have been adjudicated in this court

but to my end. I have learned so much law and gosare in some respects, perhaps, inconsistent with the pel from the facile pen of your good editor (though my cases elsewhere; but they are in no sense inconsistent grandfather was a Connecticut judge, and I sat on the with each other. The latter rule, under our decisions,

bench with him when a boy, and once asked him the as between the debtor and creditor only, will ordina- meaning of the words, “subpoena duces tecum,' and he rily prevail over the former whenever the interest of replied it meant, “take them where the hair is short '), the creditor requires that it should (Pierce v. Sweet,

that when I go where I am not kuown I am often 33 Penn. St. 151); but not to the prejudice of a surety, I asked, 'In what State do you practice?' So you see who may insist upon an appropriation under the rulo

Brother Browne's seed has fallen upon good ground, first stated, and hold himself bound or discharged ac

and his works do praise him, even while living." cordingly. Berghaus v. Alter, 9 Watts, 386. Thus in Pierce v. Sweet, supra, it was held that where a pay

In Scott v. Pape, 31 Ch. D. 554, the Court of Appeal ment is made, in the absence of any appropriation of has been further exercised upon the difference beit by the parties, the law will, in general, apply it in

tween a right to an unobstructed window and a right discharge of the earliest liabilites of a running account,

to the uninterrupted access of the quantity of light but if by so doing the creditor may lose a portion of which is received through that window; a difference his account unsecured by lien, the money will

not easy to express in accurate language. Counsel be first applied to the account thus unsecured

and the court had recourse to the vocabulary of geofor his interest, "unless," says the court, “such metrical optics, and there was talk of cones and penan appropriation would be to the prejudice of a sur

cils which would perhaps be more appropriate to the ety.” So in Berghaus v. Alter, supra, B., baving pur- Cambridge Senate House. Probably the law of light chased of A., at different times, several bills of goods will now be infested with cones and pencils for a year at six months' credit, gave a note at twelve months, or two. But let us possess our souls in patience. Have with C. as collateral security for payment. Several we not seen the short day and tbe ruinous downfall of other purchases were afterward made upon the same the augle of 45° ?-Law Quarterly Review. terins during the twelve months, and subsequently B. A controversial pamphlet has reached us as we are inade payments on account, which were credited gen-going to press, relating to a divorce case in Massachuerally in the books of A., without any special appro- setts. The only point we have to notice about it is that priation. It was held that such payments must be ap- it discloses a new-found invention of taking the opinpropriated to the payment of the goods first due, and ion of clergymen (not as yet to be used in court) as in relief of C., the surety in the note of B. While “experts in ethics.” In this case certainly the therefore a surety cannot require a general payment perts” agreed with one another, and with any honest to be applied to the last debt, in case of his liability

man of whom the same question might be asked. We for it, to the exclusion of the earlier items (Speck v.

trust that "experts in ethics” may never be heard of Com., 3 Watts & S. 324), he can require that the rule in a court of justice. Either every right-minded citi. shall not be iuverted to his prejudice; that it shall not

zen is an expert in ethics, or society must be in a bad be turned against him, by applying the payment to

way.-Law Quarterly Review.

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The Albany


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whether or not he is telling the truth. Whether Journal. the prisoner is by such a proceeding fairly or

unfainy, mercifully or unmercifully dealt with,

whether the dignity of the State is lowered by offiALBANY, AUGUST 21, 1886.

cers, acting in this way, and even prostituting, to use the denunciatory language employed by some

of the newspapers, the ordinary machinery of jusCURRENT TOPICS.

tice, including the grand jury, to a mere detective

job - all this is a matter which does not touch the THE Buffalo Express, commenting on Judge Tyler's

real guilt or innocence of the prisoner on trial. Of

course the most will be made of it by his lawyers, while it does us the honor to call this “the leading

and they will make a strenuous endeavor by aplegal periodical of the United States," does us in

pealing to this to divert the minds of the jury from justice in the closing paragraph, in which it says:

the real issue; and the danger of trial by jury lies "The ALBANY LAW JOURNAL says, rather coldly:

in the fact that ignorant and sympathetic juries can "We wish the new law school success, but we do

be diverted in this way from the real issues, while not expect it.' Evidently the wish is not the father

a steady-headed judge seldom or never can be.” of that thought." We do not know why the Express should say that. We have particular personal reasons for not wishing to be misunderstood in this

Mr. William Morton Grinnell has issued a pamphmatter, and it is unfair in the Express to make that

let entitled “A comparative glance at the French statement without giving our reason for our proph

Code Civil and the proposed New York Civil Code," ecy, namely, that new law schools would not suc

which is apparently a somewhat careful and very ceed in this State because young men can get ad

fair comparison of the two institutes, which must mitted to the bar in other States on a shorter term

increase the respect of readers for the later Code. of study than here, and therefore are not apt to

Mr. Grinnell says: “As to the proposed Civil Code frequent our law schools. But we have long since

of the State of New York it is needless to enter despaired of being ourselves treated with candor

into a statement of its sources and origin. We all and fairness, or of seeing any one else so treated, by

know how diverse and voluminous they are, and the newspaper press. We recommend the Express

knowing, can form some conception of the vast difman to read the communication in another column

ficulties which have been so successfully overcome of our present issue on the subject of newspapers

in compiling it. Its great and intrinsic merits have and their treatment of lawyers. Probably the

been attested by the most eminent jurists in this Express did not intend any unfairness in this mat

and other countries. It will bear favorable comter, but it should have some reasonable basis for

parison with the French Code, and is superior in such a slur if it felt impelled to make it. After all,

many respects to the most prominent works of we think our feelings are more injured by its bung

European civil legislature. It is open to criticism ling of the quotation than by any thing else.

in many of its details, as any such stupendous work "Father of that thought,” forsooth! Shade of

necessarily is, but it is doubtful if any Code could Shakespeare - Bacon!

be compiled which would be more comprehensive,

more clear, more concise. Were it enacted, the The American Lar Record, commenting on the

laws of New York would be contained in one volscheme of the proposed Cornell University law ume of 3,082 brief paragraphs, instead of being inschool, observes: “It is a question however whether

volved in thousands of volumes of reports, statutes, the increase in the number of law schools is an ad- decisions, etc.” vantage or otherwise. We are of the opinion that one for each State is none too few, and the estab- By the death of Samuel J. Tilden this country lishment of another in New York, where there are has lost a public man of very remarkable powers and already two of high reputation and sufficient capac- achievement. Mr. Tilden was a man of very rare ity to meet the demand for legal education in that abilities, and he has done much useful service to section, appears to us of rather doubtful expedi- the public. It is not for us to scrutinize his political ency."

career, and his legal career was not of sufficient

distinction to entitle him to the rank of a great The American Law Review says on the subject of lawyer. He was too fond of making money, and Decoys and Detectives, in connection with the Max- too successful in that pursuit to have time to be a well-Preller case: "A detective who will suffer great lawyer. It is preposterous for his adulators himself to be incarcerated in jail under a charge of to talk of his dividing the honors of the bar with felony for such a period of time in order to put up

Charles O'Conor. That assertion vould have made a job will be apt, out of mere professional pride, to Mr. Tilden smile and Mr. O'Conor use strong lanswear to a perverted state of facts when he comes guage. Mr. Tilden did prepare and conduct a few upon the witness stand. But all this seems at most great causes in a masterly manner, and he had the to go to his credibility, and to be fairly a question ability to take a leading rank as a lawyer had he of argument before the jury upon the question | chosen to devote himself to the profession. But he

Von 34 No 8

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