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v. Pittsford, 7 Vt. 158; Patterson v. Colebrook, 29 N. H. 94; Hutchinson v. Inhabitants of Methuen, 1 Allen, 33. I believe it is better and safer to hold in accordance with the authorities last cited. The rule that the facts must be shown, and not the opinions of the witnesses, should be adhered to in all cases where the nature of the thing to be described is such that opinions are not absolutely necessary to correctly inform the jury of the fact in issue in relation to such thing or object. This is a case where there can be no great difficulty in that respect. What is a hindrance, rather than an aid to the jury should be excluded, especially when it is but the conclusions of witnesses upon facts from which no one but the jurors have any right to draw inferences.

The Superior Court judge was right in excluding these offered opinions, but in other respects, as noted by the chief justice, I think he was in error, and therefore join in the reversal of the judgment below.

NEW YORK COURT OF APPEALS ABSTRACT. ESTOPPEL-JUDGMENT -WRONG DECISION.-Where in a former action the appointment of plaintiff as general receiver was alleged in the complaint, and denied in the answer, and the same issue was framed and tried as in this, the legality of the appointment is res adjudicata, and cannot be the subject of review upon this appeal. Even if the decision was wrong, it does not impair the effect of the former judgment as a bar to the right to raise the same question. Nor does it change the effect of the judgment, because the amount recovered was not sufficient to entitle the plaintiff to appeal, as a matter of right, from the General Term to this court. June 1, 1886. Griffin v. Long Island R. Co. Opinion by Miller, J.

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tachment creditor pursues his remedy to judgment, and then transfers his rights under the judgment to a third person, and pending these proceedings the debtor makes an assignment, and a second attachment is sued out, returnable to the same term, the attachments will participate pro rata in the proceeds of the property attached. But if, as in this case, the third person who had acquired the first judgment also purchases the rights of the debtor's assignee, he then holds the position of both debtor and creditor. There will be a merger of these two characters, his lien will cease, and he will not participate in the attachment lien. Abbott, in his Law Dictionary (vol. 2, tit. "Mer. ger,") says: 'Merger is the equivalent of confusion in the Roman law, and (when used with reference to demands) indicates that when the qualities of debtor and creditor become united in the same individual, there arises a confusion of rights which extinguishes both qualities; whence also merger is often called extinguishment." Bouvier, in his dictionary, vol. 2, tit. Merger," under the head of "Rights," says: "Rights are said to be merged when the same person who is bound to pay is also entitled to receive. This is more properly called a confusion of rights or extinguishment. When there is a confusion of rights, and the debtor and creditor become the same person, there can be no right to put in execution." The same rule is recognized in Pomeroy's Equity, vol. 2, §§ 789, 790. The extinguishment is complete at law, though in equity, under certain circumstances, a merger or extinguishment will be prevented. Id. Ill. Sup. Ct., May, 1886. Donk v. Alexander. Opinion by Scholfield, C. J.

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CARRIER-NEGLIGENCE- EJECTING INFANT TRESPASSER. A street car of the defendant was being 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 false 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 reprecoming 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 defendpaid to the party making it for his individual benefit. ant's driver or conductor was grossly negligent 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 Salnack knew betto 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 purman 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 replimbs. Pennsylvania R. Co. v. Lewis, 79 Penn. St. 33: resentations. (3) Where there is a conflict in the evi- Hydraulic Works Co. v. Orr, 83 id. 332; and Phildence as to whether the representations were frandu-adelphia & R. Co. v. Hummell, 44 id. 375; Pittsburgh, lently or mistakably made, it becomes a question for the jury. June, 1, 1886. Schwenck v. Naylor. Opinion by Rapallo, J.

ABSTRACTS OF VARIOUS RECENT DE-
CISIONS.

ATTACHMENT-MERGER-PURCHASE OF JUDGMENT
AND RIGHTS OF DEBTOR'S ASSIGNEE.-Where an at-

A. & M. P. Ry. Co. v. Caldwell, 74 id. 421, and Same v. Donahue, 70 id. 119. It is very true, as was held in Hestonville Pass. Ry. Co. v. Connell, 88 Penn. St. 522, and Philadelphia & R. Co. v. Hummell, supra, extra precautions are not required in anticipation of the intrusions of trespassers, even though they be children; but when they do so intrude, and are known to be in an improper place, they must not be so wholly neglected as to endanger their lives or limbs. Any other

doctrine would so illy accord with Christian civilization as to render its maintenance impossible. It follows from what we have said that the court below, instead of ordering a peremptory nonsuit, ought to have sent the case to the jury. Penn. Sup. Ct., May 3, 1886. Biddle v. Hestonville, M. & F. P. Ry. Co. Opinion by Gordon, J.

CONTRACT-RESCISSION.-A. contracted with B. to furnish certain grist-mill machinery, and to put it in place and operation. When all was supplied, and the putting in place completed, the machinery was set in motion, but owing to a defect in one portion of it the working was not satisfactory; for five days A. endeavered to correct the defect, but with no success. B., in consequence of the experimenting, having suffered a large loss of wheat, was desirous of terminating the trials made at his expense, and proposed that A. should exhaust one more day with the use of one hundred more bushels of wheat. This proposition A. declined to accept, alleging that it would take at least thirty days more. Held, that A. was entitled to a reasonable time after the supposed completion, to make tests, etc.; further that under the circumstances he should have taken the day that was offered him, and further that B. having within due time notified A. to take away the defective part of the machinery, and he having failed so to do, B. was justified in taking it out and sending it to him, and that A. could not recover an unpaid installment which he claimed to be due from B. for the machinery, which installment amounted to less than the cost of supplying the place of the defective part of the machinery. Albert v. Frick, 1 Pennypacker, 132, distinguished. Penn. Sup. Ct., Feb. 15, 1886. Cleaver v. Bullock. Opinion by Trunkey, J.

DAMAGES IN ACTION ON INJUNCTION BOND--COUNSEL FEES.-Counsel fees are not recoverable as damages in action on an injunction bond. Good v. Mylin, 8 Penn. St. 51; Stopp v. Smith, 71 id. 285. Penn. Sup. Ct., May 31, 1886. Sensenig v. Parry. Opinion per Curiam. GUARANTY -CONDITION THAT CO-GUARANTOR BE SECURED.-Where the president of a corporation, as a guarantor of a draft by the corporation upon a bank, directed the treasurer of the corporation to inform the cashier of the bank that the draft was not to be taken unless A. placed his name on the back of it, which the treasurer communicated to the bank cashier, and A. did not place his name on the back of the draft, but gave a subsidiary separate writing of guaranty, whereupon the bank took the draft, there was no performance of the condition, and no guaranty by the president. J. Sup. Ct., May 12, 1886. Belleville Sav. Bank v. Bornman. Opinion by Sheldon, J.

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INSURANCE CROPS AGAINST STORM - GROWING CROPS. A fire insurance company, authorized by its charter to insure "hay, grain, and other agricultural products in barns, stacks, or otherwise," and by a supplement, to insure against storms and hurricanes," insured B.'s "stock, crops," etc., which were afterward destroyed by a hail-storm while growing. B. brought suit for insurance. Held, that as it had a power to insure the articles specified, whether in field or barn, the language was broad enough to cover growing crops, and such was the manifest intent of the parties. Penn. Sup. Ct., May 3, 1886. Mutual Fire Ins. Co. of Montgomery Co. v. Dehaven. Opinion per Curiam.

LANDLORD AND TENANT-LIABILITY OF LANDLORD TO THIRD PERSON CONTRIBUTORY NEGLIGENCE.(1) Where a basement of a building was leased, and during the occupation of the tenant an area, used as an entrance to said basement, and the pavement adjoining thereto, became in bad repair, by means of

which a person passing fell into the same, and received injuries for which an action was brought against the owner of the premises, who had come into possession after the dilapidation had occurred, but during the continuance of the tenant's lease, held, that the tenant's possession was not of a kind to exempt the landlord from any liability arising from a breach of his duty to repair the pavement, and a verdict for the plaintiff was therefore sustained. (2) The fact that there was a good pavement, six feet wide, between the hole into which the plaintiff fell and the curb, and that the way was lighted by two gas-lamps sufficiently to have enabled her to see the opening, and avoid the accident, is not a sufficient ground for concluding contributory negligence, provided she used her eyes and ears, and was no more careless than an ordinary passer-by. Penn. Sup. Ct., Feb. 8, 1886. Brown v. Weaver. Opinion per Curiam.

MALICIOUS PROSECUTION-REQUISITES OF ACTION.The suit in hand is founded on the alleged malicious use of the writ of capias, by which the person of the plaintiff was seized and imprisoned. In order to sus tain this action, the plaintiff must not only allege in his narrative, but also prove on the trial, that the defendant had not probable cause for his prosecution, and was actuated by malicious motives. The want of probable cause without malice is not sufficient; so where probable cause appears the motive for the prosecution, however malicious, goes for nothing. Kramer v. Stock, 10 Watts. 115; McCarthy v. De Armit, 99 Penn. St. 63. And as was said by Mr. Justice Trunkey, in the case last cited, something more than mere legal or theoretical malice is requisite to sustain an action of this kind, for it must be proved as a fact, and whilst it may be inferred from a want of probable cause, its existence nevertheless is for the jury. From this it follows that a jury ought not to be permitted to infer malice from the mere want of probable cause, when by other circumstances it is disproved. The discontinuance of the capias was undoubtedly prima facie proof of the want of probable cause for the institution of the suit, but only prima facie, and required but slight evidence for its rebuttal. In this case, as in others of the same kind, proof of a discontinuance is chiefly important as showing the determination of the previous action, without which it would seem a suit like that in hand could not be maintained. Mayer v. Walker, supra. But as we have seen, where malice is disproved, the want of probable cause is of no consequence, and in this is found the chief defect in the plaintiff's case. The discontinuance and other evidence of a prima facie character, going to establish malice in the original prosecution was, if there is any force in authority, completely rebutted by the fact, which no one pretended to gainsay, that the defendants in good faith acted upon the advice of counsel. We have said, and that very recently, in the case last above cited, per Mr. Justice Trunkey: "When the prosecutor submits the facts to an attorney-at-law, who advises they are sufficient, and he acts thereon in good faith, such advice is often called probable cause, and is a defense to an action of malicious prosecution; but in strictness the taking the advice of counsel and acting thereon rebuts the inference of malice arising from the want of probable cause." If what is here said be law, and that it is so is too well settled for doubt or discussion, then was judgment properly entered for the defendants. Both Mr. Cochran and Mr. Ewing, reputable attorneys-at-law, detail the statements made to them by James Cochran, immediately before the issuing of the writ concerning the behavior of the rioters, and his reasou for thinking they were aided and abetted by the plaintiff, and allege that without any suggestion on part of the defendants they advised the issuing of a capias. This, unless rebutted by

showing that they submitted a false statement to their counsel, was sufficient to rebut the presumption of malice. But the evidence of the plaintiff, so far from showing that the statement thus made was false, in all material particulars sustained it. Peun. Sup. Ct. Emerson v. Cochran. Opinion by Gordon, J.

MARRIAGE-WILL-REVOKED BY MARRIAGE.-The will of a woman is revoked by her subsequent marriage; and where, after the execution of a will by a woman, she married, and had a child born, who survived her, a revocation of the will is implied, and this implication cannot be rebutted by parol evidence that the parties did not know the rule of law, or that they did not intend that the subsequent marriage and birth of a child should operate as a revocation. Mass. Sup. Jud. Ct., July 3, 1886. Nutt v. Norton. Opinion by Morton, C. J.

DOWER-ANTENUPTIAL AGREEMENT RELEASING PROSPECTIVE CLAIMS.—An antenuptial agreement reciting that each of the parties is possessed of a separate estate, and providing that each, in consideration of the agreements of the other, waives all claim which he or she may acquire by the marriage in the estate of the other, is valid, and bars the claim of the widow of such marriage to dower in her deceased husband's estate, although it may lack some of the formalities of a jointure agreement. McGee v. McGee, 91 Ill. 548, seems to be decisive of the question. The statutes of most of the States now make the wife as free and independent, in the control of her property, as the husband is in the control of his property. As a result of this legislation, the tendency of the modern decisions is to uphold antenuptial contracts made fairly and without fraud by adult single women. A woman "may bar her dower in any lawful manner since by the statutes she can make any lawful contract." Wentworth v. Wentworth, 69 Me. 247. "There is perhaps no principle better settled than that any provision which an adult, before marriage, agrees to accept in lieu of dower, will amount to a good equitable jointure." Andrews v. Andrews, 8 Conn. 79. "Where the parties agree beforehand, that after marriage each shall hold his or her antenuptial property to his or her separate use, and on the death of one of, them neither shall have any marital claim on the estate of the other, this is, at least in a court of equity, generally esteemed to be a good bar to dower." Bish. Marr. Wom., §423. The provision of our statute that when a conveyance is made to or in trust for an intended wife, for the purpose of creating a jointure in her favor, with her assent, to be taken in lieu of dower, such jointure shall bar any claim for dower by her in the lands of her husbend (Hurd. Rev. Stat., 1885, ch. 41, §7) "cannot be said to deprive her of the power to bar her right to dower by any other form of antenuptial contract. * **This however is not the case of a settlement or jointure, but of a contract." Naill v. Maurer, 25 Md. 532. Scribner in his work on Dower, vol. 2, pp. 409, 413, says: "With respect to the legal requisite that the estate limited in jointure be such an estate of freehold as should continue during the wife's life, no such circumstance will be necessary in equity in order to make the jointure an absolute bar to dower, if the intended wife be of age and a party to the deed, because as she is able to settle and dispose of all her rights, she is competent to extinguish her title to dower upon any terms to which she may think proper to agree. # * * The cases are not entirely agreed upon the question as to whether an antenuptial contract, which merely secures to the wife her separate property, and makes no provision for her out of the husband's estate, is a good equitable jointure; but in a majority of the cases it is held that if it be a part of such agreement that the wife shall relinquish

her dower, it will be good in equity." Ill. Sup. Ct., June 12, 1886. Barth v. Lines. Opinion by Magruder, J.

CURB

MUNICIPAL CORPORATION-STREET PAVING STONES-ASSESSMENT.-A. had set at his own expense, along the edge of the sidewalk in front of his house in Philadelphia, a curbstone; it was similar to those in use in the neighborhood, was in proper place, and in good condition. The municipality determined to change the character of the cartway paving on the street from cobble-stone to Belgian block, and for the purpose of giving uniformity of appearance to the work, commanded all the property-owners along the line of the improvement to take up and replace their curbs with cut granite ones of a specified kind. A. declined to do so, whereupon the city had it done, and assessed the costs thereof against his property. Held, that as the setting of the new curb was an incident to the repaving of the cartway and not of the sidewalk, the lien entered against the property of A. could not be enforced. Citing Wistar v. Philadelphia 30 P. F. S. 505. In the case at bar, the alignment of the curb was not changed, the defendant was simply required to lift the curb then in place, and set another and a different kind in the same place; and if the city cannot require the resetting of the curb when the curb line has been changed, and the footway widened, it is difficult to see how the power can be exercised when the line is unchanged, when the city may see proper to require a still different curb, to take the place of the cut granite, must depend of course upon the judgment or caprice of the city councils, and it seems reasonable and just, if such a requirement shall be made, when no repairs are needed, that the city should pay the price. If the law was correctly stated in Wistar v. Philadelphia, supra, this lien cannot be sustained, and we see no reason why the rulings in that case should not be adhered to. Penn. Sup. Ct., Feb. 15, 1886. Wistar v. City of Philadelphia. Opinion by Clark, J.

NEGOTIABLE INSTRUMENT-CHECKS-INDORSEMENT -PAYMENT BY DRAWEE AFTER DEATH OF PAYEE.-On the 16th day of September, 1885, McLennan purchased merchandise of Walsh, and gave his check on defendant, payable to Walsh's order. Walsh had a clerk named Phillips, who was his general agent, and had authority to receive, indorse, and otherwise deal with negotiable paper for Walsh, and this check was put in his hands in payment for the goods by McLennan. Phillips at once put upon it a blank indorsement, but did not present it that day. That night Walsh died. Phillips gave the check to his widow, and on the 21st of September, at her request, he presented it to defendant for payment, and it was paid to Phillips, and the money given to Mrs. Walsh. At that time defendant had no knowledge of Walsh's death. On McLennan's periodical settlement with the bank this check was returned with the rest as paid. He subsequently handed the check back to plaintiff, who sues the bank upon it. Why he returned it is not shown. The court below gave him judgment. In our opinion the ruling was erroneous. As appears from the case, and as was admitted on the argument, the indorsement by Phillips has the same effect as if made by Walsh. It is undoubtedly true, that generally an indorsement not delivered is not sufficient to create the responsibility of an indorser. But where a person has, by his own act, given negotiability in appearance to an instrument drawn by another, which is an existing contract, and valid, in his hands, and it gets into circulation, and is paid by the person on whom it is drawn, without notice of any thing wrong, the payment will be protected. The bank in this case acted on the faith of an indorsement which was put upon the check by Walsh's authority, aud made the check

payable to bearer. If it had been lost in that condition, any bona fide purchaser could have collected it. There is no authority that we have found which holds that the death of a payee or indorser after a note has been negotiated can affect its negotiability further or prevent the drawee from safely paying it. A different question might have arisen in case of the death of the drawer. But there is little dispute that even then a payment of a genuine check, in the due course of business, by the bank, in ignorance of his death, would be protected. Byles Bills, 24; Chit. Bills, 429; 2 Pars. Notes & Bills, 82; 2 Dan. Neg. Inst., § 1618a. And while there is some authority for holding that death, when known to the banker, revokes the check, so far as the drawer is concerned, the authorities, such as they are, go no further. Here the check itself was undoubtedly good, and bound the drawer. It had been made payable to bearer before Walsh's death, and the bank knew nothing to impeach that condition. The payment was authorized by the apparent condition of the paper, for which Walsh was responsible, and was protected. Dan. Neg. Inst., § 1582, and citations. Mich. Sup. Ct., July 8, 1886. Brennan v. Merchants and Manufacturers' Bank, Opinion by Campbell,

C. J.

PAYMENT APPLICATION ACCOUNTS -SURETY.— Payments made in discharge of items on a running account, in the absence of appropriation by the parties, will ordinarily be appropriated by law to the earliest items. There are however exceptions to this rule; as where there are unsecured items, payments will be appropriated to them, rather than to the secured ones. A surety who is liable on the earlier items has the right to demand that the exceptions to the general rule be not enforced to his detriment; but he has no right, when he is liable on the later items, to have the general rule altered by reason of his suretyship alone. The cases which have been adjudicated in this court are in some respects, perhaps, inconsistent with the cases elsewhere; but they are in no sense inconsistent

with each other. The latter rule, under our decisions, as between the debtor and creditor only, will ordinarily prevail over the former whenever the interest of the creditor requires that it should (Pierce v. Sweet, 33 Penn. St. 151); but not to the prejudice of a surety, who may insist upon an appropriation under the rule first stated, and hold himself bound or discharged accordingly. Berghaus v. Alter, 9 Watts, 386. Thus in Pierce v. Sweet, supra, it was held that where a payment is made, in the absence of any appropriation of it by the parties, the law will, in general, apply it in discharge of the earliest liabilites of a running account, but if by so doing the creditor may lose a portion of his account unsecured by lien, the money will be first applied to the account thus unsecured for his interest, "unless," says the court, "such an appropriation would be to the prejudice of a surety." So in Berghaus v. Alter, supra, B., having purchased of A., at different times, several bills of goods at six months' credit, gave a note at twelve months, with C. as collateral security for payment. Several other purchases were afterward made upon the same terms during the twelve months, and subsequently B. made payments on account, which were credited generally in the books of A., without any special appropriation. It was held that such payments must be appropriated to the payment of the goods first due, and in relief of C., the surety in the note of B. While therefore a surety cannot require a general payment to be applied to the last debt, in case of his liability for it, to the exclusion of the earlier items (Speck v. Com., 3 Watts & S. 324), he can require that the rule shall not be inverted to his prejudice; that it shall not be turned against him, by applying the payment to

the last item, and thus leave him liable on the earlier ones. This we think is the outcome of all the cases in this court; and the cases cited by counsel of the plaintiff in error (Postmaster General v. Norvell, Gil. 106, and Com. v. Reitzel, 9 Watts & S. 109) are not, as we understand them, in conflict with this view. Penn. Sup. Ct., Feb. 15, 1886. Pardee v. Markle. Opinion by Clark, J.

NOTES.

It is a relief to record that in the "Law Reports" Digest the "Woman Past Childbearing" no longer figures as a substantive title.- London Law Journal.

The Royal Courts of Justice seem to have supplied a new peril to the occupation of counsel. A learned gentleman the other day was addressing the court, when suddenly it appeared that the skirts of his gown were in flames. Whether the flap of the too-ingeniously contrived seat behind him collapsed upon a box of matches in his pocket, or whether a wax-light carelessly dropped and stepped upon caused the combustion is not likely to appear without a careful post mor tem inquisition on the coat-tails. Recent visitors to "Faust," with popular views of the agencies with which lawyers are supposed to ally themselves might have attributed the incident to a supernatural manifestation. In any case the profession is to be congratulated that its representative on this trying occasion did not forget his cloth-in the ideal, not the material sense-but duly apologized to the bench for being so unceremoniously on fire before beating a dignified retreat.-London Law Journal. It may have arisen from the heat of debate.

A layman correspondent writes us: "I have taken the ALBANY LAW JOURNAL from its beginning, and hope I may be able to take and pay for it, not to its, but to my end. I have learned so much law and gospel from the facile pen of your good editor (though my grandfather was a Connecticut judge, and I sat on the bench with him when a boy, and once asked him the meaning of the words, 'subpoena duces tecum,' and he replied it meant, 'take them where the hair is short '), that when I go where I am not known I am often asked, 'In what State do you practice?' So you see Brother Browne's seed has fallen upon good ground, and his works do praise him, even while living."

In Scott v. Pape, 31 Ch. D. 554, the Court of Appeal has been further exercised upon the difference between a right to an unobstructed window and a right to the uninterrupted access of the quantity of light which is received through that window; a difference not easy to express in accurate language. Counsel and the court had recourse to the vocabulary of geometrical optics, and there was talk of cones and pencils which would perhaps be more appropriate to the Cambridge Senate House. Probably the law of light will now be infested with cones and pencils for a year or two. But let us possess our souls in patience. Have we not seen the short day and the ruinous downfall of the angle of 45° ?—Law Quarterly Review.

A controversial pamphlet has reached us as we are going to press, relating to a divorce case in Massachusetts. The only point we have to notice about it is that it discloses a new-found invention of taking the opinion of clergymen (not as yet to be used in court) as "experts in ethics." In this case certainly the "experts" agreed with one another, and with any honest man of whom the same question might be asked. We trust that " experts in ethics" may never be heard of in a court of justice. Either every right-minded citizen is an expert in ethics, or society must be in a bad way.-Law Quarterly Review.

The Albany Law Journal.

ALBANY, AUGUST 21, 1886.

CURRENT TOPICS.

HE Buffalo Express, commenting on Judge Tyler's article in this journal on Legal Education, while it does us the honor to call this "the leading legal periodical of the United States," does us injustice in the closing paragraph, in which it says: "The ALBANY LAW JOURNAL says, rather coldly: 'We wish the new law school success, but we do not expect it.' Evidently the wish is not the father 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 matter, and it is unfair in the Express to make that statement without giving our reason for our prophecy, namely, that new law schools would not succeed in this State because young men can get ad

mitted to the bar in other States on a shorter term
of study than here, and therefore are not apt to
frequent our law schools.
But we have long since
despaired of being ourselves treated with candor
and fairness, or of seeing any one else so treated, by
the newspaper press. We recommend the Express

man to read the communication in another column
of our present issue on the subject of newspapers
and their treatment of lawyers. Probably the
Express did not intend any unfairness in this mat-
ter, but it should have some reasonable basis for

such a slur if it felt impelled to make it. After all, we think our feelings are more injured by its bungling of the quotation than by any thing else. "Father of that thought," forsooth! Shade of Shakespeare Bacon!

The American Law Record, commenting on the scheme of the proposed Cornell University law school, observes: "It is a question however whether the increase in the number of law schools is an advantage or otherwise. We are of the opinion that one for each State is none too few, and the establishment of another in New York, where there are already two of high reputation and sufficient capacity to meet the demand for legal education in that section, appears to us of rather doubtful expediency."

The American Law Review says on the subject of Decoys and Detectives, in connection with the Maxwell-Preller case: "A detective who will suffer himself to be incarcerated in jail under a charge of felony for such a period of time in order to put up a job will be apt, out of mere professional pride, to swear to a perverted state of facts when he comes upon the witness stand. But all this seems at most to go to his credibility, and to be fairly a question of argument before the jury upon the question VOL. 34-No. 8.

Whether

whether or not he is telling the truth.
the prisoner is by such a proceeding fairly or
unfainy, mercifully or unmercifully dealt with,
whether the dignity of the State is lowered by offi-
cers acting in this way, and even prostituting, to
use the denunciatory language employed by some
of the newspapers, the ordinary machinery of jus-
tice, including the grand jury, to a mere detective
job
all this is a matter which does not touch the
real guilt or innocence of the prisoner on trial. Of
and they will make a strenuous endeavor by ap-
course the most will be made of it by his lawyers,
pealing to this to divert the minds of the jury from
in the fact that ignorant and sympathetic juries can
the real issue; and the danger of trial by jury lies
be diverted in this way from the real issues, while
a steady-headed judge seldom or never can be."

Mr. William Morton Grinnell has issued a pamphCode Civil and the proposed New York Civil Code," let entitled "A comparative glance at the French fair comparison of the two institutes, which must which is apparently a somewhat careful and very increase the respect of readers for the later Code. Mr. Grinnell says: "As to the proposed Civil Code of the State of New York it is needless to enter know how diverse and voluminous they are, and into a statement of its sources and origin. We all knowing, can form some conception of the vast difficulties which have been so successfully overcome in compiling it. Its great and intrinsic merits have been attested by the most eminent jurists in this and other countries. It will bear favorable com

parison with the French Code, and is superior in European civil legislature. It is open to criticism many respects to the most prominent works of necessarily is, but it is doubtful if any Code could in many of its details, as any such stupendous work be compiled which would be more comprehensive, more clear, more concise. Were it enacted, the laws of New York would be contained in one volume of 3,082 brief paragraphs, instead of being involved in thousands of volumes of reports, statutes, decisions, etc."

By the death of Samuel J. Tilden this country has lost a public man of remarkable very powers and achievement. Mr. Tilden was a man of very rare abilities, and he has done much useful service to the public. It is not for us to scrutinize his political career, and his legal career was not of sufficient distinction to entitle him to the rank of a great lawyer. He was too fond of making money, and too successful in that pursuit to have time to be a great lawyer. It is preposterous for his adulators to talk of his dividing the honors of the bar with Charles O'Conor. That assertion would have made Mr. Tilden smile and Mr. O'Conor use strong language. Mr. Tilden did prepare and conduct a few great causes in a masterly manner, and he had the ability to take a leading rank as a lawyer had he chosen to devote himself to the profession. But he

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