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of an act which he had a legal right to perform, he induces the laborer to quit the tenancy. He advises and persuades the laborer to break or not to continue the contract. That is not an offense against the law. If a man can advise, can he not use any lawful means to make his advice effectual?" "A threat to commit an injury is not an actionable private wrong. It is only the promise of doing something which may in the future be injurious. It may never be carried into effect. It cannot be foreknown that it will be." "An action does not lie for conspiring to do a lawful act, HOWEVER MALICIOUS THE MOTIVE, for the very obvious reason that the act was lawful." There is nothing in this language to justify boycotting. The court in other parts of the opinion carefully discriminated between boycotting and the exercise of one's lawful individual rights. They said: "It must be remembered that the interference complained of is not with the general rights of the plaintiff. The threat is not general. It is only as to his employees. The plaintiff may rent to all the rest of humanity." The defendant had a right to refuse to employ persons for any reason, however malicious or capricious. If the doctrine of this case was not the law, a man might be com

of his school. Then a gentleman from Massachusetts begged for a year's delay because Mr. Cortlandt Parker, the dissenting member of the committee, was unavoidably absent, — although he did send up a dissenting report of twenty pages. But all things must have an end, and even a hundred lawyers cannot talk either sense or nonsense forever if limited to ten minutes apiece—and on Friday the debate was wound up, Mr. Field having the last word, and the resolution was adopted by a vote of fifty-eight to forty-one. Whether it would have been adopted by so large a majority, or at all, if the vote had been taken earlier in the session, we have some doubt. But all things seemed to pave the way. The president seemed favorable, judging from some things in his address; Mr. Platt's paper on Wednesday evening is said to have inclined that way; and Mr. Semmes dealt a tremendous blow in its favor. Nothing else in the whole debate struck us so forcibly as the assertion by Mr. Semple, of Alabama, that in no other State of the Union is the law so well known and understood by the people at large as in Louisiana. Mr. Field is to be congratulated on his victory, which we must say was totally unexpected to us, and which we looked for still less when we heard the Yale Professor recommend the "cat" for wife-pelled to employ others against his will. It is the beaters. At all events, the debate will certainly do a great deal of good in exposing the puerile and contemptible arguments against the practicability and advisability of codification. It is noticeable that the chief opposition in the convention came from Massachusetts-although Story was a believer in codification - New York, New Jersey and Pennsylvania, while the South and West were favorable.

Under the title of "the Boycott and the Law," the Rockland (Me.) Opinion has a long leading article to show that in the case of Heywood v. Tillson, 75 Me. 225; S. C., 46 Am. Rep. 373, the Supreme Court of Maine have declared boycotting legal! The syllabus of the case in the American Reports is as follows: "No action lies by the owner of a house against one who maliciously refuses to employ any tenant of such house, and thus prevents the renting." This would seem to be good law, and not to authorize boycotting, inasmuch as it applies

only to an individual act, concerning private interests, having

case of the bigotted mistress who announces that "no Irish need apply." There is a vast difference between such cases and the case of men who conspire violently and forcibly to deter the public from dealing with a particular man. They may peaceably refuse to deal with him themselves - there is no law to compel them -- but they must not associate to deter the publie. Another point which laymen fail to appreciate, but which is familiar to lawyers, when exercised individually and privately may be is this, that an act which may be perfectly legal an indictable offense when made the subject of a conspiracy of several. We refer to the following for conspiracy of laborers against employers: Carew cases holding civil action of damages maintainable v. Rutherford, 106 Mass. 1; S. C., 8 Am. Rep. 287; Mapstrick v. Ramge, 9 Neb. 390; S. C., 31 Am. Rep. 415.

NOTES OF CASES.

TN Mayor, etc., v. Second Avenue Railroad Co.,

nothing of the nature of conspiracy in it, and only New York Court of Appeals, June 22, 1886, in

on what terms he can.

a civil action for damages and not an indictment for conspiracy. The Opinion quotes the following language from the case: "Every man has a right to determine what branch of business he will pursue, and to make his contracts with whom he pleases and He may refuse to deal with any men or class of men. And it is no crime for any number of persons, without an unlawful object in view, to associate themselves together and agree that they will not work for or DEAL WITH certain men or classes of men, or work under a certain price or without certain conditions." "Tillson had a legal right to employ or not to employ a laborer who happened to be a tenant of the plaintiff. By an act or by threat

order to prove the number of days' work performed upon a job, the plaintiff first proved by the gang forman that he correctly reported each day to the time-keeper the number of men at work upon the job. Plaintiff then called the time-keeper, who was also the head foreman, and proved by him that he correctly entered the time reported to him by the gang foreman in a time-book, which he produced. The book was then offered in evidence, held, competent. The court said: "The exception to the admission of the time-book presents a question of considerable practical importance. The ultimate fact sought to be proved on this branch of the case was

men.

the number of days' labor performed in making the repairs. The time-book was not admissible as a memorandum of facts known to Wilt and verified by him. His observation of the men at work was casual, aud it cannot be inferred that he had personal knowledge of the amount of labor performed. His knowledge from personal observation was manifestly incomplete, and the time-book was made up, mainly at least, from the reports of the gang foreThe time-book was clearly not admissible upon the testimony either of the gang foremen or of Wilt, separately considered. The gang foremen knew the facts they reported to Wilt to be true, but they did not see the entries made and could not verify their correctness. Wilt did not make the entries upon his own knowledge of the facts, but from the reports of the gang foremen. Standing upon his testimony alone, the entries were mere hearsay. But combining the testimony of Wilt and the gang foremen, there was, first, original evidence that laborers were employed, and that their time was correctly reported by persons who had personal knowledge of the facts, and that their reports were made in the ordinary course of business, and in accordance with the duty of the person making them, and in point of time were contemporaneous with the transactions to which the reports related, and second, evidence of the person who received the reports, that he correctly entered them, as reported, in the time-book, the usual course of his business and duty. It is objected that this evidence taken together is incompetent to prove the ultimate fact, and amounts to nothing more than hearsay. If the witnesses are believed, there can be but little moral doubt that the book is a true record of the actual fact. There could be no doubt whatever, except one arising from infirmity of memory, or mistake, or fraud. The gang foreman may, by mistake or fraud, have misreported to Wilt, and Wilt may, either intentionally or unintentionally, have made entries not in accordance with the reports of the gang foremen. But the possibility of mistake or fraud on the part of witnesses exists in all cases, and in respect to any kind of oral evidence. The question arises: Must a material ultimate fact be proved by the evidence of a witness who knew the fact and can recall it, or who, having no personal recollection of the fact at the time of his examination as a witness, testifies that he made, or saw made, an entry of the fact at the time, or recently thereafter, which, on being producel, he can verify as the entry he made or saw, and that he knew the entry to be true when made, or may such ultimate fact be proved by showing by a witness that he knew the facts in relation to the matter which is the subject of investigation, and communicated them to another at the time, but had forgotten them, and supplementing this testimony by that of the person receiving the communication to the effect that he entered at the time the facts communicated, and by the production of the book or memorandum in which the entries were made? The admissibility of memoranda of the first class is well settled. They

are admitted in connection with, and as auxiliary to the oral evidence of the witness, and this whether the witness, on seeing the entries, recalls the facts, or can only verify those entries as a true record made or seen by him at or soon after the transaction to which it relates. Halsey v. Sinsebaugh, 15 N. Y. 485; Gay v. Mead, 22 id. 462. The other branch of the inquiry has not been very distinctly adjudicated in this State, although the admissibility of entries made under circumstances like those in this case was apparently approved in Payne v. Hodge, 71 N. Y. 598. We are of opinion that the admissibility of memoranda may properly be extended so as to embrace the case before us. The case is of an account kept in the ordinary course of business, of laborers employed in the prosecution of work, based upon daily reports of foremen who had charge of the men, and who, in accordance with their duty, reported the time to another subordinate of the same common master, but of a higher grade, who in time, also in accordance with his duty, entered the time as reported. We think entries so made, with the evidence of the foremen that they made true reports, and of the person who made the entries that he correctly entered them, are admissible. It is substantially by this method of accounts that the transactions of business in numerous cases are authenticated, and business could not be carried on and accounts kept in many cases without great inconvenience, unless this method of keeping and proving accounts is sanctioned. In a business where many laborers are employed, the accounts must in most cases of necessity be kept by a person not cognizant of the facts, and from reports made by others. The person in charge of the laborers knows the fact, but he may not have the skill, or for other reasons it may be inconvenient that he should keep the account. It may be assumed that a system of accounts based upon substantially the same methods as the accounts in this case, is in accordance with the usage of business. In admitting an account verified as was this account here, there is little danger of mistake, and the admission of such an account as legal evidence is often necessary to prevent a failure of justice. We are of opinion, however, that it is a proper qualification of the rule admitting such evidence, that the account must have been made in the ordinary course of business, and that it should not be extended so as to admit a mere private memorandum, not made in pursuance of any duty owing by the person making it, or when made upon information derived from another who made the communication casually and voluntarily, and not under the sanction of duty, or other obligation. The case before us is within the qualification suggested. In Peck v. Valentine, 94 N. Y. 569, the memorandum there admitted was not an original memorandum, but a copy of a private memorandum made by an employee of the plaintifi for his own purposes, and not in the course of his duty, or in the ordinary course of business. The original memorandum was delivered, by the one who made it, to the plaintiff, who lost it, but testified that the paper produced, and received in evidence, was a

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mimicry or action, including the powers of melody, poetry and dancing.' Such without doubt was the minstrel of romance. But in the same article, it is said that in the reign of Henry the Eighth, the genuine minstrel was seldom to be found in England, and the name had popularly come to denote a mere musician. The modern definition of it in the dictionaries support the conclusion that the word minstrel has in modern times, come popularly to

denote the mere musician. In Webster's Dictionary, 1875, minstrel is defined as a musician;' minstrelsy is defined 'singers and players,' 'a number of musicians.' In Worcester's Dictionary, 1874, minstrelsy is defined 'instrumental harmony, music,'

'a band of musicians.' In Stormonth's Dictionary,

1885, minstrelsy is defined music, generally instru

mental;' ' a number of musicians."

6

Mr. Seligman, for the defendant, referring to the Vagrant Act of 1744, 17 Geo. 2, ch. 5, directed against minstrels," etc., said: "To regard the word minstrels' in the last mentioned act as synonymous with musicians in general would involve a great error and historical misconception. that time was a

aineenglish minste, of the end, who wandered

singer and musician, a vagabond,
from village to village, and from county to county,
accompanying his song and music with dancing and
mimic action, and should not be confounded with
the musical artist or with the performer in an
orchestra having a fixed abode and domicile.

"At and after the time of the Conquest the profession of the minstrel was in England a popular and privileged one. During the age of chivalry their persons were sacred, their profession was a passport, and their ranks were recruited from the flower of the nobility. They were poets as well as musicians, and often sang verses composed by themselves. From the time of Edward IV however the exalted character of the original minstrels was

the Court of Appeals of this State passed on these terms. The defendant maintains a well known permanent exhibition of wax works in the city of New York, never surpassed except by Mrs. Jarley's, and in connection with it employed a band of instrumental musicians, known as "Prince Lichtenstein's Hungarian Gypsy Band," to give concerts "in a room or alcove which opens at an elevation into a larger room or hall, and is on a level with a high gallery encircling said hall." For these concerts the defendant took out no license, and the action was to restrain further exhibitions until the law should be complied with. It was contended by the plaintiff that this music was "minstrelsy" within the statute which enacts that "it shall not be law-gradually lost, and their social degeneracy soon beful to exhibit to the public in any building, garden or grounds, concert-room, or other place or room, in this city, any interlude, tragedy, comedy, opera, ballet, play, farce, minstrelsy, or dancing, or any other entertainment of the stage, or any part or parts therein, or any equestrian, circus, or dramatic performance, or any performance of jugglers, or rope dancing, or acrobats, until a license for the place of such exhibition for such purposes shall have been first had and obtained, as hereinafter provided." The briefs of counsel are replete with learning, and some extracts will be amusing as well as instructive.

Mr. Lacombe, for the plaintiff, said: "In Jacob's Law Dictionary, vol. 4, page 287, minstrelsy is defined thus: 'Minstrelsy, derived from the French menestrel, a musician, fiddler or piper.' In the Encyclopædia Britannica, under title 'Minstrelsy,' we find the following definition: 'An ancient term applied equally to a singer and a instrumental performer, derived from the French menestrel.' In the same article it is said that 'it would seem that the minstrel, occasionally at least, set off his singing by

Before

came complete. The invention of printing, coupled with the increased cultivation of poetry and music by men of genius no longer influenced by the ideas of chivalry, accelerated their downfall. Elizabeth closed her reign, the degradation of minstrelsy was completed. A statute in her 30th year adjudged minstrels to be punishable as rogues and vagabonds. In the words of a satiric poet of the times

'Beggars they are by one consent, And rogues by act of Parliament.' "Bishop Percy, in his 'Essay on the Ancient Minstrels in England,' being an introduction to the Reliques of Ancient Poetry' (Pritchard's edition, London, 1876), says on page XXIII: "The minstrels were an order of men in the middle ages who subsisted by the arts of poetry and music and sang to the harp verses composed by themselves or others. They also appear to have accompanied their songs with a mimickry and action, and to have practiced such various means of diverting as were much admired in those rude times, and supplied the want of more refined entertainment.' And on page XLVII: 'The

minstrels set off their songs with all the arts of
gesticulation, etc., or ** united the powers of melody,
poem aad dance.' And on page LXXI: It was
common for the minstrels to dance as well as harp
and sing. * * * They probably, among their other
feats, played tricks of slight of hand.'

"So, in the International Encyclopædia we find
minstrels to be defined, 'a musician of the middle
ages, who was also a poet and singer. *** The
ministrels appear to have accomplish their song
with mimicry and action.'

"In Appleton's American Encyclopædia, minstrels are said to be, a class of men in the middle ages who amused their patrons by the arts of poetry and music, singing to the harp their own verses or the popular ballads and metrical histories of the times. They accompanied their music with mimicry and action.'

"In Moore's Encyclopædia of Music, minstrels are described as 'certain poet musicians of former times whose profession it was to wander about the countries they inhabited, singing panegyrical songs and verses on their occasional benefactors, accompanying themselves on the harp, violin or some other instrument.'

"In Johnson's New Universal Cyclopædia, minstrels are said to be the name applied during the middle ages in England, Scotland, France and Normandy to strolling musicians, who sang to the harp , verses composed by themselves and others, and usually accompanied with dancing, mimicry and other devices, to the amusement of royal or noble patrons.' "In Dr. Johnson's Dictionary, minstrel is defined: 'Itinerant musician.'

"Finally, in Burns' Law Dictionary (published in 1792), under the title, Minstrels, we read: Minstrel, in the laws against vagrants, signifies an itinerant musician wandering about the country in a state of strolling and idleness."

"From the above extracts it appears clearly that the word minstrel within the meaning of the above Vagrant Act did not signify an ordinary musician or player in an orchestra, but was therein used in its popular and universally accepted sense, as a strolling musician, and one whose music was but accessory to singing, mimic action, dancing and feats of like kind."

"Perhaps no stronger argument could be employed against the use of the word minstrel as synonymous with musician, in the generic sense, than the fact that both before and after the passage of the above Vagrant Act of 1744, that master musician, George Friedrich Haendel, composed and brought out in London in rapid succession his sublime oratorios, or sacred music dramas, with the aid of very large and highly trained orchestras, which he himself conducted. See Burney, History of Music, vol. 4, pp. 360, 664. We have yet to hear that the great Haendel, whose name is revered by the English people, and who has moved so many thousand souls by his grand tone-preaching, was ever apprehended as a minstrel and punished as a rogue and vagabond under the above Vagrant Act.

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165

aries minstrel' is also defined "The fact that in many of the standard diction'musician,' and does not militate against the results above arrived minstrelsy' as 'instrumental harmony' or 'music,' at. These are not the ordinary, but the poetic and from the poetic citations used in such dictionaries figurative significations of the terms, as will be seen figurative sense, the word minstrelsy is also used in in illustration of said definitions; just as in the the sense of poetry and of song; as for instance in (v. Webster's Dictionary.") the phrase 'the minstrelsy of the Scottish bards.'

strelsy' in the later acts instead of the former phrase "The true reason for the use of the word 'minstrels were originally companies of vocalists, who, 'negro minstrelsy,' is not far to seek. Negro minwith blackened faces and hands, and grotesquely songs, negro jokes, conundrums, dances, etc., acattired, gave public entertainments limited to negro companied by violins, banjos and castanets. In the course of time however these performances, though still retaining their general original comic and theatrical character, had developed a tendency to cosmopolitanism in the nature of the songs, jokes, fined to those of negro origin. And the word etc., so that the latter were eventually no longer conless with a view to prevent the obvious opportunity negro' was dropped from the act of 1862, doubtfor evading the law requiring a license to be taken simply dispensing with the negro complexions of the out for the performance of negro minstrelsy, by performers themselves as well as of their songs and jokes."

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respect for the new constitutional status of the (Perhaps the word "negro" was dropped out of colored brother. We only throw this out as a suggestion.)

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Mr. Seligman, goes on: "The common, ordinary fact, the only one which would convey any meaning and popular signification of the word 'minstrel'—in to the common people of to-day-is that synonymous Cyclopedia (New York, 1879), under the title, or cognate with negro minstrel.' Thus, the People's the middle ages, uses this language: 'At present Minstrels, after describing the strolling musicians of the word, poetically, denotes a poet, and popularly, those who give entertainments of comic, or negro songs.' So also in Johnson's New Universal Cyclopedia, we read under the same title, as follows: 'In modern times the name has been applied in a double sense. The comic singers of negro and other melodies are known in a complimentary sense nearly as the equivalent of as 'minstrels,' while the same term is often employed poet. Of this latter conception, Scott's 'Lay of the Last Minstrel' is a good example.'"

in "The Mikado:"
Mr. Seligman might have cited Nanki Poo's song
But it would not answer to lay much stress on the
"A wandering minstrel I."
Vagrant Act of 1744, for that act was directed
against gipsies among others, and the minstrels in
question profess to be gipsies. We wonder brother
Lacombe did not see that.

Mr. Seligman starts out by saying: "It will not

be contended by plaintiffs that the musical performances in question constitute 'entertainments of the stage.' There is no stage, no curtains, no scenery, no actors, no acting, in fact, nothing of the character of dramatic or theatrical representation.” This is a very good device to scoff at your adversary's strongest argument, and pay all your attention to his weak one. Mr. Seligman was right in his assertion, however. His antagonist did not take that ground, which it seems to us was his only, or at least his strongest one. There is certainly such a thing as the "concert stage," and that was what these gipsies were on. And that is the ground that the Court of Appeals adopt. They pay very little attention to "minstrelsy," merely saying that the word has a wider signification in modern use than in former times, and they hold that the music in question is an "entertainment of the stage." We advise all our readers to go to hear the Prince's band; they are excellent, and this suit is a good advertisement for them.

AMERICAN BAR ASSOCIATION.

ADDRESS OF WILLIAM ALLEN BUTLER, OF NEW YORK, PRESIDENT OF THE ASSOCIATION.

ON

the recurrence of our annual meeting it is a source of special satisfaction to me to welcome to the State of New York, and to the most attractive of its summer resorts, so many members of the American bar. Your presence attests the fact that one purpose of our organization is already fulfilled in the closer union of the members of our profession in the several States in that friendly personal intercourse which cannot fail to give inspiration and strength to our efforts for the improvement of the law. We are happily exempt from some of the disturbing elements which so largely inhere in other learned professions. We have no conflicting and contending schools, or sects, or parties, and the errand which brings us here is one which combines with a true spirit of fraternity an unselfish purpose to advance the welfare of our common country by strengthening the foundations of justice and purifying the methods of its administration.

The eighth article of our Consititution provides that the president shall open "each annual meeting with an address, in which he shall communicate the most noteworthy changes in statute law on points of general interest made in the several States and by Congress during the preceding year.

The same article makes it the duty of the member of the General Council from each State to report to the president annually, on or before May 1, any such legislation in his State.

By the kind attention of the members of the General Council and of the secretary of the Association, which I gratefully acknowledge, the task of examining the statutes enacted since our last meeting has been materially lightened, and by direct correspondence with the secretaries of State of the several States I have become possessed of some additional facts pertinent to the subject to which the mandate of the Constitution now directs our attention.

At the threshold of this investigation we must pause a moment, arrested by the thought that one of the most honored and esteemed members of our body,

John W. Stevenson, of Kentucky, who as its president a year ago, in this place, and in the presence of many now gathered in this assembly, performed the same duty with characteristic fidelity and care, has been suddenly taken from us by death within the past week, and on the eve of our annual gathering. After a long life, filled with useful labors in the sphere of his profession and in the service of his State and of his country, he has ceased from his labors, leaving to his kindred and to the community in which he lived an honored name, and to us a memory fragrant with the charm of his kindly, genial nature and of his enlightened sympathy with our best endeavors.

Since our last annual meeting regular legislative sessions have been held in fourteen States-Connecticut, Georgia, Iowa, Kentucky, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, Ohio, Rhode Island, South Carolina and Virginia.

The Session Laws of the Legislature of Michigan of 1885 were not published in time to enable my predecessor in office to examine and report upon them at the last annual meeting.

A special session of the Legislature of Kansas was held in January, 1886. Adding these statutes to the list, there are in all sixteen States whose legislation, besides that of Congress, is to be reviewed.

The fact that the Legislatures of less than one-half of the States have been convened this year is due to the very general adoption of the system of biennial sessions. Aunual sessions are held now in only about one-third of the States.

This expedient, resorted to mainly as a measure of economy, and as the most available means of lessening the flagrant evils of pernicious and ill regulated legislation, is at once a standing admission of the mischief of over-legislation and of inability to grapple with the mischief by any other means than that of restricting the opportunities of its exercise.

For a people claiming pre-eminence in the sphere of popular government, it seems hardly creditable that in their seeming despair of a cure for the chronic evils of legislation they should be able to mitigate them only by making them intermittent. Under the biennial system the temporary relief enjoyed in what are called the "off years" seems thus far to have reconciled the body politic of the several States which have adopted it to the risk of an aggravation of the malady when the legislative year comes round and the old symptoms recur.

The secretaries of State with whom I have communicated concur in certifying that no public inconvenience is caused by the biennial system, and one of them, in the State of Nebraska, in answer to my query, if biennial sessions occasion any public inconvenience caused thereby, writes: "None whatever. The public interests would be better subserved by having legislative sessions held only once is four years.

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A careful scrutiny of the legislation going an annually, or biennially, in the several States brings into special prominence two striking facts: first, the great disproportion between the number of bills introduced into the Legislature and the number which become laws, showing how largely the sessions are occupied with attempts at unnecessary or impracticable legislation; and second, the equally great disproportion between laws which promote private and local interests, and those which are of general public concern.

A few examples from statistics furnished me from official sources will suffice to illustrate these points. At the last session of the Legislature of Alabama the number of bills introduced was 1,469; of bills passed, 442. In Colorado, bills introduced, 700; passed, 178. In Illinois, bills introduced, 1,107; passed, 131. In Iowa, bills introduced, 1,113; passed, 181. In New Jersey, bills introduced, 712; passed, 275. In Peun

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