court, I believe I can avail myself of tho courtesy which you have just now extended to me. In my abscence yesterday, my brother Evarts, who is my friend, quoted from a Massachusetts report in reference to me, and, as published by the press, most injuriously. While I believe they published simply what took place, I discard from my mind the slightest intent on the part of my brother Evarts to injure me--I know he would not. I have the honor of the friendship of counsel of both sides. In Massachusetts I was approaching a marriage with a young lady,and a reverend gentleman interposed a letter of libel upon me, and destroyed five visits to that lady. Important. And on the day before the marriage, in generosity, I burned that letter; and on the next day after my marriage he wrote another letter that he could prove what took place. I brought my action, and for these five visits alone the jury gave me $100 for each. For, with that power of language which I have as well as Rev. Ward Beecher, one hour with a lady is equal to three months with mere clods of humanity. I wish to vindicate myself, and that my brother Evarts-I see Judge Porter there with melancholy thought-that he will upon occasion do me justice.

Great Britain has declined to send a representative to the St. Petersburg International Code Conference, alleging that no practical result can be expected. The federal council at Berlin has empowered Prince Bismarck to conclude an extradition treaty with the United States.- Chief-Justice Monell announced on Monday that the superior court, general term, would not adhere to the new rule as to the calendar for the present month, as the lawyers do not seem to be acquainted with it. He also announced that it was improbable that there would be a full general term during the present month.-The Senate Judiciary Committee had before them this week the bill making the salary of the judge and clerk of the court of arbitration in New York a charge upon the city and county of New York, instead of on the chamber of commerce, as at present. No action was taken upon the bill, but it is not thought likely that the committee will recommend its passage, unless there should be such an expression of sentiment in its favor as to convince them that the officials and people of New York desire the change to be made.

The philanthropists who are exerting their influence toward the utter abolition of capital punishment may, if they cannot secure this, endeavor to mitigate the rigors of the death penalty. Hanging has some features which might be eliminated by a change in the method. Thus beheading would probably be less painful, as it is much quicker, although there is a great prejudice against mutilating the body of even a criminal. We shall not expect to see hanging displaced by decapitation. The same is true in respect to blowing the criminal to pieces at the mouth of a cannon. Poisoning, by certain quick and deadly poisons, would be much easier for the doomed man, and much less disgraceful, than hanging. If the condemned should choose a slow and yet painless poison, he might be allured, like Socrates, to discourse on immortality, and counsel with relatives and friends, pending dissolution. Of course, few modern criminals would be expected to illustrate the domain of philosophy by the production of the materials for a Phaedon at the point of death.

But one cannot but wonder what philological revelations Ruloff might have made, had he been allowed to take the hemlock instead of the halter. Then there is drowning, which is a very ancient mode of punishment. The Britons, according to Stow, inflicted death by drowning in a quagmire as early as 450 B. C. In 370 A. D., eighty bishops are said to have been drowned near Nicomedia; and Louis XI is said to have adopted drowning as a punishment in France. We know of no more desirable death for a condemned man than drowning, unless it be some artificial form of euthanasia, such as a deadly shock from an electric battery.

The Law Times gives an abstract of the case of Estcourt v. Estcourt Hop Essence Co., in which it appeared that the plaintiff, who was a manufacturer of an article used as a substitute for hops, called "Estcourt's Hop Supplement," employed his son C., one of the defendants, as his agent, who thereupon undertook not to disclose the secret of the compound, or at any time be connected with the sale of any article which could be used as a substitute for hops. During the time of his agency C. discovered the secret of the manufacture. He shortly afterward terminated his agency, and began to sell a practically similar compound, which he called "Hop Essence." A bill was filed against him by the plaintiff to restrain him from continuing the sale, when he submitted and signed an agreement binding himself to observe the former agreement, and do the plaintiffs no injury in their trade. After this C. associated himself with one Taylor, and circulars were issued advertising the sale of "Estcourt's Hop Essence, sole proprietor, James Taylor." The defendant company was formed for the purpose of selling the "Hop Essence" under the name of "Estcourt's Hop Essence." The court being of opinion that the company was not a bona fide company, but part of a scheme for injuring the plaintiffs in their business, restrained the company and C. from selling the "Hop Essence," and restrained the company from trading under the name of "The Estcourt Hop Essence Company," and also restrained C. from disclosing the secret of the " Hop Supplement."

In Ohio the rights of mortgagees have been recently adjudicated in the case of Oberlin College v. Goodwin. This was an action to a judgment on a note, and to foreclose a mortgage executed and delivered to the plaintiff. The defendants, F. W. Barnhart and wife, set up a second mortgage upon the premises, and asked its foreclosure. They also claim that the plaintiff's note and mortgage were given in renewal of a former note and mortgage which drew seven per cent interest when the statute authorized only six per cent. The defendants, Wm. E. Goodwin and wife, makers of the note and mortgage, failed to answer. The court held, that a second mortgage had the right to insist that the land mortgaged should not only be held for, or charged with, the payment of the first mortgage debt and legal interest thereon, if the proceeds of the sale of the land were insufficient to pay both mortgages, including the usurious interest on the first mortgage. But if the land sold for an amount sufficient to pay the first and second mortgages, with interest on the first at seven per cent, and the mortgagor was willing to pay such illegal interest, it does not lie with the owner of the second mortgage to object to it.

All communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be ad

dressed to the publishers.

The Albany

Albany Law
Law Journal.

ALBANY, FEBRUARY 13, 1875.

CURRENT TOPICS.

Both houses of congress have passed Senator Edmund's bill, regarding appeals to the United States Supreme Court, and it now awaits the signature of the president. This bill provides that whenever, by existing law, an appeal to the Supreme Court can be taken only when the sum in dispute shall exceed $2,000; such appeal shall be allowed hereafter only when the sum exceeds $5,000; and also on appeals from the circuit court in admiralty and maritime causes, when the facts have been found by a jury, the Supreme Court shall only review questions of law. It was recently stated by one of the judges of the court, that fully half the cases argued and decided in the Supreme Court, are controversies for amounts less than $5,000, so that we may safely assume that limiting the right of appeal to cases involving over $5,000, will reduce by one-half, the labors of the court.

The address of Mr. Throop, of the commission to revise the statutes, to which reference was made last week in this journal, has called forth a letter from Mr. Werner, addressed to the senate judiciary committee in which he refers to certain aspersions of his conduct as commissioner. Mr. Throop is reported to have said to the judiciary committee that, "in reality, they" (the volumes of the revision thus far produced)" are the work of one commissioner from April, 1870, to July, 1871, and of two commissioners from July, 1871, to January, 1875." Mr. Werner seems to think that this statement is intended to mean that his efforts are not represented in the work thus far produced by the commission, and he asserts that "so far as this statement reflects upon me and my work, I pronounce it grossly unjust and untrue, as I can abundantly show by both the letters of my colleague and my own manuscripts." Mr. Werner, therefore, invites an investigation by the senate judiciary committee. In reply to Mr. Werner's letter, Mr. Throop states that he did not deny that Mr. Werner had prepared a large mass of manuscript. But Mr. Throop says that if Mr. Werner will point out the places in the printed books containing any considerable amount of original matter contributed by him, he (Mr. Throop) will retract what he has said.

VOL. 11.- No. 7.

Mr. A. M. Osborne, of Catskill, has been appointed by Governor Tilden, Justice of the Supreme Court, in the third department, to fill the vacancy caused by the election of Judge Miller to the Court of Appeals. Mr. Osborne has held the position of judge of Greene county. His name was prominently mentioned in connection with the vacancy occasioned by Judge Hogeboom's death. He is a man of ability, and possesses ample qualifications for the office to which he is appointed.

Among the more important bills introduced into the New York senate is an elaborate act for the incorporation of villages, introduced by Mr. King, and consisting of 108 sections; an act to regulate the sale of spirituous and fermented liquors, introduced by Mr. Jacobs; an act introduced by Mr. Laning, providing for the discharge of mortgages, under certain conditions, where thirty years or more have elapsed after they become due; and an act introduced by Mr. Kellogg relative to the punishment of attempts to commit offenses, and amending section 3, title 7, chapter 4 of the Revised Statutes, so as to include offenses punishable by imprisonment for life. As the statute now stands an attempt to commit such an offense is not enumerated. An act introduced by Mr. Gross to amend the act authorizing corporations to hold and convey real estate for business purposes in other States, with the consent thereof. An act introduced by Mr. Kellogg amends section 304 of the Code, and provides that the plaintiff in any action hereafter brought in the Supreme Court for assault, battery, malicious prosecution, libel or slander, wherein all the parties shall be residents of the same county at the time of the commencement of the action, shall not be entitled to any costs if he recover less than two hundred and fifty dollars. Mr. Wood has introduced an elaborate act of 94 sections providing for the organization of saving banks, and for the supervision and administration of their affairs. Mr. Fox has introduced an act providing for the maintenance of prisoners confined upon civil process. This bill provides that in such cases the support of the prisoner shall be a legal charge where he is not able to support himself during his imprisonment.

Among the bills introduced into the assembly we notice the following: An act in respect to legal holidays to be observed in the acceptance of commercial paper, introduced by Mr. Davis, and providing that the day of presentation or payment shall be the day preceding the holiday, instead of the day succeeding, as the law now is; an act amending section 227 of the Code of Procedure, introduced by Mr. Hammond, and providing for the attachment in certain cases of the property of a person or corporation who has wrongfully converted the property of the State, or

of a municipal corporation. An act, introduced by Mr. T. C. Campbell, providing for the forfeiture of property used in the violation of any provision of law relating to animals, or fights among animals. An act, introduced by Mr. T. C. Campbell, concerning security for payment of costs, amending section 6, title 2, chapter 10, part 3, of the Revised Statutes, and giving more specific directions as to justification of sureties. An act, introduced by Mr. Prince, excluding from the right of suffrage all persons convicted of bribery, or of any infamous crime. Also, an act, introduced by Mr. Prince, making some changes in the form of the oath of a challenged voter. Mr. Prime has introduced a bill conferring upon boards of supervisors certain powers of local legislation and administration relative to roads and bridges; also an act conferring certain powers upon the supervisors relating to cemeteries. The committee on general, local and special laws have reported a bill for the incorporation of societies for the prevention of cruelty to children. This bill provides that "any member of the society may prefer a complaint before any court or magistrate having jurisdiction, for the violation of any law relating to or affecting children, and may aid in bringing the facts before such court or magistrate in any proceeding taken." An act has been introduced by Mr. Lincoln, to assess and tax corporations, express, telegraph and navigation companies at the comptroller's office in Albany. An act has been introduced by Mr. Struble, providing that "every married woman shall be liable on every contract, obligation or conveyance hereafter," entered into by her, and that she "may sue and be sued and proceeded against in relation thereto," in the same manner as if she were unmarried.

*

Mr. Prince is engaged in drafting several other "general bills," designed to carry out the provisions of the constitutional amendments of last year. In fact, the major portion of that branch of legislation seems to have been committed to him by a sort of common consent; and it could not have been committed to more competent hands. It was mainly through his well-directed effort and judicious management, that the amendments received the sanction of the legislature, and much of their success before the people was due to the earnest and persuasive arguments issued by him in their behalf. Prince is a legislator of the very best type, and he has done some service to the State" not an altogether common thing in this day and generation. As chairman of the Judiciary Committee of the Assembly in 1872, he conducted the investigations which resulted in the impeachment of Judges Barnard, Cardozo and McCunn, and as one of the managers on behalf of the Assembly, he aided materially in bringing about a conviction of the first-named

Mr.

judge. These are some of his more obvious services, but, in many respects, not the most important. As chairman of the Judiciary Committee for the three years preceding the present session, he exerted a most healthful influence over the legislation of the State, especially in opposition to special legislation. Loyal to his party without being a partisan; clear and comprehensive in his view as to the duty of a legislator; with that kind of knowledge which always lies ready for practical application; with that sort of eloquence which is the offspring of frankness and perfect sincerity, and with an integrity entirely above suspicion, it would hardly be too much to say that in him we realize Mr. Bentham's ideal lawmaker. In the senate, Mr. Kellogg, of Chittenango, seems to take the lead in putting aside the axes of Smith and Jones, and giving attention to public affairs. He has introduced some measures of considerable general importance, and is engaged upon others of a like character.

Governor Tilden has transmitted to the senate a statement of pardons and commutations of punishment granted by his predecessor, Governor Dix, during the year 1874. The statement is a most interesting and suggestive document. Among the grounds for pardon we notice "good behavior," and "previous good character." These constitute the basis of the pardon in many instances where the term of imprisonment is short. The continuous or probably fatal illness of the prisoner is made the But the ground for pardon in other instances. most remarkable information to be gleaned from this statement of pardons is the fact that about one dozen persons were pardoned on the ground that they were innocent of the offense for which they were convicted, or that their guilt was exceedingly doubtful. This state of facts show an administration of criminal justice far from satisfactory. In such cases simply restoring the convicted person to his liberty and rights is no adequate compensation. He should at least be allowed a new trial and a chance for an acquittal, that all the world may know that he is innocont.

The committee on the revision of the laws of the United States has reported a bill in the house of representatives to correct errors and supply omissions in the Revised Statutes. These corrections and additions are not understood to be numerous; although some of them are important. The work of the revisers of the United States Statutes was, as a rule, satisfactorily done. And, considering the amount of labor involved and the fact that 17 volumes of statutes at large were put into a convenient and comprehensive form, it is not surprising that some changes in the work of the revisers need to be

made. The revision seems to meet the approval of the ablest lawyers, who express themselves in the highest terms of the labors of the commission and of the thoroughness and accuracy of the compilation. It is announced that the complete revision, with index and notes, will be ready for distribution in a short time.

NOTES OF CASES.

In Hobbs and Wife v. London, etc., Railway Co., the Queen's Bench decided a most important question relative to the liability of railway companies for causing inconvenience to passengers. Through the negligence of the company the plaintiffs and their two children were taken to the wrong station on the railroad, and had to walk several miles home in the middle of a wet night. The plaintiffs recovered £10 for the personal inconvenience, and £20 for damages for the illness of the wife arising therefrom. The court, on a rule to reduce the damages, held that plaintiffs were entitled to retain the amount awarded for the personal inconvenience, but not the £20 damages for consequent illness. The latter injury was too remote. In Damont v. Railway Co., 9 La. Ann. 441, it was said that "if a passenger is negligently carried beyond the station where he intended to stop, and where he had a right to be let off, he can recover compensation for the inconvenience, the loss of time, and labor of traveling back, because these are direct quences of the wrong done him."

conse

Our Court of Appeals, on Tuesday last, affirmed the decision of the Supreme Court in Manufacturers' Bank v. Cox, Adm'x, 5 N. Y. Sup. 126. This is an important case concerning the mutual duties of partners. The plaintiffs' assignors and the deceased were partners in the manufacture and sale of stoves, at Troy, their market extending throughout the country. The deceased was at liberty to engage in other business not conflicting with the interests of his firm. The deceased for his firm bargained with one Brown, an employee of his firm, for the exclusive privilege of using a certain patented improvement for stoves, belonging to Brown, in the Troy market, for $1 per stove royalty, which was a reasonable price. On the same occasion he also made a private arrangement with Brown, by which he agreed to use his influence for Brown to sell the improvement to dealers generally throughout the country, in consideration that Brown should pay him one-half the royalties, including those to be paid by the decedent's own firm. This private arrangement was kept secret from his partners. For four years the deceased paid Brown the royalty for his firm, annually, and annually received back one-half of it, and appropriated it to his own use. The de

cedent never rendered Brown any service under the private arrangement, was never called on to render any, and the only money he received under it was the half of his own firm's royalties. The firm was afterward dissolved by consent and a settlement had. Afterward the parties discovered the deceit, and after decedent's death brought this claim against his estate. The referee reported for the defendant, the general term reversed the decision and granted a new trial, and the defendant appealed, with the above result. The decision emphasizes the necessity for the most absolute and unequivocal good faith between partners, and establishes the liability of one to account to the others for any profits he may make in another and competitive business, and his duty, when serving as agent for his partners, to act for their best interests, and if he buys for them, to buy as cheaply as possible.

The Court of Appeals of Kentucky in Wolfolk v. Bank of America, decided an important point relaIt tive to the filling of blanks in negotiable paper. appeared that Nicholas & Woolfolk desiring to accommodate Atwood, a bill of exchange was signed Pay to the by Nicholas in the form: "$500,

order dollars, value received." When Woolfolk indorsed the bill it read: "$500, ninety days after date, pay to the order R. H. Woolfolk dollars, value received. Payable at office The bill was afterward, by Atwood, filled out so as to read: "$5,000, ninety days after date, pay to the order of R. H. Woolfolk, five thousand dollars. Value received. Payable at office Bank of America.” The figures were in the margin of the bill. Atwood negotiated the bill with the Bank of America. In an action by the bank to recover the value of the bill, held, that the amount called for by a bill is governed by that written in the body of it, and not by the marginal figures; that a different rule applies where blanks are left to be filled out, from the rule where material alterations are made in a note or bill already filled out; and that there being nothing in appearance of the bill to indicate that $5,000 was the not the amount originally intended by the maker and indorser, the bank was entitled to recover the face of the bill. This decision is in accordance with the weight of authority. In Redlich v. Doll, 54 N. Y. 234, where the maker of a note payable to his own order left a blank after the word "at" for the place of payment, and indorsed it to another person upon the agreement that it should not be · negotiated, and the indorsee, notwithstanding, filled out the blank with a place of payment and negotiated the note, held, that the maker was liable to a bona fide holder. The rule seems to be that if makers of negotiable paper wish to protect themselves, they should leave no blanks in the paper.