against the claim of the plaintiff in this action." Plaintiff demurred to the answer, and the demurrer was sustained. Held (Reynolds and Earl, CC., dissenting), no error that the fact set forth did not constitute a counter-claim; that as there was no allegation as to whether the increase in value took place before or after, or at the time of the breach, the amount of defendants' claim could not be ascertained by calculation, the statement of the amount of damages was a legal conclusion and under the answer the amount could not be reached, save by the intervention of a jury, and therefore defendants' claim, as set up, being for unliquidated damages, was not a proper set-off, and the demurrer was properly sustained. Frick v. White et al. Opinion by Lott, Ch. C.

BOOK NOTICES.

A Practical Treatise on the Power to Sell Land for the Nonpayment of Taxes. By Robert S. Blackwell. Fourth edition. Boston: Little, Brown & Co., 1875.

The power to sell land for the non-payment of taxes is one which is frequently exercised, and a very large number of cases, involving the validity of titles obtained through the exercise of this power, have been adjudicated by the Federal and State courts. Notwithstanding the fact that this power has been exercised by the States ever since their admission into the Union, no treatise appeared upon the subject of sale for non-payment of taxes until 1855, when Mr. Blackwell brought out his admirable work. The importance of the subject, and the ability and learning with which it was treated, brought the work into notice, and it was soon acknowledged to be a work of the very highest authority. In 1864 the second edition was prepared by other hands, the author having died; a third edition followed in 1869; and now the fourth edition appears.

It is hardly necessary to state that this treatise confines itself to a consideration of the exercise of the power of sale for non-payment of taxes and to the validity of titles so obtained, not considering, except incidentally, the taxing power or the validity of taxation laws. The work starts with a brief chapter on the fundamental principles which control the taxing power, and then proceeds to treat of the nature of the power to sell land for the non-payment of taxes, and of the strictness required in such sale. In chapters 6, 7 and 8, the levy of the tax, the authority to collect the tax and the demand of the tax are respectively considered. The main portion of the work is devoted to the sale and its concomitants and the title conveyed thereby. Near the close of the volume, the author makes some excellent remarks upon the principle of stare decisis, more particularly in respect to tax titles. There is also a chapter on the interpretation and construction of statutes affecting real property, in which a list of rules, derived from the cases, is laid down. This is an exceedingly valuable epitome of the principles of statutory construction.

The several editors of this work have interfered very little with the original text, that being justly deemed sufficiently clear, exhaustive and accurate to merit perpetuation. The added parts appear mostly in the form of notes. A reasonable degree of diligence seems to have been exercised by the editors in collecting and digesting the later decisions, and the work is entitled to a continuance of that patronage which has hitherto been accorded to it by the profession.

The Trial of Susan B. Anthony on the charge of Illegal Voting, and of Beverly W. Jones, Edwin T. Marsh and William B. Hall, Inspectors of Election. Rochester, N. Y.: Daily Democrat and Chronicle Book Print. 1874.

This is a pamphlet of more than two hundred pages, and contains an account of the proceedings on the trial of Susan B. Anthony on the charge of illegal voting at the presidential election in November, 1872; also, the proceedings on the trial of Beverly W. Jones, Edwin T. Marsh and William B. Hall, the inspectors of election, by whom Miss Anthony's vote was received. The trials took place in the United States Circuit Court at Canandaigua, N. Y., and are matters of general history, possessing, however, considerable legal interest. It will be remembered that it was claimed on behalf of Miss Anthony, 1. That she was legally entitled to vote; 2. That if she was not so entitled, but voted in good faith in the belief that it was her right, she was guilty of no crime; and 3. That she did vote in good faith and with such belief. The court, Hunt, J., held that she had no right to vote, and that good faith was no defense. He refused to submit the case to the jury, and a fine of $100 with costs was imposed upon the defendant. The inspectors were likewise summarily disposed of. The argument of Judge Selden, counsel for Miss Anthony, is very able and ingenious, and is the most interesting portion of the pamphlet in a legal point of view. Mr. John Van Voorhis also made an excellent argument in favor of the defendants, the inspectors.

Not the least interesting portion of the pamphlet, however, in a social point of view, is the appendix. This contains the address of Miss Anthony "delivered in twenty-nine of the post-office districts of Monroe and twenty-one of Ontario, in her canvass of these counties prior to her trial in June, 1873." It contains the "speech of Matilda Joslyn Gage, in Canandaigua and sixteen other towns of Ontario county, previous to Miss Anthony's trial;" and an essay by John Hooker, of Hartford, Conn., on "Judge Hunt and the right of trial by jury."

As an illustration of the "new views" of woman's rights in connection with the law of elections, this pamphlet is entitled to consideration.

NOTES.

The regular monthly meeting of the New York Bar Association was held Tuesday evening, March 9, 1875, when D. B. Eaton, chairman of the building committee, reported that the sum of $100,000 was necessary to purchase suitable grounds and buildings. There were about $20,000 in the treasury, and the sale of the building now occupied by the association would realize about $40,000. It was proposed to raise $25,000 by means of certificates and donations. Mr. Man thought the present was the proper season for action, and the association ought to procure a new building. Sometime ago the association was a power and did a great deal, but lately it had done nothing. For the past year, Mr. Man said, it had done absolutely nothing, and if it did not advance it would ignobly fail. He proposed that the scheme of the building committee be accepted, and the whole matter of raising money for carrying out the plan be referred to that committee with power to act, subject to the approval of the executive committee. This was adopted. Mr. Charles Tracy suggested an amendment to the usury laws, providing that upon any promissory note or bill of exchange hereafter made or drawn for the payment of not less than $1,000, within six months after the date thereof, it shall be lawful to secure or

take interest or discount at such rate or in such sum as shall be expressed therein, or otherwise agreed to by the maker or drawer thereof; provided, nevertheless, that the payment thereof be not secured in whole or in part by mortgage on real estate or chattels real. The bill was referred to the committee on law.

Governor Tilden has granted the following pardons : To John Emmrick and Henry Kahlert, sentenced September, 1873, in Kings county, for robbery, to five years in the Kings county penitentiary. The case, as presented and proved, was technically one of robbery, but it was by no means an aggravated offense. The officials regretted at the time of the trial that they could not make the punishment less. Many of the best citizens of East New York, who have personally known these boys, are satisfied that the offense was committed without a knowledge or appreciation of its enormity. They have been severely punished for this indiscretion. To Geo. F. McClellan, sentenced in 1874, in Kings county, for bigamy, to one year in the Kings county penitentiary. Judge Moore and the assistant district attorney, who prosecuted the case, think that the interest of justice require that the applicant be pardoned. Since the sentence they have learned that the woman whom the prisoner married while in a half drunken state to escape the charge of seduction, was already married to another man, who was still living. Had this fact been shown on the trial the prisoner would of course have been acquitted. To William B. Keane, sentenced February 1, 1875, in New York, for cruelty to animals, to three months in the New York penitentiary. The prisoner has already served more than one month of his term, which seems to be sufficient punishment for the offense.

The Southern Law Review has changed hands, and will now be published by Soule, Thomas & Wentworth, St. Louis, Mo. This excellent law quarterly has been edited and published for the last three years by Mr. Frank T. Reid, of Nashville, Tenn., who is the founder of the Review. Mr. Seymour D. Thompson, of the Central Law Journal, will have editorial charge of the Review, but will be assisted by Mr. Reid and the corps of contributors who have hitherto sustained the Review. Only one change is to be made in the Review, and this is the discontinuance of the "Digest of English and American Decisions," which, it is said, some lawyers object to as being incomplete, and, in a quarterly, not prompt enough for practical use, and which can be found, if desired, in the Central Law Journal. In place of the "Digest," it is proposed to insert selections from the English law journals. The custom of giving the names of the writers of articles will be continued. The Review has thus far been well conducted, and has justly earned a high reputation, which the present management, with its great facilities, will further enhance.

The Athenæum states that Mr. George William Hemming, of the chancery bar, is the author of the article in the current number of the Quarterly Review upon "The Judicial Investigation of Truth." - A writer in the Pall Mall Gazette claims, apropos, "Grevilles' Memoirs," that it is a criminal offense to libel a dead person. It has been so held in several early English cases. In De Libellis Famosis, 5 Coke, 125, the reason given for this holding is that the libel "stirs up others of the same family blood or society to revenge, and to break the peace." In R. v. Topham, 4 T. R. 128, the

defendant was indicted for publishing a libel of Earl Cowper, then deceased, charging that the earl was, in his life-time, destitute of filial duty and affection," etc. Lord Kenyon delivered the judgment of the court, holding that "To say that the conduct of a dead person can at no time be canvassed; to hold that even after ages are passed, the conduct of a bad man cannot be contrasted with the good, would be to exclude the most useful part of history. *** But let this be done whenever it may, whether soon or late after the death of the deceased, if it be done with a malevolent purpose, to vilify the memory of the deceased, and to injure his posterity, * * it is done with a design to break the peace, and becomes illegal." And the court accordingly held that the jury ought to have been asked "whether the papers were published in the spirit of a biographer, or with a malicious intention to defame and vilify the character" of the deceased. See, also, R. v. Critchley, 4 T. R. 132, n.

The judiciary committee of the Illinois Senate has reported back the resolution referred to the committee some days ago, directing the railroad commissioners not to bring any more suits against railroad companies, nor to prosecute those now in the Circuit Courts, until a decision should be had from the Supreme Court upon the constitutionality of the railroad law. The committee recommended the adoption of the law. There is some prospect of the passage, by the Pennsylvania legislature, of a usury law similar to that of this and other States, making the penalty for taking, or contracting to take, any more than six per cent per annum a total forfeiture of the principal as well as the interest. As the law now stands, the usurer is only forbidden to recover more interest than six per cent. Judge Treat decides that Buell's case does not come under the provisions of the Poland press gag law. The district attorney appeals the case, in consequence, to the United States Circuit Court.

At the annual meeting of the Barristers' Benevolent Association at the Middle Temple Hall, London, Lord Chief Justice Cockburn presided and made the following remarks: "In a profession like ours, both numerous and comprehending such infinite variety of ability and power, there must occasionally be instances of disappointment and failure. It is not every one who has exactly that forensic aptitude which insures success; and many a man who might have shone in some other profession fails in ours. Many a man who might have risen to eminence and opulence in our profession, for lack of opportunity, fails to achieve the success which he originally anticipated. So we find men who, only having their own intellectual resources to look to, falling into conditions of poverty and destitution and want, very often with an humble pride hesitating to seek relief from the charity and benevolence of others." Lord Cockburn, in response to a vote of thanks and some eulogistic resolutions, said if he had maintained the upright character and judicial integrity which have distinguished for centuries the judicial bench of England, the fondest object of his life and ambition had been achieved. The office of deputy registrar of the Lord Mayor's Court of the city of London is about to be created by the appointment of a solicitor of not less than five years' standing, to the post. The nomination of three candidates rests with the law, parliamentary and city courts committee of the corporation.

service in the particular colony. But it matters not whether Mitchell has or has not suffered his sentence since he is by common law disabled from sitting in

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.

dressed to the publishers.

The Albany Law
Law Journal.

ALBANY, MARCH 20, 1875.

CURRENT TOPICS.

Two bills have been recently introduced into the New York legislature affecting the status of married women as witnesses. The bill introduced into the Senate by Mr. Cole provides that in an action for criminal conversation a wife may be a witness for the defendant, and shall be competent to give evidence the same as any other witness on behalf of such defendant. The bill introduced into the Assembly by Mr. Petty provides that whenever a husband shall, for a criminal offense, be under an indictment, or examination, or trial, and shall offer himself as a witness, his wife shall be a competent witness in his behalf, and that whenever a wife shall, for a criminal offense, be under indictment, or examination, or trial, and shall offer herself as a witness, her husband shall be a competent witness in her behalf. The bill relating to testimony in an action for crim. con. is understood to have reference particularly to the Tilton-Beecher case. The proposed act may be a good one, but special legislation for particular cases is not to be recommended.

A writer in the London Law Journal expounds the law of disqualification by crime in its relation to the case of Mitchell, recently elected to Parliament. The writer shows that, at common law, a conviction for any crime which involves infamy also involves disability for any office of public trust, and cites Coke, Hale and Blackstone to sustain the position. Blackstone lays it down not only that a person attainted of treason or felony is incapable of sitting in Parliament (Comm., Vol. I, 175), but that the House may, upon complaint and proof of crime, adjudge a person to be disabled and incapable of sitting in Parliament. The case of Walsh, which came up in 1812, shows that a member may be expelled, notwithstanding a pardon. This was so, at least before the Felony Act of 1870. Lord Cochrane, who was convicted of a fraudulent conspiracy, was expelled, but was re-elected. His re-election was not disturbed, because it was believed he had been unjustly convicted. The writer maintains that the disability exists in all cases of felony, and that the disability is permanent. He also maintains that a sentence of transportation is not carried out by absence from the country. The sentence requires VOL. 11.- No. 12.

remove.

The Society for the Prevention of Cruelty to Animals is bringing animals into prominence in our courts in a way in which they never were before. There are a considerable number of cases in the books treating of the proprietary rights of owners of animals, and of the rights and liability of the owners for injuries committed by or upon animals in respect to third persons. But heretofore it has been deemed almost an inalienable right for owners of animals to do with them as they thought proper. But Mr. Bergh and his society and the statutes have altered all this. We mention only one of many cases where the owners of animals have been prosecuted for misusing them. A black mastiff was found by one of Mr. Bergh's officers operating a treadmill, at a cider press in New York, and Mr. Walker, the owner of the dog, was prosecuted for a violation of the act relating to cruelty to animals. He was tried and fined in the sum of twenty-five dollars. The case was appealed to the general term of the Supreme Court, where the argument for defendant was made by Mr. Southworth. Counsel claimed that there was no cruelty proven; that there was no evidence of malice; that the dog was employed for a useful purpose; that, if his neck was chained, there was no proof that it was not done casually. DistrictAttorney Phelps, in reply, argued that the treadmill had long been recognized as a method of legal prison discipline and punishment, and cited "Old Bailey Experiences" and "Webster's Dictionary." At the conclusion of the argument the court took the papers, and the decision is awaited with interest.

The scope of the New York license law was recently argued in the Supreme Court, general term, in the case of the People v. Schwab. The defendant was convicted for selling liquor without a license and the point made by counsel was that the beverage known as "German cider," for the selling of which the conviction had been procured, was not embraced in the list of strong and spirituous liquors, and that on that ground the judge before whom defendant was tried should have directed a verdict in his favor. The prosecuting officer stated that the beverage was Rhine wine, to which the defendant gave the name of "German cider" to evade the law. But counsel for defendant contended that the law did not comprehend any but intoxicating beverages and referred to numerous expressions of judges throughout the State in cases arising under the excise law. urged that there are some kinds of liquors containing so small a percentage of alcohol that the human

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stomach cannot contain sufficient to intoxicate. Rhine wine was claimed to be of this character. The counsel went into a learned disquisition of the elements of wines and of the percentage of alcohol to be found therein. In opposition to this view it was argued that the selling of any sort of wine was within the statutory provision. The decision is to be announced hereafter.

In the British House of Commons a resolution was

recently introduced that a committee be appointed to whom all public bills passing through the House shall be referred, and whose duty it shall be to report to the House upon each bill as to its accuracy of language, consistency of provisions, and harmony with existing legislation. Mr. Forsyth, the mover of the resolution, stated that since the reign of Henry III there had been passed 41,985 acts of Parliament; of these 18,297 were public acts. Of late years there had been a constant habit of making enactments not by plain words expressed on the face of the act, but by referring to previous acts, and by incorporating a portion of preceding acts, so that it becomes necessary to go back to those acts to ascertain what the legislature meant. There was also this habit an act would be repealed, not bodily but only a section or part of a section thereof, and annexed to the last act there would be a clause stating that so much of former acts as were not repealed remained in force. Thus it became necessary to go back from act to act, a task which even to a lawyer was almost hopeless. In 1856 a Statute Law Commission was created, but it failed to recommend any plan. The AttorneyGeneral admitted the justice of the criticism in many respects but requested that the motion be withdrawn, promising in that event that the government would appoint a select committee to inquire into the subject.

The President has nominated Isaac C. Parker, of Missouri, to be chief justice of Utah in place of Chief Judge McKean, removed. It is announced that the government, in the removal of Judge McKean, does not intend to abandon its policy in regard to polygamy - though what that policy is, cannot be determined by any of its results. Ever since the appointment of Judge McKean difficulties have arisen in the administration of justice and in the settlement of the jurisdiction of courts in Utah. The frequent conflicts between the various interests has rendered the administration of justice no easy matter. Judge McKean has made it uncertain and more difficult by his want of discretion and his nonjudicial temperament. We know nothing of the judicial qualifications of his successor; but it is to be hoped that he will be able to exercise that discretion, moderation and insight which have long been wanting in Utah.

A peculiar case has been decided by the Judicial Committee of the Privy Council of England. It appears that in 1873 the Dean and Chapter of the Cathedral of Exeter placed a new carved reredos in the Cathedral without asking the Bishop's consent. The carving represented the Ascension, the Transfiguration, and the descent of the Holy Ghost on the Day of Pentecost. The Bishop having ordered the removal of the reredos the Court of Arches reversed the decree of the Bishop and an appeal was taken to the Privy Council. Lord Hatherly delivered the opinion of the Council, in the course of which he said that the reredos depicted historical subjects with which the minds of the people were familiar; that it was not erected for the superstitious reverence of any of the figures upon it, and that it in no way differed from similiar sculptures or representations in many parish churches throughout the kingdom, to which had never been attached any idolatrous or superstitious use whatever. The reredos was therefore declared to be no infringement of the ecclesiastical law.

A new rule in admiralty practice has been adopted in the United States Circuit Court, for the southern district of the second circuit, for the purpose of carrying out, more efficiently, the provisions of the recent act of congress, in regard to the finding of facts and of conclusions of law by the Circuit Court. In admiralty cases, on appeal, each party to an appeal shall furnish to the court, at the beginning of the hearing, and shall serve on the proctor for each of the other parties to the appeal, five days before the hearing, a printed finding of facts and conclusions of law, as proposed, printed on writing paper on only one side. If this be not done the party in default will not be heard on the appeal, and, if the party in default be the appellant, his appeal will be dismissed.

In 1873 Señor Don Arturo de Marcoartu offered, through the British Social Science Association, a prize of £300 for the best essay on the subject "In what way ought an International Assembly to be constituted for the formation of a code of public international law, and what ought to be the leading principles on which such a code should be framed." The conditions of the offer were given in volume 8 of this journal, page 192, one of which was that "the adjudicators shall have power to give one prize of £200 and one of £100." The adjudicators have, it seems, exercised this power, and Dr. C. W. Ryalls, of London, the General Secretary of the British Social Science Association, has notified Mr. A. P. Sprague, one of the editors of the ALBANY LAW JOURNAL, that the first prize of £200 has been awarded to him. The second prize was awarded to Paul La Combe. Mr. Sprague's essay was submitted

last June and consisted of about one hundred and fifty pages of legal cap manuscript. The prize will be presented at the annual Congress of the Association to be held in Brighton, England, in October next. The adjudicators were men of reputation as jurists and publicists and their award is, in every respect, a distinguished honor to the gentleman named.

It having been stated that the German newspapers were warning the German public that their goods might be liable to seizure in Philadelphia if the Centennial should prove bankrupt, two opinions adverse to this view have been brought forward. Attorney-General Williams wrote an opinion, several months ago, holding that goods sent either from foreign countries or from any part of this country for exhibition, are not liable to seizure if the Centennial should become bankrupt. The counsel for the Centennial commission also declares, that, by the laws of Pennsylvania -by which the Centennial contracts are governed goods deposited and placed on exhibition are free from seizure, and are not liable for the debts of the person or corporation receiving them. The buildings will be a sort of United States bonded warehouses, in which all foreign goods, for exhibition only, will be entered and allowed to be returned free of duty. In this opinion several eminent Pennsylvania lawyers concur.

NOTES OF CASES.

In Hummel et al. v. Lycoming Mutual Fire Ins. Co., 1 Weekly Not. Cas. 259, the Supreme Court of Pennsylvania considered the liability of the members of a mutual insurance company for assessments. In 1869 complainants insured in the company, and up to October, 1871, paid such assessments as were levied by the directors upon the premium notes. At the latter date, owing to severe losses sustained by the company in the Chicago fire, a heavy assessment was made, followed in a few months by a second and third. These assessments were not paid and a judgment was entered upon the premium notes against complainants. The present bill was filed to set aside the judgment on the ground, among others, that before the date of the last two assessments the complainants had ceased to be members of the company, by reason of not having paid the first assessment, the policy providing that "whenever an assessment shall have been made upon the premium notes, and the same is not paid within thirty days after demand duly made, the policy of insurance given upon such note shall be null and void until the said assessment be paid, and the directors shall retain such premium notes and collect thereon such sum or sums so assessed." The court held that the effect of this clause was not to create an absolute extinguish

ment of the contract of insurance. The effect of the clause was merely to suspend the benefit of the policy until payment was made, and, therefore, the second and third assessments could lawfully be made, the complainants not having ceased to be members of the company.

In Egbert v. Egbert, 1 Weekly Not. Cas. 261, the Supreme Court of Pennsylvania held that a subscribing witness to a will may, on the trial of an issue devisavit vel non, be cross-examined as to the testator's sanity at the time of the execution of the will. The court said: "The signature of a subscribing witness to an ordinary instrument of writing implies nothing more than that the instrument was signed by the person whose act and deed it purports to be. It is not so in the case of a subscribing witness to a will. His attestation is an assertion not only that the will was signed by the testator but of the further fact that the testator was of sound mind when he executed it. * * * The condition of mind of a testator at the time of the execution of his will is a part of the res gestae, ** It is clearly the right of parties contesting a will to inquire into such matters upon cross-examination of the subscribing witnesses. Nor is this a departure from the familiar rule of evidence that a defendant who has not opened his case will not be allowed to introduce it to the jury by cross-examination for the reason, as before stated, that the mental condition of a testator at the time of the execution of his will is a part of the res gestae." In Harden v. Hayes, 9 Barr. 151, it was held that the declarations of a deceased subscribing witness to a will may be given in evidence to invalidate it. In Whiteneck v. Stryker, 1 Green's Ch. 11, it was said that of all the witnesses the testamentary witnesses and their opinions and the facts they state as occurring at the time are to be particularly regarded by the court. They are placed around the testator for the very purpose of attesting, after his death, to the circumstances under which so solemn an instrument is executed. See Turner v. Cheeseman, 15 N. J. Eq. 243; Harrison v. Rowan, 3 Wash. C. C. 580; Stevens v. Vancleve, 4 id. 262; Scrilmer v. Crane, 2 Paige, 147.

In Tenbrooke v. Jahke, 1 Weekly Not. Cas. 235, the Supreme Court of Pennsylvania held, that damages for the opening of roads and streets are a personal claim and do not run with the land. McFadden v. Johnson, 72 Penn. St. 335, was referred to in the opinion. In that case the plaintiff was owner of land through which a railroad was constructed; without receiving damages she sold the land; and the company afterward settled with the purchaser and paid him the damages. Held, that she could recover the amount from him.