and the residue of his personal estate (sworn under £140,000) he leaves upon trusts similar thereto. Was it not Mr. Bright who said that really you know nothing of a man until you have seen his will? What would Mill and Jeremy Bentham say to this will of Charles Austin's ?"-The London Law Journal states that a parliamentary return, ordered on the motion of Sir Sidney Waterlow, shows that in the legal year ending with the long vacation of 1874, there were 416 causes tried at Guildhall before judges of the Superior Courts, and there were as many as 786 causes made "remanets." Of Queen's Bench causes there were only 115 tried and 554 remanets. In the same year there were 838 causes tried at Westminster and 447 remanets; in the Queen's Bench, 236 tried and 270 remanets. In the return from the Court of Exchequer it is stated how many of the causes were made remanets "by consent "— viz., 28 of the 59 remanets in London and 22 of the 121 at Westminster.

The London Law Journal makes the following observations which apply largely to the Tilton-Beecher trial: "Much ory and little wool' is an aphorism applicable to some cases which seem to possess a faculty for prolixity out of all proportion with the difficulties, either in law or fact, presented by them. For ten whole days Vice-Chancellor Malins was occupied, at the close of Hilary Term, in hearing the cause of The Panama and South Pacific Telegraph Company, limited, v. The India Rubber, Gutta Percha, and Telegraph Works Company, limited, Markham Gray, and Sir Charles Tilston Bright. Yet the facts having any actual relation to the question in the suit were few and simple, and scarcely open to doubt. Plenty of extraneous matter found its way into the cause, as often happens when the parties can afford a prolonged contest, and where something more important than a sum of money appears to be at stake."

The London Law Times refers to the schemes for the appellate jurisdiction in England, as follows: "In 1872 Lord Coleridge, being then Attorney-General, thus addressed the Social Science Congress at Plymouth: 'It is not easy, and I do not pretend to be able to suggest a simple and perfectly inoffensive amendment of the Court of Final Appeal, because here any changethat is, any change worth making-involves destruction. * * * The jurisdiction of the House of Lords, except that suitors are a small body, belong to no class, and have no power of combination, would long since have been swept away as an intolerable and outrageous abuse in point of practice. * * After quoting instances of the 'endless delays and immense expense' of the House of Lords, Lord Coleridge went on to say, 'For my own part no alteration will be satisfactory, and I can take no part, either officially or privately, in supporting any which leaves to the House of Lords as such, the right of deciding causes. It is one thing to acquiesce in an anomaly which we have

* "

received from our ancestors, and which has the conse cration of centuries. It is quite another to enact it afresh, and to stamp with our approbation what is unworthy of it.' And the noble lord's practical suggestion was this: A court of eight members, at the least, in which Scotland, Ireland, and the colonies should be represented, and of which all existing law lords should be ex officio and unpaid members, * * I believe could well dispose of the business now disposed of by the House of Lords, the Judicial Committee and the Exchequer Chamber. *One source

of supply for the future, I would make the Ex-Lord Chancellors and Chief Justices, whose pensionswhether maintained at their present rate or reduced -should be dependent until some given age, seventy or seventy-five perhaps, on some fixed amount of service as members of the Court of Appeals.'"

The following are examples of the attacks of English newspapers on English judges: The Morning Post says: "Mr. Justice Denman will have rendered an immense service to the nation if the result of the recent committal of Cradock for contempt of court should be that a similar act is rendered impossible for the future." The Times says: "We do not say that Mr. Justice Denman was not acting at Hertford within his powers, but we do unhesitatingly say this: "That the case proves that such powers ought not to be vested in any judge.'" The Pall Mall Gazette says: "We trust that the discussion in parliament will induce the judges to set bounds for themselves to the authority which they at present exercise with respect to contempt of court. Arbitrary authority of any kind is a dangerous possession, and is apt to grow by invisible accretions in the hands of its possessors; it is only by the jealous supervision of those for whose ultimate benefit it is conferred, and by the wise self-restraint of those who wield it, that it can be prevented from degenerating into a scandal, if not into an absolute instrument of oppression." The Morning Advertiser, commenting on the same case, remarks, "that it hopes to see it made the pivot of re-action, and Sir Alexander Cockburn's pleasant theory and practice of contempt stamped with all the reprobation it merits at the hands of a free people."

Serjeant Ballantine had a great ovation in India, when he went to defend the Guicowar of Baroda from the charge of attempting to poison Colonel Phayre. A large crowd assembled at the station at Bombay, from which Mr. Serjeant Ballantine and Mr. Purcell started for Boroda. At Bulsar station a crowd was assembled, who cheered when the train went by. At Surat several native chiefs and an immense assemblage of people awaited the arrival of the train; the learned gentlemen were entertained with tiffen (luncheon) by the Rajah of Rus Boyle; they were also decorated with garlands, and pan sowpari was served and a poem read in honor of the serjeant. Again, at Broach, all the Vakeels of the district met the train, and again the people insisted on serving pan sowpari and decorating them with garlands. On their arrival at Baroda the crowd was so immense that the learned serjeant and Mr. Purcell had great difficulty in forcing their way to a carriage. Torchmen and native gentlemen on horseback escorted them to the little camp where their tents were pitched.

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 addressed to the publishers.

The Albany

Albany Law Journal.

ALBANY, APRIL 17, 1875.

CURRENT TOPICS.

[R. GROSS has introduced a bill into the Senate

MR.

to abbreviate the forms of deeds, mortgages, and covenants. The well-known prolixity of legal documents, especially those relating to interests in real estate, has occasioned considerable dissatisfaction and even ridicule in the non-professional community. The process of simplification and abbreviation has been pretty well carried out in this and other States in pleadings. And there is nothing to hinder any contract or conveyance relating to any interest whatsoever being made in the simplest, shortest, and plainest form possible. But the profession adheres to its traditions when the statutes do not intervene; and Mr. Gross has initiated a good movement. The first section of his bill provides that a deed may be made in the form:

"This deed, made the day of -, in the year, between [here insert names of parties], witnesseth, that in consideration of [here state the consideration], the said doth [or do] grant unto the said all [here describe the property, and insert covenants and other provisions]."

66

Other provisions of the bill are intended to declare that any forms of expression such as "This is a quit-claim deed" or This is a mortgage," shall mean just what they say. It certainly would be a great saving of time and expense, a great avoidance of trouble and misconstruction if short forms for deeds could be universally adopted. For there is little force in the old plea that prolixity, verbosity, and formality are symbols of the gravity and significance of the act, and that a man should not be deemed to have intended to do an important thing, unless it is accompanied with corresponding formality and fullness of expression.

The Solicitors' Journal remarks that the necessity for defining by legislation the power of judges to commit for contempt of court seems to be recognized in most systems of law. Our contemporary refers to our acts of congress of 1789 and of 1831 concerning contempts of court, and shows that, under the latter act, the power of the United States courts to punish as contempts publications made, or acts done, out of court is of the most limited character. In France, by article 222 of the Code Pénal, words VOL. 11.- No. 16.

tending to impeach the honor or integrity of magistrates are punishable by imprisonment for not less than one month nor more than two years. If the words are uttered in court the punishment is imprisonment for a period of from two to five years. The Italian code contains similar provisions, and most of the other penal codes of Europe follow in the same line. The Prussian code is said to contain provisions specially directed against newspapers. By the Indian Penal Code, section 228, whoever intentionally offers insult or causes interruption to a judge sitting in a cause, is punishable by imprisonment not less than six months or by fine not exceeding 1,000 rupees, or by both fine and imprisonment. In England the railway commissioners and County Court judges are only allowed to punish summarily, contempts committed in the face of the court.

There is a new issue in the case of Carl Vogt who, we had supposed, had got through with the courts in this country and had departed for Belgium, where he could be tried for his alleged crimes. It seems that Commissioner White recently held Vogt to await the President's warrant of extradition to Belgium. His counsel then applied to Judge Blatchford for a writ of habeas corpus and a certiorari, for the purpose of having the proceedings before the commissioner reviewed and set aside if erroneous. The counsel for the Belgian government contends, that in extradition cases the United States Circuit Court cannot review the proceedings before the commissioner.

The question is considered of great importance, as it has not before arisen. The efforts which have been made to procure the extradition of Vogt, and the corresponding counter-efforts, have thus far been the means of elucidating some of the most important principles of private international law. The new issue has not yet been decided.

The Daily Register has triumphed over all obstacles thus far, and bids defiance to its opponents which it styles the "big dailies." It remains to be seen whether the recent unsuccessful attempt to repeal the law under which the Register was designated, will be followed by any modification of the law during the present session of the legislature. A correspondent of the Evening Post asks the question: "In commending the New York statutory newspaper as a means of giving publicity to legal notices, have not governor, judges and lawyers sacrificed the real intents of publication to professional convenience ?" He then goes on to cite several cases in which the opinions of the judges indicate that the true theory of publication of such notices is not that they should be merely printed, but that they should be published to the world. But we suppose that is not the theory of the Register and of the members of the profession who support

it. Their theory seems to be that every man should have his lawyer if he wants to know what is going on in the legal world, and that every lawyer should take the paper which proclaims the desired information. There is "method" in this.

In Ragsdale v. Memphis and Charleston Railroad Co., the Supreme Court of Tennessee recently considered a rather novel question in the law of master and servant. A conductor was run over and injured by the train over which he had charge, through the alleged misconduct and negligence of the engineer in disobeying his instructions. The conductor brought an action against the company to recover for the injury. The rule that the master is not liable for an injury received by one servant through the negligent conduct of a fellow-servant, while both are acting in employments of the same grade, has been fully recognized. But the rule has been held in many cases not to apply where the two servants were employed in separate departments. It has also been held not to apply when a servant, in a subordinate position, is injured through the negligence of one in a superior position. But in the case of Ragsdale v. Memphis and Charleston Railroad Co., the position was reversed, and the superior claimed to be injured by the negligence of an inferior. The court held that the action could not be maintained.

The representatives of Mr. Bergh were before the Court of General Sessions in New York, on Tuesday, prosecuting J. J. Carpenter for keeping a dog-fighting establishment. In the beginning of this case Mr. Bergh, as we recently stated, was brought before the court for contempt in writing an alleged improper letter to the grand jury for not finding an indictment against Mr. Carpenter. A subsequent grand jury found an indictment against Mr. Carpenter, and when his case was called in the General Sessions, he admitted that he had done wrong in keeping a dog-fighting establishment, promised not to offend again, and apologized to the court and Mr. Bergh. Recorder Hackett was pleased to hear the apology, and exercised the clemency vested in him by simply imposing a fine of $250. But the recorder said that dog-fighting was, perhaps, the most brutal practice in the community, and that he was determined to punish in the future, to the utmost limit, all participants in this and kindred pastimes who should be brought before him.

The Pall Mall Budget states that a case has recently been decided in the new federal tribunal of Switzerland relating to the carriage of money-packages. The point in dispute is between the railway companies and bankers as to whether the latter may send parcels of securities marked with a low fictitious

value, and at a proportionately reduced charge. The railway companies contend that the true value must in all cases be marked and paid for. The Paris and Lyons Company some time since selected a certain package marked as containing 2,000 francs. It was opened on the application of the company, under a warrant from a court, and found to contain securities worth over 415,000 francs, and the firm at Geneva, which made the remittance, was accordingly charged about 2,500 francs for carriage. The

Cantonal Court in Switzerland decided that the firm was bound to pay the increased sum; and the Federal Court, on appeal, sustained the judgment. The Budget thinks that this decree will revolutionize the whole system of money remittances between France and Switzerland.

A practice has prevailed in the Court of Common Pleas of New York of discharging judgments upon recognizances or consent of the District Attorney, upon proof that the accused has been surrendered by his bail, or has surrendered himself, and entered into a new recognizance. In the case of The Peotice is correct, and the judges, after considering ple v. Coman, the question arose whether this practhe matter very fully, were of opinion that it was not. A bill has been introduced into the legislature requiring the Court of Common Pleas to discharge judgments on forfeited recognizances, on the certificate of the District Attorney that the people are in as good a condition for the prosecution of the persons indicted as they were when the recognizances were forfeited. Chief Justice Daly is of the opinion that this bill would practically annul the decision in Coman's case, and compel the court to discharge judgments on forfeited recognizances on the mere certificate of the District Attorney.

The Solicitors' Journal is authority for the statement that there is a pauper-debtor, named Kelly, in the county gaol of Roscommon, England, whose incarceration dates from June 23, 1853. He has been imprisoned, it will be seen, nearly twenty-two years, and has cost the country £53 a year for his support. We are not informed how much distress of mind and body his confinement has cost the debtor. Recently the matter was brought before the grand jury and the facts were stated to Justice O'Brien, who asked for the production of the warrant under which Mr. Kelly was detained. The governor of the gaol informed the judge that he believed the man was confined for contempt of court for non-payment of costs in a suit in the Court of Probate. The order of that court could not be produced and the crown solicitor was requested to inquire into the matter. This appears to be one of the most remarkable instances of legal tyranny which have recently come to light.

NOTES OF CASES.

N Williams v. Butcher, 1 Weekly Not. Cas. 304, the Supreme Court of Pennsylvania held that a discharge in bankruptcy subsequent to a judgment on a debt provable against the estate, is a bar to execution. In this case the judgment was obtained in 1870, and the petition was filed and the discharge obtained in 1873. The execution was then issued, and defendant applied for a stay. It appeared that plaintiff never received actual notice of the proceedings in bankruptcy. But plaintiff was returned as a creditor, and the court said that, where no fraud is proven in obtaining the discharge, it will protect the bankrupt, whether notice was in fact given or not. In Monroe v. Upton, 50 N. Y. 593, it was held that a judgment entered after the filing of the petition in bankruptcy upon a decision rendered prior thereto, is released by the discharge. But in Bradford v. Rice, 102 Mass. 472, it was held that a judgment recovered upon a debt provable in bankruptcy, after the proceedings have been instituted, is not released by the discharge. In Monroe v. Upton, supra, one ground of the decision was, that the judgment was not a new debt. But the decisions are not uniform on this point. The following cases hold that the debt is merged in the judgment: In re Williams, 3 Bk. Reg. 74; Mansfield's Case, 6 id. 388.

The following cases hold that the debt is not so merged: In re Stevens, 4 Bk. Reg. 122; In re Brown, 3 id. 145; In re Vickey, id. 171; Monroe v. Upton, supra.

The case of Threlfall v. Benorck, 32 L. T. N. S. 95, relating to the lien of innkeepers which we recently noticed in brief, and to which our attention has been called by a correspondent, was decided in the Exchequer Chamber. The facts of the case were these: In December, 1870, one Butcher residing at Sawrey, about a mile from defendant's inn, hired a piano, from the plaintiff, at 15s. a month, and the piano was delivered to Butcher at Sawrey. Butcher removed to defendant's inn with his wife and sister and took with him the piano. Defendant had no knowledge that the piano did not belong to Butcher. Butcher agreed to pay the defendant, besides a sum for board, 16s. per week for a private sitting room in which the piano was placed. Butcher having left the inn without paying his bill, defendant kept the piano and refused to deliver it to plaintiff. There was no question raised as to whether Butcher was a boarder or a guest. The case speaks of him throughout as a guest. The only contention was as to whether the piano was an article to which an innkeeper's lien would attach as against third persons. Plaintiff contended that defendant was not bound to receive the piano with his guest, and that the foundation of the lien, as to goods of third persons, being

the obligation to receive them, it did not attach in this case. Counsel cited Broadwood v. Granara, 10 Ex. 417, 423; Turrill v. Crawley, 13 Q. B. 197; Yorke v. Grenaugh, 2 Ld. Raym. 866. But Lord Chief Justice Coleridge said that this was a hopeless contention; and that without deciding whether an inn-keeper is bound to receive a piano, it could not be doubted that the defendant having in this case received the piano as the property of the guest, had a right of lien upon it for the payment of the debt of the guest. All the barons of the Exchequer

concurred.

In Henderson v. Palmer, 7 Chicago Leg. News, 233, the Supreme Court of Illinois recognized the rule that, when money is paid to compound a felony, or an agreement is entered into to pay money for such a purpose, such contract is immoral and illegal. It appears that one A. B. Henderson, the son of appellant, was employed as an operator by a telegraph company in Chattanooga, in the State of Tennessee, prior to the year 1867; that the officers of the company instituted a criminal prosecution against him for embezzling $220, money of the company; that, by the laws of the State of Tennessee, embezzlement is made a felony. After the prosecution was commenced, on the 26th day of November, 1867, appellant was, to stop the prosecution against her son, induced to execute, with her husband and another, a note for $980, and a mortgage on the house and lot in which she and her husband lived, to one O. H. Palmer, an agent of the company, to secure the payment of the note. The house and lot was her sole property, derived from other sources than from her husband. There was no agreement that the son should be discharged from the claim of $220. It was held that the note and mortgage were void.

In Bennett v. Mathews, 7 Chicago Leg. News, 235, the Supreme Court of South Carolina considered the proof of handwriting by comparison. It was held to be the rule in South Carolina that comparison of handwriting as a means of ascertaining the genuineness of the handwriting in question, can only be permitted in aid of doubtful proof. It cannot be resorted to as an original means of ascertaining the genuineness. See Bird v. Miller, 1 McM. L. 125; Bowen v. Plunkett, 2 McC. 518. Comparison of handwritings irrelevant to the record to ascertain the genuineness of the handwriting in question is permitted in Massachusetts, Maine, Connecticut, Ohio and Vermont. In New York, New Hampshire, Virginia, New Jersey and some other States this evidence is excluded. The English courts were at variance on the subject until the Statute of 28 and 29 Victoria, § 8, c. 18, which permits a comparison by the jury and witnesses of the disputed writing with paper satisfactory to the judge.

TRIAL BY NEWSPAPER.

the present plaintiff, insisting that the defendant ought to appear in court and explain his letters, and

of the administration of the law from the newspapers. Last week we reviewed the course of the newspapers toward the judges. This week we are able to present to our readers a new scheme for the substitution of newspapers for courts, in short, of Trial by Newspaper. We extract the following, relative to the Beecher-Tilton trial, from the Springfield Republican:

"It can hardly be called a magnificent success as an exercise of American jurisprudence under the most favorable circumstances. It does not present the great features of the attack and of the defense sharply; it excludes witnesses, whose testimony is vitally important, on trivial, antiquated and indefensible grounds; it admits a vast army of other witnesses, who have nothing to say as to the real issue, who take this opportunity to drag in and slander innocent people, and who are brought on only to lumber the minds of the jury with irrelevant matter. There is a constant cross-fire of 'objections,' which only serve to mystify the subject, to irritate the court, and to weary the jury, and to show off the pettifogging capacities of the most eminent lights of the bar. As if to add to the judicial trial the worst features of what was called the newspaper trial, General Tracy's venomous and bitter denunciation of Tilton, which is thus far very feebly supported by the evidence, has been sown broadcast over the country in a gratuitous pamphlet edition.

"It is suggested that it would be an improvement to adopt some features of the French system, under which the judge holds an inquisition and calls such witnesses as he thinks will illuminate the case."

* * "The French law, while it is not incumbered by much of the English nonsense as to rules of evidence, is lacking, however, in the development

of examination and cross-examination."

"It is surprising, after all, how thoroughly the newspapers tried the case. Very little, essential to its proper understanding, has been added by all the efforts of Judge Neilson and the array of learned counsel on both sides. What was before apparent to millions of American people, they have simply been laboring to make apparent to twelve men of Brooklyn, some of them quite below the average in point of current information, though not necessarily in judgment. The newspapers presented the case much more connectedly and much more conveniently to the understanding, and by giving full scope, first to one side and then to the other, failed not of substantial justice. This is not a new function of the press; it must, from its very nature, be censorial and semi-judicial."

In making the above choice extracts, we have merely omitted some passages eulogizing the Moultons and by implication denouncing Beecher, and going to show how impartially the Republican is trying this case for Tilton. We have never understood that the Republican claimed to be a comic newspaper, and therefore we suppose the aforesaid sentiments are to be taken seriously. The Republican began to fit itself to try this case, long before the cause came into court, by taking sides decidedly for

attempt. And now the same sapient journal has in effect decided the cause for itself and its readers by repeated articles like the above.

Now, in the outset, we concede that there is justice in one of the Republican's animadversions. Fas est ab hoste doceri. The newspaper is right when it says, that "vitally important testimony is excluded on trivial, antiquated, and indefensible grounds.” Or to speak more correctly, the newspaper will be right, when Mrs. Tilton's testimony shall be excluded, as of course it must be, as the law stands. We have heretofore expressed our views on this point. It is a source of humiliation to us that a newspaper should have sound reason for such a criticism. This, however, is the only grain of sense or truth in this extraordinary article.

The first point we wish to make in reply is this: the newspapers ought to have nothing to say about this cause. Some newspapers have had the decency to refrain from mentioning it, notably the New York Evening Post. In the cause of decency the public journals should be silent about this nasty case. If the trial were a criminal or religious one between the same parties we might be very sure they would give themselves no trouble about it. You could hardly hire them to occupy the same space with the But plaintiff's poems or the defendant's sermons. as it appeals to the foulest and most degraded passions of human nature, the newspapers seize upon it as a rich mine. This trial is a perfect God-send, or rather devil-send, for the newspapers. And even so conservative and reputable a journal as the Republican is not above making an honest Yankee penny out of the great scandal. But the newspapers ought not to bite the hand that feeds them. Ingratitude is sharper than a serpent's tooth. They ought to be grateful to the forms of law that have spun out this inquiry so long for their benefit. Let them not kill the goose that lays the golden egg for them.

Secondly, we ask who and what are the judges of this new tribunal? Let us have no Venetian secret tribunal of ten. People, in reading the newspapers, are apt to forget that the article in question is only the sentiment of one particular individual who writes it. The publicity of expression and the secresy of authorship lend it sanction. Nobody can ever find out who writes an article for the London Times. There is something rather awful about this. If we could go behind the oracle and see the priest who pronounces the prophecy we might lose our faith. We might even discover the priests making fun of their own vocation, as they did in olden time. Punch once suggested, as a preventive of railway accidents, the tying a director on the front of the locomotive. In like manner it might possibly have a restraining effect upon the newspapers, if they