the July number of the same year.- - A correspondent writes to say that the jury on the trial of Rev. McGlew stood "two for conviction and ten for acquittal," instead of the reverse, as we stated last week in our article on "Civil Marriages;" and he further says that ten of the jurors were Protestants and two Catholics.

Messrs. Moody and Sankey, the London revivalists, on top of all their other successes, have succeeded in getting into court at the suit of the owner of a stall or box in Her Majesty's Theater to restrain them from boarding over the site of plaintiff's box, and from removing the partitions from between the boxes. Sir George Jessel, who heard the suit, held that the defendants were in the wrong, but as their lease of the theater was about expired, and was not to be renewed, and as it would seriously injure them to be "restrained," he would award the plaintiff a shilling damage and costs of suit, and refuse the injunction. —A Brooklyn lawyer in a letter to the New York Times makes the pertinent suggestion that lawyers be allowed the privilege of the Brooklyn City Court-room for one day to the exclusion, if necessary, of the young ladies and misses who crowd there.- In an address before the Columbian Law School at Washington, on the evening of Wednesday week, Mr. Reverdy Johnson said he had just closed his sixtieth year of active legal practice. On the 20th of May, Lord Mackenzie, Senior Lord Ordinary in the Court of Sessions, Scotland, died at North Norwood. He was promoted to the bench in 1870.

A correspondent sends us a copy of the opinion of Judge Monell, of the New York Superior Court, in Willment v. Meserole, where it is held that where, in an action by a non-resident, an attorney at law, who is not the attorney of record, becomes surety for costs, his liability is like that of any other citizen and must be enforced in the same manner. On the subject of attorneys becoming sureties, the learned judge remarked: "There is no provision of law, that I am aware of, which prohibits an attorney at law from becoming security for another person in any matter in which he is not acting in the capacity of attorney for such person. The general rule recognized by the courts, that attorneys cannot be bail or security for their clients, was founded upon reasons of convenience, and to relieve attorneys from importunities of their clients, and clients of exorbitant exactions of their attorneys. But I think the rule has never been extended further than to exclude attorneys from b9coming security for their clients, and in some action or proceeding in which they appear upon the record as such attorneys, or are acting as the attorneys, or possibly as the counsel, of the person for whom they became security. The general rules of court (rule 8), which provides that in no case shall an attorney be surety on any undertaking, merely extends the ineligibility of attorneys to another kind of security. But even this disqualification of attorneys was confined to such securities as were not required or regulated by statute. Hence, in Walker v. Holmes, 22 Wend. 614, when, upon an order to file security, the attorney of record signed the bond, Bronson, J., says: The practice on requiring security for costs has been regulated by statute, and it is enough that the plaintiff has complied with the statute by executing a bond with a sufficient security, and the surety has justified.'

The disqualification from becoming bail is general in its application, and an attorney would be rejected as bail, although he was not the attorney of the party bailed; and I am inclined to think that the disqualification extends generally to all suretyship. Clearly the rule (rule 8), as recently amended, covers all securityships required by law. But if, without objection, an attorney does become surety, he incurs no other or different responsibility than legally attaches to the obligation he signs, and it seems to me that such obligation can be enforced in no other manner than if it was the obligation of a person not an attorney or officer of the court. The disability of an attorney to become security is ground of objection, and may be sufficient to reject him; but, if he is allowed to remain without objection, it does not render the security void, nor does it raise any different liability than such as the instrument he signs would legally impose upon any other person."

The London Law Times states that it learns on good authority that the law officers of the crown advised the prosecution of Dr. Keneally for libels published in the Englishman, but the government was disinclined to enter upon another prosecution in any way connected with the Orton case. The London Law Journal regrets that official Stenographers are not employed in the Nisi Prius Courts and Superior Courts of England, and expressed the opinion "that the United States and Canada will both anticipate the mother country in the accomplishment of this reform."--It is stated in an English contemporary that the Russian Minister of Justice has forbidden women to practice as counsel.Our very able and interesting contemporary, the London Law Journal, has a curious way sometimes of giving variety to its columns; for instance in its issue of the 5th instant, it copies two articles-one on English Bar Examinations" and the other on "Lawyers and Statesmen ”— from this journal; but in order to avoid we suppose a sameness, it credits the first to an "American Paper," and the second to the ALBANY LAW JOURNAL.—On the 30th of May Her Majesty's judges, in accordance with an ancient custom, went in State to the afternoon service at St. Paul's Cathedral. They all wore, says the Law Journal their scarlet and ermine robes and full-bottomed wigs, and were attended by their trainbearers and secretaries." The sermon was preached from the text "Pilate said unto Him, What is truth?"

The Sacramento Union thus comments on a serious subject: "Whether it is a natural result of champagne atmosphere, and strawberries all the year round, we know not, but it has become evident that there is something in the air, in the soil, or in the social condition of San Francisco, which inspires the women of that sea-girt peninsula with a perennial yearning to kill lawyers. The number of lawyers who have been shot, or shot at, by females in San Francisco, is really appalling. Crittenden, McDermott and Cobb are among the most prominent cases, but the calendar, indeed, abounds with them; and now behold an attempt to take off W. H. L. Barnes. Old women attack young lawyers, and young women murder old lawyers, and all sorts of women precipitate themselves upon all sorts of lawyers, as if there existed a secret and mysterious propensity in the female breast (as developed under the influence of San Francisco fogs and gales) to hit a lawyer's head whenever seen."

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 weekly edition of the ALBANY LAW JOURNAL is now . 8,800 copies.

The Albany Law Journal.

ALBANY, JUNE 26, 1875.

CURRENT TOPICS.

THE lawyers of Connecticut have formed a State

Bar Association, with Judge Origen S. Seymour, of Litchfield, as president. This is, we believe, the only State Bar Association in this country, but it is to be hoped that the example may be speedily followed in other quarters. There was a prospect, when the Bar Association of New York city was formed, that through its influence and exertions other local bar associations would be organized, and through the effort of all, a State Association result. But that Association has, from the beginning, been so conducted as not to impress outsiders with exalted ideas of its good faith. A coterie of young men have been permitted to run it in their own interests and to accomplish their own purposes; and not longer ago than last winter a prominent New York newspaper alleged that the chairman of the Legislative Committee of the Association had reported in favor of an amendment of the law of evidence, and the Association had adopted the report and requested the legislature to make the change; the sole object of the chairman, if not of the Association, being to affect a case, then pending, in which the chairman was counsel. However this may be, the fact that such reports are abroad, and are believed, is to be lamented. A State Bar Association could and ought to do much in directing legislation on matters of jurisprudence, in improving the law and in advancing the best interests of the profession. An annual congress of lawyers and jurists has, for years, been held in Germany, and has been powerful in promoting the unification of German law.

A late decision of the Queen's Bench serves to illustrate the frankness and liberal views of some of the English judges, if nothing else. Soon after the Lord George Gordon riots, an act was passed which, after premising that certain houses had been opened for public entertainment and amusement upon the evening of the Lord's Day, "under pretense of inquiry into religious doctrines and explaining texts of Holy Scripture," imposed a penalty upon the keeper of any house kept open or used for VOL. 11.- No. 26.

"public entertainment or amusement," on the Lord's Day. In the case before the Queen's Bench, the defendants' building consisted of an aquarium, museum, reading-room, a restaurant, a conservatory, gardens, etc., and on Sunday evenings a band performed a selection of sacred music, and the public were admitted at so much a head. Blackburn, J., said: "I am afraid we have no ground for believing that this act is not at present in force; and although I awowedly and designedly state that I am most anxious to find a hole in its provisions by which the defendants might escape, I am unable to see any." Field, J., added, "I think those persons who are anxious to induce people to frequent public houses on Sunday less than they at present do, might greatly aid their object by obtaining the repeal of this statute, and by encouraging such entertainments as these."

The time within which the governor is required to pass upon the bills of the last session expired on Tuesday, and the bills left unsigned then fail to become laws. Among those which thus failed was a bill amending the Code of Procedure and two or three other general bills of no particular importance. The laws of the session number 634 chapters, which is a considerable falling off from previous years, and shows one of the valuable features of the new constitutional provision. There were 730 bills passed by both houses of the legislatture, of which 42 were returned for amendment, and 54 vetoed.

The English House of Lords has just made a decision in relation to the liability of passenger carriers which is likely to be of interest in this country. The text of the judgment has not yet reached us, but the following is said to be the substance of the question passed upon: The plaintiff bought a ticket of the defendants for a passage on their steamer plying between Dublin and Lilloch. The steamer was wrecked by defendants' carelessness, and the plaintiff sued for the value of his luggage, which was lost. On the back of plaintiff's ticket was a condition to this effect: "This ticket is issued on the condition that the Company incur no liability whatever in respect of loss, injury or delay to the passenger, or to his or her luggage, whether arising from the act, neglect or default of the Company, or their servants or otherwise. It is also issued subject to all the conditions and arrangements published by the company." The defendants set this up as a defense, and insisted that the plaintiff was bound by it, whether he had read it or not. According to the account of the decision, a point seems to have been made that the condition was on the back of the ticket and not on the front. The Lord Chancellor said there was no reference on the front of the ticket to what was printed on the back. Lord

Chelmsford said the passenger would not be bound by the conditions unless his attention was called to them, and in this view Lord O'Hagan concurred. Lord Hatherly said that the ticket was a mere voucher of payment, and not a contract. The Commission of Appeals of this State has also held that a ticket is not a contract, nor, for that matter, any thing else so far as the passenger is concerned; but any thing that the company has a mind to print on the ticket is a contract in favor of the company. The chief value of the decision of the House of Lords will very likely be as to the question how far such a condition is binding without actual notice.

The Law Magazine and Review for June contains an article in opposition to the contemplated extinction of the Order of Sergeants-at-Law, of which we spoke recently, and among the other arguments it advances in favor of that body is one which ought to strike an Englishman in a point where either he "must live or bear no life." This point is in brief, that a Sergeant-at-Law can be retained for five guineas or perhaps three, while a Queen's counsel would require ten or twelve. Then too, our contemporary has, heard it said, that the few remaining Sergeants have already in anticipation, and in immitation of the advocates of doctors common divided the spoil and shared amongst them the price to be obtained for Sergeant's Inn for its libraries and wine cellars, and all the curiosities - the accumulation of many centuries. It would be a pity to spoil this anticipation, though no doubt the learned sergeants would gladly give it up. But after all, our contemporary suggests that Sergeant's Inn is not essential to the liberty and well-being of the people, or the safety of magna charta, or even to the learned order of Sergeants, as the latter can continue to live without such a local habitation as Sergeant's Inn, but whether that noble set of men could keep quite up to the prescribed scratch without the aforesaid wine cellar, is a more important question, and one concerning which our contemporary says nothing.

Mr. William H. Benjamin, the clerk of the Commission of Appeals, and Mr. Comptroller Hopkins, have a little difference on the salary question. Mr. Benjamin claims that the Commission of Appeals is placed on the same footing with the Court of Appeals, and that the law creating the Commission intended that the clerk should be on the same footing as the clerk of the Court of Appeals, and that therefore he is entitled to a salary of $5,000 per year. Comptroller Hopkins does not appear to see the matter in the same light, and declines to pay Mr. Benjamin a greater salary than $3,500. The latter has therefore appealed to Judge Osborn at special term for a mandamus to coerce the comptroller into planking down the whole of his hard earned wage. The court "took the papers."

IN

NOTES OF CASES.

Dart's Vendors and Purchasers, p. 601, it is said that, "as a general rule, a purchaser may insist on having the conveyance executed in his presence or attested by a witness of his own selection." In Essex v. Daniell, 32 L. T. R. (N. S.) 476, the Common Pleas held on the fifth instant that "a vendee of real property has no right to insist on the presence of the vendor at the execution of the conveyance or on the payment of the purchase-money to him personally. He is entitled to be satisfied as to the identity of the vendor, and as to the authority to receive it of the person to whom he pays the money; but it is a question in each case for the jury whether the requisition he makes to the vendor on these points as a condition precedent to taking the conveyance or paying the money is reasonable or not."

A point in bankruptcy law of some interest, was decided in Leighton v. Harwood, 111 Mass. 67, to the effect that one, from whose possession the assignee of a bankrupt has taken goods, claiming them bona fide as part of the bankrupt estate, may forthwith replevy them from the assignee on a writ issued from the State court, notwithstanding that the bankrupt act (U. S. St. 1867, chap. 176, § 14) provides that no one shall maintain an action against an assignee for any thing done by him as such assignee without giving him twenty days notice. The court said: "The assignment is not a precept issued by the court but a conveyance of the bankruptcy property; giving the assignees the mere rights of ownership, but no authority or color of authority to take the property of strangers. If it were otherwise, their power to take such property would be limited only by their own discretion; and the assignment might be made an instrument of gross oppression.” Edge v. Parker, 8 B. & C. 697, was cited as an authority, and the decision of the United States Supreme Court in Freeman v. Howe, 24 How. 450, was distinguished on the ground that the office of a marshal is very different from that of an assignee.

In Greenville v. Mason, 53 N. H. 515, it was held that where a town is divided by the legislature, part of its territory and inhabitants being created a new town, none of the property of the original town belongs to the new corporation, except as expressly provided in the act of separation, and per contra, the new corporation is not liable for any of the debts of the old town. Richards v. Daggett, 4 Mass. 539; Richland County v. Lawrence, 12 Ill. 1; Cobb v. Kingsman, 15 Mass. 197; Hartford Bridge Co. v. Hartford, 16 Conn. 149; Town of Depere v. Town of Bellevue, 11 Am. Rep; S. C. 31 Wis. 120. It was

however held in Plunkett Township v. Crawford, 27 Penn. St. 107, that on the division of a town, each part remained liable for the debts of the old town, and that if one pays the debt, it may maintain an action against the other for contribution. When a town is divided and a new corporation formed, the legislature may make what division of the property it sees fit, and may apportion the debts in the same

manner.

One of those elaborate opinions for which the Supreme Court of New Hampshire is famous will be found in Eastman v. Clark, 53 N. H. 276, on the subject of what constitutes partnership. The headnote is as follows: "An agreement by which a person is to have a share of the profits of a business is competent evidence on the question of his liability as a partner in that business; but sharing profits, in any other sense than sharing them as principal, is not an absolute legal test of his liability. The question of liability is the question whether he is a principal bound by a contract made by himself, or his agent, acting by his authority, or whether he is estopped to deny that he is a principal within the general doctrine of estoppel." Doe, J., writes an opinion covering over fifty pages of the report, and Smith, J., has also very elaborately considered the authorities.

The Supreme Court of the United States decided at the last term, in Garrison v. The Mayor of New York, the following points in relation to the condemnation of private property for public use: An act of the legislature of the State of New York, passed in 1871, in relation to the widening and straightening of Broadway, in the city of New York, authorizing the Supreme Court of the State to vacate an order made in 1870 confirming the report of commissioners of estimate and assessment respecting the property taken, from which order no appeal was allowable, if error, mistake, irregularity, or illegal acts appeared in the proceedings of the commissioners, or the assessments for benefit or the awards for damage, or either of them, had been unfair and unjust or inequitable or oppressive as respects the city or any person affected thereby, and to refer the matter back to new commissioners to amend or correct the report, or to make a new assessment, is not unconstitutional as impairing the obligation of contracts, or depriving a person of a vested right without due process of law. In the proceeding to condemn property for public use there is nothing in the nature of a contract between the owner and the State or the corporation which the State, in virtue of her right of eminent domain, authorizes to take the property; all that the constitution of the State or of the United States, or justice requiring in such cases being that a just compensation shall be made to the owner; his prop

The

erty can then be taken without his assent. proceeding to ascertain the compensation to be made to the owner of property, taken for public use, is in the nature of an inquest on the part of the State and is under her control; and to secure a just estimate of the compensation to be made, she can vacate or authorize the vacation of any inquest, taken by her direction, where the proceeeding has been irregularly or fraudulently conducted, or in which error has intervened, and order a new inquest, provided such methods of procedure be observed, as will secure a fair hearing from the parties interested in the property. Until the property is actually taken and the compensation is made or provided, the power of the State over the matter is not ended.

The Weekly Notes of Cases contains the report of the decision of the Supreme Court of Pennsylvania, holding that, in an action for breach of promise of marriage, the fact that the plaintiff was lewd and unchaste goes in bar of the action, and may be proven under the plea of non-assumpsit. The editor of the Weekly Notes adds the following authorities to the case: The question raised by the plaintiff in error (third point), has been the subject of several adjudications in England. In Baddely v. Mortlock, 1 Holt's Nisi Prius Rep. 151 (1816), 3 E. C. & R. 57, where a man brought an action against a woman for breach of promise, the latter had heard some charges against him, involving pecuniary fraud and perjury, and on not receiving any satisfactory explanation, broke off the match. Gibbs, C. J., held if the charges were true she was not bound to perform the contract, but that unless they were clearly proven the existence of the rumor affected only the damages. See, also, the reporter's note to this case, citing Foulkes v. Selway, 3 Espinasse, Leeds v. Cooke, 4 Esp. 256, and as to circumstances which justify non-performance of this contract generally, Pothier, Traite du Contrat de Mariage, part 2, chap. 1, art. 7. In Irving v. Greenwood, 1 Carr. & Payne, 350 (1824) (11 E. C. & R. 412), it was held that if the promise was broken by the defendant because he found the plaintiff to be a loose and immodest woman it went in bar of the action, unless he was aware of the circumstances. See note also to this See also, Wharton v. Lewis, 1 C. & P. 529 (11 E. C. & R. 459), where the same rule is extended to "misrepresentation or willful suppression of the real state of the plaintiff's family." In Bench v. Merrick, 1 Car. & Kir. (47 E. C. & R.) 463 (1844), the rule laid down by the Court in the principal case was adopted, where the promise had been made in ignorance that the woman had had an illegitimate child ten years before, though her conduct since might have been perfectly correct. See, also Young v. Murphy, 3 Bing. N. C. 54 (32 E. C. & R. 38); Horam v. Humphreys, Lofft's Rep. 80.

case.

WE

JUDGE DAVIS ON CONTEMPT.

E have hitherto refrained from making any particular comment on the conduct of Judge Davis, in respect to the alleged contempt of court committed by the prisoner's counsel on the trial of Tweed. We did so for several reasons; first, because we desired to see whether reflection would confirm our original impressions; second, we wanted time enough to elapse to enable the public mind to cool; third, we wanted to find out the contents of that letter which so wounded the judge's sensitiveness; and finally, we awaited the disposition of the case by the Court of Appeals, for we thought, if it should turn out that the judge's law was erroneous, that the public would listen with some patience to criticisms on his etiquette. Our first impression was quite strong that Judge Davis had made a mistake, but we were unwilling hastily to criticise an eminent and honorable judicial officer, to whom the public are under some obligations. But whether we were right in our impressions or not, it was quite certain that the public were in no mood to listen to any expostulations as to the proceedings upon the trial. Two things conspired to render the bar and the public indifferent as to the propriety of Judge Davis' conduct on the point in question. First, it was so singular and refreshing to find an honest and fearless judge in the city of New York, who had both the will and the ability to bring the great public robber to bay, that they cared little for the petty details that contributed to the grand result. A great general had won a national triumph; no matter if, in the flush and excitement of victory, he had butchered a few prisoners. Second, Tweed was such an unmitigated and insufferable rascal, that they cared only for his punishment, so unexpectedly brought to pass. The public enemy was overthrown; no matter if, in the melee, some of his heralds and embassadors, non-combatants, were rather roughly

handled. But this state of excitement and elation

has passed away. Even Tweed's discharge, by the Court of Appeals, always anticipated by the great body of the bench and bar of the State, is not regarded by the public with any undue amount of rage or indignation. We suppose, if it could have been foreseen a year ago that the Court of Appeals would grant a new trial in the Ingersoll case, and discharge Tweed, that the excellent gentlemen composing that tribunal would have needed a strong force of policemen to guard them on their walk from their hotels to the capitol. But they have granted a new trial to Ingersoll and have discharged Tweed, and the result probably will be, that the public will lose all the millions which there was such a promising assurance that they would recover. But the public take it quite calmly. We have not noticed any of the anticipated fury of the press. Newspapers and subscribers all seem perfect Bot

toms in self-repression. We have passed through the various stages of white heat, red heat and moderate heat, and have become so very cool that we can now be handled with impunity.

But the question of the propriety of Judge Davis' conduct has lost none of its importance. It is vastly important to the bar and to the community to know whether the conduct of the judge is to be considered as a precedent to be followed, or a proceeding to be eschewed. Our attention has been freshly directed to this subject by a very intelligent and temperate pamphlet, entitled "Judicial Conduct and Deportment; Judge Davis and Six Gentlemen of the New York Bar: By a Member of the Profession."

The facts are, probably, within the recollection of every one, but it will do no hurt, briefly, to remind our readers of them. It will be remembered that

Tweed was twice tried, and both times by Judge Davis; that the jury disagreed on the first trial, and that the judge on that trial had given some pretty strong evidences of his own opinion against the merits of the defense. Under these circumstances, the case comes to the second trial, and then the prisoner's counsel hand up to the judge a letter, signed by all of them, couched in perfectly respectful language, in which they state, substantially, that their client fears, from the circumstances of the former trial, that the judge has conceived a prejudice against him; and that his mind is not in the unbiased condition necessary to give an impartial trial; and respectfully request him to consider whether he should not relinquish the duty of presiding at the trial to some other judge, at the same time declaring that no personal disrespect is intended toward the judge or the court. The judge "takes the papers and reserves his decision; " that is to say, after a short recess to see what his brethren thought of it, he refused to take any definite notice of the letter at the time, but retained it and went on with the trial. At the close of the trial, he sentences three of the writers to a fine of $250 each, and subjects the juniors to a public reprimand, which, we infer, he considered worth that amount to each of them. At the same time he throws in the opinion that, if they had done such a thing in England, they would have been expelled from the bar within an hour. All this was in spite of the reitcrated and public protests of the counsel that they intended no contempt of court; that they felt and meant to express no disrespect for the judge, but that their action was taken in furtherance of, what they deemed to be, the vital interests of their client, and in the conscientious and faithful discharge of their duty. The judge's reply to these protests was, in substance, that he accepted the disclaimer of personal disrespect; but as to the disclaimer of intention to commit a contempt he did not believe them; and this language was held to six members of the bar in good standing, officers of the same court with