HEARD'S PRECEDENTS OF EQUITY PLEADING. Precedents of Equity Pleadings. By Franklin Fiske Heard. Boston: Little, Brown & Co., 1884. Pp. x and 247. This is a book of forms for equity pleading, and is to be commended as attempting to introduce into this branch of the law of pleading brevity, simplicity, and directness. The precedents given seem to cover almost every conceivable case wherein equitable relief is likely to be sought, and very many of them, we should judge, are reproduced from actual pleadings in court. The book is excellently printed and bound, but the advertisement of the publishers opposite the title page is inexcusable. BAIRD AND BABCOCK'S GUIDE TO THE LAW. A Guide to the Principles of the Law. By Wm. Raimond Baird, LL. B., and F. Sherrill Babcock, LL. B. New York; George S. Diossy, 1884. Pp. xxiv, 284 and xxxvii. This little book aspires to contain something about every department of the law, which so far as we can judge it does, although it has very little about any one of them. Its chief value, we believe, will be to students who are preparing themselves for admission to the bar, as they can learn or refresh their memory as to sufficient legal knowledge herein, to pass the ordinary investigation prescribed by the courts to determine whether or not a man is fitted to be a lawyer. In addition to its condensation of the law, the work contains several tables, the most valuable of which to the student is that containing a list of books recommended for reading. TIDY'S LEGAL MEDICINE. Legal Medicine. Volume 2. Legitimacy and Paternity, Pregnancy, Abortion, Rape, Indecent Exposure, Sodomy, Bestialty, Live Birth, Infanticide, Asphyxia, Drowning, Hanging, Strangulation, Suffocation. By Charles Meymott Tidy. Philadelphia; Henry C. Lea, Son & Co., 1884. Pp. xxiv, 508. The first volume of this work was spoken of in 27 Albany Law JOURNAL, 100. The present volume is of an exceptionally interesting character. The entire work is unquestionably one of marked ability and learning, and subject to the limitations of which we have before spoken, very useful to lawyers who have occasion to investigate such subjects. LAWSON ON INSANITY. The Adjudged Cases on Insanity as a Defense to Crime, with notes. By John D. Lawson St. Louis; F. H. Thomas & Co., 1884. Pp. xlviii, 953. This is a volume of leading cases with notes. The editor has endeavored to give, in full, or by reference in notes, every reported case on the subject in England or America. The work is marked by the judiciousness of selection, the discrimination, the exactness and conciseness of expression, and the logical arrangement which have distinguished all Mr. Lawson's work, and which have put him in the front rank of living legal reporters and editors. The practitioner in the criminal courts will here find in one volume a sure guide to all the law on this topic, and its contents are made most conveniently ascertainable. We can give the work unreserved commendation. The book is well printed. DAVIS' LAW IN SHAKESPEARE. The Law in Shakespeare. By Hon. C. K. Davis. West Pub. lishing Co.; St. Paul, Minn., 1884. Pp. 303. This little volume from the hands of a lover of the "Divine William" is before us. Being a lawyer and therefore well qualified, the author presents to the reader that which carries conviction to the mind of an exhaustive and faithful study of the subject. It is divided into two parts: The first an essay, the second gives quotations, followed by definitions of the law terms used therein, and a comment by the author. As to whether Shakespeare ever studied law, the author in the introduction, frankly says: "The truth in this respect will probably never be certainly known." The book is well printed, and contains an index. HUN'S COURT RULES. Rules of all the Courts of Record of the State of New York. With notes, references, and an index. By Marcus T. Hun, Reporter of the Supreme Court. New York; Banks & Brothers, 1884. Pp. xii and 394. A collation of the rules of the State courts of record is among the indispensable requisites of a lawyer's office. A practitioner who is furnished with the several codes, the rules and a book or two of forms may be said to have a good working library, especially if the various volumes are judiciously annotated. The work before us is in its previous editions well-known to the profession, and we need only say that it seems to be all that could be desired in its department. It contains the rules of Court of Appeals, and the general rules of the Supreme Court, also the special rules of the Circuit, County, and City Courts. The rules of the Court of Appeals and the general rules are copiously annotated with references to decisions and statutes. One feature which strikes us as possessing peculiar merit is, that under each rule a reference is made to every section of the Code of Civil Procedure to which it may apply, and a summary of the contents of the section given. The book appears to be carefully indexed, and is well printed and bound. PEELER ON LAW AND EQUITY. A Treatise on Law and Equity as distinguished and enforced in the courts of the United States. By A. J. Peeler. Austin: Swindell's Printing House, 1883. Pp. xlviii and 425. The purpose of this work is to present clearly the distinction between law and equity in the administration of remedial justice in the courts of the United States. That such a work is needed is shown by the fact that the dismissal of a case because brought on the wrong side of the court is a very frequent occurrence in the Federal tribunals, that result often happening in the court of last resort. A modification in the rules of practice of the courts mentioned might prevent such apparent injustice, but as there is no probability of any modification in the direction needed, those of the profession who do business in these courts will welcome any treatise that promises to aid them to avoid mistakes in this matter. How far this volume will accomplish its professed purpose it is not possible to say from simply reading it. The author seems to have examined exhaustively both the statute law and the decisions, and if the principles deducible therefrom are not as clearly and concisely stated as might be wished, the entire field is covered, and what has been enacted or determined is before the reader, and he can draw his own conclusions. We believe that the work is the first which has appeared in its special department. The book is fairly printed and bound. PARTIES TO ACTIONS. The Law Respecting Parties to Actions, Legal and Equitable. By Horace Hawes, counselor at law, San Francisco. Sumner, Whitney & Co., 1884. Pp. 534. This volume covers the subject-matter fully and is designed, as the author says in the preface, "to place this information at the 'finger tips' of the busy lawyer, and is intended for him rather than for the self of the scholar." That the author is one of those who have no desire to wade through a volume to find what he wants, is shown by the most excellent index which alone is worth the price of the book. DESTY'S FEDERAL PROCEdure. A Manual of Practice in the Courts of the United States, embracing the provisions of the Constitution, the Revised Statutes, and amendments thereto, relating to Federal Courts, together with the rules promulgated by the Supreme Court of the United States, with Notes of Decisions. By Robert Desty; sixth edition, revised. San Francisco, Sumners, Whitney & Co., 1884. Pp. 934. In taking up any of Mr. Desty's books, we feel the assurance that the work has been ably and thoroughly done; no decision affecting the matter in hand escapes him. And this volume, to the Federal practitioner, is the "book of books." re probate of will of John Darrow, deceased; Stephen D. Callahan, administrator, respondent, v. Thomas R. Sharp, receiver, appellant; Miles B. Briggs, administrator, respondent, v. The American Tract Society, appellant; Samuel J. Mack, appeilant, v. Morton B. Austin, executor, respondent; Mary A. Seybolt, administratrix, v. The New York, Lake Erie & West. R., appellant; Maria Stephens, administratrix, respondent, v. The Jewell Manufacturing Co., appellant. Decision of surrogate affirmed, with costs payable out of the fund-In re probate of the last will and testament of Mary O'Hara, deceased.-Judgment reversed, new trial granted, costs in this court to both parties payable out of the fund-Mary O'Hara and another, appellants, v. William H. Dudley and others, executors, respondents. -Orders of General and Special Terms reversed, and motion granted without costs James O'Brien, sheriff, respondent, v. John N. Young and another, appellants. Judgment reversed, new trial granted, costs to abide the event Emelia Lane, executrix, appellant, v. Henry F. Lane, respondent; William H. Ellis, administrator, appellant, v. The New York, Lake Erie & West. R. Co., respondents.-Dismissed without costs-Sarah Solomon, administrator, appellant, v. The Manhattan Ry. Co., respondent.Judgment of General Term and of surrogate reversed, new trial granted, costs to abide the event-In re probate of an alleged will of Eliza M. Smith, deceased. -Judgment of General Term reversed so far as it modifies the decree of the chief judge of the New York Common Pleas, and that decree affirmed with costs against the contestant-Catharine Hancox, respondent and appellant, v. Samuel M. Meeker, surviving executor, respondent and appellant.-Judgment affirmed-The People, respondent, v. James Irving, appellant.-Order affirmed with costs-The People, ex rel. Twenty-third Street Ry. Co., appellants, v. The Commissioners of Taxes, respondents. Orders of General and Special Terms reversed, and motion granted, with costs in the Supreme Court and Court of Appeals, and $10 costs of motion - John S. Prouty, respondent, v. The Lake Shore & Mich. So. Ry. Co., appellants.-General Term order of June 1, 1883, is reversed, and the Special Term order of March 5 affirmed, with costs. The General Term order of October 1, 1883, and the Special Term order of March 11, 1883, are both reversed with costs, the exceptions to the report of the referee sustained, and the purchaser, Knowles, required to complete his purchase-William 1. Chase and wife v. Nelson Chase and others, appellants; Marcus L. Stieglitz, purchaser, respondent. Judgment of Supreme Court reversed, and decree of surrogate affirmed with costs - In re accounting of William B. Neilley and another, administrators, William B. Neilley, administratrix, respondent, v. Hannah J. Osborn and others, appellants.- - Judgment of the Special and General Terms reversed, and complaint dismissed, with costs-John Roach and others, respondents, v. Isaac F.Duckworth, appellant.-Judg ment affirmed with costs-John B.Johnson, respondent, v. Catharine Williams, executrix, appellant; Robert P. Crowe, ind. and administrator, et al., respondents, v. Frederick O. Lewin, executor, appellant; The Mayor, etc., of New York, appellants, v. Henry Hart and another, respondents; James A. Flack et al., executors, appellants, v. The State of New York; Mary Story, respondent, v. The Williamsburgh Mutual Benefit Association, appellant; George Clark, appellant, v. Ira Davenport, comptroller, respondent; Francis X. Meyers, sheriff, appellant, v. James A. Becker, respondent; In НЕ NOTES. THE Criminal Law Magazine for March contains a leading article on Criminal Contempts, by Judge Seymour D. Thompson, and one on Relative operation of prohibition, local option, and excise laws, by L. M. Dorman.- -Mr. Carter's argument against codification is learned and scholarly, but the objections savor more of the metaphysical than of the practical, and will not, in our opinion, stand the test of experience. We heartily indorse Mr. Field's side of the question, for we believe it to be on that of genuine reform and true progress. Judge-made law is a species of usurpation, while codification is evolution. Whatever will tend to decrease the one and promote the other will receive our hearty support at all times.-American Law Record-We learn that the judges of the Court of Appeals of New York have concluded to don the silken robe. It is well known that the robe is not worn in this country except by the judges of the Supreme Court of the United States, and if our State courts are to follow this practice it is eminently proper that the Empire State should be the first to lead. We are inclined to consider the movement favorably, although we do not wish to be understood as being committed fully to the innovation, but we do not think it necessarily unrepublican, and certainly not undignified. There is ample room, if not pressing need, in the American judiciary for the cultivation of this latter trait.American Law Record. The Albany Law Journal. U ALBANY, APRIL 26, 1884. CURRENT TOPICS. ant, Swan. The plaintiff was in the hole in a bent NDER the title of "Dissenting Magazine Articles,' ," the New York Daily Register has some remarks on Justice Stephen's recent article in the Nineteenth Century on the law of blasphemy, as lately expounded by the lord chief justice. The Register says: "Perhaps this method would have some advantages. It looks odd, and would continue to look odd, no matter how often practiced; but there is this in its favor- that in this way the judgment of the court is embodied in the reports as an authoritative declaration of the law of the land, qualified only by the indication that 'Justice S. dissented,' and the dissent would be spread abroad in the public journals in an ephemeral form, where it would reach the public more freely, and the views of the dissenting judge would have opportunity to win their way in public approval and react on public opinion, not authoritatively, nor by way of impugning the authority of the decision, but as forming part of the great body of that general judgment on affairs of public concern by which judges, like all other officers, must, and ought to be, in a proper degree influenced; and especially would have a it would not be reasonable to make their owners better opportunity to influence legislation. responsible for every act of trespass committed by would be this serious disadvantage that some them, whereas it was otherwise of animals such as judges might be tempted to dissent for the purpose oxen or horses. But with regard to trespasses to of raising an issue on which to make an exposition the person, apart from trespasses to realty, the quesof their views when the question was one appeal-tion seems to be somewhat different. It would seem ing to the interest or sympathies of any large class of the public." We greatly doubt the taste and the policy of such publications. They are less to be deprecated, however, than the publication of dissenting opinions in the reports. Indeed, we have always been opposed to the publication of any indication of dissent in the reports. If the law is settled in a given manner by a certain decision, the announcement that such was the judgment of only a part of the court can answer no purpose except to aid in unsettling the law and encouraging litigation There have been in recent times in England some very undignified displays of judicial temper in magazines and newspapers. (This remark does not at all apply to Justice Stephen.) On the whole it is perhaps best and safest for the judges to keep out of print except in the reports. There The recent case of Saunders v. Teape, in the Queen's Bench Division, is a welcome addition to our "animal kingdom in court." The Solicitors' Journal makes the following statement and remarks: "The plaintiff, a laborer, was employed in digging a hole in the garden of a house adjoining Teape's garden, and separated therefrom by a wall only three feet high. The defendant, Teape, kept three dogs which were out under the care of the defendVOL. 29-No. 17. that in these cases, both with regard to cattle and dogs, to support an action proof must be given that the animal was mischievous to the knowledge of the defendant. It does not appear that any question of trespass to realty arose in the case we are discussing. It would rather appear that the plaintiff was a laborer employed in the defendant's neighbor's garden. It is clear if the dog had jumped over and bitten him he could not have recovered without proof of the scienter or knowledge that the animal was of a mischievous disposition. Could it be put higher if the dog had jumped over and instead of biting him had knocked him down? Then, if not, does the fact of the accident arising from the dog falling into the pit instead of colliding with the plaintiff while standing above ground make any difference? We cannot see how it does. If it were not for previous decisions, however, we are not at all convinced, that as a matter of abstract justice it is so absurd that a man should be responsible for keeping his dogs from doing damage, whether to his knowledge mischievous or not. What is the proper test of mischievousness for this purpose? When a big, powerful animal like a mastiff or Newfoundland dog knocks down or falls on a man and breaks his bones, it is very immaterial to the person who is injured whether the dog did it in cial usurpation - a part of a system of usurpation by which the Federal judges on the Pacific coast are slowly and surely suppressing the rights of those States. Our judgment is that it never was intended by Congress that the Federal judges should innocent play and lightheartedness or because he was of a mischievous disposition. The question, as it seems to us, ought, in justice, to be whether the animal is, from its general character, likely to be in fact dangerous, not whether the mischief proceeded from a mischievous disposition or not in the partic-have any jurisdiction in this matter whatever. The ular animal; and if so, it would appear to us to be equitable that the person who keeps such an animal for his pleasure or profit should be responsible for not preventing him from doing mischief. The truth is that our old law on the subject is too undiscriminating. For instance, it puts all dogs in the same category as if they were for this purpose essentially similar; as if a lady's lap-dog was like a boar-hound or mastiff, strong enough to encounter a powerful wild beast." | acter. matter of surrendering fugitives from the justice of other States is a matter which belongs wholly to the States. It belongs to them in their sovereign charIt is true that it is an obligation imposed on them by the Constitution of the United States; but it is a preposterous idea that the governors of the States should be subjected to the superintending jurisdiction of the Federal judges. If the idea had been mentioned in the early days of the Constitution, it would have been scouted.” The Canada Legal News gives the following com- Judge Brewer, of the Kansas Supreme Court, parative statistics of advocates and other professions having resigned his office to accept that of United and occupations in that country: "The census sta- States Circuit judge of the eighth district, writes a tistics of Canada, which have just appeared, give | letter of farewell to his late associates, in which he the number of advocates in 1881 at 2,717, against says: "The court has, thanks to your faithful and 2,212 in 1871. It appears, therefore, that there is unremitting labors, been enabled to keep even with one advocate for every 1,584 of population. This the constantly increasing volume of its duties; we proportion is not nearly so considerable as in the have met on the first of each month, and called case of the other learned professions, the number of every case on the docket; and within a few weeks physicians being 3,507 in the year 1881 against in each case the opinion has been filed. The' law's 2,792 in 1871; while of clergymen there were 6,329 delay' has to the litigant in Kansas courts become in 1881 against only 4,436 in 1871. This is ex- an obsolete phrase. To-day I leave you with a clean clusive of 491 Christian Brothers who have more docket. Every case submitted prior to the first of than doubled in the decade, there being only 205 in March has been decided, and my successor comes on 1871. The nuns' also exhibit a remarkable in- to an open field." Judge Brewer is an able and crease, the number being 5, 139 in 1881 against 2,907 conscientious jurist, and his appointment to the in 1871. While the increase in these sacred voca- Federal bench is recognized as in every way a fit one. tions has been, so to speak, by leaps and bounds, we nevertheless required 1,313 policemen in 1881 against 446 in 1871. The band of teachers exhibits a normal and satisfactory increase from 13,400 in 1871 to 19,232 in 1881. We are not concerned about other figures of the tome, which somewhat tardily makes its appearance three years after date. We only note that the hackneyed jokes at the expense of the plumber, far from deterring the rising generation from turning their attention to that lucrative occupation, have almost trebled the num bers within its fold, there being 1,307 in 1881 against 526 in 1871." A correspondent assures us that the author of "Eternal vigilance is the price of liberty" is unknown. So it seems, as far as heard from. Was it not one of our revolutionary fathers - John Adams, possibly? Mr. Alfred Clarke, of the San Francisco bar, has published a pamphlet on Inter-State Extradition, in re Robb, in answer to Dr. Spear's criticism, ante, 209. We should be glad to republish it if we had space for the discussion to which it would probably give rise. The pamphlet is issued by A. L. Bancroft & Co., of San Francisco. The American Law Review says of this decision: "It is, in our deliberate judgment, a flagrant piece of judi In reply to a suggestion that the court should adjourn for the funeral of the Duke of Albany, the lord chief justice remarked that "truest respect we can pay to her majesty is to administer justice to those of her subjects who throng these courts." He therefore declined to adjourn the Court of Crown Cases Reserved. The other courts, we believe, adjourned. The legal press censure the action of his lordship observing, "much the same remark might be made as to every institution which was closed on Saturday last." Still, it seems hardly fair to keep prisoners in jail or on bail out of respect to the queen or her deceased son. It seems a singular state of society where a lawyer beats a judge almost to death, and the community is equally divided on the question whether the judge can be re-elected unless he murders or challenges his assailant, and the judge's wife announces that if her husband does not kill him she will. And yet this is the state of society in Kentucky at the present moment. It must seem singular to those foreign nations to whom we are continually calling to look at us and to follow us and come to us, and lay aside old-world ways. This we suppose is true democracy - to show judges that they cannot be allowed to put on airs or gowns or any such badges of superiority. However, we must do Kentucky the justice to say that if the worm should turn if the judge should kill the lawyer, he would be acquitted on the ground of insanity and then triumphantly re-elected. This too is democracy — in Kentucky. Right across the river, too, in Cincinnati, we have another disgraceful exhibition of the disorders of society in the developments about the jury in the Berner case. If these reports about the conduct of the jury are true, they show a terrible state of demoralization in the administration of criminal justice. But it does not mend matters to rush out and commit more murders and burn and destroy in the madness of a justly offended public sentiment. Let the officers of justice, if they have any in Cincinnati, get hold of the corrupters of the jury — the "fixers" and the fixed-and punish them, and try and work a general jail delivery, and having wiped the slate clean, commence on a new and more prompt and summary plan. THEC NOTES OF CASES. THE Ellsworth (Me.) American brings us an account of the trial of an indictment for "hunting, killing and destroying " a deer. The objection of duplicity was overruled, Chief Justice Peters holding that the words in question substantially state a single offense. Mr. J. D. Pulsifer, late State reporter, appends the following remarks: "The points taken in the indictment for hunting, killing and destroying deer suggest a topic for the reporter to ventilate some cheap etymological learning upon. It is matter of common learning, merely stated here as a postulate, that modern English is made up mainly of Latin and Anglo-Saxon, two languages in one, that we have a multitude of synonyms which were real synonyms to start with, half of them derived from Norman, French or Latin, and half from Anglo-Saxon. The legal phraseology is full of those synonyms. After the Norman Conquest, Frenchified Latin was the language of the court, which after some 300 years gave place to purer Latin, and then to composite English. the course of these changes there were two sets of citizens to be informed of the laws and legal instruments and records, and all important words ran in pairs, and this fashion, then necessary, is continued as a linguistic trick, whether necessary or not; thus in this statute it is not enough to kill a deer, he must be killed and destroyed. Kill is Saxon, destroy is Latin. The same distinction in an indictment for murder, the double phrase is to kill and murder (Saxon); so assault and battery, the former Latin, the latter Saxon; so we have 'will' and 'testament,' not synonyms, but words from two languages applied to the same thing. It would be curious and interesting to examine writs, pleadings, indictments, deeds, contracts, etc., and see innumerable illustrations of these Latin and Saxon pairs." In Very appropriate to this season is Phenix Iron v. Samuel, Pennsylvania Supreme Court, Jan. 29, 1884, 41 Leg. Int. 156, holding that parol evidence is competent to explain the meaning of "early spring" in a written contract made in England. The trial court had charged as follows: "It was contended during the argument that as there was no evidence that any of the words in these contracts of sale were used technically as words of art, or with reference to the usage of the iron or any other trade, it was the duty of the court to say what the words meant, as being words of that English language which we speak in common with the people of England, where one of the contracts was made, and to say, moreover, what was the effect of the words viewed in their relation to each other. There can be no doubt that such is the general rule, that is to say, that the court should, ordinarily, taking written words in their [common acceptation, interpret the instrument as a whole. Certainly upon the impression which I had when this case was first opened I should have had no doubt as to the popular and general signification of the term 'spring,' as applied in England and this country, to the designation of time, and consequently would have thought it my duty to instruct you as to its meaning as used in this contract. It would appear however from the testimony, that spring' is used not merely scientifically but popularly in different senses, and that its meaning varies with the circumstances. As defined by some of the most eminent lexicographers it is the 'vernal season,' or 'the season when vegetation generally begins.' As used in astronomy it dates from the 21st of March, when the sun enters the constellation Aries. Had both these contracts been made in this city I should have been confirmed by the evidence in the impression which I entertained in the first instance, that spring, as used popularly in the United States to designate one of the four seasons, means March, April and May. No doubt spring may be used in the sense given by Dr. Johnson as the vernal season, or, as when the poet wishes for the wings of a bird to travel around the globe, 'companion of the spring,' and will then necessarily imply that spring is not restricted to any particular time. But it appears to me that when spring is used in the United States to designate the period at which work is to be done or goods delivered, it should be understood as referring to March, April and May, and if I do not so inform you in this instance it is in view of other considerations which induce me to leave the meaning of the term 'early spring' to you as a question of fact. The meaning of the word spring,' relatively to the case in hand, is complicated by an inquiry as to the sense in which that term is understood in England, and consequently presents a question which, so far as I am aware, is altogether novel. That question is, England being a foreign country relatively to us, although we are for the greater part descendants of the English race, and speak the same language, what is the province of the court in defining the * * |