1855 several parties entered into a joint venture for the purchase and improvement of land, and took the legal title in the name of B., one of the associates, in trust for all. In 1859 J., one of the associates, stipulated in writing with his brother F. that the latter should have one-half of his interest in the property on certain conditions. This agreement was not known to the copartners of J. In 1873 F. died, and nine years later his representatives brought this action to establish the right of their intestate as sub-partner of J. None of the defendants answered except B. and J. The pleadings admitted the existence of the joint enterprise, the trust relation of B., the share of J. and that his interest was still outstanding. There was a judgment for plaintiffs, from which B. alone appealed. Held, that B. having admitted J.'s right, he could not take advantage of any failure on F.'s part to comply with the conditions on which the latter acquired an interest in J.'s share of the copartnership estate. April 12, 1892. Nirdlinger v. Bernheimer. Opinion by Maynard, J. 11 N. Y. Supp. 609, reversed. INJUNCTION MORTGAGE RAILROADS-ELEVATED -DAMAGES-APPEAL.-(1) Where premises injured by an elevated railway had been used since the construction of the railway, and prior thereto, as a storage warehouse, and plaintiff introduced evidence of the rental value with and without the road, an objection thereto, on the ground that it was incompetent, irrelevant, immaterial and not the proper measure of damages, and a request for a finding that the premises were occupied as stated, are insufficient to raise the objection, ou appeal, that the proper rule of damages was the injury for the particular purposes for which the premises were used. (2) The day after the trial of the action was begun commissioners were appointed to condemn the easements in question. After the trial the parties, by stipulation, requested the court to find the value of the property taken, so that an injunction could be avoided by payment of the amount so found. Held, that the court did not err in refusing to direct that an injunction should only become effective in case defendants failed to acquire the easements by condemnation. (3) When there is a valid mortgage on the premises, failure to provide in the judgment for the release of such mortgage from the rights to be conveyed by plaintiff to defendant upon the payment of fee damages, when asked by defendant, is error. Second Division, March 8, 1892. Woolsey v. New York El. R. Co. Opinion by Follett, C. J. 9 N. Y. Supp. 133, modified. ABSTRACTS OF VARIOUS RECENT DECISIONS. SLANDER-EVIDENCE-MALICE-MITIGATION.-in an action for slander, wherein defendant was charged with having said of plaintiff: He would steal or rob anybody. He is a thief, and has stolen my money. He is a rascal, scoundrel and thief "-defendant sought to show by a witness other than himself that prior to the alleged slander plaintiff had said: "If he [plaintiff] went to Congress he would feather his nest, or would fill his pockets." Held, the evidence was properly excluded, as it did not tend to mitigate the alleged slander. This grandiloquent statement of the plaintiff, if true, does not necessarily or even reasonably mean that he intended to get any thing dishonestly, and much less to steal it, if he should go to Congress. This evidence would not mitigate the speaking of the above words, because (1) the defendant did not refer to it as authority for speaking them (Haskins v. Lumsden, 10 Wis. 359), and (2) it bears no relation to the offense charged. Wilson v. Noonau, 27 Wis. 598. It was prop erly rejected. Wis. Sup. Ct., Feb. 23, 1892. Delaney v. Kaetel. Opinion by Orton, J. TRIAL-INSTRUCTIONS-COMPROMISE VERDICTS.—Ân instruction that the law "expects and will tolerate reasonable compromise and fair concessions" on the part of the jury is erroneous. The law does not expect any compromise on the part of jurors. It expects every juror to exercise his individual judgment, and that when a verdict is agreed to it will be the verdict of each individual juror. In arriving at a verdict a juror should not indulge in any undue pride of personal opinion, and he should not be unreasonable or obstinate, and he should give due consideration to the views and opinions of other jurors, and listen to their arguments with a willingness to be convinced and to yield to their views if induced to believe they are cor rect. But the law does not expect, nor does it tolerate, the agreement by a juror upon a verdict, unless he is convinced that it is right; in other words, unless it is his verdict, a verdict which his conscience approves and he under his oath, after a full consideration, believes to be right. To say that jurors may compromise upon a verdict is to say that twelve jurors, all differing widely in their views as to what verdict ought to be returned, without any of them changing their views, may agree upon a verdict which is not believed to be right by any considerable number of the jurors, but agreed to as a matter of expediency in order to dispose of the case without the approval of the consciences of any considerable number of the panel approving of it. The instruction tells the jurors the law expects them to make concessions and compromises, and agree upon a verdict which their consciences do not approve, but they should do so as a matter of expediency in order to dispose of the case. The opinion in the case of Clem v. State, 42 Ind. 420, sustains the view we have expressed. It is true that decision was rendered in a criminal case, but a verdict, whether in a civil or criminal case, must be the verdict of all the jurors. Thomp. Trials, 2303. In the case of Houk v. Allen, 126 Ind. 568, after the jury had been out some twelve hours, the jurors agreed that a certain number of ballots be cast and counted, and if either the plaintiff or the defend. ant received a majority of the ballots so cast, that the verdict should be returned for the party receiving a majority, and the agreement was carried out, and a verdict returned in accordance with the agreement. This court held that a verdict could not be arrived at in that way, and in the opinion it is said: "It is very clear, we think, that the rights of the parties were not determined according to the judgment or consciences of the members of the jury, as was their right, but that the verdict was the mere creature of the agreement to which the jurors bound themselves in advance of the verdict," and yet this method of arriving at a verdict was but a compromise, the result of a concession made by the jurors. They could not agree upon a verdict. They differed as to whether the verdict should be for the plaintiff or the defendant, and after having deliberated for twelve hours, they compromise upon a ver dict, and agree that it shall be reached in a certain way, and in doing so they return a verdict which is not approved by the judgment and conscience of the minority of the jurors, and the court says it is illegal. Under the instruction given in this case the jury may have entered into a like agreement, and compromised upon a verdict to be arrived at in like manner. In the case of Goodsell v. Seeley, 46 Mich. 623, the court, iu speaking of jurors compromising, says: "The law contemplates that they shall by their decisions harmonize their views, if possible, but not that they shall compromise, divide and yield for the mere purpose of an agreement." Ind. Sup. Ct., Jan. 14, 1892. Richardson v. Coleman. Opinion by Olds, J. THE GIANT BRAKEMAN. [The court will take judicial notice that no man can sit four feet eight inches high. Hunter v. New York, etc., R. Co., 116 N. Y. 115.] Hunter, a brakeman on the top Of freight-car speeding o'er the rail, By blow which laid him bloody, pale, "Twas in a tunnel that he lay, Wherein some low arch-fiend had reared That from the top of cars appeared This arch hit Hunter on the head While on the car he sat him down, Of Hunter's height there was no proof; Could possibly hit Hunter's head." Now this court knows a thing or two; Four foot seven above his seat, CHORUS OF JUDGES. No mighty Hunter, well says Brown, This case would naturally seem unique; As man of nineteen feet seven inches' height.* CORRESPONDENCE. COUNSELLOR OR COUNSELOR? Editor of the Albany Law Journal: If there is one thing more than another peculiar to Americans it is an impatience to reach an end in the shortest practicable way. The truth of this may be variously illustrated, but it is seen in greater or less degree in language, by the use of short, simple, Saxon words and phrases in preference to long, compound and circumlocutory ones. There is a natural repugnance in sound or sight, or both, to letters and words that fulfill no necessary and useful office. And yet to this rule there is now and then an exception, such an one being the frequent spelling of the word "counselor " with two "l's." When spoken it does not so much matter, for though two "l's" are in use, the pronunciation is the same. But when written or printed "counsellor," instead of "counselor," is an offense to the eye. Why is "counselor" so often spelled with two "l's?" Many of our nouns are derived from verbs, as from "write" comes "writer," from "protect "protector," while from "counsel" undoubtedly should come counselor." If the proper affix to "write," "protect," and the like, is "or," why is not the proper affix to counsel" also "or," and not "lor," as is 80 often seen? It appears that the French word for the verb "to counsel" is "conseiller," having two "l's," and if "counsellor" were an evolution from the French verb that spelling would be permissible historically. But the Latin word for the verb "to counsel" has but one "1," and there seems as much or more reason for the origin and use with us, as the other origin and use, and if the word comes to us from the Latin, even though through the French, there would seem to be greater propriety in the use of "counselor" than "counsellor," as the former would also answer to the predisposition of Americans aforementioned. In England the spelling with two "l's" is the rule, the word being ranked with "chancellor," but as our Century Dictionary points out, improperly. Moreover, are not the English, for various reasous-possibly natural constitution, the forms and theory of a monarchy, State Church, etc.-more slow, stately, patient and "dignified" in conduct and language than Americans, and thus more naturally inclined to the use of the longer and more formal word "counsellor?" It has been said many times, that as a rule, better "English" is spoken in America than in England. And undoubtedly better English is spoken in this country at the present time than formerly. In colonial times, as appears, the best-educated people, including Washington, were commonly accustomed to spell "vessel," "general," "proposal," "April," etc., with two "l's." Very likely they spelled "counsel" with two "l's," but the noun so spelled would be no authority for "counseller," as nouns are not derived from nouns, while if the word in question were derived from the verb so spelled, the dropping of an "1" from "counsell" would be an authority for the dropping of an "1" from "counsellor." Times change, and we change with them. The standards of the shirt-ruffled, *Patterson v. Philadelphia, etc., R. Co., Penn. Com Pl. + Tallman v. Met. El. Ry. Co., 121 N. Y. 119. VAN BUREN'S TABLE OF NEW YORK SESSION LAWS. Table of New York Session Laws from January 1, 1887, to January 1, 1892, which in terms repeal, amend or modify other statutes, chronologically arranged, and an index of the Session Laws during the same period, which do not in terms modify other statutes. By Augustus Van Buren. Albany: Matthew Bender. Bender's Lawyers' Diary, for the State of New York, 1892 and 1893, from January 1, 1892, to January 1, 1894. Arranged by Irving Boardman. Albany: Matthew Bender. DONOVAN ON SKILL IN TRIALS. Skill in Trials, containing a variety of civil and criminal cases won by the art of advocates, with some of the skill of Webster, Choate, Beach, Butler, Curtis, Davis, Fountain and others, given in sketches of their work and trial stories, with new selections of western eloquence. By J. W. Donovan. Rochester: Williamson Book Co. Pp. 173. The Legal and Mercantile Hand-Book of Mexico, written and edited by A. K. Coney, consul-general of Mexico at San Francisco, Cal., and Jose F. Godoy, attorney at law and vice-consul of Mexico at San Francisco, Cal. San Francisco: Bancroft-Whitney Co., agents for the sale for the authors. ROMAN LAW OF TESTAMENTS. The Roman Law of Testaments, Codicils and Gifts in the event of death. By Moses A. Dropsie. Philadelphia: T. & J. W. Johnson & Co. Pp. xi, 197. This well-printed volume contains one hundred and seven cases in full, with extensive annotations, and abstracts of a great number of other cases, and as we understand, these cases were all decided in 1891. There is a good deal of other matter, such as a chapter giving the forms of deeds and acknowledgments wherever prescribed by statute in any State. The volume exhibits a great amount of labor, and will answer the useful purpose of grouping the very latest law ou this important subject gathered from perhaps three thousand decisions. JOHN VAN BUREN. L. B. Proctor, Esq.: DEAR SIR-Allow me to thank you for your admirable portrait of John Van Buren in the last number of the ALBANY LAW JOURNAL. I read it with great pleasure, and could not help feeling that the readers of that valuable paper would be repaid if they had only that without the many other interesting matters which enrich the number. Your valued article carried me back to my boyhood days, when in 1847 I first saw Prince John, as we used to call him, in attendance on the Court of Errors then convened here. His physical beauty alone would have awakened a boy's admiration. Over six feet high, broad shouldered, and with a form developed by every manly exercise, he was a model of handsome manhood. His every movement was distinguished by grace and perfect composure. It was a pleasure to listen to him, so pleasing was his voice and his argument so clear and forceful. I remember that he cultivated somewhat the English accent, and when Judge Bronson said to him, "It won't do, Mr. Van Buren," he answered, "But your honor forgets the w'ip case. His political speeches were full of wit and delicate satire, clothed in a diction very simple and nervous and for that reason very forcible. He had his father's subtlety and shrewdness, which he exercised more for his clients than himself. His nature was a generous and noble one, and it is one of my sources of gratitude that you have so graphically recalled him. Yours very truly, WE suppose lawyers will be divided on the question of conferring the Parliamentary suffrage upon women. It is difficult however to see how the Legislature can logically leave women where they are. For purposes of civil rights and liabilities all single women are upon the same footing as men; so are all married women having separate estate, by the express enactment of Parliament. Nothing but sentiment can be opposed to the natural conclusion that all women having the qualification should be entitled to vote for members of Parliament. We think solicitors should be pleased that their most prominent representative in the House, Sir Albert Rollit, should have introduced the measure for this purpose.-Law Times. Mr. Walter Rye, the antiquary, writes to the Athenсеит: Frognal House, Hampstead, N.W. Mr. Lockwood, Q. C., in his most amusing lecture on this trial, missed, as I think all former commentators have done, what seems to me a very importaut point. All readers of Dickens of the present generation are very apt to think that the idea that the missive Chops and tomato sauce' could possibly be strained into a love-letter is rather too absurd even for a burlesque. But the other day it struck me that at the time Dickens wrote the then scarce tomato was just as usually known as the 'love-apple' as the 'tomato.' This supplies just enough possibility to enable plaintiff's counsel to found an innuendo, and I dare say many of the last generation of readers quite understood what is now a crux to many." The Albany Law Journal. ALBANY, MAY 28, 1892. CURRENT TOPICS. OME person signing "A Woman Clerk" writes SOME would probably have let him off. Portia would put the doctor in a worse attitude than the intentional criminal who turns State's evidence. Of course we would not counsel violations of law to compel enforcement of law, but we do counsel the exposure of secret crimes by such means as Dr. Parkhurst has employed because they are the only possible means. In this sense we believe that the end justifies the No doubt a majority of the women of New York will continue to disagree with us, but so much the worse for them. Their squeamishness stands in the way of morality. They would rather have this hideous and woman-debasing and destroying vice unrestrained and unabashed than have their poor little sentimentalism offended. means. us from New York, warning us that women sometimes read the ALBANY LAW JOURNAL, assuming that we were ignorant of the fact when we wrote our recent remarks on the attitude of women in respect to "Dr. Parkhurst's methods." She gives us too much credit. We know the fact, and we wrote those remarks hoping and expecting that women would read them, and we are not the least confused or ashamed that a lawyer's feminine clerk stumbled upon them. In spite of this well-meant warning, we propose to keep right on preaching the gospel of sound morality to all directly interested in the administration of justice, regardless whether they wear pantaloons or petticoats, or both, like our highest judges. But we must venture to correct Portia's notions of the law in the premises. She writes that women's objection to Dr. Parkhurst's "methods is not based upon 'pious' sentimentalism, but upon the fact that his methods are in direct violation of law, and the attention of the editor is called to sections 28, 29 and 316 of the Penal Code. Does the editor of the ALBANY LAW JOURNAL Counsel violations of law to compel enforcement of law? Does he believe that the end justifies the means? If so, then a majority of the women of New York city will continue to disagree with him." Now in the first place it cannot reasonably be assumed that women's objection is generally based upon a knowledge of the Code, for very few of them know any thing about it or ever heard of it. But in the second place, Portia is all wrong in her construction. Her point is that Dr. Parkhurst is an accessory and a criminal because he has "counselled, commanded, induced or procured" a violation of law. It may well be doubted whether Dr. Parkhurst "induced" any thing, any more than a visitor to Barnum's circus "induces" that show. A book reviewer in the New York Law Journal, But suppose he did. The common law always was that a mere decoy or detective was not punishable, signing "T. C."--we hope not our old friend Timothy Cronin-says: The married woman's legal cup of happiness must now be full, for the governor has signed the bill to enable married women to contract with their husbands in the same manner and with the same effect as if unmarried. The gradual steps by which our Legislature has reached this sensible and inevitable conclusion remind one of the gradual steps by which parties in civil and in criminal actions in this State were empowered to become witnesses on their own behalf. The original acts of 1848 and 1849 were extended in 1860 and 1862; in 1884 the wife was given authority to contract, except with her husband, as if unmarried; in 1887 husband and wife were enabled to deed directly to one another; in 1890 a confusion respecting the wife's right to sue for injuries to her person or character was settled, and the husband was relieved from his still-existing liability as at common law for her torts, and now comes this last act. The only backward step was in 1871 and 1888, when the limitation on the husband's right to bind out his minor child, part with its control or create a testamentary guardian for it, without the written assent of the mother, was re If because his intent was not to commit but to expose crime, not to encourage but to discourage. The language of our Code is not substantially different from that of the common law on this point. At common law an accessory is one who "procures, advises or commands " another to commit a crime. Portia's inference were correct, then every order-loving citizen who takes a drink at a saloon on Sunday for the purpose of bringing its keeper to justice is a criminal. This will hardly do. Portia's point was raised by Hattie Adams' counsel on her trial, but it did not prevail. If Dr. Parkhurst had gone to that house for an evil purpose, and had been arraigned for it, the State would have accepted his testimony for the sake of exposing the greater criminal and VOL. 45 No. 22. We pealed-probably to fit some particular case. "Space is wanting to notice at length the cases in this volume, but a single one, Rutledge v. Crawford (Cal.), 761, may be noted, which holds that a ballot, having on its back an offset' or faint impression of the printing on a similar ticket, will not be rejected as bearing any device, etc., designed to distinguish it, without proof that the impression was the result of design. And the same rule applies where there is a small piece of sealing wax or a small grease stain on the back of the ballot. This case (the note to which contains a number of cases on the question) is in conflict with People, ex rel. Nichols, v. Board of County Canvassers, 129 N. Y. 395. But while the strict construction of the Court of Appeals worked hardship in the particular case, yet it is evident that if a mark of any kind is tolerated on the backs of ballots it will be very easy to entirely nullify the secrecy, which is the great object sought to be attained by the Australian ballot system and its modifications. Notwithstanding the vigorous onslaught on this decision in 45 Albany Law Journal, 250, the holding of the Court of Appeals would seem to be not only good law in the particular case, but was a timely warning which may prevent fraud in future. To see a distinguishing mark on the back of a ballot is easy, to prove that it was put there by design might be very difficult to prove." It may be difficult, even impossible, to prove that a distinguishing mark is put on a ballot by design, but nevertheless that is exactly what the statute requires to be proved before the voter shall be condemned to the loss of his vote, and any other construction is the barest judicial legislation. Meanwhile let us all watch and see if the New York precedent is followed in any other State. It has already been pointedly disapproved in one State, and we predict that there are more to follow. And the reviewer then proceeds on his own behalf "It is part of the original jurisdiction. It is here (p. 114) Mr. Binney mentions the one solitary dictum in 1798 of Lord Loughborough, that questions the original jurisdiction of equity in cases of charitable trusts before the statute. It would be unreasonable here to repeat all these authorities. They demonstrated the fact thus, by deciding there is no jurisdiction under the statute, and directing the litigation to be insti tuted in Chancery. Judge Baldwin's opinion is a isdiction to the statute is a mistake of fact. If it were demonstration that the statement attributing the jur only remembered that the statute was, as stated by Sir was intended to give validity to past transactions that being illegal were void? It would seem that there was, on the part of Judge Wright (in Levy v. Lery, 3 N. Y. 107) and Judge Brown, forgetfulness of an important fact in the judicial history of England, that the contest and doubt as to the power of the Chancery to disregard the forms of law, when they made plain le gal purposes impossible of execution, were not confined to charities. Long after this jurisdiction had been applied to that class of devises, the question arose, in 1675, as to mere private interests, the effectuating of In the April number of the American Law Regis-resorted to.' Can it be supposed that such a statute ter and Review are leading articles on two leading cases. The first is by the editor, George Wharton Pepper, on the case of Shylock v. Antonio, which has been much criticised, and up to this time unfavorably. Now Mr. Pepper essays, with considerable success, to show that the error of former critics has been in measuring the law of the case by the English common law or the beneficent notions of equity, rather than by law which may be shown to be consistent with the middle-age customs of Venice. which required the intervention of some one, and there was no such person named. A will devised lands to be sold and the proceeds distributed between the heir and three nephews. Observe the facts and compare them with the position deemed fatal by Judge Brown. He says: "The Tilden trust (the beneficiary) takes nothing by the will,' and evidently thinks this vital. In Pell v. Pelham there was no estate or property in the land given to the devisees that was owned by the testator or passed by the will. There was a power by inference and no one named to exercise it. There was a direction, but it was given to no one. This was all. * # ** As to this portentous monster called cy pres -and the prerogative-let us consider what it means before first insisting on its necessity and then on its illegality. Under this head or title when the court exercises the so-called cy pres power as a court of chancery, and as distinguished from the power under the prerogative, we find that the court cannot vary a char "Here are ten cases, all before the 43d Eliza-ity if it is defined, merely because it is useless. But beth, all of a solemn character, and all of them incontestably clear to the point, that perpetual charitable uses-for the poor, for the poorest of the six nearest parishes; for poor men, decayed and unfortunate or visited by the hand of God; to find a preacher in such a place; for the maintenance of a master and usher of a free grammar school; for a free school; for almsmen and almswomen-are good, lawful and valid uses by the common law of England." Then in answer to the supposed necessity of a resting of a legal estate to maintain this equity: There is no court in England that has ever held such uses to be void. In the same number of the same periodical is a very learned and temperate review of the decision in Tillen v. Green, in our Court of Appeals, which is well worthy the attention of the judges who pronounced the decision. The gist of the reviewer's contention is that the cy pres doctrine was not the creation of the statute of Elizabeth, but that the power was inherent in the Court of Chancery, was exercised before the statute and that the statute was but an enactment of it. He quotes from a remarkably exhaustive examination of the question by Baldwin, J., in Magill v. Brown, Brightly, as fol lows: I do not say that there is none to show that a legal estate to uses may sometimes be void, but as to the uses themselves, until the Mortmain Act of George II there is not an instance, there cannot be one. The general law of England in matters of charity thoroughly carries out the language of the Apostle, Charity never faileth,' and equity not only declares the same thing but makes it effectual." ་ when there is a devise to such lying-in hospital as his executor might select,' and there was no executor, the court selected. All and every the hospitals,' include all in the town. A devise for augmentation of collec tions for the benefit of poor Dissenting ministers,' 'a devise to a particular charity which was dissolved before the death of the testator,' blanks left for the names of the charities, to the poor,' all come under the ordinary jurisdiction of trusts." We have not space to quote further from this instructive criticism on this great case, but we recommend its perusal to all interested in the questions at issue. NOTES OF CASES. IN Shackleford v. Hamilton, Court of Appeals of |