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16. The amendment is evidently intended to apply to title 3, though no title is mentioned.

Chapter 517 of the Laws of 1880 amends section 20, chapter 9, title 14, part 1 of the Revised Statutes. There is no title 14 to that chapter, as it ends with title 13, but the editor of Banks & Brothers' compilation has, for some reason best known to himself, taken several statutes relating to the United States deposit fund, consolidated them and called them part 14 of the Revised Statutes. The section the Legislature intended to amend is section 18 of chapter 150 of the Laws of 1837.

No man has any business in the Legislature of this State unless he knows enough about statute law to avoid such gross blunders. As most of the acts mentioned herein and by your correspondent, Mr. Hopkins, must have come before the committees on the judiciary of the two houses, I think it would be no more than fair for you to publish the names of the members of those committees. They are as follows: Senate Robertson, Williams, Mills, Pitts, Winslow, Fowler, Astor. Assembly - Terry, Congdon, Brennan, Potts, Travis, Mitchell, Roberts, McCarthy, Steele, Rhodes, Russell. R.

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NOTES.

HE Virginia Law Journal for November has a leading article by Judge William Archer Cocke, of Florida, on Distinctions under the Constitution of the United States between law and equity, and the mingling of legal and equitable remedies in the States where Codes exist; also another, by James Lyons, Sr., on Information as to commission of offenses. The Criminal Law Magazine, for November, has a leading article by Dr. Wharton, on Conflict of Criminal Laws; the case of Com. v. Petroff, on bribery of public officer and effect of prisoner's testimony, with note; and the case of Jones v. Queen, on discharge of jury without verdict, with note. In the former case, Pearson, J., at Dauphin quarter sessions, Pennsylvania, uttered the following extraordinary language to the jury: "We have the evidence of a person who comes forward and testifies in his own cause. We must take that with a good deal of scrutiny, if not jealousy and suspicion. Such evidence must be carefully weighed, and when it comes in conflict with an honest man, we generally give very little weight to it." The prisoner was convicted, but we guess he will get a new trial. The price of the Magazine is to be reduced from $6 to $5.

The American Law Register, for October, contains the continuation of the paper on Expert testimony and the microscopic examination of blood; the case of Fritz v. Hobson, on obstruction of highway for building purposes, with note by Edmund H. Bennett; the case of Queen v. Orton (the Tichborne claimant), on cumulative sentences, with note by Hugh Weightman, in which the annotator distinguishes and defends the Tweed case in this State, on the ground of the preservation of the right of peremptory challenges.

The Governor of Wisconsin has appointed Orsamus Cole Chief Justice of the Supreme Court in place of Chief Justice Ryan, deceased, and has appointed J. B.

Cassody, of Janesville, as associate justice in place of Judge Cole thus promoted. Judge Cole has held the office of associate justice for about twenty-five years. Previous to accepting that position he served a term as a Representative in Congress.-The Georgia Legislature have promoted Judge Jackson to be Chief Justice of the Supreme Court, and elected Judge Crawford associate justice in place of Judge Bleckley, resigned. For the vacancy caused by Judge Jackson's promotion, there is a dead-lock among seven candidates. Mr. Seymour D. Thompson has been elected a judge of the St. Louis Court of Appeals by a majority of 3,800. This does not look much like a failure of the elective system, despite Judge Thompson's own views of the subject.

80.

In the English Court of Appeals, after remarks by the Lord Chancellor on the death of Lord Justice Thesiger, Sir Henry James, Attorney-General, made the following address, the members of the bar meanwhile standing: "My Lords, I hope you will forgive me if I take this opportunity, the first which has been offered to me, and therefore I take it, of speaking a few words rather to those around me than to your Lordships. It was the wish of the late Lord Justice that I should do When his end was coming near- very near- he claimed the attention of ono who stood by him, and exacted a promise that a message should be taken from him in that to him supreme moment to those who had been his comrades, and he begged that it should be told to them that ho had never forgotten, and even in that moment did not forget, the kindness and consideration which he had received from them, and he hoped and trusted that in return he would not be forgotten by them. My Lords, that message I now give, and although tho words seem to come from afar, and no reply can be sent to them, still it may be some satisfaction to those who so sadly mourn to know that 'men will come and men will go' before he will be forgotten by us, or his character and conduct cease to be regarded as an example to us all. My Lords, I pray your forgiveness for having delivered this message; but my apology consists in the hope that words so coming from such a man will tend to forge stronger a bond of importance to the public - the bond which binds the Bench and Bar together."

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Not long ago a judge of the Quarter Sessions of Lancaster, U. S., summarily expelled from the bar of his court two attorneys, upon grounds of some novelty. The attorneys were the editors of the Lancaster Intelligencer, in which newspaper a libellous article had been published, reflecting upon the judicial conduct of the learned judge. It did not appear that the attorneys had been at all guilty of misconduct in their professional capacity. We are therefore not surprised that the ALBANY LAW JOURNAL "urged pretty stoutly" that the judge had exceeded his authority. From a recent number of that journal we learn that the Pennsylvania Supremo Court has restored the attorneys to their privileges, and expressed the opinion that a libel does not amount to a breach of professional duty unless it has been designed to acquire an influence over the judge in the exercise of his judicial functions by the instrumentality of popular prejudice. Our contemporary suggests very properly that the attorneys should make a public apology to the judge for the publication which they did not undertake to justify. By the law in force in this country the court will strike a solicitor off the roll for an indictable offense involving much criminality, where the offense has reference to a proceeding in court, and is clearly made out (Stephens v. Hill, 10 M. & W. 28); but a mere verdict against him in an action for libel is not of itself a sufficient ground for striking the solicitor off the roll. 2 Dowl. 110. Even when the solicitor has been struck off, the punishment is by no means in all cases to be considered a perpetual disability.-London Law Times.

The Albany. Law Journal.

Ju

ALBANY, DECEMBER 4, 1880.

CURRENT TOPICS.

UDGE WALLACE, of the Federal Circuit Court for the Northern District of New York, has pronounced an important decision in respect to National banks, in National Albany Exchange Bank v. Hills. This was a suit to restrain the receiver of taxes and the city marshal of Albany from collecting the tax for 1879, against the bank, under the act of 1866, on the ground that it is unconstitutional. This act, it will be remembered, was pronounced invalid as to National banks, by the Federal Supreme Court, in People ex rel. Williams v. Weaver, 100 U. S. 539; S. C., Browne's Nat. Bk. Cas. 57, in so far as it permits the debtor to deduct the amount of his debts from the valuation of all his personal property, including moneyed capital, except bank shares, inasmuch as it thus taxes shares in National banks at a

greater rate than other moneyed capital. Judge

Wallace now holds that the act is totally void and unconstitutional as to the National bank shares, and conferred no authority to make any assessment upon them, and is not simply erroneous with respect to the omission of the right to make the deduction for debts. This question was not before the Federal Supreme Court in the Weaver case, that decision simply holding that the debtor is entitled to a deduction from the assessment, to the amount of his debts. The Court of Appeals of this State, Dolan v. People, 36 N. Y. 59, had decided that the act of 1866 was peculiar, independent of, and designed as a substitute for the general system of taxation, as to bank capital, and consequently it must stand or fall upon its own provisions, and the Federal Supreme Court having declared it invalid in this particular it must go down altogether. This decision, of course, relates only to the tax of the year in question, as the Legislature last winter enacted that the deduction should be allowed. We give the opinion in full in another column.

The same judge has also decided the case of Stanley v. Supervisors, which grew out of the same subject. Mr. Williams, the relator in Williams v. Weaver, having paid under protest the tax thus unjustly laid on his bank stock, assigned his claim for recovery to Stanley, a citizen of Chicago, who thereupon brought this suit in the Federal Circuit Court. Judge Wallace now dismisses the suit, on the ground that this is not a Federal question, and that court has no jurisdiction. This is founded on the act of Congress of March 3, 1875, providing that no Circuit Court shall have cognizance of any suit founded on contract, in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of paper negotiable by the law merchant. Mr. VOL. 22.- No. 23.

Williams, being a citizen of this State, could not have maintained the action; therefore his assignee cannot. But is this a suit founded on contract? Like Lord Eldon, 66 we doubt."

We thought we had heard of every conceivable excuse for shirking jury-duty, but a new one has recently been invented in the city of New York. A juror asked to be excused on the ground that he belonged to the Reformed Presbyterian Church, the creed of which, he said, maintains that it is wrong to do any legal business under the present Constitution of the United States, since it does not mention God, or acknowledge Him as the "author of national existence and the source of all power and authority in civil government, and Jesus Christ as the ruler of nations and the Bible as the foundation of law and the supreme rule for the conduct of nations." The juror argued that as jurors are executive officers created by the Constitution, he could not conscientiously serve on that account. But the court, taking a different view of the matter, cruelly compelled the scrupulous man to serve. Wendell

Phillips, after preparing for the bar, declined to fol

low the profession, it is said, because of the requirement of an oath to support the Federal Constitution. His objection, however, was more radical than the pious juror's, for he denounced the Constitution as "a covenant with death and league with hell." But we should think the juror might be satisfied with the Declaration of Independence, which recognizes God, the Creator, the Supreme Judge, and expresses a "firm reliance on the protection of Divine Providence," in the act of separation from the mother-country. Really, a resort to the time-honored excuses of deafness, inability to sit for any great length of time, or a wife about to be confined, would appear more respectable than this pious pretext of honoring God by shirking duty to man.

Mr. Richard Grant White has recently written in support of the pleasant and comfortable theory that a common-school education is an incentive to crime. Or if that is putting it too strongly, we will say, he believes that education, instead of suppressing crime, seems favorable to its increase. He supports this theory, we believe, by a comparison of the statistics of crime at the North and at the South. It will be generally conceded, we suppose, that education is more diffused at the North than at the South, and considering the difference in population, we believe crime is more general at the South than at the North. This is true at least of crimes of violence, and among the superior classes. Our statistics of Texas criminal law some months ago showed this. But to treat the subject fairly, it must be conceded that there is an appalling amount, if not a decided increase, of violent crimes at the North. In two days, about a week ago, the telegraph brought us the news of no less than thirteen murders. To "pay off an old grudge," at Maysville, Kentucky, one man stabbed and killed another; a railroad employee, discharged from work, shot and

killed the foreman, at Columbia, Tennessee; a man in a saloon in Carbonville, Ohio, playfully said he would shoot another with a pipe, and was immedi- | ately shot dead; a farmer at Napanee, Ontario, was found dead in his house with his head split open, it is thought by his wife; in an altercation at Newburgh, New York, one man shot another and killed him; a railroad workman in New York quarrelled with another about some trivial matter, and settled the dispute by plunging a knife to the heart of his comrade; a man at Cumberland, Rhode Island, shot and killed another who paid some attention to his wife; a man at Kankakee, Illinois, poisoned two children; a cavalryman at St. Louis killed a woman; the body of a seaman was found at Portsmouth, N. H., with indications of foul play; a man at Hoboken kicked his wife to death; a man at Pittsburgh was killed by a blow on the head received from some person unknown. Only three of this batch occurred at the South. There are 19 persons now in jail at Chicago, for murder. Since writing the above we read of two more murders, one in Maryland and one in Kentucky. The 8th Texas Court of Appeals Reports come to the front pretty well with 29 murder cases - very few hangings, however, the jury having a discretion as to punishment. And yet the gallows was never so busy as now. Every Friday brings its horrid catalogue of hangings. Justice seems vainly toiling after the law-breakers. Has this state of facts any dependence on the year of perihelions upon which we are entering? Have the planets indeed cast an evil eye upon us? That New York juror would better look at these facts, and waive his scruples, and if God is not in our Constitution, try to put Him into our administration of criminal justice. We cannot believe the "devil is dead," yet, notwithstanding, the victim in one of the Texas cases was Olenick.

The attention of the public in Connecticut is being called to the subject of prohibiting judges from sitting as referees, or "committees," as the term is in that State. This is a step which was taken in this State a number of years ago. It is said in Connecticut, that the courts are burdened with business, that the judicial salaries are not inadequate, and that the expense of this system of trial is very great. An exchange says: "It is claimed that the courts are so burdened with business as to render it impossible for suitors to obtain a speedy trial, and for a number of years there has been a strong pressure to have the number of judges increased, many leading members of the bar advocating an increase as a necessity. We are not prepared to say that an increase of the number of judges would not be necessary even if the present judges confined their attention entirely to their legitimate duties. Still, before increasing the judicial expenses of the State, which are already large, we think it would be a good idea to put a stop to the practice of allowing judges to try as committees cases which they ought to try in their ordinary judicial capacity." "It is high time that a law was passed which will compel

judges to confine themselves to the discharge of their legitimate duties, and prohibit them from devoting any of their time to committee business. We call the attention of members-elect of the general assembly to this matter and trust that it will receive proper consideration. We know that many members of the bar regard the performances of committee work by the judges with disfavor, but are delicate about making a move to reform the abuse, which is already of large proportions and is constantly growing. If the lawyers do not wish to take hold of the matter, let the laymen come to the front and try their hand at it." The judges of course ought to devote their time to the public business, but it is probable that they have meager salaries, and being obliged to come down from the bench in old age, are under a constant temptation to earn all they can while in office. A pension would obviate this evil.

It is now judicially decided that an Indian and a negro look so much alike that persons of ordinary discrimination cannot tell them apart by a casual glance. This is the doctrine of Leidersdorf v. Flint, Wisconsin Supreme Court, Nov. 10, 1880, 7 Northw. Rep. 252. The action was brought to restrain the infringement of a trade-mark upon smoking-tobacco, put up in packages of a certain form, in paper wrappers of a particular color and mark, stamped "Nigger-hair smoking-tobacco." The most marked feature of the label is a representation of a negro's head surmounted by a copious crop of wool, and having a large ring depending from the nose and another from the ear. The defendant imitated the

label, putting on the head of an Indian, with a ring in his ear but none in his nose, and stamping the packages "Big Indian.” Fac similes of both labels were annexed to the complaint. It was held, on demurrer, that the dissimilarity was not so marked as to make it apparent that no one could be deceived, and the demurrer was overruled.

NOTES OF CASES.

[N Brooks v. Cook, Michigan Supreme Court, Nov.

10, 1880, 7 Northw. Rep. 216, it was held that under the Civil Damage Act, the person to whom liquor is sold, and who is injured by intoxication therefrom, cannot maintain an action therefor, as an "other person." In this case the injury was the loss of money by the plaintiff's having his pocket picked while he was intoxicated. The court observed: "Is the person to whom the liquor is sold, etc., and who in consequence sustains an injury, one of the persons for whose benefit the statute is passed? So far as the statute attempts any enumeration of persons who may sue, they all stand in some one of the domestic relations to the person to whom the liquor is sold, given or furnished. To that extent the statute unquestionably contemplates that there shall be three persons concerned: the person selling, giving or furnishing, the person re

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ceiving and causing an injury, and the person injured. But there might be other cases equally meritorious with these (see English v. Beard, 51 Ind. 489; Bodge v. Hughes, 53 N. H. 614); and therefore after enumerating wife, child, parent, guardian and husband, the statute extends the right of action to other persons injured. Does it intend among the other persons who may sue, to include the person himself whose intoxication causes or is the occasion or reason of the injury? Doubtless the statute might have extended its benefits to the intoxicated person, but if such were the intent it is surprising that it was not distinctly and unequivocally expressed. It was as easy to designate the party himself as it was his wife, child, guardian, etc. Moreover the man himself may generally be supposed to be injured in some degree by intoxication, so that his case would furnish the most frequent occasion for a suit if he should see fit to resort to legal proceedings. It would be very remarkable that a statute in enumerating the persons

who should share in its benefits should omit to name the very one who would most often be entitled to its aid. But it is a sensible and well-understood rule of construction, that when after an enumeration the statute employs some general term to embrace other cases, the other cases must be understood to be cases of the same general character, sort or kind with those named. Hawkins v. Great Western Ry. Co., 17 Mich. 57; McDade v. People, 29 id. 50, and cases cited. Apply this rule here, and the party intoxicated is excluded. The persons enumerated are persons who stand to him in special relations, and it is therefore to be assumed that 'any other person' who may sue must also stand to him in some special relation so as to be injured by his intoxication or by the sale, etc., to him. A creditor might perhaps stand in that relation under some circumstances, or a contractor, or servant, or the master of a vessel, or a traveller passing him in the street, and so on. But he could not stand in any such relation to himself, and therefore cannot be understood as embraced in the terms, 'wife, child, parent, guardian, husband or other person,' injured in person, property or means of support by himself, or by reason of his intoxication, or by the sale, etc., of intoxicating drinks to himself. The statute evidently contemplates three parties-seller, receiver and injured party in all cases. This seems a

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In Werner v. Edmiston, 24 Kans. 147, the verdict was ascertained and determined solely by adding the sums named by the respective jurors, and dividing the sum total by twelve. This was not done for purposes of consultation, but by distinct agreement that the result of these arithmetical processes should be the amount of the verdict, and it was immediately at the close of the calculation so written out and returned. This was held error, sufficient to compel a new trial. Such a verdict was also set aside as a chance verdict, in Goodman v. Cody, 1 Wash. 329. The same doctrine was held in Smith v. Cheetham,

3 Cai. 61, Kent, C. J., dissenting; Allard v. Smith, 2 Metc. (Ky.) 297; People v. Barker, 3 Wheel. Cr. Cas. 19; Harvey v. Rickett, 15 Johns. 88; Roberts v. Failis, 1 Cowp. 338; Grinnell v. Phillips, 1 Mass. 541; Warner v. Robinson, 1 Root, 194; Wilson v. Berryman, 5 Cal. 44. The contrary was held in Cowperthwaite v. Jones, 2 Dall. 55. But such figuring for a verdict does not vitiate the verdict unless there was a positive agreement to abide the result. Thompson's case, 8 Gratt. 637; Dana v. Tucker, 4 Johns. 488. In Turner v. Tuolumne Water Co., 25 Cal. 397, such a verdict was held not to be a chance verdict within the statute, but was said, obiter, to be vicious, within the above authorities. The verdict, however, was not set aside. Notwithstanding the agreement to abide the result of such figuring, if a different verdict is adopted, it will not be void. Thompson's case, supra; Bailey v. Beck, 21 Kans. 462.

The ruling of Judge Osborn, of the New York Supreme Court, in the case of People v. Briggs, that a wife is not a competent witness against her husband in a criminal proceeding (ante, 361), is sustained by a recent decision of the Mississippi Supreme Court, in Byrd v. State, 57 Miss. 243. The Mississippi statute is very similar to ours; its language is: "Husband and wife may be witnesses for each other in all criminal cases, but they shall not be required to testify against each other, as witnesses for the prosecution." In civil cases, the statute makes them witnesses for each other. The court said: "The learned judge who presided in the court below held that under this section the wife may be a voluntary witness for the prosecution, against the husband's consent. We are constrained to differ from him in the construction he has placed on this statute. The statute is in derogation of a very ancient and well-established rule of the common law, based, as we have above seen, in great part, upon grave reasons of public policy, having reference to the preservation of the happiness of parties joined together in the marital relation."

"The rule of the common law excluded them as

witnesses both for and against each other, in criminal as well as civil cases." "If the Legislature had intended to make them witnesses against as well as for each other, it would have been an easy matter to express that intent in unmistakable language. No reason is perceived why the Legislature should not have done so, if indeed they had that intent; nor is it easy to give a satisfactory reason why the Legislature should make them witnesses against each other in criminal cases, when it is undoubted that they are restricted in civil cases to being witnesses for each other. The whole force of the implication, that the Legislature intended to allow one to be a voluntary witness against the other in criminal cases, arises from the use of the words, 'but they shall not be required to testify against each other, as witnesses for the prosecution,' following immediately after the provision allowing them to be witnesses for each other, and as a part of the same sentence. We regard this as rather an over-cau

tious insertion, to prevent an apprehended construction of the preceding words, than as engrafting a new and independent provision upon the statute, which would be the case if it allowed the examination of one against the other, in case the party offered as a witness did not object. But if we are to construe this language to mean that the Legislature thought that by the common law husband and wife might be required to testify against each other when they were allowed to testify in behalf of each other; and to infer that this provision was inserted to prevent the operation of such a rule without the consent of the party offered as a witness, it does not follow that we are to construe this provision as making this erroneously-supposed rule of the common law a part of the statutes of the State. An enactment of the Legislature based on an evident misconception of what the law is will not have the effect, per se, of changing the law so as to make it accord with the misconception."

In Grangers' Ins. Co. v. Brown, 57 Miss. 308, a life insurance company defended an action on a policy, on the ground that the insured had falsely warranted that he had never received any serious personal injury, whereas his skull had been fractured in boyhood, and had been healed by trephining. To prove this, they proposed to disinter his body, after the suit had been pending eighteen months, on the sole testimony of his physician that the deceased had told him that he had been told of such an accident and operation. The counsel for the plaintiff argued: "It is complained that the court refused, on the showing made, to violate the sanctity of a private cemetery. The proposition is revolting. To break the signet of the grave, and take from its resting-place the sacred property of relatives to gratify the corporation's mercenary curiosity, would be worse than Shylock's demand. Is it reserved for this age and this court to decide that the dead may be taken from their sepulchres, inspected, and presented in their awful silent helplessness to the public gaze? A more horrible thought can scarcely be conceived." The court said: "We are not prepared to say that in a proper case the court, in the interests of justice, should not compel the exhuming and examination of a dead body which is under the control of the plaintiff, if there is strong reason to believe that without such examination a fraud is likely to be accomplished, and the defendant has exhausted every other method known to the law of exposing it. We are prepared to say, however, that such an order should be made only upon a strong showing to that effect. It would be a proceeding repugnant to the best feelings of our nature, and likely to be in many cases so abhorrent to the sensibilities of the surviving relatives, that they would prefer an abandonment of the suit to a compliance with the order. Without undertaking to define with accuracy what circumstances would justify the making of such an order, we think that a case calling for it was not shown in this instance."

LEGAL DEFINITIONS OF COMMON WORDS.

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of a notice under the Burnt Records Act, so called, Hitt, 75 Ill. 51, was a, case where the legality published in the Chicago Legal News, was called in question, on the ground that it was not a newspaper, it being devoted principally to the law and not claiming to be a newspaper. The court held that such a paper was a newspaper within the meaning of the statute, and laid down the following definition of a newspaper within the statute for the publication of legal notices. A paper that, while it may be devoted principally to the dissemination of legal intelligence, makes reference to passing events, contains advertisements, brief notices of legislative bodies, personal and political items of interest to the general reader, as well as the legal profession, will be within the statute in question, although its circulation is confined to lawyers and business men, as a class. The court said: "Thus it will be seen it comes substantially at least within the definition given by lexicographers of a 'newspaper.' It is none the less a 'newspaper' because its chief object is the publication of legal news. Many newspapers published in this and other countries are devoted chiefly to special interests, such as religious and political newspapers, others devoted exclusively to literature, that contain advertisements, news items, personal and political, brief notices of matters of special public concern, and reference to proceedings of legislative and other public bodies. So it is with this journal. Besides legal it contains other items of news, not only connected with the bench and bar, but others of a general interest. It is that class of journal that will circulate among lawyers, real estate and other business men, for it contains information in regard to sales of real estate, whether under judicial process or under powers."

In Kellogg v. Carrico, 47 Mo. 157, it was held that a journal devoted to the dissemination of legal intelligence is a newspaper, and that publication in it imparted notice of sale under a trust deed. The court said: "The Legal Record and Advertiser was printed in St. Louis in the form of a newspaper, and was issued to its subscribers daily except Sundays, when the publication was omitted. It was devoted to the dissemination of general legal intelligence, and engaged extensively in legal advertising, including the publication of notices of sales under deeds of trust, and sales on execution and all judicial sales. It was a law and advertising journal, and so, in a limited sense at least, a newspaper; for whether a newspaper or not is a question that cannot be determined by a consideration alone of the kind of intelligence it disseminated. It is not the particular kind of intelligence published that constitutes one publication a newspaper rather than another. Newspapers are devoted to the dissemination of intelligence on a great variety of subjects, such as politics, commerce, temperance, religion, and

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