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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.

have in the direction and the discussions of a society that is designed for the benefit of the whole world.

Not only in numbers and influence has the Association grown, but its scope of action has been much

The Albany Law Journal. enlarged. Its founders were at first moved by a de

ALBANY, SEPTEMBER 29, 1877.

CURRENT TOPICS.

THE recent meeting of the Association for the

Reform and Codification of the Law of Nations, at Antwerp, was, notwithstanding the troubled condition of Europe by reason of the war between Russia and Turkey, in every sense of the word, a successful one. The opening address was delivered by Lord O'Hagan, who gave an interesting summary of the progress of the movement inaugurated by the society, and spoke flatteringly of the condition of the society and its future prospects. As the Association is of American origin, we feel in this country a very deep interest in its well-being, and the statements made by Lord O'Hagan will be carefully read with pleasure by every one of us. It will be remembered that the idea of the Association was suggested by the Washington Treaty and the Geneva Arbitration; that, in consequence of the favor with which it was received by leading men in this country, Dr. Miles went to Europe to submit the project for such an association, and communicated with persons of learning, ability and position in various countries, who received him with respect, and advised an attempt at permanent organization. It was proposed to hold the first meet

ing in New York, but, as many who had actively favored the plan could not take a journey to that place, it was ultimately resolved that such meeting should be convened at Brussels, where it was held October 10, 1873. Four annual meetings have been since held, one at Geneva, one at The Hague, one at Bremen, and the recent one at Antwerp. The growing strength of the Association is indicated by an increase in membership from ninety, when the meeting at The Hague was held in 1875, to five hundred and thirty at the time of the last gathering. These members are, as a rule, representative men of established reputation as jurists and politicians in the various civilized nations of the world. The attendance of Americans at the Antwerp conference was not as large as usual, which is perhaps not to be regretted. The representation of the Englishspeaking people has been heretofore disproportionately great. While it is true that Great Britain and the United States are at present more concerned than any other nations in the settlement of many international questions, the continental nations have also large interests in the matter, and should be allowed to take a more prominent part than they hitherto VOL. 16.- No. 13.

sire to apply and extend the principle asserted in the Geneva Arbitration, and secure the peaceful settlement of disputes between sovereign States, so far as might be, by the creation of international tribunals controlled by an international code. The Association, when formed, however, resolved to go further, and deal with questions of law and usage affecting individual interests throughout the world. The discussions at the various meetings, therefore, instead of being confined to a consideration of the rules which ought to regulate the intercourse of nations in peace and in war, have frequently extended to those which should govern private persons in different countries in their conduct of business with each other. There has resulted from the action of the Association some very valuable suggestions in relation to a uniform law governing bills of exchange, which have been submitted to various governmental authorities, and there is a prospect of the adoption, before long, by the commercial nations of the world, of a uniform code governing this subbeen under consideration, and progress has been ject, The question of general average has also made toward the framing of a code governing the matter, which it is believed will meet with general approval. In other branches of law, also, much has been done. The Association has not, however, neglected the consideration of a public international

code, but one of its strongest committees has been The improvement appointed to attend to that. of the condition of commerce was, nevertheless, thought to be of more immediate importance, and this has led the members of the society to give the subjects more directly connected with commerce a considerable share of present attention. It is to be hoped that the next annual gathering of the Association may be as successful as those which have already taken place.

Very many of the profession in various parts of the State have received a circular letter from the recording secretary of the New York Bar Association, informing the recipient that he has been duly elected a member of the Association. Accompanying the letter is a copy of the constitution and act of incorporation, also a paper for subscription and return to the secretary, wherein the subscriber announces to the secretary that he subscribes the constitution and by-laws of the Association, and directs the subscription of his name to the roll of members. It is to be hoped that those receiving this communication will subscribe and return at once to the secretary the paper mentioned. The

post-paid and directed envelope which accompanies
the
paper renders it perfectly easy for every one to
do this, and those who omit doing it must be con-
sidered as unwilling to aid in the very important
work of organizing the State bar.

that the defendant had no knowledge or information sufficient to form a belief as to the truth of the facts in the second count of the complaint. The court held the verification sufficient. This is the first published decision under the new Code, but what a multitude will hereafter be made and published! The old Code contained 473 sections, and the courts have not fully explained what it means. When will they be able to make clear the purport and intention of the 1496 sections of the new Code?

The Utah divorce business is likely to be brought to an end by the action of the grand jury, which is examining the records of the Salt Lake County Probate Court. According to the report of a committee appointed by the jury to make the examination, there have been 404 cases of divorce determined in the tribunal mentioned during the past twelve months, and in nearly every instance all the parties named in a case were non-residents of the Territory of Utah. The practice in this court seems to have

We have been asked by several members-elect of the State Bar Association, who have received the circular letter inviting them to forward their names for subscription to the roll, of what advantage will membership in this society be to me? As this seems to be a question which arises in the minds of many, we think it worth while to explain briefly what seems to us to be the advantage of a State organization of this kind, and the reasons why every respectable attorney in the State should belong to it. It is the interest of every member of the bar that deserves to be such, that the reputation of his profession shall be honorable; that its influence shall be powerful, and that its business shall be lucrative. To secure an honorable reputation it is necessary that disreputable acts on the part of law-been of the most liberal character, and designed to yers be prevented or punished, and that individuals committing such acts be excluded from the profession, and those liable to commit them prevented from entering it. To secure a powerful influence, it is required that the bar act together in harmony and in pursuance of a fixed purpose. To insure a

facilitate the purposes of suitors. A person residing abroad, and desiring a divorce, had simply to file a complaint setting forth his cause of action, accompanied by his affidavit that he desired to be

come a resident of Utah. A summons to defendant
requiring an answer to be filed within ten days was
then issued and mailed to defendant at such post-
office address as the complainant had by private
note designated. At the expiration of ten days the
decree of divorce was granted. This was the pre-
scribed mode, but it was found sometimes too strict
to meet the demands of applicants who did not wish
to wait ten days for their papers. The court would
then shorten the time to answer to two days, and
instances were known when a decree was entered
upon the day the summons was issued. The most
enterprising divorce lawyer could ask no more than
this, though the circumstance that the decrces when
obtained were notoriously good for nothing, may
have rendered such gentlemen chary about procur-
The grand

lucrative business, it is essential that the encroach-
ments of persons not admitted to the bar upon the
field of labor properly belonging to the lawyers be
stopped, and that the expenses of litigation through
exorbitant official fees be cut down, and that every
facility for the transaction of legal business be
afforded. All this can be accomplished by the
united action of the bar, and in no other manner,
and the only way in which it is possible to obtain
this united action is by a State bar association. The
individual lawyer may not at first see how he can
be benefited by connecting himself with the Asso-
ciation, but that Association, if the bar support it,
as they certainly will, will return to him every
year many times what it costs him. And, aparting them, except in desperate cases.
from the mere question of personal interest, every
member of the profession who is called upon to do
so ought to connect himself with the Association.
The bar has a duty to perform toward the public in
securing an honest, a learned and an able bench.
It can do this if its members act in unison, other-
wise it is liable to accomplish nothing.

The Marine Court of New York has the honor of giving to the public the first opinion wherein the meaning of the new Code is explained. The case was Boughen v. Nolan, and the point raised was upon the sufficiency of a positive verification according to the form of the old Code (§ 197) of an answer, wherein the defendant first denied positively the allegations in the first count of the complaint, and then alleged

jury referred to have done a good work in exposing the modus operandi of the business as done in the Utah courts, which will be enough to destroy the trust of suitors in Utah divorces. If grand juries and bar associations at the east would now look after the divorce lawyers who advertise in the newspapers, the disreputable trade might be suppressed.

IN

NOTES OF CASES.

the case of The State v. Redstrake, 10 Vroom (28 N. J. Law), 365, defendant was indicted for forging and also for uttering, as forged, five promissory notes. He was acquitted upon the charge of forging but convicted upon that of uttering. The circumstances were these: The notes in question contained the forged indorsement of one Clement

up, when part, but one tenancy. Birch v. Wright, 1 T. R. 380; Rex v. Herstmonceaux, 7 B. & C. 551. And the successor of a tenant, in the absence of evidence of a new and different contract with him, succeeds to the duties and rights of his predecessor. And a mere holding over of a tenancy from year to year does not affect the tenant's privilege to remove fixtures put in during the term of his previous lease in writing, and so long as he holds under a fair claim of right as tenant, he preserves his privilege. See Penton v. Robart, 2 East, 88; Roffey v. Henderson, 17 C. B. 574; Heap v. Barton, 12 id. 274; Marshall v. Lloyd, 2 M. & W. 450. It has been held, however, that when one accepts a written lease of the same premises, with the buildings, etc., from his landlord on the expiration of the former tenancy, he impliedly admits that the fixtures, of which he accepts a demise, belong to the landlord. Loughran v. Ross, 45 N. Y. 792; 6 Am, Rep. 173; see also Shepard v. Spaulding, 4 Metc. 416.

Hall, which, it was claimed, had been placed upon them by a son of said Hall. They had been passed to defendant before maturity, and he, knowing them to be forged, had placed them in the bank where they were made payable, with direction to have them presented, and if not paid, protested, which was done. At that time the person whose name was forged knew of the existence of the forged notes. The court, on appeal, held that the intent to defraud is a material element in the crime of uttering forged paper, and that the act of defendant did not constitute that offense. See, as supporting the same doctrine, Rex v. Powell, 2 Wm. Bl. 787; Rex v. Holden, 2 Taunt. 333, where it is held that as it would be essential under an indictment for obtaining the property of another by the use of a false and forged paper as true, so under an indictment for forging and uttering either, the same should be shown or else an intent to do the same. So also East (5 P. C. 854) says: "The deceitful and fraudulent intent appears to be the essence of this offense, and this is indeed particularly expressed in the statute, 5 Eliza., ch. 14, and in most, if not all, the other acts." See also 1 Hawk. P. C. 335; 2 Arch. Cr. Pl. 546; Blake v. Allen, Morris' Rep. 619; Bacon's Abridgment, "Forgery" A. Whether, if the in-ery Co., L. R., 2 C. P. 311. The defendant let to one dorser had not known of the forged character of the paper, the causing of a notice of presentment and protest to be sent to him would have been such an assertion or declaration that the paper was good as would amount to an uttering, is not a matter of express authority, though the reasoning, in some cases, goes far toward supporting such a doctrine. See Commonwealth v. Searle, 2 Binn. 332; United States v. Mitchell, 1 Bald. 366; The Queen v. Green, Jebbs' Cr. Cas. 281. In the last case the paper was not exhibited, but its contents stated, and the court held it an uttering.

In the case of Ex parte Heminway v. Stevens, 2 Lowell's Decisions, 496, the question arose as to what are the rights of the tenant of premises in respect to fixtures put in the leased premises by him, and it was held that the right of the tenant to remove such fixtures is not lost by non-payment of rent and notice to quit, but only by quitting. If the landlord has prevented the removal by an attachment of the fixtures, the right is not then lost, even by leaving the premises. It was also held that a parol renewal of a lease renews whatever rights the tenant had to remove the fixtures. See, as sustaining the doctrine permitting removal, notwithstanding non-payment of rent, Slossfield v. Mayor of Portsmouth, 4 C. B. (N. S.) 120, though the point, as a general one, was not decided in that case. See, however, Whipley v. Dewey, 8 Cal. 36, and Weeton v. Woodstock, 7 M. & W. 14. As to parol occupancies from year to year, or from month to month by the same tenant, it has been held that they make

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The question of the liability of a landlord for injury happening to a stranger during a tenancy, caused by the defective repair of the demised premises, was considered in the case of Nelson v. The Liverpool Brew

Farragher a house by an agreement in writing, by which the tenant agreed "to do all necessary repairs to the said premises, except main walls, roof and main timbers. There was no agreement by the defendant to repair, and the house was in good condition at the time of letting it. Owing to defendant's negligence in not repairing a part of the main walls, a chimney pot, during the tenancy of Farragher, fell upon plaintiff, who was Farragher's servant, and injured him. The court of Common Pleas held that the plaintiff was not entitled to recover compensation from the defendant for the injury, saying that there are only two ways in which landlords or owners can be made liable in the case of an injury to a stranger by the defective repair of premises let to a tenant, the occupier and the occupier alone being prima facie liable. The first way is in case of a contract by the landlord to do repairs where the tenant can sue him for not repairing. Secondly, in the case of a misfeasance by the landlord, as, for instance, when he lets premises in a ruinous condition. See, as supporting this doctrine, Payne v. Rogers, 2 H. Bl. 349; Todd v. Flight, 9 C. B. (N. S.) 377; Russell v. Shenton, 3 Q. B. 349; Pretty v. Beckmore, L. R., 8 C. P. 401; Gwennell v. Eamer, L. R., 10 C. P. 658; see also Gwathney v. Little Miama R. R. Co., 12 Ohio St. 92. But in Allen v. Mack, Hay, 45, a lessor was held liable for injuries suffered in consequence of the lessee having opened and negligently kept a pit on the land. But see also as sustaining the principal case Pechard v. Collins, 23 Barb. 444; Taylor v. Mayor of New York, 4 É. D. Smith, 559; Kahn v. Levi, 3 Oregon, 206; Mayor of New York v. Corliss, 2 Sandf. 301.

"THE CRITICS OF THE NEW CODE."

WE gave place to a communication under this

title last week, because we believe in the fullest discussion of the statutes in question. It may be permitted us to say that we do not agree with our correspondent that "the criticisms thus far have, to a great extent, been simply a disgrace to the profession," and we do not by any means feel flattered at his including our article of August 25, on the subject of "Survivors as Witnesses," in this unpleasant category. Some of the criticisms in question no doubt indicate careless or incomplete reading; but even these can hardly deserve so strong an adjective as "disgraceful." Some of them, we venture to say, are well founded. Others are put for ward on the ground of sound policy. For instance, we think "Old Fogy" has the best of the argument on the provisions for serving the summons by publication in cases of divorce, and we cannot see that he is in "disgrace" for not having had the advantage of perusing Weed, Parsons & Co.'s edition of the New Code, which would have informed him that what he complains of is the fault of the legislature and not of the codifier. "Somebody blundered," and it was his purpose, probably, to point out the blunder rather than the blunderer. The profession are trying the Code, and not the codifier. We have long since outlived the zeal which would tempt us to stigmatize with hard names every man who disagrees with us on legal points, or to impute dishonorable motives for intellectual differences.

Reading the first and sixth paragraphs of our correspondent's letter together, we infer that our article is a "disgrace to the profession" for want of logic. The article in question may be illogical. We do not claim any monopoly of right reason. But let us see if we are fairly amenable to the criticism. Speaking of the exclusion of the wife of a survivor, as well as the survivor himself, from the right of testifying, "R. J." says: "The reasons for the law, contained in section 830, are the same as for that contained in section 829, namely: that the witness is not only an interested party, but also that the testimony of the witness cannot be rebutted." How can the husband or wife of the party be denominated an "interested party?" But suppose it were so, what then? interest no longer disqualifies from testifying. That was the great idea of the old Code on the subject of evidence, and the same idea pervades the new Code. Section 828 provides for that, and even enacts that except, as otherwise provided, the husband or wife of an interested party is not disqualified by that relation from testifying. So it seems it is not interest that disqualifies the husband or wife from testifying under section 829, and "R. J." must fall back on the second reason alleged, namely, that the testimony cannot be rebutted. But that fact constitutes no bar to the

testimony of others, and why should it stand in the way of husbands or wives? There may exist forty witnesses who may swear to the fact which the deceased alone could contradict, if living; why not shut out the forty, if the impossibility of rebuttal is what furnishes the reason for the exclusion? It evidently is not the loss of the power of rebuttal that the law starts at, but it is the idea that the party, and a particular person over whom he is presumed to exercise such an influence as to be able to cause her at pleasure to commit perjury in his behalf, should be privileged to testify without being rebutted. Our correspondent admits as much. He says the old Code was "criminally inconsistent," in permitting "a husband to use that power, which he has ever exercised over his wife, to compel or induce her to commit a crime, to enforce a spurious claim for their mutual benefit, while it carefully guarded him from the commission of a similar offense." But the husband is permitted to exercise this dangerous power unrestrained so long as the opposite party is living, and so the matter ends in the loss of the power of rebuttal after all. Besides, we do not understand that "R. J." claims that wives can compel their husbands to commit perjury in their behalf, and so his reasoning would fail where it is a husband who is excluded. Why should the law gauge the competency of witnesses by the circumstances of particular cases? Why say that a man and his wife may testify when a particular person is alive to rebut them, and that they may not when the person is dead, although everybody else may, beyond the possibility of contradiction? What we particularly object to is this rendering the instruments for the ascertainment of truth subject to the fluctuation of circumstances; this throwing discredit on one human being's oath because another human being has died; this assumption that circumstances favorable to the operation of perjury will necessarily induce that crime. It is little in accordance with the philosophy of law thus to assume the operation of the human conscience and prejudge the weight of testimony. Truth is to be ascertained from human speaking, not from the suppression of testimony. The presumption is that every human being will speak the truth under oath. The contrary presumption, under any circumstances, is as mistaken as the presumption that a man is guilty because he is accused. Courts should hear everybody and every thing, subject to the rules of examination universally recognized, and should not exclude any one for this or that particular reason, or upon any assumption of the inevitable effect of circumstances upon the conscience. Perhaps we are wrong in this view, but it is at least a grave question of policy which is worth discussion, and our correspondent must not be impatient with us for not admitting the justice of his strictures. In regard to rules of

evidence, very radical changes have been wrought in the last twenty years, very gradually, and only after persistent effort and discussion. How reluctantly was public opinion brought to tolerate, first, the admission, as witnesses, of parties in civil cases; afterward, that of persons criminally accused; and finally, that of husbands and wives. We are opposed to taking any backward step in this matter, especially when the reasons assigned are mainly theoretical. On the other hand we are convinced that consistency in theory and the best practical results can be attained only by adopting the course which we have advocated.

It seems to us that our profession are in danger of adopting extreme views about the new Code. One class incline to rail at it and at the codifier, radically, and not to be willing to admit any virtue in either. Another class incline to bow down to both as to a golden calf and its architect, and not to be willing to admit any fault in either. The truth probably lies in the middle. Whatever faults of execution there may be (and there certainly are a good many), the general plan and scope of the work are highly meritorious. We have dwelt on this sufficiently hitherto. It is no part of our purpose to shut our eyes to its faults. It is our impression that the radical fault of the work is the endeavor, everywhere apparent, to make provision too much for minute and particular circumstances, to embody every constructive decision on the old Code and to stretch the body of the statute to cover every exigency and possibility. For instance, section 429 strikes us as decidedly comical. In the note to that section, the codifier says: "Cases have occurred where personal service of a summons upon a lunatic has aggravated his disorder, and it seems proper to provide against their recurrence." We can imagine that service of a summons on an epileptic or a very sick person might throw the one into a fit and cause the death of the other; but what should we think of a law-maker so tender and particular as to provide a substitute for sick invalids? De minimis non curat lex is a recognized maxim. Statutes should be constructed somewhat

on this principle.

THIS

HOW TO GET MARRIED.

HIS is the question which at the present time is agitating the minds of millions of the fairest of the daughters of our land. Alas! for these bright maidens, States now-a-days neither give bounties to men who marry young nor impose heavy penalties upon all celibates, as the Grande Monarque was wont to do in Canada. 1 Parkman's Old Regimé, 225. This is a query apparently scarcely more soluble than the Oriental question in Europe or the Celestial question in America, yet we will endeavor to answer it, and if our efforts throw any single beam of light into minds darkened by the shades of uncertainty or doubt, we will feel that we have not dipped our pen in ink in vain.

Dear readers, do not expect to have in these lines recipes for philtres to bring back to your sides erring lovers, or draw thither new admirers, nor mysterious secrets of occult sciences, by which chill December may win sunny May, or vice versa; do not hope to read herein how bride or bridegroom, best-man or bridesmaids, should be attired on the momentous occasion when the bonds of wedlock are being fast riveted by priest or parson, justice or deacon; think not to be entertained by the "how" among the foreign nations in the dark places of the earth. Such lofty themes transcend our humble powers; we have not drunk at any fount of the tuneful nine; we only propose to try and show how the two distinct entities are welded together into one person, in the eye of the law and to the satisfaction of the lawyers.

Start not as if pierced by some serpent's tooth, at the sight of these two words, "law" and "lawyers," for "the law is, after all, the most romantic of professions." Happily for its members it is not entirely composed of sheep-skins and dust and decided cases, "quiddets and quillets, cases and tenares," as the Prince of Denmark hath it. 66 Many are its paths of pleasantness, and writers of fiction, seeking where they can find what most will interest their readers, have ofttimes turned to the law and invoked its invaluable assistance without compensation, in compounding a plot or inventing a striking episode."

Take, for an example (which touches the point under consideration), a novel, which many of you have read during this very season, "What he cost her" (a truly novel subject, for most books might be truly said to be on what she cost him), by Mr. James Payne. The most exciting part of this highly creditable story is where the hero, Landon by name, is in the prisoner's dock to be tried for bigamy - he having deemed his first nuptials void, because his lady-love had married him under an assumed name, had taken to himself another partner for better or for worse. During the opening address of the counsel for the crown (for the trial took place in "merrie old England "), what puzzled Landon was, that the fact of his having been ignorant of the deception in the matter of the name (on which he counted for sympatby), was willingly conceded by the learned speaker; afterward he found that this was the chief point relied upon by his enemies. You, fair friend, did not see any great importance in the examination of Ella by Mr. Pawson, after she had explained that, owing to a quarrel with her father years before, she had taken and ever since been called by her mother's name. He asked:

"There was no material cause, then, why you should have deceived your husband?"

"None whatever," she replied.

"He did not, however, aid or abet you in the deception?"

"He? no!"

"I mean," continued Mr. P., "that you and your husband did not agree together before marriage to deceive the public by your assumption of this false name?"

"Most certainly we did not," answered the fair witness.

You doubtless found these questions and answers far from startling, in fact, monstrous; but the wicked hero, perched on the ragged edge of despair, noticed that they had a marked effect upon the gentlemen in horse-hair wigs; he saw stuffs and silks look at each other significantly, and the Judge himself steal a

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