investigate the facts will be charged (subject to appeal to the court) with the duty also of determining what is the proper measure of punishment in those cases in which they have to come to a decision adverse to the solicitor complained of. As to the organization of the society I would remind you that the council is composed partly of solicitors practicing in London, partly of solicitors practicing in the provinces. The London members have hitherto been selected with a view of getting as thoroughly representative body as possible of the various phases of London practice, and I am glad to say that there appear always a sufficient number of eligible men willing to devote their valuable time and great experience to the service of the society and ready to fill vacancies as they occur. Eleven out of the ordinary members of the council are at the present moment country solicitors practicing in various parts of England, and we have as extraordinary members of the council ten presidents of country law societies. Through our country members on the council board, and through the Associated Provincial Law Societies, there is constant and direct communication between the country and town members of our profession, and if ever there was a time at which the council of the Incorporated Law Society was thoroughly in touch with the whole profession, and represented its interests and views generally, it is at the present time. I wish I could add that substantially every solicitor was, as he ought to be, a member of the society. We have made considerable progress in this respect; still, there is much yet to be accomplished in this direction. In 1875, when the provincial meeting was first held in Liverpool, there were only 2,961 members in our society out of 11,500 practising solicitors. Ten years ago, when the meeting was held here, for the second time, there were about 4,200 members out of 13,800 solicitors taking out their certificates; and now, at this, our third meeting in this city, there are in round figures, 7,500 members out of a total number of about 15,200 solicitors. These figures show that in both the last past decades a considerable improvement has taken place in the proportion of solicitors who are members of our society. There will, at all times, so long as membership of the society remains voluntary, be necessarily a large number of solicitors who, though taking out certificates to practice, are either from ignorance or apathy, content to remain isolated from the advantages appertaining to membership of our society. The society offers so much to members, and is so active in supporting, at all times and in all places, the higher interests of the profession, that I for one hope that it will continue to remain what it is now, a free institution, supported on its merits by the members of our body. At the same time the society is now entrusted with so many and important duties, and performs so many important functions in the interest of solicitors generally and of the public at large, that we are justified in expecting that at least the expenses which it incurs in the performance of its public duties shall be de frayed, not out of the voluntary subscriptions of its own members, but by an increase in the charges levied on the whole profession. Having thus pressed on all members of our profession the importance of their becoming members of this society, let me say one word in favor of two institutions which at all events cannot be said to exist or be fostered for any selfish objects - I mean, of course, the Solicitors' Benevolent Association and the other association, whose area is confined to London, namely, the Law Association for the Benefit of Widows and Families of Solicitors in the Metropolis and Vicinity. In doing so I cannot do better than quote the very pregnant words of our ex-president, Mr. Hunter, who during his term of office made an appeal on behalf of the Solicitors' Benevolent Association to every member of the profession. Mr. Hunter says: Having been a director of the Solicitors' Benevolent Association for nearly twenty years, I can speak with confidence on the manner in which its affairs are administered, and also as to the great assistance it is able to give to the poor and necessitous members of the profession and their families. During the time I have been a director. I have been surprised to find how many applications have been made to the association for assistance from solicitors and relatives of solicitors whom I find personally known as apparently prosperous members of our profession only a short time before, but who had been reduced by misfortune to dependence upon others, and this experience leads me to wish to impress upon every member of the profession to become a subscriber to the association." I cannot too heartily echo these words of my predecessor, whose name at the foot of such a circular is the best assurance we could have that the affairs of this charitable institution are administered judiciously and well, and that it deserves our cordial support. The ranks of our profession are, as we all know, overcrowded; how many among us must of necessity, if ill-health overtakes them, be involved in penury; how many there are whose families must be left ill-provided for, and under circumstances that help must be required for providing the mere necessaries of existence. What proverty is so keen, so hard to endure as that of those who have been well educated and have known better days? Let those among us who have enough and to spare help this good object. I speak not only of the comparatively very prosperous man, but of the ordinary well-to-do members of our profession. Let each and all of us who come within that category think not only of ourselves and those dependent on us, but let us devote some small portion at least of our savings to the assistance of those less fortunate among us, who from ill-health and other misfortune have been unable to make that provision for themselves or those depending on them which more favorable circumstances would have enabled them to do, and in no better way can we help the necessitous among our profession and their families than by contributing to the funds of those associations." The Albany Law Journal. ALBANY, NOVEMBER 2, 1895. Current Topics. late division. We do not think that the limitation of points raised on appeal, which would be gained by such practice, would be proportionately so valuable as the expeditiousness of the present system, and we consider that considerable valuable time would be lost by ap [All communications intended for the Editor should be ad-peals having to go over the term and by condressed simply to the Editor of THE ALBANY LAW JOURNAL.tentions between the parties as to whether the All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW briefs had been filed in time and in a proper JOURNAL COMPANY.] Tuesday, October 22, the judges desig manner. Perhaps the most important work which the ONTted by the Governor as members of the convention actually accomplished was the re appellate division of the Supreme Court met in the Senate library in the capitol at Albany and organized by the selection of Justice Hardin as presiding justice of the convention. The most important work was the appointment of a committee to amend the rules of the Supreme Court, and Judge Celora E. Martin forwarded a draft of the changes proposed by him and which met with general approval except the suggestion as to the filing of briefs before argu ment. It was stated at the convention that the practice, started by the Court of Appeals, had worked in a satisfactory manner, as it tended to limit the number of points which the appellant raised on the review of the case before the court of last resort. It is easily seen that such a practice would work more effectively in the Court of Appeals than in the Appellate Division, for the reason that an attorney before the court of last resort has had the benefit of the trial and the argument on appeal before the appellate disivion, which would naturally tend to demonstrate what were the strongest points to be raised before the court which finally determined the matter. It does not seem, however, from another point of view, that the practice would be valuable in the appellate division, for in that court the appeals are heard, usually, very shortly after the first decision, while in the Court of Appeals many cases are on the calendar for a considerable length of time before they are reached, which enables the practice to be more effective. It was also said at the convention that, especially in the first department, the practice would not be a success and would not meet with favor inasmuch as it would tend to put over many appeals which ought to have immediate consideration and determination and which here would be finally determined before the appelVOL. 52 I No. 18. appointment of Marcus T. Hun, Esq., as official State reporter of the Supreme Court. This was a proper and pleasing compliment to a reporter, who by diligent effort and marked ability has made the Supreme Court reports equal to any in the country. An amusing feature of the convention was the discussion by the judges as to their powers as members of the appellate division. The General Term of the First Department had already held that under the revised Constitution they had no power to designate newspapers to publish notices for the appointment of commissioners to condemn property for the Rapid Transit Company of New York city. This is another instance of the failure of the late Constitutional Convention to properly provide bodies to perform necessary acts during the year 1895, and is in many respects similar to the contention that was raised in regard to the powers of the last Legislature, as the Constitution provided that after January 1, 1895, the Senate should consist of fifty members and the Assembly of 150 members. The cheering news, however, was brought to the judges of the appellate division that the Court of Appeals had handed down a decision in the case of the Rapid Transit Company of the city of New York in which it was held that the General Term of the Supreme Court had power during the year 1895 to appoint commissioners to condemn property, even though such power was expressly given to the appellate division by section 18 of article 3 of the Constitution. The convention adjourned to meet in this city at a later date to formulate and adopt rules and designate trial terms. As already mentioned the Court of Appeals decided in the matter of the application of the Board of Rapid Transit Commissioners for the City of New York that the General Term of the Supreme Court has power during the year 1895, to appoint commissioners to condemn property, even though such power is expressly given to the appellate division of the Supreme Court by section 18, of article 3, of the revised constitution. The opinion of the Court is written by Judge Peckham who shows the power, although given by the article of the section referred to the appellate division, must be performed by the General Term of the Supreme Court, who had the power formerly under the old constitution, as the appellate division can not exercise any power until after the first day of January next, in pursuance of the provisions of the constitution. Judge Peckham, after reviewing the constitutional provisions on this . work public mischief. The construction which shut the doors of the court for one year and closed all operations of street railroad building in the State for that time ought not to be adopted without a plain mandate to that effect from the constitution itself. For these reasons the court held that the proceedings should be remitted to the General Term in order that the application may be there acted upon on its merits. An opinion of general interest is that of Enterprise Sav. Assoc. v. Zumstein, 67 Fed. Rep. 1000, in which the court holds that it is within the power of Congress to confer authority upon the head of the postal department to direct a postmaster to refuse the delivery of registered letters or the payment of money orders to a person or corporation which, upon evidence satisfactory to the head of the department, is found to be engaged in conducting a lottery, and that the courts have no jurisdiction to subject, shows that the General Term exists and will continue to exist until the first day of January, 1896. Judge Peckham says there is absolutely no reason which affords a plausible enjoin the execution of an order of the postpretext for the belief that there was an intenmaster-general, made pursuant to statute, tional withholding of jurisdiction from the when the postmaster-general finds that a General Term of the powers vested in it during certain corporation and its officers are enthe last year of their existence, and especially gaged in conducting a lottery, and forbidas to this subject. Concluding, therefore, that ding postmasters to deliver registered letters there was no such intention to take away this or pay money orders to them, since the making particular jurisdiction, he says that article 15 of such an order involves an exercise of disof the present constitution provides that this cretion reposed in the postmaster-general. It constitution shall be in force from and including is easily recalled that within the past year or the first day of January, 1895, "except as herein so, and especially since the Louisiana lottery otherwise provided." He then shows that the ceased to carry on its business openly, that a same state of affairs exists in regard to the number of organizations, known as bond inSenate and Assembly and shows that there is no vestment companies, engaged in the business of intention to blot out the Legislature of 1895. selling bonds, the payment of which is deterHe then cites the case of The People ex rel. mined more or less by chance, and whose opeJackson v. Potter, 47 N. Y., 375, in which able rations have been regarded by the Federal opinion by the late Chief Justice Folger it is authorities and by the public to be in the held that the intention is to be sought after and nature of lotteries, have existed. Under the when discovered must prevail over the literal statutes of the United States (Rev. St. §§ 3929meaning of the words of any particular provision 4041, and acts of Congress September 19, of the law; the general principle is to be ascer- 1890) the Federal authorities have refused the tained and the constitution must always be sup- use of the mails to such organizations. On posed to have been prepared and adopted with this account they have, in many instances, rereference, not only to the existing statutory sorted to injunction and mandamus to compel provisions, but also to the existing constitution the postmaster-general in the locality in which which is to be amended or superceded. The they carried on their business to give them the provisions in regard to which the contention privilege of the money order and registered arose, Judge Peckham held, should have a letter department of the government, which reasonable construction and one that will not had been withheld by order of the postmaster "The answer must depend upon the question as to whether the refusal to deliver registered mail matter and to pay postal money orders is, under the statutes organizing the postal department, a purely ministerial duty, or does the postmaster-general, under the power conferred upon him by Congress concerning the circumstances under which he may direct the withholding of registered mail, or forbid the payment of a postal order, exercise judgment or discretion? We shall not undertake to analyze the elaborate and alluring plan under which an uncertain per cent. of the holders of the complainant's bonds may be redeemed at an early day in the progress of the business, and realize an enormous profit, at the expense of others enticed to invest by the prospect of an early and accidential redemption, but who, in weari general. In all these legal proceedings to obtain ments. The boundary between such schemes. and some of the insurance and investment methods which have managed to escape legal condemnation may be very dim. Judgment as to which side of the line complainant's device belongs would much depend upon what should be taken as the standard of a clearly legitimate enterprise. The honorable postmaster-general, when called upon to pass judgment upon the business of this association, may have been somewhat perplexed as to how to deal with a scheme so elaborately arranged as to present, upon one view of it, a legitimate investment business, but which, when looked upon from the other side, seemed to show many of the features characteristic of lottery or other like schemes. The settlement of the question un and discretion, and this very fact operates to take his duty out of the mere ministerial class, and therefore beyond the control or review of the judicial department of government, by means of mandamus or injunction. In Mississippi v. Johnson, 4 Wall. 475, a ministerial duty was thus defined: "A ministerial duty, the performance of which may, in proper cases, be required of the head of a department, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under circumstances admitted, or proved to exist, and imposed by law.' "If the postmaster-general could not have been compelled by judicial proceedings to have made an order inhibiting the use of the registry or postal money department by any one at the suit of another, because the duty was not purely ministerial, but involved the exercise of judgment and discretion, it must follow that the bona fide exercise of such judgment and discretion under a statute expressly reposing the power would not justify the judicial department in reversing his action by the substitution of its judgment for that of the officer to whom Congress had intrusted it. (Marbury v. Madison, I Cranch, 137; McIntire v. Wood, 7 Cranch, 504; Kendall v. U. S., 12 Pet. 527; Decatur v. Paulding, 14 Pet. 515; Commissioner of Patents v. Whiteley, 4 Wall. 534; Gaines v. Thompson, 7 Wall. 347; U. S. v. Black, 128 U. S. 40, 9 Sup. Ct. 12; U. S. v. Windom, 137 U. S. 636, 11 Sup. Ct. 197.") The Supreme Judicial Court of Massachusetts held, in the recent case of Bjbjian v. Woonsocket Rubber Company, that the negli gence of a competent servant, who, in the course of his daily duty of oiling machines, fails to readjust the cylinders of one of them, whereby the operator thereof is injured, cannot be imputed to the master; that an employer who knows that a need of warning an inexperienced servant working on a dangerous machine has arisen is bound to give it, though the danger arose from the negligence of a fellow servant, and that one just commencing to operate a machine for compounding rubber; under the charge of an experienced man, cannot be held. as a matter of law, negligent for continuing to feed the rubber to it in the usual manner with his hands, notwithstanding the sudden falling through the cylinders of the machine of pieces of rubber, where this would indicate to an experienced man, but not to him, that the cylinders were too far apart, and that there was increased danger therefrom; and the evidence authorized the finding that on the falling through of the rubber he by a look appealed to the one in charge of him for advice, and the latter, by merely laughing, in effect instructed him to go on as before. The court said: "Of course, no man of ordinary intelligence, with a day's experience in operating the machine, could contend that he did not know that if his hands were so placed between the upper portions of the revolving cylinders as to come in contact with their surfaces, there was obvious danger that his arms would be drawn in. The plaintiff admitted that he knew that if he put his fingers between the cylinders they would be cut or broken, and there was uncon tradicted evidence that he had been told that the machine was dangerous, and that he must be very careful. And, besides this, the sudden falling through of the pieces of rubber, when first fed, was enough to make it his duty to inquire of himself, or of his instructor, whether he ought to feed them in the same way again. But the machine, as then out of adjustment was very much more dangerous than usual. * * * If, without asking advice, he had again placed the pieces of rubber in the machine with his hands, he might have been said to have been at fault, although that was the usual way of feeding, and the only way in which he had been instructed. If he was yet a pupil, such an operation without asking for instrucordinary care required that he should not repeat tions. The Summary Jurisdiction Married Women's Act is one of the most interesting statutes passed in England during the present year. It partly amends and partly consolidates, and will go into effect on the first of January next. The fourth section of the act of 1878 empowers any court convicting a husband of aggravated assault on his wife to make a separation order if the court be satisfied that the future safety of the wife demands such action, and further gives power of summary jurisdiction to make an order of maintenance on application of a wife who has been deserted. The new statute repeals these provisions last mentioned, but re-enacts them in a new manner. The jurisdiction now vests when the husband has deserted his wife, or if he has been guilty of continued cruelty to his wife, "or shall neglect to provide reasonable maintenance for her and her infant children," whereat she has been caused "to leave and live separately and apart from him." The application for the order is to be made to a court of summary jurisdiction in the ordinary course; but if the conviction be on indictment, the wife may apply to the court before which the conviction has taken place, and the court shall for that purpose become a court of summary jurisdiction, and have power |