the case), on this point, and on the merits again gave plaintiff a judgment, which was affirmed on appeal as above. As Bertles v. Nunan, has just been placed upon the preferred calendar of the Court of Appeals, we may perhaps indulge in the hope that the question will soon finally and permanently be settled one way or the other.

There is no reason why tenancy by the entirety should not be allowed to sail in the same boat as tenancy by the curtesy. The law should not blow hot upon the one and cold upon the other.

NEW YORK, March 5, 1883.

J. C. LEVI.

[It seems to us that in spite of his avowal that he does not quite understand our remarks upon Meeker v. Wright, our correspondent very clearly justifies what we said of that case. The court did not hold what was attributed to it, but three of the judges committed themselves to that view. Therefore we thought the decision "looks" as if the court might eventually hold as these three judges thought, when the question should come before them single and unembarrased. ED. ALB. LAW JOUR.]

Mark v. The National Fire Insurance Co.; Furman v. Johnson (2 cases); Hynes v. McDermott; Smith v. Roberts; Wyncoop v. Niagara Fire Insurance; Mann v. President, etc., of The Delaware & Hudson Canal Co.; Cramer v. De La Vergne.In re Will of O'Neil; Buckingham v. Corning.- Judgment affirmed with costs Post v. Mason.- Judgment affirmed - Sawyer v. The People.-Judgment of General Term affirmed with costs. Order of General Term reversed; that of Special Term affirmed with costs, but without prejudice to the making of a motion to correct the computation of interest - Manning v. The Port Henry Iron Ore Co. (2 cases).-Judgment and order affirmed with costs Talmage v. The Third National Bank of New York.- Order affirmed with costs- In re Barkley to vacate assessment.- - Order denying motion for peremptory writ affirmed, and appeal from motion to modify order so as to permit an alternative writ, dismissed with costs of one appeal - People, ex rel. Hartford Life and Annuity Insurance Company v. Fairman. Judgment of General Term affirmed, and judgment absolute rendered against the appellants, on the stipulation, with costs Young v. Thurber.Judgment dismissing the complaint reversed, and costs to new trial granted, abide the event - Vanderbilt v. Schreyer.- Judgment reversed, costs new trial granted, to abide the event Wendell V. N. Y. C. & H. R. R. Co. Judgment of General Term affirmed, and judgment absolute ordered against plaintiff on the stipulation, with costs Youmans v. Edgerton. Judgment reversed, new trial granted, costs to abide theevent unless defendant stipulates that decree be modified so as to allow plaintiff the amount of loss upon the real estate which was adjusted upon the four policies which were made payable to John Reed, mortgagee, and if so modified affirmed, without costs of this appeal to either party - Reed v. McCrum.In reaccounting of executors of Mary H. Verplanck, deed judgment of General Term, and decree of surrogate modified so as to require a per capita distribution of the property bequeathed by the residuary clause, among the nephews and nieces of the testatrix, and as thus modified, judgment of General Term, affirmed without costs in this court to either party, Judgment of General Term reversed and the plaintiff to

|

have judgment as prayed for by her complaint, with costs Campbell v. Beaumont.-Order affirmed and judgment absolute ordered against the defendant, with costs · Raberg v. The Lake Shore & Michigan Southern Railroad Company (and three other cases.) Judgment of General Term, so far as it modifies decree of the surrogate by refusing credit to the executors for the amount paid upou incumbrances, and for taxes and expenses on account of the Dobb's Ferry property reversed-and in other respects affirmed, with costs to the executors to be paid out of -In re final accounting of Horace Gray, and ors., exrs the estate.

NEW BOOKS AND NEW EDITIONS.

ARONI'S FUTURES.

Futures, by Julius Aroni, of the New Orleans Bar, New Orleans, 1882. Pp. 101.

This small book treats of option or time contracts for sale of stocks or merchandise. It is a tentative trifle upon a subject not definitely passed upon by the Louisiana Supreme Court, undertaken ‘‘at the suggestion of members of the New Orleans Cotton Exchange." If we were ever to adopt Lord Justice Stephen's severe notions we should feel inclined to "destroy" every gambler in stocks or merchandise, and let them account for their "futures" upon Col. Ingersoll's easy method.

NOTES.

UR American cousins wax funny over the open

Do

Our

heard quite enough about this same opening, but their view of it is too novel to be passed over. The Albany Law Journal says that "everything was conducted with that intense humility on the part of the 'subjects,' and that affable condescension on the part of the sovereign,' which is a necessary part of the English comedy of State affairs, and which makes all parties happy and never imposes on any one." It is funny to hear that "the Inns of Court ventured to approach Her Majesty and lived through it." our American cousins imagine that Her Majesty is as dangerous to approach as the terrible Henry VIII.? The Lord Chancellor made a speech, and did not faint away with emotion." With such-like criticism the Albany Law Journal exposes the silly effusions of many of our papers. On many points we heartily agree, and are not sorry to see these criticisms. papers are getting now-a-days too "gushing" over all public events.- Gibson's Law Notes.-Sunday trading seems to be a question of the immediate future in New York. An enterprising grocer and a baker are bringing test cases to try their right to bake bread and sell groceries on a Sunday, in spite of the law against Sunday trading as laid down in the Penal Code. They base their contentions on the "necessity" of being open on Sundays. This, as the Albany Law Journal points out, is nonsense. People can buy their groceries on Saturday, and bread twenty-four hours old is more healthy for them. Avaricious bakers and grocers may work themselves on Sunday if they choose, but they should not be allowed to make their employees work. We heartily concur.- Gibson's Law Notes. There is a "Law Cricket Club" in London. A "Lawyers' Bench Show" would be much more appropriate. De minimis non curat lex.-The English Court of Appeal have refused to allow a composition in bankruptcy for three pence in the pound in favor of an aged widow keeping lodgings.

The Albany Law Journal.

ALBANY, MARCH 17, 1883.

CURRENT TOPICS.

HE London Law Times says: "The Blandford

every city east of the Mississippi there are more lawyers than there are legitimate cases in court for them to take care of. * * The result of this state of affairs deserves to rank among the most grinding of our social evils. The harm which a professionally united band of men, with invention sharpened by poverty and zeal, robbed of tempering scruples by the pressure of creditors, can do in a

discussion as to the name which a woman ought to bear after her marriage has been dissolved. It is said to be hard that an outraged wife who sues for and obtains a divorce should have still to bear the name of the man who has wronged her. Equally hard is it that a husband who has obtained a divorce from his wife should not have the power to prevent

her from continuing to use his name. The question was for most purposes settled by Sir James Hannen in Fendall v. Goldsmid, L. R., 2 P. D. 263. In that case Alice Fendall had married William Goldsmid, and subsequently obtained a divorce from him. Afterward a marriage was again celebrated between them, her name being published in the banns as Alice Goldsmid. The petition in the case was by the woman for a declaration of nullity on the ground that the ceremony had taken place without due publication of banns. She alleged that she had, ever since the dissolution of the first marriage, been known by the name of Fendall. An application was made for leave to amend the petition on account of a mistake in a date. The learned Judge Ordinary gave the leave, and said that the petition must be re-served. He added, 'It will be for counsel to consider how far it will be advisable to do so, when I state that I am of opinion that marriage confers a name upon a woman, which becomes her actual name, and that she can only obtain another by reputation. The circumstances must be very exceptional to render a marriage, celebrated in the actual names of the parties, invalid. It could only be where the woman has so far obtained another name by repute as to obliterate the original name.""

Simultaneously with the great scare about Wiggins storm has arisen a scare among the newspapers about the great number of lawyers in this country. This scare has now reached Albany, and the Evening Journal is quite despondent over it. That excellent and usually courageous newspaper remarks: "In all Great Britain and Ireland, with a population approximating 37,000,000, there are between 11,000 and 12,000 lawyers. In the United States, with a population larger by only 15,000,000, there are 65,000 lawyers, and in this State of ours, with a tenth of the country's population, abide a sixth of its entire body of lawyers. It will not do to explain the fact that there is a lawyer to every 3,000 people in Great Britain, while in America there is a lawyer to every 800 people, upon any hypothesis which asserts a marked difference between the needs of the two countries for legal activity. As a matter of fact, we have a ridiculous excess of lawyers over here. In VOL. 27-No. 11.

inciting peaceable folks to sue each other, prolonging cases indefinitely by resort to every quibble and pretext possible under our loosely-drawn laws, and devoting all their collective ingenuity and skill to the work of making business for themselves at the expense of the public-cannot well be overestimated. * * ** We look to see, sooner or later, a

*

very decided expression of public opinion on this question of the supply of lawyers. În the eyes of the law, they are officers of the courts. Logically there ought to be a limit to their creation, just as there is a limit to the creation of district attorneys, or constables, or letter-carriers. * * Popular opinion has not been directed with much clearness or concentration toward this evil, as yet, but it will be one of these days, and then we take it that a radical —perhaps too radical wrought in the whole system." It seems to us that the Journal is unnecessarily frightened. As a class

reform will be

the lawyers seem to do pretty well - they are

neither poorer nor richer than their fellows of other occupations. It is no more dangerous to have 65,000 lawyers than it is to have what the census shows to be the fact- 85,000 physicians and 44,851 barbers, to threaten our health and our throats. It is highly probable that the 12,000 "journalists" or the 19,000 plumbers make more mischief than the 65,milliners, dressmakers and seamstresses do. The 000 lawyers, and it is quite certain that the 285,000 idea of suppressing the lawyers by cutting off officers of the court" is decidtheir privileges as edly unique. A small and privileged class of lawyers practicing at the pleasure of the court, would be a rather dangerous body. There would be some constitutional objections in the way of this scheme. It is not the lawyers who make the litigation, but the litigation that makes the lawyers. The community should have all the law it wants, and all who desire should be permitted to be lawyers. Such communities are the freest and most prosperous. We do not object to the editors. A great many people think the press ought to be muzzled, but we do not share that opinion. We think the editors should be free to write all the nonsense they choose. But if the Journal writes many more columns after this fashion the Troy Times must look out for its laurels.

At the same time the jury question seems to be taking a new lease of life. Simultaneously with our remarks on Justice Stephen's views, we may call attention to an article on this subject by Mr. Henry A. Harman in the current number of the American Law Register, which seems to us very sensible (be

cause its author thinks as we do.) This writer makes a point which seems to us new and very strong. He says: "A case is likely to be decided more justly on its facts, by a judge or referee, when the person deciding does not feel that he is really deciding it at all. There is such a responsibility upon the trier, especially in a case of importance or where the parties are influential, that a trier who is to have such causes continually coming up before him shrinks from actually deciding the case itself. He can render more perfect justice if he may simply state the conclusions of fact which he derives from the evidence, not pretending to say whether they entitle the plaintiff or the defendant to recover; and the judge can lay down the principles of the law more satisfactorily if the facts are found for him, and is beyond all temptation to alter in order to suit the intended application of the law. Legal principles rely for their sanction upon the common approbation of legal minds to whom it makes no difference whether the facts are imaginary, as with the Civil and Roman law writers, or real, as in the English law. And for the same reason facts are more easily found and with less temptation to error, if the legal result of them is not known to the one who settles them. His very ignorance of the law may be the best support of his honesty. Therefore it has seemed to the writer that a court is not a good tribunal to settle both law and fact, because you cannot tell from their decision which is which, because they know too much law, and are prone to see the facts too much in their legal aspect; and because the long-continued decision by the same men, of questions of fact which cannot become the subject of legal criticism, as reported opinions may, tends naturally to arouse distrust and dissatisfaction on the part of defeated suitors. And herein lies part of the great strength of the jury system, which, to the writer's mind goes a long way to account for its survival - the fact that it is nearly always a tribunal of new men against whom no prejudices have arisen in the minds of the suitors."

If the Rev. Dr. Dix is reported right he lately said, in a lecture on divorce, that "divorce thrives best where men fear God's word least." It would be difficult to sustain this declaration by the example of New England, where, Dr. Dix says, "two thousand families are broken up by divorce every year." And yet New England is regarded as peculiarly a God-fearing community. The doctor also said: "Harm enough has come to woman already under The law of pretense of bettering her condition. man in revolt against God tries even to separate She can hold her own property man from wife. now, sue and be sued alone, and from this separate responsibility it is an easy step to personal separation. If she once gets complete independence she will be socially and morally wicked." This is perfectly preposterous, and what is worse, it is a wild, wanThe idea that ton, and wicked libel upon woman. women can be kept virtuous and decent only by

pecuniary dependence upon their husbands is one of the basest and falsest flings that was ever made against the purer part of creation. Such a sentiment would be shocking in a rake or an infidel; in a christian clergyman it argues either ignorance or recklessness. The vast majority of honest divorces are granted to women, and for the disloyalty, perfidy and cruelty of their husbands. There are bad wives, but they are as infrequent in comparison with bad husbands as cranky and libellous clergymen are in comparison with the great body of the christian clergy, who regard women as the principal conservators of decency and virtue in the world. The spectacle of a bad woman is notoriously more shocking than that of a bad man because of its infrequency. If divorces have increased in consequence of pecuniary influences, the fault in nine cases in ten is the husband's. The reverend gentleman might as well argue for the relegating of the Southern blacks to slavery on the ground that complete independence will make them socially and morally wicked. If the allegation were true of women, it would still be no reason for denying them their equal social rights any more than it would be just to refuse his patrimony to an heir because he might squander it in riotous living. But the allegation is cruelly and foolishly false; unworthy of a moment's toleration by any candid man; a libel upon wives who are generally much too good for their husbands, and upon mothers who have taught men what little virtue they have.

Mr. Charles G. Fall, of the Suffolk (Mass.) bar, has issued a pamphlet on Employers' Liability for Personal Injuries to their Employees, prepared and written for and under the direction of the Massachusetts Bureau of Statistics of Labor, for its fifteenth annual report.” This is a concise presentation of the common law and the present English statutory doctrine on the subject, and a good argument in favor of enlarging the masters' liability. Mr. Fall recommends the adoption of a statute that "whenever an action is brought against an employer to recover damages for personal injuries received by an employee while in the discharge of his duty, the fact that the injury was caused by or through the negligence of a fellow-employee shall not prevent the recovery of damages, unless the employee materially contributed by his own negligence to the cause of the injury, or both the person causing and the person receiving the injury were engaged at the time of the injury in menial or domestic service." We look in vain for any satisfactory reason for this exception of menial or domestic service. If the reasons are persuasive in regard to general employment we can conceive of no good reason for such an exception. It is probably inserted because of the reductio ad absurdum which such a case affords, as pointed out by Lord Abinger in Priestly v. Fowler. But as we have repeatedly urged, the proposed change is impolitic, if not opposed to sound views of law. Mr. Fall urges that it would not materially increase litigation. Then what is the use of it?

ing to prove the great muscular strength of the deceased was incompetent. The case has not, we think, been followed by other courts and has been much questioned by the profession. with our decision in the constrained to overrule it."

So far as it conflicts case before us, we feel Wharton condemns the

fluence should be set aside. Compare Brown v. Ward, 53 Md. 376; S. C.,36 Am. Rep. 423, and note, 426.

COMMON WORDS AND PHRASES.

ISORDERLY PERSONS AND GAMESTERS. — Per

In McGuire v. Spence, New York Court of Appeals, a child, fourteen years of age, while playing on the sidewalk, fell into an uncovered opening in the sidewalk and was injured. Held, that a judgment against the defendant would not be set aside because the child was playing at the time. The court said: "Nor does it change the result that she was playing upon the sidewalk instead of using it for the ordinary purposes of travel. Our attention is called to certain cases in other States as authority for the doctrine that only those using the streets for their appropriate and normal purposes are within the rule of protection: Blodgett v. City of Boston, 8 Allen, 237; Stinson v. Gardner, 42 Me. 248; McCarty v. City of Portland, 67 Me. 167; S. C., 24 Am. Rep. 23. In these cases the actions were against municipal corporations under statutes which bound them to keep the streets safe and convenient for travellers, and a just construction of the written law furnished the limitation of the corporate duty. In this State we have held that the duty exists not merely as to travellers, but as to all persons lawfully in the streets, and have imposed upon a city a liability for negligence where the person injured was in no sense a traveller, but engaged in excavating the street under lawful permission, but for the benefit of a private corporation. Rehberg v. Mayor, January, 1883. This plaintiff was lawfully in the street. She had a right to be there, and while there not to be exposed to the possible dangers of an uncovered opening in the sidewalk. Nor does it matter that she was at play with other children. In Mc Gary v. Loomis, 63 N. Y. 104; S. C., 20 Am. Rep. 510; we stated it as a proposition too plain for comment that it is not unlawful, wrong or negligent for children on the sidewalk to play."

In Thompson v. Hawkes, United States Circuit Court, Indiana, 14 Fed. Rep. 902, it was held, where a testator embraced spiritualism, as practiced by his beneficiary, who claimed to be a spirit-medium, and instead of merely believing in it as an abstract proposition, became possessed by it and suffered it to dominate his life, and where his belief was artfully used by his beneficiary to alienate him from his only son and child and to get his property, that a will made in such a mental condition and under such in

sons playing pool and bagatelle at a public saloon, kept for that purpose, the losers paying for the use of the apparatus or for drinks, are disorderly persons and gamesters. People v. Cutler, 28 Hun, So, in Hitchins v. People, 39 N. Y. 456, it was held that playing games for beer and cigars is gambling. FORCE FOR EXTINGUISHING FIRES. An assistant superintendent of telegraphs in a city fire department is not one of the "force for extinguishing fires." People v. Fire Commissioners, 28 Hun, This was under a statute respecting the police and fire department, and expressly excluding that officer from the definition of "police force."

LETTER. — A "letter" includes the envelope. U. S. v. Duff, 19 Blatchf. 9.

MEDICINE AND DRUGS. A wholesale and retail druggist bequeathed his "stock of medicines, drugs," etc. Held, not to embrace fifty barrels of whisky remaining in the bonded warehouse at the time of his death. Klock v. Burger, 56 Md. 575. The court said: "Now whisky, according to the extrinsic proofs, may be sold by druggists, in comparatively small quantities, as medicine, and doubtless a great many people so take it. But fifty barrels of whisky, when compared with the ordinary stock of medicines and drugs kept on hand by the testator, or the extent of the drug business done by him, (shown to have been from $30,000 to $40,000 a year,) would seem to be wholly disproportionate. It is shown that at the time of the death of the testator he had in his drug store nearly nine barrels of whisky, and that from one to two barrels were disposed of per month; but how so much whisky was disposed of is made apparent by the testimony of one of the petitioners and legatees in this case, who says, that 'Senft used to sell whisky in quantities of from one to three and four gallons to private gentlemen; don't know for what purpose; he did a business of from $30,000 to $40,000; he sold the whisky at from $3 to $4 a gallon.' We think it clear, that if Senft really intended to dispose of the fifty barrels of whisky through his store and to his customers, it was not as a legitimate sale of a medicine or drug that he expected to sell it, but as whisky in the ordinary retail; and hence in no proper sense, thus dealt in, could it be considered as medicine, and therefore within the meaning of the term used in the bequest. The testator however had never incorporated the fifty barrels of whisky in his stock of medicines or drugs, and whether, if he had lived, he would have sold any portion of this lot of whisky in his drug store, is by no means a positive certainty."

This word, as used in U. S. Rev. Stat. 2461, for the protection of "live-oak and redcedar trees and other timber" growing on the public lands, includes trees of any size or character useful