(or semble in the Queen's courts anywhere) the concurrent proceedings are prima facie vexatious. The judgment of Chitty, J. (46 L. T. Rep., N. S. 567; 21 Ch. Div. 202,) affirmed. Cox v. Mitchell, 1 L. T. Rep., N. S. 8; 7 C. B., N. S. 55, The Mali Ivo, 20 L. T. Rep., N. S. 681; L. Rep. 2 Adm. & Eccl. 356; The Catterina Chiazzaro, 34 L. T. Rep., N. S. 588; 1 P. Div. 368, and Lord Dillon v. Alvares, 4 Ves. 357, commented on. An interlocutory order for accounts and inquiries containing no declaration of rights is not a judgment. Ct. of Appeal, Dec. 9, 1882. McHenry v. Lewis. Opinion by Jessel, M. R., and Bowen, L. J., (47 L. T. Rep., N. S. 549).

· PRIVILEGED COMMUNICATION.-(1) A., the defendant wrote to his solicitor, who was also the solicitor of E., the plaintiff: "You may make Mr. E. an offer of the T. Hotel at 150l. per annum from Lady-day, 1881; tenant to pay all rates and taxes, except property tax, and do internal and external painting and repairs; the roof and walls to be kept in repair by the laudlord. Term, ten years; a proper lease to be drawn up with all proper clauses, and to be approved by me and my solicitor." This letter was forwarded to the plaintiff, who at once wrote and accepted the offer. There was some evidence that the defendant knew the plaintiff was a brewer. Held, that the words, "to be approved by me and my solicitor," did not prevent the letters forming a complete contract, and that the defendant was not entitled to insist on the lease containing a covenant against underletting. (2) A subsequent letter from the defendant to the solicitor, expressing satisfaction that E. had accepted the offer, was tendered in evidence. Held, that the letter was privileged. Ch. Div., Dec. 12, 1882. Eadie v. Addison. Opinion by Pearson, J. (47 L. T. Rep., N. S. 543).

WILL

-

CONSTRUCTION

BEQUEST TO CHILDREN OF A. AND C.-LAPSE. (1) A bequest "unto and equally amongst all the children of A. B. and the said C. D." is a gift to C. D. himself and not to his children. Moreover, it is not a gift to C. D. as the member of a class, for to constitute a named person a member of a class, he must have a common character with the unnamed members. Lugar v. Harman, 1 Cox, 250; Peacock v. Stockford, 3 D. G. & M. G. 73; Hawes v. Hawes, 43 L. T. Rep., N. S. 280. (2) The will provided thus in relation to the bequest: "I direct that the same should be vested legacies at the time of my decease." Held, that there would arise no lapse from C. D.'s death in the testator's lifetime; for an intention to benefit such only of the legatees as should be living at the testator's death was indicated by the words quoted. See Porter v. Fox, 6 Sim. 485; Shaw v. McMahone, 4 Dr. & W. 431; Clarke v. Phillips, 17 Jur. 886; Re Stanhope's Trusts, 27 Beav. 201; Re Wood's Will, 31 id. 323; Drakeford v. Drakeford, 33 id. 43; Aspinwall v. Duckworth, 35 id. 307; Re Chaplin's Trust, 9 L. T. Rep., N. S. 475; Re Allen, 44 id. 240; Ch. Div. Nov. 6, 1882. Re Featherstone's Trust. Opinion by Kay, J. (47 L. T. Rep., N. S. 538).

CORRESPONDENCE.

TENANCY BY THE ENTIRETY.

Editor of the Albany Law Journal:

Your correspondent under date of March 5th inst., thinks "tenancy by the entirety" and "tenancy by the curtesy" should "sail in the same boat" and be borne to the same haven by the same breeze.

He fails to appreciate, I imagine, that the one lives only upon the death of one of its two originators, and

the other lives, if at all, during the lives of two of its recipients.

Has tenancy by the entirety survived, or has it not long since been consigned to the tomb of the feudal Capulets? Who can solve this proposition otherwise than as indicated in the convincing opinion of Judge Danforth in Meeker v. Wright, 76 N. Y. 262.

The proposition is this: Lands are conveyed to Thomas Jones and Elizabeth French, "their heirs and assigns," to-day. They are confessedly tenants in common. Elizabeth to-morrow marries Thomas. Do they cease to be tenants in common? Clearly not, even at common law. Why then if lands are conveyed to Thomas Jones and Elizabeth Jones, his wife, "their heirs and assigns," are they not tenants in common, when the statute says, "and means what it says," "auy married female may take any interest or estate in real property in the same manner and with like effect as if she was unmarried"? Yours truly,

ROCHESTER, N. Y., March 10, 1883.

THEA

D. B. B.

COURT OF APPEALS DECISIONS.

HE following decision was handed down, Friday, March 16, 1883:

Orders of the Special Term and General Term reversed with costs, and that a peremptory mandamus issue requiring the comptroller to countersign the warrant drawn in favor of relator- The People ex rel. William J. Woods, Appellant v. Isaac W. Crissey, Comptroller of the City of Troy, respondent.

The following decisions were handed down Tuesday, March 20, 1883:

Judgment affirmed with costs - Tag v. Kelettas; Metzger v. Hermann; Noyes v. Bailey; Crosser v. Cornell Steamboat Company; Lanetot v. Troy & Lansingburgh Railroad Company; Fisk v. Costor. -Order affirmed with costs - In re Application of Thomas T. Church. Order of General Term reversed, order of Special Term affirmed with costs-The People v. The Mechanics and Traders Saving's Institution.-Judgment reversed, new trial granted, costs to abide event Vogel v. The Mayor, etc., of New York. Judg. ment affirmed, and judgment absolute on the stipulation, with costs- Hunter v. Herrick.

NEW BOOKS AND NEW EDITIONS.

REMARKABLE TRIALS, VOL. II

Remarkable Trials of all Countries: With the evidence and speeches of Counsel, Court Scenes, Incidents, etc., compiled from official sources, Volume I. New York. S. S. Peloubet & Company, 1882. P. 436.

This book contains reports of five trials, namely: those of Jacob Rosenzweig in 1871, in New York: John Brown in 1859, at Charlestown, Va.; Frank H. Walworth in 1873, in New York; George W. Cole, in 1868, and a second trial the same year, in Albany, N. Y. Also accounts of a Moorish execution, of the crime of Count de, Bocaime, of a murder by Dr. Coolidge and of a remarkable escape from prison. The reports of trials are in a sensational daily newspaper style and appear to be taken from newspaper articles published at the time of the occurrences. To those enjoying the perusal of such matters the book will be of interest. To the professional reader we cannot recommend it as of great value, though he will find much therein that is very readable.

The Albany Law Journal.

ALBANY, MARCH 31, 1883.

CURRENT TOPICS.

THE HE recent action of Governor Cleveland in pardoning a murderer on condition that he refrain from intoxicating drink for five years has been a good deal criticized by the press, on the ground that there is no power to compel the fulfillment of the condition. That is true; but conditional pardons are authorized by the constitution, and in case the condition shall be broken the Governor has power to remand the offender to his punishment. Exactly such a pardon had been granted in Arthur v. Craig, 48 Iowa, 264; S. C., 30 Am. Rep. 395, and exactly this was held as to the effect of it. We know nothing of the particular circumstances of the case in question, but there can be no question of the Governor's power to grant such a pardon and to revoke it in case of breach of condition.

Our Legislature have stultified themselves by passing an amendment of the Penal Code allowing cigar, tobacco and ice-cream shops be kept open on Sunday. It is a humiliating confession that these articles are so essential to the health and happiness

of mankind that the matter could not have been left to the construction of the courts, and needed a grave legislative enactment. Probably the Chinese would think the trade in opium ought to be permitted on Sunday. Of course there is no fault to be found with having ice-cream shops kept open a reasonable time on Sunday morning to supply customers who want this provision, but if men are such slaves to tobacco that they cannot live over Sunday without it, let them lay in their supply on Saturday night, and give the shop keepers a chance to rest on Sunday. This legislation is of a laughably puerile sort. As we understand it, it also extends to these articles a privilege which does not attach to meats and provisions. These latter can only be sold up to a certain hour on Sunday, but if our lawmakers or others want their tobacco or treat their "girls" to ice-cream, they are to be at liberty to do so at any hour. The Governor has shown himself a sensible man thus far; now let him put his foot down on this silly scheme, and thus assure the community that every unnecessary encroachment on the rest and quiet of Sunday is to be sternly resisted.

The Rev. Dr. Ecob, of this city, in a discourse last Sunday made the following striking observations on Conscience in Law: "Consider first conscience the soul of law. I beg you to observe just here the distinction between legislation and law. We Americans carry legislation forever upon our backs like an old man of the sea. We are ridden to death by legislation. But we are none too rigidly yoked with law. Law grows; legislation is made. As the VOL, 27-No. 13.

result of a factious warfare between parties, men of all mental and moral shapes and colors are brought together, and this motly assemblage forthwith disposes themselves into various committees and what not, and proceed to legislate. They vote up and down, to the right and left; acts and provisions emanate by scores, by hundreds, by thousands, from this legislative body. They volley their bills upon us like a Gatling gun. When they are done with this volley and thundering, and the smoke clears away, we find a certain stack of parchments filed snugly away, containing a record of the hundreds of thousands of acts, acts which the plain citizen never feels, nor hears, nor sees. This we call making laws. I do not wonder that laws have fallen into

such contempt, when the laws of the land have become simply a foot-ball to be kicked back and forth between political parties. What do we mean by laws as distinct from mere legislation? We mean those great common principles of right which lie at the heart of all good governments, the rights of property, the rights of the individual, freedom, order, good morals. These principles, few in number, hardly a decalogue, are the nugget of pure law in the mountain of the world's legislation. This little deposit of real law is simply the crystallization, of the world's conscience. Your conscience and mine is represented there. Touch one of those touched, because the law is part and parcel of us, great principles, and we thrill as if a nerve had been and bearing the express image of the divine power within us we know it must be of and from the divine power above us. The conscience of the law rests upon the conscience of the race, the conscience of the race rests upon God. These men who by courtesy are called law-makers, but in reality are only legislators (in the modern sense), must be made to understand that their little vote will be called at last before the majority of that inflexible judge, the conscience of the State. That judge is few great principles, clear as the sun, always enlighten never confused by multiplicity of enactments. his eyes. And there is no appeal from the decision of that tribunal." We commend these words to the consideration of those accidental law-makers in our capitol who think to inflict upon the people of this State the curses of cheap rum and a free-and-easy Sunday.

* * *

A

While we are pursuing the vein of fine judicial writing we must not omit to call attention to the opinion of Judge Finch,!in Badger v. Badger, 88 N. Y. 546. This was the case where a man passed as a husband, under an assumed name, in one part of the town of his residence, and as a bachelor, under his real name, in another. Judge Finch says: It is over this cohabitation, and its true character and meaning that the controversy arises. So far as we know, the association began when the plaintiff was young, and the decedent in middle life, and continued until he fell dead, an old man of seventy-six. It lasted without interruption. It survived the loss of youth and its attractions; it ran on through sickness, paralysi

and some degree of mental weakness; it showed no trace of the satisfied passion that tires of its victim and abandons her for new temptation; it did not change when the girl had grown into the matron and become deaf and lame; it stayed with the tenacity of love and duty, remaining patient and faithful until the end. It is argued with great force, that if this relation was that only of lover and mistress, it approached strangely near to matrimonial truth and devotion, and gave to unlawful lust an endurance and virtue not common or expected. ** * * In the general repute surrounding them, the slow growth of months and years, the resultant picture of forgotten incident, passing events, habitual and daily conduct, presumably honest because disinterested, and safer to be trusted because prone to suspect, we are enabled to see the character of the cohabitation, and discern its distinctive features.

It is for that reason that such general repute is permitted to be proven. It sums up a multitude of trivial details. It compacts into the brief phrase of a verdict the teaching of many incidents and the conduct of years. It is the average intelligence drawing its conclusion." This is the very model of the judicial style, and as we have more than once observed, we regard Judge Finch as at present certainly unsurpassed, probably unequalled, as a judicial writer.

The proceedings of the Executive Committee of the New York State Bar Association, at their meeting on Wednesday of last week, show that the Association is rapidly gaining in strength and influ

ence.

The profession is beginning more fully to appreciate the benefits of this Association and is rallying to its support. We commend it heartily. Those who become members before the visit of Lord Chief Justice Coleridge, will have an opportunity to participate in the welcome and entertainment of this distinguished guest.

We must add to our collection of Practical Tests in Evidence the following from the London Law Journal: "The practice of experimenting before judges is likely to receive a check, if it is often followed by such results as happened in a case before Mr. Justice Pearson last week. Two German firms were disputing the exclusive right in certain patents for improvements in the production of coloring matters suitable for dyeing and printing.' The contention of the defendants was that the chemical means described in the specification were impossible, because if the 'oxyazo-naphthalinoine' were to be united with the 'fuming sulphuric acid' of the strength therein described, it would be dangerous to human life; and an experiment coram judice was proposed. In an unguarded moment the judge consented, and adjourned in an empty room, where the baleful mixture was concocted by adding a teaspoonful of the unpronounceable liquid to an ounce of fuming sulphuric acid. The result was terrific. 'So dense and poisonous' were the effects of the fumes arose, that judge, counsel, witnesses

and bystanders fled, 'with the utmost precipitancy, to avoid being asphyxiated on the spot.' Her Majesty's judges are brave men, but even in the search for truth they ought not to be exposed to dangers hitherto reserved for combatants in China; and the smoking out of the Royal Courts of Justice, as if it were a nest of hornets, is a contempt of court for which none of the penalties provided by the Lord Chancellor's bill is adequate." The London Law Times says of the same transaction: "We see no advantage in this kind of exhibition; the conditions under which such an experiment has to be made must tend to make it misleading, and a court should be, as a by-gone judge described it, 'a machine put in motion by evidence' of witnesses, not by the exhibition of experiments."

passed our Senate in a very quiet way. It makes The libel bill introduced by Senator Koch has the publishers of a newspaper indictable for a libel therein, in any county where such newspaper circulates. We regard this as a very unjust and very unwise act. The present law makes the offense indictable in the county where the newspaper is published, or in the county where the person libelled resides. This is fair and just. The new proposition can serve no honest purpose. It is designed to harass the press. If a person conceiving himself to be libelled does not dare have the issue tried where he lives, he should not be permitted to drag the publisher across the State, and thus subject him to unnecessary expense and loss of time, and possibly to unfair influences. We believe in holding the press to strict accountability for their utterances, but only in the modes provided for persons who do not publish newspapers. It is unwise to muzzle the watch dog of the press, although his bark is sometimes annoying and vexatious, and sometimes he bites the wrong man. The House have killed this bill, but we will let stand what we have written.

TH

NOTES OF CASES.

THE latest decision about getting the contents of scientific books before the jury is Marshall v. Brown, Michigan Supreme Court, Feb. 27, 1883, 15 N. W. Rep. 55, which holds that such books cannot be indirectly introduced in evidence. The court said: "It was decided in People v. Hall, 48 Mich. 486, that it was not competent to read professional books to the jury as evidence. The decision had not been made when this case was tried the second time; if it had been the error now complained of would probably not have been committed. the cross-examination of Dr. Wood, a witness for the defendant, he was asked if he was acquainted with a certain book. He replied that he had heard of it but had not read it. He was then asked whether it was considered good authority, and he said it was. He was then requested to read a certain paragraph during the recess of the court.

On

When the court convened again he was recalled, and counsel reading from the book the paragraph to which his attention had been called, asked him whether there was a case reported of taking sulphate of zinc, followed by vomiting, purging and death? As this was what the paragraph stated, the evident purpose of the question was to put the passage from the book in this indirect manner before the jury, instead of reading from it directly. The witness demurred to this method of examination, but was required to answer, and did so. The case differs from Pinney v. Cahill, 48 Mich. 584, where a medical book was produced to contradict a witness who professed to be testifying from it." See 26 ALB. LAW JOUR. 44; 24 id. 284; Huffman v. Click, 77 N. C. 55; Stilling v. Town of Thorp, 54 Wis. 528; S. C., 41 Am. Rep. 60; Union Cent. Life Ins. Co. v. Cheever, 36 Ohio St. 201; S. C., 38 Am. Rep. 573.

In Andrews v. Capitol, etc., R. Co., Supreme Court of the District of Columbia, 1882, 15 Rep. 330, it was held that a passenger who remains on the rear platform of a street car when there is standing room within, and means of support, cannot recover for injuries suffered by him from being thrown from the platform by a sudden lurch of the car in going around a curve at the customary speed used on the straight portions of the track. It appeared also that the seats were all comfortably filled, so that the plaintiff could not have gotten a seat unless room had been made for him by the passengers sitting closer together. With the exception of one white lady and gentleman the passengers were all colored persons. They were orderly and well behaved. There were the ordinary straps for stand-❘ ing passengers to hold on by. Carter, C. J., said: "The law does not contemplate that these corporations shall take the keeping of a man's discretion into their hands. If the plaintiff saw fit, under the facts found in the verdict, to stand on the platform, he took with him the perils of the platform, and cannot recover." James, J., however said: "I concur with the view that the plaintiff was responsible, or rather that he lost his right of action by contributing to the result; but I have not the least doubt that the defendant company was in fault. The special verdict found as a fact that the car was going around the curve at the same speed at which they ordinarily travel in a straight line. That is too fast to go around a curve; but it is said to be necessary from the construction of the car, and from the fact that they have to go around pretty rapidly with one horse;, so that the rapid speed which they keep up in rounding a curve is largely attributable to the arrangement which they have chosen to make so as to use only one horse. I think therefore that the defendant was also in fault; but the plaintiff ought not to recover when his own act contributed to the accident." See Thirteenth, etc., Ry. Co. v. Bowdrou, 92 Penn. St. 475; S. C., 37 Am. Rep. 707, and note, 710. In Nolan v. Brooklyn, etc., R. Co., 87 N. Y. 63; S. C., 41 Am. Rep. 345,

it was held that it was not negligent for a passenger to ride on the front platform of a street car, although there were vacant seats, when he was smoking, and the rule of the company required passengers when smoking to ride on that platform, and the conductor took his fare there without objection or notice. And in Goodrich v. Penn, etc., Co., 28 Hun, it was held that a passenger was not, as matter of law, precluded from recovery for injury received while unnecessarily standing on the platform of a steam railway car, it appearing that he had or saw no prohibition, and did not know that it was against the rules to stand there.

In Bates v. Bates, Massachusetts Supreme Court, January, 1883, Mass. L. Rep., March 22, 1883, it was held that a provision by will for the permanent preservation and repair of the testator's mortuary monument is not a charitable use, and is therefore void. The clause in qestion was as follows, verb. et lit.: "My house and furniture, silver plate, fixtures and every thing to be sold, if their should not be enough from my husband's estate for a monument, I wish to have my money expended for a monument of granet, with four pillows like one in the grove, only larger, if their should be money enough left from my husband's estate. I want a momento of Hope, Faith and Charity, the expences to be taken from my own estate, and his name cut on the steps, the remainder left I wish it to be kept in trust to beautify and keep the it in good order. I wish this to be carried strictly through." The court said: "Funds cannot be established indefinitely inalienable in the hands of those to whom they are intrusted and their successors, the income of which is to be perpetually devoted to uses which are not, legally speaking, charitable. That the testatrix sought to create a fund in perpetuity for the beautifying and keeping in repair of the monument or memento clearly appears, and the inquiry therefore is whether this is a charitable use. charitable, the use must be of such a character that the general public is to have the advantage of it, and not merely individuals. An examination of the authorities cited in Giles v. Boston Fatherless and Widows' Society, 10 Allen, 355, with others, will show that it has been repeatedly held that a bequest to provide a fund for the permanent care of a private tomb or burial place could not be treated as a public charity and thus made perpetual, and that such bequest would be void. Durour v. Motteux, 1 Ves. Sen. 322; Doe v. Pitcher, 6 Taunt. 370; Lloyd v. Lloyd, 2 Sim. (N. S.) 264; Rickard v. Robson, 31 Bea. 244; Fowler v. Fowler, 33 id. 616; Came v. Long, 8 W. R. 570. No distinction between these cases and that at bar can be made favorable to the latter. The repair of a private monumental structure is a matter strictly individual and personal. The fund constituted by the testatrix is to be expended for her own gratification upon an object in which the public has no interest, and which has no proper similitude to a charitable use. The provi

That it may be

sion in the testatrix's will, establishing a fund for the preservation, embellishment and repair of the monument or memento erected hy her, is therefore void, as it seeks to create a perpetuity for a use not charitable. The right to sell, having been given for an object which cannot be accomplished, cannot itself be exercised." See, to the same effect, Piper v. Moulton, 72 Me. 155, and note, 39 Am. Rep. 748.

** *

In Dutton v. Merchants' National Bank, Pennsylvania Common Pleas, Feb. 16, 1883, 12 W. N. C. 549, a clearing house due-bill, payable to "banks," and "only in the exchange through the Clearing House the day after issue," was held a negotiable instrument. The court said: "In construing such an instrument as this, we are aware that the leading authorities in this country are somewhat in conflict, Miller v. Austin, 13 How. 218, and kindred authorities, holding in principle one doctrine, and Patterson v. Poindexter, 6 W. & S. 227, followed by other cases in Pennsylvania, apparently another. *This is not, therefore, 'a mere certificate of deposit on special terms,' but an agreement to pay so much money on demand; true the place of payment is named, only in the exchange through the Clearing House; that is, by a bank; but the amount is fixed, and the time at which the paper is payable is also certain, and it is also payable in dollars; that is, the legal currency of the country. It is payable to 'banks,' but it has been settled time and again, that words equivalent to 'order' or 'bearer' are sufficient. Thus in United States v. White, 2 Hill, 59, it was held that, 'words in a bill, from which it can be inferred that the person making it, or any other party to it, intended it to be negotiable, will give it a transferable quality against that person.' See also Raymond v. Middleton, 29 Penn. St. 530. And the whole tenor of this instrument, together with the usual custom of the banks and of the mercantile community, tends to establish the fact that these instruments are regarded as payable to 'bearer,' as such deposited as cash, and paid on presentation by the bank of issue through the Clearing House. All the cases in Pennsylvania from Patterson v. Poindexter down, proceed upon the principle that the various instruments of writing sued upon, although in some instances bearing the words 'order' or 'bearer,' had about them, in terms, language indicating a mere intent to 'deposit upon special terms, and subject to a particular stipulation as to the manner and time of payment, and accompanied with a collateral engagement to allow interest.'

* * *

We can come to no other conclusion than that this Clearing House due-bill is not a mere certificate of deposit creating a contract of bailment, but is as negotiable an instrument as a check payable to bearer, or as a promissory note payable to order or bearer, is absolutely unfettered by any special condition or stipulation, is also 'simple' in terms, 'certain' in amount and manner of payment,' unconditional,' and subject to no 'contingency.' It cannot, in the language of Judge Sharswood, in Woods v. North, 3 Norris, 410; S. C., 24 Am. Rep. 201, be

subject to the criticism applied by Chief Justice Gibson to an agreement to confess judgment, which he called luggage, which negotiable paper, riding as it does, on the wings of the wind, is not a courier able to carry."" To the same effect Klauber v. Biggerstaff, 47 Wis. 551; S. C., 32 Am. Rep. 773, where the certificate was payable in " currency."

LIABILITY FOR LOSS FROM NEGLIGENT FIRES.

EFORE the Statute 6 Anne (A. D. 1708) ch. 13,

BE

the common-law of England was, that one on whose premises a fire arose from negligence of himself or servant, was liable to his neighbor for the latter's loss therefrom. Tubervil v. Stamp, 1 Salk. 13; 1 Bl. Com. 421. This was a harsh rule; for however unintentional the fire, if negligence was involved (as it commonly is in all fires) the liability arose. To remedy this severity, that statute provided, that no action should be maintained against any one "in whose house or chamber any fire shall accidentally begin," and statutes 12 and 14 George III (A. D. 1772–74) added to "house or chamber" the words "stable, barn, or other building, or on whose estate."

The law on this subject, as it thus was on April 19, 1875, became by New York Constitution of 1777, a part of our common law, and remained such until 49 N. Y. 420, post, changed it. Const. 1777, § 35; 1 Kent's Com. 473; Bogardus v. Trinity Church, 4 Paige, 198. But if our Colonial common law of 1775 included only the old law, as changed by the statute of Anne, and not by the later statutes, then, as that law differed in parallel cases (exempting from liability if the fire arose in a house and imposing it if any other building, store, barn, etc., and thus lacked any general principle, our courts were free to establish a uniform law, based upon sound reason and public welfare.

In this state of our law, the case of Webb v. Rome W. & O. Railroad Co., 49 N. Y. 420, involving the broad question of liability for a neighbor's loss from fire arising on one's premises from his servant's negligence, came before the Court of Appeals; and a recovery was sustained upon the theory (1), that liability existed under the early common-law of England, and (2), that the remedial statutes above referred to, concerning fires that " accidentally begin," did not include fires arising from negligence. And thus we were brought under the harsh old rule; and to any complaint that this rule threatens wide ruin any day, the judicial answer must be that of Thirning, J., in Beaulieu v. Finglam Year Book, 2 H. IV. fl. 8, pl. 6): "What is that to us? It is better that the defendant should be utterly undone, than that the law should be changed for his sake."

But whether our court needed to change the common law rule, or the statutes of Anne and George III changed it, quære? Turning to the opinion in 49 N. Y. 420, it appears that the conclusion, that fires which, within the intent of said