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keg of gunpowder. The keeping of the gunpowder was a violation of a condition of the policy which provided that for such violation the policy should be void. It was decided that the contract was entire, and that no recovery could be had for the damages done to the other two houses, though nothing had been done in them to vitiate the policy. Peun. Sup. Ct., Nov. 15, 1886. Kelly v. Humboldt Fire Ins. Co. Opinion by Truukey, J.

MORTGAGE-MERGER.-Where a mortgagee, to avoid the expense of foreclosure, takes a conveyance of the mortgaged premises to himself, without releasing the mortgage, it will be held as against a junior incumbrancer, that there was no merger of the mortgage. "A mortgagee may procure a conveyance from the mortgagor without intending to merge the lien of his mortgage. It may be of great importance to him to be permitted, for the protection of his title, to keep his mortgage alive, and to assert it in a court of equity if the necessity shall arise. Where a greater or less estate meet in the same person, a merger does not necessarily follow. That will depend upon the intent and the interest of the parties; and if a court perceives it is necessary to the euds of justice that the two estates should be kept alive, it will so treat them. Thus if a mortgage is the oldest lien, and is for an amount exceeding the value of the premises, and the mortgagee, to avoid the expense of foreclosure, takes a conveyance from the mortgagor, a court of equity would not permit the mortgaged premises to be swept away from him by a junior judgment creditor [or a junior mortgagee] without payment of the [prior] mortgage, under the pretense that its lien had been lost by merger." Edgerton v. Young, 43 Ill. 464. To the same effect are Fitts v. Davis, 42 111. 391; Shaver v. Williams, 87 id. 469; Worcester Nat. Bank v. Cheeney, id. 615; 4 Kent Comm. 102; 1 Jones Mortg., § 873. "Even when the parties have undertaken to discharge the mortgage upon the uniting of the estates of the mortgagor and mortgagee in the latter, it will still be upheld as a source of title whenever it is for his interest, by reason of some intervening title or cause, that it should not be regarded as merged. It is presumed as matter of law that the party must have intended to keep on foot his mortgage title when it was essential to his security against an intervening title, or for other purposes of security; and this presumption applies, although the parties, through ignorance of such intervening title, or through inadvertence, have actually discharged the mortgage, and cancelled the notes. 1 Jones Mortg., § 873; Young v. Hill, 31 N. J. Eq. 429; Stautons v. Thompson, 49 N. H. 272. The case of Richardson v. Hockenhull, 85 Ill. 124, is decisive of the case at bar. Ill. Sup. Ct., Nov. 13, 1886. Lowman v. Lowman. Opinion by Magruder, J.

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MUNICIPAL CORPORATION-ASSESSMENT FOR PAVING -ESTOPPEL.-(1) Owners of property fronting on a certain street signed an agreement for the paving thereof, and an ordinance was subsequently passed by councils directing the paving in a certain manner. While the ordinance was pending the owners protested to councils against the passage of the ordinance for certain specific reasons. The street having been paved, claims were filed against some of the properties for their proportion of the assessment. The owners defended on the ground that the properties were "rural," and not subject to assessment according to the foot frontage rule. Held, that as they had not alleged this reason when objecting to the passage of the ordinance, they were estopped from setting it up as a defense. (2) Municipal authorities, in the making of street improvements authorized by law to be made at the expense of the owners of lands to be benefited thereby, are to a certain extent the agents

of such owners. Contracts unlawfully made, at the discretion of the authorities, are binding upon the land-owners, though injudiciously made; but the owners are entitled to have such contracts performed substantially in all things according to their terms, and the authorities have no power to dispense with such performance to the gain of the contractor and the loss of the property owners. If the authorities are about to accept and pay, under a contract, for what in substantial and important respects, has not been performed, the property owners may have remedy to enjoin the wrongful payments. Schumm v. Seymour, 24 N. J. Eq. 143. There it was held that the remedy is in equity. But in this State, where by the laws and ordinances the contractor receives the assessment bills in payment from the city, and it turns out that his work was so defectively done as to be worthless, he has no just right to recover in an action against the property owner, and the latter is not precluded from the defense because he is not a nominal party to the contract. If the work was substantially done as contracted for, answers the intended purpose, but in some minor particulars, which do not materially affect its usefulness, the contractor failed, then the property owners may have deduction for such failure. This is not the case of a municipality contracting for a public improvement, accepting it, and making payment therefor absolutely, and afterward itself collecting the assessments; and it is unnecessary to consider whether in that case the property owner could allege defective work as a matter of defense against the tax. Penn. Sup. Ct., Oct. 4, 1886. Pepper v. City of Philadelphia. Opinion by Trunkey, J.

STREET CROSSING-UNGUARDED EXCAVATION -LIABILITY-CHILDREN.-Where a city makes an excavation in the bed of a creek at a street crossing, where it knows children of the vicinity are in the habit of playing, and leaves it unguarded during the absence of workmen, such city is liable for the death of a child caused by falling into such excavation, the child not being a trespasser, and the parents having no knowledge that the place, ordinarily safe, had been rendered unsafe. The conclusion to be drawn from the approved cases on the subject is that the owner of premises, who has neither expressly nor impliedly invited the public to come upon or pass over his grounds is under no obligation to keep them clear from pitfalls or in a condition of safety for those who, in the pursuit of their own pleasure or convenience, pass over such premises, even though it be with the acquiescence of the owner. Persons passing over premises of that description exercise the privilege, with its attending perils, and this without distinction as to whether or not they have arrived at au age of discretion. Unless contrivances are placed on such premises with an actual or constructive intent to hurt intruders, the proprietor is not liable for injuries resulting to persons by reason of the condition in which the premises have been left, or from the prosecution of a business thereon in which the owner had a right to engage. Evansville, etc., v. Griffin, 100 Ind. 221-225, and cases cited; Gillespie v. McGowan, 100 Penn. St. 144; Gramlich v. Wurst, 86 id. 74; S. C., 27 Am. Rep. 684; Cauley v. Pittsburgh, etc., Co., 95 Penn. St. 398; 8. C., 40 Am. Rep. 664; McAlpin v. Powell, 70 N. Y. 126; Hargreaves v. Deacon, 25 Mich. 1; Burdick v. Cheadle, 26 Ohio St. 393. The foregoing and many other analogous cases which might be cited, proceed upon the theory that the person sought to be held liable had done nothing to produce injury to others who voluntarily strayed upon or invaded the premises on which the injury occurred. In all such cases the owner may dig an excavation on his own land, not substantially adjoining a public highway, and no action lies against him by one

ment. If the inadequacy in the size of a sewer is owing to the omission to exercise ordinary skill and care in planning and performing the work, the municipal corporation is liable; but if the inadequacy of the sewer is attributable to a mere error of judgment, there is no liability. City of North Vernon v. Voegler, 103 Ind. 314; Crawfordsville v. Bond. 96 id. 236; City of Evansville v. Decker, 84 id. 325; S. C.. 43 Am. Rep. 86; Cummins v. City of Seymour, 79 Ind. 491; S. C., 41 Am. Rep. 618; Weis v. City of Madison, 75 Ind. 241; S. C., 39 Am. Rep. 135; City of Indianapolis v. Huffer, 30 Ind. 235. While it is the law that a city is not responsible for consequential injuries resulting from careful and skillful grading of its streets, still it is liable if it undertakes to collect the water in one channel, and is negligent in devising the plan, performing the work, or providing an outlet, where one is made necessary by its own act. A municipal cor

of providing sewerage or drainage; but if it does enter upon the work, it is liable for negligence in devis ing the plan and in doing the work. Weis v. City of Madison, supra, and cases cited; City of Logansport v. Wright, 25 Ind. 512. Ind. Sup. Ct., Oct. 16, 1886. Rice v. City of Evansville. Opinion by Elliott, J. NEGLIGENCE-PROXIMATE CAUSE-SALE OF FIREARMS TO MINOR.-The mere fact that defendant sold a revolver, in violation of statute law, to plaintiff's minor son, fifteen years old, with which he afterward injured himself, does not show a cause of action in plaintiff to recover for loss of service and expense of caring for him; as such fact alone does not show that the accident ought to have been anticipated by defendant as a probable result of the sale. It is not alleged that he was ignorant of the character of the weapon sold him, or that he was inexperienced in the use of such weapons; neither is it shown that there was any thing in its character or disposition that rendered it dangerous to place a weapon of that kind in his hands. It cannot be said that defendant might reasonably have anticipated that an accident would occur from the handling of the weapon from the fact alone that the person to whom he sold it was a minor. Iowa Sup. Ct., Dec. 11, 1886. Poland v. Earhart. Opinion by Reed, J. [See Binford v. Johnston, 82 Ind. 426; S. C., 42 Am. Rep. 508.-ED.]

who has fallen into the excavation. Hardcastle v. South Yorkshire R. Co., 4 Hurl. & N. 67; Hounsell v. Smyth, 29 L. J. C. P. 203; S. C., 7 C. B. (N. S.) 731; Pittsburgh, etc., Co. v. Bingham, 29 Ohio St. 364; Sweeney v. Old Colony R., 10 Allen, 368; Knight v. Albert, 6 Penn. St. 472; Nicholson v. Erie, etc., Co., 41 N. Y. 525. But there is a clear distinction between the cases cited and the case where an excavation is made in or so near a highway as that one, while rightfully using the highway, may without fault sustain injury by falling into the excavation. No less clear is the distinction between a case in which an excavation is made, or something calculated to amuse or attract children is done or left, at a place where the child has a right to be, and one in which the something is done at a place where, in order to reach the place of danger, the child becomes an intruder upon the premises of another. Whoever while passing along, or when properly in a public street, suffers an injury, while exercis-poration is not however bound to undertake the work ing the degree of care which the law requires of such person, by falling into an excavation which has been made in or near such street, is entitled to maintain an action for such injury against the person making the excavation. In such a case the person making the excavation comes under an obligation to make it safe in respect to all persons who have a right to use the street. Streets are open to persons of all ages, and children are and must be permitted, to some extent at least, to go upon the streets of towns and cities without incurring the imputation of negligence upon themselves or their parents. It would be intolerable to hold, as matter of law, that a parent having no knowledge of the presence or probability of danger, was nevertheless guilty of negligence in permitting a five-year-old child to pass beyond the door-yard, into the street, without an attendant. Whoever therefore does any thing in, or immediately adjacent to, a public street, calculated to attract children of the vicinity into danger, which they cannot appreciate, owes the duty of protecting them by suitably guarding the source of danger, or in case this is impracticable, by giving timely warning to their parents and guardians of the existence of the danger. Chicago v. Hesing, 83 Ill. 204; Chicago v. Mayor, 18 id. 349; Niblett v. Nashville, 12 Heisk. 684; Graves v. Thomas, 95 Ind. 361; McAlpin v. Powell, supra; Beck v. Carter, 68 N. Y. 283; 2 Dill. Mun. Corp., par. 1005. The right of a child to go or be in or upon a street is in no way dependent upon the occupation or pecuniary condition of its parents. Mayhew v. Burns, 103 Ind. 328. If a person of discretion, while attempting to pass over the stream in question where it crossed Spruce street, had fallen into the pit into which the child fell, no doubt could be entertained that such person, if free from contributory fault, might have recovered for an injury sustained; or if the plaintiff, without knowledge of the pit, had permitted his horse to go there for water, and it had fallen into the unguarded hole, and had been injured, the liability of the city would have been beyond question. As we have seen, the liability of a city is precisely the same in case a child, rightfully in a street, sustains injury from a defect created therein by the city, as in the case of an adult, who is injured, while free from fault, from a like cause. It would shock all sense of justice to hold that a city might dig a great pit in a street, and leave it so that children might be lured into it, and yet deny to parents, who were without fault, any remedy for the loss of a child. Ind. Sup. Ct., Nov. 16 1886. City of Indianapolis v. Emmelman. Opinion by Mitchell, J.

NEGLIGENCE IN PLAN OF SEWER.-A municipal corporation is liable for negligence in devising the plan of a sewer, as well as for negligence in executing the plan, but it is not liable for a mere error of judg

NEGOTIABLE INSTRUMENT-INDORSEMENT OF PAYEE -PAROL EVIDENCE TO EXPLAIN.-Parol evidence is admissible to prove that an indorsement of a note by the payee was made at the request of the plaintiff, to show that it had been paid. On behalf of the plaintiff below it is claimed that the indorsement of a promissory note constitutes a certain and well-defined contract, with as much force and meaning as if all the conditions and stipulations had been written out at full length, and that hence parol evidence is inadmissible to either modify or contradict such a contract of indorsement; and the case of stock v. Beach, 74 Ind. 571, is relied upon as supporting that doctrine. But the doctrine as thus stated was in that case only made to apply to indorsements upon a note or bill, which regularly followed that of the payee, and as to that class of indorsements many exceptions to the general rule announced were recognized. So far as we are advised, so strict a rule has never been applied to indorsements upon a note or bill by the payee. It is true, that where the law attaches a definite meaning to an indorsement upon a note or bill, parol evidence will not be permitted to qualify or contradict the contract of indorsement; but this rule for the exclusion of parol evidence does not extend to evidence offered to attack the validity of the contract itself for want of consideration, or on account of fraud, or because the consideration has

failed. So the fact that it would be inequitable or fraudulent to enforce the contract of indorsement, as that the indorser was an agent, or that the note was indorsed for a special purpose, such as the creation of a trust, or for collection, or for the accommodation of the indorsee, may be proved by parol. Edw. Bills, §§ 393, 399, 440, 442; 3 Kent Comm. 80. In the case of Smythe v. Scott, 106 Ind. 215, it was said that "where an indorsement is made by a payee without consideration, or upon some trust arising out of an antecedent transaction or to accomplish some special purpose, the facts which go to show the transaction may be shown. This for the purpose of showing the equities between the parties, and to determine the consideration upon which the indorsement was made." From what has been said, the inference would seem to be plain that the defendant was entitled to show that when he put his name on the back of the note it had already been paid and that his name had been so put on the note at the request of the plaintiff, as evidence of such payment. It follows that there was no error in overruling the demurrer to the third and seventh paragraphs of the answer. Dan. Neg. Inst., §§ 710, 711. Ind. Sup. Ct., Nov. 6, 1886. Spencer v. Sloan. Opinion by Niblack, J.

THE PORTRAIT OF JOSHUA A. SPENCER IN ROOMS OF THE STATE BAR ASSOCIATION-SKETCH OF HIS LIFE.

AVALUABLE steel portrait of Joshua Spencer has

recently been placed in the rooms of the New York State Bar Association, by Hon. A. J. Vanderpoel of New York. This, with the elegant oil portrait of Chief Justice Ambrose Spencer, the gift of the judges of the Court of Appeals, which now ornaments the rooms, with that of John C. Spencer, the illustrious son of the chief justice, soon to be placed there, will enable visitors to see the features of the three Spencers, so distinguished in history.

Joshua A. Spencer was not a relative of Ambrose and John C. Spencer. The circumstances of his early life denied him the advantages of his distinguished namesakes. They were allied to the Clintons, a name and family inseperable from our colonial and State history, and to other great families known in the history of the State. But their own splendid talents and unequaled learning went far beyond family influence in giving the fame they justly won.

Without family influence, without wealth, or any of the advantageous circumstances which the other Spencers possessed, Joshua A. Spencer became the equal of John C. Spencer at the bar, though he never rose to the political distinction of the former, who ranks among the statesmen of his times.

Joshua A. Spencer was the son of parents who did not possess the means to give their boy the education they felt his bright, clear, active intellect demanded, and he was left largely dependent on his own exertions to attain an education; but he had a strong, self-sustaining, progressive mind, with full practical mastery of all its powers. To this he added indomitable energy and unwearied industry. Though boasting no other alma mater than the common district school, whose instructions were supplemented by two years' attendance at a village academy, he became, by a course of the most devoted, intense study,a ripe classical scholar.

Like Daniel S. Dickinson, one of his eminent compeers at the bar, Spencer for a time devoted himself to the business of a clothier or cloth dresser, and then for another period of his life to occupation of a carpenter.

As "rare Ben Jonson," pursued the business of a bricklayer, with the orations of Cicero by his side,

so Joshua A. Spencer and Daniel S. Dickinson pursued their avocations with their books by their side." Spencer was born at Great Barrington, Mass., May 13, 1790. When in his eighth year his father became a resident of Lenox, then in the county of Chenango, N. Y., where the boy grew to manhood. That country was then almost a wilderness, and young Spencer began life amid the toil and hardships of the pioneers. But population rapidly increased, excellent common schools were opened, and many of the new villages of Central New York academies were founded. As we have already seen, the common school was the principal institution of learning attended by young Spencer. Very early in life he entertained a strong desire to become a lawyer. This desire was fostered and intensified by his success as a disputant in the village debating society.

When the war of 1812 broke out, Spencer entered the service of his country, with the rank of captain of volunteers. During the term of his enlistment-six months-he participated in many of the battles and skirmishes that took place along the northern frontier. At the expiration of his term of service he returned, having won the reputation of a brave and efficient officer.

As there was no opportunity for him to pursue the study of law he continued his occupation, frequently in the meantime conducting causes as counsel in justices' court, until he was twenty-five years of age. About that time an older brother, Ichabod Spencer, opened a law office at Lenox, and Joshua A. Spencer entered it as a student. After the protracted clerkship required of legal students in those days he was called to the bar and began at once a practice that led to the distinction he attained in his profession.

After practicing several years at Lenox he removed to Utica, N. Y., taking his place at the Oneida bar, then, and always one of the most brilliant and learned in the State. The rapid rise of Spencer to distinction at such a bar attests his abilities as a lawyer. Without any attempt at a description of his professional career, we may be permitted to give some of his characteristics as a lawyer and a man.

In some of his traits he resembled John C. Spencer. They were both great lawyers, and possessed in an equal degree all the resources of accurate and extensive legal learning. As was said of Canning and Lord Dudley, they differed rather in the degree to which habit and accident had fitted them for the actual business of the bar, than in the strength of their understanding and reasoning powers. Joshua A. Spencer was the most powerful declaimer, had the sharpest wit, the most original fancy. John C. Spencer's reasoning was like sharpened, well-tempered steel, cold and cutting. He never made any attempt at humor or witticism, and was singularly vulnerable to the sarcastic attacks of an opponent. He followed an argument with more sustained acuteness than Joshua, but the latter possessed a skill in statement which often disposed of the matter in dispute before his opponent was aware that his flank was turned. His thoughts were rendered strong by his immense reading, and his language was always forcible. Both Spencers saw a case in all its bearings, understood its weakness and its strength. John C.Spencer understood how to illuminate what was dark or doubtful in a case by "throwing upon it a condensed light. He analyzed an opponent's argument with mathematical precision, resolving all its propositions into its elements, and then testing them by first principles."

The faculty of combining facts with feeling and thought, the promptitude of recollection, with the power of comparison and selection, belonged to Joshua A. Spencer-qualities constituting the greater part of

what is called genius. John C. Spencer was, as we have said, a politician and statesman possessing extraordinary administrative abilities. He had a national reputation for strength, energy and recordite thought as a political and legal writer. But the political arena had few attractions for Joshua A. Spencer. He never envied or emulated those who, like actors in a drama, are permitted to appear in character for a brief period and then, compelled to retire behind the scenes to give place to another.

He firmly believed in the principles and policy which rendered the Whig party formidable. When that party was dissolved, he remarked that it had gone into the world's history, with the reasons for and against it, rendered by great statesmen-patriots for all time, all circumstances and all emergencies.

In the autumn of 1845 Mr. Spencer was elected to the State Senate from the then Fifth Senatorial District. His well-known ability gave him prominence in that body, where many conspicuous instances occurred exhibiting his personal weight and influence as a legislator. That Senate, the sixty-ninth, was distinguished by members whose abilities and learning raised them to the ranks of statesmen. Among these we name Samuel Young, of Saratoga, whose long, useful and brilliant career as a jurist, legislator, orator and scholar is one of the brightest ornaments in the history of the State and nation.

Spencer's capacity for legislation appeared in all his Senatorial career. He was invaluable in the committee and on the floor. Strength of conviction, strength of purpose, strength of method, strength of logic and of statement were qualities with which he was liberally endowed. As chairman of the Judiciary Committee, his duties were onerous. His reports and legislative documents, although they do not exhibit that grasp of

thought, power of analysis, and facility of expression found in his legal arguments, are yet productions worthy of the Senate of the State of New York.

As a speaker at the bar or in the Legislature his manner was peculiar but effective. In nothing did he emulate the unrivalled oratorical powers of Samuel Young. The contrast between these men as speakers was striking. "The first had passion, fire, impetuosity and clear ideas. The latter depended on reason and learning alone, and yet when in full career held the attention of his audience with as firm a grasp as his more brilliantly eloquent rival."

But it is as a lawyer that we most revere the memory of Joshua A. Spencer. His legal career appears best and most conspicuously in the reported cases adjudicated in our State and Federal courts. The lawyer and the student, in pursuing their studies, are surprised to find in these reports such various memoranda of Mr. Spencer's labors. They find his arguments in the old, ingenious and artificial rules of special pleading, both at law and equity. They find evidence of his learning and subtle distinctions in his construction of the law of real property, as he traces, with the research of Fearne, Sugden and Preston, the laws of landed interests, "through numberless and bewildering cases, to their sources in the obscure recess of the medieval law." They find the same evidence of his learning and his labor in commercial law. TurnIng to the great cases of McLeod, of Ruloff, of Hazleton, Parkhurst, Green and others, in which he appeared for the defense, his knowledge of criminal law and of his research is strongly exhibited. "What he read did not remain with him a mere accumulation of knowledge, but became a part of his mental nature, storing and strengthening his mind without impairing its originality."

The self-possession and native dignity of Mr. Spencer never deserted him. His was a flexible dignity. Sometimes it had the impressiveness of Choate; at

others, the playfulness of Wirts; and then the severity of John C. Spencer. An instance of Mr. Spencer's severe dignity occurred on the trial of McLeod, before Judge Gridley, in July, 1841. Before commencing his address to the jury, he submitted certain legal propositions to the court, to one of which the judge replied with some warmth: "There is nothing in this point, Mr. Spencer, nothing at all; and I am surprised that you press it." A slight frown lowered for a moment over Spencer's face, and drawing himself up to the full height of his fine figure, he said, with impressive dignity: "The court will do well to enlighten itself on that point before charging the jury." Judge Gridley, who always placed justice and the right before pride of opinion, after due reflection, informed the jurors in his charge to them that his first impressions on the point were wrong, and that the counsel was right. Mr. Spencer's private life was in harmony with his public life. While his talents, industry and erudition produced admiration, his virtues as a private citizen, bis exemplary consistency as a Christian gentleman, secured for him general esteem and confidence. The hold which domestic and social ties had upon him were among the pleasing traits of his character. Mr. Spencer died at Utica April 28, 1857.

Mr. Spencer was United States district attorney for the Northern District of New York under Harrison and Tyler. In the spring of 1848 Mr. Spencer was elected mayor of the city of Utica. L. B. PROCTOR.

CAPITOL, ALBANY, Feb. 9, 1887.

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Judgment affirmed, with costs-Bessie J. Cumming, an infant, respondent, v. Brooklyn City Railroad Conipany, appellant; Ellen Tilyou, appellant, v. Town of Gravesend et al., respondents; Peter A. Tilyou v. Same; Mary Byrne, an infant, etc., respondent, v. New York Central and Hudson River Railroad Company, appellant; Hiram Smith et al., respondents, v. City of Rochester, appellant.-Judgment reversed, new trial granted, costs to abide the event--Mary J. McKinney, an infant, respondent, v. Grand Street, Prospect Park, etc., Railroad Company, appellant.Appeal dismissed with costs-In re Argument of L. Christian Meyer.-Motion for reargument denied with costs-In re Estate of Hood; Jones v. Jones; In re New York Cable Railroad Company.-Motion for reargument denied, with $10 costs-Lammer v. Stoddard: Gardner v. Mead.-Motion to dismiss denied with costs-Granville v. New York Central & Hudson River Railroad Company.-Motion to dismiss. Motion to dismiss the appeal from the order refusing to grant a new trial granted with costs. Motion to dismiss the appeal from the judgment also granted, with costs, unless the sureties on the bond of appellant shall justify, if required by the respondent, and pay $10 costs of the motion, in which case the motion to dismiss the appeal from the judgment is denied-Emmerich v. Heferan. -Motion to dismiss. Granted with costs-In re Bull.- Motion to put on for day certain granted without costs-Mayor, etc., v. Starin.

NOTES.

Cruelty to animals-when a railroad neglects to "protect its frogs."

Why do lawyers always lie on their left sides? Because the law will not permit them to sleep upon their rights.

The Albany Law Journal.

ALBANY, FEBRUARY 19, 1887.

CURRENT TOPICS.

ENATOR WEMPLE nas introduced in the Sen

SEN

ate of this State a very stringent bill for the regulation of marriages, providing for record, fines, penalties, etc. The bill starts off with saying that "no persons shall be joined in the bonds of marriage," etc. Now if this means that no ceremonial marriage shall be celebrated without conforming to the bill there is no objection to it. But if it means that no common-law marriage nor any ceremonial marriage not so celebrated shall suffice to make a valid contract of marriage, we are unalterably opposed to it. The mischiefs resulting from such a change in our law would be far greater than those at present existing. Probably Mr. Wemple intends to effect this change. If so, why does he not say SO that no marriage shall be valid for any purpose unless celebrated thus and so? As the bill stands it does not clearly say that, and there will inevitably be contention over the meaning. Mr. Wemple would require consent of parents to the marriage of male minors and of girls under eighteen, and perhaps there is no objection to that. do not believe in the parental State policy of enacting that adults shall not become husband and wife without getting a license, going through a ceremony, paying fees, etc. It is an intolerable interference with the personal rights of people old enough to judge for themselves and make their own contracts. The sticklers for the sanctity of the common law certainly cannot approve Mr. Wemple's bill unless it is clearly restricted to the regulation of ceremonial marriages. A billis pending in the Assembly to change the age of legal consent to eighteen and sixteen years, and ought to pass.

But we

189; 34 id. 391, 508; 54 Am. Rep. 126, and note, 135.

Mr. Edmund H. Bennett treats the subject of National Divorce Legislation in The Forum. He laments the diversity of causes for divorce in the different States, but he thinks, and rightly, that there is no cure except by congressional legislation. It cannot be expected that there ever can be any compromise by State legislation of the difference

between the strictness of New York and South Carolina and the laxity of Connecticut and Indiana. Of course he concedes that national legislation can only be made effectual by a constitutional amendment, but he thinks it easier to persuade twentynine States to amend the Constitution so as to secure uniform laws by an Assembly in which every State is fully represented, and has a direct voice, than to induce thirty-eight Legislatures separately to enact a uniform law originating and matured in some other Assembly in which they have no part or lot." Easier, no doubt, but probably impracticable, at least, until after years of agitation and discussion. Our national composition is so mixed and various, and the prejudices of race and caste are so inveterate, and the pride of State is so high, that we despair of any present amelioration on this subject.

A committee of the New York City Bar Association, composed of Messrs. E. Ellery Anderson, James C. Carter, Charles C. Beaman, Wheeler H. Peckham, Clarence A. Seward, Clifford A. Hand and Edward K. Jones, have prepared a memorial to Congress in relation to the salaries of the Federal judges in this State, with a series of resolutions unanimously adopted by the association. The practical resolution is as follows: "Resolved, That it is the sense of this association that the judge of the

Circuit Court of the United States for the Second Circuit should be provided with and receive a salary of at least nine thousand dollars per annum, with an additional allowance for traveling and other expenses of at least two thousand dollars per anThe famous case of Thorogood v. Bryan is at num, and that the judge of the District Court of length overruled. The London Law Journal says: the United States for the Southern District of New "After thirty-eight years' criticism the doctrine of York should be provided with and receive a salary Thorogood v. Bryan, 18 L. J. Rep. 336, which, of at least seven thousand dollars per annum, and familiarly illustrated, is that a man on an omnibus that the judges of the District Courts of the United has his driver's negligence attributed to him in any States for the Northern and Eastern Districts of collision with another omnibus, has fallen to the New York should each be provided with and reground by the decision of the Court of Appeal, un- ceive salaries of at least six thousand dollars per less, as is not likely, the House of Lords should set annum." We heartily assent to this. The present it up again. From Baron Parke's quare in his copy salaries are unreasonably small. They are smaller of 'Eighth Common Bench,' which the research of than a police justice in the city of New York gets. Lord Esher has unearthed, to the decision of the The memorials urge the great expense of living, esSupreme Court of the United States in Little v. pecially in that city, and the unquestionable capacHackett, reported in these columns on May 15th last, ity of these judges to earn much more money at the the doctrine has over and over again been disputed. bar. They say, most justly, that "there can be no It is now authoritatively overruled, and the agree- doubt that the salaries at present paid are totally ment on the subject of English-speaking lawyers inadequate for the decent support of a reputable will probably be gratifying across the Atlantic, lawyer, and the insufficiency is disparaging to the where they led the way." See 33 ALB. LAW JOUR. I dignity, and consequently to the usefulness of the

VOL. 35- No. 8.

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