their destination, and that he could not by any means available to him carry the goods or procure the goods to be carried to their destination as merchantable articles, or could not do so without an expenditure clearly exceeding their value after their arrival. The Jupiter T., an Austrian general ship, was on a voyage from Singapore to New York wrecked on a rock off Cape Padrone about 800 yards from the mainland and about 50 miles in a direct line from Port Elizabeth, the nearest place of importance. She contained a cargo consisting partly of pepper and partly of slabs of tin. The master and crew got ashore the next day. A survey of the ship was made from the shore only, after which the master, acting bona fide and on the advice of the Austrian consul at Port Elizabeth, who with other persons had come to Cape Padrone, sold the ship and cargo as they stood jammed on the rock, by auction. Neither the owner of the ship nor the owner of the cargo had an agent at Port Elizabeth, the master had no money at his command wherewith to hire men or vessels for salving the cargo, and he never went to Port Elizabeth or made any effort to procure funds to enable him, or attempted to induce others, to salve the cargo. The evidence was conflicting as to whether tenders would have been made for salving the cargo if the master had advertised for such tenders. Held (affirming the decision of Jessel, M. R.), that no such necessity was shown for the sale as to authorize the master to sell or make him the agent of the owners of the cargo for that purpose. See Idle v. Royal Exch. Assur. Co., 8 Taunt. 75; Read v. Bonham, 3 Brod. & Bing. 151; Transton v. Dent, 8 Moore's P. C. Cas. 419; Acatos v. Burns, L. R., 3 Exch. Div. 282. Ct. of Appeal, Nov. 30, 1880. Atlantic Mutual Insurance Co. v. Huth. Opinion by Cotton, L. J., 44 L. T. Rep. (N. S.) 67.

NEW BOOKS AND NEW EDITIONS.

THOMPSON ON HIGHWAYS.

Thompson's Treatise on the Law of Highways, including Ways, Bridges, Tunnels, Strays, Turnpikes and Plank roads. With an Appendix of Forms. By Charles H. Mills, Esq., of the Albany Bar. Third edition. Albany: Weare C. Little & Co., 1881.

THE legal writings of Mr. Thompson were marked

by clearness and conciseness in style and accuracy in the statement of principles. The fault of some authors of considerable reputation is that when they descend to detail they use language that does not quite express what the particular doctrine is and that is sometimes capable of two meanings. This is the result either of an indistinct idea in the author's mind of the principle treated, or of a timidity in making a statement so precise that if wrong there will be no chance of explanation. We have more than once in consulting elementary treatises found expressions that were as double-faced as the responses of the ancient oracles and which would fit almost any ruling that the courts might make in regard to the point treated. In Mr. Thompson's works nothing of this kind ever appears. He would not indite a statement until he was fully satisfied what was the correct rule; and where there was doubt by reason of conflicting authority he would set forth the existence of such doubt, and usually his own opinion of what was the better rule. The consequence was that his works met a ready recognition as practical expositions of the topics they treated, valuable alike to the lawyers, the students, public officers and all who had occasion to make use of them.

The first edition of the book before us was among the earlier of the productions of the author named, but it possessed all the characteristics of his later writings and became as soon as it was published a standard authority in relation to the highway law of New York.

This place it has kept ever since, although after its issue another work containing many excellencies in common with it made its appearance. (We refer to Cook on Highways, a new edition of which we understand will soon be issued.) The present edition has been prepared by a gentleman of ability, and the additions and changes made necessary by legislation and late adjudications have been interspersed through the text in a skillful manner that leaves unaffected the arrangement and to a great extent the language of the author.

The present edition contains the statutes passed as late as 1880 and the decisions of the courts of this State including 79 N. Y., 21 Hun, and contemporaneous reports. The book is well-printed and bound, but the matter is not as compact as it ought to be. Law books are a source of great expense to the practitioner, and no publisher is justified in increasing that expense in any degree by resort to padding. Large margins, double-leaded type and other methods by which a little reading is made to cover much space ought not to be tolerated in law publications, and we believe that publishers will find that such a method of increasing their profits will in the end entail loss.

XXIV KANSAS REPORTS.

This well-printed volume contains a good many cases of local importance, but only few of general interest. Among the latter we note the following: Turner v. Webster, p. 38-Where work has been done under a contract, the parties disagreeing in their understanding as to what the compensation was to be, the law awards reasonable compensation. Smith v. Rogers, p. 140- Where a step-father voluntarily assumes the care and support of his step-child, he cannot recover compensation for its board. Werner v. Edmiston, p. 147 — A verdict arrived at in pursuance of an agreement that each juror should name an amount and that the aggregate divided by twelve should stand as the verdict is illegal. State v. Wilson, p. 189- To render dying dec

larations admissible in evidence it need not be shown that the declarant stated that he expected shortly to die, but it is sufficient if this expectation appeared from the circumstances. Switzer v. Wilvers, p. 384-An authority to an agent to sell personal property does not imply authority to mortgage it. Herriman v. Shoman, p. 387-An attorney to collect has implied authority to receive nothing but money in payment. Fraker v. Little, p. 598- Where the accommodation maker of a note pays it in ignorance that it has been materially altered, he may recover the money so paid.

CORRESPONDENCE.

FILING POINTS.

Editor of the Albany Law Journal:

In the new rules there appears an addition to Rule 41 requiring the appellant to file his points eight days before the commencement of the term in the Supreme Court, First Department. This may be inconvenient, as the printed papers on appeal are not required to be served till the same day. Is there any good reason for the rule? And secondly, is the rule lawful? Section 17 of the Code of Civil Procedure declares that the convention of judges must establish rules of practice which shall be binding upon all courts of record except the court for the trial of impeachments and the Court of Appeals.

Respectfully yours,

NEW YORK, April 16, 1881.

LA ROY S. GOVE.

ADMISSION TO THE BAR.

Editor of the Albany Law Journal:

Will you be kind enough to answer this question for me and a great many other students? I am a student in a law office and have been for a year; but as yet I have not filed my certificate as provided by the rules of the Court of Appeals. Now, will it be sufficient for me to apply for admission to the bar if at the end of three years I make an affidavit that I have been clerking three years, or will it be necessary for me to file my certificate right away; if so, will my clerkship commence now or at the time when I entered the office? By answering same in LAW JOURNAL you will confer a great favor on a

Judgment affirmed with costs-Clark v. Howland; Conley v. Meeker; Van Riper v. Baldwin; Pennsylvania Coal Co. v. Blake; Van Dyck v. McQuade.Judgment reversed and new trial granted, costs to abide event - - Murray v. The New York Life Insurance Co.; Burdett v. Lowe. Judgment and order of General Term reversed and order of Special Term affirmed without costs-Fredenburgh v. Biddlecomb. Order affirmed and judgment absolute for respondent on stipulation with costs-The Susquehanna Valley Bank v. Loomis. Judgment and order reversed and new trial ordered, costs to abide event - Ockenbein v. Shopley. - Motion denied with $10 costs- Raymond v. Richmond. Motion denied without costs Betsinger v. Chapman; Vincent v. Newhouse; Richardson v. Draper.-Motion granted without costs- - Ireland v. Ireland. - Motion for reargument denied with $10 costs-Briggs v. Waldron; People ex rel. Jourdan v. Donohue; Mitchell v. Read. Orders of General Term and Special Term reversed, attachment of plaintiff in first suit vacated and motion of plaintiff in second suit granted with costs-Jacobs v. Hogan; Whitman v. Hogan.

SOME

NOTES.

COME strictures which we recently made on the typography of a western law book have roused the indignation of some of our Ohio friends, who have connected it with our opposition to the nomination of Mr. Stanley Matthews for the Supreme Court bench, and inferred that we hate all things western. This is an entire mistake. We have occasionally seen a wellprinted law book from other parts of the west than St. Louis, but our judgment is that generally they are not so well printed as they ought to be. We are quite willing to acknowledge that we do not know so much law as our western contemporaries, but on this point of printing we will not give in, for we have received a practical printer's education, and know all about the art. We know when a book is ill-printed, and why it is so. If there is clay in the paper, or the stereotype plates are executed with inferior materials, or the ink

is bad, or the press work uneven, or the register imperfect, or the type battered, we are quite apt to recognize it. If these imperfections exist why should we not speak of them? Indeed, is it not our duty to do so? And why should such speaking be called a “fling at our western publishers?" It is quite true that we "cannot afford to be unjust to the people of the west," but we think we can "afford" to tell the truth about their law books when they ask the profession to buy them, and we are going to do it whether we can "afford" it or not. It is no part of our purpose to recommend any eastern rivals at the expense of the publishers of Cincinnati and Chicago. We would only recommend the latter to have their printing done in St. Louis, or do it better themselves than they are in the habit of doing. And when these western friends say they can do as good printing as is done in the east, we are not prepared to deny it, but we simply say, then do some of it.

In Loeb v. Peters, 63 Ala. 243, the court exhibited an exact knowledge of book-keeping. Holding that the transfer of a bill of lading as mere collateral security for a pre-existing debt does not make the transferee a purchaser for value, they said: "Appellants, having only credited Munter & Brother on a debt previously due from them, with the price of the tobacco, have nothing more to do, in order to get even, than to debit them with the same sum, for the non-delivery of the goods in consequence of the defect in Munter & Brother's title."

The will of the late Mr. Baron Cleasby is another instance of the fatality which seems to attend the wills of eminent judges and lawyers. The testator, it appears, had only given the trustees power to retain "securities," which it was considered would not extend to certain investments of the testator. It is certainly most strange how exceedingly unfortunate lawyers have been in their testamentary dispositions. Mr. Serjeant Hill's will was so confused, that but for the respect due to the learned serjeant, it might not unreasonably have been declared void for uncertainty. The will of Sir Samuel Romilly was badly drawn. The wills of Chief Baron Thomson, Chief Justice Holt, Chief Justice Eyre, Serjeant Maynard, Baron Wood, Mr. Justice Vaughan, Francis Vesey, Jr., Mr. Preston, the eminent conveyancer, and Lord Chancellor Westbury, all became the subject of chancery proceedings. Chief Justice Saunders made a devise which puzzled his executors, who were all excellent lawyers. The will of Bradley, an eminent conveyancer, was set aside for uncertainty. The difficulty which arose from the loss of Lord St. Leonards' will is too recent to have been forgotten. But probably the most glaring mistake was made by a late master in chancery, who directed the proceeds of his estate to be invested in consols in his own name. - London Law Times.

The long lecture delivered by Mr. Justice Hawkins to Mrs. Fletcher when passing sentence in what is known as the Spiritualist case, may have a salutary effect upon public morality; we, however, are disposed to doubt it, and we heartily deprecate judicial discourses of this nature. Such discourses are the more to be deprecated where jocularity has been the prevailing characteristic of the trial, the jokes not being by any means monopolized by the bar or the witnesses. A prisoner incurs a well-defined punishment by committing specific crimes. This is all that he ever contemplates. To be scolded and discoursed upon by the judge may in some cases be a severe addition to the statutory punishment, and where the prisoner is a woman the severity of this additional punishment may be very great. London Law Times.

which Cicero advises the forensic orator to garnish his narration, says: "As an advocate he was about as false and about as true as an advocate of our own day. That he was not paid, and that our barristers are paid for the work they do, makes, I think, no difference either in the innocency or the falseness of the practice. I cannot but believe that hereafter an improved tone of general feeling will forbid a man of honor to use arguments which he thinks to be untrue, or to make others believe that which he does not believe himself. Such is not the state of things now in London, nor was it at Rome in Cicero's time." This state of things will never be any different until we all arrive in heaven. The advocate however does not deal insincerely. An advocate very rarely, in London, or anywhere else, uses an argument which he believes untrue, for the simple reason that he believes his client's case and the arguments that he makes for it are right. The test of this assertion is the fact that after the heat of the strife is over, an advocate can seldom be found who is willing to admit that his defeat was just. He thinks that the opposite witnesses lied or were mistaken, or that the judge was mistaken in his view of the law, or that the law is wrong in itself. Advocacy blinds an advocate to the truth. The advocate generally shares the fervor, the zeal, the prejudices, the animosities, the want of candor of his client. As to arguments in respect to facts, the advocate is not understood as speaking his own convictions, even if he really is, or even if he says he is, but he is understood as speaking with his client's tongue, for him, and in his place. As to arguments based on law and precedent, it would be hard to discover a question in regard to which an advocate could not discover a respectable authority on his side, in one community or another, and even if he cannot, he is not to be censured for saying "the law is thus and so," which simply means, "I believe this is what the law really is and ought to be laid down." That the gravest, coolest, and most intelligent men, not lawyers, but historians, will draw contrary deductions from the same facts, and will dispute as to what are the facts from the same sources, is evidenced by this eulogy of Cicero by Mr. Trolloppe, and the recent life of Cæsar by Mr. Froude.

On this subject, Mr. Walter B. Hill, in an article in the Quarterly Review of the Methodist Episcopal Church, South, for April, 1881, speaks as follows on the duties and privileges of the lawyer: "His position is one of agency; such is his relation to his client, and this relation is fully recognized by the court. Universal experience has shown that VOL. 23.- No. 19.

I have pre

all the law on both sides of this case. sented to the court that view which, if I were judge, I would, after balancing both sides, entertain.' If he attempted to do this, he would not fulfill his duty to his client, which binds him to represent that client's side in the strongest light of which it is capable; and he would cease to be an efficient aid to the court, which, in order to arrive at the correct decision, expects and desires the counsel on each side not to take the place of the court, but to present their respective sides with their utmost skill. All this applies to the discussion of conflicting evidence before the jury. The position of the lawyer, in reference to his client, and to the tribunal before which he appeals, commits him to this, and only this: to do for his client what the latter could lawfully do for himself, if he acted in person; to urge those views of the law and the facts which arise in favor of the side which he represents." We have never seen the matter more simply, lucidly, and convincingly treated than in this extract.

In Mr. Trolloppe's interesting account of the trial of Verres, he refers to Cicero's denunciation of the judges. He says: "He would so appall these corrupt judges that they should not dare to acquit the

accused. This Actio Prima contains the words in which he did appall the judges. As we read them, we pity the judges." These judges, it must be remembered, were rather jurymen. To define the bounds of an advocate's duty or license in this matter in modern times is a delicate undertaking. We once heard an appalling denunciation by an advocate in a railroad case, of "railroad judges, who sit to try railroad cases, with free railroad passes over the party's road in their pockets." The judge On the other wisely took no notice of the remarks. hand, we once knew a judge to fine several respectable counsel, for writing him a respectful letter, asking him not to sit in a certain case, because he had once sat in it, and their client believed him to be prejudiced against him! But at all events, nothing is more unbecoming to our profession, and more deleterious to the influence and character of our judges, than the reckless, flippant, and generally baseless accusations which defeated counsel make out of court against the judges. We once knew a whole court — the highest in the State, if not the highest in the country – assailed and denounced in the newspapers, industriously and with costly elaboration, by a cross and venomous advocate who had been defeated by them, and who a few years afterward invited the same whole court to dinner! Even if these slanders do not reach the ears of the judges,

the result is demoralizing. Under the head of "Judicial Ethics," a correspondent writes us: "Any person of a thoughtful turn of mind who associates much with lawyers must certainly have observed how flippantly some of them are accustomed to speak of the judges before whom they constantly appear, and a foreigner might readily suppose, if he took the opinions of these lawyers, that the American judiciary was a very contemptible body of men. We have fallen into such a constant habit of disparagement of late, that an attorney who is always careful to remember what is due to the judge, out of respect to the office, is apt to be set down as an old fogy and far behind this age of progress. Do these grumblers take care themselves to obey rigidlyestablished precedent? Are they not sometimes guilty of forcing the law to gain a point of overlooking or disregarding an authority if it sets dead against them, rather than advising a client frankly

that he has no case? No doubt such a conscientious

course would hurt practice, but unquestionably it would help precedent. If the various bar associations would discourage in every way the present prevalent fashion of verbally assaulting the judges for opinions or decisions which do not happen to suit the views of the aggrieved attorneys, they will not have been formed in vain, and will confer lasting benefits upon the community at large. The practice in question is dangerous, because it is always unsafe for the ignorant to be led into the belief that the judges are corrupt and incompetent, and often induces the unlearned to take the law into their own hands, and attempt to obtain their remedy by force, a result which is especially to be deplored and guarded against by every means in our power. It cannot be doubted that there is a growing tendency toward the enforcement of rights by force, and that with very many the chief question is, to what extent dare I evade the law and escape punish

ment?"

The late judicial election in Wisconsin will be instructive to those who think the people are incapable of choosing their own judges, and that a proper choice can only be made through an elected agent. The official count shows that the total vote for chief justice was 179, 118, of which Judge Orsamus Cole received 177,522, the remaining 1,596 being cast principally for James G. Jenkins, democrat. For associate justice, 179,304 votes were cast, of which Judge John B. Cassoday received 177,553, and G. W. Cate most of the rest. Judges Cole and Cassoday, who are the present incumbents, ran on a non-partisan platform.

Mr. Field has submitted to the senate judiciary committee a list of amendments proposed to the general Civil Code, and designed to obviate the objections raised by the committee of the Bar Association of the city of New York. These amendments number twenty, and are thought to meet every objection in which there is any color of plausibility. They are submitted, not because the codifier deems them essential, but to evince his willingness to sub

mit his work to any fair or plausible correction or amendment.

The Washington Law Reporter says. "We feel assured the ALBANY LAW JOURNAL would detract

nothing from its high character or dignity by accrediting to the Washington Law Reporter opinions copied from its columns. The attention of the ed

itor of the JOURNAL is called to this matter in the best of good-fellowship." The Reporter then instances the opinions in State v. Perry, 22 Alb. L. J. We have no 513, and Murray v. Ager, ante, 332. objection to making public the fact that those opinions were derived from the Reporter, but we do not concede that it is a breach of what the Reporter calls "journalistic courtesy," to omit credit with the publication. We generally make our own headnotes and statements, and it has never been our custom, nor has it been the custom of any law journal in the country, to "credit" such matters. Opinions which we have paid for are copied by other law journals without crediting us, and we have never thought of finding fault. Frequently we do give credit, especially in our notes of cases, but we cannot undertake to do so in every instance. Original articles we invariably credit to the sources from which we derive them, but the opinions of courts are on a different footing. In copying an opinion, indeed, we generally have no assurance that it has not been copied by the very journal from which we derive it; although of course in the two particular instances cited, the natural presumption would be, as no doubt the fact is, that the Reporter was the first publisher, the cases being from the District of We do not see that the Reporter has any

Columbia.

cause to rebuke us.

In Mr. Strahan's senate bill, in regard to building in the city of New York, he proposes to have the Legislature of the State of New York enact that "all plastering mortar for the scratch coat shall have a sufficient quantity of long hair in it, and the lathing shall have openings not less than five-sixteenths of an inch between the lath." This is descending to extraordinary detail.

Assemblyman Strahan proposes to let married people be absolutely divorced, where they have lived separate, by agreement, for four years before the passage of this act, and since, without cohabitation, and with design always to live apart, where neither is dependent or has received support from the other, and there are no minor children. This is special legislation in the extreme. If such a law is advisable, why limit it to persons who have lived separate four years before the passage of the act? The thing smells "fishy."

NOTES OF CASES.

HE German Imperial Appellate Court has held

The editor and the publisher of a newspaper

guilty of publishing obscene writings for putting the following advertisement in their paper: "An