A married woman who prosecutes an action for divorce is placed in a peculiarly unfortunate position after the court have adjudged that she is entitled to the relief demanded, but before judgment absolute has been entered. The London Law Times says: The decision of the Court of Appeal in Norman v. Villars, on the 21st June, ought to have the effect of calling the attention of the legislature to a very serious defect in the law. The plaintiff, Mrs. Norman, had been petitioner in a suit for dissolution of marriage, and had obtained a decree nisi, which was afterward made absolute. After the decree nisi, but before it was made absolute, the defendant wrongfully seized goods which had been purchased by the plaintiff out of money which she had received partly under a decree for alimony, partly from her friends, and partly under her marriage settlement. The plaintiff sued for the wrongful seizure, but was met by a plea that at the time of the trespass she was a married woman, and on that plea the defendant was successful in the Court of Appeal, the court holding that notwithstanding the decree nisi, the plaintiff was a married woman, and subject to all the disabilities of a married woman until the decree was made absolute, and therefore she could not maintain an action for the wrong done to her. No doubt this decision is fully warranted by the present state of the law, and indeed it is difficult to see why the court below decided otherwise, for unless there is some enactment which either expressly provides that a married woman after a decree nisi for dissolution of marriage may sue as a feme sole, or has the effect of changing her status, so as to make her a feme sole from the date of the decree nisi, she remains a married woman, and no such provision appears to exist. But it would probably be beyond the power of the most ingenious intellect to find a single reason founded on justice, or even on policy, for the law as it now stands. After a decree nisi has been pronounced the woman is deprived of all the advantages of married life, and it is hard that she should still remain subject to its disabilities. It is not likely in a case of this kind that the husband will be willing to join in the action for the wife's protection, and even if, as was suggested by the Lord Chancellor in giving judgment, the wife should obtain an order from a court of equity to allow her to use the husband's name, this is a poor substitute for a direct remedy by action in her own name, and in certain cases might cause hardship to the husband. Unless she can get such an order as suggested, she is practically an outlaw. The present law is evidently the result of an oversight. Under the first divorce act (20 & 21 Vict., c. 85, s. 31), the effect of a decree was at once to dissolve the marriage, but when it was provided by 23 & 24 Vict., c. 144, s. 7, that every decree for a divorce should be a decree nisi in the first instance, to be afterward made absolute, nothing was said as to the status or rights of the woman during the intermediate period. Surely it would be easy for the legislature to provide a remedy, as has been done in the case of a woman who has obtained a protection order or a decree for a judicial separation.

A recent cable dispatch says that the preparations for the annual conference of the Association for the Reform and Codification of the Law of Nations, to be held at Antwerp, August 28, are actively going forward. The conference will hold its sittings at the Hôtel de Ville. The inaugural meeting will take

place on Tuesday, August 28, at 11 A. M., and the sessions will continue till September 1. The members of the conference will be received by the Burgomaster of Antwerp and a reception committee of prominent Belgians, including MM. Th. Engls, Ed. Van Pezborgh, Fred. Delvaux, G. Berdolt, and Th. Callaert. The following subjects will be discussed at the conference: The obligation of treaties; the doctrine of continuous voyage as applied to the trade of neutrals; reforms in international law, from the point of view of neutrals and in the interests of peace; collision at sea; the extradition of criminals; intercourse between Christian and non-Christian peoples; bills of exchange; general average; foreign judgments; patent law; copyright; international tribunals. The association now embraces members from more than twenty countries, including Great Britain, France, Germany, Austria, Russia, Turkey, Spain, Italy, Denmark, Belgium, Norway and Sweden and the United States.

The Superintendent of the Insurance Department in this State is disposed to enforce strictly the provisions of Laws 1877, chapter 241, entitled "An act to prevent the making and publication of false or deceptive statements in relation to the business of fire insurance." In a circular issued August 6, he says: "First. All signs in use at the date of this circular letter representing amounts not entirely available for the payment of fire losses must be removed. Second. All signs, cards, blotters, letter sheets, envelopes, policies, certificates of renewal, advertisements, public announcements, etc., etc., purporting to set forth in any manner the financial condition of a company and issued or circulated after this date, must contain at least three items, viz.: Assets available for fire losses, $; capital stock paid in, $; net surplus (on the basis of total assets, minus total liabilities includ

ing capital), $—. Provided that companies may state in a single item, restricted to policies and certificates of renewal, the amount of capital at present authorized by their charters. The items given above to correspond with the last verified statement filed with the department. Third. Signs issued and placed in use after date must be changed when the statements filed hereafter show less or more liabilities, or both, than is exhibited by statements now on file."

At the Social Science Congress, to be held at Aberdeen, Scotland, in September, the following special questions are appointed for discussion: International Law Section. 1. Whether the jurisdiction of a nation, civil and criminal, over the seas adjoining its territory, ought to be general or limited, and if limited, to what extent. 2. Whether a prior bankruptcy in one country ought not to carry the right to movables all over the world, as against a subsequently declared bankruptcy in another country. Municipal Law Section. 1. Whether further legislation is not desirable to prevent or remedy the frauds committed by promoters of companies. 2. Whether, and to what extent, it is expedient and practicable to alter or control by legislative enactment, contract between landlord and tenant. Repression of Crime Section. 1. Is it desirable to form an intermediate industrial school for the preparatory training of boys for service in the army, as recommended by the committee of the War Office, November, 1866? 2. What is the best kind of labor for prisons and reformatory schools: (a) In relation to the prisoner; (b) In relation to the labor market? 3. Can any better measures be devised for the prevention and punishment of infanticide?

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

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The Albany Law Journal.

ALBANY, AUGust 18, 1877.

CURRENT TOPICS.

SELECT committee of the House of Commons charged with the investigation of the condition of the law regulating the obligation of masters for injuries happening to their servants in the course of service, have made a report, setting forth what the committee understands to be the existing law, and suggesting that no alteration therein be made. The committee gives as a reason for its suggestion the remarks of the court in Farwell v. Boston and Worcester R. R. Co., 4 Metc. 49, that "where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much upon the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the other, can give notice of any misconduct, incapacity or neglect of duty, and leave the service if the common employer will not take such precautions and employ such agents as the safety of the whole party may require. By these means the safety of each will be much more effectually secured than it could be done by a resort to the common employer for an indemnity in case of loss of life by the negligence of each other." The result reached by the committee seems to be generally approved, but the London Law Journal complains because it went to America for its reasons, when, according to the Journal, it might have found them at home in the cases of Priestly v. Fowler, 3 M. & W. 1, and Morgan v. Vale of Neath Ry. Co., 35 L. J. Rep. Q. B. 23. The Law Journal, in the same connection, intimates that the law in Farwell v. Boston and Worcester R. R. Co. has had something to do with causing the recent railroad strikes here, a remark which indicates the feeling underlying the criticisms made upon the report of the committee. The committee recommend, in conclusion, that an act of Parliament be passed, stating in clear and precise terms what the law now is, the grounds of such recommendation being that, at present, the whole matter is left to the common law, which is a sealed letter to the great majority of the public, and, secondly, that the law has been gradually developed by the ingenuity of the judges to an extent which they themselves hardly contemplated, and the working classes believe that their rights have thus been withdrawn from them without their knowledge, and without the power of protest or defense.

VOL. 16.- No. 7.

In our notice last week of the unrepealed sections of the old code, there was an omission in our list of such sections caused by an error of the types. In addition to those given, sections 428 to 468 inclusive, should be named. The unrepealed sections are then as follows, all sections mentioned being included: sections 1 to 8, 30 (subd. 2, 10 and 11), 52 to 71, 111, 112, 118, 132, 136, 166, 167, 206 to 217, 224, 243, 244, 256 (in part), 261, 277, 284, 292 to 309, 311 to 322, 351 to 371, 375 to 381, 427 to 469, 471 to 473.

The strikes, with their resulting mobs, having caused a great destruction of private property, the interesting question now arises, who is to settle the bills? Judge Dillon, in his treatise on Municipal Corporations, § 760, says: "Public or municipal corporations are under no common-law liability to pay for the property of individuals destroyed by mobs or riotous assemblages, but in such case the legislature may constitutionally give a remedy." This enunciation of the law is sustained by numerous decisions. See Western College v. Cleveland, 12 Ohio St. 375; Prather v. Lexington, 13 B. Monr. 559; Ward v. Louisville, 16 id. 184; Cheany v. Hooser, 9 id. 330; In re Pennsylvania Hall, 5 Penn. St. 204; Fauvia v. New Orleans, 20 La. Ann. 410; Baltimore v. Poultney, 25 Md. 107; Martin v. Mayor of Brooklyn, 1 Hill, 545; Underhill v. Manchester, 45 N. H. 214; Buttrick v. Lowell, 1 Allen, 172; Darlington v. Mayor, 31 N. Y. 164. But statutes were made at an early period of English history, recognizing the principle that the local government ought to respond to an injured party for his loss occurring through the inefficiency of the means adopted by such government to preserve the peace. The statute of Winton or Winchester, about the year 1285, provided a remedy against the hundred, county, etc., in which a robbery should take place, for the damages caused thereby, to be recovered by the party robbed in an action against any one or more of the inhabitants. This statute was re-enacted (28 Edw. III, ch. 2) and an amendment was made (27 Eliz., ch. 13, § 2). The famous Riot Act (1 Geo. I, chap. 5) was passed by Parliament in consequence of the tumults attendant upon the accession of that king to the throne. This gave a right of action against any two inhabitants of a hundred, city or town for damages done to buildings by any persons riotously assembled. This was amended by statute 8 Geo. II, chap. 16, and the entire previous legislation was consolidated and rendered efficient by a statute passed in 1827. In this country statutes exist of similar tenor with those in force in England. In New York (Laws 1855, chap. 428), it is provided that the city or county in which the property destroyed is, shall be liable to an action by the loser; and in Pennsylvania the act of May 31, 1841, § 7, gives a like remedy. Acts of a similar nature have been passed in Louisiana,

Maryland, Kansas and other States. See, upon the subject of the general obligation of the government to secure protection to the property of individuals, which is the foundation of legislation of this character, Locke on Civil Government, ch. 9, § 131, ch. 7, 87; Sidney on Government, ch. 1, § 10, ch. 2, § 1; Calhoun on Gov't Works, vol. 1, p. 52; Talbot v. Jasen, 13 Dal. 133; Brougham Polit. Philosophy, vol. 1, p. 39; Lieber on Civ. Liberty, 83.

Our State governments, or most of them, have a peculiar sensitiveness about being sued even in their own courts, it being believed that for a State to be prosecuted for claims against it, as an ordinary individual, would somehow or another detract something from its dignity or its independence. Yet in the transaction of its business it is necessary for the State to make contracts or take the property of individuals, and in either case there is a possibility that a dispute between the State and the interested individual may arise and an adjudication be necessary. This fact is recognized by legislative bodies, and to provide for the disposal of contested matters special boards are usually created which hold trials, and determine the rights of the parties. These boards are governed only by such rules as the statutes impose and they themselves make. In reference to pleadings, proceedings and the admission of evidence, the bodies mentioned are the final judges, and in case of error or partiality the party wronged has no redress. It would be better as we look at it, to have all disputes between the State and individuals submitted to the arbitrament of the ordinary courts. There would be no more danger to the interests of the State in such a course than in the ones now in vogue, and private rights would be much better protected. A requirement of security for costs as a condition precedent to prosecuting a claim against the State would cut off vexatious and speculative litigation.

The striking railroad employees, except in a few instances, where outside parties took control of the movement inaugurated by them, endeavored to so conduct their operations as not to commit any acts which would render them amenable under the law to any severe punishment. Thus, while freight trains were interfered with, great care was taken to avoid hindering trains carrying the United States mail; and in several instances where the destruction of railroad property was threatened by a mob, the striking employees defended such property. And as a rule the bands of rioters, although turbulent and noisy, abstained from overt acts of a serious character. The recent statute in this State in relation to tampering with railroad property was unknown to them, and most of the public first learned of its existence through its publication in the proclamation of the Governor. But the last thing that

ever could occur to any of the strikers would be, that they were by their acts guilty of a contempt of court. This, however, was the case in several instances, where the railroads interfered with were being operated by receivers, and the only rioters thus far punished are those who have been committed for contempt.

Judge Krekel, of the United States District Court for the Western District of Missouri, rendered a decision of interest, on the 13th inst., in habeas corpus proceedings in behalf of one Joyce, who has been for the past two years in prison for conspiracy to defraud the revenue. The prisoner was sentenced for successive terms upon separate counts of the same indictment, and has served the first term. The court held that when the prisoner was sentenced for one term, the power of the court was exhausted, and the subsequent cumulative sentence was therefore illegal and void; and as the prisoner had served out the first sentence, an order was entered for his discharge. The decision follows that of the Court of Appeals in the famous case of People ex rel. Tweed v. Liscomb, 60 N. Y. 559; 19 Am. Rep. 211. In the case at bar the United States District Attorney has taken an appeal to the Circuit Court, and from there it will in time go to the Supreme Court, where the matter will be finally settled.

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NOTES OF CASES.

the case of Hires v. Hurf, 10 Vroom (39 N. J. Law), 4, one Heritage, who was the owner of about 500 bushels of corn in bulk, sold 200 bushels of the same to defendant, who paid cash. The corn sold, which was not hard, was, by the agreement of the parties, to remain in bulk and undistinguished from the remainder, until it was hardened, and then it was to be weighed, measured and delivered by the vendor to the vendee. The contract was verbal, and there was no bill of sale or writing of any kind, and no statement as to whose should be the risk, and no fact but payment to indicate a purpose to make an immediate and absolute sale of the corn. Thereafter plaintiff, as sheriff, levied upon the corn upon an execution against Heritage, after which Heritage delivered 200 bushels of the same to defendant, and plaintiff brought this action to recover the same. The court decided that the title to the corn was in plaintiff, holding that where there is a contract for the sale of a certain quantity of goods in general, a smaller from a greater quantity in bulk, without a special identification of them, or an appropriation of them to the contract, it is an executory agreement, and the property does not pass until such appropriation is made, unless there is a clearly expressed intention to make the sale of the articles complete and absolute. See, as supporting the same rule, Scudder v. Worster, 11 Cush. 573, where 250 barrels of pork

The two volumes of Mississippi reports contribute but little. It seems, however, that reconstruction" is so far effected in that State that they have got to killing people down there in the regular oldfashioned way. In Barcus v. State, 49 Miss. 17, the evidence showed that Barcus shot at A with intent to kill, but missed him and killed B. The indictment, charging the shooting of B with intent to kill, was held not good. Barcus was "willin'," but made an innocent mistake. He will have another trial, however. Perhaps if he had been accorded another trial of the shooting he would have done better. There is a good note to this case. About the case of Turnipseed v. Hudson, 50 Miss. 429, there is nothing more remarkable than the plaintiff's name. The case involved the title to an office. The parties had agreed to abide the result of a primary election, which, as well as the principal election, resulted in the choice of Hudson, whereupon Turnipseed surrendered and Hudson took possession. Subsequently, the law under which the election was held was declared unconstitutional. It was thereupon held that Turnipseed was not estopped, but might re-plant himself.

In Texas, if one is accused of horse-stealing, it will not answer to try him with a "baker's dozen " (Bullard v. State, 38 Tex. 504), and if murder is the charge, it is all wrong to have nine on the jury who do not understand English. Lyles v. State, 41 Tex. 172.

In Kentucky, in Graves v. Lebanon Nat. Bank, 10 Bush, 23, defendants became sureties on the cashier's official bond in consequence of the directors' published statement of the affairs of the bank, by which they appeared well managed. The cashier was, at the time, a defaulter, which the directors might have learned by slight care. Held, that defendants were not liable. Kentucky has a decent respect for the dead. Thus, in Louisville v. Nevin, 10 Bush, 549, it is held that a cemetery will not be sold to satisfy a lien for the improvement of an adjacent street.

The case of Rucker v. Donovan, 13 Kan. 251, has a very elaborate note on the subject of stoppage in transit. It seems that the usurer has progressed as far west as Kansas; for in Clark v. Spencer, 14 Kan. 398, it was held, that where the plea of usury had been withdrawn in consideration of postponement, it could not be reinstated.

Vermont leads off with a Sunday case, Johnson v.

Town of Irasburgh, 47 Vt. 28, holding that where the statute forbids traveling on Sunday, except in cases of necessity or charity, there must be an actual existence of the excuse; mere belief in it is not sufficient. In this case it was left to the jury to say whether the journey was necessary to keep fish from spoiling. In Wiley v. Bank of Brattleboro, 47 Vt. 546, it was held that national banks are not liable for special gratuitous deposits stolen from them. This case is approved and followed in Ocean Bank v. First Nat. Bank, 60 N. Y. 278.

The New York cases are quite important, and although familiar to the lawyers of our State, yet a few notes may be useful to those of other States. In Lowery v. Western Union Telegraph Co., 60 N. Y. 198, the defendants received a message for transmission, asking the plaintiff for $500. By negligence of defendants the figures were changed to $5,000, which the plaintiff sent, and the receiver absconded with it. Held, that defendant was not liable, its negligence not being the proximate cause of the loss. In Cesar v. Karutz, 60 N. Y. 229, a landlord was held liable for leasing premises which he knew to be infected with small-pox, and failing to notify the tenant of the fact, and from which the plaintiff contracted the disease. The landlord's secretiveness cost him $1,500. In Hale v. Patton, 60 N. Y. 233, a mortgage, specifying no place of payment, was conditioned to be due if any installment of interest remained due and unpaid for thirty days; eight days after the interest fell due, the mortgagee, a single man residing with his mother, left the State and remained absent during the residue of the thirty days; held, that the debtor was not bound to follow him, or tender the interest at the house of the mother, in the absence of any notice that she was authorized to receive it, but that his readiness and willingness to pay the interest in the State was effectual to save the forfeiture. In Hartnett v. Wandell, 60 N. Y. 346, it was held, where a testator had appointed his wife executrix, and requested "that such male friend as she may desire shall be appointed with her as co-executor," that this was a valid delegation of power to appoint both at common law and under the statute directing letters testamentary to be issued to the persons named in the will as executors. In Wheelan v. Lynch, 60 N. Y. 469, it was held that a price current list published in a newspaper is not evidence per se of market value. It is difficult to see how it could be evidence to any extent, for it is only hearsay. The celebrated Tweed case, involving the question of cumulative sentences, occupies thirty-four pages, and is a shining monument of the independence of the judiciary over the bluster of counsel and the clamor of the people. The decision by the Commission of Appeals, in Mitchell v. Reid, 61 N. Y. 123, that the renewal of a lease taken by one partner in his own name during the partnership term,