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points of practice; nor was he fond of a forensic display. Of a genial temperament, judicial cast of mind, and a retiring disposition, he had little sympathy with that excitement which many members of the profession delight in. Brougham added authorship to the three roads to success in England, namely Sessions, Special Pleading, and Miracle. Mr. Thompson, although possessed of an insatiable desire to render service in his profession to his country, was not disposed to spend years as a junior in search of practice, or to go through the grinding process of eating 'sawdust without butter.' However, had he directed himself to court work, there is little doubt that by his great perseverance, admitted ability, and manly character, he would have attained a high position at the Bar. But the crowning work of his life was the founding of the Albany Law Journal,' a publication of great merit, which has reached its twenty-first volume, and is circulated and read in America, Canada, Europe, Australia, and New Zealand. Mr. Thompson's power of separating the essential from the non-essential was great. Most cases turn on one point, and he seized that point readily. His criticisms were always impartial and able, and his labors contributed greatly to the cultivation of an improved tone in the profession. In his multifarious labors he has left a monument more enduring than brass and more lasting than marble. Although his life was short, the poet Bailey tells us that We live in deeds, not years.""

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In speaking of chief judge Foiger's admirable memorial of the late chief judge Church, the New York Daily Register, says: "This State has never before within judicial memory enjoyed such a coherent, homogenous and united tribunal as it has possessed in the Court of Appeals under its present organization; and these simple acts of remembrance of the dead chief judge give us a suggestive glimpse into the fraternal relations which have grown up in this association. The old Court of Errors was a shifting legislative body, probably never the same in two successive sessions, and always too large to be a court in the proper sense of the term. The first Court of Appeals was a kaleidoscopic body, in two orders of greater and lesser lights, or rather, we should say, of higher and lower ranks, the four permanent judges and the four shifting judges-called up year by year in routine from among the thirty or more judges of the Supreme Court-constituting two classes sometimes humorously designated as the regulars and the militia. It will readily be seen that this device, calculated to disseminate appellate experience and knowledge among the judicial districts at large, by the same measure detracted from the unity, consistency and elevation of the court, and hindered its ability, both in the immediate administration of justice and in the ultimate development of the law. The new court has, by virtue of the wise selection of the jurists composing it, the length of their terms, and the discretion with which its business has been conducted under the presidency of Chief Judge Church, shown the characteristic excellencies of a court as distinguished from other bodies and boards; and there is nothing more significant in the terse, quaint and touching words in which the new chief judge describes the bereavement of the profession than the characterization he thus gives to the counsel of jurists who have been associated together."

The St. Louis Globe and Democrat says: "Mr. Campbell O. Bishop appeared before Judge Thayer recently, and urged his motion for a new trial in the case of Peckham v. Garvey. It will be remembered that the defendant, Dick Garvey, the railroad ticket agent, was sued by the landlord of a fashionable hash house for a

month's board, and pleaded bed-bugs in bar. The room had been engaged for a month, but the lodger decamped the second day, because he went there to eat, and not to be eaten. He testified that the bedbugs preyed upon him worse than a guilty conscience, and he could not sleep. The jury gave the landlady a verdict for half the amount claimed. Mr. Bishop argued that the instructions were erroneous and the verdict ought to be set aside. He cited a number of English authorities in support of his motion, and one or two of them seemed exactly in point. The law, as laid down on the other side of the water, is that when a man rents a furnished room the landlord guarantees that it is habitable and wholesome. If his slumbers are disturbed by bed-bugs he has the right to abandon the premises without notice, and is not bound to pay any rent for the time he has tarried." The famous leading English case on this subject is Smith v. Marrable, 11 M. & W. 5. See 2 Alb. L. J. 3.

A correspondent of the ALBANY LAW JOURNAL protests against Mr. Field's new Civil Code, asserting "that it will injure our business. It makes the law too plain; too easily understood. Any man of common understanding can read it and know just what the law is. Now, if a layman wants to know what his rights are or what the law is upon any given subject, he has to apply to a lawyer who examines the statutes, the common law and the reports, and writes out an opinion or brief. This new Civil Code is a wholesale brief. The whole of the civil law is boiled down and so worded as to condense all the common law, statute law and decisions on the subject to date." Mr. Field must be endowed with a wonderful genius for codemaking if the adoption of his Code has the effect, in the long run, of doing away with, or even of greatly diminishing litigation. Codes, like other acts of the Legislature, may clear up some points to which special attention has been directed, but taking them as a whole, it is usually found that the courts and the lawyers have abundant occupation in finding out what the codifiers meant, and in applying the rules which they have laid down, to the varied business of life. This seems to be the experience of all Code-governed countries hitherto; nor do we imagine that an end to litigation is likely to be reached by any Code of the future. Canada Legal News.

A case has just been decided before Appeal Court at Metz, which shows how a lady's age is a matter entirely within her own control. Fraulein Catherine Mahl was engaged to a desirable partner, to whom she had imprudently declared her age at six years less than it really was. As soon as the moment arrived for producing the certificate of birth, she was aware that her little deception would be discovered, and she feared that the match would be broken off. She, therefore, took the liberty of altering the official document, so as to make it correspond with the statement she had already made. The ceremony took place, and the husband was duly united to a lady whom he believed to be quite a jeune ingénue. Unfortunately the certificate, in passing through some office, happened to be minutely examined by one of the clerks. The bride was charged with the offense of falsifying a public document, and condemned to spend, if not her honeymoon, at least three of the first months of her married life in prison. She had the courage to appeal from the sentence, and cause the case to be argued out before the court at Metz, which reversed the decision of the inferior tribunal, and acquitted the lady on the ground that she did not intend to commit an illegal act, but had been actuated only by "female vanity." — Irish Law Times. The question arises, could a woman be punished for perjury concerning her age?

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in question was read in the Senate and declared passed, just seventeen senators, the requisite number, being recorded in its favor. Senator Birdsall was one of the senators so recorded, but when the journal was read the following morning, he rose in his place and asserted that he did not assent to the passage of the bill, but having first voted aye, he had changed his vote before the call was completed and dissented from its passage. The Senate journal, so far as his vote was concerned, was an incorrect record, and the bill therefore actually received the assent of but sixteen senators, whereas the Constitution requires the assent of seventeen. To substantiate the matters of fact the affidavits of Senator Birdsall himself and Senator Jacobs, who occupied a position near him when the vote was taken, were presented, and counsel argued that the bill was unconstitutional. The same section of the Constitution (art. 3, § 15) provides that "the question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays entered on the journal." In People v. Supervisors of Chenango, 4 Seld. 317, 328, this latter provision was held merely directory, in the absence of any clause declaring an act void in default of its observance. The court also remark: "It does not stand on the same footing with the requirement of a certain number to form a quorum or to pass a bill. In the latter case there is a defect of power if the requisite number be not present or voting."

The legal nature of sleeping-car accommodations on railways was passed upon by the English Exchequer Division, on March 9, 1880, in Attorney-General v. London & North-western Railway Co., 42 L. T. (N. S.) 395. The statute imposes a duty of five per cent upon "all sums received or charged for the hire, fare, or conveyance of passengers on railways." The defendants, by certain night trains, run special "sleeping carriages," available only to first-class passengers, on payment of an extra charge. For each person using them there is provided, a couch six or seven feet long, a clean sheet, a rug or blanket, a clean pillow-case, a lavatory with water laid on, soap and towels, water-bottle and glass, a lookingglass and water-closet. Passengers using the sleeping carriages are not disturbed during the night, and the carriages on arrival at their destination are put upon a reserved siding, where the passengers can remain until the morning, when they are called VOL. 21, No. 24.

by a special servant who waits upon them with hot water, etc. For this accommodation a special extra charge is made and a special ticket issued by the defendants entitling the holder, on production of a first-class railway ticket covering the entire journey, to a berth in a sleeping carriage, if there be room, on payment of the extra charge; and if there be no room the extra charge is refunded. No one who has not already paid the first-class fare for the entire journey is permitted to use the sleeping carriages. The defendants resisted the Crown's claim for duty on the extra sums so received for carriage of passengers in the sleeping carriages, on the ground that they were not received or charged for conveyance on the railway, but were independent charges for, practically, "hotel accommodations," and were not liable to duty under the Railway Passenger Act. It was held that this position was untenable. Kelly, C. B., said: "Now what they provide is this: "For each person using such sleeping carriage a couch six and a half to seven feet long.' Well, that is only the adaptation by the company of a carriage to the use of a passenger desiring to lie down instead of sitting upright on his journey a process which is sometimes effected without any special contract at all on many railways and in many first-class carriages, in which a part of the seat is made to slide out from one side and unite itself with a part of the seat on the other side, and so to form room for a person to lie down. To say that this is not really an adaptation of the carriage to the use of invalids, or persons desiring to sleep in the carriage, while it still remains a railway carriage, only of a somewhat more accommodating description than if it had no such adaptation as that which I have spoken of, would be incorrect. It then goes on, ‘and a clean pillowcase,' etc. Now a pillow is only another word for a cushion, and cannot be said to be any thing different from that which constitutes part of the accommodation for which the passenger pays his fare. Then 'a lavatory with water laid on, and soap and towels, and a water-bottle and glass, and a lookingglass.' A looking-glass is placed in many carriages without any special provision whatever. These are all additional accommodations very useful to anybody travelling, and particularly to one likely to pass a night on the railway. They make a carriage more convenient, and more adapted to the use of a passenger desiring to sleep on the journey, but after all it is only a railway carriage better fitted up than the other carriages for that purpose." Hawkins, J., concurred, but thought the company might make an extra charge, not dutiable, for hotel accommodations of this sort while the cars were on the siding. He said: "I confess that I see no reason to distinguish this latter accommodation, and to say that it is not incidental to the travelling, any more than I should think of saying that the extra accommodation of a first-class carriage with cushions and curtains is not incidental to the conveyance because some people may travel by the second and some by the third class." "What they have in fact done is this; they say: 'If you, the passenger, will pay us for your conveyance at the increased rate demanded

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The London Law Journal says: "Some comment has been made by our lay contemporaries on a decision arrived at last week by the deputy stipendiary magistrate at Cardiff. The under boots' at a hotel was charged with stealing £25 from a commercial traveller. A £25 note was given by the prosecutor to the defendant to change. Instead of bringing back the change, the defendant disappeared and spent the money. He could not be convicted of larceny at common law in respect of the note, because he received it with the full consent of the

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behalf of the priest. In matters of faith and doctrine churches speak for themselves, but when property rights are in question, courts will interfere. The profession of a priest is his property, and a prohibition of the exercise of that profession by his bishop without accusation or hearing is contrary to the law of the land." The case was argued before five of the seven judges. Two judges dissented; and we are now informed that the chief justice, one of the three who concurred in the decision, filed a supplementary opinion, stating that in affirming the court below they did not pass upon the question as to whether the removal was or was not lawful; that the only part of the decree of the inferior court injurious to the bishop was the imposition of the costs upon him; that the imposition of costs in equity causes was in the sound discretion of the lower court and not the subject of review.

Meanwhile Mr. Stack had sued Bishop O'Hara for damages for unlawful removal, and the case was tried on the 12th of May last, resulting in a verdict for the defendant. It is said the jury agreed "with admirable promptness." The trial judge charged among other things as follows: "We say to you that under the law of the church governing both the plaintiff and the defendant, and governing their relations with each other, the bishop had not only the right, but it was his duty to remove the plaintiff for any cause which would be deemed sufficient to warrant such an act." "We therefore say to you as a matter of law, that if you find this plaintiff did not keep such memoranda or books of account as would enable him to make the statements required by the rules, and did not send annual statements to his bishop, such as are required by the rules, it was the right and it was the duty of the bishop to remove him, and for so doing the bishop cannot be held liable in this action. Did the plaintiff perform his duty, then, in these respects? If he did not he has no right to complain of his removal. When he neglected and refused to perform his duties — if you should find that he did so- he knew the law of the church required his removal, and he was bound to know that. The failure of the priest in the performance of his duty could not release the bishop from the performance of his duty. If you find the

prosecutor. He could not be convicted of larceny as a bailee, because there was no bailment, the prosecutor never intending to get back the note. He could not be convicted of embezzling the change, because he was not a clerk or servant of the prosecutor. This, we believe, exhausts the possible criminality of the man; and therefore, criticisms should be directed not to the decision but to the law, which has long been known to provide no punishment for this class of fraud." In Hildebrand v. People, 56 N. Y. 394; S. C., 15 Am. Rep. 435, the prosecutor handed to a bar-tender a $50 bill to take out ten cents in payment for a glass of soda. The bartender put down a few cents on the counter, and refused to deliver any more money. Held, larceny. The court distinguish Reg. v. Thomas, 9 C. & P. 741, where the prosecutor gave the prisoner a sovereign to go out and get it changed. That case seems to have been like the principal case. The New York case is supported by Reg. v. McKale, 11 plaintiff did neglect and refuse to perform his duty

Cox's C. C. 32.

In the case of O'Hara v. Stack, 20 Alb. L. J. 511, there now seems to be a sort of disposition, on the part of the courts, to "take the back track." If that case decided any thing, it decided what our head-note stated, namely: "A Roman Catholic bishop forbade a priest in his diocese to exercise any priestly function, and removed him from the church over which he ministered without assigning him any other. This was done without any accusation, hearing or trial. The priest received no specified salary, but derived an income from the rent of the pews in the church. Held, that the act of the bishop was unlawful, and a court of equity would interfere in

as we have stated to you, then the bishop had no alternative; he must remove him or do worse. This is the turning point in the case." We shall leave the Pennsylvania courts to find out what they think the law is, and also what they think they thought it

was.

The Vienna "Juristische Blaetter" reports an interesting decision by the Austrian Supreme Appellate Court, on the subject of enforcing foreign judgments. A firm in Messina, Italy, had sued a merchant residing in Vienna, Austria, in the Mercantile Court of Messina, on obligations payable at Messina. The court had taken jurisdiction as the forum contractus, had issued a summons and an alias summons,

and finally a citation to be served through the intermediation of the diplomatic agents. Then the court had given judgment by default (in contumaciam). The Messina firm sued in the Mercantile Court of Vienna for execution of said judgment. Austria has a treaty with Italy providing for execution of judgments of their courts. The court refused to execute the judgment on the ground that it was incumbent on the plaintiff to show the competency of the foreign tribunal, and also that the judgment was not clearly unjust, which the firm had failed to do. The objection to the jurisdiction of the Messina court was not waived by the defendant, by failing to appear and controvert it, as it did not appear that any of the citations had been served on him in time, nor that the proceedings were in conformity with the Italian laws. The intermediate appellate court said: "It is a general principle of a due administration of law, that the defendant must at least be given an opportunity to defend against the claim made against him, and as this principle was not observed in the case before us, the judgment rendered cannot be recognized as just." The Supreme Appellate Court affirms the decisions below.

IN

NOTES OF CASES.

́N Kincaid v. Hardin County, Iowa Supreme Court, April 22, 1880, 5 N. W. Rep. 675, it was held that a county is not liable to a private individual for damages sustained by him from the negligent or dangerous construction of a court-house, or from a failure to have its hall-ways lighted. This is mainly founded on the following from 2 Addison on Torts, 1298: "A plainly marked distinction is made, and should be observed, between municipal corporations proper, as incorporated villages, towns and cities, and those other organizations, such as townships, counties, school districts, and the like, which are established without any express charter or act of incorporation, and clothed with but limited powers. These latter political divisions are called quasi corporations, and the general rule of law is now well settled, that no action can be maintained against corporations of this class by a private person for their neglect of public duty, unless such right of action is expressly given by statute." The court said: "The ground upon which it is held that quasi corporations, such as counties, towns, school districts, and the like, are not liable for damages in actions of this character, is that they are involuntary, territorial, and political divisions of the State, created for governmental purposes, and that they give no assent to their creation, whereas, municipal corporations proper are either specially chartered or voluntarily organized under general acts of the Legislature." In Commissioners of Hamilton County v. Mighels, 7 Ohio St. 109, it was held that a county was not liable for an injury suffered by the plaintiff, who, when in attendance upon court as a witness, was precipitated into the cellar of the court-house in consequence of the negligent omission of the agents or officers of the county to guard or light a

dangerous opening leading into the cellar. In Bigelow v. Randolph, 14 Gray, 541, it was held that a town in Massachusetts, which had assumed the duties of a school district, was not liable for an injury sustained by a scholar attending the public school, from a dangerous excavation in the school-house yard, owing to the negligence of the town officers. To the same effect, Hill v. City of Boston, 124 Mass. 344; S. C., 23 Am. Rep. 332. In Eastman v. Meredith, 36 N. H. 284, it was held that a town was not liable for an injury to a person received by the giving way of the floor of a town-house at an annual town meeting, the building having been negligently and defectively constructed by those who built it for the town. The Iowa court has always held the same doctrine in respect to county bridges. Wilson v. Jefferson County, 13 Iowa, 181. To the same effect are Wood v. Tipton County, 7 Baxt. 112; Brabham v. Supervisors of Hinds County, 54 Miss. 363; S. C., 28 Am. Rep. 352; White v. County, 58 Ill. 297; S. C., 11 Am. Rep. 65, and note, 66. In the principal case, however, the court say that it is not necessary to go so far as the latter doctrine, for the building of court-houses is compulsory, while the building of bridges is optional.

In Nash v. Fugate, 32 Gratt. 595, a bond was signed by the principal obligor and a number of sureties, and there were several scrolls below the names of the sureties who sign it. In other respects the bond was complete and perfect on its face; but the sureties signed it and delivered it to the principal obligor, on condition that he should obtain additional sureties to execute it, before he delivered it to the obligor; but he violated the condition, and delivered it to the obligee, without obtaining additional sureties. The names of none of the obligors appeared in the body of the instrument. Held, the bond was binding on the sureties, unless the obligee had notice of the condition on which they executed it; and the fact that there were other scrolls to the instrument, to which no name was signed, was not sufficient to put the obligee upon inquiry as to the authority of the obligor to deliver the bond to him. The court, after observing that the precise case had never been decided in that court, proceeded as follows: "In the case before us, the names of none of the contracting parties are inserted in the body of the bond. It is signed by the principal obligor and nine others, claiming to be sureties. It is the joint and several obligation of all executing it. As to them, it is a complete and perfect instrument. There is nothing in its form or language to indicate that other persons were to sign it before it could take effect as to parties who have signed. Does the fact that there are scrolls to which there are no names render the instrument incomplete, or even tend to show an agreement that other parties were to sign, in order to give effect to the bond? It may be a circumstance to be considered, in connection with other evidence, showing that the obligee had actual knowledge of the agreement, but of itself is not sufficient to put him upon inquiry, or even to

create a suspicion of the existence of such an agreement. The scrolls may indicate that, at the time the instrument was prepared, the obligee required that number of securities, or that the principal obligor expected or intended to procure them. Sometimes the bond is prepared by the obligee himself, and sometimes by the principal obligor. Upon a contemplated loan of money or sale of property, quite as often as otherwise, the number of seals is purely accidental-attached to the writing simply with the view of procuring a sufficient number of obligors to make the security satisfactory to the obligee. That object is effected, not unfrequently, with fewer signatures than there are scrolls, and the obligee, being content with the security, accepts the bond without a suspicion that the principal obligor, in delivering it, is violating any agreement or transcending his authority. In the case of personal representatives, and other fiduciaries, as also commissioners for the sale of lands and the investments of funds under decrees of court, this sort of transactions are of frequent occurrence. Indeed, throughout Virginia the practice is most common among all business men of accepting such securities without a suspicion of any informality in them. It is impossible to foresee the inconvenience and mischief that will ensue if the courts should establish the doctrine that the mere existence of one or more seals upon a bond without names opens the door to proof of parol agreements or alleged agreements between the several obligors -- principal and sureties—which will invalidate the bond, as to such sureties, in the hands of an innocent holder. And it is worthy of observation, that the researches of counsel have not produced a single case sustaining their doctrine. See Williams v. Springs, 7 Ired. 384, and cases there cited." This decision is opposed to Guild v. Thomas, 54 Ala. 414; S. C., 25 Am. Rep. 703; and People v. Bostwick, 32 N. Y. 445; but is in harmony with the weight of authority. See note, 25 Am. Rep. 706; Cutler v. Roberts, 7 Neb. 4; S. C., 29 Am. Rep. 371. There can be no doubt that a bond not executed by all whose names appear on its face, and delivered on condition that it shall not be effectual unless executed by all, is void. See note, supra; Hall v. Parker, 37 Mich. 590; S. C., 26 Am. Rep. 540. A statutory bond, requiring two sureties, is not binding on one executing it alone. Cutler v. Roberts, supra.

In Stamm v. Dixon, Supreme Court of Wisconsin, May 11, 1880, 5 N. W. Rep. 576, the meaning of "vacancy in office" was passed upon. The statute declares that whenever the office of any justice of the peace shall become vacant by resignation, removal or otherwise," the justice to whom the books and papers of such former justice shall be delivered shall proceed to try the cause. It was held that this includes the case of one who ceases to be justice by reason of the expiration of his term. The court said: "We cannot think that the Legislature would have been so solicitous to preserve the right of a party to an action pending and undetermined before a justice, when he should die, remove out of his

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town, be removed from office, or resign, before the expiration of his term, to have the same continued and tried before his successor in office, or other justice into whose hands the docket of such justice should be delivered, and yet have intended that when the vacancy occurred by the expiration of his term, an event which would occur much more frequently than the other, the justice to whom he delivered his books and papers, as required by said section 243, should have no power to proceed in any action which remained undetermined on the docket of such predecessor. It is true that a vacancy in an office does not occur by the expiration of the term of office for which the officer who fills the office was elected, within the meaning of the statute which provides for the filling of vacancies in office by the appointment or election of another to fill such vacancy; but we think it is clearly within the meaning of the word 'vacant,' as used in this statute, that the office of any particular justice of the peace does become vacant when the term for which he was elected expires, and he is not elected his own successor. Such has been the uniform construction of this statute since the adoption of the Revised Statutes of 1849. If the word 'vacant,' as used in said section 248, does not cover the case of the termination of the office of the justice by the expiration of his term of office, then there never has been, and is not now, any law of this State which authorizes a successor in office of any justice of the peace, who has held his office until the expiration of the term for which he was elected, to hear, try and determine any action which might have been pending and undetermined upon the docket of his predecessor at the time his term of office expired, and all such actions would abate absolutely when such term expired. The uniform construction of this statute to the contrary, for more than thirty years, without question, is conclusive with us that it should receive the liberal construction contended for by the learned counsel for the appellants, and that such construction is one which the Legislature very clearly intended it should receive." "As said above, the meaning of the words 'vacancy in office,' when used in the Revised Statutes of 1878, as defined by the statute for the purpose of declaring when such vacancy may or shall be filled by appointment or election, do not apply to or cover the case of the vacancy which occurs by reason of the expiration of the term for which the officer was elected or appointed. There is no vacancy in an office so long as those elected serve their full term, and a successor is elected and qualifies as provided by law; but as to each individual officer who serves out his term and is not re-elected, his office ceases and becomes as to him vacant, and it is in this latter sense that the word is used in the sections above referred to. The vacancy spoken of is the vacancy of the office of the individual justice, and not in the office itself. The language used in section 3591 is: Whenever the office of any justice shall become vacant for any cause.' This language clearly refers to the office of an individual justice, and not to the office itself. When, therefore, the office of any justice expires it

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