The Albany Law Journal.

MR

ALBANY, MAY 17, 1884.

CURRENT TOPICS.

RS. KILGORE has broken in at last she has been admitted to practice by the Philadelphia Common Pleas number four, after vainly knocking at the doors of two other courts. The Philadelphia Press chronicles the prevailing opinion of Judge Thayer: "He declines to enter into a controversy on the subject of 'women's rights,' but declares that her sphere, if it still exists, must have an infinite and indeterminable radius, and that she is now found in all the pursuits and professions of life, not only working out her own independence, but entering into competition with men for the highest rewards of ambition. He remarks that the present applicant presents herself with a diploma of the University of Pennsylvania, 'written in very fair Latin,' certifying that the degree of bachelor of laws has been conferred upon her, and enjoining upon all men that they respect her title to all the rights, privileges and honors thereupon belonging.

He expresses his surprise at the failure of some people to notice the revolution which has taken place in regard to women, and continues: 'Are we to take notice of these changes, and recognize the weighty facts which they have brought with them, and the rights which have grown out of them, or are we to set ourselves to the vain task of attempting to turn backward the wheels of time to convince history that it is all wrong, and to say at this

time of day that a woman shall not be permitted to pursue the vocation to which her tastes lead her, and for which her studies have qualified her? It does not seem to us that such a decision would

be in the line of a wise judicial discretion, but that we would rather thereby ignore rights which are now everywhere acknowledged, and bind anew old burthens which everywhere have been cast off.'" The Press observes on this decision: "The idea of women lawyers is not a pleasing one to most men. The latter however are under no obligation to patronize them. If any woman is competent to draw up papers, plead cases and transact law business, and can find people willing to employ her, why should she be debarred from the privilege of making a living, or perhaps making a fortune by the use of the special talents with which she is endowed, and the possession of which probably renders her unfit for that quiet privacy which some judges think is such an excellent thing for women?" The world moves. Our assembly a few days ago came within a very few votes of passing a bill for woman suffrage. We hope that women generally do not want to vote; we believe that comparatively few would avail themselves of the privilege, but if any woman wants to vote, there is no more reason in principle for denying her that privilege on account VOL. 29-No. 20.

Gibson's Law Notes says of "L women lawyers: 'When, as at the present time, so many of the 'weaker sex' are obliged to work during the whole of their lives for their own living- a result due in a great measure to the numerical excess of women, an excess amounting in England and Wales alone to nearly three-quarters of a million, but also owing in many cases to their lacking those personal attractions, the gift of nature, which are necessary to their successfully competing for the office which men are so fond of declaring their only natural and proper one, viz.: that of wife and mother it behooves every one, instead of putting obstacles in their way, to assist them in the struggle of life, and to that end rising above petty prejudices, and freeing himself from the fetters of custom and conventionalism, to examine for himself the grounds on which, it is sought to justify the continuing intellectual and social thraldom of more than half the population, and if satisfied (as we doubt not he will be) of their untenableness, to aid as he best may in breaking down the barriers, actual or conventional, which at present bar the entrance of almost every profession and pursuit to every member of the community under the ban of not being of be working for that end to which our every act the sterner sex, believing that in so doing he will should tend the 'greatest happiness of the Kilgore case that women are "at the present mogreatest number.'" Judge Thayer says in the ment practicing law in Maine, Massachusetts, Connecticut, Ohio, Illinois, Indiana, Michigan, Missouri, Iowa, Wisconsin, California, Texas, Oregon, the

District of Columbia, and the Territories of Wyoming and Washington." Is he not mistaken about

Massachusetts? See Robinson's case, 131 Mass. 376; 8. C., 41 Am. Rep. 239.

The last few days have brought to mind three very celebrated lawyers, two of our own time, and one of past days. The erection of a statue to Chief Justice Marshall in Washington was an eminently appropriate act. The Federal capital is full of outdoor statues of men on horseback, but has had none until now, we believe, of a man in a gown. Weighty as are our obligations to those heroes and patriots whose statues have long adorned the capital, yet not one of them rendered public service so important and durable as the great chief justice. Marshall absolutely created our Federal jurisprudence. His fame has not only not fallen off, but has increased with time. It is remarkable that our courts should in so few instances have departed from his rulings. Like the name of Mansfield in English mercantile law, the name of Marshall is

omnipotent in our Constitutional law, and nothing less than the changing of the constitution will essentially detract from its influence. Many of our readers will have forgotton that Marshall was a hero, as well as a lawyer- he drew sword in the great struggle of the revolution.

The death of Mr. Benjamin and Mr. O'Conor recalls two of the greatest lawyers of our own day. Of Mr. Benjamin's remarkable career we have recently spoken. His life has been full of romance, and crowned with material success. He has one advantage over most of his dead brethren - he has left a law-book, and a most excellent one; indeed almost unique in its excellence, and this will preserve his name long after his achievements at the bar shall have been forgotten. Mr. O'Conor has been out of the active practice of his profession so long that he is already well nigh forgotten. He was a man of strong mental endowments, and perhaps for many years would have been named as the leader of the American bar, but his career has been disfigured by a bad temper, cold manners, and some unseemly squabbles. He will be longest and most unpleasantly remembered for his attack on the Court of Appeals of this State. He was a man of great legal learning, but there are a score in the country at present his equal. He was a powerful advocate, but he cannot be ranked with such geniuses as Webster and Choate. His old age has been passed in seclusion among his books at Nantucket, but he died owing the profession the debt which alone could make him remembered ten years hence- a book.

The opinion of Judge Westbrook in the McDonald case is received. It will be remembered that McDonald refusing to answer as a witness questions asked before a committee of the Senate was committed for contempt, and imprisoned in the Albany county jail, and sought to be released therefrom on habeas corpus. The question involved as to whether a legislative body in this country had the power to imprison a citizen for the reasons alleged was one of National importance, and the decision was awaited with peculiar interest, and what is it? The learned judge after a most exhaustive examination of the question, taking in every case in the books, says: "It is believed that the various grounds upon which the legality of the imprisonment of McDonald was sought to be justified have now been examined, and the result of such examination is the conclusion that in the light of the recent decisions in England that in Kilbourn v. Thompson, and of reason, it cannot be upheld." And yet contrary to his convictions of what the law is, after showing beyond all controversy that the Legislature had neither inherent nor conferred power he decides the imprisonment legal, pleading "the need of conservative action," because of the

case of People v. Learned, 5 Hun, 626, saying: "If that decision is the law of this State then the imprisonment of McDonald is abundantly justified, and certainly until reversed it is the law governing the action, if not the opinion, of every judge within the department where it was made, when sitting alone and holding a court inferior in dignity to that which announced it." We expect that this decision will not be upheld, because it is in direct conflict with the ruling of the United States Supreme Court. If on the other hand it should be affirmed, then as Judge Westbrook says: "The citizen can have no secret, all the details of his private business, the condition of his property and estate, any immoral conduct, any shortcoming in thought, word or deed can be laid bare under the torture of imprisonment." In other words, "star chamber" is ahead of us. "In the discussion of this question it must be conceded that there are not wanting cases nor opinions of elementary writers holding that the power to punish for contempt is one inherent in every legislative body. Cooley on Const. Lim. 134; 1 Kent Com. 236; 1 Story on Const. (4th ed.), § 847. Such decisions and opinions however are founded upon the usage of the English parliament, the case of Burdett v. Abbott, 14 East, 1-131, with the earlier decisions of the English courts, and the case of Anderson v. Dunn, 6 Wheat. 204. In the quite recent case however of Kilbourn v. Thompson, 103 U. S. 168, which follows the later English cases, overruling in that particular Burdett v. Abbott and the older decisions, the Supreme Court of the United States in an exhaustive opinion by Miller, J., has repudiated the conclusions announced in Anderson v. Dunn, and held that an examination of the history of the English parliament and the decisions of English courts shows that the power of the House of Commons, under the laws and customs of parliament to punish for contempt, rests upon principles peculiar to it, and not upon any general rule applicable to all legislative bodies. The parliament of England before its separation into two bodies, since known as the House of Lords and the House of Commons, was a high court of judicature, the highest in the realm, possessed of the general power incident to such a court of punishing for contempt. On its separation the power remained with each body, because each was considered a court of judicature, and exercised the functions of such a court.' In the cases Kielly v. Carson, 4 Moore P. C. 63; Fenton v. Hampton, 11 id. 347, 366; Doyle v. Falconer, L. R., P. C. 328; also the Canada case, Landers v. Woodworth, 2 Can. Sup. Ct. R. 158, this very point now under consideration was expressly decided, and they hold distinctly that the Legislatures of the colonies of England did not take the power of parliament to punish for contempt. They have so decided after full and exhaustive argument when presided over by judges whose names and character are world-wide famous, and such decisions in every judicial forum should arrest discussion and dispel doubt."

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NOTES OF CASES.

WE generally find something funny in the Texas

same.

Reports. In Hasley v. State, 14 Tex. Ct. App. 217, we note the following in the opinion: "Defendant has appealed from a conviction of the offense of playing at a game with cards in a house for retailing spirituous liquors. His learned counsel, in concluding their able brief, appeal to the sympathies of this court in the following touching language: 'The counsel for this defendant moves the Court of Appeals to tears, if possible, in behalf of this appellant, whose reputation has been called in question by designing men, who by some means forced their corporeal presence on an unsuspecting court as a body of grand jurymen, and presented the bill of indictment when only six members of the aforesaid body concurred in finding the While it is true the appellant has but little means (his pocket is as light as the gossamer that floats in a midsummer day; his worldly goods could be packed in a chestnut shell), his reputation is at stake, he being a member of some churchhis counsel at this time are unable to state accurately what denomination, as they have seen him attending all the churches in Belton, and seemingly with a devotion as earnest as that evinced by Culver, Wesley, and even Paul Denton. It is not of the amount of the fine imposed that the defendant complains, it is the rash and foolish ruling of the county judge, and the concurrence of the jury that found the defendant guilty. The defendant feels that he has been in the hands of the Philistines, and he appeals to the Court of Appeals to redress his wrongs.' In response to the eloquent appeal of counsel in behalf of their unfortunate client, we will say that we have carefully considered the points of this case, with the desire and purpose to redress his wrongs to the extent of our lawful authority. But we have failed to perceive wherein he has been wronged. That he played at a game with cards in a house for retailing spirituous liquors was proved beyond question. This was a plain violation of the law, and doubly reprehensible in one of his moral reputation and devotional piety. That the defendant in an evil hour fell into the

hands of Philistines we do not doubt, but we think

bis counsel are mistaken as to who these Philistines were. They were not the grand jurors who presented this indictment, but the 'light-fingered habitues of the Crystal saloon.' We trust that the result of this prosecution may be beneficial to the defendant, and cause him in the future to avoid the alluring temptations of the card table. The judgment is affirmed."

In Nicols v. Pitman, Ch. Div., March 20, 1884, 50 L. T. Rep, 254, it was held that one may not publish and sell notes which he has taken of a public lecture, delivered from memory, without the consent of the lecturer. In this case the notes were taken in short-hand, and published in short-hand

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in a phonographic journal. The decision was based on Lord Eldon's holding in Abernethy v. Hutchinson, 1 H. & Tur. 28. The court said: "Then upon that additional evidence, after very mature consideration, the lord chancellor delivered judgment, and said that: 'Where the lecture was orally delivered it was difficult to say that an injunction could be granted upon the same principle upon which literary composition was protected, because the court must be satisfied that the publication complained of was an invasion of the written work, and this could only be done by comparing the composition with the piracy. But it did not follow, that because the information communicated by the lecturer was not committed to writing but orally delivered, it was therefore within the power of the person who heard it to publish it. On the contrary, he was clearly of opinion that whatever else might be done with it the lecture could not be published for profit.' I take that to mean that every person who delivers a lecture, not committed to writing, but orally delivered from memory, has such a property in that lecture that he may prevent anybody who hears it from Lord Eldon then publishing it for profit. adds that 'he was therefore clearly of opinion that when persons were admitted, as pupils or otherwise, to hear these lectures, although they were orally delivered, and although the parties might go to the extent, if they were able to do so, of putting down the whole by means of short-hand, yet they could do that only for the purposes of their own information, and could not publish for profit that which they had not obtained the right of selling.' * Now, it is quite true that the learned judge seems at one moment to refer to the ground of property, and at another to that of implied contract. But I take his meaning to be that when there is a lecture of this kind delivered to an audience, especially where that audience is a limited one admitted by tickets, the understanding between the lecturer and the audience must be that whether the lecture has been committed to writing beforehand or not, the audience are quite at liberty to take the fullest notes they like for their own personal convenience, but they are not at liberty, having taken those notes, to use them afterward for the purpose of publishing the lecture for profit. That is the ground upon which I am going to decide this case. * * * I therefore must hold that this is a case in which the defendant ought to be restrained by injunction. I cannot regard the publication of the lecture in a system of short-hand

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the key to which is in everybody's hands who chooses to buy it as being different in any material sense from any other kind of publication."

In Friedman v. Gold and Stock Telegraph Co., 32 Hun, 4, it is held that a telegraph company formed to transmit stock quotations and other news, may not refuse to furnish such news to any one wishing to subscribe for it. The court said: "For the pur

inquiry to ascertain the owner of these roving bucks, but he could not be found. He then asked the advice of neighbors as to what he should do to | protect his ewes, and was advised to kill the bucks, which advice he probably followed, for their dead bodies were soon afterward found near the defendant's camp. Now under these circumstances did the defendant commit a crime in killing the bucks? Did he kill them willfully or wantonly? Of course he killed them intentionally, but it is not every intentional act that is a willful or wanton act. When used in a penal statute the word 'willful' means more than it does in common parlance. It means with evil intent or legal malice, or without reasonable ground for believing the act to be lawful. State v. Preston, 34 Wis. 675; State v. Clark, 29 N. J. 96; Savage v. Tuller, Brayt. 223; 1 Abb. (U. S.) 196. In common parlance it is used in the sense of intentional, as distinguished from accidental or involuntary. To make the killing of the sheep therefore a willful act, it must have been committed with an evil intent, with legal malice, and without legal justification. To make the killing a wanton act it must have been committed regardless of the rights of the owner of the sheep, in reckless sport, or under such circumstances as evinced a wicked or mischievous intent, and without excuse. Jones v. State, 3 Tex. Ct. App. 228." BUSINESS.-"Township business cannot be regulated by special or local laws, but a law requiring reimbursement to an officer is not a regulation affecting township business; it is an act granting special relief in a particular case. The term 'business,' as employed in the Constitution, does not apply to acts granting relief in particular and extraordinary cases. The term 'business,' when applied to a public corporation, signifies the conduct of the usual affairs of the corporation, and the conduct of such affairs as commonly engage the attention of township and county officers. It does not mean the performance of an act which can be done only in a particular case, and by authority of a special law." Mount v. State, 90 Ind. 29.

Soliciting and receiving subscriptions for a newspaper published in another State by a corporation is not doing "business" in this State, within the meaning of the constitutional requirements concerning foreign corporations. The court said: "There must be a doing of some of the works, or an exercise of some of the functions, for which the corporation was created," etc. Beard v. Union and American Pub. Co., 71 Ala. 60.

CONVENIENCE.-This word was thus interpreted in a contract of sale: "The order expressed that the lumber was deliverable by Duly at his convenience. We do not understand that he could exercise his own choice and pleasure as to the time of its delivery that he could prolong it indefinitely. He was not bound to an immediate delivery, but to a delivery within a reasonable time, determinable from the particular circumstances the parties had in view when, with this stipulation, the order was given and accepted."

ASSIGNED.

This word implies a transfer by writing, as distinguished from one by delivery. Rayland v. Wood, 71 Ala. 145.

ACCIDENT.-In Nave v. Flack, 90 Ind. 205, Elliott, J., says: "A pure accident, where there is an absence of negligence, will not supply a cause of action, but where the accident is attributable to the negligence of the defendant it is otherwise. Shearman & Redf. Neg., § 5. The poverty of language compels the use of words in different meanings, and this is notably true of the word 'accident.' Strictly speaking an accident is an occurrence to which human fault does not contribute; but this is a restricted meaning, for accidents are recognized as occurrences arising from the carelessness of men. Browne Jud. Interp. 4."

AUTHOR, WRITING.- A photograph of a person may be of such a character as to be capable of copyright. Burrow-Giles Lithographic Co. v. Sarony, U. S. Sup. Ct., March 17, 1884. Miller, J., said: "These statutes certainly answer the question that books only, or writing, in the limited sense of a book and its author, are within the constitutional provision. Both these words are susceptible of a more enlarged definition than this. An author in that sense is he to whom any thing owes its origin; originator; maker; one who completes a work of science or literature.'-Worcester. So also no one would claim that the word 'writing' in this clause of the Constitution, though the only word used as to subjects in regard to which authors are to be secured, is limited to the actual script of the author, and excludes books and all other printed matter. By 'writings' in that clause is meant the literary productions of those authors, and Congress very properly has declared these to include all forms of writing, printing, engraving, etching, etc., by which the ideas of the mind of the author are given visible expression. The only reason why photographs were not included in the extended list in the act of 1802 is probably that they did not exist, as photography as an art was then unknown, and the scientific principle on which it rests, and the chemicals and machinery by which it is operated have all been discovered long since that statute was enacted."

COUNTING-HOUSE.-In Reg. v. Damon, recently tried at the Dorset sessions in England, it was held that breaking into a solicitor's office was not within a statute speaking of "any dwelling-house, schoolhouse, shop, warehouse or counting-house."

DOMESTIC ANIMALS.-Tame rats are. In a recent case before the Manchester (Eng.) police court, the defendant was summoned for cruelty to tame rats by feeding them to a mongoose or Indian ferret. It appeared that the mongoose played with and tortured the rats before devouring them, and that the rats were so tame as to be carried in one's pocket. The defendant was fined. This seems to be sentiment run mad.

OXEN.- A pair of two-year old steers, fit for light work, are exempt as a "yoke of oxen," although not broken." Berg v. Baldwin, Minnesota