All commercial partnerships between citizens of the northern and southern or confederate States were dissolved by the late civil war. A citizen, therefore, of New York, a former member of such a partnership, doing business in New Orleans, is not liable upon a note indorsed in the firm name, after the commencement of the war.

In an action upon a note thus indorsed, the fact that in a power of attorney given to an agent of the firm, executed by such citizen, he is described as of New Orleans, does not estop him from alleging a residence in New York in the absence of proof that the party discounting the note had seen the power of attorney, or believed he resided in New Orleans. Bank of New Orleans v. Matthews, impl'd et al. Opinion by Peckham, J.

GOSSIP ABOUT ENGLISH JUDGES.

The worst fault a judge can have is a short temper. We have in our mind's eye a learned judge and most excellent man, whose court was sometimes no better than a bear garden, through his unfortunate defect of temper and judgment. There was one judge who had a trick of checking witnesses when they got on too fast for his notes by saying, "Stay, stay." He was called the old staymaker. Ofttimes they show admirable temper and discretion. A judge who was summing up a case was greatly disturbed by a young counsel who was talking aloud. With great benignity he said, “Mr. Gray, if ever you arrive here, which some of these days I hope you will do, you will know the inconvenience of counsel talking while you are summing up." A curious story is told illustrating the legal precision of a great judge. He asked a magistrate on a circuit dinner whether he would take some venison. The gentleman answered, "Thank you, my lord, I am going to take boiled chicken." Lord Tenterden retorted, "That, sir, is no answer to my question; I ask you again if you will take venison, and I will thank you to answer yes or no, without further prevarication." The story was originally told in the Quarterly Review, but it is challenged by Lord Campbell.

Another unfortunate characteristic of some judge is the extreme promptness with which they make up their minds and take a side on a case. There is a subtle atmosphere which soon tells the advocate whether the court is with him or whether he has to fight the up-hill game of a losing cause. Counsel often watch, with extreme anxiety, even trivial utterances of the judges which may indicate the direction of their mind. The most upright and impartial judges, who endeavor to keep their judgment perfectly balanced, are liable, human nature being what it is, certainly, and perhaps insensibly, to take a side. I believe they have left it on record that when a case has been fairly opened, and the testimony was given clearly, honestly and in a pleasing way, they made up their minds on one side before they heard the other. Mr. Grote discusses this subject in one of the admirable notes to his immortal history. Wise judges watch against this tendency, and are able to conquer it. Still, in the case of any protracted trial it is easy to see on which side the

judge's opinions rest, and even his sympathies. With some judges the habit of advocacy has grown so inveterate that they are quite unable to lay it aside. If ever they have seriously tried they have not succeeded in the attempt. The case has even been known of a judge on the bench thundering like an advocate at nisi prius. A judge once said that he had only lost two verdicts since he had been raised to the bench. What one likes to see in a judge is a quiet, vigilant watchfulness; the alert eye, the unwearying hand, the thoughtful, composed manner. I have seen cases where, except to the initiated, the judge seemed little more than a passive spectator for a considerable portion of the case- - but he would have interfered at any moment-and, when his proper time came, he showed how complete had been his proper grasp of the case, and how acute his attention to all details. An able judge once said, "Nobody knows how much energy it requires in a judge to hold his tongue." The most conspicuous example of an intellectual failure in fairness was Sir John Leach. He delighted to gallop through his cases. He was so fast that a stage coach was named after him, "The Vice Chancellor." Almost as soon as a case was opened he decided against a plaintiff or a defendant, and never thoroughly heard it through. It was wondered what he would find to do after he had cleared his list off. "Do! why, he will hear the other side," was the acute answer. This was, indeed, an egregious example if the facts stated of him are true, and they are stated by Lord Kingsdown, such a judge himself deserved the penalty of a criminal. It is always worth while for barristers carefully to attend to the slightest indication of judicial opinion. I remember a case in an equity court in which the buying and selling of some living was concerned. When the case had made some progress the judge quietly observed, 'Does Simon Magus appear at all in the action?" The counsel at once told the solicitor that the judge evidently looked upon the transaction as one of simony, and the case was forthwith withdrawn.

But sometimes it is impossible to say in which way the opinion of the judge leans. My own opinion is that they have not been at the trouble of forming an opinion. Charles Dickens has hit this off as he hits off every thing-capitally: "Mr. Justice Stoneleigh summed up in the old-established and most approved form. He read as much of his notes to the jury as he could decipher on so short a notice, and made running comments on the evidence as he went along. If Mrs. Bardell were right it was perfectly clear that Mr. Pickwick was wrong, and if they thought the evidence of Mrs. Cluppins worthy of credence, they would believe it, and if they didn't, why they wouldn't." If some judges are anxious to guide the jury, others are anxious to evade the responsibility. They must save themselves a great deal of wear and tear. Still, in many cases, provincial juries are so grossly stupid that they require to be guided unless there should be continual miscarriage of justice. One remedy would be that a large proportion of the cases now tried by juries should be summarily disposed of by judges. Another remedy would be that there should be a large infusion of the grand jury element in the petty jury. Cases are on record in which judges have confessed themselves mistaken. One judge, thinking that he had caused an injustice to be done, which it was beyond his power to rectify, left the injured person a large sum of money in his will. It is said that the case of Lord Cochrane, afterward Earl of Dundonald almost

ANOTHER INSTALLMENT OF THE NEW
STATUTE REVISION.

The commissioners to revise the statute laws of this State have just issued chapters 9 and 10 of part III. Chapter 9 embraces the subject of "Evidence," and chapter 10, "Trials, including jurors and juries."

The first provision that particularly interests us is section 806, which provides, briefly, that no person offered as a witness shall be excluded by reason of his having been convicted of crime or misdemeanor; but such conviction may be proved by his cross-examination or by the production of the record thereof, for the purpose of affecting the weight of his testimony.

The exclusion of persons convicted of crimes is only a part of the system which grew out of the theory that men are born unto lying "as the sparks fly upward;" another part of the system was the exclusion of the evidence of parties in interest. We have done away with the latter, and it is quite time we did away with the former. The revisors say in a note to the section: "It seems now to be the settled theory in regard to the competency of witnesses, that the court or jury should have all the light thrown upon the facts, that it is possible to procure, leaving the tribunal itself to judge what degree of credence to give to the evidence offered. The rendering of felons incompetent witnesses seems to have been based partly upon the idea that their evidence is wholly unreliable and unsafe, and partly upon the notion that it was a proper punishment for their crimes. Upon neither theory can it be justified. There is no more reason to apprehend that persons who have been convicted of felony will, as a class, be guilty of willful perjury, especially in matters in which they have no interest, than there is to apprehend the same consequences from an admission of many other classes of persons, who are now competent witnesses; and not so much as in the case of the persons from whom the disability has been recently removed; and generally the punishment falls not so much upon the person who is made incompetent as upon the innocent party who happens to be in a position to need his testimony. It has been recently held, that under the act of 1849 the defendant in an indictment is a competent witness in his own behalf, notwithstanding that he has served out a term in the State prison upon a former conviction for felony. Delamater v. People, 5 Alb. L. J. 122. Now that interested persons, parties, and their wives, and even persons charged with crime are competent witnesses, consist

ency seems to demand that the only remaining disability should be swept away. The last clause has been added, in order that the opposing party may more readily exhibit the witness to the jury." We shall notice these chapters more fully hereafter.

LEGAL NEWS.

Mr. Betournay, of Montreal, has been appointed puisne judge of the queen's bench of Manitoba.

Senator Trumbull has written a letter declining to serve as chairman of the judiciary committee of the United States senate. Senator Edmonds, of Vermont, will succeed him.

Governor Hoffman nominated and the senate confirmed, on the 22d inst., Hooper C. Van Vorst as judge of the superior court of New York, to fill the vacancy occasioned by the removal of the late Judge McCunn. Judge Van Vorst was elected for the full term at the recent election.

The resignation of B. H. Briston, of the office of solicitor-general of the United States, was accepted by the president on the 18th inst., and Samuel M. Phillips of North Carolina was appointed to the position. The salary of the office is greater than that of the chief justice of the United States.

The commission appointed to codify the internal revenue laws have completed their report, and it is now in the hands of the printer. The new codification rejects all laws that have been repealed, and bringing in and retaining in the list only those laws affecting the internal revenue service which are in force at the present time.

It is stated that, in consequence of the unsatisfactory character of the bill consolidating the internal revenue districts, a new bill will be submitted to congress providing for simplifying the mode of collecting the revenue and reducing the expenses thereof, by abolishing the offices of assessors and assistant assessors, their duties being transferred to the collectors and assistants.

The sub-committee of the house judiciary committee, authorized to visit Kansas, and prosecute their investigations, looking to the impeachment of Judge Delahay, of the United States district court, met at Leavenworth, on the 14th inst., and commenced taking testimony. Of the four members of the committee only two were present: Wilson, of Indiana, and Eldridge, of Wisconsin. D. R. Anthony was examined in reference to Delahay's habits, and the Osborn-Ingersoll draft, and A. W. Clerk in reference to the Brown case. The investigation was a secret one.

FOREIGN NOTES.

Lord Kinlock, one of the judges of the court of sessions, Edinburgh, died recently in North Britain.The bill legalizing marriage to a deceased wife's sister has passed the legislature of Victoria. ——— A bill pro│viding for trial by jury has passed the French assembly. A bill for the suppression of religious corporations has been introduced into the German chamber of deputies.

The Albany Law Journal.

ALBANY, DECEMBER 7, 1872.

NOVELS.

There is a vast deal of what is popularly believed to be law to be found in novels other than those of Justinian. Indeed, a novel can hardly be regarded as orthodox that does not either turn upon or culminate in a law-suit, or at least introduce one as a kind of side show. But this romance law is quite as apt to be unlike any thing to be found in the "books" as some of the characters are apt to be unlike any found in every-day life.

Almost every lawyer is familiar with the famous blunder of Mr. Samuel Warren, in his "Ten Thousand a Year," in making "Lord Chief Justice Widdrington" decide that an ancient deed was not admissible in evidence, because it contained an erasure. Of course it was necessary so to decide in order to carry out the plot; and considering the charming story he has given us, Mr. Warren might have been easily pardoned for his bad law, had he not, in a note to a subsequent edition, undertaken to demonstrate the strict legal accuracy of the decision.

Sir Walter Scott, like Warren, was a lawyer and familiar with the law and its practice, but we remember to have read an article in an English law review pointing out a number of important errors in the law and practice at the trial in the "Heart of MidLothian."

We recall the most palpable error. It will be remembered that Effie Deans was on trial for her life, the burden of the charge against her being that she had not disclosed her pregnancy to any one. But Sir Walter made the prosecutor produce and found his case upon a letter from the father of the child, which clearly proved not only that the pregnancy had been disclosed to him (which was sufficient to end the case), but also to at least one other person the woman whom he sent to assist her in her "approaching streight." The prosecutor thus virtually "put himself out of court."

Charles Reade, though not a lawyer, pretends, like Bulwer, to have the written opinion of a lawyer (for which he says he pays- an important point), on all legal matters introduced by him in his stories. If this be so, his counsel must be of a very cheap order, for he occasionally makes an absurd error, as where in "Griffith Gaunt," evidence of want of chastity is held admissible to impeach the veracity of a female witness; or where, in "Very Hard Cash," the dying declaration of the plaintiff's sister as to his sanity was admitted in an action for false imprisonment; or where, in "Foul Play," he permits his hero to be tried and convicted of a forgery, without any attempt being made by the prisoner's counsel to secure a postpone

ment of the case, although his only important witness, the one that could have established the prisoner's innocence, was sick and unable to respond to the subpoena.

In

A very fair illustration of the antics which law is made to perform upon the stage may be found in the popular dramatization of "Rip Van Winkle." that represented by Mr. Jefferson, Hatterick, a wily Dutchman, discovers, through the medium of a hopeful relative, who is a lawyer's clerk, that his title to the fair domain of "Falling Water" is liable to defeasance, he holding only as mortgagee of "Rip," the former owner and possessor. Thereupon a little conspiracy is entered into to induce the good-fornought to execute a deed in fee of the mortgaged premises. Mr. Van Winkle concludes to think about it, and pockets the draft deed. After his protracted slumber, the finding of this unsigned deed in his game bag is held to be not only conclusive evidence of his identity, but of his claim to the broad acres that, in former years, he had mortgaged away. In the dramatization of Mr. McWade, the law is subjected to even a severer strain. Therein a son of the same wily Dutchman (again a clerk in a | lawyer's office) learns that a wealthy sister of "Rip's" is about to bequeath her property to "Rip's" daughter. Thereupon Hatterick induces "Rip" to execute an agreement, that the said son and daughter shall intermarry, or in default thereof, the delinquent shall surrender his or her property, from whatever source derived, to the other. "Rip," however, reserves the right to cancel this agreement within twenty years. During "Rip's" somnolent period, the daughter concludes not to marry the son. Of course, according to the theory of the plot, she would have lost the property bequeathed to her by her aunt, had not Mr. Van Winkle put in an appearance at the last moment and canceled the agreement. Not the slightest attempt seems to have been made by the dramatist to ascertain the legal effect of "Rip's " contract, or as to how far he could bargain away his daughter's legacy.

While this profane novel-law may do no particular harm, it displays a slovenliness or ignorance on the part of story writers which is inexcusable. It is by no means required that one who undertakes to be a novelist should first learn law. But if, in writing his novel, he desires to touch upon the law, he is then as much bound to acquaint himself with it-to state it correctly, as he is to acquaint himself with the passions and actions of individuals No one in an English company is bound to speak French, but if he does, and speaks it incorrectly, he is justly the subject of ridicule. So no story writer is obliged to make the law a part of his plot, and if he does he is much to be censured if he does not do it with a great degree of correctness. His duty is to "hold the mirror up to nature," and to show "the very age and body of the time, his form and feature."

AS TO PASSENGERS.

The uniform decision of the courts relative to the rules and restrictions which railroad companies may make in the conduct of their business establishes, beyond question, the law that all regulations which are reasonable are valid and are enforcible against the passenger.

The view of the public and that of the railroad companies as to what are reasonable rules being somewhat antagonistic and dissimilar, it becomes proper, especially at this time, to set forth the view of the judicial mind upon the subject. This may be most conveniently done by a review of the leading adjudications upon railway regulations in their application to passengers.

In Cheney v. The Boston & Maine R. R. Co., 11 Metc. 121, it appeared that by the rules of the railroad company the purchasers of tickets for a passage on the roads from one place to another were required to go through in the same train; and passengers who were to stop on the road, and afterward finish their passage in another train, were required to pay more than when they were to go through in the same train. Plaintiff, not knowing these rules, purchased a ticket for a passage from D to B, and entered the cars with an intention to stop at E, an intermediate place, and to go to B in the next train. Plaintiff stopped at E, after being informed by the conductor of the rules, and after receiving a check on which were the words "good for this trip only." He went on to B, on the same day, on the next train, but his check was refused and he was compelled to pay extra fare. Held, that the rule was valid and that plaintiff could not recover of the company for breach of contract or for money had and received. In State v. Overton, 4 Zab. 435, a similar question arose, and it was held that by paying for a ticket and procuring a passage from one point to another, on a rail- | way, the passenger acquires a right to be carried directly from one point to the other without interruption, but not the right to leave the train and resume his seat in another train, at any intervening point on the road. In McClure v. Phil. Wilmington & Baltimore R. R. Co., 6 Am. Rep. (34 Md. 532), the supreme court of Maryland held substantially the same doctrine. It appeared that plaintiff purchased a ticket from New York to Baltimore over the Philadelphia, Wilmington and Baltimore railroad and took the through train on the same day. The conductor of the train took up the ticket and gave him a conductor's check," with the words "good for this day and train only," and with the numerals 5 and 1 showing the month and day, punched out of the "check." Plaintiff left the train at a way station, and a few days after entered another train and proceeded on his journey. The conductor having refused to take the "check," plaintiff left the train by direction of the conductor, at a

plaintiff had no legal right to leave the train at the way station, and afterward enter another train and proceed to his original point of destination without procuring another ticket or paying his fare from the station at which he again entered. The court said that "when the passenger has once elected the train on which he is to be transported, and entered upon his journey, he has no right, unless the contract has been modified by competent authority, to leave the train at a way-station and then take another train on which to complete his journey, but is bound by the contract to proceed directly to the place to which the contract entitled him to be taken." In Cleveland, Columbus and Cincinnati R. R. Co. v. Bartram, 11 Ohio St. 457, it was held that, where a person purchases a ticket and takes his passage upon a railroad train, he cannot, by virtue of his subsisting contract, leave such train while in the reasonable performance of the contract and claim a seat upon another train. In Boston and Lowell R. R. Co. v. Proctor, 1 Allen, 267, it was held that a ticket dated and bearing upon its face a printed statement, "good only two days after date," ceases to be valid after the expiration of the two days. In Barker v. Coflin, 31 Barb. 556, it appeared that plaintiff procured a ticket in New York for Buffalo, specifying that it should be used within "three days." Plaintiff proceeded as far as Albany, and, on resuming his journey six or seven days after, the conductor removed him from the cars because his ticket had ceased to be valid, and he refused to pay the regular fare. Held, that plaintiff could not recover. See, also, Beebe v. Ayres, 28 Barb. 275. In Hibbard v. New York and Erie R. R. Co., 15 N. Y. 455, it was held that a regulation by a railroad corporation, requiring passengers to exhibit their tickets whenever requested by the conductor, and directing their ejection from the cars on refusing to comply with the regulation, is a reasonable and proper one. In Hilliard v. Goold, 34 N. H. 230, it was held that a regulation requiring five cents extra from passengers who pay fare in the cars is valid, and the passenger refusing to pay the extra rate is liable to expulsion. See, also, Crocker v. New London, Wîllimantic & Palmer Railway, 24 Conn. 249; Chicago, Burlington & Quincy Railway v. Parks, 18 Ill. 460. A regulation requiring passengers to purchase tickets before entering the cars is valid. See Law v. The Illinois Central R. R. Co., 32 Iowa, 534; Cleveland, etc., R. R. Co. v. Bartram, supra. If the officers of a railroad company use excessive force in the ejection of a passenger who has forfeited his rights, the passenger may recover. 1 Redfield on Railways, 105. See, also, the recent case of Coleman v. New York & New Haven R. R. Co., discussed in Atlantic Monthly for December, 1872. In Coleman's case it was held, as matter of law, that a ticket or check good from New Haven to New York is not good for the reverse passage; the rules of the company so providing. A case of much interest has arisen in