act which prohibits preferences in assignments that it is a part of the assignment, when in fact they are no part of it, but independent of and hostile to it? We cannot see. It is implied from the language of the charge that they can be treated as a preference because the debtor intended by giving them to prefer the creditors to whom they were given over other credit ors. But this is precisely what we have many times held an insolvent debtor may do so long as he has dominion over his property. "The idea is also embodied in the charge that if the judgments were confessed with the intent to avoid the law forbidding preferences, they would thereby be invalidated. But this is not tenable. The act of 1843 simply prohibits preferences in assignments, or rather provides that they shall inure to the benefit of all the creditors. The only question that can arise as to this act in a given case is whether the assignment contains a preference. If it does not, that is the end of the controversy." Yours truly, BUFFALO, August 27, 1889. B. FRANK DAKE. The committee will act in concert with all members of the association, who are a committee of the whole, each and every of whom are invited to co-operate with this committee in making the arrangements for the celebration. At the recent meeting of the American Bar Association at Chicago, on motion of Charles Henry Butler of New York, a committee was appointed to co-operate with the New York State Bar Association in making arrangements for the celebration. Assurances from other State Bar Associations have been received that they will cordially unite in the celebration. Many eminent citizens have also, under the provisions of the resolution providing for the celebration, signified their intention to unite in it. It has been suggested that a meeting of the committee take place in the rooms of the association, Capitol, Albany, early in October. Within the last two weeks fifty new members have been added to the association. NOTES. In a recent case of Reinhardt v. Mentasti (reported elsewhere), Mr. Justice Kekewich decided a somewhat nice point on the maxim "sic utere tuo ut alienum non ladas, but the result appears to be in accordance with the authorities. The defendants, in the course of altering their hotel, placed a cooking stove of considerable heating power in a basement room not previously used as a kitchen; moreover it did not occupy the position of the former fireplace. The plaintiff's house was separated from the hotel only by a party-wall, and adjoining the room in question was his wine-cellar, which was rendered useless for the purpose by the great heat that passed into it. It is by no means easy to say which of the numerous acts which may cause annoyance to a neighbor are justifiable in law, but the true principle was clearly expressed by Bramwell, B., in Bamford v. Turnley, 3 B. & S. 83, when he said that "acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action;" and elsewhere, that this was simply the rule of "give and take, live and let live." Though The ex-presidents of the association and the following probably Lord Halsbury, C., carried this a good deal honorary members: Sherman S. Rogers, Martin W. Cooke, Grover Cleveland, Levi P. Morton, Benjamin F. Tracy, William C. Whitney, Charles S. Fairchild, William M. Evarts, Frank Hiscock, Charles F. Tabor, Samuel S. Cox. The following ex-judges and United States minis ters: Hooper C. Van Vorst, Noah Davis, Enoch L. Fancher, John F. Dillon, Francis Kernan, W. W. Astor, Edwards Pierrepont. And the following members of the association: Charles S. Baker, Wm. Allen Baker, Samuel A. Blatchford, Tracy C. Becker, John N. Beckley, James C. Carter, F. R. Coudert, Esek Cowen, Ernest H. Crosby, Chauncey M. Depew, Timothy E. Ellsworth, J. Sloat Fassett, J. Newton Fiero, Elbridge T. Gerry, John Gillette, Wm. B. Hornblower, S. C. Huntington, M. H. Hirschberg, John Jay, Jesse S. L'Amoreaux, Joseph Larocque, Daniel Lockwood, Robert N. Marvin, Wm. Mitchell, John G. Milburn, E. H. Movins, Stephen P. Nash, Homer A. Nelson, Wm. A. Poucher, Chas. E. Patterson, R. A. Parmenter, Fletcher C. Peck, O. B. Potter, Robert Sewell, Robert T. Turner, Zerah H. Westbrook. The appointment of this strong committee, of which Judge Arnoux is chairman, gives undoubted assurance that this judicial celebration will be a great success. further when he paraphrased it, in Fleming v. Hyslop, 11 App. Cas, 697, by saying that "what makes life less comfortable and causes sensible discomfort and annoyance is a proper subject of injunction." The amount of actual annoyance seems to be not so much in question as whether, in the natural course of events, the neighbor is likely to retaliate in the same manner, or, in other words, whether it is due, as above stated, to the ordinary use of the house. This consideration underlies the judgment of Sir George Jessel, M. R., in Broder v. Saillard, 2 Ch. Div. 692, where the nuisance complained of was the noise made by horses in a stable adjoining the plaintiff's house. That this was a real annoyance, and indeed seriously interfered with the sleep of the master of the house, there was no doubt, and as it was not a result to be anticipated from the ordinary juxtaposition of dwellings, it was not justifiable. In the present case the nuisance is much less, and perhaps slighter than in any previous case in which the court has interfered; but although fires are usual enough, and the heat from them may pass through into a neighboring house, yet this is only likely to be serious where the site of the original fireplace is not used, and this element, conflicting with ordinary user, was apparently just sufficient to exclude the justification which would otherwise have existed.-Solicitors' Journal. The Albany Law THE ALBANY, SEPTEMBER 14, 1889. CURRENT TOPICS. summer gambol our imagination has soared to the forbidden idea of a winter vacation, to which there should be no drawbacks of mosquitos, fleas, green apples, cucumbers, damp grass, and other similar detriments. To be sure, we could not then safely or comfortably lie down under a tree, but one must not expect every thing. But winter may have some advantages to offer the vacation seeker. It has occurred to us that althongh one cannot keep cool in summer he can keep warm in winter. On this novel issue of the comparative facilities of the Zephyr and Boreas, counsel learned therein, who have asked and obtained their day in court, and blown in upon us the following arguments pro and time has come to preach our annual vacation liever in jury trial, we have "gone to the country." We are anxiously looking around for old Tityrus, and when found, we propose to recumb with him under the teguminous shade of his patulous beech-con: tree. It will be observed that we have not changed our opinion about the benefits of recumbency in vacation. On the contrary we have been confirmed by an article in the London Lancet exposing the folly of those English barristers and statesmen, who accustomed to a sedentary life, bring mischiefs upon themselves in their old age by tramping over the continent and climbing mountains in vacation. We are therefore taking ourselves quietly and lazily, leaving locomotion to four-footed beasts, which are notoriously short-lived, and jogging about on the wooded roads behind -- not upon a horse which does not know any better than to let himself be thus used. It is amusing to note the mental change which comes over us the moment we divest ourselves of that badge of civilized slavery, the "boiled" shirt. At first a sense of guiltiness and an uneasy expectation of seeing the sheriff's shadow coming around the corner after us "snatching a fearful joy"- but this soon wears off, and we feel like a school-boy playing truant; or an old horse (we wish to be courteous in our comparisons) turned out to pasture, and craning his neck over the fence in surprise and pity for the harnessed beasts which still drag along the road; or like the aged and moribund pauper when he feels stirring in his veins the lively sheep-juice or rabbit-extract devised by Dr. Brown-Sequard for the perpetuation of life; or as Hester Prynne felt when she temporarily laid aside that Scarlet A. Our pen, no longer barbarous, despises the strange words of the law, and fain would wanton in the flowery fields of literature and indite short sermons on morals and immorals, lugging these subjects in by the ears, and tracing a far-off kinship to the law. Yea, even it would now and then take a shy at verse, although it must be confessed, since we prostituted our muse for pay to the base uses of the Bostonian GreenBagger, she has been very coy, fickle and uncertain. We must admit that we never have tried a vacation in winter. It would be an almost unprecedented idea, and lawyers never feel safe without a precedent. (Those lawyers who made the precedents must have felt like the man who first swallowed the oyster, or to be more elegant, and more timely like Columbus when he first turned his prow to the west.) But since we have been let loose on this VOL. 40-No. 11. THE RIGHT SEASON. Foul winter is done, We lie on the grass, While the rare clouds pass Or watch in the field, While stroke of steel 'Till cows from the pool With the frost in his hair, Hot summer is past, By the roaring fire On feathery ground; To snow-heaped yoke; The frost on the panes Rears castles grand, Till the wide moon reigns Dry summer I fear With the dust in her hair; White winter is dear With his frost-laden air. * * * One of the most amusing traits of mankind is their determination to get ahead even when they are in no need to hurry. Thus in getting off a railroad train or a ferry-boat they will crowd and jostle one another in the struggle to be off first, and when fairly off, slow up like men of leisure. There is something like it in the animal kingdom, where the hen, feeding calmly at the side of the highway, sees a horse and wagon coming and spreads her wings and scampers clucking wildly across the road, barely escaping the horse's feet, with no apparent motive whatever. Men climb over the chains on ferry-boats and stand among the horses and vehicles, or go to the very verge of the bow, and if they can jump two or three feet before the dock is reached they are all the better pleased. This propensity was illustrated in a recent action, Graham v. Penn. R. Co., in the United States Circuit Court for New Jersey, where a passenger stepped out of the side gangway into the middle one, between the chain and the gate, and had his leg broken by the chain being thrown against it. The court held that he was not entitled to recover, observing: "There are two gangways provided by which passengers can safely leave the boat. The precautions taken by the company, I think, were ample. There are the gates which, as I understand from the testimony, are never removed until after the boat has been fastened to the bridge. The gates are first opened, and then the chain is taken down. It required no great degree of intelligence for any one to understand that while the chain was stretched across the middle gangway passengers were forbidden to go out that way. It was therefore apparent, because of the double obstruction of the gates and chain, which speak better than any printed notice, or any words which could be uttered by the officers of the boat, that the plaintiff could not pass out that way as long as the chain was up. The chain is put there for the purpose of preventing passengers from leaving the boat by that way, and if a passenger chooses to go out over the chain he does it at his own risk. I was at first much impressed by the fact that the company had allowed passengers to leave the boat in the same manner as the plaintiff had done. Of course familiarity with danger breeds contempt, and a man who has passed over the ferry as this plaintiff has done for many years in that way without an accident, comes to believe that he is perfectly safe in continuing to do so. But does the fact that he has always escaped harm before relieve him from the ne cessity of exercising due care and caution? If I am in the habit of travelling every day on a railroad train, and habitually leave the train before it ** * * * * * * * * stops or reaches the platform, or before the wheels cease to revolve, and I at last fall and receive an injury, could I recover damages from the railroad company for such an accident? Clearly not. * ** It was insisted he had a right to be in the middle of the boat, and to cross the chain as he did. He had no right to be there. In the crowds that go on board these boats, if a man chooses to rush out in the manner the plaintiff did, the company cannot help it beyond taking the precautions which they have taken to prevent it. The fact that the company has furnished two convenient and ample outlets for passengers, and that the horse gangway is guarded by a chain is sufficient, I think, to exonerate the company from liability for such accidents as the one which happened to the plaintiff." The editor of the New Jersey Law Journal says: "We cannot agree with the court that the guard-chain and gates used as a safeguard against falling into the water are a notice to passengers not to go upon the central gangway. There is no chain between the side gangways and the central gangway, only a row of posts several feet apart, and as a matter of fact the boats on the Hudson river, at least, are so full of passengers that they must fill the whole deck. If the companies insist upon enforcing the rule of this case they will have to furnish more boats." For our own part, we are inclined to side with the court, and to believe that ordinarily it is unnecessary for a man to step out among the horses. It gives us pleasure to learn that our contributor, Mr. Guy C. H. Corliss of Grand Forks, Dakota, has been nearly unanimously nominated by the Republicans for the office of Supreme Court judge of the new State. His election is certain. He well deserves the compliment, and will be one of the most learned as well as one of the youngest judges in this country-about thirty, we believe. His contributions for several years to this journal have been marked by great learning, research, discrimination and independence. Anybody can become a judge who will write long enough for this journal. It also gives us pleasure to see that our former contributor, Mr. John D. Lawson, the distinguished legal author, agrees with us that Nagle was not only justified in shooting Terry, but was bound as an officer of the law to do so. The learned editor of the Central Law Journal thinks there was no necessity for killing Terry, on the ground that he was unarmed. The trouble with this view is that Mr. Nagle had no time to examine Terry's pockets to ascertain that fact. He was known customarily to carry weapons, and his big knife made a figure in court last year. Most probably he was armed on this occasion, and his wife took away his arms, as she had ample opportunity to do so. Some people seem to be a great deal more careful of the life of a venomous beast like Terry than of that of a peaceable magistrate like Field. Nagle ought not to be held an hour. IN NOTES OF CASES. 442. an hour, the sweep taken by the res gesta in each case is limited to what is done in the time of the particular negotiation. Miles v. Knott, 12 Gill & J. When however one man of high parts and great energy is employed in a single protracted negotiation of great importance, then we can conceive of his whole time for weeks being absorbed in the negotiation, and of its so tingling with its characteristics every thing that he does and says that for all this period the things he does and says become rather the incidents of the negotiation than of himself. Fifield v. Richardson, 34 Vt. 410; Cunningham v. Parks, 97 Mass. 172; Railroad Co. v. Redd, 54 Ga. 33. So if in one of our streets there is an unexpected collision between two men, entire strangers to each other, then the res gesta of the collision are confined within the minutes that it occupies. When again there is a social feud in which two religious factions are arrayed against each other for weeks, and so much absorbed in the collision as to be conscious of little else, then all that such parties do and say, under such circumstances, is as much a part of the res gesta as the blows given in the homicides for which particular prosecutions may be brought. Whart. Ev., § 259; Commonwealth v. Ward v. White, Virginia Supreme Court of Appeals, June 13, 1889, it was held that evidence that plaintiff had published in his newspaper a gross insult to one of the defendants on the day before the assault, which occurred at the first opportunity defendants had of meeting plaintiff, is admissible as part of the res gesta. The court said: "It is insisted by the counsel for the plaintiff in error that the newspaper insults were too remote to have had any effect on the matter; that White had a whole day and more to get cold in; and that the articles could neither have been admitted in evidence correctly, as matter in mitigation of damages, nor as part of the res gesta, but should have been excluded altogether. On the other side it is insisted that they were properly admitted in evidence in mitigation of damages, and also as part of the res gesta; and we are cited to the case of Davis v. Franke, 33 Gratt. 416 (decided in this court in 1880). In that case Staples, J., says: "The authorities are generally agreed that in an action of trespass for an assault and battery, the defendant may, under the general issue, give in evidence matters which go merely to the quantum of damages, by way of palli-Sherry and Commonwealth v. Daley, reported in the ating the offense. Where the defendant relies upon provocation, it must be so recent as to raise the presumption that the assault was committed in heat of blood, excited by the conduct or declarations of the plaintiff. The rule which confines the defendant to proof of recent provocations received from the plaintiff is subject to modifications which more or less qualify the rule, according to the particular circumstances of each case.' Lord Abinger said in Fraser v. Berkeley, 32 E. C. L. 791: The law would be an unwise law if it did not make allowance for human infirmities, and if a person commit violence at a time when he is smarting under immediate provocation, that is matter of mitigation. It appears to me to be severe to say that you should not look at the cause which induced the assault.' Judge Staples also says in the case of Davis v. Franke, supra, concerning the res gesta: 'It has been justly said that the affairs of men consist of a complication of circumstances, so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstance, and in its turn becomes the prolific parent of others; and each, during its existence, has its inseparable attributes and its kindred facts, materially affecting its character, and essential to be known in order to a right understanding of its nature. These surrounding circumstances, constituting a part of the res gesta, may always be shown to the jury in connection with the principal fact.' Citing Mr. Justice Park as saying in Rawson v. Haigh, 2 Bing. 104: 'It is impossible to tie down to time the rule as to the declarations.' The area of events covered by the term res gesta depends upon the circumstance of each particular case. Whart. Ev., § 258. When a business man coolly and disengagedly contemplates half a dozen distinct negotiations in the course of * * appendix to Whart. Hom.; Rex v. Gordon, 21 How. State Tr. 542. The res gesta may be therefore defined as those circumstances which are the undesigned incidents of a particular litigated act, and which are admissible when illustrative of such act. Nutting v. Page, 4 Gray, 584. These incidents may be separated from the act by a lapse of time more or less appreciable. They must stand in immediate causal relation to the act — a relation not broken by the interposition of voluntary individual wariness, seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act. And Lord Denman in Rouch v. Railway Co., 1 Q. B. 61, approving the saying of Baron Park, above cited, that it is impossible to tie down to time the rule as to the declarations' that may be made part of the res gestæ, said that if there be connecting circumstances, a declaration may, even at a month's interval, form part of the whole res gesta.' And Mr. Wharton says, upon the authority of numerous cases: 'Therefore declarations which are the immediate accompaniments of an act are admissible as part of the res gesta; remembering that immediateness is tested by closeness, not of time, but by causal relation.’ Whart. Ev., § 262. And what is done is part of the res gesta as well as what is said. Mr. Field, in his admirable work on the Law of Damages, says: In actions for willful injuries to the person, where vindictive damages are claimed, the defendant should not be restricted in proving matters which took place at the very time of the injury complained of. But he has a right to show the jury the true relations of the parties, and any facts and circumstances relating to the act, in order that they may deter To mine how far it was wanton, malicious, vindictive or unprovoked, or how far extenuated by the conduct, declarations or provocations of the plaintiff.' § 118. Prentiss v. Shaw, 56 Me. 427. Cited approvingly in Davis v. Franke, supra. Upon the foregoing principles we think the admission in evidence by the court of the newspaper articles was plainly right. They were the direct cause of the assault complained of. Without them therefore there would have been no assault committed. have exhibited the defendant to the jury in the attitude of a wanton assassin, without cause or provocation shooting down a fellow-man who was guiltless of injury or offense toward him, would have been a mockery of justice. How far these stinging insults mitigated the evil of the attack in question was a matter for the jury to determine, but there can be no doubt - there can be no denial that the insulting words stood close to the act in question, in immediate causal relation thereto, and thus constituted part of the res gestæ, and as such were admissible in evidence." In Hill v. Board of Supervisors of Rensselaer County, 53 Hun, 194, it was held that no action can be maintained for injuries to property by rioters in consequence of intoxication by liquors furnished them by the owner. Landon, J., said: The three persons who developed into rioters did so in the plaintiff's hotel, and after her servants (she being a licensed vendor) had freely supplied them with intoxicating drinks. Possibly they assembled there with evil intent; if they did, the liquor they received at the plaintiff's bar presumably fortified that intent; if they assembled there for purely social enjoyment, the liquor presumably developed their destructive propensities. In either case the plaintiff, by her servants in charge, was to some extent blamable. The case of Paladino v. Board of Supervisors of Westchester County, 47 Hun, 337, seems to us to have been correctly decided, and is decisive against the plaintiff's recovery. The suggestion is made that the plaintiff's servants were induced to sell the rioters liquor through fear. The plaintiff retailed liquor for profit, and her servants accepted these persons as customers, and drank with them. The remark that they came to kill the plaintiff does not appear to have excited alarm. The plaintiff cites Ely v. Supervisors of Niagara County. 36 N. Y. 297. There certain good people, becoming indignant over the disorderly, licentious and criminal conduct of people who made a bawdy-house their rendezvous, tore it down. The court held that the bad reputation of the house, and the bad conduct of its frequenters, were not the proximate cause of its destruction. The good people were misdirected, not through the agency of the proprietor of the house; he had nothing in common with them; his bad conduct could only lawfully lead them to seek lawful redress, and in no sense could he be held to have invited lawless violence. The case would have more resemblance to this if the patrons of the house had in their orgies torn it down. He who furnishes liquor to him whom the liquor infuriates, is, in the cases mentioned in the Civil Damage Act, liable for the consequences; in the case at bar it is only necessary to hold that to him the county is not an indemnitor against the consequences." In Smith v. Ratcliff, Mississippi Supreme Court, June 3, 1889, it was held that insurance money due on a house occupied as a homestead, which has been burned, is not exempt from execution under a homestead exemption law. The court said: “A homestead is exempt, and the house is part of it, but the money due on a policy of insurance on the house is neither the house nor the representative of it. It is the result of a personal contract of indemnity against the loss of the house, which contract was founded on an independent consideration, in the premium paid by the insured. The house was the subject of the contract it is true, but the indemnity was purchased by its price, the premium paid. What the law exempts is the homestead, and not what may grow out of it or arise from it as the result of some contract made by the exemptionist the homestead, and not the proceeds of it in another form, which is not exempt. If the exemptionist had sold his house the debt due for it would not be exempt, because the statute does not declare that money shall be exempt which arises by contract from what is exempt. The money made by the use of the homestead is not exempt, and when exempt property is by the act of the exemptionist converted into what is not exempt the protection of the exemption laws cannot be claimed; but even if the proceeds of the homestead were exempt the money due by the policy of insurance would not be, for it is not the proceeds of the house, but of the policy — an independent personal contract. The house was not insured. The owner was insured by the contract to pay him a sum of money as indemnity against loss. These principles are universally recognized so as to deny to a mortgagee, who has no special contract right as to insurance, the right to claim the proceeds of a policy of insurance as appropriable to his mortgage on the insured property; and we have held that a fraudulent grantee of land may hold the money due by a policy of insurance on a building on it against the claim of creditors entitled to subject the land and building to follow the insurance money. Bernheim v. Beer, 56 Miss. 149. It follows, logically, from these settled principles, that the insurance money does not occupy the place of the destroyed building, and if not, there is no legal ground on which to affirm that it is exempt because the building was. This view is fully sustained by the Supreme Court of New Hampshire. Wooster v. Page, 54 N. H. 125. Thomp. Homest. & Ex., § 750, says: 'The insurance money is not liable to garnishment,' and cites Houghton v. Lee, 50 Cal. 101, and Cooney v. Cooney, 65 Barb. 524, to support this view; and after stating the denial of this rule by the Supreme Court of New Hamp |