edge of its fraudulent procurement. (2) For the purpose of showing that such a note was fraudulent in its inception, that the design was not to deliver the property sold, it was held admissible in an action upon the note, to show that the party who procured it had substantially similar transactions about the same time with others, in which instances the property was not delivered. It was also held admissible to introduce the writings made in such other transactions to show by the comparison of handwriting, the identity of the individual engaged in the several transactions. See Jordon v. Osgood, 109 Mass. 461. In 1 Greenl. Ev., § 512, referring to the use of answers in chancery in evidence in subsequent proceedings, it is said: some proof of the identity of the party will be requisite. This may be by proof of his handwriting." At the trial of indictments for perjury in such answers, it was held in Rex V. Morris, 2 Burr. 1198, and in Rex v. Benson, 2 Camp, 508, that identity of the person might be shown by proof of handwriting. In an action against one Ryde, as the acceptor of a bill of exchange, it appeared that a person of that name had kept cash at the bank where the bill was payable, and had drawn checks which the cashier had paid. The cashier knew that person's handwriting by the checks and testified that the acceptance was in the same handwriting; but he had not paid any check for some time and did not personally know him. There was no other proof of his identity with the defendant, and this was held prima facie sufficient. "It cannot be said there was not some evidence of identity. A man of the defendant's name had kept money at the branch bank; and this acceptance is proved to be his writing.' Roden v. Ryde, 4 Ad. & El. (N. S.) 626. Maine Sup. Ct., July 5, 1883. Nichols v. Baker. Opinion by Symonds, J. (75 Me. 334)

ALTERATION

NEGOTIABLE INSTRUMENT-WHAT IS OF NOTE.-A note read as follows: "Twelve months after date (or before, if made out of the sale of Drake's hay-fork and hay-carrier) I promise to pay to James B. Drake, or bearer, sixty dollars, negotiable and payable at the First National Bank, Sioux City, Ia., with 10 per cent interest after date until paid. If interest is not paid when due, the same shall bear interest at 10 per cent; and if expenses and costs are incurred by the holder in consequence of a failure to pay at maturity, the undersigned agrees to pay a collection fee of 10 per cent on the amount due." After it was executed the words "First" before "National Bank and "Sioux city, Ia.,' were inserted without knowledge of the maker. Held (1) that the note was negotiable, and (2) that the alteration was material and discharged the maker even as to a bona fide holder for value. In Walker v. Woollen, 54 Ind. 164, it was held that a note almost identical with the one at bar, and in all material respects the same, was negotiable. In Ernst v. Stackman, 74 Penn. St. 1, a note payable twelve months after date, or before, if made out of the sale of W. D. Coffman's improved broadcast seeding machine, was held to be negotiable. See also to the same effect, Capron v. Capron, 44 Vt. 410; Cota v. Buck, 7 Metc. 588; Palmer v, Hummer, 10 Kan. 464; 1 Daniel, Neg. Inst., §§ 42, 43. The case of Miller v. Poage, 56 Iowa, 96, is not the one at bar. The decision of the majority of the court in that case was placed upon the ground that the note was payable out of a particular fund, and hence was payable upon condition. The case of Alexander v. Thomas, L. R., 16 Q. B. 333, is not recognized in the United States as announcing a correct rule. See 1 Daniel Neg. Inst., § 42. That the alteration in question is a material one, sufficient as between the original parties to discharge the maker, is sustained by the following authorities: Woodworth v. Bank of America, 19 Johns. 392; Adair v. England,

12 N. W. Rep. 277; Townsend v. Star Wagon Co., 7 id. 274; White v. Hass, 32 Ala. 430; Nazro v. Fuller, 24 Wend. 374; Whitesides v. Bank of Kentucky, 10 Bush, 501. That a material alteration of a note may be shown, even as against the indorsee thereof for value before maturity, was determined by this court in Knoxville Nat. Bank v. Clark, 51 Iowa, 564. Iowa Sup. Ct., June 8, 1883. Charlton v. Reed. Opinion by Day, J.

NEGOTIABLE INSTRUMENT-WHEN COUNTER-CLAIM TO NOT ALLOWABLE.-The maker of a note, transferred after it is due, sued in the name of transferee, cannot plead in offset a matter which existed between him and the payee at the time of the transfer, although he cau plead payment or any defense, which grew out of the note transaction. Walbridge v. Kibbee, 20 Vt. 543; Bowen v. Thrall, 28 Vt. 382. Vermont Sup. Ct., January Term. 1883. Armstrong v. Noble. Opinion by Ross, J. (55 Vt. 428).

CORRESPONDENCE.

MORE ABOUT GOWNS.

Editor of the Albany Law Journal:

Prior to the American revolution, each officer as well as each member of the royal family and aristocrat, from the king downward, had his peculiar insignia to proclaim his rank and power, and astonish what they regarded as the swinish multitude, but when our fathers adopted the declaration of independence and proclaimed equality, and constituted each freeman of this country one of its sovereigns, they with universal accord eschewed all the follies of heraldry, and the tinsel gewgaws and regal trappings designed to perpetuate castes and heart-burning distinctions, and foster pride and vanity in official station,

"To the limbo of lunary souls."

If judges

prior to this republic wore wigs and gowns, so did others clad in a little brief authority or inheriting some title of nobility wear their regalia, or earmarks of superiority

why did the custom cease (except with one court which was mistakenly too conservative to comply with the spirit of the age), if not for the potent reason that it was regarded as anti-republican and uncongenial to the simplicity and equality of this country. Our fathers levelled these petty monarchical distinctions and prohibited titles of nobility, and based their government and institutions upon the nobility of freemen, holding

"The rank was but the guinea's stamp,

The man 's the gowd for a' that."

The "cultured public taste" now claimed to be hankering for gowns is exceedingly limited, and is mostly found among a few, who in their travels in the old world have imbibed an admiration for some of the effete customs and traditions, that for more than a hundred years have been dead, or only lived "at a poor dying rate'' under the stars and stripes.

If the grave and learned judges of the Court of Appeals shall ever ensconce their manhood in gowns, doubtless it will be because in their judgment such usage will tend to exalt and dignify its members and benefit their august tribunal, or at least protect it from the improper approaches of lawyers and laymen. Save for the resolution of the Bar Association the idea of such a result might be deemed quixotic. Can the members of that court find a reason for adopting a livery that will not be equally valid for all other judges, including justices of the peace and all persons holding official positions?

Did our Spencers and Kents, and their compeers, our lieutenant-governors, the judges of our former Supreme Court, the chancellor and senators when sit

ting as a Court of Errors, ever feel a necessity for intrenching their wisdom and dignity in gowns? And when our Court of Impeachments shall again sit, will "cultured public taste" require it to don gowns? the judges of our court of last resort will never put on gowns from any personal vanity, but if done it will be because the judges find it necessary to attempt to thus magnify their office-and as they are

""The mark and glass, copy and book,

That fashions other tribunals,"

their action will be precedent for every other officer,

cabinets and foreign ministers, congressmen, governors, etc., to assume official garbs, befitting their several stations.

Are lawyers conducting themselves with less courtesy and refinement, or with less respect to the court than they have for the past hundred years, that they must now be rebuked and awed by majestic gowns? and will they have a higher regard for one of their number elevated to the bench when disguised in the garb of a woman? If the multitude are to be somewhat civilized and refined by gowns, the judges will need to wear them not in courts alone, but in all public places-which would quite as much incommode them as the judicial wig did Lord Eldon-who prayed the king "that when he was not sitting at a court, he might be allowed to appear in his own hair."

If one would excite his risibles or arouse his contempt at the absurdities of official costumes, let him read of the rivalries and jealousies among judges, barristers and advocates, and the orders, both regal and judicial, as to parti-colored garments, and who might wear scarlet or yellow or black-and who might trim their collars or ruffs, or gowns and wigs with ermine or minever, and who only with lambskin, etc., in old England. But our republican common-sense has reacted upon the mother country, and the late Chief Justice Campbeil in his Lives of the Chancellors, alluding to wigs, says "who would have supposed that this grotesque ornament, fit only for an African chief, would be considered indispensable to the administration of justice in the middle of the nineteenth century."

Employers may bargain that their employees shall wear liveries. in their service, but for a handful of lawyers to hastily dictate that the Court of Appeals,

the honored servant and instrument of five and onehalf millions of people, shall go into livery contrary to all the traditions of this Commonwealth, and over

ruling the judgment of the fathers unanimously fol

lowed for over a century, is arrant assumption.

The eloquent and illustrious champion for judicial costume, referring to Job, says truly that he declared his judgment "was a robe and a diadem"-but Job was no judge, and there is no assurance that his poetical robe, was a gown, and much less is the text authority that our judges should assume diadems. But that Prince of Arabs also declares - "I put on righteousness (not a gown), and it clothed me." "I was eyes to the blind and feet was I to the lame, I was a father to poor, and the cause I knew not I searched out"-thus performing the duty of a faithful lawyer. "An army with banners" may continue the bloody trade with sword and gun and cannon and pennons, and still give no sanction to the judicial innovation now sought-especially if

"Inter arma silent leges."

The bar of the State would illy brook any dictation from the bench in regard to tonsure or costume, and it is questionable, whether instead of elevating the bench the action of the bar association has not lowered the diguity of the profession by turning tailors or mantua makers,

day, January 29, 1884.

Order reversed and relator discharged-In re application of David A. Paul, etc.-Judgment affirmed with costs-William B. Scott et al., appellant,v. Charles Morgan, respondent; Oliver Drake Smith, respondent, v. Michael G. Zalinski, appellant; Henry Chamberlain, respondent, v. Harriet A. Brady and another, execu tors, etc., appellants; George Whitney and others, appellants, v. Joachim Lebenheim and another, respondents.-Judgment affirmed-People, etc., respondents, v. Edward Kelly, appellant.-Order of General Term reversed; those of surrogate affirmed without costs of this appeal to either party as against the other in this court-In re Estate of Godard, L. Josephine Godard, resp., v. George B. Abbott, public administrator in Kings county, appellant.- -Judgment affirmed with costs, but with leave to the defendant, Mrs. Duffie, upon payment of costs, to answer the complaint within twenty days-Maria De La Salud Ovied Younyer, respondent, v. Mary Ann Felton Duffie, impleaded, etc, appellant.-Appeal dismissed with costs-- William P. Clyde and another, respondents, v. Amos Rogers, appellant. Order of General Term affirmed with costs-In re Will of Ambrose S Higgins.

THE

NOTES.

THE Pacific Reporter is fairly under way. It is issued weekly by the West Publishing Company, of St. Paul, Minn., the publishers of the North Western Reporter and the Federal Reporter, both most admirable in their way, and this promises equally well. It will report every opinion of the Supreme Courts of California, Colorado, Kansas, Oregon, Nevada, Arizona, Idaho, Montana, Washington, New Mexico, Utah, Wyoming. The Criminal Law Magazine for January contains leading articles on Nolle prosequi, by Charles H. Winfield, and Inequality of Punishment (from the Nineteenth Century), by Sir Edward Fry. The American Law Review for NovemberDecember contains the following leading articles: Of the enforcement of debts contracted and liabilities incurred by receivers of railroads, by George W. McCrary; Constructive notice, its nature and limitations, by William L. Scott; Burden of proof in criminal prosecution, by Emlin McClain; Professor Pomeroy and the United States Supreme Court, his arraignment of it not justified, by James F. Mister.-The American Law Register for December, 1883, contains a leading article on Some Points of Comparison between English and American Legislation as to married women's property, by Charles Chauncey Savage, and the following cases: Castellain v. Preston (Eng. Ct. of App.), on insurance of house under contract of sale, with note by Hugh Weightman; Johnson v. Hunt (Ky.), on agreement of marriage brokerage, with note by W. W. Thornton; Norton v. Blinn (Ohio), on action by principal against agent for moneys received in an illegal transaction, with note by Adelbert Hamilton,

The Albany Law Journal.

ALBANY, FEBRUARY 9, 1884.

THERE

CURRENT TOPICS.

HERE is one other man beside ourself who has read Mr. Carter's pamphlet on codification, and that is Mr. Austin Abbott, and we wonder, for Mr. Abbott is a very busy man. Here is what he says on the subject in the New York Daily Register: "If all of us were masters of the general principles which Mr. Carter claims should not be hampered by statute law we might all agree with his conclusions on the controversy to which these distinctions are introductory. But the need and justification of codification is in the necessity of an authoritative statement of what is settled law. There are questions constantly discussed at the bar simply because counsel and attorneys on one side, or both, are not aware they have been settled; and because the court is not so absolutely sure that they have been settled or have not been unsettled again, as to stop counsel in the discussion. There are questions constantly arising in business on which a lawyer has to spend hours, perhaps days, in finding and satisfying himself that he has found a reliable statement of what is settled; when if he had the learning and experience of our author he might have spoken with confidence at once. A code is the authoritative statement of what is the settled law, or what, in the judgment of the Legislature or their commis sioners, ought to be settled. It is not intended to invade the domain of debatable questions save in the exceptional instances where there is a general agreement of opinion that vexatious and expensive doubts should be authoritatively removed. The fact that any code is subject to imperfection is no more an argument against it than the abundance of

overruled and reversed cases which attest the im

perfection of jurisprudence is an argument against resort to judicial decision. Mr. Carter's discussion of the subject set in a clear light the reasons why a code should not attempt to devise a rule for every possible case or even attempt to settle every existing doubt; but no code has ever proposed this." We call special attention to the last sentence. The principal fault found with the proposed code, so far as we know, is its triteness and its enactment of familiar and simple principles.

Quite pertinent to our correspondent's remarks in another column on Relief of the Court of Appeals, is the following from the New York Daily Register: "There are and always will be frequent occasions when parties or their counsel may prefer to have a question finally reviewed by the court of last resort, sitting at the capitol, rather than by judges of the locality where the controversy arose; but in the great majority of cases there is no question but that thorough discussion before general term, if followed VOL. 29 No. 6.

by actual deliberation by the judges of that court, will form the best and most satisfactory barrier against the throwing of an undue amount of business upon the Court of Appeals. We do not mean to intimate that such deliberation is not usual, but it cannot be denied that the lack of it is far too common under the pressure which newspaper criticism puts upon the courts for rapid dispatch of business." In connection with this the editor lays stress on the manner of making up records for appeal as a cause of hinderance. There can be no doubt that our records, especially since the prevalence of stenography, are abominably prolix and impertinent. This is mainly remediable, but still under our system a great deal of evidence on facts, properly before the general term, inevitably gets before the Court of Appeals where it has no business.

Mr. Croly, formerly editor of the World, is in favor of abolishing the attorney-general of the United States. He also yearns for "a mitigation of the lawyers' monopoly." In John Swinton's Paper he says: "One class, not over ten thousand in number throughout the United States, furnishes all our rulers, law-makers and judges; that is to say, the second-class lawyer furnishes nearly all our presidents, cabinet secretaries, governors, mayors, congressmen, legislators and members of local governmental boards. I say second-class lawyers advisedly, for first-class lawyers can make more money in their plundering profession than in holding offices. The lawyer caste in this country makes all our laws, expounds them from the bench, and enforces them in executive offices. The lawyer is supreme everywhere, even in so-called reform organizations. Scarcely a newspaper in the country but what some lawyer has more to say than its managing editor." For "makes all our laws, expounds them from the bench " read, "makes and expounds all our laws on the bench," and he is right. Another decade or two of this, and Mr. Croly's wish will be gratified, for although lawyers may be too blind to see it, yet it is a fact that we can see, that the community are growing very tired of lawyers; and for this our system of unwritten law is chiefly to blame.

Mr. Kruse has introduced in the assembly a bill to allow married women to contract in the same manner and with the same effect as if unmarried. This measure has been introduced in former Legislatures, but we believe has never passed. It ought to prevail. It would do equal justice to the married women and to the public. It would not make a wife liable by implication where she contracts for her husband, as for example, for necessaries, and yet under this act she could bind herself for such articles if she chose, without troublesome formalities. Strange to say, it is understood that the "women's rights" people are opposed to it. Reformers however are always impracticable. Just so the ultratemperance people are opposed to Mr. Roosevelt's

excellent high license bill, on moral grounds. We recollect that the abolitionists, who had more sense, never failed to buy a slave when they could get him cheap and could not steal him.

If the author of the "Bread Winners" is not a lawyer, he has at least read the New York Reports to some purpose. When Sleeny is put on his trial for the murder of Offit, he has really no legal defense. But as he killed the man who had conspired to convict him of a crime, and to rob him of his sweetheart, it is one of those cases where a jury in most parts of the country would be likely to give a milder sentence than the law called for, where in Kentucky the prisoner could certainly count on an acquittal. In Sleeny's case the jury finds a verdict of "justifiable homicide" which return being flatly against the law and evidence, the judge refuses to receive. They come back with a verdict of acquittal on the ground of "emotional insanity," which verdict the judge is forced to receive. And it is here that the author makes a caustic reference to one phase of our jury system, which is likely to be looked upon by the unprofessional reader as an intentional travesty: "But this remarkable jury determined to do nothing by halves; and fearing that the reputation of being queer might injure Sam in his business prospects added to their verdict these thoughtful and considerate words which yet remain on the record, to the lasting honor and glory of our system of trial by jury: And we hereby state that the prisoner was perfectly sane up to the moment he committed the rash act in question, and perfectly sane the moment after, and that in our opinion there is no probability that the malady will ever The unprofessional reader should know that this is not fiction. It is the exact verdict, founded on the instructions of the court, of the jury in the case of People v. Cole, 7 Abb. Pr. (N. S.) 321.

recur.

Our correspondent who sends us the communication, published in another column, on the United States Supreme Court Reports, appends a postscript, saying that he supposes we "do not dare publish this." We are not easily "stumped." We dare anything that we think is right, and our correspondent should have known it by this time. We especially desire the legal profession to know that this JOURNAL is a medium, on which they can always depend, for the promulgation of their faultfinding and criticisms, so long as their communications are becomingly expressed. We have never rejected more than two or three communications in our management of this JOURNAL. At the same time, we would remind our correspondent that much of the delay in official reporting is due to the unavoidable retention of proofs by the judges. To get a volume of official reports in three months from the delivering of the opinions seems to us as prompt as can be expected.

Our weekly contribution to the "Humorous Phases of the Law," is found in the case of Nuzum

v. State, 88 Ind. 599. This was a prosecution for a violation of the excise laws. The court said: "Several ladies belonging to a temperance organization were summoned as witnesses on behalf of the State, and it was charged at the trial, and is reiterated in argument here, that these ladies were summoned by the prosecuting attorney for the purpose of unduly influencing the jury by their presence as well as their testimony, against the appellant, and that in that respect the prosecuting attorney was guilty of misconduct at the trial prejudicial to the appellant. In the first place, it was not shown that the prosecuting attorney caused or procured these ladies to be summoned as witnesses or to be brought into court in any other capacity. In the next place, it was not made to appear affirmatively that they were present in court for any unlawful or improper purpose. Their presence was at most a mere matter for comment before the jury, and can not be presumed to have exercised any undue influence upon the verdict rendered in the cause." In ruling upon a question of evidence in connection with the inquiry as to what kind of a liquid Catawba cider is, the court remarked, "It may be another name for lager beer, for all I know." The appellant assumes that this remark implied a sneer at, and a disparagement of, his defense in the presence of the jury, and in this way inflicted upon him an injury for which he became entitled to a new trial. But the appellate court did not think so. Judge Davis and Judge Arnoux should secure that judge for a coadjutor in their "temperance" campaigns. He certainly must be a temperance man.

ness.

"The Mormon must go! Such is the closing declaration of a publisher's circular sent us, announcing a new story which is going to settle the busiWe do not mind publishing part of this circular, as the most direct way of accomplishing what the publisher wants: "We have in hand the copy of a new story- a thrilling and powerful tale - involving the pregnant (sic) question of mormonism, we propose to illustrate it in handsome style, and issue a large subscription edition this coming spring. We shall soon issue our prospectus, and advertise in the leading newspapers for agents to sell the same throughout the country. If you care to make a note of this fact in your literary or editorial columns, and send us a marked copy of your paper, we feel that you will not regret thus emphasizing the discussion of a question replete with interest and concern to the people of the United States." We are not informed of the author's name. Can it be Senator Edmunds? or is the author of theBread-winners" the lucky man who is going to "hasten the day for the uprising of an indignant nation," as the circular eloquently phrases it. We do not know what the publisher means by saying that we shall not "regret emphasizing," etc., but we have a strong suspicion that it is a Boston device for getting free advertising. However, we cast our bread on the waters.

IN

NOTES OF CASES.

N Henkel v. Murr, to appear in 30 Hun, 28, it was held that to render the owner of a building, the rooms in which are rented to different tenants, liable for the injuries sustained by a person who while visiting one of the tenants caught her heel in a hole in the oil-cloth laid upon the stairs in the hall, it must be shown not only that the fall was occasioned by the dangerous condition in which the oil-cloth was left, but also that the landlord neglected after having had knowledge or notice of its dangerous condition, to repair the same, or that he omitted to use reasonable means and precautions to ascertain its condition and make the requisite repairs. Also that evidence that some time after the accident the landlord had put new oil-cloth upon the stairs was inadmissible. The court said: "But the question is not one of contract. The liability rests wholly upon actual negligence, in which the duty or obligation of the landlord is only an element; a most important one, it is true, but by no means exclusive and controlling. In addition to that element it must appear that with some notice of the condition of things, or under some circumstances equivalent to notice, such as an unreasonable omission to ascertain the condition, he had failed to make the necessary repairs or changes called for by the condition or exigency. It was not enough therefore to find that a hole had come in the oil-cloth in which the plaintiff's heel caught so as to cause the fall which injured her, for in the nature of things all that might occur without just ground to charge the landlord with negligence. * * Against the appellant's objection and exception it was shown that some months after the accident to plaintiff the defendant had put new oil-cloth upon the stair-case. It has been frequently held that such evidence is not admissible to show knowledge of dangerous condition at the time of the injury. The cases are very decisive on that subject. Dougan v. Champlain Transportation Co., 56 N. Y. 1, 8; Baird v. Daly, 68 id. 547; Salters v. Delaware and Hudson Canal Co., 3 Hun, 338; Morrell v. Peck, 24 id. 37." On the latter point, see, to same effect, Hudson v. Chicago and North-western R. Co., 59 Iowa, 581; S. C., 44 Am. Rep. 692, and note, 694.

*

to get on board a moving train, no improper or negligent act of the conductor in shutting the gate would have injured him; or in other words, the negligence of the deceased put him in a position where the negligence of the defendant's servant produced the injury which resulted in the fatal injury. While the elevated railroads are to be held to strict responsibilities, it cannot be too strongly impressed upon the minds of all persons who make daily use of the elevated railway trains that their duty to themselves, as well as to the railway company, is to obey the reasonable rule of law and of good sense that forbids all attempts to board a moving train. The act is none the less dangerous because it is often done with impunity. When the train is in motion, whether the platform gates are closed or not, more or less risk of danger always accompanies an attempt to get on board the cars. The law must hold the taking of that risk by a passenger to be negligence, because it is an imprudent exposure to danger of serious injury. To accomplish 'rapid transit,' a great and now indispensable convenience to an active and busy population, the trains must not only be frequent and travel speedily, but must stop and start quickly, otherwise great frequency of trains would be impracticable. They who find a train already moving away from a station and think the few minutes before the next train of more value than safety from danger must understand that in law they take life and limb into their own keeping when they violate the reasonable rule that charges the risk of negligent exposure upon themselves. The law is thus established by the highest courts and our simple duty is to respect and apply it. The court in this case should have directed the verdict for the defendant." The court cited Phillips v. Rensselaer, etc., R. Co., 49 N. Y. 177; Burrows v. Erie R. Co., 63 id. 556; See Com. v. Boston & Maine Railroad, 129 Mass. 500; S. C., 37 Am. Rep. 382, and note, 384; 23 Alb. Law Jour. 124; Jewell v. Chicago, etc., Ry. Co., 54 Wis. 610. S. C., 41 Am. Rep. 63, and note, 65.