made with him by another. He must avail himself of the remedies the law provides in such case. This rule will prevent breaches of the peace instead of producing them; it will leave the company responsible for the wrong done by its servants without aggravating it by a liability to pay thousands of dollars for injuries received by an assault and battery, caused by the faithful efforts of its servants to enforce its lawful regulations."

Learned, P. J., delivered the opinion of the court at general term, and said: "The defendants contracted with the plaintiff to take him from Sing Sing to Rhinebeck. They gave him a ticket which he was to show in the cars when requested, and to surrender to them on demand. After he had traveled for some distance they required him to surrender his ticket, and he did so. They then requested him to show it, and, as he could not do this, they put him off the cars. * * To require a passenger to show a ticket may be reasonable, but a company cannot require a passenger to comply with a regulation, compliance with which they have themselves prevented." This may be true as a general proposition, but is it applicable to the facts of this case? Though the former conductor wrongfully took up the plaintiff's ticket, was he thereby prevented or excused from complying with a regulation in another train? Judge Grover's opinion is, that the plaintiff was bound to comply with such regulation or pay his fare, and that the company was liable, not for ejecting him, for such ejectment was rightful, but for wrongfully taking up his ticket. But Judge Learned is of a different opinion: "Nor can it be said that the act of the conductor in taking up the ticket was wrongful toward the passenger. The company might take up its tickets whenever it chose. But they could not, by so doing, acquire the right to refuse to transport the passenger." The first and principal question in the case is, whether the act of the conductor in ejecting the plaintiff from the car was wrongful. If such act was wrongful, the conductor would be personally liable; but to hold that the act of the conductor was wrongful, and consequently to impose upon him a personal liability would, under the circumstances of the case, be manifestly unjust and oppressive. To hold a conductor liable in such a case, would be to hold one servant personally liable for the wrongful act, neglect or default of another; to require one conductor, in order to protect himself from personal liability, to accept a passenger's word that he

had a ticket but the conductor of the other train took it up. It is clear that, so far as the conductor himself was concerned, his act was rightful. Though such act was rightful as regards the servant, would it be wrongful as regards the company? Now, if the plaintiff was rightfully ejected, and the cause thereof was the act of the former conductor in taking up his ticket, was not such act wrongful toward the plaintiff? Or, if a | passenger is compelled to pay his fare again to another conductor, and the cause thereof is the act of the former conductor in taking up his ticket when he should not have taken it up, is not such act wrongful toward the passenger? And in a proper case, would not the law allow exemplary damages?

But that case is distinguished by Judge Grover, on the ground that there the conductor, in reply to the passenger, assured him that he did not need any transfer ticket, that if he came from the other car he could go on board this car, and afterward ejected the passenger because he had no ticket.

The Supreme Court is sustained by the following cases, which are not referred to by the court, viz.: Pittsburg, etc., R. R. Co. v. Hennigh, 39 Ind. 509; Palmer v. Railroad, 3 S. C. (N. S.) 580. BUFFALO.

ADJOURNMENTS IN KANSAS.

F. P. M.

TOPEKA, KANSAS, June 26, 1875.

Editor of the Albany Law Journal:

In civil cases, in this State, before justices it is provided, Sec. 81, page 794 of the General Statutes, that a "trial may be adjourned upon the application of either party, without the consent of the other, for a period not exceeding thirty days, as follows: The party asking the adjournment must, if required by his adversary, prove by his oath, or otherwise, that he cannot, for want of material testimony, which he has been unable to procure, safely proceed to trial." No description of the testimony is required. Usually the defendant files his affidavit, substantially in the language of the statute. Especially is this the case when he has no defense and only desires delay. In ninety-nine cases in every hundred he has made no attempt to procure his testimony or prepare for trial, but has relied upon obtaining a continuance. In brief, and I regret to say, in truth, these affidavits, as a rule, are false and frivolous. Yet our lawyers have construed the statute above quoted to give the justice no discretion, or the opposite party any right to inquire into the character of the testimony which, it is claimed, is material and could not be procured! This evil has grown to such proportions that it is impossible to proceed with any case, in which there is no defense, without this delay. Now if this construction of the statute quoted is sound, there can be no doubt among men of common sense that the statute itself is dangerously unsound. Therefore, your opinion of our construction is material. Very Truly,

J. V. ADMIRE.

[Our opinion is that your construction is wrong, and that a justice should be satisfied, before granting an adjournment, of the good faith of the application, or in other words, of the materiality of the absent testimony - not from the ipse dixit of the applicant, but from a description of the testimony expected. The language of the statute in this State (2 R. S. 469) is substantially the same as that quoted above, and the construction put upon it is directly opposed to that put upon the Kansas statute by the Topeka lawyers.- ED. A. L. J.]

COURT OF APPEALS DECISIONS.

THE following decisions were handed down in the

1875:

v.

New York Court of Appeals on Friday, June 25, Motion granted-Wentzler Aldrich. - Apv. Nelson. Judgment plication denied - Smith affirmed, with costs- Cole v. Miles; Coleman v. Shattuck; Mullaly v. The Mayor, etc.; Krekeler v. Ritter; Pellman v. The Mayor; The Excelsior Sav

son. Judgment reversed and new trial granted, costs to abide event - Brennan v. The Mayor.-Order affirmed, with costs-In the matter of John D. Voorhis.. -Order of general term reversed and judgment for plaintiff on verdict, with costs - People ex rel. Hogan v. Flynn; People ex rel. Loutrel v. McCabe.

- No. 76.-The Railway Passenger Associated Company v. Warner-argument resumed and concluded.

- No. 72.-John Chapman, respondent, v. Charles J. | Mills et al., appellants, and No. 229, Same v. Same, were argued together by A. J. Parker, of counsel for appellant, and of George F. Danforth, for respondent.

No. 94.-W. M. Loyd and another, respondents, v. William W. Burns, appellant-submitted. No. 95. -Miles Kent and others, appellants, v. Hector S. Kent and others, respondents-argued by John W. Denning of counsel for appellants, and by J. J. Van Allen for respondents.

'dysporte in which a man joyeth without any repentance," and which is "the very meane and cause that enducith a man into a mery spyryte; whyche after the sayd parable of Salomon and the sayd doctrine of phisyk makyth a flourynge aege and a longe." Mr. Van Sicklen has gotten out an equisite edition of the work, preserving all the quaintness of type and orthography, and has besides reproduced the illustrations of the original edition, which are certainly unique if not quite up to the demands of modern art.

Senator Wm. B. Woodin, of the New York legislature, declines a banquet tendered him by members of the New York Chamber of Commerce in recognition of his services in procuring the amendment to the Court of Arbitration law. Senator Woodin, in speaking of the New York Court of Arbitration, says: "I congratulate

THE

NOTES.

law department of the Michigan University for the academic year just ended numbered 345 students. There were three ladies in attendance in this department. A vacancy caused by the temporary absence of Hon. C. J. Walker has been filled by Prof. William P. Wells. Of the senior class in the department of literature, science, and arts, 63 studied international law. The Secretary of State has directed the corporation attorney of New York city to prosecute certain individuals for refusing lawful information to the census enumerators.- -The Central Law Journal states apropos of the remarks made by it in reviewing the trial of Lavitt Alley: "Upon the propriety of inserting in an indictment a number of counts, describing the killing as having been done in different ways, a valued correspondent calls our attention to Mark Twain's form of indictment in the celebrated trial in the Gilded Age. The clerk then read the indictment, which was in the usual form. charged Laura Hawkins, in effect, with the premeditated murder of George Selby, by shooting him with a pistol, with a revolver, shot-gun, rifle, repeater, breech-loader, cannon, six-shooter, with a gun or some other weapon; with killing him with a slungshot, a bludgeon, carving-knife, bowie-knife, penknife, rolling-pin, car-hook, dagger, hair-pin, with a hammer, with a screw-driver, with a nail, and with all other weapons and utensils whatsoever, at the Southern Hotel, and in all other hotels and places wheresoever, on the 13th day of March, and all other days of the christian era whatsoever.'"

It

Mr. Geo. W. Van Sicklen, of the New York bar, has prepared an American edition of Dame Juliana Berner's quaint "Treatyse of Fysshynge with an Angle, from The Boke of St. Albans,” which was first printed in 1496, by Wynkyn De Worde, and which is said to be not only the earliest and most curious essay upon the subject which has ever appeared in the English language, but also to have been the text or model of rare old Izaak Walton's famous treatise. Though not strictly a law book, we hope most lawyers will find it, during these summer days, more profitable and entertaining reading than any legal classic, as we are sure they will if they have a proper appreciation of that

and enduring basis of the tribunal known as the Court of Arbitration. To the Chamber of Commerce belongs the credit of initiating (in this country at least) this conciliatory method of determining controversies incident to mercantile operations. The inherent merits of the system, its obvious necessity and practical advantage to the commerce of the country, as demonstrated in the brief period since its adoption in 1874, should have disarmed all opposition and secured the prompt acquiescence of the legislature. However, now that the tribunal is established upon a just and simple basis, I predict that it will grow in public favor and confidence, and that the vexatious and expensive litigations, heretofore a serious embarrassment in conducting important commercial transactions, will seldom occur."

-The Richmond Enquirer states that the act of Horace Greeley in bailing Jefferson Davis "is regarded as the sublimest episode in the Iliad of an honorable life." —Judge Dillon arrived at Queenstown, Ireland, on the 14th ult. From thence he proceeds to London and the continent, and returns home about the 1st of November.

A contemporary states that in Upper Canada admission to the legal profession rests with the law society of that part of the Dominion. This society exercises the power of calling students to the bar as well as imparting professional education to them, and the first step toward admission to the profession there is to be admitted into the society as students, either as graduates or in the junior class, and there are four kinds of examinations, preliminary, intermediate, for certificates of fitness, and for call to the bar. All students are described as "students at law." University graduates in the faculty of arts are entitled to admission without service or examination. Once admitted into the profession, a Canadian lawyer can act in his profession without restriction such as that which obtains in England.An Australian newspaper has the following: “A gentleman of the legal profession at one of the great mining centers, having spent a gaudy evening at a leading hotel, found the fresh air too much for him. Instead of reaching the bosom of his family, he gravitated to the lock-up, with the much-needed assistance of a servant of the Queen in full uniform. The lock-up keeper didn't know him, and consequently couldn't send for his friends to bail him out, as is frequently done by those tender-hearted officers of justice. So he was allowed to sleep until seven in the morning, when

he was aroused and asked his name, which he promptly said was 'Johnson.' He obtained soap, water and a clothes-brush, and was refreshed by a cup of tea. He then proposed to the lock-up keeper that the officials should walk beside him to the police court. When the time came this was done, and by keeping the officer in earnest converse, it appeared as though the lawyer was engaged upon some business before the court, and when the name of Johnson was called, he calmly rose and said, I appear for the prisoner, your worship.' 'What!' said the police magistrate, do you deny that he was drunk?' 'Oh, no,' he replied, 'he was very drunk, but is very sorry for it.' Five shillings, or six hours' imprisonment,' said the police magistrate. 'I will pay his fine myself,' said this ready-witted gentleman, who in this instance showed that the man who is his own lawyer hasn't always a fool for his client."

The English law papers are taken with the idea of the New York Law Telegraph, and recommend its introduction into London. The Law Journal said

recently, after describing the plan and modus operandi of the New York company, "How long will it be before the profession in London has the advantage of a Law Telegraph Company; whenever that boon comes we shall owe a debt of gratitude to American ingenuity and enterprise." The frequent meetings which the various law societies and the inns of court in England have, show that the organization of the profession in England is not only nominal but real. On the "Grand Day" of Trinity term the benchers of the Middle Temple entertained a large number of judges and other guests at dinner, including the Earl of Devon, Lord Hatherly, Lord Justice James, the Master of the Rolls, Sir James Hannen, Baron Bramwell, etc., etc. The day was also celebrated by Gray's Inn, where the guests included the Lord Chief Justice of England, Vice-Chancellor Malins, Vice-Chancellor Hall, Justice Lush, Baron Amphlett, The Lord Advocate of Scotland, and the Solicitor-General for Ireland.

The studentship in Jurisprudence and Roman Civil Law, of 100 guineas, awarded by the Council of Legal Education for 1875, was presented to Miles Walker Mattinson, a student of Gray's Inn.

The pensions for judicial services in Great Britain last year amounted to more than fifty-eight thousand pounds, and in Ireland to more than seventeen thousand pounds.- —A son of the Duke of Argyle has joined the Middle Temple. The French are nothing if not witty. A French lawyer in making his will said, "I give all my goods to the idiots, the lunatics and the fools of my native town." One of the testamentary witnesses asked why he did thus. He replied, "It is from them that I have gained my fortune, and it is only just that I should return to them part which I have not spent myself."—There have been also a great many witty English lawyers. The Law Times relates the following of Lord Plunket: Lord Wellesley's aidedc-camp Keppel wrote a book of his travels, and called it his personal narrative. Lord Wellesley was quizzing it, and said, "Personal narrative? What is a personal narrative? Lord Plunket, what should you say a personal narrative meant?" Plunket answered, "My Lord, you know we lawyers always understand personal as contra-distinguished from real." Parsons was another Irish barrister of that day who was noted for his caustic wit. Lord Norbury on some circuit was

on the bench speaking, when an ass outside brayed so loud that nobody could hear. He exclaimed, "Do stop that noise!" Parsons said, "My Lord there is a great echo here." Somebody said to him one day, "Mr. Parsons, have you heard of my son's robbery?” “No; whom has he robbed?"

The Irish Law Times says: "In Manning and Bray's 'History of Surrey' we find the following strange story, with a voucher for its truth. In Newington church is buried Mr. Sergeant Davy, who died in 1870. He was originally a chemist at Exeter; and a sheriff's officer coming to serve on him a process from the Court of Common Pleas, he civilly asked him to drink; while the man was drinking, Davy contrived to heat a poker, and then told the bailiff that if he did not eat the writ, which was of sheepskin and as good as mutton, he should swallow the poker! The man preferred the parchment; but the Court of Common Pleas, not then accustomed to Mr. Davy's jokes, sent for him to Westminster Hall, and for contempt of their process committed him to the Fleet Prison. From this circumstance, and some unfortunate man be met there, he acquired a taste for the law; on his discharge he applied himself to the study of it in earnest, was called to the bar, made a sergeant, and was for a long time in good practice."— Governor Tilden vetoed the bill entitled "An act in relation to the State prisons and penitentiaries," which provided for the reduction of sentences of imprisonment for life or for a period of twenty-five years and upward, to fifteen years. The governor, in referring to crimes punishable by long terms, says: "As a general rule persons guilty of these offenses are unfit ever again to associate with their fellows. A man who proposes to himself the commission of either of these felonies should have before him, as an element of his calculations, the prospect of being forever immured within the walls of a prison. The terror of the law which now deters men capable, through revenge, passion or lust, of committing these crimes would be greatly lightened by a change which provides for their liberation even at the end of the long period of fifteen years. Even for the sake of promoting good order in the prison I cannot assent to an enactment which tends to lessen the just sense of the atrocity of these crimes or of the wickedness of those who commit them."

The Legal Gazette, in speaking of the statement of Judge Davis, that all the legal journals in the country uphold his decision in sentencing Tweed, says: "Events have proved that the judge was mistaken. We have yet to learn of one that supports him. Without exception we believe they have all condemned him."-There is one colored man on the bench of the South Carolina Supreme Court, and about fifty colored men at the bar. The New York World, sometime since, in speaking of the Court of Arbitration in that city, says it is gaining favor rapidly among the business men, and this fact is accounted for in the dispatch with which the business is conducted. As an instance, a case was brought before the court involving $1,500. Within a few minutes after the hearing the arbitrator gave his decision, and the defeated party immediately made out his check for the amount of the judgment. This put an end to the difficulty.

which forbids a State to levy any duty on tonnage, without the consent of congress, has been recently construed by the United States Circuit Court at

prosecution urged that the conditional character of this agreement showed that neither party believed the marriage legal. But the court was of the opinion that it did not show that either party believed the marriage illegal, although it showed ignorance of what courts of law had decided. The conclusion reached was, that the parties contracted a valid marriage, such as could only be dissolved by death or decree of a competent court; that their agreement to dissolve the contract by their own consent was, in law, void; that if they should act under this stipulation,, and thereafter enter into similar relations with other parties, it would be bigamy; and that, as the marriage was valid, the parties were not guilty, as charged in the indictment.

A passage in the speech of the Lord Chief-Justice of England, which we elsewhere quote, is a remark

clared that "every steamboat or other vessel which may land or anchor at or in front of any landing, wharf or pier within the limits of the city, shall, for each and every trip, be charged and shall pay the city the sum of four and a-half cents per ton." The Northwestern Union Packet Company brought action to recover money paid under this ordinance. The principal question in the case was as to the constitutionality of the ordinance. The case of Cannon v. City of New Orleans, 20 Wall. 577, was followed,

and the ordinance was held to be unconstitutional. Such a result could hardly have been avoided in view of the decision in Cannon v. City of New Orleans, where it was said that "whatever more general or more limited view may be entertained of the true meaning of this clause of the constitution, it is perfectly clear that a duty or tax, or burden imposed under the authority of the State, which is, by the law imposing it, to be measured by the capacity of the vessel, and is in its essence a contribution claimed for the privilege of arriving and departing from a port of the United States, is within the pro

hibition."

In Indiana marriage, as in many of the States, is a civil contract. Recently a couple were prosecuted for fornication, when it appeared that they had married themselves in the presence of witnesses. But one of the chief grounds of the prosecution was, that the marriage was not intended to be permanent

an inference derived from the following clause in the matrimonial agreement: "Whereas the courts of law have decided that marriage is a civil contract, and governed by the same rules as all other contracts, therefore, we hereby agree that this contract exist and be in force during our physical lives, provided our mutual love and natures blend as now, but to terminate without prejudice by the wish of either party if love shall ever cease to be mutual, which event we trust and believe never will occur." The VOL. 12.- No. 2.

cial bench, Lord Cockburn seems to be animated with feelings of pride. But there is something which conveys the impression of intense regretfulness in the language which he uses in speaking of the innovations which are creeping in upon the bench of England: "We live, however, in an age of change, and the judicial bench hardly knows what its ultimate destiny may be. We have been called for many years Her Majesty's Judges, and, for aught I know, before another year passes, we shall be called by another designation. We are to be members of a High Court of Justice." These words denote almost a touching resignation to the fate of judicial reform which has overtaken even stable and conservative England. But Lord Cockburn does not indulge in those forebodings which the antireform members of the profession are apt to express. He not only accepts the inevitable, but ventures to affirm that "in after times, as now, the unimpeachable integrity of the English bench will still be maintained, and that the confidence it inspires in the administration of justice will continue for all time to

come."

In a paper on the "Penal Laws Relating to Suicide in Ancient and Modern Times," read before the Medical and Library Association of New York, Mr. R. S. Guernsey stated the common-law rule to be, that when self-killing ceases to be entirely voluntary, and when it is executed under another's compulsion, such other is guilty of homicide. Under the New York Revised Statutes (2 R. S. 661, § 7), assisting another to commit suicide is manslaughter in the first degree; while at common law, one who encourages self-murder, and is present when the person takes his own life, is regarded as principal. If the suicide is committed in the absence of the adviser, the latter is only an accessory before the fact, and cannot be convicted at common law, since the principal, being dead, is out of the reach of legal process.