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reign of Henry I, the plaintiff recovered the body of a deceased person carried away by force of the defendant, and Placita A glo-Normania is cited.

The purpose of the author was to give the lawyer's side of the subject of the courts and the conduct of causes during the Anglo-Norman period; to treat of it so as to be of service to the student of general constitutional history, and also the student of the growth of a special system of law, by showing the technical processes of the law at that time, and how causes were actually conducted through their different stages, and to elucidate the English procedure as a great branch of remedial law, developed and developing. The book treats of the constitution, kind, jurisdiction and methods of courts which then existed; the Witenge

mot or "Assembly of The Wise Men," with legisla tive and judicial functions; the Ecclesiastical Court, with its jurisdiction, large at first, afterward narrowed and limited; the King's Court, its new processes and claims to large jurisdiction, and the final establishment of its supreme and almost universal authority; the Exchequer, how and when it originated, its first character and subsequent limit; the County Court, its ancient existence and continuance through the Norman period; the Burghmot or Hustings Court; the Hundred or Wapentake Court; the Manorial Court; the Forest Court; of the Writ Process, and how the writs were gradually developed in England; Distraint; Summons; the Issue Term; the Trial Term; the Final Judgment. There is also an appendix of Carta et Placita, records of litigations in Normandy from the time of William the Conqueror to that of Henry II. Upon the several topics there is a mass of minute and well-arranged information of highest interest.

We have not the space to go more into detail. The book is a systematic and philosophical essay, and will increase the stock of general information upon the subject of which it treats, making easily accessible what but for the loving labor of the author was hidden in books and treatises at the hand of but few.

CORRESPONDENCE.

RESPONSIBILITY FOR COUNSEL FEES.

Editor of the Albany Law Journal:

Would some of your readers be good enough to acquaint me with the practice of American lawyers in a case like the following: A lawyer in New York sends to a confrère, say in Chicago, a claim for collection. Suit is entered and judgment obtained. To whom would the Chicago attorney look for his costs; the New York lawyer or the latter's client? It is, of course, understood that there is no express agreement. Yours truly,

MONTREAL, Oct 18, 1880.

LEGAL NOTICES IN SUNDAY NEWSPAPERS. Editor of the Albany Law Journal:

M.

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Your correspondent "F. L. M." may find the following cases useful: Stevens v. Owen, 25 Me. 94; Wales v. Coffin, 13 Allen, 213; Melvin v. Proprietors, 16 Pick. 137; Greenough v. Turner, 11 Gray, 332; Burge v. Smith, 27 N. H. 338; Allen v. Reynolds, 4 Jones & Spen. 298; McFarland v. Febiger, 7 Ohio, 194; Witter v. Biscoe, 13 Ark. 423; Deutzel v. Waldie, 30 Cal. 149; Prather v. McDowell, 8 Bush, 46, and Laughlin v. Fream, 14 W. Va. 322. Yours truly, J. H. S. TRENTON, N. J., Oct. 21, 1880.

OBITUARY.

EDWARD G. RYAN.

HIEF JUSTICE EDWARD G. RYAN, of the Wisconsin Supreme Court, died at his residence at Madison, Oct. 19th. He was born at Newcastle, county Meath, Ireland, in 1810, came to this country, and was admitted to the bar in New York in 1836, and immediately thereafter went West. For many years Mr. Ryan has occupied a prominent place in the affairs of the North-west. He founded the Chicago Tribune as a Democratic paper about thirty-eight years ago, and by his vigor and ability soon placed it in the lead of however, and went to Milwaukee, where he engaged Western journals. He soon wearied of editorial work,

in the practice of the law, early taking the foremost rank at the bar of that city. He was an orator of rare power, commanding in presence, forcible, logical, and, where his feelings were enlisted, terribly vindictive. In 1856 he achieved a national distinction by the manner in which he conducted the prosecution in the impeachment trial of Judge Levi Hubbell before the sen

ate of Wisconsin. When the civil war broke out, he issued the famous "Ryan address," a document remarkable for its fierce denunciation of the policy of the administration of President Lincoln. In 1874, a vacancy having occurred on the Supreme Bench, the bar of the State united in nominating him to the place, and he was elected without opposition. He was reelected for a full term two years afterward. He was a forcible and elegant writer, as the extracts from his address to the law class of Madison University, recently published in this JOURNAL, will bear witness.

S

NOTES.

S wo anticipated, the Supreme Court of South Carolina have sustained the claim of Gov. Simpson to the office of Chief Justice, holding that the election of Chief Justice Willard to that post was not for a full term, but only to fill the vacancy which made the election necessary.-A clerical friend of ours, speaking of our article on Escape, ante, p. 164, says it was St. Paul and not St. Peter who assured the jailer that "we are all here," and suggests that as we are near Troy we would better join that lawyers' Bible class. He also says that lawyers are famous for misquoting Scripture. We notice, however, that one of our legal contemporaries, in copying the article, was well enough informed to correct our error. Perhaps he had recently been attending such a class.

In Lenoir v. Ritchie, the Supreme Court of Canada — the highest tribunal in the Dominion-decided that the governments of the different Provinces had not the power to appoint Queen's counsel. The decision was rendered in such a way as to leave the question still involved in considerable doubt, and although some leading barristers whose commissions as Queen's counsel were derived from Provincial governments doffed their silk gowns and again put on the stuff, there were many eminent lawyers who persisted in maintaining the validity of the Provincial appointments. Matters have been in this state for some time, but at last the government of the Dominion has passed an order, in council, nominating a number of Queen's counsel. Most of these had already acquired the title from Provincial authority, but it is considered that the effect of the order will be to settle the vexed question once for all. The Provincial governments were very loose in their appointments, many of which, it is said, were really bad-the qualifications generally being political services rather than professional eminence. The action of the Dominion government will thus materially enhance the value of the title.

The Albany Law Journal.

THE

ALBANY, NOVEMBER 6, 1880.

CURRENT TOPICS.

THE Albany Oyer and Terminer, Justice Osborn presiding, have quashed the indictment of Briggs for the murder of Woods, for the reason that the prisoner's wife was allowed to testify for the people against her husband before the grand jury. The same testimony was permitted on the preliminary examination before the magistrate, and at the time we expressed our opinion that this was error. See ante, 81. The court now take the

same view. The statute under which this testimony

was introduced is as follows: "In all criminal trials and examinations before trial a husband or wife may be examined on behalf of the other, but upon no such trial shall a husband or wife be compelled to testify against the other." The court say, by Justice Osborn: "Does this section confer the right claimed by the prosecution? It seems to me clearly not. The only innovation which this section makes upon the common law or the statutes as they formerly existed was to give a right to a husband or wife to be examined as a witness on behalf of the other in a criminal trial or examination. Suppose this were all of the section, would it be contended for a moment that either could be called as against the other? Of course not. Now, the other words are of a negative character. They certainly create no new right or privilege as to the husband or wife being witnesses that did not exist before." "The only construction that can be given to these words to warrant the position taken by the prosecution would be, that because the Legislature said they could not be compelled to testify against the other, the inference is they might do so, if such testimony was voluntarily given. But it would be most dangerous to allow any such interpretation or construction of the section. Such an innovation upon the common law would require a positive, affirmative provision or enactment of the Legislature. She could not be called as a witness in behalf of her husband until the Legislature so enacted. She certainly cannot be called to give evidence against him until the authority is expressly given. It may be that the latter part of the section amounts to nothing. Certainly no one claimed before its enactment that husband or wife by any law that ever existed could be compelled to testify against each other. Wylie v. People, 53 N. Y. 225. But it may have been placed there (and I think this the more probable reason for the employment of the language) to prevent a husband or wife after being called as a witness for the other, or on behalf of the other, as the language is, from being compelled on cross-examination to testify to facts injurious to the party in whose behalf he or she was called. For instance, a wife might be called as a witness on behalf of the husband to prove some one isolated fact. It VOL. 22.- No. 19.

versa.

may be that the Legislature, by saying that she should not be compelled to testify or give evidence against him, intended to prevent upon a cross-examination an inquiry into any other matters not inquired of upon the direct examination, and which might be very damaging to the husband, and so vice Whether this be the correct solution or not, is quite immaterial. It is enough that no positive enactment can be found making it proper to call husband or wife as a witness against the other. The following authorities (if indeed authorities are necessary on this point) go to substantiate this reasoning: 22 Alb. L. J. 81; State v. Houston, 50 Iowa, 512; Dill v. State, 1 Tex. App. 278; Hubbell v. Grant, 39 Mich. 641; State v. Donovan, 41 Iowa, 587." The extraordinary measure of quashing an indictment, because of incompetent testimony before the grand jury, is resorted to, in this case, because, as the court say, that testimony is clearly of the greatest substance, and it is not clear that the bill could have been found without it.

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Our revised statutes require that ballots at public elections shall be "indorsed" in a prescribed manner. The Legislature last winter also prescribed that they should have a certain "caption.' Deputy Attorney-General Ruggles has given an opinion that a ballot with the required "caption" printed on the face of it, will be "indorsed" as required by the revised statutes if it is folded so as to leave the "caption" outside, the rest of the face of the ballot being folded inward. We cannot agree with the deputy attorney-general. The indorsement and the caption are distinct things, provided for by different enactments, and they must both be distinctly and separately observed. The caption is something additional to the indorsement. A caption is a heading; an indorsement is a backing. A heading cannot at the same time be a backing. The ballot may possibly have an indorsement when folded in the manner pointed out by the deputy attorney-general, sufficient to warrant its admission to the ballot-box, but how will it be when unfolded by the counters ? That is the more important occasion, and then it will prove to have no indorsement. A promissory note payable to the order of the maker would not be "indorsed" by him by his turning his signature over on the back of the note. These are matters of substance, not of mere form. The deputy attorneygeneral however admits that the ballot would not be hurt by printing the required indorsement on the outside, and this clearly being so, we cannot conceive why any risk should be run.

It is to be hoped that the judges will universally adopt the habit of citing the State reports by the title of the report and not by the name of the reporter. In our own State the Court of Appeals reports are uniformly cited as the "New York," except those of "Comstock" and "Selden," which seem to form an exception. Why they should be excepted we do not know, unless through a senti

In

mental veneration for those particular reporters, honored judges of our State in former times. referring to the United States Supreme Court reports, confusion is made by citing them, now, for example, as "Wallace" or "Otto," and again by the proper title and number. The greatest confusion arises in the case of the Pennsylvania State reports, which the Pennsylvania judges always cite by the reporter's name, and all other judges by the proper title and number. In most of the States their own reports are now usually cited, both by bench and bar, by the State name and number. The reasons for the course preferred are obvious. In the first place, it is right to call a thing by its name, and not by the name of its maker. Second, citing reports by the reporters' names frequently confuses in the case of the same name in different States. Finally, the number indicates at a glance whether the case is old or recent.

only women who dare speak on this question." Mr. Jamieson: "Then in their acquaintance they must have been unfortunate." Dr. Drysdale, of London, thought the existing marriage law in England, at any rate, exceedingly unfair to women, particularly in the matter of the custody of children.

In the discussions upon divorce the ladies also joined. Mr. J. Campbell Smith, advocate, attributed the increase in cases of divorce to the increased facilities for obtaining divorce, and not to increased immorality. His experience of the divorce courts showed that for one bad wife there were three bad husbands; but when a man had a bad wife she was thrice as bad as the worst husband. He thought there should be other grounds of divorce than adultery or desertion. Miss Downing, of London, considered drunkenness a good cause for divorce; saying, if she had to choose, she would rather live with an unfaithful husband than a drunken one. Mrs. M'Laren objected to divorce altogether, and considered a judicial separation might always meet the necessities of the case. Miss Burton thought there hardly was a married couple who, at some time of their life, did not wish they had not been married. With greater facilities they would just increase divorces. Miss Elmly differed from the other ladies who had spoken, and pleaded not only for divorce as it existed, but for the assimilation of the laws of England to those of Scotland. In England a woman could not obtain divorce on equal terms with her husband. Mrs. Wolstenholme Elmly considered that the law had placed the woman simply in the position of being the property of her husband. Mr. Mangus Rendall, of Leith, held that marriage should not be made too popular. It was too popular already; and women looked too much to it for a settlement in life. Miss Burton said the men had educated the women up to let them take part in meet

At the recent Social Science Congress, in Edinburgh, ladies took an active part in the discussion upon the law as affecting women's rights of property and over their children. Mrs. Elmly said, with regard to the suggestion that the wife's income should be made equally liable with that of the husband for the household expenditure, there were points in the existing law that gave a very great advantage to the husband, and it was only just and expedient that, before the wife was equally liable for the household expenditure, these points should be rectified. In the first place, the wife was only a servant who received no wages, and yet she had to perform an immense amount of domestic labor; and, in the next place, the husband had the sole legal custody of the children. Miss Lydia E. Becker did not believe the satisfactory amendment of this law possible, so long as unmarried women, who had property that might be affected by the marriage laws, were altogether deprived of any voice in the makings such as the present; and they must take the ing of the desired alterations. She believed there were many unmarried women who hesitated to contract matrimony through their unwillingness to come under those objectionable laws. Mr. R. Campbell, advocate, said the manner in which this difficult matter had been treated seemed to him to make it all the more difficult. He took exception to the extreme and sentimental views which had been expressed. He submitted that the law as it stood was markedly in favor of women, and remarked that if these proposed changes were adopted the question would arise was marriage to be a life-long contract? Mrs. Duncan M'Laren protested against the custody of children being regarded as a minor mat

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consequences. Certainly Miss Downing is neither squeamish nor mealy-mouthed, and Miss Burton has a vast amount of knowledge of the marriage state for a single woman.

The only result of the election on last Tuesday which we need to chronicle is the election of Judge Folger to the office of Chief Judge of the Court of Appeals of this State. The people have made an unexceptionable choice. The same would have been true if Judge Rapallo had been elected. The result is probably quite indifferent to the gentlemen in question, and we do not believe it will make a particle of difference in the administration of final justice in this State. Chief Judge Folger will simply continue to preside and to sit at Judge Rapallo's left instead of his right, and to receive $500 additional salary for these arduous duties; while the court will continue to pursue its calm, dignified and impartial course, undisturbed and uninfluenced by politics and unsuspected by partisans.

NOTES OF CASES.

'N People v. Freshorn, Supreme Court of California,

1 Ky. L. Rep. 224, it was held that where an accomplice called as a witness by the State voluntarily testifies in chief on a particular subject, he may be cross-examined on that subject, even though he claims to be privileged from answering, on the ground that his answers may criminate him in other matters. The prisoner had testified that he was present at and a party to the alleged larceny, and was then asked by defendant's counsel, "state the general plan which you and the defendant entered into for stealing these cattle?" This he was excused from answering, and this was held error. The court said: "The witness should not have been permitted to separate the actual taking of the property from the plan of the parties to the taking. His recital of the alleged plan or agreement might have tended to show that the connection of defendant with the actual taking was innocent as that he supposed the cattle to be the property of the witness, and was employed by him—or might have led to such expansion of the narrative by witness as would leave him open to contradiction, or to impeachment by reason of the improbabilities of his story. Defendant was entitled to a full history of all that tended to explain the nature and degree of his complicity with the acts of the witness. The scheme of the parties and the acts following were part of one transaction; and when a witness voluntarily testifies in chief on a particular subject, he may be cross-examined on that subject, even though his answers may criminate or disgrace him. Town v. Gaylord, 28 Conn. 309. If the witness had been compelled to give his version of the agreement, it would have aided the jury in determining how far his testimony was credible. He had already testified that there were other parties to the criminal agreement, but it was neither his moral duty nor legal privilege to protect them at the expense of the defendant on trial. If when he had given his version of the plan he had stated there were no other parties to it than defendant and himself, he would have shown that this or his former statement was untrue; if he named other parties, they might have been called to disprove the accusation, and thus discredit the whole of his testimony. It is enough, however, to say that he had already admitted that the conspiracy contemplated and provided for the commission of the particular overt act charged in the indictment. If a witness discloses a part of a transaction with which he was criminally concerned, without claiming his privilege, he must disclose the whole. 10 Fost. 540."

Our remarks on the effect of a wife's joinder in her husband's deed of land, in answer to a correspondent, ante, p. 319, are confirmed by Innis v. Pendleton, Pennsylvania Supreme Court, October 4, 1880, 11 Pitts. L. J. 73, where it is held that estoppel cannot be invoked to enforce a wife's agreement, otherwise void, for the sale of her land. The court

said: 'Conceding that the acts and declarations of Mrs. Innis were sufficient to establish a waiver, in case she had been feme sole, yet it is an unquestioned fact that during the whole time she was under coverture. The question then is, were they sufficient to transfer the title of a married woman in real estate and estop her from asserting it? It is a settled rule of law that a married woman has no capacity to contract for the sale of her real estate, nor to convey it, otherwise than in the precise statutory mode conferring the power. Hepsel v. Gefser, 2 Grant, 84; Rumfet v. Clemens, 10 Wright, 455; Gliddon v. Stempler, 2 P. F. Smith, 400; Dunham v. Wright, 3 id. 167; Graham v. Long, 15 id. 383; Brown v. Bennet, 25 id. 420. The title which she did transfer according to the requirements of the statute, on the 11th of November, 1877, had reverted to her. It became hers as absolutely and unconditionally as if she had not executed that agreement. Her title then could not be sold without an instrument in writing duly executed and acknowledged by herself and her husband. Without those the instrument as to her was void and passed no title at law or in equity. Gliddon v. Stempler, supra; Dunham v. Wright, supra. The fact that she may have received a part or the whole of the purchase-money in consideration of her agreement, or induced the purchaser to make valuable improvements thereon, is insufficient to pass her title to real estate where the form of transfer prescribed by the statute has not been observed. To hold otherwise would operate as a repeal of the statute which designates the only mode in which a married woman can convey her real estate. Rumfet v. Clemens, supra; Gliddon v. Stempler, supra; Thorndale v. Morson, 1 Casey, 326; Richards v. McClelland, 5 id. 385; Pellet v. Fritz's Executors, 9 id. 118. The doctrine of estoppel cannot be invoked to enforce the agreement of Mrs. Innis for the sale of her land when her agreement was otherwise void. Legal incapacity cannot be removed, even by fraudulent representation, so as to create an estoppel in the act to which the incapacity relates. Hence it was held in Keen v. Coleman, 3 Wright, 299, that a married woman who falsely and fraudulently represented that she was single when she executed a judgment bond, thereby obtaining the consideration therefor, was not estopped from setting up her coverture as a defense to a recovery on the bond." We also refer to Shivers v. Simmons, 54 Miss. 520; S. C., 28 Am. Rep. 372, and note, 374.

In State ex rel. American Union Telegraph Co v. Bell Telephone Company of Missouri, Judge Thayer, of the St. Louis Circuit Court, has delivered an interesting decision. There was an application for mandamus to compel the defendant to connect the plaintiff's office with its wires, and give it the use of telephonic facilities. The defendant contended that it could not be compelled to do so, because by the terms of its license from the patentee of the invention it was forbidden to connect with any telegraph office or permit any telegraph company to

become one of its subscribers.

The court observed: | opinion of a surgeon or physician is necessarily

"Bearing in mind that the respondent serves the public as a common carrier of messages, not by keeping offices and agents of its own to which the entire public may resort, but by applying instruments to private residences and offices, and thereby enabling its subscribers to communicate directly with each other, and it becomes evident that this clause of the contract, if enforced as a valid provision, would compel the respondent to discriminate against a class of individuals or corporations engaged in a particular calling, to the extent of denying them any telephonic facilities whatsoever. In other words, a corporation created under the laws of this State, and endowed with large privileges, among others with the right to appropriate private property (presumptively on the theory that such a corporation is a public servant), is compelled by the natural operation of this provision of the contract, to withhold facilities for the transaction of business from one class of citizens which it accords to others. In my judgment, this clause of the contract is indefensible when called in question by any person or corporation injuriously affected thereby. In so far as the contract between the respondent and the patentee compels the former to discriminate against one class of its would-be customers, and to deny them the same privileges and service which it accords to others, the contract is invalid. It is not possible to admit the principle that a railroad, telegraph or telephone company may avoid the perform ance of any part of the paramount duty they owe to the entire public, by contract obligations which they may enter into, even with the patentee of an invention. If the principle were conceded, it is quite obvious that such corporations might readily avoid the performance of any public duty that became inconvenient or burdensome. It would become possible to discriminate at pleasure both against individuals or classes." "If the relator, owing to the peculiar nature of its business as a telegraph company, shall attempt to make such use of the telephone as the respondent seems to anticipate, the question as to the legality of such use can only be tried and determined when the emergency arises, and in some appropriate form of proceeding."

DECLARATIONS OF INJURED PARTY TO
SURGEON AS TO CAUSE OF INJURY,
CONDITION AND SYMPTOMS.

* * *

* * *

formed in part on the statements of his patient, de-
scribing his condition and symptoms, and the causes
which have led to the injury or disease under which
he appears to be suffering. This opinion is clearly
competent, as coming from an expert. But it is
obvious that it would be unreasonable, if not ab-
surd, to receive the opinion in evidence, and at the
same time to shut out the reasons and grounds on
which it was founded. Such a course of practice
would take from the consideration of court and
jury the means of determining whether the judg-
ment was sound, and his opinion well founded and
satisfactory.
The party producing the
witness, and who relies on his opinion, should be
allowed the privilege of showing that his testimony,
as an expert, is the result of duc inquiry and inves-
tigation into the condition and symptoms of the
patient, past and present.
The existence
of many bodily sensations and ailments which go
to make up the symptoms of disease or injury can
be known only to the person who experiences them.
It is the statement and description of these which
enter into and form part of the facts on which the
opinion of an expert as to the conditions of health
or disease is founded." And at p. 326 he says: "It
is suggested, in behalf of the defendant, that the
statements in the present case were made by the
plaintiff after the commencement of the action. But
we do not think that for this reason only they ought
to have been rejected. It was a circumstance which
may have detracted from the weight of the evidence
of the opinion of the physician, so far as it was
founded on these statements. But as the statements
were made to a medical man, for the purpose of re-
ceiving advice, they were competent and admissi
ble."

The principal case is supported by Matteson v. N. Y. Cent. R. R. Co., 35 N. Y. 487. The injury occurred on the 7th of July, and consisted in concussion of the spine. Declarations made by the injured person in the following October, after suit brought, to physicians while they were examining her to ascertain her condition, were held admissible in her behalf. The court said: "IIer complaints and representations of pain and suffering, together with her appearance and conduct, necessarily formed the basis of their judgment." "This is the case, notwithstanding the examinations referred to were made by the physicians after the suit was commenced, and with a view as to their testifying therein as to the result of their examinations. It

N Quaife v. Chicago and Northwestern Railway Co., does not appear that the patient knew that such was

IN Quaife & Chicago and Nortlusestern Railway Co.,

damages for personal injuries by negligence, the plaintiff having at the defendant's request submitted to a physical examination by surgeons, testimony that judging from the examination, including what she said at the time, and her indications of suffering, the injury complained of existed, was admissible, although the witness swore he could discover no external evidence of it.

This is based on Barber v. Merriam, 11 Allen, 322-324, where Chief Justice Bigelow says: "The

their object, and if she did know it the jury were to judge whether her representations were false or her testimony collusive." So in Brown v. N. Y. Cent. R. R. Co., 32 id. 597, testimony that the injured party complained "all the time since the injury," was held admissible. To the same effect Caldwell v. Murphy, 11 id. 416, where the complaints were made during ten or eleven days after the injury, and in Werely v. Persons, 28 id. 344, where they were made during two or three weeks after the injury. In Aveson v. Kincaid, 6 East, 188,

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