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mond county to record certain papers; for the building of a canal bridge upon Genesee street in Utica; in relation to One Hundred and Eleventh street in the city of New York; for the relief of Bridget Gray; relative to the Public Exchange in the city of New York; amending act creating separate road district in the town of Middletown, Richmond county; in relation to companies insuring steam boilers; to incorporate Excelsior Hose Company in Warwick; for the protection of fish in Monroe county; amending the general law relative to fire insurance; repealing act relating to the pay of certain town officers in Sullivan county; for the relief of Mary A. Van de Water; to incorporate the Bachelor Club of the city of New York; for the relief of James E. McVeany; relative to certain claims in abating nuisances in Buffalo; establishing the compensation of the county judge of Rockland county; legalizing the official acts of Daniel P. Cornell as notary public; rebuilding Fulton Market in the city of New York; to incorporate the Grand Council of the Royal Arcanum; relative to the organization and regulation of certain business corporations; to legalize the acts of Franklin C. Whitney as a notary public; relating to Independence river; legalizing the acts of Samuel Williams, a justice of the peace; amending the game law; preventing the sale of adulterated vinegar; relative to telegraph companies; in relation to the harbor and port of New York; amending general law relating to public instruction; relative to apple barrels; for the enlargement of a canal bridge at Fultonville; relative to the estate of George Bright, deceased; to incorporate the order Germania; to make effectual judicial decrees against unknown owners; relative to criminals and commutation of their sentences; authorizing trustees of religious corporations to appoint constables; relative to the superintendent of the poor of Westchester county; for the better security of the bonds of public officers; for the relief of the sureties of trustees, committees and guardians; amending the game law; relative to the superintendent of the poor of Columbia county; relative to making good deficits in capital of banking institutions; repeal ing act relating to draining certain lowlands in Orange county; relating to the printing of the Code of Criminal Procedure; to encourage the improvement of steam propulsion on the Champlain canal; for the relief of Babette Stemmler; for the relief of George W. Morton; requiring banks and banking associations to redeem and retire their circulating notes; relating to the title to personal property; to exempt Sullivan county in reference to the appointment of poor-house keepers; relating to the election of certain school officers in certain school districts; relative to the incorporation of villages; of distraining cattle and other chattels; to transfer the duties of the bonding commissioners of Poughkeepsie; relating to rural cemetery associations; to incorporate the Empire Yacht Club;" for the relief of Isaac Piser; to incorporate the Grand Lodge Knights of Honor; relating to the M. E. Church Home in the city of New York; for the election of a messenger for the common council of Brooklyn; relating to macadamizing the highways in the village of Piermont; relating to the protection of female employees in the cities of New York and Brooklyn; relating to arrears of rents and charges for Croton water in the city of New York; relating to marshals in the city of New York; to abolish the office of railroad commissioner in any town; relating to the laying out of public roads; in relation to the State Board of Audit, and to define its powers; amending an act to provide for the incorporation of bridge companies; to legalize certain proceedings of the common council of New York city; amending the charter of the city of Yonkers; the Code of Criminal Procedure; repealing certain acts and parts of acts relating to the city of New York.

Rule 7th of our Court of Appeals has been changed so as to read as follows: Any person who has been admitted, and has practiced three years as an attorney and counsellor in the highest court of law in another State, may be admitted and licensed without examination. And the General Term of the Supreme Court may, in its discretion, so admit and license any person who has thus practiced in another country. But he must possess the other qualifications required by these rules, and must produce a letter of recommendation from one of the judges of the highest court of law of such other State, or furnish other satisfactory evidence of character and qualifications."

The July number of the Criminal Law Magazine contains the following leading articles: The plea of insanity as an answer to an indictment, by John Ordronaux, and Interposing the statute of limitations by demurrer, by Franklin Fisk Heard. Also a note upon State v. Redemier, as to burden of proof of insanity; five other important cases in full, digests, and other interesting matter. The Magazine is an editorial success. -In Kansas Central Railway Co. v. Allen, 22 Kans. 285, an action brought for injuries sustained by a boy while disporting on a railway turntable, the court thus describe the restless small boy: "Everybody knows that by nature and by instinct boys love to ride, and love to move by other means than their own locomotion. They will cling to the hind ends of moving wagons, ride upon swings and swinging gates, slide upon cellar doors and the rails of stair-cases, pull sleds up hill in order to ride down upon them on the snow, and even pay to ride upon imitation horses and imitation chariots swung around in a circle by means of steam or horse power. This last is very much like riding around in a circle upon a turn-table. Now, everybody, knowing the nature and the instincts common to all boys, must act accordingly. No person has a right to leave, even on his own land, dangerous machinery calculated to attract and entice boys to it, there to be injured, unless he first takes proper steps to guard against all danger; and any person who thus does leave dangerous machinery exposed, without first providing against all danger, is guilty of negligence."

The New Jersey Law Journal gives the following midsummer Law in Verse, reporting the case of Kuhn v. Jewett:

The shades of night were falling fast,
As o'er the Erie railroad passed
A locomotive, laden down
With crude petroleum near the town
Of Paterson.

A piercing shriek, a blinding flash,
And then an instantaneous crash-
Two trains collided-down the banks
The oil was emptied from the tanks
Immediately.

The oil igniting, sparkling, flowed
Down the embankment, across the road,
Into a bubbling brook that pours
Its waters on the fertile shores

of the Passaic.
The barn of the complainant stood
Beside this unheroic flood,
And thus the floating flames of fire
Consumed it and produced a dire
Calamity.

His honor, the Vice-Chancellor says
That if a devastating blaze
Is negligently started, still
The defendant is responsible
In damages,

If no obstructions intervene,
As a new agency, between
The cause and its effect as here;
This rule is singularly clear

And logical.

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called to People ex rel. Furman v. Clute, 50 N. Y. 461, and it is said this "seems to show that the law in New York is at variance with the conclusions of the article." We cannot see that that case is in the slightest degree in point. This case turned on the point of votes cast for a disqualified candidate, and it was held that if a majority of the electors vote for a disqualified candidate, through ignorance of law or fact, the next highest candidate is not elected, but the election is a failure. It is true that the court say, that those voters who "are absent from the polls, in theory and practical result are assumed to assent to the action of those who go to the polls; and those who go to the polls and do not vote for any candidate for an office are bound by the result of the action of those who do; and those who go to the polls and vote for an office, if for any valid reason their votes are as if no votes, they also are bound by the result of the action of those whose votes are valid and of effect." But this does not reach the subject of our discussion, which is this: If at the same election A is running for one office and B for another, and A has a majority of the votes cast for his office, but not of the votes cast for both offices, is A elected?

We have received and read the arguments of Messrs. Harris, Hill and Miller, in favor of the validity of the Indiana constitutional amendments. They are able arguments; but we do not agree to the statement that "the Supreme Court of the United States has settled the question already," as that decision was in the case of a special election. We have also read the dissenting opinions of Niblack and Scott, JJ. They are able productions. We have also read many columns of abuse in the Indiana newspapers (of one political party) of the majority of the court. These are not able productions. We can consent, on satisfactory evidence, to believe that judges have gone wrong in a given case, but we cannot consent to believe, on no evidence at all, that they have made knaves as well as fools of themselves for political ends. In this case, if the majority of the court have erred, as we are inclined to believe they have, they have the courts of Illinois, Minnesota and Missouri on their side, and Mr. Justice Bradley. We await the appearance of the majority opinion with curiosity.

An interesting question of the competency of a wife, to testify against her husband in a criminal proceeding, has arisen in the case of Briggs, under arrest for the homicide of Wood. It will be remembered that the prisoner claims to have detected VOL. 22.- No. 5.

Wood in criminal relations with the prisoner's wife. The examining magistrate received Mrs. Briggs' testimony, against objection, in which, we believe, she denies any criminality. By chapter 182 of Laws of 1876, it was provided that "in all criminal trials, and examinations before trial, a husband or wife may be examined as a witness on behalf of the other, but upon no such trial or examination shall a husband or wife be compelled to testify against the other." There is no doubt that previous to this statute the wife would have been wholly incompetent as a witness. In fact, this was so held in Wilke v. People, 53 N. Y. 525. Under the present statute she cannot be competent against the husband unless inferentially, by the omission to enact that she shall not testify against him if she desires so to do. On this point Mr. Moak argued as follows: "Before this section the wife was not a competent witness against, or for, her husband. It required an affirmative provision, making her competent on either side, to make her so. This section affirmatively declares she shall be for her husband, and then proceeds negatively to say she shall not be There is no compelled to testify against him. affirmative declaration that she may. A mere negative provision that she shall not be compelled to be, certainly is not an affirmative provision that she may be. When the act of 1876 was passed, no one would have claimed, that under any circumstances, she was competent against her husband. If not competent she could not be allowed to be sworn against him. Suppose the Legislature had simply passed an act in the words of the last part of the section, "upon no such trial or examination (criminal trials and examinations before trial) shall a husband or wife be compelled to testify against the other," would it have been any thing more than a declaration of part of the law, as it then existed, that a husband or wife should not be compelled to testify against the other? It would have removed no existing incompetency. It would have given or conferred no competency." "It would be a novel proposition that the competency of a witness, as a witness against another party, should depend upon the willingness of the witness to testify without the slightest power on the part of either party, of the court or of the law, to interfere or to have a word to say on the subject. I have never heard, and I venture the assertion your honor never has, of a wife or husband being called against the other." We are inclined to agree with Mr. Moak, and to believe that it requires an affirmative statutory declaration to qualify a wife to testify against her husband, even if she is willing, just as much as to qualify her to testify in his favor.

The question, "can an assignee for creditors set aside his assignor's fraudulent assignment?" (see ante, 60), was recently answered in the negative, in Pillsbury v. Kingon, 31 N. J. Eq. 619. An appeal has been taken to the ultimate court. This decision does not involve any statute like ours of 1858, but the court, citing Burrill on Assignments, remark

that our statute "expressly invested assignees with this power." The opinion shows that there has been a good deal of diversity on the general question.

** * *

-

"The

Lord Justice Bramwell has written a strong letter condemning the bill pending in Parliament proposing to make masters liable to servants for injuries by fellow-servants in the course of the same employment. We have several times expressed ourselves against this. See 17 Alb. L. J. 358; 19 id. 505. Lord Bramwell says: "I have shown that it is not a natural right that the master should be liable, nor any thing that exists in the nature of things. That it is reasonable a railway company should be liable to a passenger for the negligence of its servants, because it has so contracted; and that it should not be to one of its own servants, because it has not so contracted. We are to start afresh, then, and make a new rule. Why? Why if I have two servants, A. and B., and A. injures B. and B. injures A. by negligence, should I be liable to both when, if each had injured himself, I should not be to either? There can be but one reason for itviz. that, on the whole, looking at the interest of the public, the master, and the servants, it would be a better state of things than exists at present. Is that so?" This he answers in the negative. As the servant may now contract that the master shall be liable, so under the new law he might contract that he should not be liable, and for say sixpence a day difference of wages, he would so contract. great employers of labor will understand the change in the law and guard against it. The mischief and wrong will be in the case of men, who, not knowing of the change, will go on paying the wages which include the compensation for risk, the premium of insurance, and yet find they have to pay compensation when the risk happens, and that they are insurers though they have not received the premium.” His lordship concludes that change would do the workman no good except in this last class of cases. Admitting that it might make the master more careful in selecting servants, he denies that this is a sufficient consideration for the enormous increase of risk. He might add that the master is already liable for carelessness in selection, and there is therefore all the less need of making him an insurer of his servants' care toward one another. Finally, he says: "And even if the law were made obligatory in spite of bargains to the contrary, it would not profit the servant. Because it is certain there is a natural rate of wages, one fixed by what neither master nor man can control, and that if they are practically added to one way, they will be taken from in another. If a manufacturer's wages now are £10,000 in the year, and he is made to pay compensation to the amount of £1,000 a year, his wages will fall to £9,000. He cannot charge more for his produce because he has to pay more; and if he could, his sales would diminish, and injury be done to the workman in loss of work." For our own part we regard the proposed change as so impolitic, unjust, and unequal, as to verge on folly.

IN

NOTES OF CASES.

[N State v. Hoyt, 46 Conn. 330, it was held that standard medical works on insanity may be read to the jury by the counsel for the accused, on the question of his insanity. The court said: "The plea of insanity interposed in behalf of persons indicted is supported by the testimony of persons who by study of books and men have entitled themselves to speak as experts in that science. By way of vindication of their right to be heard as instructors of the jury, they usually preface their testimony by a statement of the extent of their experience in the treatment of persons afflicted with disease of the mind and the time given to the reading of treatises upon insanity written by men of wide experience and acknowledged ability in the treatment of such diseases; their opinion is the result of observation of men and reading of books. And in this jurisdiction for a long series of years counsel have been permitted to read to the jury, as a part of their argument upon this part of their case, extracts from such treatises as by the testimony of experts have been accepted by the profession as authority upon that subject; such treatises as have helped to form the opinion expressed by the expert. The practice by repetition has hardened into a rule; a rule, upon the continued existence of which counsel for the accused in the case before us had a right to rely; the abrogation of which by the ruling complained of may have been a surprise. The question is not, shall such reading be now for the first time permitted; it is, shall it now for the first time be forbidden without notice. We think that privileges hitherto granted to persons in like circumstances with the accused should not be denied to him, to his possible prejudice." Three judges concurred in this opinion, but two others dissented in a careful opinion. The dissent is authorized by Commonwealth v. Wilson, 1 Gray, 338; Asworth v. Kittridge, 12 Cush. 193; Commonwealth v. Sturtevant, 117 Mass. 122; S. C., 19 Am. Rep. 401; Collier v. Simpson, 5 C. & P. 73; Ordway v. Haynes, 50 N. H. 159; People v. Anderson, 44 Cal. 65; Carter v. State, 2 Cart. 617; Gale v. Rector, 5 Bradw. 484; Harris v. Panama R. Co., 3 Bosw. 7. In Luning v. State, 1 Chand. (Wis.) 178, and Wade v. De Witt, 20 Tex. 398, the admission of such evidence was held discretionary.

In Odd Fellows' Mutual Life Insurance Co. v. Rohkopp, Pennsylvania Supreme Court, March 17, 1880, 8 W. N. C. 489, a policy of life insurance contained a clause that the company should not be liable if the insured became so far intemperate as seriously or permanently to impair his health. In an action brought upon the policy, held, that evidence to show that deceased was an habitual drunkard prior to the date of the policy, and that he had created an appetite which had become fixed upon him, but which had not seriously injured his health at that date, to be followed by the testimony of experts to show that the amount he drank before that date together

THE ALBANY LAW JOURNAL.

with what he drank afterward was sufficient to seri-foot-paths and walks over the park in various direc
tions, but those paths were not a part of the system
ously impair a man's health, was inadmissible, as
of highways. They were not laid out as public
The court said:
being immaterial and irrelevant.
ways, and the town is not liable under the statutes
Oliver v.
respecting highways or town ways for any defect or
want of repair which may exist in them.
It was to show by

"The offer did not propose to show that he thereafter became so intemperate as to either seriously or permanently impair his health.

experts that the amount he had drunk before and the amount he had drunk afterward was sufficient to seriously impair a man's health. The capacity of persons to drink liquor is so unequal, and the effect is so different on different individuals, it by no means follows that a quantity sufficient to affect some other man's health had the same effect on the health of Rohkopp. The question in issue was, did his intemperance so affect him? The court opened the door wide and permitted the plaintiff in error to give all the evidence offered of Rohkopp's intemperate habits and the effect on him.

That he

was habitually intemperate was not denied or con-
troverted. It was clearly proved. The contention
was whether its effect was such as to bring him
within the clause of the policy which would pre-
vent a recovery. Possessing a constitution and
health which habitual intemperance for so many
years had been unable to seriously injure, showed
a capacity to withstand its action, that justly con-
fined the evidence to the effect the liquor had on
him, and not what effect it might have on some
other person." Sharswood, C. J., and Gordon and
Trunkey, JJ., dissented. This condition was dis-
tinguishable from the usual conditions that the hab-
its of the insured are sober and temperate, in which
case it is sufficient to show the contrary, and it is
no answer that the intemperance was harmless;
Southcombe v. Merriam, 1 Car. & Marsh. 286; and
that the policy shall be void if the insured die from
the use of intoxicating liquors.

Two recent Massachusetts cases are noteworthy on the subject of the liability of towns for injuries caused by defects in public places. In Clark v. Waltham, 3 Mass. L. Rep., July 10, 1880, it appeared that as the plaintiff was passing along one of the foot-paths or concrete walks of a public park, after dark, and just before leaving the same and entering upon one of the public streets, and being barefoot at the time, he stepped upon the rough iron stub of a post, which lacerated his foot and caused the injuries complained of; that this iron stub was the remnant of an iron post or rod fastened into a stone sleeper, which originally, with other posts, protected an opening in a continuous fence around the park from all but foot passengers, and was at the entrance of the park, and slightly outside the limits of the street; that this post had been broken off a long time before the accident; that this park was conveyed to the town upon the condition that it should "forever after be kept open as and for a common for the use of said inhabitants of the town of Waltham." The court said: "By accepting the deed of conveyance, the town agreed to the condition contained therein, and therefore holds the park for the use of the public. It had constructed

Worcester, 102 Mass. 489; S. C., 3 Am. Rep. 485;
Nor can the town
Gould v. Boston, 120 Mass. 300.
be held liable upon the ground that it negligently
suffered a dangerous place to exist in the park, and
failed to give proper notice to persons using the
park by its invitation or license. It holds the park,
not for its own profit and emolument, but for the
direct and immediate use of the public. If it can
be said that there is any duty in the town to con-
struct paths over it or to keep such paths in repair,
it is a corporate duty imposed upon it as the repre-
sentative and agent of the public and for the public
benefit. For a breach of such a duty, a private ac-
tion cannot be maintained against a town or city,
unless such action is given by statute. Hill v. Bos-
and
ton, 122 Mass. 344; S. C., 23 Am. Rep. 332,
cases cited." The defendant had judgment.

summer.

The other case, Larrabee v. Peabody, was an action to recover for personal injuries sustained by falling into a trench near a public building. The building in question, which was erected and owned by the defendant town, was used for a town house and school-house, and it also contained an audience hall, which had been used for various kinds of public a small sum for the use of it. On the evening of meetings and entertainments, the occupants paying perance society in the hall, which the plaintiff atJuly 10, 1877, an entertainment was given by a temtended; and no charge was made to the society for the use of the hall on this occasion or during that A trench had been dug in front of the building for the laying of a water pipe to connect the aqueduct in the street with the pipes in the building. There was no barrier placed to guard the trench. The plaintiff, in passing out of the buildThe place ing, stepped backwards and fell into the trench, receiving the injuries complained of. four feet from the outer direct line of travel from where she stepped into the trench was from two to the street to the steps, and there was a grass plot covering that portion of the yard. The court said: (Morton, J.) "It is not claimed that the town is liable as for a defect in a highway. The trench was not in the highway, nor in dangerous proximity to it. But the plaintiff claims that the trench was in dangerous proximity to the way or path leading to the town house, and that the town is liable to the same extent as a private owner who invites persons to enter his hall would be. If we assume, in favor of the plaintiff, that upon the evidence, a private owner would be liable to her for her injury, yet we are of opinion that the town is not liable. The only ground upon which it is claimed that a city or town is liable for defects in, or negligence in the repair or management of, buildings owned by it, is that, at the time the liability attaches, it is using the build

ings for emolument or profit as a private owner might. Oliver v. Worcester, 102 Mass. 489; S. C., 3 Am. Rep. 485; Hill v. Boston, 122 Mass. 344; S. C., 23 Am. Rep. 332. In the present case this element of liability is wanting. The town received no compensation or profit from the use of the hall on this occasion. The case therefore is not within the reason of the rule relied upon, which creates a liability of the town. The fact that the town had before this occasionally let the town house for public meetings and entertainments is immaterial. Such occasional lettings would not create a permanent and continuing liability. The liability, if any, attaches because the town deals with and uses the public building for the purposes of profit, as a private enterprise, and it continues only so long as it thus uses it." These decisions are in harmony with the current of authority which denies the commonlaw liability of a municipal corporation for such accidents in cases falling short of nuisance. The Hill case was that of a child injured by an unsafe stairway in a public school-house.

SEVENTY-SEVENTH NEW YORK REPORTS.

THIS

THIS volume includes decisions from May to September, 1879. The following are noteworthy as of general interest:

Chipman v. Palmer, p. 51. — In an action of nuisance against several acting independently in polluting a stream by the discharge of sewerage from the premises of each, each is liable only to the extent of the separate injury committed by him.

Dunham v. Bower, p. 76.— An action by the owner of goods against a carrier for damages for failure to transport such goods, is barred by a previous judgment in favor of the carrier against the owner for the freight of such goods.

Ring v. City of Cohoes, p. 83. - - The plaintiff was driving a blind horse and a wagon on one of defendant's streets; the horse becoming frightened, ran away, and was turned by a heap of ashes, negligently suffered in the street, into the gutter, where the wagon struck against the nozzle of a city hydrant projecting four inches over the gutter, and was overturned, and the plaintiff was injured. Held, (1) that the running away of the horse would not prevent a recovery; (2) that in the absence of evidence that the hydrant was improperly placed, negligence could not be presumed from its position and construction; (3) that in the absence of a finding that the accident was caused by the heap of ashes no recovery could be based on the negligence in suffering it to accumulate in the street.

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sell the goods, and account for the proceeds less the freight. The defendant sold the goods and converted the proceeds. Held, not larceny, but false pretenses.

Luddington v. Bell, p. 138. A creditor of a dissolved partnership accepted the note of one of the partners for a portion of his demand, in discharge of the maker from liability for the partnership debt; held, an effectual release.

Kilmer v. Smith, p. 226.-Defendant A. contracted to convey to defendant B. certain premises subject to certain mortgages. B. assigned the contract to plaintiff. Without the consent or knowledge of B. or the plaintiff, A. inserted in the deed a clause binding plaintiff to assume the payment of the mortgages. The plaintiff, supposing the deed conformed to the agreement, accepted it and put it on record. Held, that plaintiff could maintain an action to reform the deed by striking out that clause.

Hay v. Star Fire Insurance Co., p. 235. In an action to reform a policy of insurance, after loss, held, (1) an agreement to renew a policy of insurance is presumed to imply that no change is to be made in its terms. (2) Such action is not "for the recovery of any claim by virtue of this policy," within the meaning of a provision that "no action for the recovery of any claim by virtue of this policy shall be sustainable" unless commenced within twelve months after the loss. (3) The limitation commences when the amount of the loss is due and payable, and not when the loss occurred.

First National Bank of Meadville v. Fourth National Bank of the City of New York, p. 320. - On the 22d of March, 1866, the National Bank of Crawford county, Pennsylvania, made and delivered to plaintiff a sight draft upon Culver, Penn & Co., of New York city. The plaintiff indorsed it and sent it by mail to defendant, its corresponding bank in that city, for collection and credit. Defendant received it on the morning of March 26, presented it on the same day, received the drawee's check upon the Third National Bank of New York, and delivered up the draft. The check was not presented for payment until the next day, and that through the clearing house. The drawees failed on the latter day, and the bank refused to pay the check. The defendant on the same day returned it and received back the draft, formally demanded payment of the draft, protested it for non-payment, and the next day mailed notice thereof to plaintiff and the drawer. The drawee's account was largely overdrawn on the 26th, but the bank had been in the habit of allowing such overdrafts for a month, the drawees making their account good on the next day, and the bank paid all their checks drawn that day, and some drawn later than the one in question, and continued to do so down to the failure on the next day. In an action of damages for negligence against defendant, a recovery was allowed for the amount of the draft with interest. Held, (1) that defendant was negligent and liable for the consequent damages; (2) that the facts did not justify the finding that the draft would not have been paid

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