received in the absence, of the prisoner, is void, although his counsel being present did not object. Connelly v. State, 89.-A statute, authorized by the Constitution, providing that misdemeanors may be prosecuted before justices of the peace without indictment, is valid, although it deprives the accused of trial by jury. Bizzell v. Nix, 281.-A vendor's lien for unpaid purchase-money of land is not destroyed by the running of the statute of limitations against notes given therefor. Brown v. Leitch, 313.-The right to exemption of property from execution is a personal privilege, which the debtor may waive. Albrittin v. Mayor, 486.- A municipal corporation, having power by its charter to open, improve and repair streets, and to raise money for that purpose by taxation or assessment, is liable in a civil action for injuries caused by a defect in its street, although the duty of keeping it in repair is not expressly enjoined. Bernstein v. Humes, (5) Give the General Terms power to call upon exjudges of the Supreme Court for service at the circuits and the General Terms. This will be a great measure of relief and at the same time will give honorable service to a class of men who care not to or ought not to engage in the practice of law. (8) Give the Court of Appeals like power to call to its aid in case of necessity ex-judges of that court. By these means the whole judicial force of the State will be utilized and the courts will be sufficiently relieved without any addition to the number of judges, or any great increase in the public expense. This is a mere skeleton of my scheme which may be filled up by any intelligent statesman. NOTES. * third party evance of lands, in adverse possession of a WE shall present to our readers every week a state party under claim of ownership, although without color of title, is void, and this applies to a voluntary conveyance by a purchaser at a sale under execution. Tanner's Ex'r v. Louisville, etc., Railroad Co., 621. In the case of a person killed while walking on a railway track, his contributory negligence in going there is no defense to an action therefor, if the defendant, by reasonable care, could have avoided the accident after discovering the danger. These reports contain no table of cases cited. NEW YORK COURT OF APPEALS DECISIONS. ment of all new bills introduced in our Legislature and touching the interests of our profession, as soon as the bills are printed, but not before. These matters will be alluded to either in this place or under current topics. The current number of the Journal du Droit International Privé contains an article on the Actual Situation of the French in the United States of America and of the Americans in France on account of the adjudication of the unconstitutionality of the Federal Trade-mark Act, accompanied by an opinion, among others, by Mr. Edmond Kelly, of New York. The first number of Hackstaff's Monthly, devoted to the Graphic Arts, the Book and Paper It contains an article on Newspaper Libel, by Seymour D. Thompson, and much other interesting matter. THE following decisions were handed down Tuesday, Trades, and General Literature, has reached us. Jan. 27, 1880: Judg- Judgment affirmed with costs - Cordell v. N. Y. C. & Hudson R. R. R. Co.; Irving v. Rankine; Griffin v. Winne; Baley v. Homestead Fire Ins. Co. ment affirmed Ryan v. The People. with costs of all parties in the court and court below, to be paid out of the estate - Power v. Cassidy. Judgment modified so as to save all rights of Mrs. Cruger under the trust deed, and the rights of any trustees appointed to execute the trust, and as so modified affirmed without costs in this court to either party Douglas v. Cruger. Order granting writ of prohibition reversed with costs People ex rel. The Mayor of New York v. Nichols and ors.- Order so far as it directs payment of court fees affirmed, and as far as it directs payment of alimony reversed, without costs to either party. Appeal as to ne exeat not yet decided Collins v. Collins. CORRESPONDENCE. JUDICIARY REFORM. To the Editor of the Albany Law Journal: It seems to be conceded that some reform in the judiciary system of the State of New York is needed; but there is wide difference of opinion as to how it shall be effected. I will give my views as a contribution to the discussion: (1) The county courts have but little business and the county judges generally have much leisure. The business of these courts may be increased by denying costs in the Supreme Court in certain cases, and thus driving litigation into these courts. (2) Give the General Terms of the Supreme Court power to detail county judges to hold circuits when the circuit calendars are over-crowded and thus the circuits will be relieved. (3) The circuits being thus relieved, the General Terms may call upon circuit judges to aid them and thus they will be relieved. (4) Relieve the Court of Appeals by limiting the appeals to it. Judge Patterson has summoned before him Messrs. Steinman and Henzel, editors of the Daily Intelligencer and practicing attorneys, because of a statement made in the Intelligencer that the court had been deceived and imposed on by the Commonwealth's officers, and would take no cognizance of this imposition because those who committed it were like the judges-republicans. The case spoken of is known as the Snyder liquor case. The judge declared that they should be ruled to show cause why they should not be stricken from the roll of attorneys. Messrs. Steinman and Henzel denied the authority of the court to require them to answer as attorneys for their editorial criticism. The Smith-Bennett murder case has come up for a new trial in New Jersey. The Albany Argus censures Judge Knapp for sitting in the case again, after the reversal of the former conviction on account of his er rors. The Argus, committing violence upon the dic tionary, says the judge exhibits "unabashokë dence;" and thus continues: "The case has become a celebrated one. What has made it so has been the peculiar charges of the judge quite as much as the incidents of guilt between the persons themselves. The rulings of Justice Knapp have shocked public opinion. His reappearance in the case is accepted as a defiance of public opinion. No matter what the result, his re-entrance into the case will qualify the reception of it. An acquittal will be credited to a recoil from his stringency, a conviction to vengeance, a disagreement to a mingling of both the other causes. was a case for him to keep out of." Does the Argus think that an editor ought to resign every time he makes a mistake? The Argus is mistaken in attributing to Judge Knapp any peculiar "stringency," and the result of the present trial will be quite apt to rest more with the jury than with the judge. It The Albany Law Journal. ALBANY, FEBRUARY 7, 1880. CURRENT TOPICS. THE New York Times has decorated itself with terrific pigments and has again sallied out on the war-path against the judges and lawyers. Ever since the Ring judges were disposed of, it has sighed for other magistrates to scalp. The Times did good public service then, and thanks to the lawyers of the Bar Association the bench was rid of those infamous men. But the Times should be very careful how it assails men of unblemished reputation, reflecting that a judge's reputation is like a woman's - easily liable to misrepresentation and easily smirched beyond repair. So in the attack of a column and a half in the Times of the 28th ult., entitled "Receivers and Referees," we find little evidence but much surmise, much bold assertion and much reckless abuse. When the Times says that "Judges Westbrook and Donohue enjoy a bad eminence as political judges "-- meaning probably that they do not "enjoy " it-it says what is certainly incorrect at least in respect to Judge Westbrook. There is probably not a judge in the State more independent, not to say defiant, of political associations and influences than Judge Westbrook. His decisions in the Nichols and Coppers cases are pretty good evidence of this. There is not a judge on the bench who more strenuously and persistently urges grand juries to do their duty in respect to offenses against the election and excise laws, and with more success. We speak of him and his judicial course from long personal acquaintance, and feel sure that this attack cannot harm him where he is known. It would have surprised us less in a newspaper of his own politics. Of Judge Donohue we cannot speak from personal acquaintance nor from special knowledge of his reputation. But the Times produces no evidence. The essence of the whole tirade is that these judges are frequently called on to appoint receivers and referees, have frequently appointed the same man in different intances, and have generally appointed democrats. Not a particle of evidence is adduced to show that they have eve made an unworthy or unwise appointment, or that anybody has suffered in consequence of their appointments. It does not seem to occur to the Times that republican judges usually bestow their favors on republicans. If the appointees in question had been republicans would the partisan Times have had the audacity to peep? The substance of the attack on the lawyers is that one particular firm has had the good fortune to be selected by clients to prosecute several insolvent insurance companies; that the receivers have not chosen to act without counsel, and have retained their friends as counsel; that references have grown out of the litigations, and that all these things cost VOL. 21. No. 6. money. The particular stress of the attack is against a gentleman who the Times admits is "not a political personage," but who it alleges "is a protege of Judge Donohue. All that is alleged against him is that he is not able or does not choose to act as his own counsel as receiver. All that the Times really has against him is that he is a democrat. If he were a republican, the energetic reporter would have puffed him up to the skies for the last two years. The writer of these lines is a life-long republican, but he believes in fair-play even toward democrats, especially when they have the good sense to be lawyers. This mischievous partisan attack of the Times will find plenty of credulous stock-takers, and is probably designed for political rather than ethical purposes. In a later article the Times speaks of the practice in question as a "bonanza for certain newspapers." Hence these tears, perhaps. The decision of the Court of Appeals in ex-police commissioner Nichols' case seems to be generally accepted as substantially conclusive of the litigation in his favor. It is probably conclusive of the legal principles underlying the mayor's action, although the question of fact has yet to be passed upon. The present decision reverses the order of the General Term granting the writ of prohibition against the hearing of the certiorari. The writ was granted on purely technical grounds, namely: (1) "That a special term for non-enumerated motions and chamber business has no jurisdiction to hear and decide the certiorari proceedings," and (2) "That such proceedings could only be brought on for hearing upon a notice of not less than eight days." In regard to this point the Court of Appeals say: "It is provided by the Constitution that the court itself shall have general jurisdiction in law and equity. It follows that its jurisdiction can be limited neither by the Legislature nor by any power conferred by it upon the court itself. Its functions are to be exercised by its judges sitting in General Terms, or at the Circuit or Oyer and Terminer or Special Terms. The Constitution also provides that each judge may hold Special Terms in any county, and neither in that instrument nor in any statute do we find that one Special Term or one judge at Special Term has, or can have, more authority or power than another. The Code, section 232, authorizes the justices of the Supreme Court for each judicial department to appoint the times and places for holding the Special Terms. This authority was exercised in the first district. Some of the terms thus appointed are designated by the justices as Special Terms for equity cases and enumerated motions and that for the due and orderly conduct of litigation chamber business,' and while it cannot be doubted and causes, certain steps and proceedings therein may, under the discretion of the judge, be required to be taken at specified terms, yet any such regulation must be subject to the control of the justice who is assigned to hold them. If otherwise, the power of the judge would be limited, public interests sometimes put in jeopardy, and the rights of citizens infringed. The case before us illustrates this position." of caring for his own affairs.- Senator Astor has introduced a bill prohibiting any executor, administrator, trustee or guardian, and any commissioner, receiver, assignee or referee, from mingling trust moneys with his own, on pain of imprisonment in a State prison not exceeding three years, or in a county jail not exceeding one year, or by fine not exceeding $1,000, or by both such fine and imprisonment. As to the second they say: of any party shall be appointed pending proceed"There is no absolute right to a notice of eightings to adjudge him lunatic or otherwise incapable days; a notice of less than eight days may be prescribed by a judge or court. This power is conferred by statute, section 180, and recognized by general rule of the Supreme Court, No. 73; but its exercise is subject to review. Second, it was not improper to bring on the certiorari for a hearing at the Special Term, at which the order to show cause was made returnable. It is not to be found among those styled in that rule as enumerated motions; but if it was otherwise, it would still have been within the jurisdiction of the court to hear at any Special Term, and upon such notice as should be prescribed. There is nothing in Supreme Court rule No. 44 to prevent it. There was then no violation of the provisions of any statute or unlawful exercise of jurisdiction by the justice holding the Special Term named in the order, nor would he have transgressed by entertaining further proceedings pursuant to the order to show cause.' In respect to the fundamental question whether the mayor, in removing the commissioner, acted judicially or ministerially, the court say: 6 "The relator was the mayor of the city, and its charter conferred upon him power to remove the defendant, but only for cause, and after opportunity to be heard.' The power is not an arbitrary one, to be exercised at pleasure, but only upon just and reasonable grounds, and then not until after notice to the person charged, for in no other way could he have an opportunity to be heard.' The proceedings, therefore, must be instituted upon specific charges, sufficient in their nature to warrant the removal, and then, unless admitted, be proved to be true. Defendant might also cross-examine witnesses produced to support the charges, call others in his defense, and in these and other steps in the proceeding be represented by counsel. In no other way could the person sought to be removed have a due hearing or an opportunity to be heard,' and this condition must be complied with before the power of removal is exercised. It follows, therefore, that the proceeding is judicial in its character, and, as a necessary consequence, is subject to review by writ of certiorari, issued by the Supreme Court in the exercise of its superintending power over inferior tribunals and persons exercising judicial functions." The questions whether the commissioner had an opportunity to be heard, and whether there was cause for his removal, are left to be disposed of, and have since been argued before Judge Lawrence of the Supreme Court. Now, will not the Times reporter draw attention to the fact that the Court of Appeals sustain Judge Westbrook's construction of the law? Senator Forster has introduced a bill for starving tramps to death. It provides that every tramp, upon conviction, shall be punished by imprisonment for not more than twelve months at hard labor, in the nearest penitentiary, "the expense not to exceed one dollar a week per capita." This would seem nearly as effectual as the laws of Henry VIII against tramps. In proposed amendments to the act of 1874, concerning the care of the insane, it is proposed that no receiver or custodian of the estate In the Assembly Mr. Baker has introduced a bill authorizing the appointment of counsellors at law as notaries public, when certified by a justice of the Supreme Court. Also a bill authorizing the partition of lands held by husband and wife jointly, in common, or by entirety.- Mr. Mitchell has introduced a bill to enable married women to testify against their husbands, on complaints, under chapter 127 of Laws of 1861, of abandonment or neglect to support.- Mr. Potts has introduced a bill authorizing married women to convey or contract, and rendering them liable for breach of any contract, in the same manner and with the same force and effect as if they were sole.-Mr. Baker has introduced a bill providing that the repeal of the privileges of the graduates of the law schools, by the act of 1877, shall not affect the right of any person who was a student or graduate before April 1, 1878, to be admitted within one year from the taking effect of this act; nor the right, in like manner, of any person who but for such repeal, or the repeal of the law of 1871, would have been entitled to admission at any time before October 1, 1880, upon compliance with the requirements of section 4 of the act of 1877.- Mr. Skinner has introduced a concurrent resolution for the adoption of a constitutional amendment providing for bienniał sessions of the Legislature. This is in pursuance of the reference at the last session. We regret that the bill for limiting appeals to the Court of Appeals has passed the Senate. The vice of the bill is the gauging the importance of litigation by the amount involved. Legal principles do not exclusively wait upon rich suitors nor their vast affairs. The discrimination in appeals is put on an unsound basis. If the bill contemplated the restriction of appeals to certain classes of cases, like constitutional, criminal, admiralty, and the like, it would be more susceptible of defense, although we should still deem it unwise; but when it cuts off appeals simply because the amount at stake is under a specified sum, it gives a very bad theory for a very bad practice. But it is said that if an important question of law is fairly raised in a case within the limit, the Supreme Court may certify an appeal. This makes what should be a right dependent upon discretion. Suppose the Supreme Court should be divided on such an application, and the application should be denied by a majority of one. Would not the suitor have reason to complain? The very allowance of this discretionary power to the Su AN NOTES OF CASES. N interesting case to architects is Botterill v. Whytehead, Ex. Div., 41 L. T. (N. S.) 588, Dec. 13, 1879. This was an action of libel. The plaintiffs, who were architects, were employed by a committee in the restoration of Skirlaugh Church. The defendant, who was a vicar of a neighboring church, wrote to a member of the committee, concerning the plaintiff, as follows: "I see in the Hull News of Saturday that the restoration of Skirlaugh Church has fallen into the hands of an architect who is a Wesleyan, and can show no experience in church work. Can you not do something to avert the irreparable loss which must be caused if any of the masonry of this ancient gem of art be ignorantly tampered with?" And to the incumbent of Skirlaugh Church he wrote as follows: "I am annoyed to see that you and your committee have engaged Messrs. Botterill as architects for the restoration of your church. Are you aware that they are Wesleyans, and cannot have any religious acquaintance with such work?" The defense was, that the communications were privileged, and that there was no evidence of malice. The plaintiff had a verdict of £50. On the trial, as to the meaning of the term "restoration," reference was made to Professor Ruskin's Seven Lamps of Architecture, p. 160, and with regard to the question of express malice, the following authorities were cited: Clark v. Molyneux, L. R., 3 Q. B. Div. 237; 36 L. T. R. (N. S.) 466; 37 id. 694; Coxhead v. Richards, 2 C. B. 569; 15 L. J. 278, C. P.; Woodward v. Lander, 6 C. & P. 548; Somerville v. Hawkins, 10 C. B. 583; 20 L. J. 131, C. P.; Wright v. Woodgate, 2 C. M. & R. 573; Whiteley v. Adams, 15 C. B. (N. S.) 392; 33 L. J. 89, C. P.; 9 L. T. R. (N. S.) 483. The judgment was affirmed. On the question whether the communications were privileged, the court, Kelly, C. B., said: "I am at a loss to see, under the circumstances of the case, what privilege the defendant possessed, he being neither the patron nor the minister of this church, nor a member of the committee appointed to effect its restoration, nor even a parishioner, to interfere between the committee and the plaintiffs in respect of the contract between them." On the question of malice, the same judge said: "Now there is no subject in the law involving greater difficulties than this question of express malice. It was argued at the bar that, if a man be informed of something to the prejudice of another, and which is injurious to his character, if true, and if he bona fide believe in that information, that such his belief negatives express malice. I am clearly of opinion, that if a man should receive information which is injurious, if true, to the character of another, he is not justified in publishing that information to the prejudice of it to be true. He may believe it to be true, and him to whom it relates, merely because he believes will be guilty of malice if he publish it to the world; and he may believe it to be untrue, and yet may be perfectly justified in publishing it to persons with whom he is in communication, and with whom it may be his duty to communicate freely on the subject of the information he has received. These cases of libel contended to be privileged, and where the question of express malice arises, must each be decided upon its own particular circumstances. In the case of Clark v. Molyneux, where the defendant had learned that the plaintiff, a clergyman, was about to preach a sermon for another clergyman, a friend of the defendant's, and with whom he immediately communicated, it became his duty to state to him the information he had received, before the plaintiff was permitted to preach a sermon; not for the purpose of imputing criminality to the plaintiff, but in order that inquiries might be made, and that the plaintiff might justify himself to the clergyman for whom he was about to preach. The case before the court is entirely different in its circumstances, and the learned judge who tried the cause held, and I think most correctly, that there was evidence of express malice; and that evidence was fairly and fully left to the jury, and the jury found, and I think properly found, that there was express malice; for in this case the defendant had no manner of interest in the question of the employment of the plaintiffs to execute the work in question, which all mankind, or at least every admirer of ancient art throughout England, did not possess equally with himself." Stephen, J., said: "If Mr. Whytehead had confined himself to a criticism of the plans or the work the plaintiffs had actually done, I think that then the case would have fallen within the rule allowing a person to criticise fairly, but I think it is going a long step further when you may impute professional incompetency to a person. One way of looking at the matter is this: Either it is a privileged occasion or it is not a libel, in which latter case the question of privileged occasion would not arise. The lord justice left the whole matter to the jury, telling them that this was a privileged occasion, and that the defendant was 'not liable in this action, unless you find that what he said amounts to more ment that it shall be granted unless the proof of guilt be evident or the presumption great." The provision of the Mississippi Constitution is not in ours, but is adopted as the criterion in practice. People v. Perry, 8 Abb. (N. S.) 30. Either by fundamental law or in practice this is the general rule. Whart. Cr. L., § 2982. So far as we have observed the rule quoted from Ashmead does not obtain elsewhere. ONE HUNDRED AND TWENTY-SIXTH THIS volume condecided from November, 1978, to May, 1879, and is prepared with the carefulness and intelligence which always mark Mr. Lathrop's labors. The opinions are very short, as may be inferred. While it contains no remarkably important decisions, the volume embraces a number of rather singular interest, of which we have noted the following: On the subject of implied warranty, the case of Hight v. Bacon, p. 10, holds that if a purchaser inspects for himself the specific article sold, and there is no express warranty, and the seller is guilty of no fraud, and is not himself the manufacturer of the article, and the particular use which is to be made of it is not communicated by the purchaser at the time of the sale, there is no implied warranty of fitness, although the seller may suppose that the purchaser intends to use it for the use for which in fact he buys it. This was a sale of leather and the purchaser inquired if it would crimp. This was held not a sufficient indication that it was intended for boots and shoes. See Gerst v. Jones, post, in full. In Ex parte Bridewell, decided by the Mississippi Supreme Court, April, 1879, to appear in 56 Miss. 39, HIS volume contains the extraordinary number it was held that under the Constitution of that State bail in a capital case is a matter of right, if a well-founded doubt of the prisoner's guilt be entertained. The Constitution provides that all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great. The court criticise Moore's case, 36 Miss. 137, 142, and Beall's case, 39 id. 715, where it was held that the court might admit to bail" even in cases where the jury might or perhaps ought, on the same evidence, to render a verdict of guilty of murder; " and adopt the rule as laid down in Wray's case, 30 id. 673, 681. The court also remark: "In Street's case, 43 Miss. 1, 29, reference was made to, and an extract quoted from Commonwealth v. Keeper of the Prison, 2 Ashm. (Penn.) 227, 234, in which the rule was announced that bail would be denied in all cases where a court would refuse to set aside a verdict of conviction of a capital crime. This rule, we think, is as plainly violative of the organic law, on the other extreme, as the remark of the High Court of Errors and Ap-| peals in the cases above cited. A verdict of conviction where no error of law has intervened will never be set aside unless manifestly wrong, or as is sometimes said, if there be any evidence to support it. To say that bail will only be granted where there is no evidence showing guilt, or where the proof of guilt is so slight upon the whole testimony that a conviction would be manifestly wrong, is plainly inconsistent with the constitutional requirement that it shall be granted in all cases except where the proof is evident or the presumption great. The error of the Pennsylvania rule is in failing to give due effect to a verdict of conviction, or in overlooking the vast change it effects in the attitude of the party. By it the legal presumption of innocence is overthrown, all doubtful questions of fact are resolved in favor of the State, and the credibility or noncredibility of witnesses is conclusively established. As before remarked, where no error of law has been committed to the prejudice of the accused, the verdict will not be set aside, unless the court can say that it is without evidence to support it, or that upon a review and inspection of all the evidence the find-window-glass. The horse was being driven by a ing is plainly erroneous. To apply such a test to a proceeding for bail, and to declare that it will be denied unless the relator has demonstrated that the evidence against him is of a like unsatisfactory character, is to reverse the constitutional require It In Higgins v. McCabe, p. 13, the defendant was a midwife who attended the plaintiff's mother at the plaintiff's birth, and a disease of the plaintiff's eyes being called to her attention a few days after birth, she said she could cure it, and had cured others of a similar affection, and told the plaintiff's mother not to call in a physician, and having prescribed some simple washes, the plaintiff became blind. appeared that the disease was serious but curable, and that the remedies applied were improper. It was held that in the absence of evidence that the care of the child's eyes was part of a midwife's ordinary duties, it must be regarded as not embraced in the contract, and as gratuitous, and that no recovery could be had for damages. The court said the services were "performed as acts of benevolence only." It would indeed be serious if every old woman who attends upon such occasions were to be held to a strict responsibility for her officious advice. There are several interesting cases of master and servant. In Hurff v. Ford, p. 24, the defendant's horse kicked a loose shoe through the plaintiff's servant of a contractor, and by the latter let with a wagon by the day to a city in the work of paving streets. It was under the sole management of the servant, whose duty it was to keep it properly shod. Held, that the driver was at the time the servant of |