injury existed before the defendant's act, unless it appeared that the disclosure was necessary to enable him to prescribe. Marsh v. Colby, p. 626.- In the absence of notice against trespass, no action will lie for taking fish from a small lake nearly surrounded by the plaintiff's land. Crittenden v. Schermerhorn, p. 661.- Where alimony in a wife's suit for divorce has been fixed by the court and duly paid by the husband, the husband is not liable for subsequently furnished necessaries. Russell v. People's Savings Bank, p. 671. -A married woman is not liable on her indorsement of a note transferred by her to secure the debt of a corporation in which she is a stockholder. Bosman v. Akerley, p. 710. A guaranty of collection cannot be enforced until legal proceedings to collect have been instituted and proved ineffectual. ABBOTT'S JUDGE AND JURY. Judge and Jury. A popular explanation of leading topics in the Law of the Land. By Benjamin Vaughan Abbott. New York: Harper & Brothers, 1880. Pp. 432. The following topics are treated in this volume: Constitutional government; birds-eye view of American courts; the American library of law; colonial jurisprudence; citizens; civil rights; Indians; Chinese; National banks; commerce; trade-marks; metric system; admiralty jurisdiction; California land claims; polygamy; marriage; married women; divorce; insane persons; codification; civil damage laws; cruelty to animals; lotteries; Sunday laws; corporations; driving and walking; finding and stealing; tumble-downs; gas-explosions; house or house; photographs; firearms or fireworks; doctors and druggists; public school punishments; drawing one's own will; express companies; railroad companies; telegraphs. On these topics the author comments in a popular way, with much good sense, in a pleasant style, and with occasional gleams of humor, illustrating the subjects with cases new and old, including some that do not find a place in books. The book is well designed to give the layman a correct idea of such legal topics as are the most apt to fall in the way of his reading in newspapers. Mr. Abbott is well known to our profession as a competent legal author and compiler, and has judged wisely in putting before the non-professional world some correct views on legal subjects of common interest. The lay reader will hardly find so much useful information on legal points in any other publication. The volume has references to the cases cited, and an index, and is published in an attractive form. For sale by S. R. Gray, Albany. WE NOTES. E were in error in stating, ante, p. 41, that the referee's decision in Thorp v. Thorp was reversed by the General Term. The court at Special Term, on the authority of the Marshall case, refused to adopt the referee's views and enter judgment in conformity with his report. — We have added to our weekly index, in compliance with a suggestion from several subscribers, a detailed index to the abstracts, which we hope will save our readers some trouble in searching The State Library will be closed to the public, from the fifth to the twentieth of August, inclusive, for the purpose of cleaning and repairs. for references. The current number of the Journal du Droit International Privé, has leading articles on the Power of French tribunals to take cognizance of suits between strangers, by M. Ferand Giraud; the Effect and the execution of foreign decrees and judgments in Greece, by M. Saripolos, of Athens; and the Case of Bauffremont, by M. Renault. The Journal thus speaks of an old acquaintance of ours, namely, Short Studies of Great Lawyers: "The author has brought together in this publication a series of biographical disquisitions originally appearing in the ALBANY LAW JOURNAL, which he has conducted with so much ability since the death of the regretted I. G. Thompson. He passes successively in review the greatest jurists of England and the United States. ** **Monotony, repetition, tautology are the usual accompaniments of such works. Mr. Irving Browne has surmounted these difficulties, and shows that the literary spirit can be united with the judicial tone in the happiest manner. The French legal journals ought to follow the example which the wise editor of the ALBANY LAW JOURNAL has given them, and often present to their readers sketches as interesting and instructive of the great characters who have illustrated the bar and the magistracy." - Volume 2 of the North-western Reporter has reached us. It contains all the decisions from Iowa, Nebraska, Minnesota, Dakota, Wisconsin and Michigan, from Sept. 1 to Nov. 15, 1879, covering 1,178 pages, with an index and table of cases reported. This is a great and growing enterprise. The Southern Law Journal and Reporter gives the following description of some eminent lawyers who appeared in a recent important trial at the west: "Our readers will forgive us if we turn aside for a moment to give the impression made on us by the few celebrated men named above in the conduct of this cause, first of whom is the acknowledged head of the American bar,' Charles O'Conor, who looks something over seventy years old, the little hair he has left being snow white, as well as the rim of short-cropped whiskers encircling his face. He is about five feet eight or ten inches high, has a well shaped, but not a very large head. The most remarkable feature about him, being his brilliant, penetrating eye, which his many years have not dimmed, together with the grace and dignity with which he bears himself, makes him noticeable. Altogether he is a grand old man, and we could not help but admire the simplicity and clearness of his argument in this case. He appeared for the bondholders. C. F. Southmayd is a born lawyer, if there ever was one; small in stature, with sharp, clear-cut features, a sharp, squeaky voice, round shoulders; he looks as if he had spent his whole life in an office, and we reckon he has, for we heard of his asking very confi dentially of a friend while in Nashville, if there were many secesh around here now.' He has attained great celebrity in New York, and for refined distinctions and close argument we have never seen his equal, and yet he is no orator, delivering nine-tenths of his speech without looking at the judge, in fact with his back turned to him part of the time, and in a voice scarcely audible. He represents the railroads. Stanley Matthews, from his connection with the present chief executive of the Nation, together with his prominence as a politician, is perhaps better known than either of the above. He is a splendid specimen of the genus homo, but perhaps having the appearance of being a little too well fed. He represented in these causes the substitution bondholders, that is, the holders of the bonds issued by the railroads to liquidate the State's lien. He made a magnificent argument, and assisted by a magnificent voice, delivered it in a magnificent manner. Judge Hoadly, last, but by no means least, is a handsome man, some six feet high, whose splendid head and luminous eyes mark him as a great man, and this country is bound to hear more of him, for he is yet young, but has reached a place among the dozen of our greatest lawyers. All in all he is the readiest man we ever saw at the bar; like a cat he always falls on his feet, ready for a renewal of the combat. Taken altogether, we venture the assertion that a greater array of legal talent never crossed swords than met in this trial." The Albany Law Journal. W ALBANY, AUGUST 7, 1880. CURRENT TOPICS. E have always remarked the disposition of the English judges to interrupt and argue with counsel in the argument of causes. The reports are full of this sort of colloquy. He must be a very great judge who does not appear to disadvantage in this exercise, and it is hardly fair to the judges and not very useful to the bar to report all this judicial talk and putting of questions. Nobody cares much for the rough draft of a great author's work, filled with interlineations and erasures, and frequently far inferior in expression and in plan to the completed publication. These oral drafts of a judge's opinion are often as crude and subject to modification or rejection. The practice is also unfair to the lawyer, whose current of thought is thus broken up, and who is sometimes put at a seeming disadvantage without any substantial basis. The London Law Times says: "Judicial thinking aloud is one of the vices of our modern judicial system. The vigorous reporter who presents almost verbatim in the columns of the Times the doings of the Court of Appeal at Westminster, shows very clearly to what arguments in courts of law have been reduced. A running fire of questions from three astute judges is not an ordeal through which any counsel ought to be expected to pass in advocating a client's cause, and we think that the judges of half a century ago would open their eyes with amazement if they could peruse a faithful report of proceedings in any of our courts of law. The minority of judges in the present day have the faculty of listening. The majority utter their thoughts and their criticisms freely as they go along. The consequence must be, that arguments become much inflated without any compensating advantage. The only consolation is that the evil cannot increase in magnitude." The decision of the Master of the Rolls, in Mayor v. Riggs, will certainly startle the unprofessional mind, if it proves acceptable to the bar. The point held is, that where one grants to another land surrounded by the grantor's land, a right of way for ingress and egress exists by necessity, but only for the purpose of the enjoyment of the granted land in the state and for the purpose for which it was used at the time of the grant. So, such a right of way to agricultural land will not enure for the purpose of using the land for building, for other than agricultural purposes. In other words, if a man buys a farm so situated, he cannot have a right of way by necessity for mining on the land, nor for making brick from the clay, nor for carrying on a saw-mill or a quarry. Goddard says (Easements, 77), of ways, "they may be general in their character, or in other words, usuable for all purposes, or VOL. 22.- No. 6. they may be limited to particular purposes," "but the extent of the right must always depend upon the words of the instrument creating the right," or upon prescription. Now we should say, that as the nature of the way follows that of the grant, in the case of an unrestricted and unconditional grant, not reserving a way over the grantor's surrounding land, the way by necessity would also be unrestricted. Certainly in the case under consideration, the grantee was not bound always to use the land for purely agricultural purposes. He had a right to mine, quarry, or make brick or lumber, and if so, why must he not have a right to carry off his products? Does not a way by necessity fit itself to the lawful uses of the grant? If it were not so, the grantor could accomplish indirectly what he has not chosen to guard himself against by restrictions in the grant. In a notice of 38th Michigan Reports, the Southern Law Review says: "The case of Grand Rapids & Indiana Railroad Co. v. Huntley, p. 537, is calculated to arrest the attention. It denies two wellsettled rules of American law relating to the responsibility of carriers for injuries to passengers. The first is, that the breaking down of the carrier's vehicle or the giving way of his road is prima facie evidence of negligence; the other is, that a carrier of passengers is bound to more than ordinary care. On the last point the court cites three modern English cases and some previous cases in Michigan. It is sufficient to say that the law as laid down by Lord Mansfield and Lord Ellenborough — and this was merely stage-coach law- was that the carrier was bound to look out for the safety of his passengers as far as human care and foresight could go, and that the breaking down of his means of transportation was prima facie evidence of negligence on his part. But the modern English judges, with their pockets full of railroad shares, have diminished the carrier's liability, even where he drives his carriage by steam at six times the speed of the old stagecoach, to that of ordinary care. We state with confidence that the old English rule is the law as administered in the Supreme-Court of the United States, and the highest court of every State in the Union, except Michigan, where the question has arisen." The accident occurred from a broken axle. The stress of the case lay on the charge of the trial court that "no diligence or care in the railroad company could exempt them from want of care in the manufacture of the cars and axles." The appellate court said: Passenger carriers "are liable only when there has been actual negligence of themselves or their servants. If they exercise their functions in the same way with prudent railway companies generally, and furnish their road and run it in the customary manner which is generally found and believed to be safe and prudent, they do all that is incumbent upon them." The rest of the opinion is to the effect, that if the railway companies buy their vehicles of reputable manufacturers, and give them the usual and practicable examination, they do all that is necessary, and are not re be calculated to deceive. This seems sailing very close to the wind. Indeed, the court said "he could not approve of the mark," and "it was, in his opin use such a distinctive device as could not possibly deceive." We think the public would be as apt to be deceived in this case, as by the adoption of the words "Lone Jack," on parcels of tobacco, with distinctive surroundings. See 21 Alb. L. J. 503. sponsible for defects not discoverable on such examination; that they have a right to rely on the care and skill of the manufacturers and such examination, and are not insurers of the safety of their vehi-ion, the duty of traders in taking a new mark to cles. The opinion is short and contains no examination nor comparison of authorities, nor do any of the previous Michigan cases referred to. The Review is substantially correct in its statement, but the Supreme Court of Tennessee, in Nashville & Decatur Railroad v. Jones, 9 Heisk. 27, have held in accordance with the Michigan court. The ruling is adverse to that of our Court of Appeals in Hegeman v. Railroad, 13 N. Y. 9. Only one of the English cases cited is in point. It is unquestionable, in spite of Alden v. N. Y. C. R. R. Co., 26 N. Y. 102, that a passenger carrier cannot be held as an insurer of the safety of his vehicle, but both upon principle and authority he is held in this country to warrant due care and skill in the manufacture. Otherwise the passenger would be remediless, for he has no cause of action against the manufacturer, whereas the carrier has. To adopt the conduct of other railway companies as a criterion of prudence is very unsafe, for the most prudent are notoriously very negligent. We quite agree with the Review. We are inclined to believe that the solution of the inquiry, what constitutes such a resemblance between trade-marks as is calculated to deceive the public, depends very much on the peculiar minds of different judges, and peculiar states of mind of the same judge. The chancellor's foot is now heavier, now lighter. Two recent English cases illustrate this. In the case of Worthington's Trade-Mark, the applicants were refused leave to register a triangular mark, with a church in it, for beer, on the ground that if colored red, it might interfere with the red triangle of Messrs. Bass, which, as registered, appeared to be a mere triangular black blotch. In connection with this decision, the Solicitors' Jour The Canada Legal News reports the case of Bradley v. Logan. The action was brought on a promissory note, by a citizen of the United States. The plaintiff described himself as "Esquire," the law requiring that the plaintiff shall state his occupation or quality. The defendant objected that the plaintiff gave himself no title. It was proved that there is no such title in this country. But the court said: "The exception of the defendant is wanting in this, that it does not say in what respect the description is defective. It complains of the total want of description; but the quality of esquire is sufficient in itself, and in our law has a significance, and I see no proof that the plaintiff is not an esquire as we understand, though the title has no significance in the United States. Vide Comyn's Digest, vo. Dignity, p. 405. Stephen's Comm. 3, 15." Abbott (Law Dict.) says: "It is familiarly employed in the United States, but is a title of courtesy merely." Webster says it is "a general title of respect in addressing letters." The English judges, it seems, are punctilious but not harmonious about their titles. The Solicitors' Journal says: "A few days ago a Queen's counsel, while moving in a case in the Exchequer Division, addressed one of the learned judges as 'Sir FitzJames Stephen,' whereStephen. Counsel, in apologizing for the error, upon his lordship corrected the title to Mr. Justice mentioned that he had been led into it by the fact Henry Hawkins; and he might have added that yet that another learned judge wished to be styled Sir Mr.,' and to share with a another learned judge appears to desire to drop the once eminent financier and many foreign potentates the title of 'Baron.' To any other learned judge who may be in search of brethren we would respectfully commend the title some designation distinguishing him from his by which the court is frequently addressed in petitions drafted by native pleaders in India- 'The Presence.'"" NOTES OF CASES. nal suggests that trade-marks should be registered in the color in which they are to be used. On the other hand, in Goodwin v. Venning, the plaintiffs were the registered owners of a trade-mark in respect of tobacco, and consisting of a judge's head, with the words above "Old Judge sun-cured Virginia smoking tobacco," and the name of the plaintiffs underneath. The defendants had recently registered a trade-mark consisting of the full figure of a judge dancing with a pipe in his mouth, and an interwoven scroll with the words "Young Judge tobacco and cigarettes," and the name of the defendants. The plaintiffs moved for an injunction to restrain the infringement of their mark, and theyTHE case of Davis v. City of Somerville, Massachuadduced evidence showing that their tobacco was well known in the market as "Old Judge," or "Judge " tobacco, but there was no evidence that any person had been actually deceived by the defendants' labels. Some of the witnesses deposed that if they heard the word "Judge " applied to tobacco they should consider it meant the plaintiffs' tobacco. Jessel, M. R., was of opinion on a comparison of the two marks, that the defendants' mark did not so closely resemble that of the plaintiffs' as to THE use of Duci Sv. C, yur, uer, ille, Massation for personal injuries occasioned to the plaintiff while travelling on Sunday upon a highway which was out of repair. The plaintiff, in company with a lady friend, drove from Boston to Cambridge, in the afternoon of the above day, for the purpose of attending a funeral; on leaving Mount Auburn Cemetery, the lady asked the plaintiff to take her back by way of Charlestown, so that she could call upon her sister-in-law; the plaintiff assented, and while over his objection. When the argument was reached counsel for defendant asked the privilege of addressing the jury in the Spanish language, that being the only language understood by a majority of the jury. This was refused, although no objection was interposed by the State. The court said: "The right of a defendant charged with felony, to be tried by jurors who understand the English language, is not an open question in this State. In Lyle's case, 41 Tex. 172; S. C., 19 Am. Rep. 38, the question was maturely considered and determined affimatively, and no subsequent legislation, organic or statutory, has qualified the ruling in that case." "A trial would be legally fair and impartial, within the meaning of the Constitution, before a jury of deaf mutes, who, by reason of their misfortune, could not hear a word of the testimony or argument of counsel, and a trial before either could be nothing less than a mockery. After having forced such a jury upon the prisoner, in vio so doing the accident happened. Neither the plaintiff nor the lady testified as to the purpose for which the call was to be made; nor did it appear that the plaintiff had any acquaintance with the sister-in-law. The trial court left it to the jury to say whether he was travelling for any other purpose than that of going to or returning from the funeral. The jury found for the plaintiff. This was reversed, the court saying: "It was correctly ruled at the trial that the plaintiff could lawfully travel on the Lord's day for the purpose of going to or returning from the funeral, and that it was not necessary that he should return by the same or by the shortest route, unless the route taken by him was so unreasonable and inconvenient as to show a purpose outside of the alleged necessity or charity. But if, while in attendance at the funeral, or upon leaving the cemetery, it was proposed to him by his companion to go to another place, not upon the ordinary return route, in order for her convenience or pleasure, to visit a friend, and if he acceded to this pro-lation of his constitutional privilege, the error was posal, it would be the substitution of a new and different purpose of the journey in place of that which he had in view when he began it, and a purpose entirely outside of the necessity or charity which influenced him at the outset. If he had taken her from her residence and gone with her to Charlestown to make the intended visit on the Lord's day, without attending the funeral at all, it would have been a clear violation of the statute. It is difficult to see why it would be any the less so if, having attended the funeral, he, instead of returning directly from it, accepted an invitation to make a different journey for a purpose having nothing whatever to do with the funeral. It makes no difference that the determination to make that journey was formed after he had attended the funeral and was about to return. By the terms of the statute he had no right to make that journey at all on that day and for that purpose. The majority of the court are, therefore, of opinion that the presiding judge fell into the error of submitting to the jury what was really a question of law; and that he should have instructed them, that upon the undisputed facts of the case, the plaintiff had not brought himself within the exception expressed in the statute, and was not entitled to maintain the action." In Me Campbell v. State, Texas Court of Appeals, Austin term, 1880, 3 Tex. L. J. 726, before the process of impanelling the jury was began, the defendant objected to any person being sworn and impanelled as a juror who did not understand and speak the English language, which objection was overruled by the court. Thereupon the jurors, as summoned, were called and the defendant exercised his right of peremptory challenges until they were exhausted, after which eight jurors, whose names are set out, were called and upon their voire dire, stated that they did not speak or understand the English language. The defendant then challenged each of these jurors for cause, on that account, which challenges were disallowed, and the jurors accepted magnified by a refusal to permit his counsel to ad- The case of Scribner v. Stoddart, U. S. Circuit Court, Eastern District of Pennsylvania, 19 Am. L. Reg. (N. S.) 433, is more noticeable for what it queries than for what it decides. The suit was for an injunction to restrain the publishers of the American reprint of the Encyclopedia Brittannica from publishing in that reprint certain articles written for the foreign edition and copyrighted in this country. The court queried whether a copyright granted to a foreigner for a work written by an American citizen, and purchased before publication, is valid, saying, "I think it may safely be said that the question is open to very serious doubt." The court also queried whether a citizen, who has copyrighted a short paper, and has allowed it to be published in a foreign country as part of an encyclopedia, can use his copyright to prevent the republication of the work in this country. The court said, this "is freer from doubt," but still doubtful enough to warrant the denial of the injunction. But the denial was mainly put on the ground that "the injury likely to result to the plaintiffs from a denial of this motion, will be very much less than that which would be suffered by the defendants if it was granted." The court thought that the demand for the articles in question, in a separate form, would not in any event be great, and would not be materially injured by their publication in the general work. On the other hand, if the injunction were granted, the foreign publication would "virtually drive the reprint out, and leave the field to the other side, and it would be occupied and harvested probably before this case was concluded." "The defendant is not to be looked upon simply in the light of an ordinary wrong-doer." "At the time he commenced this publication there was nothing unlawful in what he did." "The defendant at the beginning could not know that before this work was completed and fully issued, it would contain articles which were copyrighted." "There was nothing to warn him of the insertion of such matter." THIRTIETH AMERICAN REPORTS. | individual debt; polling jury; right to recover price of sale fraudulent as to creditors. Among the very interesting cases forming the volume we note the following as of especial import ance: BAILMENT.-A government mail carrier is not responsible to the owner for money stolen from the mails. Foster v. Metts, 55 Miss. 77; page 504. BANK. A bank has no lien upon a customer's deposit for his indebtedness to the bank not yet due. Jordan v. National Shoe and Leather Bank, 74 N. Y. 467; page 319. BANKRUPTCY. -Dower is not barred by the sale of husband's land in bankruptcy. Lazear v. Porter, 87 Penn. St. 513; page 380. CARRIER. In the absence of contract one carrier cannot maintain an action against another for failing to ship goods over the plaintiff's road which the other had brought to the point of connection, although the owners of the goods had contracted with the plaintiff to ship the goods over its road. Wilmington, etc., R. Co. v. Greenville, etc., R. Co., 9 S. C. 325; page 23. In the absence of proof of gift to the wife, the husband can recover for loss by a carrier of the wife's paraphernalia. Curtis v. Delaware, etc., R. Co., 74 N. Y. 116; page 271. A railroad company is not liable for the loss of a travelling agent's samples of merchandise received as baggage. Alling v. Boston & Albany R. Co., 126 Mass. 121; page 667. A railroad company is not liable for injury to one riding on a freight train with knowledge that the conductors were forbidden to receive passengers on freight trains, and paying no fare. Houston & Texas Cent. Ry. Co. v. Moore, 49 Tex. 31; page 98. CIVIL DAMAGE ACT. No recovery can be had for injury to the plaintiff's means of support by the intoxication of his minor son by liquors sold by the defendant, without proof that the son's services were necessary to the father's support, or that the expenses incurred by the intoxication had so impaired the father's means as to render them inadequate for his support. Volans v. Owen, 74 N. Y. 526; page 337. The Civil Damage Act, making lessors of premises, with knowledge that they are to be used for the sale of intoxicating liquors, liable for damage caused by the act of one intoxicated by liquor sold there, is constitutional. Bertholf v. O'Reilly, 74 N. Y. 509; page 323. HIS volume of 877 pages contains the leading cases from 5 Baxter, 88 Illinois, 62, 63 Indiana, 48 Iowa, 21 Kansas, 48 Maryland, 126 Massachusetts, 55 Mississippi, 68 Missouri, 8 Nebraska, 74 New York, 80 North Carolina, 32 Ohio State, 87 Pennsylvania State, 9, 10 South Carolina, 49 Texas, 3, 4 Texas Court of Appeals, 45 Wisconsin, Reports. The following are the principal notes: Administration on estate of living person, 748; Attorney, rights of, as to client, 358; Contract, illegal, enforcement between parties, 106; Crime, decoying into commission of, 129; Criminal Law, intent in statutory crime, 617; Damages, liquidated or penalty, 28; Exempt Property, voluntary conveyance of, 757; Interest after maturity, 47; Lost Property, rights of finder, 180; Mortgage of crop to be planted, 63; Negligence, contributory, when defense, 190; Negligence, trespasser, 687; Negotiable Instrument, bona fide holder, purchase after default in payment of interest, 701; Partnership, sale of entire assets by one partner in payment of his individual debt, 534; Polling Jury, 497; Sale, right to recover price | 88. of fraudulent, as to creditors, 517; Surety, discharged by death of principal, 56. Several of these are very exhaustive; for example, those on administration on estate of living person; damages, liquidated or penalty; interest after maturity; contributory negligence, when a defense; partnership, sale of entire assets by one partner in payment of his CONSTITUTIONAL LAW. - A sentence of a husband to two years' imprisonment for a violent and malicious assault on his wife is not a "cruel or unusual punishment." State v. Pettie, 80 N. C. 367; page A statute, limiting the right of admission as attorney at law to white male citizens, is constitutional. Matter of Taylor, 48 Md. 28; page 451. . A statute, imposing a penalty on railway conductors for failing to cause their trains to stop five minutes at every way station, is constitutional. Davidson v. State, 4 Tex. Ct. App. 545; page 166. |