NEW YORK CODE OF CIVIL PROCEDdure.

The Code of Civil Procedure of the State of New York, with notes by Montgomery H. Throop, lately one of the Commissioners to revise the Statutes. Part II, chapters 14-22, as enacted in 1880. Albany: Weed, Parsons & Co., 1880. Pp. xi, 1114.

This volume will prove a very valuable aid in the interpretation of the nine chapters of the Code, containing, as it does, the official explanation of the intended purpose and scope of the important modifications wrought by the statutory enactment. It forms an indispensable supplement to the similar publication concerning the thirteen chapters, and completes that work.

A

OBITUARY.

MOS R. MANNING, ono of the associate judges of the Supreme Court of Alabama, recently died in New York city, whither he had gone to be treated for a disease from which he had been suffering for six years. He consulted a surgeon, who decided that the only hope of cure was in a surgical operation, which was very likely to prove fatal. Judge Manning, however, decided to have this performed, and it was accordingly done on the 14th ult. The operation lasted about fifty minutes and was performed by several surgeons. Judge Manning failed rapidly after the operation, and died on the next Friday. The body was taken to Perth Amboy, N. J., where the funeral took place. Judge Manning was born in Amboy, N. J., iu 1810. While he was a boy his family removed to Huntsville, Ala. About 1870 he became an associate judge of the Supreme Court of Alabama. His opinions were remarkable for care and research.

NEW YORK COURT OF APPEALS DECISIONS.

THE following decisions were handed down Tuesday, Sept. 28, 1880:

Judgment affirmed with costs - Babcock v. Libbey; Tift v. City of Buffalo. Judgment affirmedReinhardt v. People; Goldstein v. People; Mack, alias McEnery v. People. Judgment reversed and venire de novo Therasson v. People.· - Judgment reversed and new trial granted, costs to abide event - Dodge v. County of Platte.

Order affirmed with costsTwombley v. Cassidy, in re Village of Middletown; Cowing v. Altman; Durkin v. Sharp. Order of General Term reversed, and that of Special Term affirmed with costs In re Depierris. Order of General and Special Term reversed, and motion granted with costs - In re Sanger. Order modified so as to require the values of annuity bonds to be computed by the American Experience Table with interest at four and one-half per cent, and as thus modified affirmed, costs of the receiver and of annuitants, who appealed to this court and have succeeded in procuring a modification of the order appealed from, to be paid out of the fund - In re Attorney-General v. North American Life Insurance Company. Appeal dismissed with costs In re Friedman. Order affirmed without costs - In re Eldridge.

THERM

THE nomination of Mr. Seymour D. Thompson, tho eminent legal author, as a candidate for the St. Louis Court of Appeals, is one eminently fit in every point of view. The Central Law Journal says his election is desired by nine-tenths of the bar; and very justly observes, that "the bar when left to itself may be safely trusted to select the best talent for the bench. It seems from Gabe v. McGinnis, 68 Ind. 538, that "under the fish" means the court-house at Bloomington.

"PROBABLY NOT. --The doctrine of ancient lights does not prevail in Kansas (Hogan v. Manners, 23 Kans. 551)." - London Law Journal. -There are two beknighted lawyers in England - Mr. Rupert Kettle and Mr. L. S. Jackson. The honor to the former is on account of the establishment of boards of arbitration between employers and employed; to the latter on account of judicial service in India. The 4th volume of the North-western Reporter contains all the decisions of the Supreme Courts of Minnesota, Wisconsin, Iowa, Michigan, Nebraska and Dakota, from January 17 to April 10, 1880.

The correspondents of the ALBANY LAW JOURNAL are continuing the discussion of the constitutionality of the County Courts Jurisdiction Act of 1880. Thus far the negatives have the advantage in the debate, in respect of the positive conviction and unqualified assertion of the law; the affirmatives have the advantage of extent of argument. Meanwhile the county courts are not very desirable tribunals for litigation on money demands exceeding $1,000.- New York Daily Register. The following from the New York Daily Register, ou lawyers returning from vacation, seems somewhat ambiguous in the closing adjective: "The returning absentees are seen in the streets and offices, bronzed and full-cheeked." On the motion for re

argument on the question of the adoption of the Indiana constitutional amendments, the court adhere to their original ruling, by a vote of three to two, the judges dividing as before. -The London Law Times, speaking of the course of study recommended by the committee of the American Bar Association on Legal Education, says: "Tho law student who has mastered even the general principles of this wide range of subjects will have, it is scarcely necessary to remark, a far larger stock of theoretical knowledge at his command than is possessed by the majority of practicing lawyers."

The St. Louis Globe-Democrat, in an article entitled "A Legal Dilemma, says: "If the Hudson river tunnel deaths had resulted from willful malice instead of incurable stupidity, the crime would be equally beyond the purview of the law, as it is held that no murder can be proved unless the body of the victim can be produced before a legal tribunal. Such absurdities and inconsistencies are gradually disappearing from the codes of the States, but they survive with all the tenacity of all abuses. Under the old doctrine requiring the corpus delicti, a man might throw his victim over Niagara Falls in the sight of a thousand persons and go unpunished if the waters refused to give up their dead. Such a case would be an extreme one, but it would differ in degree only and not in kind from the New York case, where the coroner's inquests are postponed to await the arrival of the remains that are never going to come." This is indeed news, but we hope no more like it is "going to come."

The Albany
Albany Law
Law Journal.

THE

ALBANY, OCTOBER 9, 1880.

CURRENT TOPICS.

HE Daily Saratogian, of Sept. 27th, contains a detailed and intelligent account of the trial of Mirzan, a naturalized American citizen, in Egypt, for murder, which is from the pen, we presume, of Judge Batchelder. It seems that the United States Revised Statutes prescribe that in a trial for a capital offense, before the consul, he shall associate with him at least four citizens to be selected by the United States minister from a list furnished by the consul, and that a concurrence of all would be necessary to convict. The statutes also clearly give original jurisdiction to the minister to try cases of a capital nature, but it is clear that there is no provision for associates in case the trial is by the minister. Out of considerable conflict and confusion it seemed settled that in capital cases the consul and the minister had concurrent original jurisdiction, and either might try the case with the important difference that the consul would be associated with at least four assessors or associate judges, whereas the minister would sit alone. These questions were referred to the department at Washington, and were subjects of grave consideration and correspondence during the year that elapsed between the murder and the trial. At length it was decided that Mirzan should be tried by the minister, and his excellency was consequently ordered by the State Department to proceed at once to Alexandria for that purpose and in conformity with the Statutes and the orders of the secretary of State. He had no other alternative than to sit alone. By the invitation of our government, Judge Batchelder, of the International Court, acted as prosecuting attorney, his judicial functions being temporarily suspended. (That court, it seems, possesses no jurisdiction in such cases.) The prisoner was ably defended, and was convicted, and sentenced to death. This case has excited a great deal of comment and criticism, from the singularity of a capital conviction by a single judge without a jury.

In Egypt, the French, Italian, Austrian and German authorities simply examine their criminals before the consular officer in the country where the crime was committed (like an American police justice), reducing the examination to writing, signed by the witnesses and the accused. These so-called “instructions” are sent up to a bench of three or five judges, at home, who listen to arguments by the procureur-general for the government and counsel for the defense. These arguments are based upon the "instruction," and other judges may, on demand of either party, examine additional witnesses. In most cases none are called, and the judges thereupon decide the case and pronounce sentence according to the degree of crime. England has established VOL. 22.-No. 15.

a Consular Court for the trial of criminal cases. The presiding consular judge associates with him five English subjects, a majority of whom must concur with the judge in order to convict. The writer in the Saratogian observes: "As to a 'trial by jury,' as contemplated by the Constitution, in any of the countries where we exercise extra-territorial jurisdiction by virtue of treaties, it is simply out of the question. We must accept the doctrine that our Constitution does not extend to these countries, any more than to the so-called civilized powers of the earth, or else abandon our pretension of criminal jurisdiction in the domains of the sultan, in China, Japan, Madagascar, and other non-christian principalities, and submit our subjects temporarily residing there, as regards criminal justice, to the local authorities. As to exercising our complicated system of criminal jurisprudence in those countries it would be impossible, if for no other reason, for want of a sufficient number of domiciled subjects to constitute the trial jury, not to speak of the 'grand inquest' and the extra panel to supply changes." "In case the American citizen' is not satisfied with this system of justice, let him remain within the jurisdiction of the Constitution, or refrain absolutely while abroad from the commission of crimes." But he recommends the institution by treaty of some more numerous and deliberate tribunal; to which we agree.

The Weekly Jurist, in speaking of Bradwell's Reports, says: "A larger per cent of the decisions of the Appellate Courts are affirmed than those of the Supreme Court of New York, thus rendering this series more valuable than the reports of that court, which have such a large circulation." Now if we were only informed of the comparative number of appeals from our Supreme Court and the Illinois Appellate Court, we could tell whether this reasoning has any force. We have examined both series with considerable care, and must say that in the variety and importance of the questions considered, and the learning and ability of the opinions, we do not think the advantage lies with the Illinois series. Then again, Bradwell's series reports only reversals, with a very few exceptions. Whatever might prove to be the fact in respect to the correctness of the intermediate court, it would be difficult to find an equal number of reversals of the trial courts in any other State. The last volume of Bradwell contains about 130 cases, all reversals but two or three, and this volume is the sixth issued since 1877.

There has been a recent instance of a marriage ceremony by telegraph. Doubtless there is something very romantic in the idea of sealing the marriage bond by electricity, and very likely if the parties thus contracted would always preserve the same distance between themselves and restrict their communications to wire or cable, their lives would be more harmonious than the average married life. Doubtless a marriage contract thus entered into would be legal between parties situated in communi

ties having the same or similar laws of marriage, but there is danger of running against conflicting laws of different States, and there might arise a difficulty of proof in case the marriage were not consummated by cohabitation. People in love (for the first time) do not stop to consider these things, and are so afraid that they shall never see the like of one another again, that lightning is barely swift enough to seal their vows. Getting married in a balloon, or up in the dome of the National Capitol, both of which resorts we believe have been recently adopted by importunate lovers, is just as sentimental and rather safer than the telegraphic medium, although emblematically these modes are not the most satisfactory, for balloons are structures of gas and prone to collapse, and the National Capitol was once in sad danger from disunion. On the whole we should counsel people bent on marriage to wait until they can literally join hands, and then to be content with terra firma and the ordinary modes.

A very important practical decision has just been pronounced by the General Term of the Supreme Court for the third department of this State, namely, that under section 1623 of the new Code, and other sections touching the subject, a judge or referee cannot be required or permitted to make additional findings of fact or law, upon the settlement of the case, after his report or decision has been rendered. Mr. Throop, in his note to section 1023, in speaking of the old practice, says: "It is always awkward and inconvenient, and is often insufficient adequately to protect the rights of the defeated party." He adds: "It has not been abolished; but an additional method of securing the desired result has been provided by this section."

NOTES OF CASES.

N State v. Foley, Supreme Court of Nevada,

conviction in one State, which disqualifies the convict from testifying, also disqualifies him from testifying in another State. The court said: "But does a conviction in one State disqualify the convict from testifying in another State? It was conceded in the argument, and we have thus far assumed that it does. The question, however, is vital to the case, and we should not feel justified in deciding it in the affirmative merely because counsel has admitted that it must be so decided. Mr. Greenleaf, 1 Ev., § 376, declares that the weight of modern opinion is the other way; and Mr. Bishop, 1 Cr. Law, § 976, takes the same view. There is but one case, however, which supports this declaration, Commonwealth v. Green, 17 Mass. 539, while there are at least two well-reasoned and more recent decisions directly to the contrary. The first of these, State v. Chandler, 3 Hawks, 393, was decided very shortly after the Massachusetts case, and apparently without any knowledge of the grounds of that decision; but in the other case, Chase v. Blodgett, 10 N. H. 22, the grounds of the decision in Commonwealth v. Green

are thoroughly reviewed, and the argument, in our opinion, completely overthrown. There is a reference in the digest to a case in 42 N. Y. Superior Court Reports, where the point seems to have been held as it was in Massachusetts. We have been unable to procure that volume, but we presume it adds nothing to the reasoning of the court in Commonwealth v. Green. This case we have given a very attentive consideration without being at all convinced by it. The court adduces a number of reasons in support of its conclusions, but rests upon no one of them as a conclusive ground of decision. The argument to which most weight seems to be attached is, that a State will not enforce the penalty of a crime committed beyond its jurisdiction, and the denial to a convict of the right to testify, they say, is a part of this punishment. This argument is very satisfactorily met, and entirely refuted in both the North Carolina and New Hampshire cases above referred to. They say, in effect, that the ground upon which a convict is held incompetent to testify is that there is no presumption that he will speak the truth; he is excluded, not for the purpose of punishing him, but for the protection of the party against whom he offers to testify; if it thereby results incidentally that he is subjected to humiliation and disgrace, this is an inconvenience which it is entirely within the power of the State to impose, and of which he has no more right to complain than an atheist had to complain of the discredit which the laws of many countries formerly Without further comment attached to his oath.

on these cases we content ourselves with saying that, in our opinion, the weight of authority and the soundest reasons support the doctrine that a person convicted of an infamous crime in another State is thereby rendered incompetent to testify in our courts." This is directly contrary to Sims v. Sims, 75 N. Y. 466, and National Trust Co. v. Gleason, 77 id. 400. The New Hampshire and North Carolina cases were reviewed in the Sims case, and denied. The reasons stated are, first, that it is the sentence, and not the commission of the crime, that disqualifies; and second, that a record of conviction for a crime is not conclusive, if any, evidence, in a civil action, of the facts on which it is based.

In O'Connor v. Chicago, Milwaukee & St. Paul R. Co., Minnesota Supreme Court, September 13, 1880, 6 N. W. Rep. 481, it was held that in case of an accident by a railroad train running upon and injuring horses on the track, what was said by the engineer to the conductor of the train immediately after the accident and after the train had stopped, and while they were examining to ascertain what mischief had been done, indicating where he first saw the horses on the track, there not appearing any thing but the occurrence to cause or procure the statement, may be proved by the plaintiff as part of the res gesta. The court said: "To make declarations of an agent evidence against his principal they must not only have been made while he was engaged in the business of the principal, but they must be a part of the trans

-

action out of which the controversy arises. It is not enough that they refer to or narrate the transaction after it is past; they must be so connected in time and circumstances with the principal fact as to be a part of it. When declarations of an agent or of a party himself are so closely connected with the principal fact as to be a part of the res gesta, is often a very nice question to determine. There are on the point many decisions which appear difficult to reconcile with each other." This ruling is supported by the following cases: Where the action was for injury from a train of cars running over plaintiff's wagon and horses, driven by his servant, it was held the defendant might prove a conversation with the servant at the time of the accident and relative to it. T. & W. Ry. Co. v. Goddard, 25 Ind. 185. In an action against a railroad company for damages, caused by delay in the carriage of cattle, the statements relating to the delay of the conductor, made while he had control of the train in which the cattle were, were held part of the res gesta. · Sisson v. C. & T. R. Co., 14 Mich. 489. In an action against a railroad company for wrongful expulsion from one of its trains, a conversation had immediately after the expulsion, and serving to illustrate its character, between plaintiff and the offending brakeman, was held part of the res gesta. Bass v. C. & N. W. Ry. Co., 42 Wis. 654; S. C., 24 Am. Rep. 427. The accident being the running of a railroad train against a peddler's wagon, and the destruction of his goods, the trial court admitted evidence of what was said at the time of the accident, by the engineer in charge of the train, as to negligence in running it. This was held no error by the Supreme Court, which said: "We cannot say that the declaration of the engineer was no part of the res gesta. It was made at the time of the accident, in view of the goods strewn along the road by the breaking up of the boxes, and seems to have grown directly out of and immediately after the happening of the fact. The negligence complained of being that of the engineer himself, we cannot say that his declarations made upon the spot at the time, and in view of the effects of his conduct, are not evidence against the company as a part of the very transaction itself." H. R. Co. v. Coyle, 55 Penn. St. 396. In Luby v. H. R. R. Co., 17 N. Y. 131, the plaintiff was run against and injured by a car drawn by horses. The car was stopped, and the driver arrested by a policeman. In the trial the policeman was allowed to testify that upon arresting the driver as he was getting off the car and out of the crowd surrounding it, he asked him why he did not stop the car, to which the driver replied the brake was out of order. This was held error. The court said: "The declaration was no part of the driver's act for which the defendants were sued. It was not made at the time of the act, so as to give it quality and character. The alleged wrong was complete, and the driver, when he made the statement, was only endeavoring❘ to account for what he had done." The court in the principal case also observe: "It is evident that whether the declaration is directly connected with, and growing out of, the main fact does not depend

on the time which has elapsed between them, though it must always be an important element in the consideration of the question; a considerable time may elapse and yet the declaration be a part of the res gesto. It may be made immediately upon the fact, and the circumstances be such as to exclude it. Each case must depend on its own peculiar circumstances, and be determined by the exercise of sound judicial discretion."

Now

An interesting question of description of a legatee came up in Patching v. Barnett, Eng. Ch. Div., Sept. 11, 1880, 43 L. T. (N. S.) 50. A testator bequeathed a bust, after his wife's death, to "J., now Duke of B.," on condition that he caused it to be placed and remain in W. Abbey, and at the time of the delivery of it to him settle it so as to be held as an heirloom by the persons who under the limitations to which the abbey should then be subject should then be entitled to the possession thereof, with a gift over in case J. should neglect so to do for twelve months after request by the trustees. J., Duke of B., had died in 1839. F. was Duke of B. at the time of testator's will and death, and was owner in fee of W. Abbey. F. died during the life-time of the tenant for life, and consequently never received the bust. The present Duke of B. was willing to allow F.'s executors to place the bust in the abbey. Held, that the bust belonged to F.'s executors. Malins, V. C., said: "This testator had many articles of taste and vertu. Amongst other things he had an original bust of Oliver Cromwell, which was of very great value; at all events, he evidently attached very great value to it. he makes this bust a particular object of his will. First of all he gives it to his wife for her life, and then he says, 'and from and immediately after the decease or second marriage of my said wife, which shall first happen, I bequeath my said marble bust of Oliver Cromwell to the most noble John now Duke of Bedford, upon condition that he cause it to be placed and to remain in the library or some conspicuous place in Woburn Abbey,' and so forth. Now the first argument is, that this bequest fails altogether because John Duke of Bedford had died seventeen years before the will was made. It is gravely argued that the testator must have intended John Duke of Bedford who had for many years been dead, and who therefore could not take the bust or perform any of the conditions imposed by the testator with regard to it. It is said that I am to be guilty of the absurdity of thinking that the testator meant a dead man instead of a living man, when he said, 'I bequeath my said marble bust of Oliver Cromwell to the most noble John now Duke of Bedford.' The testator mistook the name; he thought that the then Duke of Bedford was John, whereas, in point of fact, he was Francis. There is no magic in a name; the testator did not know whether the duke's name was Thomas, John, William, or Francis; what he did mean was that the 'now Duke of Bedford,' that is, the living Duke of Bedford, should have this bust. There could have been only one Duke of Bedford at the time; it is a case in which