building being erected by the United States government upon its own land in the city, with a view of ascertaining whether they are safe. Stowell v. Bair, | p. 104. A mortgage of an unsown crop is invalid. Western Assurance Co. v. Mason, p. 141. — In an action on a policy of fire insurance on a summer residence, it appearing that during the winter the insured visited it once a week, and her husband went to it two or three times a week, frequently taking meals and remaining over night and entertaining friends there, held, no breach of the condition against vacancy. Chicago & North-western Railroad Co. v. Carroll, p. 201. A railroad company is not absolutely bound under all circumstances to furnish all its passengers with seats. Lawrence v. Mutual Life Insurance Co. of New York, p. 280.- Where one whose life was in

sured died in consequence of inadvertently or negli

gently taking an overdose of laudanum, held, no breach of the condition that the policy should be void in case of self-destruction, voluntary or involuntary, sane or insane. Neill v. Spencer, p. 461.-One who has performed pastoral service for a religious society, without having been elected pastor, cannot recover therefor, even quantum meruit, against the persons signing the call. Gale v. Rector, p. 481. It is error to allow medical publications to be read to the jury. Morton v. Steward, p. 533. — An infant's note for necessaries is voidable. Wabash Railroad Co. v. Brown, p. 590.-A| railway company owes no duty to its employees, either at common law or by statute, to keep its track fenced against cattle.

CORRESPONDENCE.

DENIALS UNDER THE CODE.

To the Editor of the Albany Law Journal:

In view of some recent decisions at the Special Term, Supreme Court, in this district, and at General Term of the Court of Common Pleas, it might be of interest to the readers of the JOURNAL to have the opinion of the Court of Appeals in Allis v. Leonard printed in full. The form of general denial almost universally employed in this district is as follows: "Defendant denies each and every allegation in the complaint contained, not hereinafter specifically admitted or denied."

It was held in McEncroe v. Decker, Special Term, New York, November, 1879, that this was neither a general nor specific denial, and is a form of denial in no way provided for by the present system of pleading. 58 How. 250. Subsequently, in Bixby v. Drexel, General Term, Court of Common Pleas, April 5, 1880 (9 Reporter, p. 630), it was held that in an answer, a denial of all the allegations of a pleading, except such as are thereafter admitted, is not sanctioned by the Code. Both these decisions are based upon, and the opinions in them refer to, the cases of The People v. Snyder, 41 N. Y. 400, and The People v. The Northern Railroad

Co., 53 Barb. 98, affirmed 42 N. Y. 217.

It is true that in People v. Snyder there is a dictum of Judge Daniels, which sustains the proposition, but it was not necessary to the decision of the case, nor was the point raised below.

The same proposition is held in The People v. The Northern Railroad Co., 53 Barb., at General Term, and in the Court of Appeals the case is affirmed, 42 N. Y. 227, but not on that point. The affirmance, also, is by a divided court (4 to 3), and the dissenting opinion of Foster, J., page 240, presents a strong argument in support of the propriety of the pleading. It does not appear that in either of the two recent decisions, 58 Howard and 9 Reporter, the attention of the court was called to the later decision of the Court of Appeals, in the case of Allis v.

THE American Law Review for July contains the

second installment of the law of Collateral Securities, by Leonard A. Jones; the Judgment non obstante veredicto, by William A. Manny; and the case of Huddell v. Seitzinger, Ex parte Wood, on notes transferred as security for antecedent debts, with a note by Arthur Biddle; beside the usual miscellaneous matter. We clip the following advertisement from the New York Daily Register: "Lawyers and law students willing to become organizers of a lawyers' temperance society in this city, please address 'Temperance,' Daily Register office. ju29-1t." The undertaking is laudable, but is not "1t," which we understand to mean one time," rather inadequate notice?

Not every lady and gentleman who has this season applauded Miss Terry's "Portia" is aware that, about the date when the "Merchant of Venice" may be supposed to have exhibited his gaberdine on the Rialto, there actually existed great female lawyers in the neighboring city of Bologna. Prof. Calderini, who held the Chair of Jurisprudence in that University in 1360, and Prof. Novella, who occupied it in 1366, were not only celebrated for their legal lore and skill, but if we may trust their portraits, exceedingly beautiful women, with noble Greek profiles, dressed in a style which Miss Terry might have copied without disadvantage. If women hereafter should again obtain entrance into the legal profession, it is not at all improbable that we may see something more of the keenness of feminine wits engaged in disentangling the the Times' Dublin correspondent, have just been knots of the law. Two ladies in Ireland, according to conducting their own most intricate cases in a manner which excited the surprise of the Master of the Rolls, who even observed that he was "astonished that the ladies had been able to put their case on paper so intelligently and clearly without legal advice. If other ladies should follow the example of the Misses Fogarty, what a falling off must ensue in the solicitors' bills? They lost their case, it is true, but seemingly could not have won it under any guidance; and at all events they have escaped that great aggravation of the misery of defeat in a court of law-the lawyer's costs.-Pall Mall Gazelle.

"American law in the East" is referred to in connection with the recent murder trial at Alexandria. We should be glad to learn how American law in Egypt differs from American law in New York, and under what sanction a man can be tried and condemned to death by a United States Minister, the public prosecutor being the American judge of the International Tribunals who opposed the application of the prisonor's counsel that four assessors might sit as a jury. It is certainly a mockery of justice that a person charged with murder should be kept in prison for twelve months, and after that delay be convicted by a di'plomatist and by him sentenced to death.-Law Times.

The Albany Law Journal.

A

ALBANY, JULY 17, 1880.

CURRENT TOPICS.

Ta meeting of members of the bar of the Fourth Judicial Department, held in Buffalo on the 18th ult., a committee of fifteen members of the bar of that department was appointed and charged with the duty of preparing an amended judiciary article of the Constitution, to be submitted to the Legislature at its next session; and requested to invite the aid, counsel and co-operation of the members of the bar of the several judicial districts in the State, in preparing said amended article, and in procuring action upon it in the Legislature. The committee are as follows: Eighth District - Addison G. Rice, Grover Cleveland, David H. Bolles, Myron II. Peck, George C. Greene. Seventh District -William F. Cogswell, James C. Cochrane, Josiah T. Miller, James R. Cox, E. A. Nash. Fifth District John F. Seymour, John C. Churchill, Wm. C. Ruger, Irving G. Vann, John D. Kernan. The committee have resolved to convene at Saratoga Springs, on the 11th of August, 1880, for the purpose of taking action in the matter suggested in the resolution. What that action will be has not been discussed or even suggested by the members of the committee, but that some action in that direction is necessary, is a fact fully realized, we believe, by the members of the bar, suitors and business men generally, throughout the State. Any gentleman of the profession wishing to submit suggestions upon the subject, but unable to attend, can send his views to any member of the committee at any time prior to the meeting, and such suggestions will be considered.

The Social Science Association have received from the president of the Juristic Society of Berlin, a communication in reference to the prize of 6,900 marks, to be offered in the year 1882, for an essay on "The Formulæ in the Perpetual Edict of Hadrian, in their Wording and Connection." The Savigny Foundation is a fund subscribed in commemoration of the great lawyer, Von Savigny, the interest of which is applied every two years in a prize for an essay on a legal subject, the adjudicators being the Imperial or Royal Academies of Sciences of Vienna, Munich and Berlin, in rotation. The competition, from which only the ordinary home members of the Royal Bavarian Academy are excluded, is confined to no nationality. The essays, which must be written in Latin, German, English, French or Italian, must be sent in by the 28th of March, 1882, addressed to the Royal Bavarian Academy of Sciences, and bearing, instead of the author's name, a motto, repeated in a closed envelope containing the author's name. Further particulars may be had on application at the office of the Social Science Association, 1 Adam street, Adelphi, W. C.

VOL. 22.-No. 3.

In connection with the recent article on Effect of Subsequent Marriage, etc., 21 Alb. L. J. 486, our attention has been called to the case of Thorp v. Thorp, decided in the General Term of the First Department, holding in harmony with Marshall v. Marshall, and reversing the judgment of the referee, ex-Recorder James M. Smith. It is said that this case will go to the Court of Appeals. The learned referee conceded that the case of Williams v. Oates, 4 N. C. 535, was against his position, and consonant with the Marshall case. He, however, adduced a dictum in his favor in Haviland v. Haviland, 34 N. Y. 646, 647, and cited Pensford v. Johnson, 2 Blatch. 51, as directly in point to the same effect. The latter, however, seems hardly authoritative, for it was conceded that one party to the marriage, at least, was innocent of any intent to evade the law, and the point received no extended consideration. It is to be hoped that the principal case will settle the interesting question, for the Marshall case seems never to have gone up.

In the English Court of Appeal judgment has been rendered, denying the application of Thomas Castro, the "Tichborne claimant" to have the two sentences passed upon him for perjury made concurrent instead of consecutive. Lord Justice James said that as a man could be tried for several misdemeanors on distinct counts, there was no reason to think he could not be sentenced for them. Lord Justice Bramwell concurred. He said he thought the American case (Tweed) cited justified the attorney-general in issuing the fiat for the writ of error in this case, but now that the matter had been discussed it was plain that there was no error in the sentence. The Tweed case is reported in 3 Hun, 760, and 60 N. Y. 559. The principal opinion below was pronounced by Westbrook, J., and contains an elaborate examination of authorities and a strong argument upon principle. But we then thought and still think the opinion of the Court of Appeals unanswerable. The present decision of the English court will greatly rejoice Mr. O'Conor's heart, and he can now sing nunc dimittis; but we receive every thing from an English court concerning the claimant with a grain of suspicion.

The arrogance with which the English press treat the Tweed decision is rather amusing. The London Telegraph speaks of it as a "curious decision" "dragged to light." And again: "But although the judgment of the court of New York naturally carries with it great weight, it seems to formulate neither good law nor good sense. No other American court has adopted it. The principle it embraces is unknown to English law and unjustified by English precedents. Indeed, it was given in reversal of the decision of other judges, who, for aught we know, were men whose opinions were as much entitled to respect as are the opinions of those who delivered it." The Times says: "It proceeds on considerations foreign to English criminal law, and it does not commend itself as intrinsically rea

sonable." Even Lord Justice James, in delivering the opinion of the court in the Claimant's case, departs from the courtesy and respect of late shown by English judges to American decisions. He says: "I have always felt unfeigned respect for the decisions of the courts in America upon matters of law common to their jurisprudence and ours; but I confess that I was startled by the mode in which the judges in the case cited dealt with the question. They seem to have thought it sufficient to say that the contrary view to theirs had never been laid down, and that theirs was in accordance with the English common law in 1775, at the era of the separation from this country, disregarding the dicta of our judges since then. And they treat the pre

cedent of the sentence in the Tichborne case as of no authority, though that was a judgment of several judges, and theirs was only the decision of three judges overruling the opinion of three others." This extract shows with how little care and how much bias his Lordship has read the opinion of our court. So far from having "thought it sufficient to say that the contrary view to theirs had never been laid down," the court exhaustively review all the authorities, and discuss the matter upon principle, in two opinions of 31 pages, on the point in question. So far from the judgment having been pronounced by three judges, it was the unanimous opinion of a court of seven, while that of the original Tichborne case was of only three, we believe, and at nisi prius. After being "shocked" and "startled" to a great degree, his Lordship discovers "that the judgment of the American court proceeded upon a view different from that of our courts, that different offenses should not be prosecuted in the same indictment." It is sufficient for the vindication of the remarks of our court on the Tichborne case, to say, that it demonstrates that there was no warrant for the Tichborne sentence in the English common la prior to April 19, 1775, which is the foundation of our law, and that, as our court observe, "the practice of uniting several counts in an indictment" for felony, "is a departure from the ancient practice." We are aware that the prevalent English doctrine has been sanctioned in remarks on the Tweed case by Mr. Bishop, with his customary violence, and by Dr. Wharton, with his customary calmness. It must be remembered that our court do not deny the right to try several misdemeanors under one indictment, but only the right to impose a greater aggregate punishment than is permitted for one.

A good many have asked us whether something cannot be done to put a stop to the disgusting exhibition making by Dr. Tanner, in the city of New York, in trying to go without food for forty days, and whether, if he breaks down in the attempt, those who are watching him cannot be punished as accessory to his death. We really do not now think of any way to stop him nor to punish his abettors. There seems to be no law against a man's making an ass of himself. Some voluntary risks, dangerous

to life, are forbidden, as duelling and prize-fighting. Others are not, as pedestrian matches and rowing contests. Tanner is professedly not trying to kill himself; he proposes to live. So if he should die his watchers could not be condemned as abettors of suicide. He does not come within Mr. Bergh's jurisdiction, for his act is entirely voluntary, and he is an adult, presumably capable of eating if he wants to eat. The best way to put a stop to such idiocy is to let other idiots stop running after him.

In our note on Nash v. Fugate, 21 Alb. L. J. 464, we spoke of the decision as opposed to Guild v. Thomas and People v. Bostwick. We did not intend to be understood that either of those cases involved the exact circumstances of the principal case, namely, a scroll at the bottom of a bond with no name appended, and the bond delivered to the obligee by the principal obligor, in violation of a condition imposed by one of the signers, that others should sign. We meant to say that the principal case is opposed to those, in that it holds that the bond being complete on its face, no such secret condition can be shown. The point about the scrolls is subsidiary, and is adjudged merely to show that this bond was complete on its face.

The Supreme Court of Pennsylvania seem to be "experiencing religion." We called attention, 21 Alb. L. J. 462, to the remarkable way in which they had eaten their own words in case of Bishop O'Hara v. Stack; and now we have to chronicle another case of the same sort. In Burd Orphan Asylum v. School District of Upper Darby, 20 Alb. L. J. 383, they held that an institution for the support and education of the orphan children of a distinct denomination of Christians was not such a "purely public charity" as to be exempt from taxation, within the spirit of the Constitution. Trunkey, J., delivered the opinion. We did not notice any dissent. But a reargument was granted, and now the court decide substantially the converse. 8 W. N. C. 446. The exact decision is as follows: "A 'purely public charity' within the meaning of the Constitution of Pennsylvania may be one in which the designated beneficiaries are to be all of one particular religious faith, provided that the persons to The fact that the beneficiaries were to be of a parbe benefited are indefinite within the specified class. ticular religious faith did not make the institution any less a 'purely public charity.' At any rate the persons of the third class were in legal contemplation beneficiaries upon the same title and with the same abstract rights as those of the first and second classes; and therefore the institution must be held to be open to the general public." No reference is made to the former decision. Gordon, Trunkey, and Sterrett, JJ., dissented. We shall allude to the opinion elsewhere. It is our purpose here only to note the extreme uncertainty of the law in Pennsylvania where religious institutions are concerned.

IN

NOTES OF CASES.

[N State v. Smith, Iowa Supreme Court, June 17, 1880, 6 Northw. Rep. 153, it was held, in a prosecution for bastardy, not error to allow the alleged bastard child, two years old or more, to be exhibited to the jury, and permit them to determine as to the family resemblance between such child and the alleged putative father. Statements of counsel calling attention to certain alleged points of resemblance, held, if erroneous, to be without prejudice. The statement of counsel was as follows: "I only wish to call the attention of the jury to what any one can see plainly, with half an eye, that the eyes of this exhibit (the child) are hooked, and that also the eyes of the defendant are hooked, and that the eyes of Reka Helm are not." The court said: "The defendant claims that any resemblance, if it should be thought to exist between such a child and a man alleged to be its father, is too unreliable to constitute legal evidence of the alleged paternity. It is a well-known fact that resemblances often exist between persons who are not related, and are wanting between persons who are. Still, what is called family resemblance is sometimes so marked as scarcely to admit of a mistake. We are of the opinion, therefore, that a child of the proper age may be exhibited to a jury as evidence of alleged paternity. Precisely what should be deemed the proper age we need not determine. It was held in State v. Danforth, 48 Iowa, 43; S. C., 30 Am. Rep. 387, that it was error to allow a child three months old to be exhibited. That case is relied upon by the defendant in this. But a child which is only three months old has that peculiar immaturity of features which characterizes an infant during the time it is called a babe. A child two years old or more has to a large extent put off that peculiar immaturity. In allowing a child of that age to be exhibited we think the court did not err, especially under the instruction given, to which we shall hereafter refer." This decision seems to us about as bad as can be, and not much helped by the instruction that if the jury "did not clearly see such resemblance they should disregard all claims of resemblance on the part of

the State."

In Marquette, etc., Railroad Co. v. Spear, Michigan Supreme Court, June 23, 1880, 6 Northw. Rep. 202, the owner of a warehouse owned a railroad track, running on his own premises near it, and employed a railroad company to send an engine to draw cars over it for his accommodation. The engine threw off sparks badly, and this he observed and complained of, but nevertheless continued to make use of it for a long time. At last the warehouse was set on fire and burned from the sparks emitted by it. Held, that the owner had no redress against the railroad company for the burning. It is immaterial that the railroad company, on repeated application made that it should repair the engine, had promised to do so "sometime," the use continuing thereafter, with the knowledge of the plaintiff, and on his own application. The court said: "This was not the

case of a defective locomotive moving through the country and scattering desolation among those to whom its proprietors owed the duty of a care corresponding to its dangerous nature; but it was a case of private employment, whereby the proprietors of the engine were solicited to send it upon the private business of the employers into a place where the latter well knew, and had for a long time known and understood, it was likely to do mischief. If there was negligence on the part of the railroad company, it was to be found in consenting to be thus employed. There is just the same and no more reason for plaintiffs to complain of it, that there would have been had they hired the owner of a vicious animal, known by them to be such, to bring him for their purposes upon their premises, and then been injured by him, as they should have anticipated they might be. That which one consents to, and invites, he cannot complain of in the law as an injury. Motz v. Detroit, 19 Mich. 495; Maxwell v. Bridge Company, 41 id. 453,” On the other point, the court said: "When there is a promise to repair immediately, or within a fixed time, and a party relies upon its having been done, and is injured because of such reliance, he has a right to complain; but this is no such case. promise was wholly indefinite, and plaintiffs never relied upon it except as a probable future event. They knew the repairs had not been made when they employed the engine on the day of the fire, and they deliberately and most carelessly took the risks of what actually happened."

The

In Dells v. Kennedy, Wisconsin Supreme Court, June, 1880, 6 Northw. Rep. 246, it was held that a registration law, in so far as it prohibits a duly qual ified elector from voting at an election, unless he has been registered before the election, or becomes qualified after the last day for completing the registry, and before the election, is unconstitutional and void, the electoral qualifications being laid down in the Constitution, and the Constitution conferring no authority upon the legislature, directly or indirectly, to change, impair, add to or abridge them. The same had been substantially decided in State ex rel. v. Baker, 38 Wis. 71, and in Page v. Allen, 58 Penn. St. 346, In the latter case it was said: "These are the constitutional qualifications necessary to be an elector. They are defined, fixed and enumerated in that instrument. In those who possess them is vested a high, and to a freeman, sacred right, of which they cannot be divested by any but the power which establishes them, viz., the people, in their direct legislative capacity. This will not be disputed. For the orderly exercise of the right resulting from these qualifications it is admitted that the Legislature must prescribe necessary regulations as to the places, mode and manner, and whatever else may be required to insure its full and free exercise. But this duty and right inherently imply that such regulations are to be subordinate to the enjoyment of the right, the exercise of which is regulated. The right must not be impaired by the