paved way for teams and sidewalks for footmen, guttered and curbed between the two, has shade trees of twenty years' growth, or more or less, standing in the sidewalk near the gutter. Have the adjoining proprietors any right to the shade trees standing on the sidewalks, which the village authorities are bound to respect? Can the village directors, under the power given them by statute, cut the shade trees down, for the sake of widening the wagon track, and contracting the sidewalk, or to straighten a bend in the gutter? Will you, or some of your keen thinkers, who are more familiar with village rights, answer?

EGBERT WHITAKER.

SAUGERTIES, N. Y., Dec. 1, 1880.

JUSTICES' COSTS.

Editor of the Albany Law Journal:

The specific fees of justices of the peace for issuing summonses, granting adjournments, entering judg- | ments, etc., are reasonable and should not be changed; but the law of costs, as applicable to these officers, need amendment in two respects:

First. The limitation of costs should be removed.

The following order was made in the Court of Appeals December 8, 1880:

It is Ordered, That this court adjourn on Thursday, Dec. 23, instant, at 1:30 P. M; that it convene on Monday, the 17th day of January, 1881, at 10 o'clock, A. M., at the court room in the oid Capitol, at Albany; that a new calendar be made for that term, upon which the clerk will place only causes in which notices of argument, with proof of service for that term, are filed with him on or before the 3d day of January, 1881; that on and after Monday, the 20th day of December, instant, for the rest of the term now running, no day calendar will be made up, but causes will be called, beginning on that day with the first one in order of general calendar number, not before that disposed of, and the last paragraph of Rule XXI will be applied and enforced.

The paragraph referred to reads as follows: "When any cause shall be regularly called for argument, and no other disposition shall be made thereof, the appeal shall be dismissed without costs, and an order shall be entered accordingly," etc.

NOTES.

HE current number of the Law Magazine and Re

96): "The justice of the limitations of the amount of the costs is questionable. As costs in a justice's court consists of actual and necessary expenses only, there seems to be no sound reason why the successful party should not always recover the full amount thereof."

Second. A reasonable per diem trial compensation should be established. The fee of 75 cents for the trial of an issue of fact is grossly inadequate; nor does the fee for swearing witnesses compensate for this inadequacy. The latter fee in one day may amount to but 20 cents; it often does not exceed 50. For trying an issue of fact where the defendant appears, the justice should receive $2 a day-the same compensation as that which town clerks, assessors, commissioners of highways, and overseers of the poor receive for their services. In the trial of a case, justices work as hard as these officers, and frequently more hours in a day; and there is no good reason why they should not be as well paid. The specific fees are generally for services rendered on days other than that on which the trial takes place and therefore do not pay for the trial services. Nor would this proposed change greatly increase the cost of litigation in justices' courts. Most contested cases are finished in one day. To the cost of these it would add but $1.25; and in those cases that should continue more than one day litigants would not object to allowing the justice $2 for each day's extra service. When sitting as a court of special sessions the justice receives $1 for each day necessarily spent in the performance of his duty, and in civil cases, when trying an issue of fact where the defendant appears, he should likewise be allowed a reasonable per diem compensation.

I hope that our lawyers who are honored with seats in the Legislature will bring about the needed changes herein indicated. JUSTICE.

SHERBURNE, N. Y., Nov. 26, 1880.

NEW YORK COURT OF APPEALS DECISIONS.

THE following decisions were handed down Tuesday,

Dec. 7, 1880:

Judgment affirmed with costs- Woodruffs v. Imperial Fire Insurance Company of London; Lockwood v. Quackenbush; Long v. Bussell; Hand v. Kennedy Burt v. Smith. -Judgment reversed and new trial granted, costs to abide event - Palmer v. Brady. Order affirmed with costs - Bedford v. Fields. Orders of General Term and Special Term reversed and motion granted with costs of appeal to General Term and this court Veeder v. Baker.-Motion to set aside judgment denied with $10 costs - Veeder v Baker.

articles on Jurisprudence and the Amendment of the Law, by Lord Advocate McLaren; Private Bill Legislation; Professor Holland's "Jurisprudence" and Codification a very acute review by Arthur Tilley; Foreign judgments- assumed jurisdiction over nonresident aliens, by F. T. Piggott. Our countrymen fare very well in this number; there is a very complimentary review of Mr. Thompson's Liability of Stockholders in Corporations, and the editor, in speaking of the prima facie right of a fugitive to undisturbed and protected asylum, says, "the true doctrine, we hold, is that laid down by Dr. Spear in his able and lucid work on Extradition." The Criminal Law Magazine and the Southern Law Journal and Reporter are commended, and the editor also has a good word for ourselves.

The New York Tribune's London correspondent, speaking of the late Chief Justice Cockburn, says: Nobody disputes the brilliancy and variety of Cockburn's talents, but the bar never recognized him as a great lawyer, and a powerful sect of society always denied him admission. Right Hon. Sir George Jessel, Master of the Rolls, perhaps the ablest lawyer of this generation, in pronouncing the formal panegyric in court, conspicuously omitted to praise his judicial qualifications. Several judges during the week complained severely of the indiscriminate laudation of the press, criticising Cockburn's absence of sound learning, his excessive love of display and eagerness to preside at sensational cases. Society remembers against Cockburn some early scandals and the life-long irregularity of his domestic relations; nevertheless, it is true that he was exceedingly welcome in many influential circles, and will be long remembered for his shining conversational gifts."- -The English trial calendars must be in a bad way. The Daily Telegraph says they are abnormally conjested." The Telegraph must have a medical student reporting for it.

Supreme Court rules will be held in this city on the A convention of the judges for the revision of the 15th inst. It is important to have a thorough revision of the rules, and the judges would be glad to receive suggestions for amendments, which may be sent to Hon. Wm. L. Learned, of this city, any time before the 15th inst. In this way defects in the present rules might be pointed out which otherwise might escape attention, and thus the judges may be materially aided in their labor.

The Albany Law Journal.

ALBANY, DECEMBER 18, 1880.

CURRENT TOPICS.

O za biphorter, and cost change in the jury sys

tem, which has at least the merit of originality. It says: "We would suggest that twelve jurors be appointed by the governor for each Circuit, and paid a reasonable salary for a fixed and definite term. This jury would travel about the Circuit in the same manner as the Circuit judge; they would generally be totally disinterested, and holding office by appointment would never decide for political purposes. By experience such a jury could learn to sift the true from the false testimony in almost every instance; by practice they would become expert in weighing testimony and judging of the credibility of witnesses. Their verdicts would be sooner ren

accept Truth's estimate that in him "the bench has lost its brightest ornament," and it is evident that the bar and the bench do not think so.

The late lord chief justice was unquestionably a man of great versatility of talents, acuteness, eloquence, and social charms. But these very accomplishments unfitted him for his high office, and he had not the profound knowledge of law which his post demanded. We need seek no further than our last English legal exchanges for proof that he was that very dangerous character, an advocate on the bench. The Law Journal says: "His charges to

ments would be the result of the deliberations of twelve men, whose every day business and study

was such as to make their judgment peculiarly quick and accurate in such matters." This seems to us the most impolitic change ever suggested. It seems to demand unanimity, and yet relies upon expertness. This being so, one man would do just as well as twelve, and better, because he would never disagree; therefore, the judge would be the better arbiter of fact than the standing jury. Deliver us

there was little chance for the most skillful counsel if the lord chief justice became convinced of the duty to sum up against him," And the Law Times says: "It is equally certain that, whilst he carried on to the bench this high code of honor, the very loftiest sentiments which could animate a judge, the deepest regard for his office, and the keenest sense of its responsibilities, he never thoroughly shook off the passion of the advocate. If there is one fault which can be laid to his charge as a judge, it is that with too rapid a judgment he formed his

arbiters of fact! Give us the system of verdicts in civil cases pronounced by nine of twelve jurors, and a selection of jurors like that obtained by a struck jury, and we will ask nothing better. We simply need greater intelligence in jurors, and a less arbitrary demand for unanimity.

It is to be hoped that the mental likeness of the late Lord Chief Justice Cockburn drawn by the London Truth is not a faithful portraiture. According to this representation he had not a profound knowledge of the law; but "he possessed a universality of genius;" "he never hesitated to bring home to a jury his opinion;" "he let no one forget he was chief justice of England;" "he talked often of the cases he was trying or likely to try;" he defended duelling. In short, he was a man of the world, "equally at home on the deck of a yacht, at the dinner table of artists, in the drawing-room of fashionable beauties." An opinionated, garrulous, fighting, sailing, flirting, dilettanti chief justice is hardly to our taste. A "universal genius" on the bench is generally extremely objectionable. His physical portraiture by the same journal is more engaging: "At about half-past four or five o'clock on most afternoons when the courts were sitting in Westminster, a little old man, shabbily dressed, and except for the bright piercing glance with Vor. 22.- No. 25.

bearing of particular witnesses. The opinion formed, it was put forward in the summing up with the art of the advocate, repressed more or less, but still perceptible, and occasioning sometimes the impression that the scales of justice had not been held with that absolute impartiality which is essential to the strict administration of the law. No one who has attempted the perusal of the summing up in the Tichborne case - an effort which the lord chief justice subsequently published separately, and which in itself forms a volume- can fail to perceive with what dexterous skill the case for the defense was broken down. And again, no one who followed the course of that trial, with its frequent conflicts between the bench and the bar, could honestly say that the outrageous conduct of the prisoner's counsel was altogether unprovoked. If any doubt had ever existed in the minds of the jury, the demeanor and the summing up of the chief justice told them very plainly that they must convict." This same passion for advocacy led him into unseemly pamphlet or newspaper controversies with Mr. Taylor on the law of the res gestæ, arising upon his lordship's ruling in the Bedingfield case, and with Lord Penzance, on the law of the jurisdiction of the courts in respect to ecclesiastical questions, in which the ultimate court overthrew the judgment which his lordship had delivered and defended.

It is apparent that this extraordinary man must be ranked with Erskine and Brougham rather than with Holt and Mansfield. And yet he sinks below the level of the first-named great men, because his life was never perfumed and dignified by devotion to reform in his chosen profession. His name is not imperishably connected with the championship of a broader liberty and the advocacy of a humaner justice. He even was strenuously opposed to the reforms in procedure which have recently taken place in England. The Solicitors' Journal remarks: "We may be permitted to regret that the failings incident to such a temperament and genius as his, to the long possession of a great and dignified office, and to advancing age, did not suffer him to unite his name with the promotion of a reform the principles of which he had long advocated."

In short, while we recognize in this brilliant man many of the attributes of genius, and do not regard him as altogether out of place on the bench, yet it must be confessed that he was not of the material out of which chief justices ought to be made. The Law Times justly observes: "A vast deal of firstrate work is done in our courts of first instance without much recourse to profound legal knowledge. The complicated interests of modern society constantly call for the exercise of such talents as those of the late lord chief justice, and a judge who possesses such talents, whilst he cannot justly be called great in the recognized acceptation of that term, attains to a position upon the bench unique and brilliant." And we unhesitatingly subscribe to the same journal's opinion that although the late lord chief justice emulated the great men who had occupied his seat, he never attained to the standard of Holt and Mansfield.

were only 418 during the four years above referred to above £500; whilst the number involving £500 and under was 4,366; and, of this last number, 3,764 were cases in which no more than £200 was recovered. These statistics will assist in forming a conclusion as to the comparative amount of law business in England and New York.

Mr. Banks, the late publisher of our Court of Appeals Reports, has been executing a swan song upon the expiration of his contract. His contract expired at noon of the 14th inst., and anticipating a loud call for volumes at the contract price of 48 cents, he cleverly shut up his store for a day and a half beforehand, and thus laughed at the crowds of | applicants. But as his contract obliged him to keep the reports always on sale at a book-store in this city, under a penalty of $100 for every failure, recoverable by the persons aggrieved, and as about fifty persons vainly called for the books, it is apparent that the laugh will soon be on the other side of his mouth. This conduct is of a piece with the defiant, disobliging, and lawless manner in which Mr. Banks has always carried himself in respect to this contract, and shows the wisdom of the State officers in awarding the new contract to other persons. It would hardly seem that Mr. Banks can have his general business interests much at heart, or can have any desire to retain the respect of his legal customers and the public.

IN

NOTES OF CASES.

N Foose v. Whitmore, ante, 475, our Court of Appeals construed the following provision in a will: "I do give and bequeath all my property, both real and personal, to my beloved wife, Mary, only requesting her at the close of her life to make such disposition of the same among my children and grandchildren as shall seem to her good." They held that the wife took the testator's estate in fee and that the qualifying sentence would not be construed to create a trust. A similar question was passed upon in Williams v. Worthington, 49 Md. 572. The testator provided as follows: "It is my will and desire, and I hereby devise and bequeath all my property, real, personal, and mixed, to my dear wife, E. A., and her heirs and assigns forever, and it is my request and desire that my said wife, E. A., should by last will and testament devise and bequeath all of said property at her death, remaining in her possession, to my friend, B. W., and to E. W., their heirs and assigns forever, share and share alike." Held, that this did not create any trust, but that E. A.'s estate was absolute. This was put on the ground that the subject of the supposed trust was uncertain, as it was only of property "remaining" at the wife's death. The court said: "If the precatory words had related to the whole of the property devised to her, there are many decided cases which hold that the words indicating the ultimate disposition which the testator desired her to make would charge the property with a trust in

favor of the persons named, notwithstanding the gift to her was in fee. Such are the cases of Wace v. Mallard, 21 L. J. Ch. 355; Gully v. Cregoe, 24 Beav. 185, and Shovelton v. Shovelton, 32 id. 143." In Bland v. Bland, 2 Cox's Ch. Cas. 349, the devise was in fee, with the request "as to the said premises, or so much thereof as he (the devisee) shall stand seized of at the time of his death." Lord Hardwicke decided that the previous devise in fee imported a power in the devisee to diminish the property. He said: "It was the same as if the testator had said: I leave it to you to dispose of it as you think fit, but I will be glad if you will give so much as you can spare, so and so." In Wynne v. Hawkins, 1 Bro. Ch. 179m, the will provided: "And as I shall leave behind me, over and above the said legacies, only sufficient for a decent maintenance for my loving wife, Mary Wynne, by whose prudence and economy I have saved the greatest part of the fortune I shall die possessed of, not doubting but that she will dispose of what shall be left at her death to our two grandchildren; all the rest and residue," etc., "I give and bequeath to my loving wife, Mary, hereby constituting and appointing her sole executrix." The lord chancellor said: "If the intention is clear what was to be given, and to whom, I should think the words 'not doubting' would be strong enough. But where in point of context it is uncertain what property was to be given, and to whom, the words are not sufficient, because it is doubtful what is the confidence which the testator has reposed, and where that does not appear the scale leans to the presumption that he meant to give the whole to the first taker." In Pushman v. Filliter, 3 Ves. 7, the testator gave the residue, etc., of personal estate to his wife, “desiring her to provide for my daughter, Anne, out of the same, as long as she, my said wife, shall live, and at her decease, to dispose of what shall be left among my children, in such manner as she shall judge most proper." It was decided that no trust was created by the will in favor of the children; that it was an absolute gift of the property to the wife, to be disposed of to any use she might think fit, subject only to a trust in favor of the testator's . daughter Anne. In Wilson v. Major, 11 Ves. 204, there was an absolute gift to the wife, "upon full trust and confidence that she would make proper distribution of what effects may be left in money, goods, or otherwise, to his (testator's) children." It was held that the wife took the absolute estate, unfettered by a trust. See, also, Cowman v. Harrison, 17 L. & Eq. 290, the language of Lord Eldon in Tibbits v. Tibbits, 19 Ves. 656; and Anderson v. Hammond, 2 Lea, 281; S. C., 31 Am. Rep. 612.

An interesting discussion of the question of privileged communication arose in the Maryland Court of Appeals, at April term, 1880, in Maurice v. Worden. The action was for a libel alleged to have been contained in an indorsement written by the defendant upon a letter of the plaintiff tendering his resignation of the position of teacher of French in the

66

United States Naval Academy of Annapolis. The letter was addressed to the defendant as an officer in the United States Navy, and then in command and authority over the Naval Academy, to be by him transmitted to the secretary of the navy. The official regulations of the navy required the defendant to "state his opinion in writing, by indorsement or otherwise in relation to" the resignation. The plaintiff argued that the indorsement was consequently absolutely privileged, and the court below so held, but this was reversed on appeal. The court adopted Starkie's enumeration of communications absolutely privileged, although false, malicious, and without reasonable or proper cause, as follows: Communications made in the course of judicial proceedings, whether civil or criminal, and whether by a suitor, prosecutor, witness, counsel, or juror; or by judge, magistrate or person presiding in a judicial capacity of any court or other tribunal, judicial or military, recognized by and constituted according to law; and so also communications made in the course of parliamentary proceedings, whether by a member of either House of Parliament, or by petition of individuals who are not members, presented to either House or to a committee thereof." Folkhard's Starkie, § 688, and authorities there cited. The court said: "Beyond this enumeration we are not prepared to go. The doctrine of absolute privilege is so inconsistent with the rule that a remedy should exist for every wrong, that we are not disposed to extend it beyond the strict line established by a concurrence of decisions." Citing Cook v. Hill, 3 Sandf. 349, and disapproving the decision in Dawkins v. Lord Paulett, L. R., 5 Q. B. 94, but approving the dissenting opinion of Cockburn, C. J. The court declined to consider the question whether the government could have been compelled to produce the paper in question, because it was voluntarily produced. They held, however, that the indorsement had a qualified privilege, because made in the line of duty, and that there could be no recovery without proof of malice or want of probable cause. Citing Garrett v. Dickerson, 19 Md. 450; White v. Nicholls, 3 How. 267; and Dickson v. Earl of Wilton, 1 F. & F. 419, which is quite in point. See leading article, 21 Alb. L. J. 325; and id. 103. On a new trial a few days ago a verdict was directed for defendant.

In State ex rel. Soares v. Hebrew Congregation, " Dis

persed of Judah," 30 La. Ann. 205, it was held that

a mandamus will not lie to compel a religious society to restore to membership one who had been expelled by a decree of the legally constituted church judicatory, on account of an alleged violation of some law of the society; and the ground that such restoration is necessary to enable him to enjoy the right of sepulture acquired by him as a member is premature. The court remarked: "The entire separation of Church and State is not the least of the evidences of the wisdom and forethought of those who made our National Constitution. It was more than a happy thought it was an inspiration. But although the State has renounced all authority to con