or subjection to the payment of debts. The preservation of such part of the homestead, so created and constituted, is within the purview of the Constitution and statutes, and in furtherance of their purposes and policy. On the facts shown by the record, the lot in controversy was a part of the homestead of complainant when the mortgage was executed, which the Constitution and the statutes protect. Ala. Sup. Ct., July 27, 1887. Tyler v. Jewett. Opinion by Clopton, J. NEW BOOKS AND NEW EDITIONS. HOCHHEIMER ON CUSTODY OF INFANTS. Mr. Lewis Hochheimer, of Baltimore, has written a monograph on this subject, covering about two hundred and fifty comely and spacious pages. The work apparently exhausts the law-citing the astonishing number of about five hundred and fifty cases-and states it clearly and intelligently. It discusses the rights of courts, parents, guardians, masters and institutions, and of persons to whom the custody has been committed by parents, and explains the remedies and procedure. No doubt it will be useful in this branch of the law as a convenient and comprehensive summary. Published by John Murphy & Co., Baltimore. is capable of alienation, falls within their operation, and the homestead exemption may be successfully claimed except as against the true owner or a superior title. The uses to which the laud is devoted, and not the quality and quantity of the estate, impress the characteristics of a homestead. The lot leased by the complainant was his homestead at the time he contracted to purchase the lot in controversy, and continued such so long as he continued to lease, use and occupy it as the dwelling-house of himself and family. Watts v. Gordon, 65 Ala. 546; Thomp. Homest. & Ex., $176. It is insisted however that complainant could not impress the character of a homestead upon the lot in question until he abandoned the leased house and lot. It does not necessarily follow that complainant should actually have a dwelling on the lot purchased, in which his family resided, in order to include it in his homestead, and as part thereof. The language of the Constitution and statutes, "any lot in a city, town or village," does not restrict the homestead to one lot or piece of land. Such would be a narrow and strict interpretation, not in harmony with the spirit or policy of the exemption laws, not with the settled rule that they shall be liberally construed to accomplish their benevolent objects. A lot, as lots may be surveyed and numbered, or otherwise designated, in the plan or map of the city, town or village, was not contemplated. When the homestead is urban, the limitation relates to the value, and not to the numder or extent of the lots. Two or more adjoining lots may be occupied and used as a homestead, and for this purpose constitute one lot or tract. Where a person owns a lot, on which is the dwelling-house of himself and family, he may acquire an abutting lot, and impress the character of the homestead by devoting it, in connection with the dwelling, and as appurtenant thereto, to the appropriate and requisite occupancy and uses, if the limitation as to value is not exceeded. Englebrecht v. Shade, 47 Cal. 627; Walters v. People, 65 Am. Dec. 730; Wassell v. Tunnah, 25 Ark. 101. We have therefore, as postulates, that the right to home-practice, and as one without which it would be hardly stead exemption does not depend on the nature of the title, or the degree or character of the estate, but will be determined by the occupancy and the uses; and that a homestead may consist of two or more adjoining pieces of land, so connected, occupied and used as to constitute, in contemplation of law, one tract. The logical and obvious consequence is that it is essential that the several lots or pieces shall be held by the same title, or the same kind of title. The policy of the Constitution and statutes is not restricted to the mere preservation of homesteads already acquired, but extends to encouraging their acquisition, in order to prevent and avoid the unmixed evil and misfortune of a homeless population; "and if we look beyond the essential characteristics of a homestead-actual Occupancy as a home, a dwelling-place-and enter upon an inquiry as to the tenure upon which the right of occupancy depends, we are sure to contravene this policy." Watts v. Gordon, supra. There are cases, and the present case seems to be one, where the head of a family, for want of means, is unable to purchase a lot, and at the same time construct thereon necessary buildings, but who has means sufficient to procure the ground, and wait further preparation, until by energy, industry and economy he is capable to erect a dwelling and other houses. In such case we see no sufficient reason why, in the meantime, he may not lease adjoining premises having a dwelling-place, where he may reside, and by appropriate and requisite occupation and uses of the land purchased as appurtenant thereto, impress the essential characteristics, and constitute it a part of his homestead, in the same manner and to the same extent as if he had acquired both lots by purchase, so far as respects its alienation FIERO ON SPECIAL PROCEEDINGS. The practice in Special Proceedings in the Courts of Record of the State of New York, under the Code of Civil Procedure and Statutes, with Forms. By J. Newton Fiero. Albany, Matthew Bender, 1887, pp. x, 745. The lapse of twenty years, the enactment of the new portion of the code in 1880, and general and radical changes in the law, amply justify a new work on this practical subject. Mr. Fiero has done his task well, it seems to us. These pages give evidence of great research and consideration. We regard this as one of the most important and useful of modern books of safe to practice on the subject treated. COURT OF APPEALS DECISIONS. THE following decisions were handed down Friday, Oct. 28, 1887: Judgment reversed, new trial granted, costs to abide event-Richard M. Hodge and another, appellant, v. Richard Sloan, respondent. -Judgment affirmed with costs-Robert J. Gray, respondent, v. Francis T. Walton, appellant. Judgment of General Term affirmed with costs-Moses P. Hall and another, appellants, v. Abram Miller, respondent.—Judgment affirmed with costs Samuel B. Coykendall and another, respondents, v. William Voorhis and another, impleaded, etc., appellants. - Judgment affirmed with costs-Alphonso J. Aldrich, respondent, v. Home Insurance Company, appellant.-Judgment affirmed with costs-Horace B. Claflin and others, respondents, v. Wesley Millspaugh and others, appellants.-Motion for reargument denied without costs-J. Marcus Boorman v. Simon Baldwin and others.-Motion to amend granted as specified in the memorandumCharles Ruht, executor, etc., v. Henry Y. Attrill and others.- -Motion to amend granted as specified in the memorandum-Samuel Weeks and another v. Jacob Weeks Cornwell. Ordered: That this court take a recess from this to Monday, the 28th day of November, 1887, at ten o'clock A. M., at the capitol, in the city of Albany, then to proceed with the call of the present calendar. Tuesday, November 29, and December 13 will be motion days. Evening Journal on the occasion of the remounting The Albany Law Journal. THE ALBANY, NOVEMBER 12, 1887. CURRENT TOPICS. HE last legal hope of the anarchists has been dispelled. The Supreme Court of the United States have denied their writ of error, just as every lawyer in the country, probably even their own, supposed they would and must. It is a satisfaction to know that if such miscreants are to be tried they cannot demand a jury of ignoramuses. There was not a decent pretense of a Federal question in the case, or of any constitutional question that may not be raised by adroit counsel in any case. All that is left to these murderers is an appeal to the favor and leniency of that society which they have outraged, defied and sought to destroy. To use their own words, "the law will throttle them" because they did not succeed in "throttling the law." We advise them to make their peace with that God whom they do not believe in. Dire threats are made by their associates outside the prison. It is a good time to test, once for all, whether society or anarchy is the stronger in this country; whether the party of law and order, east and west, or the bomb party in the west and the bummer party in the east are the sovereign. We are indebted to Mr. George W. Van Siclen, secretary of the Holland Society of New York, for a copy of the sumptuous and interesting "Year Book" of the society. This is probably designed as the amende honorable for sending us that bill of fare after the dinner was over. Really, we would rather have the book than the dinner. A beautiful volume, with its orange covers, superb typography and ample margins, and many portraits and illustrations of articles of "bigotry and virtue." Every thing Dutch however is all virtue and no bigotry. Here we find speeches, and letters, and historical discourses, the music of two festive Dutch songs on orange paper, and several appetizing bills of fare original copies, we infer. Among the portraits, which are all excellent, are those of General Sharpe, Mr. A. T. Clearwater, Judge Augustus Van Wyck, Judge Van Vorst, the lamented Aaron J. Vanderpoel, Mr. William Waldorf Astor, Doctor Vander Veer of Albany, Mr. Tunis G. Bergen, and the genial secretary himself. There are also copies of some convulsing antique Dutch portraits, and charming views of the old Senate House and other old Kingston buildings. Also a copy of a painting by a member of the society, called "Near The Hague," with a fine wind-mill in it. So far as we can discover the book lacks but one Dutch characteristic - a weathercock. To supply this want we beg the owners of the book to cut out and paste in the following verses which we wrote for the Albany VOL. 36-No. 20. Dutch church in this city: Three hundred years of foul and fair, Of clear and cloudy sky, I've veered and rattled in the air And kept high company. My nearest neighbor is a fish; I dare say, much against his wish- Whose trumpet sounds no praise. I hear the Psalmist sing - On me the pigeon and the stork And artists come from far and near And many younger vanes appear To me the world looks small and dim, I wonder how it seems to Him It seems that even barbers have some "rights that white men are bound to respect." It has been judicially decided that they are not bound to be polite to their customers. In State v. Hall, Iowa Supreme Court, Oct. 11, 1887, the defendant was indicted under a statute providing for the full and equal enjoyment by all persons of the accommodations and privileges of inns, conveyances, barbershops, etc. The indictment alleged that Hall refused to shave Bennett, "and would give no reason therefor." The court held the indictment bad, observing: "There should have been an averment that there was no good reason, and it should have been averred that at the time and immediately after the alleged refusal he proceeded to shave others. For aught that appears in the indictment there may have been good reasons for the refusal. The law cannot be construed so as to compel a barber to shave every one who presents himself for that purpose. The proposed customer may be drunk, dis tan plank steps, so that the exposition is quite unsightly. Would not the appropriation of five thousand dollars go around the fence, or what is the trouble? Give us our money's worth of paint. The schoolmaster appears also to be abroad from Tennessee. It has just been held there that an indictment for larceny of a "mair" is good. But how if it had been spelled "mayor?" A mousecolored mule is not a gray horse. Wilkinson v. King, 81 Ala. 156. N State v. this would be no crime." Has it come to this? IN that "Beards must grow while barbers go to dine." As an especial favor to Ulysses, the Cyclops Polyphemus reserved him to be the last devoured. When a law-editor puts forth a law-book we reverse the process and offer him up first. This favor is due to Mr. Charles Fisk Beach, Jr., editor of the Railway and Corporation Law Journal, and author of an excellent work on "Contributory Negligence," and who has now published another book on the "Law of Receivers, with particular reference to the application of that law to railway corporations, but including in detail a complete consideration of the whole subject." Mr. Beach justifies the utterance of this work by the assertion in his preface that "within the past twelve years no less than three hundred and ninety-two railways, representing nearly forty thousand miles of road, and having a capital stock and bonded indebtedness of more than twenty-three hundred and ten million dollars, have been sold in the United States in foreclosure proceedings," involving "in each case from one to a half score of receiverships." He cites three thousand cases. This branch of law is peculiarly American, and of vast importance. Probably no person is more competent to treat it than Mr. Beach, and from a cursory examination of his division of the topic, and his general consideration of it, and a more particular examination of a few branches of which we have some knowledge, we are led to believe that this is a work of noticeable excellence and of practical value, such as his book on "Contributory Negligence" has proved. L. K. Strouse & Company of New York have published the volume in attractive form. The State has erected a wooden fence along the south side of the Capitol, with a wooden tomb as an entrance to the governor's private staircase, to prevent strolling cows from injuring the foundations of the building with their horns, and has painted it, but has neglected to paint the inside of it where it curves to ascend the grand Persepoli NOTES OF CASES. It Kempf, Winconsin Supreme Court, Oct. 11, 1887, it was held that a statute amendatory of the charter of the city of Milwaukee, and providing that "the common council shall be the judge of the election and qualifications of its own members," does not exclude the common-law jurisdiction of the proper courts to determine the right to the office of alderman of that city. The court said: "The argument is that this provision excludes the jurisdiction of the courts to adjudicate between contesting claimants for the office of alderman, and vests that power solely in the common council. must be conceded that there are some decisions of courts of high authority which seem to approve this doctrine. Among these are the cases of Commonwealth v. Leech, 44 Penn. St. 332; Lamb v. Lynd, id. 336; Commonwealth v. Meeser, id. 341; Peabody v. School Committee, 115 Mass. 383; People v. Metzker, 47 Cal. 524. But the great weight of authority, and we think the better reason, is opposed to such doctrine. We think the rule is satisfactorily established that unless the statute conferring the jurisdiction upon the common council to judge of the election and qualification of its own members unequivocally excludes, by express provision or necessary implication, the jurisdiction of the courts in that behalf, such jurisdiction remains in the courts, and that conferred upon the council is only concurrent or temporary. This is the doctrine laid down by Judge Dillon in his treatise on Municipal Corporations, vol. 1 (3d ed.), §§ 202, 203, and notes; also in McCrary's American Law of Elections, § 295, and cases cited. A few of those cases are the following: Ex parte Heath, 3 Hill, 42; People v. Hall, 80 N. Y. 117; McVeany v. Mayor of New York, id. 185; Commonwealth v. Allen, 70 Penn. St. 465; Commonwealth v. McCloskey, 2 Rawle, 369; State v. McKinnon, 8 Oreg. 493; Kendell v. Camden, 47 N. J. Law, 64; Kane v. People, 4 Neb. 509; State v. Fitzgerald, 44 Mo. 425; State v. Wilmington, 3 Har. (Del.) 294. In many of the above cases the language of the charters under consideration is substantially the same as that of the charter of Milwaukee. The case of Commonwealth v. Allen, above cited, in effect overrules the cases cited from 44 Penn. St., as sustaining the opposite doctrine. Some of the cases of that class hold that language like that contained In Trulock v. Merte, Iowa Supreme Court, Oct. 10, 1887, plaintiff owned a house and lot adjoining defendants' lot, upon which the latter erected a shed used for keeping horses, poultry and hogs, the noise and filth from which injured plaintiff and his family. After plaintiff's petition for injunction was filed, and before trial, the causes of complaint, except the hogs, were removed. Held, that a per in the charter of Milwaukee excludes the jurisdiction of the courts, because it is substantially the same as that employed in most of the State Constitutions, and found in article 4, section 7, of the Constitution of this State, as follows: Each house shall be the judge of the elections, returns and qualifications of its own members.' No one denies that this provision excludes the jurisdiction of the courts in that behalf, and so it has been held, nota-petual injunction forbidding the accumulation of bly in the case of People v. Metzker, 47 Cal. 524, that this language must receive the same construction when employed in a statute that it receives when employed in the Constitution. We cannot give our assent to this proposition. We think that the same terms, when used in different statutes, or in a statute and Constitution, may properly receive different constructions, if that be indicated by the object and scope of the several statutes in which the same is employed. However we do not care to discuss this question here; but for a full and satisfactory discussion thereof we refer to the above cases of People v. Hall, 80 N. Y. 117 (opinion by Judge Folger); Commonwealth v. Allen, 70 Penn. St. 465 (opinion by Judge Agnew); Kendell v. Camden, 47 N. J. Law, 64 (opinion by Judge Scudder). We adopt the doctrine of Judges Dillon and McCrary in their treatises above cited, that the jurisdiction of the courts remains in such cases, 'unless it appears with unequivocal certainty that the Legislature intended to take it away.' In Zube v. Weber, Michigan Supreme Court, Oct. 6, 1887, it was held that in an action for assault and battery, where the plaintiff testified to serious injuries to herself and infant, and no good defense is shown, and the record does not show that any great amount of time was consumed on the trial, a remark of the court that the case is trivial, and so much time ought not to be spent upon it, is prejudicial to plaintiff's rights. The court said: "The remark of the court that the case was trivial, and so much time ought not to be spent on it — or that in substance does not appear to have been warranted, if the record states the case correctly. There is nothing appearing to show that any great amount of time was consumed in the trial of the cause, or any desire apparent on either side to procrastinate. The plaintiff had the right to go to the jury upon her testimony, and upon her theory of the case, and if they were true, they should not have been characterized in that way. It will not do in this country to say that the maltreatment of a wife and mother, and her infant child not yet two years old, in the manner claimed and sworn to by this plaintiff, without any legal right or excuse, is a trivial matter, nor that the suit brought for redress of such grievance is a trivial case, when so far as the record and testimony show, the mother was doing nothing more than asserting her just rights, and such characterization of her efforts was undoubtedly prejudicial to the plaintiff's rights." See note, 58 Am. Rep. 648. filth or the keeping of troublesome animals was too broad, and must be vacated, except so far as it forbade the keeping of hogs, as the other nuisances had already ceased. Also that an unsightly building erected near the residence of the plaintiff is not such a nuisance per se as may be enjoined. The court said: "Although plaintiff did not appeal from the judgment, he insists that it ought to be so modified by this court as to require the removal of the building, insisting that it is a nuisance per se. But we are of opinion that this relief ought not to be granted. The building in its present location is perhaps not a pleasing object to plaintiff and his family, but it is not necessarily a nuisance. It does not necessarily interfere with the comfortable use or enjoyment of their home; nor is it necessarily offensive to any of the senses. True, it may be used in such manner as to become a nuisance, and so might a dwelling-house or any other building in the same location. But in such case it would be the unlawful use which would cause the nuisance. The building itself, if devoted to a lawful and proper use, would be inoffensive. Defendants have the right to maintain such buildings upon their own premises as they may deem necessary for their comfort and convenience, and while the law will restrain them as to the manner in which they may use them, it will not prevent them from maintaining them for proper and lawful use. The case in this respect is not within the principle of Cook v. Benson, 62 Iowa, 170. The evidence shows that when the action was commenced defendants owned two horses, which they stabled in the building. One of them was a restless animal, and when confined in the stable would at times strike the plank of his stall with his feet, thereby causing a good deal of noise. This often occurred in the nighttime, and plaintiff, and a member of his family who was sick, were greatly disturbed by the noise. They also permitted a good deal of manure to accumulate on their premises, from which an offensive smell arose. After the petition was filed however they caused the manure to be removed, and after that, during the pendency of the action, they kept the premises free from all accumulations of that character. They also sold the horse which created the disturbing noises, and neither plaintiff nor the members of the family had been disturbed by offensive smells from the manure, or by noises in the building, for a long time before the trial. During the pendency of the action however defendants kept two hogs in the shed, and it is shown that an offensive smell arose from the pen in which they were kept, which was carried into plaintiff's house. The injunction is much broader than it should have been made. As stated above defendants are inhibited by it from keeping upon their premises any domestic animals which would cause unusual noises, whereby plaintiff would be disturbed in the enjoyment of his home. They were also forbidden to allow the accumulation on their premises of any manure or offensive offal, which would have the effect to interfere with the comfortable or convenient use by plaintiff of his premises. That plaintiff is entitled to be protected from the annoyances forbidden by the injunction is certainly true. But a court of equity will interfere by injunction to protect a right only when there is apparent danger that the right will be invaded. The court will issue its mandate forbidding the doing of a particular act only when it is shown that the party is about to do that act. And we do not find in the record any evidence of an intention by defendants to keep upon their premises animals of the kind prohibited by the injunction, or to permit the accumulation there of the materials prohibited. The defendants however were keeping their hogs in the pen at the time of the trial. The evidence shows that they kept the pen as clean as was possible, yet offensive smells arose from it, which penetrated plaintiff's house. The pen, when used for that purpose, would necessarily be a nuisance, and plaintiff is entitled to have it abated. The injunction will be so modified as to forbid defendant from keeping hogs in or about the building. In other respects the order will be vacated." In Willis v. Erie Telegraph and Telephone Co., Minnesota Supreme Court, Oct. 7, 1887, it was held that the erection and maintenance of telephone poles and wires in a city street, the fee of which is in the adjacent proprietor, is an infringement of the property rights of such proprietor, notwithstanding that the proper public authorities had consented to such a use of the street. The court said: "Upon the consideration which followed the argument of the case the court was divided in opinion. This led to a postponement of the decision, and before we were prepared to finally decide the question one of the justices became unable, by reason of sickness, to participate in the further cousideration of the case. It is now thought that the determination of this appeal ought not to be longer deferred, but as the four members of the court who can as yet act are equally divided in opinion upon the point involved, we can render no decision which can be deemed to establish the law. We therefore refrain from any expression of the reasons upon which our individual opinions are founded. The result is that the order of the District Court is affirmed." See note, 54 Am. Rep. 290. THE ARREST AND TRIAL OF JESUS. THE notion cons of a disorderly affair, the HE general notion concerning the trial and con mere reckless and unchecked doings of a mob. The common idea of this great event does not embrace any impression or thought of judicial order or system. That the destruction of Jesus was wrought out under the operation of exact systems of government, law and judicial procedure is not thought of. The celebrated painting by Munckacsy of "Christ Before Pilate " not only leaves this notion undisturbed, but deepens it, if that were possible, by its complete harmony with it. Yet some thoughtful minds paused before this masterpiece of the Hungarian artist to dwell on the fact that two of the greatest and most enlightened systems of administrative and judicial polity that ever existed met and united in compassing the momentous tragedy of the death of the Son of Man. Having in mind therefore the fact that the arrest, trial and condemnation of Jesus took place under a judicial system, peculiar it is true, but as exact, scrupulous and minute, especially in cases of life and death, as ever existed, namely, that of the Jewish theocracy, which even yet breathes its spirit as the breath of life into every Christian civilization and jurisprudence in the world, and that to the result was added, even though in a qualified degree, the sanction of the most philosophical and august of all jurisprudences, that of ancient Rome, which still forms the substantive part of every legal system in Christendom; a particular examination into the proceedings of which this tragic death was the outcome, cannot be otherwise than interesting to an inquiring and impartial mind. The subject naturally calls up questions which embrace its entire scope. Was the arrest of Jesus lawful and regular? What was charged against Him, and did it constitute a crime in law? Was the Jewish court which tried Him lawfully constituted, and had it jurisdiction? Was the trial conducted the court supported by evidence, and was it a just fairly, and according to law? Was the judgment of judgment? Lastly, what was the nature of the pro'ceeding before Pilate, and how far is he justly responsible for the result? To learn what were the laws under which Jesus was by the Jewish authorities arrested, tried and pronounced to be guilty of death is not a matter of difficulty, as we need only to resort to the Mishnah, which contains the body of the Jewish oral law, and to the Pentateuch, which contains the written law; but to ascertain what were the proceedings which were carried out with sufficient precision to pass upon their regu larity and legality, is beset with difficulty. In prosecuting this branch of the inquiry we have to depend wholly upon the gospel narratives. Outside of this there is nothing historical on the subject save a disputed-may the writer venture to say, a spuriousparagraph in Josephus (Antiq. xviii, 3, 3), and a few words of no specific value in Tacitus (Annal. xv, 44). It seems first in order to look at the law as we find it in the Mishnah (Cambridge ed., 1883, Lowe: Amsterdam ed., 1672, Surenhusius), sufficiently to make plain not only the letter, but the spirit of it, as applicable to cases therein designated of the life, and also to refer to pertinent provisions of the written law. Jesus was tried before the great council called the Sanhedrim. The judges of the Sanhedrim were seventy-one in number, and consisted of the high priest, the chief priests, the elders and the scribes. In the gospel accounts the appellations "chief priests" and "rulers" are sometimes used as though denoting different dignitaries, but reference to the Mishnah, and also to Josephus, shows that the expressions are synonymous. In minor cases three of the judges made a lawful court or quorum, while in cases of life and death the requisite number was twenty-three. “Be not a sole judge, for there is no sole judge but One," says the Mishnah. The court had a regular place of sitting called the council chamber. It is not easy to say precisely where it was located, but it was not in |