CORRESPONDENCE.

NEW YORK, August 14, 1871. Sir-In your issue of the ALBANY LAW JOURNAL of August 12th, I notice a communication signed "Student," and your response thereto. Now, while I cannot furnish the information which is desired, I beg leave to offer the following suggestion, to wit: That the Columbia College or University of the city of New York commence an evening session in October. Let this occupy three or four evenings in each week, and two hours each evening. Such a plan would be heartily welcomed by those anxious to attend legal lectures, and yet unable to attend the afternoon or morning courses. Further, let these colleges reduce their fees; they are too high; they prevent many from attending. Fifty dollars per session is an ample recompense. And by charging such a sum, and rendering the examinations more difficult, both schools would be more highly respected. For now, if you have paid your money, you are sure to receive your diploma, no matter whether you have diligently pursued the studies or not.

Will not the university who will welcome so many to her under-graduate course in the fall be foremost in this, and gain the thanks of many students? And can she not offer some prizes, as does Columbia?

Yours,

"STUDENT, No. 2."

BOOK NOTICES.

Iowa Reports, Vol. XXVIII, by Edward H. Stiles, Reporter. Ottumwa, 1871.

The twenty-eighth Iowa was among the reports destroyed in the late fire at Weed, Parsons & Co.; but, like that much quoted bird of old, it rises from its ashes "as good as new." It contains the cases decided at the December term, 1869, and the June term, 1870, something over one hundred in number.

As a reporter, Mr. Stiles is deserving of the highest praise. In preparing the first volume of the American Reports, we had occasion to examine his work upon the 27th Iowa more closely than we otherwise might, and we found, without exception, that his head notes were a faithful reflex of the decisions and his statements of the facts concise and to the point. All his volumes, especially the later ones, exhibit an unusual degree of good judgment and painstaking, which is much more than can be truthfully said of some of the reports of the present day.

The General Statutes of the State of New York for the year 1871, containing all the laws of a public and general nature, passed at the 94th session of the legislature: carefully collated with the originals in the office of the Secretary of State, with references to former statutes and decisions. To be continued annually. Weed, Parsons & Co., Albany. We presume there is hardly a lawyer in active practice who may not, almost daily, be exposed to the risk of advising or acting contrary to some of the general statutes passed at the last session of the legislature. It may be months ere the session laws will be published. Messrs. Weed, Parsons & Co., in the present volume, have timely supplied a great want. We have, at the commencement of the volume, the full titles of all the acts, public and private, passed at the last session of the legislature, 946 in number.

We then have all the acts of a general character, 211 pages, and an index of 17 pages. The volume is

printed to correspond with Edmonds' Statutes at Large. The citations are more extensive than in the preceding volumes of the Statutes at Large, and we suspect are by a new editor, although we are not informed by the title page who he is. There is not a single chapter which has not all the citations which occur to us, except 702, allowing publishers of Sunday papers to recover for advertisements therein, which must have been passed in consequence of the case of Smith v. Wilcox, 19 Barb. 581; 25 id. 341; 24 N. Y. 353. Members of the profession who do not wish to wait for several months, and then be compelled to purchase two immense volumes at much greater expense, will at once purchase the present volume, obtain all the laws of general interest, and be well posted in regard to them before their neighbors are able to secure the session laws.

USURY. It was said by Johnson that the law against usury is for the protection of creditors as well as debtors; for, if there were no such check, people would be apt, from the temptation of great interest, to lend to desperate persons, by whom they would lose their money.

LEGAL NEWS.

After the acquittal of a man in Cincinnati recently, one of the jurymen rose and suggested that "the acquitted be now recommended to the merciful consideration of the court."

Jules Favre came near being excluded from the council of order of the Paris bar at the recent criminal election. Instead of being near the top of the list, as he used to be, he stood at the bottom.

According to the London Daily News, there are about four thousand female criminals at large on tickets of leave in England, of which number a majority live in London.

Hon. W. Vernon Harcourt, queen's counsel, and a member of parliament, is to be at the head of the jurisprudence department of the social science congress, which meets in Leeds, Eng., October 4th.

The Spanish government have, at the express desire of the French cabinet, consented to the extradition of the Communist prisoners found on Spanish soil. One of the leaders of the Commune has already been arrested and delivered over to the French authorities.

The criminal court at New Orleans is breaking up a system of jury frauds in that city, by which citizens summoned are personated for a consideration, and thus a jury is very easily packed to suit the wishes of evil doers. Some of the jury brokers have been caught and punished.

The grand jury of Sonora, California, recommended in their report that "for the safety and comfort of bald headed men, the loose plastering be removed from the ceiling, or that the sheriff be instructed to furnish parties having business in the court with pillows or suitable shields to cover their heads with."

Commissioner Douglass has reversed the decision of Ex-Commissioner Pleasanton, that a renewal receipt for a policy of insurance is exempt from stamp duty. The commissioner holds that the renewal receipt requires the same stamp as the original policy. The stamp tax referred to yielded the government about half a million yearly.

The Albany Law Journal.

ALBANY, SEPTEMBER 2, 1871.

NOTIFICATION OF AUTHORITY TO MAKE

ARRESTS.

Precisely what constitutes a sufficient notice of authority of officers* is not settled by the courts. Such question depends, to a very large extent, on the peculiar circumstances of each case. It has often been discussed in cases of homicide where the officer is killed while endeavoring to preserve the peace in riots and affrays, and the question whether such killing amounted to murder or was only manslaughter, has generally depended upon the question of a proper notification of his authority by the officer.

Officers are conservators of the public peace, and in that right alone interfere in the case of riots and affrays, and it is necessary, in order to make the offense of killing them amount to murder, that the parties killing them should have some notice with what intent they interpose, otherwise the persons engaged may, in the heat and bustle of the affray, imagine that they come to take a part in it. But in these cases a small matter will amount to a due notification. It is sufficient if the peace be commanded, or the officer in any other manner disclose with what intent he interposes. Or if the officer be within his proper district and known, or but generally acknowledged to bear the office he assumes, or if, in order to keep the peace, he produce his staff of office or any other known ensign of authority, the law will presume that the party killing had due notice of his intent, especially if it be in the day-time. In the night, indeed, when such ensigns of authority cannot be distinguished, some further notification is necessary, and commanding the peace, or using words. of like import, or notifying of his business, will be sufficient. 1 East, 315.

It is laid down in one case that if upon an affray the officer, or others in assisting him, endeavor to suppress it and preserve the peace, and be killed in so doing, it is murder, though the affray was sudden, and the murderer knew not the officer, because he set himself up against the justice of the realm. Young's Case, 4 Coke, 40.

But to reconcile this with other authorities, it seems that the party killing must have had implied notice of the character in which the officer and his assistants interfered, though not a personal knowledge of them. 1 East, 315. But where the affray is deliberately engaged in by parties determined to make common cause, and to maintain it by force, an officer endeavoring to preserve the peace, if he be generally known and recognized as such, and is within his proper district, need not necessarily declare with what intent

A peace officer, with all the power of a constable to make arrests and preserve the peace, is here intended.

he interposes; his general character as an officer is implied notice of his purpose. It is, however, the duty of private persons interfering to preserve the peace to give express notice of their intention (Fost. 310, 311); for however good their intentions and desire to prevent the continuance of the affray, they are in great danger of being misunderstood by the parties engaged unless their purpose is clearly and unmistakably manifested.

In the foregoing we have considered what notice is necessary to be given by officers interfering in riots and affrays to preserve the public peace.

We will now consider what notice is necessary in making arrests. It is obvious that some notice of the officer's authority must be given, and the party to be arrested should have either implied or express notice of the officer's official character or authority. A recent case decided in the court of appeals (Yates v. The People, 32 N. Y. 509) affords some reasoning pertinent to this subject. Yates was pursued by a shouting mob in the night-time, threatening his life, and he was seeking to escape under just apprehension of great bodily harm if overtaken by them, and in his flight was seized by some person, whom, in selfdefense, he instantly kills, and the person thus killed proves to be an officer seeking his arrest. For this he was indicted for murder in the first degree, tried and convicted at a court of oyer and terminer, in Kings county, in 1865. The judgment was removed into the supreme court by writ of error, where it was affirmed at the general term. From this judgment the prisoner brought a writ of error to the court of appeals. Brown, J., said: "In the progress of the trial it soon became a material inquiry whether the prisoner was aware of the character of the pursuer. There was no proof of actual knowledge, and then occurred the inquiry whether the jury might not be warranted to infer his knowledge from the attending circumstances. Hence, the proof of the officer's uniform and the prisoner's defective vision, the street lamp, and the vicinity thereto of the prisoner at the time of the killing, all these circumstances became of vital consequence; for if there was nothing from which the prisoner's knowledge of the official character of the deceased might be inferred, the measure of the offense charged would descend from murder into one of the degrees of manslaughter." The officer had on his cap and shield, but there was no clear evidence that, with a defective vision in a dark night, the prisoner could see them. "And there was no evidence that he demanded him to surrender, or that he told him he arrested him. There was no evidence that he personally knew the officer." Judge Potter in same case. A new trial was granted. So that it seems an officer being in a regular policeman's uniform, with a shield, is not of itself sufficient notice of official authority, but that the notice should be brought to the knowledge of the party arrested.

Where an officer rushed into a gentleman's bed

chamber early in the morning for the purpose of arresting him, without giving the slightest intimation of his business, and the gentleman, not knowing him, in the impulse of the moment, wounded him with his sword and killed him, this was held to be manslaughter. 1 Hale, 470.

In both the foregoing cases, which are somewhat similar, it is quite probable there would have occurred no homicide had there been given even slight intimation of the official character of the officers, for it appears that simply saying "I arrest you," is a sufficient notification of the officer's authority, and it is at the peril of the party if he kills him after these words are spoken, for it will be murder. 1 Hale, 460. No precise form of words is required; it is sufficient if the party has notice which indicates an official authority, or that the officer comes not as a mere trespasser, but claiming to act under proper authority. Curtis Case, Fost. 135. In the case of People v. Pool, 27 Cal. 572, where the officer came in presence of the offenders, who had only four hours before committed a felony, and immediately said, "You are my prisoners, surrender," and at the same time pointed a gun at them, it was held, that these words were a sufficient notice of his character as a peace officer. The officer, in this case, exhibited no ensign of authority, was in ordinary citizens' dress, and had no warrant. It was also held, in this case, that if after the commission of a felony the guilty parties flee to avoid an arrest, and within three or four hours are pursued by officers for the purpose of apprehending them at a distance of twelve miles from the place where the crime was committed, it is an immediate and fresh pursuit of the criminals.

Where a party is apprehended in the commission of an offense, or upon fresh pursuit afterward, notice is not necessary, because he must know the reason why he is apprehended. Rex v. Howarth, 1 Moody, 207. Indeed, the arrest in this case was made even by a private person without warrant, and it was expressly laid down, that, when the circumstances are such as to make the intention to apprehend plain to the mind of him who is to be apprehended, he need not have any further notice, and the arrest will be legal and the resistance illegal, the same as if the purpose had been in words announced. The prisoner in this case was discovered while attempting to commit a felony, and immediately fled, and it was in fresh pursuit that the arrest was made; hence the legality of the arrest. People v. Wolven, 7 N. Y. Leg. Obs. 89; Rex v. Hunt, 1 Moody, 93.

In the case of Rex v. Woolmer and Palmer, 9 Moody, 334, a charge of robbery against the prisoners had been made to a watchman who was on duty, dressed in a watchman's coat, and had his lantern. In company with the party making the charge he started after the prisoners, and, on coming up with them, all he said to them was, "You must go back, and come along with me." He did not explain why,

nor was any charge against the prisoners stated. Woolmer said, "Keep off," and drew a sharp instrument from his side. The watchman said, "It's of no use; you must go back." Woolmer then stabbed him, and both Woolmer and Palmer were put on trial. There were no facts in the case that justified such a charge being made to the watchman. The jury found that the prisoners knew him to be a watchman; and on the case reserved a majority of the judges held "that the watchman could legally arrest the prisoner without saying he had a charge of robbery against him, though the prisoner had, in fact, done nothing to warrant the arrest, and that had death ensued it would have been murder." In a former article we have seen that an officer can justify an arrest on a reasonable charge of felony, although it turn out that really no felony was committed. This principle must have entered into the final decision of this last-mentioned case. The kinds of notice by the officers which we have mentioned in the different cases, by implication of law hold, also, in cases where such officers, having warrants directed to them as such to execute, are resisted in the performance of that duty. In Thomas Gordon's Case, 1 East, 315, who was indicted for murdering George Linnell, a constable having a warrant for Gordon's arrest, it appeared that the deceased, at the time he went to the prisoner's house in the day-time, had his constable's staff with him, and gave notice of his business, and that he had before acted as constable of the parish, and was generally known as such. At a conference of all the judges on this case they were of opinion that this was sufficient evidence and notification of his being constable, although there were no proofs of his appointment, or of his having been sworn into office.

Where one Pew said to an officer who came to arrest him, "Stand off; I know you well enough; come at your peril," and the officer, on taking hold of him, was killed, it was held to be murder, although the officer used no words of arrest nor showed his warrant, for possibly he had no time. No notice was necessary in this case, for it was clearly manifest to the officer that Pew knew him by his own words. Cro. Car. 183.

It is only necessary that the party himself who is the object of the arrest should have notice, because none other is immediately concerned, and the officer is not bound to give notice to every person who may think proper officiously to interfere in opposition to | him.

Each of the junior counsel in the Tichborne case, now on their way to Australia in search of additional evidence, receives 500 guineas and his expenses.

The ultra-loyal papers of New Zealand complain that at Napier, on the queen's birthday, the courts continued their sessions, and the members of the pro

vincial counsel stubbornly kept their hats upon their heads while the national anthem was being played.

so, becomes instanter part and parcel of the inheritance, and not removable by the tenant even who has erected it at his own expense, so that, notwithstanding all the linendraper's ingenuity, his glass front was in fact caught in our first sieve, irrespectively of his covenant, which only confirmed or recognized our principle. Again, in the case of Mansfield v. Blackburne, 6 Bing. (N. C.) 426, decided in the year 1840, under a covenant by the trader-lessee of a salt spring to leave the salt works (which the same lessee had also agreed to erect) in good repair at the end of his term, it was held that the iron salt-pans, as being parcel of the salt works, were included, and were in consequence thereof become, although in their own nature removable, practically irremovable by the tenant, Tindall, C. J., remarking in his judgment in this case, with, however (it seems to me), numerous inaccuracies, as follows:

"If this had been the ordinary case between landlord and tenant, as to the right of the latter to remove fixtures, or other things erected on the premises, at the end of the term, we should have entertained no doubt but that the salt-pans had been removable by the tenant, as well from the nature and description of their annexation to the freehold, as upon the doctrine laid down by Lord Mansfield in Lawton v. Salmon, that it would have been a different question if the springs had been let, and the tenant had been at the expense of erecting these salt works; he might very well have said, 'I leave the estate no worse than I found it.' That would be for the encouragement and convenience of trade, and the benefit of the estate (sed quære).”

"But the question before us does not turn upon any general rule of law (sed quære), but upon the interpretation of a positive contract into which the parties have entered with each other, and the point we have to determine is, whether, under that contract, it was the intention of both parties that the salt-pans should be left at the determination of the term, or that the tenant should have the power to remove them."

Now here, also, the chief justice, although seeming to question our principle, unconsciously regulates his decision, and, in fact, he decided in accordance with it. So, again, in the case of R. v. Topping, 1 Maclel. & Y. 544, decided in 1825, and in the case of Dumergue v. Rumsey, 2 H. & C. 777, decided in 1866, an express clause in an agreement being held to have defeated (in the one case accidentally, in the other case intentionally) the tenant's right of removal, the fixtures became, in consequence thereof, instantly and indissolubly united with the inheritance, so as not to be leviable under a fi. fa. issued against the lessee. Such is the predominant vivacity or efficacy of the two considerations which I have designated paramount, and such, also, the readiness with which agreements not opposing coincide with them in their operation, to the utter disregard of every equitable consideration to the contrary.

Before, however, it is possible to maintain the absolute and universal paramouncy of my principle over all private stipulations and agreements whatsoever, it is necessary to inquire and know whether any

covenant or agreement which not only does not coincide with it, but which directly aims at superseding or displacing it, has been allowed to, in fact, supersede or displace it. Now, there is the case of Sumner v. Bromilow, 34 L. J. (N. S.), Q. B. 130, decided so recently as the year 1865, in which, in a state of circumstances otherwise resembling the case of Mansfield v. Blackburne, supra, it was held, that the saltpans in question were removable by the tenant who had put them in, and that they were so removable by reason of a difference in the words of the covenanta difference apparently suggested to the draughtsman or conveyancer by the decision in Mansfield v. Blackburne, being the exception or reservation, in express terms, of the "salt-pans and other removable articles" out of the general scope or operation of the covenant. So that our cherished principle apparently succumbs, and the old law, it seems, may be displaced in the interests of trade, or, indeed, of any other interest, by the employment of apt words expressly (and not in intention, merely) displacing or defeating it. The hallowed traditions of the past are, indeed, ever destined, in the natural course of jural development, to yield before the so-called imperative demands of modern life; and the court of queen's bench, in particular, as at present constituted, has always shown more readiness than reluctance to break off from the past. Probably, however, it is better so; certainly it is more in keeping with the strong reality of modern regards, to openly and directly recognize, instead of fictitiously ignoring, while in fact accepting, changes of the sort referred to. And, at all events, we, as mere writers, stating what the law actually is, are compelled by this decision to recognize the maxim, Cuique juri pro se introducto renuntiare licet, in its free operation in respect of all fixtures, as well those of the ancient as those of the modern class. And yet, even while compelled to admit thus much, who that has followed the course of decision downward, as presented in this article, or in the prior portion of it, would hesitate for one instant to agree with me in my view of the desirability, and, indeed, necessity, of attributing, if not a paramouncy to the first and second portions of my general rule, at least of attributing to them a paramount importance as collateral considerations, as exercising an all-powerful influence when not directly, expressly and laboriously excluded? Our general rule remains, therefore, if not altogether unassailable, practically unassailed.

We shall give but one further illustration of the extremely vigorous, and, indeed, the instantaneous, operation of those first and second portions of our rule, even in spite of covenants and agreements, which might seem to expressly and directly exclude their operation. The case shall be that of Foley v. Addenbrooke, 12 Mee. & W. 174, decided in the year 1844. The covenant, in that case, was to repair, and yield up in repair, "the furnaces, fire-engine, iron works, dwelling-houses and all other erections, build