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such scope to realize the spontaneous energy of one's soul? In what other does one plunge so deep in the stream of life-so share its passions, its battles, its despair, its triumphs-both as witness and actor?

But that is not all. What a subject is this in which we are united! This abstraction called the Law, wherein as in a magic mirror we see reflected, not only our own lives, but the lives of all men that have been. When I think on this majestic theme my eyes dazzle. If we are to speak of the law as our mistress, we who are here know that she is a mistress only to be wooed with sustained and lonely passion-only to be won by straining all the faculties by which man is likest to a god. Those who, having begun the suit, turn away uncharmed, do so either because they have not been Vouchsafed the sight of her divine figure, or because they have not the heart for so great a struggle. To the lover of the law, how small a thing seem the novelist's tales of the loves and fates of Daphnis and Chloe. How pale a phantom even the Circe of poetry transforming mankind with intoxicating dreams of fiery aether and the foam of summer seas and glowing greensward, and the white arms of women! For him no less a history will suffice than that of the moral life of his race. For him every text that he deciphers, every doubt that he resolves adds a new feature to the unfolding panorama of man's destiny upon this earth. Nor will his task be done until, by the furthest stretch of human imagination, he has seen as with his eyes the birth and growth of society, and by the furthest stretch of reason he has understood the philosophy of its being. When I think thus of the law, I see a princess mightier than she who once wrought at Bayeux, eternally weaving into her web dim figures of the ever-lengthening past-figures too dim to be noticed by the idle, too symbolic to be interpreted except by her pupils, but to the discerning eye disclosing every painful step and every world-shaking contest by which mankind has worked and fought its way from savage isolation to organic social life.

But we who are here know the law even better in another aspect. We see her daily, not as anthropologists, not as students and philosophers, but as actors in a drama of which she is the providence and overruling power. When I think of the law as we know her in the court-house and the market, she seems to me a woman sitting by the wayside, beneath whose overshadowing hood every man shall see the countenance of his deserts or needs. The timid and overborne gain heart from her protecting smile. Fair combatants, manfully standing to their rights, see her keeping the lists with the stern and discriminating eye of even justice. The wretch who has defied her most sacred commands, and has thought to creep through ways where she was not, finds that his path ends with her, and beholds beneath her hood the inexorable face of death.

Gentlemen, I shall say no more. This is not the moment for disquisitions. But when, for the first time, I was called to speak on such an occasion as this the only thought that could come into my mind, the only feeling that could fill my heart, the only words that could spring to my lips, were a hymn to her in whose name we are met here to-night-to our mistress, the Law.

NEW BOOKS AND NEW EDITIONS.

ESTEE'S PLEADINGS.

Estee's Pleadings, Practice and Forms. Adapted to actions and special proceedings under Codes of Civil Procedure. By Morris M Estee. Third edition, revised, enlarged and rewritten by Carter P. Pomeroy. Three volumes. San Francisco: A. L. Bancroft & Co., 1885. This we believe is the most elaborate and complete work on this subject, and it is of good repute. Some

such work is indispensable to the practitioner under a Code, and we know of none better than this. It is conveniently arranged, and generally we find the forms very good. It is well printed, and is not padded.

BISHOP'S DIRECTIONS AND FORMS.

Practical Directions and Forms for the grand jury room, trial court and court of appeal in criminal cases, with full citations from the reports and other books, and a general index to the author's series of criminal law works. By Joel Prentiss Bishop. Boston: Little, Brown & Co., 1885.

Although Mr. Bishop has a mean opinion of law-journal book notices, we shall not be deterred from giving an honest opinion about his books. This seems to us, from a cursory examination, to be like all his other works, perfect in its way. We can say no more, and can honestly say no less. The general index to his works on criminal law is extremely valuable. The book is beautifully printed.

LAWSON'S PRESUMPTIVE EVIDENCE.

The Law of Presumptive Evidence, including presumptions both of law and of fact, and the burden of proof, both in civil and criminal cases, reduced to rules. By John D. Lawson. San Francisco: A. L. Bancroft & Co., 1885. The readers of this journal will form a good opinion of this excellent treatise from the large portions of it originally published in these columns. It is written on the true plan of codification, and it is most admirably executed. It is hoped that the author will follow it up in the same way, and his later contributions to this journal give promise that he will. Mr. Lawson now stands at the head of the younger law writers,and this work will confirm his position.

NOTES.

WE have always been aware that it is sinful to smile

in church; our mothers have told us that; the punishment we always thought was being handed over to the tender mercies of that august official, the beadle. It seems however when we attain years of discretion the punishment for smiling in church is a fine of 58. A well-known merchant ventured the other day while in church to remark to a friend that "the choristers looked well in their night shirts," referring to their surplices. The remark caused a smile; the smile cost 58., being held to be "brawling." The smile was really uncalled for; there was nothing funny in the remark; but was not the punishment also uncalled for? It is only fair to mention that the decision was upset on appeal; so that we may still look amiable when in church without being fined for smiling.-Gibson's Law Notes.Some English magistrates decided that a "crawfish" is not a fish, but the judges thought otherwise.The following actually occurred in court a few days ago: After a long wrangle between judge and counsel-Judge: "Well, Mr. - , if you do not know how to conduct yourself as a gentleman, I can't teach you." Counsel: "That is so, my lord.-Law Times. (This really occurred in the ark.-ED.)-A Legal Subtlety.-At Hastings a respectably-dressed man, in a hopeless state of intoxication, was found in a bath chair, drawn by a chairman, and was taken into custody. It appeared however that the accused was not removed from the bath chair until he got to the police station, and the bench holding that the prisoner had not been found drunk in the highway, dismissed

the case.

The Albany Law Journal.

COMMON

ALBANY, MAY 30, 1885.

CURRENT TOPICS.

YOMMON law is uncertain as to what constitutes larceny. The St. James Gazette says: "If a sovereign is given to a cabman by his fare, both parties believing it to be a shilling, and an hour later the cabman discovers the mistake and keeps the sovereign, has he stolen it? The argument of this question before the Court for Crown Cases Reserved last week afforded excellent entertainment to a professional audience. The difficulty is, that to 'take and carry away animo furandi' is an essential part of the common-law definition of larceny, and that in this case the cabman did not form a felonious intention about the sovereign when he took it and carried it away, because he then believed it to be a shilling. On behalf of the Crown it was argued that either he took it when he knew it was a sovereign or the felonious intention which he subsequently formed relates back to the time when he took it. Before the argument had gone far it was apparent that the five judges who were hearing the case were not agreed, and while Lord Coleridge had no doubt that the sovereign was stolen, Mr. Justice Stephen was equally positive that it was not. Mr. Justice Cave further complicated matters by throwing out a suggestion that the cabman might perhaps have committed the statutory offense called larceny by a bailee. In the result the Lord Chief Justice announced that the Bench was so seriously divided in opinion that there must be a further argument before the full court- that is the whole

of

Queen's Bench Division; so that the frequenters the law courts will again be gratified by the most impressive legal spectacle left to us in these prosaic days, that of twelve or fourteen judges all sitting together to decide a question of criminal law." It would be bad indeed to have a statute exactly defining larceny, for then suitors could not be treated to this "impressive legal spactacle."

Lord Bramwell thinks the contract between Shylock and Antonio was contra bonos mores and void. In this he is not alone nor original. We have adVocated that view for years. The present comment came about in this way, as we learn from the London Telegraph "The Home Secretary lately ventured to assert that Lord Bramwell entertained so vast a reverence for all kinds of property that if he had been called upon to decide the legal dispute in 'The Merchant of Venice,' he would infallibly have declared that Antonio's pound of flesh must be given to his creditor. Lord Bramwell, with the frankness which usually characterizes him, has met Sir William Harcourt's little joke by an answer delivered from the judicial bench. In the course of an Appeal Court case the learned judge took occasion to VOL. 31-No. 22.

*

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respond to the witty illustration of the Home Secretary. Far from expressing the slightest shame or penitence for the views which he holds as to the sacredness of property of all descriptions, Lord Bramwell actually seems to glory in them. The session of the Court of Appeal was probably the earliest opportunity that was presented to him of answering Sir William Harcourt's banter; but at all events, he seized on the opportunity and turned it to the best account. * Portia's statement of the case would, Lord Bramwell tells us, have induced him to give the pound of flesh to the usurer, except for one little flaw in her argument. The flesh had not been appropriated,' and could not, therefore, be regarded as property to which Shylock had a good legal right until it had been cut from Antonio's quivering body. Supposing Lord Bramwell to have been sitting in banco with the Doge of Venice on the occasion of the famous trial, and the pound of flesh had been lying on a table, ready cut; in that case the decision of the English judge would have been in favor of the plaintiff's claim to the possession of the horrible piece of property.' But then, as Lord Bramwell truly remarks, in order to get the flesh, assault, and even murder, would have had to be committed, and therefore the contract was null and void from the beginning. * * * The moment Shylock had advanced toward his victim, knife in hand, he would have been technically guilty of an assault with intent, and would have been obliged to appear at the police court of the period next morning to hear what the sitting magistrate thought of the offense."

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Dr. Hammond, the younger - not the novelist has discovered that hanging, producing strangulation without breaking the neck, is a humane, not to say very pleasant mode of execution, It is the breaking of the neck that is barbarous, painful, and not instantaneous. This at least, the part relating to mere strangulation - he has demonstrated by experiments on his own person, by means of a silken cord, a tourniquet and trustworthy friends to relax the pressure. Dr. Hammond has experienced the most delightful sensations. His gifted father ought to put them in his next novel. But this

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seems dangerous trifling something like jumping off Brooklyn bridge. - and if the assistants should miscalculate or any thing should go wrong, the world would be deprived of an enterprising young physician. Beside, we fear that this will inspire others to try the same experiments without the same precautions and experience, with fatal results. This would be bad for the bystanders surviving. All this nonsense ought to stop. Let us go on hanging after the old fashion, and let us not be persuaded not to break necks because strangulation is pleasanter.

The question of delays in the administration of justice is to be reported upon, at the next meeting of the American Bar Association, by a committee of which we believe Mr. David Dudley Field is chair

man.

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The court said: "In other words can a husband deed to his wife? The authorities are conflicting and leave the question in doubt. In the case of Meeker v. Wright, 76 N. Y. 262, the argument of Danforth J., would seem to support the deed, but his opinion was not concurred in by a majority of the court. In the case of Thompson v. Commissioners, etc., 79 N. Y. 54-63, the plaintiff at the time of the execution of the mortgage was the owner in fee of one-third of the premises. She subsequently received a deed from her husband of the other twothirds. It was held that the defendants were not in a position to raise the question as to plaintiff's right as guarantee of her husband; and Miller, J., in concluding his opinion, says: "Under recent legislation the husband has a right to convey to his wife," citing the case of Meeker v. Wright, supra. In the case of Bertles v. Nunan, 92 N. Y. 152; S. C., 44 Am. Rep. 361, Earl, J., in delivering the opinion of the court, says that the common-law disabil

This topic, under the title of The Tardiness of Justice," is discussed by our townsman, Judge W. L. Learned, in the current number of the North American Review. The writer alludes to many of the well recognized causes of delay, and suggests some ameliorations, which we have not space to dwell upon. The most striking point made by him is the following: "But under our system, following the English, appellate courts seem at times to care more about making precedents than about deciding the case in hand justly. This comes from the fact, so often discussed, that our law is largely judge-ity of husband and wife, growing out of their unity made' law. Instead of being guided by the rules of codes of law, or by a sound judgment as to the merits of the case, appellate courts are constantly searching for precedents in other cases, and are anxiously making a precedent out of the case in hand. When a case is argued, the question is not whether justice was done in the court below; but it may be whether some witness said something which might be considered irrevelant — perhaps no more important to the merits than whether he stood at right angles to the jury when he testified." The article is intelligent and timely, and will enhance the interest with which the report and discussion on the subject at Saratoga are awaited.

The English journals do not treat our ex-dignitaries with due reverence. Here is what the London Law Times says of our late president: "The American journals announce that Mr. Arthur, the late president of the United States, has resumed his law practice with his old firm,' and give interesting details as to the furniture of his office, which is stated to be of 'mahogany, with cheery trimmings.' Litigants across the Atlantic may be congratulated on the opportunity thus afforded of obtaining for six and eightpence (or the American equivalent) the opinion of the late chief magistrate of one of the greatest States in the world, and the taxing officers of the American courts will find peculiarly fascinating employment in cutting down the bills of costs of an ex-president." We are sure that the material of the office furniture of so good a cabinet-maker as Mr. Arthur is not irrelevant. But

of person, to convey to each other still exists. Inasmuch as the determination of this question was not necessarily involved in the case of Bertles v. Nunan, we must regard the question as unsettled by the Court of Appeals and consequently open for consideration in this court. At common law neither husband nor wife could convey to each other for the reason that in law they were regarded as one person. It thus becomes a question as to how far the unity of person between husband and wife has been abrogated by the statutes upon that subject. And in construing these statutes we must bear in mind the rule that statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language of the statute absolutely requires." (See ante, 361). "It is now ar gued that because of the amendment of 1862 of section 7, leaving out the words 'except her hus band,' that discloses a legislative intent to abrogate the common-law rule of unity of person to the extent that a husband may now convey real estate directly to his wife. Such however does not appear to us to have been the purpose of the amendment. If it was, why should the words have been retained in section 8 of the act, and why is section 3 of the act of 1849 left unchanged? The reason is quite apparent; the section (§ 7 chapter 90 of 1860) provided that any married woman may while married sue and be sued in all matters having relation to her property which may be her sole and separate property, or which may hereafter come to her by descent, devise, bequest, purchase, or the gift of any person except her husband,' etc. Under this provision,

while she could sue and be sued in reference to all of the property which she acquired from other sources than her husband, she could not sue or be sued in reference to property that she acquired from him. If therefore the husband should, through fraud or conversion, procure money or other property, and then give the same to his wife, the wife would be protected in the retaining of the possession of the property, for having received it from her husband, she could not be sued therefor. No

matter whether she was authorized to take and hold property from her husband, the effect of the act was to prevent her from being sued. It was to remedy this defect that the act of 1862 was passed, in which the words 'except her husband' were properly left out of section 7, but still retained in section 8. No other legislation appears to have affected the question. It consequently appears to us that section 3 of the act of 1849 is still in full force, unrepealed, and that the words therein contained, other than her husband,' prevent her from taking title by grant of her husband. The case of Hunt v. Johnson, 44 N. Y. 27; S. C., 4 Am. Rep. 631, is the most favorable decision to the plaintiff's

claim to which our attention has been called. The

conclusions reached by Hunt, Commissioner, have been questioned and criticised upon the ground that the authorities upon which he relies do not sustain the position taken by him. (See 13 Alb. L. J. 110.) But conceding the rule to be as he states it, the wife is not here asking to have the deed to her, upon the nominal consideration of one dollar, established by a court of equity, but her illegitimate son, a stranger to Abel Easterbrooks and his daughter, and if a court of equity will not interfere as between persons standing upon the same meritorious consideration, as between wife and child of the grantor, it will not in favor of a stranger who has no claim upon the grantor for support and maintenance."

In New York Infant Asylum v. Roosevelt, 35 Hun, 501, it was held that in an action of libel, brought by a charitable corporation, alleging loss of donations, a bill of items should be furnished giving the names of the donors. The court said: "The rules prescribing what such a pleading as this complaint should be require that this information shall be given the defendants. That was considered in Hartley v. Herring, 8 T. R. 130, where it was held that the declaration should state the names of the customers whose patronage had been withdrawn from the plaintiff by reason of a slanderous publication. This complaint has not complied with that rule, except as to the two persons, Fisher and Parke, whose names seem to have been given, so far as they were known, and to remedy the deficiency in this respect the orders requiring the names of the persons referred to, to be given, were regularly made If the plaintiff expects to be able to make proof of the fact, that persons have withheld charitable donations from it because of this publi

cation, the defendants are entitled to know who those persons are in order to be prepared to meet that part of the case as far as they may be able to do so by proof upon the trial."

In Beacannon v. Liebe, 11 Oreg. 443, it was held that although two partnerships, composed, in part, of the same individuals, could not sue each other at

law, yet that a balance of account, due from one of such partnerships to the other, might be assigned, and the assignee might maintain an action to recover such balance unless it should appear that a general accounting was necessary between the two firms to ascertain such balance. The court said: "The difficulty at law arises from the fact that all the partners must join and be joined in the action, and as no person can maintain an action against himself, or against himself and another, it could not be sustained. (Story's Eq. Juris., § 679.) Equity however treats the copartnership as a distinct existence, looks behind the form of the transactions to their substance, and treats the different firms, for the

purpose of substantial justice, exactly as if they were composed of strangers, or were, in fact, corporate companies. Id. § 680. In this case, the assignment of the claim freed it entirely from the objection that a person cannot maintain an action against himself. That feature in it has been removed by the assignment, and upon that point it stands upon the same ground as the cases cited by appellant's counsel of Moore v. Holland, 39 Me. 304; Thayer v. Buffum, 11 Met. 398, and Pitcher v. Barrows, 17 Pick. 361. And we see no reason why such objection, where it is merely technical, cannot be obviated in that way, where the assignment is actual and real. The respondent's premise that the assignee acquired no higher rights than those held by his assignors, is undoubtedly correct, but his conclusion drawn therefrom is not supported by it. The question of right is not involved in the matter; it is a question of disability. One firm could assign the claim, when owing to the peculiar circumstances referred to, they could not maintain an action upon it in their own name; the assignment removed that disability. The case of Thayer v. Buffum, supra, is decisive of that point. See also 18 N. Y. 74." Hayden v. Whitmore, 74 Me. 230; Hale v. Wilson, 112 Mass. 444. In Learned v. Ayres, 41 Mich. 677, it was held that the assignee could not bring suit.

In Claflin v. Smith, 15 Abb. N. C. 241, it was held that an assignment for the benefit of creditors under the laws of this State is not invalidated by

reason of a clerical error in the certificate of acknowledgment. In that case the officers certified personal appearance, etc., of the party described in and who executed "the same," instead of the "within instrument." Davis, P. J., said: "The act (Laws of 1877, ch. 466) looks only to the substance of the thing, and is satisfied when the act appears in that respect to have been complied with, no form

of certificate is therein prescribed, and conse-
quently it need not be in any particular form. Ritter
v. Worth, 58 N. Y. 627; Sheldon v. Stryker, 42 Barb.
284; West Point Iron Co. v. Reyment, 45 N. Y. 703.
It is the policy of the law to uphold a certificate
when substance is found (Kelly v. Calhoun, 95 U. S.
710), and it should be the aim of courts in cases of
defective certificates to preserve and not to destroy,
and the court should be astute to find means to
make official acts effectual. Morse v. Clayton, 21
Miss. 373; Wells v. Atkinson, 24 Minn. 161, and for
that purpose the courts may refer to the deed itself.
In Scharfenburg v. Bishop, 35 Iowa, 60, the word
"appeared
was omitted, and it was held obviously
a mere clerical error. In Davar v. Cardwell, 27 Ind.
478, the form of the certificate was "acknowledged
it" and it was held that "it" meant the deed. In
Pickett v. Doe, 5 Smedes & M. 470, the acknowledging
officer inserted his own name instead of that of the
grantor and this was held not to be fatal. In Sam-
uels v. Shelton, 48 Mo. 444, the mistake was an
omission to identify the deed and it was held to be
of no consequence, because it was obvious what was
intended. In Rigler v. Cloud, 14 Penn. St. 364, the
court say: 'It is against the spirit and genius of
our government to extend nice, technical objections
to the acts of magistrates and other functionaries of
the law who are called periodically from the mass of
the people to discharge such duties, without pre-
vious legal learning or experience, and thereby dis-
turb estates long settled and purchased for full
value, and thus revest the estate in the hands of the
original vendor by a legal quirk.' And see Warner
v. Jeffray, 96 N. Y. 248." See also 14 Abb. N. C,
452, note, 25 Alb. Law Jour. 16; 14 Eng. R. 500;
Smith v. Boyle, 67 How. Pr. 351; S. C., 18 Week.
Dig. 461.

D

COMMON WORDS AND PHRASES.

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word is not defined in the Code, nor do we find any definition of it in the law lexicographies. In our opinion, as used in article 496 of the Penal Code, and as commonly understood in this country, it has a more comprehensive signification than that given it by Mr. Webster. We understand a decrepit person to mean one who is disabled, incapable or incompetent, from either physical or mental weakness or defects, whether produced by age or other causes, to such an extent as to render the individual comparatively helpless in a personal conflict with one possessed of ordinary health and strength, We think that within the meaning of the word as used in the Code, a person may be decrepit without being old; otherwise the use of the word in the Code would be tautology. It certainly was intended by the legislature that it should signify another state or condition of the person than that of old age. Thus where the party assaulted was a man about fifty years old, disabled by rheumatism to such an extent that he was compelled to carry his arm in an unnatural position, and in such a manner as to render it almost if not entirely useless to him in a personal difficulty, it was held, that whilst his condition might not come technically within the word meaning of the decrepit as defined by Mr. Webster, yet it might with propriety be said that it fell in the measure of that word as used in common acceptation. Bowden v. State, 2 Tex. Ct. App. 56."

MOVABLE PROPERTY. A growing and unripe crop is not "movable " or "personal property." Hardeman v. State, 16 Tex. Ct. App. 1. The court said: "We now recur to the question, is growing cotton movable property, as alleged in the indictment? 'Movable' property is such as attends a man's person wherever he goes, in contradistinction to things immovable. 2 Bouv. Law Dict. word 'Movables.' Thus money, jewelry, clothing, household furniture, boats and carriages are said to follow the person of the owner wherever he goes; they need not be enjoyed in any particular place; and hence they are movable. 1 Schoul, Pers. Prop.

25. Certainly a crop of cotton growing upon land cannot by any stretch of the rules of construction be brought within this definition of movable property. It is most clearly a thing immovable. It may however become movable. Says the author last quoted: 'Fruits so long as they are hanging on the trees, the crops until they are gathered, and timber trees while they are standing, are things immovable, or real estate, because they are attached and appendent to the ground. But when the fruits or

ECREPIT. In a statute concerning assault and battery upon "decrepit persons," those words mean those who are disabled, incapable or incompetent, from either physical or mental weakness or defects, whether produced by age or other causes, to such an extent as to render them comparatively helpless in personal conflicts with persons of ordinary health and strength. Hall v. State, 16 Tex. Ct. App. 6. The court said: "What meaning are we to give to the word decrepit? Words used in the Penal Code, except where specially defined by law, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context, and subject-crops are gathered, or the trees cut down, as they matter relative to which they are employed. Penal Code, art. 10. Mr. Webster makes the word 'decrepit' a dependent of old age; that is, according to his definition, before a person can be decrepit, old age must have supervened upon such person. He defines the word thus: 'Broken down with age; wasted or worn by the infirmities of old age; being in the last stage of decay; weakened by age.' This

then cease to be attached to the soil, they become movables. 1 Schoul. Pers. Prop. 123. We think it too plain to be controverted, or to require a further investigation of authorities, that a crop of growing cotton is immovable property, and is not within the meaning of 'movable property' as used in the article of the Penal Code under which this conviction was obtained. * ** * There may be personal prop

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