ton; Bruce v. Griscom; In the Matter of the Petition of Willett; In the Matter of the Petition of the Second Baptist Church of Harlem; People ex rel. Kimball v. Boston and Albany R. R. Co. Order affirmed, without costs in this court-Lawrence v. Lindsay. Judgment affirmed, without costs as between the plaintiff and the executors of Devlin, and with costs to Donnelly, Keuffer and Toel against the executors of Devlin, de bonis testatoris - Getty v. Devlin (two cases).-Order sustained as to claim for tobacco, and reversed as to the claim for the check, and order of arrest modified by reducing the amount for which the defendant was held to bail to $2,500, without costs to either party - Barnett v. Selling.Judgment modified by inserting a provision adjudging the right of children of the testator's son, Alexander M. Lesley, born before the time for distribution, to share in the estate, and as so modified affirmed, with costs of all parties to be paid out of the estate Stevenson v. Lesley.- Appeal dismissed, with costsWagner v. Long Island R. R. Co.; Alling v. Fahy.Judgment reversed and judgment ordered for defendants, with costs - People ex rel. Babcock v. Murray. Judgment reversed and new trial granted, costs to abide event - Peyser v. The Mayor, etc.; Health Department v. Knoll.- Order granting new trial reversed and the residue of the judgment of the General Term and the Special Term affirmed, without costs to either party in this court- Frost v. Yonkers Savings Bank. WE NOTES. - E are pleased to welcome a new comer into the field of legal journalism. The San Francisco Law Journal is the title of a weekly periodical, published by Messrs. W. T. Bagett & Co., at San Francisco, California, the initial number of which appeared on the 1st inst. The principal purpose of this publication is to furnish at an early date and in an acceptable form the decisions of the courts of California and those of other States having a general interest to the profession. Cases decided in the Supreme Court of California and in the United States District Court for that State appear in the first number. The Journal must prove of great value to the profession upon the Pacific coast, and we trust it will receive a cordial support. An exchange says: "The phrase 'privily and apart' is a corruption of the old English, 'privily and apert.' 'Apert' is an obsolete word from the Latin, aperio, to open, and which meant openly, publicly.' Privily and apert,' meant then 'privately and publicly.' The phrase is twice used in this sense by Chaucer in his Wife of Bath's Tale.' At present it seems to be a redundant expression for private." The phrase as now understood may seem redundant, but as corrected it would be nonsense. It is used in describing the private examination of witnesses, or of a wife when executing a conveyance. An acknowledgment by a wife taken on a private examination, "apert" (openly or publicly), from her husband, would hardly satisfy the statute, neither would it satisfy the rule upon which the statute is founded. to plead guilty or not guilty at Kingston Assizes. The London Magazine for August, 1735, contains a horrible and detailed account of a man who was actually pressed to death at Horsham for obstinately remaining dumb when placed upon his trial at Lewes Assizes. In this case the weights placed over the unhappy man were gradually increased to a total of 350 pounds, when the executioner completed his task by adding his own quota of sixteen stone."- A lawyer in Strasburg being in a dying state, sent for a brother lawyer to make his will, by which he bequeathed his estate to the Hospital des Fous (Idiots). His brother advocate expressed his surprise at his request. "Why not bestow it upon them?" said the dying man, “you know I obtained my money from fools, and to fools it ought to return." The knowledge of law prevailing among the English lower classes is illustrated by the following story: Not long ago an officer of the London school board was crossing Covent Garden market at a late hour, when he found a little fellow making his bed for the night in a fruit basket. "Would you not like to go to school and be well cared for?" asked the official. "No," replied the urchin. "But do you know that I am one of the people who are authorized to take up little boys whom I find as I find you, and take them to school?" "I know you are, old chap, if you find them in the streets, but this here is not a street. It is private property, and if you interferes with my liberty, the Duke of Bedford will be down upon you. I knows the hact as well as you." The late Mr. Warren, the author of Ten Thousand a Year, left a personal estate sworn under $60,000. He bequeathed the manuscript of Ten Thousand a Year to his eldest son, "trusting he will retain it as an heirloom as long as possible," and makes provision for his wife and younger children. The residue of his property he also leaves to his eldest son.-Chief-Justice Gray, of Massachusetts, goes to court like a magistrate of Colonial days. He rides in saddle from Pittsfield to Boston - a distance of 100 miles-and goes home in the same fashion when the court is over. This item of law news comes from Turkey. It appears in a newspaper called the Bassiret, published at Stamboul: A lengthy lawsuit took place lately between two Englishmen; but although it was tried before all the courts in London, and the whole of the written authorities on English jurisprudence were diligently ransacked, they failed to arrive at a satisfactory decision. At last the English government in despair asked its ambassador at Constantinople to inquire if the matter could not be settled in accordance with the religious or civil law of Turkey. The ambassador communicated with the Porte on the subject, which referred to the Sheikh-ul-Islam, who found in a fetra of Ali Effendi's a passage which entirely solved the difficulty. The ambassador accordingly sent a collection of these fetras to London for translation into English, and wrote a letter of thanks to the Sheikh-ulIslam. Oh! happy followers of Mahomet! Behold a nation like the English, which, although it has arrived at the highest pitch of civilization, is not able to decide a lawsuit by means of its own tribunals, but is compelled to have recourse to our holy laws, and translate them for the benefit of its own courts of justice! Such an incident can only have the effect of placing in their true light the perfection of our religious laws, of enhancing the reputation of Islamism and of doing us the highest honor." The English ambassador pronounces the story untrue. ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication. Communications on business matters should be addressed to the publishers. The Albany Law Journal. ALBANY, OCTOBER 6, 1877. CURRENT TOPICS. AFTER a period of thirty years during which ad edly come in even now, but the most unscrupulous ones will be kept out, and the few who get in will be comparatively powerless for harm. The changes which have taken place in the laws of this State in respect to admission to the bar since 1845 are somewhat remarkable. At the time of the adoption of the Constitution of 1846, a period of seven years' study was an indispensable prerequisite to entitle any one to be licensed as an attorney, and three years spent in active practice must then ensue before he could be permitted to assume the dignity of counselor at law. In 1846 there was a strong, popular feeling against all class distinction, and the constitutional convention of that year embodied the popular will in its work. It destroyed many political institutions that had undoubtedly outlived their usefulness, and had become positive evils. The old systems of practice; the separation of law and equity; the intermingling of the legislative and judicial branches were matters that called for reform. But the multitude demanded further changes. The judiciary were appointed and the popular voice could be heard but indirectly in the matter, so the convention made the judicial office elective. The lawyers were an influential body, and the long period of probation required rendered it impossible for the great majority of citizens to hope for admission to the bar, accordingly the bar was thrown open to "every male citizen of the age of twenty-one years, of good moral character, of the requisite qualifications of learning and ability." But this did not let in every one, and, of course, did not satisfy the popular demand; consequently, in 1847, the legislature enacted that any person of good moral character, although not admitted as torney, might act as such if specially authorized in writing by the party employing him or personally nominated in open court. But the pendulum now began to swing backward. The courts declared the act of 1847 unconstitutional, and no attempt was made to provide a substitute. Laws were made indeed authorizing the graduates of certain law schools to enter the bar without examination, but this was not in the direction of laxity in reference to admission to practice. In 1869 the Constitution was amended in respect to the judicial organization, and the clause restricting the qualification to age and general learning and ability, omitted. In 1871 the legislature authorized the Court of Appeals to ordain rules regulating admission, and in accordance with this authority, rules requiring a term of clerkship were promulgated. But graduates of law schools were excepted from the operation of these rules and this fact gave rise to considerable com mission to the bar of this State has been to a great extent a merely formal matter, the ancient requirement of a term of clerkship has been restored, and those who hereafter ask to come into the legal profession must give evidence that they are familiar not only with the theory of the law but that they have, at least, had an opportunity to learn something of the routine work which the attorney holds himself out as capable of performing. By the rules regulating admission to the bar, adopted by the Court of Appeals on the 28th ult., and which went into effect on the first day of the present month, three very important changes have been made. First. The examinations for admission, when not conducted by the court, are to be conducted by a committee of three lawyers of not less than seven years' standing, who are to be appointed as heretofore, but are to hold their positions for one year. Second. The requirement of clerkship in an office is applicable to every candidate, no exemption being made of those holding the diplomas of law schools. The regular period of clerkship is to be three years. To graduates of colleges one year allowance is to be made, and attendance at a law school will also be counted in estimating the time of clerkship; but no person can be admitted without out at least one year's service in an office. Third. The admission after three years' clerkship is only to the degree of attorney, two years' further study or practice and an additional examination being necessary to entitle to admission as a counselor. The effect of these alterations upon the character of the bar, though they will not immediately be perceptible, must be very great. That they will render it more learned, more honest, and more influential, there can be little doubt. That they will tend to separate it from the people to some extent and give it somewhat of its ancient exclusiveness, is also probable. But if faithfully carried out they must result in working a great change for the better, both as concerns the profession and the public. If the bar is honest and powerful, liberty and justice are safe, and it will be honest and powerful so long as the barriers which surround it are sufficient to prevent the incoming of the great multitude of indi-plaint. The new Code (§§ 56 to 60) gives authority viduals who would enter it merely for the purpose of making money. Some of this class will undoubt VOL. 16.- No. 14. an at for the present rules, which will, we are confident, meet the approval of the profession generally. Among the most interesting papers read before the recent Antwerp Congress were those relating to the Egyptian International Tribunals which were opened in 1876. As will be remembered in each of the courts of first instance, under this system, three foreign judges sit with two natives, and in the appellate courts five foreigners are associated with three natives. Their jurisdiction is only of a civil or commercial nature, and criminal questions are determined under the old system. All civil and commercial questions between native and native, or foreigner and foreigner of the same nationality, are also outside the new jurisdiction. The countries represented in the magistracy comprise the United States, England, Germany, Austria, Russia, Italy, Belgium, Holland, Denmark, Sweden and Greece. The Codes used are substantially those of France. The reputation of the tribunals for justice and promptness is best evidenced by the fact that natives assign claims against other natives to foreigners in order to have suits brought before them. The only trouble which has been experienced by the courts is the difficulty of carrying out judgments affecting the personal interests of the Khedive and his family. In other respects they have been decidedly successful. In an article appearing in a recent number of the Nineteenth Century, an English magazine, Sir J. F. Stephen makes some very valuable suggestions in regard to codification. "The great object," says he, "still to be effected is the improvement of the form of the law by its condensation and rearrangement. This is essentially a literary problem though it is not usually regarded in that light, but till it is so regarded and till systematic and organized efforts are made for its solution as such, I do not believe that codification, except in some isolated subjects, will be possible, and I doubt whether an attempt to codify other parts of the law would be of much real use." As a first step to the accomplishment of the result aimed at, he proposes the publication of a series of reports which shall stand to the revised reports in the same relation in which the several statutes stand to the body of statute law, and which should contain that part of the existing reports which is still living law, the obsolete, overruled and unauthoritative decisions being omitted, and the reports being shortened by the omission of useless matter. He would have the cases reported classified according to their subject-matter. To do this work he suggests the appointment of a body similar to the Council of Law Reporting, to be named the Council of Legal Literature. The plan of Mr. Stephen has this very important advantage, that the work done by the proposed council would be of great value to the profession even if a code should not result therefrom. The enormous amount of litigation in New York city is shown by the calendars of the courts at the opening of the autumn sessions. The General Term of the Supreme Court begins with 327 cases, the circuits with 2,475 and one of the Special Terms with 250 cases. It is said that the aggregate number of cases awaiting trial or argument in the various branches of this court, reach nearly 7,000, of which about 5,000 are old, and 2,000 new. In the Superior Court, on the jury calendar alone there are 780 cases. Then there are the Federal courts, with a large number of cases waiting, the Court of Common Pleas, the Surrogate's Court, whose pending proceedings no man can number, and last, but not least in business, the Marine Court, which starts off with 3,000 cases on its trial calendar. This vast aggregate of business would indicate that the courts in New York city were not liable to be idle during the coming year, and also that litigation is very popular there. As a very considerable proportion of the suits awaiting trial have been commenced since the courts adjourned for their summer vacations, the large accumulation of cases is an evidence that the courts are believed to be honest, that adjudications are promptly made and that the expense of going to law is not unreasonable. And we presume the facts will accord with these indications. The Central Law Journal, in commenting upon certain remarks lately made by a New York judge, condemning the allowance of excessive legal fees, hints that a judicial officer who is paid a large annual salary is not in a position to animadvert upon the allowances usually made to referees and counsel, which, as a rule, amount to much less than a judge in New York receives for services requiring no greater ability or learning, and involving the expenditure of no more time or labor. There is, undoubtedly, something to be said on both sides of the question, though the extravagant allowances frequently made to referees, who perform little or no service, has long been a scandal to the profession in New York city. NOTES OF CASES. IN the case of Wassum v. Feeney, 121 Mass. 93, it is held that, although an infant is disqualified from serving as a juror, yet, if his name is on the list of jurors returned and impaneled, his serving as a juror does not entitle a party against whom a verdict has been rendered to have the verdict set aside, although he was ignorant of the fact of minority until after the verdict. This is in accordance with the general rule that, when a party has had an opportunity of challenge, no disqualification of a juror entitles him to a new trial after verdict, which has been applied where the disqualification was (N. S.) 713, which was an action of assault for taking personal property forcibly from plaintiff's hands. See, also, Harvey v. Bridges, 14 M. & W. 437; Davis v. Burrill, 10 C. B. 821, 825. See as overruling Sampson v. Henry, 11 Pick. 379, upon the question of asHol-sault, Eames v. Prentice, 8 Cush. 337; Curtis v. Galvin, 1 Allen, 215. Also, Mugford v. Richardson, 6 id. 76; Winter v. Stevens, 9 id. 526. Other American decisions of weight sustain the ruling in the principal case. Jackson v. Farmer, 9 Wend. 201; Overdeer v. Lewis, 1 W. & S. 90; Kellam v. Jamson, 17 Penn. St. 467; Stearns v. Sampson, 59 Me. 568; Sterling v. Warden, 51 N. H. 217. See, also, 4 Am. Law Rev. 429, where the different decisions upon the subject are carefully examined, and 4 Kent's Com. (12th ed.) 118, note 1, and cases cited. interest or relationship. Jeffries v. Randall, 14 Mass. | overruled, however, in Blades v. Higgs, 10 C. B. 205; Woodward v. Deane, 113 id. 297. It was even applied in a capital case, where the juror was not of the county or vicinage, as required by the Constitution. Anonymous, cited, 1 Pick. 41, 42. So, also, where the juror was disqualified by alienage, and the fact was not known until after verdict. lingsworth v. Duane, 4 Dall. 353; State v. Quarrel, 2 Bay 150; Presbury v. Commonwealth, 9 Dana, 203; Rex v. Sutton, 8 B. & C. 417. In the case of Chelsea Water-Works Co., 10 Exch. 731, Baron Parke said: "In the case of a trial by a jury de medietate linguae, which, by the 47th section of the jury act, is expressly reserved to an alien, he may not know whether proper persons are on a jury, yet, if he was found guilty and sentenced to death, the verdict would not be set aside because he was tried by improper persons, for he ought to have challenged them." See, also, Selleck v. Sugar Hollow T. Co., 13 Conn. 453; Greenup v. Stoker, 3 Gilm. 202. See, however, as maintaining a different doctrine, State v. Babcock, 1 Conn. 401; Guykowshi v. People, 1 Scam. 476; Briggs v. Georgia, 15 Vt. 61. In the latter case it was held that the want of a freehold qualification in a juror unknown at the time of the trial, was ground for setting aside a verdict. In Mann v. Fairlee, 44 Vt. 672, the summoning of a juror who was of a class of citizens from which jurors might be selected, but whose name was not in the jury box, was held ground for a new trial. See, also, The King v. Tremaine, 7 D. & R. 684; 5 B. & C. 254. But see, as sustaining the principal case, Page v. Danvers, 7 Metc. 326; Case of a Juryman, 12 East, 231, note; Hill v. Yates, id. 229. "I am Rex v. Sutton, supra, Lord Tenterden said: not aware that a new trial has ever been granted on the ground that a juror was liable to be challenged if the party had an opportunity of making the challenge." In This In the case of Low v. Elwell, 121 Mass. 309, it is held that the owner of land who forcibly enters thereon and ejects, without unnecessary force, a tenant at sufferance, who has had reasonable notice to quit, is not liable to an action for assault. decision is probably supported by the recent English cases, though there are authorities in the other direction. In Hillary v. Gay, 6 C. & P. 284, it was held that if the landlord, after the expiration of the tenancy, by force puts the tenant's wife and furniture into the street, he is liable to an action quare clausum fregit. In Newton v. Harland, 1 Man. & Gr. 644, it was held that under such circumstances the landlord was liable to an action of trespass for assault and battery. See, also, as supporting a similar doctrine, Dustin v. Cowdry, 23 Vt. 631; Stearns v. Sampson, 59 Me. 568; Page v. DePuy, 40 Ill. 506; Reeder v. Purdy, 41 id. 279; Sampson v. Henry, 11 Pick. 379, and 13 id. 76; Larken v. Avery, 23 Conn. 304. The case of Newton v. Harland, supra, was A somewhat novel question was involved in the case of Rice v. Coolidge, 121 Mass. 393. The declaration alleged that in a suit for divorce brought in Iowa, between persons not parties to this action, defendant suborned witnesses to falsely testify that a party to that suit had committed adultery with plaintiff in this, and did other acts in connection, having the effect to defame and with the purpose of defaming plaintiff. Upon demurrer to the declaration, it was held that the action was maintainable. The general rule in England is, that judges, counsel, parties and witnesses are absolutely exempted from liability to an action for defamatory words published in the course of judicial proceedings. Henderson v. Broomhead, 4 H. & N. 569; Revis v. Smith, 18 C. B. 126; Dawkins v. Rokeby, L. R., 8 Q. B. 255; Seaman v. Nethercliff, L. R., 1 C. P. D. 540. This qualification of the doctrine exists in this country in respect to parties, counsel and witnesses, that in order to be privileged, their statements made in the course of an action must be pertinent and material to the case. White v. Carrol, 42 N. Y. 161; 1 Am. 503; Smith v. Howard, 28 Iowa, 51; Barnes v. McCrate, 32 Me. 442; Kidder v. Parkhurst, 3 Allen, 393; Hoar v. Wood, 3 Metc. 193. The court, in the principal case, decides, however, that the privilege does not extend beyond the classes named. Thus, if a witness, at the instigation of a party, swears to a defamatory falsehood, and a counsel comments on it, knowing it to be false, the person injured has no action against either counsel, witness or party, but if a stranger to the suit instigates such false swearing he is liable. In the cases of Bostwick v. Lewis, 2 Day, 447, and Smith v. Lewis, 3 Johns. 157, Lewis brought an action in Connecticut against several defendants and prevailed. Afterward, Bostwick, one of the defendants in the original action, brought suit in Connecticut against Lewis for suborning a witness in that action; and Smith, another defendant, brought a similar action in New York. It was held, in each case, that the action could not be maintained because, as was said by Kent, J., it was an attempt to overhaul the merits of a former suit." See, also, to the same effect, Dunlop v. Glidden, 31 Me. 435. MUCH DEAD-LETTER LAWS. UCH reproach is justly thrown upon the administration of justice by the failure to execute the laws. Complaints arise on every hand that crime is rampant and increasing, and that the laws are not stringent enough. The difficulty arises not so much from want or inadequacy of legislation, as from the indifference of society and the consequent laxity of execution of existing laws. The community seems to satisfy itself by enacting wholesome statutes, and after that quietly disregarding them. There is a formalism in law as in morals and religion. Francis the First of France built a connecting passage between the apartments of his mistress and his oratory, and on his return from his nocturnal visits to his favorite was wont to spend a few moments on his knees in prayer. As the amorous monarch deemed that his sin was atoned by his devotion, so society compounds for the commission of many offenses by a vigorous statutory denunciation of them. Much of the attention of legislators and magistrates has been devoted to the endeavor to avert the most common and the most inevitable of events the death of human beings. A very interesting chapter might be made of the subjects of this branch of legislation, and a review of the infinite minuteness of detail which the law has descended to, and the inquisitorial supervision which it has adopted, in the attempt to make human beings careful and considerate of the lives of others, and even of their own. It would seem as if a very small approximation toward safety had been the result of all this thought and care. The disasters of the Ashtabula bridge and the Brooklyn theater were only rather unusually emphatic declarations of the insuperable truth, that it is vain to struggle against the dread forces of nature, when allied with the parsimony, ignorance, indifference, carelessness, and recklessness of mankind. Our laws regulating the construction and care of steam-boilers, bridges, and buildings, public and private; the conduct of navigation and public travel; the manufacture and care of explosive substances; the sale of alcoholic liquors and poisons; the management of infectious diseases; the custody of dangerous animals; the practice of medicine; and supervising many other similar mat- all these cannot restrain frost, flame, pestilence, lightning, tempest and hidden vapors, nor render mankind intelligent, vigilant and consid ters erate. Human life is not always safe from the moral indifference of mankind. Our statute book contains a stringent law against duelling, including the case of persons going out of the State for the purpose of fighting a duel; and yet it has recently been demonstrated that persons may with impunity disobey this law without even exciting an attempt to enforce its provisions. It may be urged that in the instance referred to the inaction of the public authorities was in great measure attributable to the | absurdly bloodless event of the combat, but that is really a very slender excuse. Of a still graver complexion is the case of one who with impunity kills another upon the pretext of injured honor. This is the most serious example of a dead-letter law. Both human and divine law enact, "thou shalt not kill;" but if a man can bring himself to believe, or at least to say, that another has seduced his wife or his sister or his daughter, he may safely kill him unwarned and at sight. The most extraordinary feature of this case is that the act which constitutes the excuse for the killing is not one which our law forbids. Society seems to have left the punishment of it to individual caprice and revenge. It is not a little remarkable that the very laws to infractions of which the magistrate is required particularly to draw the attention of the grand jury in every charge to that body, namely, the laws against usury, bribery, lotteries, extortion, violations of excise provisions, and circulation of obscene literature, are the most prominent examples of dead-letter laws. The amount of money loaned on legal interest is less than that for which usury is exacted. Not an election is held, from highest to lowest, at which candidates do not openly and by wholesale buy votes. Lotteries, and the sale of lottery tickets, are winked at even in the cause of religion, as at church fairs. The excise laws are defiantly violated, especially on Sundays. Obscene literature is common, and every picture shop and news-room has semi-obscene prints prominently exposed to sale. Once in a while the judge lays special emphasis in his charge to the grand jury on these things, and this uniformly amuses his audience. When he speaks of extortion and bribery the lawyers wink at the sheriff, district attorney and county clerk, who have all notoriously been guilty of bribery at the last election, and of whom the first charges for hundreds of untraveled miles, and the last for hundreds of unwritten folios. There is always within hearing some note-shaver or mortgage-smasher, and some hotel or saloon keeper who keeps open bar on Sunday. But cui bono? The persons who ought to tremble are as unconcerned as Ralph Waldo Emerson was about the minister's prayer. Some years ago the Yankee philosopher had delivered an oration before a literary society of Middlebury College, in the college chapel. His address was succeeded by a prayer from an oldfashioned clergyman, who did not approve of Mr. Emerson's ideas, and who prayed among other things that "the Lord would deliver them from ever hearing any more such transcendental nonsense as they had just listened to from that sacred desk." After the meeting was out, Mr. Emerson inquired the clergyman's name, and on being informed, quietly remarked, "he seems a very conscientious, plain-spoken man." So the officials aforesaid, and |