was never in your possession; nor yet can you avail yourself of the fraudulent Baillee Act. Equipped at your expense, and indignantly defying your vengeance, Scelestus now repairs to a restaurant, and orders a repast, but will he pay? To the repast he does that full justice which cannot be done to him but he will not pay. Yet, bid not his hat be seized. | He would be justified in assaulting that "slip-shod waiter, lank and sour," doing no more than it would be necessary for a big man to do to a little man in order to regain his head-gear. Let not the irate proprietor call the constable. That functionary would have no jurisdiction to interfere, and, if he did, instead of leaving the proprietor to his so-called civil remedy, Scelestus would have an action for false imprisonment. You observe that he has taken care not to have with him a companion. Had he had a friend to lunch with him, they might have been prosecuted for a conspiracy to obtain the viands fraudulently, with intent not to pay, which but slight evidence would have established, for a jury are apt to draw a shrewd inference from such facts

"This is a notable couple and have met But for some secret knavery."

--

The Tanner of Tyburn. But Scelestus stood alone. Solitary, he is absolutely secure. Simplex, indeed, "would starve on good roast beef ere he would look so like a thief," but not so Sir Knave. Nothing will induce him to go through the necessary form of payment; but imperturbably criticizing the exorbitancy of the bill, he is good enough to observe with Timon

"Nothing can you steal But thieves do lose it."

Skilled as is Scelestus in the knowledge of the frayed meshes and weak places of the law, his career of chartered chicane might supply the substance of a chapter, no less diverting than instructive. "To give you an idea of my ill fortune," said Mr. Job Johnson, "know that I have been taken up twenty-three times on suspicion of my perseverance; know that twenty-three times I have been taken up justly; and of my ingenuity, know that I have been twenty-three times let off, because there was not a tittle of legal evidence against me." But the genius of a Scelestus develops superior refinements in the art of appropriation "convey' the wise it call "-scientifically calculated, by the very aid of the law to secure infallible impunity. A life so typified might, moreover, not be unsignalized by exciting and romantic incident. But not in those supreme triumphs o'er the law, to which "all — all look with reverential awe," should a Scelestus commonly display his formidable power. Though, when he chooses, he can startle society by the chartered audacity of his ruthless extortion, chiefly does he luxuriate in the more sequestered perpetration of those peppercorn piccadillos of which justice — her vision bandaged by precedent and prescription takes no cognizance. And so shall he turn to good

account the recent decision of Threlfall v. Borwitch, vide ante, p. 418. Living as he does, upon nothing-ayear, with more satisfaction to himself than to his neighbors, he will now take his ease at his inn, hire horses, carriages, pianos, and quit without acquitting the landlord's bill; while the honest inn-keeper will recoup himself by means of his lien, which, according to Threlfall v. Borwitch, extends over the hired chattels of innocent third parties. Licitis perimus omnes. Herein Scelestus shall encounter but slight impediment.

To him, living and trusted in an establishment of a superior class, the goods will be only too placidly lent on hire; to him, possessing so apt a security for the amount of a bill, with which he has no occasion to quarrel, "mine host" will only too astutely offer every accommodation. Need we say that he is, moreover, erudite exceedingly in the law of larceny, and emphatically concurs with Pollock, C. B., that "it may be reasonably said to be no violation of a social duty for a man to pick up what he finds." It is remarkable that he invariably finds goods under such circumstances that it would reasonably be supposed that they were lost, and that the owner could not be found. He can show you where it was held that a man could not be convicted who found a bank

note on the high road, and changed it, and appropriated the proceeds the next day, although he had then heard who the owner was, and that he had dropped it by accident; and where a like decision was made, although the note bore the owner's name, and the loss was at once advertised. He is careful, however, to ignore articles left in a hackney carriage, or found in the pocket of a coat sent to a tailor, and, like Sancho Panza, does not choose to steal a dog with a collar about his neck; and it is a high compliment to Cervantes that, in his opinion, the law upon this subject will be found most correctly defined in Don Quixote, v. 1, b. 3, ch. 9. Moreover, although he confesses to a strong sympathy with a certain point of view, he eschews ventures into the regions of moot questions, which he exemplifies by the case put by Martin, B.: "Suppose a man take an umbrella in mistake for his own, and afterward, on discovering his mistake and finding out the owner by the name on it, determined to keep it as his own - that could not be stealing." But, says Parke, B.: "As at present advised, I am not disposed to say that it would not." And Pollock, C. B.: "I am inclined to think that it would." We have presented, indeed, but a few minor instances among the many modes adopted by our vicious student, or at his command, in order to pervert the law to his own purpose. It was Heine who wrote, describing the Old Bailey, "every thing seemed so fearfully vexatious, so insanely serious! The people present looked as though spiders were creeping over their shy and fearful faces." But Scelestus, too, is present you shall know him by the astucity of those prominent cheek-bones, by the

secretiveness of that receding brow. Insanely serious, but with a method in his madness, for, in that portentious dissecting theatre, he perfects him in the furtive mysteries of his craft. Verily, not without excuse was Caligula, of whom it is said that he wrote his laws in small letters, and hung them on high pillars; although Dio Cassius will have it that his object was to ensnare the people. Haply, though in quite otherwise, a Scelestus, even he also, may be taken in the toils. Be it that, confident in the considered decision of the Irish judges, holding that a certain act is not criminal, he commits that act in England; the English judges refuse to follow the Irish decision, they are of a different opinion, they hold that the act is bigamy. This, too, have we seen under the

sun.

Now, Scelestus we will always have with us. The inveterate imperfection of legislation is his charter; the imprescience and forgetfulness of legislators confer the opportunity of his chicane. Revise, amend, explain, yet he is still possible. He abides in the forgotten; he clothes him in the unforeseen. A flaw is declaratory of his right, an obscurity is his enabling provision; and he will live all the year round upon a casus omissus. The expansiveness of the common law cannot abate, neither can codes or digests obliterate him. There is but one way to abolish such rogues abolish fools.

CURRENT TOPICS.

Another evidence of the proverbial incompleteness of our legislation has just been brought to light in the temporary check which the new system of postal cards has received. The attorney-general has given his opinion to the post-master general, deciding that the post-office department cannot make a contract for the manufacture of postal cards, proposals for which have been coming in rapidly, until congress makes a specific appropriation to pay for them. By the postal-card bill the post-master general was authorized to prepare and furnish postal cards, but when this bill passed, the postal appropriation bill had already been acted upon and contained no provision for that purpose. The result is that one of the most important measures of the last congress, and one which that body spent much time upon, must await its practical fulfillment until the next session.

The extradition of criminals is receiving a large share of the attention of the British government, as may be seen by the fact that it has consummated, or is about to consummate, several treaties with foreign powers upon the subject. That government has been in negotiations with Germany, Belgium, Denmark, Holland, Netherlands, Austria, Italy and Spain lately, and in each instance with favorable results, except, perhaps, in the case of Spain which has too many

irons in the fire to attend to treaty-making. It will be remembered that the United States government was in communication with Belgium with reference to the establishment of an extradition treaty during 1868 and 1869, but that the negotiations terminated unsatisfactorily. The cause of the disagreement between the two governments turned upon the question of the mutual rendition of subjects of the two countries- the Belgian government being averse to including in the proposed treaty a stipulation for giving up Belgian subjects who have committed crimes in the United States, while the United States government desired that all criminals, without regard to nationality, committing crimes in one country, and escaping to the other, should be delivered up on application. In the present state of international law upon the subject of extradition, it is very desirable that one government should make positive agreements with all the leading powers with which it has not done so already.

Our contemporary, the Pittsburg Law and Land

Advisor, in being born into the family of law papers, seems to have fallen into sanguine but precise hands. It was christened the Law Adviser, it says, because its design is to "popularize law, that they who follow its teachings will be legally pronounced correct in whatever position it leads them into at bar." Our contemporary indulges in the following critical observations, explaining why it was named Law, instead of Legal, Adviser: "There are papers named Legal News, Legal Journal, Legal Gazette, Legal Intelligencer; but they are improperly named. * * * The above named publications should be Law News, Law Journal, Law Gazette, Law Intelligencer; for should papers by any other names print the very same mattor, they would be just as legal." Now, while we are fortunate enough to have chosen the appellative Law Journal and so to have escaped the force of this criticism, we are inclined to feel sorry for and sympathize with those of our contemporaries who are thus incorrectly named and thus bluntly told of it. For it was not the knowledge of the incorrectness or grammatical inadmissibility of the term Legal Journal that led us to avoid it and choose the term Law Journal we did not know before that the word "legal" did not mean pertaining to, or (as Webster has it) relating to the law; and that a publication presenting matter relating to the law could not be properly called a legal paper or periodical.

The rumored resignation of Lord Chancellor Hatherley, which proves to be quite premature, illustrates the over-enterprise of modern journalism. There was sufficient probability of the event to give it the bare semblance of actuality. The Lord Chancellor's eyesight is infirm, and some of his arduous and multifarious duties are performed with difficulty. But there was no other foundation to the announcement. The

position of an official, who is falsely reputed to have vacated his office, is somewhat analogous to that of a missing man, who, alive and well, reads his own obituary in the newspapers on his return. The official thus bereft of his authority, and stripped of his gown by a restless and excessively enterprising press, looks curiously around to see and find his official career criticized, condemned, praised, misrepresented, and himself congratulated, pitied, censured, advised. But the rumored resignation of Lord Hatherly has not elicited any comments which can have pained his noble and conscientious nature. For while his critics assert that he is not a sturdy law reformer, to which character he doubtless laid no claim, they universally admit that he possesses a character of unsurpassed sweetness, simplicity and dignity, and that he has added lustre, grace and grandeur to the woolsack.

A case came before her Britannic majesty's consular court at Yokohoma, Japan, which ought to excite the indignation of all the followers of Mr. Bergh, notwithstanding its remoteness. The accused had attended an exhibition of hawking; and, to render more secure the chance of catching a pigeon by the hawk, he directed the operation of having the pigeon's eyelids sewn up. This was charged to be contrary to the provisions of the act of parliament for the prevention of cruelty to animals. His lordship ruled that the statute relied upon by the prosecution was not applicable, as he did not think that the passing of a thread through a pigeon's eyelid, to prevent its seeing the hawk, was in itself cruel, and it may have been called merciful and could not be twisted so as to come within the charge of "cruelly abusing and torturing the bird." The statute had not put a limit to hawking. Personally he reprobated hawking, and the practice now complained of, but he would have to dismiss the case as not coming within the statute.

The summer is waning and with it the long vacation of the lawyers. During this period of recreation for bench and bar, litigation has slumbered and justice has temporized; while many an irate personage, who would have plunged headlong into a law suit, has been led to think further, his lawyer being out of town, and finally to forego the trials and vexations of a legal campaign. Law offices have been closed or occupied by indolent and heat-subdued clerks; chambers have been forsaken by the judge, who has taken his valise, his summer clothes and his authority to a watering place or a rustic retreat; and police courts alone have thrived and been thronged. And soon the member of the profession, having danced, drank and studied human nature at Saratoga; bathed, flirted and philosophised at Long Branch; talked, walked and read metaphysics at Newport; fished, meditated and communed with Neptune on the ocean isles, or wandered, dreamed and wrote Quarterly Review arti

cles in a quiet country town, will come back renovated and strengthened for the laborious and continuous duties of the law season.

The approaching constitutional convention in Pennsylvania is attracting much attention within the boundaries of that State, and is also looked forward to with interest by the neighboring States. This will be Pennsylvania's opportunity, for it is rare that a State with institutions so stable, with conditions so prosperous and without military revolution or the exigencies of a great political convulsion, determines upon a revision and re-organization of its fundamental law and institutions. But this is the era of reform par excellence, and peaceful revolutions and modifications of constitutions are not now uncommon in this country nor unknown, even in the conventional and staid transatlantic nations. The people of the commonwealth of Pennsylvania are doubtless prepared for the exemplification and embodiment of some of the principles of law reform, which the thought and discussion of the last quarter of a century have brought out prominently on both sides of the Atlantic. The jury system, the judicial system and the system of preparation for the bar should be thoroughly considered and modified in accordance with the demands of our advanced civil

ization, and made to conform to the requirements of that "perfected reason" which is said to be law itself, and which changes with the augmentation and the development of human intelligence. The department of positive law-of legislation, should also be attended to; for that is apt, in this country, to be the most defective and incoherent.

NOTES OF CASES.

In three recent cases the maxim, sic utere tuo ut alienum non lædas, has been considered. Jones v. Wagner, 5 Am. Rep. 385 (66 Penn. St. 429), was a case in which by partition the surface of land was severed from the underlying mineral, and the parts were allotted to the heirs without any limitation as to removal. The court held that the upper and under-ground estates being several, they were governed by the same maxim which limits the use of property otherwise situated, viz.: Sic utere tuo, etc., and that the owner of the mineral could not remove it without leaving sufficient support for the surface. In Doupe v. Gesnir, 45 N. Y. 119 (to appear in 6 Am. Rep.), it appeared that plaintiff, a tenant, occupied the lower part of a building, and another tenant the upper part. By fire the roof was consumed and the upper portion rendered untenable, whereby the possession of plaintiff was disturbed and his property injured by leakage from above. The landlord, the defendant, commenced to repair the roof, but, as plaintiff alleged, the repairs were unreasonable dy

layed. It was not claimed that if the plaintiff had been lessee of the entire building the landlord would have been bound to repair, there being no covenant on his part so to do. But it was claimed that the duty arose from the fact that plaintiff's premises were rendered untenable by reason of damage to a part of the building not occupied by him, and that the landlord, as owner of the part of the building not occupied by the plaintiff, was bound, according to the maxim sic utere tuo, etc., to keep his own part of the premises in such condition as to prevent injury to plaintiff's premises. But the court held, that in the absence of contract and without reference to the special relations of the parties, there was no principle upon which a man can be held bound to erect any structure for the purpose of protecting his neighbor from the inclemency of the weather, or to replace any structure upon his own premises which has been destroyed, because, while it existed, it afforded such protection. In First National Bank of Greenfield v. Marrietta and Cincinnati R. R. Co., 5 Am. Rep. (20 Ohio St. 259) it appeared that plaintiff's agent was intrusted with $20,000 in currency, to carry from Marrietta to Cincinnati, and while the agent was a passenger on the defendant company's railroad with the money on his person an accident occurred, the car in which the agent was took fire and the money was destroyed. In an action by plaintiff to recover for the destruction of the money, one of the main grounds of the prosecution was that plaintiff's property, being at the time of its destruction where it was lawfully, and being without any fault of plaintiff, destroyed by the negligence of the defendant in the management of its own property, a right of action accrues for the damage, by virtue of the maxim, sic utere tuo, etc. But the court held, that the principle embodied in the maxim was subordinate to the relation of carrier and passenger subsisting between the parties, and that plaintiff could not recover under the maxim, the defendant not being charged with the willful destruction of the money nor with such gross negligence as would approximate to

COURT OF APPEALS ABSTRACT. ADMINISTRATOR. See Husband and wife.

APPEAL.

Appeal from order of general term affirming order denying motion to vacate judgment. Held, that, when a court has acquired jurisdiction of the subjectmatter of an action, it has power to render judgment, and if in this any error is committed, the judgment is voidable, not void, and could be reversed upon appeal, which is the proper remedy.

A party only has a legal right to move to have a judgment set aside, or vacated when it is void.

In a case, therefore, where the court below had jurisdiction, an order denying motion to set aside or vacate a judgment is not appealable to this court. Schaettler v. Gardiner. Opinion by Grover, J.

BANKER. See Principal and Agent.

BILL OF PARTICULARS.

Appeal from an order of the general term affirming an order of special term striking out certain items of plaintiff's bill of particulars. Held, that the office of a bill of particulars is to apprise the defendant of the items which the plaintiff intends to prove upon the trial, and to restrict his proofs to the matters specified. The merits of the case cannot be inquired into upon a motion for such a bill, nor can the sufficiency of the bill be determined by the allegations of the answer. The bill of particulars certainly need not state more than the plaintiff is bound to prove. If the specifications do not accord with the facts, or if they omit matters essential to the plaintiff's case, the defendant can take advantage of that upon the trial. Matthews v. Hubbard et al. Opinion by Rapallo, J.

COMMON CARRIER.

Action brought to recover for injuries sustained by plaintiff while a passenger upon defendant's steamboat, occasioned by the explosion of a boiler. The following conclusions were held: An appellate court will not seize hold of isolated portions of a charge for that purpose. If the charge, as a whole, conveyed to the jury the correct rule of law on a given question, the judgment will not be reversed. If the language employed is capable of different constructions, that construction will be adopted which will lead to an affirmance of the judgment, unless it fairly appears that the jury were, or at least might have been, misled. A carrier of passengers, especially in vehicles and conveyances propelled by steam, where the consequences of an accident from defective machinery are almost certainly fatal to human life, is bound to use every precaution within human skill, care and foresight in ascertaining and adopting new improvements to secure additional protection. The fact that the manufacturers of the machinery used did every thing which is usually done by the most skillful boiler makers, was not conclusive upon the question of the degree of care and foresight required. The burden of establishing negligence was upon the plaintiff, but where his evidence raises a presumption of negligence, by showing an accident that would not ordinarily happen without negligence, the burden is upon defendant to show that it did not occur through any negligence on its part. The act of congress in reference to passengers upon steamboats (Brightley's Digest, 1850), provides additional safeguards to those before imposed by law. The

liability of owners is not, in any manner, restricted or limited by that act. A failure to comply with its provisions would subject the party to its penalties, and also to a charge of negligence; but it does not operate to take away any common-law liability or remedy. The provisions of this statute are not in conflict with the common law; but if they were, rules of evidence prescribed by congress are not binding upon State courts.

In general, a party is entitled to examine his own witnesses upon material facts, and should not be precluded by answers made upon the examination of his adversary; but this, like many other rules relating to the time, manner and order of receiving evidence upon the trial, is a matter of discretion, and is not a cause for the reversal of the judgment, unless it can be seen that the party has been injured or prejudiced.

After the testimony is closed, it is discretionary with the court, whether to open the case or not, to receive the additional evidence, and the decision is not reviewable here. Exemplary damages may be allowed in actions, based upon negligence, where such negligence is so gross and culpable as to show utter recklessness. Corporations are not exempt from the infliction of punitive damages in a proper case. After the jury had retired, they returned into court for further instructions, the judge remarked that he thought there was not much difficulty in arriving at a conclusion, and that if they did not agree, he should feel it to be his duty to keep them together until Monday (it being then Thursday). Held, that it was not error; the judge expressed no opinion on the merits, and gave no intimation of what his opinion was, but only that he thought it was not a difficult case to decide. As to the other portion of the remark, it was a matter of discretion and not reviewable upon a bill of exceptions; for an abuse in the exercise of this discretion, relief may be had by a motion to set aside the verdict. Caldwell v. New Jersey Steamboat Co. Opinion by Church, Ch. J.

CONSTITUTIONAL LAW.

Defendant was tried and convicted upon an indictment found in the court of oyer and terminer of the city of New York held by a justice of the supreme court alone. Held, since the adoption of the constitution of 1846, the organization of courts of oyer and terminer is with the legislature, with the single exception that a justice of the supreme court must be a member of, and preside in, the court. The legislature may associate other judicial officers with the presiding justice, or provide for commissioners to sit with him, or allow him to preside without assistants or associates, making him the sole judge of the court.

The word "preside," as used in Constitution, 1846, article 6, section 6, and in section 7 of same article, as amended in 1869, does not necessarily imply that a judge must have associates.

A statute should not be so construed as to work a public mischief, unless required by words of the most explicit and unequivocal import. In the construction of statutes effect must be given to the intent of the legislature whenever it can be discerned, though such construction seem contrary to the letter of the statute. Words, absolute of themselves, and language the most broad and comprehensive, may be qualified and restricted by reference to other parts of the same statute, to other acts in pari materia, passed before or after, or to the existing circumstances and facts to which they

relate. So, also, cotemporaneous legislation, although not precisely in pari materia, may be referred to for the same purpose. Statutes enacted at the same session of the legislature should receive a construction, if possible, which will give effect to each. A clause in a statute purporting to repeal other statutes is subject to the same rules of interpretation as other enactments, and the intent must prevail over literal interpretation. One part of an act of the legislature may be referred to in aid of the interpretation of other parts of the same act.

Under the foregoing rules, held, that those portions of the acts of 1853 and 1857 (chap. 217 and 352, Laws of 1853, and chap. 446, Laws of 1857), amending the charter of the city of New York, permitting courts of oyer and terminer in and for the city of New York, to be held by a justice of the supreme court alone, were not repealed by the general repealing clause in the "act to reorganize the local government of the city of New York." § 120, chap. 137, Laws of 1870.

The rule that every reasonable doubt upon any question of law or fact bearing upon the guilt or innocence of the accused should be solved in his favor, does not apply to a question as to the jurisdiction of the court. Doubts as to jurisdiction may, in a case like this, be solved in favor of the tribunal exercising it, unless by so doing some established rule of law will be palpably violated.

The provisions of the judiciary act of 1848 (chap. 280, Laws of 1847) organizing courts of oyer and terminer throughout the State, was not superseded by the Code of 1848. The provisions of section 24 of that act, and section 17 of the Code substituted therefor, had no relation to the organization and composition of the several courts, but simply made provision for the apportionment of the business among the several justices of the supreme court, and an assignment of the duties of each, and the designation of the time and place for holding the courts, which the law required should be held. Smith v. The People. Opinion by Allen, J.

See Judiciary.

CONTRACT. See Executors.

COUNTERCLAIM.

Appeal from order of general term affirming order striking out defendant's counterclaim as irrelevant. The action was to recover balance claimed to be due for the purchase of certain premises. A counterclaim was set up by defendant, which alleged damages for the non-delivery of possession of the premises at the time agreed, and for the removal of certain fixtures, which, by the terms of the agreement, were purchased with the property. Held, that under section 166 of the Code a counterclaim cannot be stricken out as irrelevant. If there is a defect in the counterclaim it must be reached by demurrer, or by motion under section 160 to make it more definite and certain. Per curiam. Fettretch v. McKay.

DAMAGES. See Common Carrier.

ELECTION. See Judiciary.

ENTICING AWAY. See Parent and Child.