AT

BAR ASSOCIATION MEETINGS.

Ta meeting of the Executive Committee for the Eighth Judicial District of the New York State Bar Association, held at the office of Messrs. Lanning & Willett, on the 28th day of December, 1876, D. H. Bolles was appointed Chairman, H. A. Childs, Secretary. On motion of Mr. Willett, it was

Resolved, That a convention, composed of three delegated members of the bar in each assembly district within the Eighth Judicial District, meet at the rooms of the Bar Association of Buffalo, in the city of Buffalo, on the 28th day of March, 1877, at 2 o'clock in the afternoon, for the purpose of determining the expediency of establishing a bar association in each of the several counties of the Judicial District, and also of organizing a bar association of the District, as auxiliary to the State Association.

D. H. BOLLES, Chairman.

H. A. CHILDS, Secretary.

The annual meeting of the New York City Bar Association was held on the evening of the 9th inst., and was largely attended. Reports of officers showed a membership of 708, and expenditures during the year of $17,390 for general purposes and $4,805.46 for the library, which now contains 10,308 volumes. The President, William M. Evarts, stated that he had presented the request of the Association to the Judiciary Committee of the Senate, that the United States publish the decisions of the United States Supreme Court. The Committee on Amendment of the Law reported that they had considered the subject of punishing trustees for defalcations. In connection with a report as to William C. Barrett, the subject of criminal punishment of defalcations by attorneys was referred to the committee, who were requested to report at an early day. The same committee recommended the appointment of two Associate United States Circuit Judges for this Circuit, and were directed by the Association to take steps to present the subject to Congress.

The following officers were elected: President — William M. Evarts; Vice-Presidents - Samuel J. Tilden, Charles W. Sandford, James Emott, William Mitchell, Charles Tracy; Recording Secretary - Mason Young; Corresponding Secretary-William Allen Butler; Treasurer-Edward Mitchell: Executive Committee-Edward S. Van Winkle, Stephen P. Nash, James C. Carter, Joseph Larocque, Julien T. Davies; Committee on Admissions - Charles B. Moore, Silas B. Brownell, George W. Soren, Charles C. Beaman, Jr., S. Sidney Smith, Ernest G. Stedman, Thomas H. Rodman, Jr.

A report from the Council of Law recommending the profession to take only Abbott's new series of Practice Reports and not the revived series of Howard's Reports, was adopted.

NOTES.

JOHN D. PARSONS, JR., has in press a new treat

ise on the Law of Master and Servant, by Mr. H. G. Wood, which promises to be a useful and comprehensive work. We have received the report of the State Librarian of Michigan, Harriet A. Tenney, for the years 1875 and 1876. The library contains 46,610 books, pamphlets, maps, etc., including in this number nearly complete sets of American law reports, a complete set of British Statutes, many of the English and some of the Irish reports. The collection of American Statute law is still deficient, although

efforts are being made to supply the deficiency. The list of text-books, digests, etc., is also far from complete. During the time covered by the report seven hundred volumes of law books were added to the library. The custody and sale of the Supreme Court Reports of Michigan is placed by statute in the hands of the State Librarian, and from the report it appears that the sales of the later volumes does not vary much from 600 copies. It is worthy of notice that the position of State Librarian has, in several of the western States, been given to women, and they appear to discharge their duties in a manner entirely satisfactory. - Mr. John T. Doyle, of San Francisco, is among the number who has attempted to throw light on the "Oregon Case," and his elaborate argument has been published in pamphlet by Winterburn of San Francisco. Mr. Doyle reaches the conclusion that "votes cast for the office in favor of a person disqualified by the Constitution are thrown away, and that the next highest candidate who is eligible is elected." Mr. Doyle is in error no doubt but he errs in such good company as Dr. Wm. Blackstone, who reached the same conclusion in the Wilkes' case. Mr. Seymour D. Thompson has purchased the Central Law Journal, and has changed its form to an octavo similar to the ALBANY LAW JOURNAL. Mr. Thompson has since the first year of the Central been its chief editor and has made of it an able and useful periodical. The recent change is an improvement.

A correspondent writes: "In your article on 'Composition Agreements,' ALBANY LAW JOURNAL, Dec. 30, p. 437, you say: 'It would seem, then, that the only safety for the cunning creditor who has got a promise of payment for more than the other creditors, is to put it off ou an innocent holder.' But even then the debtor who has to pay the money may recover it back from the creditor as money paid to his use. Smith v. Cuff, 6 Maule & S. 160, followed by General Term New York Common Pleas, June, 1875, in Gilmour v. Thompson, 49 How. Pr. 138, holding that it makes no difference if the preference note were given after the execution of the composition agreement, provided the promise to give it was the condition upon which the agreement was executed by the exacting creditor, distinguishing Wilson v. Ray, 10 Ad. & El. 82; Atkinson v. Dealy, 6 Hurl. & Nor. 778, and Higgins v. Pitt, 4 Exch. 325."

In the case of Winn v. Crosby, the New York Superior Court recently decided that an assignee who is an attorney is precluded from applying the trust funds to the payment of himself, or of firms in which he may be a partner, for professional services rendered in the administration of the trust. The court cited Collins v. Carey, 2 Beav. 128; Nichols v. McEwen, 21 Barb. 65, 67; affirmed, 17 N. Y. 22; Morgan v. Hannas, 49 id. 667.- The Supreme Court of California, in the recent case of City of Santa Barbara v. Stearms, decided that a charge for a wharf license imposed by a city ordinance is a tax. The court say: "A license charge or fee for the transaction of business is, in our opinion, a tax within the meaning of the term 'tax,' as employed in those sections. It is not a tax within the meaning of section 13 of article 11 of the Constitution, but is a tax in a large sense, as being a charge or burden imposed upon persons, property or business to raise money for public purposes. People v. Coleman, 4 Cal. 46; People v. Raymond, 34 id. 492; Sacramento ▼.

Crocker, 16 id. 119; Taylor v. Palmer, 34 id. 240; Emery v. Gas Co., 28 id. 345; Emery v. Bradford, 29 id. 75; Ex parte Hurl, 49 id. 557; Cooley's Const. Lim. 201.

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The following are brief notes of the decisions of interest made by the Supreme Court of Nebraska, at its recent sitting: Albright v. Russell. — A, having purchased real estate from B, assigned a note given to C as part payment thereof, and to secure its payment gave a mortgage on the premises. C assigned the mortgage and note to D, who brought suit thereon. Held, (1) that the equities of C passed, by assignment, to D; (2) that there was no necessity for any demand, notice of dishonor, and protest, in order to fix the liability of A to pay the note. Brock v. Hopkins. · Α clerk of the District Court who "negligently and carelessly takes insufficient security for stay of execution," is liable, at the suit of the judgment creditor, for damages occasioned thereby. Vaughn v. Clark. - A purchaser at a foreclosure sale, the decree for which makes no provision for the payment of taxes on the premises, takes the property subject to the taxation, and cannot reimburse himself out of the purchasemoney for the expense of removing such incumbrance. State ex rel. Valentine v. Griffey. - A ballot without any designation of office, and a ballot with two or more names on it, when the tenure of the office is limited to one person only, are illegal and void. Roode v. State. If an instrument does not purport on the face of it to be good and valid for the purpose for which it was created, it cannot legally be the subject of forgery, if not genuine. Aultman v. Mallory. — A sale and delivery of goods on condition that the property is not to vest until the purchase-money is paid or secured, does not pass the title to the vendee until the condition is performed. Palmer v. City of Lincoln. The owner of the lot abutting on a public street contracted for the erection of a building thereon. G. fell into an excavation, left open and unguarded, in front of the lot, was injured, and recovered judgment against the city. Held, that the owner was liable to the city for the amount of the judgment. Palmer v. Sargent. -A memorandum, written upon a promissory note, and qualifying it, constitutes a part of the contract, and a fraudulent removal thereof vitiates the note. But where the alteration is of an immaterial part, such as detaching these words: "This note is given upon condition," appended thereto before delivery to payee, the condition not being specified, the note is good in the hands of a bona fide holder for value.

--

Mr. Justice Barrett of the first district, in the case of Avery,receiver, v. Smith, intimates the possibility of having reached erroneous conclusions through the peculiar character of the manuscript submitted to him. In closing his opinion, he says: "In case of an appeal the complaint should be printed just as it has been presented to me, without punctuation or any thing to indicate where paragraphs and sentences end. My judgment is based upon all its imperfections." Attorneys whose chirography will not bear inspection will please take notice. Lord Coleridge does not think highly of the conveniences afforded by the city of London, for the administration of justice. In speaking recently of the court-room at the Guildhall, he said: "That he was perfectly seasoned to all the inconveniences of court life, and did not complain; but he might, perhaps, say that he considered this country to be perfectly barbaric in reference to its court arrange

ments. The idea of putting a jury into a place like that which they occupied, and the witnesses into a place like the witness-box, was a relic of the dark ages. But it seemed to be of no use to complain. In the present Maine legislature there are few lawyers and many farmers and merchants. In the lower house there are nine lawyers, four physicians, one clergyman, and one journalist, and 136 farmers, merchants, and business men.

The case of Commonwealth v. Gavin, decided by the Supreme Judicial Court of Massachusetts at the recent term, presented a curious question arising upon an indictment for larceny. The indictment charged the larceny of bottles containing certain liquors named. The proof was that defendant gave empty bottles to boys who filled them with liquor belonging to complainant. Defendant and the boys took away the liquor and drank it. The court held that there was a fatal variance. The larceny of a bottle of whisky could not meanmerely the larceny of whisky contained in the bottle. The effect of presenting the charge in the form chosen was to render that averment a matter of description, requiring to be proved with exactness. 1 Greenl. Ev., §§ 56, 65. Every allegation, whether it be necessary or unnecessary, and whether it be more or less particular, which is descriptive of the identity of that which is legally essential to the charge in the indictment, must be proved with exactness. The court cited Com. v. Wellington, 7 Allen, 299; United States v. Howard, 3 Sumn. 14; State v. Noble, 15 Me. 476; 2 Archb. Crim. Prac. (Waterman's 7th Ed.) 349; 2 Russell on Crimes, 315; Alkenbrack v. The People, 1 Denio, 80; State v. Moore, 11 Ired. 70.

The case of Huff v. Cook, decided a short time since in the Supreme Court of Iowa, involved the question of the right of a woman to hold the office of superintendent of public schools under the constitution and laws of Iowa. In 1865, the plaintiff, a man, and defendant, a woman, were candidates for the office of superintendent of common schools. The defendant received a majority of the votes cast, and the plaintiff, in November, 1865, commenced proceedings contesting the right of defendant to hold such office, and claiming that he was duly and legally elected, and was entitled to have and hold said office. Judgment was rendered, and during the pendency of an appeal, an act of the general assembly was passed, providing that no person should be deemed ineligible by reason of sex to any school office in the State, and that no person who may or shall be appointed to such office should be deprived of it for such reason. The court held, that the act was constitutional and embraced the case in judgment. A retrospective law may cure or legalize any act which the general assembly could, as an original question, have authorized.- The Supreme Court of Michigan, in a decision recently announced in the case of People v. Brown, held that it is no defense to a charge of bigamy that the second marriage was between a negro and a white person, and, therefore, illegal under the statute, for every bigamous marriage is void. It can be of no importance that there are two elements of illegality in the second marriage, instead of one; and a party should not be relieved from the consequences of violating one statute because the act of so doing was a violation also of another.

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 PUBLISHERS have made arrangements whereby all decisions of the Supreme Court of the United States will be forwarded to the ALBANY LAW JOURNAL, from the office of the Clerk of the Court, as soon as announced. The most important of them will be published in full, and of the others, abstracts will be given.

The Albany Law Journal.

THE

ALBANY, JANUARY 20, 1877.

CURRENT TOPICS.

HE governor of Connecticut in his recent message, in speaking of the property rights of married women, says: "Some progress has been made in reforming the law in this State, but it has been done by patchwork and shreds, sometimes ill-considered and often so incongruous as to provoke vexatious litigation and defy the wisdom of the courts." This statement of the governor is true, not only of Connecticut, but of all the States wherein attempts have been made by the legislature to confer upon married women the right to control their own property. The rule of the common law giving to the husband entire dominion over the personal property of his wife and a very large control over her real estate, was long since seen to be impolitic and unjust, but in attempting to remedy the matter the law makers have, to a certain extent, only substituted one class of evils for another. The law of our own State, for instance, has taken away almost entirely the disabilities under which married women formerly labored, but it has not imposed upon them corresponding responsibilities. A married woman may control her earnings and her separate property, but she cannot render herself personally liable on a contract.

In every advance that has been made, the idea that it is unsafe to trust a married woman to do business for herself has maintained its hold. If the wording of the various statutes is an indication, it would seem that the legislature, when enacting them, believed that the reason for the common-law rule still existed. Otherwise, it would seem that the married woman would in all respects, both as to her separate property and her individual contracts, be placed upon the same ground as her unmarried To this point the law should come, and it sooner or later will come in every part of the

sister.

country.

A divorce trial has been progressing for some days at Bridgeport, Conn., the details of which have given the New York papers a column or two of sensational news each day. Not that there is any thing remarkable about the case; the wife sues for a divorce VOL. 15.- No. 3.

upon the ground of cruelty; the husband sets up in the way of a cross-action adultery on the part of the wife. There are no difficult or interesting points of law involved, the only question being which side can produce the most convincing evidence of its allegations, and the litigants are not widely known either personally or by reputation. Yet the public are furnished day by day with minute accounts of the testimony, of the remarks of counsel, and of the appearance of the parties and witnesses. This is done neither in the interest of justice, for the result will not be affected in the least by it, nor for the purpose of meeting a demand for news, for not one in a thousand who read the papers cares one iota about the case or the parties, but to gratify a low taste or a depraved curiosity about obscene matters. That such a taste or curiosity ought not to be pandered to is generally admitted, as is evidenced by the stringent laws in respect to obscene publications and their no less stringent enforcement. Yet the testimony given in trials involving the fact of illicit intercouse is fully as indecent and detrimental to the morals and manners of the young as any thing contained in the literature which the law prohibits. Whether, however, with our system of open courts any thing can be done to check the publication of the testimony and proceedings in the class of trials mentioned, may be a question. The courts cannot exclude the public. But the counsel in such actions in many instances may, and if newspapers of reputation will not abstain from printing the unwholesome details of divorce and crim. con. cases, the bar should do its best to at least limit the evil.

In many countries the proceedings in divorce actions are to a great extent kept from the knowledge of the public. In France under the Code Napoleon, the provisions of which upon this subject were, in substance, re-enacted under the second empire, the depositions of witnesses in all suits for divorce were to be received with closed doors. Down to a certain stage the pleadings and arguments were in private, and before the matter was made public, as it must be when the judgment was pronounced, it was the duty of the court to endeavor to bring about a reconciliation between the parties. In Denmark there are what are known as Reconciliation Offices, for the purpose of bringing about a compromise of delicate matters. In England also an attempt was made to secure privacy by the 22d section of the Divorce Act, which directs the court to give effect as far as possible to the principles and practice of the old ecclesiastical courts, which were accustomed, whenever public decency and morality required, to order a hearing. in private, and it is said that the court is disposed to adhere to that custom. The subject is being agitated in Scotland, and the prospects are that the

rule of closed doors in divorce actions will be there adopted. Perhaps then we will be ready to adopt a like rule in behalf of public decency and morality.

Among the legislation which will be asked at the hands of Congress and our State Legislature during the present winter, none will have more merit than that looking toward the reduction of taxation upon capital invested in corporate banks. These institutions have for years borne a much larger share of the public burden than was equitable, but by reason of the activity of business and the great prosperity of their customers, who were made to share part of the burden, they have been able to return to their stockholders about the legal rate of interest upon the money invested. Few have done more than this, and none of them have made the enormous profits realized by corporations and persons in other kinds of business during the years immediately following the war. At the present time they are, as a rule, barely holding their own, and some of them are going backward. To subject them to the burden of a grossly unequal taxation is unjust, besides it is impolitic. If, by reason of severe taxation, banking cannot be made to pay, people will withdraw their capital therefrom and take it where it can earn profit, that is, where the taxes are lower. If our legislators can rise above popular clamor and popular prejudice, they will do justice in the matter and place the holders of stock in banks upon the same ground, in respect to taxation, occupied by the owners of other kinds of personal property.

The State Bar Association being in running order, with as many members as there are days in the year, and with any number of committees, would do well to commence actively the business for which it was organized. One of its aims is to elevate the standard of integrity, honor and courtesy in the legal profession. The best way to do this is to prevent, as far as possible, the entry into the profession of any who are liable to lower instead of elevate this standard, in other words to make admission to the bar not too easy. The general rules concerning admission at present in force in this State are theoretically good enough, but they are to a considerable extent rendered nugatory by exceptions in their application and by the facility with which orders for the performance, nunc pro tunc, of certain things required by them are obtained. It would seem that a general regulation which could not be waived, altered or evaded to suit the convenience of any one might be adopted, and under the influence of the State Bar Association be enforced. If the entrance to the profession was well guarded, much that tends to degrade it and to disgrace it in the estimation of the people might be kept out. A strict rule of admission, enforced at all times and as to all persons,

would undoubtedly cause disappointment and dissatisfaction among many young men who are anxious only to get their names enrolled as lawyers, but it would furnish no just cause of complaint to any one, and would be a benefit to all who are really worthy to become members of the bar. If the Bar Association, or some one of its commit tees, will look to this matter, it will be of more benefit than any other labor they can now enter upon.

We are assured, upon the authority of the president of the Board of Health of Washington, D. C., that we did injustice to that city in one of the statements made in a current topic in relation to infanticide in the district of Columbia, appearing in the number of Dec. 16th. The official mentioned, states that the instances in which murdered infants have been found in the parks and vacant lots of the city could not have exceeded a dozen in number during the past year, about eighty per cent of which were from among the enfranchised slaves. The statements of fact made in the article mentioned were taken from the Washington Lav Reporter, which we assumed to be reliable authority on a local matter.

The six million dollar judgment in favor of the city of New York against William M. Tweed has been affirmed by the General Term of the Supreme Court in the First Department. But the defendant has reason to know that the General Term does not always decide right, or at least in accordance with the court of last resort, to which the case will now doubtless go.

NOTES OF CASES.

IN the case of Darlington v. United States, recently

decided by the Supreme Court of Pennsylvania (3 Weekly Notes of Cases, 221), the facts were these: By the Act of Congress of March 3, 1873, the Secretary of the Treasury was directed “to purchase at private sale, or, if necessary, by condemnation, in pursuance of the statutes of Pennsylvania,” a piece of ground in Pittsburgh, suitable for the erection of a United States court-house, post-office, etc. By an Act passed by the legislature of Pennsylvania, April 2, 1873, permission was given to the United States to acquire by purchase or condemnation under the State statutes, "one or more pieces of land situate in the city of Pittsburgh, on which to erect a court-house," etc. Under these acts proceedings were instituted to condemn four different sites with a view to selecting one. The court held that the right of eminent domain is inherent in the United States government, but, as such right is in derogation of the common law, it must be exercised in each individual case according to the statutory mode specially prescribed therefor. It also held