to by the practitioner who measures the value of a treatise according to its utility in his every day work. For the student we would prefer the logical work of Taylor, but for the practicing lawyer who could own but one book upon this subject, we would recommend that of Mr. Wood as containing a correct and sufficiently perspicuous statement of every rule and principle relating to the law of landlord and tenant, that has as yet received the sanction of authority, and as furnished with references to all cases of value, both in England and here.

The author states that he has made free use of such portions of the most approved English works upon the subject as are applicable in this country. This cannot mean that he has simply copied the writings referred to, but rather that he has adopted the conclusions reached by English writers, using their language only when it expressed in the best manner such conclusions. The intermingling of rules derived from both American and English authorities indicates that English elementary writings have contributed to the text of this work in the same manner that the decisions of the courts have contributed, the same reasons in each instance determining whether the exact words in the source drawn from are used or others are substituted. There are a few things in which the work of Mr. Wood is open to criticism. Occasioual infelicities of style occur, as in section 423, where it is difficult to determine whether the plural pronouns in the latter part of the section refer to "railway companies" in the first line, or "railway company in the fifth. Some of the pronouns certainly refer to the last named antecedent, that being treated as plural, while "gas in section 425 is treated as singular. A grammatical error, perhaps caused by careless proof reading, occurs in section 426.

company

The index, while sufficiently full, and so far as we have discovered accurate, has not any sub-heads to speak of, a single title sometimes occupying two, three, four, and in one instance five pages.

The titles and arrangement of the index show carelessness; for instance, the title "Tenant" is followed

by that of "Tenancy for life," that by "Tenants per autre vie," and others, after which comes "Tenant for life." To the reader this is annoying and a drawback to the practical utility of the work. The size of type used in the body of the work we think is too small. In regard to this, however, tastes differ, a man's judgment here depending very much on the condition of his eyesight. The disadvantage, if it exists, of small type, is here aggravated by the fact that the type used in the text is much worn, or in some other way defective, the letters being in many instances imperfect or blurred. This of course is not the author's fault. The profession will, we are sure, overlook these and other minor defects, in view of the undoubted merit of the work as a whole.

3D MACARTHUR'S REPORTS.

Reports of cases argued and determined in the Supreme Court of the District of Columbia (General Term), from the January Term, 1877, to the September Term, 1879, inclusive. By Arthur MacArthur, Associate Justice. W. H. & C. H. Morrison, Washington, D. C., 1881. Pp. xii, 638. Contrary to the announcement on the title page the cases in this volume were not all determined by Judge MacArthur, and none of them were argued by him. Most of the cases are of local interest, but the following, among others, are of general interest Barton v. Barbour, p. 212-a suit against a receiver of a foreign corporation for damages will not be sustained without leave of the court which appointed the receiver. Hoiles v. United States for larceny of the goods of several at the same time there be but one conviction and sentence. Huber v. Teuber, p. 484 - exem

plary damages cannot be recovered in a civil action for assault and battery, which is also punishable by criminal prosecution. Vinson v. Beveridge, p. 597 — A. and B., copartners, agreed with their salesman, C., to associate his name with the firm, and to give him a percentage of the sales for his services, but that he was to be bound for the debts. They published an advertisement in a newspaper that C. had an interest in the firm. Held, that a creditor of the firm could not recover against C. without proof that he knew of the publication previously to giving credit.

MASSACHUSETTS DIGEST.

A Digest of the Reported Decisions of the Supreme Judicial Court of Massachusetts, from 1804 to 1879, with references to earlier cases. By Edmund H. Bennett, Russell Gray, and Henry W. Swift. Little, Brown & Company, Boston, 1881. 3 vols. Pp. xxiv; columns, 2130, 4230, 5760.

The judicial decisions of Massachusetts and New York must ever remain, as they have always been, of the greatest authority of any in this country. The former are superior in uniformity, the latter in variety and importance of the questions involved. These States are equally distinguished for the splendor of the reputations of their judges. The adjudications of Kent and Cowen, of Parsons and Shaw, and of many others, are of authority in Westminster Hall, as well as throughout this country. The last digest of the Massachusetts decisions before the present was published in 1862, edited by Messrs. Bennett and Heard, and was one of the best and most useful ever issued.

The present combines with a revision of that the vast mass of litigation for more than twenty-two years, filling fifty-three volumes of reports, thus making a complete digest of the decisions for more than threequarters of a century. The well-known name of the leading editor is a sufficient guaranty for the careful and intelligent performance of this great labor. Those lawyers who have the Massachusetts Reports cannot dispense with this digest, and to those who have them not it is hardly less necessary. The volumes are superbly printed.

A big boy on being reproached by his Sabbath school teacher for not knowing who made him, while his little and younger playmate evinced correct information on this subject, said: "Well, he ought to know; it isn't so long since he was made." Similarly, the LAW JOURNAL may be excused for not having as thorough an acquaintance with nursery rhymes as with legal principles, and the writer, on account of his youth, may be permitted to suggest that the maiden all forlorn was not tossed by the cow with the crumpled horn, as the editor seems to think. (See p. 2 of present volume.) It was the dog that worried the cat that met with this, in its case, deserved fate. And query:

Is there any presumption that it was Jack's house, Jack having built it? NURSERY.

NEW YORK, July 11, 1881.

[We are corrected out of the mouths of babes and sucklings. Not having the authority at hand, as our correspondent probably had, we put the maiden on the wrong side of the cow.-ED. ALB. L. J.]

THE

NOTES.

HE business of legal journalism must be very profitable in Kentucky. We have for some time known the Kentucky Law Reporter, edited by Messrs. Wells, and published at Frankfort, by Mr. Lewis, and now entering upon its third volume. With the opening of July we receive two Richmonds or Dromios, entitled "Kentucky Law Reporter," the one seeming our old acquaintance, except that it is edited by Messrs. Bush -one of whom is the State Reporter of Kentucky the other very like unto it, except that it is edited and published by our old friends, Messrs. Wells, at Louisville, both assuming to be the first number of the third volume, and each with a "caution" to the public to avoid the other, and a solemn declaration that it alone is the genuine and original article. We observe however that the Messrs. Wells have captured and carried off the old motto of the Reporter, "Mens legis: Lex plus laudatur quando ratione probatur:" To this Mr. Miller seems to submit with tameness. But this is no excuse for the Messrs. Wells misprinting it, “laudator.” We hope our friends will reconcile matters before Sirius sets in. Meantime we do not see what we can do except to exchange with both alternately, dividing ourselves equally between them, this week to that, the next week to the other.

A correspondent of the Canada Legal News says: "The delicacy which prevents an advocate from pleading in the court of a near relative is doubtless honorable' in a sense; but it also indicates a certain moral timidity. It is hardly possible to conceive that a judge should be swayed one way or the other by the person who urges the argument. In the multitude of affairs that come before a judge it generally happens that the judge does not recollect who the pleader was. In England where the habit of suspicion has not yet become a national vice, such instances as those mentioned in the ALBANY LAW JOURNAL would be regarded as affectations. The rule in England goes no further than this, that a barrister shall not select his father's circuit for practice. To lay it down as a rule that a lawyer is not to practice in the court in which his father is a judge would be to decree that the son of a judge shall not be a lawyer."

The ALBANY LAW JOURNAL and Judge Countryman have been carrying on an ethical controversy, more curious than edifying, we fear, to the laity, on the subject of taking cases on "speculation." The judge says that the practice is perfectly right, and even praiseworthy; that poor suitors, if they could make no arraugements to retain counsel out of the proceeds of the suit, would often find themselves unable to prosecute their rights, and that such arrangements are sanctioned by the courts. The LAW JOURNAL, on the other hand, strongly reprobates this view; insists that though the courts may tolerate the practice, that does not settle the matter, since many things are tolerated in courts -such as the use of decoys and informers, pleas of infancy, usury, etc., which no one thinks are in themselves fine or laudable. But at the same time, it admits that cases must occasionally be taken on "speculation," and states the difference between the

judge and itself to be that "we would take just as few cases of this kind as possible, he would get just as many of them as he could." If this could be taken as a fair statement of the position of the two disputants, we should say that the LAW JOURNAL was undoubtedly right. The strong feeling which still exists among conservative members of the bar on the subject grows out of the dangerous tendency of the practice, and this is not affected by the fact that now and then it may be for the interest of litigants to resort to it. In new countries, and in countries where the bar has long ceased to be a close corporation, and law is carried on like any other business, the inherited tradition with regard to taking cases on "speculation" is pretty sure to be supplanted in a measure by the feeling that such a practice is often for the mutual advantage of lawyer and client. The story of the eminent western lawyer, who, on being asked to what branches of the profession he had chiefly devoted himself, replied, "Champerty and Maintenance," illustrates a condition of professional sentiment which it would still hardly be possible to imagine existing in New York, but toward which some years ago the bar seemed to be making rapid progress. Until very recently, will-contests on a speculative basis were positively encouraged by a statute (now, we believe, repealed) permitting large allowances out of the estate to the unsuccessful party's counsel, and it was out of the practice founded upon this that the unscrupulous rapacity and ferocity that used to distinguish such contests in this city chiefly grew. The evil tendency of speculative lawsuits is reason enough for discouraging the practice wherever it can be done; but the question of how far it can be done is very like that other question of legal ethics which every few years or so comes up for discussion - how far a lawyer may go in defending a client. Many moralists, from the time of Dr. Johnson down, have undertaken to settle this, but with so little success that Lord Brougham's suggestion, that when a lawyer undertakes his client's case his duty is to throw overboard all moral principles, is still regarded in many quarters as being the prevailing professional view of the subject. The question is one of those which cannot be decided one way or the other abstractly. It is necessary to know the facts in each particular case before deciding whether a breach of professional ethics has been committed; but it is certainly safe to agree with the LAW JOURNAL that any one who tries to get as many "speculative cases as he can will not earn tho approval of the conservative part of the bar.-The Nation.

A curious question in connection with the law of homicide recently came before the High Court at Calcutta. In Empress v. Gonesh Dooley, Ind. L. R., 5 Cal. 351, two snake-charmers had been tried for murdering a boy. They were exhibiting to a crowd a venomous cobra, whose fangs (as they knew) had not been extracted, and one of them placed it on the head of a boy whom they had selected to assist them in showing off their dexterity in snake charming. The boy took fright, and in trying to push away the snake was bitten by it in the finger, and he died from the wound. The jury had acquitted both prisoners, on the ground that the exhibition of snake-charming was authorized by custom, and that they had not intended to kill the boy. The sessions judge thought that they had caused the boy's death by an act of gross negligence, and he referred the case to the High Court. Mr. Justice McDonell held that the prisoner who put the snake on the boy's head had been guilty of "culpable homicide not amounting to murder," and not of the minor offense of "causing death by negligence," because he knew that the act was likely to cause death (although he had no intention of causing it), and that the other prisoner was punisable for abetting to homicide.- Solicitor's Journal.

The Albany Law Journal.

ALBANY, JULY 30, 1881.

CURRENT TOPICS.

HE reflections of our correspondent, in another

eration. He has unquestionably pointed out one essential cause of the degeneracy of the jury material. There is no reason why a citizen, who has performed his duty as a militiaman or a fireman, should be excused from doing duty as a juror. In respect to these classes it ought to be sufficient to give them a certain exemption from taxation. The other exemptions in section 1030 of the Code, it seems to us, are wise. Professional men ought to be exempt — clergymen because they generally are poorly qualified to judge of worldly matters; phy

sicians and teachers because their freedom is essential to the proper discharge of their duties; lawyers, not only because they are officers of the court, but because by experience and training they are prone to take sides, and are the worst judges of fact conceivable. Another reason for their exclusion is this: that they are too well known and have too much influence. One lawyer on a jury would be apt to be like "the tail that wagged the dog." Add to the abolition of exemption for military or fire duty the power of nine to pronounce a verdict in a civil case, and much will have been done to improve the material for juries.

Messrs. Bliss, Olney and Whitney, commissioners appointed by the Legislature in 1880 to revise the special and local laws affecting public interests in the city of New York, have made and printed their report, forming a volume of over eleven hundred pages. They have sent us a copy (as doubtless they have sent to others) accompanied by the following circular: "We transmit herewith a copy of the Draft of the Revision of the Special and Local Laws affecting the City of New York, which has been submitted by us to the Legislature. It is our desire that it should receive the careful examination and criticism of all interested, to the end that at the opening of the Legislature in 1882 it may be called to the attention of that body, and its enactment into a statute, with the necessary corrections, be sought. Will you not examine it, and at some time prior to November next favor us with any suggestions that occur to you? It is inevitable that a work of this kind should contain errors, and we trust that you will call our attention to any that you detect or even suspect. The report prefixed to the volume shows the principles upon which we have proceeded." This is a very important work, and the request in the circular is a very judicious one. It is to be hoped that those who are specially interested in the scheme of revision, and who have acquaintance with the laws in question, will examine the revision, and make suggestions and criticisms. VOL. 24.- No. 5.

This must be done if any thing is to come of the great labor which the revisers have bestowed. Otherwise, when the revision is presented to the Legislature, we shall hear the old cry, "nobody knows any thing about this; nobody has looked at it."

Mr. Justice Clifford has closed his long and laborious life. He was a man of pure character and considerable technical learning. His great industry, experience and familiarity with Federal questions made him a valuable adviser on the bench. His mental faculties have for some time been clouded, but in his best estate he was not a great lawyer. He has faithfully discharged his onerous duties, but he made them much more onerous than was necessary. He loaded the books and vexed the profession with long and tedious opinions on trite subjects, especially in his later years. He was of a school of judges quite apt to flourish and very useful in a new court and community, but quite out of place on the bench of the highest court in the country. The question of filling his place is an important one. Assuming that Ohio is now satisfied with two judges on that bench, and that the nomination is due to New England, two distinguished men will at once occur to the minds of the profession as eminently fit for the place, namely, Senator Edmonds and Chief Justice Gray. In this connection we may say, without offense, we hope, that it being perfectly understood that Mr. Justice Hunt will never reassume his place on the bench, he owes it to the country to resign. The bench ought not to be crippled by the prolonged absence of any of its members, and Mr. Justice Hunt is too patriotic to wish to do so for a trifling personal gain. It is, we think, the unanimous sense of the profession that he should retire. The reports of this court have ever since January, 1879, contained the announcement: “Mr. Justice Hunt, by reason of in

disposition, took no part in deciding the cases reported in this volume." The country and the profession can have no feeling save of the highest respect for this gentleman's character, capacity, learning, and distinguished public services, and of sympathy with him on account of his impaired health, but he should retire from the public service which he is hopelessly unable to discharge. There would doubtless be no opposition to a bill to confer the retiring pension on him, although he lacks a year and a half of the prescribed term of service.

It seems to us that the District Attorney of the District of Columbia is usurping authority in Guiteau's case. He has directed the jailer practically to put Guiteau in solitary confinement. What right has he to direct the jailer or the sheriff how to keep the prisoner? If it were pretended that there is any danger of escape, rescue, or lynching, there might be some excuse for his advising the jailer as to the manner of confining the prisoner. But no such thing is pretended. The direction is put on the ground of an increase of punishment.

What

What right has the District Attorney to punish Guiteau before his conviction and sentence? right has the custodian, under the circumstances, to put Guiteau in solitary confinement? What right has the District Attorney or the jailer to deny his friends and counsel access to him, a man only held for trial? It is reported that the District Attorney has declared his intention to postpone Guiteau's trial for a year and a day, in order to see if he cannot be held for murder, or if the President should survive, in order to increase his term of imprisonment. What right has he to do any thing of the sort for such a purpose? Unless the President

should languish, he would have no right to postpone the trial. A conviction of assault with intent to kill would be no bar to a subsequent indictment for murder, if the President should meantime die. The District Attorney seems disposed to magnify his office. It is to be hoped that some of the profession will see that Guiteau has counsel and opportunity to consult them and his friends, and that he has a prompt and fair trial. The District Attorney would feel rather flat, for example, if he should succeed in holding Guiteau in jail for a year, and he should then be acquitted for insanity! It is our belief that the President would be the last man to approve such unusual and high-handed measures. The District Attorney should pull in his horns, and not try to glory himself by intemperate energy. Let him display a zeal according to knowledge.

A more remarkable action of libel than Sullings v. Shakespeare, Michigan Supreme Court, June 29, 1881, 9 N. W. Rep. 451, we venture to say was never waged. Sullings was a doctor; Shakespeare was the publisher of the Kalamazoo Gazette. The action was for two libellous articles, one describing the plaintiff as having removed a "patty tuber" from the "hypogastruam" of one Smith; the "other containing an account of a ride taken by plaintiff in Kalamazoo, written in a style tending to throw ridicule on plaintiff as displaying ostentation, and as not used to such indulgences." It appeared that the former article was written by the doctor himself, and sent to the defendant with a request for publication; that it was illegibly written, and that the extraordinary terms above quoted were the result of the printer's struggle with the manuscript, and his rendition of "fatty tumor" and "hypogastrium." On this point the court observed: "The article being written by plaintiff as a gratuitous puff of himself, and published at his request, we do not see how a mistake of the printers without wrongful intent could be held a malicious libel. This is not a suit on the case for damage from negligence, and the law of libel does not, we think, reach such a blunder, if any was made. We cannot forbear, in the interest of public morality, to call attention to the fact that the plaintiff, if a physician, has no right to publish matters of professional confidence, and that the article if published as he wrote it, without the approbation of the person operated on, would have been a very plain

breach of professional duty. Such publications, for no purpose of public instruction and only for private gratification or laudation, deserve severe censure." On the other point the evidence showed that "on the day previous the plaintiff, who was described with some superfluous initials and appendages, rode about town in an ostentatious style as the sole occupant of an elegant chariot. That he was expecting large profits from a suit with the Vulcanite Rubber Company. The comments which were interspersed intimated that the excursion was by way of practice and in anticipation of a more exalted station when more style would be necessary. The article also satirically denies the truth of some further parade, and intimates that it was the first ride he had ever taken." It also appeared "that on a mutual banter, the local editor of the Gazette agreed to pay and did pay the driver of the vehicle, if the plaintiff would ride in it. It is uncontradicted that he told plaintiff he proposed to write an article on the subject, but there is a conflict as to plaintiff's assent, and also as to the circumstances of the announcement. There was also evidence bearing on the Vulcanite litigation." The court said: "Under these circumstances it is evident that plaintiff upon his own statement laid himself open to sharp comment, and upon defendant's proofs there was evidence going far enough, if believed, to make out an assent to the publication." So a verdict for the defendant was sustained. It seems to us that the printer's blunders were not so ridicuShakespeare was a bad speller-was not sure of the lous as they might easily have been. The great orthography of his own name. A serious reflection here arises: if the travelling public are at the mercy of color-blind railway employees, are not the invalid public at the mercy of physicians who do not write their recipes plainly? A little legislative attention to this matter might be well bestowed.

Our State library will be closed to the public, from the fifth to the twentieth of August, inclusive, for the purpose of cleaning and repairs.

IN

NOTES OF CASES.

N Indig v. National City Bank, 80 N. Y. 100, plaintiff deposited with defendant, for collection, a note on which there was no indorser save the maker, payable at the Bank of Lowville, of which bank the maker was a customer. Defendant sent the note by mail to that bank, which was an ordinary method of transacting such business. The note reached said bank the day it fell due; upon the next day it sent its draft on New York in payment, and on the same day failed. The maker had not quite sufficient on deposit to pay the note; the deficit was made up after the failure. Defendant received the draft the next day, which was Saturday, after business hours; it forwarded it on Monday morning, in the usual course of business, to the clearing-house in New York, and it was returned not good." Defendant immediately gave plaintiff