Such is not the case. There are many times when nothing can take the place of the personal presentation. Briefs are well enough in their way, but it very often happens that the real point upon which a case turns may be overlooked in a brief, while an oral argument may serve to bring it home to the court. A special emphasis, a striking simile, may throw new light on an intricate problem, and perhaps reverse a judgment in the mind of the court."

Choate would scarcely go with the jury of this generation." This somewhat extreme statement, it seems to us, will not find general concurrence, however much one recognizes the general contempt of oratory, as such the cheap appeals to sentiment which move the feelings without convincing the intellects of those to whom they are addressed. This is not the sort of oratory, we confess, that either judges, juries or public wish to hear. In the language of a contemporary, well-knit arguments and logical collocation and analysis of facts form the basis of true oratory now, as in the past.” As the author Our legal contemporaries as well as the of the able review of the trial of Roland B. daily press in England reflect in their Molineux Mr. Frank M. M. Patterson columns more or less distinctly the fact that published in a recent issue of the ALBANY the country is engaged in a serious war. We LAW JOURNAL, pointed out, the address of find in our namesake, the London Law Assistant District Attorney Osborne, while Journal, an expression of regret that certain not to be ranked with the more ornate and judges should have allowed their patriotic highly embellished appeals of well-known feelings to eclipse their judicial dignity. Mr. criminal lawyers in times past, was truly elo- Justice Grantham, it appears, not long ago quent in the sense above referred to. To use interrupted a trial for attempted murder, at Mr. Patterson's words: "If ability to con- the Liverpool Assizes, to announce the relief struct testimony into an intelligible and per- of Kimberley, treated the very gratifying insuasive entirety, if acuteness to perceive pos- telligence as a sufficient reason for passing a sible flaws and by anticipation double-rivet nominal sentence upon a prisoner in another the loose joints, is any evidence of legal case. In the course of an important trial in superiority, Mr. Osborne need have no fear the Probate Court, Sir Francis Jeune inas to his future in the ranks of the great formed the jury that he had received news of criminal advocates of the State." This is a the relief of Ladysmith. In both courts, we utilitarian age, and even oratory must be are told, the announcements were greeted subordinated to the demand of the public for with loud applause, and that it was some facts rather than figures of speech. At the minutes before judicial business could be prosame time, as already pointed out, imagina- ceeded with. The following comment of the tion, analysis, orderly arrangement and acute London Law Journal seems to us timely and observation, which constitute the basis of real worthy of heed and not without its lessons on oratory, are just as important and effective this side of the ocean: "Members of the as they ever were. In speaking of the re- bench can easily rejoice in the triumphs of mark attributed to Lord Russell, of Kil- our troops without creating these unseemly lowen, to the effect that the value of oratory exhibitions in courts of justice. It is certo the lawyer has been much overrated, Asso- tainly no part of their duty to spread the ciate-Judge Harlan, of the United States rumors that reach them concerning the proSupreme Court, said not long ago to a cor- gress of the war, while it is of the utmost respondent of the New York Evening Post: importance that the attention of juries should It is a matter of serious regret and concern not be diverted from the questions which to this court that the practice of oral argu- they have to decide. There has lately been ment appears to be falling into disuse. The a marked increase in the tendency of certain idea seems to have become general among judges to comment upon matters that lie outmembers of the bar that we prefer argu- side the scope of their judicial duties. It is ments presented in the form of written briefs. a tendency which threatens not only the dig

Eaton was its medical director, and one Dohaney soliciting agent for the association at the town of was its clerk and bookkeeper. W. T. Botts was Higbee, Mo., and plaintiff was its medical examiner at that place. The application of one A. P. Milnes for insurance was prepared by plaintiff, signed by the applicant, and turned over to the soliciting agent, Botts, after plaintiff had examined Milnes. The application was then forwarded to the defendant company. After being received by the association, it was given to the medical and passed it to Mr. Dohaney, to prepare and fordirector, Eaton, who made some minutes thereon, ward an answer. Dohaney prepared, addressed and mailed the following to Botts, the soliciting agent: "Des Moines, Iowa, January 11, 1896. W. T. Botts, Higbee, Mo. - Dear Sir: I write you in reference to medical examiner at Higbee. I have before me the application of Adolphus P. Milnes. This application shows on the face of it to be a forgery of his signature, and it is written by Dr. Nichols instead of the applicant. He has fallen ing of the applicant by his misspelling the name. down in his undertaking to imitate the handwritWe have returned the application to the doctor, and given him to understand that it must be corrected at once; and you are hereby notified that in when made by Dr. Nichols. We will appoint anthe future no more examinations will be accepted other physician at that place, and will notify you of the appointment of same. We have no longer any confidence in Dr. Nichols, and, as above stated, we cannot accept any more examinations made by him. Very respectfully yours, Chas. Woodhull Eaton, Medical Director."

in the manner required for the acknowledg-place of business at Des Moines. Defendant ment of a conveyance of real estate." The following new matter is added to the said article, to be known as section nineteen : "No marriage claimed to have been contracted on or after the 1st day of January, 1901, within this State, otherwise than in this article provided, shall be valid for any purpose, whatever; provided, however, that no such marriage shall be deemed or adjudged to be invalid, nor shall the validity thereof be in any way affected on account of any want of authority in any person solemnizing the same under subdivisions one, two and three of section two of this artice, if consummated with the full belief on the part of the persons so married, or either of them, that they were lawfully joined in marriage, or an account of any mistake in the date or place of marriage, or in the residence of either of the parties, in case of a marriage solemnized under subdivision four of said section." Under the law as it will stand, if the amendment proposed in this bill is put on the statute books, legal marriage may be performed by a clergyman or minister of any religion, or by the leader of the Society for Ethical Culture in the City of New York; by a justice or judge of a court of record, or of a municipal court, or a justice of the peace, or by the execution of a contract as above.

Notes of Cases.

Libel Privileged Communication. In Nichols v. Eaton, decided by the Supreme Court of Iowa, in February, 1900, it was held that a communication by a life insurance company to its soliciting agent with relation to an alleged forgery by an examining physican of the signature to an application for insurance, and informing him that another physician would be appointed to make examinations, being upon a subject relating to the agency, and in respect to which there is a mutual interest, is a privileged occasion.

It was further held that in an action for libel, based upon a communication that is privileged, the question whether there is such excess of statement in the communication as to constitute evidence of malice is for the jury. The court said in part: Appellant is a life insurance association incorporated under the laws of Iowa, with its principal

The occasion was undoubtedly privileged, and it was the duty of the court to so instruct the jury. Appellee says that, conceding the occasion was privileged, defendant went beyond the privilege, and rendered itself liable. This argument presents a question that is new to this court, and one on which the authorities are in apparent conflict. Decision of the point involves a consideration of the reasons underlying the doctrine of privilege. Ordinarily, proof of a defamatory publication, charging another with the commission of a crime, makes out a prima facie case of malice in the author. But a privileged communication is an exception to the rule. In such case the presumption of malice is rebutted, and the burden of proving the existence of this element of the action is on plaintiff. In other words, actual malice must be shown (White v. Nicholls, 3 How. 286, 11 L. Ed. 591; Briggs v. Garrett, III Pa. St. 414, 2 Atl. 513; Bearce v. Bass, 88 Me. 521, 34 Atl. 411). Bacon v. Railroad Co. ([Mich.] 33 N. W. 181) is an instructive and well-considered case on this point. It is there said: "The meaning in law of a privileged communication is that it is made on

such an occasion as rebuts the prima facie infer-
ence of malice arising from the publication of
matter prejudicial to the character of plaintiff, and
throws on him the onus of proving malice in fact,
but not of proving it by extrinsic evidence only.
He has still a right to require that the alleged libel
itself shall be submitted to the jury, that they may
judge whether there is any evidence of malice on
the face of it.
* * The effect, therefore, of
showing that the communication was made on a
privileged occasion is prima facie to rebut the qual-
ity or element of malice, and casts upon the plain-
tiff the necessity of showing malice in fact (that is,
that the defendant was actuated by ill-will in what
he did and said, with a design to causelessly or
wantonly injure the plaintiff); and this malice in
fact, resting, as it must, upon the libelous matter
itself, and the surrounding circumstances tending
to prove fact and motive, is a question to be deter-
mined by the jury."

law for the judge alone, where there is no dispute
as to the circumstances under which it was made.
If the judge decides that the occasion was one of
qualified or conditional privilege only, the plaintiff
must then, if he can, give evidence of actual malice
on the part of the defendant. If he does give any
evidence, which, as we have said, may be gathered
from the publication itself, the question of bona
fides becomes one of fact for the jury (1 Am. Lead.
Cas. [5th Ed.] 193; Gray v. Pentland, 4 Serg. &
R. 420; Hart v. Reed, 1 B. Mon. 166; Newell,
Sland. & L., p. 478). In Hill v. Drainage Co.
([Sup.], 29 N. Y. Supp. 427) it is said: “In case a
communication is prima facie privileged, the exist-
ence or non-existence of malice on the part of the
defendant is a question of fact; and the plaintiff,
before he can recover, must affirmatively establish
to the satisfaction of the jury that the publication
This
complained of was made through malice.
may be shown from the communication, the cir-
cumstances under which it was written, and it may
be inferred from a variety of facts. * *
The
occasion was privileged. Did the publication go
beyond the occasion, or, in other words, was
more written than the occasion justified? This
depends upon the terms of the communication, and
the facts outside of it, and was an issue of fact, for
the jury." (See, also, Comfort v. Young, 100
Iowa, 627, 69 N. W. 1032; Strode v. Clement
[Va.], 19 S. E. 177; Klinck v. Colby, 46 N. Y. 427).

Plaintiff relies on some expressions found in the
books to the effect that, if the communication ex-
ceeds the privilege, it destroys the privilege.
Thus, Mr. Odger, in his work on Slander and
Libel (page 197), says: "But it must be remem-
bered that, although the occasion may be priv-
ileged, it is not every communication made on such
occasion that is privileged. It is not enough to
have an interest or duty in making the communi-
cation. The interest or duty must be shown to
exist in making the communication complained
of' (per Dowse, B., in 6 L. R. Ir., at p. 269). A
communication which goes beyond the occasion
exceeds the privilege." Again, at page 245, it is
said: “So, too, in making a communication which
is only privileged by reason of its being made to a
person interested in the subject-matter thereof, the
defendant must be careful not to branch out onto
extraneous matter with which such person is un-
concerned. The privilege only extends to that por-importance to pending litigations.
tion of the communication in respect of which the
parties have a common interest or duty." We
have recognized some of the rules here announced

(see State v. Hoskins [Iowa], 80 N. W. 1063). There the occasion was not privileged, because made to persons who were in no manner interested in the publication. The doctrines announced by Mr. Odgers, some of which are even stronger than we have quoted, have produced some confusion in the authorities; and we think the better rule is that if the occasion is privileged, and the publication is about a matter in which both parties have an interest, excess of statement is material only as

bearing on the question of malice. Indeed, the jury may find the existence of malice from the language of the communication itself, as well as from extrinsic evidence (Hastings v. Lusk, 22 Wend. 410-421; Neville v. Ins. Co. [1895], 2 Q. B. 156; Railway Co. v. Behee [Tex. Civ. App.], 21 S. W. 384). Whether the publication is or is not privileged by reason of the occasion is a question of

*

THE OLD RULE OF DESCENTS IN NEW
YORK UNDER THE ORIGINAL PATENTS.

HAT the early law of New York is of great

THA

practical interest even at the present time is disclosed by the record of many recent cases. But it is only those who give much attention to this subject that fully realize the extent of its actual

The present writer was lately reminded of a very obscure point of this ancient law by reading in that case had been compelled to deduce his the printed record of a pending case. The plaintiff title to lands under water from the original pattion or adverse possession could be made out to entee of King Charles II, as no title by prescripthe lands in question. In the course of this deduction his counsel claimed that, as the land was to be held as "of our Manor of East Greenwich in our County of Kent," they did not descend to females, but to all the sons alike, after the custom of Kent (2 Black. Com. 215, 216); and that primo

geniture was excluded as a rule of descents. A pedigree made up on this principle seems to have

been introduced in evidence in the case without challenge or much, if any, discussion.

As the present writer, in very good company, had always believed that primogeniture was the universal rule of inheritances in New York prior to the year 1782, he was very much startled by the