Page images

we think, that the book has been put into one volume. There are 850 pages, and the mechanical part of the work has been done in that excellent style for which the house of T. H. Flood & Co. is justly noted. Zane on Banking will be found up to date, complete and authoritative.

But the rapid development of the law since Blackstone's day has relegated him to the company of his great but shadowy predecessors, Brocton, Coke and Littleton, and has rendered his work largely obsolete, insomuch that its unsuitability to serve as an introduction to the modern law of real property can no longer be concealed, even by the voluminous notes of learned editors." Recognizing, at the same time, that much of the work referred to remains and has all the freshness and validity of the latest reported case, the editor has preserved all the writings on real property by the great authors from Glanville and Bracton down to Kent and Story which have not become obsolete, supplementing it by the contributions of modern authorities and by the principal English and American statutes, thus bringing the presentation of the subject down to date. Mr. Kirchwey, who brought to the difficult work almost ideal qualifications, has produced a book which is sure to be

It is now twenty years since the first edition of Abbott's Trial Evidence was issued. During that time it has enjoyed the reputation of being one of the most useful law books ever written, because of the admirable selection and arrangement of the material so as to make it readily available in the course of a trial or in the preparation for it. This arrangement the reviser has wisely left intact, making his additions mostly in the way of foot-volumes in search of the most lucid explanations of the doctrines of real property law, whose scientific study it places within the reach of all students.

authoritative. It will save the student an immense amount of labor in hunting through scores of

notes, and only altering the text where there have been changes in the law. He has sought, however, to cite all the cases in which new points have been decided, and such recent cases affirming or applying old rules as would give the practitioner a clew to the latest authorities on those subjects. In many cases, in order to avoid the citation of an unnecessary number of cases, he has substituted recent authorities for those originally cited. Such examination as we have been able to give to the work clearly indicates that the reviser has performed his part with skill as well as conscientiousness, making the new edition as nearly as possible just what the author himself would have made it. One feature of the work that is especially worthy of notice is the fact that it is prepared for use in every part of the country. The work is in one large octavo volume of 1,226 pages, and printed in the best style.

The Rules of Evidence Applicable on the Trial of
Actions at Common Law, in Equity and
Under the Codes of Procedure. By Austin
Abbott, LL. D. Second Edition, Revised and
Enlarged, by John J. Crawford, of the New
York Bar. New York: Baker, Voorhis &
Co., 1900.

Readings in the Law of Real Property. An Elementary Collection of Authorities for Students. Selected and Edited by George W. Kirchwey, Nash Professor of Law in Columbia University. New York: Baker, Voorhis & Co., 1900.

Probate Reports Annotated. With Notes and

References. By George A. Clement, of the
New York Bar. Vol. IV. New York: Baker,
Voorhis & Co., 1900.

This is the fourth volume of the well-known series of Probate Reports Annotated, and includes 88 leading cases in full. As heretofore, the notes are a very important and valuable feature, many of them being exhaustive, and all helpful and illuminating in solving the many knotty questions that are continually arising in the administration of probate law.

Literary Totes


Harper's Magazine for June has the following table of contents: Inside the Boer Lines," by E. E. Easton; Eleanor," a novel, by Mrs. Humphrey Ward; "Balloons in War," by Gen. A. W. Greely; "The Fight," a story, by Stephen Crane; 'The Mantle of Elijah," by Zangwill; “Life After Death," by Dr. James Hervey Hyslop; "The Debut of Jack," a story by E. W. Townsend; “A


The aim of this work is to bring within the reach of students the necessary material for a thor-Bicycle of Cathay," a story, by Frank R. Stockton; "The Singing of a Bird," a story, by Julian Hawthorne; "Delia," a story, by Gertrude Roscoe, and "A Journey to the Abyssinian Capital," by Capt. M. S. Wellby.

ough understanding of the law of real property. As its title indicates, it is a series of carefully selected readings on the elements of property law, the several topics being treated by those who have most clearly expounded them. As the editor remarks in his preface, "the service which it seeks to render has for a hundred years been performed for the American student by the second book of Blackstone's commentaries on the common law.

[ocr errors]

In the June McClure's President Kruger is portrayed in a character study by Edmund Garrett, which is illustrated with portraits. J. Lincoln Steffens relates some "Incidents of Conflict" between Governor Roosevelt and the party leaders.

William J. Lampton contributes an illustrated article on the Cape Nome gold fields. A striking feature of the number is a naval story of the Japanese-Chinese war by Adachi Kinnosuke, a Japanese writer. There are several other short stories in the number.

"The Soul of a Christian," a study in the religious experience, by Frank Granger, is a book which will be published immediately by The Macmillan Company. The author, who is already known by his books on "The Worship of the Romans " and A Short Account of the Human Mind," has tried to describe the Christian life, as far as possible, in the terms, and with the methods, of psychology.


ard Temple reviews the vast possessions of "Great Britain in Asia," and calls attention to the necessity of her taking steps to safeguard the influential position she now occupies in that continent.

The Macmillan Company have in press a new work by Prof. Nash, author of The Genesis of the Social Conscience," upon "The History of the Higher Criticism of the New Testament." This new volume of Prof. Nash's is one of the New Testament Handbook Series, and promises to be of exceptional interest. Prof. Nash has given something more than a mere statement of the various schools of criticism, and has produced what is in fact a sort of philosophy of the critical movement from the earliest times. Practically it is the first book to be written on the general subject in English.


The June number of the North American Review furnishes another fine illustration of the high ideal which the editor keeps before him in conducting that magazine. Mr. W. J. Bryan opens the number with an article on "The Issue in the Presidential Campaign." Edmund Barton, a noted Australian statesman, writes of "Australian Federation and Its Basis." Prof. J. R. Straton discusses the question, "Will Education Solve the Race Problem?" and presents arguments and statistics in support of his belief that it will not. Baron Pierre de Coubertin, the founder of the modern Olympian games, describes the measures which have been taken to insure the success of the second series of these cosmopolitan competitions, which will be held in Paris this summer in connec


tion with the exposition. Sir Sidney Shippard, who spent many years in high official position in different parts of South Africa, assuming that the present war will result in victory for the British arms, endeavors to determine, with due regard to the diverse interests involved, "How England Should Treat the Vanquished Boers." E. Denison Ross, professor of Persian in University College, London, gives a luminous account of "Modern The American Monthly Review of Reviews for Persian Literature" and those who produce it, June is a well-illustrated number. The important with some charming verse translations of repre- news topics of the month are editorially treated in sentative poems. The Rev. G. W. Shinn con- "The Progress of the World," the opening departtributes a striking paper under the startling title, ment. A character sketch of "James J. Hill, a "What Has Become of Hell?" The Charter Builder of the Northwest," is contributed by Mrs. Needs of Great Cities are set forth by Mr. Bird Mary Harriman Severance, who outlines the reS. Coler, comptroller of the city of New York, in markable career of the president of the Great the light of the experience which the city has had Northern Railroad. Dr. Albert Shaw, the editor, under the operation of its original charter. Prin- writes from full knowledge on "Paris and the cess Catherine Radziwill predicts that "Cecil Exposition of 1900." Mr. Jacob A. Riis, author of Rhodes' Future" will be worthy of his colossal "How the Other Half Lives," forecasts the work genius, and that he will exercise the predominating of the New York Tenement-House Commission influence in the settlement of the South African recently appointed by Governor Roosevelt. Mr. difficulty. "A Diplomat," in a brilliant contribu- Cleveland Moffett writes on Automobiles for the tion, contrasts "British and Russian Diplomacy." | Average Man." Mr. Charles A. Conant describes Demetrius C. Boulger comments upon the "An- the operation of the refunding law passed by contagonism of England and Russia," and warns gress last March. There are also illustrated artiGreat Britain that the time has come to call a halt cles on summer camps for boys, the Passion Play upon the Muscovite empire in its effort to under- at Oberammergau, and new fiction for summer mine the British power. The Rt. Hon. Sir Rich-reading.



Little, Brown & Co. published May 19 "A Dream of a Throne, the Story of a Mexican Revolt," by Charles F. Embree. The events take place around the shores of Lake Chapala, with which a long residence in Mexico has made the author thoroughly familiar. There are many descriptions of the beauties of the lake and the surrounding mountains, ruins are described, and one is given glimpses of primitive peoples with simple customs. The period of the story is 1845. Vicente, the son of the last daughter of an ancient royal house, leads the revolt. Opposed to him is Rodrigo, an American in the service of the Mexican government, and among the other characters are

Clarita, Vicente's foster-sister, whose pure and simple nature is clearly portrayed, and Pepa, his brilliant, faithless sweetheart; also Fortino, whose giant deeds fill one with delight, a character forming a worthy companion to Ursus in “Quo Vadis,” but strongly individualized. The book contains some dramatic and stirring incidents, and increases in interest to the end.

The Albany Law Journal.

A Weekly Record of the Law and the Lawyers. Published by


Contributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law questions, addresses on legal topics, or discussions on questions of timely interest are solicited from members of the bar and those interested in legal proceedings.

[All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY Law Journal All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW


The New York Supreme Court, in the case of the Colonial Trust Company against MorVOL. 61-No. 24.

rison, laid down an important rule with reference to responsibility for trust securities. The facts of the case appear to be that Daniel Morrison, when acting as trustee for an estate, had Francis S. Weeks act as his agent and attorney. (Weeks has since been in State prison for extensive misappropriations of trust funds.) Weeks was permitted to handle the trust funds and to discharge the duties of trustee in Mr. Morrison's stead, during which time he embezzled some of the trust moneys, subsequently succeeding Mr.

Subscription price, Five Dollars per annum in advance. Single Morrison as trustee. At least a portion of number Twenty-Five Cents.

ALBANY, JUNE 16, 1900.

Current Topics.


N interesting decision relating to the law of libel has been rendered by the New York Supreme Court, Appellate Division, First Department. It was in Bryan Willard's suit against the Press Publishing Company to recover damages for alleged libel printed in the New York World. The defense was that the article complained of was a truthful and accurate report of a judicial proceeding, and in justification of the publication it was alleged that it was true. The trial court charged the jury that the rule of law in such cases was that "where the defendant alleges the article is true, and fails to prove it is true to your satisfaction, you are at liberty, in addition to the ordinary damages, to inflict exemplary damages." The jury gave a verdict for the plaintiff for $600. The Appellate Division, in ordering a reversal of the judgment, held that the charge was erroneous and that the defendant had a right, under the Code, to plead facts not only in mitigation, but also in justification, and the failure to establish the truth of the allegations in either case did not subject it on that account to increased damages. Exemplary damages, it was held, could only be given upon the ground of malice, and the failure to establish a defense of this character was, of itself, no evidence of malice.

the securities had been in Weeks' possession as attorney for some time prior to Mr. Morrison's appointment as trustee, and Mr. Morrison continued Weeks as his attorney, leaving the securities under his control. The Colonial Trust Company, which was substituted for Weeks as trustee, brought an action in the Supreme Court for an accounting by Mr. Morrison. It was claimed by the latter that he had discharged all his duties as trustee, and was not responsible for the acts of Weeks, who, at that time, was a lawyer of high standing and good reputation, and had had the custody of the estate before Mr. Morrison's appointment. Justice Stover, who tried the case, in directing the accounting asked for, said: "A trustee is not relieved from the obligation of looking after the estate committed to his charge by the employment of another person to discharge his duties. The duties of a trustee are personal, involving personal integrity and ability, and a trustee cannot escape this personal responsibility by employing another, however capable, or of whatever high standing and character; and a third person is nothing but the agent of the trustee, for whom the trustee is responsible. It is not enough that he employs a competent agent, but he must see to it that the trust is fully carried out; and upon him personally devolves the duty of discharging the duty of trustee, and this duty cannot be delegated so as to relieve the trustee of legal responsibility. Again, in this case it is quite apparent that if the trustee had given the attention which the law requires to his duty as trustee, he would have discovered that the funds which Weeks ob

tained upon the collection of certain securities were not reinvested for the benefit of the trust estate, but were invested in securities which were taken in the name of Weeks individually."



Elsewhere in this issue will be found the full opinion of Chief Judge Whitfield, of the Mississippi Supreme Court, as to the adoption of the so-called "Noel Amendments to the Constitution of that State, the object of which was to change the selection of judges from the appointive to the elective method. may be said in explanation that the entire proceedings were free from partisan and factional politics and uninfluenced by any sinister motive, being instituted and conducted solely for the purpose of subserving the best interests of the State. There had been sharp contention among all classes of citizens as to the validity of the amendment from the day it was introduced in the senate more than two years ago. Various important interests throughout the State made imperative demand for a quick settlement and a final disposition of the vexed question, which has now been had. The opinion of Chief Judge Whitfield will be found to be both able and exhaustive, showing painstaking research and conscientious care.


The legal status of ice cream has now been fixed and decided by a Toronto judge. That city has a strict law regulating Sunday observances, and the authorities, it seems, are enforcing it rigidly - perhaps with the object of making it so odious as to force its repeal. A certain restaurateur was haled before the court on the charge of having wilfully and knowingly sold ice cream of a Sunday, and the question arose whether or not ice cream is properly to be regarded as food. The defendant naturally took the affirmative of the case, and did not deny the charge that he had sold the article. The court sided with the affirmative and discharged the defendant, saying: "I am satisfied from the evidence the defendant was carrying on, strictly and exclusively, his business as a victualler. His candy department, if the small stock he carried can be so

described, was closed to the public. I am of opinion, under all circumstances of the case, that supplying the constables with ice cream was supplying a refreshment in the nature of a light meal, in the ordinary course of his eating-house, and was not an offense under the statute." We believe the learned judge was perfectly right, and are confident the great mass of ice cream-loving men and especially women will unite in declaring him a very Daniel come to judgment. Of course it will not be claimed for a moment that ice cream is as "fillin'" as


some other products of the kitchen, but that it is food is pretty well established. Wheelmen on long journeys have been known to subsist on it for days, and some members of the fair sex seem to possess a yearning to do SO. A luxury it is so are sugar, quail-ontoast and soft-shell crabs but a food as well.

[ocr errors]
[ocr errors]

[merged small][ocr errors]


Carriers - Duty to Persons Riding Without Payment of Fare - Servants Riding Home from In Louisville & N. R. R. v. Place of Labor. Scott's Adm'r, decided by the Court of Appeals of Kentucky, in May, 1900, it was held that a station agent riding to his home on a passenger train of his employer, by permission of the conductor, five hours after his labors of the day had ceased, was a passenger, and did not take the risks attending the operation of the train with the coach

instead of the engine in front.

It appeared that the sister of the decedent was the nominal station agent, but he performed the duties of the position for her, she drawing the salary and paying it to him. He was treated throughout the opinion as the actual station agent. The court said in part:

In Hutch. Carr. (sec. 565) it is said: "It is universally agreed that the payment of the fare or the price of the carriage is not necessary to give rise to the liability. The carrier may demand its prepayment, if he chooses to do so; but, if he permits the passenger to take his seat, or to enter his vehicle as a passenger, without such requirement, the obligation to pay will stand for the actual payment, for the purpose of giving effect to the contract, with all its obligations and duties." The adjudged cases of many of the courts of last resort of the country support Wood and Hutchinson on the proposition stated by them. In Wilson v. Railroad Co. (107 Mass. 110) the driver of a horse car invited a person to get on the car, and while

thus traveling he was injured. The court said: "A master is bound by the acts of his servant in the course of his employment. They are deemed to be the acts of the master (Ramsden v. Railroad Co., 104 Mass. 117, and cases cited). The driver of a horse car is an agent of the corporation, having charge, in part, of the car. If, in violation of his instructions, he permits persons to ride without pay, he is guilty of a breach of his duty as a servant. Such act is not one outside of his duties, but is an act within the general scope of his agency, for which he is responsible to his master. In the case at bar, the invitation to the plaintiff to ride was an act within the general scope of the driver's employment, and, if she accepted it innocently, she was not a trespasser. It is immaterial that the driver was acting contrary to his instructions."

It is argued by counsel for appellant that as the decedent was its employee he did not sustain the relation of passenger, and that, being an employee and riding upon the train, he took the risks attending the operation of the train. To perform the duties imposed upon his sister as station agent, it was not necessary for him to ride upon this train. His labors on the day of the accident had ceased five hours before it took place. The mere fact that the injury took place between Rowland and Stanford, he being on his homeward journey, did not create the relationship of master and employee. He was not an employee on this train at any time. His services were distinct from that of operating the train. Some courts have held that where an employee in another department of the service is permitted to ride on the train of his employer from his home to the place of his employment, or on his return from his employment to his home, the status of passenger does not exist, but he is regarded as being an employee taking such risks as employees in charge of the train would take. There is a sharp conflict in the opinions of the court on this question. If it be a correct rule, the facts of this case do not bring it within the rule. 2 Wood, R. R. (p 1217), criticises the correctness of the proposition, saying: "But, as to the last proposition, it does not seem to us that it has any foundation in principle as to employees who have not commenced their work for the day, or who are returning after the services of the day are completed. How the mere circumstance that a person is in the employ of the company in a department entirely distinct from the operation of the train, who is permitted to ride free upon the train to and from his work, can deprive him of the status of a passenger, is not readily seen. While going to and from his work the relation of servant does not exist. He is merely on his way to take up his position as servant, or is returning after his duty as a servant has ceased, and there is no reason why he should not be treated as a passenger, as well as any other person

who is riding free upon the train." We are of the opinion that the decedent was a passenger on the train, and the same duty was imposed upon the company to carry him safely, as in the case of other passengers. This being true, he cannot be held to have assumed the risks attending the operation of the train in the manner and under the circumstances in which this train was operated, the obligation being upon the company to use the utmost care and diligence to carry him safely. The duty was upon it to operate its train in such manner as would enable it to do this. If the manner of operating the train was not in the exercise of that high degree of care which a carrier of passengers is obligated by the law to exercise, it assumed the risk, and not the passenger, of traveling upon the train thus operated.



STATE OF MISSISSIPPI ex rel. MONROE MCCLURG, Attorney-General, v. ROBERT POWELL. WHITFIELD, C. J., delivered the opinion of the


Three questions are presented for solution: First. Is the question whether the proposition submitted to the voters for adoption as part of the constitution be one amendment or more than one amendment, a judicial question; and, likewise, is the question whether such proposition received the majority prescribed by the constitution as essential to its valid adoption, a judicial question?

Second. If these questions are judicial questions, was the proposition one amendment, or two or more amendments, and as necessarily involved herein, was the proposition submitted in the way the constitution imperatively requires it to be submitted?

Third. Was the proposition adopted by the majority of qualified electors prescribed by the constitution as essential to the adoption of an amendment thereto?

As to the first proposition, we are clear that both questions are judicial questions. This is placed beyond cavil, as the settled doctrine of this State, by Green v. Weller, 32 Miss. and Sproule v. Frederick, 69 Miss. 898. The same response is given by an overwhelming weight of authority from other States. In the 6th vol. of Amer. & Eng. Encyc. of Law, at page 908, second edition, it is said:

The courts have full power to declare that an amendment to the constitution has not been properly adopted even though it has been so declared by the political department of the State;" and for this statement the following authorities are cited: Colier v. Fruison, 24 Ala. 100; State v. Swift, 69 Ind. 505; Koehler v. Hill, 60 Iowa, 543; State v.

« PreviousContinue »