Order of General Term reversed and that of County THE NOTES. THE richest lawyer in the world, and probably the richest that ever lived, has just died - John Jacob Astor. But he became rich by never practicing his profession. He took care of a little fur-money that his grandfather left to his father, and which in this century has grown from some twenty-five to more than two hundred millions. There is nothing that grows so fast as money when carefully and skillfully cultivated, but the difficulty is in getting the seed. Some one sends us a copy of the appellant's brief in Nanz v. Oakley, lately argued in the Court of Appeals, calling attention to the following novel method of argument: "The leading case on the subject in dispute is that of Kirby v. Turner, 1 Hopk. Ch. Rep. 352, and the attention of the court is especially called to this case as embodying the law of the case on appeal. It has been pronounced good law' by the Hon. Noah Davis, chief justice of the General Term, from whose judgment we appeal, and who 'concurred' in the opinion written by Judge Brady. This case of Kirby v. Turner was never before the court at the Trial or General Term. It was misprinted as Johnson's Reports, and so overlooked. Judge Davis says, December 28, 1888: 'I have examined the case referred to by you' Court affirmed with costs to defendant in all courtsYates County National Bank, respondent, v. Zeno F. Carpenter, impleaded, etc., appellant. Judgment affirmed with costs-Elizabeth L. Goodyear, administratrix, appellant, v. John B. Adams and others, respondents. Judgment affirmed with costs - Louis Bajus, appellant, v. Syracuse, Binghamton and New York Railroad Company, respondents. Order affirmed with costs Edwin McDonald, appellant, v. Abram T. Van Horne, respondent.- Judgment affirmed with costs - Charles Jansery, respondent, v. Otto Stietz New York Glass Letter Company, appellants. Judgment affirmed with costs-John Consalus, appellant, v. Isaac McConihe and others, respondents.- Judgment affirmed with costs Edgar E. Cook, respondent, v. New York Central and Hudson River Railroad Company, appellant.-Judgment affirmed with costs - Robert Rogers, individually and as administrator, etc., respondent, v. New York Life Insurance and Trust Company, impleaded, appellant. -Judgment affirmed with costs-William B. Meeker and others, respondents, v. Abram H. Dayton, appellant. Judgment affirmed with costs People, ex rel. Nathan B. Warren and others, respondents, v. Ed- (Kirby v. Turner), and I think it is still good law, and ward Canter and others, appellants (two cases).Order affirmed with costs Francis W. Taylor, respondent, v. Brooklyn L. R. R. Company, appellant. -Order of General Term reversed as to appeal of plaintiff and affirmed as to appeal of defendants, Frank W. and Robert P. Bounie, and judgment of referee restored with costs of one appeal to plaintiff against the defendants in all courts--Elijah R. Schoonmaker, appellant and respondent, v. Frank W. Bonnie and others, respondents and appellants. Judgment affirmed with costs-Timothy H. Teall, respondent, v. Consolidated Electric Light Company, appellaut. SECOND DIVISION. Order of General Term reversed and judgment of Special Term affirmed with costs Percival Roberts and another, appellants, v. Francis H. Tobias and another,respondents. Judgment affirmed with costs -Martin McIntosh, appellant, v. St. Philip's Church, New York, respondent. Judgment reversed, new trial granted, with costs to abide event Oceana A. Bancroft, appellant, v. Home Benefit Association of New York, respondent.- Judgment affirmed with costs - Phoebe Noxon, appellant, v. William J. Glen and others, impleaded, respondents. Judgment affirmed with costs-Alfred H. Jugla and another, respondents, v. Amedee Trouttet, appellant.- Judgment affirmed with costs Clarence R. Conger and others, appellants, v. New York, West Shore and Buffalo Railway Company, respondent. Judgment affirmed with costs-Mary E. Y. Home, respondent, v. James Lyall and another, appellants. Judgment affirmed with costs Albert Dings, respondent, v. Rosetta M. Guthrie and another, appellants. Judgment affirmed with costs Adam F. Gebhard and another, respondents, v. Walter W. Squire and others, impleaded, etc., appellants.-Judgment affirmed with costs-Theodore C. Weeks, appellant, v. Silver Islet Consolidated Mining and Land Company and others, respondents. Judgment affirmed with costs-Metropolitan Concert Company, Limited, appellant, v. Howard A. Spery and another, respondents. Judgment affirmed with costs-Michael Noonan, respondent, v. John H. Strahan, appellant. Judgment affirmed with costs - Margaret Coyle, respondent, v. Charles Nies, appellant. Judgment affirmed with Your on its main propositions recognized by the Court of * *Kirby v. Turner is so important a case that it should either be quoted in full, or read by the court. As it would be cumbersome to resort to the former, we earnestly request the court to examine this case particularly. It has never been criticised or overruled, and is the law to-day, and it never having been before any court in all these litigations, it cannot be said that it has even been considered. Especially in this case, as Judge Noah Davis says, it is good law to-day, and recognized, in its main propositions, by the Court of Appeals,' and Judge Daniels says, it would have received careful attention;' and both these judges concurred' in Judge Brady's opinion. It shows conclusively that the court did not grasp the real question involved on appeal. I have Judge Davis' letter offering to argue the case on appeal in this court for the appellant, but I am of opinion that he is dis qualified. His opinion expressed now is after reading the opinion of the chancellor in Kirby v. Turner." The Albany Law Journal. ALBANY, MARCH 29, 1890. CURRENT TOPICS. HE printed argument of Messrs. Tand James C. Carter in the N Joseph H., Choate United States Supreme Court, on appeal from his discharge by Judge Sawyer, on habeas corpus, is a demonstration, on principle, of the correctness of that decision, and is fortified by a considerable number of analogous cases, although this case seems unique in its circumstances. The history of the writ of habeas corpus, when issued to release Federal officers from seizure by State authorities, for acts done under the Federal laws, is very learned and interesting. The only real question in the case seems that raised in the third point, namely: "The personal protection of Mr. Justice Field by Neagle was a duty imposed upon him by authority of the United States, and the homicide necessarily committed by him in rendering that protection effectual was an act done by him in pursuance of a law of the United States,' in the sense of the statute; and his detention therefor by the State court on a charge of murder was 'in violation of the Constitution and laws of the United States' in the sense of the statute." Under this point counsel elaborate the distinction between the protection of the mere man Field and that of the justice of the court; that Field himself would have had an indisputable right under Federal laws to protect himself as such justice, and that Neagle had the same right, without accountability to State tribunals, not only as a citizen in the exercise of his duty to prevent a violent felony, but as deputed by the chief Federal executive law officer. All this is very ingeniously spelled out of the statutes and evolved from their evident purpose. It is argued and this seems the keynote of the argument, and a very striking and apt expression that there is such a thing as the peace of the United States,' which the Federal officers are bound to preserve, even on the soil of a sovereign State. The final and conclusive word is said when it is said that Neagle was just as much entitled to discharge as Mr. Justice Field was. All that learning, ingenuity, reseach and logic can do has been done in this very vigorous and convincing argument. If it were less cogent we should still have no fear of the result, for it must be a despicable court that cannot find or make a way to protect itself from assassination while in the discharge of its official duty in the court-house or on its way to the court-house to discharge that duty. A similar immunity is extended by State law to non-resident suitors and witnesses from arrest when attending court or on their way to or from court. Mr. Justice Field was just as free from liability to answer to the State authorities for his act as if he had had his foot on the stairs of the court-house or on the steps VOL. 41 No. 13. 44 6 to the bench; and his privilege attaches to his official protector, the United States special peace officer, appointed by the attorney-general to see him safely to the court-house and keep him safe while there. We congratulate the eminent counsel, the conceded leaders of the city bar, on this great opportunity to vindicate the necessary and beneficial Federal authority, and the clearness and conclusiveness with which have with the Their argument will form a valuable addi problem. somewhat sparse learning and arguments on the difficult subject. The recent conflict in the courts of this State about the right of a wife to sue alone for injuries to her person or character has been abated by a bill just passed, and signed by the governor, which also does away with the husband's liability for the wife's torts. The bill provides that a married woman shall have a right of action for injuries to her property, her person or character, and arising out of the marital relations in all cases in which an unmarried woman or a husband now has a right of action by law; that the husband shall not be liable in damages for his wife's wrongful or tortious acts, nor for injuries to persons, property or the marital relation, caused by the acts of his wife; unless the acts were done by actual coercion or instigation of the husband; and such coercion or instigation must be proven as other facts are required, but in all cases embraced in the second section the wife shall be personally liable for the wrongful or tortious acts. Nothing in the act contained to affect any rights, causes of action or defenses existing at the time of its passage. The Mississippi court has reversed the conviction of prize-fighter Sullivan, on account of the defectiveness of the indictment in not averring that the fight was public and that Kilrain fought Sullivan. The statute neither defines the offense of prizefighting nor declares what act done shall be a violation of its provisions. The indictment did not charge that Sullivan and Kilrain fought against each other, but averred that Sullivan, in pursuance of a previous appointment to engage in a prize-fight with Kilrain for a large sum of money, did unlawfully engage in a prize-fight with Kilrain, and did enter a ring, and beat, strike and bruise the said Kilrain. The innocence and ignorance of courts is astonishing. An unlearned citizen would suppose that "prize-fight" is as significant a phrase as "horse-trot" or "game of poker," etc., and that if Sullivan did enter that ring and beat Kilrain, Kilrain must have been in it, with intent to beat or be beaten. But the learned law knows better than to encourage such crude notions. Probably the defendant ought to have been acquitted on the proof, for the reason, that although Kilrain was in the ring, he was not in the fight, so to speak, and did not fight Sullivan. The Louisiana court seems to have discharged some White Caps" for shooting a man, on the ground that they did it uninten tionally while assaulting and routing out a bad woman, in pursuance of the principles of the organization. Our information must be defective, for no court in its senses could have made such a decision. In relation to a bill pending in the Assembly of this State authorizing eight of a jury to pronounce a verdict, Chief Justice McAdam, of the City Court, is unquestionably correct in saying that it is unconstitutional. Such a change can only be effected by amendment of the Constitution. Few things are so certain as that a verdict of twelve jurors is guaranteed by our fundamental law. We shall save up our thunder about the Code of Evidence for a more convenient season, in hope of killing several birds with one stone, and therefore shall not now undertake to reply to the answer of our learned brother of the New York Law Journal further than to say we agree with him about section 829 of the Code of Civil Procedure. We would reform it altogether, by abolishing it, not only because it is, or seems, difficult to phrase it so as to avoid dispute, but because it is grossly unjust to deprive a party of the power to testify in his own behalf simply because the adverse party has died or lost his wits. We have made this suggestion many times, and we believe a good many are coming to our way of thinking, on the bench as well as at the bar. In relation to an address by Marshall D. Ewell before a microscopical society, Judge Bradwell says in the Chicago Legal News: "The fact is, scientific experts, as they are sometimes called, are getting the matter of examining blood corpuscles down so fine that it will be impossible to hang any criminal on their testimony. Juries will not believe them. When you talk to a common juryman about the 1-500000 of an inch, he at once thinks of an inch board, and says to the expert, 'What! split an inch board into 500,000 parts? You can't make me believe that!' and of course the criminal goes free, simply from the fact that too much was claimed by the expert. Professor Ewell claims to be able to rule with a machine he has 2,500 lines to the inch. He cannot, and no other man can, and do it accurately, so as to make a scale that will be reliable for the measurement of blood corpuscles. The sooner experts says that there are slight variations in nearly all their experiments, and that they seldom get two results precisely alike in all respects, the better it will be for true scientific investigation." There is a good deal of "horse sense," ie., practical wisdom. Much learning hath made many experts mad. It is astonishing to note how timid and circumspect some judges are when a great newspaper is in question. So Judge Barrett, when he found a World reporter skulking in the jury-room on the Flack trial, to overhear and report the discussions of the jury, although he acknowledged that the reporter's conduct was a "great impropriety," could not see that it was a contempt of court! Was he afraid of the World's bad tongue? What a comedown from the loud-roaring lion of the Sharp trial to the gently-complaining dove of the Flack case! The judge's notion is the rankest nonsense, in our opinion. A defenseless court indeed must that be which has not inherent power to protect itself against such illegal eavesdropping! We rather think, if we had been the judge, that the adventu rous worldling would have found himself in jail. At all events, we would have tried the experiment, and established a precedent one way or the other, so that if courts have not this power the Legislature may grant it to them. Judge Barrett is too able a man to deserve the appellation of old-judge-afraid-of-thenewspaper. as smart The Kremmler case has turned out just as everybody expected. Mr. Bourke Cockran is " as lightning," but there is a certain amount of nonsense that the courts will not stand, and his nonsense in this particular was of that kind. He really does his electrical clients injustice in trying to make the world believe that their high currents cannot kill on purpose, when they do it accidentally every day. If he is really sincere, we wish he would try a fifteen-hundred-volt current on the Tammany sachems. They could not do a better public service than to offer themselves as practical backers of their great orator's theories. We do not now recall another so audacious and impudent a claim made before a court of justice as this in Kremmler's case, If Mr. Cockran wants to abolish capital punishment we are with him, at least sufficiently to have the experiment fairly tried. We think the community will come to it eventually. But until then let us have our laws enforced without too much regard for rival business interests. which plaintiff had been compelled to pay for personal injuries sustained by falling on an icy sidewalk, it was held that the cause of action survived. The court said: "His position, and the basis of his whole argument, is that the cause of action stated in the complaint is based on the alleged unlawful acts, wrongs and torts committed by the decedent in his life-time, and did not survive his death within the rule of the common law, that all actions ex delicto die with the person by whom the wrong was done, and in support of his argument cites and relies upon the recent case of Hegerich v. Keddie, 99 N. Y. 258. I think that the questions discussed and determined in that case have no application whatever to the one under consideration. It is not alleged in the complaint that the deceased did or caused to be done any affirmative act which in any way contributed to the injuries received by Fergu * ** son for which the plaintiff became liable to her in damages. The deceased was not charged with doing any act which would make him liable, by the rules of the common law, either to the injured party or to indemnify the plaintiff against his liability to such person. By the rules of the common law no duty is imposed upon the owner or occupant of land adjacent to a highway or street to improve, repair or keep the same in order. This action cannot be maintained upon the theory that the decedent is a wrong-doer in neglecting to keep the sidewalk in good order. He did not lay down the sidewalk, and had nothing to do with its construction, at least it is not so charged in the complaint. If the plaintiff had a cause of action against the decedent in his life-time, it must have existed in the provisions of some statute which required him in absolute and unconditional terms to perform some duty in which the public was interested, and which he failed to do, and in consequence thereof the sidewalk became in an unsafe and dangerous condition. The plaintiff bases its claim for indemnity upon the terms of its charter, which charged the defendant with the unqualified duty and obligation to keep the sidewalk in front of his premises in good repair, and that he was primarily liable to the injured party because he failed to perform the statutory obligation. * The duty of vigilance is imposed upon the landowner to see that the sidewalks adjacent to his property are kept in good repair, and this obligation is imperative, and depends upon no condition whatever. It cannot be doubted that the Legislature had the power to impose a duty of this nature upon the owner of lands situated within the limits of a municipal corporation. The power conferred upon the corporation is supposed to be for the benefit of property owners as well as for the inhabitants residing within the city limits. The obligation imposed by the statute is in the nature of a tax upon the property of the owner for the purpose of keeping the public streets in repair, which the Legisla- | ture had the undoubted right to impose. This law was enacted for the protection of all the public using the sidewalks in the city of Rochester, and any person injured by reason of the neglect of the land-owner to keep the sidewalks in front of his premises in good repair is liable to an action for the damages which he has suffered, if he himself is free from contributory negligence. The principle upon which such liability is based, as stated in the cases already cited, is simply this, that where a person is charged with the performance of a duty, he is liable for his neglect to perform the same to any one sustaining special damage in consequence thereof. Robinson v. Chamberlain, 34 N. Y. 389, and Conrad v. Village of Ithaca, 16 id. 158. The statutory obligation is in the nature of a contract between the land-owner and the public, and an action for a breach of the performance survives the death of the obligor." * ** * In State v. Willis, Supreme Court of North Carolina, January 14, 1890, it was held that a natural, as distinguished from an artificial, oyster-bed is one not planted by man, in any shoal, reef or bottom where oysters are to be found growing, not sparsely, or at intervals, but in a mass or stratum, and in sufficient quantities to be valuable to the public. The court said: "In this State the oyster industry is yet in its infancy. The population is too sparse, and the present demand too slight, to have caused any continuous fishery, or even any general knowledge of the positions or areas of the natural beds. Mere testimony as to previous fishery or non-fishery would not therefore in all places be conclusive. It is not easy, from these conflicting theories, to deduce a satisfactory definition. We think that it is the capacity of the bottom to attach what fishermen call the drifting 'spawn' or 'spat' which distinguishes a natural from an artificial oyster-bed; but it will not do to confine this capacity to the inherent character of the soil, since many beds which are now considered natural may owe their origin to accidental causes, such as the deposit of brush, shells, drift-wood and other objects to which the young oysters have adhered, and thus, after many years, resulted in the formation of a stratum which fulfills in every way the common idea of a natural oysterbed. Neither can it with reason be said that every part of the bottom to which oysters may adhere, or to which they do adhere, and grow, will constitute such a bed, as they may be found scattered here and there in such small quantities as to be of but little value to the public; and such a theory would prevent entries, and thus defeat the purpose of the law in encouraging their cultivation. Something more permanent and valuable is meant by the word 'bed.' Webster's (1st ed.) and the Century Dictionary give as one of the definitions of 'bed:' 'A layer; a stratum; an extended mass of any thing, whether upon the earth or within it, as a bed of sulphur, a bed of sand or clay; and so the verb 'bed:' 'To lay in a stratum; to stratify; to lay in order or flat; as bedded clay, etc. This view is well illustrated by the stratum of marl to be seen in the banks of many of our eastern rivers, and in the marl pits in the eastern part of this State, the same being composed mainly, and in many cases, entirely of oyster-shells, with alluvial deposits above. These considerations would exclude therefore the scattering growth of oysters which is to be found in many parts of the waters, and which is too small in quantity to be of value to the public. We think that a natural, as distinguished from an artificial, oyster-bed is one not planted by man, and in any shoal, reef or bottom where oysters are to be found growing, not sparsely. or at intervals, but in a mass or stratum, and in sufficient quantities to be valuable to the public. This definition, we think, is more in accord with the spirit of our legislation than that of Judge Goldsborough, of Maryland. The latter, in our opinion, lays too much stress upon the area, and involves an inquiry into the methods of taking oysters, and remuneration for the labor and capital employed. Too many elements of uncertainty enter into it to be of practical use in this State, where the cultivation of oysters is in its infancy, and their taking by the public is not exclusively for the purpose of sale and profit. While it seems impossible to give a more particular definition, it is believed that the one which we have adopted reflects the true spirit of the law, and may be of some practical use in ascertain- | ing where grants may be made." In Hand v. Cale, Supreme Court of Tennessee, January 21, 1890, it was held that a travelling salesman, who spends about half his time on the road, selling goods and collecting, and the rest in shipping and receiving goods, and making sales and collecting in the city, is a clerk within the meaning of a statute making stockholders liable for money due "laborers, servants, clerks and operatives." The court said: "In arriving at a satisfactory conclusion we find but little aid and comfort from the adjudged cases from the courts of other States, the same language receiving very different construction at the hands of different courts, of equally high authority, as a citation of some of them will show. The following persons have been held not to fall within the terms servant' or 'laborer:' The secretary of a manufacturing company (Coffin v. Reynolds, 37 N. Y. 640); a civil engineer (Railroad Co. v. Leuffer, 84 Penn. St. 168); a consulting engineer (Ericsson v. Brown, 38 Barb. 390); an assistant engineer (Brockway v. Innes, 39 Mich. 47); an overseer on a plantation (Whitaker v. Smith, 81 N. C. 340); a bookkeeper and journal manager (Wakefield v. Fargo, 90 N. Y. 213). These cases seem to rest upon the idea that the terms named have reference only to persons who perform menial or manual labor, or rather to persons whose chief employment is to perform such labor, and not to embrace the higher class named in the authorities just cited, although each of the persons named did perform more or less of manual labor, as incident to their employments. On the other hand, a master mechanic or machinist employed by the year was held to be embraced under a statute protecting clerks or laborers. Sleeper v. Goodwin, 67 Wis. 590. But without further naming the cases, we refer the curious to note 1 to section 215, Cook Stocks, where a number of cases are to be found. We do not deem it necessary to define the terms laborer' or operator,' as it may be said to be clear, under the principles of construction that are to govern us, that they do not include the travelling salesman on a salary of $100 a month. Whether he would be embraced under the term 'servants,' it would be difficult to say. He would be, if we were at liberty to accept the term in its broadest sense, as defined by Mr. Wood in his work on Master and Servant, viz.: 'The word 'servant,' in our legal nomenclature, has a broad significance, and embraces all persons, of whatever rank or position, who are in the employ, and subject to the direction or control of another in any department of labor or business. Indeed it may in most cases be said to be synonyThat it is howmous with 'employee." Section 1. * * * ever not used in that sense in the statute is shown by the fact that other terms are used, which would be altogether unnecessary and idle, if it were meant to be synonymous with 'employee.' We would have no room for the words 'laborer,' 'clerk' or operator.' Webster defines clerk' as 'an assist ant in a shop or store, who sells goods, keeps accounts,' etc. Bouvier says he is a person in the employ of a merchant, who attends to only part of his business, while the merchant himself superintends the whole, or a person employed in an office to keep accounts or records. Rapalje says: 'In business law, an assistant employed to aid in any business, mercantile or otherwise, subject to the advice and direction of his employer.' Rap. & L. Law Dict. 219. That clerk' embraces and includes salesman' seems beyond all doubt. If the term includes the salesman who remains in the shop or store, we can see no reason why it does not include the salesman on the road, under like terms of employment. Each makes sales, collects accounts, handles goods and acts under the instruction of the employer." See note, 33 Am. Rep. 350. ARE WOMEN LEGALLY ELIGIBLE IN NEW YORK AS NOTARIES PUBLIC? N 1871 Hon. Marshall B. Champlin, then attorneygeneral of the State of New York, gave an opinion in the negative (Sickels' Opinious Attorneys-General of New York, page 554), but so much light has since been thrown upon the question by discussion and judicial decisions that his opinion must now be considered in the light of subsequent authorities. The question was not involved or decided in Findlay v. Thorn, 1 How. Pr. (N. S.) 76; 31 Alb. L. J. 43, though the current of the opinion (1 How. Pr. [N. S.] 78) would seem to be in favor of the right of a woman to hold the office. The Massachusetts cases cited in the opinion are both cases, as hereafter shown, where the offices in question pertained to courts and the administration of justice therein. A woman is a citizen. Minor v. Happersett, 21 Wall. 162; Wheeler v. Wall, 6 Allen (Mass.), 558; United States v. Crookshank, 92 U. S. 542. In some recent cases it is held that at common law women could not sit in Parliament nor vote for members of Parliament. Robinson's Case, 131 Mass. 377; Chorlton v. Lings, L. R., 4 Com. Pl. 391, 392. Neither could they take part in the administration of justice either as judges or jurors, except as one of a jury of matrons. Robinson's Case, 131 Mass. 377; Chorlton v. Lings, L. R., 4 Com. Pl. 390, 391; 3 Bl. Com. 362. The office of attorney and counsellor was within the rule, for that office is "for the administration of justice." Robinson's Case, 131 Mass. 376; Mrs. Myra Bradwell's Case, 55 Ill. 535; 16 Wall. 130; Matter of Miss Goodell, 39 Wis. 232; Mrs. Belva Lockwood's Case, 9 Ct. Cl. Rep. 346; Miss Stoneman's Case, 33 Alb. L. J. 402; 53 Am. Rep. 325, note; 40 Hun, 638, mem.; Leonard Case, 12 Ore. 93; 53 Am. Rep. 323. Though see Matter of Hall, 50 Conn. 131. And so a justice of the peace. Opinion of Judges, 107 Mass. 604. So a postmaster. Matter of Hall, 50 Conn. 137. See also 25 Alb. L. J. · 104. Of course, where, as in the Constitution of New York (art. 2, § 1), an act is authorized, i. e., a right to vote, or it is prescribed that an office shall be held by "male" citizen or by an "elector," who must be such, the Legislature is powerless, by statute, to confer any rights. Where the disqualification is merely a |