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we think, that the book has been put into one But the rapid development of the law since Blackvolume. There are 850 pages, and the mechanical stone's day has relegated him to the company oi part of the work has been done in that excellent his great but shadowy predecessors, Brocton, Coke style for which the house of T. H. Flood & Co. is and Littleton, and has rendered his work largely justly noted. Zane on Banking will be found up obsolete, insomuch that its unsuitability to serve to date, complete and authoritative.

as an introduction to the modern law of real prop

erty can no longer be concealed, even by the The Rules of Evidence Applicable on the Trial of voluminous notes of learned editors.” Recogniz

Actions at Common Law, in Equity and ing, at the same time, that much of the work reUnder the Codes of Procedure. By Austin ferred to remains and has all the freshness and Abbott, LL. D. Second Edition, Revised and validity of the latest reported case, the editor has Enlarged, by John J. Crawford, of the New preserved all the writings on real property by the York Bar. New York: Baker, Voorhis &

great authors from Glanville and Bracton down to Co., 1900.

Kent and Story which have not become obsolete, It is now twenty years since the first edition of supplementing it by the contributions of modern Abbott's Trial Evidence was issued. During that authorities and by the principal English and Amertime it has enjoyed the reputation of being one of

ican statutes, thus bringing the presentation of the the most useful law books ever written, because of

to date. subject down

Mr. Kirchwey, who the admirable selection and arrangement of the brought to the difficult work almost ideal qualifimaterial so as to make it readily available in the cations, has produced a book which is sure to be course of a trial or in the preparation for it. This authoritative. It will save the student an immense

amount of labor in hunting through scores of arrangement the reviser has wisely left intact,

volumes in search of the most lucid explanations making his additions mostly in the way of foot

of the doctrines of real property law, whose sciennotes, and only altering the text where there have been changes in the law. He has sought, how

tific study it places within the reach of all students. ever, to cite all the cases in which new points have been decided, and such recent cases affirming or Probate Reports Annotated. With Notes and applying old rules as would give the practitioner References. By George A. Clement, of the a clew to the latest authorities on those subjects. New York Bar. Vol. IV. New York: Baker, In many cases, in order to avoid the citation of an Voorhis & Co., 1900. tuinecessary number of cases, he has substituted This is the fourth volume of the well-known recent authorities for those originally cited. Such series of Probate Reports Annotated, and includes examination as we have been able to give to the 88 leading cases in full. As heretofore, the notes work clearly indicates that the reviser has per

are a very important and valuable feature, many formed his part with skill as well as conscientious

of them being exhaustive, and all helpful and ness, making the new edition as nearly as possible illuminating in solving the many knotty questions just what the author himself would have made it. that are continually arising in the administration One feature of the work that is especially worthy of probate law. of notice is the fact that it is prepared for use in cvery part of the country. The work is in one large octavo volume of 1,226 pages, and printed in

Literary Notes the best style.

Harper's Magazine for June has the following Readings in the Law of Real Property. An Ele- table of contents: “ Inside the Boer Lines," by E.

mentary Collection of Authorities for Stu- E. Easton; “ Eleanor," a novel; by Mrs. Humphdents. Selected and Edited by George W.

rey Ward; “ Balloons in War," by Gen. A. W. Kirchwey, Nash Professor of Law in Colum-Greely; “ The Fight," a story, by Stephen Crane; bia University. New York: Baker, Voorhis

The Mantle of Elijah," by Zangwill; “ Life After & Co., 1900.

Death,” by Dr. James Hervey Hyslop; “The The aim of this work is to bring within the

Debut of Jack," a story by E. W. Townsend; A reach of students the necessary material for a thor- Bicycle of Cathay," a story, by Frank R. Stockough understanding of the law of real property.

ton; “ The Singing of a Bird,” a story, by Julian As its title indicates, it is a series of carefully and “A Journey to the Abyssinian Capital,” by

Hawthorne; “ Delia," a story, by Gertrude Roscoe, selected readings on the elements of property law, the several topics being treated by those who have Capt. M. S. Wellby. most clearly expounded them. As the editor re- In the June McClure's President Kruger is pormarks in his preface, “the service which it seeks to trayed in a character study by Edmund Garrett, render has for a hundred years been performed which is illustrated with portraits. J. Lincoln for the American student by the second book of Steffens relates some “ Incidents of Conflict” beBlackstone's commentaries on the common law. tween Governor Roosevelt and the party leaders. William J. Lampton contributes an illustrated arti- | ard Temple reviews the vast possessions of “Great cle on the Cape Nome gold fields. A striking | Britain in Asia," and calls attention to the necesfeature of the number is a naval story of the Jap-sity of her taking steps to safeguard the influential anese-Chinese war by Adachi Kinnosuke, a Japan- position she now occupies in that continent. ese writer. There are several other short stories

The Macmillan Company have in press a new in the number.

work by Prof. Nash, author of “The Genesis of “The Soul of a Christian," a study in the re

the Social Conscience," upon The History of the ligious experience, by Frank Granger, is a book Higher Criticism of the New Testament.” This which will be published immediately by The Mac- new volume of Prof. Nash's is one of the New millan Company. The author, who is already Testament Handbook Series, and promises to be known by his books on "The Worship of the of exceptional interest. Prof. Nash has given Romans and "A Short Account of the Human something more than a mere statement of the Mind," has tried to describe the Christian life, as various schools of criticism, and has produced far as possible, in the terms, and with the methods, what is in fact a sort of philosophy of the critical of psychology

movement from the earliest times. Practically it

is the first book to be written on the general subThe June number of the North American Re

ject in English. view furnishes another fine illustration of the high ideal which the editor keeps before him in con

Little, Brown & Co. published May 19"A ducting that magazine. Mr. W. J. Bryan opens

Dream of a Throne, the Story of a Mexican Rethe number with an article on The Issue in the volt,” by Charles F. Embree. The events take Presidential Campaign." Edmund Barton, a noted place around the shores of Lake Chapala, with Australian statesman, writes of " Australian Fed

which a long residence in Mexico has made the eration and Its Basis.” Prof. J. R. Straton dis-author thoroughly familiar. There are many decusses the question, “ Will Education Solve the scriptions of the beauties of the lake and the surRace Problem?” and presents arguments and rounding mountains, ruins are described, and one statistics in support of his belief that it will not.

is given glimpses of primitive peoples with simple Baron Pierre de Coubertin, the founder of the

customs. The period of the story is 1845. Vicente, modern Olympian games, describes the measures

the son of the last daughter of an ancient royal which have been taken to insure the success of the house, leads the revolt. Opposed to him is Rodsecond series of these cosmopolitan competitions, rigo, an American in the service of the Mexican which will be held in Paris this summer in connec

government, and among the other characters are tion with the exposition. Sir Sidney Shippard, Clarita, Vicente's foster-sister, whose pure and who spent many years in high official position in simple nature is clearly portrayed, and Pepa, his different parts of South Africa, assuming that the brilliant, faithless sweetheart; also Fortino, whose present war will result in victory for the British giant deeds fill one with delight, a character formarms, endeavors to determine, with due regard to ing a worthy companion to Ursus in “ Quo Vadis," the diverse interests involved, “How England

but strongly individualized. The book contains Should Treat the Vanquished Boers.” E. Denison

some dramatic and stirring incidents, and increases Ross, professor of Persian in University College, in interest to the end. 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,

A character sketch of " James J. Hill, a “ What Has ome 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 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.


rison, laid down an important rule with refThe Albany Law Journal.

erence to responsibility for trust securities. The facts of the case appear to be that Daniel

Morrison, when acting as trustee for an A Weekly Record of the Law and the Lawyers. Pablished by estate, had Francis S. Weeks act as his agent Contributions, items of news about courts, judges and lawyers' and attorney. (Weeks has since been in addresses on legal topics, or discussions on questions of timely State prison for extensive misappropriations Dierest are solicited from members of the bar and those interested in legal proceedings.

of trust funds.) Weeks was permitted to

handle the trust funds and to discharge the All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL duties of trustee in Mr. Morrison's stead, All letters relating to advertisements, subscriptions, or other business matters, should be addressed to Tux ALBANY LAW during which time he embezzled some of the JOURNAL COMPANY.]

trust moneys, subsequently succeeding Mr. Subscription price, Five Dolars per aovam in advanco. Single Morrison as trustee. At least a portion of aimber Twenty-Five Conts.

the securities had been in Weeks' possession ALBANY, JUNE 16, 1900.

as attorney for some time prior to Mr. Mor

rison's appointment as trustee, and Mr. MorCurrent Lopics.

rison continued Weeks as his attorney,

leaving the securities under his control. The N interesting decision relating to the law Colonial Trust Company, which was substi

of libel has been rendered by the New tuted for Weeks as trustee, brought an action York Supreme Court, Appellate Division, in the Supreme Court for an accounting by First Department. It was in Bryan Wil- Mr. Morrison. It was claimed by the latter lard's suit against the Press Publishing Com- that he had discharged all his duties as truspany to recover damages for alleged libel | tee, and was not responsible for the acts of printed in the New York World. The de-Weeks, who, at that time, was a lawyer of fense was that the article complained of was high standing and good reputation, and had a truthful and accurate report of a judicial | had the custody of the estate before Mr. proceeding, and in justification of the publi- Morrison's appointment. Justice Stover, cation it was alleged that it was true. The who tried the case, in directing the accounttrial court charged the jury that the rule of ing asked for, said: “A trustee is not relaw in such cases was that “where the de- lieved from the obligation of looking after fendant alleges the article is true, and fails to the estate committed to his charge by the prove it is true to your satisfaction, you are employment of another person to discharge at liberty, in addition to the ordinary dam- his duties. The duties of a trustee are perages, to inflict exemplary damages.” The sonal, involving personal integrity and abiljury gave a verdict for the plaintiff for $600. ity, and a trustee cannot escape this personal The Appellate Division, in ordering a re- responsibility by employing another, howversal of the judgment, held that the charge ever capable, or of whatever high standing was erroneous and that the defendant had a and character; and a third person is nothing right, under the Code, to plead facts not only but the agent of the trustee, for whom the in mitigation, but also in justification, and trustee is responsible. It is not enough that the failure to establish the truth of the allega- he employs a competent agent, but he must tions in either case did not subject it on that see to it that the trust is fully carried out; account to increased damages. Exemplary and upon him personally devolves the duty damages, it was held, could only be given of discharging the duty of trustee, and this upon the ground of malice, and the failure to duty cannot be delegated so as to relieve the establish a defense of this character was, of trustee of legal responsibility. Again, in itself, no evidence of malice.

this case it is quite apparent that if the trustee

had given the attention which the law reThe New York Supreme Court, in the case quires to his duty as trustee, he would have of the Colonial Trust Company against Mor- discovered that the funds which Weeks ob

VOL. 61 - No. 24.




tained upon the collection of certain securi- described, was closed to the public. I am ties were not reinvested for the benefit of the of opinion, under all circumstances of the trust estate, but were invested in securities case, that supplying the constables with ice which were taken in the name of Weeks cream was supplying a refreshment in the individually.”

nature of a light meal, in the ordinary course

of his eating-house, and was not an offense Elsewhere in this issue will be found the full under the statute.” We believe the learned opinion of Chief Judge Whitfield, of the Mis- judge was perfectly right, and are confident sissippi Supreme Court, as to the adoption the great mass of ice cream-loving men and of the so-called “ Noel Amendments” to the

especially women will unite in Constitution of that State, the object of which declaring him a very Daniel come to judgwas to change the selection of judges from

ment. Of course it will not be claimed for the appointive to the elective method. It

a moment that ice cream is as “ fillin' may be said in explanation that the entire some other products of the kitchen, but that proceedings were free from partisan and fac- it is food is pretty well established. Wheeltional politics and uninfluenced by any sinis

men on long journeys have been known to ter motive, being instituted and conducted subsist on it for days, and some members of solely for the purpose of subserving the best the fair sex seem to possess a yearning to do interests of the State. There had been sharp

A luxury it is - so are sugar, quail-oncontention among all classes of citizens as to

toast and soft-shell crabs — but a food as the validity of the amendment from the day well

. it was introduced in the senate more than two years ago. Various important interests

Notes of Cases. throughout the State made imperative demand for a quick settlement and a final dis- Carriers · Duty to Persons Riding Without position of the vexed question, which has Payment of Fare - Servants Riding Home from now been had. The opinion of Chief Judge Scott's Adm'r, decided by the Court of Appeals

Place of Labor. In Louisville & N. R. R. V. Whitfield will be found to be both able and

of Kentucky, in May, 1900, it was held that a exhaustive, showing painstaking research

station agent riding to his home on a passenger and conscientious care.

train of his employer, by permission of the con

ductor, five hours after his labors of the day had The legal status of ice cream has now been ceased, was a passenger, and did not take the risks fixed and decided by a Toronto judge. That attending the operation of the train with the coach

instead of the engine in front. city has a strict law regulating Sunday ob

It appeared that the sister of the decedent was servances, and the authorities, it seems, are the nominal station agent, but he performed the enforcing it rigidly — perhaps with the ob- , duties of the position for her, she drawing the ject of making it so odious as to force its salary and paying it to him. He was treated repeal. A certain restaurateur was haled throughout the opinion as the actual station agent.

The court said in part: before the court on the charge of having wil

In Hutch. Carr. (sec. 565) it is said: “It is unifully and knowingly sold ice cream of a versally agreed that the payment of the fare or the Sunday, and the question arose whether or price of the carriage is not necessary to give rise not ice cream is properly to be regarded as

to the liability. The carrier may demand its prefood. The defendant naturally took the payment, if he chooses to do so; but, if he permits

the passenger to take his 'seat, or to enter his affirmative of the case, and did not deny the vehicle as a passenger, without such requirement, charge that he had sold the article. The the obligation to pay will stand for the actual paycourt sided with the affirmative and dis- ment, for the purpose of giving effect to the concharged the defendant, saying: “I am satis tract, with all its obligations and duties.” The

adjudged cases of many of the courts of last resort fied from the evidence the defendant was

of the country support Wood and Hutchinson on carrying .on, strictly and exclusively, his the proposition stated by them. In Wilson v. business as a victualler. His candy depart- Railroad Co. (107 Mass. 110) the driver of a horse ment, if the small stock he carried can be so car invited a person to get on the car, and while

thus traveling he was injured. The court said: who is riding free upon the train.” We are of the "A master is bound by the acts of his servant in opinion that the decedent was a passenger on the the course of his employment. They are deemed train, and the same duty was imposed upon the to be the acts of the master (Ramsden v. Railroad company to carry him safely, as in the case of other Co., 104 Mass. 117, and cases cited). The driver passengers. This being true, he cannot be held of a horse car is an agent of the corporation, hay- to have assumed the risks attending the operation ing charge, in part, of the car. If, in violation of of the train in the manner and under the circumhis instructions, he permits persons to ride with- stances in which this train was operated, the obliout pay, he is guilty of a breach of his duty as a gation being upon the company to use the utmost servant. Such act is not one outside of his duties, care and diligence to carry him safely. The duty but is an act within the general scope of his was upon it to operate its train in such manner as agency, for which he is responsible to his master. would enable it to do this. If the manner of In the case at bar, the invitation to the plaintiff to operating the train was not in the exercise of that ride was an act within the general scope of the high degree of care which a carrier of passengers driver's employment, and, if she accepted it inno- is obligated by the law to exercise, it assumed the cently, she was not a trespasser. It is immaterial risk, and not the passenger, of traveling upon the that the driver was acting contrary to his instruc- train thus operated. tions."

It is argued by counsel for appellant that as the decedent was its employee he did not sustain the

"THE NOEL AMENDMENT." relation of passenger, and that, being an employee

SUPREME COURT OF MISSISSIPPI. 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


Attorney-General, v. Robert PowELL. was not necessary for him to ride upon this train. His labors on the day of the accident had ceased WHITFIELD, C. J., delivered the opinion of the five hours before it took place. The mere fact court: that the injury took place between Rowland and Three questions are presented for solution: Stanford, he being on his homeward journey, did First. Is the question whether the proposition not create the relationship of master and em

submitted to the voters for adoption as part of the ployee. He was not an employee on this train at constitution be one amendment or more than one any time. His services were distinct from that of amendment, a judicial question; and, likewise, is operating the train. Some courts have held that the question whether such proposition received where an employee in another department of the the majority prescribed by the constitution as

to its a ?

employment, or on his return from his employment tions, was the proposition one amendment, or two to his home, the status of passenger does not or more amendments, and as necessarily involved exist, but he is regaried as being an employee herein, was the proposition submitted in the way taking such risks as employees in charge of the the constitution imperatively requires it to be train would take. There is a sharp conflict in the submitted? opinions of the court on this question. If it be a Third. Was the proposition adopted by the macorrect rule, the facts of this case do not bring it jority of qualified electors prescribed by the conwithin the rule. 2 Wood, R. R. (p 1217), criticises stitution as essential to the adoption of an amendthe correctness of the proposition, saying: “But, ment thereto? as to the last proposition, it does not seem to us As to the first proposition, we are clear that that it has any foundation in principle as to em- both questions are judicial questions. This is ployees who have not commenced their work for placed beyond cavil, as the settled doctrine of this the day, or who are returning after the services of State, by Green v. Weller, 32 Miss. and Sproule the day are completed. How the mere circum- v. Frederick, 69 Miss. 898. The same response is stance that a person is in the employ of the com- given by an overwhelming weight of authority pany in a department entirely distinct from the from other States. In the 6th vol. of Amer. & operation of the train, who is permitted to ride free Eng. Encyc. of Law, at page 908, second edition, it upon the train to and from his work, can deprive is said: him of the status of a passenger, is not readily “ The courts have full power to declare that an

While going to and from his work the rela- | amendment to the constitution has not been proption of servant does not exist. He is merely on erly adopted even though it has been so declared his way to take up his position as servant, or is by the political department of the State;” and for returning after his duty as a servant has ceased, this statement the following authorities are cited: and there is no reason why he should not be Colier v. Fruison, 24 Ala. 100; State v. Swift, 69 treated as a passenger, as well as any other person Ind. 505; Koehler v. Hill, 60 Iowa, 543; State v.


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