pay an assessment levied on a member for a death which occurred prior to the date of his certificate, the assessment being contrary to the plain provisions of a by-law of the union, will not invalidate the claim of his representatives to benefits. U. S. Cir. Ct., N. D. New York, April, 1882. Roswell v. Equitable Aid Union. Opinion by Coxe, D. J. (13 Fed. Rep. 840).

CORRESPONDENCE.

INTERVENORS.

Editor of the Albany Law Journal:

Your editorial remarks upon the decision of the Court of Appeals as to intervening attorneys, on page 81 of your last number, seem to indicate that you have read the opinion but not the case referred to.

It was this: The receiver of the company, having filed his account, claimed a commission of five per cent upon the assets, under chap. 902, Laws of 1869, and by virtue of a certificate given by the former insurance superintendent, in pursuance of the provisions of that statute. The amount of commissions claimed was $68,000. The intervening attorneys, four in number, filed objections to the account and the certificate, and spent a good deal of time and money in attending at Schenectady and Albany before the

Judgment reversed and new trial granted, costs to abide event-Harris v. Hiscock.-Judgment modified by reducing the amount to be paid in case the return of the property shall not be had to the amount of execution, interest and expenses, and as so modified affirmed, without costs in this court-Fowler v. Haynes. -Judgment and order denying a motion for a new trial on the minutes, affirmed with costs. Appeal from order denying motion for new trial, on the ground of newly discovered evidence, dismissed without costs. Order granting plaintiff costs against estate of defendant's testator, affirmed without costs Mettzer v. Doll.-Orders of General and Special Terms reversed with costs, and motion denied, with ten dollars costsLangon v. Gay.-Order affirmed with costs-The Metropolitan Concert Company v. Abbey; Sarvent v. Hesdod; Hessberg v. Riley.—Order of General Term affirmed, with one bill of costs to respondents-Keeler v. Judson.Order of General Term affirmed and judgment absolute rendered against the appellant on the stipulation, with costs-Adams v. Adams. The court took a recess until March 5th.

Special and General Terms and the Court of Appeals. W

They succeeded in having large items of so-called assets stricken from the account and in setting aside the certificate of the insurance superintendent.

Upon a rehearing before the present insurance superintendent, they again appeared and the reciver's commissions were cut down to three and one-half per cent. of the amount of assets allowed, so that the result of the action of the intervening attorneys was a saving of over thirty thousand dollars to the fund. As this service was a benefit to all policy holders, and as the policy holders accepted that benefit, the intervenors claimed that they should be paid by an allowance from the fund.

The facts of the case being as above stated, what becomes of the proposition "that the receiver and his counsel looked after the interests of the policy holders generally?"

It seemed to the intervenors that the receiver and his counsel during the long fight were looking after their own interests, which in this case were adverse to those of policy holders.

You also seem to adopt the popular notion that large amounts of assets in bankrupt companies have heretofore gone to intervening lawyers.

The report of the Assembly Investigating Committee showed that the large amounts referred to went not to intervening attorneys, but to the receivers, their counsel, and referees.

In view of all the facts, ought not your concluding sentence be "resettled" so as to read:

The effect of this decision will be that the large amounts of assets heretofore saved for the policy holders by intervening lawyers, will hereafter go to the receivers and their counsel without let or hindrance?

Respectfully yours,

NEW YORK, Feb. 6, 1883.

LUCIUS MCADAM.

NOTES.

WHARTON on contracts is published by Kay & Brother, of Philadelphia. Our recent notice omitted to state this.-The London Solicitors' Journal, speaking of Mr. Bishop's proposal to have a bureau to investigate the originality and bona fides of every new law book, remarks: "The main difficulty which occurs to us with regard to this admirable proposal is in finding persons of a disposition sufficiently heroic to act as trained experts' in the performance of these delicate and responsible duties. The 'trained expert's' days would be spent in considering defenses to actions for libel; he would pass his nights in terror of revolvers and bowie knives, and his only secure refuge would be the gaol into which his incessant contempts of court would be certain to bring him."

Under the head of "defects of the new law courts," the London Law Journal says: "Some of the jury complained of the draught, which it appeared came from the passage into which the door at the back of the jury box directly opened. A witness had his coat and umbrella stolen from the rail of the witness-box while he gave evidence." Perhaps the draught carried off the umbrella. The Texas Law Review is the title of a new publication, hailing from Austin. It does us the compliment exactly to copy the cut at the head of this journal. We regret to state that this is the only one of our features that it copies.

The first number of the American Law Review since the consolidation with the Southern Law Review contains 150 pages, and leading articles as follows: Limited liability of ship-owners for master's faults, by Harrington Putnam; Proof of handwriting by comparison, by John D. Lawson; Recent legislation as to employer's liability - railroad companies liable for injuries to their employees, by Arthur B. Ellis; Agreement for separation between husband and wife, by Charles A. McMahon; Elements distinguishing the successful from the ordinary legal practitioner, and what they suggest, by Joel Prentiss Bishop. (Does Mr. Bishop mean to insinuate that lawyers are not ordinarily successful?) The latter is lively reading; but Mr. Bishop has the vagary that nobody but him

self can write, or at least does write, val error in books. Mr. Bishop pronounces the central error teaching law to be "the eternal looking after the instances,' "instead of searching constantly for the rule which governs the instances." The editors of the consolidated Review are Lucien Eaton and Seymour D. Thompson.

The Albany Law Journal.

ALBANY, FEBRUARY 24, 1883.

CURRENT TOPICS.

By the side of Judge Folger's memorial of Chief eulogy of William Hungerford, should be placed the recent address by Mr. E. J. Phelps, before the Vermont Historical Society, on the late Chief Justice Samuel Prentiss. Mr. Phelps, like Goldsmith, has touched nothing that he has not adorned, and has never more adorned any thing than the present subject. Of the material for judges he says: "Some people are coming to think in these days, that a judge can be manufactured out of almost any sort of material. And it is true enough, that almost any man can sit upon the bench, can hear causes, and after some fashion can decide them; and the

Y the side of Judge Folger's memorial of Chief

His figure was as

cheek had the color of youth.
erect and almost as slender as that of a young man.
His old fashioned attire, the snowy ruffle and white
cravat, the black velvet waistcoat, and the blue
coat with brass buttons, was complete in its neat-
ness and elegance. And the graciousness of his
presence, so gentle, so courteous, so dignified, so
kindly, was like a benediction to those who came
into it. Happy is the man to whom old age brings
only maturity and not decay. It brought to him
not the premonitions of weakness, of disease and
dissolution, but only ripeness — ripeness for a higher
and a better world. It shone upon him like the
light of the October sun, on the sheaves of the
ripened harvest."

The peroration contains words of truth and soberness that may well be pondered in these days of scrambling for office: "It is a common saying that this is a government of the people. That is a mistake; there never was a government of the people. No people can administer a government; they only designate the men who shall administer it. That is what they have to do, and all they can do. We have seen the manner of men that our fathers placed in the discharge of public trusts. If the same superiority which they demanded, we demand, it will be forthcoming. The world has not depreciated. There is as much caIf it is called for, it

world will go along; there will be no earthquake;
there will be no interruption of human affairs; he
will fill the office. But by and by it will come to
be discovered, that the law of the land, which ap-
parently has lost nothing of its learning, has won-
derfully lost its justice; that conclusions that by
learned reasons and abstruse processes have been
reached, are not consonant with justice, and estab-pacity in it as there ever was.
lish rules that cannot be lived under. As the com-
mon people say, they may be law, but they are not
right. There is philosophical and sufficient reason
for this result. It is inevitable. Justice under the
common law cannot be administered in the long
run by an incapable man. And he is an incapable
man for that purpose, who is not a master of the
principles of the law, by a knowledge systematic,
comprehensive aud complete. Because those prin-
ciples are the principles of justice. They are de-
signed for justice. The law has no other reason, no
other purpose. The judge who draws his conclu-
sions from this source, will keep within the limits
of justice. The judge who is groping in the dark,
and depending upon lanterns to find his way, who
is swayed and swerved by the winds, the fancies,
and the follies of the day, and by the fictitious or
undiscriminating learning that finds its way into
multiplied law books, will reach conclusions which
laymen perhaps cannot answer, but which mankind
cannot tolerate. Such courts lose public confidence,
and business forsakes them. It is an invariable
truth, that the more thorough the legal acquire-
ments of the judge, the nearer his decisions ap-
proach to ultimate justice."

as

will come to the service. If it is made, as it should be, the exclusive requisite to public office of importance, it will not fail to be found. It is time there was courage enough to controvert the idea that in some parts of this country is making its way, that all that is necessary to qualify a man for high office, is the cunning that enables him to get into it. The government of the country requires personal superiority; superiority of natural capacity, superiority of attainment; the acquirements of those who have been willing to toil while others slept; and it is time we had the sense to think so, and the courage to say so. When the day comes, as it has come in too many other places, when the road to high office shall require a man, instead of attaining the requisite superiority, to divest himself of all appearance of superiority to the general mass of mankind, and to assimilate himself as completely as possible with those who are inferior; and having thus achieved a mean and unworthy popularity, then to exercise his ability in crawling into place, by traffic and management, and intrigue — when that time comes — I say it will need no prophet or astrologer to cast the horoscope of our State. The dry rot will permeate every timber of the edifice that our fathers reared, and all the glory of the past will be lost in the dishonor of the future."

-

What can be more exquisite than the following portrait of the old man? "He was charming to look at as a beautiful woman, The committee of the Bar Association of the city old as he was. His hair was snow-white, of New York, appointed to report upon the prohis eyes had a gentleness of expression that no posed repeal of the Penal Code, have reported painter can do justice to; his face carried on every against the repeal, Mr. J. Bleecker Miller dissentline of it the impress of thought, of study, of cut-ing. Inasmuch as the majority report is signed ture, of complete and consummate attainment. His by several gentlemen understood to be opposed to

VOL. 27- No. 8.

general codification, this is a weighty tribute to the excellence of the Penal Code. The report is not one of unmixed praise; indeed, it shows much more of the spirit of reluctant acquiescence than of hearty admiration; but even this renders the result more significant. It may safely be said that if the Bar Association cannot find more faults than virtues

in the Penal Code, then there is no use in anybody else's looking.

A singular bill has passed to a third reading in the lower house of the North Carolina Legislature, although it was adversely reported upon. It is in substance, that hereafter in actions for seduction it shall not be necessary to allege in the complaint

the existence of the relation of master and servant as between the plaintiff and the party alleged to have been seduced, provided the plaintiff shall be the father, or if he be dead, the mother, or in case of an orphan seduced, the guardian or any one standing in loco parentis, but in all such cases the father, if living, or if dead, the mother, or if both be dead, the guardian or any one standing in the relation of a parent to the female alleged to have been seduced, shall have a right of action for such seduction. It was urged in support of the bill, that the law as it now stood compelled a man in his suit for the seduction of his daughter to allege that she was his servant and was less able to perform her duties by reason of the seduction. In a case where a man who had a daughter seduced who was insane, or unable to work, or who was absent from the Iromestead at the time of the seduction, there was no remedy. One member thought that this bill was not needed to protect the virtue of North Carolina; that the purity of her people would protect itself. Another said that it was not a bill to be laughed at but one to be seriously considered. That if one wanted to bring a suit for a horse he could do so, but when he sued for seduction he was compelled to bring his action for services lost, and thereby swear to a lie in order to bring his action. Another thought it was a monstrous technicality which protected the virtue of a servant, because she was a servant, and did not protect that of a daughter. The foundation of the action is the loss of service, and rightly, we think. To be sure, in practice, it amounts to very little pouring tea or milking cows, or something of that sort suffices. But why should a father have a money recompense for mere injury to his feelings by the seduction of his daughter? If the recovery went to the daughter, in cases of accompanying promise of marriage, there would be some sense in it; but then the action is for breach of contract. We do not believe in this sentimental kind of justice. Seduction is wrong; therefore punish it criminally; but do not put a price upon a daughter's virtue, in consideration of which the father agrees to call it quits.

kings of England;" or tell the derivation of the "crest and motto of the Prince of Wales;" or explain the meaning of "the sun's declination;" or mention "the chief naval battles in which England was engaged during the reign of George III," and the like.

argue before. Lately, says the London Law Times,
Jessel, M. R., must be an uncomfortable judge to
"a scientific queen's counsel, being unable at once
to answer a trublesome legal conundrum put by the
master of the rolls, said he knew how difficult it
was to argue with his lordship. The master of the
rolls said he sympathized with him, but that he
always liked to let counsel know what was passing
through his mind. I had the misfortune myself,
said the learned president, to practice before a
judge who used to bottle up his mind, so that you
never could tell until he delivered judgment which
way he was leaning. I resolved, when I was raised
to the bench, to take the opposite course, and I
think my method has its advantages. Counsel how-
ever often think that I am more against them than
I really am.' It is a fact, nevertheless," continues
the Times, "that the interlocutory remarks of his
lordship, however early in the argument they are
uttered, are seldom inconsistent with his judgment,
and they are expressed with such clearness-not to
say vigor-that it is not surprising that counsel are
occasionally induced to believe that further argu-
ment is a waste of time and labor." The last sen-
tence is a very pretty bit of sarcasm.
is indeed wrong for a judge to "bottle up his
mind," on the bench, but we see no advantage in his
exhibiting the "staggerings of his mind," as Presi-
dent Garfield called his dubitations.

We think it

By the aid of his "Reader's Handbook," the Regent of the Albany Argus is very facetious at our expense about the contract for printing the Court of Appeals reports and our remarks upon the pending bill in respect to the letting of such contracts. The Argus thinks we are not disinterested. We never pretended to be. That is the difference between the Argus and ourselves—the Argus is always pretending to be disinterested and never is. The Argus would like to be reinstated in the printing of these reports for a democratic publisher to whom the contract should be awarded by a democratic reporter and a democratic clerk. Perhaps now the Argus, having passed the Regents' examination in Dickens, will lay aside its facetiousness long enough to explain why the letting of these contracts should be taken away from the secretary of State, the attorneygeneral and the State reporter, and intrusted to the reporter and clerk alone-for that is what it would come to, and is meant to come to and especially why a contract having a year to run, for furnishing the reports at one dollar a volume, should be abrogated and awarded to somebody else for possibly three dollars a After all, the most practicable way to prevent the volume. And further, perhaps the Argus will explain dreaded "increase of lawyers" is to subject them to why the term of the contract, now limited by law an examination such as we find prescribed in Ireland. to three years, is by the proposed bill to be extended There are 12 questions in English history; 10 in to five years. Of course, there is no favoritism or geography; 6 in arithmetic; and 5 in book-keeping. politics in all this! But still we have a curiosity to Of the historical questions we could fairly answer have the disinterestedness pointed out, for the benabout half; of the geographical, 4; of the arithmeti-efit of the public who have got to pay the money. cal, 3; of those in book-keeping, possibly three. That would shut us out. In fact, we could not begin to get a situation as a post-office clerk under the rules of civil service reform. At the same time, we have some doubt whether it is essential for an English lawyer to be able to "enumerate the Danish

NOTES OF CASES.

IN Pearce v. Langfitt, Pennsylvania Supreme Court,
Dec. 30, 1882, 13 Pittsb. Leg. Jour. 255, it

אן

was held that a notice of protest inclosed in an envelope properly stamped and directed to the postoffice address of the indorser, and handed to a letter-carrier, whilst in the discharge of his official duties, for mailing, is sufficient evidence of mailing the notice of protest to fix the liability of the indorser, whether he received the notice or not. Also the court will take judicial notice of the geography of the country, of the ordinary speed of railway trains, and the time within which mails may be transported between such cities as New York and Pittsburgh; may correct misstatements in reference thereto, made by counsel in their address to the jury. The court said: "We think the delivery

such State and the natural boundaries of the State,' citing numerous authorities in support of his text. We apprehend that the ordinary speed of railway trains is a matter of judicial cognizance, and hence a very simple computation will demonstrate with approximate certainty the time within which mails may be transported between such cities as New York and Pittsburgh. It may be doubted that a court should take judicial notice of the particular hours when trains leave their points of departure. But what the court said was that there was nothing improbable in the idea that a notice of protest could reach Pittsburgh the day following the maturity of the note. There was certainly no error in this. Perhaps the learned judge went too far in stating that a train leaving New York at five or six in the evening would reach Pittsburgh the next morning at eight, but if he was in error in so saying it is quite immaterial, for the reason that the cashier and the plaintiff had both testified that the notices were received at the bank within a day or two after the maturity of the note." In Wynen v. Schappert, 6 Daly, 558 it is held that delivery of a notice of protest, properly addressed, to a government lettercarrier, is good service by mail.

of a letter to an official letter-carrier is the full equivalent for depositing it in a receiving-box, or at the post-office. When left in the former it is for the purpose of being taken therefrom by the carrier, and if left at the post-office it must be taken from the receptacle there provided for its deposit, either by the postmaster or by some one of his agents, to be placed in the mail. In either case the letter must come into the personal custody of some one, lawfully authorized for the purpose, whose function it is to participate in the transmission of it from the sender to the mail. It certainly can make no difference whether the letter is handed directly to the carrier, or is first deposited in a receiving-box and taken from thence, by the same carrier. In the case of Skilbeck v. Garbett, 7 Ad. & Ell. (N. S.), 846, in which the very point was decided, Lord Denman, C. J., said: If the public servant belonging to the postoffice takes charge of the letter in the exercise of his public duty it is the same as if it were carried to the office.' The postal regulations of the United States require that carriers while on their rounds shall receive all letters prepaid that may be handed to them for mailing. It follows that when such a carrier receives a prepaid letter from a citizen for the purpose of being mailed, he is in the strict performance of his official duty. On the trial the learned judge of the court below, to correct an alleged misstatement of the counsel for the defendant in his summing up to the jury, as to the distance from New York to Pittsburgh, said to the jury that the distance was not over five hundred miles, as had been asserted by counsel, but only four hundred and forty-four miles, and added that perhaps some of the jurors knew that as well as the court. The judge also said it was well known that a train, leaving New York between five and six o'clock P. M. of one day, would reach Pittsburgh by eight o'clock the next morning, if on time. We think, if counsel erroneously made a statement as to the distance between the two cities, it was the right of the court to correct the error by stating the true distance. This is a matter of the geography of the country. In 1 Wharton on the Law of Evidence, at § 335, et seq. the writer states numerous matters of which courts will take judicial notice, and amongst many others, enumerates 'distances as calculated by a map;' and 'the ordinary time of voyages.' In section 340 he says: A court is bound to take judicial notice of the leading geographical features of the land, the minuteness of the knowledge so expected being in inverse propornity of a decision. I cannot regard it as an authortion to distance. Thus a court sitting in a particular city is bound to know the general scenery of such city, and its division into streets and wards; the courts of a particular State, to know the boundaries of the State, and its divisions into towns and counties and the limits of such divisions; and of its judicial districts; the position of leading cities and villages in

An interesting point of practice was lately decided by Judge Fursman, Rensselaer County judge, in the Matter of Church, namely, that on a proceeding de lunatico inquirendo counsel for the alleged lunatic have a right to sum up to the jury. The court, after remarking on Penrhyn State Co. v. Meyer, 8 Daly, 61; Millerd v. Thorn, 56 N. Y. 402; Scott v. Hull, 8 Conn. 296; Davis v. Mason, 4 Pick. 158; Huntington v. Conkey, 33 Barb. 218; holding that the general right to address the jury is of substance and not of discretion, proceeded: "In Matter of Dickie, 7 Abb. N. C. 417, counsel for the alleged lunatic was permitted to sum up against the objections and exception of the petitioner. The jury having found that the alleged lunatic was of sound mind, on the motion to confirm it was insisted that this was error. The court, Brady, J., held otherwise and sustained the finding. In the Matter of Amhout, 1 Paige, 498, Chancellor Walworth, in setting aside a commission for irregularities and ordering a new one to issue, assumed to give directions to the new commissioners as to the manner of their procedure in executing it. He said after the testimony is closed the commissioners should submit the question to the jury in the form of a charge, stating the law applicable to the case and recapitulating the facts if necessary, but without argument of counsel on either side.' No authority is cited, and no reason is given why counsel should not be allowed to address the jury, The question was not before the chancellor for adjudication, and his remark does not rise to the dig

ity and am satisfied that the weight of reasoning is the other way. Barbour's Chancery Practice and Crary's Special Proceedings contain the same statement in the same language, citing 1 Paige, supra, as the authority therefor. Neither they, nor any other text writer whose works I have been able to consult, furnish any reason whatever in support of such a