"Resolved, that an assistant to the Clerk of the Association be employed at an expense not to exceed $156 per annum.

Said assistant shall be employed by the clerk and shall hold office during the pleasure of the clerk and his salary shall be paid quarterly by the Treasurer on the warrant of the clerk.

He shall be present at the rooms of the Association whenever the Clerk shall find it necessary to be absent therefrom, and shall during the Clerk's absence perform such other duties as the Clerk may require of him." Adopted.

It was recommended by this Committee that the name of Hon. Sherman S. Rogers be added to the Committee of Arrangements.

On motion, adjourned.

CORRESPONDENCE.

A LEGAL PARADOX.

Editor of the Albany Law Journal:

I beg leave to call your attention to the following apparent legal paradox which has actually arisen in this State, and which may be of interest to your readers. Under section 2705 of the Code of Georgia, a deed is required to be recorded within twelve months of its date. On failure to do so it may be recorded at any time thereafter, but loses priority over a junior deed from the same vendor, recorded in time and taken without notice of the first. A failure to record does not, however, postpone a deed to a judgment against the grantor subsequent to the execution of the deed. But a judgment against a grantor is not affected by a subsequent deed, nor is the lien of the judgment divested thereby.

Under this law the following case arose: A. made a deed to B. in January, 1876, conveying a certain lot of land. B. failed to record his deed. In February following C. recovered judgment against A., the maker of the deed. In March, A. made a second deed, conveying the same lot to D., who bought without notice and recorded his deed promptly. The judgment of C. was levied on the land, and both B. and D. interposed claims thereto. (A claim under Georgia law, is the usual mode of testing whether or not property is subject to levy.) By agreement, the two claims were tried together on equitable pleadings, in order that the whole question might be determined at once.

Now it is evident that the deed of B. takes precedence of the judgment of C., but being unrecorded, is inferior to the deed of D., but on the other hand, the deed of D. is subject to the judgment of C. Thus C. can subject the property as against D., but A. can take it from the clutches of C.'s judgment, only however to be driven out by the recorded deed of D. The question is, who is entitled to the property, or what should be done with it?

As a matter of fact, the case was settled, but the legal question remains.

Yours truly,

ATLANTA, GA., March 21, 1883,___

J. H. LUMPKIN.

NEW BOOKS AND NEW EDITIONS.

COHN ON THE GROWTH OF THE LAW. An Essay on the Growth of the Law. By Morris M. Cohn, Chicago: Callaghan & Co., 1882. Pp. ix, and 181. Mr. COHN has written a small book upon a large subject, yet we are confident that his readers will forgive him for being brief, seeing that most writers who philosophise about the law err if at all in an opposite direction. He has in the compilation of his essay drawn very largely upon the productions of others more or less well known who have treated upon its subject. Indeed, so extensively does he quote in the body of the work that it is on most pages difficult to say who is speaking, Mr. Cohn or some one whose views he approves or condemns. We assume that the introduction, conclusion and appendix are original. Our author does not hesitate to criticise and condemn the opinions of those with whom he does not agree. Mr. Austin, Professor Amos and (0 procul profani!) the great Lord Coke are all declared to have promulgated error. The work is written in the style common to those of its kind, and abounds in such words as "neural," "environment," "outcome," "connotation," etc. It contains what appears to be a new definition of law which we re-produce for the benefit of those who desire to know what our venerable fabric now means. "Laws," says Mr. Cohn "are recognized rules of action, having a political aspect, prevailing among a given community, and acted upon therein either voluntarily or under compulsion."

The book is well printed upon good paper and will doubtless find a place in the libraries of those who desire to possess all that is written in its field of literature.

THEA

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, March 27, 1883.

Judgment affirmed with costs-Mack v. Phelan; Harrington v. Keteltas; Haight v. Continental Insurance Company; Martin v. The Dry Dock, East Broadway and Battery Railroad Company; Delaney v. Van Aulen; Hand v. Newton; Whitmore v. Patterson; In the Matter of the Estate of Peter G. Fox.--Judgment affirmed - The People v. Cornetti; The People v. Willetts. Judgment reversed, new trial granted, costs to abide the event- Phillips v. Mackellar.-Interlocutory judgment of General Term in favor of defendants affirmed, and final interlocutory judgment of General and Special Terms in favor of plaintiff reversed, new trial ordered, costs to abide the eventCrabb v. Young.Judgment reversed, and judgment ordered for the plaintiff upon the demurrer, unless the defendant within thirty days pays plaintiff's costs and answers in the action- Wetmore v. Porter.Motion to advance cause granted - In re Clemente v. Jackson.

THE

NOTES.

HE Law Magazine and Review, for February, contains a very complimentary review of Judge Oliver Wendell Holmes, Jr.'s work on the Common Law. The Criminal Law Magazine, for March, contains leading articles on the Peltzer case, by Francis Wharton, and the Grand Jury, by Decius S. Wade, also an exhaustive note on Arrest without process, by W. W. Thornton.-The Southern Law Review, for February-March, contains the following leading articles: Limitation of the doctrine of the dissolution of à corporation by death of all its members, by Thos. D. Ross; Negotiable Instruments--Collateral Stipulations, by J. M. Kerr; Corporate Creation and Existence, by Frank Titus; Presumptions in Indictments for Conspiracy, by Edward P.Payson; Conditions in Pardons, by Frank T.Reid; Auctions and Auctioneers, by Charles Burke Elliott.

The Albany Law

IN

Journal.

ALBANY, APRIL 7, 1883.

CURRENT TOPICS.

N Harris v. Webster, 58 N. H. 481, Foster J., says the following good things on the subject of the married woman's position at common law and under the modern statutes: "At common law the wife alone can neither sue nor be sued. The reason of this is founded upon the general doctrine of conjugal union expressed by the father of the English common law,' in the emphatic and sacred phrase, 'Man and wife are the same flesh.' Sunt idem corpus et eadem caro, vir et uxor. Bracton, f. 31. Sunt quasi unica persona, quis caro una et sanguis unus. Bracton, f. 430. And herein, says an old writer, 'The common law shaketh hands with divinitie -- an illustration of the habit of presenting every established fact which is too bad to admit of any other defense, as an injunction of religion. * The social condition and legal status of woman was the natural condition of the age of feudalism which produced it an age when every social relation was governed by feudal analogies. It is not surprising, therefore, that in such an age a theory of conjugal life should have gained ground in England which seemed to reproduce at every fireside the bond of lord and vassal, and to place the lord in the attitude of Petruchio:

* *

'I will be master of what is mine own:
She is my goods, my chattels; she is my house,
My household stuff, my fleld, my barn,
My horse, my ox, my ass, my anything.'

* But feudalism exists no longer, and the social and legal conditions which the system produced have likewise passed away. The benign influences of Christianity, and a more diffused as well as a higher system of moral and intellectual education, have gradually ameliorated the hardships of woman's social condition, and have elevated her to the state of dignity and importance she possesses today—a social position of honor and respect. The change has been gradual, but it has been as marked as any other step in the course of advancing civilization, for it has been nothing less than a slow but steady march from slavery to freedom. * * And if it be true, as maintained by Spencer, that in the United States 'women have reached a higher status in the social structure than anywhere else' (1 Prínciples of Sociology 764), it is equally true that in many of the States, certainly in New Hampshire more than anywhere else, have the legal distinctions between the sexes been swept away."

*

In connection with Mr. McKean's article on Icy Sidewalks, ante, 227, and the decision of our Court of Appeals on that subject in Urquhart v. City of Ogdensburg, ante, 231, we call attention to the decision of the Pennsylvania Supreme Court, in City of Erie v. Magill, Dec. 1882, holding that where a person has knowledge that the sidewalk in a city is VOL. 27-No. 14.

in a dangerous condition, by reason of ice and snow which has been allowed to accumulate through the remissness of the city authorities, and instead of going around the dangerous point attempts to cross it, and in so doing slips and is injured, he is guilty of contributory negligence, and cannot recover. The court said: "We do not know how the conclusion could be resisted that the plaintiff had knowledge of the dangerous character of the drift. Had she been riding along the street she might not have noticed it, but she was a foot passenger along this very walk, and the drift was in her path. She was compelled to cross it or go around it. She attempted to cross it, and it is contrary to all human experience to suppose that she did so without noticing the surface upon which she was treading. She does not pretend to say that she did not notice it. On the contrary, she gives a minute description of it, and especially points out the elements of danger that were apparent. She does not say that she acquired this knowledge after the event. She expressly testifies that she knew of the drift before, and thought it was dangerous. We are of opinion that all the testimony, including that of the plaintiff, clearly proves that the drift of snow and ice which she attempted to cross was of a dangerous character, and that this was known to her at the time of the injury. That she could have avoided it by going around it was conclusively proved by herself and her witnesses. In view of this condition of the testimony we think the case should have been taken from the jury. In other courts similar rulings have been sustained upon a similar state of facts, though of much less strength than those developed in this case. Wilson v. City, 8 Allen, 137; City v. Krouse, 64 Ill. 19; Durkin v. Troy, 61 Barb. 437." Gordon, Trunkey, and Sterrett, JJ., dissented. This decision is in harmony with Schafler v. City of Sandusky, 33 Ohio St. 246; S. C., 31 Am. Rep. 533; City of Quincy v. Barker, 81 Ill. 300; S. C., 25 Am. Rep. 278; Bruker v. Town of Covington, 69 Ind. 33; S. C., 35 Am. Rep. 202; but is opposed to Evans v. City of Utica, 69 N. Y. 166; S. C., 25 Am. Rep. 165. The latter case was one of injury at night. By the way, the formula, "Gordon, Trunkey and Sterrett, JJ., dissented," strikes us as a very familiar one, and it occurs to us that we have often thought the dissenters in the right as we now do.

Here is a case that must certainly go into our "Humorous Phases." Miss Keyser sued Mr. Forepaugh, the celebrated circus person, for damages for hiring her to ride on an elephant, in the character of Lalla Rookh, and furnishing her with a beast which he knew to be vicious, whereby she was thrown off and injured. The plaintiff engaged with the defendant, in response to an advertisement by him for the most beautiful woman in the world to ride in his street procession. She was to be known as the Ten Thousand Dollar Beauty, and the public were to be led to believe that that sum was paid to her for exhibiting herself in that manner. The plaintiff was not a novice in the amusement business, and she

readily engaged with the defendant for the sum of one hundred dollars per week, with transportation and board. The ten thousand dollars premium was not paid to her, and it was agreed by the parties that their action in regard to it should be kept secret. The defendant contended that the plaintiff had been twice before thrown by the same elephant, and that she was guilty of contributory negligence in getting on a beast that had proved fractious, and that the result was one of the risks incident to the employment. The plaintiff denied this, and averred that the previous rearing up and pitching off was by another elephant, and that the elephant in question was as gentle as a lamb. The question of fact was left to the jury, under instructions that although it was the duty of the circus man to supply a proper elephant, yet if the elephant had in fact thrown and dislodged the Beauty before, she had no remedy for her injury. (Probably if Mr. Forepaugh had promised to repair the elephant, it would have been different.) The jury were also instructed that if the elephant in question was not the same as on the two former occasions, it was not negligent in the defendant to furnish an untried elephant unless he knew it to be vicious. The jury found for the Beauty, $500, and this was affirmed by the Pennsylvania Common Pleas, March 24, 1883, 40 Leg. Int. 130. It is our private belief that the whole affair is a designed advertisement on the part of Mr. Forepaugh.

In a recent lecture Mrs. Lillie Devereux Blake is reported to have said: "In this republic it is a crime to be a woman, and she is punished for her sex. If a woman makes a mistake it is telegraphed all over the country. If the blunders of men were treated in the same manner the papers would be full of nothing else." It seems to us that the "blunders" of the men are treated in the same way, and that the newspapers are full of them. If we were conventionally gallant, we should say that it is easy to report the "mistakes" of women, because they are so infrequent, and consequently so striking. Mrs. Blake takes a womanish view of the matter. Nobody knows better than herself how easy for women to escape punishment for crime in this country. Her assertion that in this country it is a crime to be a woman is fit to make a man laugh. America is the paradise of women. We will not say it is a crime, but we will say it is a blunderto be a 'strong minded" woman, which is the only kind of woman recognized by Mrs. Blake and her sisterhood.

We have seldom met any utterance that we could more heartily agree with than the following, from the London Law Times: "In fact, from the point of view of ordinary morality, it is almost impossible to justify a demurrer; for the logical result of it is this, that the defendant admits the truth of the plaintiff's statement, but at the same time expresses a deliberate intention of availing himself of the technicalities of the law so as to deprive the plaintiff of a remedy." If we could have our way, we

do not know that we would go so far as to hang the lawyer who should put in an unsound demurrer, but we certainly would compel the party to abide by his demurrer without privilege of amendment.

The

In the death of Sir George Jessel, Master of the Rolls, the English bench has sustained a serious loss, and one of which it may be said, with a nearer approach to truth than is usual on such occasions, that it is irreparable. He has long impressed as the brightest mind on the English bench. Law Times says: "We pay no disrespect to the judges or the bar when we say that no man living can fill the position which has been vacated as it was filled by Sir George Jessel." Lord Justice Chitty said: "To the public his loss is almost irreparable. The extraordinary swiftness of his apprehension, his complete mastery of the facts of law, his grasp of principles, and the marvellous certainty of his judgment mark him out as one of the most illustrious judges that ever sat on the English bench, and will render him famous among his great predecessors in the high office that he bore." His learning was immense, he was equally at home in the common law and in equity, he grasped the broadest principles of jurisprudence and the minutest details of practice, and his mental operations were so rapid, and his conclusions so prompt that they could be justified only by their general soundness. He was not an old man, and has probably worked himself to death.

We have received from first to last about a dozen letters from legal sources asking our opinion of the constitutionality and policy of the proposed scheme of buying Niagara Falls for the State. We have refrained from answering these inquiries because we had not supposed there was any doubt about the constitutionality, and as to the policy it was none of our business. Holding ourselves subject to correction, we now do not see why it is not as constitutional to buy, preserve and ornament Niagara Falls, or the Adirondacks, for a public park, as it is to build an unnecessarily gorgeous capitol. As to the policy of the matter, it is probable that two or three millions spent in this way would be as useful to the State now and in the future as seven times that amount spent on the capitol. Neither of these projects is very necessary, but it must be remembered that a republic of five millions of people

one of the richest and most powerful on the face of the earth may reasonably indulge itself in some luxuries. We do not object to them, unless they smell strongly of jobbery. Probably they cannot be altogether divested of jobbery, but unless the jobbery is extensive and apparent, we may submit for the sake of the benefits. It is always a grave question how much robbery the people may submit to in order to obtain certain desirable benefits. This is not an ideal state of being, but it seems to be the only one practicable at present.

IN

NOTES OF CASES.

N Libby v. Berry, 74 Me. 286, it is held that a wife cannot maintain an action of assault and battery against her husband, nor against those who act with and by his direction therein, even after divorce. This is a reiteration of the doctrine of Abbott v. Abbott, 67 Me. 304; S. C., 24 Am. Rep. 27. The court say: 66 According to the construction already given to the act of 1876, it does not so far modify the common law as to authorize a civil action by the wife against the husband to recover damages for an assault, nor against those who act with the husband, and under his direction in doing such a wrong. It only authorizes her to maintain alone such actions as previously could be sustained when brought by the husband alone, or by the husband and wife jointly. It enlarges not her right of action, but her sole right of action. It does not enable her to maintain suits which could not have been maintained before, but to bring in her own name those which before must have been brought in the husband's name, either alone or as a party plaintiff with her. The reasoning in Abbott v. Abbott, is also conclusive upon the point that if such right of action does not exist during coverture it does not arise upon divorce. From the competency of married women to make legal contracts, and from the full recognition of their separate right of property, certain special instances have arisen in which after divorce actions of assumpsit by them against their former husbands have been sustained, as in Webster v. Webster, 58 Me. 139; S. C., 4 Am. Rep. 253; Carlton v. Carlton, 72 Me. 115; S. C., 39 Am. Rep. 307. See also, Blake v. Blake, 64 Me. 177. But nothing in those cases indicates such right of action in tort." The same doctrine as to the action during coverture has recently been held in this State. See 26 ALB. LAW JOUR. 361, 462.

In State v. City of Portland, 74 Me. 268, it is held that a municipal corporation may be indicted for a nuisance created by a sewer defectively planned. After laying down the doctrine that neither evil intent nor negligence is an essential element of a nuisance (citing Drew v. New River Co., 6 C. & P. 754; Franklin Wharf Co. v. Portland, 67 Me. 46; S. C., 24 Am. Rep. 1), the court continue: "It remains to be seen only whether the public have a remedy by indictment for a failure in the performance of the defendants' duty here; and it seems to follow that they have, according to the general rule conceded to be correct, with the statement of which this discussion commenced. The doctrine of State v. Great Works M. & M. Corporation, 20 Me. 41, was denied in State v. Vermont Central R. Co., 27 Vt. 103, 108, and State v. Morris & Essex R. Co., 3 Zab. 360, 366, and it has been-not overlooked but disregarded in this State, in State v. Freeport, 43 Me. 198, and State v. P. & K. R. Co., 57 id. 402. In the first of these cases the indictment was sustained, and in the last it was held defective only for want of a particular allegation, and not because

it must needs fail for the sweeping reason given in 20 Me. 41. The doctrine laid down in State v. Great Works M. & M. Corporation, so far as it relates to indictments of this character, is not merely obsolete, but properly overruled upon grounds so satisfactory, and heretofore so well stated by other courts, that it is needless to reiterate them. See Commonwealth v. Proprietors of New Bedford Bridge, 2 Gray, 345, 346; People v. Corporation of Albany, 11 Wend. 539, and Freeman's note on that case, 27 Am. Dec. 99; Mayor v. Furze, 3 Hill, 615."

In London and Lancaster Fire Insurance Co. v.

Graves, Kentucky Court of Appeals, Feb. 21, 1883, 1 Ky. L. J. & Rep. 706, two buggies were insured against fire, and described as "contained in a frame building occupied as a livery stable." They were destroyed by fire while temporarily removed from the building for repairs. Held, that the insurers

were liable. The court said: "An examination of the various cases referred to by counsel leads us to the conclusion that the words "contained in " must be construed with reference to the nature of the

property to which they are applied. In insurances of personal property which is generally kept in one place, and whose use does not require it to be moved, such as a stock of merchandise in a store, or carriages in a wareroom for sale, the location is an essential element of the risk, and is generally a continuing warranty; but in insurances on property whose ordinary use requires it to be moved from place to place, the presumption is that they are in use, and that the policy is issued in reference to such use. In the first class of cases the words describing the situation are regarded as a warranty not only that the property is situated as described, but that it will so continue. In the latter class the words defining the situation are words of description and of warranty only so far that the property will continue to be in the place of deposit, except when absent for temporary purposes incident to its ordinary use and enjoyment." The court relied on McCluer v. Girard Ins. Co., 43 Iowa, 349; S. C., 22 Am. Rep. 249; Everett v. Continental Ins. Co., 21 Minn. 76; Longueville v. Western Ass. Co., 51 Iowa, 553; S. C., 33 Am. Rep. 146; and distinguished Annapolis, etc., R. Co. v. Baltimore Fire Ins. Co., 32 Md. 37; S. C., 3 Am. Rep. 112.

In Galveston, etc., Ry. Co. v. Moore, Texas Supreme Court, March 6, 1883, 1 Tex. L. Rev. 145, it is held that the negligence of the parent is not imputable to an infant. The court said: "The leading case in America supporting the affirmative of the proposition is the case of Hartfield v. Roper, 21 Wend. 615, which, with many exceptions and modifications, has been followed in the main by the courts of several other States. This line of decisions seem to apply the rule without reference to whether the parent is present, and in some way actually contributes by negligent act to the injury or not, and even to make the remote negligence of the