Editor of the Albany Law Journal:

Since my communication of the 3d inst., I observe your correspondent's solution of the "legal paradox." It seems to me to be faulty, for the reason that it controvenes the general principle that a judgment can only constitute a lien on property of the judgment debtor, held at the time or subsequently acquired. At the time C. recovered his judgment against A., the latter had in fact no title to the property in question. Hence it follows that C. cannot in any event take the property; though there may be some doubt as to the relative priority of B. and D.

Yours, respectfully,

ALBANY, April 7, 1883.

WM. H. HALE.

laws of the State for the last ten years, and the New Code of Civil Procedure. It also contains references to the American Decisions, the American Reports, Moak's English Reports, to many legal treatises, and to the current legal periodicals. In short, we regard this as the best current digest of State law that we have ever examined, and as a model for all digesters. Of course every lawyer in the State who keeps any law books must have this, and in view of this necessity it is a pleasure to us to be able to recommend the work unreservedly. It is marked on every page by the industry, intelligence and fidelity which its accomplished compiler has always bestowed upon his work. The volume is finely printed, and is published by Baker, Voorhis & Co., of New York.

Editor of the Albany Law Journal:

The legal paradox mentioned by your Georgia correspondent in the last number of the JOURNAL has its counterpart in the cases of Brazee v. Lancaster Bank, 14 Ohio, 318, and Holliday v. Franklin Bank of Columbus, 16 id. 534. In both of those cases there was a judgment not levied within the year, a junior judgment levied within the year and thus acquiring a preference as a against the senior judgment, and an intervening mortgage executed and recorded prior to the rendition of the second judgment. It was held that each lien shouid prevail according to its age. In the case of Holliday v. Franklin Bank, the matter was put thus by the court." If it be attempted to settle the question upon the principle of superiority, it runs in a circle and produces no result. If the junior takes it from the senior judgment, then the mortgage would take it from the junior judgment, and the senior judgment from the mortgage, and thus perpetually without a conclusion. If it be attempted to reason it out by interposing intervening liens, it results in a triangle of equal equities without any circumstance to determine in favor of either. If it be said that the intervening mortgage should protect the senior judgment because it was superior to the junior judgment, and inferior to the senior, so it might, with equal reason, be said that the senior judgment should check the mortgage in favor of the junior judgment, or that the junior judgment should protect the mortgage from the senior judgment. The court therefore felt the necessity of establishing a rule, and that which was considered least objectionable was adopted, to wit, that each should have precedence according to age." Cf. Van Thorniley v. Peters, 26 Ohio St. 471.

CINCINNATI, April 3, 1883.

Yours, truly,

G H. W.

WOOD ON NUISANCES.

A Practical Treatise on the Law of Nuisances in their various forms; including remedies therefor in law and in equity. Second edition. Carefully revised by the author, H. G. Wood, Albany, N. Y., 1883. Pp. xxxix, 1071.

Mr. Wood is one of the very best of our recent law writers, and this we think is the very best of his books. It has taken the rank of an authority, and as such is universally cited in this country. The work has been very conscientiously revised and considerable additions have been made. It is really a mine of learning on a great variety of subjects into which the doctrine of nuisance branches, and therefore is one of the most useful law books of recent years. The arrangement is so good that the practitioner does not need to delve for what he seeks, and when he finds it the author's expression is so definite that there is no possibility of misconstruction or doubt.

POMEROY'S REMEDIES AND REMEDIAL RIGHTS.

Remedies and Remedial Rights by the civil action, according to the reformed American procedure. A treatise adapted to use in all the States and Territories where that system prevails. By John Norton Pomeroy, LL. D. Second edition. Boston, Little, Brown, and Co., 1883. Pp. lxviii, 881. Of the first edition of this work we spoke at consid erable length and favorably. See 13 ALB. LAW JOURN151. Large additions have been made to the notes, and a much better index is furnished. We do not agree in all points with the learned author in his theories of codification, but this work, and 'all his works, are admirable in every practical respect.

NEW BOOKS AND NEW EDITIONS.

The

ABBOTT'S NEW YORK DIGEST, SUPPLEMENT. We have received the first volume of this long needed and important publication. It contains 1,150 pages and comes down to the title, Insolvency. second volume is in a state of forwardness, and will complete the supplement, which will cover the period from 1873 to 1882, inclusive. The work is admirable in its completeness, its analysis, its arrangement, and its precision, and in several points is even superior to the preceding volumes of the series. The delay in issuing it has enabled Mr. Abbott to note the recent changes in our law wrought by the Codes, and he has faithfully noted these. It must be observed that this supplement digests not only the decisions, but the general

COOLEY'S CONSTITUTIONAL LIMITATIONS.

A Treatise on the Constitutional Limitations which rest upon the legislative power of the States of the American Union. By Thomas M. Cooley, LL. D. Fifth edition, with considerable additions, giving the results of the recent cases. Boston, Little, Brown, and Co., 1883. Pp. lxxxi, 886.

Of former editions of this celebrated work we spoke in 4 ALB. LAW JOURN. 164; 9 id. 177. It is impossible to exaggerate its merits. It is an ideal treatise, and not only a standard authority, but almost exclusively sovereign in its sphere. It is cited in every argument and opinion on the subjects of which it treats, and not only is the book authoritative as a digest of the law, but its author's opinions are regarded as almost conclusive. This can be said of very few legal treatises, but it can indisputably be said of this. It is unquestionably the best of Judge Cooley's works, and the one on which he must rely for his reputation.

The Albany Law Journal.

A

ALBANY, APRIL 21, 1883.

CURRENT TOPICS.

VERY serious question has arisen in England, namely, whether anybody but a lawyer may properly speak of his patrons, patients, or customers as "clients." The London Law Times says: "The question seems to have arisen from a judicial reprimand lately addressed to a tradesman-witness who spoke of his customers as his clients. Etymologically, of course, the term is derived from the Latin cluere, or its cognate Greek form λúɛır, to hear, or listen to, and is accordingly compared by Niebuhr to the German hoeriger, a dependant. Historically, it was first used in Latin as the correlative of patronus. Any Roman citizen who wanted a protector might attach himself to a patronus, and would thenceforth be a cliens, and numberless allusions by classical writers show that one of the patron's principal duties was to act as the legal adviser and advocate of his client. The strict modern use of the word seems to be founded on this custom. By Johnson a client is said to be 'one who applies to an advocate for counsel and defense;' and Webster, after noticing the application of the word in Roman times, defines it as 'one who applies to a lawyer or counsellor for advice and direction in a question of law, or commits his cause to his management in prosecuting a claim or defending against a suit in a court of justice.' It is said however that in French the term bears a wider signification, and is applied to the patients of a doctor, and to the customers of an ordinary tradesEven this is to be doubted, for referring to the dictionary of M. Littré, we find an express disapproval of this neologisme, as he calls it. We have therefore no hesitation in saying that the term 'client' can only be properly used in connection with legal matters, and that when employed by doctors, house agents, merchants, or ordinary tradesmen, it is distincly a misnomer." In this country architects are in the habit of speaking of their "clients." This it seems is so in England, and even bankers have been poaching on our preserves. The Law Journal says: "There is no putting bounds to the use of words in the English language, which is every day changing, but by derivation the word is confined to cases in which the client is in a relation of dependence for advice or support on the patron, which is the term applicable to the other side of the relation; and by usage, the word is confined to the relation in which the advice given is in regard to law and the support in the conduct of law suits. The etymology of the word at once disposes of the pretensions of tradesmen. They are the clients, if any one, and not their customers, to whose ' distinguished patronage' they constantly appeal. Further, the necessity for advice to the client in matters which he himself does not understand, and support in the prosecution of rights which he cannot prosecute for VOL. 27-No. 16.

man.

himself, excludes the whole race of accountants, agents, architects, and others. They have employers, principals and customers, but not clients. Further, the word is frequently used in Acts of Parliament in reference to lawyers, and to them alone; and is not applied, except, perhaps, in metaphor, by any established writer or accurate speaker to any other relationship." If these other gentlemen are going to usurp the peculiar name of our customers, we may feel called upon to adopt some other-"patients," for example, would be a good one.

The recent suit of Hickey v. Morrell, in the city of New York, conveys a humiliating sense of the transient fame of the lawyer in comparison with that of members of professions much less intellectual. This was an action against a warehouseman for damages by the loss of valuable paintings stored in his warehouse and destroyed by fire, and which had once belonged to Peter Fanueil of Boston. Two of these paintings were portraits by Sir Joshua Reynolds, and two by Sir Peter Lely, and others by Blackburn and Gilbert Stuart. Mr. Clarence Cook testified to the genuineness of the Reynolds pictures, and that they were quite valuable, as were also those by Sir Peter Lely. George Earle, a dealer in paintings, testified that the value of Reynold's paintings depended upon how many dealers here were interested in running the picture up or running it down. He would be willing to give $2,000 for a Lely, and could sell it for $5,000. Mr. Cook, it is reported, testified that in his opinion Reynolds was the greatest portrait painter that ever lived. That was certainly rating him rather extravagantly, when we recall Titian, Holbein, Velasquez and Van Dyck. But if any lawyer of the present day shall even be heard of a century hence, it is quite certain that a great artist will long outlive him. If Lord Mansfield or Erskine had written a book, and but one copy were attainable, it probably would not bring a tenth of the value of one of Reynold's poorest portraits.

A singular bill has been introduced in the Michigan Legislature, namely, to try the question of a testator's capacity in his life-time. The provisions of the bill have been thus summarized: 66 The measure does not change the existing law with regard to wills, but adds to it a provision that any one who desires to do so may present his will to the circuit or probate judge of the county in which he lives, together with a petition declaring that it was duly executed by the petitioner, that he was of sound mind and memory, and not subject to any undue influence, and praying that it be allowed. He is at the same time to furnish a list of all persons who would be interested in his estate as heirs. A day is then to be appointed for hearing the petition, which the heirs may oppose if they choose. At the hearing the judge is to inquire into the testamentary capacity of the testator, examine any witnesses that may be produced, and if it appears that he is in a fit condition of mind to dispose of his property, is to make a decree establishing the will, which shall be

final and conclusive as to the question of testamentary capacity. The contents of the will are not required to be made known. One patent objection to this measure has been commented on, namely, the impracticability of judging of the question of undue influence without knowing the contents of the will. Manifestly it would generally be very impolitic and unsafe for the provisions of testators to be divulged beforehand. But another objection occurs to us, which has not been raised, namely the consequent inconvenience of changing the will. Testators frequently desire to make changes. Marriage and birth of children, among other things, are valid reasons for changes. It would be rather inconvenient, not to say ludicrous, for a testator to have his capacity judicially inquired into and settled every time he wanted to alter his will. The bill in question provides that "the heirs may oppose if they choose." If they do not know the contents, how do they know they want to oppose? We are inclined to believe that the best safeguard against what some of the newspapers feelingly call "posthumous insult" of testators, would be to deny the defeated party costs out of the estate (as is the law in our State) or if you choose to charge them with costs of the proponents.

Who will say, de minimis non curat lex, after observing the tenderness of our Legislature toward lobsters? An ineffectual attempt has been made to repeal the law which prohibits the catching of lobsters above ten inches in length, or ten and a half, we are not certain which; or rather adjures the catcher to put them back in their native element after they have inadvertently been caught; for we do not suppose any law could prevent undersized lobsters from crawling into the pots. The enforcement of this law must necessarily be attended with a good deal of trouble to the conscientious lobster hunter, for he must measure every doubtful lobster, either by a pocket rule or a mark on the gunwale of his boat. The ladies have a way of measuring a yard of dress goods by taking one end of the cloth in one hand and stretching the arm to its extreme length, and applying the fabric tautly stretched, to the end of the averted nose; this is a just yard, no matter what the length of the feminine arm or nose. The early trappers in this country used to buy furs from the Indians by the pound, and convinced the confiding red men that the trapper's foot weighed just a pound. We hope our fishermen will adopt more exact tests than either of these devices. Moreover, applying the lobster to the end of the nose might occasionally be attended by pain. The good citizen will gladly suffer personal inconvenience in the cause of suffering shell-fish, and may depend upon it that Mr. Bergh, or Mr. Gerry, or Mr. Roosevelt, or some other of our unselfish humanitarians, will have a sharp look-out upon his catchings, and see that there is no criminal stretching of young lobsters.

Mr. Nelson introduces in our Senate a bill to amend the Code of Civil Procedure by providing

that "Every action brought by one or more stockholders in a corporation against the corporation and other parties founded on rights which may properly be asserted by the corporation, must be upon a verified complaint, and such complaint must contain an allegation that the plaintiff was a share-holder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of the law. The complaint must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees and if necessary, of the share-holders, and the causes of his failure to obtain such action." This is proper so far as it goes, but we would go further and provide that no injunction should be granted to deprive one not a party of his rights without giving him a hearing, i. e., an injunction against A., forbidding him to pay his debt to B., where B. is not made a party and has no opportunity to move to vacate or modify; and further that in analogy to the provision about counter security in an action to recover a chattel, if the defendant enjoined should offer the same security against injury to the plaintiff by dissolving the injunction that the plaintiff has given against injury to the defendant by granting it, the injunction should be vacated. Of course we are speaking of cases where money will mend the harm. Although the theory of our law is that injunctions are to be granted only in cases of apparent "irreparable damage," yet in practice they are by no means confined to such cases. Injunctions are granted much too frequently, and in many cases of corporations work great oppression and injustice to stockholders who have no quarrel, but have no day in court. An eminent jurist of another State recently wrote on this subject to a public man in this State: "I do not know how it seems to you, but to me it is inexplicable and intolerable. I should think some check ought to be put upon the present practice of tying up corporate business by injunction upon the application of any dissatisfied or blackmailing stockholder."

We

It is apparent that the opponents of the Civil Code hope to defeat its passage in the Senate by dilatory tactics. They cannot hope to do it by any manly means or fair argument. There is unquestionably a large majority of Senators in favor of the bill. The same is true of the judiciary committee. know that the chairman of the committee is opposed to it, and all we ask of him, in behalf of a considerable majority of the lawyers and an overwhelming majority of the people at large of this State, is not to suffer the bill to be so delayed by argument in committee as to render action upon it in the Senate impracticable. An early adjournment is now talked of, and the half dozen opponents of the Code from the city of New York would eagerly take turns in talking against time, or against eternity, if they thought they could thus postpone the inevitable and dreaded day when they shall have to read a new lawbook which none of their number has written.

NOTES OF CASES.

N Railroad Co. v. Walrath, 38 Ohio St. 461, it was held that a passenger, by train of a railroad company, travelling in the coach of a sleeping-car company, may properly assume, in the absence of notice to the contrary, that the whole train is under one management; and in such case, where he sustains injury by the negligence of one in the employ of the sleeping-car company, he may maintain an action against the railroad company. The court said: "Counsel for plaintiff in error argue in this case that sleeping-cars have became recognized as so far necessary to the comfort and convenience of passengers by railway, that railway companies may be compelled, in like manner, to attach the coaches of sleeping-car companies to their trains, where they have failed to provide their own cars for such purpose, in which case there should be a corresponding modification of the liability of the railroad company, and that whether the arrangement between the companies be enforced or conventional, the railroad company should not be liable for injury to passengers resulting solely from negligence of the agents of the sleeping car company. In support of this view, attention is called to the fact that in Penn. Co. v. Roy, 102 U. S. 451, where the liability of the railroad company for an injury received in a car of the Pullman Palace Car Co., was asserted, Harlan, J., lays stress on the fact that the railroad company had published and circulated cards, which where in such form as to induce the belief that the sleeping-car was under the management and control of the railway company. But on examination of the whole opinion, we find there was no intention to place the liability on such narrow ground; and we have no hesitancy in saying, that in the absence of notice that the company will not be liable for defective appliances in the sleeping-car or negligence of servants of the sleeping-car company, a passenger may well assume that the whole train is under one general management. Thorp v. Railway Co., 76 N. Y. 402; S. C., 32 Am. Rep. 325; Kingsley v. Railroad Co., 125 Mass. 54; S. C., 28 Am. Rep. 200. How far a railway company may, by agreement with a sleepingcar company, known to the passenger, exonerate itself for liability for such injuries, is a question concerning which we express no opinion." See 26 ALB. L. JOUR, 523.

In Nevin v. Pullman Palace Car Co., Illinois Supreme Court, March 27, 1883, the suit was brought by Nevin against the car company for refusing to permit him to occupy a sleeping berth assigned to him and which he offered to pay for. The lower courts decided that the plaintiff had no power to force accommodations from the car company, and that it was optional on its part to furnish the same. The court asserts that the running of sleeping-cars has become a business and social necessity, and in this view the law can impose obligations on the company the same as on railways, ferrymen, and innkeepers. In the language of the opinion: "When, therefore,

a passenger who under the rules of the company is entitled to a berth on payment of the usual fare, and to whom no personal objection attaches, enters the company's sleeping-car at a proper time with the purpose of procuring accommodations, and in an orderly and respectful manner applies for a berth, offering or tendering the customary price therefor, the company is bound to furnish it, provided it has a vacant one at its disposal." For a breach of any of these implied duties the court holds the company clearly liable.

In Anderson v. Brewer, Poole County Court, England, March 19, 1883, as we learn from the Law Journal, was an interesting question as to the effect of an act of God upon an executory contract. The facts as they were proved at the trial were that in May, 1881, the plaintiff, who is a grower of grapes for the market, had a quantity in his greenhouse for sale. An interview between the plaintiff and the defendant took place, and it was finally agreed that the defendant was to give 227. for the grapes as they stood, to be taken away by the defendant as they became ripe and the demands of his business required. The time for grapes ripening extends generally from June to the following February. The defendant began taking from the bulk in July, and continued doing so until the end of August, when an interval occurred of five or six weeks, during which none were removed. On October 21, on defendants sending for a further supply, it was found that owing to a fog the remaining portion of the undelivered grapes had become injured and unsalable. The jury found a verdict for the plaintiff for the full amount. On these facts the defendant moved to enter a verdict for the defendant on the ground that the defendant having paid 127. into court for the grapes actually delivered, as to that portion of the grapes incapable by the action of the fog of being delivered, the plaintiff cannot recover, it being the intention of the parties when the purchase was made that the defendant was only to be liable for the value of the grapes delivered by the plaintiff in a state fit for sale. On the other hand it was urged that the grapes having been bought in bulk by the defendant, the contract was absolute and not executory, and that the property passed at once, and with all risk of loss. The court said: "The grapes, the subject-matter of the sale, were existing at the time, and capable of being ascertained and identified. They were sold all together as they stood, and the price, 227., was fixed and agreed upon. According to the authorities, sale at that moment was complete, and the right of property and the risk of loss were transferred from the vendor to the vendee (Bloxam v. Saunders, 4 B. & C. 948); and this although the right of possession may continue in the vendor until the purchase-money has been paid or tendered. The fact that the grapes when sold by the plaintiff to the defendant had to acquire certain qualities, such as increased growth, color and ripeness, does not in my opinion make the contract executory, or impose any other duty on the plaintiff