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SUBSTITUTING ANSWER FOR DEMURRER BY WAY OF
AMENDMENT.

Editor of the Albany Law Journal:

In January, 1885, the General Term in the First Department of the Supreme Court, composed of Judges Davis, Brady and Daniels, held (Carpenter v. Adams, 34 Hun, 429) that an answer could be substituted for a demurrer by way of an amendment. The General Term in the same department, in May, 1887, composed of Judges Van Brunt, Brady and Daniels, held (Smith v. Laird, 44 Hun, 530) that an answer could not be served by way of an amendment to a demurrer. Judges Brady and Daniels concurred in both decisions, and no reference is made in the latter to the former case.

Is not the earlier case the more sound of the two?

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SCHOULER ON BAILMENTS AND CARRIERS. The second edition of this work forms a volume of some 850 pages, and is from the house of Little, Brown & Co. We found the first edition worthy of high praise, and the present has all the advantages of a review, and embraces the recent authorities. The arrangement is improved by division into sections, with head-lines, for which the author's half-way apology is unnecessary. The work is of solid merit. It embraces the subjects of Innkeepers and Pledge.

and others, respondents, v. J. F. Peck and another, impleaded, etc., appellants.- Judgment affirmed with costs-William H. Waring and others, respondents, v. Moses Chamberlin, appellant.-Judgment affirmed with costs-Cornelius S. Groot and others, respondents, v. Frederick G. Agens, appellant. Appeal dismissed with costs-John G. Harbottle and another, appellants, v. John Farrel and others, respondents. Judgment affirmed with costs-Elisha M. Shurtleff, respondent, v. Utica & Black River Railroad Company, appellant.-Judgment affirmed with costs-John D. Hamilton, appellant. v. William Austin and another, respondents.Order of the General Term affirmed, and judgment rendered against the appellants on the stipulation with costs-Equitable Life Insurance Company of the United States, respondents, v. Charles Van Glohn, impleaded, etc., appellants.-Judgment affirmed with costs-Frank Harding, respondent, v. New York, Lake Erie and Western Railway Company, appellant.-Judgment affirmed with costs-Theodore Wackerman, respondent, v. John F. Kenner, appellant.-Judgment modified by conforming the interest to the statutory rate after January 1, 1880, and as modified affirmed with costs-David F. Day, respondent, v. James C. Strong, impleaded, etc., appellant.-Judgment of General Term affirming order of Special Term denying peremptory mandamus and other proceedings affirmed, with leave to apply to the SupremeCourt for the trial of the issues forthwith before one of the justices thereof, or in such other way as the parties may agree upon and the court shall approve of-People, ex rel. John Mackin and another, appellants, v. Board of Police of the City of New York, respondents.-Order affirmed with costs, with leave to apply to the court for leave to answer-Thomas Swords and others, respondents, v. Northern Light Oil Company and others, appellants.

Appeal dismissed with costs-Ju re Application of Niagara Falls & Whirlpool Railway Company to acquire lands.Appeal dismissed with costs-Thomas M. King and others, respondents, v. Reon Barnes and others, appellants. Six motions decided, viz,: First, appeal from interlocutory judgment dismissed with costs; second, appeal from General Term allowing amendment of complaint dismissed with costs; third, appeal from the order denying stay of proceedings dismissed with costs; fourth, motion to amend remittitur denied; fifth, motion to consolidate appeals denied; and, sixth, motion to stay proceedings denied-Thomas M. King and others, respondents, v. Reon Barnes and others, appellants.-Appeal dismissed with costs-Jennie E. Wells, respondent, v. Henry H. Wells, appellant.-Order affirmed with costs-In re Application of Erastus H. Munson, etc.

-Appeal dismissed with costs-Amanda H. Pugsley, respondent, v. Perrin H. Sumner and others, appellants.- Motion for reargument denied with costsCharles S. Archer, respondent, v. New York, New Haven & Hartford Railroad Company, appellant.Motion to amend granted with costs-Bowker Fertilizing Company v. Lawrence N. Cox.-Motion to amend remittitur granted by awarding costs to the city alone, without costs of motion-In re District Railroad Company.-Motion to dismiss denied without costs-Julius Forsman v. Ruth A. Schulting.Motion to dismiss appeal denied with $10 costsJames A. Farley v. Mutual Life Insurance Company. -Motion to dismiss appeal denied with $10 costsDaniel A. Zimmer v. David Little.- -Motion to open default granted on condition that the appellant file the return, serve printed cases, pay the costs, the THE HE following decisions were handed down Tuesday, judgment entered on default, and $10 costs of this

COURT OF APPEALS DECISIONS.

Oct. 25, 1887:

Judgment affirmed with costs-Theodore D. York

motion, within twenty days. Otherwise denied with costs-Schwar v. Weber.

The Albany Law Journal.

ALBANY, NOVEMBER 5, 1887.

CURRENT TOPICS.

dence unless he was bound to answer under section seventy-nine of the Penal Code. That section reads as follows: "A person offending against any provision of any foregoing sections of this Code relat-. ing to bribery is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding or investigation, in the same manner as any other person. But the testimony so given shall not THE argument of the Sharp case in the Court of Appeals was made last week by Messrs. Cock- be used in any prosecution or proceeding, civil or ran, Paige and Stickney, for the appellant, and criminal, against the person so testifying." Sharp's counsel claimed that this section compelled him to Mr. Nicoll and Judge Comstock, for the people. Only two points were pressed on the oral argument. testify, and prohibited the use of his testimony The first was the exception to the admission of evi- against him. The people's counsel answered that this enactment refers to "investigations," etc., in dence of Sharp's attempt, in 1883, to bribe Pottle, the reading clerk of the Assembly, to alter a bill courts of justice, and does not include legislative so as to include the Broadway Surface Railroad. investigations; and that on the investigation in On behalf of Sharp it was argued that this was a question Sharp was not a witness against another distinct and independent crime, and the evidence person so offending," but only against himself, and therefore at liberty to plead his constitutional priviwas incompetent, as for example, on a trial for rape, evidence of rape on another person, or on a trial for lege of exemption from self-crimination, and negperjury, evidence of another perjury, is inadmissi-lecting so to plead it he waived it, and testified ble to prove the commission of the offense in question, or to prove a propensity or tendency to commit the crime in question. To which the answer was made that such evidence is competent, although it may show another crime, when the act sought to be proved is part of the res gesta, or of a series of similar or nearly contemporaneous crimes, or to show motive or probability, in order to overcome the presumption of innocence; that Sharp had been trying for thirty years to procure the enactment of such legislation as a necessary preliminary, and that it was a fair deduction that a man who would resort to bribery for that purpose would resort to bribery of the aldermen to procure their consent to the effectuation of such legislation, as charged in the in

voluntarily. To which the counsel of Sharp replied that the letter of the section, on which he has a right to rely, clearly embraces legislative investigations, and that the word was added to "trial, hearing, proceeding," for that purpose, and not tautologically, and that the word has been used by the Legislature to denote none but legislative investigations in one hundred and seventeen instances of the one hundred and twenty in which it has been employed in statutes; and they argued that the spirit and intent of the enactment is to induce the guilty to inform on the pledge that they shall

themselves be absolved.

It will be perceived that these questions, especially the latter, are serious and difficult. They

were argued for five hours, and this fact alone is a complete answer to the criticisms on the judges who have granted the stays. Judge Comstock himself in his opening went out of his way to declare his opinion that the prosecution had been conducted with reasonable expedition, and that Sharp had been accorded nothing more than his legal right. Let the newspapers put that in their pipes and smoke it. In addition to the points or

dictment. Thus a man charged with rape may be shown to have previously attempted rape on the same person, and a man charged with false pretenses may be shown to have used the same or similar pretenses at about the same time to other persons. That although the evidence in question tended to prove another crime, yet it was a crime to the same special end, and thus like a previous attempt to commit rape on the same person. suppose if the evidence offered had been of a previous bribery, or attempt at bribery of the same al-ally dwelt upon were two not adverted to, upon dermen or other aldermen, there would be no question of its competency, and the only doubt now is whether the attempt to bribe the Assembly clerk to effect the same general end is distinguishable.

We

The other point, and that on which the greater stress was laid, was the exception to the admission of Sharp's evidence before the legislative committee appointed to investigate the procurement of the Broadway Surface Railroad bill. It was conceded that Sharp did not plead his privilege to refuse to answer to the committee on the ground of selfcrimination. It was conceded also that this omission was fatal to his present objection to the eviVOL. 36 No. 19.

one, if not both of which, Sharp must be entitled to a new trial, unless this court has the marvellous vision of the court below, which enabled them to see that the admission of the evidence in question "could not have hurt him."

If the crowd of spectators on this argument expected to hear shining or striking addresses, or any thing beyond the fair average of professional ability, either in reasoning, or rhetoric, or declamation, they must have gone away disappointed. The arguments were all conversational and unimpassioned. There was not an especially good or attractive speaker among the counsel. Mr. Cock

ran came nearest the mark in this respect, but he is too rapid for the best effect probably also embarrassed by the limitation of time. His argument was also decidedly the best, both in substance and in expression; in point of rhetoric it was quite polished but not over-wrought. Mr. Nicoll is a bright young man, undoubtedly entitled to great credit for the preparation and trial of this important cause, but not yet quite at home in the style of argument best adapted and usually addressed to this court. On all the speakers except Messrs. Cockran and Stickney we must make the criticism that they were too long in getting at and coming to the point. Like scoring horses they tire themselves and the audience before they start. Counsel should assume that the court know something of a case after it has been stated to them for an hour by a lawyer like Mr. Cockran. Counsel are almost always too long in argument. This case might have been better and more impressively argued in two hours than in five. Such "damnable iteration" simply serves to stun the perceptions of the judges. But it takes a master to make a short argument. Nicholas Hill could do it, and so could Charles O'Conor. While this argumentation was going on we thought of and longed to hear those great men, or John H. Reynolds, Henry Smith, John K. Porter, James C. Carter, William A. Beach, or some of the other intellectual giants to whom we have listened entranced.

There is a new political party in this country. It is composed exclusively of brewers, distillers and rumsellers. It calls itself the "Personal Liberty" party. This avowedly means nothing more nor less than the right to sell rum and make men drunk on Sunday just as on week days. The purpose of this party is to abolish the Sunday laws so far as they prohibit the opening of liquor stores and saloons on Sunday. To deceive the public, in this State the founders of this party have added the pretended purpose of opening the museums and libraries on Sunday; but as there is no law against that, the trick will not avail. Here is a serious question, which concerns every lawyer and layman. The question is, shall Sunday be abolished? Shall we have a genuine Witches' Sabbath, or an orderly, christian Sunday? Shall we open this day to the enemies of public morals and the debauchers of common virtue, or shall it continue to be a season of needed rest, peace, recuperation, reflection and worship? We are no puritan, ascetic or precisian; not even a "total abstainer." We would not have Sunday a day of gloom and penance and dread. We would not send a poor shoemaker to prison for hoeing a few hills of corn in his door-yard at eight o'clock on Sunday morning, nor send a farmer to prison for gathering seaweed on a beach, several miles from any house, at ten o'clock on Sunday night, as was done twenty years ago in Massachusetts. On the other hand, we would not have Sunday a day for noisy amusement, riot, debauchery, wages-wasting, and crime-sowing; a day for beer-guzzling,

whisky-swilling, horse-racing, cock-fighting, prizefighting, theatre-going, ball-playing, and general "cussedness." We would have it a day for rest of body, peace of soul, quiet entertainment of mind, association with nature, communion with God; a day for law-abiding, order-loving, God-fearing men; the Sunday ordained by God and granted us by our fathers. Open Sunday to the common sale of rum and you give the devil a tremendous fulcrum for his pitchfork. Within ten miles of where we are writing there are two thousand groggeries, which are now open on Sunday only by stealth and in defiance of law. Give their keepers a legal right to sell their death-dealing draughts on Sunday, and you will increase the crime, vice, poverty, misery, insanity and wretchedness of this region beyond computation. "Personal liberty," forsooth! Has any man a right to kill himself? Or to help another commit suicide? Or to sell poison without precaution or restrictions? Or to keep powder where and as he pleases? Or to carry on a noxious or noisome trade, to the danger or discomfort of his neighbors? By and bye, we shall have an appeal for "personal liberty" to keep opium dens, or houses of prostitution, as is now done in Paris. Why not? "A large class of the community want them," and why not give them what they want? This Rum power is tremendous, a Moloch to which this country offers up a money tribute of seven hundred millions a year-enough to pay off the national debt in three years — of which four hundred millions is clear profit, going into the pockets of these brewers, distillers and grog-sellers, who are not content with their gains and are crying for more. The impudence and shamelessness of these creatures! Is there any honest and orderly merchant, or manufacturer, or tradesman, who is demanding "personal liberty" to do business on Sunday? Not one. Nobody is discontented with our Sunday laws except that most dangerous class who make our criminals and paupers, corrupt our politics, fill our prisons, our poor-houses, our dens of prostitution, and our insane asylums; to enrich whom murder, lust, cruelty, poverty and ignorance are permitted to exercise their dark sway; who grow fat and kick while wives and widows weep, children mourn and starve, and poor girls sell their souls and their bodies. Again we say, the impudence, the shamelessness, the wickedness of these men! Unaccountable on any hypothesis except that Quem Deus vult perdere, prius dementat. Rum is a great power; party politics is a great power; but there is a greater, and that is the aroused popular conscience, which will assert its rule and teach these men to hide themselves; that they exist only on sufferance; and that if necessary those who love law and virtue will put their foot upon their necks, as St. George crushed the wriggling dragon.

Mr. Charles C. Soule, the well known law-book seller of Boston, whose shop has the odor of sanctity belonging to the late Freeman street chapel,

has issued a catalogue of his publications, with portraits of the authors, including Messrs. Wood, Schouler, Stimson, Chamberlayne, B. V. Abbott, Ewell, Jones, Sheldon, Indermaur, Cohen, Henry Austin, and another - a fine array of intellectual beauty, excepting that other.

IN

NOTES OF CASES.

N Noyes v. Town of Boscawen, New Hampshire Supreme Court, July 15, 1887, it was held that in an action against a town for personal injuries received by the plaintiff from a defective highway while riding in another's carriage, by invitation of the latter, the negligence of the driver, contributing to the injury, does not amount to contributory negligence of the plaintiff where the plaintiff was in no fault in riding with the driver, and in no way controlled, or could control, his management of the team. The court said: "The question whether the negligence of the driver, over whom a passenger has no control, is a bar to an action by the passenger for injuries caused by an insufficient highway, has never been directly raised or determined in this State. It has sometimes been assumed, without being questioned, that the passenger was responsible for the driver's care. The question can only arise in cases where the passenger has no authority or control over the driver, and where the relation of master and servant or principal and agent does not exist between the passenger and driver. It does not arise in an action by the owner of a team injured by a defective highway while in the possession and control of a bailee. Property cannot of itself exercise care, or be guilty of negligence. It has no rights or duties independent of the owner; and as towns are liable for damages happening to travelers only, the owner of a team injured by a defective highway, to recover against the town, must show that at the time of the injury it was being used for traveling purposes, and managed with reasonable care, and therefore the owner is bound by the degree of care exercised by the party to whom he has intrusted the care of his property. To recover for a personal injury a traveler must show that he was personally exercising due care; and to recover for an injury to property it must appear that the property was used and managed with due care at the time the injury was received. Hence cases for injury to a horse or carriage in the control of a bailee, like Norris v. Litchfield, 35 N. H. 271; Cummings v. Center Harbor, 57 id. 17; and Stark v. Lancaster, id. 88, are not authority for the doctrine that a passenger, personally exercising due care, is necessarily chargeable with the negligence of the driver or manager of the vehicle in which he was riding. In the absence of any relation of master and servant, or principal and agent, when each is independent of control by the other, why should a passenger be chargeable with the driver's negligence any more than the driver with the passenger's negligence? In traveling in the night, an obstruction in the

highway unknown to the driver, but known to a passenger, causes an injury to both. By informing the driver the accident would have been avoided, and the passenger was chargeable with negligence in failing to give the information. The passenger cannot recover; would his negligence preclude the driver, who was in no fault, from recovering? A traveler on foot is responsible only for his own negligence. Why should a traveler in a carriage be held responsible not only for his own negligence but also for the negligence of a driver over whom he has no control? It is contended that towns are only required to keep their highways safe for care| ful driving, and therefore a passenger is necessarily affected by the driver's negligence. There is no absolute legal test of the sufficiency of a highway. Like the question whether a person is a traveler upon the highway, it is ordinarily a question of fact. Varney v. Manchester, 58 N. H. 430. A highway is not required to be entered free from defects, but it must be suitable for the travel thereon. Gen. Laws, chap. 75, § 1. It must be reasonably safe. But it cannot be said, as matter of law, that a highway sufficient with a safe horse, carriage and driver, is a reasonably safe highway; nor that a highway, to be reasonably safe, must be sufficient to prevent accidents with a vicious horse, a defective carriage, or a careless driver. The fact that an injury to a traveler on a highway was caused by the combined effect of the unsafe condition of the road and the negligence of a third person is no defense to the party who is bound to keep the highway in repair. Shear. & Red. Neg.; Winship v. Enfield, 42 N. H. 197; Norris v. Litchfield, 35 id. 271; Cooley Torts, 684. A traveller is required to exercise reasonable care in the use of a highway, in the selection of his horse, harness and carriage; and if he exercises such care, the fact that the vices of the horse, or defects in the harness or carriage, may have concurred with the unsafe condition of the highway in causing an injury, is no defense to the town. Clark v. Barrington, 41 N. H. 44; Tucker v. Henniker, 41 id. 317. In harmony with this rule, and upon principle, we think that a traveler should be held to the exercise of reasonable care only in the selection of a driver; and being in no fault in the choice of his conveyance, and having no control over the management of the team, he should not be held responsible for the negligence of the driver which he could not reasonably anticipate or prevent. In Plummer v. Ossipee, 59 N. H. 55, which was an action by a wife for injuries from an obstruction in a highway while riding with her husband, the defendant claimed that the husband was a fast and careless driver, and introduced in evidence particular instances of his fast and careless driving, and subject to exception, the plaintiff was permitted to testify to other instances of his careful driving when she had been riding with him; and it was held that the evidence was relevant to the husband's character for driving safely or otherwise, and was also relevant to the question of the plaintiff's negligence in selecting a suitable driver

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on the occasion of the accident." See Borough of Carlisle v. Brisbane, 113 Penn. St. 544; S. C., 57 Am. Rep. 483, and note, 488.

and thereby subject him to the legal consequences of that relation, because he could not have bound himself in the premises by an express contract with the defendant, and hence cannot be deemed to have assented by implication to that relation and its consequences. But this is not so, for an infant can bind himself by an express contract for neces

implied contract as well; and surely food and shelter, care and nurture, in the defendant's house, were necessaries for the plaintiff in his circumstances. Thus, in Stone v. Dennison, 13 Pick. 1, an infant contracted specially to serve the defendant till of age for his board, clothes and education, and it was held that he could not repudiate the contract and recover for his services, because they were shown to be worth more than the stipulated compensation. The case was put upon the ground that the contract was for necessaries. In Williams v. Hutchinson, 3 N. Y. 312, the assent of an infant to an arrangement to waive the right to claim wages for his services was implied from the parental relation the defendant sustained to him when they were rendered. We take it to be sound law that whenever one stands in the relation of a parent to an infant who needs his care and support, and faithfully discharges the duties of that relation, there being no express contract to the contrary, nor any circumstances showing a different understanding or expectation of the parties, there can be no recovery for services on the one hand, nor for care and support on the other, though one happens to be worth more than the other." Taft, J., dissented.

Ormsby v. Rhoades, Vermont Supreme Court, Oct. 15, 1887, was an action to recover for services by an infant to a person to whom he had been in-saries, and if by an express contract, then by an trusted by the poormaster, and who had supported him in his family. The action was defeated, the court saying: "It is not true that in order to entitle the defendant to be treated as having stood in loco parentis to the plaintiff, he must at the time have had the legal custody of his person, and have been bound to support, protect and educate him; and Blackstone and Kent, cited to that proposition, do not sustain it, and the cases are the other way. Thus, in the absence of any statutory provision imposing the obligation, a step-father is not bound to maintain his step-children, and consequently is not entitled to their earnings, nor the control of their persons. Tubb v. Harrison, 4 T. R. 118; Cooper v Martin, 4 East, 76; Freto v. Brown, 4 Mass. 675; Bartley v. Richtmyer, 4 N. Y. 38; 2 Kent Comm. 192. But yet he may stand in a partial relation to them, and if he takes them into his house, and they become a part of his family, he will be deemed to stand in such relation, and to be entitled and responsible accordingly as long as that relation exists. Stone v. Carr, 3 Esp. 1; Lord Ellenborough, in Cooper v. Martin, 4 East, 76, 82; 2 Kent Comm. 192. But when they cease to be members of his family, as they may at will, then whatever custody and control he had of them is gone, and his rights and liabilities on account of his former relation to them cease, and they cannot recover of him for services rendered while that relation existed, though minors at the time, and though their services be worth more than their support, unless there was an express agreement to that effect, or something to show that such was the understanding or expectation of the parties, for in such circumstances a promise to pay wages will not be implied.

Williams v. Hutchinson,

3 N. Y. 312. The relation rebuts such an implica

tion. In Manvell v. Thomson, 2 Car. & P. 303, an uncle who had brought up a niece, but of whom the case does not show he had legal custody, was held to stand in loco parentis to her; and on showing the smallest degree of service, was allowed to recover damages for her seduction, the same as a father. And in Irwin v. Dearman, 11 East, 23, the plaintiff, who had taken into his family, and bred up for several years, the daughter of a deceased friend, was allowed to recover damages for her seduction ultra the mere loss of service, on the ground that he stood in loco parentis to her. So in Haggerty v. Me Canna, 25 N. J. Eq. 48, a step-father, having voluntarily assumed the care and support of his step-daughter, was not allowed compensation for her support, because he stood in loco parentis to her. It is further contended that because the plaintiff was an infant therefore the defendant could not stand in the relation of a parent to him,

In Olmsted v. Rich, tried at the Delaware Circuit in this State, on the 26th of September, 1887, before Justice Boardman and a jury, the complaint was by the occupant of a village lot against his next-door neighbor for a nuisance in the keeping of bees, which came upon the plaintiff's premises to his annoyance. The jury found the matter a nuisance, and awarded six cents damages, and the court granted a permanent injunction commanding the removal of the bees and against the further keeping of them.

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SOCIÉTÉ ANONYME DE LA DISTILLERIE DE LA BENE-
DICTINE V. MICALOVITCH, FLETCHER & COMPANY.
"Benedictine" is a valid trade-mark for a liquor invented by
and made after a recipe of the Benedictine monks, al-
though used by an assignee of the original proprietor
whose name is employed in the labels, without disclosing
the change of proprietorship, and although such assignee
is a French alien who has not deposited a duplicate
copy of the trade-mark in Paris.

CTION for injunction against infringement of a
trade-mark. The opinion states the case.

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