alone to a practical printer (like the writer), is almost worth the price of the volume. For sale in Albany by Banks & Bros.

5TH AMERICAN PROBATE LAW.

This volume maintains the excellent character of the series. The cases are judiciously selected, and there are some useful notes by the editor, Charles Fisk Beach, Jr. The publisher's work is very handsomely done by Baker, Voorhis & Co., of New York.

DERBY'S LIEN LAW.

The Mechanics' Lien Law of the State of New York (passed May 27, 1885), with all the amendments, superseding the various local statutes, and applicable to the entire State. Also, Lien Laws affecting Municipal Property, Railroad Corporations, Oil Wells, etc. With notes of judicial decisions, and appropriate forms, by John S. Derby. Second edition. New York: Baker, Voorhis & Co., 1887. This hand-book of one hundred and thirty pages must serve a very convenient purpose. The arrangement is logical and appeals quickly to the eye. The notes run over the decisions of other States as well as those of our own. The book would be well worth the trifle that it costs, if only for a single case.

WARNER'S LAW OF EVIDENCE.

Law of Evidence under the Code of Civil Procedure of the State of New York, with Forms. By Henry E. Warner, Albany: W. C. Little & Co. Pp. xlviii, 426.

This manual gives the sections of the code relating to evidence, and under each places the appropriate decisions. It seems to be exhaustive. The matter concerning section 829 alone covers sixty pages. The table of cases cited covers thirty-four rather spacious pages. The statements are concise and clear. The index is remarkably good, and covers eighty pages. We skip the Forms we always do we are opposed to forms. The typography is well adapted to quick reference, and the book appears every way convenient for the hasty needs of the practitioner.

Judgment reversed, new trial granted, costs to abide event-Elizabeth Bickford, respondent, v. Henry Menier and others, appellants. Judgments affirmed with costs-Emily Rockfellow, appellant, v. Samuel H. Miller and others, respondents, and Edgar B. Barks appellant, v. Same.—. -Judgment of General Term reversed and that of Special Term affirmed with costs-Ann McGregor, appellant, v. Board of Education of New York, respondent.-Judgment affirmed with costs. The court holds that the city is the proper party to sue its treasurer for failing to pay to the county treasurer the State and county taxes, and affirms the judgment against him-City of Poughkeepsie, respondent, v. Abraham Wiltsie, appellant. -Judgment affirmed with costs-Matthew White, appellant, v. Michael Kuntz and others, respondents. -Judgment affirmed with costs-Herman Fuchs, respondent, v. Theodore E. Koerner, appellant.Judgment affirmed with costs-George A. Porter and others, respondents, v. Richard Penn Smith and others, appellants.. -Orders affirmed with costs-Eliza Delafield, respondent, v. Francis C. Barlow, executor, etc., and others, appellants.-Order affirmed with costs -People, ex rel. Knickerbocker Life Insurance Com

pany, appellant, v. Michael Coleman and others, commissioners, etc., of New York, respondents.-Order affirmed with costs-David L. Reed, respondent, v. Alfaretta Reed and others, respondents, and Abraham Bernheimer, appellant.-Order affirmed with costs -Mary A. Livingston, appellant, v. Clara O. L. Tucker and others, respondents.-Judgment in the first named case affirmed, with modification reducing the interest to six per cent from January 1, 1880, with costs. In the second case, judgment for the defendauts is reversed, new trial granted, costs to abide event-Francis L. Haight, respondent, v. Board of Supervisors of Saratoga county, appellants, and William V. Clark, appellant, v. Same, respondents.

NOTES.

No one who will take the trouble to compare the work done by Jefferson with that of other framers of statutes of a general nature, can fail to rise from such comparison with the conviction that he was a master workman of the highest order. Great achievements in codification have been made from time to time, from the days of Justinian to the present-I had nearly said to the days of David Dudley Field. The Code Napoleon has stood the test of nearly three quarters of a century, and throughout the world is recognized as vindicating the emperor's boast, "I shall go down to posterity with the Code in my hand." Many of the great English statutes have dealt with special subjects in a masterly way. Much work of the same quality has been done in the United States, especially in the earlier Congresses, in not a little of which the hand of Mr. Madison may be regarded as visible. But however admirable the style in which such work has been done elsewhere or in other times, I believe, that beyond all cavil, the Virginia Statute of Descents is the only important statute in the history of human society which in a century of experience has given rise to but one single controversy as to the meaning and effect of any of its provisions. In all the essentials of excellence it is unique. Exhaustive, precise, perspicuous, simple, comprehensive, it is the only known specimen of human legislation which came from the hand of its author simply perfect. I say "perfect," for while one question, over sixty years ago, was raised as to its effect, the decision determined that the case was not casus omissus, but that it was ruled by the principles embodied in the act.-From "Thomas Jefferson as a Legislator," by R. G. H. Kean, in Virginia Law Journal, December, 1887.

One law journal of the current week displays on its first page the announcement of a new and compressed edition of the "New York Reports," that is to say, a new edition of the New York Court of Appeals, and another law journal displays on its first page of the contemporaneous number an advertisement of that lemonade-like drink, known as acid phosphate, recommended for mental exhaustion, thus suggesting the idea that weariness need not be an excuse, nor dissuade us from undertaking to look through again these 100 volumes in their reduced bulk of twenty or thirty, with fresh annotations.-New York Daily Register.

"The types," observes a southern Illinois paper, apologetically, "made us allude last week to our esteemed townsman, Mr. Polhemus, as a 'villainous lounger.' We wrote versatile lawyer.' The error

was overlooked by our proof-reader, a gentleman recently from Texas, who assures us, in extenuation of the oversight, that the two terms mean pretty much the same thing where he came from."

man had a right of pasturage on Liston common, and put on two cows to graze. Another man had a like right, and he put on two calves. The calves grazed the cows, i. e., sucked them to such an extent that the cows yielded only a pint instead of seven or eight quarts. The cow man sued and recovered damages. This seems good law. Gibson's also cites a decision that a horse is not a "mineral," i. e., that it is negligence in a railway company to carry a horse on a mineral train."

46

To get ahead of Col. Ingersoll in a strife of wit one must get up very early in the morning; indeed, sit up all night. We recently heard a notable argument between him and ex-judge Noah Davis on the question whether innkeepers in the city of New York have a right under the statute to furnish wine, etc., to their guests at table on Sunday. A good deal turned on the meaning of "entertainment." Judge Davis asked if counsel supposed that the "entertainment" of strangers recommended by St. Paul in the New Testament, "because thereby some have entertained angels unawares," included strong drink. Col. Ingersoll replied that he didn't know about that, but he did know that when St. Paul came in sight of "Three Taverns" on his way to Rome, he "thanked God and took courage." Would the Colonel intimate that it was "Dutch courage?"

We propose to have Mr. L. B. Prince, reporter of the Supreme Court of Colorado, indicted for false pretenses and sending a dynamite bomb. The missile in question is concealed in a comely little book, entitled "Mountain Trails and Parks in Colorado." Here, sandwiched between some pleasant essays on scenery and angling and out-door life, illustrated by pretty pictures, is a deadly diatribe, philippic and rhapsody against codification, entitled "Circa ardua Legis." We admire the daring of the offender, and forgive him the crime on account of the extenuating circumstances. We advise our readers to buy the very readable little book, but before reading it, to eradicate the aforesaid bomb. Aside from that they will find entertainment and instruction conveyed in a striking, original and breezy manner. We only hope that when the

author describes the fellow in favor of codification as "a light-complexioned, bald-headed man in glasses, who was flabby about the eyes and beardless," he doesn't mean us. If he does we shall ask, as Falstaff did of another Prince, "call you that backing of your friends?"

NOTES OF CASES.

N Shodden v. McElwee, Tennessee Supreme Court,

voluntarily, maliciously and irresponsively interjects defamatory matter into his answers, he is liable for slander. The court said: "It is insisted on behalf

of the defendant that it is not a matter between individuals, but concerns the due administration of justice, that a witness should be allowed to speak, according to his belief, the truth without regard to consequences, and should be encouraged to do this by the consciousness that his utterances are absolutely privileged, leaving him only liable to indictment for perjury, if he speaks other than the truth. That witnesses should not be hampered, while on the stand, with fears of a suit for damages. Mr. Townshend, in his work on Slander and Libel (3d ed.) says (p. 387): This is the view in the courts of England and some of the States,' and the author lends the weight of his own opinion thereto. While plausible, it is in our opinion unsound. The act of testifying as a witness must be either in the exercise of a right or the performance of a duty, and in either case the act must be performed in good faith. If he avails himself of his position as a witness to maliciously answer, with a knowledge that such answer is not pertinent or relevant, the law withdraws the protection it would otherwise have afforded him. Where the defendant, a witness, was asked if a certain person was attended by a physician, his answer was, 'not as I know of; I understood he had a quack; I would not call him a physician.' In an action brought for these words it was held proper to charge the jury that if they believed from all the circumstances proved, from the questions put, from the manner of answering, and from the answers themselves, that the defendant testified in good faith, or in the belief that his answers were pertinent or relevant, then the law protected him; but if the defendant was actuated by mere malice, and used the words for the mere purpose of defaming the plaintiff, then the law withdrew the protection it would otherwise have afforded him.' White v. Carroll, 42 N. Y. 161; S. C., 1 Am. Rep. 503; Smith v. Howard, 28 Iowa, 51; Barnes v. McCrate, 32 Me. 442. It follows, of course, that the witness is not liable if the answers are pertinent and responsive; or as it is expressed in some of the cases, the relevancy of the words complained of to the matter at issue is the test of the privilege. In Odgers Sland. & Libel, 191, a much later work than Mr. Townshend's, it is said: 'A witness in the box is absolutely privileged in answering all questions asked him by counsel on either side, and even if he volunteers an observation, a practice much to be discouraged, still if it has reference to the matter in issue or fairly arises out of any question asked him by counsel, though only going to his credit, such observation will also be privileged. But a remark made by a witness in the box, wholly irrelevant to the matter of inquiry, uncalled for by any question of counsel, and introduced by the witness maliciously for his own purposes, would not be privileged, and would also probably be a contempt of court.' Such seems to be the rule also in Wisconsin and Massachusetts. Calkins v. Sumner, 13 Wis. 193; McLaughlin v. Conley, 127 Mass. 316. While we have no reported cases in our State with reference to the privilege of a witness, there

are adjudications concerning judicial proceedings, and the privilege afforded thereunder, which are in harmony with the conclusions here reached. In Lea v. White, 4 Sneed, 111, the words complained of were used in a return to a habeas corpus imputing insolvency and inability to support two free colored children, under covenant of indenture; that said children were cruelly neglected and maltreated, and that there was reason to believe that the petitioner would sell them into slavery. This court said: "There are many occasions upon which the legal presumption of malice, from the fact that the words are defamatory, does not arise; the communications are, on account of the occasion on which they are made, prima facie, or as the books have it, 'conditionally privileged; that is, they do not amount to defamation until it appears that the communication had its origin in actual malice in fact.' In such cases it will be incumbent on the plaintiff to show, in addition to the injurious publication, a malice in fact, and that the occasion was seized upon as a mere pretext.' It is perhaps need less to add that where the matter alleged is pertinent to the issue, or fairly supposed to be so, although not in the strictest sense relevant, the pleader is absolutely privileged, although he may have also entertained sentiments of malice to the adverse party. The point in this case further held that the question whether there be or be not reasonable or probable cause, may be for the jury or not according to the particular circumstances of the case. The pertinency of the matter to the occasion is that which is meant by probable cause. In that case it was held that whether the matter there complained of could reasonably have been thought by the defendant necessary to his defense was properly a question for the court, and that it was within the class of absolutely privileged communications, and therefore not actionable. In Buohs v. Backer, 6 Heisk. 404-407, the doctrine of Lea v. White is reaffirmed. It was a case where Buohs was sued in libel by a young girl, of whom he had written, in a petition to the county court, as next friend for certain minors, for the removal of their guardian, that 'said guardian has had in his family a girl, who is now probably over sixteen years of age, who came to live with him at about the age of thirteen, and has remained in his family ever since; her reputation is ruined, and she is now an example of shame and prostitution.' The plea was that the words had been used in judicial proceedings in good faith and without malice. The trial judge had charged the jury that as the plaintiff was no party to the suit, the communication could not be privileged, and there was verdict and judgment for $5,000. The cause was reversed in this court for error in said charge, and in not charging, as requested, that express or actual malice must be shown on the part of the petitioner in The well known distinction between absolutely privileged communications and those only conditionally so, is well stated in the case just referred to. Again, in Davis v. McNees, 8 Humph.

that cause.

40, Judge Green, delivering the opinion of the court in reversing the judgment of the court below, said: Whether the words that were spoken were used in the legitimate defense of himself, or were employed maliciously as a means of abuse and slander of McNees, should have been left to the jury.' This was a case where the prosecutor was told by the magistrates, who had just adjudged the proof insufficient to convict the defendant of perjury, that they would have to tax him with the costs; the prosecutor replied that he did not see how they could do that, 'as the defendant had sworn falsely, and he had proved it.' It was for the use of this language, under these circumstances, that the suit was brought, with the result above stated. We recognize fully the importance, to a due administration of justice, of upholding the privilege accorded parties to write and speak freely in judicial proceedings, but in so doing we must not lose sight of the fact that it concerns the peace of society; that the good name and repute of the citizen shall not be exposed to the malice of individuals who, under the supposed protection of an absolute privilege, make use of the witness box to volunteer defamatory matter in utterances not pertinent. To hold such persons responsible in damages cannot fairly be said to hamper the administration of justice. The privilege of a witness is great, and will be protected in all proper cases, but it must not be mis taken for unbridled license."

In Stickrod v. Commonwealth, Kentucky Court of Appeals, Nov. 10, 1887, the particular whisky for the sale of which defendant was indicted was manufactured by him at his distillery before the act prohibiting its sale was passed. Held, no defense. The court said: "In the language of Chief Justice Shaw in Commonwealth v. Alger, 7 Cush. 84: 'All property is held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the Legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. This is very different from the right of eminent domain

the right of the government to take and appropriate private property whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor.' Upon the principle that every one is bound to so use his own as not to injure others is based the police power of the State to restrain, punish for, and abate nuisances. And as of necessity the power is vested in the Legislature to determine and provide by law against what shall be deemed hurtful to individuals or to society, and therefore a nuisance, whether it be committed by selling liquor by retail or otherwise, the courts are not authorized to intervene, except where the power is exercised