a commitment under that act sustained. The court hold that the constitutional right of trial by jury and due process of law does not extend to claims to the custody of children under indentures of apprenticeship. Rhode Island H. S. Co. v. Goodenough, p. 11; Bright v. Milwaukee, etc., R. R. Co., p. 14; and Leutz v. Butterfield, pp. 18 and 367, are upon the now interesting subject of removal of causes to United States courts, and present a number of interesting points. Thrasher v. Bentley, p. 39, and Syracuse, etc., R. R. Co. v. Collins, p. 47, are upon the question of the validity and effect of an assignment under State laws. In the former case it is held that the approval of an assignee's bond by a special county judge was a compliance with the statute; in the latter case an assignment for the benefit of creditors, which was made May 5, but never carried out by reason of the assignor being thrown into bankruptcy, was held to excuse the presentment of a check drawn on the assignor May 4. Prime v. Twenty-third street R. R. Co., p. 63, involves the question of the duty of a street railroad company as to the removal of snow taken from its track, and it is held that such snow must be removed within a reasonable time, and if not taken away, an owner of real estate abutting on the street may have an injunction to prevent the snow being left. The renowned case of Moulton v. Beecher, appears at page 193, but the points decided therein are of no very great importance. Fleming v. Brooklyn City R. R. Co., p. 433, and Starn v. Southern R. R. Co., p. 438, are cases of negligence. In the first case a street railroad company is held liable for negligence causing injury to a newsboy who is allowed access to its cars for the purpose of selling newspapers. In the latter case, it is held prima facie negligence for the engineer of a dummy engine to discharge a sudden jet of steam upon a passing team. People ex rel. Supervisors of Monroe v. Hadley, p. 441, denies the right of the State board of assessors to interfere with the action of the local assessors as to individual pieces of property. A number of the cases are annotated, and in other respects the volume is made valuable to the profession. The analytical digest at the close covers all the reports issued during the time covered by the volume, and is full and accurate. Altogether the new series of reports is worthy of a hearty welcome by the profession of New York. CORRESPONDENCE. REASONABLE DOUBT IN CIVIL CASES. To the Editor of the Albany Law Journal: SIR-In your valuable article entitled "Recent cases as to reasonable doubt," in your number of June 9, you refer to the very recent case of Kane v. Hibernia Ins. Co., 9 Vroom, 441; S. C., 20 Am Rep. 409, as holding that a defense in a civil action based upon an alleged crime or misdemeanor, must be established with the same degree of certainty required to convict in an indictment, and to Elliott v. Van Buren, 33 Mich. 99; S. C., 20 Am. Rep. 668; and Jones v. Greaves, 26 Ohio St. 2; S. C., 20 Am. Rep. 752, as holding the contrary doctrine, viz. that of preponderance of evidence. Permit me to call your attention to the very recent and well-considered cases of Simmons v. Ins. Co., 8 W. Va. 474, 496, and Etna Ins. Co. v. Johnson, 11 Bush (Ky.), 587, where the rule of preponderance of evidence is adopted and applied in cases precisely like Kane v. Hibernia Ins. Co. by the Supreme Court of Tennessee in Stovall v. The State, (March, 1877) Law and Eq. R., vol. 3, No. 16, p. 490. This rule also has the support of the opinion of the late Judge Redfield, expressed in a note to Ellis v. Buzzell, 12 Am. L. Reg. (N. S.) 431, and of Doct. Wharton in his recent Treatise on Evidence, vol. 2, S$ 1245, 1246, where most of the cases are collected. Kane v. Hibernia Ins. Co. was carried by writ of error to the Court of Errors and Appeals of New Jersey, and is now under consideration by that court. JUNE 11, 1877. LEX. PLEADING A BREACH OF CONTRACT. To the Editor of the Albany Law Journal: SIR-The General Term of the First Department has lately made a curious decision. In Salisbury v. Hinson (The Daily Register, June 5, 1877), an order was affirmed striking out as frivolous a demurrer to a complaint which alleged only that "A sold and delivered to the above-named defendant certain goods of the value and for which the defendant agreed to pay the sum of $164.68." That is, it is no longer necessary in such a case to allege "that the said sum has not been paid." It is decided that the making of a contract constitutes a cause of action, and the well-settled rule that it is the breach of the contract which constitutes the cause of action, is but a relic of the past. The reason given in the opinion of Davis, P. J., is as follows: "But under the present system when the breach is presumed on proof of the facts alleged, it is only necessary, etc." It is submitted that this is a most extraordinary presumption, to presume a breach when a promise is alleged. It amounts to saying there is a presumption that a man breaks his contracts, for clearly a promise could not be actionable until the time when it should be fulfilled, and at that time, says the court, i. e., where defendant is bound by his promise to pay, if an action is brought, you need only allege the promise and the law implies he has not performed. We have never seen any authority which holds that there is even a presumption of fact to the above effect, much less a presumption of law. It certainly is not a fair inference of fact from the ordinary course of affairs among men. But, admitting for the moment the existence of such a presumption, the court seems to have fallen into an error in saying that there is an allegation of fact. There is only an allegation of evidence. The fact of the promise being made is, of course, one of the facts of the cause of action. The other fact which constitutes the cause of action, is the breach. The fact of the promise being made, raises a presumption of the breach, i. e., it is evidence of the breach, but it is the breach which is the fact. You may demur to a complaint which does not state facts sufficient to constitute a cause of action. Consequently a demurrer to such a complaint as this should be sustained, for it does not state any of the material facts, it only states evidence of it. Payment in such a case is not, and never has been, an affirmative defense, as is alleged in the opinion. It is a denial of one of the facts constituting the cause of action, and like the denial of the promise, is a negative plea at common law. If A sells goods to B, and B promises to pay on June The preponderance of evidence rule was also adopted 1st. B pays June 1st. Clearly A has never had any Judgment affirmed, with costs - Hays v. Miller; Robinson v. Kine; Tone v. The Mayor, etc.; Crawell v. Jackson; Adams v. Greenwich Ins. Co.; Harrington v. The Mayor, etc.-Judgment affirmed, without costs to either party in this court-Provost v. Provost. Order affirmed, with cost Brevoort v. Brevoort.- Appeal dismissed, with costs-Smith v. Starr. Judgmont reversed and new trial granted, costs to abide event - Cordell v. N. Y. C. & H. R. R. R. Co.; McAlpin v. Powell; Williams v. Slote; Besel v. N. Y. C. & H. R. R. R. Co.; Kavanagh v. Wilson. Motion for reargument denied and order of this court modified by reversing so much of the judgment of the Supreme Court as awards costs, and affirming the residue of the judgment without cost in this court to either party, and remittitur amended accordingly - People ex rel. Kilmer v. McDonald. NOTES. R. VROOM, the New Jersey Law Reporter, has, formed themselves into a corporation administered by a council, which has the right to reprimand, rusticate and expel." Ex-Governor Lee, of Wyoming, recently gave to the New York Woman's Suffrage Society the result of his observations on the woman question in Wyoming. He said he had seen women acting in the capacity of sheriffs, justices of the peace, constables and coroners, and that they were a great success. As jurors, they are unequaled. Their devotion to duty was remarkable, and sometimes not unlike that of the elder Brutus. For instance, Mrs. Lulia Weller, a justice of the peace, had had her husband brought before her for being drunk. She sentenced him for the full penalty -six months' imprisonment. Gov. Lee described a scene at a local election. There was great excitement, pistols and bowie knives were in every hand, and words that could not be found in any current religious work were being used freely. Suddenly there was a shout: "The ladies are coming to cast their votes!" and all was still. "If the ladies had not appeared,” Gov. Lee said, "I think that a number of politicians would have been offered up on their country's altar." Now, noble as was Mrs. Weller's devotion to duty, we believe she is not singular in spirit. Most of that noble band of believers in "women's rights" would, no doubt, willingly emulate her example had they the power. But that the ladies did the world or the Ter effect of female suffrage, we must set our faces against their country's altar, we doubt. If that is to be the the ladies. MR. in compliance with the recent act of the legisla-ritory any good by withholding the politicians from ture of that State, requiring the reports to be published in parts, issued the first part of Vol. 29, N. J. L. R. (10 Vroom). It contains the opinions delivered in the New Jersey Supreme Court at November Term, 1876, and at law in the Court of Errors and Appeals at June and November Terms, 1876. There are among these an unusually large proportion of valuable cases. The reporting is carefully done. The profession in New Jersey are favored, both in the excellent manner in which the decisions of the courts are presented to them and in the promptness with which the work is done. Mr. C. McKenzie Wallace, in his work on Russia, just issued, thus speaks of the lawyers of that country: "The Russian bar is worse than the Russian bench. In criminal cases any one may act as counsel. 'In civil practice there are two kinds of advocates regular barristers and licensed practitioners. The former are always men who have passed through a school of law; the latter require no educational qualification except the passing of an examination, which is a mere empty formality. The advocate generally makes with his client a formal contract, according to which he receives a large sum in the event of winning, and a moderate remuneration if he is unsuccessful. In criminal affairs it is often expressly stipulated that the remuneration shall be in inverse ratio to the severity of the sentence. * * * And this is not the worst. Barristers not only sell their services as dearly as possible, but sometimes use dishonest means for raising the price. One of the most common methods is to frighten the client by describing in vivid colors, or positively exaggerating, the dangers to which he is exposed. Another method is to demand, while the case is going on, a large sum for secret purposes-that is to say, for greasing the palm of influential officials.' There is, however, a prospect of improvement; for in St. Petersburgh and Moscow the barristers have The following is one of the latest anecdotes about "Crowner's 'quests":"Afdrunken man struck a furious blow at his brother, and fell dead, the blow not being returned. A post mortem examination was ordered, and the surgeon was able to give positive eridence that the man died of apoplexy, without a sigu of personal injury. In spite of this evidence the coroner directed the jury to find a verdict of manslaughter,' and then delivered him as follows: Sir, these twelve gentlemen have made a very careful inquiry into the death of your brother, and, considering the provocation you received, have thought it their duty to bring in a verdict of manslaughter instead of murder, and it is therefore my duty to commit you to prison on that charge; but I wish you to remember that although you may escape the punishment of death, yet I have no doubt that in the sight of God a man who kills his brother is more guilty than one who does not." Attorney-General Devens has been made a LL. D. by Columbia College.- -A New Zealand court was recently puzzled what to do with a prosecution for rape, the prosecutrix having married the defendant pending the examination and before trial. The assize judge thought the subsequent marriage would afford strong evidence that the prosecutrix was not altogether unwilling in the first instance, yet if the crime had been committed it could not be done away with by the forgiveness of the woman. He, however, held that the evidence of the wife was inadmissible against the husband, and the latter was discharged. Here was an excellent opportunity to apply the doctrine of relstion, or the rule in The Six Carpenters' Case amended to suit the circumstances. BILL has been introduced into the city council of St. Louis providing for a tax of $50 upon each lawyer practicing in that city. The tax is advocated upon two grounds-first, it will raise revenue, and second, it will exclude a class of lawyers who are no credit to the profession. Its burdensome nature upon those having a small business is admitted, and a remedy is proposed by regulating reason to complain of poachers, and do so without hesitation. The principal trespassers are the accountants, who undertake the collection of bills, and sometimes procure payment by sending to the debtor a written notice, wherein suit is threatened. The notice is worded like a "lawyer's letter," and is usually believed by its recipient to be one. But the accountant has to be extremely careful about the wording of this production, for if he goes so far as to convey the idea that he is a solicitor, he will find himself in trouble, for the local solicitors' associations prosecute wherever there is a chance of convicting, for violation of the laws designed for the protection of solicitors. In this country the bar has many kinds of competitors, and is without protection against them. One of these is the collector of accounts. He generally advertises himself as a "collecting agency," having some high-sounding title prefixed to those words, as a means of designa tion. These institutions and the mercantile agencies which were originally formed for the purpose of fur have, in the eastern cities, absorbed the greater share of the business of collecting. The real estate broker is another of those, sharing in the business of the profession. Twenty-five years ago nearly all deeds and mortgages and abstracts of title were prepared by the lawyers; much of this is now done by other hands, the services of a lawyer being sought only where a question as to title or construction arises. The claim agents and patent solicitors each take business that ought to fall to the legal profession, and the notaries and insurance agents pick up many little perquisites that in former days reached the lawyers. The profession, it will be seen, must have lost a large part of its former business, though its numbers have in nowise decreased. Is it a wonder that many in it find it difficult to earn a living? the amount of the tax by the number of years the individual has been in practice. We think, how-nishing information as to the credit of tradesmen, ever, that the idea of specially taxing our profession while other callings are exempted from a similar tax is the height of injustice. If a license fee is exacted from every one transacting business, in such a case the bar should bear its share of the impost, but to single it out as a special object of taxation is neither right nor politic, and such a course is with out precedent. The solicitors in Great Britain are required to pay a license tax, indeed, and a heavy one, but the government compensates them for this by strictly excluding all others from competition with them in their special kind of business. If such a compensation were possible in this country a special tax would be proper, but the authorities who would impose and collect the tax would give no assistance in preventing those not belonging to the profession from transacting business legitimately belonging to it. There is another reason why a local tax of this character would be wrong, and that is, that it would not be faithfully collected. We all know how inefficiently our local liquor license laws are carried out. The leading dealers are compelled to pay the fees required, but there are in each locality a multitude of small places whose proprietors never contribute a penny to the excise board. This should not be, but it is so, and the same condition of affairs would exist if license fees were required from the lawyers. The honest ones would either pay or discontinue practice; the dishonest ones would do neither, and would escape the penalties of the law just as the offending liquor dealers do now. We mentioned the fact that in England those not belonging to the order of solicitors were excluded from doing business legitimately belonging to that order. Our brethren over the water have, however, VOL. 15.-No. 25. While admission to a bar association should be accorded to almost every member of the bar, the rules for admission to the bar should be rigid and rigidly enforced. The Code that is to be, whatever may be its faults, does not exhibit any laxity in its provisions in this matter, but clothes the Court of Appeals with full power to prescribe rules regulating the admission of candidates, and we are confident that that court will not hesitate to exact all that is requisite to insure intelligence and learning among the members of the profession. The cry which usually is made against the stringent enforcement of rules requiring a stated period of study, etc., ought to count for nothing, but all candidates should be subjected to the same rule. No appearance of favoritism should be shown to the graduates of law schools, and the practice of admitting upon motion should be wholly done away with. To be sure all men are not alike, and one person may be as well fitted for the performance of his duties as an attorney by three months' study as another will be by that of three years, yet it will not materially harm the more brilliant student to check his too rapid advancement, while it is proper to compel those who are less favored by nature to devote a sufficient time to preparing themselves for their chosen profession. At the time of our going to press the Governor has not signed the remaining nine chapters of the new Revision and it is confidently stated at the Executive Chamber that he has concluded not to sign them. The reason given is that he has not had an opportunity to examine them carefully – more important business, we presume, having occupied his time in New York and at Auburn. As he has already signed the repealing Act it is a matter for curious speculation as to what the effect of his present determination will be on the administration of justice in this State. A delegation of lawyers and politicians from New York is laboring with him to induce him to sign the bill and possibly may succeed, but those who know him best are not hopeful. The time for signing bills expires Saturday, 23d inst. The New York daily press publish from time to time abstracts of decisions of the United States Supreme Court. This is all very well, though it would puzzle a Philadelphia lawyer to determine from the abstracts what point of law was decided in each given case. But the pretense which is made in connection with the publication of the cases, that they have just been decided and have come to the papers containing them, by telegraph, is ridiculous, though it probably has the effect of misleading the readers of such papers. Not more than ten days ago the case of United States v. Fox, which appeared in our issue of May 26, was announced as just decided. In the New York Herald of the 19th inst. the case of Connecticut Mut. Life Ins. Co. v. Schwenk, which involved an insurance question of interest sufficient to be noticed on the editorial page, was published in a way to give the impression that it was decided on the 18th inst. The case appears in our issue of the 16th inst. As we said, there is not the slightest impropriety in the publication of either old or new decisions by the daily press, but the pretense made that decisions are just given, when in fact they have been out some days, is what we condemn. the courts and his suspension from practice, although, as he had caused the publication of the obnoxious notice only eleven times, and had withdrawn it as soon as his attention was called to its impropriety, the court were lenient and only debarred him from practice for a single term. This was a very proper way to deal with the matter, and if a few examples were made in other parts of the country we believe that these most disgraceful advertisements would disappear from the newspapers. There should be some legislation to prevent their appearance there, but a movement to procure it would probably meet with so much opposition from interested parties that it could not succeed. The only means of checking the performances of divorce "shysters" is by disbarring them, and we are glad the Missouri court has set an example. NOTES OF CASES. THE HE case of Hyde, assignee, etc., v. Woods et al., recently decided by the U. S. Supreme Court, the opinion in which may be found ante, p. 435, is a It is therein decided that a "seat" in leading case. a broker's board is 'property," "an incorporeal hereditament." In the case at bar the seat was, and as we think all "seats" are substantially in such organizations, held subject to the "condition" that in the event of bankruptcy it shall be disposed of for the benefit of creditors inside the board, to the exclusion of outside creditors. This condition is held valid. Under this ruling a barrier is erected for protecting the valuable "rights" and "property" of all members of the various business "exchanges" from the ordinary process of the courts, and opens a door for their escape from what hitherto has been held to be the equal and impartial effect of a bankrupt act. The court in this opinion has overruled the well-settled exception that the maxim "Modus et conventio vincunt legem" does not apply in cases of bankruptcy. Broom's Legal Max. (5th ed.) 695. The "seat" being declared "property" a strict adherence to logic would have led the court to the conclusion that it must be held subject to the ordinary and well-settled incidents of every species of personal property. Nor do we consider that the "non-transferable" character of the "seat," and, also, "that it cannot be enjoyed except by a conformity on the part of the owner to the rules of the "board" is such an insuperable characteristic that it can be of no value to outside creditors. This ruling enables a number of private individuals, It is a dangerous thing for a Missouri lawyer to organized in an unincorporated association, to do advertise that he is in the divorce business. A what a private individual, alone, cannot do. The member of the St. Louis bar recently inserted a notice provision against a transfer of the seat may justly in the newspapers that he would procure a legal be held valid as between the members themselves, separation of the marriage tie "without publicity of the same organization; and, also, as subject to or expense." This led to his prosecution before certain conditions as among themselves, and, further, as against a voluntary transfer; but not as against same case the question arose whether the deposit by plaintiff of a notice of the mortgage in the post-office in the town where the owner of the property resided, post-paid and addressed to the secretary of the insurance company at the place of business of the company, was a sufficient compliance with the condition mentioned. The court held that the plaintiff in sending the notice by mail took the risk of its reaching defendant, and while the presumption would be that it did so this might be rebutted by proof that it never was received, and unless actually received it would not be sufficient. Court of Justice, in the case of Ward v. Hobbs, 36 The Queen's Bench Division of the English High last, hold that where the owner of an animal takes L. T. Rep. (N. S.) 511, decided on the 21st of April it to a public market for sale, this furnishes evidence of a representation on his part that the aniIn the case of Plath v. Minnesota Farmers' Mut. mal is not, so far as he knows, suffering from any F. Ins. Co. Assoc., decided on the 6th of April last infectious disease, notwithstanding that he has by the Supreme Court of Minnesota and reported in guarded himself by conditions of sale, which stiputhe N. W. L. Rep. of June 2, a question of some lated that the buyer was to take the animal so sold interest as to fire insurance was involved. The "with all faults." In this case plaintiff purchased plaintiff procured insurance upon several distinct from defendant certain pigs, at a sale by auction, in items of property for a gross sum of $1,150, which the public market of Newbury. Among the conwas distributed among the several items. The con- ditions read by the auctioneers at the sale were sideration for the insurance was single and entire. these: That the lots, with all faults and errors of The policy contained this condition among others: description, were to be paid for and removed by the "In case the insured shall mortgage the property buyer, and that no warranty would be given by the without notifying the secretary, then the insured auctioneer, and as the lots were open to inspection shall not be entitled to recover from the associa- previous to the sale, no compensation would be tion any loss or damage which may occur in or to made for any fault or error of description. The the property hereby insured or any part or portion plaintiff subsequently discovered that, at the time thereof." The question was whether a mortgage of of the sale, the pigs were suffering from an infecone of the items of property would invalidate the tious disease, and sought to recover for the loss sufinsurance as to all the property. The court said fered thereby. By the statute in England it is made that it is well settled by a uniform current of au- a criminal offense to bring an animal, known to thority that a contract of insurance of this charac- have an infectious disease, to a public market. ter is an entirety and indivisible, the sole effect of The court held that, notwithstanding the conditions the apportionment of the amount of insurance upon of sale, defendant had, by the fact of taking the the separate and distinct items of property named animals to a public market, represented that they in the policy, being to limit the extent of the insur- were free from any infectious disease, and that he ers' risk as to each item, to the sum so specified, was liable. This appears to be in conflict with the and held that as the contract of insurance was entire rule that no warranty can be implied from circumand indivisible the legal effect of a violation of this stances if there is an express refusal to warrant. condition, if valid, on the part of the insured, by 1 Pars. on Cont. 472; Rodrigues v. Habersham, 1 mortgaging any portion of the insured property was Speers, 314; Bywater v. Richardson, 1 A. & E. 508; to avoid the entire policy. The conclusion of the Atkins v. Howe, 18 Pick. 16. See, also, Bumby court is in accordance with numerous decisions. v. Bollett, 16 M. & W. 644, where a farmer, who had See Gottsman v. Penn. Ins. Co., 56 Penn. St. 210; bought from a butcher a dead pig which was hangFriesmuth v. A. M. F. Ins. Co., 10 Cush. 587; Browning in the public market, afterward sold it to anv. P. M. Ins. Co., 11 id. 280; Lee v. How. Ins. Co., 3 other farmer. It was held that there was no implied Gray, 583; Kimball v. How. Ins. Co., 8 id. 33; Love-warranty of soundness between the farmers. See, joy v. Augusta Ins. Co., 45 Me. 472; Richardson v. Maine Ins. Co., 46 id. 394; Gould v. York M. F. Ins. Co., 47 id. 403; Barnes v. Union M. F. Ins. Co., 51 id. 110; Day v. Charter Oak Ins. Co., 51 id. 91. In the also, Van Bracklin v. Fonda, 12 Johns. 468; Emerson v. Brigham, 10 Mass. 197; Hart v. Wright, 17 Wend. 267; 18 id. 449; Winsor v. Lombard, 18 Pick. 57; Humphreys v. Comeline, 8 Blackf. 508. |