Pendency of another action: when not a bar: cause of action. The only cause of action stated in the complaint is that the defendant had brought actions of ejectment in the superior court for recovery of certain real estate, and had afterward commenced summary proceedings to recover possession of the same premises for rent then due. That the proceedings of defendant in procuring such summons are injurious to plaintiffs, and an abuse of the proceedings under the statute. Appeal from order sustaining a demurrer to the complaint.

Held, that no good cause of action is stated. It is no ground for an injunction that the proceedings are injurious to a party, if such proceeding is proper. If it is not legal for the party to take such remedy, it should be defended on showing such illegality in the proceeding sought to be enjoined. Success in either of these proceedings can be pleaded to defeat the other. Order affirmed. Guissler et al. v. Stuyvesant. Opinion by Ingraham, P. J. See case under same title, 12 Abb. N. S., p. 6; also, 8 Alb. L. J., pp. 207, 216.

ALLOWANCE. See Costs.

BILLS, NOTES, ETC.

Checks given under special agreement: when they cannot be enforced: consideration: composition agreements.- Appeal from judgment in favor of defendant. This action is brought upon a check given to plaintiffs by defendant. It appeared that the check was placed in plaintiffs' possession to be held subject to the drafts of defendant in favor of those of the creditors of one Landman, who should release him from his indebtedness. An attempt was made to procure the releases, but was not successful, except with a few, including the plaintiffs. Defendant then demanded the check and stopped its payment.

Held, that the plaintiff had no right of action on the check. They could obtain no title till the defendant had made drafts on them for some portion of its amount. If the plaintiffs had any claim upon the defendant upon the composition paper, it should be enforced on the agreement therefor. And the agreement, even if it was enforceable against defendant as a compromise, was void as to plaintiffs, for they had agreed to receive a larger sum than stated in the agreement. Judgment affirmed. Claflin et al. v. Fisher. Opinion by Ingraham, P. J.

CASES REVIEWED. See Insurance. CAUSE OF ACTION. See Bills, etc., and Action Pending. COMPOSITION AGREEMENTS. See Bills, etc. CONFLICT OF TESTIMONY. See Insurance. CONSIDERATION. See Bills, etc. CONTRACTS. See Bills, etc.; Insurance and Real Estate.

COSTS.

When allowance cannot be given.- Appeal from an order granting an allowance. The only relief sought

was an injunction, for a limited period, to restrain the prosecution of certain summary proceedings. No money was sought to be recovered, and no property was the subject-matter of the action. A demurrer to the complaint was sustained.

Held, the value of the right to prosecute the summary proceedings cannot be estimated. The question raised did not involve the recovery of any lands nor of the rent alleged to be due. The decision did not affect the right to the rents nor to the lands. The remedy of defendant for his expenses and damages should be had on the injunction undertaking. The statute gives an allowance on the amount recovered or claimed, or the subject-matter involved. In the latter case such value is to be ascertained by the court. There was nothing in this case on which an allowance could be estimated, nothing recovered, and no money or property claimed. Order reversed. Guissler et al. v. Stuyvesant. Opinion by Ingraham, P. J. See same case under "Action Pending," supra.

1. Fire insurance: evidence as to value of property destroyed: representations of insured: rules of recovery on policy. - Appeal from judgment in favor of plaintiff. This action is brought to recover upon a policy of insurance against fire, issued by defendant to plaintiff. Several exceptions were taken below to the admission or exclusion of evidence which we reviewed in the opinion of the learned presiding justice.

Held, first. That the evidence on part of plaintiff as to what it would cost to replace the mill and machinery destroyed, was improperly admitted. It involved an obligation on the part of the company to substitute a new building for an old one, and the error is apparent when it was shown the whole property, including land and water, had cost plaintiff $4,000, and the cost of a new mill and machinery was estimated at $8,000 and over. Second. The questions put to witnesses as to the value of the building on the 14th May, 1860, six days before the fire, were improperly excluded. It is not to be expected that witnesses can be produced to prove the value from examinations made on the day of the fire. A knowledge of the building six days before was amply sufficient to enable them to testify on that question. The law would presume the same state of things to continue until the fire, and if any alterations or improvements were made to increase the value, the plaintiff could have shown it. One of the conditions of the policy requires proof to be given of the cash value of the building. Third. One of the representations in the policy was, whether the supply of water was sufficient. The answer was "sufficient with proper arrangements." Evidence was offered to show a scarcity of water so that the mill could not run. Whether there was any deficiency or not was a question which, if considered as a warranty, should have been submitted to the jury, and the questions on that subject were improperly excluded. (Le Roy v. Market Fire Ins. Co., 39 N. Y. 90; Le Roy v. Park Fire Ins. Co., id. 57; and 45 N. Y. 80, cited.) Judgment reversed. Steward v. Phonix Fire Ins. Co. Opinion by Ingraham, P, J.

2. Rule of damages on a fire insurance policy: value, how proved. On a fire insurance policy the insured can, in no event, recover more than the actual loss at the time of the fire. The contract is one of mere indemnity. Propositions to estimate the difference in value between a new and old building, and to give the difference in damages, and to give the cost of erecting anew the building as damages have both been rejected (1 Metc. 195, cited). The actual value of the building at the time of the fire is to be ascertained from the opinions of persons conversant with it before its destruction. A reasonable time previous within which the witnesses have seen the building would qualify them to speak of its value, if they were otherwise experts in such matters. Ib.

3. Policy of fire insurance: when reformed: contracts: mutual mistake: conflict of testimony.- Appeal from judgment in favor of plaintiffs. This action is brought to reform a policy of fire insurance issued to plaintiffs by defendant, and to recover the amount of insurance. The property insured was a mill. The defense is that the property was insured on the understanding that the mill should be run and operated in the day only, whereas it was operated by night, the risk thereby increased, and the fire caused during the night. Plaintiff testified that defendant's agent agreed to give permission to run the mill at night, and that defendant "would write" in the same form as another company granting that privilege; that plaintiff took the policy of the other company to the agent and received defendant's policy; that plaintiff did not discover till after the fire that the permission to run at night was not in the policy. Defendant's agent testified that no such privilege was requested from or agreed to by him. The case was tried before Mr. Justice Barnard, of the second department, who found that by mutual mistake of both parties and their agents the permission was not inserted in the policy, and that the mistake was not discovered till after the fire. He rendered judgment directing the policy to be reformed by inserting the permission, and then rendered judgment for plaintiffs for the amount of the loss. On appeal the case was sent to this department. Held, to reform a contract it must appear that such mistake was made by both parties. If one party was mistaken and the other was not, no such judgment can be rendered. This is to be settled like any other question of fact, by the jury or by the court if tried without a jury, and where the evidence is conflicting the finding at the trial is conclusive on both parties. There being such a conflict here, the judgment below is conclusive. Judgment affirmed. Van Tuyl v. Westchester Fire Insurance Company. Opinion by Ingraham, P. J.

4. Ib.: cases reviewed. The case of Salms v. Rutgers' Ins. Co., 8 Bosw. 578, is urged as authority for the position that the policy cannot be reformed after the loss has occurred. That case was reversed in court of appeals, 3 Keyes, 416; also see Bidwell v. Astor Ins. Co., 16 N. Y. 263. Ib.

MANDAMUS.

1. When mandamus will not be allowed. Cases against municipal officers - Appeal from an order refusing to grant a mandamus against the defendant, the comptroller of the city of New York. Defendant denies the validity of the contract, and charges that it was illegally made, and that the prices charged are excessive. Held, that these questions should be tried in an action against the city upon the contract. A mandamus is proper in cases against the city, arising from the re

fusal of some officer to do his part of the duty necessary to pay, if the claim is not disputed, or in cases in which some duty is to be performed other than the mere payment of a debt, or where the remedy by action is inappropriate. This case is not within these exceptions. Order affirmed. People ex rel. Gindet v. Green, Comptroller, etc. Opinion by Ingraham, P. J. 2. lb. Neither in England nor in this State has a mandamus been allowed where there was a remedy by action, and a reasonable doubt as to the validity of the claim, or any conclusion that it should be examined by due process of law. Ib. Opinion by Brady J.

MISTAKE. See Insurance.

REAL ESTATE.

Description of premises: encroachments: contracts.This action was brought to rescind a contract for the purchase of real property, and obtain the return to plaintiff of a ten per centum deposit made at time of its execution. Upon somewhat conflicting evidence the court below found that, at the time of the sale, its terms were read by the auctioneer, "which described said premises as lot 45, Crosby street, east side, twentyfive feet more or less, front and rear, by 100 feet deep on each side," and that after the premises were struck off to plaintiff he signed a memorandum of his purchase with the same words of description; that defendant was ready and able to give a good title, free and clear, of the premises, and tendered the same, but plaintiff refused to take said conveyance and pay the balance due on the contract of purchase. It is then found as a matter of law, that defendants are entitled to judgment for the residue of the purchase-money on the delivery of a deed, free from incumbrance, of premises described "as commencing at the point where the house, on 45 Crosby street, meets that street; thence easterly one hundred feet, more or less, to the north-easterly corner of another building on said lot; thence southerly twenty-five feet, more or less, to the south-easterly corner of the last-named building; thence westerly to the northerly wall of the building known as 43 Crosby street, as the same now stands, to the easterly side of Crosby street; and thence northerly along the same twenty-four feet and two inches, more or less, to the place of beginning. The evidence was, that the northerly wall of No. 43 encroached on the premises in question ten inches in front, which encroachment increased to sixteen inches at a distance of thirty feet from the street, and for thirty feet further it was two inches. The deed was declined by plaintiff on the ground of such encroachment. Defendant admits that there had been such an "inadvertent encroachment, but alleges that it had been admitted by the owner of the adjoining lot, and its removal promised, and that it is therefore no incumbrance. The judgment follows the conclusion of law above stated. On appeal:

Held, that the law makes no such conclusion as above stated from the finding of fact. The plaintiff would at least be entitled to a conveyance, that would give him the whole of No. 45, so that whenever the "inadvertent encroachment" was removed, he would take the entire lot. The judgment excludes him from all right to the part encroached upon, and obliges him to take an irregular line, such as neither party could have contemplated at the sale. The plaintiff bought the whole lot, "twenty-five feet front more or less," and not a lot reduced by such an intrusion as defendants claim this to be. It is not a question whether the lot is really more

or less than twenty-five feet, but whether the purchaser is entitled to it without an encroachment, which embarrasses the title to a part and impairs the value of the whole. Judgment reversed. King v. Knapp et al. Opinion by Davis, J.

REPRESENTATIONS. See Insurance.

LAWYERS IN FRANCE.

There is, in each court or tribunal, a certain number of solicitors whom the suitors are obliged to employ; their duties are to make all actes de procedure (acts of proceedings) necessary to lead and manage an affair up to the day of the pleading; the solicitor draws up the summons and conclusions, and directs, therefore, the lawsuit, the barrister not being at liberty to plead any other facts or arguments than those mentioned in the conclusions or summons; it is consequently the solicitor who makes out the brief which is remitted to the barrister when the cause is ready to be heard. The solicitor is in direct communication with the client, gives instructions to the bailiff, and prepares the means and grounds of pleading of the barrister, whom he is generally at liberty to choose in all affairs of no great importance; however, the client can consult his barrister whenever he may think proper, without the interference of the solicitor; and generally in affairs of great importance it is the barrister who is consulted first, and who leads the cause; but in such cases the barristers respect the clients of each solicitor, for being in connection with the solicitors, and receiving from them the briefs of little importance, they would compromise their own clients by acting otherwise. It is only barristers of eminence who are independent of solicitors; as regards the young barristers, out of one hundred briefs ninety-five come from solicitors.

The solicitors can only practice in the tribunal where they are admitted; they cannot under any pretext interfere with any commercial, county court, or other affairs, such as to draw up deeds, manage property, collect debts, etc. They are not at liberty, as in London, to draw up any deeds whatsoever, such as wills, marriage settlements, liquidation of partnerships, deeds of partnership, leases, deeds of mortgage, sale of immovable property, sale of furniture, etc., which devolve on the notaries or "agents d'affaires " (agents).

The solicitors are paid for every thing drawn up by them, and for each attendance at the tribunal, in conformity with a tariff made in 1804. In the offices of solicitors of the civil tribunal of Paris, each brief is charged at the rate of 100 fr. (£4) on an average, in the country from £2 to £2 10s., but the solicitor's expenses are increased by the stamp and registering duties; so that in a note of charges of £8 the solicitor does not receive more than £3, or £3 10s., the rest is for the government,

The solicitor's and bailiff's expenses are always to be paid by the suitor who loses the case. In the note of charges of a solicitor appears a sum of 12s. for the pleading of the barrister, in conformity with the tariff of 1804, but the 12s. are always kept by the solicitor, who, of course, could not offer them to the barrister. The solicitors are not entitled to any fee but that granted to them by the tariff; but in important cases, and when the solicitor is a man of talent, he always receives from his client an extra fee, which does not appear on the note of charges.

Solicitors are not required in a criminal cause; when they appear before a tribunal correctionnel (court for

the trial of misdemeanors), or a cour d'assise (courts of assize), it is only as mere mandataires (attorneys), and in such a case their fee is always paid by their client. When one of the parties is sentenced to pay the costs, the solicitor of the opposite party obtains from the tribunal a judgment called executoire, which authorizes him to receive his charges before his client, so that the first installments paid by the suitor who has lost the case are employed in paying the charges of the solicitors and bailiffs.

The solicitors of each tribunal are, like the bailiffs, constituted a corporation, and have a chambre syndicale (syndic), elected as aforesaid, and having the duties herein before mentioned.

The successors are presented, and the practices are sold in like manner as we have already mentioned in reference to the bailiffs, but we have omitted to add that such sales are made by acts under private signatures and registered, and that the government, after having received information from the chambre des avowes (syndic of the solicitors), can lower the price of purchase, notwithstanding the agreement of the parties; such price is generally equivalent to the proceeds or produce of five years. We have mentioned the conditions required to be a solicitor; the barristers and the bailiffs who possess such qualities can, after having left their first practice, purchase a solicitor's practice, but they cannot hold two at the same time; however, up to 1820, solicitors used to plead as barristers, and now, in certain little towns where business is not important enough to require a “college" (corporation) of barristers, the solicitors attend at the same time to the duties of barrister and solicitor.

The solicitors having generally the same university degrees, and the same experience as the barrister, are in a position to plead. It has been proposed many times to suppress the solicitors, and to give their duties to barristers, and vice versa; such amendment has been postponed by the difficulty for the government to re-imburse the value of the practice.

Formerly, when the solicitors had only the degree of capax, or that of bachelor at law, the barrister, whose legal studies were more complete, and who possessed the degree of licenciate, or doctor, was indispensable, and his employment was also a better guarantee for the suitors; but now, the solicitors having the same knowledge and degrees as the barristers, it is to the interest of the suitor to pay one person only in lieu of two.

Besides, the solicitor who leads the cause from the beginning, and who is constantly in connection with the client, is more acquainted with the brief than the barrister, to whom the same is remitted a few days only before the hearing.

Therefore, in that respect, an amendment will certainly be useful, but what is more urgent and pressing is a reform of the judicial expenses and of the proceedings, which would have been done by the imperial government if it had lasted longer.

In the present state of things, solicitors, like bailiffs, are paid for every act done by them and each attendance, and are not entitled to extra fees. The result is, that the interest of the solicitor and bailiffs is to have as many lawsuits and make them last as long as possible, which is very prejudicial for the public, a bad transaction or compromise being preferable to a good lawsuit. Then it happens sometimes that, during the course of the proceedings, the debtor becomes insolvent, and when the suit is finished you cannot even

receive what was amicably offered before the beginning of the proceedings; therefrom comes the want of sympathy which the solicitors and bailiffs meet with, as well from the public as from the government; therefrom comes, also, part of the prestige of the barristers and the necessity in the large cities of the agents d'affaires (agents).

Indeed, the latter are subjected to no tariff as regards the fees, which are fixed amicably between them and their clients, according to the importance or result of the cause, the fortune of the client, the reputation of the barrister or "agent," but never according to the quantity of work or to the number of attendances to the court; so that they may receive £30, £40, or £100 or more for an opinion, or a transaction which takes them a very short time, and £4 or £6 for a pleading of three hours, which requires great preparatory work; therefore, if the solicitors and bailiffs have greater interest in a lawsuit, the barristers and agents prefer the transaction, consequently their opinion has a great weight, because they have the same interest as the clients themselves.

That would be very easy to alter; if the solicitors received an optional fee paid by the client, and not by the party who loses the case, they would certainly prefer conciliation.

In that respect I think if the French system requires certain alterations, the English one is still a great deal more defective.

What we have said in reference to the solicitors of the tribunal of "first instance," is also applicable to the solicitors of the "courts" (cours d'appel), who are constituted, regulated and paid in like manner.

The barristers hold the first rank amongst the lawyers; they enjoy generally a great deal of consideration on account of their real knowledge, and especially on account of their duties. The barristers cannot trade; they must do nothing but give opinions and plead; they can give their opinion even by writing, about the drawing up of summons, conclusions, transactions, and other acts, but they cannot draw up the same themselves, nor have any deed signed in their office, in order not to incur any responsibility.

E. DE MERAY (Avocat Francais).

THE CHANCERY IN OLDEN TIMES. Under Edward I the officers of the Chancery (Court) lived and lodged together at an inn, or hospitium, which, when the King resided at Westminster, was near the palace, or, perhaps, part of it, until it was removed to the Domus Conversorum, under Edward III. The writs were sealed on a marble table which stood at the upper end of the hall, and there they seemed to have been delivered out to the suitors. It is supposed that this table still exists beneath the stone stairs. When the King traveled he was followed by the whole establishment of the Chancery (Chancellor, clerks, and all), on which occasion it was usual to require a strong horse, able to carry the rolls, from some religious house bound to furnish the animal; and at the towns where the King rested during his progress, a hospitium was assigned to the Chancery.

Even as far back as the reign of James I the Chancellor's duties were very weighty; when Lord-keeper Williams first held the great seal, the press of business was so great that he was compelled to sit in his court for two hours before daylight, and to remain there until between eight and nine, and then repair to the House

of Lords, where he stayed till twelve or one: after taking some refreshment at home he would return to his court, and hear such causes as he was able to hear in the morning; or, if he attended at council, he would resume his seat in Chancery toward evening, and sit there until eight o'clock, and even later: on reaching home after all this fatigue, he read all the papers his secretaries laid before him; and then, although the night was far gone, would prepare himself for the House of Lords the next day. Whitelock mentions himself and his brother commissioners sitting in Chancery from five o'clock in the morning to five o'clock in the afternoon.

Sir Lancelot Shadwell, the late Vice-Chancellor of England, in his evidence before the Chancellor Commission, declared the business in the Court was then so heavy, "that three angels could not get through it.” Sir Thomas More, when he took his seat for the first time in the Court of Chancery, addressing the bar and audience, said: "I ascend this seate as a place full of labour and danger, voyd of all solide and true honour; the which by how much higher it is, by so much greater fall I am to feare." Laborious indeed it was then, and still more laborious is it now- - but void of honor it never was, and never will be; and all such professions of indifference to its dignity, because of the duties annexed to that dignity, as much deserve contempt as they meet with neglect. "When I was Chancellor," says Bacon, "I told Gondomar, the Spanish Ambassador, that I would willingly forbear the honor to get rid of the burden; that I had always a desire to lead a private life." Gondomar answered that he would tell me a tale:-"My lord, once there was an old rat that would needs leave the world; he acquainted the young rats that he would retire into his hole, and spend his days in solitude, and commanded them to respect his philosophical seclusion. They forbore two or three days; at last, one hardier than his fellows ventured in to see how he did; he entered and found him sitting in the midst of a rich parmesan cheese."

LEGAL NEWS.

The Michigan constitutional convention has adjourned sine die.

A baronetcy is to be conferred on Right Hon. Russel Gurney in acknowledgment of his services in this country.

Sir Edward Thornton has received permission from his government to act as umpire to the Mexican claims commission.

At the recent meeting of the medico-legal society of New York city, Dr. J. O'Shea, of Stapleton, L. I., read a paper on "The principles of legal responsibility as applied to the insane."

Hon. J. Bancroft Davis has presented to the bar association of New York a set of books-seventeen in number-containing a full report of the proceedings of the Geneva arbitration.

At the opening of the supreme court of the United States on the 23d inst., Atttorney-General Williams presented the resolutions of the bar in respect to the memory of the late Chief Justice Chase. Associate Justice Clifford reviewed the public career of the deceased. The court concurred in the resolutions of the bar, and directed that they be entered on the minutes of the court, and from respect to the deceased, adjourned until the following day.

The Albany Law Journal.

ALBANY, NOVEMBER 8, 1873.

INTERNATIONAL LAW.

The recent efforts of the jurists and publicists at Ghent and at Brussels, in behalf of an international code and of arbitration, have attracted very general attention, though in this country and in England there has been a tendency to look upon them as Utopian. It might seem a little singular that the only two nations that have submitted an important controversy to arbitrament should be skeptical of its feasibility in the solution of international disputes, and lukewarm on the subject of its general adoption, were not the unpleasant features of the Geneva Arbitration- the pettifogging indirect claims, the angry protest of Sir Alexander Cockburn, and even the uncanny little book of Mr. Caleb Cushing, fresh in our minds. England was certainly not gratified with her experience, and very naturally her publicists, Montagu Bernard, Vernon Harcourt, Westlake, and the rest, expressed grave doubts whether any thing could be done or ought to be done, and kept away from the congresses.

On the other hand, the continental publicists Sclopis, De Lhuys, Mancini, D'Itajuba, Calvo, and others well known in the field of International Law, expressed the utmost confidence in the practicability of adopting some common method of dealing with international differences, and gave their hearty support to the movement for a Congress to consider the

matter.

The chief apostle of the codification of international law is Mr. David Dudley Field, who, some seven years ago, proposed to the Social Science Congress the appointment of a committee to prepare the outlines of such a code. The proposition was well received, and prominent jurists from different countries- Mr. Field among them. were appointed such committee. The labor of preparing the work was distributed among the committee; but owing to difficulties connected with the interchange of views, etc., Mr. Field concluded to prepare a draft of the whole work. The result of his labors, which we have heretofore quite fully noticed, were recently laid before the Social Science Congress, with some remarks, published in these pages last week. From this beginning sprang the movement which has thus far resulted in the two congresses in Belgium and the Institute of International Law.

What the ultimate results of the movement may be no one can, of course, tell; but that a satisfactory or authoritative Code of National Law, or a general adoption of Arbitration, will be among the results, seems exceedingly doubtful. The old want of a fulcrum from which to move the material universe is just as apparent in this attempt to move the political world.

The formation of a code of international rules, such as would receive the sanction of publicists, and even of States, is by no means impossible, nor, perhaps, so very difficult; but to secure that executive force essential to the very existence of law is not likely to be accomplished in this generation, as it would involve on the part of each State the surrender of its absolute independence. It is an undoubted fact that even the recognized law of nations is founded only on voluntary and continuous contract. A code would needs go much beyond the recognized law, and regulate matters hitherto in doubt or controversy, and would, therefore, be less likely to meet with voluntary obedience than what is now generally conceded to be law.

There is even less probability of the successful substitution of Arbitration for war. Were the nations to join in a consent to it, the consent would impose a moral rather than a jural obligation — an obligation among nations as among men, not always regarded. Disarmament is naturally a part of this plan of Codification and Arbitration, and it is argued that the reduction of the immense standing armies of the European powers will destroy, at all events, the power for aggression. But if one of the powers should refuse to reduce its standing armies, all the other powers would have the alternative of maintaining theirs, or of subjecting themselves to the unobstructed invasions of the dissenting power whenever it should so determine. Mr. Field, in his outline code, provides for an advisory tribunal of first instance, and a sort of court of last resort or High Tribunal of Arbitrators. A nation having grievances, and seeking remedy, is to make formal complaint to the aggrieving power, and the latter is to make answer. If the parties do not otherwise agree, they are to appoint the advisory tribunal; and in case this fails to effect a reconciliation, a high tribunal of arbitration is to be appointed by the other powers. Mr. Field asks if there is "any thing chimerical or impracticable in this?" Possibly not for isolated cases, but as a binding rule for the conduct of nations, yes. In the first place, there would be no means of compelling a nation, even though it had accepted the code, to submit itself to the decision of the tribunal, nor, if it did, of compelling obedience to its decision. Without this coercive power the whole thing would be futile. To be sure the other powers might combine in exacting obedience; but unless the point in dispute was one affecting their individual interests, they would not be likely so to do. In the second place, many of the differences and wars between nations arise from causes altogether too intangible for arbitration. Take, for illustration, the Franco-Prussian war. What was there in it for arbitrament, even had there been a competent tribunal? Begun for the purpose of strengthening a dynasty by humoring an old-time feud of the people, and without any apparent present cause, there certainly was no element on which a judicial decision could