walk by an adjoining owner building a trench, and post-holes for a fence. The street was muddy, and in attempting to pass over the obstruction plaintiff fell and was injured. Held, that she was not guilty of culpable imprudence as a matter of law. Pomfrey v. Village, 104 N. Y. 459. (2) Defendant's superintendent of streets was present and saw the dirt thrown upon the sidewalk and made no objection. There was evidence tending to show that it had been thrown there upon Friday and Saturday before the accident, which occurred on Sunday. There was no proof of a necessity of the deposit. Held, that the deposit must be presumed wrongful, and that the question of the sufficiency of time for removal was for the jury. Feb. 10, 1888. Shook v. City of Cohoes. Opinion by Earl, J.

-

POLICE DEPARTMENT POWERS OF POLICE BOARD SPECIAL GRADES OF PATROLMEN. Under the Laws of New York, 1870, chapter 77 (as amended, Laws of 1873, chapter 495), which vest the powers and duties of the government of the police of the city of Albany in a board of police commissioners, and provide that said board shall establish rules for defining the powers of the different ranks of said force, and shall prescribe the manner of appointing and removing members of the force, and the method of discipline, and that no one shall be dismissed without written charges being preferred and due notice and trial; and Laws of 1886, chapter 443, which provide that each patrolman shall receive an annual salary not exceeding $900-the police commissioners have no power to establish a veteran grade of patrolmen, and place therein men who have been on the force ten years or more at a reduced salary, as Laws of 1885, chapter 298, which provide that the force shall consist of one chief, seven captains, twelve sergeants and one hundred and fifteen patrolmen, does not establish such a rank. It seems to us that the authority as to patrolmen which is granted to the board by the statute is one by which the board can define or enumerate generally the powers and duties of the patrolmen as a class, and adopt rules and regulations as to their discipline, but that under an assumed exercise of such powers, the board cannot in effect establish a separate and distinct grade of patrolmen not recognized by the statute, and formed only by the vote of a majority of the board and attach a lower salary to such office than is given to a patrolman who is not placed in such separate grade. We do not mean to question the power of the board to adopt such rules and regulations defining the duties of the members of the force or providing for their discipline, as in the judgment of the board shall be deemed proper; nor the right to detail any patrolman or set of patrolmen to any special or general work or duty coming within the fair range of police duty. This right is essential, and is fully given by the above statutes.

But the right to discriminate as to the amount of the salary to be given to the patrolmen, as between themselves, we do not think is granted by the statute, even though the board should first establish this veteran grade, into which a patrolman may be put against his will and in spite of his remonstrance. By this resolution any patrolman, after ten years' service, in good health, perfectly capable of discharging the duties of the office, whose behavior has been excellent, and against whom no charges are made, may yet by a majority vote of the board be placed in the veteran grade and his salary reduced one-third, and then assigned (as relator says he was) to precisely the same duties he discharged before he was placed in such grade. We think this cannot be justly said to be the exercise either of the power to regulate and define the duties of patrolmen or of the simple power to fix their salaries. If so, I do not see why the defendants would

not have power to fix a different sum for each patrolman as in their judgment they should think proper, not exceeding the maximum sum, without going through the form of establishing a separate grade, into which they could place any patrolman against his will. It seems to me it is the discrimination which is unlawful, and it is not made any the less so by the establishment of a grade the duties whereof may be precisely the same as the regular patrolman. Feb. 28, 1888. People ex rel. Waldorf v. Police Commissioners. Opinion by Peckham, J.

PLEADING-DEMURRER-MISJOINDER OF ACTIONS

SLANDER OF TITLE-TRESPASS-JURISDICTION-LANDS OUTSIDE OF STATE.-(1) In New York it is no cause for demurrer on the ground of improper joinder of causes of action, that a transitory action, of which the court has jurisdiction, is joined with one for trespass on lands in another State, of which the court has no jurisdiction. (2) Upon demurrer to a complaint in an action for slander to title, which contains an allegation that the defendant falsely and maliciously stated that plaintiff's title had been examined by four lawyers and pronounced to be bad, the court cannot refer to the statement as showing that it was made in good faith, the demurrer admitting that it was false and malicious. (3) The courts of New York have no jurisdiction over an action for trespass committed on lands in the State of Georgia. Feb. 28, 1888. Dodge v. Colby. Opinion by Ruger, C. J.

UNITED STATES SUPREME COURT ABSTRACT.

CONSTITUTIONAL LAW-REGULATION OF COMMERCE -INTOXICATING LIQUORS.-The Code of Iowa, § 1553, as amended by the Laws of Iowa of 1886, chap. 66, § 10, forbidding any common carrier to bring within the State of Iowa, for any person or persons or corporation, any intoxicating liquors from any other State or Territory of the United States, without first having been furnished with a certificate under the seal of the

county auditor of the county to which such liquor is to be transported, or is consigned for transportation, certifying that the consignee, or person to whom said liquor is to be transported, conveyed or delivered, is authorized to sell intoxicating liquors in such county, is void, being in conflict with the provisions of the Constitution of the United States granting to Congress the power to regulate commerce among the several States. March 19, 1888. Bowman v. Chicago & N. W. Ry. Co. Opinion by Matthews, J. Waite, C. J., and Harlan and Gray, J., dissenting.

REGULATION OF COMMERCE-LICENSING FOREIGN CORPORATIONS.-The act of Pennsylvania of June 7, 1879, prohibiting foreign corporations, except insurance companies, which do not invest or use their capital in that State, from keeping an office in that State for the use of its officers, stockholders, agents, employees, unless it shall have first obtained a license therefor by paying one mill on each dollar of its authorized capital stock, is not in violation of the Federal Constitution, vesting in Congress power to regu. late commerce among the States, there being no attempt to prohibit the transportation or sale of the corporation's products in the State. (1) It is not perceived in what way the statute impinges upon the commercial clause of the Federal Constitution. It imposes no prohibition upon the transportation into Pennsylvania of the products of the corporation, or upon their sale in the Commonwealth. It only exacts a license tax from the corporation when it has an office in the Commonwealth for the use of its officers, stockholders,

office that any other corporation having a similar office may claim. It would then have the equal protection of the law so far as it had any thing within the jurisdiction of the State, and the constitutional amendment requires nothing more. The State is not prohibited from discriminating in the privileges it may graut to foreign corporations as a condition of their doing business or hiring offices within its limits, provided always such discrimination does not interfere with any transaction of such corporations of inter-State or foreign commerce. It is not every corporation, lawful in the State of its creation, that other States may be willing to admit within their jurisdiction, or consent that it have offices in them; such, for example, as a corporation for lotteries. And even where the business of a foreign corporation is not unlawful in other States, the latter may wish to limit the number of such corporations, or to subject

their business to such control as would be in accordance with the policy governing domestic corporations of a similar character. The States may therefore require for the admission within their limits of the corporations of other States, or of any number of them, such conditions as they may choose, without acting in conflict with the concluding provision of the first section of the fourteenth amendment. As to the meaning and extent of that section of the amendment, see Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, id. 703: Missouri v. Lewis, 101 id. 22, 30; Railway Co. v. Humes, 115 id. 512; Yick Wo v. Hopkins, 118 id. 356; Hayes v. Missouri, 120 id. 68. The only limitation upon this power of the State to exclude a foreign corporation from doing business within its limits or hiring offices for that purpose, or to exact conditions for allowing the corporation to do business or hire offices there, arises where the corporation is in the employ of the Federal government, or where its business is strictly commerce, inter-State or foreign. The control of such commerce, being in the Federal government, is not to be restricted by State authority. March 19, 1888. Pembina Consolidated Silver Mining & Milling Co. v. Commonwealth of Pennsylvunía. Opinion by Field, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

NUISANCE-PUBLIC PICNICS AND DANCES ORDINANCE TO RESTRAIN. Public picnics and public dances are not, in their nature, nuisances; and a village ordinance, in so far as it seeks to declare them to be nuisances, regardless of their character, is void. They are not in the list of common-law nuisances enumerated in the text-books. See 4 Bl. Com. (Sharswood's ed.) 166, *167 et seq; 1 Hawk. P. C. (Curwen's ed.) 694; Wood Nuis., p. 35, § 23 et seq. Now is there any thing necessarily harmful in the nature of either, more than in that of any other public amusement? When conducted with proper decorum and circumspection, and remote from public thoroughfares, it is impossible to conceive how any public injury or annoyance can result. That the manner of conducting them may be productive of annoyance and injury to the public, is not to be questioned; but since the nuisance must consist in this, and not in the picnic or dance, of itself alone. the ordinance should be directed only to it. While the rights of the people to be free from disturbance and reasonable apprehension of danger to person and property is to be respected and jealously guarded, the equal rights of all to assemble together for health, recreation or amusement, in the open air, is no less to be respected and jealously guarded. That a privilege may be abused is no reason it shall be denied. Sup Ct. Ill, Jan. 19,

OFFICER-ACTION AGAINST CLERK FOR WRONGFUL ISSUE OF WRIT-DAMAGES.-An action for damages does not lie against a circuit clerk wrongfully issuing a writ of venditioni exponas commanding the sheriff to sell certain lands in the possession of the plaintiff, on which an execution against another person has been levied the wrongful levy and sale not affecting his right, title or possession; and the costs, expenses and attorney's fees incurred in defending a suit brought against him by the purchaser, alleged as special damages, not being the natural and proximate cause of consequence of issuing the writ. When an individual suffers damages by any act of negligence or misconduct of a public officer in respect to any ministerial duty annexed to his office, he is answerable to such individual in a civil action; but in such case a wrong committed by the officer, and resulting damage to the party complaining, must concur to give title to a remedy. Bollinger v. Glenn, 80 Ala. 190. While actual or specific damage is not indispensable, the party complaining, however amiss may be the act, must have suffered injury, either actual or implied or presumed from an invasion of his rights or from a breach of duty owing to him. In respect to the judgment or process thereon, the clerk owed no official duty to the plaintiff, and no damages resulted to her such as the law implies from the wrongful issue of the writ. The act of the clerk, though illegal and unauthorized, did not confer on plaintiff any legal claim -any right of action-against him, unless on the facts averred she sustained special damages, which are recoverable. Dehn v. Heckman, 12 Ohio St. 181; Ware v. Brown, 2 Bond, 267; Harrington v. Ward, 9 Mass. 251. The only title or right to the lands shown by the averments of the complaint is such as the law implies from plaintiff's possession at the time the writ was issued and the lands were sold. The levy of an execution on the lands, unlike a levy and seizure of personal property, confers no right or title on the sheriff, and such levy does not constitute him a trespasser, though the lands may not belong to the defendant in execution, and may be in the possession of a third person. The issue of the venditioni exponas, and the sale thereunder did not operate to impair or affect the title or right of the plaintiff, nor to injure or disturb her possession. The utmost that can be said is that the purchaser is thereby armed with the power to bring suit. The damages claimed are not the natural and proximate consequences of issuing the writ, but of the institution of the suit. However groundless may be the claim, no action lies at the suit of the defendant to recover costs and expenses incurred in the defense of an action in any of the ordinary forms for a mere wrongful resort to legal proTo constitute the misuse or abuse of legal process in the common-law or ordinary remedies actionable, malice and want of probable cause must conjoin. Tucker v. Adams, 52 Ala. 254; Bolling v. Tate, 65 id. 417. Though the venditioni exponas was a nullity, and the purchaser acquired no title by the sale, the plaintiff could not maintain an action against him to recover the costs and expenses paid by her in defense of the suit to recover possession of the lands. The bringing the suit was the act of the purchaser, the intervention of another cause, by which the plaintiff cannot pass and maintain an action against the clerk to recover damages for which the immediate actor is not suable. Though the illegal and unauthorized act of the clerk may have furnished the occasion, it was not the efficient and dominant cause which put the intervening and immediate cause in operation. The issue of the venditioni exponas is, as to the plaintiff, dam

cess.

num absque injuria. Sup. Ct. Ala., Dec. 21, 1887. Esiava v. Jones. Opinion by Clopton, J.

As

SHIP AND SHIPPING-GENERAL AVERAGE-PASSENGER'S BAGGAGE--RIGHT TO BE CONTRIBUTED FOR.-Passenger's baggage in daily use does not contribute in general average. Baggage stored in the ship's compartments and not in use does contribute. respects the obligation of passengers' baggage to contribute in general average, no adjudication in this country or in England has been cited by counsel; nor have I been able to find any. In Abbott on Shipping, 503, it is said: "Neither in this country do the wearing apparel, jewels or other things belonging to the persons of passengers or crew and taken on board for their private use contribute." Kent in his Commentaries (vol. 3, *241) repeats this as the law of England. It would seem to rest upon the practice of average adjusters, which as just seen does not determine the law. Whitecross v. Savill, supra. 1 Pars. Shipp. & Adm. 322, 323, and note, refers to the practice but sees no reason for it on principle. The question has been much discussed by many of the continental authors.

Most of the ancient authorities are cited by Emerigon, Tr. des Assur., vol. 1, pp. 642, 646, From the extracts last quoted it is evident that the passage cited by counsel from Kent's Commentaries (vol. 3, p. *241), in which it is said that Boulay-Paty thinks that passenger's baggage "ought to be exempted, and that the existing French usage is proper," is quite erroneous and misleading, except as regards the comparatively unimportant item of clothes in daily use or necessary changes during the voyage; and that as regards trunks put like these in a baggage compartment for transportation and not for use during the voyage, the high authority of Boulay-Paty, Valin, Pothier and Emerigon is strongly to the contrary. Phillips concludes that "no reason has been given why passenger's baggage should not contribute as a part of the contributory interest; and Parsons says the same. 2 Phil. Ins. 153; 2 Pars. Shipp. & Adm. 322. Desjardins, a member of the French Court of Cassation, in his treatise (1885) on Maritime and Commercial Law (vol. 4, p. 472,) concludes that "what the passenger wears upon his person should be exempted, like the clothes of seamen, on the ground that the general average loss, while it may have saved the ship and the cargo, does not determine necessarily the preservation of the persons on board;" "nor consequently of what is accessory thereto." Beyond this he "does not hesitate to hold that the trunks of passengers should contribute." By the express provisions however of the great majority of the recent Maritime Codes the baggage of passengers does not contribute; but if sacrificed, it nevertheless must be paid for in general average. Considering then the undoubted universal rule to pay for baggage sacrificed, and the quite general exception of such articles from assessment, it is necessarily to be inferred that this exemption is based upon grounds that do not affect the justice and the equity of compensation for such articles when sacrificed for the rest, though they may not be called on to contribute when saved. The reasons for this exemption in the case of passengers' baggage I have not found stated any further than its insignificance, as Loundes suggests, and the reason above indicated, viz., that what is upon the person is not subject to the same risk that attends the cargo and may be saved with the person though the cargo be lost; but that suggestion would apply only to what is strictly attached to the person, not to trunks in the baggage compartment. But aside from that, when we consider how great annoyance and inconvenience to passengers would attend the long detention of their trunks and clothing until a general average adjustment could be had or an average bond be given; the practical impossibility of

either where passengers with their baggage are taken on and off at intermediate ports in the course of the voyage; the difficulties attending the valuations to be put upon such articles in average adjustments and in the collections thereon; the inquisitorial and offensive nature of such examinations; the small value of many of such packages, such as those of steerage passengers; the insignificant sums to be derived from most of the trunks and boxes, often perhaps less than the cost of adjustment; and the difficulty of making any distinction in the mode of dealing with the baggage of the different classes of passengers and the natural desire to accommodate travellers in the rivalries of competing lines-in all these considerations there seem to be practical reasons enough without reference to the legal right to have led, first to the omission in practice of any assessment on passengers' baggage, and next to the adoption of that practice in many of the recent codes. Whether this be the true account of the matter or not, in the light of the above authorities, and the general usage of maritime nations, it is clear that the absence of reci

procity in the right to compensation and the obliga

tion to contribute is not sufficient to exclude passen

gers' baggage from compensation. The same authorities show, as it seems to me, that by the general maritime law, aside from the provisions of recent codes, the only baggage exempt is apparel and such other articles as the passengers wear, with the usual changes for the voyage and such as they actually take with them for use, which in that sense are attached to their persons; not trunks delivered into the exclusive charge of the ship, aud which are neither in use nor in the passengers' possession during the voyage. The modern codes above cited differ as to the extent to which this exemption is allowed. Where as in this country there is no statutory provision on the subject, and no adjudication, the omission of the baggage from assessment, beyond that actually in possession of the passenger and in use on the voyage, must be regarded as a favor or courtesy to passengers, or as being a waiver for practical reasons rather than a strict legal right to exemption under the general maritime law; unless indeed the practice not to detain and hold baggage for a general average adjustment were proved to have been so long settled and acted upon as to form one of the implied terms and conditions upon which passengers embark. Though such a practice, if established and well understood, might possibly entitle the passenger, in cases of a general average loss, to a delivery of his baggage without detention, it would not relieve him from the obligation to contribute by a pro rata deduction, according to the usual rule in general average upon the amount allowed to him for his particular loss, when the passenger himself is seeking compensation; because in that situation none of the practical reasons for omitting passengers' baggage from assessment are applicable. Upon this point I follow the principles universally affirmed, and the united authority of the French authors above cited; and as none of these trunks was in daily use, or "attached to the person," I shall hold them bound to contribute, when the owners are seeking compensation, as in this case, by a pro rata deduction according to the general average charge. Dist. Ct., S. D. N. Y., Nov. 30, 1887. Heye v. North German Lloyd. Opinion by Brown, J.

CORRESPONDENCE.

NEGOTIABLE INSTRUMENT-FAILURE OF CONSIDERA

TION.

Editor of the Albany Law Journal:

D. executed his bond or promissory note under seal to W. & S. for the sum of $500 due one day, the ex

D. was imprisoned at the time of the execution of the note under the charge of murder, having been committed by a magistrate. In a short time after he was so imprisoned, and before he was indicted, and before W. & S. had any opportunity to do or before they did do any legal services for D., he was taken out by a mob and hung. W. & S. sued D.'s administrator for the $500 on the bond. We are for defendant. The authorities seem to conflict. Can W. & S. recover? Give us some cases if you have any in point. The case is in our Supreme Court.

each.

ELEVENTH ANNUAL REPORT OF THE STATE BAR ASSOCIATION.

The demand for the Eleventh Annual Report of the New York State Bar Association has been so great that a second edition has been published.

Members desiring additional copies will promptly receive them by notifying the Secretary. CAPITOL, ALBANY, April 26, 1888.

NEW BOOKS AND NEW EDITIONS.

HOTCHKISS ON BANKS AND BANKING. Banks and Banking, 1171-1888-an historical sketch based upon official records, together with a few episodes connected with the subject which have come under the ob

servation of the writer during an experience of twenty

five years as a banker and merchant in the city of New York. By Philo Pratt Hotchkiss. G. P. Putnam's Sons, New York. Pamphlet. 51 pp.

This is a gossiping and pleasant sketch, containing a good deal of useful information conveyed in a readable manner. The writer evidently believes in the credit system, for he carefully credits "Truth crushed to earth" and "Lives of great men" to their respective authors. An amusing anecdote, new to us, is told under the head of "barter," of a famous prima donna, who gave a concert in the Society Islands for a third part of the receipts, and this consisted in "three pigs, twenty-three turkeys, forty-four chickens, five hundred cocoa-nuts, besides considerable quantities of bananas, lemons and oranges." There is a good steel engraving of Alexander Hamilton fronting the titlepage, and the author's business advertisement may be found at the end. Price 75 cents.

HAMILTON'S MEDICAL JURISPRUDENCE AND SPITZKA
ON INSANITY.

A Manual of Jurisprudence, with special reference to dis-
eases and injuries of the nervous system. By Allan
McLane Hamilton, M. D. With illustrations. E. B. Treat,
New York, 1888. 12 mo. Pp. 390.
Insanity, its classification, diagnosis and treatment. A man-

ual for students and practitioners of medicine. By E. C.
Spitzka, M. D. E. B. Treat, New York, 1888. 12 mo.
Pp. 423.

COURT OF APPEALS DECISIONS.

Order of General Term reversing judgment of court below affirmed, and judgment absolute ordered against plaintiffs-Hester J. Todd and another v. Isaac Nelson.-Judgment affirmed with costs-Jane Kellogg v. Jacob Stout and another.-Judgment of General Term affirmed John T. Williams and

another v. George M. Whedon. Both appeals dismissed with costs of each appeal-Farmers' Loan and Trust Company, as trustees, v. Bankers and Merchants' Telegraph Company and others (two cases).

Judgment of General Term reversing and that of Special Term affirmed, but with leave to defendants, upon payment of costs of demurrer, to plead anew or amend within twenty days after a notice of this judgment-Walter L. Thompson, receiver, v. Edward Norton, appellant, and others. Judgment affirmed -People v. George W. Willson, the Medina wife murderer.-Judgment affirmed with costs-Helen Carlson v. Oceanic Steam Navigation Company.—Judgment affirmed with costs-Agnes King v. George H. Van Vleck.Judgment affirmed with costs-Andreas Graff and others, respondents, v. Mary Cunningham, impleaded, etc., appellant, v. Samuel Self, impleaded, respondent.-Order of General Term reversing judgment of Special Term and granting new trial reversed, and judgment of Special Term affirmed with costs in both courts-John Renners and another v. John N. Young.- -Appeal dismissed with costs-Delaware, Lackawanna & Western Railroad Company v. John M. Buckard and others.-Order affirmed and judgment absolute ordered against plaintiff with costs-Anson C. Kennecutt v. John Parmelee.

NOTES.

"I cannot tell a lie" (Washington).-The editor of that excellent periodical, the ALBANY LAW JOURNAL, thus soliloquizes: "We seldom read our journalafter reading the proofs. But casually taking up the last number and glancing over its contents, it struck us as a remarkably interesting number-no vanity, now, for it is not our fault-but it seemed to us to chronicle and comment on an unusually large number of novel and striking cases, to say nothing of the current topics, for which we are too modest to take any credit." We are glad we came across this precedent. A similar thought struck us as we casually glanced at the last number of our journal. But for the simple candid boldness of our contemporary, our view of ourselves would have perished with us.-Canada Law