NOTES. Messrs. Kay & Brother, of Philadelphia, announce for publication this month a treatise on the Law of Negligence by Francis Wharton, and a third and revised edition of Hilliard's "Law of Injunctions." They also announce, as in preparation, an American edition of Leake's "Law of Contracts," with American notes by Francis Rawle and Henry Reed; a sixth American edition of "Williams on Executors;" a second edition of Dr. Wharton's valuable treatise on the "Law of Homicide," and a new treatise by George Tucker Bispham on the "Law of Notice," as applied in Equity, in controlling the acquisition and enjoyment of titles; including the doctrine of Purchases for Value and of Equitable Assignments.

We copy in another column from the Central Law Journal an article on "Passenger Carriers" from the pen of Mr. Francis Hilliard, which commences with the statement that "In a late English case, Redhead v. The Midland, etc., L. R., 2 Q. B. 413, the court were divided in opinion upon the question whether passenger carriers are liable for injuries caused by an unavoidable and latent defect in the carriage." It had probably escaped the attention of the writer that the Exchequer Chamber, on the appeal of that case (20 L. T. R. 628) unanimously affirmed the decision below holding the negative of the question. The case was fully discussed in the first volume of the Albany Law Journal, page 6, and was reported in full in the same volume, page 318.

There is a case in the Law Reports (Privy Council Cas., vol. 5, p. 89), arising on appeal from the Supreme Court of the Colony of the Strait's Settlement in its Division of Penang, the title of which at least is interesting. We therefore present it in full: "Ong Cheng Neo, plaintiff, against Yeap Cheah Neo, Khoo Kay Chaw, Khoo Fiew Jeong Neo, and her husband, Lim Cheng Keat, Executors of the last will and testament of Oh Yeo Neo, deceased, Lim Choon Yek, niece of the said Oh Yeo Neo, and her husband, Cheah On Heap Lim Ah Yong, and Wee Sah Neo, Legatees named in the said will of the said Oh Yeo Neo, deceased." We should think all that could be required of a judge down that way would be to master the titles of the cases.

In the Central Law Journal we find the following extract from a letter written in September, 1851, by Mr. Webster to Mr. Fillmore, relative to the appointment of the late Mr. B. R. Curtis to the Supreme Bench: "A very important vacancy is created by Judge Woodbury's death. The general, perhaps I may say, the almost universal sentiment here is, that the place should be filled by the appointment of Mr. B. R. Curtis. Mr. Choate is perhaps Mr. Curtis' leader, and is more extensively known, as he has been quite distinguished in public life. But it is supposed he would not accept the place. He must be conferred with, and I should have seen him to-day, but he is out of town. I shall see him as soon as possible. Every thing being put at rest in that quarter, as I presume it will be the moment I see Mr. Choate, I recommend the immediate appointment of Mr. Curtis. There will be an advantage in disposing of the matter as soon as may be. Judge Sprague is now on his way home from Europe. His friends, no doubt, will urge his pretensions. Judge Pitman, too, of the District of Rhode Island, is a learned lawyer, an able judge and an excellent man. If an appointment were

to be made by promotion from the bench of a district court, it would be very difficult to overlook Judge Pitman, who has been on the bench more years, by a good many, than Judge Sprague, and working at a much smaller salary. But in my judgment it is decidedly better to appoint a man much younger than either of these judges. Mr. B. R. Curtis is of a very suitable age, forty-one; he has good health, excellent habits, sufficient industry and love of labor, and, I need hardly add, is in point of legal attainment and genera character, in every way fit for the place."

Messrs. Kay & Brother, of Philadelphia, have undertaken the publication of a law paper, to be called the "Weekly Notes of Cases." It is modeled after the English "Weekly Notes," and is designed to give promptly the gist of Pennsylvania decisions, both State and Federal, legal and equitable. It is to be under the general charge of Mr. E. L. Boudinot. The specimen number is very good, and if the plan is properly carried out, as we have no doubt it will be, the Weekly Notes" will be very valuable to the lawyers of Pennsylvania.

LEGAL NEWS.

All the judges of the Supreme Court of the United States will be in attendance at the opening of the court, on the 12th inst., and will commence on the docket, preparations for which are now being made by the officers of the court.

Judge Benedict, of the United States District Court for the Eastern District of New York, has decided that a married woman can legally bring action to recover the value of wearing apparel stolen while a passenger on a vessel.

We are glad to learn that Mr. Vaughan Williams, the English county court judge, whose curious freaks we noticed last week, has had sense enough to resign; but, perhaps, the oddest part of the business, after all, is that it is seriously proposed that the government should provide him a pension, and the Law Times hopes to see the suggestion "carried out."

Ex-President Woolsey, in his fourth lecture on international law at the Yale Law School, last Wednesday, discussed the case of the Virginius as seen in the light of recently disclosed facts. The seizure of the vessel by the Spaniards he justifies as an act of self-defense. The brutal treatment of those on board he considers as inexcusable and as just ground for damages to be claimed by the United States.

Joseph H. Bradley, who was debarred from the Supreme Court of the District of Columbia during the trial of John H. Surratt, in 1867, for alleged contempt of court, and who was afterward charged with sending a threatening message to the justice holding that court (Judge Fisher), was to-day restored to the list of attorneys on motion of Thomas J. Durant. In granting the motion, Chief Justice Carter said the court had been informally advised of this motion, and they had unanimously agreed to grant it. They considered that whatever had passed had been abundantly atoned for, and they should welcome Mr. Bradley as a member of the bar with pleasure. The court-room was filled by members of the bar, who with the greatest unanimity applauded the remarks of the court, and gathered around Mr. Bradley to congratulate him.

All communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, OCTOBER 10, 1874.

THE FEAR OF COURTS.

which good morals and polite society have established for the governance of the sexes.

"They like to see the whole proceedings,

The depositions, and the cause at full,
The names of all the witnesses, the pleadings
Of counsel to nonsuit, or to annul."

But we fear that Miss Beecher, in her anxiety to shield her brother from the rough blasts of a legal inquiry, does not duly weigh her words when she makes these wholesale accusations against the morals of judges and the manners of lawyers. If we deemed the example of the Plymouth church investigation a safe and proper one to follow, we should call on the

If the above utterance had come from one of the sentimental and hysterical women of the average sort, we might not have deemed it worthy of notice in a grave legal journal. We suppose the views expressed above are a fair sample of those entertained by a vast majority of the gentler sex, and by a considerable proportion of the masculine kind, in regard to judges, juries, lawyers and courts. We know it is usually quite difficult to entice a delicate woman into a court-room, unless she is desirous of a divorce from her tyrant, or can listen to the developments of some scandalous case, in which the fair fame of some erring sister is called in question, without any danger of being herself summoned to testify, and with her veil down. It is frequently quite difficult to persuade the sensitive beings to leave the court at the approach of some of these indelicate disclosures. We remember the story of the Irish judge, who at a similar juncture, suggested that all the modest women should leave the court, and when quite a number persisted in remaining, remarked, "Mr. Sheriff, as all the modest women have left, put the rest out." Our shrinking and timid wives, daughters, and sisters enjoy the spice of these things rather better than their husbands, fathers, and brothers, unless the said male relatives should chance to be the subject of the judicial investigation, and then "nothing can be imagined more to be dreaded." A lawyer's tongue never wags too saucily when exercised at the expense of another woman, who is generally termed by these fair creatures a "hussy," to distinguish her from the rest of her sex. We think it may safely be laid down as a general truth, that unless the lawsuit concerns them or theirs, there is no insuperable objection in the feminine mind to listening to the explication of any case involving the infringement of those relations

showing that they are not liable to be bribed. We should give very great weight to such a "statement" from Noah Davis, for instance, the judge before whom William Tweed, the most influential offender ever convicted in an American court of justice, was found guilty. Similar disclaimers from John R. Brady, George C. Barrett, Abraham R. Lawrence and Charles Donohue, judges of the Supreme Court, would also be in order. We think too that a "statement" from the Bar Association to the effect that the lawyers of the city of New York are not in the habit of insulting women in the courts, might tend to re-assure the nervous Miss Beecher. We must confess that we are surprised at the lady's reflections on the good manners of our profession. Our observation has led us to a quite contrary conclusion. We have always seen women treated with the greatest respect and tenderness in court. The entrance of a petticoat into a court-room has always seemed to us the signal for an immediate improvement of professional behavior. The legal heels instantly come down from the tables, the tobacco is quickly ejected from the legal mouths, and there is a general brushing down and straightening up on the part of the legal beasts and cubs in attendance. The roughest-voiced old Stentor of the bar roars as gently as a nightingale when Mary Jane or Amelia Seraphina is called to the witness stand. No discreet lawyer dares ask a feminine witness her age, without first begging pardon and explaining that he means no imputation against her unquestionable juvenility. The female witness has a great advantage over the male. She is allowed to go on generally pretty much as she pleases, for none of the lawyers are hardy enough to try to bring her within legal rules. And so she is permitted to disclose what she thought, and what she told her next door neighbor, or her husband's second cousin, or what various persons of her acquaintance told her, about the matter in question, in a perfectly feminine, illegal and adorable manner. So a woman can persistently give utterance to an amount of irrelevance, half of which would send a masculine witness to the sheriff's office for contempt. No man knows so well as a lawyer the ridiculous inequality of the sexes in courts of justice, and the helpless inferiority of the male suitor

or witness to the female. And yet poor Miss Beecher speaks in tremulous and terrified tones of coarse and ribald lawyers." If she really means what she says, she must regard a lawyer as "a low, vulgar, brutal, foul-mouthed wretch," for such is Webster's definition of "ribald." We beg to assure Miss Beecher that we are no such persons. Not even Mr. Moulton's distinguished counsel merits such a description, although if he had been stigmatized as "bald" rather than "ribald" we could not in conscience object.

Miss Beecher speaks of the danger of the use of money in corrupting judges and jury and hiring perjured witnesses. Evidently, she does not reflect that this course is as free to the one party as to the other, and the community will probably believe, if they can be brought to believe any thing of Miss Beecher's dark picture, that when it comes to this, Plymouth church will not suffer itself to be taken at a disadvantage. The combatants will stand equal in this respect, and the result may be as it was in some of those knightly contests of the middle ages, where all parties were so securely encased in armor that terrible battles were fought and nobody was hurt.

But after all, it seems that Miss Beecher's alarm, if well-grounded, is misplaced. Her brother would not be tried in the city of New York, where these vendible judges and impolite lawyers prevail, but over in Brooklyn, where he has for so many years exercised so potent an influence, and where his church is such

an

enormous power in society and government. Surely he ought to have a fair and unprejudiced and intelligent trial there, if anywhere in the world. We have heretofore urged Mr. Beecher and his friends to go into the courts with these controversies. They seem inclined to adopt this course. We hope they will not be dissuaded by Miss Cassandra Beecher's hysterical vaticinations. We are glad to see one woman, at least, concerned in these affairs, who has no fear of courts, but who conceiving her good name and fame to be unjustly assailed, appeals to a legal tribunal for vindication. We can recommend Miss Proctor's course to Miss Beecher, and can assure the latter lady that if she really wishes the truth to be made manifest, a day in our courts is better than a thousand.

NATURE OF PROPERTY IN TREES. The boundary line between real and personal property is sometimes quite obscure. As an example, the rule of fixtures is one of the most puzzling and vexatious in the law, varying as it does with the varying relations of the parties concerned. Special instances of the indefinite nature of property are found in fences, hop-poles, manure and statues, all of which have been the subject of adjudication. We had supposed that the rule that growing trees are real estate, was as firmly fixed in the law as their roots in the soil. But as there is scarcely any well-settled principle

that has not, at some time, found some judge to doubt or condemn it, so this instance forms no exception. Thus it has been said that a conveyance of standing trees is not within the recording act. Judge Paige in Warren v. Leland, 2 Barb. 619, says: "Growing trees, when severed from the land, in law, by a valid sale in writing by the owner in fee in the land, in prospect of an actual separation, even before an actual severance, become chattels - chattels personal not chattels real." And to this he cites Toll. and Bac., and Hob. The judge's reasoning is as follows: "Simultaneous with the execution and delivery of the conveyance, the trees are severed in law, from the earth, and become chattels personal; and the interest which passes to the grantee is not a freehold estate, but an interest in perpetuity in personal estate, which may be conveyed by writing without seal, and even by parol. Can it be said then that such a conveyance is the conveyance of a freehold estate? I think not. For the reason that a freehold estate does not pass by the conveyance, but merely the title to a chattel." The judge seems to us to be in error here. A parol sale of growing trees is valid if followed by delivery, because then the trees become chattels, but not otherwise. It may operate as a license to the vendee to enter upon the land and take them away, but is not such a license revocable at pleasure, and if revoked what right would the vendee have to enter? The trees are just as much part of the realty as the houses. Would any one contend that a parol sale of a house, exclusive of the land, would change it from personalty into realty? The nature of property is not thus to be changed. Agreements alone cannot change it; it needs physical acts to effect such a change. But these expressions of Judge Paige seem after all to be obiter. First, because the judge says so: "But be this as it may, the assignment of 1836, from Farlin to the plaintiff, was executed and delivered after. the pine timber had been severed from the land, and while it was personal property; and it cannot be pretended that that instrument was such a conveyance as the recording act required to be recorded." Second, because the case shows that the defendant purchased with full knowledge of the rights of the plaintiff in the timber. (Page 624).

The doctrine of Judge Paige has never been adopted to our knowledge. In Wintermute v. Light, 46 Barb. 278, the question was whether wine plants, set and growing, will pass by a conveyance, notwithstanding a parol reservation. Judge Balcom says: "I apprehend the weight of authority to be in favor of the existence of the rule that the conveyance of the fee carries with it whatever is attached to the soil, be it grain growing, or any thing else; and that it leaves exceptions to the rule to rest upon reservations to be made by the grantor." In respect to growing grain, it has been sometimes held, and the holding seems to have the sanction of Chancellor Kent, that it does not

pass to the vendee, but is deemed personal estate, and sometimes it has been held that a parol reservation of it is effectual. There is some semblance of reason for such a holding, for grain is an annual crop, planted by the hand of man, and does not possess that permanent attachment to the soil which is characteristic of real property. But even this holding has never obtained in our State, for here growing grain has uniformly been held to be real estate. Foote v. Calvin, 3 Johns. 216; Austin v. Sawyer, 9 Cow. 39.

Not only has Warren v. Leland not been followed in this respect, but the contrary doctrine was announced in Vorebeck v. Roe, 50 Barb. 302, and Judge Paige's doctrine was pronounced obiter. Judge Daniels says: "It is well settled, by the authorities in this State, that standing trees form a part of the land. And as such are real property. And a

contract for the sale of them is a contract for the sale of an interest in the land. And as such it is required by the statute of frauds to be in writing." "The grantee in the deed, if he bought without notice, as the referee has found that he did, must have believed, as he had a right to, so far as any thing appeared to the contrary when he received his deed, that he was purchasing and receiving a conveyance of the standing timber, just as much as he was of the earth in which they stood. And to deprive him of the timber, through an unrecorded sale of it, would be in principle as unjust as to deprive him of his estate in the land itself." "If it was not, there would seem to be no difficulty in the way of the owner selling the timber to one purchaser, the surface of the soil to another, and the underlying quarries or minerals, if any there were in the land, to a third, and then selling the land itself to a purchaser, whose ignorance of the preceding sales might induce him to suppose he was to receive the subjects of all of them, and to part with his money on the faith of that conviction." In regard to Warren v. Leland, he says: "But in that case the subsequent purchaser of the land had notice of the existence of the previous sale of the timber, before he received his deed. The present question was not before the court therefore in that case. And it cannot have the weight of a judicial decision upon the point."

The doctrine of Warren v. Leland was expressly disapproved in Goodyear v. Vosburgh, 57 Barb. 243, although the court tried hard to distinguish the two cases, on the ground that in the former case the doctrine was declared to apply only "in case of a separation of the trees from the soil within a reasonable time," while in the latter the license gave the right of entry "at any time." And so the court say, "it is unnecessary here to discuss the question of its sound

ness."

Really, this is quite Chesterfieldian in its courtesy. But the court do not allow their polite

ness so far to overcome their sense of law as to restrain them from saying: "An owner in fee of the land has the same estate in the trees as in the soil,

unless there has been a severance of ownership by such conveyance as is adequate to effect it." "Even if, by a legal fiction, the grant operates to effect a severance of the trees from the soil so as to render them henceforth personal property, still the estate which passed from the grantor is no less a freehold estate than if no such effect was produced; and no writing less than a deed legally executed is sufficient to divest the grantor of such estate. That the estate when it reaches the grantee is transmuted by fiction of law into personal property, can have no effect upon the requirements of the statute above quoted. This reasoning seems to me sound, although it conflicts with the decision in Warren v. Leland.”

And so, we think, we may consider Judge Paige's doctrine as effectually discarded, and laid away in the great museum of obiter dicta which are also erroneous dicta.

CURRENT TOPICS.

A person was recently convicted, in the Court of General Sessions of New York, of an attempt to commit arson in the first degree, but the judge when he came to impose sentence found himself in something of a quandary. Prior to 1873 the punishment for arson in the first degree was imprisonment for not less than ten years. 2. R. S. 659. In 1873 (Laws 1873, ch. 644), the punishment was changed to imprisonment for life. The Revised Statutes further provide, that the punishment for an attempt to commit any crime punishable by imprisonment for four years or more, shall be imprisonment for half the term prescribed for the crime. It was of course difficult to determine what half of a life term would be. We have not learned what disposition was made of the convict. This reminds us of the case of Commonwealth v. Dennis, 105 Mass. 162, where the defendant was indicted for an attempt to commit suicide. The statute provided that the punishment for an attempt to commit an offense should be half that which might have been inflicted if the offense had been committed, and the court held that the defendant could not be convicted, inasmuch as he could not have been punished had he committed the crime.

Theoretically the object or intent of a trial by jury is to get the impression which the evidence pro and con. has made upon the mind of each juror, and the law has provided that this impression must be unanimous before a verdict can be rendered. But how far the practice varies frequently from the theory was illustrated in the Udderzook trial, a very interesting account of which is given in the American Law Review for October. On the first and second ballot the jury stood six for conviction, five for acquittal and one undecided. The number for acquittal increased until on the fifth ballot it was eight; then the number gradually decreased until on the ninth