OP

Ev. (8th ed.) in section 31, etc., and in 1 Greenl. Ev.
(13th ed.) sections 53, 451, 454, and notes. State v.
Bridgman, 49 Vt. 202; Thayer v. Thayer, 101 Mass.111;
Commonwealth v. Nichols, 114 id. 285. Maine Sup.
Jud. Ct., Aug. 22, 1881. State of Maine v. Witham.
Opinion by Peters, J. (72 Me. 531.)

INSURANCE LAW.

ular an account as the nature of the case will admit of, will not be complied with by a statement in which there is not even an attempt made to enumerate the articles lost, or to give their kind or value; and a reference to the books and invoices of the insured, even when they had been in the possession of the insurer after the loss, will not be sufficient, as it is the duty of the insured to make out the particular statment. Catlin v. Springfield Ins. Co., 1 Sumn. 437. (6) The insufficiency of preliminary proofs, there being no question of waiver involved, is a question of law for the court, and not a question of fact for the jury. Catlin v. Springfield Ins. Co., 1 Sumn. 437; Beatty v. Lycoming Ins. Co., 66, Penn. St. 17; Wellcome v. People's Equitable Fire Ins. Co., 2 Gray, 480; Norton v. Rensselaer & S. Ins. Co., 7 Cow. 645. (7) The arbitration clause, which requires the award of arbitrators as to the amount of damages, is a valid contract, and a compliance or attempted compliance with it is a condition precedent to suit. See Scott v. Avery, 5 H. of L. Cas. 811; Elliot v. Royal Exch. Assur. Co., L. R., 2 Exch. D. 245; Dawson v. Fitzgerald, id. 260. U. S. Civic Ct., E. D. Louisiana Dec. 19, 1881. Gauche v. London & Lancashire Ins. Co Opinion by Billings, D. J. (10 Fed. Rep. 347.)

NEW BOOKS AND NEW EDITIONS.

16TH NEVADA REPORTS.

This volume, published by A. S. Bancroft & Co., San Francisco, contains cases as late as January, 1882. Several of the cases are of interest: A water com

FIRE POLICY-CONDITION AS TO JUDGMENT - AS TO EXECUTION-NOTICE- ESTOPPEL.-(1) A coudition in an insurance policy for a forfeiture in case a judgment lien should exist upon the property, or proceedings should be commenced to foreclose a mortgage upon it, is waived by the act of the insurer's agent in renewing the policy with knowledge of such judgment lien or foreclosure proceedings. The agent's knowledge, though not acquired in his capacity as agent, or while engaged in the transaction of his principal's business, will still bind the insurer, if he possessed such knowledge when he renewed the policy, though he is not bound to charge his mind with all rumors or loose information coming to his knowledge. Miner v. Insurance Co., 27 Wis. 693; McBride v. Insurance Co., 30 id. 567; Devine v. Insurance Co., 32 id. 476; Webster v. Insurance Co., 36 id. 7; Winans v. Iusurance Co., 38 id. 342; Mechlen v. Insurance Co., id. 665; Roberts v. Insurance Co., 41 id. 226; Gans v. Insurance Co., 43 id. 113; Palmer v. Insurance Co., 44 id. 206. (2) A condition voiding the policy in case of "the issuing or levy of an execution, without actual possession, against any kind of property hereby insured." Held, not intended to apply to real estate. Properly speaking there is no actual possession of real estate taken by the officer on levy of an execution upon it. The possession remains in the judgment debtor until deed is given. In the words of Reynolds, C., in Colt v. Phoenix Fire Ins. Co., 54 N. Y. 595-8, where a similar clause was considered, "the levy of an execution upon real estate under an ordinary judgment is at this day unnecessary, and in fact never is done, and it may be said is now unknown to the law." In that case the court decided that the clause did not apply to real estate, but to the levy of an execution upon personal property only, where the actual levy by the sheriff divests the personal property of the debtor, to a large extent at least, and the sheriff takes and retains possession until sale. Wisconsin Sup. Ct., Nov. 3, 1881. Shafer v. Phoenix Fire Ins. Co. (53 Wis. 99.) FIRE POLICY- CONDITIONS- CHARACTER OF PRELIMINARY PROOFS ARBITRATION CLAIM.-(1) The conditions in a policy of insurance requiring preliminary proofs, and a reference to arbitration in case of difference, are conditions precedent to suit. (2)The clause providing that "payment of any loss or damage shall be made within sixty days after satisfactory proof thereof shall have been made to the company," means that suit cannot be maintained until sixty days after delivery of preliminary proofs, which are or should be accepted as satisfactory; and a suit commenced before the expiration of said sixty days is premature, and the commencement of a suit is the issuance of process, not its service upon defendant. (3) An examination of the insured under oath is consistent with a demand for proper preliminary proofs. See Columbia Ins. Co. v. Lawrence, 2 Pet. 53. (4) The insurer who rejects as defective preliminary proofs without specifying the defects, but refers the insured to the condition of the policy which defines what they must contain, with a notice that he insists upon an exact compliance with that condition, waives no right to urge the defects in such proofs. Kimball v. Hamilton Ins. Co., 8 Bosw. 503: Lycoming Co. Ins. Co. v. Updegraff, 40 Penn. St. 324. (5)" per cur."-" Ah Chew is a misnomer for a ChinaThe policy requiring the insured to furnish as partic

pay, contracting to supply a municipal corporation with water to extinguish fires, is not liable to a citizen for a breach of that contract whereby his property was burned; nor is it liable to the city in damages by reason of diminution of taxable property.Ferris v. Carson Water Company, p. 44. A statute prohibiting the sale of opium is constitutional. Chinese may lawfully be excluded from juries on the ground of alienage. State v. Ah Chew, p. 50. A statute granting a deduction from the term of sentence to convicts for good behavior, is void as to sentences imposed before the statute takes effect. -Ex parte Darling, p. 98. A statute authorizing an association to give concerts and distribute prizes by raffle for the support of the insane is unconstitutional as authorizing a lottery. -State v. Overton, p. 136. One may not divert a spring on his land to the injury of another to whom the water naturally comes through a creek by percolation from the spring. Strait v. Brown, p. 317. A Roman Catholic orphan asylum is a "sectarian" institution, although the Catholic children are taught the principles of the Catholic Church and the Protestant children are taught only the tenets common to all Christians. State v. Hallock, p. 385. A "teamster" is one who habitually drives a team or is engaged in the business of teaming.-Elder v. Williams, p. 416.

NOTES.

USTICE HAWKINS keeps

JUSTIC

a dog that goes

on Circuit with him, it seems, for the London Law Times says the jury at Cambridge "were kept waiting for half a day until Mr. Justice Hawkins and his dog arrived from London and had lunched at Trinity." The learned justice probably runs his court

man when he cannot have opium. See 16 Nev. 50.

The Albany Law Journal.

WE

ALBANY, SEPTEMBER 9, 1882.

CURRENT TOPICS.

who speak of Lord Camden's "specious harangue," and of Lord Macaulay's “groping in a fog, and not understanding the matter upon which he was speaking," and of the "ignorance and sophistry of those great men who unfortunately differ from Mr. Drone or Mr. Morgan."

The

The proceedings in Ireland against High-Sheriff Gray, for contempt of court, are certainly very extraordinary. The high-sheriff, being proprietor of a newspaper, published a statement that it was rumored that members of the jury in a certain case of public interest had been intoxicated in a public place pending the trial. This publication was not made until after the conclusion of the trial. This was a grave charge, and it would seem that the first business of the court would have been to investigate the charge, and if it summoned the maker of the charge before it, that it would be for the purpose of that investigation. But instead of this, the court summoned the sheriff before it, and without any hearing or investigation of any sort whatever, pronounced sentence against him for contempt of court. sentence, it is conceded on all hands, was grossly severe, and the manner of imposition was outrageously arbitrary, hasty and intemperate. But this is not so important as the inquiry, why should the sheriff have been deemed in contempt at all? It may be that he was in contempt under British law, but why should the law be so?. What he did may be a crime, but what is there in it in the nature of a contempt? If the charge was true it is certain that the publication subserved the ends of public justice. Even if it was not true the publication should not be punished at all, unless it was clear that it was made from improper motives. It will be noticed that the charge was very different from one merely impugning the motives or honesty of the jurors; it charged immoral and indecent conduct in a public place. We should say that an editor, who was credibly informed of such conduct and refused to give publicity to it, would be more blamable than one who should publish it. A correspondent of the Canada Legal News very vigorously remarks: "It is no new idea of Mr. Justice Lawson to punish crimes in Ireland as contempts of court. Starting from some foolish maunderings of Chief Justice Wilmot, found in an old trunk after his death, and published by the uncritical piety of his children amongst his opinions, the judges in Ireland conceived the idea of converting every crime into a constructive contempt of court. Mr. Gray was guilty of libel,—it appears, a very gross libel, untruthful and highly injurious to persons performing a public duty of no ordinary dfficulty. But it was no more a contempt of court than Macaulay's Chapter on Jeffries and the Bloody Assizes. One can easily conceive this prerogative being pushed so far as to forbid or pun

E have read, with a great deal of pleasure, "Copyright in Books, an inquiry into its origin, and an account of the present state of the law in Canada," a lecture before the law school of Bishop's College, Sherbrooke, P. Q., by S. E. Dawson. This is a learned, and very witty and acute production. The author does not believe in the author's right of perpetual monopoly of his works. Herein he thinks with Lord Macaulay, Lord Camden, Napoleon and others, and differently from Mr. Morgan and Mr. Drone. Mr. Dawson says: "The law has always made a distinction between literary property and other property, and in spite of all that has been written this distinction is both necessary and just." He adverts to the fact that the author is always a borrower, and cites Chaucer, Shakespeare and Milton. "If copyright and patent right were perpetual," he says, "the whole intellectual and physical world would be parcelled out by inheritance into small holdings, interlaced so that the courts and judges would be occupied forever in interminable discussions upon intangible things." He makes a little gentle fun of Mr. Drone for arguing in favor of the perpetuity of literary property from the fact that Isaac vindicated his claim to a well that his father Abraham had dug a hundred years before, saying that "Abraham could no more have acquired a title by digging a well on another man's land than he could by building a house upon another man's land now," and that "such a priori writers are really would-be legislators, drawing the law from their own inner consciousness." He points out that the benefit of the works of authors usually inures to publishers and capitalists, "who would like them to go down from generation to generation." He also says that "many great works might be suppressed as opinion changed from age to age, and a Puritan heir might suppress the works of Shakespeare, and a Jacobite lock up or expurge the works of Milton." He quotes Napoleon I, who said: "A literary property is an incorporeal property, which being in the course of time and by the pro- | cess of inheritance subdivided among a multitude of individuals, would end so as to exist for nobody; for how could a great number of proprietors, often separated from each other and scarcely knowing each other, combine and reprint the works of their common author? Nevertheless, if they did not do so, and they alone had the right to publish, the best works would insensibly disappear from circulation." We coincide with Mr. Dawson and his great author-ish writings intended to thwart justice in a pending ities, and think that. Macaulay demolished the pretensions of the advocates for perpetuity of authorial right. Mr. Dawson pays a high and deserved compliment to Mr. Drone's work on Copyright; but he administers a mild rebuke to the arrogance of those VOL. 26- No. 11.

* **

case; but after the trial the proceedings surely must be public property on the same conditions as any other fact of a public character. If they are not so after the trial, at what period is the contempt prescribed?"

a settled and common form, as nearly equivalent to the usual one as can be devised, which he shall recognize as binding his conscience. Judge Thomas objects to the public exposure of a man's unbelief, and the consequent "distrust and obloquy." The exposure may be "disagreeable," as he insists, but we see no help for that. We do not think that any man should be permitted to pass for a christian if he is not, nor that he should be ashamed of not be

says that the exaction of oaths leads to perjury he is technically right, inasmuch as there can be no perjury without oaths; but it is not true that they lead to falsehood, for it is not the exaction of the oath, but the determination of the witness to lie, that induces falsehood, and this determination does not spring from the oath.

An amusing definition reaches us from the Pacific. In People v. Gray, California Supreme Court, July 28, 1882, 9 Pac. C. L. J. 778, a capital case, the jury had in their room on tap and in daily use, three or four kegs of beer, and also consumed two demijohns of wine; and "two bottles of whisky at each meal, including breakfast;" this was held not

to be "suitable and sufficient food," and the consumption thereof was held to be improper conduct calling for the setting aside of the conviction, although it did not appear that any juryman was thereby unfitted for the discharge of his duty. One judge mildly observed, "it is sufficiently clear that some of them might quite naturally have been more or less under the influence of liquor while deliberatAnother gently says, "there is strong reason to suspect this of one of the jurors." The case showed that all the drinking was done in about eight days. How the jury managed to smuggle all this liquor into their room and into them

In the current number of the North American Review, Judge Edward A. Thomas writes in favor of abolishing oaths in legal proceedings, on the ground that it is futile and unjust to require them. He objects to them in theory because they imply that God punishes perjury more severely than falsehood, and in practice because they do not restrain perjury, and exclude those who do not believe in a future state of rewards and punishments from testifying. He also raises the minor practical objectioning what he thinks he ought not to be. When he that men recognizing various forms of oaths, it is sometimes inconvenient and unseemly to introduce the form which the particular witness considers binding on his conscience as for example, the finger or toe of a Brahmin for a Hindoo to kiss, or a cow for a Parsee to hold by the tail, or a saucer for a Chinaman to break, or a cock for him to behead. He also objects to the inconsistency of the law in varying and adapting the form to the same conscience, according to circumstances as political oaths more or less "iron-clad"—and to the carelessness and irreverence with which oaths are generally administered. The last objections are out of the question as to the morality and policy of requiring oaths. The idea of this essay is not new; it was strongly urged by Jeremy Bentham, as the essayist points out. It seems to us that the truth as usual lies between the extremes. It would be injudicious to dispense with oaths; it is unjust to exclude a man from testifying because he does not believe in a future state of rewards and punishments. The form, while it does not wholly prevent perjury, does something toward it; it restrains some; it makes many reflective and careful. It is no hardship upon any one who is will-ing on the verdict." ing to take it. For the considerable class who are unwilling to take it, allowance should be made. Allowance is made for some of them, such as Quakers. But there are many good men who do not believe in any God or future life, or believe in them in a different form from that generally accepted by Christians. These men should not be shut out and stigmatized. We know of no reason why Col. Ingersoll should not be as competent and as credible a witness as Henry Ward Beecher; Ralph Waldo Emerson, it would seem, should have been as respectable a witness as Dr. Hall; Professor Tyndall as Dr. McCosh. But there should be a form of some sort to impose solemnity and dignity upon the proceeding; to impress the witness with the importance and responsibility of his position; and to mark his public acknowledgment of the sanction and the consequences. Men who profess to believe in God and a future state of rewards and punishments should be sworn by all the sanctions which their profession implies; others should at least be made publicly to acknowledge the solemnity of the occasion and solemnly to pledge themselves to tell the truth. We hope the day will never come when a man can give testimony in the same way he would tell the story to another out of court. We hate, as deeply as any body, the making of a man's religious belief the test of his competency as a witness, but we see no reason why an "unbeliever" should be excused from

selves does not appear.

NOTES OF CASES.

HE recent English case of Allen v. Richards shows

to pirate a

motion was made by the plaintiff, a vendor and manufacturer of mineral and aerated waters, for an interim injunction to restrain the defendant, a keeper of a beer-shop, from selling ginger beer not manufactured by the plaintiff, in bottles stamped or marked with the plaintiff's name or registered trade-mark. The bottles in question were bought at second hand by the defendant, who filled them with his own ginger beer and labelled them with an adhesive label bearing his own name. The defendant contended that the plaintiff had parted with the whole property in the bottles and also denied any fraudulent user. The plaintiff relied on the decision of Malins, V. C., in a similar case, Rose v. Loftus, 47 L. J. Ch. 576, 27 W. R. Dig. 242. North, J., said that if the defendant chose to buy second-hand bottles bearing a trade name and filled them with the same liquid as the owner of the name was in the habit of filling them with, the defendant