and other goods, and was cleaning and doing other work preliminary to living there in person. Nothing apparently was wanting to complete personal possession, except that she lodged and took her meals at her father's, a few rods off. Those facts were not conclusive against her occupancy. It could not be justly claimed, we think, that if a family, for the purposes of cleaning and interior decoration, were thus to sleep and take meals at a neighbor's, while busy in the house in working hours, they would in doing so vacate the house. But the case of such a family would be analogous to that of the party insured in this case. Cases are cited and relied upon on the part of the defense which we think are distinguishable on their facts. Wustum v. City Fire Ins. Co., 15 Wis. 138, was the case of a policy of insurance, which by its terms required unoccupied property to be insured as such. The building insured was not occupied, but was not insured as unoccupied, and the policy was held inoperative for that reason. In Ashworth v. Builders', etc., Ins. Co., 112 Mass. 422, it was decided that merely using a house for the purpose of taking meals in it was not occupancy within the meaning of an insurance policy. "Occupancy," it was said, "implies an actual use of the house as a dwelling-place." "The insurer has a right, by the terms of the policy, to the care and supervision which is involved in such an occupancy. This we think is true; but as we have seen, it does not follow that the presence of the occupant in the building should be continuous and unintercepted. The necessity for temporary absences on business, or for family convenience or pleasure, is recognized, and the insured is understood to contemplate an assent to them. In Corrigan v. Connecticut Fire Ins. Co., 122 Mass. 208, the question was whether a tenant who had occupied a house, but had moved with his family out of it and was taking his meals elsewhere, could be said to be occupying it merely because some of his furniture remained in it, and he had not surrendered the key? It was very properly held he could uot. Herrman v. Adriatic Fire Ins. Co., 85 N. Y. 162, was still more unlike the present case, and calls for no comment. Sup. Ct. Mich., Nov. 19, 1884. Shackelton v. Sun Fire Office. Opinion by Cooley, C. J. (21 N. W. Rep. 343.)

FIRE-ALIENATION OF PROPERTY.-A policy of fire insurance provided that if the building was sold or transferred, the policy would be rendered void, unless ratified to the assignee thereof by the written consent thereon, signed by the president and secretary, or any two directors of the company. Held, that a sale of the buildings without a transfer of the policy, rendered the policy void. Sup. Jud. Ct., Maine. Patrons' Androscoggin Mut. Fire Ins. Co. Opinion by Libbey, J. (76 Me. 298.) [See 29 Am. Rep. 180; 27 id. 582; 28 Eng. Rep. 162; 30 Alb. L. J. 457.-ED.]

A

OUR LONDON LETTER.

Gould v.

WEEK ago the bar was in a state of absolute ferment. There was every indication of a possible change of government. And even when the ministry saved defeat by the narrowest of majorities, there was much talk upon the prospect that the Cabinet might resign. Even at the present moment when the intelligible desire to hold on to office till the last gasp has been plainly expressed, no one knows what a day may bring forth. It is possible that in spite of the wishes of their colleagues two of the most prominent members of the government may secede, and if Sir William Harcourt and Mr. Chamberlain do secede it can hardly be that the ministers will continue to hold office. It is probably unnecessary to state that a pros

pect of a change of government throws the bar into a wild state of excitement, because it means a shuffling of the cards and a partial redistribution of business. Of a truth the advent of a conservative ministry would produce changes more than usually great in the personnel of the law officers. In plain words, no one knows who the fortunate men would be. In all prob. ability the master of the rolls would be elevated to the woolsack, and Mr. Edward Clarke, Q. C., who has distinguished himself in the House of Commons of late, would become a law officer of the crown. But his health is delicate, and it is doubtful whether he would be able to sustain for any length of time the wear and tear of official life. After him and Sir Hardinge Gifford all is mystery. There is hardly a single barrister who has distinguished himself as a conservative, in the House of Commons, and who is also well known for forensic ability. This perhaps may account for the fact that the conservatism which has apparently been lying dormant in many leading juniors is beginning to show signs of awakening.

Of all the changes which the advent of a conservative ministry must produce for barristers, none would be more welcome than the new lord chancellor. Lord Selborne has been a failure, not because he has made many mistakes, but because he has given himself no opportunity of making any. It is quite an event for him to sit in the Court of Appeal, where his predeces. sors sat frequently. When he does sit, the society papers, the bugbear of all great men, or perhaps I should say of all men in great places, hope sarcastically "that he is not fatigued by the unwonted exertion." Yet it cannot be said that the duties of the office are more laborious now than they used to be in former times. Sometimes it is suggested that the lord chancellor has enough to do in drafting bills for Parliament, but the suggestion is obviously based upon either a low estimate of his lordship's power of work, or a mistaken idea of the nature of the work which he in fact performs. The lord chancellor does not draft bills, he settles them after they have been drafted by his subordinates, and they in their turn are rewarded by County Court judgeships, like Mr. Chalmers, or become standing counsel to the Board of Trade in bankruptcy cases. Therefore there is no sufficient reason why a lord chancellor should not make his mark in the history of the curious development of case-law as lord chancellors were wont to do in times of historical celebrity; but of Lord Selborne it can only be said that his foot-prints are small, and the impressions thereof are light. The place of the lord chancellor as the presiding genius of English law has been lost-perhaps not for ever-but certain it is that the late Sir George Jessel, to say nothing of the present accomplished master of the rolls, will be remembered when the name of Lord Selborne has long been forgotten. I should add that the present lord chancellor has incurred much unpopularity by his reluctance-up to the present moment well sustained-to add to the number of existing queen's counsel.

The Durham divorce case is attracting an infinity of notice. Imprimis, it is a case of first impression; secundo, the parties engaged are of the highest rank. The judgment is not pronounced at the moment of writing, nor will it largely affect the public feeling in the matter. Lord Durham seeks for a declaration that his wife was never married to him, on the ground that when she went through the ceremony of marriage with him she was, in plain words, mad. Whether the allegation be true or not nobody knows, and there are two diametrically opposite classes of opinions. But upon one point there is universal unanimity. Lady Durham is now hopelessly and incurably mad, and every body agrees that when either party to a marriage is ascertained to be in this deplorable condition, the

same party ought, pro facto, to be freed from the bonds of marriage. A somewhat scandalous side incident of the trial has had the effect of throwing some light upon the rights of the public to enter the law courts. It is certainly the fact that since the courts were transplanted to the Strand, there has been a great increase of difficulty in this respect. More spectators have come to the fore, and ingress is barred for those who have business, and for those who have not, by a band of absolutely irresponsible officials. To these gentry, Sir James Hannen has administered a severe blow over the knuckles, because by barring the entry of a certain eccentric student at law, who is a bad imitation of Oscar Wilde, they were the cause of a most unseemly uproar.

It is with the greatest pleasure that I am able to announce that the subject of codification is again to the fore, and that its advocates are in no mood for trifling. The draft Criminal Code has hung fire so long that people had begun to believe that the law officers had no heart in the projected reform; but I am informed and verily believe that the reason of delay is to be found in the imperfections of the draft. The presiding genius of the drafting was Mr. Justice Stephen whose reputation as a criminal lawyer is waning, whereas for his knowledge of common law he has never been famous. On dit that he has only thrice since his elevation to the bench been confirmed by the Court of Appeal, and your correspondent in person has, in the course of the present year, heard him lay down that it was not negligence in a sheriff's officer to sit in the front parlour of an inn at his ease while the furniture upon which he has levied execution is being carried off at the rear. In the same case he ruled that where an officer has been guilty of a breach of statutory duty the onus of proving damages lies upon the plaintiff. On the very same day he characterized as "rubbish" a statement of law of which he was com. pelled to admit the precision later. Therefore I believe that a good Criminal Code would have been converted into law long ago. Certaiuly the commercial | classes will not wait loug for a commercial Code. They are agitating vigorously, and barristers, having little to do, are helping them by showing that the difficulty of the task is not invincible. With a view to elucidate the problem, one of my acquaintance, who has studied much under German professors, is publishing au historical commentary on both the criminal and commercial Codes of Germany; I have just received a prospectus of a similar book upon Freuch lines; there is lying before me a copy of Marine Insurance, codified ten years ago, and altogether I am looking forward to the time when the interest of my law library shall be antiquarian merely.

LONDON March 4, 1885.

CORRESPONDENCE.

AGISTER'S WARRANTY OF WHOLESOMENESS OF PASTURAGE.

Editor of the Albany Law Journal:

I get much valuable learning from your journal. There is one question to which I have not noticed any reference, and that is the liability and responsibility of agisters of cattle. The general rule seems to be, that agisters are not insurers, or in the language of Judge Dwight, in the case I will refer to:

"A pasturer is not an insurer against any kind of loss, but he only engages to exercise the care of a prudent person in respect to the property intrusted to him."

The case is this: The plaintiff was the owner of cattle, and hired them pastured in the defendant's

pasture, at a price agreed upon. The cattle were turned into defendant's pasture in the month of August. From May to that time, Texas cattle, direct from Texas, had been depastured in the same field. It is an established fact, that when native cattle are turned into a pasture where Texas cattle have been pastured, they will take the Texas cattle fever, which generally proves fatal. The emissions or droppings from the Texas cattle infect or poison the grass, from which the native cattle become infected. The plaintiff turned eighteen head into defendant's pasture, and they all died of Texas fever. There was evidence on the trial, which tended to prove that the defendant did not know that Texas cattle would poison the pasture. Judge Dwight charged, on this point, that "the jury must find, to authorize the plaintiff to recover, that the defendant knew that the effect of pasturing Texas cattle was to render the field dangerous for pasturing northern cattle thereafter."

Under the charge, the verdict was for the defendant.

My contention is, that the defendant in offering his field to grazers warranted, among other things, that the grass was wholesome, and not contaminated with any foreign substance that would kill the cattle grazing thereon. I fail to find any authorities bearing ou this precise point. I found a case which held that the vendor of hay was liable in damages to the vendee, if the hay was unwholesome and not fit for food for horses, although there was no express warranty as to the condition of the hay. I eutered the case in my pocket diary, and subsequently lost it, and after diligent search, have been unable to find it again or my diary.

It occurred to me, that in your law researches, you may have seen the same case, and can refer me to it, if not that you could put me on a line of cases that would throw light on the question involved in the action.

In 1 Bell Com., p. 458, I find this under the head of Agister of Cattle:

"The place of custody must be secure against ordinary accidents incident to the property to be preserved. The "grazing field must be properly secured against escape, and free from pit-falls and dangers which may lame or injure them. The livery stable must be wind and water tight, so as not to expose the horse to cold or wetness, besides the food being wholesome and the hostler fit for his undertaking. A failure in these respects will expose the owner of the field, the stable or other place of custody, to a claim of damage, thus occasioned by his fault."

Why should not the grazing field contain wholesome grass, and be free from poisons that sicken or kill cattle?

In Part II, Professor Bliss treats two of the most momentous topics of our time: 'Sovereignty in the Federal States" and "Secession of a member of the federation." It is but recently that we have heard Professor Dicey on the former subject, and while the impression is firm we are glad to have Professor Bliss' dissertation, which should be as widely read. The striking observation of the latter writer as to the mischief in affirming that the right of secession was adjudicated by the late war, should have some influence on current thought. If the question was settled by one war, it may be unsettled by another; either the question exists independently of all war, or it does not exist at all. These are very important truths, and we commend them to those of our readers who think on this subject.

We may add that this little volume is a fine specimen of the printer's art. Published by Little, Brown & Co., Boston.

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, March 24, 1885:

Judgment affirmed with costs-Thomas Gauley, administrator, respondent, v. Troy City National Bank, appellant; Fannie V. Russell, respondent, v. Village of Canastota, appellant; Philip Hayes, appellant, v. Bernard Reilly, sheriff, etc., respondent; Nellie Near, administratrix, v. Delaware and Hudson Railroad Company, appellant; Owen Gilmore, administrator, respondent, v. Long Island Railroad Company, appellant; Addie M. Smith, repondent, v. Lewis H. Cramer, receiver, etc., appellant.Appeal dismissedPeople, appellants, v. Austin Persons, respondent.Judgment reversed, new trial granted, costs to abide the event-David P. Morehouse, receiver, respondent, V. Second National Bank of Oswego, appellant.Order affirmed without costs-People v. Third Avenue Savings Bank.-Order appointing commissioners affirmed with costs-In re Petition of N. Y. L. and W. R. Co., lands of Scheu and others.-Appeal from order affirming report of commissioners dismissed-In the Petition of N. Y. L. & W.R. Co. for appointment of Scheu et al.- -Order affirmed with costs-Jos. Hillenbrand, ex'r, v. Herman B. Lanfer, et al.; Wm. Smyth, acting supt., v. Edward Rowe and others; George B. Abbott, public administrator, respondent, v. John S. Curren et al., appellants.- -Appeal dismissed with costs-Frances L. Carpenter, appellant, v. Wm. M. Adams et al., respondents.- -Motion for reargument denied, with costs-Robert T. Smart, respondent, v. Andrew J. Smart, appellant; John A. Lambert, executor, respondent, v. Horace Craft and others, appellants; Frank J. Mills and others, respondents, v. Holmes Odell and others, appellants; Margaret Moore, appellant, v. City of Albany, respondent; In re Petition of Union Stock Yard, etc., Company to vacate.

-Motion for reargument. Former order of the court in this case amended so as to read as follows: Order of the General Term reversed, and all that portion of the judgment of the Special Term relating to a recovery by the plaintiff from Mary A. Nostrand of rents and profits of land, and to the accounting by her for such rents and profits stricken out, and that judgment as thus modified, affirmed without costs of appeal to General Term, or to this court, or to either party; and further ordered that the remittitur from this court may be made to conform to this order-Benj. Wright, receiver, appellant, v. Elbert Nostrand and others, respondents.- Motion to advance cause. Granted without costs-People ex rel. Cayuga Indians, etc., appellants, v. Commissioners of the Land Office, respondents. Granted so far as to allow counsel in the cases of McCormick and Taylor to intervene and submit points on the argument of No. 188, without costs-In re Petition of Ruth M. McCormick and another to intervene. -Motion to advance cause. Denied with costs-John C. Spencer, appellant, v. John Merchant, respondent.- -Motion to dismiss appeal denied, with $10 costs-Fred. Zoeller, appellant, v. Julia A. Riley, administratrix, respondent.-Motion to dismiss appeal denied, without costs-Wm. F. G. Shanks, respondent, v. Josh Hart, appellant.-Denied, with costs-In re Application of Union Ferry Company, etc., for an order awarding costs.- -Motion to stand over until notice has been given to the attorneys in this case and in the case of Spray v. HegemanIn re Application of Moore v. Hegeman to recall remittitur.

NOTES.

The Albany Argus says of the Hon. Amasa J. Parker of this city: "While living at Delhi, Delaware county, he was elected to the Assembly and served in the Legislature of 1834. So far as is known, he is the sole survivor of that house. Of the Senate of that year, Hon. Henry A. Foster, of Rome, is the only man now living. In 1836, he was elected to the house of representatives from the then Twentieth District, serving one term. Of the forty-three gentlemen who represented the thirty-three districts of the State, for the whole or portions of the three sessions of that Congress besides Judge Parker, the only survivors are Judges Henry A. Foster; Hiram Gray, of Elmira; Arphaxed Loomis, of Little Falls; and Richard P. Marvin, of Jamestown. March 6, 1844, he was ap pointed by Gov. Bouck one of the Circuit judges of the State, and served until the office was abolished in 1847. The same spring he removed to this city, and of the gentlemen whom he found in practice at the bar here, only Hon. Charles M. Jenkins and Hon. Andrew J. Colvin remain in the legal harness. With the exception of Judge Hiram Gray, who was appointed a Circuit judge, January 13, 1846, no other jurist who wore its ermine is now living. June 7, 1847, he was elected a justice of the Supreme Court for the Third judicial district. His colleagues on the bench of the District were Judges Wm. B. Wright, Ira Harris and Malbone Watson. They have all gone to their rewards, and of the thirty-two gentlemen who were chosen that year to the bench of the new Supreme Court, in the eight judicial districts, the survivors are, Judge Amasa J. Parker, of the Third; Judge Hiram Gray, of the Sixth; and Judge Richard P. Marvin, of the Eighth. Judge Parker, on the allotment, drew the full term of eight years, and served with distinction on the bench until December 31, 1855. After an absence of twenty-one years, he took his place at the bar, and commanding a place in the front rank there, he has held it till the present time."

The Albany Law Journal.

ALBANY, APRIL 4, 1885.

CURRENT TOPICS.

THE John Norton Pomeroy, who

HE legal profession have suffered a great loss in

died last month at San Francisco. He was well

known as a legal author, and as the editor of the West Coast Reporter. His last and most important work, on Equity Jurisprudence, is that by which he will be chiefly remembered, and it is an exceedingly meritorious treatise, quite worthy to stand by the side of, and to supplement Story's great treatise. We infer that Mr. Pomeroy's death was unexpected, perhaps due in some measure to overwork. At all events, whether his life's work was complete or not, there can be but one opinion as to his talents and the usefulness of his career, and there will be unanimous regret at his death.

The Columbia Jurist, the organ of the students of the Columbia Law School, says: "We acknowledge the courtesy of Assemblyman S. W. Johnson in sending us a copy of the proposed Civil Code, now the subject of such wide discussion. We have neither time, space, nor ability (at present) to attempt the expression of an opinion on it; but when we learned from the heading that it had been read twice, we did sympathize with the Assembly." We have heard all sorts of objections to the Code, but we never before heard it accused of being too long. Its opponents generally have charged it with being too short. That is the opinion, we believe, of the learned head of the Law School, Professor Dwight. But it is not so long as the learned professor's lectures on any single law topic, we take it, and it certainly is not much if any longer than a very learned printed opinion on an interlocutory question in a reference tried before him, which he did us the honor recently to send us. our young friends, the students aforesaid, should find the Code adopted, they would probably be able to learn the bare principles of the common law in less than two years, which is the time now consumed in stating them at that excellent law school.

If

"The Jealous Mistress," is the title of an address delivered before the Bar Association of Tennessee last July, by Mr. James O. Pierce, of Memphis. At first glance, we supposed the pamphlet was an account of one of those trials in which emotional insanity is the stock defense, but on examination we find that “the jealous mistress" is the law. Mr. Pierce says: "The jealousy of this mistress is fourfold. 1. She is jealous of our time, our talents, our energies, our accomplishments. There can be no divided allegiance; all must be hers pre-eminently. Literature may attract to tasks less burdensome, and offer prizes within easier reach; politics VOL. 31-No. 14.

may present opportunities for more extensive wrangling, or for more frequent posing in studied attitudes before the public; mercantile pursuits or speculations may allure with glowing prospects of accumulations of the world's wealth, an easy life, and an indolent old age; but the true lawyer will put behind him all these temptations, remembering that he has chosen a jealous mistress, whose rewards have their own peculiar value, and are reserved for those only who serve her in singleness of heart and purpose. 2. She is jealous of the quality of our service. She insists upon the best of which we may, by unceasing effort, make ourselves capable. The charms and graces of literature, the power of pure and vigorous rhetoric, the demonstrative and resistless forces of logic, the full rich fruitage of the cultured intellect, and the potent influences of warm and sympathetic affections, all these she would have employed in and devoted to her works. * * * 3. Our mistress is jealous, too, of the most minute details of our conduct while in her service; jealous for her own sake and on her own account,

no less than our own. From a Bar like this of Tennessee, noted for its high standard of fraternal courtesy, it is easy to win words of approval for every sentiment which inculcates consideration for the rights and feelings of the brother lawyer. It should be easy, too, to enlist the kind and attentive regard of such a Bar in behalf of the interests and the welfare of jurisprudence herself. It should be accepted as an axiom, and adopted as a rule of conduct, by every servant of the jealous mistress, that in every act and deed in the practice of his profession, he will carefully conserve and protect the doctrines of jurisprudence for their own sake. Because of the possible injury to the law herself, no infraction of those rules should ever be consciously committed, or even indulgently tolerated. One instance may here be noticed, which will illustrate at once the demands of the jealous mistress, and the too common disregard of them." (The habit of leading witnesses is here dwelt upon and condemned.) "4. Finally, she is jealous of the advantages and the responsibilities which are the birthright of the Bar Association. The exactions of her jealousy are, as in the case of individuals, ever commensurate with our opportunities. If by such a union lawyers can secure greater ability for her service, it is the full measure of this enlarged ability which she demands. The broader wisdom which waits upon a multitude of counsellors, the deeper insight into the principles of jurisprudence which conference affords, the multiplied power which the many, when combined, can exert, of all these is the mistress jealous. We shall satisfy her only by the most strenuous efforts to do all that wit and wisdom can jointly devise. For us as an association does our birth-right prescribe the motto, Noblesse oblige? Is the reproach a just one, brothers, that the Bar Association as an institution is a failure? Is it true that it meets annually, listens to well-written papers and wise reports, passes good resolutions, partakes of a banquet, where it applauds witty responses to