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loss occurs, and is retained and appropriated by the company and the policy delivered, it will be a waiver of the terms of the policy, and the company cannot retain the premium and refuse to pay the loss. Viele v. Ins. Co., 26 Iowa, 10; Baldwin v. Chouteau Ins. Co., 56 Mo. 151; Joliffe v. Ins. Co., 39 Wis. 111; Ins. Co. v. Schollenberger, 44 Penn. St. 259; Ins Co. v. Bowen, 40 Mich. 147; Bowman v. Ins. Co., 59 N. Y. 521; Ins. Co. v. Ins. Co., 20 Barb. 468; Wood v. Ins. Co., 32 N. Y. 619; Hodsdon v. Ins. Co., 97 Mass. 144; Boehen v. Ins. Co., 35 N. Y. 131; Sheldon v. Ins. Co., 26 id. 460; Young v. Ins. Co., 45 Iowa, 377; Smith v. Ins. Co., 13 N. W. Rep. 355; Ins. Co. v. McLanathan, 11 Kans. 533; Mershon v. Ins. Co., 34 Iowa, 87; Keim v. Ins. Co., 42 Mo. 38. Sup. Ct. Neb., Aug. 6, 1884. Schoenemam v. Western, etc., Ins. Co. Opinion by Maxwell, J. (20 N. W. Rep. 284.)

FINANCIAL LAW.

NEGOTIABLE INSTRUMENT-CHECK HOLDER CANNOT SUE BANK.-The holder of a check on a bank cannot sue the bank for refusal to pay it on presentation, though the drawer have sufficient on deposit to meet it. The question is very fairly discussed in 2 Dan.Neg. Inst., § 10, T 1635; in Morse Bank. 459; and 2 Pars. N. & B. 61, 62. A few of the later cases which refer to others state the rule and the reasons for it, which in my judgment should be adopted in this State as governing this subject. Bank of Republic v. Millard, 10 Wall. 152, expressed the unanimous opinion of the Supreme Court of the United States. They say that on principle there can be no foundation for an action on the part of the holder of a check, unless there is a privity of contract between him and the bank, and asks how can there be such privity when the bank owes no duty and is under no obligation to the holder? Quoting from a leading case (Chapman v. White, 6 N. Y. 417), they further say that the right of the depositor is a chose in action, and his check does not transfer the debt or give a lien upon it to a third person without the assent of the depositary. This is said to be a well established principle of law, and sustained by the English and American authorities. In Attorney-General v. Continental Life Ins. Co., 71 N. Y., 325, the entire court say that Lunt v. Bank of North America, 49 Barb. 221, declares the rule accurately, that checks drawn in the ordinary form, not describing any particular fund, or using any words of transfer of the whole, or any part of any account standing to the credit of the drawer, but containing only the usual request, are of the same legal effect as inland bills of exchange, and do not amount to an assignment of the funds of the drawer in the bank. This, they say, is the settled law of that State, as it has been repeatedly affirmed in that court. In Etna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 86, Allen, J., in giving the opinion of the court, says the cases all agree that notwithstanding the agreement which bankers make with their customers to pay them checks to the amount standing to their credit, a check holder can take no benefit from this agreement, and that the check does not operate as a transfer or assignment of any part of the debt, or create a lien at law or in equity. Carr v. Nat. Security Bank, 107 Mass. 45, after discussing the question, concludes that the bankers' promise to the drawee to honor his checks does not render them, while still liable to account with him for the amount of any check as part of his general balance, liable to an action of contract by the holder also unless they have made a direct promise to the latter by accepting the check when presented or otherwise. This view, they say, is in accordance with the law as

established in England, in New York, and in Pennsylvania, with the opinions theretofore expressed by that court, and with the recent unanimous decision of the Supreme Court of the United States. Bank of the Republic v. Millard, supra. To the same effect is Lloyd v. McCaffrey, 46 Penn. St. 410, 414; Moses v. Franklin Bank, 34 Md. 580. Two recent English cases have considered the right of a holder of a check against bankers. In Hopkinson v. Forster, L. R., 19 Eq. 74, Sir George Jessel, master of the rolls, says a check is clearly not an assignment of money in the hands of a banker; it is a bill of exchange payable at a banker's. The banker is bound by his contract with a customer to honor the check when he has sufficient assets in his hands; if he does not fulfill his contract he is liable to an action by the drawer, in which heavy damages may be recovered if the drawer's credit has been injured. He also says: "I do not understand the expressions attributed to Mr. Justice Byles, 8 C. B. (N. S.) 372, but I am quite sure that learned judge never meant to lay down that a banker who dishonors a check is liable to a suit in equity by the holder." See also Schroeder v. Central Bank of London, 34 L. T. (N. S.) 735. Sup. Ct. N. J., June Term, 1884. Creveling v. Bloomsbury Nat. Bank. Opinion by Scudder, J. [46 N. J. L. 255. See 27 Alb. L. J. 19.]

NEW YORK STATE BAR ASSOCIATION.

OFFICE OF THE SECRETARY OF THE EXECUTIVE COMMITTEE, No. 79 CHAPEL STREET, ALBANY, N. Y., January 3, 1885.

To the Executive Committee:

GENTLEMEN-The next annual meeting of this committee will be held at my office at 7:30 P. M., January 19, 1885. A full attendance is requested. Respectfully yours,

ONE

CHARLES J. BUCHANAN,

NOTES.

Secretary.

NE of our own city law publishers advertises: "$3 (less than half of a Justice's Court fee) will show you 100 winning points and 100 lawyers." This is ambiguous. Does it refer to "poker"? And can a player always get in for $3? And do the lawyers always win? We ask for information.In a recent headnote--prepared by one of the judges, we believe-we find the following: "Non in haec foedira veni." That proof-reader evidently "had little Latin."—It is gratifying to learn that it is not ground for a new trial for one to say in presence of some of the jury that "the prisoner is in a tight place."-In Packer v. Noble, 103 Penn. St. 188, Paxson, J., commences an opinion of forty-six pages as follows: "It is now over twentysix years since this proceeding was commenced in the court below. During that time the three principal parties and several of the eminent counsel concerned in the cause have been removed by death. The paperbooks, Master's report, the arguments before the Master, the testimony and exhibits, occupy twelve printed volumes. It was stated in the argument at bar that the expenses of the litigation when it reached this court had amounted to over $1,000,000. It involves many millions more. I mention these circumstances merely by way of apology for consuming nearly the whole of my summer vacation with the examination and study of the case.'

"

The Albany Law Journal.

ALBANY, JANUARY 24, 1885.

CURRENT TOPICS.

CODIFICATION goes hard in Ohio as well as in

The Weekly Law Bulletin and Ohio Law Journal says: "At the last meeting of the State Bar Association a subject was touched for the first time, which we predict is destined to occupy a great part of the time and attention of the Association at future meetings. Judge Green,

is an echo about the Evening Post, which makes us strongly suspect that its articles are sometimes dictated by prejudice rather than by reason. It but lately claimed for the City Bar Association the dubious honor of defeating Mr. Field's Civil Code. We do not understand that the special committee against the Code really represents the voice of the City Bar Association, for its report against the Code was not adopted by the association as a whole. Nor was the argument against the Code by Mr. Carter approved by the whole associatiou. There are persons indeed in the City Bar Association who differ radically from the special committee and who think Mr. Field's Code as nearly perfect as we are likely to get if we wait indefinitely. If the authorof Akron, introduced a resolution to refer the ity of the Evening Post is compared with the authorsubject of codification to the Committee on ity of Mr. Field upon questions of codification Judicial Administration and Reform of the Aswhich will intelligent people take? What has the sociation, for report at the next meeting. The Evening Post newspaper done which permits it to Association was obviously taken by surprise, assume to be an arbiter of the contest? We have and hardly any remarks were made on the subject, no proof of any training or special fitness in this reexcept by Mr. Wright, of Columbus, who expressed gard. The fact that it agrees with the obstructionthe opinion that what was wanted was not codifica-ists, in the City Bar Association, is evidence that tion, but more legal learning on the part of our lawyers. Opposition on the same ground as here made by Mr Wright was made against a code of civil practice in Ohio, when that subject was under consideration, by men of such prominence as Henry Stanbery, yet who would dispute to-day the wisdom of that measure? Most of the men heard to-day advocating a codification of our law are men most distinguished for ability and legal learning. We hope the Committee on Judicial Administration and Reform of the Association will take the subject under most earnest consideration, and whether they do so or not, we have no doubt that the subject will be brought up in some form or other at future meetings of the Association, and re ceive a great deal more attention than at the last meeting. Sooner or later codification will be carried through."

The New York Evening Post assumes an air of ponderous authority whenever it speaks of legal matters. Whether the mantle of its departed owners and editors has in fact descended on the congeries of nations who now edit that paper is much disputed. Whether it has or has not so descended, there is nothing so peculiarly omniscient about the

Post
as to make its utterances on codification more
weighty than those of other non-professional news-
papers. Yet there is a sort of Saturday Review
oracular tone about these utterances of its legal
editor which would be funny did they rise to the
dignity of a farce. Whenever Mr. Field's Code is
mentioned in the Post, that part of the inherited
mantle which conceals its legal editor shakes visi-
bly; there is an appearance of rage and an absence
of wisdom which detracts from its former dignity,
and assertion then takes the place of arguments in
the columns of the Post. What the connection of
the Evening Post and the special committee of the
City Bar Association is, we do not know, but there
VOL. 31-No. 4.

two can agree in the same fallacy; that is all. We very much mistake the temper of the people of this State and of the bar in and outside of the city of New York if they much longer suffer the personal spite of a few obstructionists in the City Bar Association to impede the contemplated reform. If the Evening Post will make a Code by itself we can then compare its merits with those which Mr. Field's possesses, but at present we suspect that the Evening Post is talking too much about what it little understands.

The recent decision of the United States Supreme Court that a railway company is liable to its locomotive engineers for injuries incurred by the negligence of the conductors, ante 8, is but slenderly supported by authority, and seems to us indefensible in principle. The rule seems to us extremely unreasonable and impolitic. In advance sheets of 76 Maine Reports, it is held that where a conductor ordered an employee to jump upon a moving construction car, and in obeying he grasped a stake insufficiently secured, and was injured, the company was not liable. We nearly agree with the court when it says: "The conductor's order to jump upon a moving train need not have been obeyed. The employee should decide the propriety of such an order for himself. ** ** * The doctrine of the law that defeats the present action does not seem harsh or inequitable. It is really adopted into the law from the common views of men and the common business of life. To sue a mechanic or a farmer because one man in his employment has accidentally injured another in the same employment, would be quite an unheard of thing." For "unheard of" read "unreasonable,' and we assent. We deprecate the modern tendency of legislation and adjudication to relax the generally received doctrine of the Farwell case, of which the new English Law Quarterly Review says that the

"

rules on this subject "have nowhere been so clearly had been, there would probably have been music in stated."

We sometimes find it a little difficult to get material for Current Topics, but we never found ourselves so hard pressed as one of our London contemporaries, who makes a paragraph of twenty lines about the cause and the remedy of a "cold draught" in one of the court rooms. We feel relieved to learn that "the window has now been closed."

the air.

A correspondent in another column objects to Mr. Fowler's use of certain words in discussing the question of Codification. It should be remembered that in a philosophical or scientific treatise words may properly be employed which would be out of place in a statute. Most of the words objected to may be found in common use in the newspapers. "Bi-cameral" seems to us an especially felicitous word, saving a tedious periphrasis. Our correspondent would probably prefer it to "two-chambered" or "double-barrelled." If we plane down our rhetoric to the comprehension of the most illiterate of our legislators we shall run the risk of dis gusting the intelligent.

The two most interesting cases of the present time the Mignonette and the Adans- Coleridge case - still keep up a subdued growling in the legal journals as well as in the newspapers. The spectator conjectures that the jury disagreed in the later Lotinga case because they did not want the judge to overrule their verdict. The Solicitors' Journal hereupon remarks: "The scandal of abortive trials is however becoming so serious that wild conjectures as to the cause may be excused, as we excuse the suggestion of the same journal that a strong judge would have kept the jury locked up until they did agree. The Lotinga case, and the Harrison-Pagerial points involved. In our judgment all interlocu

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divorce case each lasted a whole week with the same result, a divided jury. The terrible cost and annoyance inflicted upon suitors by such a result can hardly be present to the minds of the jurymen, or the minority would invariably submit their judgment to that of the majority. If trial by jury is not to become wholly discredited something will have to be done to prevent the recurrence of fruitless trials." In regard to the Mignonette case the Central Law Journal remarks: "Unless sortition were resorted to, the dictates of humanity required that the boy rather than the men should live. But the men, simply because they were the stronger, pounced upon the boy and sucked out his blood. For this they ought to have been hanged; for while the moral guilt may have been diminished by the extreme circumstances under which the crime was committed, the law is interested in upholding the safety of the weak against the rapacity of the strong, especially under circumstances so peculiarly dangerous to the weak." This goes rather further than we would follow, but we repeat that the punishment was much too light. Gibson's Law Notes remarks that the judgment "has completely smashed Lord Bacon's plank theory." So we think; but we think the sole occupant of the plank might lawfully fight off intruders in defense of his own safety.

The Central Law Journal is mistaken in supposing that Judge Davis undertook to punish Mr. Field for contempt in the Tweed case. Mr. Field was out of the country at the time, but on his return published a letter in this journal expressing his contempt for the conduct of Judge Davis, and inviting him to commit him. Of course the invitation was not accepted. We are only sorry that Mr. Field was not included among the contemptuous lawyers. If he

Our regular New York city letter, which we hope to make of interest to our readers, calls attention to the frequent appeals from petty orders in the First Department. The result is that business is impeded and valuable time taken up with the often immate

tory appeals not involving the point directly in issue should be prevented by some amendment to the Practice Code, the Court of Appeals having construed it so liberally as to tolerate all these interlocutory appeals. Every lawyer of dilatory proclivi ties now passes too much time in inventing motions and then taking appeals. The proclivity should be cured in the way suggested.

The meeting of the New York State Bar Association in this city on Tuesday last was very slenderly attended. In the absence of the president, Mr. Aaron J. Vanderpoel was chosen permanent chairman. The president's address was read. Governor Hill was elected president for the coming year. On motion of Mr. Field a committee of five is to be appointed to report whether the present delay and uncertainty in judicial administration in our State can be lessened, and if so, by what means. The prize for the best essay was awarded to Daniel H. Chamberlain, ex-governor of South Carolina. It is on Stare Decisis, and is a very able paper. Steps were taken to hold an adjourned meeting at Saratoga in August, with a view to making that time and place permanent, in the hope that the crowd, Congress water and races may draw together more than three dozen lawyers.

NOTES OF CASES.

N Norris v. Corkill, 32 Kans. 409, it was held that

spoken by his wife when he is not present or participating. The court said: "The rule of the common law makes the husband liable for the torts of his wife committed during coverture. The reason assigned for this liability is that the husband is enti

tled to the rents and profits of the wife's real estate during coverture, and to the absolute dominion over her personal property in possession. Another ground of this liability at common law sometimes given is that the wife by her marriage is entirely deprived of the use and disposal of her property, and can acquire none by her industry; that her person, labor and earnings belong unqualifiedly to the husband. Reeves Dom. Rel. 3; Tyler Infancy, § 233. Again, the husband by common law might give the wife moderate correction, for as he was to answer for her misbehavior, the law thought it reasonable to intrust him with this power of restraining her by domestic chastisement in the same moderation that a man is allowed to correct his apprentices or children, for whom the master or parent is also liable in some cases to answer. 1 Bl. Com. (Wendell's ed.) 444, 445. Under the provisions of our statute the reasons assigned for the liability of the husband for the torts of his wife no longer hold good, and therefore in our opinion under the changes made by the statute the liability no longer exists. It is a part of the common law that where the reason of the rule fails the rule fails with it. ** *Therefore it is not true under the existing statute that the wife by her marriage is deprived of the use and disposal of her property; nor is she prohibited from acquiring property by her own industry. It is not true under the statute that the personal property of the wife passes to the husband; nor is he entitled to the rents and profits of her real estate during coverture; nor has he any dominion over her personal property, her labor, or her earnings. If she so desires they are unqualifiedly her own, and he cannot interfere with them. Again, in this State the common-law power of correction of the wife by the husband is no longer tolerated. Under the common law the married woman's legal existence was almost entirely ignored. She was sunk into almost absolute nonentity, and rested in almost total disability; but all of this has been changed by the statute, and to-day in our State her brain and hands and tongue are her own, and she should alone be responsible for slanders uttered by herself. Our conclusion is that the provisions of our statute change the common-law rule, and thereby discharge the husband from liability for the torts of the wife committed when he is not present and with which he has no connection. In

this State the wife stands upon an equality in all respects with her husband. She is alone responsible for her contracts, and should be alone responsible for her words and her acts." As we read the Kansas statute, it does not essentially differ from our married women's acts, and yet the contrary of this doctrine was held in Tait v. Culbertson, 57 Barb. 9.

In Kansas City, etc., R. Co. v. Kregelo, 32 Kans. 608, it was held that an award of damages for land taken by a railroad company may embrace the increased risk of fire, but only of fire occurring without the fault of the company. Also that it may not

embrace the increased risk of an orchard from the depredations of tramps and employees of the company. The court said: "The general current of authority is to the effect that in awarding damages to the owner of land taken for a railroad, the exposure of his remaining land and buildings to fire from the company's trains or engines is a proper element to be considered in making the estimate. This upon the ground that the increased exposure to fire depreciates the value of the owner's remaining land, and if such increased exposure to fire does diminish the value of the remaining property, the owner is entitled to same compensation therefor; but the most that can be claimed concerning the assessment for the increased exposure to fire by the passage of the railroad track through the premises, is that it is competent only to take into consideration the risk of fire set out by the trains or engines without the fault of the company, and by reason of the operation of the road through the premises. If fires occur through the negligence of the company it would be liable to the owner, and this element should not be taken into account in estimating the compensation. Adden v. Railroad Co., 55 N. H. 413; S. C., 20 Am. Rep. 220; Covill v. Railway Co., 19 Minn. 283; Lance v. Railroad Co., 57 Iowa, 636; Railroad Co. v. Swinney, 59 Ind. 105; Railroad Co. v. Murdock, 68 id. 137; Railroad Co. v. Barlow, 3 Oreg. 311; Railroad Co. v. McComb, 60 Me. 290; Pierce v. Railroad Co., 105 Mass. 199; Railroad Co. v. Sawyer, 71 Ill. 361; 1 Redf. Railw. (4th ed.) 290, § 8, and notes; Pierce Railroads, pp. 174, 175. The decisions of Pennsylvania and one or two other States oppose the allowance of damages for the increased exposure to fire, but they are contrary to the general course of decisions upon the subject, and therefore we do not follow them. Railroad Co. v. Hummell, 27 Penn. St. 99; Patton v. Railroad Co., 33 id. 426. The jury in assessing damages also allowed the sum of $250 for the increased risk to the orchard on the premises by reason of leaving it more free of access to persons travelling along the railroad, and to tramps and employees of the railroad company. Such damages are so remote and speculative as to be without and beyond any possibility of ascertainment known to the law. They cannot and ought not to be taken into consideration in estimating the compensation which the land-owner is entitled to recover from the company. Railway Co. v. Lyon, 24 Kans. 745; Lance v. Railroad Co., supra; Comp. Laws of 1879, ch. 23, § 82."

California, November 1884, 19 Rep. 5, it was held In Easton v. Bank of Stockton, Supreme Court of that an action lies in damages for the malicious prosecution of a civil suit. The court said: "As the case must be sent back for a new trial, it is proper to decide another question raised, and that is, whether in this State an action can be maintained for the malicious prosecution of a civil action in which no process other than the summons was is

sued. The weight of the authorities, American as well as English, is against the maintenance of such an action; and so are most of the text writers. The

MAY A HUSBAND SUE HIS WIFE FOR SALARY?

THAT such a question should even be formulated

question has never been determined in this State, would a few years ago have been looked on as

and we are therefore at liberty to adopt the rule that we think is founded on the better reason. The point was made in Smith v. George, 52 Cal. 341, but was not decided, the court holding that it was unnecessary to decide it, but remarking that 'the adjudged cases in England and America are conflicting upon the question, and depending to a considerable degree, it would seem, upon the prevailing statutory provisions as to the recovery of costs by the defendant upon the determination of a civil action in his favor.' The cases are collected and reviewed by Mr. Lawson in an instructive article upon the subject published in 21 Am. Law Reg. 281-353. The cases are too numerous to be here referred in detail. The English cases which deny the right to maintain the action stand upon the ground that the successful defendant is adequately compensated for the damages he sustains by the costs allowed him by the statute. Those costs, it seems, include the attorney's charges for preparing the case for trial in all its parts, the fees of the witnesses and the court, officials, and even the honorarium of the barrister who conducted the case in court. The reason upon which the English rule rests would not therefore seem to apply here, where the costs recoverable under the statute are confined to much narrower limits. Under our system the defendant may be subjected, or he may subject himself, to expenses not recoverable, even if the suit terminates in his favor; but of this he has no legal right to complain when the suit is brought and prosecuted in good faith, because, as said in Closson v. Staples, 42 Vt. 209: 'It is the ordinary and natural consequence of a uniform and well-regulated system to which all parties in civil actions are required to conform.' But when the action is brought and prosecuted maliciously, and without reasonable or probable cause, the plaintiff asserts no claim in respect to which he had any right to invoke the aid of the law. In such cases the plaintiff, by an abuse of legal process, unjustly subjects the defendant to damages which are not fully compensated by the costs he recovers. The plaintiff in such case has no legal or equitable right to claim that the rule of law which allows a suit to be brought and prosecuted in good faith, without liability of the plaintiff to pay the defendant damages, except by way and to the extent of the taxable costs, if judgment be rendered in his favor, should extend to a case where the suit was maliciously prosecuted without probable cause. But where the damages sustained by the defendant in defending a suit maliciously prosecuted, without reasonable or probable cause, exceed the costs obtained by him, he has, and of right should have, a remedy by action on the case." See, to the same effect, Mc Cardle v. McGinley, 86 Ind. 538; S. C., 44 Am. Rep. 343; contra, Muldoon v. Rickey, 103 Penn. St. 110. See also note, 44 Am. Rep. 346,

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a sorry jest. That the baron could ever in an English-speaking land maintain an action against his femme covert, for compensation for taking care of her property, would have seemed to our ancestors too absurd even to talk about. For a Benthamite to have prophesied that such would be law some day would have been regarded as a wild flight of preposterous fancy. That such a question should ever in all seriousness be raised in our courts would not have appeared possible even to the very men who advocated the wresting of a married woman's separate estate from the legal grasp of her lord and master. So little was such a result in their minds, that if upon the passage of the married woman's acts, some lawyer had counselled the bringing of such action, he would almost have been disbarred for malpractice; certainly, no student at law, who answered in the affirmative such a question if put by his examiners, would have been passed. Yet it has been actually decided in this year of grace that the baron who conducts the separate business of his femme covert, for an agreed compensation, has a chose in action against her.

The exact point that a husband can sue his wife for his agreed salary has not yet been passed on. In Perkins v. Perkins, 62 Barb. 531, the Supreme Court held that he cannot do so where the only contract claimed is an implied one. But the same court having just held in Kingman v. Frank, 33 Hun, 30 A. L. J. 462, that if husband and wife make an express contract that she shall pay him a sum certain for conducting her business, he has a chose in action against her reachable by his judgment creditor, it is but the next step in the same direction that the husband himself can sue her therefor as well. It is the aim of this article to

show that such a result is inevitable.

To hold otherwise is to run counter to the plain import of the married woman's acts, to overrule controlling decisions.

I. As to the import of the married woman's acts, it is authoritatively declared to be as follows:

"With the removal of common-law disabilities from married women, corresponding liabilities have necessarily been imposed upon them. They take the civil rights and privileges conferred subject to all the incidental and correlative burdens and obligations, and their rights and obligations are to be determined by the same rules of law and evidence by which the rights and obligations of the other sex are determined under like circumstances. To the extent, and in the matter of business in which they are by law permitted to engage, they owe the same duty to those with whom they deal, and to the public, and may be bound in the same manner as if they were unmarried. Their common-law incapacity to act cannot serve as a shield to protect

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