legislature scores of bills with the hope of enactment, many of which are to create new offices, will be found to be the chief objectors. As a matter of fact New Jersey has more laws upon her statute book than any State in the Union. Most of the States do not have half the volume of laws which we have in New Jersey. Why it should be so no living man can tell. A large number of them are a dead letter, and the balance are composed of hundreds of sections which only the court can properly construe and which the average lawyer does not know how to interpret. We hope that, in the course of a few years, there may be such a revision and reduction in the volume of the laws as will make it possible for an average lawyer to hold at least a reasonable portion of them in mind and be able to construe the balance without the necessity of going to the courts for such construction. There seems to be no way to reduce the increasing volume at present except by biennial sessions of the law-making body. The matter, however, will come up before the people in 1902, if the present proposition secures the assent of the next legislature, and then, it is to be hoped, there will be full discussion of the project in all of its branches.New Jersey Law Journal. The judge's charge was clear and plain, The jury none made to the court. nature of his business, he would transmit it to the lawyer upon his return. "Oh, it's about an heirship," replied the caller. The neighbor jumped at the conclusion that the caller was a crank inventor of an "airship," wanting a patent, and proceeded to draw him out on those lines. The young man, a little bewildered, answered shortly and evasively, and this more than ever convinced the questioner that he was a visionary inventor with whom some fun might be had. So he called in another neighbor, and together they catechised the young man about his "invention." The caller finally concluded he had struck a crowd of "cranks," and made his escape, while the questioners enjoyed a laugh over the "airship inventor." Then the lawyer returned and spoiled their joke by explaining the true situation. They are now trying to figure out who had the worst of the encounter, the "airship inventor" or the wise men who scared him with strange questions. Judge Thad Huston has a voice that can be heard for a long distance when he chooses to turn on the power. Thereby hangs a tale. During the civil war the judge was given a captaincy in a volunteer regiment. While still a green hand he was drilling his company one day and got them charging straight for a brick wall. Unable to remember the word of command the judge bellowed out in his most stentorian tones: "Gee, boys, gee!"- Tacoma Ledger. The following story is told of the late ex-President Harrison by the Indianapolis Sentinel: “General Harrison, with a few frineds, was hunting in the northern part of the State and stopped with an old farmer, who, while he paid a great deal of attention to the future president and well-known statesman, seemed to regard him in the light of pure democracy as a mere equal, and for whom General Harrison showed the greatest friendship. The farmer, as it happened, had for some time been engaged in a controversy with a neighbor in regard to a dog whose sheep-killing propensities had often caused the old man considerable worry and the animal's depredations at last brought his owner into a law suit. The trial was set down for hearing while General Harrison was in the neighborhood, and the farmer understanding that his visitor was considered one of the best lawyers in the country, begged him to take up the case. General Harrison consented and drove over to the nearest town the next day with the farmer. His eloquence caught the jury, which returned a verdict in favor of the farmer without leaving the court room. The farmer was greatly pleased at the result of the suit. 'I thought you was a pretty good dog-lawyer,' he kept repeating to General Harrison all the way back to the farm, and if ever that dog gets me into trouble again I'm going to send for you, 'cause I don't believe you can be beat on dog cases' General Harrison enjoyed the incident immensely, and never tired of telling the story." The Albany Law Journal. A Monthly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, N. Y. Contributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law questions, addresses on legal topics, or discussions on questions of timely interest, are solicited from members of the bar and those interested in legal proceedings. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions or other business matters should be addressed to THE ALBANY LAW JOURNAL COMPANY.] Subscription price, Three Dollars per annum, in advance. Single number, Twenty-five Cents. ALBANY, N. Y., AUGUST, 1901. Current Topics. Mountain region, but also afford, notwithstanding their points of resemblance to the legal history of other countries, most instructive examples, not merely of the growth of law, but of the inherent vitality of common-law principles and their adaptability to changed conditions and new surroundings." The sessions of the association will be held at the Broadway Theatre, and the headquarters will be at the Brown Palace Hotel. Complimentary excursions to Cripple Creek, Leadville, Colorado Springs and other places will be tendered the members of the association and the ladies of their families. A decision of considerable interest in reference to the purchase of so-called subscripAs the American Bar Association has not tion books, and settling to some extent the previously visited a city west of the Missis- question as to when and under what circumsippi and Missouri rivers, the choice of Den- stances it is safe to deal in them, was rendered ver as a place of meeting by the association | recently by the New York Supreme Court, this year becomes of unusual interest. The Part X, First Department, in the case of honor conferred upon the State is fully Peale & Hill v. Benjamin. The facts appear realized and appreciated by the bar of Colo- to be that there were, in the month of Janurado who will, besides doing everything ary, 1899, in the city of New York, two book possible for the complete success of the dealers by the name of Benjamin, one Charles meeting, also see to it that their visiting R. and the other William E. They were not brethren are given a cordial reception related, but had formerly had business relaand welcome. This, the twenty-fourth an- tions. The former conceived the idea of purnual meeting of the association, will be chasing for export to Porto Rico several sets held on Wednesday, Thursday and Friday, of "Warner's Library of the World's Best August 21, 22 and 23. Denver is easily Literature," from Richard S. Peale and James reached either from the East, the South, the | A. Hill, who were publishing the same at 91 middle West, the Northwest or the West. It is one of the most beautiful cities in the United States. It is the commercial center of one of the wealthiest sections of the country, which stretches westward from the Mississippi and Missouri rivers to the Pacific ocean. These facts, as well as the climatic and scenic attractions of Colorado, render Denver at once convenient and attractive as a meeting place of the association. As the secretary well says, in his official announcement: Fifth avenue, under the name of " The International Society." Accordingly, he opened negotiations with Mr. Hill and continued the same with Mr. Peale, with the result that they delivered these sets to him at his store, 6 West Twenty-second street, and he delivered to them his promissory notes in payment thereof, as per agreement. Soon afterward Messrs. Peale & Hill discovered that instead of sending these books to Porto Rico, Mr. Benjamin was selling them at cut rates. to various book dealers in New York. Several of these sets were traced to the store of George C. Bartlett, a reputable dealer, at 33 East Twenty-second street, who had purchased them in good faith and for a valuable consideration. Peale & Hill at once took steps to recover these books. They commenced a replevin suit and with the aid of the sheriff seized the books in Bartlett's store and class referred to, not long ago imposed a carried them away. In their papers, they novel sentence upon a youth who had been claimed that the books had been stolen from brought before him on the charge of playing them by Benjamin, in that he had obtained ball in the public streets and for the added them feloniously by fraud, and had thus been offense of advising a public officer who guilty of the crime of grand larceny, and that wished him to desist to go and jump in the Bartlett had bought them knowing them to river. The accused having been convicted, have been stolen. Under advice of his coun- the justice did not sentence him to the county sel, Hawes & Judge, Mr. Bartlett declined jail or to the house of correction, but he orto give counter bond but elected to stand dered the youth to save $100. The culprit is trial on the main issue. The plaintiffs, Peale to report to the court at stated intervals and & Hill, attempted to show that Charles R. exhibit his savings bank account, sentence to Benjamin had falsely and fraudulently repre- be suspended only as long as he shows reasented himself to be the manager for William sonable progress toward the accumulation of E. Benjamin, and had thus feloniously ob- the sum stated. The sentence, so far as we tained wrongful possession of the books. are aware, is a novelty in petty criminal jurisUnder the cross-examination of Gilbert Ray prudence, and we quite agree with a contemHawes, counsel for defendant Bartlett, and by porary that it is likely to be much better for his handling of the case, the plaintiffs' wit- the young man than any of the other customnesses broke down and contradicted them-ary sentences in similar cases so much betselves and utterly failed to prove the allega- ter that it seems to be worthy of imitation by tions of the complaint. As a climax Mr. other magistrates who are honestly seeking Hawes produced three original letters ad- reformatory methods and influences. dressed to Charles R. Benjamin, which Mr. Peale was obliged to admit were signed by him, wherein it was clearly stated that these books were sold to Charles R. Benjamin, individually, and not as manager for William E. Benjamin, and that he was to pay for same with promissory notes to the "International Society." Thus the whole fabric of plaintiffs' case was demolished. The trial abounded in surprises and was exciting throughout, while the court room was filled with many book publishers and book dealers who enjoyed the sharp tilts between counsel on either side, and the clever manner in which the defense was developed. After a contest of three days, in which no effort was remitted on either side, the case was left to the jury, who, in five minutes' time, returned a verdict for the defendant, George C. Bartlett, for the full value of the books taken from him by the plaintiffs in this case. Justices of the peace are proverbially, notoriously uncertain, not only as to their knowledge of the law, but as to what application they will make of such knowledge as they may possess. We are led to the reflection by observing that a Chicago official of the Another decision of general interest with reference to department stores was recently handed down by the New York Court of Appeals in the case of Mary F. Shannon against the Siegel-Cooper Company, wherein it was held that when a corporation conducting a department store business represents to the public that it is carrying on the business of dentistry as one of its departments, and a person who, relying upon such representation, procures dental work to be done, which is so unskillfully performed that it results in serious injury to the patient, an action for malpractice may be maintained by the patient against the company. The court held that the dentist who performed the work was, unknown to the patient, the real owner of the dental department and conducted it as an independent business, and the additional fact that the company never possessed any corporate power to engage in the practice of dentistry, did not relieve it from liability for the tort. The decision seems to us not only good law but equally good common sense. The New York Court of Appeals has adjourned to September 30th. Notes of Cases. Carriers Loss of Baggage - Liabilities. In Marshall v. Pontiac, O. & N. R. Co., decided by the Supreme Court of Michigan in February, 1901 (85 N. W. 242), it appeared that M. purchased a ticket at Detroit over the D., G. H. & M. R. Co. to Pontiac, and from Pontiac to Imlay City over the defendant's railroad. He presented the ticket to the agent of the D., G. H. & M. Co., and had his trunk checked to Imlay City. He purchased the ticket for the sole purpose of checking his trunk. He did not intend to go on the train, and did not go, but went by his own private conveyance. His trunk arrived at Imlay City Saturday morning at about 10 o'clock, remaining upon the platform until noon, when the agent put it in the baggage room. Saturday or Sunday night the baggage room was burglarized, and the trunk and contents stolen. It was held that M. was not in the position of a bona fide passenger; that the defendant was not an ordinary warehouseman, bound to the exercise of that care which the average man takes of his own property, but was a gratuitous bailee, liable only for gross negligence. The court said: The defendant was not in fault in checking the baggage. Its agent, the baggage master, was justified in assuming that the plaintiff intended to accompany his baggage upon the next train. A baggage master has no authority or right to check baggage for any other than a passenger. If, therefore, plaintiff had disclosed to the baggage master the actual situation, he would have been refused a check. In a case of libel against a boat for a loss of baggage the libelant had taken passage on the boat from Antwerp to New York. The vessel left before the arrival at Antwerp of the goods, which consisted of ten packages and one basket, and it became necessary to send them by another vessel. On their arrival two trunks and the basket could not be found. The ground of defense was that the goods were shipped on a passenger ship as personal baggage belonging to the passenger, and, as she did not take passage on board the ship, and pay the fare, which would include compensation for the usual baggage, no compensation was paid, and the ship was entitled to none, and, therefore, the master was a gratuitous bailee, responsible only for gross negligence. The court held that, where a passenger accompanies his baggage, the fare includes compensation for its transportation. If, however, he does not accompany it, the carrier may demand compensation in advance, or upon delivery, relying on his lien or the personal responsibility of the owner (The Elvira Harbeck, 2 Blatchf. 336, Fed. Cas. No. 4424). In Wilson v. Railway Co. (56 Me. 60), it is said: "It is implied in the contract that the baggage and the passenger go together." Redfield says that the receipt and carriage of baggage are incidental to passenger transportation, and that the agents of railroad companies have no authority to receive baggage to carry upon any other basis (2 Redf. R. R., sec. 171; Hutch. Carr., sec. 702). Where a passenger had arrived at her destination, had left the cars, taken her baggage into her possession, and immediately left it in the baggage room for a few hours, it was held that the company was a gratuitous bailee, liable only for gross negligence (Minor v. Railway Co., 19 Wis. 41; see, also, Hodkinson v. Railway Co., 14 Q. B. Div. 228). We must not be understood as holding that it is absolutely necessary for the passenger to go upon the same train with his baggage in order to entitle him to have his baggage taken care of at his destination by the railroad company Where the passenger purchased his ticket with the bona fide intention to use it, but, without fault upon his part, did not accompany it, but went upon a following train, a different case is presented. We conclude that plaintiff was not a passenger; that the defendant was a gratuitous bailee, and was not guilty of gross negligence; and that, therefore, plaintiff could not recover. as a warehouseman. Life Insurance Suicide by Starvation.— In Union Cent. Life Ins. Co. v. Fox, decided in the Supreme Court of Tennessee in February, 1901 (61 S. W. 62), it appeared that a life insurance policy provided that if the insured should die by selfdestruction, whether sane or insane, within three years, the policy should be void, and that the insured did die within that time. In an action upon the policy the plaintiff obtained judgment against the company. The opinion of the court on appeal concludes with the following language: "It is assigned as error that the court refused to charge, upon defendant's request, that if John Fox was desperately ill from scurvy, and became weary of life, and deliberately undertook to starve himself to death, and the scurvy and starvation jointly caused his death, there can be no recovery in this case.' The defendant had already made two requests bearing upon this feature of the case, both of which were given and are as follows: 'If John Fox refused to take nourishment, and the proximate cause of his death was starvation, and he refused to take nourishment in order to bring about that result, there can be no recovery by plaintiff in this case. That would be so although John Fox may have been so sick from scurvy that it would have ultimately caused his death. If John Fox was fatally ill with scurvy, and his death was hastened by such starvation, there can be no recovery by plaintiff.' Again: 'If John Fox was desperately ill with scurvy, and became weary of life, and deliberately starved himself to death, there can be no recovery by plaintiff in this case. If the lack of nourishment was the proximate cause of his death, this would be so, even though he was so afflicted with scurvy that it would have ultimately resulted in his death.' This, we think, is ample on this feature of the case, and embraces the request refused. We can see no error in the proceedings and judgment of the court below, and it is affirmed, with costs." THE RECENT ATTACK BY THE COURT OF supplied at a fixed price. Subsequently the wholeAPPEALS UPON THE CONSTITUTIONAL sale price of mutton rises so that the butcher beRIGHT OF REFUSAL TO DEAL. The recent decisions by the Court of Appeals in People ex rel. Rodgers v. Coler (166 N. Y. 1 [Feb. 26, 1901]), and People ex rel. Treat v. Coler (166 N. Y. 144 [March 8, 1901]), have been the subject of so much comment that I should not venture to increase the volume thereof, were it not in the hope of emphasizing certain material considerations that seem to me to have received little or no attention from court or counsel. And a discussion thereof may be, by no means, purely academic, for it seems a reasonable view that, inasmuch as the effect of the fourteenth amendment of the federal Constitution is concerned, these decisions are, as to at least some of the questions involved, not final. For a starting point, let us briefly consider the nature and extent of a fundamental, though often obscurely recognized right, which I shall venture to call the right to refuse to deal. This is a right, the existence of which is so universally understood and recognized when once pointed out, that no layman in possession of ordinary mental faculties need inquire of a lawyer whether such a right exists. Yet there are few, if any, decisions that distinctly declare its existence, nor does any framer of a Constitution, whether State or federal, seem to have thought it worth the while to formulate it, though it is probably included under the general guaranty of protection to "life, liberty and property." But, as I hope to make plain, the logical result of the decisions just referred to was to, pro tanto, deny the existence of this fundamental right. A very simple illustration will suffice to make clear its general nature and extent. Suppose me to be a resident of a locality in which there are, say, twelve butchers, is it not clear to layman, as well as lawyer, that I have the absolute right to refuse to deal with any of these butchers? I may, for instance, be a vegetarian, or may obstinately insist on procuring my meat supply from a considerable distance. But the right to refuse to deal applies, not only as among different dealers of the same class, such as butchers, but as among different commodities sold by the same dealer. Suppose me to habitually patronize one of these butchers, thereby exercising my clear legal right to refuse to deal with any of the other eleven, is it not clear that I have the absolute right to refuse to deal with the selected butcher, so far as, say, beef, pork and veal are concerned, while habitually dealing with him as to mutton? That is to say, I have the absolute right to confine my purchases from him to mutton, thus discriminating, if you please, against beef, pork and veal. Let us go still a step further. Suppose I enter into an agreement with the selected butcher to supply my family with meat for a fixed period, say, a year. It is made a part of the contract that the meat furnished shall consist exclusively of mutton, to be comes unable to perform the contract without loss to himself, though he could furnish at the prevailing retail price a corresponding quantity of beef, pork or veal at a considerable profit. In consequence he seeks to perform his contract by the delivery of beef, pork or veal instead of mutton. I refuse to accept beef, pork or veal or to make payment under the contract, and he commences suit thereon; I defend on the ground of non-performance. But he replies that the contract was satisfied by the delivery of beef, pork or veal; that the provision confining his choice of meat to be delivered, to mutton, is void; that "when he enters into a fair and honest contract" "that contract is property, entitled to the same protection as any other property;" that "it is not competent to deprive him of the benefit of this contract by imposing burdensome conditions, with respect to the means of performance," or "to withhold the contract price when such conditions are not complied with, in the judgment of" the buyer; that 66 66 when he is not left free to select " the kind of meat to be delivered, upon such terms as he 'fairly'" decides upon, "he is deprived of that liberty of action and right to accumulate property, embraced within the guaranties of the Constitution, since his right to the free use of his faculties in the pursuit of an honest vocation is so far abridged" (the quoted words are taken from page 15 of the opinion of O'Brien, J., in People ex rel. Rodgers v. Coler). The plaintiff's contention is held good and recovery allowed. Now, the interpretation of the above illustration or parable is, with reference to its application to People ex rel. Treat v. Coler, as follows: I am the city of New York; the butcher is a contractor, who has entered into a contract with the city to construct a sewer; the mutton is stone, suitable to be used in such work of construction, and prepared for use within the State; the beef, pork and veal are stone suitable to be used in such work of construction, but prepared for use without the State. The interpretation, with reference to its application to People ex rel. Rodgers v. Coler, is as follows: I am, as before, the city of New York; the butcher is a contractor who has entered into a contract with the city to regulate and grade a street; the mutton is workmen, who are, by the terms of the contract, to receive wages at a specified, that is, the prevailing rate; the beef, pork and veal are workmen also receiving wages at a different, that is, less than such specified rate. If now it was an untenable position that I could not discriminate against beef pork and veal in favor of mutton, it is equally untenable that I cannot discriminate against the stone prepared for use without the State, in favor of the stone prepared for use within the State; that I cannot discriminate against workmen receiving wages at a certain rate, in favor of workmen receiving wages at a higher rate. It is no answer to say that the stone prepared for use |