woman die without lawful issue, leaving an illegitimate child, the inheritance shall descend to him as A BACKWOODS' CASE. "Your honor," said a prosecuting attorney in a if he were legitimate. In any other case illegiti- court in Texas, "the prisoner at the bar is charged mate children or relatives shall not inherit." c This entire chapter relates solely to real property. The legislature, therefore, still permits an illegitimate child to inherit real property from his mother, but has not re-enacted any provision which will permit him to take personal property. It is not possible to read into the statute more than is there found, on the familiar principle that where one law has repealed another, all of the first that is not re-enacted by necessary implication is no longer in force. We find, therefore, a provision, the justice of which has remained undisputed for more than forty years, stricken from the statutes and the harsh rule of the common law once more in force. Doubtless it was an oversight on the part of the legislature. If so, they should give their earliest attention to its correction. with killing one of the most exemplary citizens of this county. Andrew Boyson, your honor, was in every respect a model man. He was a beloved member of the church, and not once known to be guilty of an unchristian act. Why, your honor, he was never seen to bet on horses, play poker, drink whiskey, or use tobacco. He "Hold on a minute," the judge broke in; "You say he didn't bet on horses?" "That's what I said, your honor.” "And he didn't chew tobacco ?" A Federal judge lately charged a jury in a liquor case as follows: "In later years there seems to have been a disposition to deny or ignore judicial knowledge as to what constitutes intoxicating liquors, and the courts have manifested a desire to disavow any judicial knowledge on this subject At the same time some of the courts have not hesitated to impute to juries an extensive knowledge and information in this regard. This court, however, will follow the precedent established by the decision of Chancellor Walworth upon this subject, and will assume judicial knowledge concerning intoxicating liquors. * * * In a trial in the State of Wisconsin, where this question arose in 1883, the trial judge declared that a man must be almost a driveling idiot who did not know what beer was, and that it was not necessary to prove it to be an intoxicating liquor. Later the Supreme Court of that State, in passing on the charge of the trial judge, declared that his rulings in the case upon this question were not only clearly correct, but if his peculiar manner gave them force and emphasis, it was not only proper but commendable. This court, therefore, will neither stultify itself nor impeach its own veracity by telling you that it has not judicial knowledge that the liquor commonly known as 'whiskey' is an intoxicating liquor or that the drink commonly called a whiskey cocktail' is an intoxicating drink." MUNICIPAL CORPORATIONS-DELEGATION OF POWERS-SALE OF BONDS.-A charter which commits to the city council, by name, the entire control of the city's finances, with power to issue and sell bonds, cannot delegate to the mayor authority to sell such bonds at his discretion as to price. (Blair v. City of Waco [U. S. C. C. of App.], 75 Fed. Rep. 800.) NEGLIGENCE PROXIMATE CAUSE CROSSING. A defect in a gate at a railroad crossing is not the proximate cause of an injury received by one who, after passing by the gate, sees a train approaching, but tries to cross the track, and gets his foot caught, and is consequently injured by the train. (Baltimore & O. R. Co. v. Anderson [U. S. C. C. of App.], 75 Fed. Rep. 811.) RAILROAD RELIGIOUS SOCIETIES- -CAPACITY TO SUE.-Trustes of a non-incorporated religious association have legal capacity to sue in equity in behalf of such association, if not as trustees as members thereof. come within the class of persons whom the writer styles as "ignorant of the theory of the Constitution" and of constitutional law, for I cannot see one single fact or authority cited in his article which substantiates his conclusion or supports his reasoning; on the contrary, his extended research into history has permitted him to state facts which, tion, viz., that such an act would contravene the to my mind, prove quite the contrary of his contenUnited States Constitution. The real question discussed is, Would an act passed by a State granting to the Mexican silver dollar legal tender qualities be unconstitutional? As the writer has well said, "the Constitution confers no powers upon the States;" they are to retain those powers which are not prohibited to them, or, better still," they have all powers not expressly or by necessary implication granted by them to the United States in the Constitution." What part, therefore, of the Constitution would this law violate? And as an answer, Mr. Dean tells us that it was just such a law that Justice Ellsworth and his associates in the constitutional convention had in mind when they drafted sec. 10, art. 1, of the Constitution; but this seems to be completely refuted by the very language of the section itself and also by the history of the legal tender acts of the various States, making commodities, such as tobacco, corn, linen, whiskey, etc., legal tender. It was to contract the power of the States as to their right to make anything but gold and silver coins a legal tender instead of these inconvenient, unstable and variable commodities. The section reads: "No State shall make (Callsen v. Hope [U. S. D. C. Alaska], 75 Fed anything but gold or silver coin a tender in payRep. 758.) REMOVAL OF CAUSES-SEPARABLE CONTROVERSY. -Where the cause of action is joint or several, and plaintiff elects to treat it as joint, no one of defendants can treat the suit as against him as severable for the purpose of removal. (Brown v. Coxe Bros. & Co. [U. S. C. C. Wis.], 75 Fed. Rep. 689.) Correspondence. THE MEXICAN DOLLAR-A REPLY. To the Editor of the Albany Law Journal DEAR SIR: I have just received our copy of your valuable journal for November 28th, and have read with interest the letter published therein under your head Correspondence by Mr. Ben S. Dean, of Jamestown, on the threatened action of some of our populistic friends in Kansas to pass a law granting to the Mexican silver dollar legal tender qualities in that State, and while I agree with the author that the effect of such a measure would hardly seriously affect commercial transactions, either in that State ro in the United States, I am willing to admit that I ment of debts." Thus we see that while this and other sections of the Constitution are negative expressions, as they necessarily must have been, in order to carry out the intention that the Constitution was to deprive the States of certain existing and inherent rights, and while it is true that the Constitution does not, in a strict sense, confer any rights or powers upon the States, because all powers not granted are retained by the States, still the section instead of denying to the States, in plain language, the power to pass any legal tender laws whatsoever, on the contrary, by its very terms, impliedly admits the right of the States to pass laws making any gold or silver coin of any nation a legal tender, only excepting and reserving to Congress the right granted to it from the States in sec. 8, art. 1, of regulating the value of such foreign gold and silver coin. To be sure the Constitution and all other legislative acts are to be construed according to the intention of the legislators framing them, but every lawyer knows that the law must be construed according to its terms, and that the intention of the body enacting it must be gathered by the plain sense of the language made use of to express that intention in the act itself. We cannot go outside these limits to ascertain what the intention might have been and I fear that what Judge Ellsworth said to his constituents about the Constitution, "that no State shall make anything but money a legal tender in payment of debts," would hardly be held relevant to the issue to sustain the contention of the author-that the contemplated act of the populists of Kansas would be unconstitutional. Nor do I see the application of the argument that the States were denied the right to make commodities a legal tender, as applied to the Mexican silver coin dollar, for while the Mexican dollar is in one sense a com modity, it is also something more, it is a silver coin within the very language of the Constitution, and for Mr. Dean to read into that section of the Con stitution the words "of the United States" making it read "No State shall * * *coin money * ** or make anything but gold and silver coins of the United States a tender in the payment of debts," etc., which would have been necessary in order to sus tain his contention, and which would certainly have been done had the principle for which he is contend ing been the intention of the framers of our great Bill of Rights, to use Mr. Dean's own words, "argues ill for the intelligence of anyone making such a statement," and shows that the statement is absurd. A New Books and New Editions. A brief preface to this work indicates that it is "The term proof' is often confounded with that of evidence, and applied to denote the medium of proof, whereas in strictness it marks merely the effect of evidence. When the result of evidence is undoubting assent to the certainty of the event or proposition which is the subject-matter of inquiry, such event or proposition is said to be proved; and according to the nature of the evidence on which such conclusion is grounded, it is either known or believed to be true. Our judgments, then, are the consequence of proof; and proof is that quantity of appropriate evidence which produces assurance and certainty. Evidence, therefore, differs from proof, as cause from effect." While I agree that such a manifestation of populistic legislation would not be a great detriment to our commercial interests, yet the reason for this does not, it seems to me, lie in the question of the constitutionality of the proposed act, but, on the contrary, in the right delegated to congress in the eighth section, article 1, in which Congress is given the absolute right to coin money, regulate the value thereof, and of foreign coins," thus it appears that in these last four words is the saving clause that protects the United States from wild-cat money and the Mexican silver dollar, for under this section Congress could pass a law regulating the value of the Mexican dollar and providing that its legal-relative to expert testimony. tender value sl.ould be no greater than its commercial value, after which our Kansas friends would A somewhat metaphysical discussion is had with regard to the nature of truth, and as to "intuition and demonstration," followed by the consideration of moral probability and moral certainty. This is by way of introduction to the characteristics of circumstantial evidence, under which presumptions are first treated, followed by consideration of the relative effect of direct and circumstantial evidence. The balance of the work applies almost entirely to evidence in criminal causes. Proof of handwriting, however, which is treated somewhat fully, relates as well to civil causes as to criminal, and the same may be said with regard to the rules very soon tire of weighing Mexican silver dollars, or any other, for that matter, every time they wanted to pay or cheat their creditors, the law would be worthless, and it is believed would be soon repealed. So that while I agree such a law would not be likely to disturb our financial system, I cannot agree that it would be unconstitutional, which I think is patent from Mr. Dean's own article. The author treats confessions as being in the nature of circumstantial evidence, and discusses topics treated are the defence of alibi, evidence of the weight which should be given to them. Other character, as well as proof of corpus delicti and its application in cases of homicide. The work closes with an interesting chapter upon the force of circumstantial evidence, treated from the scientific and philosophical standpoint, as well as from a legal point of view, abundantly illustrated by examples and citation of authority. The volume closes with a citation of the well-known and quite remarkable Udderzook case, 76 Penn. St. 340. To the lawyer, practicing in the criminal courts, it would appear to be a useful and convenient as well as interesting volume. O recent decision in this State has aroused the interest of lawyers so much as that reported in the LAW JOURNAL. (Sciolina v. Erie Preserving Company and two others), in which it was held that appeals to the Court of Appeals as fell still born. Subsequently, in the constitutional convention of 1894, Louis Marshall again. championed the restriction of appeals, which resulted in the judiciary article as it now stands. This was followed by chapter 559 of the Laws of 1896, which is the basis of the opinion of Chief Judge Andrews in the cases referred to. This section provided that "where the decision of the Appellate Division is unanimous, unless such Appellate Division shall certify that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals, or unless, in case of refusal so to certify, an appeal is allowed by a judge of the Court of Appeals," no appeal shall be taken to the Court of Appeals in certain specified cases. It will be taken as a matter of discretion by the Apellate Divisions and by the Court of Appeals, and that if these courts were inclined to be statute would be practically nullified, while, on liberal in the allowance of such appeals, the the other hand, if they were inclined to construe the language strictly, appeals in such cases would be practically prohibited. The Court of Appeals has taken the latter view, holding that, the ob Court of Appeals by imposing upon the Appellate Division the labor and responsibility of final decision in very many cases, that policy ought to prevail; holding further that the right reserved was intended primarily to provide for exceptional cases where the public interests or interests of jurisprudence might be endangered by permitting a decision to go unchallenged. should not be allowed, as a matter of discretion, where they affect only the parties to the respective litigations, and do not fall within the classes prescribed, and are are not exceptional cases where public interests or interests of juris-be seen that the operation of this statute deprudence might be endangered by permitting pended very much upon the view which might a decision to go unchallenged. This is a judicial determination of a vexed and much-mooted question, that is, as to what functions ought to be discharged by the Court of Appeals a court of last resort. The controversy was warm over this question in the constitutional convention, but waxed much warmer in the earlier constitutional commission of 1890, which was constituted for the purpose of proposing a revision of the judiciary article alone.ject of the amendment being to relieve the In that commission a battle royal was waged over the question as to whether the Court of Appeals should be enlarged by the election of an additional number of judges so that appeals might be taken from the Supreme Court as a matter of right in substantially every case, on the one hand, or whether measures should be taken so to restrict appeals to the Court of Appeals that the bench as at present constituted should be able to dispose of the business coming before it. In favor of the first proposition, that the court should be enlarged in order that the business might be done by an increased number of judges, were Frederick R. Coudert and Lewis E. Carr, as the leaders. They were opposed in this view by James C. Carter, Joseph H. Choate and Louis Marshall, who insisted that the number of judges should remain as they then stood, and that the appeals should be restricted. The latter principle was adopted by the commission, which reported to the legislature for action, recommending a constitutional amendment to that effect. This was not acted upon by the legislature, and the work of the commission VOL. 54 No. 25. This, then, is a settlement of the vexed question by operation of statute and by construction of the court of last resort, and whatever may be thought of the wisdom or policy of the legislation, it must now be cheerfully acquiesced in by the members of the bar. It is the law of the State upon that subject and the outcome of years of active discussion and agitation upon the question. The legislature has determined that this is the wise policy to pursue, and that course has been indorsed by a construction of the act and interpretation of its policy which is unquestionable and which hereafter will be unquestioned. It is well that this question is settled and that the bar now understands that the Appellate Division is what it was intended to be at the time it was created, not alone an intermediate appellate court, but in very many cases a court of last resort which shall relieve the Court of Appeals from the burden of appeals which have accumulated to such an extent that without such relief it would be impossible that the court should carry on the business in such a way as to be able to clear its docket within a reasonable time. Under the title of "Beware of the Revisers,' the New York Sun publishes an article which is reproduced in the LAW JOURNAL, not for the purpose of criticism of the revisers or to call attention to their shortcomings, since every lawyer appreciates the difficulties of the work, but more particularly for the purpose of calling attention to the necessity for its early completion. The duties of the revisers are exceedingly delicate and important, and involve great care and labor. On the other hand, their compensation is meagre, almost beggarly, and they are expected to do the most important work which falls to any lawyer or body of lawyers in the State, for a compensation which would only be reasonable and fair to a lawyer of high standing at the bar in a single important litigation. The result is, and has been for some time past, that the work has necessarily been carried on by the revisers in the intervals of their professional labors. They have been obliged to carry on the practice of the law. In fact it could not be expected, and has not been expected, that they would abandon the practice of their profession for the salary which the State has seen fit to attach to the work they are called upon to perform. It has been exceedingly difficult, under such circumstances, to obtain the highest degree of talent even for such desultory labors as the commissioners must, under the circumstances, bestow upon this work, and it is quite certain that the work cannot be performed with the degree of care and attention which its importance demands. We have made no examination as to the justice or injustice of the criticism which is made in the article published, but we publish it as a matter of current interest and criticism, and with the hope that it will call the attention o the bench and of the bar, as well as of the leg islature and the incoming executive, to the great necessity for a reconstruction of this commission and for the appointment of competent revisers. The appropriation made for the carrying on of the work during 1896 is the sum of $21,000. This is used for the payment of $3,000 per annum to the commissioners, the balance for clerk hire and incidental expenses. It would seem to be the part of wisdom that the salaries of the commissioners should be very largely increased if the State expects to have the best kind of work from the most competent men. It is, of course, not desirable that the appropriation bill should be increased by an additional amount in the way of salaries, and an attempt so to do would, perhaps, arouse criticism and objection, but this work should be in the immediate and direct charge of some careful and competent person who would give it at all times his personal attention. It would seem, therefore, that one solution of the difficulty might be the selection of an able lawyer, at a fair salary, who shall take the place of the three revisers and act as the responsible head of the work, with authority to employ, as at present, such assistants and clerks as might be desirable within the limits of the present appropriation. It seems quite certain that better results could reasonably be obtained in that manner than by present methods. This work has been running along since 1889, the statutes are in an exceedingly unsatisfactory condition, and it is an absolute necessity that the work be brought to a close within a reasonable period. In addition, the revisers have been charged with the work of advising the legislature with regard to the legality of bills, and are obliged to act as draftsmen for the legislature in preparing bills to be introduced into the legislature. This additional burden renders them unable to perform very much of the labor required as revisers during four months of the year, resulting in crowding their work in the remaining eight, and, as matters now stand, resulting in that work being done at such times and under such circumstances as the necessities of a law practice will allow. It needs no comment to enforce the idea that this is not the ideal method, nor is it the practical method which should be adopted for the revision of the Statutes of the State of New York. It would be the greatest possible economy to have this |