eral (attorney-general), who entered a complaint with the Court of Appeal of Turin, of the same general character as a mandamus or quo warranto with us; to which Signorina Poët answered with great ability, maintaining her legal and moral right to practice, the substance of her argument, with liberal extracts, being given in the book. Among other instances she cited the case of "Signora Foltz," of San Jose in California, who "admitted to the bar in 1881, has been able to maintain five children of tender age, with the fruits of her professional labbors." Alas! the star of Belva Lockwood had not then risen above the Italian horizon!

To this the procuratore-general replied, contending that the law and public policy forbade women to enter the "milizia togata ;" and sneering at poor Mrs. Foltz's case as having taken place in a "falda" (skirt) of North America. Signorina Poët was heard in rejoinder, and the Court of Appeal, after due deliberation, delivered its judgment to the effect that the inscription of Signorina Poët upon the roll of advocates at Turin was illegal. From this decision, the Signorina appealed to the Court of Cassation of Turin, where, after full argument, the decision of the court below was affirmed. The opinions of the two courts are given in extenso by our author from the decision of the court of last resort, our author, and the other supporters of woman's right to practice, appeal to the public opinion of Italy, with the ultimate intention of calling upon the Italian Parliament to redress a grievous wrong, as they characterize the ruling of the two.courts.

The arguments of the parties, and the decisions of the two courts, are exceedingly interesting and instructive; they discuss the question at great length; from every standpoint. Upon the question of the construction of the statute the pith of the argument on the one side is that the words used are of the masculine gender, and that long established custom and sound policy forbid a construction of this statute which will include women. On the other side it is contended that in this statute, as in all others, masculine words include women; that although women had not actually practiced at the bar, they have distinguished themselves, through many centuries of Italian history, in studies, lectures and treatises connected with jurisprudence and other sciences, and are now actually practicing other professions; that the laws of "redeemed Italy " have emancipated them from their former disabilities; and that there is now no rule of public policy which excludes them from the forum.

These arguments are greatly extended and profusely illustrated throughout the entire work with a fervidness of language and a richness and boldness of metaphor and illustration, which sound very odd and quaint to us, colder blooded Anglo-Saxons, whose taste prefers the discussion of scientific questions in a much less fervid and glittering style. I cannot attempt within the limits to which I must restrict myself, to do justice to either the courts, the disputants or the author; but I will select, for very brief consideration, a few of the points which

will be most interesting to American lawyers. The author begins, more Americano, with the list of the newspapers which have contained articles favorable to the admission of women to the bar, of which he enumerates twenty-five in Italy, and seven in other European countries, and on the other side only three. all Italian. The former, he says, neither blame nor approve the decisions of the courts, but they demand the passage of a law which shall clearly "fill so enormous a void." Then we are presented with the opinions of the other councils of the order of advocates, in answer to a request from the council of Turin. The council of Naples declined to express an opinion. The council of Milan gave no official opinion for want of a quorum, but its illustrious president gave his opinion that unmarried women and widows were admissible to practice, but not married women. The council of Venice, by a majority vote, expressed an opinion adverse to the right claimed for women; and the council of Rome, like that of Milan, failed to procure a quorum. But many illustrious professors of jurisprudence, and advocates, members of these councils whose names and the summary of their arguments are contained in the book, gave opinions at length in support of the right of women to practice; several of the discussions having taken place at public meetings, or in the course of lectures at the public institutions. Our author also gives the arguments of those who espoused the other side, upon several of whom, particularly upon an unfortunate Professor Gabba, he empties floods of irony and sarcasm. Inasmuch as the example of the United States was often quoted by those on the ladies' side, it occurred to a Signor Taverni, a teacher in the University of Padua, to "interview 99 our minister at Rome, Mr. William Waldorf Astor, and Signor Taverni gave the results of the interview in an address before a large public meeting held in Rome on the 18th of April last, which was attended by many ladies and gentlemen of all nations. The part of his address, which referred to Mr. Astor, produced, a Roman newspaper says, a deep impression, and gentlemen and ladies present took notes of it. Mr. Astor is reported to have said "that the public opinion of the Americans was not in favor of the exercise of professions by women, inasmuch as the female physicians, lawyers, etc., practicing in America, do not belong either to the aristocracy of money or to that of intellect. Nevertheless Signor Taverni favored the admission of women to the learned professions, not only for the reasons urged by others in support of that view, but also because there are in Italy in round numbers, 250,000 marriageable women "who will never have a husband, and are condemned to be eternal maidens ;" "for those," he continues, "neither wives nor mothers, there is no family obligation, and if society does not accord to them the right to exercise professions, the risk is run of making of them so many nihilists."

It appears that the literary ladies of Italy have also taken up the discussion of this question, and they are quite as much divided in opinion thereupon

as the men.

As might be expected, where the men argue so fervidly, some of the ladies push their arguments to the extreme. From an article by one of them whose name the author says that he suppresses "out of respect to her," the following extracts are given:

"How would a lawyeress (avvocata) be able to consult with her clients, when she was attacked by the nausea of the first months of pregnancy? And afterward what a figure she would make in court, when, the months of her interesting situation being advanced, her curved lines become crushed with an anterior round line? And if the pains should come upon her in the heat of argument! That would indeed be fine! Would she invite her colleagues to serve her as midwives? And in childbirth, farewell to business! Poor clients! I assure you that I laugh to myself thinking of the ridiculous figure that a woman lawyer would make." To which our author sarcastically adds, "And let us leave this lady to laugh, and thus she will make good blood, and will see her own curved lines increase, without giving cause for any malignant remarks."

A lady on the other side says "You say that women-lawyers are ridiculous. Why, I beg, any more than women editors?" (She is addressing an editoress). "And you add, that nothing can save a woman lawyer from the laughter of the public. Does this good public laugh, when it sees from the window of the railway car, either first class or third class, along-side of the track, the mother or the wife of the watchman, with his (uniform) cap placed over her headdress, waving the little green flag, which shows that the way is clear for the hissing machine? You continue, women who are intelligent, courageous and honest will find work every where. But that is not true, and the women lawyers prove it. They wish to work, to earn a living as you do as a journalist, and I as a teacher-by defending from the bar the widow and the ward; and you drive them away, although they are intelligent, because they have studied, learned, obtained the same degree in jurisprudence as a man; courageous, because they have presented themselves to seek for work, in spite of the prejudices and outcries of the crowd; honest, because they wish only to work, and to work honestly. You repelling them, in effect say to them, with your degree, if you wish to live, make stockings!"

The book contains much more of this very vivacious writing, but I must hasten to a conclusion. A chapter follows entitled "The common law and women lawyers; " then another in which the author contends that advocateship is not a public office. The next chapter relates to Italian legislation as affecting women lawyers. Under this head the author gives with great fullness the substance of the various statutes relating to and affecting women in all capacities; thus laying before his readers a very interesting account of the present state of the woman question" in general in the Kingdom of Italy. Coming down to that part of the decision

66

of the courts in Signorina Poët's case, wherein it was held that the ancient customs and usages of Italy forbade the extension to the statute relating to advocates of the ordinary rule of construction that masculine expressions include women, he gives many instances of Italian women who have been distinguished for their learning and abilities in jurisprudence as well as in other sciences. Among them in the thirteenth century were Dotta Accursio, professor of civil law in the University of Bologna; the sisters Calderini, who taught civil law, one in the same University of Bologna, and one in that of Padua; Maddalena Buonsignori who wrote a book "De Legibus Connubialibus;" and in the fourteenth century, Novella D'Andrea; professor of canon law in the University of Bologna, who, while delivering her lectures, "in order that the scholars should not be distracted, covered her most beautiful face with a thick veil." Various women are also mentioned as eminent professors of and writers upon medicine, letters and philosophy; one of whom, Laura Maria Gaetani Bassi, 1732, at the age of only twenty-one years, was made professor of philosophy, and after thirteen years service in that capacity, was promoted to the chair of experimental physics, in which she continued for thirtyfour years, having to the last the esteem and respect of all, and the veneration of the numerous scholars who flocked to her lectures; and she was, in addition, a most exemplary wife and mother. Another boast of the University of Bologna was Maria Gaetana Agnesi an illustrious author whose treatise was regarded by the University of Paris as covering every thing then (1748) known upon the differential and integral calculus; and who was also during all her life of eighty-nine years so distinguished for works of charity that she was known as "the consoling angel of the poor." She received her appointment from the Pope. Summing up these and other like cases, our author after noting that the Italian Universities are open to women, indignantly asks, what distinction can be made between degree and degree? Shall a degree in jurisprudence conferred upon a man open to him the career of an advocate, and the same degree conferred upon a woman compel her to mend stockings or rinse out the washing?

The next chapter relates to the question whether the authorization by the husband of a married woman is necessary in order to enable her to exercise the legal profession. Upon this point there is a great difference of opinion among those who maintain that women should be allowed to practice. The author states all the arguments with his characteristic fullness and fairness. These involve considerations of some peculiar featuresof the Italian law with reference to restrictions upon the general power of married women to conduct their own business, whereby the husband's consent is required, in any matter wherein the woman may incur a liability. The author concludes with his own opinion, which is to the effect that although a procuratore (attorney),

mayor, aldermen, etc., in brief, to lay out streets or wharves in front of those parts of the city which adjoin the East river, and from time to time to lengthen and extend said streets and wharves, to be completed at the expense of the proprietors of land adjoining or nearest; that such proprietors should fill up the spaces lying between their lots and such streets and wharves; and that upon so filling up and leveling the same they should become owners of said intermediate spaces of ground in fee-simple.

On December 31, 1856, the mayor, alderman, etc., passed an ordinance establishing East street as an exterior street along this portion of the East river. Without stopping to inquire whether the ordinance, and the proceeding to acquire title under it, were valid under the act of 1813, but assuming them to be so, East street, as thus laid out, would cross Twentythird street along the westerly line of Avenue C extended; and the same ordinance directed the existing numbered streets to be extended to East street, and that the proprietors of lands nearest to or opposite East street, as thus established, should make and complete the street and fill in the intermediate spaces by January 1, 1860. Before this ordinance was carried into effect, the work was arrested by the action of the harbor commissioners, appointed under the act of March 3, 1855, whose report, confirmed by act of the Legislature, passed April 27, 1857, fixed the exterior bulk-head line in that vicinity, as it now exists, far within the proposed East street, and prohibited any solid filling in beyond this bulk-head line. This line is somewhat to the eastward of Tompkins street (since discontinued), and is between Avenue A and the extension of Avenue B. The Bower estate, it is claimed, acquired the fee of the land between Tompkins street and this bulk-head line of 1857, by filling in the intermediate spaces, as provided by the act of 1813; but as I must assume, it did not build either the Twentysecond street or the Twenty-third street piers, nor did it ever obtain any express grant from the city of the lots lying east of Tompkins street, or of any right of wharfage thereon. As incident to the land thus filled in, it is claimed that the Brower estate acquired riparian rights, and the rights of wharfage along the bulk-head. It is along this bulk-head, between Twenty-second and Twenty-third streets, that the complainant, as lessee, alleges that his riparian rights are threatened with injury.

As I have before said, none of the premises occupied by the complainant were any part of the original shore; they were a part of the harbor of the city of New York, and far below even low-water mark. Riparian rights do not attach, as a matter of course, to a grant of such lands under tide-water. A right of wharfage in such cases, as an incorporeal hereditament, must be derived either from the express terms of the grant, as in Langdon v. Mayor, etc., 93 N. Y. 129, 150, and in Marshall v. Guion, 11 id. 461, or from the clear and manifest intent of the grant, as shown by the surrounding circumstances, such as prior use, or the declared intention of the grant. Langdon v. Mayor, 93 N. Y. 129, 144; Voorhees v. Burchard, 55 id. 98; Huttermeier v. Albro, 18 id. 48. In the absence of an express grant of wharfage, or of such manifest intention, the city or the State, as the case may be, may make successive grants of its lands under water, each in front of the former, to different grantees, without any violation of the rights of either; and neither the first nor the last grantee will acquire any exclusive riparian privileges. None of such grantees are in any proper sense riparian owners at all; and riparian rights do not attach to such grants. Weber v. Harbor Comrs., 18 Wall. 57, 67. In this State where the common law on this subject prevails, and the State is owner of the soil below high-water mark, it was long since settled

that a grant of such lands, even with a right to erect a wharf expressed in the grant, was by implication of law not an exclusive grant of wharfage rights; but that such rights, so long as they were not wholly cut off, were subject to be modified and abridged through other grants and other harbor regulations for the public benefit, without compensation. Lansing v. Smith, 8 Cow. 146; 4 Wend. 9, 22-24. And in the case of Gould v. Hudson River R. Co., 6 N. Y. 522, it was held by the Court of Appeals that an owner of upland along high-water line on the Hudson river had no exclusive riparian rights below that line, and hence sustained no legal damage from a railroad embankment built under a grant from the State which cut off his access to the river. This decision has never been questioned as a rule of property in this State. See People v. Tibbetts, 19 N. Y. 523, 528; People v. Canal Appraisers, 33 id. 461, 487. It was cited, and its principles reaffirmed, in the recent case of Langdon v. Mayor, etc., supra, where the decision rested upon an express grant of wharfage rights.

As establishing a law of property, these decisions would be binding I think, under section 721 of the United States Revised Statutes, as rules of decision in the Federal courts, even if there was no authority in the Supreme Court on this subject. Barney v. Keokuk, 94 U. S. 338. But the decisions of the Supreme Court are of precisely the same effect.

In Yates v. Milwaukee, 10 Wall. 504 (relied on by the complainant's counsel), the rights of even a strictly riparian proprietor are declared to be "subject to such general rules and regulations as the Legislature may see proper to impose for the protection of the rights of the public, whatever these rights may be." But in the subsequent case of Weber v. Harbor Comrs., 18 Wall. 57, the Supreme Court held that a grant from the State of land under water in the harbor of San Francisco up to the exterior line of the bulk-head, where the city already had by law the control of the wharves and of wharfage rights, did not confer on the complainant any riparian rights as against the city; and his bill filed to prevent such rights from being wholly cut off was dismissed. That case in all essential particulars was analogous to the present. It is true that the complainant there had built out a wharf for his own use. But the complainant here claims certain exclusive privileges in the slip beyond the bulkhead, which involves the same principle. It was not there proposed to abate the complainant's wharf as a nuisance, but to surround it by a larger wharf, and appropriate it to the public use. Had the complainant there been held to have had any right to exclusive privileges along his bulk-head, he would have been entitled to his injunction or to compensation. But the court say:

"The complainant is not the proprietor of any land bordering on the shore of the sea in any proper sense of the term. ** * There is no just foundation for his claim as riparian proprietor. He holds, as his predecessors took the premises, freed from any such appendant right. * * * They took whatever interest they obtained in subordination to the control by the city over the space immediately beyond the line of the water front, and the right of the State to regulate the construction of wharves and other improvements. * * * Having the power of removal (of the complainant's wharf), she could, without regard to the existence of the wharf, authorize improvements in the harbor, by the construction of which the use of the (complainant's wharf would necessarily be destroyed." Pages 65-67.

The same principles were again affirmed and applied in Barney v. Keokuk, 94 U. S. 324, and in the recent case of the Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 id. 672; S. C., 3 Sup. Ct. Rep. 445,

where it was held that a public street intervening between complainant's lots and the established river front cuts off any exclusive riparian rights in the owner of the lots on the opposite side of the street, whether the fee in the street be in the public or not, the complainant not having any express grant of wharfage rights.

The Federal decisions are in accord therefore with those of this State, so far as respects riparian rights attaching to grants of land under water in harbors or along navigable rivers. I find no case where any such exclusive rights are recognized, unless they are derived from the State or the city in express terms, or else by necessary implication from the circumstances of the grant. But if the act of 1813 and the ordinance of 1856 be looked to as sources of the grant of a right of wharfage, no allusion to wharfage or to any riparian rights, on the part of those filling in the intermediate spaces, is found there, except on condition of their having built the wharves or piers, which it is not here claimed that they did; and the whole tenor of both the act of 1813 and the ordinance of 1856 is manifestly inconsistent with the idea that the owners who should fill in the intermediate spaces were otherwise to acquire any right of wharfage, or even any title to lots to the water's edge, so as to become riparian owners at all. Under the ordinance of 1856, East street was to be an exterior street which would separate such proprietors from the water front, and under the act of 1813 an exterior street, like West street or South street, was also contemplated; but even had not such an exterior street been designed to intervene under the ordinance of 1856 and the act of 1813, to cut off any riparian ownership from those who might fill in the "intermediate spaces," still the act of 1813 itself manifestly confers on the city the right of wharfage on the wharves to be built out by it from the extended streets, and the control of wharfage rights. Subsequent acts have repeatedly confirmed this right. Langdon v. Mayor, 93 N. Y. 144, 145. The wharves form the slips; and without the protection of the wharves in the rapid tides of the East river, the bulk-heads themselves would be comparatively impracticable for use. The slips are so narrow, being not much above 200 feet wide, that the exercise of unrestricted rights of wharfage by an owner along the line of the bulk-head would moreover be plainly incompatible with the exercise of the same rights by the city upon its own wharves on each side of the slips. The slips formed by the wharves are appurtenant to and for the use and benefit of the wharves, and of the city which owns them, and of the public which is entitled to the full use of them; not for the use or benefit of the bulk-head owners. Without the full, and it may be exclusive use of the slips, the full use of the wharves cannot be enjoyed. If an owner along the bulk-head line can lawfully moor six, eight, ten, or even twenty canal boats at once along side the bulk-head, tier upon tier, as it is said the complainant sometimes has done, he may thus occupy the whole slip and exclude the public from the wharves altogether, and the city from its rightful wharfage and use of the slip. On the other hand, the full enjoyment of the wharves by the city or its lessees for wharfage purposes may, if the public needs require it, demand the use of the entire slip. There cannot exist therefore full riparian rights of wharfage in both parties at the same time. The act of 1813 leaves no possible doubt which of the two-the city which builds the wharves, or the owner who fills in intermediate spaces and thus becomes owner of the bulk-head lots-is intended to enjoy this right of wharfage. All that the act of 1813 gives to the latter is the title to the "intermediate spaces; an exterior street, as I have said, being contemplated by that act, which would exclude him from the enjoyment of ri

parian rights; while the city is to take the benefit of the wharves which it builds, and with them the use of the slips for the purposes of wharfage. No intention to confer riparian rights on the owner of spaces filled in can be deduced from the act of 1857, which prevented the construction of the proposed exterior

street.

As the estate of Brower therefore obtained no right of wharfage by the terms of any grant, nor by any intention of the city or State, from whom it derives title, it has not in my judgment any legal right, as against the city or its grantees, to convert the bulkhead into a wharf, and maintain it as such as a means of private emolument; nor even any proprietary right to the use of the slip adjoining the bulk-head as a place for landing its own boats, to the exclusion of any necessary use by the public under the city or its lessees. It may doubtless land boats there by sufferance, as any other citizen might do; but it has no right to obstruct the use of the slip, or of any part of it, which may be required by the public in mooring boats along either the Twenty-second or Twenty-third street wharves up to the line of the bulk-head, nor to interfere with any other appropriate use of a wharf, such as a ferry landing, which the city and State may authorize.

This case differs from all others which have been cited in support of the injunction, in the fact that the complainant and those whom he represents have neither any title to the slip or to the land in front of the bulk-head, nor any express grant of a right of wharfage, nor any evidence of any intent by the State or city to grant such a right. The case of Lansing v. Smith, supra, as above observed, long since decided that even if wharfage had been granted, subsequent obstructions in front, necessary for the public convenience, were no grounds for a claim of damages, so long as access, though impaired, still remained. In the present case a basin of 145 feet long by the wharf will remain free along the upper part of the bulk-head; while the lower part, embracing more than one-half the complainant's frontage, will be completely open and unobstructed as before.

The papers before me do not show any legal rights in the complainant beyond this means of access still reserved to him by the proposed structures; and without referring to the other points raised, the motion should, upon the above ground, be denied.

RAILROAD

If

HAYES V. NEW YORK CENTRAL R. Co.

a passenger upon a railroad train mislays his ticket, and acting in good faith fails to find it, until after the conductor rings the bell for the purpose of stopping the train and ejecting him; in an action against the carrier to recover damages for an unlawful ejection under such circumstances,

Held, that the omission to find and surrender the ticket or pay his fare before the bell rang is not equivalent to a refusal to do so.

Held further, that the passenger is entitled to a reasonable opportunity to find his ticket if he can, and in default to pay his fare, and it is a question of fact for the jury to determine whether or not such reasonable opportunity was allowed.