Imágenes de páginas

ton; Bruce v. Griscom; In the Matter of the Petition to plead guilty or not guilty at Kingston Assizes. The of Willett; In the Matter of the Petition of the Sec London Magazine for August, 1735, contains a horrible ond Baptist Church of Harlem; People ex rel. Kim and detailed account of a man who was actually ball v. Boston and Albany R. R. Co.- Order af-pressed to death at Horsham for obstinately remainfirmed, without costs in this court – Lawrence v. Lind. | ing dumb when placed upon his trial at Lewes Assizes. say.- Judgment affirmed, without costs as between In this case the weights placed over the unhappy man the plaintiff and the executors of Devlin, and with were gradually increased to a total of 350 pounds, costs to Donnelly, Keuffer and Toel against the execu when the executioner completed his task by adding tors of Devlin, de bonis testatoris – Getty v. Devlin his own quota of sixteen stone."-- A lawyer in Stras(two cases).- Order sustained as to claim for to burg being in a dying state, sent for a brother lawyer bacco, and reversed as to the claim for the check, and to make his will, by which he bequeathed his estate to order of arrest modified by reducing the amount for the Hospital des Fous (Idiots). His brother advocate which the defendant was held to bail to $2,500, with | expressed his surprise at his request. “Why not beout costs to either party – Barnett v. Selling. stow it upon them?” said the dying man, "you know Judgment modified by inserting a provision adjudging I obtained my money from fools, and to fools it ought the right of children of the testator's son, Alexander to return." M. Lesley, born before the time for distribution, to

The knowledge of law prevailing among the English share in the estate, and as so modified affirmed, with

lower classes is illustrated by the following story: Not costs of all parties to be paid out of the estate --- Ste

long ago an officer of the London school board was venson v. Lesley:- Appeal dismissed, with costs

crossing Covent Garden market at a late hour, when Wagner v. Long Island R. R. Co.; Alling v. Fahy.-

he found a little fellow making his bed for the night Judgment reversed and judgment ordered for defend

in a fruit basket. “Would you not like to go to ants, with costs – People ex rel. Babcock v. Murray.

school and be well cared for?" asked the official. - Judgment reversed and new trial granted, costs

"No," replied the urchin. “But do you know that I to abide event -- Peyser v. The Mayor, etc.; Health

am one of the people who are authorized to take up Department v. Knoll.-- Order granting new trial

little boys whom I find as I find you, and take them to reversed and the residue of the judgment of the Gen

school?" "I know you are, old chap, if you find them eral Term and the Special Term affirmed, without

in the streets, but this here is not a street. It is pricosts to either party in this court — Frost v. Yonkers

vate property, and if you interferes with my liberty, Savings Bank

the Duke of Bedford will be down upon you. I knows NOTES.

the hact as well as you." WE are pleased to welcome a new comer into the The late Mr. Warren, the author of Ten Thousand a W field of legal journalism. The San Francisco

Year, left a personal estate sworn under $60,000. He Law Journal is the title of a weekly periodical, pub

bequeathed the manuscript of Ten Thousand a Year lished by Messrs. W. T. Bagett & Co., at San Fran)

to his eldest son, “trusting he will retain it as an heircisco, California, the initial number of which ap- |

loom as long as possible," and makes provision for his peared on the 1st inst. The principal purpose of this wife and younger children. The residue of his proppublication is to furnish at an early date and in an ac- erty he also leaves to his eldest son.- Chief-Justice ceptable form the decisions of the courts of California

Gray, of Massachusetts, goes to court like a magistrate and those of other States having a general interest to of Colonial days. He rides in saddle from Pittsfield the profession. Cases decided in the Supreme Court |

to Boston -- a distance of 100 miles - and goes home of California and in the United States District Court in the same fashion when the court is over. for that State appear in the first number. The Journal must prove of great value to the profession upon the

This item of law news comes from Turkey. It apPacific coast, and we trust it will receive a cordial

pears in a newspaper called the Bassiret, published at support.

Stamboul: “A lengthy lawsuit took place lately be

tween two Englishmen; but although it was tried beAn exchange says: “The phrase privilý and apart' fore all the courts in London, and the whole of the is a corruption of the old English, “privily and apert.' written authorities on English jurisprudence were • Apert' is an obsolete word from the Latin, aperio, to diligently ransacked, they failed to arrive at a satisopen, and which meant 'openly, publicly.' 'Privily factory decision. At last the English government in and apert,' meant then 'privately and publicly.' The

despair asked its ambassador at Constantinople to inphrase is twice used in this sense by Chaucer in his quire if the matter could not be settled in accordance • Wife of Bath's Tale.' At present it seems to be a with the religious or civil law of Turkey. The ambasredundant expression for private.” The phrase as | sadur communicated with the Porte on the subject, now understood may seem redundant, but as corrected

which referred to the Sheikb-ul-Islam, who found in it would be nonsense. It is used in describing the pri a fetra of Ali Effendi's a passage which entirely solved vate examination of witnesses, or of a wife when exe

the difficulty. The ambassador accordingly sent a colcuting a conveyance. An acknowledgment by a wife

lection of these fetras to London for translation into taken on a private examination, “apert(openly or | English, and wrote a letter of thanks to the Sheikh-ulpublicly), from her husband, would hardly satisfy the

| Islam. Oh! happy followers of Mahomet! Behold a statute, neither would it satisfy the rule upon which

nation like the English, which, although it has arrived

at the highest pitch of civilization, is not able to dethe statute is founded.

cide a lawsuit by means of its own tribunals, but is

compelled to have recourse to our holy laws, and transA correspondent writing to the London Times says: late them for the benefit of its own courts of justice! In your review of the work by Mr. Paterson, 'Com | Such an incident can only have the effect of placing in mentaries on the Liberty of the Subject,' etc., allu

their true light the perfection of our religious laws, of sion is made to the fact that so late as 1726, a gentle

enhancing the reputation of Islamism and of doing us

the highest honor." The Euglish ambassador proman underwent the 'peine forte et dure' for refusing 'nounces the story outrue.

ALL communications intended for publication in the , edly come in even now, but the most unscrupulous LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessa

ones will be kept out, and the few who get in will rily for publication.

be comparatively powerless for harm. Communications on business matters should be addressed to the publishers.

The changes which have taken place in the laws The Albany Law Journal. of this State in respect to admission to the bar since

1845 are somewhat remarkable. At the time of the ALBANY, OCTOBER 6, 1877.

adoption of the Constitution of 1846, a period of

seven years' study was an indispensable prerequisite CURRENT TOPICS.

to entitle any one to be licensed as an attorney, and AFTER a period of thirty years during which ad-three years spent in active practice must then ensue A mission to the bar of this State has been to a before he could be permitted to assume the dignity great extent a merely formal matter, the ancient re- of counselor at law. In 1846 there was a strong, quirement of a term of clerkship has been restored, popular feeling against all class distinction, and the and those who hereafter ask to come into the legal constitutional convention of that year embodied profession must give evidence that they are familiar the popular will in its work. It destroyed many not only with the theory of the law but that they political institutions that had undoubtedly outlived have, at least, had an opportunity to learn some-their usefulness, and had become positive evils. thing of the routine work which the attorney holds The old systems of practice; the separation of law himself out as capable of performing. By the rules and equity; the intermingling of the legislative regulating admission to the bar, adopted by the and judicial branches were matters that called for Court of Appeals on the 28th ult., and which went | reform. But the multitude demanded further into effect on the first day of the present month, three changes. The judiciary were appointed and the very important changes have been made. First. The popular voice could be heard but indirectly in the examinations for admission, when not conducted by matter, so the convention made the judicial office the court, are to be conducted by a committee of elective. The lawyers were an influential body, and three lawyers of not less than seven years' standing, the long period of probation required rendered it who are to be appointed as heretofore, but are to impossible for the great majority of citizens to hope hold their positions for one year. Second. The for admission to the bar, accordingly the bar was requirement of clerkship in an office is applicable thrown open to "every male citizen of the age of to every candidate, no exemption being made of twenty-one years, of good moral character, of the those holding the diplomas of law schools. The requisite qualifications of learning and ability.” But regular period of clerkship is to be three years. this did not let in every one, and, of course, did not To graduates of colleges one year allowance is satisfy the popular demand; consequently, in 1847, to be made, and attendance at a law school will the legislature enacted that any person of good also be counted in estimating the time of clerk moral character, although not admitted as an atship; but no person can be admitted without torney, might act as such if specially authorized in out at least one year's service in an office. Third. writing by the party employing him or personally The admission after three years' clerkship is only to nominated in open court. But the pendulum now the degree of attorney, two years' further study or began to swing backward. The courts declared practice and an additional examination being neces- 1 the act of 1847 unconstitutional, and no attempt sary to entitle to admission as a counselor. The was made to provide a substitute. Laws were made effect of these alterations upon the character of the indeed authorizing the graduates of certain law bar, though they will not immediately be percepti schools to enter the bar without examination, but ble, must be very great. That they will render it this was not in the direction of laxity in reference more learned, more honest, and more influential, 1 to admission to practice. In 1869 the Constitution there can be little doubt. That they will tend to was amended in respect to the judicial organization, separate it from the people to some extent and give and the clause restricting the qualification to age it somewhat of its ancient exclusiveness, is also and general learning and ability, omitted. In 1871 probable. But if faithfully carried out they must the legislature authorized the Court of Appeals to result in working a great change for the better, both ordain rules regulating admission, and in accordas concerns the profession and the public. If the ance with this authority, rules requiring a term of bar is honest and powerful, liberty and justice are clerkship were promulgated. But graduates of law safe, and it will be honest and powerful so long as schools were excepted from the operation of these the barriers which surround it are sufficient to pre- rules and this fact gave rise to considerable comvent the incoming of the great multitude of indi | plaint. The new Code ($$ 56 to 60) gives authority viduals who would enter it merely for the purpose for the present rules, which will, we are confident, of making money. Some of this class will undoubt- 1 meet the approval of the profession generally.

VOL. 16.– No. 14.

Among the most interesting papers read before The enormous amount of litigation in New York the recent Antwerp Congress were those relating to city is shown by the calendars of the courts at the the Egyptian International Tribunals which were opening of the autumn sessions. The General Term opened in 1876. As will be remembered in each of the Supreme Court begins with 327 cases, the of the courts of first instance, under this system, circuits with 2,475 and one of the Special Terms three foreign judges sit with two natives, and in with 250 cases. It is said that the aggregate numthe appellate courts five foreigners are associated ber of cases awaiting trial or argument in the variwith three natives. Their jurisdiction is only of a ous branches of this court, reach nearly 7,000, of civil or commercial nature, and criminal questions which about 5,000 are old, and 2,000 new. In the are determined under the old system. All civil and Superior Court, on the jury calendar alone there are commercial questions between native and native, 780 cases. Then there are the Federal courts, with or foreigner and foreigner of the same nationality, a large number of cases waiting, the Court of Comare also outside the new jurisdiction. The countries mon Pleas, the Surrogate's Court, whose pending represented in the magistracy comprise the United proceedings no man can number, and last, but not States, England, Germany, Austria, Russia, Italy, least in business, the Marine Court, which starts off Belgium, Holland, Denmark, Sweden and Greece. with 3,000 cases on its trial calendar. This vast The Codes used are substantially those of France. aggregate of business would indicate that the The reputation of the tribunals for justice and courts in New York city were not liable to be idle promptness is best evidenced by the fact that na during the coming year, and also that litigation is tives assign claims against other natives to foreign- very popular there. As a very considerable proporers in order to have suits brought before them. The tion of the suits awaiting trial have been commenced only trouble which has been experienced by the since the courts adjourned for their summer vacacourts is the difficulty of carrying out judgments tions, the large accumulation of cases is an eviaffecting the personal interests of the Khedive and dence that the courts are believed to be honest, that his family. In other respects they have been de adjudications are promptly made and that the excidedly successful.

pense of going to law is not unreasonable. And

we presume the facts will accord with these indicaIn an article appearing in a recent number of the

tions. Nineteenth Century, an English magazine, Sir J. F. Stephen makes some very valuable suggestions in

The Central Law Journal, in commenting upon regard to codification. “The great object,” says he,

certain remarks lately made by a New York judge, “still to be effected is the improvement of the form

condemning the allowance of excessive legal fees, of the law by its condensation and rearrangement.

hints that a judicial officer who is paid a large This is essentially a literary problem though it is not

annual salary is not in a position to animadusually regarded in that light, but till it is so re

vert upon the allowances usually made to referees garded and till systematic and organized efforts are

and counsel, which, as a rule, amount to much less made for its solution as such, I do not believe that

than a judge in New York receives for services recodification, except in some isolated subjects, will

quiring no greater ability or learning, and involving be possible, and I doubt whether an attempt to

the expenditure of no more time or labor. There codify other parts of the law would be of much real

is, undoubtedly, something to be said on both sides use.” As a first step to the accomplishment of the

of the question, though the extravagant allowances result aimed at, he proposes the publication of a

| frequently made to referees, who perform little or series of reports which shall stand to the revised

no service, has long been a scandal to the profesreports in the same relation in which the several

sion in New York city. statutes stand to the body of statute law, and which should contain that part of the existing reports

NOTES OF CASES. which is still living law, the obsolete, overruled and IN the case of Wassum v. Feeney, 121 Mass. 93, it unauthoritative decisions being omitted, and the re- | | is held that, although an infant is disqualified ports being shortened by the omission of useless from serving as a juror, yet, if his name is on the matter. He would have the cases reported classic list of jurors returned and impaneled, his serving fied according to their subject-matter. To do this as a juror does not entitle a party against whom a work he suggests the appointment of a body similar verdict has been rendered to have the verdict set to the Council of Law Reporting, to be named the aside, although he was ignorant of the fact of minorCouncil of Legal Literature. The plan of Mr. ity until after the verdict. This is in accordance Stephen has this very important advantage, that the with the general rule that, when a party has had an work done by the proposed council would be of opportunity of challenge, no disqualification of a great value to the profession even if a code should juror entitles him to a new trial after verdict, which not result therefrom.

has been applied where the disqualification was interest or relationship. Jeffries v. Randall, 14 Mass., overruled, however, in Blades v. Higgs, 10 C. B. 205; Woodward v. Deane, 113 id. 297. It was even (N. S.) 713, which was an action of assault for takapplied in a capital case, where the juror was not of ing personal property forcibly from plaintiff's hands. the county or vicinage, as required by the Constitu See, also, Harvey v. Bridges, 14 M. & W. 437; Davis v. tion. Anonymous, cited, 1 Pick. 41, 42. So, also, Burrill, 10 C. B. 821, 825. See as overruling Sampwhere the juror was disqualified by alienage, and son v. Henry, 11 Pick. 379, upon the question of asthe fact was not known until after verdict. Hol- sault, Eames v. Prentice, 8 Cush. 337; Curtis v. lingsworth v. Duane, 4 Dall. 353; State v. Quarrel, 2 Galvin, 1 Allen, 215. Also, Mugford v. Richardson, Bay 150; Presbury v. Commonwealth, 9 Dana, 203; 6 id. 76; Winter v. Stevens, 9 id. 526. Other Rex v. Sutton, 8 B. & C. 417. In the case of Chelsea American decisions of weight sustain the ruling in Water-Works Co., 10 Exch. 731, Baron Parke said: the principal case. Jackson v. Farmer, 9 Wend. 201; “In the case of a trial by a jury de medietate Overdeer v. Lewis, 1 W. & S. 90; Kellum v. Jamson, linguae, which, by the 47th section of the jury 17 Penn. St. 467; Stearns v. Sampson, 59 Me. 568; act, is expressly reserved to an alien, he may not Sterling v. Warden, 51 N. H. 217. See, also, 4 Am. know whether proper persons are on a jury, yet, if Law Rev. 429, where the different decisions upon he was found guilty and sentenced to death, the the subject are carefully examined, and 4 Kent's verdict would not be set aside because he was tried Com. (12th ed.) 118, note 1, and cases cited. by improper persons, for he ought to have challenged them.” See, also, Selleck v. Sugar Hollow T. Co., 13

A somewhat novel question was involved in the Conn. 453: Greenup v. Stoker. 3 Gilm. 202. See, case of Rice v. Coolidge, 121 Mass. 393. The declahowever, as maintaining a different doctrine, State ration alleged that in a suit for divorce brought in V. Babcock, 1 Conn. 401; Guykoroshi v. People, 1 Iowa, between persons not parties to this action, Scam. 476; Briggs v. Georgia, 15 Vt. 61. In the defendant suborned witnesses to falsely testify that latter case it was held that the want of a freehold a party to that suit had committed adultery with qualification in a juror unknown at the time of the plaintiff in this, and did other acts in connection, trial. was ground for setting aside a verdict. In having the effect to defame and with the purpose of Mann v. Fairlee, 44 Vt. 672, the summoning of a juror defaming plaintiff. Upon demurrer to the declarawho was of a class of citizens from which jurors tion, it was held that the action was maintainable. might be selected, but whose name was not in the The general rule in England is, that judges, counjury box, was held ground for a new trial. See, sel, parties and witnesses are absolutely exempted also, The King v. Tremaine, 7 D. & R. 684; 5 B. & from liability to an action for defamatory words C. 254. But see, as sustaining the principal case, published in the course of judicial proceedings. Page v. Danvers, 7 Metc. 326; Case of a Juryman,

Henderson v. Broomhead, 4 H. & N. 569; Revis v. 12 East, 231, note; Hill v. Yates, id. 229. In Smith, 18 C. B. 126; Dawkins v. Rokeby, L. R., 8 Q. Rex v. Sutton, supra, Lord Tenterden said: “ I am | B. 255; Seaman v. Nethercliff, L. R., 1 C. P. D. 540. not aware that a new trial has ever been granted on This qualification of the doctrine exists in this counthe ground that a juror was liable to be challenged try in respect to parties, counsel and witnesses, that if the party had an opportunity of making the

in order to be privileged, their statements made in challenge.”

the course of an action must be pertinent and ma

terial to the case. White v. Carrol, 42 N. Y. 161; 1 Am. In the case of Low v. Elwell, 121 Mass. 309, it

503; Smith v. Howard, 28 Iowa, 51; Barnes v. McCrate, is held that the owner of land who forcibly enters

32 Me. 442; Kidder v. Parkhurst, 3 Allen, 393; Hoar thereon and ejects, without unnecessary force, a

v. Wood, 3 Metc. 193. The court, in the principal tenant at sufferance, who has had reasonable notice

case, decides, however, that the privilege does not to quit, is not liable to an action for assault. This

extend beyond the classes named. Thus, if a witdecision is probably supported by the recent English

ness, at the instigation of a party, swears to a decases, though there are authorities in the other famatory falsehood, and a counsel comments on it, direction. In Hillary v. Gay, 6 C. & P. 284, it was knowing it to be false, the person injured has no held that if the landlord, after the expiration of the

action against either counsel, witness or party, but

if a stranger to the suit instigates such false tenancy, by force puts the tenant's wife and furni

swearing he is liable. In the cases of Bostwick v. ture into the street, he is liable to an action quare Lerois, 2 Day, 447, and Smith v. Lewis, 3 Johns. 157, clausum fregit. In Newton v. Harland, 1 Man. & Gr.

Lewis brought an action in Connecticut against sev644, it was held that under such circumstances the

eral defendants and prevailed. Afterward, Bost

wick, one of the defendants in the original action, landlord was liable to an action of trespass for as

brought suit in Connecticut against Lewis for subsault and battery. See, also, as supporting a simi orning a witness in that action; and Smith, another lar doctrine, Dustin v. Cowdry, 23 Vt. 631; Stearns defendant, brought a similar action in New York. v. Sampson, 59 Me. 568; Page v. DePuy, 40 Ill. 506;

It was held, in each case, that the action could not

be maintained because, as was said by Kent, J., it Reeder v. Purdy, 41 id. 279; Sampson v. Henry, 11 |

was “an attempt to overhaul the merits of a former Pick. 379, and 13 id. 76; Larken v. Avery, 23 suit." See, also, to the same effect, Dunlop v. GlidConn. 304. The case of Newton v. Harland, supra, was 'den, 31 Me. 435.

| instance referred to the inaction of the public DEAD-LETTER LAWS.

authorities was in great measure attributable to the MUCH reproach is justly thrown upon the admin absurdly.bloodless event of the combat, but that is

istration of justice by the failure to execute the really a very slender excuse. Of a still graver comlaws. Complaints arise on every hand that crime plexion is the case of one who with impunity kills is rampant and increasing, and that the laws are not another upon the pretext of injured honor. This is stringent enough. The difficulty arises not so much the most serious example of a dead-letter law. Both from want or inadequacy of legislation, as from the | human and divine law enact, “thou shalt not kill;" indifference of society and the consequent laxity of but if a man can bring himself to believe, or at least execution of existing laws. The community seems to say, that another has seduced his wife or his sister to satisfy itself by enacting wholesome statutes, and or his daughter, he may safely kill him unwarned after that quietly disregarding them. There is a and at sight. The most extraordinary feature of formalism in law as in morals and religion, Francis this case is that the act which constitutes the excuse the First of France built a connecting passage be- for the killing is not one which our law forbids. tween the apartments of his mistress and his oratory, Society seems to have left the punishment of it to and on his return from his nocturnal visits to his individual caprice and revenge. favorite was wont to spend a few moments on his It is not a little remarkable that the very laws to knees in prayer. As the amorous monarch deemed infractions of which the magistrate is required parthat his sin was atoned by his devotion, so society | ticularly to draw the attention of the grand jury in compounds for the commission of many offenses by every charge to that body, namely, the laws against a vigorous statutory denunciation of them.

usury, bribery, lotteries, extortion, violations of exMuch of the attention of legislators and magis- | cise provisions, and circulation of obscene literature, trates has been devoted to the endeavor to avert the are the most prominent examples of dead-letter most common and the most inevitable of events — laws. The amount of money loaned on legal interthe death of human beings. A very interesting est is less than that for which usury is exacted. Not chapter might be made of the subjects of this | an election is held, from highest to lowest, at which branch of legislation, and a review of the infinite candidates do not openly and by wholesale buy votes. minuteness of detail which the law has descended Lotteries, and the sale of lottery tickets, are winked to, and the inquisitorial supervision which it has at even in the cause of religion, as at church fairs. adopted, in the attempt to make human beings care The excise laws are defiantly violated, especially on ful and considerate of the lives of others, and even Sundays. Obscene literature is common, and every of their own. It would seem as if a very small picture shop and news-room has semi-obscene prints approximation toward safety had been the result of | prominently exposed to sale. Once in a while the all this thought and care. The disasters of the Ash- judge lays special emphasis in his charge to the tabula bridge and the Brooklyn theater were only grand jury on these things, and this uniformly rather unusually emphatic declarations of the in-amuses his audience. When he speaks of extortion superable truth, that it is vain to struggle against and bribery the lawyers wink at the sheriff, district the dread forces of nature, when allied with the attorney and county clerk, who have all notoriously parsimony, ignorance, indifference, carelessness, and been guilty of bribery at the last election, and of recklessness of mankind. Our laws regulating the whom the first charges for hundreds of untraveled construction and care of steam-boilers, bridges, and | miles, and the last for hundreds of unwritten folios. buildings, public and private; the conduct of navi There is always within hearing some note-shaver or gation and public travel; the manufacture and care mortgage-smasher, and some hotel or saloon keeper of explosive substances; the sale of alcoholic liquors who keeps open bar on Sunday. But cui bono? The and poisons; the management of infectious diseases; persons who ought to tremble are as unconcerned the custody of dangerous animals; the practice of as Ralph Waldo Emerson was about the minister's medicine; and supervising many other similar mat prayer. Some years ago the Yankee philosopher ters — all these cannot restrain frost, flame, pesti | had delivered an oration before a literary society of lence, lightning, tempest and hidden vapors, nor | Middlebury College, in the college chapel. His render mankind intelligent, vigilant and consid- address was succeeded by a prayer from an olderate.

fashioned clergyman, who did not approve of Mr. Human life is not always safe from the moral | Emerson's ideas, and who prayed among other indifference of mankind. Our statute book con- things that “the Lord would deliver them from ever tains a stringent law against duelling, including the hearing any more such transcendental nonsense as case of persons going out of the State for the pur- | they had just listened to from that sacred desk.” pose of fighting a duel; and yet it has recently been | After the meeting was out, Mr. Emerson inquired demonstrated that persons may with impunity dis- the clergyman's name, and on being informed, obey this law without even exciting an attempt to quietly remarked, “he seems a very conscientious, enforce its provisions. It may be urged that in the plain-spoken man.” So the officials aforesaid, and

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