« AnteriorContinuar »
plaint for stealing at the same time and house the “If you will kill this horse for me I will give you $5." property of B, a different person. Rice v. Coolidge, “ All right,” said C, and C took the horse away with p. 393. One not a party to a former action may main him. C, however, did not kill the horse, but doctored tain tort against a person also not a party thereto for him and restored him to health. A, much to his sursuborning witnesses to testify falsely in that action prise, one day saw C driving a fine animal, which A whereby his character is defamed. Levi v. Brooks, p. unmistakably recognized as his formerly sick horse. 501. A master directing a servant to remove furniture | A demanded the horse from C; C refused to give him from the house of another is liable for a willful as-up, and A brought suit against C to recover possession sault committed by the servant in the execution of of the horse. The jury decided that C was entitled to the order and not for the private purpose of the ser- | the horse. Of course there was an appeal taken. vant. All we need say of the volume is that it is in every respect equal to its predecessors. Any thing
The Virginia Law Journal has discovered an ancient more it is needless to say.
order of court wherein a lawyer was punished for the crime of verbose pleading. We judge the law under
which this order was allowed has become absolute. COURT OF APPEALS DECISIONS.
This is the order: "Foras much as it now appeared to
this court by a report made by the now Lord Keeper, THE following decisions were handed down on Tues
being then Master of the Rolls, apon consideration 1 day, Oct. 2, 1877:
had of the plaintiff's replication according to an order Judgment affirmed, with costs – Coleman v. Crump;
of the 7th of May, that the said replication doth Peck v. N. Y. C. & H. R. R. R. Co.; Porter v. Kings
amount to six score sheets of paper, and get all the bury; Chittenango Cotton Co. v. Stewart; Kasson v.
matter thereof which is pertinent, might have been Kellogg Bridge Co.; Delemater v. Fonda, Johnstown
well contrived in sixteen sheets of paper, wherefore and Gloversville R. R. Co.; Comstock v. Drohan;
the plaintiff was appointed to be examined to find out Beebe v. Pyle; Spalding v. Rosa; Stout v. Woodward ;
who drew the same Replication, and by whose advice Eisenlord v. Snyder. — Order granting new trial
it was done, to the end that the offender might, for affirmed, and judgment absolute for plaintiff on stipu
example's sake, not only be punished, but also be fined lation, with costs - Campbell v. Smith.- Order af
to her Majesty for that offense; and that the defendfirmed, without costs to either party in this court
ant might have his charges sustained thereby; and for Buel v. Southwick. - Motion to dismiss appeal de
that it now appeared to his Lordship, by the confesnied, with $10 costs— Littauer v. Goldman. -Motion
sion of Richard Mylward, alias Alexander, the plainfor reargument denied, with $10 costs - Hebbard v.
tiff's son, that said Richard himself did both draw, Haughian.- Order granting new trial reversed and
devise and engross the same replication, and because judgment on report of referee affirmed, with costs
his Lordship is of opinion that such an abuse is not in Lanigan v. New York Gas-Light Co. — Judgment re
any sort to be tolerated — proceeding of a malicious versed and new trial 'granted, costs to abide event
purpose to increase the defendant's charge, and being Ross v. Hurd; Stowell v. Otis. — Judgment of Gen
fraught with much impertinent matter not fit for the eral Term reversed and judgment of Special Term
court. It is, therefore, ordered, that the Warden of affirmed, with leave to defendant to answer on pay
the Fleet shall take the said Richard Mylward, alias ment of costs, within twenty days after filing remit
Alexander, into his custody, and shall bring him into titur - Boyle v. City of Brooklyn.
Westminster Hall on Saturday next, about 10 of the
clock in the forenoon, and then and there shall cut a NOTES.
hole in the midst of the same engrossed replication
which is delivered unto him for that purpose, and put THE Illinois State Bar Association has issued a neat
the said Richard's head through the same hole, and so I pamphlet containing its constitution and its offi
let the same replication hang about his shoulders with cers and committees, and a brief statement of the pro
the written side outward, and then, the same so hangceedings had at the organization of the association on
ing, shall lead the said Richard bareheaded and the 4th of January last. We understand the associa
barefaced round about Westminster Hall, whilst the tion to be in a very flourishing condition. The pro
courts are sitting, and shall show him at the Bar of ceedings of the convention called for the purpose of
every of the three courts within the Hall, and then organizing the New York State Bar Association, to
shall take him back again to the Fleet and keep him gether with its constitution and by-laws, the rules of
prisoner until he shall have paid 101. to her Majesty for the executive committee, its act of incorporation and
a fine, and 20 nobles to the defendant for his cost in the names of its members elect, have been printed in
respect of the aforesaid abuse, which fine and costs are an attractive form for circulation among the profes
now adjudged and imposed upon him by this court for sion of the State, a very large number of whom are the abuse aforesaid." Sir J. Puckering, Lord Keeper, included in the list of members elect.
10th February, 1596.
Los Angelos has had a novel lawsuit. It came be- / Chief-Justice Waite is to occupy, during the coming fore a justice's court, and was to this effect: A had a season, the house, in Washington, in which the late sick horse which was in great suffering, and which he | Edwin L. Stanton lived. Col. Thomas Scott has leased thought was sure to die. So he took the horse to B, a Mr. Chase's old home on the corner of Sixth and E livery stable keeper, and said: “I will give you $5 to streets. It is once in a while recalled that Mr. Wilkill this horse for me." “ All right,” said B. So A liam Cullen Bryant practiced law for a short time, and paid the $5, left the horse in charge of B and went was so disgusted by a defeat in one suit through a away. B could not, however, summon sufficient nerve technicality, in words, that he abandoned the profesto kill the poor animal, so, in his turn, B said to C: | sion immediately, forever.
The Albany Law Journal.
ALL communications intended for publication in the sues involved in it, and (2) the writing out of the LAW JOURNAL should be addressed to the editor, and the results of such collocation. In other words, looking name of the writer should be given, though not necessa
up cases, and writing opinions, constitute a considrily for publication.
Communications on business matters should be ad erable part of the judicial work. Now the case law dressed to the publishers.
bearing upon the points argued in any cause could be looked up and arranged by any good lawyer, so that all the judge or court would have to do
would be to apply the same. This could be done in ALBANY, OCTOBER 13, 1877.
an opinion delivered orally, and written down by a stenographer. A practice something like this we
understand prevails, to some extent, in England. CURRENT TOPICS.
The magistrates have clerks who prepare the argued THAT the business coming before the courts of cases for decision, and the opinion. when one is 1 last resort in the more populous States is more given, is delivered viva voce. Such a plan might at than can be properly disposed of, has long been evi- | first work awkwardly, but we are confident that dent, and numerous plans have been devised to once fairly tried, there would be no return to the meet the difficulty. Occasionally a co-ordinate
one now in vogue. Not only would the judges be court or commission has been organized to clear off
relieved of much drudgery, but they could dispose arrears, and enable the regular tribunal to take a of business much more rapidly, and thus more nearly fresh start with new cases only to attend to. This accomplish the duties which are imposed upon them. has, however, afforded only temporary relief, and It is at least worth while to make a trial of the syshas been attended with the disadvantage of bring- tem suggested. That now in use certainly is not ing uncertainty into the enunciations of law, the
the proper one. two final arbiters being liable to differ. This latter circumstance has prevented the permanent es
The Court of Appeals, on the 10th inst., took a tablishment of a double final court. Yet the popu- | recess until the 12th of next month. The session lar sentiment applies in a way somewhat different just closed has been a comparatively brief one, havfrom what it was intended to be applied, the maxim
ing been less than a month in duration About interest reipublicæ ut sit finis litium, and demands ninety cases were decided. Many of these were that the highest appellate court shall dispose of all previously argued and considered, but as the the business brought before it promptly, and shall court has given four days in each week to the give the reasons for its conclusion in almost every hearing of arguments in cases pending, the aggreinstance. The judges try to meet this demand in gate of the business transacted was quite large. the only manner they are able, and that is by work. The next session, however, will show a much larger ing themselves beyond their strength. The result | record. The provision not allowing an appeal in is that they break down early, being compelled to actions where the amount involved is less than five retire either entirely or partly from the labors con
rtly from the labors con- | hundred dollars, is showing its effect in reducing nected with their positions, within comparatively a the calendar to a manageable size. If the limit few years after assuming them. Some men of strong could be increased to one thousand dollars, it is physical powers may sustain the severe strain to probable that the judges could at present dispose of which the judges are subjected, up to the period in all the business brought before them without overlife beyond which the Constitution of this State | working themselves as they are now doing. does not allow any one to hold the judicial office, but these instances are few. And the worst feature
We have received a number of communications of the whole matter is, that there is, and can be no relative to the new rules regulating admission to the change in the condition of things for the better, at
bar. Most of these are from young men who have least as long as judicial work is done according to been anticipating an early entrance into the profesthe system now or heretofore in vogue. The crowd
sion, but who must now wait some years before they of suitors about the courts is daily becoming greater,
attain to the dignity of attorney, and some more bethe judges are working harder and failing earlier.
fore reaching that of counselor. The burden of There must be some remedy for all this, but no sat-|
these epistles usually is that the rules bear more isfactory and permanent one has yet been suggested.
harshly upon those who are obliged to earn their
own living, and, therefore, cannot spend three years' The judges might, however, be relieved very time in a clerkship where the remuneration is very much by the use of certain aids which, though small. They thus make the legal profession accessible not heretofore adopted here, are practicable and to those only who are possessed of means. We are proper. The greater part of the labor connected very sorry for these young men, but for all that the with the determination of a case consists in (1) the rules are proper. Their object is not to benefit or collocation of the authorities bearing upon the is- I to injure any individuals or class among those seek
VOL. 16.— No. 15.
ing admission to the bar, but it is to protect the In an article upon the Court of Star Chamber, in community from such harm as would result from the current number of the American Law Reviero, incompetence, ignorance and dishonesty among the from the pen of the late Emory Washburn, some profession. It is very seldom that a man is fitted to very pertinent reasons are given for the retention of commence the practice of the law with less than the mode of trial by jury. There have been adthree years' training, and if there is occasionally an vanced from time to time many very plausible arguexception to this rule, it furnishes no reason for the ments for the abolition of the time-honored system abrogation of a regulation based upon the general of the common law and the adoption of some more fact. As to the advantage given to those blessed expedient way, and these arguments have in some with a competence over others by the new rules, it States resulted in the abrogation of the grand inis a result that cannot be avoided. The advantage, quest. The abolition of the jury, it is intimated, however, has its compensation, and we should not would tend to influence in an improper way the be surprised if under the new system, as under the character and the conduct of the judiciary, for it is old, those starting in the profession possessed only said “the same men who as judges of the common of a determined spirit and a sound body, would | law while surrounded by the checks and limitations distance those of more fortunate surroundings in which usage and tradition had gathered within the the race for honor and position.
precincts of their courts, had conducted themselves
in a manner to escape censure or odium, removed At the recent Antwerp Conference one of the more thence into the murky and corrupted air of the Star interesting discussions was upon the subject of the Chamber, were the first to violate the fundamental execution of judgments and orders of foreign courts. principles of the common law, and were ready to Two papers were read, one by Dr. Tristram and the go the farthest in discarding its salutary and timeother by Mr. Alexander. The first-named gentle-honored rules." That a removal of the jury would man reviewed the doctrines enunciated by the lead- have a similar effect upon the judges of our courts ing authorities, and suggested certain propositions there is little doubt. Juries are liable to err, but as the basis upon which an uniform international they do it in most instances in the safe direction, code of law regulating the subject might be readily Some times strict justice is in its results the height and satisfactorily passed. The other paper sketched of injustice. The courts, however, dislike to look at the existing practice of several nations, and stated results but are governed wholly by principle and preprinciples which, according to leading modern cedent. The juryman, on the other hand, weighs the writers, ought to govern. As stated by a member probable effect of his decision and in a case not free of the Conference, the practical conclusions at
from doubt endeavors to reach a conclusion that which the papers arrived were similar; that uni will bring the happiest end. In other words, he versal justice requires and ought to regulate the considers the equities of the case more than the recognition in each country of the judgments of courts. We trust the day is far distant when the foreign courts.
jury will be shorn of any of its power. The law is supposed to give an adequate remedy for every wrong, but there seems to be an exception The block of business in the English courts is to this rule when the wrong affects a member of the such that steps have been taken by prominent pracbar. This is evident from the result of a motion titioners to establish tribunals of arbitration, wherein for temporary injunction made in New York last those willing to do so can have their differences adweek in an action brought by George the Count | justed. The proposed tribunals will be constituted Johannes, an attorney and counselor in the Supreme of two, three or five lay referees, taken from the Court of this State, against one Sothern, a playlists of special jurors, to exercise the functions of a actor, to restrain the defendant from performing in jury, associated with a legal referee of special rea character which it was alleged was a burlesque pute, to exercise the functions of a judge. The representation of plaintiff. The motion was ably trials are to be conducted according to the proargued but the court, after one or two adjournments cedure and practice at nisi prius, and the sittings against the wishes of the plaintiff, cruelly denied are to be upon three days of the week, and to be the same upon the technical grounds that the mov | continued without intermission through the year. ing party bad produced no authorities to warrant The plan appears to be a good one, but will probathe issuing of an injunction in such a case and no bly accomplish very little, for the reason that only evidence that the statements alleged by him in his such controversies as may be transferred to official complaint were true. We suppose the plaintiff will referees can be brought before it, except by consent not rest satisfied with the decision made, but will of parties. Now in almost every litigation there is appeal to the General Term, where the rights and one party, usually the defendant, who does not wish privileges due to titled rank and professional posi- progress to be made. The object of his defense is tion are more thoroughly appreciated.
to obtain delay, and not an adjudication of his rights. Such a party will not consent to any dispo- | 1 Johns. & Hen. 243; Johnston v. Renton, L. R., 9 sition of the case that will lead to an early trial. Eq. 181; Taylor v. E. I. P. R’y, 4 DeG. & J. 559; Consequently cases transferred to the new tribunal | Denny v. Lyon, 38 Penn, St. 98. In such a case by consent will be comparatively few, and as to where the relief given to the plaintiff does not reother cases it furnishes no advantage over the quire or involve the decision of any question bemethod of trial by referee, except that a sort of tween co-defendants, the court, unless by consent, jury is provided to pass upon the facts. We imagine does not and cannot decide such a question, so as to the success attending the movement will be about bind the co-defendants as against each other, but equal to that with which the experiment of courts | leaves it to be settled in a proper suit between them. of arbitration has met with in this State.
Cotton v. Eastern Counties R’y Co., Johnston v. Renton,
| above cited; Cottingham v. Shrewsbury, 3 Hare, 627; The Washington correspondent of the New York | Fletcher v. Green, 33 Beav. 343; Sewall v. Boston Tribune states that the choice for Supreme Court Water Power Co., 4 Allen, 277, 283; Carlton v. JackJustice to fill the vacancy caused by the resignation son, 121 Mass. 591, 597. of Judge Davis, has fallen upon John M. Harlan of Kentucky, the former partner of ex-Secretary Bris
The case of College Street Meth. Episcopal Church
V. Kendall, 121 Mass. 528, was an action to recover tow. While the name of the appointee has not
the amount of a subscription made by the defendbeen mentioned prominently in connection with the office, it is conceded on all sides that he is in every
ant's testator toward the erection of an edifice for way an excellent selection.
religious worship. It appeared that at a meeting of the members of the congregation of the church
named as plaintiff, at which testator was present, NOTES OF CASES.
the question of erecting the building was discussed In the case of Pratt v. Taunton Copper Co., re
and a subscription was opened to see how much cently decided by the Supreme Judicial Court of I could be obtained for the purpose, and the secreMassachusetts, plaintiff was the owner of shares of
tary of the meeting wrote down in their presence, stock in the defendant company, for which she had and with their knowledge, the names of those exa certificate. This certificate was taken from her
pressing a willingness to give with the amounts house without her knowledge, and together with a named by them. Testator's name was put down for forged power of attorney in her name to the com- | $500, and he afterward orally admitted and ratipany, authorizing it to transfer the same, was de- fied the subscription. The edifice was built and livered to a stock broker, who procured a new cer occupied for the use of the congregation mentioned. tificate which was sold to an innocent purchaser, to | It did not appear, however, that the erection of the whom the company issued another certificate. Plain
building was upon the faith of testator's promise or tiff brought a bill in equity against the company and
that the plaintiff or its trustees incurred or assumed the purchaser, praying that the latter be compelled
any obligation in reliance upon such promise. The to surrender his certificate, and the former to issue
court held that the defendant was not liable, saying a new certificate for the shares of stock held by her. I that the subscription was a gratuitous promise deThe court held that the plaintiff could not be de
not be depending wholly upon the good will which prompted prived of her stock without her consent or negli- lit and could not be enforced at law. See in support gence on her part, and that the power of attorney of this conclusion, Exchange Bank of St. Louis v. in her name being forged, she might maintain the
Rice, 107 Mass. 37; 9 Am. Rep. 1; Fisher v. Ellis, 3 bill to compel the company to issue a certificate to
Pick. 322; Bryant v. Goodnow, 5 id. 228; Amherst her for her shares, and to pay her the dividends
Academy v. Coules, 6 id. 427; Williams College v. thereon. This holding is supported by the cases Danford, 12 id. 541; Thompson v. Page, 1 Metc. 565; of Ashby v. Blackwell, 2 Eden, 299; S. C., Ambl. Ives v. Sterling, 6 id. 310; Walkins v. Eames, 9 Cush. 503; Sloman v. Bank of England, 14 Sim. 475; Mid- 537: Murick v. French. 16 id. 196: Athol Music Hall land Railway v. Taylor, 8 H. L. C. 751; Pollock v. Co. v. Cary, 116 Mass. 471. In Hanson Trustees v. Nat. Bank, 7 N. Y. 274; Sewall v. Boston Water Power Stetson, 5 Pick. 506, in which the subscription was Co., 4 Allen, 277; Brown v. Howard Ins. Co., 42 Md.
to increase a ministerial fund, the court found it a 384; S. C., 20 Am. Rep. 90. But it was held that fact agreed, “that in consequence of the accumulashe was not entitled to a decree against the innocent
tion of the fund by these means, the great purpose,
namely, the settlement of a minister, has been efpurchaser. See Salisbury Mills v. Torensend, 109
fected,” which constituted a consideration. The Mass. 115; Lowry v. Commercial Bank, Taney, 310; suggestion in Bryant v. Goodnou, supra, substanBush v. Laurier, 11 Wall. 369; In re B. & 8. F. R’y, tially repeated in Ives v. Sterling, and Walkins v. L. R., 3 Q. B. 584. If he had claimed under a trans
Eames, supra, that “it is a sufficient consideration
that others were led to subscribe by the very subfer which he knew, or was bound to know to be
scription of the defendant," is said in the principal forged or invalid, a different case would have been
case to be but obiter dictum, and inconsistent with presented. Cotton v. Eastern Counties Railway Co., I elementary principles.
(XXI James I, ch. 17), permitting it among sinful INTEREST UPON INTEREST.
men as unlawful in point of religion and morals. THERE is a wide-spread impression among laymen But whatever the analogy that pleads for interest I that to receive interest upon interest is a viola- | upon interest in certain cases, the current of decistion of the laws against usury. It prevents the ions has been too strong against it in this State to creditor from receiving compensation for his debt permit the courts to grant it except under excepor's delay even when it is tendered, which the law tional circumstances. permits him to take and retain, although it will not In Townsend v. Corning, 1 Barb. 627, Gridley, J., assist him to recover it from an unwilling hand. | in the course of his opinion upon the validity of a
To compound the interest piles up the debt with note given partly for interest upon interest, says: fearful rapidity, but on the other hand there appears “Yet I will assume, as the law of this case, that a to be no reason why the debtor should not suffer the reservation in a new security of compound interest usual penalty for his default, and be compelled to that had accrued upon a sum previously due, against recompense his creditor for the damage the law as the will of the debtor, and as a condition of forbearsumes in similar cases that he has suffered.
ance upon the new security, affects the security with The common law was averse to interest of any usury and makes it void." He then says it becomes kind, simple or compound, and the prejudice against a question of fact whether it was extorted as a price compound interest has survived to our own times, | for forbearance and against the will of the debtor, although the aversion is now justified on the broad and there being no evidence to show either of these ground of public policy.
usurious ingredients, decides that the security is In this State interest upon interest is only allowed | valid. under special circumstances, but the moral justice As appears from the foregoing his assumption of of the demand is acknowledged and the creditor's law was not necessary to the decision of the case, title is perfect when he has received the money. for there was no evidence of objection by the de
In the case at least of instruments to secure the fendant. But whatever its necessity the assumppayment of a debt after a long lapse of time, and | tion has foundation in either the statute or common providing that it shall bear interest payable at fixed | law of the State. times, it would seem that in the event of any such In Kellogg v. Hickok, 1 Wend. 521, it had been installment of interest remaining unpaid interest | decided that if parties accounted together concernupon it should be recoverable.
ing the amount due and by the consent of the As Judge Monell said in one case: “The moment debtor included compound interest, the new security interest becomes due it is a debt.” Moreover the for the amount including it was not usurious. debtor is bound to seek his creditor and pay it. | Although the conclusion arrived at was correct it Williams v. Hance, 9 Paige, 211. Why should not was reached upon false grounds, for it was assumed, interest be allowed upon failure to pay this debt as | as in the former case, that interest upon interest inwell as upon any other? Such an allowance of in cluded in a security might make it usurious and terest certainly would not conflict with the usury void, while, as we have said before, it is never on laws. They forbid “any greater sum or greater the ground of usury that compound interest is not value for the loan or forbearance of any money, permitted to be taken, but because it is regarded as goods or things in action " to be taken, than seven unjust and oppressive. dollars upon one hundred dollars for one year. This The learned judges seem to have had in their would hardly seem to forbid an award of interest as minds the relief that equity gives to any contract damages in such a case. It would not be a pay forced upon a party by duress and oppression, not ment for the loan of the original sum, but a penalty meaning that compound interest could avoid an for the debtor's delay in making payment of a dis instrument, but that if by an unconscientious mistinct and separate debt.
use of his debtor's necessities the creditor exacts That it cannot be recovered when voluntarily paid compound interest, a court of equity could relieve shows yet more distinctly that taking interest upon him as they would from any other contract he might interest is not forbidden by the usury laws. Then be brought into by such means. Thornhill v. Evans, again it can be recovered if a demand has been made | 2 Atk. 330. Finally this assumption has not been of it. This certainly precludes the idea of usury. adopted in subsequent decisions, for we never again In several cases it has been clearly stated that it is find the question of forbearance and willingness not because it is usurious that interest upon interest raised, while it has been expressly decided that a is not allowed, but that it is frowned upon because demand of interest is sufficient to turn it into princiit is opposed to the policy of our law as tending to pal which from thenceforth draws interest. injury and oppression.
The cases of Crippen v. Hermance, and Williams It seems too to be still under the ban of that me- v. Hance, in 7 and 9 Paige, are sometimes cited to diaeval prejudice which prohibited all taking of in- sustain the proposition assumed by Judge Gridley. terest and stigmatized it in the English statute 'The most cursory examination will show that in