Imágenes de páginas
PDF
EPUB

atte

WHEN PAYMENTS UPON ILLEGAL ASSESS

goods. The oral protest was of no import, save to show

that there was not an assent to the proceedings. Fowler MENTS RECOVERABLE.

v. Lance, 59 N. Y. 603, 610. Coercion by law is where a

court having jurisdiction of the person and the subjectNEW YORK COURT OF APPEALS - SEPT. 25, 1877.

matter has rendered a judgment which is collectible in

due course. There the party cast in judgment may PEYSER V. MAYOR OF NEW YORK.

not resist the execution of it. His only remedy is to Money involuntarily paid on an illegal assessment may be

obtain a reversal, if he may, for error in it. As he recovered back. If the assessment is regular on its cannot resist the execution of it when execution is face, so that its collection can be enforced by seizure or sale, and evidence aliunde is necessary to show its

opted he may as well pay the amount at one time invalidity, money paid thereon is paid involuntarily or as at another and save the expense of delay. It may

by coercion by law. Coercion in fact and coercion by law defined.

be well to say, that if the judgment is not afterward

reversed, but is invalid for any collateral reason, or APPEAL by plaintiff from a judgment of the Gen

the process issued upon it is illegal, payment with A eral Term of the Supreme Court in the First De

knowledge of the fact would perhaps be voluntary, partment, affirming a judgment in favor of defend

which seems a sound distinction taken by Eunott, J., in ants. The action was brought to recover the amount

Lott v. Sweezy, 29 Barb. 87-92. To each case of coerof an assessment paid to defendants under these cir

cion by law, as is above given, are to be added those cumstances: In the latter part of July, 1869, plaintiff

quasi adjudications of inferior tribunals, such as assessreceived a notice from the bureau of collection of as

ors of taxes or assessments, where their proceedings sessments of the city of New York, stating that an

are regular on their face, and on presentation make out assessment had been made upon his property and con

a right to have and demand the amount levied, and to. firmed. The plaintiff then paid the amount of the assess

collect it in due course of law by sale of goods or mument under protest. An action was brought by plain

nicipal lease of real estate. Unless void on their face, tiff and others, and the assessment was declared in

they have the force of a judgment; the party is valid, after which plaiutiff brought this action to

legally bound to pay and has no lawful mode of resistrecover back the amount paid.

ing. The only remedy is a reversal of the adjudicaA. R. Dyett, for appellant.

tions. Until reversed they give the collector of the

tax the right to take and sell goods and the assessment D. J. Dean, for respondents.

remains a prima facie valid lien upon real estate. FOLGER, J. The reversal of the assessment and the Bank of Comm'l v. The Mayor, 43 N. Y. 184-8. setting it aside as illegal and void, is conclusive that. There is no clashing here, with the case of N. Y. & the money obtained upon it by the defendants was H. R. R. Co. v. Marsh, 12 N. Y. 308. In that case got from the plaintiff without primary right. In such there was wanting another element, which is assumed case the general rule is, that the money ex æquo et

to exist, in the cases above supposed. There had been bono belongs to the plaintiff aud is held by the defend- | no reversal of the assessment of tax, in that case. ant for his use. The law raises an obligation on There had been no alteration of the rights and posithe part of him who has received the benefit of it, tions of the parties, and the action was brought upon to make restitution. It is upon this principle that the same state of facts, as existed when the payment an action is maintainable to recover back money

was made. Besides, iu that case, the collector did collected in satisfaction of an erroneous judgment | not assert a right to seize property then and there. which has been reversed after payment made. Bank

There was no taking nor imminent danger thereof. of United States v. Bank of Washington, 6 Pet. 8; Stin

He was out of his bailiwick, which fact was as well ges v. Allis, 10 Wend. 355; Clark v. Pinney, 6 Cow. 297.

known to the plaintiff as to him, and at the time payBut in actions to recover money paid in such case, ment was made as when action was commenced. Nor another principle comes in and must be observed.

is it the same as Fleetwood v. The Mayor, 2 Sandf. 475. That is, that the payment must be involuntary, which

There it was apparent upon the face of the proceedis tantamount to saying that it must be compulsory,

ings, that there was no foundation for them, no ordifrom coercion either in fact or by law. The reason of

Dance having been adopted for laying the assessment. this principle is, that a person shall not be permitted,

The owner of the laud assessed could always have rewith knowledge that the demand made upon him is lied upon this as a defense to an action to disposses illegal and unfounded, to make payment without re

him. The lessee of the city would have needed to show sistauce, where resistance is lawful and possible, and and would have failed to show an ordinance for the asafterward to choose his own time to bring an action sessment. The assessments were not a cloud upon his for restoration, when perchance his adversary has lost title, warranting an action to remove an apparent lien. the evidence to sustaiu his side. I have spoken of co Marsh v. City of Brooklyn, 59 N. Y. 280; Washburn v. ercion in fact and coercion by law. By the first, I mean Burnham, 63 id. 132. To warrant an action to recover that duress of person or goods, where present liberty back money paid by coercion of law upon a judgment, of person, or immediate possession of goods, is so or tax levied, or assessment laid, it must appear that needful and desirable, as that an action or proceedings the judgment or proceedings were prima facie regat law to recover them, will not at all answer the ular, so as not themselves to furnish evidence of pressing purpose. Duress of person is exemplified their own invalidity, and it must also appear that in Forshay v. Ferguson, 5 Hill, 154; Eadie v. Shimmer, | the rights and positions of the parties have been 26 N. Y. 9. The cases of Maxwell v. Griswold, 18 How. | changed since the payment was made, as by a reversal (U. S.) 242, 256, and Harmony v. Bingham, 12 N. Y. 99, for error, or a setting aside for irregularity or illeillustrate what is duress of goods. It may be well to gality. say that there can be no pretense in this case of a coer- By the setting aside of the assessment in the case in cion in fact. There was no taking or threat of taking hand the last of these requirements is made out. We must look into the case to see if the first is. The com- ought to stand as high as any in the world - we need plaint alleges, that the defendants imposed and put hardly describe. It became, like any other trade, a upon record what appeared to be and was an assess very large body of dealers of all sorts. Lawyers ment on the plaintiff's land, and that the same became swarmed, just as dry-goods men swarmed - some of and was an apparent lien and incumbrance thereon. them men of learning and high character, others, and The answer admits that the assessment was duly im- by far the greater number, shiftless, ignorant persons, posed pursuant to law. The petition for the vacating trying to get a living in any way they could. When of the assessment, which was given in evidence, al- you said a man was a member of the bar, you said leges on the ground of illegality that there was in- nothing as to his character or attainments. You simcluded in the amount, the cost of works not author ply said that he was ready to conduct litigation, for ized by the ordinance in pursuance of which the assess any one who employed him; just as if you said he ment was laid. The order of the court setting aside kept a store, you thereby gave no indication of the the assessment recites that it satisfactorily appears quality of his wares or the state of his credit. One that each irregularity took place. This is sufficient to had to inquire about a lawyer's standing with the show that the illegality of the assessment consisted in same care and precaution as, bnt with much more difsomething aliunde the record which would be produced ficulty than, about the standing of a dealer in Yanby a municipal lessee, to establish his right to posses- kee notions. The scandal and mischief of this state sion of the lot assessed. It was in a fact of which the of things became apparent, of course, before many plaintiff would have needed to make proof on his part years, and of late the examination for admission has to rebut the prima facie case made against him. It been somewhat more rigid, but has still remained a thus appears that the plaintiff fulfilled the other re totally inadequate test of skill and capacity. As a quirement of a payment in voluntarily made.

preparation for a profession like the law, the members It follows that the complaint was erroneously dis of which really assist in an important degree in the missed at the trial, and the judgment should be re administration of justice, and in which mistakes inversed.

flict such injury on innocent people, knowledge is not “ All concur.”

enough. Long familiarity with procedure is also requisite, and it is shocking injustice to allow this

familiarity to be wholly acquired in actual practice THE BAR AND THE COURTS.

and at expense of clients. THE Court of Appeals of this State has instituted a The change, therefore, which the Court of Appeals I much-needed reform by the promulgation of a body has just made is not simply a reform in legal educaof rules regulating the admission to the bar, the most tion: it is another striking indication of the reaction prominent features of which are the requirement of a against the hazy sentimentality which the triumph of three years' clerkship in an attorney's office, and two the democrats thirty years ago embodied in so much years' practice as attorney, before beginning to prac. State legislation, and with so much resulting mischief tice in court as a counselor, with certain allowances of and demoralization. Thinking people have begun to time in the period of clerkship to graduates of col see, though only through much bitter experience, that leges and universities as well as students in law schools. although theologians may have greatly exaggerated Down to a very recent period the only qualifications the natural man's depravity, yet as he comes into the for admission required by the courts in this State world be is “no great thing” after all; that it is not were: the male sex, full age, citizenship of the United what he is, so much as what he is capable of becomStates, and ability to pass an examination which was ing, that is admirable and valuable about him; and little more than a sham. This extraordinary facility that the best and kindest thing that can be done for was the result of the constitution of 1846, and was due | him is not letting him run loose like a sacred ox, and to the democratic hostility, of which the constitution | then trying to see hidden meaning in his pranks, but was in large part the expression, to all artificial quali providing the means by which his great powers can fications of whatever nature for any calling or office. be cultivated and his base inclinations curbed. InMan as man, in the simple character of a furless ani- deed, if we said that education and preparation were mal, probably never stood so high in this or any other the ends as well as the meaus -- pay, even more than country as at that time, and the notion that he needed the means - of civilization, we should not be far any training or preparation for any duty or pursuit wrong. was almost treated with scorn as an antiquated delu The evils of an ignorant, and untrained, and undission. The long period of apprenticeship (seven years) | ciplined bar are, however, not by any means confined which had previously stood in the way of young males to the mischief done to clients, as the history of the desirous of pleading causes, had come to be regarded profession during the last thirty years in this State as an instrument of oppression devised by the well-to has abundantly shown. One of the highest functions do for the exclusion of “the poor boy" from a lucra of the bar is the vigilant criticism of the bench. Totive calling; and in order that he might have a full ward the judges the bar represents the public in a chance all restrictions on his admission were remorse sphere in which the public cannot act for itself, and in lessly swept away, and the relations of the bar to the matters of which a layman can form no adequate public placed on exactly the same footing as those of opinion. Whether a judge is good or bad is something dealers in butter. In other words, the practice of the which in a proper state of things the bar ought to be

nverted into a trade, and placed under the relied on to tell us; if corrupt or incompeteut, it is rule of caveat emptor. If you wanted to know whether the bar which ought to rid us of him. This would be a lawyer understood his business or not, or was honest true, even if our mode of selecting judges were the and trustworthy or not, you were told to try bim : best now in use, and if the dignity and emoluments and if you found him incompetent or were cheated by of the bench were, as they once were, such as to make him, your remedy was to go to another. The effect judgeships eagerly sought by, or at all events not unof this on the profession in this city - the bar of which I welcome to, leading lawyers. It is doubly true with a system of selection which is probably the worst RECENT BANKRUPTCY DECISIONS. ever devised in a civilized country, and in the pres

ASSIGNEE. ence of the fact that the bench as a general rule does

When entitled to disbursements : priority.--Where an not tempt the foremost men in the profession. For

insolvent who has made a general assignment for the this function of watchful criticism, however, an edu

benefit of creditors is afterward adjudged a bankcated and disciplined bar is necessary - that is, a bar

rupt, the assignee under the assignment is entitled to prepared for its work by some process of training and

his disbursements legitimately made in the execution selection, and controlled in actual practice by some

of his trust, but is not entitled to priority as to his tribunal charged with a censorship of professional

compensation as such assignee, nor as to attorneys' morals. To assign it to a heterogeneous body, such as

fees incurred in connection with the assignment, as ours, would be useless, even if the bench were all it

to such items he stands in the same position as other ought to be. On such a bench as came into existence

creditors, and must prove his claim. U. S. Dist. Ct., in this city between 1856 and 1870 a bar such as this,

Minnesota. In re George Lains, 16 Nat. Bankr. Reg. of course, was no check whatever. In fact, it may be

168. said to have entered into an alliance with the corrupt

ASSIGNMENT FOR BENEFIT OF CREDITORS. judges for the spoliation of the public and the degra- | Delivery of schedules: laches of assignee in bankdation of justice. We believe it is strictly true that I ruptcy.--Delivery of schedules is not necessary to the during those fourteen years when the judges were validity of an assignment for the benefit of creditors. daily waxing bolder in their excesses, until finally

A delay of more than three months in filing the petiBarnard and Cardozo laid aside even the pretense of tion in bankruptcy after the execution and delivery of decency, and some of their brethren were moving

an assignment for the benefit of creditors, will deprive rapidly forward in their tracks, no open word of warn

the assignee in bankruptcy of the right to the possesing or remonstrance came from the bar. There was

sion of the property assigned. U. S. Dist. Ct., W. D. among the better class of lawyers plenty of grumb

Michigan. In re Kimball, Austin & Co., 16 Nat. ling in their offices. Some refused to take cases be

Bankr. Reg. 188. fore certain judges, and others went so far as to say

COMPOSITION. that they would advise no young man to begin the Notes given in : practice in proceedings for.- Where practice of the law in this city; but none dared to notes given upon a composition settlement fall due raise his voice publicly against the awful scandals pending action upon a petition to review the order of which were disgracing the State and nation, or make confirmation, and the petitioners refuse to receive any organized effort to bring the ermined malefactors payment, the money must be paid into court in order to justice. In fact, in the very last days of Barnard's to absolve the bankrupt from liability. Under such iniquities, he was able to get a testimonial as to judi circumstances, upon a subsequent demand of paycial character in a published opinion from a leading ment by the creditor, and refusal by the bankrupt, the member of the bar; and we have little doubt that, former is entitled to a summary order for payment. had he demanded one from the whole bar, it would U. S. Dist. Ct., S. D. New York. In re Reynolds, 16 have received an extraordinary number of signa Nat. Bankr. Reg. 176. tures.

INJUNCTION. The truth is that only lawyers of a high character Against assignee for the benefit of creditors of and courage will ever make an enemy of a judge if bankrupt.- Upon the institution of proceedings in they can possibly help it, because, unless they can bankruptcy an assignee for the benefit of creditors drive him from the bench, he has it in his power to may be enjoined from interfering with the debtor's ruin their practice. Indeed, he must be a singularly assets before an adjudication has been had. U.S. and notoriously bad man if he cannot, when he is Dist. Ct., Minnesota. In re Skoll, 16 Nat. Bankr. attacked, rally them around him and get them to | Reg. 175. roll their eyes with him over these monstrous as

JURISDICTION. saults — go full of danger to the administration of jus 1. When State courts have.- State courts have jutice - on bis judicial integrity. In this city it was risdiction of actions brought by an assiguee in bankleft to the press, with its limited knowledge and its ruptcy to set aside mortgages alleged to have been liability to damaging mistakes to fight the public bat made in fraud of the bankrupt act. Sup. Ct., Illinois. tle against the company of knaves who had seized on Isett v. Stuart, 16 Nat. Bankr. Reg. 191. the administration of justice, and to rouse the popu 2. Service of process.- Personal service made upon lar faith in the possibility of successful resistance. one of the members of an insolvent firm out of the When the uprising came and it was plain that the po- | jurisdiction of the District Court, in which the petisition could be carried, there were plenty of lawyers tion is filed, is not sufficient to give the court jurisdicto head the assaulting column and do the work of tion to adjudicate as against the party so served. Ib. final expulsion. But it must ever remain a shameful 1 3. Impeachment of jurisdiction.-The jurisdiction memory that Barnard could say that down to the fall of the bankrupt court may be impeached in collateral of the Ring no lawyer or lawyers of eminence had actions. Ib. ever openly called attention to his iniquities. From a

PRACTICE. recurrence of such disgraceful episodes in forensic 1. Non-appearance by creditor in bankrupt court, history we have no doubt the improvements in legal effect of : waiver.-A creditor having a lien upon the education will help to save us, but the public spirit bankrupt's estate may decline to appear in the bankand courage of the profession cannot be roused and rupt court, in which case he will be unaffected by the its sense of duty to the public be quickened in a year; proceedings unless the proper steps are taken to sell these things will come slowly, and through a more the estate and clear off all incumbrances; or he may complete recognition in legislation and professional elect to prove his debt in the bankruptcy proceedings discipline of the weakness as well as of the strength and rely upon his security, and such action will be a of human nature.-The Nation.

waiver of his right to institute any suit or proceeding

in any way inconsistent with such election. Sup. Ct. may not have been in vain, and that may be the means App., Virginia. Spilman v. Johnson, 16 Nat. Bankr. of enlightening those not professed in the law as well Reg. 145.

as lightening the labors of those who are." In the 2. Attorney for assignee purchasing property.-An | only instance where he has attempted the “enlightobjection that the purchaser at a sale made by the as-ening” process, he has only made the darkness visisignee in bankruptcy was the attorney for the assignee, ble. and as such was incapable of purchasing, cannot be Mr. Keiley attempted in the former edition to reraised in a collateral action, but must be made in the | enact a repealed law. In this edition he cites as law a bankrupt court. Ib.

General Term decision (filling half a page with a syl3. When United States District Court should not re labus of it), without stating that the decision, on the strain proceedings in State court.-Where an assignee | only point in the case, was reversed in the Commission sold property incumbered by a chattel mortgage, with of Appeals, or making any other comment; yet on the out an order of court, and the mortgagee brought very next page he states without comment of any kind trover against the purchaser in a state court, in a the decision of the Commission which reversed the county where the parties and their witnesses resided, | decision of the General Term. Gates v. Lyon, on pp. held, that, even if the District Court had jurisdiction 93, 94. to restrain the prosecution of the suit, it ought not to We cannot imagine for what purpose the book is do so under the circumstances of the case. U. S. Dist. published. It is, as we have said before, worse than Ct., E. D. Michigan. In re Cooper, 16 Nat. Bankr. worthless; and its publication with the expectation Reg. 178.

of imposing it upon the profession is about the great

est exhibition of effrontery we have ever seeu or heard BOOK NOTICES.

of. Language too strong cannot be used in condemn

ing it. We can ascribe its faults to naught else than KEILEY'S INSOLVENT ASSIGNMENTS.

Mr. Keiley's ignorance of law, inability to reason logiThe Law and Practice of Insolvent Assignments in the State

cally, and incapacity to marshal his ideas and give utof New York, with forms. By William S. Keiley, Coun. selor at Law. Second edition. New York: Banks & terance to them with clearness.

Brothers, 1877. WE have before spoken of Mr. Keiley's book (AL Texas Court of APPEALS REPORTS, VOL. I.

BANY LAW JOURNAL, June 10, 1866, vol. 13, p. | Cases Argued and Adjudged in the Court of Appeals of the 419), and attempted to show its many faults. On

State of Teras, during the Austin and Tyler Terms,

1876, and the Galveston Term, 1877. Reported by Jacklearning that Mr. Keiley had issued a second edition son & Jackson. Vol. I. St. Louis : Soule, Thomas & of his work, we had a faint hope that it would be an

Wentworth, 1877. improvement on the first, but we are disappointed. The Court of Appeals of Texas was organized on the There are worse errors and more of them in this edi- 6th of May, 1876, under a constitutional provision tion than appeared in the other. Mr. Keiley still con- which went into effect April 18, 1876, and an act of the tinues indulging in the reprehensible practice of fre legislature adopted May 6, 1876. It is a court of appelquent and wholly unnecessary repetition, and in the late jurisdiction, but it and its judges have the right make up of the book he has adopted the same methods to issue writs of habeas corpus, and such writs as may of inflating its volume. Many of the instances of re be necessary to enforce its own jurisdiction. It consists iteration and repeated quotation which we pointed out of three judges, and the concurrence of two is sufficient in our notice of the first edition occur in the volume to decide a case before it. It entered upon business imbefore us. We are pleased to see that Mr. Keiley has mediately upon its organization, and the present volwithdrawn the preposterous legal propositions men ume records its decisions for the first year of its existtioned by us, but we are very sorry that Mr. Keiley in ence. Among the cases of interest in the volume are this edition has advanced others equally absurd. We these: Chiles v. The State, p. 27 : It is here held that cite but two instances. On page 37 he gives his view | betting in itself is not forbidden by the law of the of the purpose of filing the assignment or a certified State, but only certain kinds of betting, such as at copy of it. He says: “This [the assignment) should games, tables and banks prohibited by law. Therefore, be filed, not for the purpose of vesting any title in the a bet upon the result of a game of ten pins, the alley for assignee, for his title is absolute for the purposes of the playing of such game being licensed under the the trust by virtue of the assignment; but the object is State law, was held not unlawful. It was held, how. that any purchaser at an assignee's sale might have re ever, in O'Tuttle v. The State, p. 365, that a bet upon course to this certified document as a necessary link in an unlawful game, played upon a licensed table suitahis chain to the title thereof, in any action which he or ble for such game, was unlawful. Dorsey v. The State, others claiming under him may see fit to bring." The p. 33; Rogers v. The State, p. 187; and Jenkins v. The other original proposition of Mr. Keiley's which we State, p. 346, are cases of rape. In these cases it is held refer to, is certainly sound, for it amounts to a tru that evidence impeaching the general character of the ism; no sane man would question it, yet we cannot prosecutrix for chastity, is admissible, not to excuse conceive of what benefit a knowledge of it would be the offense, but to raise a presumption of consent; and to any person, lawyer or laymau. He takes up the in the latter one it was also held that to convict, subject of the "requisites for an assignee," and says: there must be shown something more than a mere “ Any one can be chosen as an assignee, whether he be want of the female's consent; there must have been a creditor or not, unless he may be legally or phys- | resistance on her part. Dill v. The State, p. 278: The ically incapacitated" (p. 39), but he does not explain evidence of an accomplice must be corroborated, not how one “may be legally or physically incapacitated;". merely as to the commission of the offense, but also by in other words, he says simply that the law permits evidence of the fact that the accused was engaged in one to be chosen assignee except where it does not per the commission of it. A wife of an accomplice is a mit him to be chosen! In his preface to this edition competent witness to corroborate his testimony. he says: “I send out the work, trusting that my labor | Masten v. The State, p. 525: Entry through an open

ner.

outer door, and then through a latched or locked in- ble in almost every page. The rapid development of ner door, with intent to commit felony, is burglarious. | the law relating to the subject treated of, since steam Johnson v. The State, p. 609: The admission as a wit has become the chief motor power on both land and ness of a girl ten years old, who stated that she at- sea, has required numerous additions to be made, altended Sunday school, and knew it was wrong to tell though the statements of principle are unchanged. a lie, held not error. Plasters v. The State, p. 673: If a Five hundred cases have been added to this edition. party whose arrest is attempted under legal process, The new matter, amounting to about forty-four pages, knows the purpose and official character of the officer, has been incorporated with the additions made by the and the arrest be otherwise lawful, it is his duty to same editor to the fourth edition, and is printed in notes submit, and resistance is unjustifiable, though the offi- designated by the letters of the alphabet, while the cer makes no declaration of his official character and notes of the author are designated by numerals. The purpose. Waddell v. The State, p. 720: Though a book itself is too well known to the profession to reson may by force aid a parent when attacked, he can- quire a statement of the contents of the volume here. not assist when the parent is the assailant. The re- | It is sufficient commendation to say that the editor's porting is thoroughly well done, and the mechanical

| work is, in every respect, worthy of the treatise upon execution of the book is good.

which he has done it, and the profession will find no

book which compares with the one before us, devoted Wood's FOLKHARD'S STARKIE ON SLANDER AND to the now important subject of common carriers. LIBEL.

The work is well indexed, contains a table of cases Folkhard's Starkie on Stander and Libel, including Pleading

cited, and is printed and bound in the very best manand Evidence, civil and criininal ; also Malicious Prosecutions and Contempts of Court. By Henry Coleman Folkard, Esq., Barrister at Law. Fourth English Edition. With Notes and References to American Cases. By H. G. Wood. Banks & Brothers, New York and Al

CORRESPONDENCE. bany, 1877. The profession will thank Mr. Wood for reproduc

DIGEST OF “NEW YORK” REPORTS. ing, in so attractive a form, this valuable work. Starkie

To the Editor of the Albany Law Journal : on Slander has been long and favorably known, but the

SIR- In your JOURNAL of October 13, “J. D.” comwork as rehabilitated by Mr. Folkhard has not before

| plains that certain cases named are not to be found in been seen here. The last-named gentleman has, how

the above Digest under the head of "set-off.” It ever, made some very important additions to the orig

ought to be held a sufficient answer to say (if it be inal treatise, not only by bringing the case law therein

true) that they do not belong there. referred to down to the present time, but by pointing

Smith v. Felton, 43 N. Y. 419, will be found under out the distinction between the former and the pres- |

the head of Equitable defense.” 2 Dig. 584. Also, ent practice of the English courts, so that the reader

under the head of “ Partnership.3 id. 234. And a may be better able to determine the applicability of

reference to the Table of Cases will show where the late English cases involving questions of practice. The

case is to be found. I submit the case was properly potes added by Mr. Wood are to the American practi

placed in each instance. tioner no less valuable than the other parts of the

Smith v. Fox, 48 N. Y. 674 (not "684"), is merely cited work. Every American case of value is referred to,

| (2 Dig. 203) in this manner: “On this subject see Kerr from the earliest to the latest, and the principles enun

v. Blodgett, 48 N. Y. 62; Smith v. Fox, id. 674." ciated fully and correctly given. Almost every section

This reference was designed only to aid the reader in throughout the volume is annotated, and Mr. Wood's

making a further examination, if desirable, not to notes are thoroughly reliable. This is, therefore, an

sustain the heading. “Assignee need not sue as excellent treatise on the American law of slander and trustee," which was sufficiently supported by the case libel. The volume opens with a general commentary

| first cited there (Hoagland v. Trask). upon the subject. Then follows the law of slander, Bathgate v. Haskin (not Hasken) is not a case of setincluding the various kinds of slander, then the law

off, but of counter-claim. The reporter's head-note relating to slander and libel, including privileged com.

contains not one word respecting set-off. The case is munications. Next the pleadings in civil actions found at page 461, section 13, vol. 2, Digest, under the founded upon slander and libel, the remedies and the head of " Counter-claim;" also at page 693, under the rules of damage and practice. The closing chapters bead of " Foreclosure," where it is stated that in a of the book are devoted to the criminal law relating foreclosure suit a counter-claim may be set up as a de. to the subject, and the pleadings and practice there- fense. under. The book contains over a thousand closely All a digester can do is to distribute the several printed pages has a table of cases cited, and a fair in- points decided, under the appropriate heads, accorddex, and is well printed and bound.

ing to the best of his judgment. There is no abso

lute rule or practice on this subject that I am aware ANGELL ON CARRIERS, FIFTH EDITION.

of, and probably no two persons will agree as to the A Treatise on the Law of Carriers of Goods and Passengers precise method of marshaling cases decided. Cer

bu Land and by Water. By Joseph K. Angell. Fifth Edition, revised and enlarged.

tainly no two authors have agreed, as yet, upon that

By John Lathrop, of the Boston Bar. Boston: Little, Brown & Company, point. 1877.

I trust that when lawyers become a little more faThe works of Mr. Angell have long been the stand- miliar with the construction of this digest they will ard authorities upon the subjects concerning which have less trouble in finding particular cases, or the he treats. Among them the one on carriers has oc cases upon any given subject. In the meantime the cupied a prominent position, as is attested by the cross-references, which are intended to be pretty full, numerous editions called for. The later editions have | will aid them.

0. L. B. been prepared by Mr. Lathrop, whose labors are visi-! October 15, 1877.

« AnteriorContinuar »