Imágenes de páginas

secretary, and that all transfers of lots must be regis

Formal acceptance of Charter. tered in the office of the association. Boileau bought

Resolutions proposed by Committees. a lot, and his deed was registered; he conveyed it to

Other Miscellaneous Business.
Jones, a colored woman; this deed was not registered. 15th. Addresses and Theses.
She applied for a permit to bury her husband; the sec-

Every lawyer of the State is invited to attend. retary declined, because the lot was registered as Boileau's. Boileau asked for a permit to her to bury

BOOK NOTICES. her husband in the lot; the managers then directed the secretary to refuse an approval of the transfer to

MAY'S STEPHEN'S DIGEST. Jones. The secretary refused to issue a permit for the A Digest of the Law of Evidence, By Sir James Fitz-James burial. Held, that Boileau had the right to bury the

Stephen, Q. C., K. C. S. I. From the Third English

Edition, Revised, Corrected and Enlarged by the author. husband; that the refusal to issue the permit was ar

With Notes and additional Illustrations, chiefly from bitrary and unreasonable, and mandamus lay to com

American cases. By John Wilder May, author of "The

Law of Insurance," etc. Boston: Little, Brown & Compel the company to issue the permit. When Boileau

pany, 1877. purchased, there being no restriction on his right of

THE character and value of Mr. Stephen's Digest of burial, the company could not afterward abridge his

T the Law of Evidence are well attested by the fact, rights. Mount Moriah Cemetery A880c. v. Commons

that it has, within a year, reached its third edition in wealth ex rel. Boileau.

England, and has also been issued by three or four STATUTORY CONSTRUCTION.

law publishing houses in this country. As an exact Repeal of special statute. – The act of March 25,

and philosophical statement of the principles of the 1864, provided that the property of soldiers should be

Law of Evidence we kuow of nothing that approaches exempted from taxation, etc.; the act of April 8, 1873,

it; while as a model of what a Code may and should enacted that all real estate should be taxed, except

be, it comes nearer the ideal than any thing we have certain classes specified, the property of soldiers not

seen. Indeed, there is no stronger argument in bebeing one, excepted, and laws inconsistent, etc., were

half of an acute and philosophical codification of the repealed. Held, that the act of 1864 was not repealed.

law than the favor with which Mr. Stephen's Digests Rounds v. Waymart Borough.

have been received. Both this and his Criminal Di

gest are Codes in the fullest sense of the term, and he ORDER OF EXERCISES FOR THE ANNUAL

has a recognized position in England as a practical MEETING OF THE NEW YORK STATE

codifier. In 1870 he was employed to draft a Code of BAR ASSOCIATION.

the Law of Evidence for India, which afterward beNEW YORK STATE BAR ASSOCIATION,

came the Indian Evidence Act; while in 1872 he drew, ASSEMBLY CHAMBER, ALBANY,

at the request of the attorney-general, a similar Code 34 o'clock, P. M., Tuesday, Nov. 20, 1877.)

for England, but which, owing to political reasous ORDER OF EXERCISES. 1st. Invocation.

(not least of which was the elevation of Lord Cole2d. President's Address. By Hon. John K. Porter.

ridge - the then Attorney-General - to the Bench),

never reached a vote in Parliament. 3d. Reading the minutes of the preceding meeting. 4tb. Nominations for membership, including Hon

The work before us is the outcome of these perform

ances though it differs from them in various respects. orary membership.

While the draft Code presents the law as it ought to 5th. Appointment of Committee on nomination of

be, the present work is intended to represent the officers for ensuing year.

existing law exactly as it stands. But we have hereto6th. Report of Executive Committee. By Marcus T.

fore spoken fully of the merits of Sir James Stephen's Hun, Secretary.

Digest. The work before us is something more and 7th. Report of Committee on Admission. By Peter

even something better. Mr. May's notes are neither S. Danforth, Chairman.

copious nor lengthy; but they are illustrative, perti8th. Election of members.

nent, and accurate. 9th. Treasurer's Report By Rufus H. Peckham,

Of his work, he says in his preface: Treasurer. 10th. Reports of other Standing Committees as fol

“The purpose of the editor has been to adapt the

work to the use of the American student and lawyer. lows:

this end he has briefly noticed those points in Committee on Grievances. By Hamilton Fish, which the American authorities differ, both among Jr., Chairman.

themselves and from the English authorities. To

some extent, he has added new illustrations from Committee on Law Reform. By Matthew

American cases, which seemed to him to be suffiHale, Chairman.

ciently apt to warrant their insertion; though he has Committee on Prizes. By Elliott F. Shepard,

generally preferred, rather than to swell the size of Chairman.

the volume, to refer to those sections of Greenleaf

from which, through Mr. Taylor, the illustrations Committee on Legal Biography. By Abm. X. selected by the author have been, to a considerable Parker, Chairman.

extent, taken." 11th. Report of Special Committees.

We do not hesitate to say that Mr. May's labors 12th. Election of Officers, including Committees, to have very essentially enhanced the value of Mr. serve for the calendar year 1878.

Stephen's work. 13th. Special Orders. 14th. Miscellaneous Business — and thereunder:

UNITED STATES REPORTS. VOLUME 94. Reports of Corresponding Secretaries. By | Cases argued and adjudged in the Supreme Court of the United

States. October term, 1876. Reported by William T. Edward Mitchell.

to. Vol. IV. Boston: Little, Brown & Company, Awarding the Post-Graduate Prize. By —


This volume contains a large number of very imReading the Prize Essay, by its Author. | portant decisions, embraciug several momentous constitutional questions which were finally settled at property of the shipper, delivered them without his the last term of the court. The decisions contained in knowledge to a third person at the place of shipment the volume appeared some months ago in our columns, on the order of the consignee. Held, that the combut the reporter keeps as well up to the court as ispany was liable to the shipper for the value of the compatible with accurate reporting and the proper ar- | goods. Ætna Life Ins. Co. v. France, p. 561. A rangement of the cases. Mr. Otto does his work well policy of life insurance taken by a man for the benefit and promptly, and his volumes are, in many respects, of his sister, who had no insurable interest in his life models. Among the cases given we can note only a beyond that of relationship, held valid, and it was imfew of the most important: Ilumes v. Scruggs, p. 22. material what arrangement there was between him A decree in a suit between husband and wife, con- and his sister as to the payment of premiums. Bowen firming a conveyance of real estate made to her by v. Chase, p. 812. This case was upon the noted Jumel him, does not bind his assignee in bankruptcy suing will, and several very interesting questions are disto set such conveyance aside on the ground that it cussed. The case will be found in full 15 Alb. Law was made in fraud of creditors. County of Leaven Jour. 369. The volume to make it complete ought to worth v. Barnes, p. 70. Recitals in bonds issued by a have a table of cases cited. The mechanical execucounty in pursuance of statutory authority, stating tion of the book is in every respect excellent. that the requirements of the statute had been complied with, held binding on the county in favor of a bona fide holder for value. Munn v. Illinois, p. 113.

TYLER ON PARTNERSHIP. This and the cases determined at the same time (C.,B. &

A Commentary on the Law of Partnership, with an AppenQ. R. R. Co. v. Iowa, p. 155; Peck v. C. & N.W. Ry. dix of Forms. By Samuel Tyler, LL. D., Professor

in the Law Department of Columbian University at Co., p. 164, etc.) decide the most important consti Washington, D.C., author of the “Maryland Simplified tutional question that has yet come before the Fed Pleading,” etc. Washington, D. C.: W. H. &0. H.

Morrison, 1877. eral Supreme Court, not even excepting the famous Dartmouth College case. It is here decided that This little volume was originally prepared as a textwhen an owner of property devotes it to a use in book for the students in the law school of the Cowhich the public has an interest, a State may con lumbian University, and its apparent utility there trol that use and fix the rate of charges made there. led the author to prepare this edition for the use for, and that the exercising of such control by a State of the public generally. It is thoroughly elementis not in violation of the Federal Constitution. In ary, being a brief statement of the rules governman S. S. Co. v. Tinker. An act of the New York ing the law of partnership in its different branches, legislature requiring all vessels entering the port of arranged in a systematic form and without any refNew York and making fast to a wharf therein to pay erences to authorities. For the purposes for which a certain percentage per ton, held to be a tomage tax it was designed, namely, to impart leading prinand in violation of the United States Constitution. ciples to students, it seems well adapted. To the Town of South Ottawa v. Perkins, p. 260. Where mu business man, also, it will be found of practical use. nicipal bonds were issued under a pretended act of a It acquaints him with the main features of the law State legislature which was not regularly passed and and gives him forms suited for ordinary occasions. was decided by the State courts to have never been The book is carefully indexed, and excellently printed passed, such bonds are invalid even in the hands of a and bound. bona fide holder for value, notwithstanding the act was printed in the official edition of the State Stat

BUMP'S COMPOSITION IN BANKRUPTCY. utes as a valid act. United States v. Fox, p. 315. A

Composition in Bankruptcy. By Orlando F. Bump, Esq., devise to the United States of lands situated in the

Author of Treatises on "Bankruptcy," "Fraudulent State of New York is in violation of the State law Conveyances," etc. St. Louis : G. I. Jones & Comand invalid. First Nat. Bank of Washington v. Whit

pany, 1877. man, p. 343. The payee of a check before it is ac Mr. Bump is the leading authority upon Bankcepted by the drawee cannot maintain an action upon ruptcy, and any work from his pen will be welcomed it against the latter, as there is no privity of contract by those of the profession who are interested in between them. McCready v. Virginia, p. 391. The that branch of the law. This brief treatise contains all privilege of cultivating oysters in the public waters of | the law there is upon the subject of compositions and a State which the State law granted to its citizens, is a number of convenient forms for use in composition not a privilege and immunity of citizenship under the proceedings. It is a practical work and will necessaFederal Constitution so as to vest in the citizens of rily soon find its way into the library of every practianother State. Conn. Mut. L. Ins. Co. v. Schæfer, p. tioner in bankruptoy. 457. A wife and husband had an insurance upon their joint lives payable on the death of either to the survivor. They were divorced a vinculo matrimonii. CRARY'S PRACTICE IN SPECIAL PROCEEDINGS. Held, not to avoid the policy, but the survivor having What purports to be a new, the fifth, edition of this paid the premiums after the divorce could recover on work has just been published by W. C. Little & Co. of such policy. Doyle v. Continental Ins. Co., p. 535. The this city. right of a State to exclude an insurance company | This is emphatically one of the works of which the chartered by another State from doing business within truth ought to be frankly and emphatically told. It its own boundaries upheld, although the motive of may be called a new edition, but if such is to be the such exclusion was to compel compliauce by the com character of new editions the fewer the better. It is pany with an invalid agreement. Southern Express simply a reprint of the second edition, with a few Co. v. Dickson, p. 549. An express company, well pages added at the end of each subject in small type. knowing that certain goods received by it for trans The added matter is not even indexed, and, so far as portation to a place mentioned in its receipt were the we have examined, it is more calculated to mislead than to benefit. We advise those who have former provides that the subjects or citizens of each country editions not to touch this. If publishers will attempt have the same rights as the subjects or citizens of the such a transparent fraud on the profession, the pro other, or as are now or may hereafter be granted to the fession should serve it as it deserves, “Let it alone subjects or citizens of the most favored nation, in every severely."

thing relating to trade-marks and trade labels, upon

fulfilling the formalities required by the law of the reNOTES.

spective countries. - The Singer will case, involving

the estate of the sewing machine inventor Singer, reTHE Law Students' Series announced by Little, cently pending before the surrogate of Westchester I Brown & Company ought to be, and doubtless county, N. Y., has been settled. — Judge Donahue, will be, popular and successful. There is certainly no in a mandamus case decided on the 2d inst. (People ex dearth of books on the subjects they purpose to cover, rel. Wills v. The Registers), decided that it is not nine but they are not well adapted to the beginners in the o'clock until the clock has completed striking the study of legal science. Mr. Stephen, in the intro hours. — Proceedings in bankruptcy have been comduction to his Digest of the Law of Evidence, has

menced against the forger Gilman. aptly expressed the objections to the usual Treatise as an institute of law; “Such works," he says, “often become, sometimes under the hands of successive The Onondaga Court of Sessions has decided that editors, the repositories of an extraordinary amount taking possession of a railroad engine in furtherance of research, but they seem to me to have the effect of

of a railroad strike and using it to overhaul a train, is making the attainment by direct study of a real knowl not an obstruction of a railroad within the meaning of edge of the law, or of any branch of it as a whole, the act of the legislature of this State, passed last almost impossible. The enormous mass of detail and winter (chap. 261.) — The evidence in a case recently illustration which they contain, and the habit into before the Chancellor of New Jersey covers 13,700 which their writers naturally fall of introducing into pages of legal cap. The bills already introduced in them every thing which has any sort of connection, Congress cover 6,000 printed pages. however remote, with the main subject, make these books useless for purposes of study, though they may increase their utility as works of reference." Mr. Mr. Delafield, in arguing a motion to disbar an atStephen has, in his Digests of the Law of Evidence, torney made in New York last week, thus discoursed and of the Criminal Law, furnished, especially to the in respect to recreant lawyers: “It is not pity, it is English Law student, two institutes of rare merit; and not charity to condone the faults of the lawyer who we trust that the gentlemen to whom Messrs. Little, is recreant to his trust. It is nothing but mawkish Brown & Company have intrusted the preparation sentiment that can extenuate or pardon those crimes. of their series may not come far short of doing as well Many of the difficulties of this problem have been for the American student.

lately solved by the Incorporated Law Society of London, at whose instance in one year (1874) six solicit

ors were stricken from the rolls, three cases were The current number of the Journal du droit International Privé contains a number of articles of general

referred to masters for report, and four were abaninterest. The titles of these articles are as follows:

doned in consequence of the flight of the delinDes dedes particulars en temps de neutralité, by G.

quents. In the State of New York it is rare to disLouis; La Bourse les agents de change et les opérations

bar an attorney; but the difference is due to moral

weakness and not to any superiority of our attorde bourse dans des legislation étrangeros, by E. Gail

neys over their English brethren. The best interlard, professor in the University of Berne; D l'execution des jugements étrangers en Belgique, by L.

est of society requires that the good lawyer should

be treated with the highest respect, and the bad Humblet; Le projet du Nouveau Code Penal Italien,

one punished with the utmost severity. Thus by G. Vidal. The digests of decisions in international law embrace determinations in the courts of France,

alone can the bar be purged of its dross and raised

to the position it should hold. In determining Germany and Italy, and contain several cases of

these cases courts should be cold as icicles and rigorinterest.

ously just. Lawyers are intrusted by the State with The New Haven Morning Journal and Courier of

a great and valuable monopoly and unusual immuniOctober 24th last, says: “We reprint from the ALBANY

ties. They alone are allowed to represent the people

in the courts in the pursuit or defense of fortune, they LAW JOURNAL of October 6th, this morning, a valua

alone oppose a barrier to persecution and oppression, ble and suggestive article on “ Dead Letter Laws”-a

and almost every man at some period of his life must subject which deserves more attention than it has

depend upon them in defense or pursuit of property been accustomed to receive. The argument and conclusions of the writer are undoubtedly sound, and the

or life or rights dearer than either. No friend, no

relative, however dear, no doctor however learned, is, cases of inoperative laws which he cites are notorious

in those emergencies, permitted to intervene. The scandals in the community which ought to be put a

State distinctly says that in all of these matters the stop to. The article — for a copy of which we are in

citizen who cannot protect himself shall employ a lawdebted to Mr. B. A. Peck, Attorney of Naugatuck —

yer and none other. The monopoly is absolute, the should be read by all."

privilege is exclusive. In return for this monopoly

they must have approved character and learning. The The Trade-Mark Treaty between the United States moment these considerations fail, the privilege should and Great Britain, which was signed by United States cease. The great truth which must ever govern Minister Pierrepont, and the Earl of Derby, Secretary these cases is, that of those to whom much is given of State for the Foreign Department, some days since, I much shall be required."

The Albany Law Journal.

The Annual Meeting of the New York State Bar Associa- | it to accomplish the purposes for which it was ortion will be held in the Capitol at Albany, Tuesday, Novem

ganized, namely,“ to cultivate the science of jurispruber 20, 1877, at 3% o'clock. Every Lawyer of the State is invited to attend.

dence, to promote reform in the law, to facilitate All communications intended for publication in the the administration of justice, to elevate the standLAW JOURNAL should be addressed to the editor, and the ard of integrity, honor and courtesy in the legal name of the writer should be given, though not necessa

profession, and to cherish a spirit of brotherhood rily for publication. Communications on business matters should be ad

| among the members thereof.” The executive commitdressed to the publishers.

tee invites every lawyer in the State to attend. We do not anticipate a literal compliance with the invitation, but we hope there will be enough persons present

to indicate that the profession sustains the organizaALBANY, NOVEMBER 17, 1877.

tion. Of the benefits of such an association we need not here speak. The results which have, in numerous

instances, followed organized action on the part of CURRENT TOPICS.

the legal profession show sufficiently what may be THE New York State Bar Association will meet in

expected when the lawyers of the State put themthe Assembly Chamber in this city on Tuesday

selves in a shape always to act together upon matters next, and will, it is to be hoped, do some good and affecting their general interests. Since we gave honest work, both for itself and for the profession and the order of exercises last week, the Hon. Sanford the jurisprudence of the State. The committee has | E. Church, Chief Judge of the Court of Appeals, mapped out the routine business of the meeting, has consented to award the post-graduate prize. but unless much else be done the Association will come far short of what may reasonably be expected

The Vanderbilt will case, which promises to beof it. The subjects of law reform, the propriety or

come as famous as any previous civil litigation, desirability of continuing the revision of the stat

is fairly under way, one of the counsel for those conutes, the best methods of such revision, reforms in

testing the will having made his opening speech, methods of legislation, codification, law reporting,

and witnesses having been examined. The grounds are among the practical subjects which deserve the

of the contest, as indicated by the counsel, are lack careful consideration and the deliberate opinion of

of testamentary capacity on the part of the testator, this Association at this meeting. These are ques

and the exercise of undue influence by those chiefly tions of the hour, and ought not to be relegated to

benefited by the will. Both sides are represented the future. The question of statute revision will

| by very able counsel, and a strong fight will be be one of the most important as well, probably, as

made at the trial, though the decision of the surroone of the most hotly contested questions before the

gate of New York, before whom the case is now next session of the Legislature. Whether the whole matter shall be abandoned, or whether the work of

pending, will, of course, not be accepted as a final

| disposition of the matter. The amount involved in the present Commission shall be continued, or

the case is probably larger than that in any case, whether the Codes reported by the former Commis

other than a speculative one, ever before any court sion shall be adopted, are questions which ought to

in this country. In addition to this fact there bids be emphatically pronounced upon by the Bar Asso

fair to be many questions of more than usual interciation of the State. Then again should be con

est developed in the course of the struggle, which sidered the desirability and practicability of organ

has evidently not been entered upon hastily, and izing county associations, and whether the State

without a thorough canvassing of the probabilities Association can best accomplish its purpose as a

of success. In the same connection we would reprimary or as a representative body. The functions

mark that the famous Anneke Jans litigation has of the Association should be exercised by the Asso

reached a point which those who have instigated it ciation, and not be left to any committee or clique.

have vainly sought to attain for nearly two hundred The wisdom of the executive committee in practi

years — that is to say, it has fairly got into court. cally abrogating the obstructive regulation as to

The surrogate of this county is hearing testimony election of members has been thoroughly demon

| upon an application for letters of administration strated by the large accession of members during

upon the undistributed assets of the deceased lady. the past two months. The fact is gaining recogni

There is some hope, therefore, that those who have tion that such an Association is for every lawyer in

for two centuries and more been waiting for justice the State -- that every one who is entitled to appear

| will have some part of their case determined upon its in a superior court of justice should be brought

merits. within its influence, both for his good and for the good of the bar. It now remains with the bar A somewhat novel proceeding is in progress in of the State to make the Association what it ought New York city. The Court of Common Pleas is, to be and what it is designed to be, and to enable under the provisions of chapter 538 of the Laws of

Vol. 16.-- No. 20.


1873, authorized to try and remove from office the cent upon capital stock. It enlarges the powers of officers of the police courts of the city upon charges the banks as to methods of doing business, limits properly made. Chief Justice Davis of the Supreme the snpervisory authority of the Comptroller of the Court has presented written charges against a Currency, and abolishes the office of Bank Exampolice justice named Duffy, and the Court of Com | iner. In most respects the changes proposed are mon Pleas has, in accordance with the statute, desirable, but those intended to relieve the banks made preparations for the trial. The method of from inspection are wrong. At present the chief procedure adopted is somewhat similar to that safeguard to stockholders and depositors in national adopted in proceedings for impeachment, which the banks is the frequent examination of the bank proceeding in question resembles. The trial, when accounts and business by experienced persons not in actually entered upon, will, however, go forward interest with the managing officers. These exammuch more rapidly than an impeachment trial | inations are doubtless annoying to cashiers and usually does.

book-keepers, but as they to a great extent interfere A curious salvage question has arisen out of the

with fraudulent practices on the part of such indi

viduals, the circumstance that they give annoyance rescue of the Egyptian obelisk, known as Cleopatra's Needle, which was lost and found in the Med

should have little weight in favor of abolishing iterranean sea while being towed from Egypt to England. How to estimate the value of the prop

The Maryland judiciary will hereafter have to be erty saved is the point of difficulty. To call it sim

very careful how they deal with grand juries. Judge ply so much granite would not be fair to the salvors,

Grason, of the Supreme Court, and Yellott, of the and to determine its value as a work of art or from its

third judicial district, some time last spring adhistorical associations is impossible. If it had been

journed the court which they were holding and disinsured, the amount of insurance would have fur

| charged the grand jury connected with it. For this nished something of a guide to valuation, but only the

act they have been indicted for malfeasance in contractor's interest in the contract was insured, and

office, a charge of intoxication while on the bench that but partially. The English courts of admiralty

being also made against one of the indicted gentleare, however, as a rule, very independent of prece

men. The trial of the indictments was commenced dent in fixing upon the amount of salvage to be

last week, and is exciting much interest, not only in awarded in any given case. In the recent case of

Maryland, but throughout the Middle States. The The Amerique, L. R., 6 P. C. 468, it was held that

ablest lawyers in Maryland are engaged upon one though the value of the property saved is to be con

side or the other, most of them in behalf of the desidered in the estimate of the remuneration, it must

fense. What merits are in the prosecutions we are not be allowed to raise the quantum altogether out

not advised, but the action of the indicting grand of proportion to the services rendered. The differ

jury appears to be somewhat remarkable. ence between awards is slown in two cases, in one of which £18,000 salvage was given upon a vessel and cargo worth £190,000, while in the other, upon

The question of referee's fees is one that has a vessel and cargo worth £6,294, £3,290 was awarded.

given great trouble to courts, lawyers and law mak

ers. Numerous statutes have been passed to preVery little of interest to the profession has been | vent their growth, but they seem to set at defiance done in Congress during the week, most of the time all statutory attempts at regulation. The old Code of that body having been devoted to financial meas- provides ($ 313) that the fees of referees shall not ures. A bill was introduced in the Senate to estab exceed three dollars per day, but the force of the lish a new governmental department, to be known provision is destroyed by a clause allowing parties as the Department of Commerce, and to be charged to agree in writing upon any other rate of compenwith the supervision and care of the commercial, sation. It is usual for one of the litigants in a manufacturing and mining interests of the country, reference, at an early stage of the trial, to propose a and with the execution of all the laws of the United higher rate of compensation. The other party, unStates relating to trade and commerce, both foreign less he has an entirely hopeless case, or one so strong and domestic, customs, duties, internal revenue, navi- | that he does not care which way the referee detergation, etc. As this measure is vigorously urged by mines, does not dare to gainsay the proposal. He, the mercantile interests, it has a good chance of therefore, acquiesces, and the referee writes down passage. Representative Wells, of New York, what the parties have agreed to, which is held to brought forward a bill amending the national bank- satisfy the statutory requirement that the agreement ing law in many important particulars. It has been shall be in writing. A case is now pending in the prepared with great care, and is said to have a Common Pleas in New York, which illustrates the strong support. It provides for the removal of taxes position in which a party, unwilling to pay a comon capital and deposits, and limits the taxation to pensation above that prescribed by the Code, may be imposed by State and local authorities to one per l be placed by endeavoring to so act as to save his

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