« AnteriorContinuar »
offered for the detection of those caught violating report of the commission appointed to examine it, has, during the past few days, been found a very into the condition of Walworth was, that his efficient means of checking the disposition manifested confinement would eventually result in idiocy, and on the part of those engaged in interfering with necessitate his detention in the asylum for inrailroad traffic to tamper with railroad property. sane convicts. The governor says: “Reviewing
the whole case in the light of the facts brought to The case of State v. Hoskins, which we give in
my knowledge, outside of as well as in the evidence, our present issue, settles in a satisfactory manner a
I cannot believe it comports with even-handed jus
tice to longer detain a prisoner, feeble of mind and question of considerable importance in relation to
body, about whose mental, moral and even legal the collection of the Federal revenue. In the State of North Carolina there have, during two or three
responsibility, for the crime of which he stands conyears past, been quite a large number of persons en
victed, there yet remain so very serious doubts." gaged in illicit distilling. In order to prevent interference by the revenue officers, prosecutions were
It is stated by the Law Times that there is instituted in the State courts, under the State laws,
shortly to be laid before parliament papers havfor acts done by these officers in the discharge of ing reference to an indexing the entire statute their duty, and it was claimed that a provision of
law of the realm, a statement which, on its face, the United States law of 1866 (U. S. R. S., $ 643),
would not seem to convey an idea that any thing authorizing the removal of such prosecutions to the very remarkable was intended, but which, in fact, Federal courts, was unconstitutional. The Supreme
is meant as an announcement that measures are to Court of North Carolina sustains the validity of the
be taken to reduce the statute law to the form of a law in the case mentioned.
code. When this is done, and the Law Times thinks it will be well under way during the next
session of parliament, we trust that our own legisThe pardon of Frank H. Walworth is the final
lature will follow the example, and treat our statute event in a criminal proceeding which a few years ago
law in a like manner. occupied a large share of the public attention, and which, from the nature of the act which led to it, and the social standing of the parties involved,
NOTES OF CASES. entitles it to be classed among the causes celebrè of the I N Calkins v. Chandler, 4 Cent. L. J. 490, recently present century. The reasons given by the governor I decided by the Supreme Court of Michigan, the for the exercise of executive clemency are very con- action was upon a contract of this kind. Plaintiffs vincing and would seem to be sufficient to answer having a chattel mortgage upon a saw-mill owned any objections which may be raised to the course he by a firm, it was verbally agreed between them and has taken. The public have never fully understood | defendant, for whom the firm was engaged in sawall the facts of the case, and we think the jury who ing lumber, that in consideration of plaintiffs' exconvicted Walworth did not see them in their true tending the time of the payment of the mortgage, light. But the jury did so far understand them “ during the next sawing season,” the firm should correctly as to decide that the homicide committed allow the defendant to retain the sum of fifty cents by the accused was neither premeditated nor delib- for each thousand feet of lumber to be sawed for him, erate. It has been established, to the satisfaction of and that he should pay the said sum to plaintiffs to the governor, that the accused, when a mere boy of apply on the mortgage. The principal objections nine or ten years of age, was afflicted with epilepsy made to the recovery were, that the agreement was in its worst form, and subject to what are known as void for a want of consideration, there being no blind paroxysms of that disease. The father was promise to extend payment for a definite time, and guilty of brutal conduct toward the mother, which that it was void under the statute of frauds, being intensely roused the feelings of the boy, who was a promise to answer for the debt of another, and devotedly attached to her. The boy sometimes not in writing. The court overruled both objecshared in the effects of the hatred shown by his tions. As to the first objection, the decision is in father to his mother, and the governor says that the accordance with numerous cases. See Rolle's Abr. circumstances of the last visit made by the son to 27, pl. 6, where it is said that forbearance to sue in the father, during which the homicide took place, pursuance of a promise, though no certain time was * the morbid mental condition of the prisoner appointed for forbearance, was a sufficient considerresulting from his malady and his great terror of ation. Payn v. Wilson, 7 B. & C. 423; Siduell v. his father's violence, force me to the conclusion Evans, 1 Penn. St. 383; King v. Upton, 4 Me. that the murder for which he stands convicted 387; Elting v. Vanderlyn, 4 Johns. 237. See, also, was caused either by the insanity attendant upon Allen v. Pryor, 3 A. K. Marsh. 305; Hakes v. Hotchone of his epileptic paroxysms," or from a belief kiss, 23 Vt. 231. In regard to the second objection, that it was necessary to preserve his own life. The I the court say that in many cases as the test
whether a promise is or is not within the statute of case that a covenant for separation and separate frauds, is to be found in the fact that the original maintenance with the consent of trustees was good,” debtor does or does not remain liable upon his un- etc. Bright in his treatise on Husband and Wife, dertaking, if he does not, the third party may be at page 307, doubts the validity of a deed providheld liable, otherwise not. But where the third party ing for a future separation. See, however, Leech v. is himself to receive the benefit for which his promise Beer, 3 Keb. 363; Bateman v. Ross, 1 Dow. 335; Jee is exchanged, it is not usually material whether v. Thurlow, 2 B. & C. 547; Innell v. Newman, 4 B. the original debtor remains liable or not. See for a & Ald. 419; Waite v. Jones, 1 Bing. N. C. 656; Hoare full consideration of this question Farley v. Cleve- v. Hoare, Ridgw. Parl. Cas. (Ir.) 268; Moore v. Moore, land, 4 Cow. 432; S. O. on appeal, 9 id. 539; Mal- | 1 Atk. 277. The cases last named were overruled in lory v. Gillett, 21 N. Y. 412; Nelson v. Boynton, 3 Durant v. Titley, 7 Price, 577, which is also in conMetc. 396; Stewart v. Campbell, 55 Me. 439; Put- flict with the principal case, as is also Hindley v. nam v. Farnham, 27 Wis. 187; 9 Am. Rep. 459. Westmeath, 6 B. & C. 200, and Cocksedge v. Cocksedge, See, also, Brown v. Weber, 38 N. Y. 187; Clymer v. 13 L. J. Rep. (N. S.) Ch. 384. De Young, 54 Penn. St. 118; Eddy v. Roberts, 17 Ill. 503; Wilson v. Bemans, 58 id. 232; Runde v. Runde,
In Wilson v. Cole, 36 L. T. Rep. (N. S.) 703, decided 59 id. 98; Ford v. Finney, 35 Ga. 258; Davis v. on the 8th of May last, by the Queen's Bench DiBanks, 45 id. 138; Fullam v. Adams, 37 Vt. 391,
vision of the English High Court of Justice, the 396; Andre v. Rodman, 13 Md. 241, 255; Brinton
facts were these: Plaintiff and defendant had v Angier, 48 N. H. 420; Johnson v. Knapp, 36 Iowa,
agreed in writing that the plaintiff should take a 616; Besshears v. Rowe, 46 Mo. 501; Barker v. Brad
lease of the defendant, and buy a good will and fixley, 42 N. Y. 316; 1 Am. Rep. 5:1.
tures for £800, of which £25 was to be paid, and
was paid by the plaintiff as a deposit, and part payIn the case of Phillips v. Myers, recently decided ment of the purchase. Afterward defendant offered by the Supreme Court of Illinois, the action was the plaintiff £50 if he would consent to forego his upon an instrument signed by defendant, and read rights under the written agreement. The plaintiff ing as follows: “For value received one day after, at first refused, but afterward agreed with the deI, at any time, become intoxicated or drunk, or mis fendant that they should decide by tossing a penny treat or abuse Minnie Myers, I promise to pay to whether the defendant should pay the plaintiff £50 L. M. Phillips, the sum of $600, for the use of or £75 as a consideration for giving up the bargain. Minnie Myers, with ten per cent interest from ma Defendant won the toss, but did not pay the plainturity, until paid.” The complaint set forth that tiff the £50, nor return the £25 deposit. In an acseveral of the acts, upon the doing of which, the tion for these amounts, defendant set up that the instrument, by its terms, became payable, had been contract of rescission was a wagering one and void done. Defendant pleaded among other things, that under the statute. The jury found that the contract the instrument was without consideration, being of leasing was rescinded, and that on rescinding, given for a promise on the part of his wife, Minnie the parties had not entertained any question of the Myers, named therein, that she would live with deposit. The court held that the contract was not him. A replication to the plea stated that the de a wagering one, and that the plaintiff was entitled fendant had been guilty of habitual drunkenness, to recover the £50 as a consideration for the reand of cruelty to his wife, and a suit by her against scission besides the deposit. The case relied on him for divorce on this account was pending at the by the defense in the action was Rourke v. Short, 5 time the instrument was made, and the considera- El. & Bl. 904. In that case the facts were these: tion for it was that the wife would dismiss the suit, | The plaintiff and the defendant, while conversing condone the causes of divorce and return and live as to some rags which the plaintiff proposed to sell with him, all of which she did. To this replication and the defendant to buy, disputed as to the price defendant idemurred. The court below sustained of a former lot of rags, and agreed that the questhe demurrer, but the Supreme Court reversed the tion should be referred to a spirit merchant, and decision, holding that the consideration was suffi-' that whichever party was wrong, should pay the cient. The decision is based on Rodney v. Chambers, spirit merchant for a gallon of brandy, and that if 2 East, 283, and Nicholls v. Danvers, 2 Vern. 67. the plaintiff was right, the price of the lot then on The latter case is stated to be very nearly like the sale should be 6s. per cwt., but if the defendant one at bar in its facts, but it had this difference, was right 3s. The spirit merchant decided that the that the husband agreed in case he used his wife ill, plaintiff was right. It was held that the contract to let her have £3,000, a part of her mother's estate, was a wagering one, and void. See, also, Varney in other words, to give her back what he had re v. Hickman, 5 C. B. 271; Higginson v. Simpson, L. R., ceived from her. In reference to the other case, 2 C. P. D. 76; Grizewood v. Blane, L. R., 11 C. B. Lawrence, J., in Chambers v. Cauldfield, 6 East, 214, 538; Hill v. Fox, 4 H. & N. 359; Johnson v. Lansing, said: “The court therefore only decided in that I L. R., 2 C. B. 468.
ALTERATIONS OF WRITTEN INSTRUMENTS
with a sum exceeding that fixed by the acceptor, WHEN PRESUMED TO HAVE BEEN MADE,
| the maker or acceptor being estopped from setting AND THEIR EFFECT.
up that fact. 21 N. Y. 531.
The conclusions to be drawn from the cases are ; (Concluded.)
that the filling up of blanks in negotiable instruAS to deeds — The English authorities have laidments is valid; and that the same is true of deeds
down the rule, that the writing in a deed must where the grantor assents and ratifies the agent's be completed before the same is delivered, what is act; or where the latter has a power under seal. At added afterward being of no avail ; Sheph. Touch. this point the English and New York authorities 541 ; and this is true even if it be made by the con- differ; the latter contend that the former are incorsent of all. 2 Roll. Abr. 29, a. Lord Mansfield, rect in holding that an instrument, executed by one however, in the case of Terira v. Evans, 1 Ans, 228, in the absence of the principal by parol authority, held that blanks, in a bond under seal, could be and without a power under seal, is no deed; that filled up after execution by parol authority. This the English courts make no distinction between the decision was questioned by many, and was finally original execution of a deed and the filling up of some overruled, on the ground, that to allow a deed blanks which are merely necessary to its completo be filled up by an agent appointed by parol, and tion, and that an authority to fill up a deed cannot then delivered in the absence of the principal as a be regarded as an authority to execute it. 24 N. deed, would be a violation of the principle, chat | Y. 330. an attorney, to execute and deliver to another a (B.) Alterations by strangers may now be condeed, must himself be appointed by deed. 6 M. & sidered: W. 215.
First. Without consent. If, however, a deed be materially altered by con- The act of a stranger, without the participation sent after its final execution, and the grantor as- of the parties interested, is a mere spoliation, or sents that the grantee shall retain it in its altered mutilation of the instrument, not changing its legal state as an instrument of title, this assent amounts operation so long as the original writing remains to a delivery, or a redelivery. 5 Bing. 368. Al- legible; and if it be a deed, any trace remains of terations, by consent, are valid. First, when the the seal. Greenleaf's Evid., $ 568. This is the genother party to the deed is not affected. 4 B. & Ald. | eral rule. 672. Secondly, where the other party is benefited. (a.) When presumed to have been made. 2 Lev, 30; 1 Vent. 180. Thirdly, where something It is unnecessary to consider this at length. It cannot be ascertained. 4 B. & Ad.
will be sufficient to remark that the presumptions The New York courts have adopted the doctrine are similar to those arising by the act of parties of Texira v. Evans. A deed, if altered by consent, without consent. takes effect from the time of alteration as a re-ex-1 (6.) Their effect: ecution. 18 Johns. 409. This consent may be As to deeds — At one time, in England, an alteragiven before execution, and may be proved orally. tion by a stranger, if material, was held fatal to an 8 Cow. 118. Among the cases where such altera- instrument, even if the original words could be retions were made by parol may be mentioned: Ap-stored. 11 Rep. 27. The rule was afterward repeal bonds, 6 Cow. 59; powers of attorney, 22 laxed, such an alteration being treated as accidental. Wend. 348; and custom-house bonds, id. 366. The 6 East, 369. The old doctrine was subsequently express parol authority, direction, and consent of reaffirmed as to all cases where the altered deed was the grantor, or obligor, is necessary to fill up blanks the foundation of a right; but the instrument was alin sealed instruments. 24 N. Y. 330. But no parol | lowed to be offered in evidence as the proof of some authority can be given to sign and seal. 1 Wend. title or interest. 11 M. & W. 778. 481.
In New York, the doctrine of Pigot's case was As to notes — In England it has always been held questioned in Jackson v. Malin, 10 Johns. 297, and that notes may be altered by consent. The indorse- finally departed from in 6 Cow. 746. It was there ment of a blank note is said to be a letter of credit held that no alteration by a stranger under a misfor any indefinite sum. Dougl. 516. The stamp take could avoid the instrument, nor in any case acts have made it necessary to add a new stamp where the original words could be ascertained. 2 wherever an alteration is made after execution, un- | Barb. Ch. 129. less it was to correct a mistake, 3 Esp. 346 ; or ren- As to notes — In England, any unauthorized ulder the instrument what it was originally intended | teration avoids the instrument. 4 T. R. 320. to have been. Id.
The New York courts hold that an alteration by The New York courts hold that notes in blank a stranger will be treated as accidental, unless fraud give a general authority to an unlimited extent, 2 is proved. 6 Cow. 746. Sandf., chap. 77; and such blanks may be filled up Second. Alterations of strangers, by consent.
These are referred to for the purpose of carrying Y. 450; alteration of the date of a note by an agent out the classification. The rules of law applicable without fraud, 35 Barb. 501; subscription of third to alterations of parties by consent govern here. party as additional security, 27 N. Y. 39; oblitera
The substance of the cases is, that in England tions with a lead pencil, 12 Barb. 595; correcting a the alterations of a stranger without consent do not | mistake, 13 Wend. 93. affect an instrument except where it is the founda Second. By consent. tion of a right, as it may be given in proof of title. (a.) When presumed to have been made: In New York sueh an alteration is looked upon as | It will be unnecessary to consider this topic; as a mere spoliation, in the absence of fraud, which all the English and New York cases agree that will, in some cases, compel the parties to resort to these may be made before or after execution. 1 secondary evidence. It may be remarked that the Vent. 185; 9 Cow. 225. doctrine of Pigot's case was severely criticised, and (b.) Their effect: strongly condemned by Judge Story, as repugnant The same may be said of this head. to justice and common sense. 2 Mason, 478.
The substance of the cases cited in regard to im2. Immaterial alterations :
material alterations is, that in England according to Alterations are said to be immaterial where neither
the recent decisions, the immaterial alteration of a
party, with or without consent, will not avoid the the rights nor interests, duties nor obligations are
note or deed; whereas, in New York, such an alaffected or changed.
teration if made by a party will avoid it as to him. (A.) By parties.
(B.) By strangers: First. Without consent.
It may be stated, as a general proposition, that As a general proposition, if the alteration con
immaterial alterations by, or without the consent of sists of words which the law would imply, even
the parties, by a stranger, do not vitiate the deed though it be without authority, it will not affect
or note. 11 Coke, 277; 1 Wend. 625. the operation of the instrument. Greenleaf's Evid., $ 567.
II. Non-APPARENT ALTERATIONS. (a.) When presumed to have been made:
In some cases a distinction has been taken beThe English and New York authorities agree that tween those alterations which appear on the face of such alterations may be presumed to have been an instrument and those which are extrinsic, as to made before execution. 5 E. L. & E. 349; 1 Wend. the burden of proof. It has been held, that where 628. Though some of the New York cases hold an instrument carries with it no appearance of althat there is no presumption but the whole matter teration, the defendant who, in his pleading, alleges should be left to the jury. 2 E. D. Smith, 1. This a fatal alteration, must show it to have been such. rule is applicable to both deeds and notes.
1 How. (U. S.) 104. When the instrument is shown (6.) Their effect:
to have been altered, the rules of law applicable to As to deeds — In England any alteration, even apparent alterations apply. though it were immaterial, avoided the instrument. III. The foregoing statement of the subject is Sheph. Touch. 689. This doctrine has been ex imperfect; but it must not be forgotten that a perploded by a recent case, and held not to be law. plexing question of law has been treated in a neces3 Q. B. 573. It was there said that no authority | sarily brief manner. could be cited or found where the doctrine has It has been shown how, in some respects, the been acted upon and an instrument held void by an English and New York decisions differ. This immaterial alteration. See, also, 11 M. & W. 465; chiefly arises from the different conditions of the 17 C. B. 179.
people in the two countries as regards the transfer In New York, an immaterial alteration by a party of property. In England all deeds are drawn by a will avoid the instrument as to him, 8 Cow. 71; | skilled body of men known as conveyancers; while unless the law would supply the words; and then in America necessity frequently compels parties to the assent of the party is presumed, 13 Wend. 387; make conveyances without legal assistance. The or the alterations do not affect the legal construc- result is that erasures and interlineations occur. If sion and effect of the instrument. 15 Johns. 273. the rule in Pigot's case were applied, it is clear that
As to notes - The English decisions are to the titles would be disturbed to an incalculable degree. effect that an alteration to avoid a note must be This difference of opinion is only confined to a material. If the alteration only expresses the few rules of law, as the legal principles that guide effect of the note as it originally stood, it does not both courts are derived from the same source. affect the validity of the instrument. See 3 Q. B. Thus, it is evident that the genius of the common 173, where the rule in Pigot's case is dissented from. law can accommodate itself, not only to the superior
In New York an immaterial alteration in nego- refinements of older, but to the varied necessities of tiable paper is not fatal. Such would be: the addi- younger communities. FRANCIS J. SULLIVAN. tion of a name to a several promissory note, 29 N. I San FRANCISCO, 1877.
LEGAL NOTES FROM ABROAD.
of superintendent of police on the Midland Railway
Company. Druscovitoh and Palmer were also chief LONDON, July 19, 1877.
inspectors of the same department at Scotland yard; Sir James Stephens' recent work on criminal law and Mr. Froggatt, a solicitor of the High Court, was seems likely to bear fruit - at least, that may fairly be charged with being in league with the other defendcredited with having given an impetus to the discus ants in these transactions. Mr. Poland was afraid a sion of the subject which has resulted, it is said, in charge of attempting to defeat the ends of justice determining the government to undertake the task of would be fully made out against the defendants. Mr. reformation. According to the report which reaches Froggatt was held in the sum of £500, but the magisme, the Lord Chancellor will submit a bill to Parlia trate declined to entertain the application for bail in ment next year for the codifioation of the criminal behalf of the other prisoners. One of the defendlaw. It will not be easy to exaggerate the importance, ants - Palmer - unavailingly appealed to Mr. Poland from a judicial point of view, of this measure, which, to interpose in his case, as he had been over 30 years I am told, is in actual course of preparation.
in the police, and as by absconding, which he did not Apropos of the codification, the following “defini dream of doing, he would forfeit a peusion of £160 tion” from the Darlington Improvement Act (1872) is per annum. the result of the combined efforts of a parliamentary In many respects this case bids fair to be a remarkcommittee, parliamentary counsel, and parliamentary able one, and I will, probably, have occasion to notice agent. “The term 'new building' means any build- | | it again. The three accused detectives are the most ing pulled or burned down to or within ten feet from prominent and widely-known officers of the force. the surface of the adjoining ground." The following Hardly an important case requiring tact and discreamendment was proposed in Parliament on the 22d of tion, and entire trustworthiness, has come to ScotMay, 1865, by an eminent Queen's counsel: “Dogs tres land yard for years, which has not passed through the passing on inclosed land.- Every dog found trespass hands of one or more of them. Their reputations, in ing on inclosed land unaccompanied by the registered fact, are almost world-wide., In extradition cases owner of such dog, or other person, who shall, on be especially, I know that Micklejohn and Druscovitch ing asked, give his true name and address, may be were always conspicuous. Judge, then, how this comthen or there destroyed by such occupier or by his munity -- or that portion of it which has had occasion order." .
to require or to take note of the services of these At Bow street, on the 12th July, Nathaniel Drusco men -- must have been startled to hear the grave accuvitch, William Palmer and John Micklejohn, well sations preferred against them by the government itknown officers of the Detective Police of Scotland self! yard, and Mr. E. Froggatt, solicitor, were placed at But what I particularly desire to direct attention to the bar before Sir James Ingham, charged by warrant at this time, is the manner in which the Home Office with having conspired to defeat the ends of justice in received the insinuations of the unofficial persons who the recent trial of five prisoners for defrauding the found reason to believe that some one in authority at Comtesse de Goncourt of upward of £10,000. Mr. Po Scotland yard had been interfering with the course of land, instructed by Mr. Pollard, of the Treasury, said justice. Mr. Cross, the Home Secretary, we are told, it was his painful duty to charge the four defendants "was determined that the imputation made against with an offense which might be shortly stated as one the police officers should be fully investigated.” Moreof conspiring to divert the due course of justice, and over, the “inquiries were conducted in secret” — not also with being accessories after the fact to certain even the accused officers were allowed to find out felonies committed by Henry Benson, William Kerr, | what was going on- and the result was that " letters, Charles Bale and Frederick Kerr. Toward the end of telegrams and other doouments" were secured “in conSeptember, 1876, frauds of a most ingenious kind were firmation of the charge;" the Treasury was asked to practiced upon Madame de Goncourt, a French lady, prosecute the officers; warrants were obtained, and by means of forged indorsements and drafts, aud dur the accused were arrested at their several posts of ing the investigatiou of the case the solicitor for the duty – victims of misplaced confidence in a treacherprosecutrix had reason to suspect that some in au- ous system of administration for which they were thority at Scotland yard had been interfering with the wholly unprepared. Such are the inferences to be course of justice. The prisoners were tried in April | drawn from the published accounts. But I hear, from last and sentenced to various terms of penal servitude, a good source, that when the Home Secretary placed and from what transpired the Home Secretary, Mr. the matter in the hands of the law officers, such exCross, was determined that the imputation made treme care was considered necessary in pursuing the against tbe police officers should be fully investigated. investigations that even the confidential olerks in the For obvious reasons these inquiries were conducted in offices of the solicitor and attorney-general were not secrecy, the result being at last stated in the informa permitted to know what was going on. Communication laid before Sir James Ingham, and upon which he tions from Mr. Poland, or from Chief Williamson of had been asked to graut warrauts for the apprehen Scotland yard, on the subject, were brought to Sir sion of the four persons at the bar. This serious course Hardinge Gifford in a sealed dispatch-box, and telewould not have been taken by the chief magistrate if grams to his address were delivered to no one but him. the facts disclosed did not appear to justify it, but Mr. self, Poland did not propose at the present stage to go into How strange all this would sound in- well, New the circumstauces of the case, all of which would be York, say! And what an absurd and discreditable fully opened at the next examination, and letters, way it was for a government to go to work to disgrace telegrams, and other documents produced in confirma its own employees. How much more natural and tion of the charge. The prisoner Micklejohn, in ad proper it would have been for the Police Commis-1 dition to his office as inspector of the detective de beg pardon! I mean the Home Secretary - to have partment of Scotland yard, held the appoiutment 1 “denounced” the solicitor who made the orginal "ju