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TRUST IN

FAVOR

OF

WIFE.

PLEADING

AND

CLIENT

ACTION.

SLEEPING

CARS

CONTRACT FOR BERTH.

Abstracts of Recent Decisions. DEEDS ACKNOWLEDGMENT. - Certificates of ac

knowledgment to deeds, made in July, 1839, in ACCIDENT INSURANCE.-In an action on a policy foreign States, are not insufficient because they do of accident insurance, where the company set up not state that the deeds were executed according a contract to accept a weekly payment for a to the laws of such States, since the registry law certain number of weeks in discharge of the claim, then in force only required certificates to state that parol evidence is admissible to show that plaintiff “the officer taking the acknowledgment is such could not read or write, and placed his mark on the officer as by his certificate of acknowledgment he proofs of loss without knowledge that they con- purports to be, and that he is duly commissioned tained such contract, and that he afterwards refused and qualified.” (McCammon v. Detroit, L. & N. R. to sign a receipt in full when the sum of such weekly Co. (Mich.), 61 N. W. Rep. 273.) payments was paid to him. (Lord v. American Mut.

Where a Acc. Ass'n. (Wis.), 61 N. W. Rep. 293.)

wife's father, with her consent, for the purpose of AssumPSIT

In an action of assump-making an equal distribution of his property among sit to recover damages for defective machinery which his children, causes land to be conveyed to her hus plaintiff had purchased, paid for, and returned as band by a deed of general warranty, the land is not useless, the plaintiff must charge the promise that charged with any trust in favor of the wife. Acker the machinery would perform the work for which v. Priest (Iowa), 61 N. W. Rep. 235.) it was intended, positively, and not by way of re

ESTOPPEL IN PAIS.- A contract for the salc and cital. (Wolf v. Spence (W.Va.], 20 S. E. Rep. 610.) construction of a creamery was signed by the purATTORNEY

- An agree-chasers at the solication of the seller's agent. The ment to pay an attorney for his services an amount purchasers failing to provide land on which to conequal to that paid another attorney connected with struct the creamery, the seller, as permitted by the the same action, is valid. (Lungerhausen v. Crit- contract, procured land and erected the creamery in tenden (Mich.), 61 N. W. Rep. 270.)

compliance with such contract, in the view of such CARRIERS OF PASSENGERS

purchasers. Soon after the contract was executed, It is no excuse for a sleep and at various times afterwards, the latter sought to ing car company's breach of contract to reserve a

be released from, and refused to comply with, the certain berth for plaintiff that another person de contract for various reasons, which did not include manded it before plaintiff presented herself to pay any claimed alteration of it: Hell, that the purfor and occupy it, and that there was no other un

chasers could not, in an equitable action by the occupied. (Pullman Palace Car Co. v. Booth [Tex.), seller to enforce such contract, set up an unauthor28 S. W. Rep. 719.)

ized alteration, of which the seller was ignorant,

made by the agent after part of them signed it. CONTRACT FOR PERSONAL SERVICES. - Contracts

(Davis & Rankin Building and Manufacturing Co. for personal services are subject to the implied con

v. Dix U. S. C. C. [Mo.], 64 Fed. Rep. 407.) dition that the party contracting to perform shall continue in health, and such contracts are revocable FEDERAL COURTS-JURISDICTION.—The organizaby his incapacity from illness to perform. Powell | tion by the individual stockholders and officers of a v. Newell (Minn.), 61 N. W. Rep. 335.)

corporation existing under the laws of one State of COUNTY - DEFECTIVE BRIDGE –

a corporation under the laws of another State for fects. — In an action against a county for injuries Court to try the title to a tract of land claimed by

the express purpose of bringing a suit in a Federal caused by a defect in a county bridge, evidence that

the former corporation, and conveyed to the latter a member of the board of county supervisors was informed of the defect prior to a regular meeting of after its organization and before suit brought, will the board held before the time of the accident is

not enable the grantee to maintain a suit in eject

ment in such court. (Lehigh Min. & Manufacturing competent, as it is the duty of each member of the

Co. v. Kelly [U. S. C. C., Va.), 64 Fed. Rep. 401.) board to report defects in bridges. (Morgan v. Fremont County (Iowa), 61 N. W. Rep. 231.)

GARNISHMENT

Where, in CRIMINAL LAW-ARGUMENTS OF COUNSEL.—Where garnishment the evidence shows that the garnishees

owe defendant directly, or as heir of his deceased the evidence against a defendant on trial for assault

wife, plaintiff is entitled to judgment. (Simmons is positive, a remark of the county attorney that, if the jury make a mistake, defendant can appeal

v. Carmichael, [Tex.], 28 S. W. Rep. 690.) called forth by a line of argument opened by de- INSURANCE- CONTRACT OF RENEWAL.- An oral fendant's attorney, is not ground for reversal. agreement between plaintiff and defendant's agent (Moore v. State [Tex.], 28 S. W. Rep. 686.)

in regard to renewing a policy of fire insurance, in

NOTICE OF DE

DEBTS SUBJEOT TO.

MANDAMUS TO JUDGE.

ILLEGAL LEASE.

- PAVING CONTRACT

INVALID ASSESSMENTS.

which the amount of the policy to be taken is not PROHIBITION

- Prohibifixed, does not constitute a binding contract. (Sa- tion will not lie to prevent a circuit judge from proter v. Henry County Farmers' Jut. Fire Ins. Co. ceeding on the petition of receivers of a railway [Iowa), 61 N. W. Rep. 209.)

company asking authority to enter into an agreeINSURANCE-POLICY--- MODIFICATION.

Where an

ment for the partial readjustment of the affairs of insurance company modifies a life policy by an the company, and from carrying out the decree agreement that all restrictions of travel, occupa

rendered. (In re Rice (U. S. S. C.], 15 S. C. Rep. tion, or residence expressed in the original policy" | 149.) shall be waived, and further agrees that from that

RAILROAD COMPANY

Where time the policy shall be “incontestable," and that the officers, directors and shareholders of a railroad when the policy became a claim “the amount of in- company designedly enter into an illegal and void surance" shall be paid on approval of the proof of lease of their railroad to another company, the court loss, the provision in the original policy that in case

will not relieve them therefrom, they being in pari of death by suicide the company shall be liable only delicto. (Olcott v. International & G. W. R. Co. for the “net value of the policy” no longer remains [Tex.], 28 St. Rep. 728.) in force. (Simpson v. Life Ins. Co. of Virginia REMOVAL OF CAUSES — DIVERSE CITIZENSHIP.[N. Car.], 20 S. E. Rep. 517.)

An administrator with the will annexed, a citizen of JUDGMENT COLLATERAL ATTACK.—The validity Connecticut, filed a bill in the State Court for the of a judgment of a court of competent jurisdiction construction of the will against two beneficiaries, will not be considered on a motion to quash a writ citizens, respectively, of Connecticut and New of fieri facins issued thereunder. (Jones v. George York – the former claiming that certain personal [Md.], 30 Atl. Rep. 635.)

property, bequeathed to her for life, with power of MUNICIPAL CORPORATION

sale and appropriation of proceeds, should be deWhere a city having au- livered to her as her own; and the latter claiming thority to pave its streets and pay therefor from its that such life beneficiary should give bonds under treasury, and supposing that it had authority also a statute of Connecticut, for the safe-keeping of to assess the cost on abutting property and transfer such property: Held, that the cause was not rethe assessment in payment for work, contracts with movable, the administrator being, under the law of a person, who also supposed it had such authority Connecticut, not a nominal, but a real party in inin regard to assessments, to do such paving, and to

terest, and one of the defendants being a citizen of pay him by assigning the assessments to him, the

the same State. (Security Co. v. Pratt, U. S. C. C. city, not having in fact any authority to make the [Conn.). 64 Fed. Rep. 405.) assessments, will be liable on the contract for

SALE - PAROL EVIDENCE. Where a contract of the work, though it stipulated that the assessments shall be accepted in payment, and that the city shall

sale provides that title shall remain in the seller not be otherwise liable under the contract, whether until the price, including notes given therefor, is the assessments are collectable or not. (Barber As-paid, the fact that two of the notes were signed by phalt Paving Co. v. City of Harrisburg (U. S. C. c. only two of the buyers, and one by only the other of App.), 64 Fed. Rep. 283.)

one, does not render the contract ambiguous, so as NEGLIGENCE

to permit the administration of parol evidence to LIABILITY OF HUSBAND. - Where

show that the contract was in fact several. (Pettyrecovery is sought against a husband and wife on the ground that plaintiff's injuries, caused by the place v. Groton Bridge & Manuf'y Co. [Mich.)

, 61

N. W. Rep. 266.) discharge of a rifle in the bands of the wife, were

TENANTS IN due to the negligence of both husband and wife, no presumption that the husband is liable arises from When a tenant in common is in possession and extheir relationship and the fact that he was present. ercises acts of ownership of an unequivocal charac(Bethel v. Otis (Iowa), 61 N. W. Rep. 200.)

ter, and of such a nature as, by their own import, PARTNERSHIP-DEATH OF PARTNER.-Where one

to give notice to the other co-tenants that an adpartner advanced money for the purchase of mate

verse possession and a disseisin are intended to be rials for repairing the firm property, and in his will asserted against them, then the possession of such gave the other partners the privilege of buying his

tenant in common is adverse. (Feliz v. Feliz (Cal.), share in such property at a fixed price, manifestly 38 Pac. Rep. 521.) considering the amount so advanced as a demand WATERS-TIDE LANDS-DISPOSITION BY STATE. against the firm, the survivors, who were also execu- A State, if its laws permit, may dispose of its tide tors of bis estate, may repay the amount so ad- lands free from any easement of the upland owner. vanced with assets of the firm. (Ashbrook v. Ash- (Pacific Gas Imp. Co. v. Ellert, U. S. C. C. (Col.), brook (Ky.), 28 S. W. Rep. 660.)

64 Fed. Rep. 421.)

COMMON -- ADVERSE

POSSESSION.

would confront them, and there should be no The Albany Law Journal.

valid reason why a person should be debarred ALBANY, MARCH 9, 1895.

from entering the profession of law until a time

when he could become a citizen of this country. Current Topics.

Some, probably, would be so foolish as to start

the cry of " foreign labor," but in the legal pro(All communications intended for the Editor should be addressed simply to the Editor of The ALBANY LAW JOURNAL.fession, at least, it is hoped that there will rise All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW up no person or class of persons who will fear JOURNAL COMPANY.)

an active and vigorous mental conflict with one

who, though born in another country, desires NY criticism which may appear in this paper to obtain the benefits and privileges of a citizen on any action of the Legislature of the

of the United States and a member of the legal State of New York, is not intended as a parti

profession. san effort to disparage the accomplishments and enactments of a political party, but are written A reprint of the toast How to Explain to only for the purpose of calling attention to what Your Client Why You Lost His Case" is appear to us to be either needless or bad legis- printed in the Law-Book Record, and is not only lation on the part of a body in which, from our amusing, but abounds in historical and clever standpoint of view, we recognize no distinction sayings, which were compiled and well arranged of political faith. So long as no political bias by the author. He jests with the subject very or prejudice can be attributed to a criticism attractively; but the well-known facts in relawhich is intended to be fair and reasonable and

tion to the findings, which are, unhappily, too wholly in relation to the merits, so much greater well known to the legal profession in their active is the effect of suggestions advocated by any practice of law in the courts of this and other journal on the minds of reasonable men. The States, reveals the fact that the mind of a jurynewspapers of recent date have been attempting man works in a way which is most peculiar to to disparage the propriety of passing several the genus of jurymen, and puzzling to the mind bills which are now before the Senate for its of an attorney. The writer has of late observed consideration, and which have reference to the several cases in which verdicts have been rendadmission of certain persons to practice as attor- ered where one or more of the jury have given neys and counselors in the courts of record of as a reason for their action facts which were this State. The two bills to which our atten- absolutely extraneous to the issues involved, tion has been called simply authorize the State and which had no pertinency to the merits of Board of Law Examiners to examine certain in- the case. Sectional and class feeling are well dividuals in the same manner as other appli- known to enter into the determination of many cants, and with the same force and effect, and cases, while other causes are as varied as the giving the General Term the same power to ad. temperaments and characteristics of men. The mit such persons as if they were citizens of the judges themselves many times influence the forUnited States and this State ; provided, how- mation of an opinion as to the merits of a case. ever, that the persons who are thus exempted from In relation to this, it has been a pet theory of the general rule shall declare their intention of the writer, which he has started many times to becoming citizens of the United States. There explain, that in the charge to the jury the judge seems to be no reason why such a bill should should be most brief, or should be absolutely not pass, as the persons seeking admission to prohibited from attempting to sum up the facts practice are to be subjected to the same mode which are presented by the issues, and should of examination. As can be seen, the idea is charge the jury in the simplest manner, almost simply to allow them to undertake this exami- in the words of the law which are applicable to nation as though they were citizens of the the circumstances, which may be brought out United States and of this State, and under the by the evidence. Not only would this be an rules of the Court of Appeals. In case these excellent arrangement for the lawyers and their persons sought to enter any other business or clients, but the judges would be free from many occupation, no such unfortunate state of affairs harsh criticisms of partiality and favoritism

VOL. 51 – No. 10.

which are so frequently heard after the case has of course, are never to blame ; the fault is that ended and the verdict rendered. The attempt of the judge, the jury or your client himself, to remedy the prejudices of jurymen would and it may be of all three. It becomes your be as foolhardy as to try to angelize human duty to divert the tide of his wrath into those nature, or for Edison to invent an electrical channels where it can do the least possible mind to replace the shattered intellects of some harm. If he be a crank and shoots the judge of the gentlemen in the box. But we suggest or cripples a juror, they fall as blessed martyrs, that the word to the wise, when it reaches the and their places and their mantles are easily ears of the judge, will be sufficient, and that an filled ; but not so readily your place or your effort may be made generally and successfully mantle. As one of America's sweetest poets, by judicial officers to leave the facts alone when Mr. G-M. D-, las expressed it in a touchaddressing the jury. The toast“ How to Ex. ing tribute to our professional and social worth, plain to Your Client Why You Lost His Case" unequaled for delicacy of sentiment, boldness is as follows:

of imagery, and beauty of diction in the whole “ The question, as framed, is not unlike that range of English poetry:

* Judges and juries may flourish or may fade, with which Charles II long puzzled the Royal

A vote can make them as a vote has made;

But the bold barrister, a country's pride, Society. He demanded the cause of certain

When once destroyed can never be supplied ;' phenomena, the existence of which he falsely The selection then of a target for your client assumed. The answer was simply the denial of (I use the word 'target' metaphorically) must the existence of the phenomena. What lawyer rest upon the peculiar facts and circumstances ever attempted to explain the loss of the case

of the case and the 'sound discretion 'as the upon the hypothesis that he had lost it? That venerated Story has it, of the counsel. But a lawyer cannot lose a case is as well estab. avoid, if possible, imputing the blame to your lished a maxim as that 'the king can do no client, for although this has been attended with wrong,' or, that 'the tenant cannot deny his very happy results, yet his mood at such times landlord's title.' Eliminate this error and our is apt to be homicidal, and, moreover, you question is of easy solution. Coke tells us that should bear in mind there your aim is to conlaw is the perfection of human reason ; ' Burke, ciliate. "Who wrote that note?' demanded an that it is 'the pride of the human intellect;' Indiana lawyer who, under the old system of “the collected reason of ages, combining the prin-proceedure, had declared in covenant as on a ciples of eternal justice with the infinite variety writing obligatory, and gone out of court on a of human concerns; ' 'the most excellent, yea, variance. *I got Squire Brown to write it,' the exactness of the sciences;' and the eloquent answered this sorely perplexed and discomfited Hooker, that “ her seat is the bosom of God, client. 'I thought so.' sneered the learned her voice the harmony of the spheres ; all counsel. 'Didn't you know that no dthings in heaven and on earth do her homage magistrate could write a promissory note that

the least as feeling in her care, the greatest would fit a declaration?' First as to the jury. as not exempt from her power.' But we know Upon this head I need not enlarge, only remind that, if it be the purest of reason, the exactness you that you are not held by the profession as of the sciences, its administration is not always committed or estopped by any eulogium, howintrusted to the severest of logicians or the ever glowing, which you may have pronounced exactest of scientists. We know that the great, during the progress at the trial on their intellithe crowning glory of our noble English com- gence or integrity. It is only in the capacity mon law' is its uncertainty, and therein lies the of a scapegoat that the American juror attains emolument and pleasurable excitement of its the full measure of his utility, and as such he practice. II, oblivious of this, you shall have will ever be regarded by our profession with assured your client of success in the simplest gratitude not unmingled with affection. But it case, the hour of disappointment will be that is to the judge that we turn in this extremity of your tribulation, and professional experience with unwavering confidence. The serenity and can extend to you no solace or aid. But your grandmotherly benignity enthroned upon his client's cause has resulted unfavorably. You, visage is to the layman that placidity of surface which indicates fathomless depths of legal lore; tive to the division of the State into judicial to the lawyer it bespeaks the phlegmatic tempera- departments, took place in the Assembly ment of one whose mission is to bear unmur-Chamber, on Tuesday, March 6, 1895, at three muringly the burdens of others. It comes o'clock and was

very largely attended by upon you like a revelation, that your weeks of lawyers from not only those districts, but from study, your elaborate preparation, your volu- all over the State, and it is not unreasonable to minous brief, are all for naught; that the im- say that here were present over one hundred petuous torrent of your eloquence has dashed lawyers who were interested in the division of itself against his skull, only to envelop it in fog the new departments, and who had come and mist, and more ‘in sorrow than in anger' from all parts of the State to favor the O'Conyou confess that the presumption that every nor bill. There seems to be some plan on man knows the law cannot be indulged in his foot, instituted by lawyers who either live in or favor. Even your luminous exposition has are interested in Syracuse, to join the second failed to enlighten him. You need not spare and third judicial districts into one department, him. He thrives on abuse. Year in and year

which would make a department with over out he bears the anathemas of disappointed 2,100,000 inhabitants, or nearly twice as large lawyers and litigants with the stolid indifference as any of the proposed departments, except, the of Sancho Panza's ass in the valley of the pack-first department. The discussion was opened staves, or beneath the missiles of the galley- by ex-Assemblyman Teft, of Whitehall, represlaves, and society comes finally to regard him senting the fourth district, who said that the pretty much as did Sancho his ass. It berates lawyers of the fourth district were opposed to him, overtasks him, half starves hirn, and loves the Syracuse plan, and were in favor of the him. But, seriously considered, our question O'Connor bill. Mr. Brackett, of Saratoga, also is only a long-standing and harmless jest of the spoke in favor of the O'Connor bill. Marcus bar, meaningless in actual practice. The law- T. Hun, Esq., official reporter of the Supreme yer is untiring in his client's behalf, and the Court, spoke against a migratory court, saying, client knows, be the result what it may, that he that, in his opinion, any dissatisfaction which has had the full ineasure of his lawyer's indus- might exist in regard to the present General try, zeal and ability, and requires no explana- Terms was owing to the fact that one of the tion. Lord Erskine said that in his maiden judgesssimply wrote the opinion and that little speech 'he felt his children tugging at his or no consultation was held between the memgown and heard them cry, ‘Now, father, is bers of the court, so that practically the result the time for bread." The British bar ap- was that one judge reviewed the determination plauded the sentiment. The American lawyer of the trial court. It might well have been throughout the case feels his client tugging at added, that any desire to relieve the Court of his gown, and if unsuccessful is sustained by Appeals must really come by strengthening the the consciousness that he has done his whole Appellate Divisions of the Supreme Court so duty as God has given him to see and perform that appeals will not be taken from them to the it; and, should he want further consolation, he higher court, and that the very idea of increascan open that eldest of all the books of the ing the number of judges on the Appellate law and there read these words, which may Division was that they should remain in one soothe his wounded spirit, and possibly best place and should have frequent consultations, answer the question of to-night: 'I returned somewhat similar to those of the Court of Apand saw under the sun that the race is not to peals. It is obvious that the recognition by the the swift, nor the battle to the strong, neither bar that such a status existed in the new Apelyet bread to the wise, nor yet riches to men of late Division would give greater confidence understanding, nor yet favor to men of skill, that the determinations of the Appellate Dibut time and chance happeneth to them all.''

vision were correct and were likely to be up

held by the court of last resort should an apThe hearing before the joint judicial com- peal be taken from them. In fact the only mittees of the Senate and Assembly on behalf of hope of improving the present General Terms is the third, fourth and sixth judicial districts rela-l by fixing the court in one place and by the

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