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APPOINTMENT

BY

FRAUD.

who may

shilling had been held to be at a much earlier period. Abstracts of Recent Decisions. Trade and the means for its propagation were perpetually outgrowing " the primitive laws of an un

ADMINISTRATORS civilized people," and the punishment by death of Letters of administration granted to the second son offences against trade was reaily an attempt to ad- of decedent upon the representation that he is the just penalties to the heinousness of the offence only son, will be revoked for fraud, not withstanding There was a certain justice in the idea, but the start

the eldest son may since bave filed a renunciation of was made in a wrong direction, and the new legis

his right to the appointment. (Lutz v. Mahan lation went to pieces in a chaos of inconsistencies. (Md.], 30 Atl. Rep. 645.) Year by year one ridiculous offence after another

ASSOCIATION--DISSOLUTION. Where a voluntary was awarded the penalty of death " in proportion to society dissolves before the expiration of a lease of a the increase in the number of conceivable offences hall, the lease becomes the property of the members, against property.” Reformers at the beginning of i

exercise it jointly. (Sommers v. Reynolds this century had much ado to persuade the Legisla- | (Mich.), 01 N. W'. Rep. 501.) ture that it was as absurd as it was in human to con- CHATTEL MORTGAGE.--A mortgage on a stock of demn a man to the gallows for stealing 40s. from a merchandise, conditioned on the payment of certain dwelling-house. The State still labored under the debts “when due,” provided that the mortgagor mediæval belief that the severity of a sentence was was to remain in possession until the condition was more deterrent than the certainty of its infliction, broken. The debts at the time of the execution of for these extravagant penalties were not commonly the mortgage were past due, and the mortgagee enforced, and a petty offender sentenced to be took possession the day after the mortgage was exebanged might escape with three months' imprison-cuted. Held, that the mortgage was valid as ment. The death penalty for misdemeanors was against creditors of the mortgagor. (Kub v. Gartherefore no check upon the lawless. They might vin (Mo.], 28 S. W. Rep. 847.) be sent to the gallows, but they counted on getting COMBINATION BY INDIVIDUALS. -A refusal by a scot free. Yet, with this knowledge before them, number of pilots who own and operate their own the House of Lords would not vote for Romilly's bout, and, who have the boat properly manned, to bill to abolish capital punishment for the offence of allow a pilot designated by the pilot commissioners stealing 5s. from a shop. Lord Ellenborough to cruise ou her, is not a combination to prevent a thought that, if any change of punishment were person from executing the duties of a pilot, within necessary, “it should be transportation for life." | act of April 5, 1891, providing for the forfeiture of It is to be noted, by the way, that the bitterest | the license of a pilot entering into such a combinaopponents of reform in the criminal law have almost tion. (Morris v. Board of Pilot Com’rs [Del.], 30 always been the lawyers in the House of Lords. Atl. Rep. 667. Lord Ellenborough solemnly assured bis colleagues CRIMINAL LAW " THREATS.”—The fact that in the upper chamber that, if they abolished the threats had been made against a defendant under death penalty for shoplifting they must abolish it and indictment for murder, by his victim, indicative also for horse stealing, which “would be perfectly of a motive on the part of the latter to take defendludicrous.” Sir James Mackintosh, who followed ant's life, will not render his crime one without exSir Samuel Romilly as a reformer of the criminal press malice, and so bailable. (Ex parte Taylor law, failed to persuade the Legislature that a man [Tex.], 28 S. W. Rep. 957.) ought pot to be hanged in 1820 for wounding a cow DEPOSITION -- FAILURE TO ANSWER.-Interrogaor spoiling a tree. In the ministerial ranks the first tories in a deposition of a party to an action will not reformer was Sir Robert Peel, and in his day there be taken as confessed, on his refusal to answer, unwere forty kinds of forgery on the list of capital | less the refusal was willful. (Rushing v. Willis offences. The fiercest conflict was necessary between [Tex.], 28 S. W. Rep. 921.) the old spirit and the new-between the philosophers EMINENT DOMAIN-ELEVATED ROAD.-- Where a and the lawyers-before, in 1835, a man or woman city council is by statute authorized to provide for could be saved from the halter for the misappropria- the location of any railroad” within the city limits, tion of a letter.- Lau Times.

and “to pass all ordinances proper or necessary to carry into effect the powers granted," an ordinance

giving a railroad the right to construct its road The overt act, as hostile demonstration of the de- ) along a certain route, subject to certain restrictions ceased against the accused, must be proved before and limitations, is, when formerly accepted by the the introduction of evidence as to the dangerous railroad company, as binding upon the company as character of the deceased. (State v. Green (La.), a statute. (Tudor v. Chicago & S. S. Rapid Transit 16 South. Rep. 367.)

R. Co. [I11.), 39 N. E. Rep. 136.)

New Books and New Editions. general principles are stated, and, for the purpose

we have mentioned, we think it should be of value ANDREWS' STEPHEN'S PLEADINGS.

and assistance to students. The work is edited by By James De Witt Andrews, of the Chicago bar. George E. Gardner, of the Massachusetts bar, and This edition of the work is one which should receive is published by Baker, Voorhis & Co., 66 Nassau careful consideration and kindly attention from street, New York. members of the bar who desire a general work on

A SYSTEM OF LEGAL MEDICINE — ALLAN MCLANE the principles of pleading in civil actions. The care

HAMILTON AND OTHERS. fulness with which the work has been prepared, and The importance of medical expert testimony has the thoroughness with which the editor has gone been of late, by now celebrated trials in this State, into the ditferent subjects, makes it a book of more more demonstrated than ever, and the change in than ordinary utility. The first part deals with the the action of death causes by the advances made in Development of Procedure, the Joinder of Parties modern weapons and scientific discoveries, has creand the Election of Remedies, The second part ated a want of medico-legal literature which deals deals with the Proceeding in an Action from its with such subjects and reflects all the light that can Commencement to its Termination. The third part now be given by the status of the present scientific is devoted to the Principal Rules of Pleading, and world. This the author of "A System of Legal embraces Rules which tend simply to the Production Medicine” has, with the assistance of able coof an Issue; Rules which tend to Secure the Mate laborators, each a specialist in the subject of which riality of the Issue; Rules which tend to produce he writes, sought to do. For years, and in the main Singleness or Unity in the Issue; Rules which tend principles still, the old authorities from Casper to Produce Certainty or Particularity in the Issue; down have had no antagonists, but “the old order Rules which tend to prevent Obscurity anıl Confu-changeth," and subjects which, when written upon sion in Pleading; Rules which tend to prevent Pro- by those writers, were then looked on in the light lixily and Delay in Pleading, together with certain of great discoveries and scientific advance, are now, Miscellaneous Rules, and the last chapter deals with owing to the further strides by the “searchers after remarks on the merits of the system of pleading. hidden truths" concerning the human body and its This work should be of great value, even in a code ills, carried far beyond the first positions, so that State, and even with the visions of simplification medical jurists bave had to supplement the accepted and reform of the code which are in the air, for it writings on legal medicine with the discoveries of contains rules which are of the very foundation of the day. This book does this in itself, and brings any code of procedure, and which must be known up to date, in a most presentable form, the study of to understand thoroughly and to appreciate a code medical jurisprudence. It would be difficult to sinof procedure. It is a work which should be of gle out articles in it for special commendation when considerable aid to students; in fact it should be so

all are so well done, and where, cvidently, care and to all who desire to have a complete knowledge of experience have been brought to bear on the prepathe rules of procedure, whether they practice in a code State or not. From its reception it would seem

ration of each monograph, special distinction would to have received the most favorable consideration

be invidious. The large number of new cases bearfrom the members of the bar throughout the coun- ing upon the points discussed, cases which have not try. The price of this work is $4. Published by before been brought to the attention of the profesCallaghan & Co., 114 Monroe street, Chicago, N. sion, is a most valuable feature in the work, and the GARDNER'S REVIEW IN LAW AND EQUITY.

arrangement of the subjects shows most excellent This is a work which is designed for students

care on the part of the editor in clief. The selecwho are making their last review preparatory to

tions of the various contributors is wisely done. taking their final examination for admission to the bim, makes the whole a collection of valuable

Each known for his ability in the subject assigned bar. The value of a work of such a character is to express with brevity and simplicity the general brilliant future before it, and is one well adapted

treatises upon the general subject. The book has a principles of law which are so necessary to a thor

for the use of both doctor and lawyer. In two volough understanding of the science of law. The

E. B. Neat, New York. book deals with Real Property, Frecholds of Inheri

AMERICAN STATE REPORTS; Vol. 39. tance, Freeholds Not of Inheritance, Estates Less

This volume contains opinions and decisions from Than Freehold, Estate l'pon Condition, and other

98 Alabama, 33 Florida. 148 Illinois, 134 Indiana, kinds of estates; Personal Property, Contracts, Sales, 85 lowa, 52 Kansas, 77 Marylanıl, 160 Massachusetts, Bailments, Agency, Bills and Notes. Partnership, 98 Michigan, 53 Minnesota, 5.5 New Jersey, 159 Quasi-Contracts, Torts, Equity, Pleading, Evi- Pennsylvania, 39 South Carolin:1, 2 South Dakota cence, Criminal Law and Corporations. From the and 85-86 Wisconsin. Published by Bancroftvariety of subjects, it can be seen that only the most Whitney Co., San Francisco, Cal.

umes.

DESPITE the fact that the highest develops

our country supplanted the smatterings of The Albany Law Journal. knowledge of a foreign tongue. The Monroe

doctrine, from the time of Jefferson, has been ALBANY, MARCH 30, 1895.

recognized as one of our American principles

in the law of nations, and one which tends to Current Lopics.

protect our own country from the usurpation

of a foreign power. The Washington Post (All communications intended for the Editor should be ad

most ably discusses the subject which we pubdressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other lish as a clear and concise statement of the exbusiness matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

isting difficulties and one which should receive careful study and thought. It says:

“ With British war vessels headed toward ment of the law should tend

Nicaragua to compel the payment of an inpersonal safety and to prevent loss of property demnity for an alleged outrage upon a British and life, it is a matter of general regret and subject, and with French and German gunboats menace to the public welfare that the people moving upon Venezuela with more or less hosand, especially, the lawyers do not take a tile intent, to say nothing of the English usurdeeper and keener interest in questions of na-pations in that republic, the administration tional importance and world-wide magnitude, will have its hands full, as stated yesterday, if though it is to be hoped that such lack of the Monroe doctrine is to be enforced. The proper attention and of remedial suggestions question is a delicate and most important one, will not result in having some great disaster and only the exercise of great diplomatic tact confront the country from which the nation

can prevent unpleasant consequences. What could have escaped through the wisdom and is the Monroe doctrine? How did it happen the combined efforts of the educated and think

to be enunciated, and how far is the United ing classes.

Are the mocking sayings true States committed to it? These are questions which allege that the only chance of the over- of timely interest. To their consideration the throw of a representative form of government President and his advisers are giving careful lies in the failure of the general public to inter- thought. The result of this deliberation will est themselves with the questions of state ? | be seen in the instructions which this adminisThe rise of politicians is marked by the detration will give to our ministers and naval officrease of public knowledge of national, State

cers in South America. Great Britain and the and municipal necessities, while the town meet- European powers are, of course, greatly coning too often resembles the council of the cerned in the position which this government leaders of the party. Flashy literature is now will assume, and it may be that the diplomatic sought with greedy rapacity, while historical correspondence of the next few months will landmarks are relegated to the school boy and leave a lasting impression upon the future of the grind; exhibitions of artless nudity receive this country. The Monroe doctrine is the the plaudits of the pink-cheeked, brainless, pre- principle of foreign non-intervention with afcocious prodigies and tottering decrepits with fairs upon the American continents, and essepulchral environments though writers of na-pecially the prevention of any colonization by tional importance receive their reward in the foreign powers. It was called forth by the orfailure of their enlightening enterprises; women ganization in the fall of 1815 of what was seek the sterner pursuits of men with shame known as the Holy Alliance, a treaty signed by less persistence and ill-advised solicitations for the Czar of Russia, the Emperor of Austria, that which might degrade them, while the so- and the King of Prussia. While the ostensible called failure of a jury to convict a man is object of this alliance was the subordination of greeted by the whistling cowhides in the hands politics to the Christian religion, the worldly of members of the gentler sex who do not wise statesmen of this country and of Europe recognize the justice of the law which their knew well enough that the three sovereigns sisters seek to assist in framing. Public schools were seeking more practical ends than the adwould give a greater benefit if the history of 'vancement of religion. It was known that they

VOL. 51 - No. 13.

were resolved to uphold monarchial institu- and on just principles, acknowledged, we could tions, and were anxious to assist Spain in sub- not view any interposition for the purpose of duing her independence-seeking colonies in oppressing them, or controlling in any other South America. This fact presented a ques- manner their destiny, by any European power, tion which, in the language of Thomas Jeffer- in any other light than as the manifestation of son, was the most momentous which had been an unfriendly disposition toward the United offered since the signing of the Declaration of

States.'

Independence

. Mr. Monroe, who was Presi- “Concluding his discussion of this subject,

none.

dent in 1823, when the matter assumed formid

President Monroe asserted that it was the duty able shape, at once sought the advice of Mr.

of this government not to interfere with any of Jefferson, who was then living in retirement at

the internal concerns of European powers ; to Monticello. Mr. Jefferson's reply was posi- hold toward them a frank, firm and manly tive. Our first and fundamental maxim policy, meeting, in all instances, the just claims should be,' he said, “never to entangle our

of every power, submitting to injuries from selves in the broils of Europe ; our second,

Then he added : ‘But in regard to never to suffer Europe to intermeddle with cis- these continents, circumstances are eminently Atlantic affairs.' Mr. Jefferson, it might be

and conspicuously different. It is impossible added, in the same letter, favored the acquisi

that the allied powers should extend their tion of Cuba to the United States. In previ- political system to any portion of either contious correspondence Mr. Jefferson had, while nent without endangering our peace and happiPresident, expressed the same hostility to foreigo

ness ; nor can any one believe that our Southintervention, so that the doctrine which is now

ern brethren, if left to themselves, would adopt associated with the name of President Monroe

it of their own accord. It is equally impossireally belongs to his predecessor. The emble, therefore, that we should -behold such inphatic language of Mr. Monroe in his message terposition, in any form, with indifference.' to Congress on December 2, 1823, left no

" Such was the Monroe doctrine. It is doubt, however, of the intentions of this gov- interesting to add, however, that never has ernment, and the frankness of the utterance

this doctrine received the official or formal commanded general attention. He deemed sanction of Congress.

.

In the same session the occasion proper for asserting, as a principle during which the message was delivered, Mr. in which the rights and interests of the United Clay presented in the Senate a resolution States are involved, the following: “That the embodying the president's views, but it was American continents, by the free and independ never brought up for action or discussion. In ent condition which they have assumed and the Clayton-Bulwer treaty the principle was, to maintain, are henceforth not to be considered say the least, partially abandoned. Eminent as subjects for future colonization by any authorities have also differed as to the constiEuropean powers.'

tutionality of Mr. Monroe's declaration. Mr. “Discussing the attitude of Spain and Portu- Clayton of Clayton-Bulwer treaty fame; Mr. gal toward the South American nations, and Cass, Mr. Clay, Mr. Seward, President Polk, the policy of the allied powers, President Mon- Secretary Fish, Secretary Frelinghuysen, and roe said: “We owe it, therefore, to candor and Secretary Blaine are among those who have to the amicable relations existing between the indorsed it. Mr. Frelinghuysen went so far as United States and those powers to declare that to assert, on the ground that the decision of we should consider any attempt on their part American questions pertains to America itself, to extend their system to any portion of this that the arbitration by European States of hemisphere as dangerous to our peace and South American difficulties would not be sancsafety. With the existing colonies or depend- tioned by this government, even with the conencies of any European power we have not in- sent of the parties interested. Secretary Fish terfered and shall not interfere. But with the summed up the influence of the Monroe docgovernments who have declared their inde-trine in these words : ‘It has exercised a perpendence and maintained it, and whose in- manent influence upon this continent. dependence we have, on great consideration at once invoked in consequence of the sup

It was

posed peril of Cuba on the side of Europe ; it Mr. Brainerd represented the New York City was applied to a similar danger threatening Bar Association, being chairman of the comYucatan ; it was embodied in the treaty of the mittee on amendment to the law. Mr. HubUnited States and Great Britain as to Central bell, secretary of that committee, was also America; it produced the successful opposi- present on behalf of the association. They tion of the United States to the attempt of favored the bill presented by the New York Great Britain to exercise dominion in Nicara- judges. The result of the discussion was the gua under the cover of the Mosquito Indians, adoption of a suggestion that the framers of and it operated in a like manner to prevent the the two bills should conform them to the views establishment of a European dynasty in Mex- suggested upon the argument and eliminate ico. The United States stand solemnly com- everything which was not necessary in order to mitted by repeated declarations and repeated carry out the terms of the new judiciary article, acts to this doctrine and its application to the embodying those matters in a separate bill. affairs of this continent.'"

The sentiment of the committee, as indicated

upon the hearing, seemed to be very strongly in Two important hearings have been had dur- favor of leaving the matter of findings as it now ing the present session before the joint commit- stands under the provisions of the Code of tees of the Legislature affecting the interests of 1894. and decidedly against any increase in the bar of the State. The first, a few days since, costs on appeal to the Court of Appeals. upon the question of dividing the State into judicial departments, brought together a large We publish in this issue of the JOURNAL an number of lawyers, representing every judicial article on ““ The Taxing Power of the Unidistrict of the State. On Tuesday of this week ted States " by James J. H. Hamilton, Esq., a hearing was given by the joint judiciary com- of the Scranton, Pa., bar, which is in accord mittee of the Senate and committee on codes with many of the arguments which have been of the Assembly upon the bills conforming the made against the constitutionality of the inCode of Procedure to the requirements of the tax but which presents several new new Judiciary Article, which two bills were pre- theories on the subject of taxation. So much sented, one prepared by Louis Marshall and the has been written against the income tax that it other by justices of the Supreme Court. In is apparent that lawyers, theorists, and a large the main, the two bills were alike, but differed majority of the people are against the recogni. with reference to the matter of findings by the tion by the courts of this species of class taxacourt, and also as to costs to be allowed in the tion and unjust discrimination. The necessary Court of Appeals; the Marshall bill restoring cost of collecting such a revenue is proportionprovisions of the Code with reference to find ately too great for the net return to the governings, and both bills increasing to a considerable ment and the absolute lack of certainty in amount costs in the Court of Appeals; the Mar- securing proper returns demonstrates the shall bill making the costs $250, the other, $175. futility of this scheme to gain suitable moneys The discussion was opened before the commit- for governmental purposes. tee, presided over by Senator O'Connor, by Judge Ingraham, of the New York city Supreme Court, In connection with the Hon. Joseph H. who stated the different features of the two bills Choate's argument before the Supreme Court and the views of the New York judges upon the in relation to the income tax, Francis J. Lipsubject. He was followed by Judge Beekman, pitt, Esq., of Annapolis, Md., writes to the who was elected to the Supreme Court last fall, Nation : I have read the arguments before and who indorsed the suggestions made by the United States Supreme Court on the quesJudge Ingraham and urged the features in the tion of the constitutionality of the income tax bill he had prepared at the instance of the as reported in my newspaper. Mr. Choate's judges. A discussion of the merits of the two position is, that a tax on the income from land bills followed in which Messrs. Marshall, Fiero, is a tax on the land itself, and, therefore, a Elibu Root and Cephas Brainerd took part. I direct tax which, under article I, section two,

come

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