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The bar associations of the State have taken action The action of the Bar Association of the city of in the matter as follows : At a meeting of the
the New York was supplemented by that of its comOnondaga County Bar Association held at the Court mittee as follows referring to the act proposed by House in the city of Syracuse, on the 19th day of the State Association and which is in substance the February, 1895, the following resolution was one given below: adopted :
NEW YORK, March 22, 1895. Resolved, That it is the sense of this association I hereby certify that at a meeting of the committhat the present Legislature should provide for the tee on the amendment of the law of the Bar Associaappointment of suitable persons to make the neces- tion of the city of New York, held at its house No. sary investigation and report to the next Legisla- | 7 West Twenty-ninth street, the annexed proposed ture whether or not, in their opinion, a revision of bill entitled, “An act to examine and report upon the Code of Procedure should be had, and if so, to a revision of the Code of Civil Procedure," a copy what extent, and in what respect.
of which said proposed bill is annexed hereto, was W. P. GOODELLE, considered, and after discussion by members of the President Onondaga Co. Bar Association. said committee, the said proposed bill was approved
and recommended for enactment. I further certify I do hereby certify the following to be a correct transcript from the proceedings of the Rochester
that the said meeting was held on the evening of Bar Association of date, January 14, 1895 :
March 21, 1895. and that a quorum was present. Resolved, That it is the opinion of this association
Chas. BULKLEY HUBBELL, that the Code of Civil Procedure should be revised
Secretary of the Committee on the Amendment and simplified.
of the Law. Resolved, That copies of these resolutions be sent As a result of this unanimous action of the Bar to the Senator and Assemblymen from Monroe Associations of the State and the unanimity of senticounty, and to the President of the State Bar Asso
ment among the lawyers, Hon. M. E. O'Grady has ciation,
introduced the following bill in the Legislature: Dated January 15, 1895.
An Act authorizing the appointment of three memHENRY W. GREGG,
bers of the bar to examine and report upon a reSecretary.
vision of the Code of Civil Procedure. At a meeting of the law reform committee of the
The People of the State of New York, represented Bar Association of the city of Brooklyn a resolution in Senate and Assembly, do enact as follows : was unanimously passed heartily endorsing the pro
SECTION 1. Within ten days after the passage of posed act providing for the appointment of counsel this act, the governor shall appoint three members to examine and report upon a revision of the Code
of the bar of this State, who shall examine the Code of of Civil Procedure.
Procedure in this State and the Codes of Procedure HENRY S. RASQUIN,
and Practice Acts in force in other States and counCorresponding Secretary.
tries, and the rules of court adopted in connection At a stated meeting of the Association of the Bar therewith, and report thereon to the next legislaof the city of New York, held on the 12th day of ture in what respects the Civil Procedure in the March, 1895, the committee on the amendment of courts of this State can be revised, condensed and the law presented a report, calling the attention of simplified. the association to the condensing and simplifying § 2. The persons so appointed shall receive the of the Code of Civil Procedure.
necessary expenses and disbursements incurred in Mr. Cephas Brainerd presented the following re- the performance of the duties herein imposed when solution:
the same are properly audited by the comptroller Resolved, That the Association of the Bar of the of the State, and the same when so audited shall be city of New York recommends the passage of an act paid, on the warrant of the comptroller, out of any by the present Legislature, authorizing the appoint-moneys in the treasury not otherwise appropriated. ment by the Governor of three lawyers, who are to $ 3. The necessary printing in connection with serve without salary, empowered to consider and such revision shall be done by the State printer, and report at the next session of the Legislature upon copies of the report above provided for shall be disthe advisability of condensing and simplifying the tributed to judges of the Court of Appeals, justices Code of Civil Procedure, with recommendations as of the Supreme Court, county judges and surroto the respects in which the Code should be revised. gates and to such members of the bar as may reWhich was adopted.
quest the same, or as the persons so appointed may S. B. BROWNELL,
designate, by December 1, 1895.
T between the French government and a British
The proposed revision of chapter 16 of the Code still, the rules of European international law as to of Procedure presented to the State Bar Association neutrality have no application to controversies with by the committee on law reform has also been put non-European peoples. As regards our treaty enin form of a bill and presented to the Legislature, gagements, it is sufficient to say that by the conthe article with reference to the writ of habeas cor- vention of August 5, 1890, the British government pus having been revised so that the proposed undertakes to “recognize the French Protectorate amendment includes sections 1991 to 2148 inclusive. over Madagascar, with all its consequences.” The We have heretofore published the revision as to the consideration for this promise is to be found in the portions other than the writ of habeas corpus and French concession to the British of all French rights proceedings to bring up a person to testify, which in Zanzibar. It is clear, from the non-interference are to be found in this week's issue.
of the secretary of state, that the interpretation put
on that engagement by the British government is BRITISH TRANSPORT OF FRENCH WAR
one that is incompatible with interference with the MATERIAL TO MADAGASCAR.
French military expedition against the Hova rulers. | HE fact that an agreement has been entered into The varying shades of meaning attached to the term
“protectorate” bave been well analyzed in a recent firm of ship-owners to transport certain war material
work on international law. Protectorate over a to Madagascar invites consideration of more than fully-organized European State may be compatible one interesting question of the incidence and of the with an almost complete condition of internal inlimits of international law. The announcement that dependence, while a protectorate over an African to avoid controversy the French government has tribe means in reality the sovereignty of the prodecided that the ships should sail under the French tecting power over the territory occupied by the flag by no means disposes of the interest of these
tribe. But the truth appears to be that we have questions. The chief among them are: First, has
another instance of the non-applicability of Eurointernational law been violated by breach of neu
pean rules of international law to controversies with trality, having regard, on the one hand, to the
non-European races. No proclamation of neutrality general rules of the law of nations on that head, has been issued by any European government, or and, on the other, to the treaty obligations of the
appears likely to be issued. . Again, the French British governments and, secondly, has the British journals call attention to the fact that the rules of neutrality law been violated? Taking the last ques
the Geneva convention have not been signed by the tion first, the rules of British neutrality are to be found
Hova governors of Madagascar; and, as a consein the Foreign Enlistment Act, 1870. That statute
quence, the French government does not anticipate forbids, among other acts, the dispatching any ship any protection to its medical staff from the Geneva to be employed in the military or naval service of convention of August 22, 1864, and of October 20, any State at war with any friendly State (SS 8-13). 1868. The French government has therefore ordered Augmenting the warlike force of any such ship is that the surgeons and attendants of the ambulances also forbidden (S 10), as are naval and military ex
and hospitals are to be armed. The surgeons are peditions against friendly States. If, therefore, the
to retain their revolvers; the attendants are to carry French expedition were directed against a friendly rifles and the same number of cartridges as the European State instead of against the Hova rulers soldiers on active service. It would seem that a of Madagascar, there can be little doubt that the parallel to this proceeding--and a further illustraBritish secretary of state would issue his warrant tion of the applicability of European laws of war to against the ship-owners and the ships. The general non-Europeans, are to be found in the action of the rules of international law are substantially the same, Chinese, who treat the Japanese medical attendants and indeed furnish the foundation of the British as combatants.-Lau Journal. law of neutrality. In later times, such furnishing of ships for hostile purposes has been held a breach A San Antonio, Texas, lawyer was appealing of neutrality, the most famous instance being fur- most eloquently to the jury on behalf of his client, nished by the Alabama incident. There are, how who was being tried for larceny. Even the prisoner ever, features of the present situation which remove
himself was moved to tears, and was wiping his the controversy between the French government and eyes with a handkerchief, when his attorney turned the Hovas from the plane of those in which the
and ask the jury to gaze on the honest features of
his client, and say if they could believe that it was ordinary rules of international neutrality under the possible for a man with such an honest face to be general law and the British statute are applicable.
guilty of theft. Suddenly the lawyer paused, These features are that the British government is gasped for breath, and ejaculated : ' "Well, I'll be under treaty obligation to recognize the French blowed if the blankety blank scoundrel hasn't Protectorate over Madagascar; and, to go deeper I swiped my pocket handkerchief.”—Argonaut.
Abstracts of Recent Decisions. MASTER AND SERVANT CONTRIBUTORY NEGLI
GENCE. ---An engineer wbo, to make necessary reASSIGNMENT FOR BENEFIT OF CREDITORS-COL
pairs, goes out on the running board of his locomoLATERAL SECURITY--A creditor of an insolvent who
tive while it is running at seventeen or eighteen holds collateral security must either surrender the
miles an hour, and while it is unusually dangerous collateral, or have its value determined by the court,
because of the defects in the engine, when the enand his claim will be allowed for the difference be- gine and train can be stopped or the speed slacktween the amount thereof and the value of the col-ened in a short distance, is guilty of such contribulateral. (National Union Bank v. National Mechan
tory negligence as will preclude a recovery for his ics' Bank (Md.), 30 Atl. Rep. 913.)
death, caused by being thrown from the engine. ATTACHMENT—UNRECORDED DEED-NOTICE.—An (Southern Pac. Co. v. Johnson [U. S. C. C. of App.), attaching creditor who, before the completion of 64 Fed. Rep. 951.) his levy and the perfection of his attachment by the MUNICIPAL CORPORATION issuance of a proper warrant, discovers an unre
TRACTOR. —The defendant city contracted for the corded deed of certain realty from his debtor to
construction of certain sewers according to plans another, for a valuable consideration, will be and specifications furnished by defendant. This deemed to have such notice thereof as to deprive work did not necessarily involve an injury to plainhis subsequent judgment of priority. (Merchants' tiff's land. The defendant did not employ and bad Building & Loan Ass'n v. Barber [N. J.), 30 Atl.
no power to dismiss workmen, though by the conRep. 865.]
tract they were to be residents of the city. The BUILDING CONTRACT--PERFORMANCE.-A build- superintendent of sewers and inspector, city offiing contract provided that the payments should be cers, were authorized to give instructions so that made on the architect's certificate, and that the sec- certain results might be obtained, but had no conond payment would be due when all the work was trol over the contractor's men. Hell, that the concompleted, and the final payment thirty days later. tract being with an independent contractor, plainIt was provided that no certificate given, except tiff could not recover from the defendant city for that for the final payment, should be conclusive evi- injuries caused by the negligence of the contractor's dence of the performance of the contract. Held, servant's. (Harding v. City of Boston (Mass.), 39 that a certificate for the second payment did not N. E. Rep. 411.) dispense with the necessity for the final certificate.
NEGLIGENCE (Beharrell v. Quimby (Mass.], 39 N. E. Rep. 407.)
In an action against a city for injuries caused by CARRIERS-INJURIES TO PASSENGERS.-In an ac- a defective sidewalk, evidence of the condition of tion against a carrier for personal injuries caused by the sidewalk two days after the injury is admissithe negligence of defendant's servant in driving the ble where there was no change therein. (Lohr coach into a post, thereby causing the horses to run
v. Borough of Philipsburg [Penn.], 30 Atl. Rep. away, evidence of negligence on the part of the ser. 822.) vant in deserting the coach after the collision is ad
MUNICIPAL IMPROVEMENTS DELEGATION missible. (Caveny v. Neely (S. Car.], 20 S. E. Rep. 806.)
The exclusive power over street im
provements conferred by the Legislature on the CORPORATIONS-INSOLVENCY-RECEIVER. – While legislative department of the various city governthe mere insolvency of a corporation is not enough ments cannot be delegated to any officer or committo authorize the appointment of a receiver at the tee, but must be exercised by that department itself suit of general creditors, yet when it clearly appears as a body. (Bolton v. Gillerau [Cal.], 38 Pac. Rep. that on account of such insolvency, and the mis- 881.) conduct of its officers, the corporation is no longer
NEGLIGENCE able to proceed with its business, or its assets are in process of being fraudulently misapplied, to the recovered against him for injuries caused by the
OVER. -The lessee of a wharf who pays a judgment injury of creditors, who are without other adequate means of relief, it becomes the duty of the court to negligence of his sub-lessee, without negligence on appoint a receiver. Under such circumstances, the
his part, may recover indemnity from the subproperty of the corporation becomes a special fund, lessee without having notified him of the pendency out of which creditors are entitled to satisfaction of of the prior action. (Oceanic Steam Nav. Co. v. their demands, and hence is the subject of an
Compania Transatlantica Espanola (N. Y.), 39 N. E. equitable lien or trust for their benefit. (Doe v.
Rep. 360.) Northwest Coal & Transportation Co. [U. S. C. C.,
an action Ore.), 64 Fed. Rep. 928.)
against the owner of a building for the death
of a child through the sudden and negligent start- municipal improvements, where the court which ing of a passenger elevator by the elevator boy, evi- conducts it determines the district on which the dence that the boy had on previous occasions started assessment shall be laid, and therefore who shall be the elevator in a like sudden and negligent manner parties, and in a single judgment each piece of is not admissible. (T. & H. Pueblo Bldg. Co. v. property is assessed for an amount bearing the same Klein (Colo.), 38 Pac. Rep. 608.)
proportion to the full amount to be collected that NEGOTIABLE INSTRUMENT-ACTION BY ASSIGNEE
its benefits bear to the full amount of benefits. (In SET OFF.--In an action by an assignee of a note
re City of Chicago [U. S.C. C., Ill.], 64 Fed. Rep. 897.) under seal against the maker, defendant having TAXATION-RECOVERY OF TAXES PAID.—A corpoproved the purchase before suit brought of an over- ration which has paid a tax assessment upon its due note of the payee of the note sued on, to defeat capital stock, levied erroneously, but within the the rights of set-off, the burden of proving notice jurisdiction of the assessing officers, and so not ille to defendant, at the time he bought the note, that gally, cannot recover the amount so paid. (United the note sued on had been assigned to plaintiff, is States Trust Co. of New York v. Mayor, etc., of on plaintiff. (Burford v. Fergus (Penn.), 30 Atl. City of New York [N. Y.), 39 N. E. Rep. 383.) Rep. 844.)
WATERS-STREAMS ON PUBLIC LAND-APPROPRIRELEASE OF INDORSER. -A note ATION FOR MINING PURPOSES.-In localities where indorsed by defendant an accommodation .rights by prior appropriation of the streams on pub
transferred by the plaintiff payee to a lic lands for mining and irrigating purposes became bank, and, when due, was substituted, without lawful through the acquiescence of the government defendant's knowledge, by two notes by and the customs of the locality, the common-law the same makers, and indorsed by plaintiff and rights of riparian owners were modified to the exanother, the original note being surrendered to the tent of the rights so acquired. (Isaacs v. Barber makers: Held, that defendant was discharged from [Wash.], 38 Pac. Rep. 871.) liability, although the makers of the original note afterward delivered it to plaintiff, that he might hold defendant as an indorser. (Green v. Skinner
New Books and New Editions. [Miss.], 16 South. Rep. 378.)
COURTS AND THEIR JURISDICTION. NEW TRIAL—INADEQUACY OF DAMAGES.- Where,
By John D. Works, formerly one of the justices in an action for personal injuries, the jury finds, in of the California Supreme Court, and author of effect, that the plaintiff has been injured through "Indiana Pleading and Practice” and of “Removal the negligence of the defendant, without any con
of Causes from State to Federal Courts." It would tributory negligence on his own part, and the evi
seem only necessary in reviewing this work to simdence, without conflict, shows that his injuries were
ply give the contents, since it can readily be seen substantial, yet the jury awards him practically that it treats of a subject which has not recently no damages at all, the verdict will be set aside and been dealt with, while the distinction of its author a new trial awarded. (Carter v. Wells, Fargo & marks it out as a book of some importance. The Co. [U. S. C. C., Cal.], 64 Fed. Rep. 1005.)
initial chapter treats of Courts, and is followed by PUBLIC LAND GRANT BY STATE
a chapter on the General Principles Affecting JurisWATERS.- The State holds the lands under the nav- diction; then follows chapters on Means of Acquirigable or tide waters of the State as sovereign, and ing Jurisdiction, Venue, Judges, and Common Law, not as proprietary, and cannot grant them to private Equity and Statutory Jurisdiction. The work conpersons, to be by them reclaimed for private use. tains over 900 pages, and its arrangement is excelCoxe v. State [N. Y.), 39 N. E. Rep. 400.)
lent, giving the references at the foot of the page. RAILROAD COMPANY
The index may certainly be called “unabridged,"
as it is the most complete that has been published complaint in an action against a street railroad com
in a book of this size in many years, containing as it pany for personal injuries is not demurrable because the only allegation as to negligence is that defend the care with which the work has been compiled.
does 150 pages, and showing additional evidence of ant's servant "negligently ran said car against the
The chapter on “Common Law, Equity and Statuwagon.” (Citizens' Street R. Co. v. Lowe (Ind.], tory Jurisdiction” is extremely interesting and 39 N. E. Rep. 165.)
clear, and in itself is of great value to lawyers and REMOVAL OF CAUSE — SEPARATE CONTROVERSY.-- students. The price is $6, net. Published by the There is not a separable controversy, as required by Robert Clarke Co., 61-65 West Fourth street, Cinthe removal statute, in an assessment proceeding for | ciņnati, Ohio.
- In a
When the omnipotent lie shall be throned, and The Albany Law Journal.
sceptered and crowned, you think we ought all
of us to fall down and worship it as the hope ALBANY, APRIL 19, 1895.
of our political salvation. You teach us, and Current Lopics.
perhaps we will learn, that under such a rule
we are better off than if the truth had prevailed [All communications intended for the Editor should be ad- and Justice been triumphant.” dressed simply to the Editor of THE ALBANY LAW JOURNAL.
(Jeremiah S, Black to the Electoral Commission, Feb. 27, 1877. All lotters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW
Cong. Rec., Part IV, vol. V, p. 190, 44th Cong.) JOURNAL COMPANY.]
“In Rama was there a voice heard, lamentathe provisions of the Constitution can
tion and weeping and great mourning, Rachel be set aside by an act of Congress, where weeping for her children and would not be is the course of usurpation to end? The pres- comforted because they are not.”
(Matt. ii, 8.) ent assault upon capital is but the beginning. It will be but the stepping-stone to others, The majority of the Supreme Court of the larger and more sweeping, till our political United States, intrusted with the great responcontests will become a war of the poor against sibility of standing between the rights, equalities the rich; a war constantly growing in intensity and privileges of the Constitution and the and bitterness.
socialistic, vicious and pernicious acts of Con“If the court sanctions the power of dis- gress, have refused to boldly assert their posicrimination in taxation, and nullifies the unition and protect their county from the insidious formity mandate of the Constitution, as said evils of a nefarious statute. The issue in the one who has made all his life a study of our in- legal fight which has ended so unsatisfactorily, stitutions, it will mark the hour when the sure and unjustly, was not whether certain indidecadence of our present government will viduals should bear the burdens of taxation, commence.
but rather whether the stamp of approval of “ If the purely arbitrary limitation of $4,000 socialism should be placed on a statute of this in the present law can be sustained, none have country, whose Constitution recognizes no ing less than that amount of property being classes, but only the equality of its citizens. assessed or taxed for the support of the
There never should have entered into the
government, the limitation of future Congresses may
determinations of some members of the court be fixed at a much larger sum parties pos
the question as to whether the residents of their sessing that amount alone being found to bear sections should be relieved of their just part of the burdens of government; or the limitation
the expenses of government, but the adjudicamay be designated at such an amount as
tion of each should have been actuacted by the board of 'walking delegates' may deem neces
same spirit of loyalty of country which insary.
spired other members of the same court to “There is no safety in allowing the limita- declare, that the Income Tax Act of 1894 was tion to be adjusted except in strict compliance wholly against the clear intent, meaning and with the mandates of the Constitution, which phraseology of the Constitution. There was require its taxation to be uniform in operation with the right and duty of the Supreme Court
no reason why a learned jurist should quibble and, so far as practicable, in proportion to their property, equal upon all citizens. Unless
of the United States, by declaring, that the the rule of Constitution governs, a majority may
power of the tribunal of passing on the constifix the limitation at such rate as will not include tutionality of acts of Congress, should be disany of their own number."
creetly and carefully exercised, and it was a (Judge Stephen J. Fleld in his opinion on the unconstitutionality
hollow mockery for the court to hold that the of the Income Tax Act of 1894.)
federal government has power to lay "direct "You can look all through this awful busi- taxes, and duties, imposts and excises” accordness with a learned spirit; no passionate hatred ing to certain clear regulations, and then distort of this great fraud can cloud your mental vision the meaning of words and phrases to please or shake the even balance of your judgment. I their local interests. The very action of the
VOL. 51 - No. 15.