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sively." This is perhaps one of the most imThe Albany Law Journal.

portant trials that has ever taken place and

involves a most delicate construction of the ALBANY, JUNE 22, 1895.

law of assault. It is easily remembered that

this is the fourth time that Laidlaw has gone to Current Lopics.

court in this matter, to recover damages for

acting as an involuntary shield for Sage when (All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. the crank, Norcross, dropped the dynamite All letters relating to advertisements, subscriptions, or other

bomb at the feet of the millionaire in Decembusiness matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

ber, 1891. The first trial was before Judge

Andrews, who dismissed the cause because it Since last we commented upon current topics

was not shown that Laidlaw would not have in the legal world many events have transpired been hurt if he had not been interfered with by which are worthy of more than usual attention.

Sage. This holding was reversed by the Mayor Strong has appointed the new police General Term, and on the second trial by magistrates ; Elihu Root, Esq., has given a most Judge Pattison the plaintiff recovered a verdict brilliant opinion on the constitutionality of the question raised by Mr. Aldrich, State Superin. and other errors the verdict was set aside and

of $25,000. On account of the judge's charge tendent of Public Works, which seems to us to

on the third trial before the same judge there be beyond controverting; Governor Morton has signed chapter 1045 of the Laws of 1895, marked, a very delicate question as to the force

was a disagreement. It is, as has been rewhich is the last statute of the year; Charles A. Collin, Esq., ex-commissioner of statutory

which Sage used in placing Laidlaw between revision, has formed a partnership with ex

himself and the cause of the injury, to the detriLieutenant-Governor William F. Sheehan ; the

ment of Laidlaw; the statements of the parties Court of Appeals have affirmed Judge Landon's

seems to be the only evidence on this point, opinion in which he holds that a concurrent and they naturally are rather contradictory, beresolution is neither a law nor a statute, and ing given by interested parties. The principle that the board to award the contract for legis- involved has undoubtedly been carried to the lative printing, except the printing of the ses

extreme in the present case, and on appeal to sion laws and slips, must exclude all extra bills the appellate courts the progress of the cause not ordered by statute; Laidlaw has recovered and the principles laid down by the appellate $40,000 by a verdict of a jury against Russell courts will be watched with considerable inSage, and the Governor has appointed A. Judd terest. Northrup, Charles Z. Lincoln and William H.

The appointment by the governor of the Johnson commissioners to revise the statutes

commissioners for statutory revision to revise the and the Code of Civil Procedure.

Code of Civil Procedure and to report to the

next Legislature was made on Saturday, June In the Laidlaw-Sage case the Honorable 15. This has been a subject on which we have Joseph H. Choate again displays that brilliancy been silent, that is, as to the selection of the of argument, keenness of wit and cleverness in persons who are to accomplish what seems to examination which has placed him among the even more important reform than the leaders of the bar in the city of New York. changes made in the judiciary article by the How appropriate it was for Mr. Choate in sum- new Constitution.

It is apparent that no inming up to rise with that benign expression crease of judicial force will be able to cope which is never forgotten by those who have seen with a still greater proportionate volume of it, and read from the Bible the parable of Dives work made necessary principally by the comand Lazarus. Continuing, he said, “ Dives in plicated system of procedure and intricate the Bible is punished though he had nothing to rule of practice. It is unfortunate that much do with the sores of Lazarus. We prove in of the clamor about delay in reaching the this case that Dives caused the sores of this Court of Appeals in this State comes from Lazarus, that he did it deliberately and impul. I those who fail to see that the chief difficulty of

VOL. 51 – No. 25.

us an

cers.

tional Stock Subscriptions; Effect of Fraud on rectors to Strangers and Creditors of the CorporaStock Subscriptions; The Surrender of Shares and tion Outside of Statute; Statutory Liability of DiRelease of Shareholders; Payment of shares; As- rectors and Officers to Creditors; Contribution and sessments and Calls; Forfeiture of Shares for Non-Subrogation; Compensation of Directors and Offipayment of Assessments; Actions by the Corporation against Shareholders for assessments; Evidence These are the only three volumes which we have in such Actions; Defense to Actions for Assess- received, as we understand the remaining three are ments; Limitation of Actions against Stockholders; not yet complete, but will be published within a Powers of the Corporation in relation to its own

short time. The arrangement of the work into secShares; Increasing and Decreasing Capital Stock; tions, with the number of pages at the foot of each Dividends, Interest-Bearing, Preferred and Guaran- page, appears to us to be an admirable plan, which teed Stock; Transfers of Shares; Bona Fide Pur

will greatly increase the practical utility of the chasers of Shares; Pledges and Mortgages of book. It will be with great pleasure that we shall Shares; Others Dealing in Shares; Execution and review the remaining three volumes and give an attachment against Shares; Taxation of Shares and opinion of the work in its entirety. Published by Dividends.

the Bancroft-Whitney Co., San Francisco, Cal. The third volume commences with chapter 43

A MANUAL OF PUBLIC INTERNATIONAL LAW. BY and ends with chapter 85, and includes chapters on

Thomas ALFRED WALKER, M. A., LL. D. Nature and Extent of Liability of Stockholders to Creditors at Common Law; Liability in Equity on

This is a very interesting manual on a subject the Ground that Capital is a Trust Fund for Cred-which has received more than the usual attention itors; Liability before Organization Complete and and consideration from the public during the past Capital Paid in; Constitutional Provisions Creating year in view of the war between China and Japan, and and Abolishing Individual Liability; Construction other international disputes which have occurred. of Statutes Making Stockholders Personally Liable The author of this work is a fellow and lecturer at for the Corporate Debts; Constitutional Questions Peterhouse, Cambridge, and the work was origiArising under such Statutes; Extraterritorial Force nally from the English press. The first chapter deals of such Statutes; Statutes Creating a Joint and with the definitions of International Law, and is Several Liability as Partners; Statutes Creating a followed by chapters on International Law of NorSeveral Liability; For what Debts these Statutes mal Relations, International Law of Abnormal Remake Stockholders Liable; Liability for Interest, lations, and Neutrality. Each of these parts is Fees and Costs; Statutes making Stockholders Lia- subdivided into several chapters which makes it ble for Debts due for Labor, Provisions, etc.; To most complete. The index of cases is very large what class of Shareholders Liability Attaches; for a subject of this kind, with references to the Present and Past Members; Status and Liability of English and American reports. A very great adLegal and Equitable Owners of Shares; Divestiture vantage of the work is the marginal notes, while of Liability by Transferring Shares; Liability of the index of contents gives an additional value and Executors, Administrators, Heirs · and Legatees; makes the work of practical use to students of this Conditions Precedents to the right to Proceed subject and to lawyers. The work is written in an against Stockholders; Effect of Judgment against easy, interesting and pleasant style, and really has the Corporation; Remedies and Procedure; Parties

more of the qualities of a history than a legal textto Proceedings by Creditors against Stockholders; | book, Published by MacMillan, 66 Fifth avenue, Proceedings in Equity; Right of Action in Receiver, New York city. Price, $2.50. Assignee, etc.; Proceedings by Garnishment; Executions against Stockholders; Questions of Pro-AMERICAN RAILROAD AND CORPORATION REPORTS, cedure; Defenses to Actions against Stockholders

VOLUME 10. EDITED AND ANNOTATED BY JOHN by or on behalf of Creditors; Limitation of Actions

LEWIS, AUTHOR OF “A TREATISE ON EMINENT by or on behalf of Creditors; Set-off; Contribution

DOMAIN IN THE UNITED STATES." among stockholders; Priorities among Creditors; Directors; Right to Office; Directors and Officers This is the tenth volume of a series which will de facto; Quorum of Directors, and Number that hereafter be published two in a year, and which can Act; Delegation of their Power by Directors; contain in full the most important decisions of the Powers of Directors; Obligations of Directors and year pertaining to railroads and corporations and Fiduciaries; General View of the Liability of Di- kindred subjects. Careful discrimination is shown rectors; Liability of Directors for Negligence; in the choice of decisions reported and care and Remedies of the Corporation or its Representative preparation of the cases reported in the index. against its Unfaithful Directors; Liability of Di- | Published by E. B. Myers & Co., Chicago.

sively." This is perhaps one of the most imThe Albany Law Law Journal. portant trials that has ever taken place and

involves a most delicate construction of the ALBANY, JUNE 22, 1895.

law of assault. It is easily remembered that

this is the fourth time that Laidlaw has gone to Current Lopics.

court in this matter, to recover damages for

acting as an involuntary shield for Sage when (All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. the crank, Norcross, dropped the dynamite All letters relating to advertisements, subscriptions, or other

bomb at the feet of the millionaire in Decembusiness matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

ber, 1891. The first trial was before Judge

Andrews, who dismissed the cause because it Since last we commented upon current topics

was not shown that Laidlaw would not have in the legal world many events have transpired been hurt if he had not been interfered with by which are worthy of more than usual attention. Mayor Strong has appointed the new police General Term, and on the second trial by

Sage. This holding was reversed by the magistrates ; Elihu Root, Esq., has given a most Judge Pattison the plaintiff recovered a verdict brilliant opinion on the constitutionality of the question raised by Mr. Aldrich, State Superin- and other errors the verdict was set aside and

of $25,000. On account of the judge's charge tendent of Public Works, which seems to us to be beyond controverting; Governor Morton

on the third trial before the sanie judge there has signed chapter 1045 of the Laws of 1895,

was a disagreement. It is, as has been rewhich is the last statute of the year; Charles marked, a very delicate question as to the force A. Collin, Esq., ex-commissioner of statutory

which Sage used in placing Laidlaw between revision, has formed a partnership with ex

himself and the cause of the injury, to the detriLieutenant-Governor William F. Sheehan ; the ment of Laidlaw; the statements of the parties Court of Appeals have affirmed Judge Landon's seems to be the only evidence on this point, opinion in which he holds that a concurrent

and they naturally are rather contradictory, beresolution is neither a law nor a statute, and ing given by interested parties. The principle that the board to award the contract for legis- involved has undoubtedly been carried to the lative printing, except the printing of the ses-extreme in the present case, and on appeal to sion laws and slips, must exclude all extra bills the appellate courts the progress of the cause not ordered by statute; Laidlaw has recovered and the principles laid down by the appellate $40,000 by a verdict of a jury against Russell courts will be watched with considerable inSage, and the Governor has appointed A. Judd | terest. Northrup, Charles Z. Lincoln and William H.

The appointment by the governor of the Johnson commissioners to revise the statutes

commissioners for statutory revision to revise the and the Code of Civil Procedure.

Code of Civil Procedure and to report to the

next Legislature was made on Saturday, June In the Laidlaw-Sage case the Honorable 15. This has been a subject on which we have Joseph H. Choate again displays that brilliancy been silent, that is, as to the selection of the of argument, keenness of wit and cleverness in persons who are to accomplish what seems to examination which has placed him among the us an more important reform than the leaders of the bar in the city of New York. changes made in the judiciary article by the How appropriate it was for Mr. Choate in sum- new Constitution. It is apparent that no inming up to rise with that benign expression crease of judicial force will be able to cope which is never forgotten by those who have seen with a still greater proportionate volume of it, and read from the Bible the parable of Dives work made necessary principally by the comand Lazarus. Continuing, he said, “ Dives in plicated system of procedure and intricate the Bible is punished though he had nothing to rule of practice. It is unfortunate that much do with the sores of Lazarus. We prove in of the clamor about delay in reaching the this case that Dives caused the sores of this Court of Appeals in this State comes from Lazarus, that he did it deliberately and impul. I those who fail to see that the chief difficulty of

Vol. 51 - No. 25.

even

the court in disposing of this work is that code has never been properly bestowed by the there are many petty questions of practice Legislature and hence few of the amendments which are dragged up to be heard by the court have been of material and lasting benefit. It of last resort. It is only necessary to examine is well known that when a result must be carefully a volume of the Court of Appeals accomplished or an end attained, no matter reports to ascertain that a large amount of the how great or how small, that it is a common valuable time and attention of that court is occurrence to pass or to attempt to have given to the determination of questions which, passed an amendment to some section of the of themselves, are of little value to the parties code, and this to gain a law suit at the expense to the proceedings, and that the chief difficulty of the statute law of the State. These amendof the court is to properly discriminate be- mer.ts have in them at times the semblance of tween questions which should be dismissed and respectability and merit which gives them some those which should receive the consideration of support in the Legislature and some recognition the court.

It is amazing to open the annotated by the executive. But in a majority of cases Code of Civil Procedure and to observe the the result of enacting these amendments recogenormous volume of decisions which have been nizes a nefarious practice but is doing great made alone on rules of practice in this State. damage to the laws of the State. Some halt What then is the difficulty? The answer is not

must be called in the progress of such a state hard to give, but the manner in which to carry of affairs and no revised code, unless such a out the reform is a matter which we would not precaution is taken, will after any length of

time be of material benefit to the advancement suggest to the three learned counsel who are to perform this work. The Code, instead of lay-of the law of the State. If the revision shall ing down general rules which should govern all give a code short and concise and do away actions has not only a tendency but a fatal with out of date legal technicalities of practice fault of attempting to provide procedure for it will be received with favor, otherwise its any cause of action which may arise. It is failure will damn for many years, any

further besides clothed with many forms of principles attempt to conform our present monstrosity of a which have long ago lost their usefulness in the code to a reasonable work to govern legal failure of its complicated phraseology and procedure. methods, and it reeks with the unfortunate

Two of the most important opinions which taint of useless redundancy and verbosity. In have been handed down in some time in Engshort the code is just the opposite of what it land are given in the cases of Wharton et al. v. should be, namely, a short, concise work con- Masterman et al., and Chilton v. The Progress taining general rules applicable to all actions Printing and Publishing Company. The first and which would give greater and better final case affirms the determination laid down in the results with less legal proceedings to attain an case of Saunders v. Vautier, 4 Beav. 115; Cr. end. Let us take an example. In the case of & Ph. 240, and is reported in 72 L. T. Rep. mandamus it is absurd for the judge issuing 455. In the Wharton case it is held that where the peremptory writ first to grant an order and an absolute vested right is made payable at a then to cause the writ to issue in addition. certain future event, with a direction to accuThe order should most properly contain a mulate the income in the meantime and pay it paragraph ordering the defendant to perform with the principal, the court will not enforce the work, and the issuance of the writ is sur- the trust for the accumulation when a bequest plusage. Much, however, of the difficulty to a charitable institution is made. The facts which has arisen from the use of this code has are found in the opinion of the Lord Chancelcome from the annual tinkering which it re- lor, in which he says: ceives at the hands of the Legislature. If a The trust being 'to pay and divide the code, such as we suggest, should be enacted, residue unto the several charities hereinafter no amendment to it should be allowed except named according to the amounts set after their after the most careful and deliberate considera- respective names,' it seems to me impossible to tion. This attention to the amendments to the suppose that the testator intended to limit their rights to the specific sums mentioned. sion, and also such parts of the trust moneys, The only reasonable construction is, I think, stocks, funds and securities, and the accumulathat which has been put upon the clause. The tions thereof as shall consist of cash, upon other questions raised by the next of kin, who trust to pay and divide them' (as has been deare the present appellants, are not so simple. cided) amongst the charities named. Having The testator directed the surplus income of his regard to the language used. I do not think it residuary estate, after satisfying the annuities is possible to hold that the annuitants have any which he provided for, to be accumulated, and claim to be satisfied out of the accumulations after the death of the surviving annuitant he of surplus income. But for the provision for bequeathed the capital and the accumulations abatement it might have been contended (and upon the trust, the terms of which I have probably successfully contended) that such a quoted. Some of the annuitants are still living right existed, but it seems to me to be expressly It is contended for the appellants that they, as excluded by the abatement clause. It is true next of kin, are entitled to all the accumula- that there is no provision for the investment of tions which have accrued subsequently to the the income derived from the accumulation of period for which, under the provisions of the surplus income, unless it be deduced from Thellusson's Act, accumulation could lawfully the use of the word 'accumulation ’in the be directed. It has first to be determined clause which precedes the ultimate trust; but whether, upon the true construction of the will, whether this be so or not, I think that the inthe surplus income accumulated and the inter- come arising from the investment of surplus est accruing from these accumulations when in- income must, in the absence of any direction vested were charged with the payment of the to the contrary, follow the destination of the annuities. This depends, of course, upon the investments from which it results. For these intention of the testator, to be derived from reasons it appears to me that the charities have the language used in his will. He bequeaths a vested interest in the surplus income, and the to trustees all the residue of his personal estate, accretions resulting from the investment of that which he thereafter calls the said trust moneys, surplus income. The testator, however, undoubt. stocks, funds and securities, and directs them, edly intended to postpone the enjoyment of his 'from and out of the annual income of the bounty by these beneficiaries until the death of said trust moneys, stocks, funds and securities,” the last annuitant. The courts below have, notto pay the annuities which he specifies, subject withstanding this, determined that the benefito a proviso in the following terms: "Provided ciaries are entitled to the immediate enjoyment always that in case the annual income of the of all that is not made by the will subject said trust moneys, stocks, funds and securities to the payment of the annuities. This is, shall not be sufficient for the payment of the to my mind, the only point of any difficulty. whole amount of the said annuities, then it is The courts proceeded on the doctrine acted my will and desire, and I direct my said trus- upon

in Saunders v. Vautier, Cr. & Ph. 240, tees or trustee, when and as often as the same which has been since often recognized. Wood, shall happen, to apportion the deficiency be. V. C., in Gosling v. Gosling. John. 265, extween and amongst the said annuitants accord. pounded the doctrine thus: “The principle of ing to the amount of their respective annuities this court has always been to recognize the and so as that the same shall rateably abate right of all persons who attain the age of accordingly.' Then follows a further trust: | twenty-one to enter upon the absolute use and 'In every year after my decease to invest the enjoyment of the property given to them by a surplus income, if any, of the said trust moneys, will, notwithstanding any directions by the tesstocks, funds and securities, and from and tator to the effect that they are not to enjoy it after the decease of the survivor of the annuit- until a later age, unless during the interval the ants to convert into money all such parts of property is given for the benefit of another. If the said trust moneys, stocks, funds and securi- the property is once theirs. it is useless for the ties, and the accumulations thereof respectively testator to attempt to impose any fetter upon as shall not consist of cash, and to stand pos- their enjoyment of it in full so soon as they sessed of the money to arise from the conver- I attain twenty-one, and upon that principle, un

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