The Albany Law Journal. ALBANY, JUNE 22, 1895. Current Topics. [All communications intended for the Editor should be ad dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] Since last we commented upon current topics in the legal world many events have transpired which are worthy of more than usual attention. Mayor Strong has appointed the new police magistrates; Elihu Root, Esq., has given a most brilliant opinion on the constitutionality of the question raised by Mr. Aldrich, State Superintendent of Public Works, which seems to us to be beyond controverting; Governor Morton has signed chapter 1045 of the Laws of 1895, which is the last statute of the year; Charles A. Collin, Esq., ex-commissioner of statutory revision, has formed a partnership with exLieutenant-Governor William F. Sheehan; the Court of Appeals have affirmed Judge Landon's opinion in which he holds that a concurrent resolution is neither a law nor a statute, and that the board to award the contract for legislative printing, except the printing of the session laws and slips, must exclude all extra bills not ordered by statute; Laidlaw has recovered $40,000 by a verdict of a jury against Russell Sage, and the Governor has appointed A. Judd Northrup, Charles Z. Lincoln and William H. Johnson commissioners to revise the statutes and the Code of Civil Procedure. sively." This is perhaps one of the most im- The appointment by the governor of the commissioners for statutory revision to revise the 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 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 tional Stock Subscriptions; Effect of Fraud on Stock Subscriptions; The Surrender of Shares and Release of Shareholders; Payment of shares; Assessments and Calls; Forfeiture of Shares for Nonpayment of Assessments; Actions by the Corporation against Shareholders for assessments; Evidence in such Actions; Defense to Actions for Assessments; Limitation of Actions against Stockholders; Powers of the Corporation in relation to its own Shares; Increasing and Decreasing Capital Stock; Dividends, Interest-Bearing, Preferred and Guaranteed Stock; Transfers of Shares; Bona Fide Purchasers of Shares; Pledges and Mortgages of Shares; Others Dealing in Shares; Execution and attachment against Shares; Taxation of Shares and Dividends. The third volume commences with chapter 43 and ends with chapter 85, and includes chapters on Nature and Extent of Liability of Stockholders to Creditors at Common Law; Liability in Equity on the Ground that Capital is a Trust Fund for Creditors; Liability before Organization Complete and Capital Paid in; Constitutional Provisions Creating and Abolishing Individual Liability; Construction of Statutes Making Stockholders Personally Liable for the Corporate Debts; Constitutional Questions Arising under such Statutes; Extraterritorial Force of such Statutes; Statutes Creating a Joint and Several Liability as Partners; Statutes Creating a Several Liability; For what Debts these Statutes make Stockholders Liable; Liability for Interest, Fees and Costs; Statutes making Stockholders Liable for Debts due for Labor, Provisions, etc.; To what class of Shareholders Liability Attaches; Present and Past Members; Status and Liability of Legal and Equitable Owners of Shares; Divestiture of Liability by Transferring Shares; Liability of Executors, Administrators, Heirs and Legatees; Conditions Precedents to the right to Proceed against Stockholders; Effect of Judgment against the Corporation; Remedies and Procedure; Parties to Proceedings by Creditors against Stockholders; Proceedings in Equity; Right of Action in Receiver, Assignee, etc.; Proceedings by Garnishment; Executions against Stockholders; Questions of Procedure; Defenses to Actions against Stockholders by or on behalf of Creditors; Limitation of Actions by or on behalf of Creditors; Set-off; Contribution among stockholders; Priorities among Creditors; Directors; Right to Office; Directors and Officers de facto; Quorum of Directors, and Number that can Act; Delegation of their Power by Directors; Powers of Directors; Obligations of Directors and Fiduciaries; General View of the Liability of Directors; Liability of Directors for Negligence; Remedies of the Corporation or its Representative against its Unfaithful Directors; Liability of Di rectors to Strangers and Creditors of the Corporation Outside of Statute; Statutory Liability of Directors and Officers to Creditors; Contribution and Subrogation; Compensation of Directors and Officers. These are the only three volumes which we have received, as we understand the remaining three are not yet complete, but will be published within a short time. The arrangement of the work into sections, with the number of pages at the foot of each page, appears to us to be an admirable plan, which will greatly increase the practical utility of the book. It will be with great pleasure that we shall review the remaining three volumes and give an opinion of the work in its entirety. Published by the Bancroft-Whitney Co., San Francisco, Cal. A MANUAL OF PUBLIC INTERNATIONAL LAW. BY THOMAS ALFRED WALKER, M. A., LL. D. This is a very interesting manual on a subject which has received more than the usual attention and consideration from the public during the past year in view of the war between China and Japan, and other international disputes which have occurred. The author of this work is a fellow and lecturer at Peterhouse, Cambridge, and the work was originally from the English press. The first chapter deals with the definitions of International Law, and is followed by chapters on International Law of Normal Relations, International Law of Abnormal Relations, and Neutrality. Each of these parts is subdivided into several chapters which makes it most complete. The index of cases is very large for a subject of this kind, with references to the English and American reports. A very great advantage of the work is the marginal notes, while the index of contents gives an additional value and makes the work of practical use to students of this subject and to lawyers. The work is written in an easy, interesting and pleasant style, and really has more of the qualities of a history than a legal textbook. Published by MacMillan, 66 Fifth avenue, New York city. Price, $2.50. AMERICAN RAILROAD AND CORPORATION REPORTS, VOLUME 10. EDITED AND ANNOTATED BY JOHN LEWIS, AUTHOR OF "A TREATISE ON EMINENT DOMAIN IN THE UNITED STATES." This is the tenth volume of a series which will hereafter be published two in a year, and which contain in full the most important decisions of the year pertaining to railroads and corporations and kindred subjects. Careful discrimination is shown in the choice of decisions reported and care and preparation of the cases reported in the index. Published by E. B. Myers & Co., Chicago. The Albany Law Journal. ALBANY, JUNE 22, 1895. Current Topics. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] Since last we commented upon current topics in the legal world many events have transpired which are worthy of more than usual attention. Mayor Strong has appointed the new police magistrates; Elihu Root, Esq., has given a most brilliant opinion on the constitutionality of the question raised by Mr. Aldrich, State Superintendent of Public Works, which seems to us to be beyond controverting; Governor Morton has signed chapter 1045 of the Laws of 1895, which is the last statute of the year; Charles A. Collin, Esq., ex-commissioner of statutory revision, has formed a partnership with exLieutenant-Governor William F. Sheehan; the Court of Appeals have affirmed Judge Landon's opinion in which he holds that a concurrent resolution is neither a law nor a statute, and that the board to award the contract for legislative printing, except the printing of the session laws and slips, must exclude all extra bills not ordered by statute; Laidlaw has recovered $40,000 by a verdict of a jury against Russell Sage, and the Governor has appointed A. Judd Northrup, Charles Z. Lincoln and William H. Johnson commissioners to revise the statutes and the Code of Civil Procedure. sively." This is perhaps one of the most important trials that has ever taken place and involves a most delicate construction of the law of assault. It is easily remembered that this is the fourth time that Laidlaw has gone to court in this matter, to recover damages for acting as an involuntary shield for Sage when the crank, Norcross, dropped the dynamite bomb at the feet of the millionaire in December, 1891. The first trial was before Judge Andrews, who dismissed the cause because it was not shown that Laidlaw would not have been hurt if he had not been interfered with by Sage. This holding was reversed by the General Term, and on the second trial by Judge Pattison the plaintiff recovered a verdict of $25,000. On account of the judge's charge and other errors the verdict was set aside and on the third trial before the same judge there marked, a very delicate question as to the force was a disagreement. It is, as has been remarked, a very delicate question as to the force himself and the cause of the injury, to the detriwhich Sage used in placing Laidlaw between ment of Laidlaw; the statements of the parties seems to be the only evidence on this point, and they naturally are rather contradictory, being given by interested parties. The principle involved has undoubtedly been carried to the extreme in the present case, and on appeal to the appellate courts the progress of the cause and the principles laid down by the appellate courts will be watched with considerable interest. The appointment by the governor of the commissioners for statutory revision to revise the 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 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. the court in disposing of this work is that there are many petty questions of practice which are dragged up to be heard by the court of last resort. It is only necessary to examine carefully a volume of the Court of Appeals reports to ascertain that a large amount of the valuable time and attention of that court is given to the determination of questions which, of themselves, are of little value to the parties to the proceedings, and that the chief difficulty of the court is to properly discriminate between questions which should be dismissed and those which should receive the consideration of the court. It is amazing to open the annotated Code of Civil Procedure and to observe the enormous volume of decisions which have been made alone on rules of practice in this State. What then is the difficulty? The answer is not hard to give, but the manner in which to carry out the reform is a matter which we would not suggest to the three learned counsel who are to perform this work. The Code, instead of laying down general rules which should govern all actions has not only a tendency but a fatal fault of attempting to provide procedure for any cause of action which may arise. It is besides clothed with many forms of principles which have long ago lost their usefulness in the failure of its complicated phraseology and methods, and it reeks with the unfortunate taint of useless redundancy and verbosity. In short the code is just the opposite of what it should be, namely, a short, concise work containing general rules applicable to all actions and which would give greater and better final results with less legal proceedings to attain an end. Let us take an example. In the case of mandamus it is absurd for the judge issuing the peremptory writ first to grant an order and then to cause the writ to issue in addition. The order should most properly contain a paragraph ordering the defendant to perform the work, and the issuance of the writ is surplusage. Much, however, of the difficulty which has arisen from the use of this code has come from the annual tinkering which it receives at the hands of the Legislature. If a code, such as we suggest, should be enacted, no amendment to it should be allowed except after the most careful and deliberate consideration. This attention to the amendments to the code has never been properly bestowed by the Legislature and hence few of the amendments have been of material and lasting benefit. It is well known that when a result must be accomplished or an end attained, no matter how great or how small, that it is a common occurrence to pass or to attempt to have passed an amendment to some section of the code, and this to gain a law suit at the expense of the statute law of the State. These amendmer.ts have in them at times the semblance of respectability and merit which gives them some support in the Legislature and some recognition by the executive. But in a majority of cases the result of enacting these amendments recognizes a nefarious practice but is doing great Some halt damage to the laws of the State. must be called in the progress of such a state of affairs and no revised code, unless such a precaution is taken, will after any length of time be of material benefit to the advancement of the law of the State. If the revision shall give a code short and concise and do away with out of date legal technicalities of practice it will be received with favor, otherwise its failure will damn for many years, any further attempt to conform our present monstrosity of a code to a reasonable work to govern legal procedure. Two of the most important opinions which have been handed down in some time in England are given in the cases of Wharton et al. v. Masterman et al., and Chilton v. The Progress Printing and Publishing Company. The first case affirms the determination laid down in the case of Saunders v. Vautier, 4 Beav. 115; Cr. & Ph. 240, and is reported in 72 L. T. Rep. 455. In the Wharton case it is held that where an absolute vested right is made payable at a certain future event, with a direction to accumulate the income in the meantime and pay it with the principal, the court will not enforce the trust for the accumulation when a bequest to a charitable institution is made. The facts are found in the opinion of the Lord Chancellor, in which he says: "The trust being to pay and divide the residue unto the several charities hereinafter named according to the amounts set after their respective names,' it seems to me impossible to 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, undoubtstocks, 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- attain twenty-one, and upon that principle, un |