Imágenes de páginas
PDF
EPUB

law, and a thorough mastery of statutes and deci- | procedure which makes law a blessing and not a scourge. He accomplished much in this direction, but much yet remains to be done, and if further needed reform in legal procedure is to come, it will be found along the lines laid down by this great master. "Law must grow with civilization or progress will cease."

sions of England and America; a Code of Criminal Procedure and a Penal Code, demanding a close acquaintance with the common law and statutory definitions of crimes and misdemeanors, and their appropriate punishments: a Political Code, requiring a close study of the details of town, county, city and State government, and a Code of Evidence, necessitating careful research to ascertain the rules adopted by the law courts and those enforced in equity jurisdictions.

In addition to all this he invented, perfected and put in operation a system of remedial justice which has superseded the method honored by centuries of user, and which, by its simplicity and adaptability to the needs of the bar, has won the admiration of lawyers, advocates and jurists throughout the civil

ized world.

The codification of the civil law in the reign of Justinian was the fruit of the united labor of a

corps of the ablest lawyers of the Roman empire. The Codes of the first empire were the result of the combined efforts of a large number of the foremost advocates at the bar of France, presided over by the all embracing genius of Napoleon.

Save as to clerical assistance, the work upon the seven compilations mentioned was done by Mr. Field substantially alone and unaided. Of the quality of so much of this work of codification as has not been enacted, it is too early to speak without embarrassment. It is more than doubtful

whether all that he hoped to accomplish is practicable or desirable, but so far as his avowed object "to reduce the bulk of the law, clear out the refuse,

and condense and arrange the residuum so that the people and the lawyer and the judge may know what they have to practice and obey," is possible of attainment, it has the hearty sympathy and demands the unqualified admiration and support of every lawyer.

No higher compliment could be paid than that to Mr. Field, in London in 1867, when invited to meet the leading English law reformers and explain the features of the law reforms which he had inaugurated in America. There were present the most eminent legal authorities of the kingdom, including five men who had attained to the dignity of the lord chancellorship. The conference lasted till late into the night, and when they arose Lord Chancellor Hatherly took him by the hand and said, "Mr. Field, the State of New York ought to build you a monument of gold."

In the language of another, somewhat paraphrased, it was David Dudley Field who laid the foundation of peace, happiness and tranquility by formulating and establishing a system of remedial

It is proper that this association, of which he was for so many years a member, and in which for so long a period he presided over one of the most important committees, should recall the fact that for almost half a century Mr. Field stood among the leaders of the bar of the State and nation, and eminently fitting that the association should, in common with the members of the legal profession throughout this country, Great Britain and the continent, recognize that his place as a law reformer is foremost among those of any age or nation.

But there is a more effective and practical manner in which his memory may be honored, his influence perpetuated, and at the same time the client, the bench and the bar very materially benefited.

The Code of Civil Procedure was, all things considered, his best and most useful work. It is at once his most enduring title to fame and his richest legacy to his brethren of the law. Its revision and simplification, so far as to conform its general features to the form in which he drafted it and which the experience of more than a quarter of a century

approved, is a necessity to the litigant and the lawyer. In this form it would be a monument to the acumen, learning, industry and genius of the original draftsman, a model of legal procedure to be closely followed by other States and countries, and most important of all, again become what it was designed to be by its author, "a convenient, simple and inexpensive method for the administration of civil justice."

RAILROAD IN RECEIVER'S HANDS-REDUCTION OF WAGES.-Where the wages paid to faithful and competent employes of a railroad in the hands of a receiver are not shown to be excessive for the labor performed, and are not higher than the wages paid to like employes on other lines of similar character, operated under like conditions through the same country, the court will not, against the protest of its said employes, reduce their wages because of inability of the railroad to pay dividends or interest, even though present opportunity exists for securing other employes for less wages. (United States Trust Co. of New York v. Omaha & St. L. Ry. Co. [U. S. C. C., Iowa], 63 Fed. Rep. 737.)

NOTABLE AND CURIOUS CASES IN THE depreciated currency in which they were paid durCOURT OF CLAIMS.

VOLUM

[ocr errors]

OLUMES could be written about the claims against the government, which have been brought before the Court of Claims, the Court of Private Land Claims, or before Congress itself.

Some of the petitions are evidently the work of cranks, others of ingenious rascals, while yet others are legitimate. It sometimes seems as if the last class were the least likely to gain satisfaction.

Some of the just claims, I am pleased to say, belong to estates where heirs have not spent all their strength and substance in the prosecution, but who have been able to earn a competence for themselves. An instance of this is the somewhat peculiar claim of the Childs family in Philadelphia.

It was in 1777 that the Continental Congress sent two spies to Montreal to report upon the preparations then being made by the British government to subjugate her rebellious colonies. The men were appointed by General Washington, and a Mr. George W. Childs was one of them. The men did their work to the satisfaction of the general, who gave them certificates to the effect that their wages

were well earned. Whether his comrade fared better I do not know, but the compensation promised Mr. Childs was not paid by the Continental Congress, and his heirs petitioned the Fifty-second Congress for two million dollars, which they affirm to be the principal and interest due them.

Another interesting claim is that of Richard W. Meade, father of the hero of Gettysburg. It seems that at the time when the United States purchased Florida, she agreed to assume all the claims which American citizens had against Spain. Among these

claims was one for $373,879 which had been allowed by Spain to Mr. Meade, and which under the terms of the treaty should have been promptly settled. Mr. Meade, it seems, was unable to obtain from the Spanish government the proofs upon which his accounts had been settled with Spain, and without these the United States courts refused to act. The case had been before Congress nearly a score of times, and has been reported favorably nearly every time, but it was never acted upon by both Houses of the same Congress. The original claimant died years ago, and if ever the heirs are able to get their claim through, they will be the richer by several millions of dollars.

ing the war. This depreciation ranged from twenty-five to two and a half cents on a dollar, and it was estimated that it would take about $500,000,000 to satisfy the terms of the bill.

At present there is no limit to the number of times a claim may be presented to Congress. Every political change of administration is sure to bring back thousands of applicants whose petitions have been rejected by the outgoing power.

I have said that some of these claimants are cranks. A citizen of the middle West has spent at least three times as much money in postage as he claims the government owes him, in writing letters to the treasury, to United States officials, and even to the Chinese and Korean legations. Nearly two million claims have been filed in the treasury department alone, and the way in which many of them are addressed is odd enough. It must have taken the "blind reader" of the post office department to make "second auditor" out of "second oratorio," or out of "sekun oder of the Tresur."

Saddest of all are the just claims which will probdied in poverty. ably never be satisfied, and whose inheritors have

Major Joseph Wheaton is recorded as a gallant soldier in the Revolution who served throughout the war. During 1780-1783 Congress passed an act guaranteeing half pay for life to every officer

who stayed in the service to the end of the fight for liberty. Major Wheaton never received a dollar of the money promised. Moreover, during the war of 1812, this gallant officer used thirty thousand dollars of his own money with which to purchase army supplies, at a time when the army must have perished without this aid. He was then acting as assistant quartermaster-general. This money, likewise, was never refunded to him, although Congress doubtless intended that it should be. Some time after the major's death a bill for the relief of his daughter finally succeeded in passing both Houses during the same session, but by a fatal error reference was made, not to the treasury, but to the interior department, for payment, and I believe the daughter died in poverty, although the undoubted heir to plenty.

There are said to be more than fifteen thousand claims, acknowledged to be perfectly just, dating from revolutionary times to the last war, which

cannot get a satisfactory settlement from Congress.

One of the oldest is that of James Bell, a Canadian, who spent a fortune in building and fitting out three vessels for the Yankees during the Revo

One of the most curious claims ever put into a congressional bill was originally presented by Mr. Weaver, who is now better known as a recent presi-lution. dential candidate on the People's party ticket. It was afterward reintroduced by Mr. Smith of Illinois. The bill proposed to pay to Federal soldiers the difference in value between the gold dollar and the

He was afterward arrested for treason, his unspent property confiscated, and his life spared only through the clemency of the English king, who, it is said, was the man's cousin. Bell was released on parole, and at the close of the war re

turned to this country. Pointing to Washington's lieve, that he has paid good money. At the time

proclamation, that whoever assisted us in Our struggle for freedom should be rewarded if we were successful, he asked for aid. He died without it and very poor. A very small portion of the claim has been paid to some of his descendants, but the bulk of it is still an acknowledged debt.

Over in Georgetown there lives, or did a year or two ago, an old lady whose husband was a soldier in the Northern army. During the war the Federal troops used her farm as a camping-ground, and her live stock and other movable property as their own. The damage is put at $20.000, and the justness of her claim is undisputed, but she will probably never get her money.

Now and again there comes a claim which the government has tried to satisfy, but which the claimant persists in prosecuting to the last cent. One of these, apparently, is the famous Reid claim, which is said to have furnished the plot for Mr. Crane's play, "The Senator."

In September, 1814, British buccaneers destroyed the brig General Armstrong in the neutral port of Fayal. The owners tried to recover damages, but their efforts had been fruitless up to 1835, when they all engaged Samuel C. Reid of New York to prosecute their claims. The agreement, signed by the fifteen owners, consigned to Reid their rights in the claim, with the agreement that he was to bear all the expenses of the prosecution and retain half the money he might recover. It was not until 1857 that England and the United States submitted the loss of this vessel to the arbitration of Louis Napoleon, and it was not until 1882 that Congress directed the secretary of state to adjust the claims of the captain, owners, officers, and crew of the brig. Long before this, Mr. Reid had assigned his claim to his son, Samuel C. Reid, Jr. The Court of Claims fixed the value of the vessel at $70,739, and put the owner's share at $43,000. For want of evidence to adjudicate the relative interests of the heirs of the fifteen owners, Secretary Frelinghuysen decided that their estates should share alike. Mr. Reid got his half of the whole at once,-$21,500. He also got something for his services from the share of the officers and crew, so that one would think he might

have been satisfied. The owners' shares were not all paid out, however, as some of them had died without heirs. This part of the award, of course, reverted to the United States; and it is for all, or at least the major part, of this that Mr. Reid continues his suit.

The McGarrahan claim is another interesting case, but one which is so perennially before the public that it seems useless to give more than a brief outline of what the claimant really wants. His claim is for title to land for which nobody disputes, I be

of the purchase, however, the title was not good. Since then it has become vested in the United States, and the present question is, shall the man who actually bought and paid for the property in good faith receive the final title, or shall it go to a mining company who are simply squatters?

To show how investigators may be taken in, I will give a brief résumé of the Weil and La Abra bills, as they are called. The history of these cases runs back to 1868, when by a treaty with Mexico the United States secured something like four million dollars' worth of awards. The La Abra SilverMining Company was awarded $683,041 for alleged damages arising from the closing of a silver mine. In the Weil case the award amounted to $487,819, and was for cotton and mules said to have been seized by Mexican troops. When the United States had paid to each claimant about one-third of his award, suspicions of fraud were aroused, and further payment was suspended. This was in 1877. After a long fight in Congress, early in 1892, the matter was finally referred to the Court of Claims. If the court finds that the awards were procured by fraud and perjury, the unpaid balance will be returned to Mexico; otherwise, payment on the claims will be resumed. The suspicions are founded in the mine case on what seems to be conclusive evidence, that it had never been seized at all, but had been voluntarily abandoned as valueless, and that the claim had been a fabrication of the former

superintendent of the mine, inspired by the appointment of the commission to consider claims arising The ex-superintendent, I believe, died before any payment had been made on the award.

out of the Mexican war.

In the La Abra case, then, there had once been a mine, though a valueless one. The Weil claim, however, had even less foundation in fact, if the latest evidence proves to be correct. The claim was based on the allegation that Weil lived in New Orleans, was engaged in running cotton through Mexico during the war, and had lost a heavy mule train and seven hundred bales of cotton through seizure by the Mexicans. Cotton was then worth fifty cents a pound. The proofs at the time seemed so complete that the award was promptly made, and question would probably never have been raised, had it not been for the mixed conditions of Weil's business affairs, which caused a quarrel over the disposition of the proceeds. It now looks as if Weil had never owned a mule or a pound of cotton in his life.

The Court of Private Land Claims was organized, I believe, in 1891, for the purpose of adjudicating claims to private ownership in land before it was ceded to the United States. There have been filed

[merged small][merged small][merged small][ocr errors][merged small]

hereafter be called upon to construe the section. In the decision of Judge Parker in regard to the railroad commissioners we think that the different reasoning was proper, as the expense of the commission, under the provisions of the law creating it, was to be borne by the railroads of the State, and the statute existing at the time of the passage of the amendment to the Constitution in regard to passes was one which the members of the convention were deemed to be cognizable of, and which did not, in effect, make exception to the anti-pass provisions of the Constitution. Judge Herrick's opinion in regard to notaries public using passes is as follows:

"This is an action commenced by the attorney-general of the State, to forfeit the office. of the defendant as notary public. The plaintiff alleges that in January, 1894, the defendant was appointed a notary public in and for the

tion over railroads under section of article 5 13 of the Constitution. It is a matter of great interest to carefully examine the well-written opinion in this case, and to realize that the spirit of the Constitution is to be upheld by such a judicial interpretation. The history of this amendment is rather brief, but most interesting. Dur-county of Albany, by the governor of the State, and was confirmed by the Senate. That thereing the last part of the session of the convention an amendment had been proposed which on its after he took his oath of office as notary public and filed the same in the office of the county face prohibited certain public officers from acclerk of Albany county, and since then has cepting passes from the railroads of this State, been acting as notary public in and for the when Hon. De Lancey Nicoll, of New York, formerly district attorney of that county, called county of Albany. That at the time of his apthe attention of the members of the convention pointment as notary public he was possessed of a free pass, which entitled him to free transto the fact that the proposed amendment which portation over the lines of the D. & H. C. R. was then before them could easily be nullified, Co., and that on the 2nd day of January, 1895, as it was improperly drawn, and was not sweep- the defendant, while traveling over the tracks ing enough in its terms to cover all officers in of the D. & H. C. R. Co., a railway corporathe employ of the State. Mr. Nicoll presented tion organized under the laws of the State of the existing provision, and said that he be- New York, from the city of Albany to the city lieved that it was one which could not be of Troy, in this State, made use of such free easily made a subterfuge, but that he was pass and received free transportation from such willing to accept any amendment which might railroad company, which the complaint asserts strengthen the language used in framing the to have been in violation of section 5 of article. section. This amendment was passed by the 13 of the Constitution of the State of New York, convention, and subsequently ratified by the and asks the judgment of the court that it adpeople. From the circumstances of its passage judge and decree that the defendant has forand from the sweeping language contained in feited his office of notary public, and that he its provisions, we cannot see how it is possible be evicted therefrom. The defendant demurred for any public officer to accept free transporta- to the plaintiff's complaint upon the ground tion over the road of any company in this State, that it does not state facts sufficient to conor to take any of the passes, which were for- stitute a cause of action.' The section of the merly considered as emoluments due to an Constitution which it is alleged has been viooffice-holder. The principle of the amendment lated reads as follows: 'No public officer, or is good, its language is strong, and the decision person elected or appointed to a public office of Mr. Justice Herrick in interpretation of its under the laws of this State, shall directly ask, provisions is one which, we trust, will be fol- demand, accept, receive or consent to receive lowed by the opinions of any judge who may for his own use and benefit, or for the use and VOL. 51 No. 4.

seal, oral authority is not generally enough. The principle that the intending signer of an instrument may authorize another person to hold the pen and make the signature, plainly requires presence; and upon the above view could not be relied on to authorize one by telephone to sign the name of an absent speaker to a deed. — University Law Review.

[ocr errors]

Abstracts of Recent Decisions. ADVERSE POSSESSION-COLOR OF TITLE.-Color of title is that which in appearance is title, but which in realty is no title. While the phrase color of title," in the Limitation Act of 1874, means a paper title, it does not mean a perfect paper title. The statute, when its conditions are complied with, is intended as a protection to a person holding in good faith under a mere colorable title. (De Foresta v. Gast [Colo.], 38 Pac. Rep. 244.)

ATTORNEY AND CLIENT--EMPLOYMENT TERMINATION OF CONTRACT.-Where defendant employed a law firm to conduct a certain case to a final determination, when the fee was to be paid, the death of one member of such firm during the pendency of such case, dissolved the partnership, and terminated such employment, but did not mature the firm's claim for compensation for services rendered before said death occurred. (Landa v. Shook [Tex.], 28 S. W. Rep. 135.)

CANCELLATION OF DEED.-A father promised his son that if the latter would live and work for him during the latter's life-time, he would devise to him certain lands, and about eighteen months before he died made his will accordingly. Afterward, and nine days before he died, being very feeble in mind and body, and laboring under a delusion as to his son's conduct, he made a voluntary conveyance of a part of the lands to two or his grandchildren, who were in personal attendance upon him. The son fully performed the conditions of his father's promise. Held, the conveyance must be set aside as against the son. (Kastell v. Hillman [N. J.], 30 Atl. Rep. 535.)

CARRIERS OF PASSENGERS - ALIGHTING FROM TRAIN CONTRIBUTORY NEGLIGENCE.-Whether a passenger who knowingly and intentionally alights from a slowly-moving train is guilty of contributory negligence is a question of fact, depending upon the attending circumstances. (Chicago & A. R. Co. v. Byrum [Ill.], 38 N. E. Rep. 578.)

CONTRACT-ILLEGAL-RECOVERY OF MONEY PAID. -When a plaintiff is in pari delicto with the defendant, money paid by the former to the latter cannot be recovered back. This rule applies where the act done is in itself immoral, or a violation of the general laws of public policy, but it does not bar a

recovery where law violated is intended for the protection of the citizen against oppression, extortion or deceit. Money paid on a usurious contract in excess of the principal and legal interest may be recovered back. (Taylor v. Hintze [N. J.], 30 Atl. Rep. 551.)

CORPORATIONS SUBSCRIPTION FOR RAILWAY STOCK.-One who subscribes to the capital stock of a railway company chartered under the general law for incorporating such companies must take notice, notwithstanding any representations made to the contrary, that the railroad company has no power to issue or deliver to its stockholders any stock in an existing or future construction company. It follows that oral representations made touching the construction company, its resources, or the value of its stock are not pertinent as a defense to an action by the railroad company against a subscriber to enforce payment of his subscription. (Russell v. Alabama Midland Ry. Co. [Ga.], 20 S. E. Rep. 350.)

[blocks in formation]

INJUNCTION SALE UNDER MORTGAGE.-Where one of several co-devisees of land buys a mortgage which is a lien on the land, he will be enjoined from selling the land thereunder until it is determined what amount of the mortgage the respective interests of himself and his co-devisees are subject to, so that the latter may satisfy the mortgage by paying their proportion of the mortgage debt. (Fisher v. Hartman [Penn.], 30 Atl. Rep. 513.]

LIFE INSURANCE-NON-PAYMENT OF PREMIUM.— The giving of a note for a premium to an agent, who had no power to postpone payment of the premium or to substitute any thing for it, which was never accepted by the company or brought to its knowledge, will not keep alive a policy which provides that the company assumes no risk whatever for that portion of the year for which the premium shall have been actually paid in cash in advance. (Smith v. New England Mut. Life Ins. Co. [U. S. C. Ct. of App.], 63 Fed. Rep. 769.)

WILL-DEVISE TO TRUSTEE-LEGAL TITLE.-A devise to the testator's children for life, with contingent remainder to their children, a trustee being appointed "to hold the legal title during the estate for life, and for the preservation of the remainder," does not clothe the trustee with legal title to the remainder, but only with such title to the particular estate. The remainder created is a legal, not an equitable, estate. Baxter v. Wolff [Ga.], 20 S. E. Rep. 326.)

« AnteriorContinuar »