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law, and a thorough mastery of statutes and deci- procedure which makes law a blessing and not a sions of England and America; a Code of Criminal scourge. He accomplished much in this direction, Procedure and a Penal Code, demanding a close but much yet remains to be done, and if further acquaintance with the common law and statutory needed reform in legal procedure is to come, it will definitions of crimes and misdemeanors, and their be found along the lines laid down by this great appropriate punishments: a Political Code, requir-master. “Law must grow with civilization or proing a close study of the details of town, county. gress will cease.” city and State government, and a Code of Evidence, It is proper that this association, of which he was necessitating careful research to ascertain the rules for so many years a member, and in which for so adopted by the law courts and those enforced in long a period he presided over one of the most imequity jurisdictions.

portant committees, should recall the fact that for In addition to all this he invented, perfected and almost half a century Mr. Field stood among the put in operation a system of remedial justice which leaders of the bar of the State and nation, and emihas superseded the method honored by centuries of nently fitting that the association should, in comuser, and which, by its simplicity and adaptability mon with the members of the legal profession to the needs of the bar, has won the admiration of throughout this country, Great Britain and the lawyers, advocates and jurists throughout the civil continent, recognize that his place as a law reized world.

former is foremost among those of any age or The codification of the civil law in the reign of nation. Justinian was the fruit of the united labor of a

But there is a more effective and practical mancorps of the ablest lawyers of the Roman empire.

ner in which his memory may be honored, his inThe Codes of the first empire were the result of the fluence perpetuated, and at the same time the combined efforts of a large number of the foremost client, the bench and the bar very materially beveadvocates at the bar of France, presided over by the fited. all embracing genius of Napoleon.

The Code of Civil Procedure was, all things conSave as to clerical assistance, the work upon the sidered, his best and most useful work. It is at seven compilations mentioned was done by Mr.

once his most enduring title to fame and his richest Field substantially alone and unaided. Of the

legacy to his brethren of the law. Its revision and quality of so much of this work of codification as

simplification, so far as to conform its general feahas not been enacted, it is too early to speak with

tures to the form in wbich he drafted it and which out embarrassment. It is more than doubtful the experience of more than a quarter of a century whether all that he hoped to accomplish is practic approved, is a necessity to the litigant and the lawcable or desirable, but so far as bis avowed object yer. In this form it would be a monument to the “ to reduce the bulk of the law, clear out the refuse, acumen, learning, industry and genius of the and condense and arrange the residuum so that the

original draftsman, a model of legal procedure to people and the lawyer and the judge may know

be closely followed by other States and countries, what they have to practice and obey,” is possible of and most important of all, again become what it attainment, it has the hearty sympathy and demands

was designed to be by its author, “a convenient, the unqualified admiration and support of every simple and inexpensive method for the administralawyer.

tion of civil justice.” 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 RAILROAD IN RECEIVER'S HANDS-REDUCTION OF the features of the law reforms which he had inaugu-WAGES. —Where the wages paid to faithful and rated in America. There were present the most competent employes of a railroad in the hands of eminent legal authorities of the kingdom, including a receiver are not shown to be excessive for the five men who had attained to the dignity of the labor performed, and are not higher than the wages lord chancellorship. The conference lasted till late paid to like employes on other lines of similar charinto the night, and when they arose Lord Chancellor acter, operated under like conditions through the Hatherly took him by the hand and said, “Mr. same country, the court will not, against the proField, the State of New York ought to build you a test of its said employes, reduce their wages bemonument of gold.”

cause of inability of the railroad to pay dividends In the language of another, somewhat para- or interest, even though present opportunity exists phrased, it was David Dudley Field who laid the for securing other employes for less wages. (United foundation of peace, happiness and tranquility by States Trust Co. of New York v. Omaha & St. L. formulating and establishing a system of remedial | Ry. Co. [U. S. C. C., Iowa), 63 Fed. Rep. 737.)

VOLU

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

ing the war. This depreciation ranged from

twenty-five to two and a half cents on a dollar, and it TOLUMES could be written about the claims

was estimated that it would take about $500,000,000 against the government, which have been

to satisfy the terms of the bill. brought before the Court of Claims, the Court of

At present there is no limit to the number of Private Land Claims, or before Congress itself.

times a claim may be presented to Congress. Every Some of the petitions are evidently the work of political change of administration is sure to bring cranks, others of ingenious rascals, while yet others

back thousands of applicants whose petitions have are legitimate. It sometimes seems as if the last

been rejected by the outgoing power. class were the least likely to gain satisfaction.

I have said that some of these claimants are Some of the just claims, I am pleased to say, be

cranks. A citizen of the middle West has spent at long to estates where heirs have not spent all their least three times as much money in postage as he strength and substance in the prosecution, but who claims the government owes him, in writing letters have been able to earn a competence for themselves.

to the treasury, to United States officials, and even An instance of this is the somewhat peculiar claim

to the Chinese and Korean legations. Nearly two of the Childs family in Philadelphia.

million claims have been filed in the treasury deIt was in 1777 that the Continental Congress sent partment alone, and the way in which many of them two spies to Montreal to report upon the prepara-are addressed is odd enough. It must have taken tions then being made by the British government the "blind reader” of the post office department to subjugate her rebellious colonies. The men

to make “ second auditor" out of “second oratorio," were appointed by General Washington, and a Mr.

or out of “sekun oder of the Tresur." George W. Childs was one of them. The men did their work to the satisfaction of the general, who ably never be satisfied, and whose inheritors have

Saddest of all are the just claims which will probgave them certificates to the effect that their wages died in poverty. were well earned. Whether his comrade fared better

Major Joseph Wheaton is recorded as a gallant I do not know, but the compensation promised Mr.

soldier in the Revolution who served throughout Childs was not paid by the Continental Congress, and his heirs petitioned the Fifty-second Congress

the war. During 1780-1783 Congress passed an

act guaranteeing half pay for life to every officer for two million dollars, which they affirm to be the

who stayed in the service to the end of the fight for principal and interest due them.

Another interesting claim is that of Richard W. liberty. Major Wheaton never received a dollar of Meade, father of the hero of Gettysburg. It seems

the money promised. Moreover, during the war of that at the time when the United States purchased 1812, this gallant officer used thirty thousand dolFlorida, she agreed to assume all the claims which

lars of his own money with which to purchase army American citizens had against Spain. Among these

supplies, at a time when the army must have perished claims was one for $373,879 which had been allowed

without this aid. He was then acting as assistant by Spain to Mr. Meade, and which under the terms

quartermaster-general. This money, likewise, was

never refunded to him, although Congress doubtof the treaty should have been promptly settled.

less intended that it should be. Some time after Mr. Meade, it seems, was unable to obtain from the

the major's death a bill for the relief of his daughter Spanish government the proofs upon which his accounts had been settled with Spain, and without finally succeeded in passing both Houses during the

same session, but by a fatal error reference was made, these the United States courts refused to act. The

not to the treasury, but to the interior department, case had been before Congress nearly a score of times, and has been reported favorably nearly every

for payment, and I believe the daughter died in

poverty, although the undoubted heir to plenty. time, but it was never acted upon by both Houses

There are said to be more than fifteen thousand of the same Congress. The original claimant died claims, acknowledged to be perfectly just, dating years ago, and if ever the heirs are able to get their

from revolutionary times to the last war, which claim through, they will be the richer by several

cannot get a satisfactory settlement from Congress. millions of dollars.

One of the oldest is that of James Bell, a CanaOne of the most curious claims ever put into a

dian, who spent a fortune in building and fitting congressional bill was originally presented by Mr.

out three vessels for the Yankees during the RevoWeaver, who is now better known as a recent presi-lution. He was afterward arrested for treason, his dential candidate on the People's party ticket. It unspent property confiscated, and his life spared was afterward reintroduced by Mr. Smith of Illinois. only through the clemency of the English king, The bill proposed to pay to Federal soldiers the dif-who, it is said, was the man's cousin. Bell was ference in value between the gold dollar and the released on parole, and at the close of the war re

our

turned to this country. Pointing to Washington's lieve, that he has paid good money. At the time proclamation, that whoever assisted us in of the purchase, however, the title was not good. struggle for freedom should be rewarded if we were Since then it has become vested in the United States, successful, he asked for aid. He died without it and the present question is, shall the man who acand very poor. A very small portion of the claim tually bought and paid for the property in good has been paid to some of his descendants, but the faith receive the final title, or shall it go to a mining bulk of it is still an acknowledged debt.

company who are simply squatters? Over in Georgetown there lives, or did a year or To show how investigators may be taken in, I two ago, an old lady whose husband was a soldier will give a brief résumé of the Weil and La Abra in the Northern army. During the war the Federal bills, as they are called. The history of these cases troops used her farm as a camping-ground, and her runs back to 1868, when by a treaty with Mexico live stock and other movable property as their own. the United States secured something like four milThe damage is put at $20,000, and the justness of lion dollars' worth of awards. The La Abra Silverher claim is undisputed, but she will probably never Mining Company was awarded $683,041 for alleged get her money.

damages arising from the closing of a silver mine. Now and again there comes a claim which the In the Weil case the award amounted to $487,819, government has tried to satisfy, but which the and was for cotton and mules said to have been claimant persists in prosecuting to the last cent. seized by Mexican troops. When the United States One of these, apparently, is the famous Reid claim, had paid to each claimant about one-third of his which is said to have furnished the plot for Mr. award, suspicions of fraud were aroused, and furCrane's play, “The Sepator."

ther payment was suspended. This was in 1877. In September, 1814, British buccaneers destroyed After a long fight in Congress, early in 1892, the the brig General Armstrong in the neutral port of matter was finally referred to the Court of Claims. Fayal. The owners tried to recover damages, but If the court finds that the awards were procured by their efforts had been fruitless up to 1835, when fraud and perjury, the unpaid balance will be rethey all engaged Samuel C. Reid of New York to turned to Mexico; otherwise, payment on the claims prosecute their claims. The agreement, signed by will be resumed. The suspicions are founded in the fifteen owners, consigned to Reid their rights in the mine case on what seems to be conclusive evithe claim, with the agreement that he was to bear dence, that it had never been seized at all, but had all the expenses of the prosecution and retain half been voluntarily abandoned as valueless, and that the money he might recover. It was not until 1857

the claim had been a fabrication of the former that England and the United States submitted the superintendent of the mine, inspired by the appointloss of this vessel to the arbitration of Louis Napo-ment of the commission to consider claims arising leon, and it was not until 1882 that Congress directed

out of the Mexican war. The ex-superintendent, I the secretary of state to adjust the claims of the believe, died before any payment had been made on

the award. captain, owners, officers, and crew of the brig. Long before this, Mr. Reid had assigned bis claim

In the La Abra case, then, there had once been a to his son, Samuel C. Reid, Jr. The Court of Claims mine, though a valueless one. The Weil claim, fixed the value of the vessel at $70,739, and put the however, had even less foundation in fact, if the owner's share at $43,000. For want of evidence to

latest evidence proves to be correct. The claim was adjudicate the relative interests of the heirs of the

based on the allegation that Weil lived in New fifteen owners, Secretary Frelinghuysen decided Orleans, was engaged in running cotton through that their estates should share alike. Mr. Reid got Mexico during the war, and had lost a heavy mule his half of the whole at once,-$21,500. He also train and seven hundred bales of cotton through got something for his services from the share of the seizure by the Mexicans. Cotton was then worth officers and crew, so that one would think he might fifty cents a pound. The proofs at the time seemed have been satisfied. The owners' shares were not

so complete that the award was promptly made, all paid out, however, as some of them had died and question would probably never have been raised, without heirs. This part of the award, of course,

had it not been for the mixed conditions of Weil's reverted to the United States; and it is for all, or

business affairs, which caused a quarrel over the at least the major part, of this that Mr. Reid con- disposition of the proceeds. It now looks as if tinues his suit.

Weil had never owned a mule or a pound of cotton The McGarrahan claim is another interesting case,

in bis life. but one which is so perennially before the public The Court of Private Land Claims was organized, that it seems useless to give more than a brief out. I believe, in 1891, for the purpose of adjudicating line of what the claimant really wants. His claim claims to private ownership in land before it was is for title to land for which nobody disputes, I be- I ceded to the United States. There have been filed hereafter be called upon to construe the section. The Albany Law Journal. In the decision of Judge Parker in regard to

the railroad commissioners we think that the ALBANY, JANUARY 26, 1895.

different reasoning was proper, as the expense Current Lopics.

of the commission, under the provisions of the

law creating it, was to be borne by the railroads (All communications intended for the Editor should be ad- of the State, and the statute existing at the time dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other of the passage of the amendment to the Constitubusiness matters, should be addressed to The Albany Lawtion in regard to passes was one which the memJOURNAL COMPANY.]

bers of the convention were deemed to be cognizUDGE HERRICK, on Wednesday, January able of, and which did not, in effect, make

23, 1895, decided that notaries public, as exception to the anti-pass provisions of the Conpublic officers, could not have free transporta stitution. Judge Herrick's opinion in regard to tion over railroads under section

5
of article

13

notaries public using passes is as follows: of the Constitution. It is a matter of great in

“This is an action commenced by the atterest to carefully examine the well-written torney-general of the State, to forfeit the office opinion in this case, and to realize that the spirit of the defendant as notary public. The plainof the Constitution is to be upheld by such a ju- tiff alleges that in January, 1894, the defendant dicial interpretation. The history of this amend was appointed a notary public in and for the ment is rather brief, but most interesting. Dur-courty of Albany, by the governor of the State, ing the last part of the session of the convention

and was confirmed by the Senate. That there 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 accepting passes from the railroads of this state, been acting as notary public in and for the

clerk of Albany county, and since then has when Hon. De Lancey Nicoll, of New York, formerly district attorney of that county, called county of Albany. That at the time of his ap

pointment as notary public he was possessed of the attention of the members of the convention

a free pass, which entitled him to free transto the fact that the proposed amendment which was then before them could easily be nullified, Co., and that on the 2nd day of January, 1895,

portation over the lines of the D. & H. C. R. 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.

FOR

RAILWAY

- SALE

UNDER

MORTGAGE.

seal, oral authority is not generally enough. The recovery where law violated is intended for the proprinciple that the intending signer of an instrument tection of the citizen against oppression, extortion may authorize another person to hold the pen and

or deceit.

Money paid on a usurious contract in make the signature, plainly requires presence; and excess of the principal and legal interest may be reupon the above view could not be relied on to au- covered back. (Taylor v. Hintze [N. J.], 30 Atl. thorize one by telephone to sign the name of an ab- Rep. 551.) sent speaker to a deed. University Law Revier. CORPORATIONS SUBSCRIPTION

STOCK.-One who subscribes to the capital stock of Abstracts of Recent Decisions.

a railway company chartered under the general law

for incorporating such companies must take notice, ADVERSE POSSESSION-COLOR OF TITLE. -Color of notwithstanding any representations made to the title is that which in appearance is title, but which contrary, that the railroad company has no power in realty is no title.

While the phrase color of to issue or deliver to its stockholders any stock in an title," in the Limitation Act of 1874, means a paper existing or future construction company. It follows title, it does not mean a perfect paper title. The that oral representations made touching the constatute, when its conditions are complied with, is struction company, its resources, or the value of its intended as a protection to a person holding in good stock are not pertinent as a defense to an action by faith under a mere colorable title. (De Foresta v. the railroad company against a subscriber to enforce Gast [Colo.], 38 Pac. Rep. 244.)

payment of his subscription. (Russell v. Alabama ATTORNEY AND CLIENT---EMPLOYMENT_TERMINA

Midland Ry. Co. [Ga.), 20 S. E. Rep. 350.) TION OF CONTRACT. - Where defendant employed a

HUSBAND AND WIFE-USE OF WIFE'S SEPARATE law firm to conduct a certain case to a final deter- ESTATE.---Where a husband applies the principal of mination, when the fee was to be paid, the death of his wife's separate property in the support of their one member of such firm during the pendency of family, she may, in the absence of an agreement to such case, dissolved the partnership, and termin- repay the same, recover it back. (1

(Hammond v. ated such employment, but did not mature the Bledsoe (Ind.), 38 N. E. Rep. 530.] firm's claim for compensation for services rendered INJUNCTION

-Where before said death occurred. (Landa v. Shook one of several co-devisces of land buys a mortgage [Tex.], 28 S. W. Rep. 135.)

which is a lien on the land, he will be enjoined CANCELLATION OF DEED.-A father promised his from selling the land thereunder until it is deterson that if the latter would live and work for himmined what amount of the mortgage the respective during the latter's life-time, he would devise to him

interests of himself and his co-devisees are subject certain lands, and about eighteen months before he to, so that the latter may satisfy the mortgage by died made his will accordingly. Afterward, and paying their proportion of the mortgage debt. nine days before be died, being very feeble in mind (Fisher v. Hartman (Penn.], 30 Atl. Rep. 513.) and body, and laboring under a delusion as to his LIFE INSURANCE-NON-PAYMENT OF PREMIUM.son's conduct, he made a voluntary conveyance of The giving of a note for a premium to an agent, a part of the lands to two or his grandchildren, who who had no power to postpone payment of the prewere in personal attendance upon him. The son mium or to substitute any thing for it, which was fully performed the conditions of his father's prom- never accepted by the company or brought to its ise.

Held, the conveyance must be set aside as knowledge, will not keep alive a policy which proagainst the son. (Kastell v. Hillman [N. J.], 30 vides that the company assumes no risk whatever Atl. Rep. 535.)

for that portion of the year for which the premium CARRIERS OF

shall have been actually paid in cash in advance. TRAIN-CONTRIBUTORY NEGLIGENCE.—Whether a (Smith v. New England Mut. Life Ins. Co. [U. S.C. passenger who knowingly and intentionally alights Ct. of App.), 63 Fed. Rep. 769.) from a slowly-moving train is guilty of contributory WILL-DEVISE TO TRUSTEE-LEGAL TITLE.-A negligence is a question of fact, depending upon the devise to the testator's children for life, with conattending circumstances. (Chicago & A. R. Co. v. tingent remainder to their children, a trustee being Byrum [111.], 38 N. E. Rep. 578.)

appointed “to hold the legal title during the esCONTRACT - ILLEGAL-RECOVERY OF MONEY PAID. tate for life, and for the preservation of the re- When a plaintiff is in pari delicto with the demainder," does not clothe the trustee with legal title fendant, money paid by the former to the latter can- to the remainder, but only with such title to the not be recovered back. This rule applies where the particular estate. The remainder created is a legal, act done is in itself immoral, or a violation of the not an equitable, estate. Baxter v. Wolff [Ga.], 20 general laws of public policy, but it does not bar a S. E. Rep. 326.)

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