Imágenes de páginas

the pleasure of making an investigation of the mat- not make a better rate for the canal towns than ter as stated.

they do for other places at a like distance from the “French historians believe that during the revo- market. lution of a hundred years ago, in the destruction of While the Western part of the Union is aroused the Hotel De Ville ended a part of the observance for cheap transportation and convention after conof the contract on the part of the king of France. vention meet for cheap waterways, the State of Judge Desty placed in my hands a irge packet of New York seems to take no interest in the plan to legal documents signed by Henry IV, Francis I and deepen its canals. other sovereigns of France, proving beyond ques- Without an effort to sustain them it would allow tion the distinguished character of his ancestral the railroads to drive this valuable competing route name and family. I took these documents to France from the field, and like Pennsylvania, become the with me, and they were examined by the listorians prey of its enemies, that built up towns like Baltiand attorneys of France with great interest. more, Richmond and other points.

“As an American citizen, Judge Desty has be- In order to save a few cents in taxes New York come well known and his services are highly re- State would throw away its chief hold on the comgarded.”

merce of the nation, and that which gives it control

over every railroad line from the West. Correspondence.

With every reason why the State should improve IMPROVEMENT OF THE ERIE CANAL. its waterways it has done nothing for them for half

a century. But while this is going on, and the At a time of great poverty, the citizens of New question of cheap transportation is growing more York built the Erie Canal. It was an event in its and more important, it would seem as if nothing history of which all citizens may be proud, not only should be left undone to improve it. for the self-sacrifice of their ancestors, but because The friends of the canal are encouraged by those it has proved to be such a lasting benefit to the living outside of the State, who have seen the imState and the entire Northwest.

portance of this channel of commerce, and who are Not only did New York build the Erie Canal, buiding iron boats, fully up to the merits of the but it constructed branches both North and Soutin, times, and who expect to reap a harvest in their use, which, although they have not proved a financial | which those who have been most familiar bave negsuccess, have developed the regions through which lected. The thing which threatens the usefulness they passed. The burden of constructing these of this venture, so full of importance to the State, lateral canals was borne by the entire State, but is the lack of depth in the canals. The wheel of chiefly by what are known as the canal counties, the propeller and the bottom of the boat are because in these counties there existed the greatest dragging the mud, because the canals are not dug wealth. In later days, although the canals have out or not deepened so as to give free passage to dove their part, the State has not maintained the the boats. With a foot more depth each boat could high position which it took in 1819 in regard to its carry fisty (50) tons more cargo, an increase that public works. The canals, instead of being im- would insure a profit to the venture. But this is proved by science and made the pride of the State, not the only advantage of an increased depth. It have remained as they were in 1850, except for the so expedites the passage of the boats that more trips deterioration which time has produced. They have could be made in a season, and thus a gain could be greatly filled up, so that to-day, instead of being realized. seven (7) feet deep they are more nearly six (6)

While every effort is being made by the friends feet.

of the canal to improve their waterways, to increase In spite of the neglect of this artery of commerce, their depth, and to lengthen their locks, the enethrough which passes a large amount of the product mies of the canals are at work to lessen its merits in of the West, it has proved of immense value to the the eyes of the public. State, and bas brought into its lap millions of dol- They talk of a ship canal, and of government lars in actual money, to say nothing of the benefit control, both of which would be destructive to the which it has been to all classes of the community. | interests of New York. It is a well-known fact

By competition with other routes, it has kept that ship canals should never be entered into except down the price of transportation, so that to-day the for short distances from the ocean to connect great railroads are forced to give better rates to the seas, or to cut short isthmuses. But even these at. farmer than are enjoyed in other States. Not only tempts have not proved successful. The Manchesdoes it affect points along the canals, but every ter ship canal, the only one that in any way comstation on the line of the railroads throughout the pares with our water route, has not proved that it State, because these lines of transportation dare can transport merchandise from Liverpool to Man

the case.

chester, its terminus, only thirty-five (35) miles dis- | is eminently military. Commerce and war cannot tant, cheaper than the railroads.

go hand in hand. The route and the method that This canal, thirty-five and a half (354) miles long, would promote commercial supremacy of the counand only overcoming an elevation of sixty (60) feet, try cannot afford to be linked with any plan that has cost the immense sum of Seventy-five Million contemplates war. Dollars ($75,000,000) or more than two million Why should New York seek to gratify the vanity ($2,000,000) a mile. What would it cost to over- of Chicago and Duluth to be seaports to ber own come a distance of 352 miles from the ocean to Lake disadvantage? The commerce of the country does Erie, with a height of five hundred and sixty-eight not demand it. (568) feet.

People are led away with the idea that the maBut the price is not the most difficult feature of jority of our products go abroad; but this is not the problem. With the Chicago canal, that is to

Only a small amount of what we produce reduce the water of the great lakes six inches, and in the most favorable seasons is exported. The perhaps more; with the Niagara Falls canal, that is balance is used by our own people. There has drawing down the waters for its immense mills, it grown up within the country commercial enteris suggested that a ship canal either entering Lake prises that would not be ashamed to stand before Ontario, as proposed by United States engineers, or the trade of Europe. The products of the West, taking its water by the way of Buffalo and Roches-the corn, the wheat, the flour, the iron and the ter, in a like manner, shall be constructed.

copper are carried to the lower lake ports and here How long would the interests of the great lakes they are distributed to supply the States of the tolerate this folly, when millions of dollars are being East, whose people are engaged in manufactory. spent to deepen them? When every effort is being They meet there coal and supplies which are needed made on the one hand to make a twenty (20) foot to build up new countries and thousands of tons of channel throughout their entire length, it is pro- iron to carry railroads throughout the West. In posed by a party in one State to take steps which this way not only does the East get cheap food and would lessen even the present depth an amount that raw material, but the West obtains what it needs at it would be difficult to calculate.

a low tigure. While New York, with its immense commerce There has grown up upon the lakes a fleet of wonand great wealth, hesitates over the expenditure of derful vessels, large in size, and expensive in connine million dollars ($9,000,000), it is proposed to struction. They are the development of years, and enter upon a work that would cost six hundred are suited to the purposes for which they are conmillions of dollars ($600,000,000). But where shall structed. By what reasoning should they be put this money come from ? New York does not pro

upon the narrow waters of a canal, where they pose to spend it-it is to be raised by the general would compete with the cheap-made barges? They government.

would move a little faster than two miles an hour, So the enemies of the canals of the State (which and while they were making a trip from Buffalo to have been its crowning glories for almost a century) | New York, a distance of five bundred (500), miles are to allow them to pass out of its control into the they could have gone to Chicago and retui ned, hands of the general government, no longer to be nearly twice the distance, at a less cost. carried on for the benefit of New York, but to suit Three (33) fects of barges which cost 50 per cent the whim of Congress, although the State must pay less would have carried the same amount of grain a larger amount than any other both for its con- in the same time. struction and maintenance.

For whose benefit is this six hundred million dolHas New York lost its reason, and has it lost its

lars ($600,000,000) to be expended? Not for the power to look after its own affairs, that it must en

commerce of the West, for it does not necd it. The trust them to others ?

State of New York does not call for it, neither do What power would it have with its two Senators the vessel owners upon the great lakes. and its thirty-four Congressmen against that large

Let New York still keep its faith in its canals, body of men composed of representatives from improve them from time to time as science dictates other States in the Senate and the House of Repre- and it will reap its reward. The railroads, because sentatives?

of their great wealth, may be able for a time to so The public works of the United States are under lower their rates that they can compete, but this the control of the engineering department, a branch will not be so always. The cheapest route must of the military service. While they contemplate prevail in the end. For a time the railroads sought this route for commerce, they also consider a ship to compete in transportation with the great lakes, canal to the sea as a war project. Their education, but they had to abandon it, and to day all the great

ern commerce.

railroads own steamships that struggle for the west- the Code of Civil Procedure contains one radically

unjust, no less than insecure feature, concerning The reason that the Erie canal is at a disadvantage which I have sought the views of many brother is because it has been neglected, but as the neces- lawyers who concur with me in what I am about to sity for cheap transportation increases, it will make offer to your consideration in the hope that you will itself felt. But New York must not think that this devise either some better remedy or adopt the can be done without an effort. It must de en its remedy which I venture to suggest herein. canals, it must lengthen its locks, it must furnish

It must often have occurred to you that trial itself with every device that has proved useful else- judges who are and mean to be perfectly fair men where. It must take the example of the railroads in the course of long charges to a jury frequently and care for its property, or else it will be greatly invent, with the best of intentions always, a great outdone, and the supremacy that New York has quantity of bad law which they impress hopelessly held for nearly a century will pass away.

upon a suitor's rights because his lawyer is no HORATIO SEYMOUR, JR.

stenographer. This deficiency will invariably pre

vent that lawyer from getting down specifically (or EXCEPTION TO JUSGE's CHARGE.

in any adequate detail) the whole of the objectionRecommendations to Commissioners of Code Revision able matter to which he would except and which is as to Changes in section 995.

exceptionable because it is bad law. Thus he is ROCHESTER, N. Y., October 14, 1895.

prevented from wholly protecting his client's rights; To the Commissioners of Code Recision, Albany, N. Y. :

and though the remedy of appeal lies open to him, GENTLEMEN — I am in favor of a general revision

the rule also existing that his exceptions to any porof the Code of Civil Procedure.

tion of the charge must cover specific matters I am in favor of a revision of the Code of Civil charged in order to avail bis client higher up, Procedure in the following particulars: That section coupled with the fact that the present state of the 995 be amended so as to strike out all the words Code neither gives him time to order a copy of the after the 31st word therein, and in place of the charge and carve out of it the exceptionable matter matter stricken out to insert the words, - it may be (since this must be done before the jury finds the taken either at the trial or thereafter at any time verdict), nor lets him take an omnibus general exduring the period allowed for appeal herein from ception against the charge with the riglit to frame

specific details later and files these with the county the judgment entered upon the verdict rendered ;

clerk for use on appeal, he is lost with bis client and each single proposition in the charge which is

before the battle in the Appellate Court has even is intended to be excepted to by either party shall be reduced to writing and specifically set forth, begun on this head. It is useless to advance argu

ment here that the trial court may in a proper case and the whole thereof enumerated serially, and the

grant a new trial without recourse to any exception. same shall be filed with the clerk and a copy thereof

That is discretionary of course. Yet the trial court shall be served upon the opposing attorney within does not uniformly do so but hesitates too often the same time as a part of the appeal.

although it should never hesitate at all.


good system of law leaves nothing to human disAttorney-at-Lau,

cretion because humanity are weak. Science alone 517 Ellwanger & Barry Building.

is strong and where the rules of justice are no less

liberally just than scientifically accurate human ROCHESTER, N. Y., October 14, 1895.

falibility is never able to play its incurably erratic Hons. Charles B. Lincoln, William H. Johnson and part. Of course we all understand the claim that A. Judi Northrup, Commissioners of Code Re

the reason why exceptions to the charge must be vision :

taken before the jury is discharged, was to give the Between the care of a large practice which I law judge, if he desires, an opportunity to revamp superintend alone, and the care of a large amount his utterances to the empannelled judges of the of real estate which I am unfortunate enough to fact. The better reason however remains for amendown in an age of municipal plunder by ruinous as- ing section 995 as hercin suggested and that is to sessments, etc., your letter was reserved to be give the suitor, who is infinitely more concerned in answered as early as practicable, and so suffered the verdict than the law judge, a right enforceable from the delay which I seek to excuse in the forego- | by appeal to insist that the law judge shall always ing statements.

nolens volens charge good law, otherwise that his For years I have been impressed and to growing charge shall suffer the fair consequences which folexperience as time speeds forward, am more and low and ought by right to follow in every proceedmore impressed with the fact that section 995 of ling or step of a proceeding tainted with bad law


whenever that baš law bas resulted in a miscarriage happily arranged the work in two volumes and in of justice. Than the latter there is nothing worse such a form that any part of the subject can be easily to society except anarchy. Indeed every mis-found, while the two volumes cover all the essential carriage of justice is in essence anarchical for it is rules and principals which a work on this subject antagonistic to good order.

should contain. The cases cited are not only those Therefore I ask you gentlemen in the name of a of America and of every State within our confines, system of Code law that shall be liberally just no includes Australian, Canadian English, less than scientific, to either secure an enactment of Hawarian, Indian, Irish and those of New Zealand. Section 995 of the Code of Civil Procedure in a It will thus be readily seen that the work is broad form providing that a general exception against the in its scope, while it is comprehensive and practical. trial judges charge to the jury is insufficient and The arrangement of the book is particularly satisshall avail to enable a suitor on appeal to raise every factory as each chapter is divided into sections and possible objection to each distinct proposition of at the beginning of each chapter the section is bad law charged or else that a suitor may within placed with a short paragraph giving the contents the usual time for appeal file his objections and ex- of the section in a short, concise form. This makes ceptions seriatim as specific points in numerical the work easy of reference, while the foot-notes order to every one of the propositions of the charge allow the practitioner to find the cases from which which he thinks are bad, and then within the same the principles are deduced. The first volume is time to serve a copy of these objections and excep- divided into twelve chapters and there are eleven tions upon bis adversary for the purpose of any ap- chapters in volume two. Chapter one deals with peal in the premises. There is no such thing as General Matters, while the succeeding chapters conmaking the rules of justice too broad along the tain Special Matters, Final Judgments, Abatements, mighty avenue of appeal wherein so many men and Cause Entire or Divisible, Defenses Omitted, so much property have in time past been rescued Estoppels, The Issues Contested or Not Contested, from the direst risks. We must move and keep | The Issues, Immaterial, The Issues, Plaintiffs, The moving higher to a still better order of things Issues, Defendants, The Same Issue Determined by mundane in the practice of jurisprudence.

the Record, Principal and General Matters. Volume Respectfully,

two commences with chapter 13 on The Same IssueJACOB SPAIN.

Determined by the Record, while succeeding it are N. B. – I enclose your blank with the suggested chapters on The Same Issue, Determined by Examendment suitably framed.

J. S.

trinsic or Parol Evidence, Election of Remedy, Wrong Remedy, Parties, Privies and Strangers, Crimes and Criminal Proceedings Cause Entire or

Divisible, Issues Determined in Criminal Causes, New Books and New Editions.

Jeopardy in Ciminal Causes, Pleading, Practice and

Evidence in Criminal Causes, Second Appeals, Effect RES JUDICATA; 2 VOLUMES; A TREATISE ON TIIE

of Decision on First Appeal in, and Pleadings in LAW OF FORMER ADJUDICATION, BY JOHN M. VAN

Civil Causes. The index is arranged at the end of FLEET, Esq., OF THE INDIANAPOLIS BAR AND

volume two and as it contains over 140 pages its " COLLATERAL ATTACK ON JUDICIAL PROCEEDINGS."

practicability can easily be determined. Published

by The Bowen-Merril Company, Indianapolis and The scope of this work includes that important Kansas City. Price $12. branch of the law which determines when judgments of courts of law and decrees of courts of equity are conclusive and final adjudications, to

A BRIEF DIGEST TO VOLUMES XXXVII to XLII gether with the force and effect of former adjudi- OF AMERICAN STATE REPORTS, TOGETHER WITH AN cations as evidence to establish in another suit the INDEX TO THE NOTES AND A TABLE OF Cases Recause of action or of defense or some issue therein PORTED, By Edwin D. Smith. as against parties, privious or strangers. The great This small index will be of great value to those importance of this branch of law would too often

who use this series of excellent reports, and is comlead an author to expand the principles of the sub-piled with care. It will be acceptable and satisfacject into an enormous and bulky book which would tory to the active practitioner. Naturally, these not at all meet the requirements of the bar. On the digests of a small number of volumes of reports are other hand a too short and general work on this more burdensome to the lawyer than otherwise, for important subject would not comprehend within its it can be readily seen that no index can be arranged narrow confines the different phases of the subject and added to yearly, and this convenient form of which its importance merits. The author has | adding to the index of a series must be resorted to.



The Digest is bound in heavy paper, and contains is ever made, and no arrangements made for the an index to notes in the reports. Published by Ban- payment of debts or liabilities which may be incroft-Whitney & Co., San Francisco, Cal.

curred by such organization, the organization can

not be said to have such a corporate existence as AMERICAN STATE REPORTS, VOLUME 44.

woukl authorize its directors to incur any liability This last volume of these reports contains selected in the name of the corporation, and the persons so decisions from many of the reports of different engaged in the enterprise are liable personally, as States, including 91-93 Georgia, 95 Kentucky, promoters thereof, for a debt incurred for material 78 Maryland, 162 Massachusetts, 56 New Jersey purchased by one elected by them as superintendent Law, 115 North Carolina, 3 North Dakota, 164–65 and general manager, and needed in carrying on the Pennsylvania, 41 South Carolina, 3 South Dakota, business for which such organization was formed. 66 Vermont, and 90 Virginia. The reports are

(Whetstone v. Crane Bros. Manuf'g Co. (Kan.), 41 printed in their usual excellent manner, and the Pac. Rep., 211). selection of cases by the editors seems most happy.

COVENANTS · ACQUIRING TITLE BEFORE SUIT.Published by Bancroft-Whitney Company, San

In an action for breach of warranty, where it apFrancisco, Cal.

pears that when the deed was made defendant had Abstracts of Recent Decisions.

no title, but acquired title before the suit was

brought, plaintiff is entitled to only nominal damADVERSE POSSESSION

Where a ages, as the title acquired by defendant inured to land-owner, believing that his land runs to a certain plaintiff's benefit. (Sayre v. Sheffield Land, Iron line, retains possession up to such line, which is on and Coal Co. (Ala.], 18 South. Rep., 101). the land of an adjoining owner, he does not hold ad- MARINE INSURANCE- CONSTRUCTION OF POLICY. versely to such owner, there being no agreement A policy of marine insurance, containing a between them that such line should be the dividing printed clause which prohibited the vessel from line between their lands, and the former never in- certain waters including the Gulf of Campeachy, tending to claim any more land than belonged to bad written into it the amount of insurance, the him. (Davis v. Caldwell, [Ala.], 18 South. Rep., name of the vessel, and the terms of the policy, 103).

after which was written the words Excluding the APPLICATION OF PAYMENTS

Gulf of Campeachy:" Held, that the written words On foreclosure of a mortgage securing a note, the were not for the purpose of qualifying the printed interest on which is guaranteed by a third person, clause, but for calling particular attention to the the mortgage is entitled to have proceeds of the Gulf of Campeachy, near which the vessel was when sales applied in payment of the principal of the insured. (Parker v. China Mut. Ins. Co. (Mass.), notes before the interest. (Smythe v. New England 41 N. E. Rep. 269.). Loan & Trust Co., (Wash.], 41 Pac. Rep., 184).


- An employer who knows and the number of acres are known, and it is dis- that a need of warning an inexperienced servant puted whether the fourth side is a straight or

working on a dangerous machine has arisen, is meandering line, the straight line will be adopted, bound to give it, though the danger arose from the when the tract thus inclosed contains the number of

negligence of a fellow-servant. (Bjbjian v. Woonacres called for, and when the acreage would be socket Rubber Co. (Mass.), 41 N. E. Rep. 265. largely increased if the meandering line were

MORTGAGE ONE PARTNER'S INTEREST. adopted. (Hostetter v. Los Angeles Terminal Ry. Co., (Cal.], 41 Pac. Rep. 330).

mortgagee takes no greater right or interest than

the mortgagor had, and, as one partner cannot take CONTRACT


When time is not made the essence of a contract for pay possession of the partnership property, neither can ment by the performance of specific services, the his mortgagee do so. (Aldridge v. Elerick, (Kan.), party entitled to such services does not absolutely 41 Pac. Rep. 199. forfeit them by failing to require them within the VENDOR AND PURCHASER COVENANT TO GIVE time named in the contract. (Kanopolis Land Co.

DEFAULT. -- A vendor is not in default on v. Morgan, (Kan.), 41 Pac. Rep. 205).

a covenant to give warranty deed on payment of CORPORATION PROMOTERS. Where certain the price, merely because, before final payment, a persons procure a charter, and are named therein as

mortgage on the land was foreclosed; but the purthe directors of a corporation for the first year, and, chaser must tender balance of purchase money and as such directors, elect themselves as officers of such a deed for execution. (Pate v. McConnell, [Ala. ). organization, but no bona fide subscription of stock | 18 South. Rep. 98.








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