Imágenes de páginas





Ohio providing that every person convicted a third Abstracts of Recent Secisions. time of felony shall be sentenced to imprisonment for life. The enforcement of such law has been

ASSIGNMENT FOR held constitutional by the Supreme Court of Ohio,

Where an assignee was the cashier of a creditor where the first of the two previous convictions of the defendant occurred before the passage of the

bank, the insolvent's preference of an usurious

claim to the bank will invalidate the deed of act. (Blackburn v. State, 36 N. E. R. 18.) We

assignment. (!Tiller v. Ellis (Miss.], 18 South. strongly approve of the policy of this statute. It

Rep. 9.5.) gives more than a fair chance for reform. But, when a person has committed three selonies, it may ATTACHMENT

In an action for the properly be said that his criminal «lisposition is per- wrongful attachment of property which the owner manently fixed, and it is simple foily to go on turn had sold, the value of the property, in estimating ing him loose to prey anew on the community, and the measure of damages, is the price contracted for, to waste public money in fresh trials and convic- though it is in excess of its market value. (Curry tions. Somewhat the same result is that contem v. Catlin [Wash. ], 41 Pac. Rep. 55.) plated by the Ohio statute may be accomplished in our State under section 688 of the Penal Code, pro

CONFLICT OF LAWS -- INSOLVENT CORPORATIONS — viding for sentences for increased terms upon con

PREFERENCES.—The fact that the laws of New York victions for second offenses. Under this section, forbid preferences by insolvent corporations does Judge Fitzgerald wisely exercises his discretion not render void authority conferred in that State, last week to impose practically a life sentence on

by the board of directors of an insolvent corporathe fire-bug Shoenbolse. We do not see why the tion, organized under the laws of New York, but law of New York should not be retained practically bolding its entire property in Pennsylvania, on the as it is to cover cases of second offenses, and the corporation's president, to execute in Pennsylvania, Ohio statute also borrowed in order to make a life ad judgment note in favor of a creditor of the corsentence inevitably follow a third conviction of poration. (:1 ppeal of Chautauqua County Nat. felony, no matter what the grade of the different Bank [Penn.), 332 :111. Rep. 539.) offenses.


MISSOURI The criminal classes are apt to be quite prolific

Rev. St. Mo. 1889, § 3195, providing reproducers of their kind, and observation and stil

that county warrants not presented for payment tistics show that the criminal disposition is almost

within five years of their date, or, being presented invariably transmitted to offspring. Of course en

within that time, and protested for want of funds, vironment has much to do with hardening the in

and not presented again within five herited nature, but the specific criminal hereility is

funds are set apart for payment thereof, shall be often so potent that educational influences and

barreil, prescribes it special limitation for actions on moral surroundings during childhood are incapabile

such warranty, within section 6791, providing that of neutralizing it. The perpetual imprisonment of habitual criminals, besiiles protecting the present | 6774 for action on any writing for the payment of

the limitation of ten years prescribed by section generation from their practically certain depreda- money shall not extend to any action which shall tions, would quite materially diminish the quota of

be otherwise limited by any statute. (Knox ('ounty heredity criminals of the next generation.

v. Morton Il. S.('.C. of lpp.), 68 Fed. Rep. 797.) It is altogether possible that the indefatigable efforts of modern Charity Organization, by making DEE])- TITLE TO VEST AFTER GRANTOR'S DEATH. it more difficult to pick up a living by mendacity -An instrument from a father to his children, and begging, will drive considerable numbers of

which is in form an absolute seed, and executed as shiftless persons into positive crime. But we can such, but not attested as a will is required to be, not say that the policy of Charity Organization is to which contains the clause " provided always, and be deprecated because of this incidental r-sult. Il

it is expressly understood and agreed, that this the status of habitual criminal, with its penalties as conveyince is not to take effect till after my death, above outlined, certainly await il convict, an addi- 20 that, at my death the title to the foregoing tional deterrent from crime and an aclitional in- lands are to vest immediately in my said children,” centive to honest work will be offered. And, in will be construed as a deed reserving a life estate the long run, society can probably deal with the to the grantor, where it was delivered when exehopelessly vicious as babitual criminals to better cuted, and the grantor lived on the land with the advantage tban if they were permitted to go on un grantees till his death, without attempting to make molested in their impositions upon the benevolent. any other disposition of the land. (Abney r. Moore -N, Y. Laic Journal.

Alai), 18 South. Rep. 60.)


years after



of the verdict is in the usual form that is, upon the

above findings, the law is with the plaintiff, then SPECIAL VERDICTS IN INDIANA UNDER


we find for the plaintiff and assess bis damages at STATUTE.

dollars; and if the law is for the defendant,

we find for the defendant. To the Editor of the Albany Laro Journal :

So vital a change in the form of special verdicts The General Assembly of the State of Indiana, at

cannot but attract the attention of the profession at the session of 1895, made a radical change of the large, and if it should prove satisfactory, other law as to special verdicts. This law has come be States may be inclined to profit by the example. fore the courts for the first time at the Fall sittings.

It is as follows:

INDIANAPOLIS, Oct. 2, 1895.
"That in all cases tried by the jury, the court
shall, at the request of either party, in writing,

Now Books and New Editions. made before the introduction of any evidence, di

TUE CONSTITUTION OF THE UNITED STATES AT rect such jury to return a special verdict upon any

THE END OF THE FIRST CENTURY. By George S. or all of the issues of such case. Such special ver

Boutwell. dict shall be prepared by the counsel on either side

A long experience as legislator and as a legal of such cause and submitted to the court, and be practitioner has given the author of this work & subject to change and modifications by the court. familiarity with the Constitution of the United The same shall be in the form of interrogatories so States which renders him unusually well fitted to framed that the jury will be required to find one prepare such a work as this.

The book is prepared single fact in answering each of such ivterrogato- in a way which is almost novel to members of the ries; the jury, on retiring, shall take all the plead

legal profession, and may be considered not only a ings in the case, including the instructions of the

treatise but also a text-book on this most important court, if in writing, and the interrogatories as ap

subject. Its value, however, extends largely beyond

that which a text-book ordinarily possesses. Its proved by the court, and shall answer each of the preparation shows careful and conscientious work, interrogatories submitted to them.”

aided by great experience and unusual ability. The Under our former practice the courts were re work is divided into sixty-four chapters, which at quired to order the jury to render a special or al first seem to be too many in a work of only 400 general verdict at the request of either party. If a pages, but the convenience of the subdivisions is special verdict was required, the courts were re

apparent after a careful examination. The work bequired to order the jury to answer special interroga- gins with the Declaration of Independence, and tories on the request of either party. If the general subsequently the Constitution of the United States

is published withi annotations. We consider, perverdict was not in harmony with the answers to the

haps, the most valuable part of this work to be the interrogatories, judgment might be rendered upon

analytical index of the Constitution of the United the answers to the interrogatories and against the

States, which occupies sixty pages of the volume. party in whose favor the general verdict was ren

Few persons who have not carefully studied the dered.

Constitution appreciate the immense amount of maThis law repeals the law allowing special inter terial which is contained within the few pages, and rogatories to be propounded, and the only form we the index to wbich we refer strengthens the opinion now liave is the general verdict, or special verdiet which we hare bad of the immensity of the Constiprepared according to the above statute. Each of

tution. We consider that this index alone will give the Superior Courts and the Circuit Court of this lawyers a more casy means of referring to the Consticounty has had special verdicts rendered under this decisions of the Supreme Court on constitutional

tution than anything we have ever seen before. The statute, and the change from the old practice is questions are cited under the sections to which the thought to be very satisfactory, especially in cases decisions relate, and the leading decisions appear where a jury might be more affected by sympathy | with a careful examination of their scope and meanthan by the facts proved.

ing, while the lines between State sovereignty and The practice under this new statute is, after the national government are distinctly marked. proper request by either party, l'or counsel on each The development of the Constitution from the coloside to prepare a special verdict in the form of in- nial charters is ably demonstrated; in short, the terrogatories. The court takes these forms as pre- whole work is a most complete and comprehensive pared and has a new draft made embodying any'- book on the subject. The arrangement of the work thing pertinent in either form submitted, and is most appropriate, and we are especially pleased adding any other interrogatory that seems 10 be with the way in which cach section of the Constitunecessary for a finding upon all of the facts. This tion has a chapter devoted to its explanation, origin is submitted to the jury is coming from the court, i and development. It is bound in cloth and in a and they have no intimation as to which side pre-l convenient form for use. pared any particular interrogatory. The conclusion Published by B. C. Heath & Co., Boston, Mass,


business matters, should be addressed to THE ALBANY LAW



American Bar Association in 1890 at Saratoga, The Albany Law Journal.

and that is the necessity of having some legis

lation governing and regulating commercial ALBANY, NOVEMBER I, 1895.

paper, so as to get somewhat of a uniformity.

We all know that under the decisions of AlaCurrent Lopics.

bama a person who takes negotiable paper as (All communications intended for the Editor should be ad collateral security for pre-existing debt, with no dressed simply to the Editor of THE ALBANY LAW JOURNAL.

new consideration, is not a bona fide purchaser All letters relating to advertisements, subscriptions, or other

for value; that is also the law in New York. JOURNAL COMPANY.]

In 1880, I think it was, a railroad company T the recent meeting of the Alabama State made a note, and all its directors endorsed it,

Bar Association, H. C. Tompkins, Esq., and turned it over to an agent to negotiate that offered several interesting suggestions in regard note for the purpose of raising money for the to changes which might be made in the statute

benefit of the railroad company; the agent took law of the State in order to make it conform that note and carried it to his bank, and as he more properly to the laws of the United States owed that bank an overdraft he deposited it and of the different States. Mr. Tompkins

with that bank as a collateral security for his showed that at present the law in Alabama was

overdraft. Subsequently the bill matured, it that a person who took negotiable paper as col

was not paid, the bank instituted suits in the lateral security for a pre-existing debt without any new consideration is not a bona fide pur- that paper, the case went to the Court of Ap

courts for the money against the endorsers on chaser for value. The same principle is recognized in New York State, and Mr. Tompkins this bank was not a bona fide purchaser for

peals of New York, and that court held that as showed how the law was practically over-ruled this bank was not a bona fide purchaser for on account of the different holdings in the value, that, therefore, there could be no recovUnited States courts.

At that time the laws of the United States


A few remarks demonstrate the necessity of uniformity of allowed a bank to bring a suit in the courts of laws in the States and the United States, and the United States regardless of the residence of there was an evident feeling at the meeting the parties. The bank brought suit in the Circuit that some action should be taken in this direc- Court of the United States for the southern tion. Just before the close of the session of district of New York; they got a judgment for the Association this desire was put in a prac

the amount, and that case went to the Supreme tical form by the introduction of a resolution Court, and the Supreme Court held that a party to promote uniformity in the existing laws on taking paper of that sort was a bona fide purthe subjects of marriage and divorce, the form chaser for value, and that the railroad company of notarial certificates, the descent and distri

was liable. They had not sued the railroad bution of estates of decedents, acknowledg- company in the first suit. Now, a man can ments of deeds, execution and other subjects make a note in Alabama, an accommodation relating to the domestic relation, and the trans- paper, it can be deposited by a mere depositor action of business. It was also determined who has endorsed it as collateral security for his that commissioners should be appointed to pre-existing debt, bring a suit in the courts of promote such uniformity and to act in conjunc- Alabama, the bank or party taking it cannot retion with like commissioners who have been or cover, but if he happens to live in Georgia and may be appointed by other States, It is with he can make it convenient to stop in Columbus great pleasure that we regard this increasing and live months enough to be considered a residesire on the part of active members of the dent, and bring suit in the courts of the United bar to further the ends of this most important States he can

Again, we have what reform. Mr. Tompkins said in part:

we call irregular endorsements. I make my note There is another matter that I would like to to you promising to pay you so much money call to the attention of the Committee on Leg- by a certain date; I procure my friend Col. islation, it is a matter that I have thought a Hargrove to endorse that note what we call great deal about, and read an article before the l an irregular endorsement under the laws of

Vol. 52 - No. 19.


Alabama — that note is subject to all the rules the imputation finds much to warrant it in the governing any other commecial paper or bills of conduct and practice of many members of the exchange — there must be a protest or notice of bar. Is it not a fact that many members of the non-payment, he cannot be charged unless there bar do not, in the pursuit of their profession, is protest or notice, but if the party who holds consider themselves at all subject to be conthe note was to move out of the State of Ala- trolled by the ordinary rules of morality? And bama, and bring suit in the United States Court, do they not habitually in their dealings and the result would be that Col. Hargrove would practice as professional men set at naught the be charged as a maker, not as an endorser, and plain rules of right and duty ? Do they not no protest necessary. These various views of frequently practice falsehood and deceit to the law are held by the different courts. There ensnare the unwary and to compass their ends? are very few courts that hold with the Alabama

“And to what are we to ascribe this decourt. New York and some few other states parture by many members of the bar from the are the only states that hold with Alabama if path of rectitude ? Must we not ascribe it, in they are deposited as collateral for pre-existing many cases, to the defective methods of legal debt. I move as an amendment that the Com- education ? The great point with many young mittee on Legislation take into consideration men is to get to the bar - to procure license to and report on the feasibility of legislation to practice law,—which very many do without the procure uniformity of commercial law, and the necessary preliminary study and preparation; law governing commercial paper.

and entering the profession without any just

conception of its true nature and proper funcAt the same meeting of the Alabama State tions, and regarding it as merely a position to Bar Association, the annual address was deliv- enable them to get money, by any available ered by Samuel M. Meek, Esq., who made means and methods, they wholly disregard that some excellent suggestions in regard to the re- high moral standard which is the basis of all form which might be instituted by the bar. professional character and excellence. The subject of the address the Power ‘Surely every candid lawyer must say that and Influence of the Bar. There were many the bar needs reform—that the unworthy memthoughtful lines in this address and part of it bers ought to be cast out, and that only those runs as follows:

possessing the proper qualifications and charac“Every enlightened and candid lawyer must ter and learning should be allowed to enter or concede that the character of the bar is not

remain in its ranks. what it ought to be. It is a fact, that a large "Nor, in this matter of reform, ought the number of people in every community, and bench to be overlooked—that needs reform too. many of them people of great intelligence, re A seat on the bench ought to be the crowning gard a lawyer not only as a trickster, but as a final of an honorable career at the bar—the fellow who in the practice of their vocation will fitting reward of ripe professional experience speak without any regard to the truth, and will and untarnished integrity and unsullied honor. do anything short of a violation of a positive Indeed, in proportion as the bench is elevated

, criminal law. Of course the people make ex the character of the bar will be raised, and unceptions of some members of the bar. But worthy persons will not easily find places in its such is certainly the opinion of a great many ranks. citizens of every community in regard to many, “The law is practically what the bench and perhaps a majority of the members of the bar. bar make it. If the bench be learned and upNow, the question is, is there any just founda- right and dignified, and if the standard of the tion for this opinion? Do any considerable bar be elevated and lofty-if its members esnumber of lawyers, by their habitual practice teem it as their first and highest duty to adand conduct, afford just ground for this opinion, | vance truth and justice, then the law will be and thus, so far as their examples go, fix upon what it ought to be—will be in practice what the bar generally this stigma? I am afraid that it is in theory—a great system of rules and every candid lawyer would have to admit that I principles for the vindication of right and the


[ocr errors]


administration of justice among the Sir Matthew Hale, who, under the forms of highest of human functions.

law, executed devout and spiritually minded 'You know that even religion itself is practi- women, upon the charge of witchcraft. cally, in a great measure, only what its priests

Our profession, from the earliest times, has and ministers make it.

bed If these, instead of be subjected to the severest criticisms that ing enlightened in mind and upright in char- ingenuity and malice could invent. The great acter, and pure and holy in life, be ignorant Bard of Avon reveals the prevailing sentiment and vicious, then religion will degenerate into of his times, when he makes one of his characa miserable superstition, and instead of ele

ters in Henry VI exclaim: vating and purifying its votaries, will only de

“ The first thing to do, let us kill all the lawyers.” grade and debase them.”

The great, good and stainless John Marshall, These views, so well expressed by this able | while chief justice of the Supreme Court of the lawyer and distinguished jurist, the reflecting United States, was charged, while in a fit of mind I think will admit, to a great extent, to passion, from which none of us are exempt, by be true. That there are bad and unprincipled no less a personage than the immorial Thomas men members of our noble profession-some of Jefferson, with having prostituted his high them, too, deeply learned in its scientific prin- office and stained the judicial ermine for sordid ciples, and men of high intellectual attain- purposes, and he pronounced him unfit to ocments, for none of us are faultless—all of us cupy the high office which for so great a time he will admit. When admitted, they, perhaps, adorned. With all these brilliant examples behad the necessary attainments, both in learning fore us, and knowing as we all do, the gross inand morals, but belonging to a fallen and fall- justice to which our profession, as a proing race, the temptations of the flesh overcame fession, has been subjected, we can only move them and they fell! Peter and Judas, when onward in the thorny path before us with they first attained the companionship of the a firm tread, undismayed and unchecked Savior of mankind, were thought to be worthy, by the howlings of prejudice and the shafts but the weaknesses of poor human nature they of passion. To the unthinking, ignorant and were unable to shake off ; there moral structure howling multitude, if their ravings are noticed being weak, in an evil moment the one denied at all, we proudly point to the names that decoHim and the other betrayed Him.

I do not

rate the sky of our profession and crowd its mention these instances as a justification, but ranks in the daily pursuit of their high vocasimply to show that the paths trodden by poor tion, and to the illustrious men who wear the fallen humanity are “ devious and winding,” judicial ermine of the various States and of the and that it requires the utmost caution and the Supreme Court of the United States which most constant watchfulness to keep all things for more than a century “has blazed the way straight. Hence, while we are forced to admit through the unexplored forest of a Republican that there are bad and reckless and unprin form of government" — have preserved the jucipled men in our profession, yet I most em dicial ermine from soil or corruption, and comphatically deny that in its ranks immorality manded the respect and admiration of manmore frequently exists than in the other various kind. We must look above, and beyond these avocations of life. The science of the law is a base reflections. physical science, and has its foundations in “For 'tis a base, ignoble mind, reasons and justice. Its ethical standard to. That mounts no higher than a bird can soar.” day is as elevated and pure as in any previous

The times in which we live are crowded with period of the world's history. The law has great and ever-varying events, and it demands often been made an engine of oppression, and all the bold energies of fearless manhood to the great and learned Coke and the justly meet and control them. abused and notorious Jeffrey are shining ex This Alabama of yours, in which as one of amples of the methods pursued in their days. her sons I feel so much pride, in all the eleThe most illustrious example of judicial blind- ments which constitute a great and noble, State ness and cruelty is to be found in the career of 1-in fertility of soil, in salubrity of climate,

« AnteriorContinuar »