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in beauty of scenery, in mineral wealth and nous, which is the only unfortunate possibility agricultural resources, in manhood and woman we can see in the system. It remains to be hood-stands proudly pre-eminent in the sis seen how many States will follow the statute terhood of American States. And it is with which has been adopted by Indiana. pride and pleasure that I can say that your bar, as a bar, for all the elements which adorn

There has been so much opportunity within and dignify professional life — for learning, in the last year to discuss the principles of the tegrity, devotion to duty, fearless manhood and Monroe doctrine, and it is a subject which deunflinching moral worth, occupies an envious mands careful consideration and calm judgment position-second to none, not even of the older from lawyers of this country, and which can States of the American Union. Your judiciary be only properly carried out by a complete and have ever been pure, elevating and ennobling, perfect acquaintance with the principles which setting worthy examples for the younger mem- it involves, that we publish almost in entirety bers of the profession. Your Supreme Court the article in the Nation of Oct. 3.1st on the has been adorned and dignified by many of the Monroe Doctrine. The article is as follows: most eminent jurists who ever sat upon the But being now requested to cover the whole American Bench, and to-day, be it said to her ground, we answer frankly to the first question, credit, the judicial utterances and opinions of that, in our opinion, we should 'remonstrate or the Supreme Court of Alabama are sought for interfere in the proceedings taken by powers with avidity by the members of the profession other than American with American nations on. throughout the entire South. This is the posi- this continent other than our own,' in, all, cases. tion of your judiciary to-day, and while it per- arising under the Monroe doctrine ? What is haps would not be proper to say more than this the Monroe doctrine? Here it is, taken textually, of your living judiciary, I cannot refrain from from President Monroe's message: referring to few of the great names of the “We owe it, therefore, to candor and to the past, whose illustrious example is worthy of all amicable relations existing between the United imitation, and whose works and deeds have States and those powers, to declare that we covered them with a renown which will live as should consider any attempt on their part to long as learning is appreciated and virtue extend their system to any portion of this hemi

What Alabama lawyer does not look sphere as dangerous to our peace and safety. with admiration upon the names of Abner S. With the existing colonies or dependencies, of Liscomb, who for fifteen years was a judge of any European power, we have not interfered your Supreme Court, eleven years Chief Justice, and shall not interfere. But with the governand afterwards, after his removal to Texas, was ments who have declared their independence elevated to the Supreme bench of that State and maintained it, and whose independence we of Collier and Ormond and Goldthwaite ; of have, on great consideration and on just princiDargan and Clay and Hitchcock, of Chilton ples, acknowledged, we could not view any inand Peck and Stone, and others too numerous terposition for the purpose of oppressing them, to mention? These names, gentlemen, shed a or controlling in any other manner their des: lustre over your State, and give a dignity to tiny, by any European power, in any other your bar which not even the tooth of time can light than as the manifestation of an unfriendly eradicate.

disposition towards the United States. * * *

But in regard to these continents, circumWe publish in this issue of the Law JOUR- stances are eminently and conspicuously differ

a letter from John A. Finch, Esq., ent. It is impossible that the allied powers of Indianapolis, on special verdicts under a should extend their political system to any pornew statute in Indiana. The value of such tion of either continent without endangering practice, it is evident, is great where prejudice our peace and happiness; nor can any one bemay enter into the decision of a jury and the lieve that our southern brethren, if left to practice is rather simple, though we can appre-themselves, would adopt it of their own accord. ciate that the interrogatories by counsel to the It is equally impossible, therefore, that we court for its consideration might be multitudi- I should behold such interposition, in any form,

NAL

with indifference.' (Message of December 2, to all judgment on the affair. A person who 1823.)

writes on it as Senator Lodge does in the magaConsequently, if any European power should

zines, or as the young men in the Tribune seek to set up or impose on the people of any office do, with hardly any knowledge of these South American state, by force of arms, any facts, is as ridiculous as your lawyer would be government or form of government which the if, the minute you employed him on a difficult people did not demand or were opposed to, or

real estate litigation, and before he had looked should seek to 'oppress them or control their at your papers and proofs, he began to make it destiny" in any manner, we should hold it 10 hot for your adversary in the newspapers by be the duty of our government to repel by as calling him a notorious robber and defrauder much force as might be necessary any such at- of widows. All this sound and fury, besides tempt. The invasion of Mexico by the French making us a ludicrous spectacle as a nation, sewas an attempt of this order, and Mr. Seward riously embarrasses our officials who are charged acted properly in giving them peremptory notice with the duty of deciding what part we shall to quit as soon as we had forces available to com take in foreign disputes, and who have all the pel compliance. This is an answer to ques. available and most correct information about it tions I and 2.

on their tables. Whatever their faults and The third question, apropos of the Venezue- shortcomings, they are our chosen and aclan trouble, requires more extended treatment. credited representatives, and the business of England is already a neighbor of Venezuela, deriding them because they do not take a hand and holds conterminous territory by a title in other people's quarrels should begin only which nobody denies. The frontier runs for a

after they have publicly revealed their folly or long distance through a tropical wilderness. stupidity. There have, for this reason, been disputes of As to our duty in such quarrels, neither the long standing over the exact line, as there are Monroe doctrine nor any other doctrine known between nearly all Spanish-American Suates. among civilized men gives us the right to proThey are aggravated in this case by the fact tect the South American States against the that this wilderness is a gold country. All this natural consequences of their own insolence raises the strong probability either that neither and folly. If they quarrel with a bigger side is quite right, or that the truth of the mat- power, rob its subjects, or assault and insult its ter is hard to get at.

The Venezuelans are no representatives, they must take the consemore moral than the British, and no less greedy, quences, which are usually a fine, with some and if we acknowledge the right of Great sort of security till it is paid. There are Britain to hold territory on this continent, we eighteen Spanish-American States, with a popumust acknowledge her right to protect that ter- | lation of about 50,000,000.

Not one of them ritory against invasion or appropriation. We has ever exhibited the slightest desire to accept cannot ask her to consider herself in the

our influence or control except when it got

into wrong because she is the more powerful, or a row with some European power. They are confess that weakness, any more than might independent sovereign States, de facto and de makes right, because we should never think of jure. We are in no way responsible for them, applying such a rule to ourselves. We have al-aud our policy towards them has always been ways, in all disputes with these little South marked by a little dislike and a good deal of American States, imposed on them our own contempt, so that the notion that we are inview of the justice of the case. Witness our jured or insulted if anybody makes them pay treatment of Chili in 1892.

their debts or indemnify people whom they The dispute is in part historical, in part

have robbed or outraged, is worthy only of topographical ; or, in other words, one to be schoolboys who want to see a naval battle or settled by lawyers and surveyors, not by big read about it. guns. It has been so treated by all our diplo. Whether Great Britain is proposing or "trymatists, and is so treated still, and the ascer- ing wrongfully to take and hold a large share of tainment of the facts is an essential preliminary Venezuelan territory and hold it permanently

men.

as England's own” is something which we do shop, who, it is claimed, was negligent and not know, and we do not know anybody in the caused the plaintiff to sustain a broken leg, was United States who does know. There cannot a Mr. Hemmingway. In the decision, Judge be less trustworthy witnesses on this subject Smith says: than the Jingoes and the young newspaper men.

Gentlemen, I have taken some pains to exNot only do they not know the truth, but they amine this question. There is a case where a do not want to know it, if it is favorable to foreman had charge of removing a hatchway. England. And we shall never make beneficent He had the sole right to employ and discharge or rational contributions to international law

The hatch way could be safely removed until this presumption against England gets out only by two or three persons acting together. of the heads of people who write or think on The foreman ordered one person to remove the this class of questions. To a great many hatchway and although he was foreman in Americans "abroad” or “foreign powers" al- charge of the work his act was held to be the ways means England, and'England is a monster act of a fellow servant. who is always trying to seize more territory.

There is another case where there had been When these publicists want to annex something, some blasting of rocks, and a foreman was in they always declare that England wants it too, charge of the blasting, and one of the fuses did and sit down and wait for the appearance of

not go off, and the foreman directed his men to the British fleet. This is funny, but it disturbs proceed, nevertheless to work near where this the judgment, and makes a great deal of our

fuse was.

Afterwards the fuse did go off and talk on international affairs sound irrational. injured the parties. Although they were workEngland is very much like other nations except ing directly under the charge of the foreman in having a larger fleet. This superstition and he had the sole charge of the work, it was causes, too, a widespread but comic popular held that where the place was rendered unsafe belief that anybody who opposes any bit of ag- | by the negligent act of a fellow servant, that gression or fanfaronade on our part, is either in

that was not the act of the master for which he the pay of Great Britain or is secretly working could be held responsible; and it was held that

the foreman was a fellow servant. for her interest and aggrandizement, and he is, therefore, not listened to. This, together with

There is another case where a foreman who the boyish eagerness for a big fighting force, had charge of men and of placing them and like a fleet, that will not entail risk or incon- directing them, had put a man under an emvenience to people on shore, is rapidly causing

bankment to work, which embankment was unus the loss of the great place in the international safe, and which the foreman had reason to

believe was unsafe because it had been made forum which we occupied in the beginning of the century, and which the founders of the gov- it was held that notwithstanding the act of the

unsafe by the acts of the foreman himself; and ernment thought we would solidify and im

foreman, and his having charge of the location prove as we grew stronger.

IVe need more

of the men, and its being the duty of the master men in public life, in the press, who seek national greatness in the sphere of mind and law, the act of the master, but was the act of a fellow

to furnish a safe place to work, his act was not and resist the popular longing for more bloody

servant. The later cases have all established corpses, desolated towns and the general “hell

the rule that it matters not what may be the of death and destruction,” called war.

position of the servant, whether high or low,

whether a foreman or a mere day laborer, that At the circuit term of the Supreme Court in his act is not to be judged by the position as in Ithaca, Judge Walter Smith in granting a representing the master or representing a conon-suit recently made the following decision servant; but whether he be the master or a which is on the face of it most important. The co-servant, whether he be the alter ego of the action was a suit for damages brought by one master or a co-servant, is to be determined Ludlow against the Groton Bridge Company. purely by the acts done. So far as furnishing The plaintiff was injured while in the employ safe apparatus is concerned, the act of the of the bridge company.

The foreman of the l humblest mechanic who furnishes the apparatus

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is the act of the master. In the Cortland case, fendant was given property by the prosecuting
the engine bad become unsafe, and it required witness to deliver at the latter's house, and
to be repaired and a mechanic was employed to defendant sold it, he might be convicted of
repair it; and his negligence is held there to be larceny.
the negligence of the master because it was in

“ The defendant was convicted of petit larthe performance of a duty which the masters

ceny. The evidence tended to show that the owed, and that duty was to furnish safe machin- defendant was employed by one Wigginton to ery and a safe place to work.

carry him from his home by conveyance to the It has become settled, however, now, that if depot, where he intended to board a train. a master has furnished competent servants and Arriving at the depot, Wigginton left with the safe machinery, that the use of that machinery, defendant a quilt, to be returned to his home, however negligent, and by whomsoever used, which the defendant agreed to do. The deis not attributable to the master. I think the fendant carried the quilt to a store and traded same case practically establishes that.

it off for an amount much less than its value. whether it does or not, there are cases, and

The defendant requested the court to charge many cases, which hold that very conclusively. the jury that: “If the jury believe from the In this case the master had furnished two cars

evidence that the witness Wigginton delivered two different kinds of cars or trucks; the the quilt to the defendant, to be conveyed high truck and the low truck. It does not back to Wigginton's home, and that the quilt appear why one was used in preference to the

was received by the defendant for that purpose, other. He had also furnished the proper and, after so receiving the quilt, the defendant stakes or side-bars to those trucks, but they

conceived the intent and purpose to wrongwere not used.

It is impossible that a master fully dispose of it, he is not guilty as charged.' himself can control the detail work of any one of the difficulties in distinguishing becorporation or any private business of any size. This injury arose from negligence which fact that in larceny there must be a trespass,

tween larceny and embezzlement consists in the was connected with the detail work, and I am

and a trespass is a wrong to the possession. frank to say that while this morning I was in

A bare charge of or custody of goods which besome doubt, from the examination I have made, my nd has been removed, and I long to another does not divest the possession

of the owner. It has, therefore, been held that think there is no possible question, and that

a servant or other person, having the mere custhis case cannot be sustained even if Mr. Hemmingway was negligent, which we will assume tody of goods, may commit larceny of them (2

Bish. Cr. Law, SS 823, 824, note; 2 East P. C., for the argument, for these cases hold that his negligence is not the negligence of the master, 565; 1 Brick. Dig., p. 482, § 487; 12 Am. &

Eng. Enc. Law. 768). In Oxford v. State (33 but is purely the negligence of a co-servant. This is one of those unfortunate accidents

Ala. 416, 418) it is said: 'It is a clear rule of which no one can be made to pay for, at least law that, where a party has only the bare charge no employer. Whatever liability there may be and custody of the goods of another, the legal on the part of Mr. Hemmingway to this man I possession remains in the owner; and the party do not discuss, but so far as the liability of this in custody may be guilty of trespass and larceny defendant to this plaintiff, I can find no such in fraudulently converting the same to his own liability in the facts here proven. I assume

use.' In Rosc. Cr. Ev., § 646, it is said: “In that there is no proof in this case whatever to order to render the offense larceny, where there go to the jury upon the question of the com

is an appropriation by a servant, who is already petency of Mr. Hemmingway. I cannot see

in possession, it must appear that the goods any proof that will make an issuable fact, and were at the time in the constructive possession the motion for non-suit must, therefore, be of the master. They will be considered in the granted.

constructive possession of the master if they

have been once in the possession of the master, The Supreme Court of Alabama in Holbrook and have been delivered by the master to the v. State, 18 S. R. 109, held that where the de servant. But if the goods or money have come

to the possession of the servant from a third of 1880, for the purpose of reviewing the action of person, ind have never been in the hands of the the above defendants in assessing the relator for all master, they will not be considered to have been sums invested in its business in this State in the in the constructive possession of the master, for

years 1893 and 1894, a separate writ having issued

for each assessment. The defendants were commisthe purposes of larceny.

The rule

sioners of taxes and composed the Board of Taxes has never been doubted,' &c. In the case of and Issessments of the city and county of New Siate v. Washington (17 South. 546) we held York, and they maile an assessment in each of the that the statute (Code, $ 3795) creating and de- above sears against the relator, which is a foreign, fining embezzlement, did not, and was not in corporation having money invested in this state, tended to, convert that which was larceny at such assessment being based upon the provisions of common law into statutory embezzlement. The the act, chapter 37 of the Laws of 1855, one section general rule, that to constitute larceny the of which reads as follows: All persons and assofelonious intent must exist at the time of the ciations doing business in the State of New York * taking and carrying away,' does not militate

as merchants, bankers or otherwise, either as prinagainst the rule of constructive possession by and not residents of this state, shall be assessed

cipals or partners, whether special or otherwise, the owner, the defendant having but the barel and tired on all sums invested in any manner in custody, received from the owner, and, having said business the same as if they were residents of such bare custody, fraudulently converts the this State, and said taxes shall be collected from the money or goods. We are of opinion, under property of the firms, persons or associations to the facts of the case, that the court did not err which they severally belong." The relator disputes in refusing the charge requested.”

the validity of each assessment. The defendants,

in 1993, assessed the relator at a certain sum, after THE PEOPLE OF THE STATE OF New York ex rel. deducting that portion of its indebtedness which

The JECKER-JONES--JEWELL Milling Com- they decided bad been incurred in this State in the PANY relator and appellant v. EDWARD P. I purchase of property herein, and in 1894 they made BARKER, JOHN WIALEN and JOSEPI BLUMEN

an assessment without deducting any of the indebtTHAL, as Commissioners of Taxes and Assess

edness of the relator whatever. The relator claims ments of the City of New York, respondents, that the defendants, in 1893, did not deduct all its

indebtedness which had been incurred in the purAppeal from orders entered at General Term,

chase of property within this State, and that if they affirming the action of the Commissioners of Taxes and Assessments in assessing the personal property made against it here.

had done so, there would have been no assessment

It also claims that the assessof the relator for the years 1893 and 1894.

ment of 1894, was void because of the refusal of Where there is some evidence to support the conclusion the defendants to make any deduction whatever for reached by the Commissioners of Taxes and Assess

any

indebtedness. The reason for the difference in ments, this court will not interfere.

the two assessments is based by the defendants upon It was made to appear by the record in the proceeding brought for 1893 that the company had assets at its

the decision of this court in People ex rel. Thurberhome office enough to permit a deduction of all in- Whyland Co. v. Barker et al., reported in 141 V. Y. debtedness asserted, and no indebtedness way claimed 118. for the purchase of property in this State.

That case was decided here subsequent to the ing of the words in chapter 37 of the Law's of 1855,

assessment of 1893 and prior to that of 1894. The “in any manner invested in business in this State,”

defendants were of opinion that the decision in refers to property paid for and in posses sion of the persons or associations doing business in question covered this case and obliged them to this State or to such increase beyond any indebtedness assess the relator without making any deduction for incurred as may be established by competent proof any in lebtedness whatever even though such inupon the application to the Tax Commissioners.

debtedness or some portion thereof were incurred The Peoplo er rel. The Thurber-Whıyland Company against in the purchase of the assets in this State for which

the Tax Commissioners (page 11 N. Y. Reports, page 118) explained and distinguished.

the assessment of 1894 was made.

Prior to the time for finally making the assessBowers & Sands (John M. Bowers of counsel) for

ment for each of the two years 1893 and 1894 rethe relator and appellant; Francis M. Scott (David

spectively, the relator rendered to the defendants a J. Dean and James M. Ward of counsel) for the re

verified written statement of the condition of the spondents.

company is of the second Monday of January in PECKIAM, J.-. The above relator obtained two each of such years. The statement of 1893 shows writs of certioruri under chapter 269 of the Laws that the total gross assets in all parts of the world

The mean

the

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