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cover from the customer for the loss sustained DEATH OF JUDGE THEODORE MILLERthrough the negligence of the latter. Possibly

Minutes of Court of Appeals. therefore, it was to prevent circuity of action that the banker was allowed to set up the negligence of

THE death of Theodore Miller, late one of the his customer as a defense in an action by the customer to recover the amount. Or, as was said

more of the inevitable end which awaits us all, and by Cleasby, B., in delivering the judgment of the imposes the duty of manifesting that respect for his Court of Exchequer in Halifax Union v. Wheel- memory which his long service with us deserves. wright (L. R. 10 Ex. p. 192), the conclusion in

He died on the 18th day of August last, during our Young v. Grote “is perhaps only an application of

summer recess, and to most of us unexpectedly and one of those general principles which do not belong without warning: and we are left to that rememto the municipal law of any particular country, but brance of him which naturally and surely flows from which we can not help giving effect to in the ad

his constant love for his brethren and his patient ministration of justice — namely, that a man

and faithful discharge of official duty. not take advantage of his own wrong, a man can

He was elected to a seat in this court November 7, not complain of the consequence of his own default | 1874, and began his services with us at the beginagainst a person who was misled by that default ning of the next year. He came to his new work without any fault of his own.” The matter may

with a valuable experience behind him, for he had also be put upon the ground that, whenever one of

been a district attorney for his county when the two innocent parties must suffer by the act of a third

anti-rent troubles tested the nerve and courage of

the oficers of the law; then, for many years, a jusperson, he who has enabled such third person to occasion the loss must sustain it. (Lickbarrow v.

tice of the Supreme Court, and for some time preMason, 2 T. R., p 70; cf. Arnold v. Cheque Bank, 1

siding judge of the General Term, third department. C. P. D., p. 587).

He had filled these positions with an ability and inIn Baxendale v. Bennett, 3 Q. B. D. 525. Lord

dustry and learning which easily led to his election Esher, then Brett, L. J., said that the observations

to the court of last resort. Upon our bench he demade by the House of Lords in the case of Bank of veloped the same vigorous and useful qualities. His Ireland v. Trustees of Evans' Charities, supra, had

chief characteristic, and indeed the one to which his taken Young v. Grote, as an authority, but, as was

success in life was largely due, was an untiring inpointed out by Charles J., in the present case (38 dustry. Few men possessed in greater degree the Solicitors' Journal 619), the remark seems to be capacity for patient and laborious study, for delib

Lord Cransworth, indeed, expressly said erative and exhaustive investigation. His opinions that the case appeared to have bee well ecided. exhibited a familiarity with all that had been deIn the view of Charles J., the case above cited cided bearing upon the case before him, and a capashowed that a person who signs a negotiable instru-city for supplying it logically and with discriminament, with the intention that it shall be delivered to tion to the problem awaiting solution. As a consea series of holders, does incur a duty to those per- quence, he was firm and courageous in his convicsons not to be guilty of negligence with reference to tions, adhering to them with some persistence, the form of the instrument. But even if this is so, defending them warmly and yet open to all just Lord Esher was of opinion that, under circumstances arguments, and ready to yield when satisfied that such as those in Young v. Grote, and in the present duty required it. case, the loss is due, not to the negligence, but to Without seeking to recall the important cases in the subsequent crime of the person who fraudulently which he framed the judgment of the court and fills up or alters the instrument, and he seems to reasoned out its conclusions, it is due to him to say have thought that the doctrine of implied authority that his brethren, as they look back upon his opinafforded a safer ground for supporting the decision ions in the progress of their own duty, have gained in Young v. Grote. This, however, was not the an added respect for the sound judgment and careground on which that case was decided, and Lord | ful study which characterized his judicial work. Esher intimated that it ought no longer to be cited | Near the close of his official career, his health as an authority. At the same time the decision somewhat failed and his sight grew dim, but he itself has been received with general approval, and, surmounted all difficulties with his characteristic if the principle underlying it is not of general ap- courage and patience, and with such success that plication, it is necessary to discover some special those who read his opinions are little likely to susground for limiting it to the case of banker and pect how much of energy and unflinching will went customer, or rather of principal and agent. This is to their preparation. He retired from the bench at the course suggested by the judgment of Rigby, the close of 1886, under the constitutional provision L. J.-- Solicitors' Journal.

which somewhat abridged his term; but at his



When persons

home at lludson, surrounded by his family and them on the books of the corporation, and who parfriends, be still followed the action of the court, re- ticipate actively in the management of such cortaining his interest in its labors, and added to the poration, are so far stockholders as to be privies to rest and quiet of his retirement a constant thought the judgment, and estopped to attack it in a colof the burdens no longer his.

lateral proceeding. (National Foundry & Pipe The end came peacefully at last, and he went to Works v. Oconto Water Co., U. S. D. C. [Wis.), 68 his reward. With respect for his successful labors, Fed. Rep. 1006.) for the unbroken friendship of so many years, for MECHANICS

WASHINGTON STATUTE.his long and able and honorable judicial career, we

The lien law of Washington (1 Hill's Ann. Code, order this tribute to his memory to be entered upon $ 1663) provides that every person performing labor the records of the court, and that a copy be sent to

or furnishing materials for the construction of any his surviving family.

building, railroad, or other structure has a lien upon the same for such labor or materials, and

(section 1665) that the land upon which any buildAbstracts of Recent Decisions.

ing, improvement, or structure is constructed, or

the interest therein of the person who caused such DEED TO WIFE-CONSIDERATION. live together for many years on the mistaken belief building, etc., to be constructed, shall be subject to that they are husband and wife, a deed from the

the lien: Held, following the decisions of the man to the woman for the consideration of love and Supreme Court of Wilshington, that a material-man

who furnishes materials for the construction of a affection is not void for fraud or undue influence.

street railway can obtain no lien upon the structure (Edwards v. Thomas (Penn]., 32 Atl. Rep. 580.)

in the streets of a city. (Pacific Rolling Mills Co. FEDERAL OFFENSE-INTERSTATE COMMERCE LAW.

v. James Street Const. Co., U, S. C. C. of App., 68 -The act of February 4, 1887, forbidding certain Fed. Rep. 966.) preferences, means preferences in transportation of

MINES AND MINING.—The presumptions are all in persons or property. An indictment alleging only favor of the validity of a placer patent as against a the issue of a free written pass, but not alleging any lode claim located subsequent to its issuance upon use of the pass, or of transportation under it, is

part of the same ground, and, where the patentee fatally defective in substance, and therefore not a

files an adverse claim against the application for sufficient basis for removal under section 1014, Rev.

patent to the lode, and brings an action in support St. (In re Huntington U. S. D. C. [N. Y.), 68 Fed. thereof, the burden is upon the lode claimants to Rep. 881.)

overcome these presumptions and to show by clear JUDGMENTS PRIORITY OVER MORTGAGES. — Un- and convincing proofs that the vein on which the der the North Carolina Code, which provides, in lode claim was located, was a known vein at the section 685, that conveyances by corporations, time of the application for the placer patent. (Monwhether absolute or by way of mortgage, shall be tana Cent. Ry. Co. v. Migeon, U. S. C. C. [Mont.), void as to existing creditors and torts previously 68 Fed. Rep. 811.) committed, provided such creditors or persons in MORTGAGE- FORECLOSURE—CONCLUSIVENESS OF jured shall commence suit within sixty days after

Where an administrator was regularly the registration of the deed; and, in section 1255, before the court in a foreclosure suit, his successors that mortgages by corporations shall not exempt | cannot, in ejectment by him against the purchaser their property from executions on judgments for at the foreclosure sale, claim that the foreclosure labor or materials furnished, or for torts by which I decree is invalid because the administrator failed to any person is killed or person or property injured— answer, and no decree pro confesso was taken against a judgment against a railroad company for a tort him. (Hunter v. Shelby Iron Co. (A la.), 18 South. causing injury to the person, is superior to a mort- Rep. 107.) gage executed after the tort was committed, though


Where an hotel is the action was not brought within sixty days from

leased for a certain fixed rental, and the contract the registration of the mortgage. (Boston Safe-De

further provides that the lessee shall give his undiposit and Trust Co. v. Hudson, (U. S. C. C. App. ], vided attention to the business and that the lessor 68 Fed. Rep. 758).

shall have free access to the premises, and that in JUDGMENTS

addition to the rent, he shall have a share of the Persons who, at the time of the commencement of net profits, and that a person appointed by him a suit against a corporation and the rendition of shall keep the books and act as the cashier, it conjudgment therein, hold, as collateral security, stock stitutes a partnership, and not a lease. (Merrall v. in such corporation, which has been transferred to | Dobbins, Penn., 32 Atl. Rep. 578.)





So vital a change in the form of special verdicts.

can not but attract the attention of the profession. SPECIAL VERDICT IN INDIANA UNDER A at large, and if it should prove satisfactory, other NEW STATUTE.

States may be inclined to profit by the example. (A CORRECTION.)

Until this statute was enacted instructions of the To the Editor of the Albany Law Journal :

Court were not allowed to be taken by the jury to The General Assembly of the State of Indiana, at

the jury room. the session of 1895, made a radical change of the


INDIANAPOLIS, Nov. 4, 1895. law as to special verdicts. This law has come before the courts for the first time at the Fall sittings.

[The above is published as correction of letter of It is as follows :

Mr. Finch published in issue of Nov. 2. Several “ Tbut in all cases tried by the jury, the court

serious errors were in that letter.] shall, at the request of either party, in writing, made before the introduction of any evidence, direct such jury to return a special verdict upon

New Boolis and New Editions. any or all the issues of such case.

Such special verdict shall be prepared by the counsel on either

WALKER'S AMERICAN Law, by Timothy Walker, side of such cause and submitted to the court, and LL. 1)., late professor of law in Cincinnati college. be subject to change and modifications of the court. Tenth edition, revised by Clement Bates of the Ohio The same shall be in the form of interrogatories so

Bar, framed that the jury will be required to find one In this, the tenth edition of this celebrated work, single fact in answering each of such interrogato. it is apparant that only a few new sections have been ries; the jury on retiring, shall take all the plead- added to the text, and some minor alterations and ings in the case, including the instructions of the additions appear throughout the work. Since the court, is in writing, and the interrogatories as ap- last edition, in 1887, it is quite apparent that conproved by the court, and shall answer each of the siderable additions to the notes had to be made, as interrogatories submitted to them."

is the case, and it was a difficult performance on the Under our former practice the courts were re part of the author to keep the volume within the quired to order the jury to render a special verdict number of pages which it now contains. This has at the request of either party. If no special ver been accomplished by rearrangement throughout, dict was required the courts were required to order All the citations of importance have been added to the jury to answer special interrogatories on request date, thoughi, as the author properly states, they of either party. If the general verdict was not in have been confined to general principles with such harmony with the answers to the interrogatories, brief notice of any striking applications or theories judgment might be rendered upon the answers to of the last few years that do not savor of particular. the interrogatories and against the party in whose izing. The

scope of the work is practically the favor the general verdict was rendered.

same as in the former edition, and the book is This law repeals the law allowing special inter- divided into seven parts with various lectures for rogatories to be propounded, and the only form we each part. The first is on Preliminary Consideranow have is the general verdict or special verdict tions, the second is on Constitutional Law, the third prepared according to the above statute. Each of on the Law of Persons, the fourth on the Law of the Superior Courts and the Circuit Court of this Property, the fifth on the Law of Crimes, the sixth county has had special verdicts rendered under this on the Law of Procedure, and the seventh is on Instatute, and the change from the old statute is ternational Law. The work is well bound, contains thought to be very satisfactory, especially in cases a copious index perfectly adequate to such a work, where a jury might be more affected by sympathy and comprises 900 pages. than by the facts proved.

Published by Little, Brown & Co., Boston, Mass. The practice under this new statute is, after proper request by either party, for counsel on each HAWAIIAN REPORTS, volume IX. side to prepare a special verdict in the form of in This volume of the reports is published in Honoterrogatories. The court takes these forms as pre- lulu, and contains decisions for the years 1893–94. pared and has a new draft made embodying any. It is impossible to give all the cases decided, or in thing pertinent in either form submitted and fact to pick out any which one would consider of adding any other interrogatory that seems to be especial interest, because there are many which we necessary for a finding upon all the facts. This is would like to comment upon were we not restrained submitted to the jury as coming from the Court, by the small space of this review. The volume conand they have no intimation as to which side pre- cludes with a copy of the rules of the Circuit Courts, pared any particular interrogatory. The conclusion of the Supreme Court, and of the Constitution of the of the verdict is in the usual form, that if, upon the Republic of Hawaii. It also contains a memoriam above findings, the law is with the plaintiff, then, of the resolutions adopted on the death of Charles we find for the plaintiff and assess his damages Lunt Carter, who was very highly esteemed by at

dollars ; and if the law is for the defend- members of the Bar. ant, we find for the defendant.

Published by Robert Grieve, Honolulu,


the year.

would-be-statesmen at the capitol in Albany The Albany Law Journal.

not only to regard the opinion of some of their

friends, but to take active measures to aid in ALBANY, NOVEMBER 16, 1895.

crushing out this yearly disease of surplusage

of statutory enactments. The article we have Current Lopics.

referred to is as follows: [All communications intended for the Editor should be ad

"It has recently been forcibly remarked that dressed simply to the Editor of THE ALBANY LAW JOURNAL, All letters relating to advertisements, subscriptions, or other “it is a public scandal that in our State the business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

Legislature has made misdemeanors by the E publish in this issue of the Law Journal | hundreds out of facts perfectly innocent in

part of the address of the Hon. James C. themselves, and often, if not generally, done in Carter before the American Bar Association, and complete ignorance of the legal prohibition. will complete the article in the next issue. Probably no active business man, however Like all the articles from his pen it is replete painstaking and scrupulous, has reached middle with knowledge and gives a careful review of life in this State without rendering himself the legislation of the different States during technically liable to criminal prosecution and

It also contains a large number of to imprisonment under several of these statsuggestions which will be of more than passing utes.'" interest to the members of the legal profession. Occasionally at a mass meeting or other unWe notice with pleasure that Mr. Carter has official assemblage a resolution is offered, not very properly suggested that certain steps that any definite action be taken, but merely should be taken to promote uniformity of State expressing the sentiment of the body upon laws. A number of the leading periodicals some question before it. It would seem that and many of the most influential lawyers have legislatures sometimes create crimes with no recently enthusiastically supported the idea of more serious end in view than expressing “the having many of the laws of the different States sense of the meeting." This practice is objecso amended as to conform to each other and to tionable upon many grounds, two of which may the decisions of the United States courts. It be quite specifically formulated. First. It will indeed be an achievement for any body of tends to make the average citizen indifferent men to bring about such a result, and it is to, and even contemptuous of all criminal law, becoming more and more recognized each day if the statute book create large numbers of that such a reform is essentially necessary. nominal crimes for many of which he knows no Perhaps the most noticeable feature of Mr. prosecution would ever be attempted-inherCarter's address is the thoroughness with which ently innocent and vicious acts being indishe reviews State legislation. It is really sad to criminately ranked together. It must tend to reflect that so many unnecessary and improper increase the temptations of weak persons, and statutes are yearly added in every State.

those of naturally vicious inclinations, to get In perfect accord with what we have written the impression that the penal policy of the on the subject of too much legislation is an ar

State consists largely of bark with very little ticle in the New York Law Journal on “ Uni- bite. versal Criminality ” which, at least from one Second. If the community exist in a State phase of the subject, gives an idea of the vast of universal criminality, it must necessarily enamount of unimportant and useless statutes tail large discretionary power upon public which are yearly passed with no apparent ob- prosecutors as to which statutes shall be enject. With the large increase of the Legisla- | forced and which crimes ignored. This might ture this year it will necessarily mean a greater very naturally lead to abuses and favoritism, a number of those anxious to introduce measures State's attorney excusing his supineness as to and forward them to success. We must, there acts of real moral obliquity, committed by perfore, be prepared to see an increase in the sons he wishes to screen, on the plea that duty number of laws passed by the next Legislature. requires his energies to be expended in supIt would not be unprofitable for some of the pressing other evils which in his judgment are

Vol. 52 — No. 20.

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more crying. The difficulty of enforcing penal civil penalty or disqualification could also be
laws against acts which are not essentially devised, and it is to be hoped that the thought-
vicious, when public sentiment is not united, less accumulation of nominal misdemeanors
was probably never more vividly realized than will be checked.
at the present time. Of course the principle
cannot be laid down universally that no act not

The Court of Appeals, in the case of Casola involving intrinsic turpitude shall be pro

v. Vasquez, 147 N. Y. 258, have held that

, nounced a crime. But such should at least be though a statute of another State, under which the general rule, and in no case should penal an insolvent limited partnership was organized, laws be passed without a rational expectation declared void a transfer of its goods with inthat they can be enforced.

tent to give preferences, such a transfer, when With regard to many acts involving no ques- made in payment of a bona fide indebtedness, tion of abstract morality but which public ex

would not authorize an attachment under secpediency requires to be performed or refrained tion 636, subdivision 2, of the Code of Civil from, the proper course is, if the effect of the Procedure, on the ground that defendants had violation of the law be essentially civil, to disposed of or secreted their property with inmake the penalty civil also, and of such practent to defraud their creditors. In writing the tical character as to suppress the evil aimed opinion of the court, Chief Justice Andrews at in the particular case. The granting of ac- says: tual pecuniary penalties, to be sued for by the The application for the warrant of attachaggrieved or damaged person, is measurably ef ment was based on the ground that the defendficacious in some classes of cases, and could be ants bad assigned, disposed of, or secreted made more so if the technical strictness in con their property with intent to defraud their struction and procedure in the recovery of pen- creditors.' The affidavits wholly failed to esalties were relaxed. In Swords v. Owens, 34 tablish a case within this clause of the statute, N. Y. Super. Ct. R., 277, it was held, under the They show simply that the firm of Kugelmann act of 1833 prohibiting persons from transact- & Co., in violation of the Maryland statute ing business under fictitious names, and making regulating the formation of limited partnerthe violation thereof an offense punishable by ships, being insolvent, sold and transferred to fine, that contracts made by persons doing busi- | the defendant, Francisco Vasquez, or to the ness under a firm name, when there were no firm of Francisco Vasquez & Sons, effects of actual parties to represent the “ & Co.,” were the firm, in payment of a valid debt owing by unenforcible. Decisions of this character are the firm to Vasquez, or Vasquez & Sons, with not strictly logical. From one point of view it intent to give a preference to such creditors is strongly argued that the parties may of or firm. The bona fides of the debt is not course be prosecuted penally for the misde questioned, nor is it claimed that the effects meanor, but that the contract and civil rights transferred exceeded in value the amount thereunder cannot be impaired. What the civil of the debt. The Maryland statute detribunal does in such a case is to apply in a clares (sec. 13, 73,

of the Public broad spirit a familiar equitable maxim, holding General Laws of Maryland) that a tranfer that a litigant may not come into any court made by a limited partnership, under such cirwithout clean hands; that if he has disobeyed cumstances, “shall be void as against the credian express mandate of the law as to the con tors of such partnership.” Vasquez, having duct of his business, the instrumentalities of the been at the time of the transfer a special partner law shall not be at his service in the affairs of | in the firm of Kugelmann & Co., became, as is such business. Express disqualification from claimed, by accepting this transfer, liable, under bringing civil suits, unless a person has com the seventeenth section of the act, as plied with certain statutory provisions for the partner. The sale and transfer, although in public benefit, would in many classes of cases violation of the limited partnership act, did not be much more effective to procure obedience bring the case within the attachment law. It to the law than perfunctory clauses containing was void, but solely by force of the partnership criminal penalties. Other appropriate forms of I statute. It was not a fraud at common law,



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