The Albany Law Journal.

THE

ALBANY, APRIL 28, 1883.

CURRENT TOPICS.

HE bill pending in our legislature for the supplying of the city of New York with two additional surrogates seems to have called forth general condemnation from the press. It seems to be regarded as a scheme for creating two unnecessary judicial offices. It is evident that there is something to be said in support of the plea of necessity, and that has been well expressed by a correspondent of the New York Daily Register, as follows: "There are twentyfive surrogates and thirty-five county judges acting as surrogates in this State. The inhabitants of this city constitute a fraction less than one-fourth of the population of the State. The assessed valuation of the property is but a little less than one-half that of the whole State. It is safe to say that * * * the judicial labor of the surrogate of this city is equal to one-third of that of the entire State -the other two-thirds being performed by twenty-four surrogates and thirty-five county judges acting as surrogates. The surrogate of this county is charged with the testate and intestate estates of nearly a million and a quarter of people. The civil jurisdiction over the affairs of the same people in other aspects is performed by two United States Judges with frequent assistance, five Supreme Court Judges and two additional ones to be elected, six Superior Court Judges, six Common Pleas, six Marine, one Arbitration Judge and ten District Court Judges making thirty-eight in all all supplied with clerks, stenographers and assistants, and all crowded with business. From the report of the surrogate's office for 1881 it appears that the average daily labor to be performed by the surrogate individually is as follows: Letters testamentary, of administrations and guardianship 17; decrees settled and signed 19 1-10; motions heard, decided and orders drawn 17; folios of testimony in probate cases 80 8-10. This does not include the examination and decision of contested wills and accountings, the general supervision of the office and the frequent interruption for ex parte matters." It is perfectly apparent that no one man is equal to all the demands.

But a more serious question is whether the bill is constitutional. The Constitution provides, "The county judge shall also be surrogate of his county; but that (art. 6, §15), in counties having a population exceeding forty thousand the Legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be the same as that of the county judge." The constitution also provides (art. 6, § 27), that in counties of more than four hundred thousand population, the Legislature, for the relief of surrogates, may confer their powers and jurisdiction on courts of records. These proVOL. 27-No. 17.

visions seem to point to but a single officer to act as surrogate proper in each county. But it is argued that by article 14, section 12, the Legislature had power to alter or enlarge the jurisdiction or constitution of the surrogate's court in the city of New York, and that this section must be read in connection with section 27 of article 6 of the amended judiciary article above cited. To this is cited International Bank v. Bradley, 19 N. Y. 245, which held that an act changing the title of the Recorder's court of Buffalo, and adding two judges to it, was constitutional. Still the question is a very serious one, whether the new judiciary article is not subversive of the implied power contained in the section construed in that case, and whether section 12 of article 14 must not be read literally, as conferring authority only to change "powers and jurisdiction," preserving the scheme of a court presided over by a single judge, in view of the special scheme for relief afforded by section 27 of article 6.

A portrait of the late Judge John H. Reynolds has been placed by the bar of Albany county in the court-room of the Court of Appeals. It is a good likeness, but not a good work in an artistic view. It represents the Judge as apparently a sufferer from jaundice, whereas he had not a particle of it in his physical or in his mental nature. The portrait is a fitting commemoration of one of the most celebrated lawyers of our State. The name of Reynolds has twice been distinguished in the legal annals of this city. An earlier lawyer of that name, Marcus T. Reynold was one of the most brilliant men who ever adorned the bar of our State. John H. Reynolds achieved the highest success as a lawyer in our ultimate court, with very little elocutionary skill and without a particle of eloquence, by virtue of his logical faculty, his wit, his ready adroitness, a fair amount of learning, an unfailing industry, and the bending of all his energies and talents to the particular case in hand. He had none of the remarkable gifts of genius, but he did his very best with the good talents which God intrusted him with. As a man he was a manly, upright, and charming character, who loved his fellow-men, and was loved by them. The writer of these lines has for Judge Reynolds the warm admiration felt toward him by all who knew him, and has special cause to remember him, for he argued against him the last cause which Judge Reynolds ever argued, -- a cause which he came down from the bench of the Commission of Appeals to argue in the Court of Appeals,

and which was decided only three days before the Judge died, and doubtless without his knowledge. The career of Judge Reynolds should be a constant incentive to young lawyers, for it is a standing assurance that professional success is more a result of work than a matter of gifts.

The case of Coote v. Judd, 48 L. T. Rep. (N. S.), 205, is not very important in respect to the point decided, which was merely as to who was the first publisher of a certain song; but the circumstances

entitle the case to be set down in the Humorous Phases of the Law, and among the curiosities of advertising. One Peter Rumney, the owner, or agent for the owner, of Dr. Ridge's Patent Food, wrote to the firm of T. and G. Shore, requesting them to produce and procure to be publicly sung a song to advertise "Dr. Ridge's Food for Babies, and agreed to pay them 107. for it 51. to be paid on its production, and 57. at the end of fifty performances. T. Shore accordingly engaged Mr. Harry Hunter to write the song. Mr. Hunter wrote the words, and had them set to music by Mr. Walter Redmond, and paid him one guinea therefor. The song was called "The Beautiful Baby; or Dr. Ridge's Food." It was sung for the agreed number of times by the Mohawk Minstrels. It was also engraved in the usual way on metal plates, with a lithographed title-page and colored engraving, and was extensively sold. It is to be presumed that the minstrels in question are Ethiopian, although their name would be more appropriate to Indians. The facts confirm us in our long entertained opinion that in fertility of resources in advertising the Cockney

is not behind the Yankee.

The case of Continental Passenger Railway Company v. Swain, Pennsylvania Supreme Court, January 4, 1883, is not without a grotesque side, although it was no laughing matter to Miss Mary Swain, the plaintiff. The lady entered a street car; the seats were all full, and so were the hand-straps, and she was obliged to stand without support. The horses were tired out and cross, and after repeatedly ob- | jecting to starting up after stopping, finally absolutely refused to move on. In this juncture, the conductor, who was evidently a man of great presence of mind and fertility of resources, borrowed a team of eight mules providentially present in that neighborhood, and hitched them ahead of the recalcitrant car horses, and started them up without warning to the passengers. The mules, naturally delighted at the opportunity of worrying the car horses, when called on to start did so with such suddenness and earnestess as to carry away the horses, car, and passengers, and throw Miss Swain backward, severely injuring her spine. For this a jury gave her $12,000. $2,000 of this was remitted, and the judgment is now affirmed for the balance. The court say it was a fair question of negligence for the jury. We should say so, too. So much for too sudden starts. The plaintiff might well assert, in the customary feminine idiom, that the occurrence gave her a dreadful start." We have sometime ago seen a like decision in the case of a too sudden stop the case of a passenger thrown down by the jar of a ferry boat against the dock. Now we have

the reverse.

66

A recent statistician finds, by comparing a numberof the leading colleges of the United States, that on an average 9.2 per cent of the graduates become doctors of medicine, 21 per cent become ministers,

and 19.7 per cent become lawyers. Not half so many college graduates therefore study medicine as enter the law or the ministry. Another table shows that in the various medical schools of the United States there were in 1880, 9,876 students, as against 5,093 in theological schools and 3,134 in law schools. It would seem to follow that only one-fourth as many doctors as ministers are college graduates, and one-sixth as many as lawyers. But from the reports of the various professional schools to the United States commissioner of education it appears that of those in attendance at professional schools the percentage of students holding degrees in art of science is in medicine, 7.9 per cent, in theology, 26.4 per cent, and in law, 24.1 per cent.

NOTES OF CASES.

TN Roberts v. Ogdensburgh and Lake Champlain R. IN Co., 28 Hun, it is held that in an action of damage for personal injury by negligence, the court has no power to order the plaintiff to submit to surgical examination of her person, and answer questions touching her sensations. The court disapproved Walsh v. Sayre, 52 How. Pr. 334; Shaw v. Van Rensselaer, 60 id. 143; and Schroeder v. Chicago, etc., R. Co., 47 Iowa, 375; and distinguished the doctrine of Devanbaugh v. Deranbaugh, 5 Pai. 554, an action for divorce on the ground of impotency. After specially condemning the order as to oral examination, the court, by Learned, P. J., observed: "But again, passing over such cases as that of Devanbagh v. Devanbagh, we know of no right which this court has to compel a party to submit to any bodily examination. In a common-law action like this the jury are to pass on the issues of fact. And they are entitled to see and hear for themselves the evidence. It is of the very essence of the commonlaw system that the evidence shall be produced before the jury. Exceptions to this rule (and not desirable exceptions) are those cases in which evidence is previously reduced to writing, and then read to the jury. Now if a party is entitled to the compulsory exhibition of the body of his opponent, it would seem to follow that he might have such exhibition made before the jury. And the court might require the plaintiff, on the trial and before the jury, to submit to the same examination as is required by this order. It is undoubtedly true that not unfrequently plaintiffs, suing for bodily injuries, do exhibit in court the injured part. Nor do we know of any reason why they should not do this; notwithstanding the exhibition may excite sympathy. And on the other hand, all unreasonable concealment of an injured part (not justified by any dictate of modesty or otherwise) may excite a doubt in the mind of the jury as to the genuineness or extent of the alleged injury. But we cannot admit the principle, that either in the presence of the jury, or in the presence of a referee, a party can compel his opponent to exhibit his body in order to enable physicians to examine and question and testify.

* There may be danger that in actions of this nature plaintiffs will exaggerate the injuries they have received; and that defendants may be at a disadvantage in ascertaining the exact truth. But this evil is far less than the adoption of a system of bodily, and perhaps immodest, examinations, which might deter many, especially women, from ever commencing actions, however great the injuries they had sustained."

In Commonwealth v. O'Brien, Massachusetts Supreme Court, January, 1883, 6 Mass. L. Rep., April 12, 1883, it was held that on the trial of an indictment for selling spirituous liquor to a minor the prosecution might give in evidence the opinions of unprofessional witnesses as to the age of the buyer. The court said: "The inquiry to the witness as to his opinion of the age of the girl came fully within the exception of the general rule that witnesses cannot give opinions, by which they have been permitted to express opinions on questions of identity as applied to persons, things or handwriting, and to give their judgment as to the size, weight or color of objects, or their estimate of time or distance. Commonwealth v. Sturtivant, 117 Mass. 122; S. C., 19 Am. Rep. 410." To the same effect is Benson v. McFadden, 50 Ind. 431.

In Dows v. Swett, Massachusetts Supreme Court, January, 1883, 15 Rep. 466, it was held that an oral promise to guarantee the note of a third person, transferred by the promisor to his pre-existing creditor, when such promise cannot by any construction be enforced against the promisor as a recognition of, or promise to pay, his own pre-existing debt, is a promise to pay the debt of another, and is within the statute of frauds. The court, after speaking of transfers as collateral security or in conditional payment, said: "In the latter class of cases the transaction is as if the debtor said, 'I owe you a debt. Take this note and collect it if you can. If you get the money on it, that will pay you. If you do not, I will myself pay you what I owe.' In all such cases the defendant's promise is in effect to pay his own debt, and it is not necessary that such promise should be in writing, though incidentally the debt of a third person is guaranteed. And many of the decisions of courts which at first sight may appear to hold that an oral guaranty of the note of another, which is transferred on account of a debt due from the guarantor, is not within the statute of frauds, on careful examination will be found not to rest on that principle, and not to be necessarily inconsistent with our own conclusion in the present case. For example, in Milks v. Rich, 80 N. Y. 271; S. C., 36 Am. Rep. 615, Earl, J., after stating that 'the reasoning to take this promise out of the statute is quite subtle, and I should have much difficulty in yielding it any assent, but for the authorities which I think ought now to control,' goes on to say: "The defendant's promise may be regarded in effect, not as a collateral promise to answer for the default of Marsh, but as a promise to pay the plaintiff the money he had had,

* * *

in case Marsh did not pay him, like the promise of one to pay his own debt in case a third person did not pay it.' In Bruce v. Burr, 67 N. Y. 237, the decision rests on the same distinction, and both cases refer, for authority, to Cardell v. McNiel, 21 N. Y. 336, where Comstock, C. J., in delivering the opinion of the court, said: 'In mere form it was certainly a collateral undertaking. But looking at the substance of the transaction, we see that the defendant paid in this manner a part of the price of a horse sold to himself. In a sense merely formal, he agreed to answer for the debt of Cornell. In reality, he undertook to pay his own vendor so much of the price of the chattel, unless a third person should make the payment for him, and thereby discharge him.' In all these cases, it will be observed that the court carefully put the decision on the express ground that the original debtor is not discharged, and his debt is not extinguished, until the note is actually paid. So in Pennsylvania, in Taylor v. Preston, 79 Penn. St. 441, Mr. Justice Woodward, a high authority, says: "The statute does not require the promise to be in writing where it is in effect to pay the promisor's own debt, though that of a third person be incidentally guaranteed; it applies to the mere promise to become responsible, but not to actual obligations,'-i. e., of the promi'Buying the land, the promise to pay for it, whatever the form, was a promise to pay their own debt.' It was not only a stipulation to pay a debt which P. owed, but a stipulation to pay the price of property they had bought.' To the same effect are Townsend v. Long, 77 Penn. St. 147; S. C., 18 Am. Rep. 438; and Malone v. Keener, 44 id. 109." See also King v. Summitt, 73 Ind. 312; S. C., 38 Am. Rep. 145.

sor.

6

It is understood that our Court of Appeals have decided that tenancy by the entirety is not abolished by the married woman's enabling acts in this State. Such is the effect of Freel v. Buckley, in which a decision was handed down on Tuesday of last week. See ante, pp. 162, 199, 240. This of course overrules the opinion to the contrary in Meeker v. Wright, 76 N. Y. 262.

In Sohn v. Freiberg, Hamilton County Common Pleas, Ohio, 9 Cin. L. Bull. 183, it was held that if one represent to a mercantile agency that he is a partner of another, he will be estopped to deny the truth of his representation, as against all subscribers of the agency to whom this representation may have been communicated by the agency, and who may have dealt with such other person on the faith of such representation. But the person setting up such estoppel must be a subscriber to the agency, and it will not be sufficient to be a stockholder in a bank which is a subscriber or a member of a firm which is a subscriber, if the business of such firm be separate and distinct from the business of the person setting up the estoppel. The court said: "If one voluntarily hold himself out to the public, or to a third person, or to a class of persons, by his acts or language, as

V.

a partner of another person, and the public, or any one of the class, or the third person, deal with that other on the faith of such holding out, then the person so holding himself out will be estopped to deny that there was in fact any such a partnership, and the holding out need not be to the person to be induced to rely on it; the only question is, for whom it was fairly intended. Commonwealth v. Call, 21 Pick. 515; Commonwealth v. Harley, 7 Met. 462. As I have said, if the plaintiff relies on the estoppel, he must show that the holding out was to the public. Wheeler v. McEldowney, 60 Ill. 358; Martyn v. Gray, 14 C. B. 824, or that the holding out was to a class of whom the plaintiff was one. Swift v. Winterbotham, 8 Q. B. 244; Peck v. Gurney, 43 L. J. Ch. 19, or that the holding out was to him. Dickinson Valpy, 10 B. & C. 128; Irvin v. Conklin, 36 Barb. 64; Langridge v. Levy, 2 M. &. W. 519, as qualified by Barry v. Croskey, 2 Johns. & H. 24. But it cannot be claimed in this case that the holding out was to the public, for there was but one statement, and that was made to the mercantile agency, for the use of their subscribers, nor can it be claimed that the holding out was to the plaintiff as an individual. It follows then that the plaintiff must show that he belonged to the class to which the representation was made, to wit: the subscribers to Bradstreet's agency; for if he cannot, his action must fail. It is urged that because the plaintiff was a stockholder in the bank which obtained the report quoted, he was entitled to use the information, and if not on that ground, that he was certainly entitled to use it, because he was a member of a firm who were subscribers. I do not think he was entitled to the information on either ground. To hold that he was entitled to it on the first ground, would be to hold that every business man holding a share of stock in any corporation would be entitled to the services of the agency, a consequence certainly not within the interpretation of the contract under which a corporation becomes a subscriber to the agency. The second claim seems more plausible, but let u's see what the logical result of it is. Suppose the firm of Smith & Co. to be subscribers to the agency, Brown is a member of that firm and also carries on an entirely distinct business under the firm name of Brown & Co. As a member of the firm of Smith & Co., Brown is entitled to use for the benefit of the business of Brown & Co., the information obtained from the agency by Smith & Co. Jones is a member of the firm of Brown & Co., and of course comes into possession of the information used by Brown & Co., obtained through Smith & Co. Jones also carries on a separate business from that of Brown & Co., under the firm name of Jones & Co., and having come into possession of the information originally obtained through Smith & Co., uses it in the business of Jones & Co. It follows logically, that if Brown & Co. are entitled to the information, Jones & Co., are also. But Brown & Co. clearly are not, ergo Smith & Co., are not. Hence it seems clear to me that the use of the reports cannot be extended beyond the person with whom the contract is made."

THE ILLINOIS STATE BAR ASSOCIATION.

THE

ciation at its late annual meeting, the report of which we have received, are of more than usual interest. The topics treated are of live interest and are discussed in a lively manner.

The report of committee on Law Reform, by Mr. H. F. Vallette, chairman, recommends the abolition of the present forms of procedure, and the adoption of forms somewhat like those prevailing in this State. The committee also recommend that not less than three-fourths of a jury shall be empowered to pronounce a verdict in civil cases.

On the topic of Law Reform, the president, Mr. Charles C. Bonney, in his annual address, made the following recommendations: 1. That no one shall be heard unless he submits to do and receive substantial justice, without regard to technicality or

matter of form. 2. In case of suit or defense without probable cause and good faith the party in fault shall pay the counsel fees and expenses of the other, and exemplary damages if malice appears. 3. Where there is no probable cause, justice should be administered summarily, unless the judge certifies probable cause for a stay and review. 4. That the principles, pleadings and practice in equity should prevail in all civil cases, with a trial by jury where constitutionally guaranteed. 5. That there should be no jury trial unless demanded ten days before term. 6. On appeal only the exact questions should be raised. 7. That no judgment should be reversed, if it appears that substantial justice has been done. 8. That the selection of jurors should be taken away from political boards and vested in the courts. 9. that courts should have summary jurisdiction in cases relating to the public revenue, public improvements, eminent domain, and the like. Mr. Bonney calls attention to "the lack of instruction in the practical methods of business." The tone and spirit of his address are very elevated.

Mr. Capen read an essay on the Jury System of Illinois, in which he deprecates the system, citing the opinions of Dr. Fraser and Lord Baron Bramwell. But Mr. Capen believes that unanimity is essential in the judicial tribunal, and that "this is one of the most valuable features of the jury system." He recommends the substitution of three judges, one or two of whom should perhaps be laymen. But sadly foreseeing that the people will not give up the privilege of jury trial to please a few lawyers, he recommends some improvements in the mode of selection and some modifications of the powers of the jury.

Mr. Thomas Dent contributed an essay on the Law of the Grain Exchange, and Mr. Joseph B. Leake one on Punishment of Crime in the National courts.

One of the most original and interesting papers that we have read in a long time is Mr. Egbert Callahan's on the Lawyers of the Bible. The essayist makes out a considerable list-Moses, Jonathan, Daniel, Ezra, Nicodemus, Joseph of Arimathea, Gamaliel, Paul. He says in his conclusion: "The