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the country folk, who after having made up their for my opening, half an hour for my three witnesses, minds to rely upon their own unaided eloquence will and then in accordance with our usual practice we surely lose heart at the last moment and run to the
waive our further speeches and leave the case with the lawyer. And here comes the first batch tumbling up
court. stairs, a dirty “butty" collier, who has not even
Sir Rupert sums up carefully and fully with a taken the pains to wash himself for court day, his
distinct intention of showing the jury which side burly, masterful wife, and his witnesses, two pitmen, ought to win, and at ten minutes after two the jury one of whom rejoices in the name of Killers” Grant. are ready with a rerdict, and the case involving a ques. As none of the party can either read or write I have tion of some £40 is decided. The total expense of the to make a wild guess and dub my man Achilles, which
action to the losing party will probably be about £T or classic cognomen he accepts without compunctiou.
£8 taxed costs of the other side, and £10 to his own Twenty minutes suffice to despatch this batch, for I hear the noise of many voices below. The needful
attorney, and from the inception of the suit to its guinea is duly paid and party No. 1 adjourns to the
final decision not six weeks have elapsed. It is in this court to make room for No. 2, and so on till at 10:30 way and in tribunals such as these, that the great bulk comes a luli, and I take a final look at my papers and of English litigation is disposed of. No wonder the fix myself up for the court-room. At the last moment County Courts are popular. a belated litigant rushes in and half past eleven strikes
The jury are no sooner out of the box than the next from the church tower before I find myself outside the office and on the way to battle.
case is begun. The judge takes his chocolate and bis
cuits on the bench, and the attorney who wants his The registrar has of course been sitting since 10, and has by this time disposed of all the undefended causes
lunch must get it as best he can, for the court waits for so that I have scarcely donned my gown and entered
One cumbersome account case is relegated court when the judge's door opens, and with a quick to the registrar, two or three are settled by consent, resolute step, Sir Rupert moves to his bench, bobs to every one works with a will, and by five o'clock we see the bar, and the first case is called.
the list conquered and the judgment summonses The first case happens also to be my friend H.'s first
reached. By six, the court-room is silent and de appearance, and he is sadly overweighted by the griz
serted, and County Court day is over. zled veteran on the other side. The judge however
As it is a fine evening we may rely upon meeting with his usual kindness to beginners, helps H. through, and if he does not exactly score a victory, yet he does
most of our confreres on the cricket field, and accordnot suffer a thorough-going defeat, and as he coufesses ingly thither we repair and close the day with “beer to all afterward, “it wasn't half so terrible after all, and skittles.” you know."
And now it is noon, the hour fixed for juries. In five minutes the seven jurors are sworn, and “Mr.
CORRESPONDENCE. Attorney-General" is opening for the plaintiff. S. is a self-made man; beginning as an office boy he has
A CORRECTION, made his way by force of ability; he owes every thing to the County Court, for it is the reputation acquired Editor of the Albany Law Journal : there which has built up for him a practice now sec
In your valuable journal of date July 19, 1884, page ond to none in the county. Personally he is not popular with his brethren, but the plain truth is that he
45, I have observed an article headed “The Presumphas been too successful to be popular. They look at
tion of Survivorship." him and think of clients lost. Having no old grudges
Rule one reads as follows: “There is no presumpagainst him myself, I can judge him more fairly. I tion as to the order in which two or more persons died esteen him a model advocate, and a good man to deal who are shown to have perished in the same accident, with. To-day he will probably earn 30 or 40 guineas, shipwreck or battle. The law regards them as having for it may safely be assumed that he is engaged in at
died at the same instant." least three-fourths of the cases on the list.
Your first reference is to the California Civil Code, Now let us take a look at the judge. Stout, with a grizzled beard, a broad forehead, and eyes that al
section 1963, subdivision 40. most speak, Sir Rupert is a terror to bogus wit
You commit two errors. 1st. It is not the Civil nesses and all the other frauds who haunt a court- Code, but the Code of Civil Procedure, which regulates house. He is hardly less dreaded by the slow coaches this subject-Evidence-Indirect Evidence, Iuferences of the bar who cannot keep up with his intellectual
and Presumptions--commencing with section 1957. pace. But he is begond all question the right man in
2d. Subdivision 40, section 1963 of the Code of Civil the right place.
Procedure, provides that where two persons perish in Thoroughly acquainted with the staple trades of the district and their intricate customs and rules, and a
the same calamity, such a shipwreck, battle or conflawarm but honest friend of the working man, his de
gration, and it is not shown who died first, etc., survi. cisions are accepted with general content, seldom ap- vorship is presumed from the probabilities resulting pealed and still seldomer reversed. His patience with from strength, age and sex, according to the following beginners is inexhaustible for a time, but after a cer- rules. taiu period he evidently considers their povitiate
It is unnecessary for me to quote the entire section, passed, and thenceforth they must take their chances with the rest. One thing he hates-prolixity. Before
as you may understand its provisions by a glance at
the section itself. him an advocate must be quick, willing to take points without laboring them, and economical of speech.
I believe there has been no change in section 1963 But whilst we are discussing the judge our trial is since the adoption of our Codes in January, 1873. going rapidly on.
Yours respectfully, In an hour S. has opened his case and called his evi
W. F. HENNING. dence aud my turn has come. Ten minutes suffices NAPA, Cal., July 26, 1884.
was fond of exhibiting without in the least deThe Albany Law Journal.
tracting from the dignity of his office, the absolute
impartiality with which he held the scales of jusALBANY, AUGUST 16, 1884.
tice, all these are traits which many of us can re
call with special satisfaction. The calm serenity CURRENT TOPICS.
and even temper which distinguished him then were conspicuous in all his life, the later years of
which were full of respect and honor, but it is to THE Superior Court of the city of New
his judicial career that I chiefly recur, and to his not representing one of the greatest of these intel
judicial record, as made up in the volumes of Sandlects, the name of Bosworth is at least one of the
ford and Duer, and the ten volumes of his own re
ports. It is a record of faithful, unwearied and most familiar to our profession, and reminds us of a
fruitful labor in the high and responsible office long, useful and honorable professional life. Fit
which he filled." ting commemoration of the death of this excellent man was had at a meeting of the bench and bar of the city on the 13th of June last, and the proceed- In the remarks of Judge Pierrepont we find the ings have now been published in a pamphlet, ac- following of especial interest: “I think that there companied by a portrait of the judge. Addresses has been no instance in which a lawyer has reached were made by Messrs. David Dudley Field, William eminence in our profession who was born to forAllen Butler, Edwards Pierrepont and ex-Governor tune, unless he lost it while young. There have Hoffman. Judge Bosworth was a justice of the been some apparent exceptions, but investigation Superior Court twelve years, and at one time chief has proved that they were not exceptions at all. justice. Later he was a member of the board of More than eighteen hundred years ago the rich police commissioners. After his retirement from young man learned that he could not enter the kingthe bench his services were in great request as a dom of Heaven unless he relieved himself of his referee. His ten volumes of reports will give him riches; and experience proves that it is equally that professional immortality which most lawyers hard for a rich young man ever to reach the inner fall short of. In his remarks at the bar meeting temple of the law. For many years the case of Mr. Butler aptly characterized Judge Bosworth as Lord Mansfield was cited as an instance to the follows: "In Chief Justice Oakley we admired his contrary. This rested upon the authority of a letmassive intellect and native judicial instinct; in ter written by the Earl to a literary man who Chief Justice Duer, his ardent, impulsive love of wished to write the life of the lord chief justice, justice, his large and various learning, his discur- then in the plenitude of his greatness. In this sive but well trained faculties; while in Chief letter now extant the lord chief justice says: 'My Justice Bosworth what we specially admired, if I success in life is not very remarkable; my father mistake not, was his acute, clear and discriminating was a man of rank and fashion. Early in life I mind, aided by the natural vigor of his intellect, was introduced into the best company, and my cirwhich gave him, if not a larger grasp of all the cumstances enabled me to support the character of a principles of the law, a firmer grasp of those which man of fortune. To these advantages I chiefly owe my were required for constant application to the sub- success.' Many years later, Lord Chancellor Campjects of his special inquiry, than belonged to other bell uncovered the utter snobbery of that untruthmen. With him the judicial faculty was like a ful letter, and showed that William Murray, the true, well-tempered blade, remarkable not so much embryo lord chief justice of England, was the for its polish as for the keenness of its edge, and eleventh child of a prolific Scotch woman, who the sharpness of its point, never wielded for mere bore fourteen paupers to her poverty-stricken lord, display, never turned aside in irrelevant contests, and that her boy William was tattered and bareand always fairly and fearlessly used in the inter-footed, living for years on oatmeal porridge, with est and service of justice. As a member of the fish occasionally in their season, and that his wonjunior bar, when Judge Bosworth came on the derful success was due entirely to his great natural bench in 1851, and during his term of twelve years' abilities and intense ambition, stimulated by the service, I was often before him, and it was to me mortification of his extreme poverty. Lord Campalways most interesting and instructive to try bell says: "His circumstances did not enable him causes in his court. He possessed qualities which, to support the character of a man of fortune, and while perhaps not indispensable for a proper exer- he did not owe his success to the advantages which cise of judicial anthority, greatly enhance he he then enumerated,' and characterizes ord Manspleasure and satisfaction of the practitioner. His field's letter as an 'ebullition of aristocratic inso imperturbability, his patience, his great sagacity, lence.”
Like all good men, as he knew his quickness and dexterity, if I may so call it, in the world better, and realized its trials, its temptadetecting and defeating technical, insufficient or tions and its sorrows, he grew lenient toward the unworthy causes of action or defenses, the ease shortcomings of his fellow-men, and in later years with which he disposed of difficult questions of he seemed to have adopted as the motto of his life law, the clearness with which he presented ques- the words of the martyred Lincoln: "With malice tions of fact to the jury, the quiet humor which he I toward none; with charity for all; with firmness in
VOL. 30-No. 7.
the right as God gives us to see the right.'” We Some months ago a book was published entitled would commend this last sentence to the considera the Bench and Bar of Chicago, purporting to give tion of men in these times of heated political dis- biographical sketches of the judges and leading cussion and indefensible assaults on private char- members of the Chicago bar. The Chicago Legal acter.
News now says: “The unsuspecting world were
led to believe that this book had been prepared There is a great deal of popular exaggeration of and published for the sole purpose of spreading lawyer's incomes. A recent article in a newspaper the fame of those lawyers of this city who had of this city has undertaken to give an estimate of earned a position of eminence through their persethe incomes of the bar of this city, and has un
verance and ability, but from a suit purporting to questionably grossly exaggerated them. We have be commenced lately in the Superior Court of this not seen the article in question, but an account of city by the publisher of this book against a memit from the New York Daily Register comes to us
ber of the Chicago bar to recover $500 for insertion roundabout from the Ohio Law Journal.
If this of his biography and portrait therein, it appears account of our lawyer's earnings were true we
that the public have been entirely misled in regard should look for a large and speedy immigration to the motive which induced its publication. At hither from Ohio, if not from the city of New least this bit of evidence tends to a conclusion in York. The Register's statement is: “The larger that direction.” This sort of thing is very comnumber of the names given appear in the class of
mon in this part of the country, but we are astonthree thousand a year and under. In smaller ished to learn that it has infected the modest, quiet, classes are those said to have an income of three retiring genius of Chicago. Among us the most thousand a year or more, five thousand a year or offensive form is the “ Lives of Self-Made Men," over, and ten thousand or over. In the latter class who are almost uniformly those who worship their are mentioned apparently fourteen or fifteen indi-maker, and are willing to pay roundly for being viduals, besides three firms. Probably the reader portrayed and biographed. Why is it that selfis intended to understand that the members of the made men are generally so noisily and offensively firms that are mentioned each have an income of conceited? We can tell them as far off as we can that class. Of course these estimates are to be
see their portraits. There is a smirk of self-satisdeemed as guesses, and some of them, the Albany faction that seems to say, “just see what I have Express says, are stupendous errors, but on the done with my little hatchet !” We receive a great whole, the estimate seems to be accepted as indi
many self-advertisements of such men, and the cating a fair sort of general average.” We do not waste-paper basket yawns for them. Among us suppose that there are more than six or eight law- the “County History” is the worst humbug of the yers in this city who have a regular income of ten kind in question. Glib-tongued agents go about thousand dollars, and we do not suppose there among the innocent and well-to-do rural people, are more than a dozen or fifteen others who have, and persuade them to have their biographies writan income of five thousand dollars. There are un
ten, and their portraits and a view of their homedoubtedly a good many who have an income of stead engraved and published, and to pay a sum thrce thousand dollars very likely two score of this class, but the great mass of our two hundred equal to a year's profits of their acres for the privil
ege. The innocently-vain subjects dress up in their lawyers are " under " that sum. We speak of
unaccustomed Sunday toggery and jewelry, and sit average incomes which can reasonably be depended for their pictures, and they always look their very
Now and then a lawyer of the less fortunate classes makes a lucky hit, and receives a large in- clubs at our hand in our office, on purpose to brain
We keep a pair of the very heaviest Indian come for a year or two, and then he is cited as a
the first county history man who comes to inveigle constant recipient of such an income. In the war
We must say however that we admire the times of income returns to the government the pluck of the Chicago lawyer who refuses to pay, popular idea of lawyers' incomes received a rude for he has probably not got his money's worth. shock, and we do not suppose that times have much These publishing fellows are worse than the lightchanged — certainly not much for the better. ning-rod frauds, and charge from $200 to $300 for Every lawyer does a great deal of work for which
a steel portrait worth $75, and $200 for a “biohe gets no pay or very poor pay, and especially is graphical sketch ”.worth nothing whatever. this true of litigated business which makes the most show. Many of the quieter lawyers, concerned with estates and conveyancing, take in yearly sums It is fortunate for the London Law Times that it that would astonish their brethren who do the does not flourish in our free and enlightened countalking in the courts. But outside of a few great try, or at least in that part of it known as West firms in every large town or city, who monopolize Virginia, where bold and saucy editors are sumthe important and lucrative business, the profession marily dealt with for contempt. Mr. Justice Manis not very well paid. We see no reason to doubt isty was asked for a stay of execution pendthe soundness of the adage laid down by some ing appeal, and peremptorily refused it, observing: lawyer, that it is the lot of the profession to "work Every case that is tried now, whether the sum is hard, live well and die poor.”
£20 or £20,000, up gets the counsel and asks that
execution shall be stayed. As to facilitating an would use such means of transit in works of necesappeal, I cannot. I hope that by this time next sity or charity would be comparatively so limited year the law will be very different from what it is that their contributions to the expenses of running now. I think the state of things at this moment, the trains could have no appreciable effect. The which enables appeals in this matter, is a scandal on alternative is alone presented, to hold that general the administration of the law. It is a perfect travel, to the extent in question, is permitted, or scandal. I hope it will be altered next year, if not that the privilege granted in the proviso is utterly within a month or two. It is very good for the bar useless and vain. Nothing is perceived in this act and for solicitors; but it is utter destruction for in its application to its subjects that seems to lead clients. Clients little know how they are dealt with. to the adoption of the latter branch of this alternaI quite understand solicitors enjoying the sport. I tive. The language of the proviso itself is general. hope and trust that before long solicitors will find The Sunday trains are to be run for the accommothat their clients will refuse to pay their bills when dation of the citizens of this State '-- that is, for they most unreasonably take cases to the Court of their accommodation for all ordinary purposes, and Appeal for £50, £60, or £100. If they take my ad- not in the exceedingly restricted sense to accommovice they will refuse to pay the solicitors' bills. date them when engaged in works of necessity or There is power to make the solicitors pay the costs charity. Besides, this provision is a remedial proout of their own pockets; and depend upon it, this vision. It was passed in the year 1873 in the form will be inflicted if they unreasonably take cases up for of a supplement to the law relating to vice and imsmall sums." The Times pertinently remarks that morality. The only conceivable defect existing in the numerous appeals are necessitated by the errors the old law, which it can be supposed this suppleof the judges, and that a man against whom a ment was designed to amend, was its total prohibwrong judgment has been rendered for £20 has ition of general travel on Sundays — a prohibition just as good a right to an appeal as if it were for which, if rigidly enforced, would have put an end £20,000. The truth is, the bench are everywhere to all travel on the designated days in or through becoming too apt to measure the importance of a this State, and thus, in a measure, placed in tramlitigation by the amount in controversy.
mels the inter-communication between the various parts of the country. It will be thus observed that
if the interpretation of this proviso, which is claimed NOTES OF CASES.
for the defense in this case, be correct, then we have
here a remedial act whose tendency is not in any THE
degree amendatory or corrective. In short, standand contains several interesting cases. These
ing on such ground, we have here a legislative act reports are beautifully printed. It makes a lawyer
that was intended to be useless to the companies to feel like a gentleman to read such luxurious books.
which the privilege was given; useless to the citzens In Smith v. New York, Susquehanna and Western R.
of this state, and useless to the country at large. Such Co., p. 7, a statute prohibiting travelling on Sunday
a construction is opposed to all the usual legal rules except for necessity or charity, permits any railroad applicable to this subject. The legislative intencompany to run one passenger train each way on
tion must control, and from the nature and purpose Sunday for the accommodation of the citizens of of this proviso it was the evident design to permit the State. It was held that travel on such trains,
the use, in ordinary travel, of these specified trains." although not for necessity or charity, is lawful. Beasley, C. J., observed: "I think it plain that this exceptive clause has the effect to give, not only to
In Pierce v. Union District School Trustee, p. 76, a the company the right to run the specified trains on statute forbids the exclusion of children from the Sundays, but also confers the right upon the citizen public schools on account of "religion, nationality, to use such trains for ordinary travel. It is by this or color.” It was held that the exclusion of negro construction alone that the clause can be rescued children was unlawful. Dixon, J., observed: “Confrom a liability to the charge of being nugatory and sel further urges that since, under the rule of the absurd. It would seem undeniable that it was the trustees, an Italian (for example) as dark as the relegislative intent either to authorize the common lator's children, would have been admitted, the exuse of the trains in question or to sanction the do- clusion was therefore owing, not to 'color,' but to ing of this business by these companies founded, race, which the statute does not prohibit. But I almost entirely, on perpetually recurring violations think the term "color,' as applied to persons in this of law. Unless, by intendment, it is to be under- country, has had too distinct a history to leave posstood that quoad the trains in question, the citizen sible such an interpretation of the law. Both in the was absolved from the penalty denounced against statute and in the regulations of the respondents, traveling on Sunday, the boon granted to the rail-persons of color are persons of the negro race.” roads would, in substance, be the privilege of run- This was an ingenious quibble, but it is singular ning their trains provided they carried no passeng- that neither counsel nor court seem to have paid any ers in them. I say this, in substance, would be the attention to the word “nationality,” which at all effect of the concession, for the class of persons who events is insuperable.
In Condict v. Mayor, etc., p. 157, it was held that the city, which struck and caused the death of the a municipal corporation is not liabie for an injury plaintiff's intestate. Maximilian v. Mayor of New occasioned by the negligence of a driver employed York, 62 N. Y. 160." See Robinson v. City of Evans- . by its board of public works to remove ashes and ville, Ind. ; S. C. 44 Am. Rep. 770. refuse from boxes and barrels placed on the sidewalks, to a public dumping-ground, though the driver was at the time driving a horse and cart
In Casebolt v. Ackerman, p. 169, the Court of owned by the city, and his negligence was in mak
Errors and Appeals reaffirm Merrit v. Day, 9 Vroom, ing a dump from the cart. Dixon, J., giving the 32, and hold that a payment of interest by one partopinion of the Court of Errors and Appeals, fur
ner after dissolution before the statute of limitations nishes the following interesting resumé of the decis- has attached takes the instrument out of the statute ions on this point: “In the execution of the duties
as to all the partners. We learn from the briefs of of a municipal government the services of inferior
counse! that this doctrine, founded on Whitcomb . officers having only ministerial duties to perform,
Whiting, Doug. 652, has been followed in Massachusand of workmen and of other employes, are required
etts, Connecticut, Michigan, Virginia, North Caro for the transaction of its business; and the principle
lina, Maine, Rhode Island, Delaware and Wisconsin; on which the cases above cited were decided would
and that the contrary has been held in Indiana, be of little importance if the municipality was liable Ilinois, New Hampshire, Pennsylvania, Alabama, to actions for the negligence of such persons.
It Tennessee, Ohio, Kansas, Nebraska, Florida, Misshas been held that with respect to such officers and
issippi, New York, Michigan, and by the United employees, the doctrine of respondeat superior does
States Supreme Court. See Kallenbach v. Dickenson, not apply. Thus, a city is not liable to an action
100 Ill. 47; S.C., 39 Am. Rep. 47. Also in the former for the negligence of its assessor and collector in
class, Burgoon v. Bixler, 55 Md. 384; S. C., 39 Am. assessing and levying taxes (Alger v. Easton, 119
Rep. 417. See also 26 Am. Rep. 709; 38 id. 511. Mass. 77); nor for the wrongful acts of its police officers in the enforcement of ordinances (Buttrick v. City of Lowell, 1 Allen, 172; Calwell v. City of THE PRESUMPTION OF PAYMENT – III. Boone, 51 Iowa 687; S. C., 33 Am. Rep. 154); nor for the negligence of its officers and agents in executing RULE V. A presumption of payment other than by lapse sanitary regulations for preventing the spread of of time will arise from the production of a receipt from contagious disease (Ogg v. City of Lansing, 35 Iowa
the creditor (a); from the possession by the debtor of the
security or obligationib), or from its cancellation (c); 495; Brown v. Inhabitants of Vinalhaven, 65 Me. 402);
from the payment of a later debt(d); from the passing nor for the negligence of the members of its fire de- of money between debtor and creditor after the debt is partment (Jewett v. City of New Haven, 38 Conn. due(e) from the custom of trade(f); or from other cir 368; Smith v. City of Rochester, 76 N. Y: 506-513;
cumstances raising an inference of payment. (g) Boone on Corp., $ 301). A person who has suffered
ILLUSTRATIONS. an injury by reason of the neglect of the selectmen,
(A.) or of the physician employed by them, in the per
1. A. claims a horse in B.'s possession. B. produces a formance of duties imposed upon town officers in receipt signed by A. for a sum of money for a horse. relation to the small-pox, has no remedy against the The presumption is that A. had sold the horse to B. and town therefor. Brown v. Vinalhaven, supra. One
had received the purchase money (1) who is injured in his person or property by the neg
2. B. sues C. ou a uote payable in 1835. C. produces
a receipt given by B. to C. subsequent to the maturity ligcnce or misconduct of members of a fire depart
of the note, and expressed to be “in full of all de ment, when engaged in extinguishing a fire, can not mands." The presumption is that the note has been hold the city liable in damages, though the fire de paid.(2) partment was organized under provisions of the city 3. A. gave an order on R., stating that S. wished to charter, and its members were selected and paid by
buy goods of R., and tbat A. would be responsible for
S. S. indorsed on the order a receipt for goods "to the city. Hafford v. New Bedford, 16 Gray, 297;
the amount of $100.” The presumption was that S. Fisher v. City of Boston, 104 Mass. 87; Jewett v. City had received the goods from R. to that amount.(3) of New Haven, supra; Howard v. City of San Fran- 4. A. sues B. on an account, who pleads payment, cisco, 51 Cal. 52; Hayes v. City of Oshkosh, 33 Wis. and produces a check for the amount drawn ou his 314. A town is not liable for an injury sustained
bank and indorsed by A. This is presumptive evi
dence of payment, though without the indorsement by by reason of the negligence of a laborer employed
A. it would not be.(4) by one of its highway surveyors to aid him in per
5. A. sued B. on a note made by the latter. On the forming the duties of his office. Walcot v. Swamp- note were written these words: “Cr. by cash rec'd, scott, 1 Allen, 101. Nor is a city liable for an injury $20, through which a pen mark had been drawn. The caused by the negligence of a teamster employed in presumption was that the sum of $20 had been paid on transporting stone to repair a highway by the sup
the note.(5) erintendent of streets, who is charged with the duty (1) Obart v. Letson, 17 N. J. L. 78 (1839). of keeping the streets in repair. Barney v. Lowell,
(2) Marston v. Wilcox, 2 IU. 270 (1838). 98 Mass. 570.
(3) Rawson v. Adams, 17 Johns. 130 (1819); Child v. Moore, A city is not liable for the negligence
6 N. H. 33 (1832). of an employee of the commissioners of public chari
(4) Egg v. Barnett, 3 Esp. Cas. 196 (1810). ties in driving an ambulance-wagon belonging to (5) Graves v. Moore, 7 T. B. Mon. 341 (1828).