« AnteriorContinuar »
Election of Members; Election of General Council; front of the jurymen is a plain deal table with a few Reports of the Secretary and Treasurer, Report of the books and rolls of paper littered on it. The rest of the Executive Committee.
inclosure is studded with a score or so of comfortlessWednesday evening.- A paper by Andrew Allison, looking bent-wood chairs, and occupied in groups by of Nashville, Teun., on “The Rise and Probable De- the parties to the suit and their witnesses and legal cline of Private Corporations in America."
advisers. Another deal table in front of the bench acper by Alexander Porter Morse, of Washington, D. C., commodates the clerk of the court; and a few baton “ The Citizeu in Relation to the State." Discus- tered metal spittoons and a register stove make up the sion upon the subjects of the papers read.
remaining equipments of the hall of justice. Thursday morning.-The Annual address, by John The plaintiff in the present case appears to be a puny, F. Dillon, of New York; Reports of Stauding Com. sickly-looking boy of about twelve years of age, one of mittees; Reports of Special Committees.
whose hands is enveloped in bandages, and who apTbursday evening.--A paper by M. Dwight Collier, pears, through his “next friend,” to claim damages for of St. Louis, on “Stock Dividends and tbeir Re- injury caused by the negligence of his employer, the straint.” A paper by Simon Sterne, of New York, on defendant,a hard, shrewd-faced, middle-aged man, “The Prevention of Defective and Slipshod Legisla- who is lolling at his ease on a chair close in front of tion." Discussion upon the subjects of the papers the jury, with his legs resting across the seat of anread.
other chair at a convenient distance. Friday morning.--Nomination of Officers; Miscella- Seated negligently on a corner of the table facing the neous Business; Election of Officers.
jury and carelessly dangling his feet in mid-air, is a The Annual Dinner will be given at the Grand young man, plainly dressed, whose eloquent appeal to Union Hotel at 8:30 o'clock on Friday evening.
the jury proves him to be acting as counsel for the de
fendant. Despite the nonchalance of his attitude and A SKETCH IN AN AMERICAN COURT. bearing it is at once evident that he is fully alive to
the interests of his client and the difficulties of his LIGHTING from the street car at one of the busi- case; and his speech for the defense is logical and
est corners of this city, we are confronted by a plausible. The sympathies of his audience are sure to statue of white marble, representing a man sejant, be enlisted on behalf of the injured child, and he therewhom it requires but little intimacy with the national fore appeals strongly to their business instincts as emmonumentology to recognize as the ubiquitous Pater ployers of labor on behalf of a brother tradesman. In Patriæ. He is apparently keeping watch over the some small matter of detail, a date or name, the judge main entrance of a dingy-looking red brick building, has occasion to interrupt and suggest a question. The 'solid but unpretentious. But the marble janitor makes young advocate merely recoguizes the interruption no sign, and no inan pries into our business or bars the with a quick glance round toward the bench, and the door to curiosity. We climb the worm-eaten stair- words “Is that so?" and then adopts the emendation case upchallenged, and wauder idly on till checked by and continues his address with no further sign, respect a plain white-painted door, above whose lintels are the or regard for authority. Presently he brings his words “ Common Pleas No. 3.” It swings open at a speecb to a close with an impassioned appeal to the push, and entering we find ourselves in a square honesty and impartiality of his hearers; and then room of fair size, lighted from two sides by several win-slipping from his peroh he saunters carelessly across dows, all of which are double-sashed to exclude the the court, exchanges a few laughing remarks with his jingling of the horse-car bells and the multifarious client, bites a corner off a plug of tobacco which he noises of the outer world. Facing the door is a long produces from his pocket, expectorates meditatively, raised desk-table, occupying about half the side of the and finally drops into a chair to hear what reply his room and shaped in an arc of a circle, the concavity opponent is prepared to give. being toward the body of the room. Books and papers Meanwhile an elderly man, tall, gaunt and awkwardare piled or scattered on this table, behind which, at looking, has stepped nervously up to the vacated place the apex of the arc, sits an elderly man of strikingly and stands facing the jury, leaning heavily forward handsome and intelligent appearance--the judge of the with his hands planted on the table. He begins speakcourt. He is in ordinary morning dress, and is busily ing in a low toue, and with monotonous delivery engaged in revising the notes he has made during the merely restating the facts of his client's case; but presprogress of the case in hand-an occupation which does ently a change comes, and warming to his work, he not apparently interfere with keen attention to what waxes eloquent and indulges in a savage personal atis passing around him.
tack upon the character and motives of the deRound the other three sides of the room, at a dis- fendant. Involuntarily we turn to look at tance of about eight feet from the walls, runs a wooden the man who is being described to the assemrailing some four feet in height, forming a barrier be- bled crowd as “this greedy employer of cheap labor," tween those concerned in the present business of the “this man without heart or conscience, who pays chil. court ard the mere spectators like ourselves, who are dren twenty-five cents a week to do work which would accommodated with seats on a double row of benches be full of peril for grown men," this, etc., etc.; but ranged round the wall outside the charmed square.
are surprised to find, that instead of writhing under
the sarcasms leveled at him, he still reclines in his forWithin the inclosure, to the right-hand side of the
mer ungraceful attitude, and accepts the compliments bench, two rows of chairs, twelve in number, are ar
with an indifferent smile. The appeal for helpless ranged at right angles to the chord of the aro; and on childhood follows as a matter of course; but passionthese chairs, in various attitudes indicative of atten- ate as is the language and cleverly as the points are tion, indifference and repose, are seated the “twelve made they elicit no sign from the inanimate twelve. good men and true," upon whose verdict the issue of the
Then after a few minutes' silence the judge proceeds
to sum up the case, his cool, impartial statement and trial depends. They are all apparently of the trades.
shrewd analysis contrasting strangely with the admen class, and here and there among their number one dresses that preceded it. In ten minutes be places the sees the dark skin wbich proclaims its wearer to be not jury in possession of the legal aspect of the case, and many degrees removed from African parentage. A then he dismisses them to consider their verdict. closer inspection of the jury reveals the curious fact
Each in turn rises, stretches himself, addresses himthat the jaws even of the most somnolent are moving self to a spittoon, and saunters after the foreman; and
as they leave the court we too rise and retire, to ponslowly and ruminatively, as if engaged upon some der upon the majesty of law stripped of its externals toothsome cud; near them are some spittoons. In and its traditious of respect. -St. James' Gazette.
The Albany Law Journal.
ALBANY, AUGUST 23, 1884.
magnifying glass to be seen. The truth is that our country was very young, very sensitive, very conceited, and very “fresh,” and when the great author made his second visit a generation later we were wiser, and with his remarks upon his last visit no one had any fault to find.
Justice Elliott, of Indiana, delivered at the com- human beings went to death upon this charge.' mencement of the law department of the Northern This seems to us an enormous exaggeration. As for Indiana Normal School, an extremely vigorous and the judge's conjecture in his next sentences we shall learned production. We must be allowed to file two leave him to the tender mercies of the lawyers' wives exceptions to it. First, to the orator's seeming ap- who read these columns in vacation: “So widespread proval of Lord Justice Stephen's eccentric proposal was the delusion, and so fierce the persecution, that to wipe out the criminal classes “to gratify the in- the old and decrepit women were daily and hourly dignation which such crimes produce,” etc., a mat- in danger of their lives. Possibly it is from fear of ter on which we commented some time ago. Nor being prosecuted as witches rather than from vanity do we comprehend the equity of the idea that that the ladies have so long been reluctant to tell "hardened criminals" ought to be made away
with their true ages." because they “ become the progenitors of criminals." Second, the orator says: “The broad culture and
These are also the days when the judges at the manly liberality of the distinguished Lord Chief watering-places, and Messrs. Blaine, Cleveland, Butler Justice, lately the guest of the American bar, rises and St. John are importuned for their autographs. into a magnitude that shames into meanness the To these gentlemen and to others whose sign-manuals narrowness of Dickens, Russell and others of their
are demanded, we would cordially recommend a profession, who have been the slanderers of America. little pamphlet which has just been sent to us, These mere literary men looked at the good in entitled, “Seven Hundred Album Verses, suitable American character with the single eye-glass in for writing in autograph albums," etc. The which Englishmen of a certain kind delight, and selections are generally very non-committal and even that one glass was so covered with the grime senseless. We have glanced over its pages to find and dust of prejudice and egotism that they saw something appropriate for the presidential candithrough it darkly, and sometimes saw not at all; dates, and this is the best we can point to: "Be but upon our national faults they brought to bear a content with the lot God has marked out for you.” glass of power great enough to make green with Here is one fit for lawyers: “Always have a willing envy the most accomplished microscopist who ever hand full of kind deeds.” Here is one fit for poor puzzled his brain to determine whether a stain was widows: What you do, do with your might.” There made by the blood of a man or that of a dog." is only one remarkable thing in the collection, and Now we do not much care for Russell, although it that is that the familiar couplet, must be confessed that our troops did run away
“ The man convinced against his will from Bull Run. Thereby they lived to fight another
Is of the same opinion still,''day. But we never could understand the indigna- (which is nonsense), is correctly given thus:
“He who complies against his will tion of our people against Dickens on account of his
Is of his own opinion still." "American Notes” and “Martin Chuzzlewit." Making due allowance for the exaggeration of a professed humorist, there never was a book written In Governor Hoadley's late address before the on America so full of deserved criticism and generous Yale Law School, on Codification, he told the followpraise as the “ American Notes.” Dickens ridiculed ing story of common-law pleading, which is too and denounced only what was ridiculous and good to be withheld from our readers: abominable, as for example, our national habit of advantage indeed this arbitrary, technical and most chewing tobacco and spitting, and our national sin unscientific system had — its precedents of pleading of slavery. (We have gotten rid of the latter, but were in print and could be copied. Of this a the former is as common and as nasty as ever.) On pleader in North-western Ohio once took conspicuous the other hand, Dickens gave the most appreciative benefit. With the volumes of Chitty on Pleading and generous praise of what was noticeably good in before him, he prepared and filed this plea: 'Now our system, as for example, our State prisons, our comes the defendant aforesaid and defends the deaf and dumb asylums, and our common schools. wrong and injury when, etc., and says that the It may not have been gracious in him to tell the plaintiff aforesaid his action aforesaid ought not to unpleasant truth about us, but his criticisms on this have and maintain because he says (down to the country were milk and water compared with his asterisk on page 533), and this he is ready to verify, writings upon his own. Therefore we think him wherefore he prays judgment.' Tradition has it not fairly chargeable with “prejudice and egotism,” that this was his last plea, at least in Ohio. He and we believe that our national faults needed no fled the court-house, went west, and grew up with
Vol. 30 - No. 8.
the country in some employment not open to annual meeting, in Albany on the third Tuesday of copyists.” Now seriously, it seems to us that this January, 1885, to the writer of the best original plea gave the plaintiff as much information of the paper on: - The Doctrine of Stare Decisis, its reason real defense as it would have done if it had been and its extent.” Essays should be sent to the formal.
chairman of this committee, No. 115 Broadway,
New York, by the first day of December, 1884, Mr. Howard Payson Wilds, writes us: “A letter signed with a fictitious name, and accompanied dated July 30, 1884, just received from James G. with the real name and address of the writer in a Alexander, Honorary Grand Secretary of the Associa- sealed envelope. Only the envelope accompanying tion for the Reform of Codification of the Law of the successful essay will be opened, the others will Nations, states as follows: "You will doubtless have be either destroyed, unopened, or returned with the received the telegram which was dispatched to you manuscripts to the authors upon request.
The by Sir Travers Twiss, to announce the postpone successful essay will be the property of the associament of our conference at Hamburg. This step has tion, and the others not required to be returned, been taken in view of the obstruction to travelling will be preserved among its archives. Competitors caused by the quarantine regulations in force on the for this prize must be members of the bar of the frontiers of most of the European States. We State of New York, of at least five years' standing, feared that the attendance from both England and and the prize will be awarded only in case there America would be so greatly diminished by this should be five or more competitors. David Dudley circumstance that it was thought desirable to com- Field, chairman, New York; Asa W. Tenney, Brookmunicate with the Senate of Hamburg, and we lyn; Geo. L. Stedman, Albany; John S. Gilbert, received a reply that under the circumstances they Malone; Charles D. Adams, Utica; Elliot Danforth, thought it better for the conference to be postponed. Bainbridge; James L. Angle, Rochester; Ansley A resolution to that effect was accordingly passed Wilcox, Buffalo, committee on prizes, New York by a unanimous vote of our council yesterday.' State Bar Association. Observing that you have published a notice in reference to the postponement of this conference, it may be proper to note the occasion therefor."
NOTES OF CASES.
N Moore v. Settle, June 14, 1884, 6 Ky. Law Rep. “Eternal vigilance” has taken a fresh start IN
58, it is held that the statute against gaming this time in Demosthenes. Mr. R. D. McGibbon, of Montreal, writes us : “I was much interested in
which gives a right of action to the loser or his the discussion which took place in your columns, creditors, or any other person, to recover money lost anent the saying 'Eternal Vigilance, etc.? I applied wife of the loser. This reverses the decision below,
at gaming, does not embrace a married woman, the to a friend, Mr. George Murray, B. A. (Oxon), a scholar of great erudition who edits an ably con
noted in the ALB. Law Journ. The court said, by ducted column of ‘Notes and Queries' in the Hargis, C. J.: " The section means by th. words Montreal Star, and whose library contains nearly any other person,' any other person competent to every work of reference, likely to afford the informa- institute the suit. It creates no new cause of action
Nor does it tion required. Verbably Mr. Murray tells me that in favor of persons who could not sue. he has diligently searched the English Notes and relieve any person of disabilities existent at the date Queries ab initio, including the indices, without dis
of its passage. It simply created a new cause of covering a single note or query as to the saying in action in favor of such other persons, besides the question. Mr. Murray has also sent me the enclosed loser and creditor, as had legal capacity, either in letter, which I am sure will interest you.” Mr. person or by another, to sue. Else aliens, the wife Murray writes: “After much research employed in of the winner and others wholly incompetent to sue, trying to ferret out the origin of the saying, could institute such actions, and thus, instead of · Eternal Vigilance is the price of liberty,' I can
the mere creature of a new cause, the statute would do no better than send you the following quotation be misapplied to the removing of disabilities which from Demosthenes, Philip. I, 23. It seems to con
are no part of its subject and not mentioned or
As therefore the statute has tain the germ of the famous common place. Dr. alluded to in it. Ramage rather freely translates the passage as
nothing to do with prescribing the capacity of any follows: ‘But there is one bulwark which men of other person 'to bring such suits, leaving that branch prudence possess within themselves, — the protection of the law untouched, the appellee's right to sue the and guard of all people, especially of free States, winner must depend upon the law found outside of against tyrants. What is this? Distrust.' I am
this statute. We can find none to support her claim
to sue. sorry that I can do no better for you, but I believe
By the first sub-section of section 34 of the that this Greek sentence contains the sentiment Civil Code it is provided that “in actions between which some Greek orator has condensed into the husband and wife; in actions concerning her separate English dictum.”
property; and in actions concerning her general
property in which he refuses to unite, she may sue The prize of $250 offered by the New York State or be sued alone.' * * * It cannot be soundly Par Association, will be awarded at the association's said, this suit is concerning either her separate or
general property in the sense of that section of the the importance of the interests involved in the deciCode. For that character of property does not em- sion. It is a matter of so much public concern that brace mere rights of action for injury sustained by judicial notice may be taken of the fact that cars the wife during coverture for assault and battery, belonging to different companies are interchangeably slander and the like, or for rights of which she is used on all the principal railroads in the United the meritorious cause, either at common law or by States, and that no company could do any considerstatute, unless the statute in creating a new cause of able freighting business that did not conform to action authorizes her to sue or invest her with this general usage. Without such usage it would general or separate estate in the subject-matter of be difficult, if indeed it would be possible, to the action. In actions for personal injury inflicted transact the commercial business of the country. upon the wife during coverture, the husband and Freights for shipment across the continent could not wife must join. But the husband may generally sue well be stopped at the terminus of each carrier's alone, or unite his wife with him for any ordinary line and reshipped in cars of the connecting carrier. right not concerning her general or separate estate That would occasion more delay than the necessities accruing during the marriage relation, and in such of commerce would tolerate. The extent of the cases the common law, which is virtually continued usage in regard to the exchange and transportation by sub-section 2, of section 34, supra, has wisely left of cars among so many different railroads would seem the propriety of instituting such actions to the to require such exacting rules and regulations as discretion of the husband; and sound reason, would insure the strictest accountability on the part domestic peace and good public policy unite in of companies that may transfer or haul cars over sustaining the rule that gives to the husband such their respective roads.
And why may control. Our statutes have made but little change there not be such a thing as a common carrier of if any in these rules, except to allow the wife to sue cars either with or without its load of freight. As if the husband deserts her, and to enable her to pro- to the freights the car contains, it will be conceded tect her separate or general property. When statutes, such carrying roads are common carriers, and are like that in regard to inebriate husbands, give the subject to the strict liability of such carriers, and as wife the right to sue and recover, she may do so by has been seen by a constitutional provision, all the force of the express words of the statute; and the rolling stock and other movable property belonging fact that the cases in which she may sue are generally to a railroad in this State shall be considered perprovided for in the Code of Practice and statutes sonal property. What reason exists for discriminacreating new causes of action which expressly in- ting against this class of personal property, and for vest ber with that right, furnishes a strong pre- holding that railway companies carrying it shall not sumption that her capacity to sue, which has been be regarded as common carriers ? The mode of increased by statute from time to time, must be moving it whether on wheels or in carriages, ought ascertained from the language of such statutes and not to be the foundation of any distinction. In unrepealed consistent common law rules. The wife, either case, the property is in the exclusive care and where she is the meritorious cause, under a statute control of the carrier, and there is as much reason, like this or under the one authorizing rewards, may arising from public considerations, why such a be a proper or necessary party, yet she could not carrier should be held to the strict liability of an maintain such actions without joining her husband insurer for the safety of the property in the one case unless he deserts her, then she might bring or defend as in the other. * * The undertaking of them in his name."
defendant in regard to moving the car was within
the scope of the general business it had engaged to A novel case is Peoria, etc., R. Co. v. Chicago, etc., do for the public, and it would seem no reason R. Co., Illinois Supreme Court, 19 Cent. Law J., exists why the liability for the safe delivery of the 111, holding that a railway company engaged in the car should not be the same as with respect to the transportation of freights, for hire as a common freight it contains, which it is conceded is that of carrier, is bound to transport or haul upon its road a common carrier. On what principle may defendthe cars of any other railroad company when request- ant be considered a common carrier as to freights on ed so to do, and will hold the same relation as a its road, and not as to the car containing it, which it common carrier to such cars, that it does to ordinary is moving over its road with its own propelling freight, and in case of loss will be held to the same power. The law,as has been seen, makes all railways measure of liability to the owner of the cars as would in this State public highways, open to the use of all attach in respect to any other property. The court persons for the transportation of their persons or said: “The question presented is one of first im- property, under such regulations as may be prepression in this court, nor have counsel cited any scribed by law, and it is apprehended, it is uncase where the exact question involved was con- lawful to make any discrimination as to the property sidered by any court of last resort. It leaves this offered to be carried, or as to whether it belongs to court free to determine the law on principle as it a private person or to a corporation. If it is such shall be thought best to subserve public interests, as property as is capable of being carried with the well as the private interests of corporations con- means ordinarily employed by such carrier, the cerned. No proof is needed to show the extent and obligation is imperative, and the carrier must receive
the property and carry it with safety in the way grand jury, with the assistance of the district attorney, such property is usually carried, and any failure to
made an examination of all the transactions of Eno, do so will subject the carrier to damages. The only and finally brought in indictments, one for forgery in
the first degree, and others containing couuts for forcase to which the attention of the court has been
gery in the second aud third degrees. It was upon directed having any features like the one considered these indictments and the copies filed in the execuis Malloy v. Tioga R. Co., 39 Barb. 488. In that tive departments at Albany and Washington, that the case the defendant company, which it is conceded request for extradition was made by our government, was a common carrier as to freights and passengers,
and upon nothing else.
The indictment for forgery in the first degree was engaged to furnish plaintiff the motive power to
that Eno “forged " a certaiu check for $95,000; this draw his cars loaded with his property over its road, check was what was known as a '“ Cashier's cbeck," the plaintiff being obligated to load and unload his having those words printed on the margin and watercars, and furnish brakemen to accompany them, but lined in the body, and was drawn upon the bank to the who were subject to the control of defendant's con
order of Dyett & Co., and signed “Jpo. C. Eno, Presi
dent." This check was upon its face to all intents ductor, and it was held defendant assumed the
and purposes the check of the bank, made and parliability of a common carrier, and consequently was porting to be made as the act of the bauk, and in a liable for injuries to plaintiff's cars and property not tbird person's hauds binding upon the bank without caused by inevitable accident or public enemies. more; it may be said that it was equivalent to, and But aside from authority, the conclusion reached on
purported to be, a writing executed by the bank as a
corporation, as though the signature had been “The principle is, defendant occupied the relation of a
Second National Bauk of New York," or the same by common carrier as to the car of plaintiff in his 'Jno. C. Eno, President," or as though the writing possession, as well as the freight it contained, and were sealed with the seal of the corporation without as such was liable for its safe return to plaintiff any signature; it was one of the usual modes of exeunless its loss occurred from causes which exempt cuting a writing by a corporation.
The grand jury were advised that if the accused so common carriers, which is not claimed in this case."
executed this writing without authority and with inTo the same effect is Nero Jersey R. & T. Co. v.
tent to defraud, the act was forgery. The distinction Penn. R. Co., 27 N. J. L. 100.
between this case and that of People v. Mann, 75 N. Y. 484, is a narrow one, but it is believed that the distinc
tion can be maintained, even if the provisions of the THE EXTRADITION OF ENO.
Penal Code were identical with those of the Rerised
Statutes under which that case arose. However that THI HERE has been so much misapprehension as to the may be, it was not contested before the Canadian
grounds upon which the extradition of John E. Eno court, whether the act was forgery here, but whether was demanded from Canada, that a brief reference to it was forgery in Canada at the time of the Ashburton one or two of the real points raised may be interest- treaty or since. ing and profitable, at least to lawyers. While the case Now on this branch of the case considerable eribecame in certain respects a celebrated one, it is not dence was produced, but it will be sufficient to bring likely to appear in the books, as the decision is of a out the point to say that the prosecution proved that single judge sitting as a magistrate, and this decision, the accused resigned his office in writing on May 13th even if reported, does not fairly indicate the serious | last; the exact time of the day could not be directly reasons advanced in favor of the extradition. These proven, and no proof was produced as to this fact by reasons are of interest to the profession because they the defendant, although of course he could establish it are in some respects new, and present points never yet to a certainty; but at no time during the day of May decided; they were well considered and deemed sound | 13th did he come to the bank; at a comparatively before any application was made for extradition; but early hour on that day the cashier and the brother of the New York newspapers failed to learn, either before the accused ; on the suggestion of the brother, went or after the proceedings, the real points of the contro- through the books of the bank to ascertain, not it versy, and not only the general public, but even most there was a defalcation, but the exact amount of a delawyers have been led to believe that the effort to ex- falcation already known to the brother to exist, but tradite Eno was a mere farce, if not worse. The New until that time not known to the cashier; the circumYork Evening Post, after very proper and intelligent stances led to the inference that this kuowledge was discussion from time to time of the question of com- due entirely to a confession made by the accused the mon law forgery, and having presumed that though night before, as the newspapers stated at the time, or that was a question in the case it was the only ques- in the early part of the day of the 13th. This check tion, misleads a whole community, at the expense of for $95,000 bore date May 13th; it was executed on some reputable people, by speaking of the solemn re- that day, or on the following day, the 14th, when it quest of our government for the extradition of Eno, was presented to the bank for payment. The bank and of the diguified proceedings of the Superior Court directors had a meeting on the night of the 13th to of Quebec, as “the bare-faced attempt to get hold of consider the defalcation, and it was at this meeting him in violation of the extradition treaty," and again of that the whole deficit was provided for; but no one at "the desperate attempt to kidnap him under the forms this time knew any thing about this $95,000 check, nor of law" and of “the evident bad faith of the attempt" was it even heard of uutil the morning of the 14th * * “to evade the provisions of the treaty." when it was presented, and caused such a commotion
It may be explaiued, in the first place, that the pub- among the directors alíd the bauk examiuer as came lio prosecution of Eno was not begun in this county by near closing the bank. the bank of which he had been president, nor by any Not to detail all the circumstances, it was urged that of its officers, but was the direct result of the charge it was a question for the jury and not for a commitmade to the grand jury at the opening of the June ting magistrate whether the accused executed the Term by the presiding judge, calling their attention check before or after his resignation. This matter the to this particular case and exhorting them to do their judge took upon himself to decide in favor of the acduty in respect to it. No prosecutor appeared, but the cused, and weighed the evidence which was such as