Imágenes de páginas
PDF
EPUB

the deceased, one of the men employed in carrying the lumber from the planer across the track, had carried a board across to a pile about four feet from it, and set it down and turned around to go back to the mill for another board, when he was struck by defendant's car, which was being "kicked" in at an unusual rate of speed, without any warning to deceased. If deceased had looked up the track he could have seen the approaching car in time to have avoided the accident. Held, that under these facts the court could not say that the omission of the deceased to keep on the lookout for approaching cars was per se negligence. It was properly a question of fact for the jury to determine whether he ought to have kept on the outlook, or whether under the circumstances, he might not rely on being given timely warning of the approach of cars. See Kay v. Pennsylvania R. Co., 65 Penn. St. 269. Mark v. St. Paul, M. & M. R. Co. Opinion by Mitchell, J.

[Decided June 12, 1884.]

DAMAGES-BREACH OF CONTRACT— WARRANTY.— A harvesting machine was sold to the defendants by plaintiff with warranty of its quality and capacity, and which he understood was purchased by them for actual use in harvesting a large crop of grain belonging to them. Held, that damages for injury to the grain from delay, while they were experimenting with the machine, and attempting to make it work, cannot fairly be considered such as would arise either naturally from the breach of the contract, or such as may reasonably be supposed to have been contemplated by the parties when making the contract as a probable result of the breach. Frohreich v. Gammon, 28 Minn. 477; McCormick v. Vanatta, 43 Iowa, 389; Hadley v. Baxendale, 9 Exch. 341. Wilson v. Reedy. Opinion by Vanderburgh, J.

[Decided June 30, 1884.]

OHIO SUPREME COURT ABSTRACT. JANUARY TERM, 1884.

MARRIAGE

RATIFICATION

SEPARATE FROM HUSBAND

[ocr errors]

are

INDUCING WIFE TO ACTION EVIDENCE. (1) While the parents of a married woman not liable in damages where they have encouraged her to separate from her husband, and supported her in such separation, in the honest belief that it was necessary for her protection, the appearances seeming to indicate such necessity, although in fact there was no ground for separation and no actual necessity for such protection; yet where the motive was not protection to the wife, but malice and ill-will toward the husband, an action may be maintained. Friend v. Thompson, Wright, 636, 639; Rabe v. Hanna, 5 Ohio, 530; Preston v. Bowers, supra; Schouler Hus. & W., § 64; Cooley Torts, 224. (2) A marriage entered into in this State when the wife is less than sixteen years of age becomes irrevocable by cohabitation at the time, and after she arrives at that age; and she may also ratify the marriage at that age in other ways, as by letters to her spouse, addressing him as her husband, and signing the letters by her Christian and his surname. Perry v. Lovejoy, 49 Mich. 529; Preston v. Bowers, 13 Ohio St. 1. (3) On the trial of an action against husband and wife for inducing the plaintiff's wife to abandon him, in which the illegal acts are charged to have been done by the female defendant, evidence of her acts is competent, even if such acts were unknown to the husband, and he had not encouraged her to commit them; and if a cause of action is proved, both are liable. (4) Evidence is also competent to show that the parents had, after such separation, knowingly encouraged her to associate with disreputable persons.

[ocr errors]

So letters written by the wife during such separation, in which she addresses him as her " dear husband," are competent to show the condition of her feelings toward him; and the husband is a competent witness to show that such letters are in the handwriting of his wife. Holtz v. Diek. Opinion by Okey, J. GIFT DEED DELIVERY AT GRANTOR'S DEATH. -A., having executed in due form a deed of gift of real estate to his son, said to B.: "Take this deed and keep it. If I get well I will call for it. If I don't, give it to Billy," the grantee. A. was then ill, and died within a few days thereafter of the same illness, and B. then handed the deed to the grantee, who caused it to be recorded. Held, that this did not constitute a delivery, and the instrument was invalid as a deed. B. was the agent of the grantor, and not of the grantee, and hence the instrument was not only revocable by the grantor at any time before his death, but not having parted with all dominion over it during life, it became on his death a mere nullity. Wellborn v. Weaver, 17 Ga. 267; Carey v. Dennis, 13 Md. 1; Hale v. Joslin, 134 Mass. 310; and see Phipps v. Hope, 16 Ohio St. 586; 1 Jar. Wills (by R. & T.), 33 et seq. In Crooks v. Crooks, 34 Ohio St. 610, it appeared that "the grantor, without reserving or intending to reserve any control over the instrument, delivered it to a third person to be by him delivered to the grantee at the death of the grantor," and "the depositary aocepted the deed for the grantee, and at the death of the grantor delivered it to the grantee." This was held to constitute a delivery. That was upon the theory that the grantor had delivered the instrument as his deed, and that it took effect as of the date of the first delivery. The decision received the unanimous approval of this court in Ball v. Foreman, 37 Ohio St. 132. While this may be regarded as an exception to the rule as to deeds of this character, we regard the law as settled for this State as to any case fairly coming within these decisions. But neither of the cases was like this, and properly understood they are decisive against the validity of this deed. They were cases in which the grantors had parted absolutely with all dominion over the instruments, and there was no revocation or attempt to revoke. Here it was in terms stated by the grantor, that if he recovered he would call for the deed. As a deed of gift such an instrument was therefore a mere nullity, and required no reVocation. Williams v. Schatz. Opinion by Okey, J.

STATUTE OF FRAUDS—BUILDING SEVERED FROM LAND-PURCHASE-MONEY-RECOVERY.-The statute of frauds cannot defeat the recovery of the purchasemoney on a verbal contract for the sale of a dwellinghouse then annexed to real estate, but to be severed from the freehold and delivered on rollers, after the same has been so severed and delivered in accordance with the contract. Bostwick v. Leach, 3 Day, 476; Hallen v. Runder, Cromp. M. & R. 266; Curtiss v. Hoyt, 19 Conn. 154; Shaw v. Carbrey, 13 Allen, 462; Hartwell v. Kelly, 117 Mass. 235, 237; Keyser v. District No. 8, 35 N. H. 477; Fortman v. Goepper, 14 Ohio St. 558; Wagner v. C. & T. R. Co., 22 id. 563, 576. Long v. White, Opinion per Curiam.

[blocks in formation]

served with process could not have been served, it was error to assess upun the stockholders served the whole amount of the indebtedness of the corporation. In an action of this kind all the owners of stock are necessary parties. Rev. Stat., § 3260; Wright v. McCormack, 17 Ohio St. 86; Umsted v. Buskirk, id. 113; Brown v. Hitchcock, 36 id. 667; Wheeler v. Faurot, 37 id. 26. (2) In such action it was error to give judgment for some of the stockholders releasing them from assessment, upon the finding that they did not own stock at the time the liability sought to be enforced accrued, without finding further that the stock held by these defendants had not been sold by the corporation prior to the time such liability accrued. Brown v. Hitchcock, 36 Ohio St. 667. Bonewitz v. Van Wert Co. Bank. Opinion by McCauley, J.

RECENT ENGLISH DECISIONS.

LIMITATION

STATUTE OF ACKNOWLEDGMENT.An acknowledgment, in order to be sufficient to take a debt out of the statute of limitations, must be absolute and unconditional-not controlled by any other language in the document-and must contain words of such a character that there may reasonably be inferred therefrom a promise to pay the debt. The acknowledgment must not only be clear in itself in order to raise the implication of a promise, but must be accompanied with words which prevent the possibility of the implication; though an expression of less than a promise will not necessarily put an end to the implication. It is not enough for the writer of an acknowledgment to refer to a debt as being due from somebody, but the latter, on its fair construction as read by the light of surrounding circumstances, must be an admission that the writer himself owes the debt. A debtor wrote to his creditor, "I thank you for your very kind intentions to give up the rent of Tyn-ybwrwydd next Christmas, but I am happy to say at that time both principal and interest will have been paid in full." When this letter was written a property called Tyn-y-bwrwydd belonged to the debtor's wife for her separate use, and for some time the rents of the property had been retained by the creditor in part satisfaction of his debt. Held (reversing the decision of Pollock, B., 48 L. T. Rep. [N. S.] 479; 23 Ch. Div. 207), that the letter was not a sufficient acknowledgment to take the debt out of the statute of limitations. Morgan v. Rowlands, 26 L. T. Rep. (N. S.) 855; L. R., 7 Q. B. 493; 2 Eng. Rep. 611,comments on. Ct. of App., March 31, 1884. Green v. Humphreys. Opinions by Cotton, Bowen and Fry, L. JJ. (51 L. T. Rep. [N. S.] 42.) (See 35 Am. Rep. 416; 24 id. 460; 26 id. 709.)

WILL-LEGACY-CHARGE ON REAL ESTATE-ADDITIONAL LEGACY GIVEN BY CODICIL.-The principle that where a will contains a gift of legacies and residue, the legacies are (in the event of the personal estate proving insufficient for their payment) to be deemed to be charged upon the real estate applies in favor of an additional legacy given by a codicil to a legatee named in the will. A testator, by his will, gave 300l. to his wife, and "all the residue of his property, of whatever description," to his sister. By a codicil he left to his wife "the sum of 7001., in addition to what he had already left her by his will." The personal estate proved insufficient for the payment of debts and legacies in full. Held, that the 7001., as well as the 300l., was charged on the real estate. Ch. Div., June 21, 1884. Matter of Hall. Opinion by Pearson, J. (51 L. T. Rep. [N. S.] 84.

VENDOR AND VENDEE-CONDITIONS OF SALE-RIGHT TO RESCIND.-A sale took place under a condition pro

viding that if the purchaser shall take any objection or make any requisition as to the title, evidence or commencement of title, conveyance or otherwise, which the vendor is unable or unwilling to remove or comply with, the vendor may by notice in writing delivered to the purchaser or his solicitor, and notwithstanding any intermediate negotiation, rescind the contract for sale. The purchasers made fourteen requisitions. The vendor answered them. The purchasers considered several of such answers insufficient, and insisted on the requisitions. The vendor gave notice that he rescinded the contract. The purchasers waived the requisitions, and on the vendor neglecting to complete the contract, applied by summons for a declaration that they were entitled to a conveyance of the property. Held, that the vendor had expressed his inability or unwillingness, but the purchasers had insisted on their requisitions; that "unwillingness meant unwillingness to go to the trouble and expense of removing or complying with requisitions; and that the vendor had a right to rescind the contract at any time without giving his reasons. Ch. Div., June 13, 1884. Dames v. Wood. Opinion by Bacon, V. C. (51 L. T. Rep. [N. S.] 109.) GAMING-AGENT-IMPLIED AUTHORITY TO PAY BET. -Where a person authorizes another to bet for him in the agent's own name, an implied request to pay if the bet be lost is involved in that authority; and the moment the bet is made, and the obligation to pay it if lost incurred, the authority to pay becomes irrevocable in law, and it is immaterial that such obligation is not enforceable by process of law, if the non-fulfillment of it would entail serious inconvenience or loss upon the agent. So held by Bowen and Fry, L. JJ. (affirming judgment of Hawkins, J., reported 48 L. T. Rep. [N. S.] 74), Brett, M. R., dissenting. Ct. of App., May 30, 1884. Read v. Anderson. Opinions by Brett, M. R., Bowen and Fry, L. JJ. (51 L. T. Rep. [N. S.] 55.)

DAMAGES-PENALTY OR LIQUIDATED DAMAGES.-An agreement for sale contained the two following provisions: (9) As an earnest hereof the purchaser has this day paid into the hands of S. the sum of 500l. as a deposit, the deposit to form part of the purchasemoney to be paid on the day of possession; and (10) should either vendor or purchaser refuse or neglect to carry out the above arrangement on her or his part, the one so refusing or neglecting shall pay to the other the sum of 500l. as or in the nature of liquidated damages. The purchaser was unable to carry out his part of the agreement. The vendor brought this action for specific performance of the agreement, or in the alternative, payment of the 500l. as liquidated damages. It was contended that this 500l. was a penalty, and was therefore not recoverable. Held, that the meaning of the agreement was that the 500l. should be recoverable, not if some minute provision were not carried out, but if owing to the fault of either party, the agreement were not carried out at all, and that that sum could be recovered in this case as liquidated damages. Held, that it could also be recovered if the action were looked upon as an action to enforce the forfeiture of the deposit. High Ct. of Just., Ch. Div., May 21. Catton v. Bennett. Opinion by Kay, J. (51 L. T. Rep. [N. S.] 70.)

INSURANCE LAW.

LIFE 66 - ON OR BEFORE" - PAID-UP POLICY. — (1) Where an insurance policy contains a stipulation that the policy shall determine if the premium is not paid "on or before the day" fixed, and by a separate in

strument delivered simultaneously with the policy, and for the same consideration, the company agrees, after the payment of three annual premiums, to issue a paid-up policy for a proportionate amount on the surrender of the policy to the company on or before it shall expire by the non-payment of the fourth or any subsequent annual premium," the stipulation and agreement should be read together as one contract, and the word "on" in the contract should be construed to mean the instant of the expiration of the policy. (2) In such a case the time of the surrender of the policy is of the essence of the contract, aud the insured is not entitled to a paid-up policy on the surrender of the original policy after it has expired by nonpayment of a premium. This court, while always inclined to follow the decisions of the State courts, because it administers the law concurrently with them, yet is not bound by such decisions. 16 Pet. 45; 102 U. S. 14. The very able opinion in Montgomery v. Phoenix Mut. Life Ins. Co., 14 Bush, 54, is not sustained by the weight of authority, and we think it, as well as the opinion in the demurrer in this case, is to be criticised, because they apply to the rules of construction applicable to contracts for land, to the construction of an insurance contract. Courts in construing contracts may look to the subject-matter and the surrounding circumstances, and may avail themselves of the same light which the parties to the contract possessed. Merriam v. United States, 107 U. S. 441. In this case the language, strictly construed, binds the company to issue a paid-up policy only "after the receipt of not less than three annual premiums; * * * and on the surrender of said policy to the company on or before it shall expire," etc. The right to a paid-up policy commenced only after the payment of the requisite number of annual premiums, and it was on condition that the policy was surrendered "on or before it shall expire" by reason of the non-payment of premiums. This was the time fixed within which the company was bound to issue a paid-up policy. The effect of the surrender may or may not have deprived the assured of the full insurance for the remainder of the year. In our view, it is not material to determine the effect of such a surrender; the important question is, has the agreement limited the time within which the surrender must be made? If we consider the subject-matter of this contract, and the circumstances under which this and other insurance companies do business, we feel constrained to give defendant a strict construction of this agreement, even though it may be hardship upon complainants, who are infants. The overwhelming weight of authority is against the court in Montgomery v. Phoenix Mut. Life Ins. Co. Most of these decisions have been delivered since that opinion, and some of them since the overruling of the demur

rer.

See Attorney-General v. Continental Ins. Co., 93 N. Y. 74; Hudson v. Knickerbocker Life Ins. Co., 28 N. J. Eq. 168; Bussing's Ex'r v. Union Mut. Life Ins. Co., 34 Ohio St. 222; Universal Life Ins. Co. v. Whitehead, 58 Miss. 226; S. C., 38 Am. Rep. 322; Coffey v. Universal Life Ins. Co., 10 Biss. 354; Smith v. Na. tional Life Ins. Co., 13 Ins. L. J. 330. Sheerer v. Manhattan Life Ins. Co. Cir. Ct., D. Ky., July 15, 1884. Opinion by Barr, J. (20 Fed. Rep. 886.)

FIRE-VOID POLICY-CHANGE OF TITLE OF PROPERTY.-Where one of the provisions of an insurance policy given to a partnership is that "if the title of the property is transferred, incumbered or changed, *** the policy shall be void," a dissolution of the partnership, and a sale by one partner to the other of his interest, is a change of title to the property, and will render the policy void. The case of Hoffman v. Etna Ins. Co., 32 N. Y. 405, is probably the leading case holding this doctrine. The policy in that case

provided that it should be null and void "if the said property shall be sold or conveyed." The policy was issued to a partnership, one member of which sold his interest in the property to his copartner before the loss, and it was held that this did not have the effect to avoid the policy. Another holding is followed in Dermani v. Insurance Co., 26 La. Ann. 69; Pierce v. Insurance Co., 50 N. H. 297; Burnett v. Insurance Co., 46 Ala. 11; West v. Insurance Co., 27 Ohio St. 1, in each of which cases the policy contained substantially the same provision. The conclusion we reach is also sustained by the following authorities: Keeler v. Niagara Fire Ins. Co., 16 Wis. 523; Hartford Fire Ins. Co. v. Ross, 23 Ind. 180; Dix v. Mercantile Ins. Co., 22 Ill. 272; Wood v. Rutland Ins. Co., 31 Vt. 552. Hathaway v. State Ins. Co. Sup. Ct. Iowa, July 22, 1884. Opinion by Reed, J. (20 N. W. Rep. 164.) FIRE-OVERVALUATION-VERDICT NOT DISTURBED OTHER INSURANCE."- When under the terms of the policy, the assured will not gain any thing by an overvaluation, the evidence of a fraudulent intent in overvaluing the property should at least be of a satisfying character to warrant a court in disturbing a verdict for the assured. Bouham v. Iowa Cent. Ins. Co., 25 lowa, 328; Franklin Ins. Co. v. Vaughan, 92 U. S. 519; Williams v. Phoenix Fire Ins. Co., 61 Me. 67; Wood Ins., § 426; Dogge v. Northwestern Ins. Co., 49 Wis. 501. (2) If the policy contains a provision that it is to become void in case of other insurance being subsequently effected without the written consent of the first company, such company cannot escape liability thereby when the "other insurance" is void, and known and accepted by all parties as being void. Hubbard v. Hartford Fire Ins. Co., 33 Iowa, 325. Sup. Ct. Iowa, June 7, 1884. Behrens v. Germ. Fire Ins. Co. Opinion by Seevers, J. (19 N. W. Rep. 838.)

[ocr errors]

FIRE-CONDITIONS- FAILURE TO COMPLY-RECOVERY OF PREMIUMS-ACTION WITHIN A YEAR.-Where an insurance policy contains a condition that if the person assured is not the sole owner of the property the insurance company must be informed and the fact expressed in the written part of the policy, and that otherwise the policy is void, a failure to comply with the condition renders the policy void ab initio. Where money is paid upon an insurance policy with the expectation of receiving a return, and in good faith, the element of fraud not existing upon a failure of the consideration, the policy being void ab initio, the premiums paid may be recovered, and it is immaterial whether or not there has been a loss under the policy. Taylor v. Sumner, 4 Mass. 56; Richards v. Marine Ins. Co., 3 Johns. 307; Murray v. Columbian Ins. Co., 4 id. 443; Elbers v. U. S. Ins. Co., 16 id. 129; Delavigne v. Same, 1 Johns. Cas. 310; Murray v. Same, 2 id. 168; Robertson v. Same, id. 250; Holmes v. Same, id. 329; Jackson v. New York Ins. Co., id. 191: Forbes v. Church, 3 id. 159; Steinback v. Rhinelander, id. 269; Donath v. Ins. Co. of N.A.,4 Dall. 463; Clark v. Manfrs. Ins. Co., 2 Wood. & M. 473; Scriba v. Ins. Co. of N. A., 2 Wash. C. C. 107; Stevenson v. Snow, 3 Burr. 1237; Feise v. Parkinson, 4 Taunt. 640; Routh v. Thompson, 11 East, 428; Oom v. Bruce, 12 id. 225; Penson v. Lee, 2 Bos. & P. 330; Hentig v. Staniforth, 5 Maule & S. 122; Colby v. Hunter, 3 Car. & P. 7; May Ins., § 4; 4 Wait Act. & Def. 119. (2) Where a fire insurance policy contains a condition that no action shall be brought against the insurance company upon the policy unless within one year after a loss by fire, but the policy is void ab initio, held, that an action may be brought and maintained by the assured to recover the amount of premiums paid, even after one year from a loss by fire, the condition not applying to such an action. Taylor v. Sumner, 4 Mass. 56; Murray v. Columbian Ins. Co.,

4 Johns. 443; Holmes v. U. S. Ins. Co., 2 Johus. Cas. 329; Steinback v. Rhinelander, 3 id. 269; Scriba v. Ins. Co. of N. A., 2 Wash. C. C. 107; Oom v. Bruce, 12 East, 225. Plaintiff therefore is not defeated of recovery of the premiums paid upon the policies issued before the one under which he claimed in his action in the United States Circuit Court, on the ground that no loss had occurred on their policies. Sup. Ct. Iowa, June 10, 1884. Waller v. Northern Assurance Co. Opinion by Beck, J. (19 N. W. Rep. 865.)

BEYO

OUR LONDON LETTER.

EYOND doubt the leading topic of conversation amongst barristers and solicitors, both old and young, is the present and the probable future condition of legal business in this country. The legal interests are already subjected to a considerable depression, and are threatened with something danger ously like extinction. The tendency of the legislation of the day is to discourage litigation by rendering it more or less penal. This is effected by an exaggeration of the court fees in all cases, but especially in those connected with bankruptcy. Professional fees have been simultaneously reduced, and the consequence is that the gentlemen whose "rapacity" is the favorite subject of the lay press find considerable difficulty in "making both ends meet." Now the source of this tone in journalism is near at hand; it is to be found in the notorious fact that the majority of legal leader writers are men who have failed at the bar. But the question whether or not it is right to discourage litigation is a serious one to which lawyers answer that courts of law are the natural arena for the settlement of substantial differences. Upon this a distinguished American lawyer, whose works have been read with great interest in this country, holds an apparently opposite opinion. He says of certain by-gone reforms in the practice of the New York courts that they tended to diminish litigation, but there can be little doubt that the sense would be more complete if between diminish" and "litigation" the word lous were inserted.

reflect upon, that ship-owners should weigh the desirability of a mutual compact to eschew the law courts in toto. The remedy is in the hands of the treasury, for it is a matter of constant remark that the court fees are a source of lucrative income when all expenses have been paid. An addition to the judicial staff is therefore not impossible.

Our new palace of justice, the Royal Courts, has not been altogether successful. One-half of the building, the Central Hall, is of no use whatever, except upon the annual occasion of the procession of the judges. If it and the courts had been on the same level, it would have been eagerly utilized as a place for impromptu consultations, after the manner formerly in vogue in Westminster Hall. But the courts are situated in surrounding galleries, and the greater number of them are separated from the hall by at least a hundred yards of passage. In addition to their structural defects the law courts suffer grievously from mismanagement. There is an elaborate apparatus for turning on hot and cold air at will, but no one understands the mode of manipulation, so that the ordinary course is that one is scorched by tropical blasts in summer and chilled by artificial north-easters in winter. Also the old electric lighting machinery has been sold and the new is not ready nor likely to be for many a long day, to the infinite annoyance of the judges and of practitioners.

Lord Coleridge has been performing a useful task in the course of the present Circuit by calling attention to the subject of the inequality of sentences. There is a prevalent disposition to think that his conclusions are a little too hasty and that he has,in yielding to the dictates of humanity, forgotten the logical theory of punishment. Also your correspondent does not quite know, nor has he found any one to explain to him intelligibly, what Lord Coleridge means by saying that we manufacture our own criminals." That we did so before the system of solitary confinement was introduced is a fact; that we do so now is questionable, except in so far as we cannot help breeding them.

64

An interesting phenomenon of the present sittings, and one which may not be without influence in simplifrivo-fying the difficulties indicated by the word "delay," has been the rapidity with which judges, sitting without juries, have disposed of their lists. The officials have been at their wits' end to manufacture lists sufficently large to satisfy the voracious appetites of Justices Mathews, Kay and North. Suits with highly sounding names went down before them like ripe corn before the knives of a reaping machine. The former judge is especially notorious for a capacity for getting to the root of a dispute, which in a man of less authority, would be stigmatized as jumping at conclusions. Technicalities he scorns as quibbles and intricate legal arguments are met by the criticism, "That may be law, Mr., bu. it is certainly not busiuess." When he sits with a jury he takes them into his confidence by a look which seems to say, “you and I know all about this, gentlemen, and counsel's arguments assist us very little." But it is rumored that this expedition in courts of first instance will in all probability increase the arrears in the Court of Ap peal, especially in these days when every excuse for au appeal is eagerly seized. The last named judge has however recently given a decision in Wilkins v. Scinde, Delhi & Punjaub R. Co., which is founded on the principles of law, if upon any principle. A servant of an East India railway applied for furlough to which he was entitled after long and faithful service. The application was granted, and two days later the servant received a notice that a six months' notice must be included in the grant of furlough. The Divisional Court will, ere long, express their opinion as to the law upon this point, but there can be no question that

The most serious danger by which the legal profession is threatened in England is contained in the threat of the trading communities to establish private courts of commercial arbitration. Their reasons are two-fold. In the first place they say that lawyers know nothing of business, a categorical accusation which the bar indignantly denies. Nor can there be any hesitation in saying that there are at the bar specialists in every kind of business who only differ from men of business in their complete understanding of the law. Such men are well-known even amongst juniors. There is Mr. Moulton, who is a scientific man as well as a lawyer, and to whom the facts which crop up in patent cases, and in questions concerning electric lighting are as familiar as the alphabet. Mr. Gorell Barnes is a successful advocate in shipping cases, because he has had practical experience in the matter; Mr. Shortt is familiar with the intricacies of publishers' offices, and the list might be continued to an indefinite length. There are incapable men in this as in every other profession, but suitors are not often their victims for they drop out of the race early. But the second of the reasons for the discontent with which commercial men regard the administration of the law is as weighty as it is old. Delay, which is the curse of suitors, threatens to to be the ruin of the lawyers themselves. In the settlement of commercial disputes this delay is absolutely ruinous, especially where the shipping interests are concerned, and it is hardly strange, though it is not altogether leasant to

the action of the company was not prompted by the principles of honesty.

Vice-Chancellor Bacon has given general satisfaction by his decision that the executrix of Lady Lytton was not entitled to publish the late Lord Lytton's love letters to his wife before the days of their disagreement. This venerable judge is as sound a lawyer as any man on the judicial bench, and has the merit of being extremely entertaining. Amongst his peculiarities is the correctness of his English style, for this is not a common characteristic of the judges. Lord Coleridge is always elegant in his diction, and Mr. Justice Stephen is severely correct when he speaks deliberately, but the majority of the judges are, by reason of an affection for hanging sentences, the despair of the reporters. So much is this the case that the reports, which purport to be taken verbatim, cannot do more than represent the substantial meaning of judicial observations. But slipshod style and inarticulate pronunciation are fiercely mocked by Vice-Chancellor Bacon, who is apt to say, "he may be talking double Dutch, but English it is not." Moreover he is a great stickler for old customs, and objects strongly to that anomalous thing, a bearded barrister.

Two causes célèbres are in prospect, but there is every reason to believe that the public will find its meal of scandal sadly disappointing. The defendant in Fortescue v. Garmoyle (a Savoy actress against the son of Lord Cairns) is out of England and will not return till the trial is over; and the case of Adams v. Coleridge cannot well involve any thing but a point of law. If however they should prove interesting, there may be an opportunity of describing them on a future occasion.

[blocks in formation]

Editor of the Albany Law Journal: "Attentive readers of the opinion of Mr. Justice Field (U. S. Cir. Ct., Ninth Circuit) in the matter of Look Tin Sing, reported in the last number of the JOURNAL, will not fail to remember that his honor limits the words 'subject to the jurisdiction' in the first section of the fourteenth amendment, to except from citizenship only children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. But in the Slaughter House case, 16 Wall. 36, Mr. Justice Miller delivering the opinion, the court say: The phrase, 'subject to its jurisdiction,' was intended to exclude from its operation children of ministers, consuls and citizens or subjects of foreign States born within the United States.' (The italics are mine.)"

I clip the above from a communication in your JOURNAL of the 22d inst., signed "Alex. Porter Morse." He is evidently a very inattentive reader of the opinion of Mr. Justice Field, to which he refers, or he would not have stated that the justice had limited the words, "subject to the jurisdiction" of the United States in the fourteenth amendment, so as to except from citizenship only children born in the United States of persons engaged in the diplomatic service of foreign governments.

So far from limiting the words to such persons, the justice also says that they except from citizenship "persons born on a public vessel of a foreign country, whilst within the waters of the United States." He

also extends their application to "persons who, though born or naturalized in the United States, have renounced their allegiance to our government," expatriated themselves, and became citizens of a foreign government. It is to such subjects that the language of Mr. Justice Miller, in the famous Slaughter House cases applies.

It would be a very strange state of things, if all the children born in the United States of foreigners, who had never become naturalized, were aliens. Probably more than a million of citizens of the United States are so only from the fact of their birth here, their parents having been foreigners who were never naturalized. The doctrine laid down in the opinion in question goes a little further than that contained in the revised Code of Italy on this subject, referred to by your correspondent, that "the child of an alien is an alien." The child of an alien born in this country, as emphatically enunciated in Justice Field's opinion, is a citizen; entitled to all the rights and privilges of such a status, except in the cases specially mentioned. GEORGE O'DOHERTY.

WASHINGTON, Nov. 22, 1884.

BUSH V. LATHROP.

Editor of the Albany Law Journal:

The Supreme Court of Nevada in Haydon v. Nicoletti, 30 A. L. J. 386, cites and follows Bush v. Lathrop, 22 N. Y. 547. The exact status of this case in New York is an interesting study. In Moor v. Metropolitan Bank, 55 N. Y. 41 (opinion by Grover, J.), the Reporter head-notes the case as overruled. In Greene v. Warnick, 64 N. Y. 225 (opinion by Earl, J.), the court quotes Judge Allen's opinion in Schafer v. Reilly, 50 N. Y. 61, approving Judge Denio's opinion in Bush v. Lathrop, as a just exposition of the law as well upon principle as upon authority." I have followed up Bush v. Lathrop somewhat, and am inclined to think (from the reports) that Judge Grover, who gave the opinion as above, carried a kuife for that case. I hope some correspondent of yours will give us the benefit of his investigations about it.

[ocr errors]
[blocks in formation]

A CORRECTION. Editor of the Albany Law Journal:

There are typographical errata in a communication written by the undersigned, and published in the last number of the JOURNAL, which I desire to correct. Referring to constitutional provisions and to statute law in the United States, I said that there was "inconsistency and inequality." The types have it "irregularity," which may be an appropriate term, but it was not in my mind. Again, "dominant northern States" may not be as intelligible to the casual reader as "dominant modern States." The substitute of "that" for "than" in concluding paragraph is obvious. Very truly yours,

ALEX. PORTER MORSE. WASHINGTON, D. C.,November 24, 1884.

NEW BOOKS AND NEW EDITIONS.

--

BISHOP ON INSOLVENT DEBTORS.

A Treatise on the Common and Statute Law of the State of New York relating to Insolvent Debtors, including article first, second and third of title 1, chapter xvii, of the Code of Civil Procedure, and the law of voluntary assignments

« AnteriorContinuar »