Imágenes de páginas


t be

extend it so as to include a check of the debtor which land originating in permission will not pr is not intended to represent the debt or taken as secur coming a right by prescription, if continued long ity for the debt, but was merely in this case a false enough, if the permission was of a “perpetual or untoken taken in place of money. (2) The fact that the limited character.” See, also, Ashley v. Ashley, 4 note was transferred in Massachusetts would not alter | Gray, 197; Ripley v. Bates, 110 Mass. 161; Washb. on the rule though the law may be different there, it not Eas., $ 4. Jewett v. Hussey. Opinion by Peters, J. being shown at trial that it is different. The court FIXTURES — ERECTED BY ONE IN POSSESSION UNDER cannot take judicial notice that the law of another

CONTRACT OF PURCHASE-REAL ESTATE.—Where a perState differs from our own. McBride v. Farmers'

son entered into possession of a tract of land without Bank, 26 N. Y. 450; Leavenworth v. Brockway, 2 Hill,

the payment of rent therefor, and to use and occupy it 201. Order reversed. Phænix Insurance Co. v. Church,

as his own in accordance with the terms of a contract appellant. Opinion by Andrews, J.

for its purchase, and erected large and substantial [Decided June 1, 1880.]

buildings thereon with engines and machinery for the USURY — MUST BE PROVED.— B. and 0. were law manufacture of an extract of bark for tanning puryers occupying the same office. Defendant negotiated poses, and then failed to perform the conditions of the a loan on mortgage to him from B., O. acting in the contract on his part and thereby acquire the title, transaction as the attorney for B. Defendant paid 0. the erections, engines and machinery are a part of the a bonus for the loan, no part of which was shown to realty and cannot be sold as personal property as have gone to B., and B. denied that he received any against the owner of the land. Fixtures attached to part, and O. and another witness testified that B. knew premises by one in possession under a contract of purnothing of the payment of the bonus which 0. stated chase, where he fails to perform on his part and thereby that he retained it entirely for his own benefit. Held, to acquire a title, become a part of the realty, like fixnot to establish the taking of usury on the part of B. | tures annexed by a vendor or mortgagor, and may not Usury must be established like any other defense by be removed by him. See McRea v. Bank, 66 N. Y. proof of a satisfactory character, and a party cannot 490; Symonds v. Harris, 51 Me. 20; Strickland v. be made liable for the act of an agent intrusted with Parker, 54 id. 266; Elwell on Fixt. 22, 273; Cooley on money to invest, who exacted a bonus for himself as a Torts, 429; 1 Washb. on Real Prop. 6. The rule holds condition of making the loan, without the knowledge in Massachusetts. Eastman v. Foster, 8 Metc. 19, 26; or assent of his principal. Guardian Mut. Ins. Co. v. McLaughlin v. Nash, 14 Allen, 138; Oakman v. Ins. Co., Kasbaw, 66 N. Y. 514; Condit v. Baldwin, 21 id. 219. | 98 Mass. 57; Poor v. Oakman, 104 id. 309, 318; Madigan Judgment affirmed. Van Wyck et al. v. Walters etv. McCarthy, 108 id. 376. In Richtmyer v. Morss, 3 al., appellants. Opinion by Miller, J.

Keyes, 350, it was held, that except in cases where the [Decided June 8, 1880.]

relation of landlord and tenant exists one claiming the

building as personal property must prove that it was MAINE SUPREME JUDICIAL COURT AB

erected upon an agreement between the builder and

the owner of the fee of the land that it was to be conSTRACT.*

sidered strictly a personal chattel; which is in effect JANUARY, 1880.

the Massachusetts rule. See, also, Smith v. Benson, 1

Hill, 176. The same point was expressly decided in EASEMENT — IIOW ACQUIRED - USE HAVING ORIGIN Ogden v. Stock, 34 III. 526, and the court says, “if the IN PAROL. —- An easement may be acquired by a use of party making the improvement, as between himself land, the use being continued long enough, having its and the owner of the soil, bas no right to erect the origin and continuance in a parol gift or grant. Any same as property separate and distinct from the freeoccupation or enjoyment of the land of another under hold, an intention so to do, no matter how clearly a claim of ownership is in a legal sense an usurpation manifested, is of no avail." Perkins v. Swank, 43 of the right of the true owner, constituting an adverse Miss. 319, and Leland v. Gassett, 17 Vt. 403, are to the possession. The principle is concisely and clearly same effect, and Christian v. Dripps, 28 Penn. St. 271, stated and illustrated in Sumner v. Stevens, 6 Metc. indicates that the same would be held in that State. 337, where it was held, that if a son enters upon land See, also, Yates v. Mullen, 24 Ind. 278; Rines v. Bachunder a parol gift thereof from his father, who owned elder, 62 Me. 95; Osgood v. Howard, 6 id. 453; Fuller the land, and has the sole and exclusive possession for v. Faber, 39 id, 519; The cases Russell v. Richards, 10 twenty years, he acquires title thereby. Shaw, C. J., id. 429; S. C., 11 id. 371; Pullen v. Bell, 40 id. 314, dissays: “Had the tenaut simply shown an adverse and tinguished. Hinkley & Egery Iron Co. v. Black. Opinexclusive possession for twenty years, he would have ion by Symonds, J shown that the owner had no right of entry, and that would have been a good defense to this action. Is it

VIRGINIA SUPREME COURT OF APPEALS less so that the tenant entered under color of title? A

ABSTRACT. grant, sale, or gift of land by parol is void by the statute. But when accompanied by an actual entry and

FEBRUARY, 1880.* possession, it manifests the intent of the donor to enter and take as owner, and not as tenant; and it equally FIXTURES - WHEN MACHINERY IN FACTORY FIXproves an admission on the part of the donor, that the TURE AS BETWEEN VENDOR AND VENDEE. - Where the possession is so taken. Such a possession is adverse. machinery in a factory is permanent in its character, The doctrine that a parol demise and exclusive occu- and essential to the purposes for which the building is pation under it by the grantee may amount to an occupied, it must be regarded as realty, and passes with adverse possession that would transfer the title to land, the building; and whatever is essential to the purposes was approved and applied in the case of Webster v. for which the building is used will be considered as Holland, 58 Me. 168. So a person may, by gift or sale, a fixture, although the connection between them may dispose of an easement by parol, and the donee or be such that it may be severed without physical or vendee obtain a prescription thereby after the lapse of lasting injury to either. See Green v. Phillips, 6 Gratt. sufficient time. It must appear that the privilege was 752. B., to secure a debt of $3,000 for money lent to not used under a letting, or license, or in any way in him by S., conveyed to C., in trust, a lot of land in the subordination to the title of the legal owner. In Ar- town of F., described as containing one acre of land buckle v. Ward, 29 Vt. 43, it was held that the use of on which B. has erected a planing mill and spoke fac*To appear in 70 Maine Reports.

* To appear in 32 Grattan's Reports.

tory; and by the same deed he conveyed and assigned that he had purchased it as genuine, and had no knowlto C. a policy of insurance he had taken out on the edge or cause to suspect that it was not so. In Comsaid planing mill, spoke factory and machinery, and monwealth v. Mash, 7 Metc. 472, wbich was the case of covenanted to keep the policy in full force until the a woman marrying after her husband had been absent debt was paid. The lot and building independent of for several years, in the honest belief that he was dead; the machinery was not worth more than $1,000. Held, such defense was disallowed. The question appertains that the machinery in the building passed under the to the department of statutory construction, and to deed. Shelton v. Ficklin. Opinion by Christian, J.; introduce into the act the requisite of a guilty mind, Burks and Staples, JJ., dissented.

it must appear that such was the intent of the law

maker. In this case the duty prescribed being a simple LIMITATIONS -STATUTE OF- ACKNOWLEDGMENT OF

one and easily performed, held, that there was no DEBT-TO PERSON OTHER THAN CREDITOR. — A depo

ground on which the court could import into the act a sition of the maker of a note given and signed by him,

requirement that to constitute guilt an intentional in a case in which the oblicee was not a party, for the

violation of the law must be shown. New Jersey purpose of obtaining a credit for the note as to be paid

Court of Errors. Halsted v. State. Opinion by by him, and for which he was allowed such a credit in

Beasley, C. J. (Appearing in 12 Vroom's Reports.) that case, is such an acknowledgment of the debt by him as will defeat the plea of the statute of limitations

INTOXICATION — MAY BE SHOWN IN ORDER TO DEin an action on the note by the obligee against him. TERMINE DEGREE OF CRIME. — Whilst voluntary inThe creditor is bound to prove a promise, but he is not toxication is no defense to the fact of guilt, yet where required to prove an express promise. It is sufficient the question of intent or premeditation is involved, for him, under the statute, to establish an acknowl- evidence of it is admissible for the purpose of deteredgment in writing, from wbich a promise of payment mining the precise degree of the crime. And in all might be implied. Such acknowledgment, to be effect- cases where the question is between murder in the ual, must not consist of equivocal, vague and indeter

first and second degree, the fact of the prisoner's minate expressions; but ought to contain an unquali

drunkenness may be proved to shed light on mental fied and direct admission of a previous, subsisting

status, and thereby enable the jury to determine debt, which the party is liable for and willing to pay. whether the killing was from a premeditated purpose, Bell v. Morrison, 1 Pet. 351, 362. The same rule is laid or from passion excited from inadequate provocation. down, with some variety of expression, in other cases. But caution is necessary in the application of the docA distinct and unqualified acknowledgment would trine, as there may be many cases of premeditated have the same effect as a promise, because from such murder, in which the prisoner previously nerves himan acknowledgment the law implies a promise to pay.

self for the deed by liquor. In such cases as these, Linsell v. Bonsor, 2 Bingh. N. Cas. 241 (29 Eng. C. L. drunkenness is entitled to no consideration in favor of 319). If an acknowledgment is relied on it ought to be the prisoner in determining the degree of his crime, a direct and unqualified admission of a present sub but on the contrary, tends to elevate the offense to sisting debt, from which a promise to pay would

murder in the first degree. Commonwealth v. Jones, naturally and irresistibly be implied. Sutton v. Bur 1 Leigh, 598; Pirtle v. State, 9 Humph. 663; Swan v. russ, 9 Leigh, 381. If there be an unequivocal admis

State, 4 id. 136; Boswell v. Commonwealth, 20 Gratt. sion that the debt is still due and unpaid, unaccompa 860. Virginia Supreme Court of Appeals. Willis v. nied by an expression, declaration or qualification Commonwealth. Opinion by Anderson, J. (To appear indicative of an intention not to pay, the state of facts

in 32 Grattan's Reports.) out of which the law implies a promise is then present, and the party is bound by it. Young v. Monpoey, 2 Bailey (s. C.), 278. See, also, Bangs v. Hall, 2 Pick. PROCEEDINGS OF THE AMERICAN BAR 368; Bailey v. Crane, 21 id. 323; Russell v. Copp, 5 N. H,

ASSOCIATION. 154; Head v. Manners, 5 J. J. Marshall, 255; Peebles v. Mason, 2 Dev. 367; Aylett v. Robinson, 9 Leigh, 45; THE principal proceedings of the American Bar Sutton v. Burruss, id. 381; Butcher v. Hixton, 4 id.

I Association at its convention at Saratogo last 519; Bell v. Crawford, 8 Gratt. 110. Dinguid v. School

week were the following: President Bristow read his field. Opinion by Burks, J.

annual report, communicating the most noteworthy changes in statutory law on points of general interest

made in the several States and by Congress during the CRIMINAL LAW.

year. The fact that twenty-five States have only bien

nial sessions, and the past year having been the off INTENT — WHEN NOT NECESSARY TO PROVE IT. - year in twenty of these, has not left so much to report When an act, in general terms, is made indictable, a as last year. The Chinese have been attacked vigorcriminal intent need not be shown, unless, from the ously, but laws against them have been declared unlanguage or effects of the laws, a purpose to require constitutional in the United States courts, as fast as the existence of such intent can be discovered. It has taken there. Railroads have been attacked by laws in been many times decided, and indeed is the admitted California and Georgia. In Georgia a commission is general rule, that ignorance of the law is no defense named to fix rates. Maine has a law to prevent railagainst a criminal charge, Mr. Wharton, in 19 Alb. L. road employees from striking and stopping trains. J. 34, says "that ignorance of law is no defense is Connecticut has a law to examine men for color-blindgenerally admitted." In State v. Goodenow, 65 Me. 30, pess and prevent their employment on railroad s. it was decided, on an indictment for adultery, that the Severe laws against robbing graves have been enacted defendant could not defend on the plea that she be in Iowa, Ohio, and Maine. New York has a la v lieved that she had been legally divorced. And in against sending annoying letters, predicated on those like manner, it is easy to cite cases establishing the sent to the Rev. Dr. Dix, which might be construed to doctrine beyond dispute or cavil, that in many cases | reach many business letters. California and Georgija an honest mistake in regard to a state of facts will not | have laws which provide for appointing judges pero exculpate when the prohibition of a statute has been tem., by consent of parties. California legalizes wairviolated. In Reg. v. Woodrow, 15 M. & W. 404, which rants of arrest sent by telegraph. Connecticut exwas an information against a retailer of tobacco, for | empts property to the value of $1,000, belonging to having in his possession adulterated tobacco, it was pensioners, from taxation. The laws of inheritance held that he was punishable, although it was shown I have been changed in Massachusetts, giving husband or wife a greater proportion of property than hereto troubles were to arise under it. Patterson had a more fore, where the husband or wife dies intestate. Some essentially legal mind. In March, 1793, President States have attempted to rectify and improve their in Washington appointed Patterson one of the justices golvent laws. It is to be hoped that out of the various of the Supreme Court, and he died in office in 1806, laws proposed in Congress some equitable National having refused to be appointed chief justice, thereby bankrupt law may be evolved. The New York Civil allowing John Marshall to be appointed. The speaker Code of Procedure, recently passed, made many radical closed with an eloquent tribute to Malesherbes, the changes, and was strenuously opposed by many, but is defender of Louis XVI. now generally conceded to be an improvemeut on the Henry E. Young, of Charleston, S. C., read a paper old Code. Regarding the attempts to regulate railroad on Sunday laws. He gave a historical review of these rates, the problem is one needing solution. He thought laws. The first of which we have record was in the that railroads, unhampered by competition, can do | year 321, under Emperor Constantine. Among other much better for the country, if they choose, than things he forbade on that day was arbitration in suits, where there is a brisk competition, and he mentioned even by bishops. Theodosius, in 386, forbade shows the north-eastern part of England, where several un and spectacles in circus and arena. From the Roman profitable roads had been united and become profitable Empire the reader came to England, where the King under one management, affording greatly reduced of the Saxons, in 692, ordered that slaves made to rates. The New York law to authorize States to take work on Sunday by their lord's command were set assignment of claims against other States is an im free. Ethelstane, in 925, forbade to buy or sell on the portant one, and the constitutionality of it remains to Lord’s Day. After the Conquest there was a tendency be tested. The Census Bureau says that $100,000,000 to strengthen the laws for the observance of Sunday; in State debts have been repudiated. Massachusetts yet in the time of Edward III., the courts sat on Sunhas made life insurance policies, on which two prem- | day. In about 1564 the laws were made more striniums have been paid, non-forfeitable. South Carolina | gent, and the word “Sabbath” began to be used. has enacted a law similar to that of New York, re Under King James Puritanism was in the ascendant, moving liens on real estate after twenty years from and the lord mayor of London stopped the king's last payment. Anti-tramp laws have been passed in carriage in the streets of London on Sunday. Under several States, semingly much alike, except as to the Charles II and succeeding kings, the Sunday laws were length of time of imprisonment. New Jersey has constantly amended, but were not made stringent forbidden the payment of employees in store orders. enough to suit the Puritans. When Massachusetts Laws forbidding the intermarriage of blacks and was settled, among the first laws enacted were some whites have been passed in South Carolina and other for the observance of Sunday. Mr. Young proceeded States. The law heretofore passed to the same effect with a rapid review of the Sunday laws of many of the in Virginia has been declared constitutional by the States, and concluded with remarks on the same, sugUnited States court. Massachusetts has appointed a gesting their modification, particularly in reference to commission to examine persons arrested for the first allowing reasonable recreation, if not offensive. time, to see if they cannot be reformed without im George Tucker Bispham, of Philadelphia, read a prisonment. Georgia and Iowa have appointed em paper on the “Rights of Materialien, and Employees igrant commissions to present facts to induce immigra of Railroads as against Mortgages." When it was tion. Georgia has passed a stringent usury law. Only considered, he said, that over 10,000 miles of railroads twelve States and Territories have no laws against were now being operated under receivers appointed by usury. New Hampshire has offered a bounty for the courts, the magnitude of this subject could be estimanufacture of beet sugar. Louisiana requires every mated and the attention it had attracted in legal literperson carrying on a business or profession, except ature could be understood. Much discussion had agriculture aud a few others, to pay special license taken place during the past fifteen years before and by fees.

courts. In some cases courts had gone very far in inThe annual address was delivered by Cortlandt terfering with rights of bondholders. Courts had put Parker, of New Jersey, on Alexander Ilamilton and the priority which had been allowed to wages and William Patterson, whom he pronounced the archi- | supply claims on three grounds — public policy, which tects of the Federal Constitution. In recalling from required courts to protect the claims of those whose the past the great works of great lawyers, we uphold, labor or material went to maintain works of great he said, the reputation of our profession. These two | public convenience, such as railroads are; the general were of different scbools in politics, but they worked principle of equity that he who sought equity should together, each contending for his own ideas, and thus do equity; and because in some cases income which completed a structure which combined the best of would otherwise have been used to pay current exboth. The Constitution was more a growth from co penses for supplies and labor had been used to furnish lonial times than an edifice built up. Necessity had permanent improvements to the road; and it was just, bound the colonies together during the war; but at the in such cases, that funds which had been diverted close of the Revolution jealousies arose, which com- | from labor and supply claimants should be restored to pelled a new organization. Hamilton, while in camp them out of the net income in the hands of the reduring the war, had foreseen and sketched in a letter ceiver. These grounds of the decision of the courts the failure of the confederation, and prepared a plan were examined, as they were applicable to three classes for a Federal government. The convention to form of property, viz. : The corpus of mortgaged property, the Constitution was mainly called through the exer the income, and the personalty acquired after the tions of Hamilton. After its organization he presented creation of the mortgage, but supposed to be embraced his plan of a Constitution for the country, embodying in its terms. As to all of these classes of property the what came to be known as the Federal one. After- conclusions reached were that neither on the ground ward Judge Patterson presented his plan, embodying of public policy nor of general equity were wages and prominently the ideas of State sovereignty. Mainly supply claimants entitled to priority, and that even tho through his efforts the Senate was prevented from test of diversion and restoration, as laid down by the being organized on the basis of population. Hamil Supreme Court of the United States in Fosdick against ton and Patterson were alike eminent as lawyers. Schell, reported 9 Otto, was to be very cautiously Hamilton was no theorist, but was eminently a prac | applied, and should not be extended. This case was tical statesman, standing at the head of the New York commented on, and reference was also particularly Bar. His specialty was constitutional law. He early made to the recent order of the Circuit Court of the foresaw, after the Constitution went into effect, what I United States in the Philadelphia & Reading Railroad case, and the decision of the Supreme Court of Ver- | Hitchcock; Local Council, Philemon Bliss, Edward C. mont in the recent case of Poland against the Lemoille Kehr, and George W. Bailey. Nebraska - ViceValley Railroad Company.

President, James M. Wood work; Local Council, D. Henry D. Hyde, of Boston, read a paper on “Extra H. Calhoun, and Charles Y. Manderson. New Hampdition between the States." He said this was an im- shire - Vice-President, John H. Shirley; Local Counportant question which had grown up from the early cil, Ossian Ray, C. W. Stanley, and Alonzo P. Cardays of the colonies, and the practice was not uniform penter. New Jersey - Vice-President, A. Q. Keasby: in the States, records not being kept in many so as to Local Council, Garret D. W. Vroom, Charles Borcherbe available for consultation or reference. He cited | ling, and R. Wayne Parker. New York - Vicecases which had become subjects of discussion be President, Ciarkson N. Potter; Local Council, N. C. tween the governors of several States, and commended Moak, James M. Dudley, and W. B. French. Ohiothe States which had adopted rules for the governance Vice-President, Rufus King; Local Council, George of applicants and governors.

W. Houk, Stanley Matthews, Rufus P. Ranney, W.T. The following members of the Executive Committee McClintock, E. A. Ferguson, and Isaac H. Jordan. were elected, and the meeting adjourned: Arkansas, Pennsylvania - Vice-President- George W. Biddle; J. M. Moore; Alabama, David Clopton; Connecticut, | Local Council, A. A.Quterbridge, Henry Green, Geo. Roger Averill; District of Columbia, J. Hubley Ash Shiras, Jr., and Hugh M. North. . Rhode Island ton; Georgia, George A. Mercer; Illinois, Thomas Vice-President, Charles S. Bradley; Local Council, Hoyne; Indiana, Orris Robinson; Kentucky, John Benjamin F. Thurston and W. P. Sheffield, South W. Steveuson; Louisiana, Carleton Hunt; Maine, Carolina – Vice-President, Henry E. Young; Local Almon A. Strout; Maryland, Skipwith Wilmere ; Council, W. H. Braisley, Charles D. Simonton, and Massachusetts, Edmund H. Bennett, Michigan, | Robert W. Hoyt. Tennessee – Vice-President, WilO'Brien J. Atkinson; Mississippi, Joseph E. Leigh; liam F. Cooper; Local Council -- Albert T. McNeal Missouri, James O. Broadhead; Nebraska, Charles F. and B. M. Estes. Virginia – Vice-President, J. Ran. Manderson; New Hampshire, Albert S. Wait; New dolph Tucker; Local Council, W. J. Robertson, Leigh Jersey, Jacob Weart; New York, Edward F. Bullard ; R. Page, and John W. Daniel. Vermont - ViceOhio, George Hoadley ; Pennsylvania, Thomas E. | President, Daniel Roberts; Local Council, Newman Franklin; South Carolina, A. D. McGraw; Vermont, Paul and Aldace F. Walker. West Virginia – ViceLuke P. Poland; Virginia, Robert Quld; West Vir President, Edward B. Kuight; Local Council, John ginia, John A. Hutchinson; Wisconsin, John W. | A. Hutchinson and J. B. Jackson. Wisconsin --ViceCarey.

President, Silas W. Pinney; Local Council, William The following officers were chosen for the ensuing F. Vilas, Alfred S. Carey, and Ephraim Mariner. year:

The resolutions recommended last year by the ComPresident - Edward J. Phelps, of Vermont.

mittee on Legal Education and Admission to the Bar Secretary --- Edward Otis Hinkley, No. 43 North were taken up, when Mr. Carleton Hunt recommended Charles street, Baltimore, Md.

several amendments. The resolutions, with a substiTreasurer - Francis Rawle, No. 402 Walnut street, tute offered by Mr. James O. Broadhead, of Missouri, Philadelphia, Penn.

were debated at considerable length, and finally laid Executive Committee – L. P. Poland, St. Johnsbury, on the table, and the following resolution, offered by Vt. (Chairman); Simeon E. Baldwin, New Haven, Mr. Cortlandt Parker, was adopted : Conn., and William Allen Butler, New York.

Resolved, That the several State and other Bar Vice-Presidents and Local Councils -- Alabama

Associations be respectfully requested to recommend Vice-President, Edmund W. Pettus; Local Council,

and further the maintenance of schools of law. D. S. Troy and Walter S. Bragg. Arkansas -- VicePresident, James C. Tappan; Local Council, U. M.

Then resolutions were adopted calling on the viceRose, J. M. Moore, and P. C. Thweatt. California

presidents and local councils in the several States to Vice-President, John Pomeroy, Connecticut - Vice

report to the Committee on Legal Education the facts President, Origen S. Seymour; Local Council, Henry

in regard to admission to the Bar in their several C. Robinson and C. B. Andrews. District of Colum

States, and the means provided therein for promoting bia – Vice-President, H. H. Wells; Local Council, R.

and facilitating the study of law; said Committee on T. Merrick and Nathaniel Wilson. Delaware -- Vice

Legal Education to report the same to the association, President, Anthony Higgins. Georgia - Vice-Presi

with such suggestions as the committee may deem dent, Alexauder R. Lawton; Local Council, N. J.

proper. Hammond and L. N. Whittle; Illinois - Vice-Presi

The following resolutions were also adopted : dent, Thomas Hoyne; Local Council, Lyman Trum Resolved, That the Committee on Judicial Adminisbull and Benjamin F. Ayer. Indiana – Vice-Presi

tration be requested to ascertain, and report at the dents, David Davis and Benjamin Harrison; Local

next session, how far Congress can vest in State courts

power to execute a National bankrupt law. Council, A. W. Hendricks, Asa Igleheart, and Robert

Resolved, That the Committee on Jurisprudence be S. Taylor. Iowa — Vice-President, G. W. Hammond;

requested to ascertain, and report at the next session, Local Council, George G. Wright and Oliver P. Shiras. how far the executive officers of the general governKentucky – Vice-President, William Preston; Local ment can reverse the action of their predecessors in Council, William C. P. Bricheridge, James S. Pirke, cancelling laud patents which have already been is

sued. and John Mason Brown. Louisiana – Vice-President, F. P. Poche; Local Council, Thomas J. Semmes aud T. L. Bayne. Maine - Vice-President, Nathan Webb; NEW BOOKS AND NEW EDITIONS. Local Council, William L. Putnam and F. A. Wilson. Maryland - Vice-President, R. J. Gittings ; Local

JARMAN ON WILLS. Council, A. Leo Knott, W.J. Ross, Henry Stockbridge, and J. J. Alexander. Massachusetts - Vice-President, THE second volume of the new edition of this work, Henry D. Hydes; Local Council, Leonard A. Jones, 1 published by Frederick D. Linn & Co., of Jersey Frauk Goodwin, and Charles W. Clifford. Michigau City, with notes by Messrs. Randolph and Talcott, is Vice-President, Thomas M. Cooley; Local Council, before us. We have spoken our mind concerning the Archibald McDowell, John Atkinson, and Edward first volume (21 Alb. L. J. 379), and do not need parWilletts. Mississippi -- Vice-President, Lock E. Hous- ticularly to reiterate. The present volume seems in ton; Local Council, R. O. Reynolds, G. A. Evans, and no way inferior to the former, and the work when T. C. Catchings. Missouri — Vice-President, Henry I completed must be absolutely indispensable.


assumption that the digest is intelligently executed. Digest of the Decisions of the Supreme Court of the State of

Of this we cannot well judge until the work is comNew York, as reported in Barbour's Reports, now com- pleted, and then indeed only partially. Our criticism is pleto in 67 volumes, 1817 to 1877. Omitting cases re- based on the utter absence of any excuse or demand versed or overruled. By Oliver L. Barbour, LL. D., the for any such work. An artificial demand may be creReporter. Vols. 1, 2. Albany: W. C. Little & Co. 1880. | ated by the fact of publishing. But publishers and Pp. xvii, 1101, xvi, 1208.

book-makers owe it to the legal profession not to bind We had fondly hoped that we had heard the last of useless and heavy burdens on their backs. The volumes Mr. Barbour as a reporter, and of his reports, except before us are badly printed. in the sense in which we hear of a graveyard and peruse its inscriptions. His reports, with Howard's, have long been the bugbear of the legal profession of

CORRESPONDENCE. our State, and the object of satire among the profession elsewhere. Some of this is due to the inseparable de

VENTILATION. fects of a new system, with eight branches of the same court, and some to inexcusable carelessness and dull To the Editor of the Albany Law Journal : ness of the reporter. The publishers in their circular I heartily concur with the ideas you express in the say:

second editorial on “ Current Topics" in your issue of “This is a valuable series of reports, commencing the 14th inst., in relation to the ventilation of court with the organization of the present Supreme Court, rooms, and further in regard to the trouble that lawunder the Constitution of 1847, with an elective judi- | yers experience in the way of "nervousness, headciary, and general jurisdiction in both law and equity. | ache,” etc., but after all, if one of our profession It covers a period of nearly thirty years, and embraces desires to go to the extreme length of finding out by over five thousand seven hundred and seventy cases. experience just how much the human system can It contains opinions written by some of the ablest stand, let him go into a justice's office in the country judges who have ever adorned the bench, and decisions in the summer, and have his client and his client's upon a great variety of new subjects and questions friends stand at his back as he attempts to try the arising from the sweeping changes made in our judi- | cause, and he will feel as though the average Supremo ciary system by the new Constitution, the Judiciary Court room was heaven when placed in comparison. Act of May 12, 1847, and the Code of Procedure. Out

Very truly yours, of the chaos and confusion produced by those radical

JAMES GIBSON, JR. changes, the judges have striven to establish order, SALEM, N. Y., Aug. 17, 1880. system and harmony. And certainly the cases decided by the court during this formative period will never be

UNIFORM INDEXES. less valuable than those of any other portion of time of equal length."

To the Editor of the Albany Law Journal : Except the word “valuable,” all this is true down to The suggestion you have republished from the Daily but not including the last sentence. Barbour's Reports | Register - that reporters might well take the classifihave lost great part of their usefulness, and their use cations of the U. S. Digest and Am. Rep. Digests as a fulness decreases every year. Their authority in this basis for a somewhat uniform system of indexingState is small; in other States almost nothing. Nearly night be aided by a brief explanation of the principle every principle has been settled for us by our Court of followed. If you think so, perhaps you will add to Appeals. While Johnson, Wendell, Hill, Denio and these lines some explanation of the American Reports' Paige continue to be highly respectable authorities, method and pass the matter along to the other journals. here and throughout this country, Barbour is rarely The same list of titles could not be used in indexing cited, in our ultimate court, except by ingenious coun- all the reports, for contents of books differ. Federal sel to maintain some untenable position. We have so reports are largely complementary to State reports; ofteu dwelt on the annoying blunders and deficiencies one class needs titles that the other omits. Equity reof Mr. Barbour as a reporter, especially in his later ports and criminal must use different heads. Louisiana volumes, that we do not now purpose to spend time on has many peculiar terms and almost every State has the unpleasant subject. The question now is, what is some. But there might perhaps be some common the necessity for a digest of a particular series of old adoption of a principle. reports of an inferior court, duriug an unsettled and The classification of the United States Digest is formative period, to extend to three volumes and to founded on a principle or theorem condensible thus - I cost the purchaser $16.50? The publisher's circular must not try to give it in full or pursue the subject in admits that "many of the cases may be found in other detail. digests," but says they “are so buried out of sight Law is the effort of society to protect PERSONS, uuder a mass of other matter, that they are not easily including CORPORATIONS, in their rights aud relafound.” We have never experienced any difficulty in tions, to guard them in their PROPERTY, enforce finding any decision by resort to Abbott's Digest, their CONVEYANCES and CONTRACTS, and rewhere the cases in Barbour are placed with those in dress or punish their WRONGS and CRIMES, by the other reports, under appropriate heads; and we do means of judicial REMEDIES, founded upon EVInot now see the benefit of compelling the practitioner | DENCE, and administered by the civil arm of GOVto turn over an additional and partial digest. The ERNMENT. publishers say, “this set of reports contains a great! The words in capitals form ten categories roughly mass of valuable live law." True; but most of that designating ten large fields or classes in which most which is alive has had its life breathed into it by the propositions easily fall. But further subdivision is Court of Appeals, or is better decided by the earlier | needed. That is obtained by considering each as incourts. The publishers promise a list of reversed and cluding distinct species, and by making a separate title overruled cases in the last volume. If faithfully exe- | for each species, to include whatever is peculiar to it, cuted this will prove a long list, and if they should add while what is applicable to all, or to a species having a list of cases in which the principles involved have no alphabetic name, remains under the broad title. been settled by the Court of Appeals, or by the old Thus we have a broad title PERSONS, for whatever Supreme Court, Court of Chancery, or Court of Errors, applies to all persons in common (such matters as the small residuum would represent the true value of birth, age, death, etc.), and a specific title for each Barbour's Reports. The foregoing is written on the ' kind of persons and each personal relation distinctively

« AnteriorContinuar »