Imágenes de páginas

rects that the amended order be inserted in the case opinion. We agree with the publishers, at least, that on which the appeal in this action is now pending such a work (if patronized) would tend to sell textbefore the General Term and affirmed as to the rest of books. the order without costs to either party in this court -Carter v. Beckwith. - Motion to dismiss appeal de In these days when it is popularly supposed that a nied without costs, and order affirmed with costs man's will may be set aside for almost any eccentricity Lord v. Harrison. - Order modified by quaking it

which he can be shown to have possessed in his life, one of reversal simply, without costs to either party

and which popular supposition is supported by many in this court -- In re Guardian of Hubbard. — Ap

verdicts and by not a few courts, the case of Lee v. Lee, peal dismissed with costs - In re Kings County Eleva 4 McCord, is interesting as showing how differently ted Railway Co., American National Bank of New things were managed in the year 18:27. It is safe to say York v. Wheelock.

that such a will as that of Mason Lee, made and exe

cuted by such an individual, would not, in the year NOTES.

1880, be permitted to stand. Here is the will: An

estate worth $50,000 was left to the States of Tennessee THE publishers of the American Law Review, in an and South Carolina, his heir at law and his two illeT advertisement on the cover of the current number

gitimate sons being disinherited. No part of his estate, of that periodical, print some half dozen commenda

the will especially enjoined, should be “in any wise tory expressions, by eminent judges, concerning Judge

inherited by any of my relatives while wood grows or Cooley's recent manual of American Constitutional

water runs." His executors, one of whom was deLaw, and then quote the adverse opinion of the South

scribed as “one of the first-rate Baptist preachers," ern Law Review, remarking that it shows “how much

were empowered to defend the will "so long as there a ‘Review' may differ from such excellent judges, on

is money left to fee the best lawyer in Charleston." matters connected with their specialties." This is a

Here is the testator: A man who believed in witches; cruel thrust at some of the independent book notices

who believed that an influence could be exerted on his of the American Law Review.

body and mind from a distance; that some of his rela

tions were in his teeth, and in order to dislodge them Many of our contemporaries, legal and lay, at home

he had fourteen drawn. He made his own clothes; and abroad, have cupied from our columns Mr. Rogers'

his pants were like petticoats, his coat was a blanket amusing article on “Drinks, Drinkers, and Drinking,"

with a hole cut in it. He kept his hair cut close to and have given him and this JOURNAL due credit; but

prevent the witches getting hold of it. He had fifteen the Luzerne Legal Register (with which we have not

swords of great size, one of which he carried constantly. the honor of exchanging) copies it, apparently as orig.

He slept in the day time, and kept awake at night. inal, leaving off the last paragraph and the name of the

He believed he had the devil nailed up in his fire-place. writer, and ignoring ourselves. Was the editor illus

His house was a hovel adjoining a pig-sty. He was trating the subject in person?

easily alarmed; the ticking of a clock frightened him.

He cut off the tails of his cattle, giving as a reason that The September number of the Criminal Law Maga

they made themselves poor fighting flies, and if their

tails were off they would get fat; he also cut off the zine contains a leading article on Larceny by agent,

ears of all his horses and mules. A reason which he servant, or clerk, and a number of interesting cases in

gave for not providing for one of his sons was that he full, among which are State v. Fellows, on what con

was his twin brother. The will of this extraordinary stitutes criminal adultery, and Gordon v. Commons

person being contested on the ground of insanity, was wealth, on the competency of grand jurors as wit

sustained by a jury, and on appeal by the Supreme nesses, both of which are annotated. The editor might

Court. - Central Law Journal. have referred in the note on the former, to the recent case of Montana v. Whitcomb, 1 Mont. 359; S. C., 25 Am. Rep. 740, holding that a married person cannot The London Law Journal says, “It is stated that the commit fornication, and observing that if either of the attorney-general has granted his fiat for the issue of a offenders is married, it is adultery; and Hood v. State, writ of error from the judgment of the Court of Ap56 Ind. 263; S. C., 26 Am. Rep. 21, holding, contra the peal to the House of Lords, in the case of Castro v. principal case, that to constitute ad ultery the woman Reginam. In spite of the strong expression of opinion must be married.

by Lord Justice James, we think this course is fully

justified." - A singular action is pending, says the Mr. Benj. Vaughan Abbott announces an Index Di. London Telegraph, before the Imperial Royal Tribunal gest of Text Books. “The purpose of the work is to at Marburg. An Italian commercial traveller sues the direct the lawyer to the particular passage in any text Süd-Bahn Company, for injuries sustained by him book where a given topic is treated; and to render through a railway accident which recently happened available all that is valuable in the 1,500 or 2,000 vol upon their line. The plaintiff, at the very moment in umes of text-books, so that the reader may know which the collision took place, was introducing a junk what text-books to consult, and the particular section of Bologua sausage into his mouth on the point of a or pages where the intelligent discussion of each pen-knife, and the shock imparted to him by the accipoint in all the topics of the law is to be found. The dent caused him to widen that feature by an involunnumber of volumes of Abbott's Index Digest will de tary slit, some two inches in length. For the pain and pend somewhat upon the general voice of the bar upon disfigurement thus incurred he claims a large pecunthe comparative advantages of embracing a large num niary indemnity. The railway company, however, reber of treatises, or of limiting the work to the consid fuses to admit any obligation to compensate a person eration of the more modern text-books. At present, for injuries incurred by his own indecorousness of four or five volumes are contemplated, embracing conduct and evil manners, pleading that “po decent about two thousand volumes of the most esteemed text person eats with his or her knife, and that the plaintbooks in all branches of the law. The publishers re iff, having hurt himself in the very act of committing spectfully solicit any expression of opinion on this a social delict, must bear the consequences of his ofsubject which the friends of such an undertaking may fense." We should suppose he might set up the custom feel willing to give." Perhaps the request for "ex of commercial travellers to eat in that way. The case pression of opinion” does not contemplate any but resembles that of the dentist who was injured by a favorable opinions, and therefore we withhold our | jolt of the cars while he was biting off a cigar.

The Albany Law Journal.

should not be deranged.” “Certainly nothing but merely speculative ground exists for drawing such

an inference.” It seems to us that this argument is ALBANY, OCTOBER 2, 1880.

fallacious, first, in assuming that section 11 furnishes the only direction for supplying a vacancy caused

by full service and expiration of term; second, that CURRENT TOPICS.

the two years' provision has any thing to do with ATTORNEY-GENERAL YOUMANS, of South

the question. Section 2 prescribes that the judges A Carolina, has sent us his argument for the

shall be elected by the general assembly, and shall plaintiff in the controversy between Messrs. Simp

continue in office until successors are elected and

qualified. That is complete in itself. Then section son and Willard as to the title to the office of chief justice of that State. The Constitution provides

11 prescribes that “all vacancies shall be filled by

election as herein prescribed,” except that when that the judges shall be elected by joint vote of the

the unexpired term does not exceed one year, such general assembly, for the term of six years, to be so

vacancy shall be filled by" the governor. Does this classified that one shall go out of office every two

section refer to any thing but casual vacancies? We years, and that vacancies shall be filled by the like

think not. Otherwise it would be a superfluous proelection, “provided, that if the unexpired term does

vision, for the mode of election has been already not exceed one year, such vacancy may be filled by executive appointment.” Chief Justice Moses died in

prescribed and is moreover therein explicitly re

ferred to. It seems pretty clear that the latter secoffice, and on May 15, 1877, Chief Justice Willard

tion was added simply to provide for casual vacanwas elected in his place. The term for which Chief

cies and unexpired terms, and for the same class of Justice Moses was elected did not expire until July

vacancies as are referred to in the provision for exe29, 1880. On December 18, 1879, the claimant, Mr. Simpson, was elected to fill the vacancy about to be

cutive appointment. occasioned by the supposed expiration of Chief

The General Term of the New York Supreme Justice Willard's term. The question now


Court for the Third Department have affirmed Juswhether Chief Justice Willard's election was in

tice Westbrook's order, in the Belden case, to the legal effect for a full term of six years, or only for

effect that against the State, the courts cannot give the unexpired time of Chief Justice Moses' term.

an affirmative judgment, even for a counter-claim or The argument involves the meaning of the word

set-off interposed by a defendant sued by the State; “ vacancy," as used in the Constitution, and upon

and that the usual stipulation to submit to judgthis point we should think the proviso quite siguifi

ment absolute on an appeal from an order granting cant.

a new trial will not alone authorize an affirmative

judgment against the stipulating party, on a counChief Justice Willard, however, in person, makes

ter-claim appearing in the pleadings, but not passed an ingenious argument to the contrary. He says:

on at the trial. See 21 Alb. L. J. 481. The New “It is clear that section 11 embraces both the case

York Daily Register, in connection with this decisof a vacancy occurring by reason of the expiration

| ion, draws attention to the recent ruling of Judge of the constitutional term of six years, and that of

Russell, of the New York Superior Court, in Rust v. a vacancy occurring before the expiration of such

Hanselt, to the following effect: Judgment absoconstitutional term by reason of death, resignation,

lute was rendered against a defendant in accordance or removal. Its language is, 'All vacancies in the

with his stipulation, given on his appeal from an Supreme Court, or other inferior tribunal, shall be

order granting to plaintiff a new trial, and a referfilled,' etc. Disregarding, then, the case of an un

ence was ordered to ascertain the amount due to the expired term that does not exceed one year, which

plaintiff; the referee reported that nothing was due is treated of in the proviso to that section, it places

to the plaintiff, but that there was a sum due to the all vacancies that may occur from any cause in a

| defendant on his counter-claim; held, that the desingle class, and the authority for filling such va

fendant's right to affirmative relief was lost by the cancies is conveyed in the same language as it re

judgment rendered on his stipulation, and that he gards each member of that class.” “But it is con

could not enter judgment for the amount found due tended that there is reasonable ground to infer an

him. intent that the Legislature should have power to elect for a term less than six years, in the case of A correspondent last week, while agreeing with casual vacancies. The source pointed out as the our views of brevity in law reporting, thinks no ground of this inference is the expression used in report should be considered complete which does the Constitution to indicate the object of the classi- | not contain a memorandum of all authorities cited fication there made, namely, 'that one of the jus- | by counsel, not only to show whether prior cases in tices should go out of office every two years. It is l point were overlooked, but to assist counsel in simiclaimed that this ought to be read as equivalent to lar cases. We agree to this with some modificaa declaration that when any vacancy should occur tion. Of course our remarks were aimed against by casualty, the Legislature should temporarily sup- the practice of inserting entire briefs of counsel, ply the vacancy until the end of the term comes but we think even a memorandum can well be disaround, so that the system of intervals of two years | pensed with in a majority of cases, certainly in all

VOL. 22. — No. 14.

cases involving familiar and well-settled principles. dealing with the old customers would in effect be an Again, the memorandum can well be dispensed with injunction against the public. This is an ingenious where the opinion of the court elaborately discusses theoretical quibble. The injunction would only the cases in point. And finally, the memorandum touch a small number of the public. The honesty can well be dispensed with, in nearly all cases, ex-of the trading community at large affects them all. cept as to the argument of the unsuccessful counsel. No doubt the public benefit is of paramount imThere are no better reports in this country than Mr. portance, but it is undoubtedly of vastly greater Chaney's Michigan, and Mr. Stewart's New Jersey moment that the frauds of traders should be checked Equity, and neither of these habitually furnishes than that a limited number of persons should be deeven a memorandum of the arguments. On the prived of the right of going to two shops instead of other hand, we know of nothing more distracting being confined to one.” It seems to us that this and useless than the photographic reports of the reasoning is illogical in assuming that solicitation is arguments of counsel in the English reports, with | the only means of resuming trade with the old custhe interruptions of the judges, pertinent or imper- | tomers. Advertising and setting up the business, tinent, as it may happen. It must be borne in mind, without solicitation, would accomplish it to a large on the question of the usefulness of the memoran- extent: If parties choose to bind themselves, on dum, that as a rule, three cases out of four cited by | the sale of a business, not to resume that business counsel are not in point, and at least a quarter can- in that neighborhood, that is one thing; if they not even by courtesy be deemed to have any rele- choose simply to sell the good-will of the old busivancy to the case under discussion. It is too much ness, that is quite another. Parties must be judged to require reporters to examine and sift the cita | by their contracts. Unless a sale of a good-will tions.

shall be held to be equivalent to a covenant not to

resume the same business, the decision in question Partisanship received a just rebuke in the nomi

must be right. The doctrine involved in the connation of Judge Rapallo for the office of chief judge

trary argument has never been held, and probably of the Court of Appeals, in place of Chief Judge

in place of Chief Juage never will be.

place in the convention. This nomination, and that

NOTES OF CASES. of Chief Judge Folger for the same post, the public will recognize as the fittest that could be made.

| IN McAbe v. Thompson, Minnesota Supreme Court, The nominees are two of the only three remaining 1 Aug. 30, 1880, 6 N. W. Rep. 479, the question members of the court as reorganized under the Con- was whether unfinished burial cases and coffins, stitution of 1870; and by their long and faithful | held by a manufacturer for the purpose of being service, by their large attainments and intellectual finished and sold, constituted part of his stock in capacity, by their dignified and courteous demeanor, trade, within the meaning of the exemption law. by their mental equipoise and calmness, and by the The court said: “The respondent here, as shown public and private purity of their lives, they have by the findings, which are reasonably supported by earned the entire confidence of the public, irrespect- the evidence, was a manufacturer, engaged in the ive of party. They have adorned the judgment business of buying burial cases and caskets, which seat, and whichever shall be called to the chief post, were in an unfinished condition, but which were so the court will continue harmonious and efficient, far advanced in the process of manufacture as to be and will feel in all its members the satisfaction that ready for the trimmings on the outside and the lina just appreciation of excellent public service al- | ing on the inside, and finishing them himself by his ways brings to those who render it.

own work and labor, and the addition of such other

materials as were necessary to fit them for sale and The question on which we recently commented, use. It is found as a fact that this additional work, whether a sale of a good-will prohibits the vendor's labor, and material were necessary in order to finish subsequent dealings with the old customers unsolic them, and to fit them for sale and use; and the united, is thus remarked upon by the Solicitors' Jour contradicted evidence shows that they would thereby nal: “It seems to us, with deference, that the law be enhanced in value about two-thirds. The propas thus left permits great fraud. A man who sells erty which is the subject of this action, and which his good-will has only to incur the damages caused it is claimed was exempt, consisted of several of by one breach of his duty not to solicit, and the | these incomplete and unfinished burial cases and custom of the old customers may be effectually caskets, which the respondent had thus bought and stolen and lawfully retained. No doubt in many was holding for the sole purpose of so finishing and cases one purchase at a shop does not make the pur fitting them for sale and use. They constituted as chaser a regular customer, but in the case under much a part of his stock in trade, within the meanconsideration the trader is practically sure of the ing of the statute, liberally construed, as it must be, custom if he can only get the old customers to learn as did the screws, nails, trimmings, and lining, which the existence of his business; and this can be done were used in completing or finishing them.” It was effectually by the solicitation of one purchase. It also held that “the failure of respondent to interappears to us that the only point in favor of the depose his claim of exemption as to such property at cision of the Court of Appeal was stated by Lord the time of the levy could not work any estoppel Justice Brett — that an injunction against actually I against his making the claim subsequently, for it is neither found nor shown that the officer did, or omit- ble by a fine of not more than $100,” is applicable ted to do, any thing by reason of such act of omis- to a person stopping a train carrying the United sion of the respondent, or that the plaintiff in the States mail, although he has obtained a judgment execution was in any way prejudiced thereby.” In and writ of possession from a State court against Vanderhorst v. Bacon, 38 Mich. 669; S. C., 31 Am. the railroad company in respect to the lands about Rep. 328, it was held that the right to exemption to be crossed by such train. Patterson, commiswas not waived by the debtor's failing to claim it sioner, said: “Nor could the fact of want of reand receipting for the goods.

muneration by the relators to such owner, if proven

in the case, enter as an element for consideration In the late English case of Hatcher v. Ball, the

here. The United States were no party to any question of restraining the use of a person's name,

| laches by the relators in that respect, nor are they and the publication of a false advertisement, was de alleged to have been or to be cognizant of or privy cided. The plaintiff was the owner of an hotel at

to that failure by this company, or any preceding Dawlish called Hatcher's Royal Albert Hotel, and

organization. In the absence of notice, or of the the defendant owned an adjoining hotel called the

| fact being brought to their knowledge, they would Royal Hotel. The defendant had married a daugh

| be justified in regarding the title of the relators to ter of Hatcher the father, and had since December,

the land on which their tracks were laid to be as 1877, placed over his door “Hatcher's ” Royal Ho | good as that of any other road over which their

mails were carried. They found a road constructed hotel as the only hotel at Dawlish having an unin

and in running order, and recognized and used it terrupted sea view. The plaintiff complained of for postal service, just as they do an ordinary highthis advertisement, as his hotel also had a sea view.

way. To apply the principle of caveat emptor to The plaintiff had advertised his hotel as having a

them in such cases, and say they were bound to splendid sea view. Pollock, B., said: “Both on

look up the title of every railroad and spur and principle and on the authority of decided cases, branch, and ascertain if it was clear of claim and there was no sufficient case here calling for the in

cloud, would seem to impair, to a serious extent, terference of the court. As to the first part of the

the efficiency and benefit of the service.” “My motion in reference to the use of the word ‘Hatcher,

opinion is that no ultra or decisive steps should have it was clear that word had been used by the defend

been taken by the owner at so early a date. On beant without question since the year 1877, and there- ing advised of the facts the authorities of the fore there was no case either for an interim order, or

| United States, in equity, would have been comin fact for an injunction at all. As to the adver

pelled to make compensation, or fall back on the tisement, he was also of opinion no case had been

bonds of the company. They would have no fair made out for interference. It was no doubt true

claim to use the road, upon notice of the facts that the defendant's advertisement would deceive,

shown here, unless by agreement with the owner. and in fact it could scarcely be said that any hotel

But until such notice their right to carry the mail could have an uninterrupted sea view from all its

remained the same as before." windows. People should no doubt not exaggerate in their advertisements, but it was a question of de Campbell v. James, U. S. Circuit Court, Southern gree how far any advertisement constituted an ac- | District of New York, 3 Fed. Rep. 513, is a decistionable injury. Looking at the question in a rea

ion important to postmasters. The plaintiff had sonable light, would it be said that such an adver

recovered a judgment of more than $60,000 damtisement would constitute an injury, for instance, at

ages against Postmaster James, of New York city, Brighton or any of those towns where nearly all the

for unlicensed use of his patented stamp for cancelhotels would have a sea view ? The only question

ling postal stamps. The defendant moved for a cerwas, would such an advertisement make any differ- | tificate under section 989 of the Revised Statutes of ence where there was perhaps only one other hotel the United States. That section is as follows: with a sea view ? There was here no affirmative

“When a recovery is had in any suit or proceeding statement that the plaintiff's hotel had no sea view,

against a collector or other officer of the revenue for and therefore the case did not come within the

any act done by him, or for the recovery of any class of cases of Thomas v. Williams and Thorley's,

money exacted by or paid to him, and by him paid etc., Company v. Massam. It was also clear that de

into the treasury, in the performance of his official fendant did not claim any distinctive name so as to

duty, and the court certifies that there was probable come within another class of cases, and therefore

cause for the act done by the collector or other offion the whole the motion failed.”

cer, or that he acted under the direction of the sec

retary of the treasury or other proper officer of the In United States v. De Mott, commissioner's court, government, no execution shall issue against such district of New Jersey, 3 Fed. Rep. 478, it was held collector or other officer, but the amount so recoythat section 3995 of the Revised Statutes, provid ered shall, upon final judgment, be provided for ing that “any person who shall knowingly and and paid out of the proper appropriation from the willfully obstruct or retard the passage of the mail, treasury.” The motion was denied, on the ground or any carriage, horse, driver, or carrier carrying that a postmaster is not an “officer of the revenue." the same, shall, for every such offense, be punisha- | The court said: “It is clear that the word “reve


nue,' in all these forms of expression, means only | furnished that sum to the grantee to support a colthe revenue from customs. The act does not relate orable payment. It also appeared that the patient to revenue from any other source. So far as it re- had been under insane delusions. On these grounds lates to revenue from any source it relates only to the decision is distinguished in the principal case. revenue from customs. The words officers of the This is the only hostile decision there referred to. revenue,' in section 12, mean officers of the revenue In Dent v. Bennett, 4 My. & Cr. 269, Lord Chancelfrom customs. The words officers of the revenue' lor Cottenham said: "A medical attendant obtains in section 989 of the Revised Statutes, which is a | from his patient, eighty-five years of age, an agreemere revision or reprint of section 12 of the act of ment to pay him £25,000 for services completed two 1863, can have no different meaning from what it years before, the regular charge for which had been would have had if there had been no revision or re- previously paid; and this privately, without the inprint. Under said section 12 the words 'other offi tervention of any third person, and carefully concers of the revenue' would never have been con cealed until after the death of the patient.” “It strued to mean a postmaster. Therefore, they can- | was argued, upon the authority of the civil law, and not be so construed in section 989 of the Revised some reported cases, that medical attendants were, Statutes. The revision cannot change the meaning | upon questions of this kind, within that class of perof the same words by displacing the enactment sons whose acts, when dealing with their patients, from the connection in which Congress originally ought to be watched with great jealousy. Unplaced it. This is the view held by the post-office doubtedly they are; but I will not narrow the rule, department itself; for in the report of the post or run the risk of in any degree fettering the exermaster-general to the president, of November 8, cise of the beneficial jurisdiction of this court by 1879, reference is made to this suit, and to the de- any enumeration of the description of persons cision on it, by the interlocutory decree, adverse to against whom it ought to be most freely exercised. the defendant James, and it is stated that there is The relief,' as Sir S. Romilly says in his celebrated no provision of Federal law to secure certificates reply in Huguenin v. Baseley -- (from hearing which of probable cause' to United States officials, other I received so much pleasure tha: the recollection of than treasury officials, in cases of adverse judy- it has not been diminished by the lapse of more ments for acts done in their official capacity. This than thirty years) — 'the relief stands upon a genis unquestionably a correct view. For what acts eral principle, applying to all the variety of reladone in their official capacity treasury officials' may tions in which dominion may be exercised by one have certificates granted to them, under the statute, person over another;' and when I find an agreement, and whether such acts can ever include the act of so extravagant in its provisions, secretly obtained infringing a patent, are questions not involved in by a medical attendant from his patient of a very this case."

advanced age, and carefully concealed from his pro

fessional advisers and all other persons, and have it CONSTRUCTIVE FRAUD- PIIYSICIAN proved that the habits, views, and intentions of the AND PATIENT.

testator were wholly inconsistent with those pro

visions, I cannot but come to the conclusion that the N Audenreid's Appeal, 89 Penn. St. 114, A. was medical attendant did obtain it by some dominion I 70 years old, very wealthy, infirm and confined exercised over his patient.” The court also held to the house, but of sound mind and judgment. F. that the agreement was void at law, the money bewas his physician and confidential friend. A. exe- ing payable at death, as it was an inducement to cuted a contract with F., by which, in considera- hasten the patient's death. tion of one dollar and F.'s services in securing cer- Doggett v. Lane, 12 Mo. 215, was a case of a sale tain stock for A., A. agreed to transfer a certain} by patient to physician, and there was no proof of interest in the stock to F. F. received thereby inadequacy of price. The transaction was susabout $50,000. A. having died, his executors sued tained. to set aside the transaction. Teld, that F. was at Billaye v. Southee, 9 Hare, 534, was the case of a liberty to show that the transaction was a gift; that poor patient, becoming rich, and executing to his a physician is not prohibited from receiving a gift plıysician a note for £325, an amount greatly in exfrom his patient by reason of the mere relation; and cess of his services, and without the rendition of that the burden of proof of fairness is not on the any account. The court restrained the enforcement defendant.

of the note beyond the amount justly due for serSo far as the burden of proof is concerned, we vices, saying: “No part of the jurisdiction of the are inclined to believe this is opposed to the almost court is more useful than that which it exercises in unanimous current of authority. The following are watching and controlling transactions between perthe principal cases of gifts from patient to physi sons standing in a relation of confidence to each cian and contracts between them:

other; and in my opinion this part of the jurisdicGibson v. Russell, 2 Y. & C. 104. Here a deed of tion of the court cannot be too freely applied, either real estate from an aged and infirm person to his in as to the persons between whom or the circumtimate friend and medical attendant was set aside stances in which it is applied. The jurisdiction is for fraud, one of the circumstances in proof being | founded on the principle of correcting abuses of that the deed stated, contrary to the proof, a pecu- confidence, and I shall have no hesitation in saying niary consideration, £1,000. In fact the grantor ' it ought to be applied, whatever may be the nature

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