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The Albany Law Journal.

ALL communications intended for publication in the have in the direction and the discussions of a sociLAW JOURNAL should be addressed to the editor, and the

ety that is designed for the benefit of the whole name of the writer should be given, though not necessarily for publication.

world. Communications on business matters should be ad

Not only in numbers and influence has the Associadressed to the publishers.

tion grown, but its scope of action has been much enlarged. Its founders were at first moved by a de

sire to apply and extend the principle asserted in the ALBANY, SEPTEMBER 29, 1877. Geneva Arbitration, and secure the peaceful settle

ment of disputes between sovereign States, so far CURRENT TOPICS.

as might be, by the creation of international tribu

nals controlled by an international code. The THE recent meeting of the Association for the

Association, when formed, however, resolved to go Reform and Codification of the Law of Na

further, and deal with questions of law and usage tions, at Antwerp, was, notwithstanding the trou

affecting individual interests throughout the world. bled condition of Europe by reason of the war

The discussions at the various meetings, therefore, between Russia and Turkey, in every sense of the

instead of being confined to a consideration of the word, a successful one. The opening address was

rules which ought to regulate the intercourse of delivered by Lord O'Hagan, who gave an interest

nations in peace and in war, have frequently extending summary of the progress of the movement in

ed to those which should govern private persons in augurated by the society, and spoke flatteringly of

different countries in their conduct of business with the condition of the society and its future prospects.

each other. There has resulted from the action of As the Association is of American origin, we feel

the Association some very valuable suggestions in in this country a very deep interest in its well-being,

relation to a uniform law governing bills of exand the statements made by Lord O'Hagan will be

change, which have been submitted to various govcarefully read with pleasure by every one of us. It will be remembered that the idea of the Associa

ernmental authorities, and there is a prospect of the

adoption, before long, by the commercial nations of tion was suggested by the Washington Treaty and the Geneva Arbitration; that, in consequence of

the world, of a uniform code governing this subthe favor with which it was received by leading

ject. The question of general average has also

been under consideration, and progress has been men in this country, Dr. Miles went to Europe to submit the project for such an association, and

made toward the framing of a code governing the

matter, which it is believed will meet with general communicated with persons of learning, ability and

approval. In other branches of law, also, much position in various countries, who received him with respect, and advised an attempt at permanent or

has been done. The Association has not, however,

neglected the consideration of a public international ganization. It was proposed to hold the first meet

code, but one of its strongest committees has been ing in New York, but, as many who had actively

appointed to attend to that. The improvement favored the plan could not take a journey to that

of the condition of commerce was, nevertheless, place, it was ultimately resolved that such meeting

thought to be of more immediate importance, and should be convened at Brussels, where it was held October 10, 1873. Four annual meetings have been

this has led the members of the society to give the since held, one at Geneva, one at The Hague, one at

subjects more directly connected with commerce a Bremen, and the recent one at Antwerp. The grow

considerable share of present attention. It is to be ing strength of the Association is indicated by an

hoped that the next annual gathering of the Assoincrease in membership from ninety, when the meet

ciation may be as successful as those which have ing at The Hague was held in 1875, to five hundred

already taken place. and thirty at the time of the last gathering. These Very many of the profession in various parts of members are, as a rule, representative men of estab-| the State have received a circular letter from the lished reputation as jurists and politicians in the recording secretary of the New York Bar Assovarious civilized nations of the world. The attend- ciation, informing the recipient that he has been duly ance of Americans at the Antwerp conference was elected a member of the Association. Accompanynot as large as usual, which is perhaps not to be ing the letter is a copy of the constitution and act regretted. The representation of the English-of incorporation, also a paper for subscription and speaking people has been heretofore disproportion- return to the secretary, wherein the subscriber anately great. While it is true that Great Britain and nounces to the secretary that he subscribes the the United States are at present more concerned than constitution and by-laws of the Association, and any other nations in the settlement of many interna- | directs the subscription of his name to the roll of tional questions, the continental nations have also members. It is to be hoped that those receiving large interests in the matter, and should be allowed this communication will subscribe and return at to take a more prominent part than they hitherto 'once to the secretary the paper mentioned. The

VOL. 16.-- No. 13.

post-paid and directed envelope which accompanies that the defendant had no knowledge or informathe paper renders it perfectly easy for every one to tion sufficient to form a belief as to the truth of the do this, and those who omit doing it must be con facts in the second count of the complaint. The sidered as unwilling to aid in the very important court held the verification sufficient. This is the work of organizing the State bar.

first published decision under the new Code, but what

a multitude will hereafter be made and published! We have been asked by several members-elect of The old Code contained 473 sections, and the courts the State Bar Association, who have received the have not fully explained what it means. When will circular letter inviting them to forward their names they be able to make clear the purport and intention for subscription to the roll, of what advantage will of the 1496 sections of the new Code? membership in this society be to me? As this seems to be a question which arises in the minds of The Utah divorce business is likely to be brought many, we think it worth while to explain briefly to an end by the action of the grand jury, which what seems to us to be the advantage of a State or- | is examining the records of the Salt Lake County ganization of this kind, and the reasons why every

Probate Court. According to the report of a comrespectable attorney in the State should belong to

mittee appointed by the jury to make the examinait. It is the interest of every member of the bar tion, there have been 404 cases of divorce determined that deserves to be such, that the reputation of his in the tribunal mentioned during the past twelve profession shall be honorable; that its influence | months, and in nearly every instance all the parties shall be powerful, and that its business shall be

named in a case were non-residents of the Territory lucrative. To secure an honorable reputation it is

of Utah. The practice in this court seems to have necessary that disreputable acts on the part of law- been of the most liberal character, and designed to yers be prevented or punished, and that individuals

| facilitate the purposes of suitors. A person residcommitting such acts be excluded from the profes

ing abroad, and desiring a divorce, had simply to sion, and those liable to commit them prevented | file a complaint setting forth his cause of action, from entering it. To secure a powerful influence. | accompanied by his affidavit that he desired to beit is required that the bar act together in harmony come a resident of Utah. A summons to defendant and in pursuance of a fixed purpose. To insure a requiring an answer to be filed within ten days was lucrative business, it is essential that the encroach- | then issued and mailed to defendant at such postments of persons not admitted to the bar upon the office address as the complainant had by private field of labor properly belonging to the lawyers be

note designated. At the expiration of ten days the stopped, and that the expenses of litigation through

decree of divorce was granted. This was the preexorbitant official fees be cut down, and that every scribed mode, but it was found sometimes too strict facility for the transaction of legal business be

to meet the demands of applicants who did not wish afforded. All this can be accomplished by the

to wait ten days for their papers. The court would united action of the bar, and in no other manner,

then shorten the time to answer to two days, and and the only way in which it is possible to obtain

instances were known when a decree was entered this united action is by a State bar association. The | upon the day the summons was issued. The most individual lawyer may not at first see how he can enterprising divorce lawyer could ask no more than be benefited by connecting himself with the Asso this, though the circumstance that the decrees when ciation, but that Association, if the bar support it,

obtained were notoriously good for nothing, may as they certainly will, will return to him every have rendered such gentlemen chary about procuryear many times what it costs him. And, apart ing them, except in desperate cases. The grand from the mere question of personal interest, every | jury referred to have done a good work in exposing member of the profession who is called upon to do the modus operandi of the business as done in the so ought to connect himself with the Association.

Utah courts, which will be enough to destroy the The bar has a duty to perform toward the public in

trust of suitors in Utah divorces. If grand juries securing an honest, a learned and an able bench.

and bar associations at the east would now look It can do this if its members act in unison, other

| after the divorce lawyers who advertise in the newswise it is liable to accomplish nothing.

papers, the disreputable trade might be suppressed.

The Marine Court of New York has the honor of

NOTES OF CASES. giving to the public the first opinion wherein the I IN the case of The State v. Rædstrake, 10 Vroom (28 meaning of the new Code is explained. The case was N. J. Law), 365, defendant was indicted for Boughen v. Nolan, and the point raised was upon the forging and also for uttering, as forged, five promsufficiency of a positive verification according to the issory notes. He was acquitted upon the charge of form of the old Code (§ 197) of an answer, wherein | forging but convicted upon that of uttering. The the defendant first denied positively the allegations in circumstances were these: The notes in question the first count of the complaint, and then alleged I contained the forged indorsement of one Clement Hall, which, it was claimed, had been placed upon up, when part, but one tenancy. Birch v. Wright, 1 them by a son of said Hall. They had been passed | T. R. 380; Rex v. Herstmonceaux, 7 B. & C. 551. to defendant before maturity, and he, knowing And the successor of a tenant, in the absence of them to be forged, had placed them in the bank evidence of a new and different contract with him, where they were made payable, with direction to succeeds to the duties and rights of his predecessor. have them presented, and if not paid, protested, And a mere holding over of a tenancy from year to which was done. At that time the person whose | year does not affect the tenant's privilege to remove name was forged knew of the existence of the forged | fixtures put in during the term of his previous lease notes. The court, on appeal, held that the intent to in writing, and so long as he holds under a fair defraud is a material element in the crime of utter- claim of right as tenant, he preserves his privilege. ing forged paper, and that the act of defendant did See Penton v. Robart, 2 East, 88; Roffey v. Hendernot constitute that offense. See, as supporting the son, 17 C. B. 574; Heap v. Barton, 12 id. 274; same doctrine, Rex v. Powell, 2 Wm. Bl. 787; Rex v. Marshall v. Lloyd, 2 M. & W. 450. It has been held, Holden, 2 Taunt. 333, where it is held that as it however, that when one accepts a written lease of would be essential under an indictment for obtain the same premises, with the buildings, etc., from ing the property of another by the use of a false and his landlord on the expiration of the former tenforged paper as true, so under an indictment for ancy, he impliedly admits that the fixtures, of which forging and uttering either, the same should be he accepts a demise, belong to the landlord. Loughshown or else an intent to do the same. So also ran v. Ross, 45 N. Y. 792; 6 Am. Rep. 173; see also East (5 P. C. 854) says: “ The deceitful and fraud- Shepard v. Spaulding, 4 Metc. 416. ulent intent appears to be the essence of this offense, and this is indeed particularly expressed in the

| The question of the liability of a landlord for instatute. 5 Eliza.. ch. 14. and in most, if not all, the | jury happening to a stranger during a tenancy, caused other acts." See also 1 Hawk. P. C. 335: 2 Arch. | by the defective repair of the demised premises, was Cr. Pl. 546; Blake v. Allen, Morris' Rep. 619; Bacon's

considered in the case of Nelson v. The Liverpool BrewAbridgment, "Forgery" A. Whether, if the in- ery Co., L. R., 2 C. P. 311. The defendant let to one dorser had not known of the forged character of Farragher a house by an agreement in writing, by the paper, the causing of a notice of presentment which the tenant agreed “to do all necessary reand protest to be sent to him would have been such pairs to the said premises, except main walls, roof an assertion or declaration that the paper was good and main timbers. There was no agreement by the as would amount to an uttering, is not a matter of defendant to repair, and the house was in good express authority, though the reasoning, in some

condition at the time of letting it. Owing to decases, goes far toward supporting such a doctrine. fendant's negligence in not repairing a part of the See Commonwealth v. Searle, 2 Binn. 332; United | main walls, a chimney pot, during the tenancy States v. Mitchell, 1 Bald. 366; The Queen v. Green, of Farragher, fell upon plaintiff, who was FarraJebbs' Cr. Cas. 281. In the last case the paper was

gher's servant, and injured him. The court of not exhibited, but its contents stated, and the court

Common Pleas held that the plaintiff was not enheld it an uttering.

titled to recover compensation from the defendant

for the injury, saying that there are only two ways In the case of Ex parte Heminway v. Stevens, 2 in which landlords or owners can be made liable in Lowell's Decisions, 496, the question arose as to the case of an injury to a stranger by the defective what are the rights of the tenant of premises in re repair of premises let to a tenant, the occupier and spect to fixtures put in the leased premises by him, the occupier alone being prima facie liable. The and it was held that the right of the tenant to re first way is in case of a contract by the landlord to move such fixtures is not lost by non-payment of do repairs where the tenant can sue him for not rerent and notice to quit, but only by quitting. If pairing. Secondly, in the case of a misfeasance by the landlord has prevented the removal by an at- | the landlord, as, for instance, when he lets premises tachment of the fixtures, the right is not then lost, in a ruinous condition. See, as supporting this even by leaving the premises. It was also held that doctrine, Payne v. Rogers, 2 H. Bl. 349; Todd v. a parol renewal of a lease renews whatever rights | Flight, 9 C. B. (N. S.) 377; Russell v. Shenton, 3 Q. the tenant had to remove the fixtures. See, as sus B. 349; Pretty v. Beckmore, L. R., 8 C. P. 401; taining the doctrine permitting removal, notwith Gwennell v. Eamer, L. R., 10 C. P. 658; see also standing non-payment of rent, Slossfield v. Mayor of Guathney v. Little Miama R. R. Co., 12 Ohio St. 92. Portsmouth, 4 C. B. (N. S.) 120, though the point, But in Allen v. Mack, Ilay, 45, a lessor was held liable as a general one, was not decided in that case. See, for injuries suffered in consequence of the lessee havhowever, Whipley v. Derey, 8 Cal. 36, and Weeton / ing opened and negligently kept a pit on the land. v. Woodstock, 7 M. & W. 14.. As to parol occupan

But see also as sustaining the principal case Pechard

v. Collins, 23 Barb), 444; Taylor v. Mayor of New cies from year to year, or from month to month by York, 4 É. D. Smith, 559; Kahn v. Levi, 3 Oregon, the same tenant, it has been held that they make | 206; Mayor of New York v. Corliss, 2 Sandf. 301.

testimony of others, and why should it stand in the "THE CRITICS OF THE NEW CODE.”

way of husbands or wives? Thero may exist forty W E gave place to a communication under this witnesses who may swear to the fact which the de

title last week, because we believe in the full ceased alone could contradict, if living; why not est discussion of the statutes in question. It may shut out the forty, if the impossibility of rebuttal is be permitted us to say that we do not agree with what furnishes the reason for the exclusion? It our correspondent that “the criticisms thus far have, evidently is not the loss of the power of rebuttal to a great extent, been simply a disgrace to the pro- that the law starts at, but it is the idea that the fession," and we do not by any means feel flattered party, and a particular person over whom he is at his including our article of August 25, on the presumed to exercise such an influence as to be subject of “Survivors as Witnesses,” in this unpleas- able to cause her at pleasure to comm ant category. Some of the criticisms in question in his behalf, should be privileged to testify withno doubt indicate careless or incomplete reading; out being rebutted. Our correspondent admits as but even these can hardly deserve so strong an ad-much. He says the old Code was "criminally injective as “ disgraceful.” Some of them, we ven- consistent,” in permitting "a husband to use that ture to say, are well founded. Others are put for- power, which he has ever exercised over his wife, to ward on the ground of sound policy. For instance, compel or induce her to commit a crime, to enforce we think “Old Fogy" has the best of the argument a spurious claim for their mutual benefit, while it on the provisions for serving the summons by pub- carefully guarded him from the commission of a lication in cases of divorce, and we cannot see that similar offense." But the husband is permitted to he is in "disgrace” for not having had the advan exercise this dangerous power unrestrained so long tage of perusing Weed, Parsons & Co.'s edition of as the opposite party is living, and so the matter the New Code, which would have informed bim ends in the loss of the power of rebuttal after that what he complains of is the fault of the legis-all. Besides, we do not understand that “R. J." lature and not of the codifier. “Somebody blun-claims that wives can compel their husbands to dered,” and it was his purpose, probably, to point commit perjury in their behalf, and so his reasonout the blunder rather than the blunderer. The ing would fail where it is a husband who is exprofession are trying the Code, and not the codifier. cluded, Why should the law gauge the competency We have long since outlived the zeal which would of witnesses by the circumstances of particular tempt us to stigmatize with hard names every man cases? Why say that a man and his wife may teswho disagrees with us on legal points, or to impute tify when a particular person is alive to rebut them, dishonorable motives for intellectual differences. and that they may not when the person is dead,

Reading the first and sixth paragraphs of our although everybody else may, beyond the possibility correspondent's letter together, we infer that our of contradiction? What we particularly object to article is a “disgrace to the profession” for want is this rendering the instruments for the ascertainof logic. The article in question may be illogical. ment of truth subject to the fluctuation of circumWe do not claim any monopoly of right reason. | stances; this throwing discredit on one human But let us see if we are fairly amenable to the being's oath because another human being has criticism. Speaking of the exclusion of the wife of | died; this assumption that circumstances favorable a survivor, as well as the survivor himself, from the to the operation of perjury will necessarily induce right of testifying, “R. J.” says: “The reasons for that crime. It is little in accordance with the the law, contained in section 830, are the same as philosophy of law thus to assume the operation of for that contained in section 829, namely: that the the human conscience and prejudge the weight of witness is not only an interested party, but also that testimony. Truth is to be ascertained from human the testimony of the witness cannot be rebutted." speaking, not from the suppression of testimony. How can the husband or wife of the party be de The presumption is that every human being will nominated an "interested party?” But suppose it speak the truth under oath. The contrary presumpwere so, what then? interest no longer disqualifies tion, under any circumstances, is as mistaken as from testifying. That was the great idea of the old the presumption that a man is guilty because he is Code on the subject of evidence, and the same idea accused. Courts should hear everybody and every pervades the new Code. Section 828 provides for | thing, subject to the rules of examination universthat, and even enacts that except, as otherwise pro ally recognized, and should not exclude any one for vided, the husband or wife of an interested party this or that particular reason, or upon any assumpis not disqualified by that relation from testifying. tion of the inevitable effect of circumstances upon So it seems it is not interest that disqualifies the the conscience. Perhaps we are wrong in this husband or wife from testifying under section 829, | view, but it is at least a grave question of policy and “R. J." must fall back on the second reason which is worth discussion, and our correspondent alleged, namely, that the testimony cannot be re must not be impatient with us for not admitting butted. But that fact constitutes no bar to the 'the justice of his strictures. In regard to rules of evidence, very radical changes have been wrought Dear readers, do not expect to have in these lines in the last twenty years, very gradually, and only

recipes for philtres to bring back to your sides erring lovafter persistent effort and discussion. How reluct

ers, or draw thither new admirers, nor mysterious se

crets of occult sciences, by which chill December may antly was public opinion brought to tolerate, first,

win sumuy May, or vice versa; do not hope to read herein the admission, as witnesses, of parties in civil cases;

how bride or bridegroom, best-man or bridesmaids, afterward, that of persons criminally accused; and should be attired on the momentous occasion when the finally, that of husbands and wives. We are op bonds of wedlock are being fast riveted by priest or parposed to taking any backward step in this matter,

Bon, justice or deacon; think not to be entertained by

the “how'among the foreign nations in the dark places especially when the reasons assigned are mainly

of the earth. Such lofty themes transcend our humtheoretical. On the other hand we are convinced

ble powers; we have not drunk at any fount of the tunethat consistency in theory and the best practical |

ful nine; we only propose to try and show how the results can be attained only by adopting the course two distinct entities are welded together into one perwhich we have advocated.

son, in the eye of the law and to the satisfaction of the It seems to us that our profession are in danger

lawyers.

Start not as if pierced by some serpent's tooth, at of adopting extreme views about the new Code.

the sight of these two words, “law" and “lawyers," One class incline to rail at it and at the codifier,

for “the law is, after all, the most romantic of profesradically, and not to be willing to admit any virtue in sions.” Happily for its members it is not entirely comeither. Another class incline to bow down to both posed of sheep-skins and dust and decided cases, as to a golden calf and its architect, and not to be "quiddets and quillots, cases and tenares," as the Prince willing to admit any fault in either. The truth

of Denmark hath it. “Many are its paths of pleasantprobably lies in the middle. Whatever faults of ex

ness, and writers of fiction, seeking where they can

find what most will interest their readers, have oftecution there may be (and there certainly are a

times turned to the law and invoked its invaluable good many), the general plan and scope of the assistance without compensation, in compounding a work are highly meritorious. We have dwelt on plot or inventing a striking episode.” this sufficiently hitherto. It is no part of our pur

Take, for an example (which touches the point under pose to shut our eyes to its faults. It is our im

consideration), a novel, which many of you have read

during this very season, “What he cost her” (a truly pression that the radical fault of the work is the

novel subject, for most books might be truly said to be endeavor, everywhere apparent, to make provision

on what she cost him), by Mr. James Payne. The too much for minute and particular circumstances, most exciting part of this highly creditable story is to embody every constructive decision on the old where the hero, Landon by name, is in the prisoner's Code and to stretch the body of the statute to cover

dock to be tried for bigamy – he having deemed his first every exigency and possibility. For instance, sec

nuptials void, because his lady-love had married him

under an assumed name, bad taken to himself another tion 429 strikes us as decidedly comical. In the

partner for better or for worse. During the opening note to that section, the codifier says: “Cases have address of the counsel for the crown (for the trial took occurred where personal service of a summons upon place in “merrie old England"), what puzzled Landon a lunatic has aggravated his disorder, and it seems was, that the fact of his having been ignorant of the proper to provide against their recurrence.” We deception in the matter of the name (on which he can imagine that service of a summons on an epi

counted for sympatby), was willingly conceded by the

learned speaker; afterward he found that this was the leptic or a very sick person might throw the one

chief point relied upon by his enemies. You, fair into a fit and cause the death of the other; but

friend, did not see any great importance in the examwhat should we think of a law-maker so tender and ination of Ella by Mr. Pawson, after she had explained particular as to provide a substitute for sick in that, owing to a quarrel with her father years before, valids? De minimis non curat lex is a recognized

she had taken and ever since been called by her mothmaxim. Statutes should be constructed somewhat

er's name. He asked:

"There was no material cause, then, why you should on this principle.

have deceived your husband?"

“None whatever,” she replied. HOW TO GET MARRIED.

“He did not, however, aid or abet you in the decepTHIS is the question which at the present time is tion?" I agitating the minds of millions of the fairest of 1 “He? no!" the daughters of our land. Alas! for these bright “I mean," continued Mr. P., “that you and your maidens, States now-a-days neither give bounties to husband did not agree together before marriage to demen who marry young nor impose heavy penalties ceive the public by your assumption of this falso upon all celibates, as the Grande Monarque was wont name?" to do in Canada. 1 Parkman's Old Regimé, 225. This "Most certainly we did not," answered the fair is a query apparently scarcely more soluble than the witness. Oriental question in Europe or the Celestial question You doubtless found these questions and answers far in America, yet we will endeavor to answer it, and if from startling, in fact, monstrous; but the wicked our efforts throw any single beam of light into minds hero, perched ou the ragged edge of despair, noticed darkened by the shades of uncertainty or doubt, we that they had a marked effect upon the gentlemen in will feel that we have not dipped our pen in ink in | horse-hair wigs; he saw stuffs and silks look at each vain.

other significantly, and the Judge himself steal a

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