« AnteriorContinuar »
their own cases they sometimes do remarkably well,
witness Myra Clark Gaines and Anne Besant, but they THE Southern Law Review for October-November,
do not display equal ability in dealing with the affairs I 1877, contains the following articles: Composition
of others. in Bankruptcy, by Orlando F. Bump, Esq. ; Liability of public officers to private actions for neglect of official duty, by Hon. Thomas L. Cooley, LL. D.; As
In the year 1683, as Jeffreys was making his northern
circuit, he came to Newcastle-upon-Tyne. Here he signments by corporations for the benefit of creditors, by James L. High, Esq.; Relevancy of evidence, a
was informed that some twenty young men of the
town had formed themselves into a society, and met reply to Dr. Wharton, by Sir James Fitzjames Stephen, Q. C.; Inter-State revision and codification, by P. N.
weekly for prayer and religious conversation. Jeffreys Bowman, Esq.; The taxation of money, by Charles
at once saw in these youths so many rebels and fanatA. Choate, Esq. The book notices display the cus
ios, and he ordered them to be apprehended. The tomary discrimination and ability, the notes are in
young men were brought before his tribunal. A book
| of rules which they had drawn out for the regulation teresting, and the digest of decisions published in the
of their society was also produced, and was held by the law journals will, as usual, be of great practical value to the profession. A new feature of value is the list
judge as sufficient proof that they were a club of plotof note-worthy articles appearing in the various
ters. Fixing his contemptuous glance on one of them, American law journals since July 20, 1877. This list
whose looks and dress were somewhat meaner than the
others, and judging him the most illiterate, he resolved and the digest of reported decisions make accessible to the profession all the recent decisions and the cur
to expose his ignorance, and hold him up as a fair rent legal literature, and we trust that they may long
sample of the rest. His name was Thomas Verner. be continued as features of the periodical before us.
“Can you read, sirrah?” said the judge. “Yes, my lord," answered Mr. Verner. “Reach him the book,"
said Jeffreys. The clerk of the court put his Latin The Executive Committee of the New York State
Testament into the hand of the prisoner. The young Bar Association met at New York city on the 16th
man opened the book, and read the first verse his eye inst., the President, John K. Porter, appointed the
lighted upon. It was Matt, vii. 1, 2: “Ne Judicate, following committee of arrangements for the annual
ne judicemini," etc. “ Construe it, sirrah," roared the meeting at Albany, November 21: Elliott T. Shepard,
judge. The prisoner did so: “Judge not, that ye be George M. Diven, D. P. Barnard, Marcus T. Hun and
not judged; for with what judgment ye judge, ye Albert Mathews. These gentlemen added the follow
shall be judged.” Even Jeffreys changed countenance, ing from the several judicial districts of the State:
and sat a few minutes in a muse; but instantly recorFirst district, Algernon S. Sullivan; Second district, William Allen Butler; Third district, Amasa J. Par
ering himself, he sent the young men to prison, where
they lay a year, and would without doubt have been ker; Fourth district, William Waite; Fifth district,
brought to the scaffold, had not the death of the king, Charles Mason; Şixth district, H. Prindle; Seventh district, George F. Danforth; Eighth district, F. D.
which occurred in the meantime, led to their release.
From the “History of Protestantism," by the Rev. Dr. Locke.
Wylie. A Maori chief, Karaitiana Takamoana, was good enough, some years ago, to expound the principle
A correspondent sends us the following card. The of bankruptcy. Said he, “I go to a storekeeper and
| names are not as in the original: I buy five pounds' worth things and don't pay. " Law Practice. John Doe, Attorney and Counsellor Some time after I go to a judge and say, 'I owe this
at Law, St. Paul, Minn., Sept. 29, 1877. man five pounds and only got one.' Then he says to “All letters on business may be addressed to him, me, “You give him the pound,' and he says to the Public Law Library, where he will be making out law storekeeper, 'You give back a receipt for five pounds.'
briefs from 9 a. m. to 5 p. m. Dinner from 12 m. to 2
p. m. excepted. Will furnish briefs of law, or facts Then the judge says to me, • All right; now you go where dilligent investigation is necessary, and copy and do it again.'"
and send any law from any book in public library to lawyers outside of St. Paul, all for $1.00 per hour.
After briefs of either law or fact are made out satisThe Chicago Legal News of the 6th inst, says: “On
factorily, determining the merits of any case, in any Thursday of this week Mrs. J. Ellen Foster, of Clin original case, he will where desired, associate with him ton, appeared in the Supreme Court of Iowa and ar
any first-class lawyer in cases that cannot be settled
without trial, and then settle upon future fees. I have gued a liquor suit on appeal, in that tribunal. Her
been in the law practice about one-third of a century argument was listened to by a large number of the in South Bend, Ind., and St. Louis, Mo., and done members of the bar and other citizens. The District Auerbach, Finch & Schaffer's business three years Court adjourned for the special purpose of allowing
throughout this State, settling every suit brought
without the necessity of a trial in a single case. All the attorneys to hear her argument. It is spoken legal opinious warranted; and where the warranty highly of; she is an able and eloquent speaker. Ten does not hold good all fees to be returned on notice, years ago there was not a Supreme Court in the United
and demand. Terms cash, and stamps for return let.
ters must be sent. All warrantys predicable of warStates where a woman's voice could be heard; to-day
ranted facts, or his own investigation of them. On there are twelve. In ten years more the woman law- notification by postal card, he will call at any office on yer will stand upon an equality with the man in every
legal business. court in the land." There are twelve States where
"The principle of warranty is in practice, but that
of a law-writer. He assumes that every statement of women have equal privileges with men in respect to his book is law, is the law of reason, it it is not, he has practicing at the bar, but we have yet to hear of a fallen below an authoritative standard. For many single prominent lawyer among those who have availed | years I have seen no occasion for changing opinions, themselves of their privileges.
for either courts or lawyers. The love of justice, uu.
In fact, very few wearying investigation, and illumination of mind women care to follow the profession. As advocates in from God, are all necessary for the mastering of cases."
The Albany Law Journal.
business men of the country and also of most of the
legal profession. The existing law, and it is not ALBANY, October 27, 1877.
practicable to have a better one, is unsatisfactory in several particulars. First. It does not benefit the
creditor, because it exhausts, by legal charges, the CURRENT TOPICS.
estate of the insolvent and leaves little or nothMHE annual meeting of the New York State Bar ing to apply upon his debts. Second. It does not
1 Association will take place in this city on benefit the honest debtor, because it affords him Tuesday, the 20th of November next, and it is relief only through a tedious, vexatious and exhoped that a large number of the profession will pensive process, which is needless for the protecbe in attendance. Very many throughout the tion of adverse interests and advantageous only to State have been chosen members and have signified | the officials who exact fees therefor. Third. It their acceptance of the duties and obligations of does not benefit the legal profession as a whole, inmembership. The next thing in order is the pay asmuch as it operates to destroy an important branch ment of dues, for this organization possesses the of business, that of collecting accounts, and embarcommon infirmity of all the creations of civilized rasses proceedings in State courts and under State men, of necding funds to sustain it. It is to be laws. Fourth. It is injurious to the merchants, as hoped that the profession, who have been prompt it interferes with arrangements between debtor and to aid, by word and deed, in the formation of the creditor, designed to save all parties from loss by association will be equally prompt in contributing giving to a few dissatisfied or dishonest persons a to its sustenance the sum asked for by the treasurer. right to overturn any agreement made. Fifth. It The amount which is paid will be more than re- is not uniform in its operation, but gives to the turned to every contributor through the influence debtor in one State a larger share of his property of the association. There is no member of the than is awarded to the debtor in another. In short, profession in this State so well situated as to it is at present of no advantage whatever, except business and position, that this society cannot to those Federal officials who are designated to carry materially aid him, and there is no one so poorly out its provisions and to a small coterie of attorneys circumstanced as to be out of the reach of its help- who make a specialty of bankruptcy practice. It is ing hand. Some few individuals may feel that said, by those who have made a study of the matthey cannot afford to contribute the sum asked ter, that the bankrupt law has played no small part from them. The truth is that they cannot afford to in producing and perpetuating the present depresdo otherwise if their aid is necessary to sustain the sion in business. Whether this be so or not, the association. Many, no doubt, are anxious that the sentiment of the business community is in favor of association prosper, as they recognize its probable its repeal, and we trust that the bill now before the beneficial influence upon the bar in a social and Senate may soon become law, despite the powerful business way, but they think that enough will take influence of an interested few who wish the present an interest in it to keep it up, and each individual state of things to continue. considers that his support and aid is of very little importance. To these we would say that the in
The Bar of Iowa held a meeting at Des Moines, fluence exerted by the organization will be just in
in that State, on the 20th inst., to consider the proportion to the support that it receives from the profession. If the active membership is large, the
charges against Judge Dillon, made by Cate, who
is said to have inspired the attacks in the Nation bar will be advanced to its ancient position and more among the people. If few adhere to it, it will exert
upon that judge. A committee, which had thorbut a feeble power, and will probably do as much
oughly investigated the whole matter, made a reharm as good. We trust, therefore, that every in
port setting forth the facts which were established
and which showed that the charges were without dividual who has been invited to enroll himself among the members of the association will do so
foundation. This conclusion was stated by the
committee, and a resolution, declaring that the and will do all that he may to promote its welfare,
Iowa Bar wholly exonerated Judge Dillon from any for by so doing he will advance the interests of our
charge of lack of official or judicial integrity, was common profession and those of every individual
unanimously adopted. This action on the part of connected with it.
the Iowa Bar would seem unnecessary but for the A bill to repeal the bankrupt law has been intro-active effort made by the maligners of Judge Dillon duced in the United States Senate, and as unani- to blacken his reputation. Not only have they mous consent was given to its introduction, it is to published the charges of wrong-doing in the newsbe presumed that it will in due time be passed by paper mentioned, but they have scattered copies of that body. That it may become a law is, we im- these charges throughout the whole region where agine, the heartfelt wish of the great majority of the the judge holds court, and have brought them to
VOL. 16.— No. 17.
the notice of the profession and the public through- any steps being taken toward the appointment of out the country in every conceivable way. It is an international commission to settle a draft code proper, therefore, that the bar of the judge's own of bills of exchange for the principal countries, State, as a body, formally express its opinion with Germany and Austria will regard the project with reference to the matter, and we are glad that it has favor, and it has a hope that the time is not far done so. We may add, in taking leave of this mat | distant when a joint commission for the purpose ter, that, in our opinion, the attack on Judge Dil- mentioned will be appointed by the various governlon was one of the most reckless, causeless and un-ments of the world. justifiable ever made by a decent newspaper.
The Bar of the District of Columbia are moving It is an ill wind that blows nobody any good, and in the matter of a re-organization of the local courts, the recent strike riots, if they occasioned great loss and it is said that a bill has been drafted, and will to the railway and coal companies, and to the munic be introduced into Congress at an early date for that ipalities where they took place, are likely to throw purpose. We trust that the reformers who are agian honest penny or so into the hands of the lawyers. tating this change will not, in their zeal for new A large proportion of the property destroyed con- | things, overturn the system of procedure at present sisted of merchandise in the course of transit. This in force in the national capital. To be sure the merchandise belonged to hundreds of different common-law practice is in no respect as good as one owners scattered throughout the country, and these under a code, but we would not wish it swept enindividuals are naturally looking for compensation
tirely from the face of the earth. It has disappeared for their losses. It is claimed, on their behalf, that from the majority of the States, and from England the railway companies which undertook to carry and Ireland, and it cannot remain long in those the goods are liable; but the companies claim States and provinces where it still holds its own. that the carriage was under contracts exempting
In a single city, such as Waslrington, its continuance them from liability for losses occurring in the man- |
will do but little harm, and this harm will be more ner that those did. Several suits have already been
than compensated by its affording to students and instituted, and it is understood that innumerable
historians a living example of a by-gone institution. others will follow. Then the claims against the various municipalities, where the disturbances oc
The judges of the Federal Supreme Court, when curred, will, as a rule, be settled by the courts.
| traveling in the performance of their circuit duties, Thus, with the general revival of business, will
are not entitled to mileage, which is somewhat recome something for the bench and bar to do.
markable and very inequitable, as they are, as a rule,
not residents of the localities wherein they perform The council upon Bills of Exchange of the Associa- such duties. We are glad to see that a bill has tion for the Reform and Codification of the Law of been introduced in Congress intended to place them Nations made an interesting report at the recent on an equality with the other Federal judiciary Antwerp conference. It will be remembered that in this respect. at the previous conference held at Bremen, a series of resolutions were passed in the form of twenty
It is nearly a month since the presiding justices of eight articles, embodying the principles upon which
the various State courts of original jurisdiction it was thought that an international code of bills of
| met and agreed upon a code of rules for the reguexchange should be based (see 14 Alb. L. J. 277).
lation of practice in these courts. The rules as The council states that these resolutions have been
adopted were left in the hands of a committee to printed in several different languages and widely
| draft into proper shape before being given to the circulated, and that they have met with the ap
public. Since that time we have heard nothing of proval of jurists, merchants and bankers in the
them. We presume, however, that they will make principal countries of the civilized world. In addi- | their appearance in due time. tion to this, an opportunity is soon to be offered for putting them to a practical test. A commission has
NOTES OF CASES. been appointed by the governments of the three Scan In the case of Haverty v. Bass, 66 Me. 71, plaintiff dinavian kingdoms of Sweden, Denmark and Norway 11 brought an action for assault. The alleged to draft for them a common law of bills of exchange, assault consisted in the action of a police officer and and this commission has approved of the resolutions a city physician under the direction of defendant, mentioned. The British Government has also ex- who was then mayor of Bangor, in taking out of pressed itself very favorably in reference to the reso- the arms of plaintiff her child which was believed to lutions, and communications from the council to be sick with the small-pox, for the purpose of removthe German and Austrian Governments, upon the ing it to the city hospital. In performing this act, subject, were satisfactorily received. The council, defendant, and those aiding him, were acting under therefore, expresses the belief that in the event of an authority conferred upon them by the common
council of the city, and in accordance with a statute engaged in work on their road. While on the trip, of the State, authorizing and requiring the author through the negligence of the servants on the train ities of a town in which any person is infected with a collision took place, and the husband was killed a disease dangerous to the public health to remove thereby. It was held that no distinction arose in such person to a separate house. It was contended consequence of servants being engaged in different on the part of plaintiff that the statute in question branches of service, and that plaintiff could not rewas unconstitutional. The court held that it was cover. See, also, Hogan v. Cent. Pac. R. R. Co., 49 not, but was a proper exercise of the police power Cal. 192; Yeomans v. Contra Costa S. S. Co., 44 id. of the State, and furnished a protection to those 71. In Ross v. N. Y. C. R. R. Co., 3 Hun, 488, acting under it. The constitutionality of statutes plaintiff was in the employ of defendant as a surof similar nature has been affirmed in numerous veyor, and was injured while being transported to cases. See Milwaukie v. Gross, 21 Wis. 241, where his place of work on the defendant's train, through the power of the public authorities to establish a the negligence of the conductor. The plaintiff was public slaughter-house, or to require all slaugh-held to be a fellow-servant, and the defendant not tering of beasts to be done at one establishment, is as- liable. To like effect, Coon v. N. Y. C. R. R. Co., serted. See, also, to the same effect, Slaughter House 5 N. Y. 492; Boldt v, N. Y. C. R. R. Co., 18 id. Cases, 16 Wall 36; also, Inhabitants of Watertouon v. 432. See, however, as sustaining the principal case, Mayo, 109 Mass. 315, where a statute prohibiting Fitzpatrick v. New Alb. R. R. Co., 7 Ind. 438; Ryan the use in certain towys and cities of any buildings v. Chic, d N. W. R. R. Co., 60 Ill. 171; Lalor V. not then so in use for carrying on the “ business of C., B. & Q. R. R. Co., 52 id. 401. slaughtering cattle, sheep, or other animals, or for melting or rendering establishments, or for other
| In the case of Davis, plaintiff in error, v. The State, noxious and offensive trades or occupations,” with
recently decided in the Supreme Court of Texas, the out the permission of the local authorities, was held
plaintiff in error was indicted for keeping a house a constitutional exercise of the police power. See,
of prostitution. The defense below was a license also, for instances of the exercise of the same power, 1 from the city of Waco, where the house was kept. Commonuealth v. Alger, 7 Cush. 53; Fisher v. McGirr, In the charter of that city was a provision authoriz1 Gray, 1; Commonwealth v. Tewksbury, 11 Metc. 55; Ling the mayor and city council to license, tax and Baker v. Boston, 12 Pick. 184; Coates v. New York,
regulate billiard tables, and “to suppress gaming and 7 Cow. 585, 604; Preston v. Drew, 33 Me. 558; Gray
gambling-houses and other disorderly houses, or to v. Kemball, 42 id. 299; Taunton v. Taylor, 116
suppress bawdy-houses, or to license the same.” By Mass. 254.
an ordinance of the city, it was provided that “every In the case of Shanny v. Androscoggin Mills, 66
keeper of a bawdy-house within the city shall pay Me. 420, it is held that a servant whose duty it is
an annual license tax of two hundred dollars, for
the privilege of keeping the same.” There was a to keep machinery in repair is not a fellow-servant
general law of the State in force at the time of the with one whose duty it is to use the same machin
passage of the act incorporating the city, making ery, so that the master would be exempt from liabil
it a penal offense to keep a house of this character. ity on that ground for an injury to the latter in con
The court held that the legislature might delegate sequence of the neglect of the former. This is an
to the city corporation the power to regulate its application of the rule that, to constitute fellow
social institutions in derogation of the penal code servants, there must be not only a unity in respect
of the State, and that the corporation acting under of control, but also in respect of the object and ends
such a delegation might license houses of prostituof the service. Wood's Mast, and Serv. 841; Ohio,
tion, and that the morality of such a law was a conetc., R. R. Co. v. Hammersley, 28 Ind. 371. See,
sideration addressing itself, in such a case, to the however, Smith v. N. Y. and Harlem R. R. Co., 19
city council only, and sustained the defense. For a N. Y. 127, where it was held that a carpenter who
| consideration of the same question, see State v. was employed by a railroad company to repair its
Clarke, 54 Mo. 17; 14 Am. Rep. 471, where a municcars, and conveyed by it to and from his place of work free of charge, cannot recover damages against
| ipal charter authorizing a city council “by ordithe company for an injury while on such journey,
nance not inconsistent with any law of the State
* * * to regulate or suppress bawdy-houses,” caused by the negligence of one of the company's
was held to repeal pro tanto a general statute makswitchmen. See, to the same effect, Hutchinson v. Railway Co., 5 Exch. 343, where plaintiff's husband
ing the keeping of a bawdy-house or brothel a miswas in the employ of defendants, and directed by
demeanor, and a municipal ordinance licensing
bawdy-bouses was held valid. See, also, as to the them to go to a designated place on one of their
limitation of a general law by the provisions of a trains and perform certain duties for them. He had
local one, Goddard, petitioner, 16 Pick, 504; Comno connection with the servants on the train, except monwealth v. Patch, 97 Mass. 222; St. Louis v. Weber, that he was in the employ of defendants, and was | 44 Mo. 547.
THE CONTRACTS OF INCOMPETENTS.
mission of Appeals held that a deed executed by one
non compos mentis — which the court in that case IT is a settled principle of law that the contracts defined to mean “totally and positively incompe1 of lunatics and insane persons are invalid, but tent" — is absolutely void; and that, where a dethe application of this principle to particular facts fendant in an action to recover the possession of has given rise to a number of interesting cases real property claims under such a deed, the fact of which it may be worth our while briefly to examine. the incapacity of the grantor may be shown by
The most recent case that has come to our notice plaintiff to defeat such claim, although no fraud is is that of Lancaster County Bank v. Moore, 78 Penn. alleged and such incapacity had not been legally or St. 407; S. C., 21 Am. Rep. 24, where defendant, judicially determined at the time of or prior to the desiring to borrow money, gave S. his note, which s. | execution of the deed. The court further held that procured to be discounted at plaintiff's bank, and an inquisition under a writ de lunatico inquirendo, the money deposited to defendant's order. After stating that at the time of the execution of a deed ward a petition de lunatico inquirendo was presented the grantor was non compos mentis, is presumptive against defendant, and he was found to be a lunatic, but not conclusive evidence of the grantor's inand to have been a lunatic from a time anterior to capacity in an action wherein a party claims under the making of the note. The plaintiff had no notice the deed. of defendant's lunacy. The court held that de In Banker v. Banker, 63 N. Y. 409, which was an fendant's insanity was not a defense to an action on action by the heir and next of kin of John Banker, the note. The court, after citing Beals v. See, 10 deceased, to annul a marriage between the deceased Barr. 56, wherein it was held that an executed con- and the defendant on the ground that the deceased tract by a merchant for the purchase of goods could was non compos mentis at the time of the marriage
oided by proof of insanity at the time of ceremony, it appeared that two days after the marthe purchase, unless a fraud was committed on him riage an inquisition was found declaring that the by the vendor, or he had knowledge of his condi- | said John Banker was at the time of unsound mind, tion, continued as follows: “The broad principle and that he had been so for six months prior thereto. decided in Beals v. See was, that the insanity, when The court held, following Van Deusen v. Sweet, supra, established, was not, under the circumstances, a that the inquisition was only presumptive evidence defense. The soundness of this rule is too apparent of incapacity, and that the fact that proceedings to need any extended vindication. Insanity is one under a writ de lunatico inquirendo were pending at of the most mysterious diseases to which humanity the time of the marriage, and that the defendant is subject. It assumes such varied forms and pro- | had knowledge of the fact, did not affect the quesduces such opposite effects as frequently to bafħetion. In that case the court below found as a fact the ripest professional skill and the keenest observa that John Banker was of sound mind when the tion. In some instances it affects the mind only in marriage took place. In L'Amoreux v. Crosby, 2 its relation to or connection with a particular subject, Paige, 422, the Chancellor stated very clearly and leaving it sound and rational upon all other sub- | accurately the principles adjudicated in this State jects. Many insane persons drive as thrifty a bar as to the effect of an inquisition of lunacy. Among gain as the shrewdest business man, without betray- | other things he said: “As to acts done by a lunatic ing in manner or conversation the faintest trace of or drunkard, before the issuing of the commission, mental derangement. It would be an unreasonable | and which are overreached by the retrospective and unjust rule that such persons should be allowed finding of the jury, the inquisition is only presumpto obtain the property of innocent parties, and tive, but not conclusive, evidence of incapacity. retain both the property and its price. Here the But all gifts of the goods and chattels of the idiot, bank in good faith loaned the defendant the money | lunatic or drunkard, and all bonds or other contracts on his note; the contract was executed so far as the made by him after the actual finding of the inquisiconsideration is concerned, and it would be alike tion declaring his incompetency, and until he is perderogatory to sound law and good morals tliat hemitted to assume the control of his property by the should be allowed to retain it to swell the corpus of court, are utterly void." See, also, Osterhout v. his estate. It will be seen that the fact that the Shoemaker, 3 Hill, 516; Hart v. Durmer, 6 Wend.
no notice of the defendant's insanity is an | 497; Hoyt v. Adee, 3 Lans. 173; Goodell v. Harringimportant element in the case. The proceedings in ton, 3 T. & C. 345; Demelt v. Leonard, 19 How. 141. lunacy were not commenced until after the note was The rule is stated to be that inquisitions are admissdiscounted, and the plaintiffs were not even affected | ible in evidence, but that they are not conclusive with constructive notice. We limit our decision in except against the parties immediately concerned this case to its own facts, and do not decide the and their privies. Hoyt v. Adee, 3 Lans. 173; Goodell case of a contract made during proceedings in lun- v. Harrington, 3 T. & C. 345. acy or after inquisition found.”
After one has by inquisition been found an habIn Van Deusen v. Sweet, 51 N. Y. 378, the Com-'itual drunkard, he cannot, until it is vacated or s