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THE NEW CODE.
foregoing may not fairly divide the business, but some
classification could be easily devised which would. To the Editor of the Albany Law Journal:
Then let us have say ten judges — five for each part, or SIR - Seotion 883 of the New Code of Procedure
else make three parts, and have five in part one, and provides that objections to the competency of a wit
three in each of the others. Thus each part could have ness, or to the relevancy of testimony taken in a de
its presiding judge, and the presiding judge of part bene esse examination, or objections to the form or
one might be chief-judge of the court. In case of any materiality of any particular question or answer, need
dispute about the part to which a case belonged, let not be noted on the deposition, but may be raised for
the matter be settled by the chief-judge, or a submisthe first time at the trial. We are told by Mr. T'hroop
sion of points on that question. Observe: 1. While we in his notes that this is new. Is not this an entire and
should have but one court, we should have the labor radical change of the previous practice and a danger
distributed. 2. We should have uniformity of decisions, ous innovation of the general rule, that where counsel
as each part would probably not have occasion to enconducts an oral examination he must take objections
croach upon the rules or doctrines pronounced by, or at the time, and in case of informalities, resort to a
at least applied by the other. The bug-bear of a want motion to suppress before trial, or he will be held to
of uniformity amounts to nothing any way. We have have waived them? Sturm v. Atlantic Mutual Ins.
seen that by the commission. A re-argument before Co., 63 N. Y. 87. And will not this section be the
the whole court, or some one part, could very easily fruitful source of surprises, nonsuits, withdrawals of
adjust all the probable conflicts. 3. We should, doubtjurors and miscarriages of justice, to the annoyance
less, secure a more thorough examination of each case, and at the cost of suitors and at the waste of the val
i. e., each judge could more carefully examine each uable time of the courts? Please bring this subject
case, whether he wrote in it or not, than under the to the notice of the profession through your valuable
present system. JOURNAL that we may be further enlightened. NEW YORK, October 22, 1877.
E. A. T.
The London Standurd thus speaks of French Courts of Justice. The President of the Court of Cassation,
the highest judicial functionary in France, receives NOTES.
the salary of a London police magistrate, £1,200 a year; THE October number of the Journal of Jurispru
but he is robed in scarlet aud ermine, and wears a decI dence and Scottish Law Magazine contains the fol
oration on his breast. The Judges of Assizes and the lowing articles: The Doctrine of Consideration in the
Procureurs at the Assizes also wear scarlet, and their Law of Obligations; Gavelkind, a peculiar tenure of the
velvet mortar caps are braided with gold. In all the county of Kent (No. II); Famous Scottish Trials, and
other Courts the gowns of Judges and Procureurs are the continued article, A Procurator Fiscal, what he
of black cloth, with white furred tippets, and tbeir was, what he is, and what he will be. The editorial and
caps are braided with gold, silver, or plain velvet, other matter contained in the number is of the usual
according to the degree. The currectional Judges interest.
generally sport silk cassocks and sashes, and cambrio
falls, and are rather imposing to look upon. In proMr. Justice Hawkins is the pattern of punctuality,
nouncing sentence the presiding Judge covers his head, and was at Newgate at a quarter to ten on Monday in
and so do the others, and they all stand up; but when last week, proposing to proceed with the Penge case;
the judgment has been read, all the puisne Judges lift but it was twenty-five minutes past the hour when a
their caps in token of assent-hence the term opier hot and hurried looking, but indispensable, alderman preceded the judge into the court. Mr. Justice Haw
du bonnet for to be of one mind with a speaker. Judg.
ments are never delivered ex tempore in France, but kins, with his sourest smile said, to encourage the un
always drawn up in the consulting room, and written fortunate alderman who sat next to him on the throne of justice, that the delay was inevitable, and that no
on paper with numerous "considerations,” and quota
tions of the articles of the Code which meet the case body was to blame. The “nobody" was a flash of the
in point; moreover, prisoners are not present when old Hawkinsian satire; but the alderman addressed did not see it.- A litigation once arose in the Uni
sentence is pronounced. The presiding Judge having versity of Cambridge whether doctors in law or doc
read the sentence, hands it to the clerk, and retires
with his brethren. Then the prisoner is brought in tors in medicine should hold precedence. The chancellor asked whether the thief or the hangman pre
again, and the clerk reads him the document close to
the dock. The point is worth remembering by British ceded at the execution, and on being told that the
writers of fiction, who occasionally make a French thief ususally took the lead, “ Well, then, let the doc
Judge sentence a prisoner off-hand and favor him with tors of the law have the precedence, and let the doc
a moral lecture into the bargain, as is done in Englaud. tors in medicine be next in rank."
We have said that French Judges are usually arrogant
toward barristers. As a fact they will stand no sort A correspondent suggests the following plan for pre of impertinence from the bar, and hare it in their venting the accumulation of business in the court of power to disbar an advocate summarily for any term last resort: Divide the Court of Appeals into two or not exceeding two years. M. Emile Olivier was once more parts, as for example: 1. Let part one sit to hear disbarred for six months owing to an uncivil slip of appeals from all orders and judgments in (a) probate | the tongue. It is fair to add that if some French cases, and all other appeals from surrogate's decisions; 1 Judges systematically abuse the large powers they (b) all so-called equity cases, i. e. Special Term cases; | enjoy, and if the judicature as a whole is anti-liberal, (c) all assessment and tax cases; (d) all special pro- haughty, and narrow-minded to a rare degree, there ceedings. 2. Let part two hear appeals from all orders are yet honest and intelligent Judges to be found who and judgments in cases of (a) torts; (b) criminal cases; will not prostitute their office at the bidding of a (c) commercial cases; (d) ejectment, dower, eto. The minister.
The Albany Law Journal.
ALL communications intended for publication in the tained in a preamble to certain resolutions in respect LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessa
to the subject, passed by the legislature of this rily for publication.
State last winter, and in an article in the ALBANY Communications on business matters should be ad LAW JOURNAL, of the 28th of April last. The artidressed to the publishers.
cle in question endeavored to show that the rule in the bankrupt law forbidding preferences while theoretically fair, was in practice very frequently unjust.
We instanced the case where the debtor owed a ALBANY, NOVEMBER 3, 1877.
thousand dollars to one creditor for borrowed money,
and a thousand dollars to another, the balance of an CURRENT TOPICS.
account, where a thousand dollars profit had been ON Tuesday, the General Term of the Supreme
made, and he had but a thousand dollars to pay U Court in the First Department, decided that
both debts. If the borrowed money was paid no the new rules relating to admissions to the Bar
one would lose; if the debtor's money was equally apply to young men who have completed the course
distributed, one creditor would in reality make a prescribed by the old rules. A class of young men
profit of $500 out of the transaction, and the other had been examined for admission, and the point
would lose $500. We do not consider the forbidwas raised that the new rules did not apply to them,
ding of perferences by any means the strongest inasmuch as such rules should have been published
reason for repealing the bankrupt law, nor do we three weeks in the State paper, under section 18 of
think the getters up of the document referred to,
do so; but we believe the article in question was the Code. But the eourt held otherwise, and that the young men could only be admitted as attorneys.
quoted for the purpose of making a point with the Judge Davis read a letter from Chief Judge Church,
| mercantile community, who are supposed to wish to the effect that section 18 had no application to
no distinction to be made between a debt which the subject.
represents merely a profit upon a sale of goods, and
one which represents a loan of money. There are Vacation over, and the more pressing official numerous arguments of great strength for the aboliduties disposed of for the time, Judge Neilson tion of this law, one of which we will mention, as resumes in our columns to-day his valuable papers its existence is the chief reason, with numerous on Rufus Choate. The biographies of lawyers are individuals, for a perpetuation of the law. This is seldom written. Nothing of them goes down to the expense of bankruptcy proceedings, an expense the next generation but tradition, and their names which is made ‘unbearable by exorbitant and disare seldom recalled save as one turns the pages of honest fees, by official carelessness and wastefulness the law reports. He who can break in upon this in the management of bankrupt estates, and not silence and lessen the sin of this ingratitude is a unfrequently by official robbery. Under the prebenefactor to his profession. This Judge Neilson tense of an equitable division of the property of is doing most successfully. Although much has insolvents, debtors and creditors have been alike been written of Choate, it has utterly failed to pre- plundered. The people of all classes ask to be sent any thing like an adequate picture of the great relieved from a continuance of the burden. Are advocate, and greater man. Those who knew him those who are growing rich out of bankruptcy proand loved him bear willing witness to the just-ceedings strong enough to prevent an answer to ness of Judge Neilson's conception, and to the skill their demand? and eloquence with which he is weaving the scattered threads that yet remain of Rufus Choate into
A New York register in bankruptcy has with great the story of his life.
care prepared and published in the newspapers, a
list of assignments for the benefit of creditors under The friends of the existing bankrupt law, who the State law, filed in that city during the last two are for the most part the officials and others de years. The object of this compilation is to show riving profit from its operation, are working with that the State insolvent law is not sufficient to all their might to prevent its repeal by the present answer the purposes of the business community. Congress. Among other things they have prepared The list is very formidable and would indicate that a petition for the amendment of the law, including a large number of persons preferred the State to the a remonstrance against its repeal in the form of a National law, as a means of distributing insolvent pamphlet of forty-five pages, in which is contained estates. We do not doubt that if there were entire all the reasons possible to be contrived for the con- freedom of action in the matter, and debtors and tinuance of the present order of things. According creditors might choose whether to act under the to this document, there have been no substantial local or the Federal procedure, the fees derived arguments presented for the repeal, and the only from bankruptcy proceedings would not be worth attempt at an argument has been what was con- | the seeking.
VOL. 16.- No. 18.
The President on the 29th ult. sent in to the Sen- The constitutionality of the legal tender act, and ate the name of John Baxter, of Tennessee, as the construction of the extradition treaty with EngCircuit Judge for the Sixth Circuit, and that of land, are subjects about which some of the profesRomanzo Bunn as United States District Judge, for sion love to write and talk learnedly, but the questhe Western District of Wisconsin. Both of these tion of the price of law books is one which comes gentlemen have an excellent reputation for ability more near to every lawyer. In almost every State and learning, and we believe their appointment is there has been, at one time or another, a controversy satisfactory to the profession in the localities where between the lawyers and the publishers over the sum they reside.
which should be deemed a proper equivalent for a It is stated that over eight hundred bills have
volume of the regular series of reports or of the already been introduced in Congress, at the present
public statutes. The result has not been alike in session. This would indicate that an early adjourn
every instance, in some cases the price being forced ment is not probable. Some of the proposed legis
down to the bare cost of printing and binding, and lation is necessary, but a large proportion of the
even below, and in others being maintained at so bills embrace measures of no utility, and some of
high a point as to afford an exorbitant profit upon
such sales as might be made. Just now the fiercest them, those that are positively mischievous. There is, perhaps, little probability that any of the latter
fight is in the State of Illinois, where the reports kind will pass both houses, though some of them
and statutes are sold at such figures as to tempt the may be forced through the popular branch. There
issue of rival editions. In New Jersey, also, some will, however, be enough improper legislation
of the profession are making loud complaints bebefore the close of the regular session. If with it
cause they are compelled to pay more than they we secure some few necessary laws, we can put up
think proper for the official reports. In all these with what is uncalled for, so long as it does no other
disputes, the claims made on either side are apt to harm than that of cumbering the pages of the stat
be far more than is equitable or just. The lawyers ute book.
are not (as is the popular impression) well situated
pecuniarily, most of them, after paying their necesThe Court of Appeals in the case of Ferguson v.
sary living expenses, have but little to spare for even Crawford, an abstract of which appears on page 282
so essential a thing as the professional library. To of our present volume, decides that the record in
them it is, therefore, a matter of moment whether a judgment of a domestic court of general jurisdic
a law book costs one, two or five dollars, and they tion is not conclusive as to jurisdiction, but may
feel that they should be asked to pay no more than be impeached in a collateral action. In an action to
sufficient to cover the cost of production and a foreclose a mortgage, a judgment of foreclosure of
moderate profit, and they are apt to estimate what a prior mortgage on the same premises was set up
this ought to amount to by comparing the price of as a defense. In the record of this judgment was
| law books with that of publications in general literwhat purported to be an appearance on the part of
ature. The law publishers, who print and sell plaintiff in the principal case, by an attorney. Plain
books for the sake of profit, and who must take tiff offered to show that the signature of the attor
into consideration, in fixing a price, very many conney to the appearance was forged, and that such
tingencies, are apt to place the asking price for a attorney had no authority to and did not appear.
volume at a sum higher than attorneys, as a rule, The evidence was not admitted at the trial, and the
can afford to pay. The cost of preparing and pubGeneral Term sustained its rejection (7 Hun, 25)
lishing a law book is as great as that of preparing upon the ground that the only way for plaintiff to
and publishing a book on some general subject, relieve himself was by a direct proceeding attacking
while the possible number of copies of the law book the validity of the judgment, and that he could not
which can be sold is small in comparison with that impeach its validity collaterally. The Court of Ap
of the others, while the chances of failure in such peals reversed this decision, holding as we have
enterprises are about equal. Thus law book publishnoticed above. The rule established by the court
ing has equal risks with the publishing of other is very generally conceded to be the correct one in
books, and has not the possibility of equal returns, respect to judgments recovered in one State, and
consequently the price of a law book must be comsought to be enforced in another, but its application in the case of domestic judgments is as generally
paratively high. denied. The Court of Appeals shows, however, | We understand that quite a number of essays that the courts of this state have not as a rule | have been sent in for competition for the prize ofrecognized the prevalent doctrine, but have made fered by the State Bar Association. Among them no distinction between home and foreign judgments. | are said to be many masterly productions, so that The decision is one of considerable interest, as finally the effort made to develop, among the profession, establishing what the rule is in this State upon this by means of prizes, the spirit of careful investigation very important question.
I may be regarded a success. Doubtless, as has been
the case in other instances, very many of the essays | ton v. Hancock, 12 Mass. 226; Farrand v. Marshall, handed in are of little merit. The writing of even | 19 Barb. 380; S. C., 21 id. 409; Richardson v. Vt. such essays is not, however, without its use. The Cent. R. R. CO., 25 Vt. 465; La Sala v. Holbrook, 4 writers are compelled, in preparing their composi- Paige, 169; Panton v. Holland, 17 Johns, 92; Eliot tions, to exercise some thought and to make some v. North East R. Co., 10 H. L. Cas. 333; Midland R. researches. They are thereby made better lawyers, Co. v. Chickley, L. R., 4 Eq. Cas. 20. and better writers, and the bar is benefited in some degree by that circumstance. The encouragement
The case of City of Williamsport v. Commonwealth of writers upon legal subjects is a proper way in
per way in ex rel. Bair, decided on the 1st ult., by the Supreme which to induce culture, and the best method to Court of Pennsylvania, involved a question of interoffer encouragement is by prizes fairly awarded
est in relation to municipal obligations. By an act to the best writers. We trust the experiment will
of the legislature of Pennsylvania, passed March be continued, and that subjects more completely
21, 1867 (P. L. 513, & 10), it is provided that "it legal in their nature than the present one, may be
shall and may be lawful for the city of Williamsport designated hereafter.
to borrow money from time to time for city purposes, as may be required, not exceeding the sum of
$200,000, and issue bonds therefor." There was no NOTES OF CASES.
restriction in the city charter as to the amount of THE case of Mayor of Birmingham v. Allen, 37 L. city bonds that might be issued. Bonds in excess
T. Rep. (N. S.) 207, recently decided by the of $200,000 were issued by the city for legitimate English Court of Appeal, involved a novel ques municipal purposes. The court held that the overtion in the law of easements. Plaintiff was the issue was legal and binding on the city. The genowner of lands upon which it had erected buildings eral principles advanced in the decision are: first, for the manufacture of gas. Defendant owned lands that where a municipal corporation has lawfully conupon which there was a coal mine worked by him;
tracted a debt, it has the implied power, unless rebetween plaintiff's and defendant's lands were lands stricted by its charter, or prohibited by statute, to of another containing a mine, which had been very evidence the same by a bill, bond, note, or other inextensively dug out. The defendant, by digging strument; the power to contract a debt carrying out the coal from his lands, caused plaintiff's land with it, by necessary implication, the right to give to subside, and the buildings thereon to settle. It an appropriate acknowledgment of such debt, and was claimed that the subsidence of the land would to agree with the creditors as to the time and mode be caused if there were no buildings thereon; but l of payment; and second, that in the absence of any it was shown that if the intervening lands had been statutory provision, there is no rule of law limiting left in their natural state, defendant's workings | the extent of the municipal credit. In respect to would have had no influence on either the land or the first principle, it does not receive the approval the buildings of plaintiff. The court denied an of Judge Dillon, who says (Law of Munic. Bonds, injunction, holding that defendant was entitled to p. 13): "We regard as alike unsound and dangerwork his lands up to his own boundaries, if the ous, that a public or municipal corporation possesses intervening land would, if left in its natural state, the implied power to borrow money for its ordinary have furnished a sufficient support to plaintiff's purposes, and as incidental to that the power to land. The case is, the court says, without an exact issue commercial securities. The cases on this subprecedent among English decisions, though Part ject are conflicting, but the tendency is toward the ridge y, Scott, 3 M. & W. 220, is an authority for view above indicated.” See, as supporting this view, saying that where a man has himself diminished the Police Jury v. Britton, 15 Wall. 506; Mayor of Nashsubjacent support of his own land, he has no right ville v. Ray, 19 id. 468; Comm’rs of Shawnee Co. v. of action or complaint against his neighbor whose Carter, 2 Kan. 115; also Marcey v. Township of 08acts. by reason of that previous weakening, have | wego, 2 Otto, 637; Humboldt Township v. Long, id. caused subsidence of the plaintiff's soil. See, also, 642; Com. ex rel. Middleton v. Comm’rs Allegheny Solomon v. Vintners Co., 4 H. & N. 585. The result Co., 1 Wright, 237. See, however, as sustaining the reached would, however, appear to leave the plain-principal case, Bank of Chillicothe v. Mayor of Chillitiff without a right of action, for, if the action of cothe, 7 Ham (Ohio), 354; Sturtevant v. City of Alton, the intervening owner produced no injury, he could | 3 McLean, 393; Mullarkey v. Codar Falls, 19 Iowa, not be prosecuted. See as sustaining the position 2: City of Galena v. Commonwealth. 48 II. 423: of plaintiff, Gale on Easem. 337; Bonomi v. Backhouse, Mills v. Gleason, 11 Wis. 470; Ketchum v. City of E. B. & E. 622, 640; 8. C. on appeal, 4 L. T. Rep. | Buffalo, 14 N. Y. 356; see, also, Kelly v. Mayor of (N. S.) 754; Brown v. Robens, 1 H. & N. 186; Wil- Brooklyn, 4 Hill, 263; Clark v. School District, 3 R. son v. Waddel, L. R., 4 App. Cas. 59; Stroyan v. 1. 199; First Municipality New Orleans v. McDonough, Knowles, 6 H. & N. 454. See as to the general rules 2 Rob. 244; Clark v. City of Des Moines, 19 Iowa. governing the easement of lateral support, Thurs- | 199; Adams v. Railroad Co., 2 Coldwell (Tenn.), 645.
will you be in closing your argument ?' He said,
'I don't know. That red-headed juror in the back VII.
seat don't seem to understand the case yet, and I W E take pleasure in deferring the discussion of must feel of him and put some points in a new
topics had in view with regard to Mr. Choate, | light.' I went back to my seat and Choate remained to make room for communications in hand for looking at the jury, now directly, now furtively, this and the next number, - which, it is hoped, 1 but without apparent concern, until the Chief Juswill be read with interest. We anticipate a like | tice came on the bench. Mr. Choate turned sudpleasure, and a material assistance from the kind denly and said: “If your Honor please, I detain you ness of a few correspondents, related to Mr. Choate
no longer; gentlemen of the jury, that is our case.' by ties of friendship or business, or neighborhood, He had a verdict. As we walked to his office, I by whom contributions have been promised.
told him how amazed I had been, and asked why We would likewise express our thanks to others he had changed his plan. He said, “When you gave who, not having time or opportunity to write formal me that imploring whisper for Mr. B., I was concommunications, have favored us with casual inci ferring with my red-headed juror, and after exchangdents, which, in proper relations, would tend to ing a few additional looks. I saw I had him.'” illustrate Mr. Choate's gifts and peculiarities. We
My gratitude is due also to ladies who have writgive here two extracts, one of which indicates his
| ten confessing their interest in Mr. Choate's life. I ability to understand men, to read their minds; the take extracts from two letters, the one giving what other, his power, by a merely intellectual and reflect- | is entitled "a bit of persiflage," the other "a rebuke." ive process, to discern the existence and relation “When Mr. Choate was in the Senate at Washof omitted facts; an ability in the realm of ideas | ington, the ladies were anxious that Mrs. Choate which may be truly said to be akin to that in virtue
should come on, and often beset him about it. On of which the astronomer from the perturbations it one occasion when they asked him "Do you really causes in known bodies, infers the existence and
think Mrs. Choate will come on?” he answered, calculates the place of the unknown planet. :
“Yes, I now think she may. I have written her to A gentleman formerly in practice at the Boston
come, and have even offered to pay half the expenses." bar says: “In my early experience I had a case of
The other is the cross-examination of a new light some complication and importance in which Mr.
preacher: Choate had been retained as counsel. There had
Mr. Choate. What are you, sir? been no consultation, and I was to prepare a full
Witness. A candle of the Lord. statement of the case. I worked at it a month with
Chief Justice. A what, sir? the occasional aid of my client, and arranged the
Mr. Choate. A dipped candle of the Lord, if your points, more than thirty in number, noting fully Honor please.
J. N. facts and circumstances under each in their apparent order and relation. I went to Mr. Choate and read the paper over to him. He said, 'Please repeat
Although not written for publication, I am pernumbers twenty-six and seven.' I did so. He
mitted, upon my special request, to give the followsaid, "There is something wanting : the human
ing portions of letters received from the Hon. mind does not work in that way. The case drifts
William Strong, Associate Justice of the Supreme on naturally enough, down to twenty-six, but there
Court of the United States.
J. N. comes up a peculiar complication, and your state
[Extracts from letter of January 30, 1877.] ment does not meet or belong to it. At that junc “I read, carefully, Trevelyan's Life of Macaulay, ture the parties, if fairly disposed, would have done twice, immediately after its publication in this counthus, and so, if unfairly disposed, would have taken try. I had previously read Dr. Brown's charming this or that course. There is something of moment biography of Mr. Choate, and read it, I believe, behind what you have got.' I resumed my study more than once. Until your article in the ALBANY of the case; my client found additional correspond LAW JOURNAL appeared, it had not occurred to me ence and papers, and, when all had been sifted to compare the two men, and, even now, I find it down, we found Mr. Choate was right. The matter difficult to compare them. In my judgment, they under twenty-six gave place to a more full and con were very unlike. Undoubtedly, there were some nected view of the case, which, on the trial, proved particulars in which they resembled each other. to be of controlling importance."
Both had remarkable powers of memory, but MaThe same gentleman says: “I went into court to caulay's was rather the memory of words, while see Mr. Choate, and found him addressing a jury. Choate's was that of ideas, as well as of words. Chief Justice Shaw had occasion to suspend the Each of them had a large element of the dramatic. proceedings a few minutes, and, while Mr. Choate Each was a natural poet. Each was a man of great was standing before the jury, I went to him and industry and of brilliant accomplishments. But said, “We want an interview in B.'s case: how long l here the resemblance seems to me to cease. Cop