Imágenes de páginas
PDF
EPUB

secretary, and that all transfers of lots must be registered in the office of the association. Boileau bought a lot, and his deed was registered; he conveyed it to Jones, a colored woman; this deed was not registered. She applied for a permit to bury her husband; the secretary declined, because the lot was registered as Boileau's. Boileau asked for a permit to her to bury her husband in the lot; the managers then directed the secretary to refuse an approval of the transfer to Jones. The secretary refused to issue a permit for the burial. Held, that Boileau had the right to bury the husband; that the refusal to issue the permit was arbitrary and unreasonable, and mandamus lay to compel the company to issue the permit. When Boileau purchased, there being no restriction on his right of

Formal acceptance of Charter.

Resolutions proposed by Committees.
Other Miscellaneous Business.

15th. Addresses and Theses.

Every lawyer of the State is invited to attend.

BOOK NOTICES.

MAY'S STEPHEN'S DIGEST.

A Digest of the Law of Evidence, By Sir James Fitz-James Stephen, Q. C., K. C. S. I. From the Third English Edition, Revised, Corrected and Enlarged by the author. With Notes and additional Illustrations, chiefly from American cases. By John Wilder May, author of “The Law of Insurance," etc. Boston: Little, Brown & Company, 1877.

HE

burial, the company could not afterward abridge his character and value of Mr. Stephen's Digest of

rights. Mount Moriah Cemetery Assoc. v. Common wealth ex rel. Boileau.

STATUTORY CONSTRUCTION.

Repeal of special statute. The act of March 25, 1864, provided that the property of soldiers should be exempted from taxation, etc.; the act of April 8, 1873, enacted that all real estate should be taxed, except certain classes specified, the property of soldiers not being one, excepted, and laws inconsistent, etc., were repealed. Held, that the act of 1864 was not repealed. Rounds v. Waymart Borough.

ORDER OF EXERCISES FOR THE ANNUAL
MEETING OF THE NEW YORK STATE
BAR ASSOCIATION.

NEW YORK STATE BAR ASSOCIATION,
ASSEMBLY CHAMBER, ALBANY,

3% o'clock, P. M., Tuesday, Nov. 20, 1877.
ORDER OF EXERCISES.

1st. Invocation.
2d. President's Address. By Hon. John K. Porter.
3d. Reading the minutes of the preceding meeting.
4th. Nominations for membership, including Hon-
orary membership.

5th. Appointment of Committee on nomination of officers for ensuing year.

6th. Report of Executive Committee. By Marcus T. Hun, Secretary.

7th. Report of Committee on Admission. By Peter S. Danforth, Chairman.

8th. Election of members.

9th. Treasurer's Report. By Rufus H. Peckham,

[blocks in formation]

the Law of Evidence are well attested by the fact, that it has, within a year, reached its third edition in England, and has also been issued by three or four law publishing houses in this country. As an exact and philosophical statement of the principles of the Law of Evidence we know of nothing that approaches it; while as a model of what a Code may and should be, it comes nearer the ideal than any thing we have seen. Indeed, there is no stronger argument in behalf of an acute and philosophical codification of the law than the favor with which Mr. Stephen's Digests have been received. Both this and his Criminal Digest are Codes in the fullest sense of the term, and he has a recognized position in England as a practical codifier. In 1870 he was employed to draft a Code of the Law of Evidence for India, which afterward became the Indian Evidence Act; while in 1872 he drew, at the request of the attorney-general, a similar Code for England, but which, owing to political reasons (not least of which was the elevation of Lord Coleridge the then Attorney-General-to the Bench), never reached a vote in Parliament.

The work before us is the outcome of these performances though it differs from them in various respects. While the draft Code presents the law as it ought to be, the present work is intended to represent the existing law exactly as it stands. But we have heretofore spoken fully of the merits of Sir James Stephen's Digest. The work before us is something more and even something better. Mr. May's notes are neither copious nor lengthy; but they are illustrative, pertinent, and accurate.

Of his work, he says in his preface:

"The purpose of the editor has been to adapt the work to the use of the American student and lawyer. To this end he has briefly noticed those points in which the American authorities differ, both among themselves and from the English authorities. To some extent, he has added new illustrations from American cases, which seemed to him to be sufficiently apt to warrant their insertion; though he has generally preferred, rather than to swell the size of the volume, to refer to those sections of Greenleaf from which, through Mr. Taylor, the illustrations selected by the author have been, to a considerable extent, taken."

We do not hesitate to say that Mr. May's labors have very essentially enhanced the value of Mr. Stephen's work.

[blocks in formation]

constitutional questions which were finally settled at the last term of the court. The decisions contained in the volume appeared some months ago in our columns, but the reporter keeps as well up to the court as is compatible with accurate reporting and the proper arrangement of the cases. Mr. Otto does his work well and promptly, and his volumes are, in many respects, models. Among the cases given we can note only a few of the most important: Humes v. Scruggs, p. 22. A decree in a suit between husband and wife, confirming a conveyance of real estate made to her by him, does not bind his assignee in bankruptcy suing to set such conveyance aside on the ground that it was made in fraud of creditors. County of Leavenworth v. Barnes, p. 70. Recitals in bonds issued by a county in pursuance of statutory authority, stating that the requirements of the statute had been complied with, held binding on the county in favor of a bona fide holder for value. Munn v. Illinois, p. 113. This and the cases determined at the same time (C., B. & Q. R. R. Co. v. Iowa, p. 155; Peck v. C. & N.W. Ry. Co., p. 164, etc.) decide the most important constitutional question that has yet come before the Federal Supreme Court, not even excepting the famous Dartmouth College case. It is here decided that when an owner of property devotes it to a use in which the public has an interest, a State may control that use and fix the rate of charges made therefor, and that the exercising of such control by a State is not in violation of the Federal Constitution. Inman S. S. Co. v. Tinker. An act of the New York legislature requiring all vessels entering the port of New York and making fast to a wharf therein to pay a certain percentage per ton, held to be a tonnage tax and in violation of the United States Constitution. Town of South Ottawa v. Perkins, p. 260. Where municipal bonds were issued under a pretended act of a State legislature which was not regularly passed and was decided by the State courts to have never been passed, such bonds are invalid even in the hands of a bona fide holder for value, notwithstanding the act was printed in the official edition of the State Statutes as a valid act. United States v. Fox, p. 315. A devise to the United States of lands situated in the State of New York is in violation of the State law and invalid. First Nat. Bank of Washington v. Whitman, p. 343. The payee of a check before it is accepted by the drawee cannot maintain an action upon it against the latter, as there is no privity of contract between them. McCready v. Virginia, p. 391. The privilege of cultivating oysters in the public waters of a State which the State law granted to its citizens, is not a privilege and immunity of citizenship under the Federal Constitution so as to vest in the citizens of another State. Conn. Mut. L. Ins. Co. v. Schæfer, p. 457. A wife and husband had an insurance upon their joint lives payable on the death of either to the survivor. They were divorced a vinculo matrimonii. Held, not to avoid the policy, but the survivor having paid the premiums after the divorce could recover on such policy. Doyle v. Continental Ins. Co., p. 535. The right of a State to exclude an insurance company chartered by another State from doing business within its own boundaries upheld, although the motive of such exclusion was to compel compliance by the company with an invalid agreement. Southern Express Co. v. Dickson, p. 549. An express company, well knowing that certain goods received by it for transportation to a place mentioned in its receipt were the

property of the shipper, delivered them without his knowledge to a third person at the place of shipment on the order of the consignee. Held, that the company was liable to the shipper for the value of the goods. Etna Life Ins. Co. v. France, p. 561. A policy of life insurance taken by a man for the benefit of his sister, who had no insurable interest in his life beyond that of relationship, held valid, and it was immaterial what arrangement there was between him and his sister as to the payment of premiums. Bowen v. Chase, p. 812. This case was upon the noted Jumel will, and several very interesting questions are discussed. The case will be found in full 15 Alb. Law Jour. 369. The volume to make it complete ought to have a table of cases cited. The mechanical execution of the book is in every respect excellent.

TYLER ON PARTNERSHIP.

A Commentary on the Law of Partnership, with an Appendix of Forms. By Samuel Tyler, LL. D., Professor in the Law Department of Columbian University at Washington, D. Č., author of the "Maryland Simplified Pleading," etc. Washington, D. C.: W. H. & O. H. Morrison, 1877.

This little volume was originally prepared as a textbook for the students in the law school of the Columbian University, and its apparent utility there led the author to prepare this edition for the use of the public generally. It is thoroughly elementary, being a brief statement of the rules governing the law of partnership in its different branches, arranged in a systematic form and without any references to authorities. For the purposes for which it was designed, namely, to impart leading principles to students, it seems well adapted. To the business man, also, it will be found of practical use. It acquaints him with the main features of the law and gives him forms suited for ordinary occasions. The book is carefully indexed, and excellently printed and bound.

[merged small][ocr errors][merged small]

CRARY'S PRACTICE IN SPECIAL PROCEEDINGS.

What purports to be a new, the fifth, edition of this work has just been published by W. C. Little & Co. of this city.

This is emphatically one of the works of which the truth ought to be frankly and emphatically told. It may be called a new edition, but if such is to be the character of new editions the fewer the better. It is simply a reprint of the second edition, with a few pages added at the end of each subject in small type. The added matter is not even indexed, and, so far as we have examined, it is more calculated to mislead

than to benefit. We advise those who have former editions not to touch this. If publishers will attempt such a transparent fraud on the profession, the profession should serve it as it deserves, "Let it alone severely."

THE

NOTES.

Law Students' Series announced by Little, Brown & Company ought to be, and doubtless will be, popular and successful. There is certainly no dearth of books on the subjects they purpose to cover, but they are not well adapted to the beginners in the study of legal science. Mr. Stephen, in the introduction to his Digest of the Law of Evidence, has aptly expressed the objections to the usual Treatise as an institute of law; "Such works," he says, "often become, sometimes under the hands of successive editors, the repositories of an extraordinary amount of research, but they seem to me to have the effect of making the attainment by direct study of a real knowledge of the law, or of any branch of it as a whole, almost impossible. The enormous mass of detail and illustration which they contain. and the habit into which their writers naturally fall of introducing into them every thing which has any sort of connection, however remote, with the main subject, make these books useless for purposes of study, though they may increase their utility as works of reference." Mr. Stephen has, in his Digests of the Law of Evidence, and of the Criminal Law, furnished, especially to the English Law student, two institutes of rare merit; and we trust that the gentlemen to whom Messrs. Little, Brown & Company have intrusted the preparation of their series may not come far short of doing as well for the American student.

The current number of the Journal du droit International Privé contains a number of articles of general interest. The titles of these articles are as follows: Des dedes particulars en temps de neutralité, by G. Louis; La Bourse les agents de change et les opérations de bourse dans des legislation étrangeres, by E. Gaillard, professor in the University of Berne; D l'execution des jugements étrangers en Belgique, by L. Humblet: Le projet du Nouveau Code Penal Italien, by G. Vidal. The digests of decisions in international law embrace determinations in the courts of France, Germany and Italy, and contain several cases of interest.

[ocr errors]

The New Haven Morning Journal and Courier of October 24th last, says: "We reprint from the ALBANY LAW JOURNAL of October 6th, this morning, a valuable and suggestive article on Dead Letter Laws "- a subject which deserves more attention than it has been accustomed to receive. The argument and conclusions of the writer are undoubtedly sound, and the cases of inoperative laws which he cites are notorious scandals in the community which ought to be put a stop to. The article - for a copy of which we are indebted to Mr. B. A. Peck, Attorney of Naugatuck should be read by all."

The Trade-Mark Treaty between the United States and Great Britain, which was signed by United States Minister Pierrepont, and the Earl of Derby, Secretary of State for the Foreign Department, some days since,

provides that the subjects or citizens of each country have the same rights as the subjects or citizens of the other, or as are now or may hereafter be granted to the subjects or citizens of the most favored nation, in every thing relating to trade-marks and trade labels, upon fulfilling the formalities required by the law of the respective countries. - The Singer will case, involving the estate of the sewing machine inventor Singer, recently pending before the surrogate of Westchester county, N. Y., has been settled. Judge Donahue, in a mandamus case decided on the 2d inst. (People ex rel. Wills v. The Registers), decided that it is not nine o'clock until the clock has completed striking the hours. Proceedings in bankruptcy have been commenced against the forger Gilman.

[blocks in formation]

Mr. Delafield, in arguing a motion to disbar an attorney made in New York last week, thus discoursed in respect to recreant lawyers: "It is not pity, it is not charity to condone the faults of the lawyer who is recreant to his trust. It is nothing but mawkish sentiment that can extenuate or pardon those crimes. Many of the difficulties of this problem have been lately solved by the Incorporated Law Society of London, at whose instance in one year (1874) six solicitors were stricken from the rolls, three cases were referred to masters for report, and four were abandoned in consequence of the flight of the delinquents. In the State of New York it is rare to disbar an attorney; but the difference is due to moral weakness and 'not to any superiority of our attor neys over their English brethren. The best interest of society requires that the good lawyer should be treated with the highest respect, and the bad one punished with the utmost severity. Thus alone can the bar be purged of its dross and raised to the position it should hold. In determining these cases courts should be cold as icicles and rigorously just. Lawyers are intrusted by the State with a great and valuable monopoly and unusual immunities. They alone are allowed to represent the people in the courts in the pursuit or defense of fortune, they alone oppose a barrier to persecution and oppression, and almost every man at some period of his life must depend upon them in defense or pursuit of property or life or rights dearer than either. No friend, no relative, however dear, no doctor however learned, is, in those emergencies, permitted to intervene. The State distinctly says that in all of these matters the citizen who cannot protect himself shall employ a lawyer and none other. The monopoly is absolute, the privilege is exclusive. In return for this monopoly they must have approved character and learning. The moment these considerations fail, the privilege should cease. The great truth which must ever govern these cases is, that of those to whom much is given much shall be required."

THE Annual Meeting of the New York State Bar Association will be held in the Capitol at Albany, Tuesday, November 20, 1877, at 3 o'clock. Every Lawyer of the State is invited to attend.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany

Albany Law Journal.

ALBANY, NOVEMBER 17, 1877.

CURRENT TOPICS.

THE HE New York State Bar Association will meet in the Assembly Chamber in this city on Tuesday next, and will, it is to be hoped, do some good and honest work, both for itself and for the profession and the jurisprudence of the State. The committee has mapped out the routine business of the meeting, but unless much else be done the Association will come far short of what may reasonably be expected of it. The subjects of law reform, the propriety or desirability of continuing the revision of the statutes, the best methods of such revision, reforms in methods of legislation, codification, law reporting, are among the practical subjects which deserve the careful consideration and the deliberate opinion of this Association at this meeting. These are questions of the hour, and ought not to be relegated to the future. The question of statute revision will be one of the most important as well, probably, as one of the most hotly contested questions before the next session of the Legislature. Whether the whole matter shall be abandoned, or whether the work of the present Commission shall be continued, or whether the Codes reported by the former Commission shall be adopted, are questions which ought to be emphatically pronounced upon by the Bar Association of the State. Then again should be considered the desirability and practicability of organizing county associations, and whether the State Association can best accomplish its purpose as a primary or as a representative body. The functions of the Association should be exercised by the Association, and not be left to any committee or clique. The wisdom of the executive committee in practically abrogating the obstructive regulation as to election of members has been thoroughly demonstrated by the large accession of members during the past two months. The fact is gaining recognition that such an Association is for every lawyer in the State that every one who is entitled to appear in a superior court of justice should be brought within its influence, both for his good and for the good of the bar. It now remains with the bar of the State to make the Association what it ought to be and what it is designed to be, and to enable VOL. 16.- No. 20.

it to accomplish the purposes for which it was organized, namely, "to cultivate the science of jurisprudence, to promote reform in the law, to facilitate the administration of justice, to elevate the standard of integrity, honor and courtesy in the legal profession, and to cherish a spirit of brotherhood among the members thereof." The executive committee invites every lawyer in the State to attend. We do not anticipate a literal compliance with the invitation, but we hope there will be enough persons present to indicate that the profession sustains the organization. Of the benefits of such an association we need not here speak. The results which have, in numerous instances, followed organized action on the part of the legal profession show sufficiently what may be expected when the lawyers of the State put themselves in a shape always to act together upon matters affecting their general interests. Since we gave

the order of exercises last week, the Hon. Sanford E. Church, Chief Judge of the Court of Appeals, has consented to award the post-graduate prize.

The Vanderbilt will case, which promises to become as famous as any previous civil litigation, is fairly under way, one of the counsel for those contesting the will having made his opening speech, and witnesses having been examined. The grounds of the contest, as indicated by the counsel, are lack of testamentary capacity on the part of the testator, and the exercise of undue influence by those chiefly benefited by the will. Both sides are represented by very able counsel, and a strong fight will be made at the trial, though the decision of the surrogate of New York, before whom the case is now pending, will, of course, not be accepted as a final disposition of the matter. The amount involved in the case is probably larger than that in any case, other than a speculative one, ever before any court in this country. In addition to this fact there bids fair to be many questions of more than usual interest developed in the course of the struggle, which has evidently not been entered upon hastily, and without a thorough canvassing of the probabilities of success. In the same connection we would remark that the famous Anneke Jans litigation has reached a point which those who have instigated it have vainly sought to attain for nearly two hundred years that is to say, it has fairly got into court. The surrogate of this county is hearing testimony upon an application for letters of administration upon the undistributed assets of the deceased lady. There is some hope, therefore, that those who have for two centuries and more been waiting for justice will have some part of their case determined upon its merits.

A somewhat novel proceeding is in progress in New York city. The Court of Common Pleas is, under the provisions of chapter 538 of the Laws of

1873, authorized to try and remove from office the officers of the police courts of the city upon charges properly made. Chief Justice Davis of the Supreme Court has presented written charges against a police justice named Duffy, and the Court of Common Pleas has, in accordance with the statute, made preparations for the trial. The method of procedure adopted is somewhat similar to that adopted in proceedings for impeachment, which the proceeding in question resembles. The trial, when actually entered upon, will, however, go forward much more rapidly than an impeachment trial usually does.

A curious salvage question has arisen out of the rescue of the Egyptian obelisk, known as Cleopatra's Needle, which was lost and found in the Mediterranean sea while being towed from Egypt to England. How to estimate the value of the property saved is the point of difficulty. To call it simply so much granite would not be fair to the salvors, and to determine its value as a work of art or from its historical associations is impossible. If it had been insured, the amount of insurance would have furnished something of a guide to valuation, but only the contractor's interest in the contract was insured, and that but partially. The English courts of admiralty are, however, as a rule, very independent of precedent in fixing upon the amount of salvage to be awarded in any given case. In the recent case of The Amerique, L. R., 6 P. C. 468, it was held that though the value of the property saved is to be considered in the estimate of the remuneration, it must not be allowed to raise the quantum altogether out of proportion to the services rendered. The difference between awards is shown in two cases, in one of which £18,000 salvage was given upon a vessel and cargo worth £190,000, while in the other, upon a vessel and cargo worth £6,294, £3, 290 was awarded.

Very little of interest to the profession has been done in Congress during the week, most of the time of that body having been devoted to financial meas

ures.

A bill was introduced in the Senate to establish a new governmental department, to be known as the Department of Commerce, and to be charged with the supervision and care of the commercial, manufacturing and mining interests of the country, and with the execution of all the laws of the United States relating to trade and commerce, both foreign and domestic, customs, duties, internal revenue, navigation, etc. As this measure is vigorously urged by the mercantile interests, it has a good chance of passage. Representative Wells, of New York, brought forward a bill amending the national banking law in many important particulars. It has been prepared with great care, and is said to have a strong support. It provides for the removal of taxes on capital and deposits, and limits the taxation to be imposed by State and local authorities to one per

cent upon capital stock. It enlarges the powers of the banks as to methods of doing business, limits the supervisory authority of the Comptroller of the Currency, and abolishes the office of Bank Examiner. In most respects the changes proposed are desirable, but those intended to relieve the banks from inspection are wrong. At present the chief safeguard to stockholders and depositors in national banks is the frequent examination of the bank accounts and business by experienced persons not in interest with the managing officers. These examinations are doubtless annoying to cashiers and book-keepers, but as they to a great extent interfere with fraudulent practices on the part of such individuals, the circumstance that they give annoyance should have little weight in favor of abolishing them.

The Maryland judiciary will hereafter have to be very careful how they deal with grand juries. Judge Grason, of the Supreme Court, and Yellott, of the third judicial district, some time last spring adjourned the court which they were holding and discharged the grand jury connected with it. For this act they have been indicted for malfeasance in office, a charge of intoxication while on the bench being also made against one of the indicted gentleThe trial of the indictments was commenced last week, and is exciting much interest, not only in Maryland, but throughout the Middle States. The ablest lawyers in Maryland are engaged upon one side or the other, most of them in behalf of the defense. What merits are in the prosecutions we are not advised, but the action of the indicting grand jury appears to be somewhat remarkable.

men.

ers.

The question of referee's fees is one that has given great trouble to courts, lawyers and law makNumerous statutes have been passed to prevent their growth, but they seem to set at defiance all statutory attempts at regulation. The old Code provides (§ 313) that the fees of referees shall not exceed three dollars per day, but the force of the provision is destroyed by a clause allowing parties to agree in writing upon any other rate of compensation. It is usual for one of the litigants in a reference, at an early stage of the trial, to propose a higher rate of compensation. The other party, unless he has an entirely hopeless case, or one so strong that he does not care which way the referee determines, does not dare to gainsay the proposal. He, therefore, acquiesces, and the referee writes down what the parties have agreed to, which is held to satisfy the statutory requirement that the agreement shall be in writing. A case is now pending in the Common Pleas in New York, which illustrates the position in which a party, unwilling to pay a compensation above that prescribed by the Code, may be placed by endeavoring to so act as to save his

« AnteriorContinuar »