Imágenes de páginas

| Ib.

In the present condition of the suit, however, we 3. What does not constitute negligence in law.-Where are compelled to dismiss the writ for want of juris- | a person, as he approaches a railroad crossing, with a diction.

single track and infrequent trains, sees a train with the

rear toward him, going, apparently, in an opposite diRECENT AMERICAN DECISIONS.

rection, and is deceived by appearances, and his atten

tion distracted by the actions of persons at a distance SUPREME COURT OF NEW JERSEY. COURT OF attempting to waru bim of his danger from the train ERRORS AND APPEALS, NEW JERSEY.*

which is backing rapidly and quietly toward him, and ACTION.

a wagon has crossed just before him, it will be left to Tort for taking clay from pit by vendee under parol the jury to say whether there is want of proper care. contract.-An action in tort will not lie against a per

PROXIMATE CAUSE. son who takes clay from an open pit, such person being in possession of the premises under a parol agree

1. Fire communicated from adjoining lands.-Where ment to purchase, and with which agreement he failed one, by negligence or misconduct, occasions a fire on to comply. (The case of Freeman v. Headley, 4 Vroom, his own premises, or the premises of a third person, 523, distinguished.) Beattie v. Connolly.

which spreads from thence to the plaintiff's property,

and causes an injury, the injury is not, as a legal propoCORPORATION. . Public corporation not liable for act done ultra vires.

sition, too far removed from his negligent act to in

volve him in legal liability. (Ryan v. N. Y. C. R. R. -A public corporation cannot be sued for the damages resulting from an act which is ultra vires. A

Co., 35 N. Y. 210, and Penn. R. R. Co. v. Kerr, 62

Penn. 353, disapproved.) Del., Lack. and West. R. R. road board, having the power, widened a public

Co. v. Salmon. (Court of Errors and Appeals.) avenue, and in so doing, embraced the mill-dam of the plaintiff; took down such dam, and in lieu of it

2. Liability for results of negligent act: when question built another dam outside of the area of the highway

of causation is for jury.-In actions for injuries resultand on land owned by a third party; such dam so con

ing from fire originating through the defendant's negstructed, having given way, the plaintiff was deprived,

ligence, and communicated to the plaintiff's property, for some time, of the use of the water in his poud.

where distance, intervening objects, or the manner in Held, that an action for such damage would not lie, as

which the fire was communicated, present the questhe building of the substituted dam was ultra vires.

tion whether the plaintiff's loss is attributable to the Wheeler v. Essex Public Road Board. (Court of Er

defendant's negligent act, and there be no intervening rors and Appeal.)

agency apparent which may staud, in law, as the imCOVENANT.

mediate cause of the injury, the question is one for For benefit of third parties : when enforceable.-Al- the jury whether, under all the conditions under though a deed is inter partes, a covenant therein made which the loss happened, the destruction of the plainwith a third person may be enforced by such third tiff's property was a result that might reasonably have persou by suit, if it clearly appears by the instrument been expected – though not, in fact, anticipated that it was the intention to confer such right. The from the defendant's negligent act. Ib. mere presence, in such deed, of a covenant with a

RAILROAD. third person, will not, as has been held by many cases,

1. Duty of railroad company to keep lands free from be evincive, by its owu force, of such intention. Na

combustibles.- A railroad company is bound to keep tional Union Bank at Dover v. Segur.

its track free from combustible matter, whereby fire FOREIGN JUDGMENT.

may be communicated from its locomotives to adjoiyJudgment in courts of another State when not im- ing property. Negligence in suffering combustible peachable.-A judgment rendered in another State, | matter to accumulate on its right of way, so as to when sued on here, can be impeached only on the make it dangerous to adjoining property to run its ground that the adjudging court did not have juris- locomotives through it, will make the company liable diction over the person of the defendant or the sub for injuries from fires originating in such combustible ject-matter. If the defendant was present in the matter from coals dropped or thrown from its locomoforeign State when proceedings were begun, and pro- tives, and carried thereby to adjoining property, cess was served upon him, no irregularity, in such though there be no allegation that the engine from gervice, unless such as deprived it of all citatory effect, which the coals were dropped or thrown was impropcan be set up against the judgment issuing thereon in erly constructed or driven. Del., Lack. and West. R. a suit on such judgment in this State. Jardine v. | R. Co. v. Salmon (Court of Errors and Appeals). Reichert.

2. Duty of adjoining owner as to combustibles on NEGLIGENCE.

lands.- The owner of lands adjacent to a railroad is 1. When guestion for jury.-In actions for per

not obliged to keep his lands contiguous to the track soual injuries, caused by railroad trains, where there

free from leaves or other combustible matter coming are doubtful and qualifying circumstances, the ques

or being thereon. He may cultivate, build upon and tion of negligence or want of proper care must be left

use his lands, or leave them in a state of nature, as he to the jury. Bonnell v. The Del., Lack. and Western R.

may see proper, and will take upon himself no other R. Co.

risks than such as are incident to the operation of the 2. Contributory negligence : when necessary to au

road with proper care by the company, and will neverthorize nonsuit. - The plaintiff will not be nonsuited

theless be entitled to damages for injuries by fires unless, upon his own showing, he is guilty of negli

arising from the negligence of the company in the gence which contributed to the injury; nor will the

construction or management of its locomotives, or in verdict be set aside unless the jury are clearly wrong

the condition in which its track is suffered to rein their conclusion. Ib.

main. Ib. * To appear in 10 Vroom's (39 N. J. Law) Reports. I 3. Railroad company liable for setting fire upon ad

joining lands without reference to manner of acquiring lien for services rendered the defendant in a subseright of way.- Nor will such owner be barred of recov quent suit involving the same property. Clark v. ery of damages for injury by fires caused by the negli- President, etc., Nat. Metrop. Bank, p. 249. The presentgence of the company, by the fact that the company ment of a check by the holder the day following its acquired the right of way through his land by grant or receipt is not negligence. The drawer of a check condemnation. A conveyance of land for railroad cannot be sued until after the check is presented for purposes, or an assessment of the value of lands taken, | payment. Weed v. Black, p. 268. Contracts for serviand damages under proceedings to condemu, only bars ces in procuring legislation are void as against public the recovery of such damages as naturally and neces policy, though agreements for compensation for colsarily arise from the use of the premises for the lecting evidence, preparation of papers and arguments authorized purpose, and will not bar the recovery of are valid. Second Nat. Bank of Leavenworth v. Smoot, P. damages for injuries arising from an unskillful or im- 371. A note made in Washington, but dated and made proper construction, or negligence in operating the payable at Leavenworth, Kansas, and sent to a bank road. For such damages the remedy by action re at Leavenworth and by it discounted, is governed by mains, notwithstanding the conveyance or condemna- | the laws of Kansas as respects the question of usury, tion. By a provision in the charter of a railroad com Phelps v. McDonald, p. 375. A claim held by a bankpany, its road was declared to be a public highway for rupt upon money paid to the British government the use of steam engines and cars propelled by steam under the treaty of Washington of 1871, is not within engines only. Held, that the company was liable for the jurisdiction of the bankrupt court, so that an injuries from fire thrown by the locomotive of another assigument thereof to the assignee iu bankruptcy can company, which the defendants suffered and permitted be compelled. Burbridge v. Fackler, p. 407. A conto be run on the road without any spark-arrester on tract for a contingent fee for the collection of a claim it, its defective condition being known to the defend- against the United States, which is otherwise fair on ants' train dispatcher, who exercised no supervision its face, is not in violation of public policy, Dixon v. over it. Ib.

Wilkinson, p. 425. If a mau carefully makes excavaREAL ESTATE.

tions on his own land he is not liable to an adjoining When covenant runs with land.- A covenant that owner for injury done to his house thereby. Sanders confers an immediate, permanent and beneficial effect v. Lyon, p. 452. A misrepresentation of the law is not on the use to which real estate is designed to be ap ground for the avoidance of a contract. Converse v. plied, will run with the title. Nat. Union Bank at Wash. & G. R. R. Co., p. 504. The conductor of a Dorer v. Segur.

horse railway car has the right to expel a passenger

who is intoxicated and vomits in the car. Grumbone BOOK NOTICES.

v. Mayor, etc., of Washington, p. 578. A municipal corporation held not liable for the wrongful act of a

police magistrate and policeman, committed in atMCARTHUR'S REPORTS. – VOLUME II.

tempting to enforce an unauthorized ordinance. In Reports of Cases Argued and Determined in the Supreme

such a case the doctrine of respondeat superior does Court of the District of Columbia (General Term), from the January Term, 1875, to the September Term, 1876, not apply. The reporting in the present volume is inclusive. By Arthur McArthur, Associate Justice. carefully done and the book is well printed and Washington: Government Printing Office, 1877.

bound. W HILE the territorial jurisdiction of the Supreme W Court of the District of Columbia is very limited,

THE AMERICAN LAW REVIEW. and the population for which such court determines

The American Law Review. July, 1877. Editors; Moorfield the law is comparatively small, the court is made up of Storey, Samuel Hoar. Vol. XI-No. 4. Boston: Little, judges of national reputation, and the members of the

Brown & Company, 1877. bar who practice before it are men whose ability bas The present number of this publication contains the given them pre-eminence not only locally but through- usual amount of valuable matter. The essays, four out the country. Nearly every case litigated in this in number, are upon these subjects: “The Case of court has, therefore, the advantage of being argued the Franconia," “Primitive Notions of Modern Law," and adjudicated by lawyers of prominence. This “Iusanity as a Defense in Criminal Cases” and “The gives these reports a position that they would not Beuch and Bar in France.” They are all of them otherwise have, and a position which they will keep as interesting reading and the two first named especially loug as Washington remains the Federal capital. of a high order of merit. The digests of English and Among the cases of value and interest in the present American reports and of cases in bankruptcy are as yolume, we notice these: Pabst v. Balt. & 0. R. R. usual thoroughly well done. The book notices are Co., p. 42. It was here held, that an instruction to a well written, though there seems to be a leaning in jury that when the name of a station is called out on favor of Boston authors and Boston publications, some 3 railroad car before it reaches such station, it is to be of the works issued in that locality being unduly presumed to be done by an agent of the company, and praised while some of those coming from other secif the call is false it is the duty of the company to have tions are criticised, we think, somewhat unfairly. The it countermanded, and if that is not done, the company reviewer of Abbott's New Cases manifests a remarkawill be liable for any injury happening to a passenger ble want of information in respect to the prevalence acting upon such call, was erroneous. District of of practice under the Code. He says: “As the object of Columbia v. Humason, p. 158. An act of the legisla- this series of reports is to illustrate the practice under tive assembly of the District imposed a tax of $200 per the New York Code, and as happily that mysterious annum upon commercial agents. This enactment was system exists nowhere but in the courts of New York held to be valid under the Federal constitution. Van the principal value of this series is naturally to practiReswick v. Lamon, p. 172. The lien of a judgment tioners in the courts of that State." According to the creditor upon real estate has priority over an attorney's l latest accounts this practice instead of being confined to New York is in force in considerable more than one number, and are so arranged that the judges can enter half the States of the Union and a code of procedure each court by means of a separate corridor, without of the same nature is in force in England. The sum coming in contact with any one. The barristers are mary of events in this number is very interesting, also provided with a special corridor, running the though perhaps not as much so as we have known it to whole length of the building, and the public, who will be in some previous pumbers.

be admitted into the galleries of the court only, are similarly provided. Beneath the central hall is the

machinery for heating and ventilating the various NOTES.

courts. On the east side is the quadrangle, and under (THE Rivesta de Disiciplini Carcerarie for May, 1877, this is an immense tank of water. This water will be I has been received. This is an Italian journal, pub- forced into the towers and used in case of fire. The lished at Rome, and is devoted more particularly to largest court at present in the building is the Lords criminal jurisprudence, and is conducted under the Justices', which is 39 feet by 49 feet. A portion of the supervision of some of the ablest minds of Italy. The edifice, that which is devoted to the offices, is expected present number contains an article on the meeting of to be finished and put into use at the end of the presthe Iuternational Prison Congress at Stockholm; an ent year. Mr. Colling then explained the various account of the Philadelphia Society for Alleviating points of interest - the peculiar bricks which are bethe Miseries of Public Prisons; the proceedings in ing made specially by the contractors, Messrs. Bull, the Italian Parliament in relation to a proposed law at Southampton, the saddle-back towers, and every for the conditional liberation of convicts; an article thiug of interest to the students. The present conon prison reform in Crotia, and a number of minor tract is to be completed in 1880, but it came out inciarticles. The number appears to be one of more than dentally that a strike among the masons was appreusual excellence. - Messrs. G. P. Putnam's Sous | heuded shortly, which might retard matters. issue in pamphlet form an article on "The Scientific Basis of Delusions, a new theory of Trance and its | The London Times thus refers to a difficulty which bearings on human testiinony. By George M. Beard, sometimes arises in the English courts but which has A.M., M. D.” The article in question was read before as yet not troubled us here: “That pervading uncerthe New York Medico-Legal Society on the 1st of No- tainty which characterizes the practice and procedure veinber last. It is an able and exhaustive discussion of the Supreme Court of Judicature has now extended of a very interesting and important subject, and to the question as to what clothes should be worn on merits the attention of both the legal and the medical red-letter days. Mr. Justice Field appeared this (Saturprofessions.

day) morning in those brilliant robes which learned

judges wear on days wbich commemorate the birth of A correspondent of the Chicago Legal News makes Her Majesty or the death of the saints. On taking some important suggestious to attorneys upon the not his seat, one of Her Majesty's counsel proceeded to exactly legal but very important subject of ink. He | address him. But His Lordship drew attention to the says that the various fluids of a violet or purple tinge, fact that his wig was not of those dimensions which which are very extensively used, are worthless, as the solemnity of the day required. The learned counthey will, if exposed to the light, fade in a short time

sel in question stated that he hoped that it would and become illegible, and should on no account be

not be supposed that he was capable of any want of used in the preparation of papers of any value. The

respect either to Her Majesty or to the court, and old fashioned black inks, made of a gallate or tonnate

that he would without delay attire himself in the of iron, are the only safe inks in use. These undergo

full-bottomed wig; he had, however, understood that changes in time recoguizable with the microscope, but

the full-bottomed wig should not be worn at nisi prius. under ordinary circumstances, as is well known, writ

About the same time, in an adjoining court, where ing executed with these inks remains legible for cen

sittings at nisi prius were being held, the learned turies. Among the inks which he examined were

judge took his seat in the black gowu ordinarily Maynard and Noyes', Carter's and Arnold's. These worn by learned judges when sitting at nisi prius, can all be discharged with more or less facility from

probably being under the impression, as was the the paper by chemical agents, but until an ink is in

learned counsel above referred to, that during sittings vented which cannot be thus affected, such as these

at nisi prius no change of attire was necessary or should alone be used. He states that there are a num

proper. Indeed, two of Her Majesty's counsel, who ber of black inks in the market which are equally as

appeared in their full-bottomed wigs, seeing the fugitive as the purple and violet inks.

mode in which the learned judge was attired, left

the court and lost no time in chaugiug their fullThe Solicitors' Journal thus describes the edifice bottomed wigs for a less imposing head-gear." known as the New Law Courts: A number of techuical studeuts of the Artisans' Institute recently paid Lord Justice Mellish died on Saturday, June 16, at a visit to the New Law Courts, and were shown over his residence in London in the sixty-third year of his the buildings by Mr. Colling, the government clerk of age. His lordship was the second son of the late Very the works. After explaining the original desigu to Reverend Edward Mellish, Dean of Hereford. He lay the ground out between Carey street and the was educated at Eton, and at University College, Strand as a public garden, Mr. Colling proceeded to Oxford. From 1840 to 1848 he practiced as a special the central hall, a structure which may be said to be pleader. In the latter year he was called to the bar, the key of the whole building. This is 230 feet long and became a member of the Northern Circuit. In 1861 and 45 feet wide, with a height of 80 feet. In this place he was made Queen's Counsel; and, in August, 1870, he the witnesses and jurors will meet and be couducted was appointed Lord Justice of Appeal. The English to the waiting-rooms of the various courts in which press speak in very high terms of his ability and they are to be engaged. These courts are eighteen in | learning.

The Albany Law Journal.

tion bureau," to collect a bill in his favor against plaintiff. The firm mentioned were not admitted

attorneys, but its members were accustomed to sue ALBANY, JULY 21, 1877.

out writs upon claims sent to it for collection, ap

pearing in their own names when allowed to, and CURRENT TOPICS.

employing the name of an admitted attorney when THERE seems to be a growing tendency among

necessary, but always conducting and retaining

control of the suits instituted. This firm issued a I reporters to omit all mention of the labors of

circular describing its business, which contained counsel in the presentation of decisions to the pub

this: “Should you intrust us with your colleclic, and, indeed, many of them never give any thing

tions we shall take your instructions as to the more than the names of the counsel and the parties

manner in which you wish your debtors treated, for whom they appeared. This is precisely the re

whether with delicacy, so as not to offend them, or verse of what was the practice in the early days of

with such severity as to show that no trifling is inreporting. Take a volume of Johnson's Reports,

tended." Defendant gave no directions as to the for instance. There appears, first, a full statement

manner in which his claim was to be collected, but of facts; next comes the arguments pro and con.

the firm took the severe method, and caused the of counsel, and the opinion occupies only a brief

wrongful arrest of plaintiff upon process issued space in the report. The early reporters published

upon a judgment obtained in defendant's favor the case — those of modern times only give the de

against him. Plaintiff thereupon brought this cision. It may be said that the decision, and the

action for false imprisonment. Defendant knew reasons of the court for giving it, is all that is

nothing of the proceedings by the firm. The Suessential, but this is not uniformly or usually correct.

preme Court held that the firm was the agent of The counsel in any case devote much more time and

defendant, and that he was liable for the arrest. care to examining the principles involved in it than

Lord, J., who delivered the opinion, said: “We does the judge or court that determines it. To be

think any person who employs such agents, with sure the counsel are biased in their arguments and

knowledge on his part, giving no special instruccitations, but this fact is known and can be allowed

tions, authorizes the agents to use, and becomes for; and it is not certain that the court in a given

responsible for injuries caused by the use of, such case is free from bias. Besides, many cases wbich

means as they see fit to adopt in the prosecution of are fully and carefully prepared and argued are de

his business for his benefit, whether those means be termined upon some immaterial technicality, and

honorable and proper, or whether resort is had to the opinion touches upon none of the important

insolence and insult, or to misuse or abuse of legal points presented. It would perhaps be inexpedient

process. They are his servants, to do his work in to-day to give the arguments of counsel with the

their own manner, though that manner may be unfullness with which the early reporters gave them,

| justifiable or illegal.” but more attention should be paid to counsel than merely giving their names. A brief statement of The Commission who were charged with the duty the points advanced upon each side, with the cita- of arranging the Revised Code of Civil Procedure, tions of authority made, ought to accompany each

so as to conform to the intention of the legislature, reported decision. The doing of this is sometimes completed their labors on the 17th inst., and on difficult on account of the extreme length of the that day filed what will be, after September 1st, arguments, but, when properly done, it adds much

the law regulating practice in the courts of this to the value of the report. A counsel making an State. It is now possible for the bench and bar to argument could, in most instances, materially aid ascertain precisely what the coming Code is. There the reporter by preparing for his use a brief synop-have been several editions issued in advance of sis of the points advanced, with the authorities the filing of the draft of the Commission, but none supporting each point stated thereunder. Such

of these can be relied upon as setting forth the law a synopsis could precede or follow the body of the with complete accuracy. It has been said that argument, and would be found useful not only any good lawyer could, with the enactments in reto the reporter, but to the court, and in many in-lation to the Code before him, do what was necessary stances to the counsel himself.

as well as the Commissioners. Whether this be

true or not, it is not to be presumed that he could The case of Caswell v. Cross, 120 Mass. 545, ought do it any better than the Commissioners, or that he to be a warning to those who employ the institu- could properly do it any more quickly. A number tions which describe themselves as “collecting of persons might be put at the task, but this is a agencies," etc., to prosecute their doubtful claims. work that cannot well be done by the piece. BeThe defendant in this case employed a firm in Bos- | sides, if there should be any instance where there ton, which held itself out to be a "law and collec- I might be a difference of opinion as to what ought

Vol. 16.– No. 3.

to be done -- and it is well known that legislation the bar, but who had been rejected upon charges is full of such instances the conclusion of the affecting his moral character, made a motion for Commission would govern. These publications an- that purpose in the Court of Common Pleas of that ticipating the work of the Commission must, there- city, and took such steps that his friend was upon fore, be unreliable as authority, and, therefore, of that occasion successful in procuring the enrollment no value whatever. As illustrating these remarks, of his name as a member of the legal profession. we would refer to three gross errors in Ward & The fact of the previous rejection was, however, Peloubet's “Ready Reference Edition," where no concealed. When the court discovered the truth, notice whatever is taken of the changes made in it manifested its displeasure by suspending the sections 382, 550 and 551 of the revised Code by young lawyer from practicing at the bar for the chapter 422 of the Laws of 1877.

period of one year. In answer to a plea put in by

the offender for leniency, on the ground of “youth There is more romance in the courts than in the and generous sympathy," etc., it said: “There is novels – in fact, almost every litigated case would, nothing in the answer to excuse the conduct of Mr. if taken with all its surroundings, be found to pos- | Deringer. His youth is urged in extenuation of his sess a dramatic interest fully equal to that of any of offense, but it will not be seriously pretended that the productions of Scott, Cooper or Dickens. Gen- | his age and his connection with the bar for several erally, however, the details of a lawsuit are so dry, years past are not sufficient to enable him to distinthere is so much merely formal matter brought in, guish between right and wrong in a matter of this and so much of what the world at large would like to kind; or that he does not know the difference beknow, suppressed, or but lightly touched upon, that tween a candid statement of material facts, and the public do not take that interest in judicial pro- their concealment, by which the court were misceedings of a civil nature that it might be supposed led. His plea of generous sympathy is no justificathey would. It is only when the facts of a case are tion for not acting up to his oath of office, and for remarkably horrible, or more than usually disgust- | fulfilling the obligation to act with all due fidelity ing, that the people crowd into the courts and to the court." What was done about the friend is watch a trial to its end. Among the most interest- | not reported. ing cases in a romantic way are those involving the probate of wills, and a peculiar one of this

NOTES OF CASES. kind was decided in New York, on Monday last, by (ONFLICTING decisions between the courts of Judge Barrett. One Lewis came to New York

V this State and the Supreme Court of the United about forty years since, and, commencing as a porter

States upon questions of negotiable paper are to be in a mercantile house, by means of industry and

much regretted. In Carpenter v. Logan; 16 Wall. shrewdness rose to be a merchant, and to accumulate

271, the latter court held that the purchaser of a a fortune of $250,000. There was always a mystery

negotiable note, secured by a mortgage, takes the connected with his early life which no one was able

mortgage as he takes the note, free from the objecto solve, but, as he possessed riches and social hab

tions to which it was liable in the hands of the its, he was welcomed into the best circles. That

mortgagee, and the Supreme Court of this State he was not of pure Anglo-Saxon descent was mani

followed this holding in Gould v. Marsh, 4 T. & C. fest by his appearance, but it was supposed that one

128, 131. The contrary doctrine seems to be asof his parents was a Spanish-American, as his fea

serted by Judge Andrews in giving the opinion of tures were of that type. According to the custom

the Court of Appeals in Barloro v. Myers, 64 N. Y. of mortals, he died, and, according to the custom of

41, on pp. 45, 46. wealthy merchants, he left a curious will, which led to contention between those benefited by it and his 1 In the case of State, Atkinson, Prosecutor, v. next of kin. Now, the mystery of his life was

Bishop, application was made for a public rond. solved, and it was made manifest that he was the This was objected to, on the ground that the road, son of a slave woman, his father being a white man. as applied for, was not a public rog

as applied for, was not a public road, and was founded The next of kin of the deceased, one of whom con- on the fact that its terminus was on private property. tested the will, are another son and a daughter of The court held the objection not to be sound, saying the same woman, both of whom have been slaves.

that the ancient doctrine of the common law, that Judge Barrett decided in favor of the contestant,

| it was of the essence of a highway that it should

it was of th holding that the next of kin are entitled to the l lead to a market town, or from town to town, and estate of the decedent, subject to a contingent life be a thoroughfare having no terminus a quo or terinterest of another person created by the will, which minus ad quem, has been overruled. It is not essenwas held to be valid to the extent of this interest. tial to a public highway that it be a thoroughfare.

It may be a cul de sac. If, in fact, it be common to A young lawyer in Philadelphia, for the purpose all the public, it is a public highway, without reof helping a friend who wished to be admitted to 'gard to the place of its termination, Rugby Charity

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