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times.” In the other case, Cockburn was leading gie iis plenty o' their law, but deevilish little counsel for the woman Macdougal, the associate of joostice.” In the same volume he also recordis an Burke and Hare in their hideous crimes. Well | amusing retort of a juryman to a medical witness aware of the tremendous weight of prejudice against A woman was being tried for the murder of her which he had to fight, he made a very impressive child. It appeared that the child bail been found appeal to the jury to discard from their minds all with its throat crammed full of pieces of coal, and that they had heard of the case and to devote their with the marks of a thumb and two tingers on the attention solely to the evidence given. The appeal neck. All these, says Cockburn, had little erect was successfully made: the woman got off on a ver on the medical gentlemen called for the defense, dict of not proven. In connection with this case it

who stated that these marks, however they might was stated in a book by a Quaker, dealing with the startle the ignorant, were of little consequence in principles of morality, that Cockburn, in addressing the eyes of a medical man ; he had himself seen the jury, whispered to his colleagues, “Infernal hundreds of children born with similar marks on hay!

the neck. - "the gudgeons swallow it” - and this

"Ay, but Doctor," remarked a country was, of course, severely animadverted upon as a

juryman, “ did ye ever see ony o' them born wi' piece of professional fraud. The astounding state

coals i' their mooth ?" The whole book, like his ment has merely to be stated to be refuted. Re

• Memorials," is full of good things, and can be garding it, Cockburn said: “It is utterly untrue.

read with pleasure over and over again. Cockburn, No one could be more honestly convinced of anyhowever, was not a mere chronicler of the good thing than I was, and am, that there was not sufli- things uttered by other people; he had a genuine cient legal evilence to warrant i conviction of vein of humor himself. lle had been detained one Helen Macdougal. Therefore no such expressions day in court much beyond the usual hour by the dull or sentiment could be uttered. At any rate, none

prosing of a dry advocate. A friend meeting the such, and none of that tendency, were uttered.”

judge afterwards, said that Jr. Was certainly In 1830 Cockburn became solicitor-general, ind inclined to be tedious. Tedious! exclaimer remained in that post till 1834. He never entered Cockburn," he not only exhausts time, but enParliament, but he was kept busy in connection coaches on eternity!" with the important questions which then engaged IIe sat on the bench till within a week or two of the attention of the Legislature. The Scotch Re- his death, which occurred on the 26th April, 1854, form bill wis drafted by him, and on the cognate at his country seat of Bonaly, it charming house question of burgh reform he al-o did much to put nestling at the northern base of the Pentlands. an end to the maladministration of Scotch muni- Carlyle wrote of liim as “a bright, cheery-voiced, cipal affairs which had so long been rampant. hazel-eyed man; a Scotch dialect with plenty of

In 1834 he became a judge, with the title of Lord good logic in it, and of practical sagacity. A genCockburn. Among the notable judgments to which tleman, I should say, and perfectly in the Scotch be was a party were the Nuchterarder case, the type, perhaps the very last of that peculiar species." action against the soi-olisonl Earl of Stirling, in He was a thoroughly excellent man, and one of whom which the claims of the pseudo-Earl were very for his country was justly proud. cibly demolished, and the Glasgow Cotton Spinner's His writings, besides several contributions, chiefly ('ase, where he clearly and emphatically laid down on legal subjects, to the Ellinburgh Rerier, consisted

of his the law on the question of trade conspiracies. In

Memorials of His Own Time; · The Life these, as indeed in all the cases which came before

of Jeffrey," whiclı, though it fine tribute to the him, his judgments were characterized by great

memory of his friend, is hardly so interesting as the

Memorials; " bis · Circuit Journeys," "Jourclearness and force. He was considered not to be

nal,” and “Sedition Trials.” The “ Memorials "wis so strong in his law as some of his colleagues, but

a good deal criticised in the Law Rerire on their he had frequently the satisfaction of finding his

appearance, but their accuracy was maintained with judgments, after being reversed in the

Inner much force in an interesting article in the EilinHouse, restored in the House of Lords.

burgh Rerier. In his "(ircuit Journeys," which contains it One other characteristic of his deserves mention-.. record of his julicial perambulations, he tells many

that was his continued protest against the acts of amusing stories regarding the cases which came

vandalism, under the guise of “improvements," before him. Speaking of the trial of several women,

which were always being perpetrated in his beloved

Edinburgh. His efforts did much to preserve the he mentions that he was greatly diverteii by over

natural beauty of the northern metropolis, and after hearing the opinion entertained by one of the ac

his death a society, called after him the Cockburn cused of himself and his learned colleague. The Society," was founded, and still exists, for the purvirago remarked to one of her associates in the dock: pose of continuing his labors in this direction. - Twa d-daulil grey-healed blackguards. They Line Times,

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Abstracts of Receut Decisions. appointment of a railroad receiver, not with a view

to enforcing any lien or debt, but merely to secure FRAUDS, STATUTE OF-VENDOR AND PURCHASER.

a better management of the property until arrange- Where an agent, who was orally appointed by a

ments can be made for discharging its debts, the married woman with her husband's sanction, pur

mere filing of the bill and service of process do not chased land at auction, and the auctioneer made a

draw the property of the company into the possesmemorandum in his book of the purchaser's name

sion of the court, so as to prevent the company, and terms of sale, the purchase is binding on the prior to the appointment of a receiver, from surrenwoman, as the transaction is not within the statute dering steel rails lying along its right of way, but of frauds. (Moore v. Taylor [Md.] 32 Atl. Rep. 320.) not yet attached to its road, to the creditor from

whom they were purchased, as part of a larger lot, INJUNCTION


in partial extinguishment of debt for the purchase action cannot be maintained, at the suit of a private price. (Illinois Steel Co. v. Putnam, U. S. C. of party, to enjoin an obstruction or other nuisance in

App., 68 Fed. Rep. 515.) a public street or highway, where he has not suffered any special or peculiar damages to himself, his property or business, but his damages are the same in kind as those sustained by the public in common

New Books and New Editions. with himself. (Gundlach v. Hamm [Minn.], 64 N.


This last volume of the reports is published with INSURANCE


its usual good arrangement and excellent index and surance adjuster, by telling assured that as to her continues the series of this practical and valuaole household furniture everything was satisfactory, but

work. It

may not be superfluous to say that the that he wanted to get bills as far as possible of her selection of cases excellently made by the editor store goods, and that as soon as she notified him gives a series of reports of all the States of the most about getting things ready he would meet her, did not important and valuable decisions. This volume waive conditions in the policy requiring assured

contains parts of the following reports: Arkansas to make and keep an inventory of her stock, and in

59, California 104, Florida 34, Houst 9, Illnois 152, case of fire to furnish certain proofs of loss, where, Indiana 136, Iowa 87, Michigan 100, Minnesota 55, long before the expiration of the time for filing Mississippi 122, Montana 14, Nebraska 41, New. proofs, assured was notified that the company would

York 144, Pennsylvania Statutes 163, Washington 9 insist on the performance of the terms of the policy, and Wisconsin 88. Published by Bancroft, Whitand she sued on the policy several months before the

ney & Co., San Francisco, Cal. time for filing the proofs had expired. (Allen v. Milwaukee Mechanics’ Ins. Co. [Mich.], 64 N. W. HISTORY OF THE AUSTRALIAN COLONIES. Rep. 15.)

The history of the Australasian Colonies by EdNATIONAL

ward Jenks, M. A., Professor of Law in University The appointment of a receiver for an insolvent College, Liverpool, and formerly dean in the faculty national bank, under Act Cong. June 30, 1876, § 1,

of law in Milbourne, which authorizes the comptroller, when satisfied of

This is a most interesting and excellent history the insolvency of a banking association, to appoint touching on many new and interesting bits of a receiver, “who shall proceed to close up such as

events of Australia and the surrounding islands and sociation, and enforce the personal liability of the gives, perhaps, a clearer idea of the founding of the shareholders,” does not dissolve the corporation.

different colonies of Australia, New Zealand and the (Chemical Nat. Bank of Chicago v. Hartford De

other governments than any previous work. The posit Co. [111. ], 41 N. E. Rep. 225.)

first few chapters deal with the sounding of the

colonies of New Zealand, New South Wales, Western PLEADING-REVIEW ON APPEAL. It is error to

Australia, South Australia and their developments. render a judgment for the plaintifľ upon a petition The subsequent chapters are of practical value to which does not state a cause of action in his favor.

the lawyer and deal with the responsible governThe error, being apparent from the record and in

ment and modern constitutions. This is followed herent in the jndgment, may be taken advantage of on | by chapters on internal explorations of Australia; appeal, without exceptions or motion for new trial

the Maori wars in New Zealand and present day in the District Court. (Oakland Home Ins. Co. v.

questions, including an exposition of politics and Allen, (Kans.], 40 Pac. Rep. 928.

the federation question and the Tongan question. RAILROAD COMPANIES-STOCKIJOLDERS' BILL FOR Price $1.60. Published by MacMillan & Co., 66 RECEIVER. — Where a stockholders' bill asks for the 5th avenue, New York city.




business matters, should be addressed to THE ALBANY LAW


Morton in matters relative to affairs with which The Albany Law Journal.

he is familiar. How far his judgment may have

been at fault in this case remains to be deterALBANY, OCTOBER 5, 1895.

mined by results. If Messrs. Lincoln, JohnCurrent Lopics.

son and Northrup shall develop a thorough ac

quaintance with the methods of practice in [All communications intended for the Editor should be ad vogue in other States and in England, and so dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other

extensive a knowledge of both the theory on

which the present practice is based and the JOURNAL COMPANY.] 'HE matter of code revision has aroused practical results attained, and shall add to this,

great interest among the lawyers of the capacity as draftsmen of a procedure act deState, and the act of last winter, providing for manded in modern legislation of this importthe appointment of counsel to examine into the ance, they will be abundantly justified in under

taking the work left incomplete by David Practice Acts in this and other countries as a basis for a report upon that subject, met with Dudley Field, and the selection of Governor basis for a report upon that subject, met with Morton will indicate that he was discreet and very general approval. The editorial from the American Lawyer,

sagacious in his action. which we quote below, makes an exceedingly

In view, however, of the agitation on this vigorous protest against any action not based question, it would doubtless be wise for the upon a careful study of the subject by men who commissioners to refrain from the preparation are specially interested in it, and who have al- of a revision until they have given the profesready devoted attention to it.

sion the report required by the statute to be This criticism arises out of the appointment distributed by December first relative to an of the present Commissioners of Statutory Re- examination of the codes of other States and vision to perform the work, and an apprehension of England, and their views as to the basis of that instead of making a careful, painstaking a proposed revision. If this report indicates and scholarly examination of the matter, they the degree of research and investigation, as will be disposed to put before the profession a

well as the thorough knowledge of the subject piece of work lacking careful consideration, required for the work, they will doubtless reand which will not be the mature product of ceive the approval of the bar in proceeding thorough inquiry into and complete mastery of further; otherwise the preparation of a revision the subject of Legal Procedure.

by them will be a serious embarrassment to the We entirely agree with the article in its criti cause of law reform. Are these gentlemen cism of a careless, imperfect and hasty revi- men possessed of such general culture, broad sion. It is a task requiring the attention of the attainments, scholarly instincts, natural ability best minds and the most careful consideration. and legal education, united with facility of exNeither time nor pains should be spared in such pression, as to qualify them for the task, and are a revision, nor is the item of expense to the they sufficiently well known to enjoy the conState a controlling one. The profession can fidence of the bar of the State? However afford to wait for good work, and the State this may be answered, we are clear now as can, if necessary, well afford a fair compensa- always that it would be better that no report tion to the persons engaged in it.

should ever be made than that after the adopThe question for decision by the bar is, praction of the work or after its rejection, this tically, can the Commissioners of Statutory important question should remain unsettled Revision perform this work in the manner re and the Code still continue to be called the quired, with reference to their other duties in driftwood of legal procedure, muddled with revising the General Laws and drafting bills for many topics and statutes which have no relamembers of the Legislature, and are they best tion whatever to the main subject. The article fitted for it of all the lawyers in the State by which we have referred to, and which seems to reason of experience, skill and knowledge. take issue with the wisdom of the appointWe have the highest respect for Governor I ments made by Governor Morton, is as follows:

Vol. 52 — No. 14.

GOVERNOR MORTON'S MISTAKE. ent effort on the part of the lawyers of the The act passed by the Legislature of New State, proper provision is made by this bill for York during the last session, relative to revision the revision of the complicated and intricate of the Code of Procedure, contains these pro- Code of Procedure which has been in operation visions:

since 1877. Up to this point, the associations First - “ The Governor shall appoint three

of the members of the bar, and the individual members of the bar of this State, who shall ex

lawyers who interested themselves in the matamine the Code of Procedure of this state and ter, seemed to have performed their duty well the codes of procedures and practice acts in and faithfully. With the passage of the bill, force in other States and countries, and the however, these eminent lawyers seem to have rules of court adopted in connection therewith, regarded their work as accomplished, and to and report thereon to the next Legislature in have made no effort to provide for the manner what respect the civil procedure in the courts in which it should be carried on and completed. of this State can be revised, condensed and The bar associations and their members, as simplified."

well as the members of the bar generally Second—That the expenses and disburse throughout the State, have been guilty of gross ments incurred in the performance of the work laches in this respect, since we are confident it shall be paid by the State, but no compensation was never contemplated in the bill that this is allowed to the commissioners.

work should be placed in the hands of the Third — That the necessary printing in con

Commissioners of Statutory Revision, who have nection with the work shall be done by the been designated by Governor Morton to disState Printer, and copies of the report distribu- charge the duties imposed by the act. ted to the judges and members of the bar by In the first place, it was not at all necessary December 1, 1895.

that the Legislature should have acted upon the This bill is the outcome of an agitation on

matter at all, or passed a bill providing for the this subject, commenced by the New York appointment of lawyers to perform this work, State Bar Association some two or three years if it were to be delegated to the Commissioners since, and carried on by this journal and other of Statutory Revision. That body is already periodicals, as well as by articles and memo- in existence, duly organized, salaried for the randum presented to the State Bar Association purpose of performing certain work provided from time to time by J. Newton Fiero, chair- by statute, and a mere reference of this matter man of its Committee on Law Reform, and by to them would have accomplished all the purAustin Abbott, also a member of that commit- poses of the bill. tee, and of the Committee on Amendment of

Again, the Commissioners of Statutory Rethe Law, of the Association of the Bar of the vision were appointed for the express purpose City of New York, and by reports of commit- of revising the general laws of the State. They tees of bar association from time to time. The have been engaged upon that work for some Bar Associations of Rochester, Brooklyn and five or six years, and it is not yet accomplished. Syracuse united with the State Association and The result is that the statutes are in a state of the Association of the City of New York in confusion which is disgraceful to the State, and recommending and urging the passage of the the only remedy is prompt action by way of a bill, it having been approved by the State Bar revision of those that remain, so that they may Association at its annual meeting and a com- be incorporated in the general laws and committee appointed charged with the duty of pre-plete the system as a consistent whole. To senting it to the Legislature. The leading place upon this body the duty of revising the lawyers of the State, including Elihu Root, practice of the State is to bring about the state William B. Hornblower, Wheeler H. Peckham, of affairs precisely similar to that which existed and others of note, took an active interest in when the commission which manufactured the the matter, and strongly favored the passage of present Code left the work for which it was the bill. The bar and the public are to be con- appointed, and which was that of the revision gratulated that although, after long and persist- of statutes, and embarked upon the labor of

tinkering with practice and procedure. The and to the two lawyers previously named, who result is too well known to need to be recalled. were active in the movement in favor of Code The work of statutory revision was not per- revision, and who have treated the subject in formed at all, while the work of revision of the works on Practice and Pleading, the names of Code of Procedure was performed in such a men like Adelbert Moot of Buffalo, Robert F. manner as that it might very much better have Wilkinson of Poughkeepsie, John J. Linson of been left undone.

Kingston, Charles A. Collin of Ithaca, and nuFinally, the bill calls for an examination of merous others who have been heartily interthe procedure of this state, and the practice ested in the movement and active in pressing it acts and procedure in other States and countries,

forward at once, suggest themselves as thoras well as the rules of court which are adopted oughly familiar with and competent for the in connection with these regulations, involving performance of the work, . not only a very large amount of labor, but very We presume that Governor Morton conmuch of experience, and requiring the services sulted some members of the bar in the matter of men who have made a study of the special of his appointment, but his advisers certainly matter in hand, and have devoted some time failed in their duty if they neglected to suggest and attention to questions of procedure and the to him the names of proper persons to take up rules of the adjective law, or the law relating to this difficult and troublesome question. If the procedure, as well as a thorough acquaintance Governor neglected to take the advice of the with the substantive law, or what is ordinarily bar on the subject, he has taken upon himself called the municipal law.

as a layman a very grave and unnecessary reThe work to be done requires lawyers, not sponsibility in making appointments of so such only well versed in the law, but thoroughly ac

grave importance to the lawyers of the State quainted with matters of practice and apt as

without taking the utmost pains to ascertain the draftsmen, with a facility for absorbing and requirements for the position, and acting in acusing what is best in the rules and practice in cordance with the views of the profession. other jurisdictions. We make no reflection A revision of the Code, such as

was made upon the three members of the Commission on by the Throop Commission, which went into Statutory Revision in questioning whether they operation in 1877 and 1880, would be not only have any special adaptability or experience to a misfortune, but if adopted by the Legislature qualify them for this class of work.

IVe con

but little short of a calamity. That commission fess to very great disappointment in not finding was appointed for an entirely different purpose, named as commissioners for the purpose of re- and composed of men with no special fitness by vision of the Code the names of men well known education, study or experience for the work; to the profession as those who have made a and, after the lapse of fifteen years, we find the study of this matter, and have special adapta- Code drafted by them so great a failure that tion to the work in hand. Of such men there the profession almost unanimously prefer all is no lack throughout the length and breadth the troubles and ills to flow from a revision of the State. Judge David Rumsey is the rather than to continue under such a procedure. author of three volumes upon practice, which If, on the other hand, a revision should be reindicate that he has made the method of pro- commended and fail of adoption because not cedure in the State a matter of careful investi- prepared so as to fully blend the practical and gation. Edwin Bayles, in his works devoted to scientific side of the practice, it would put back practice under the Code, has shown an ac the work of revision in procedure very many quaintance with Code methods and Code years, and the result of the agitation and labor remedies which would eminently qualify him on the subject for three years past would be enfor the work. The authors of the annotated tirely lost. We cannot, therefore, regard the Code, both Bliss and Stover, from the charac- action of Governor Morton in this matter other ter of the work done by them, must be deemed than unfortunate; and while giving the Execueminently fit for an examination of questions tive credit for the best possible motives, feel of this character. In addition to these authors, I that he was illy advised; and that if the advice

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