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in beauty of scenery, in mineral wealth and agricultural resources, in manhood and womanhood-stands proudly pre-eminent in the sisterhood of American States. And it is with pride and pleasure that I can say that your bar, as a bar, for all the elements which adorn


and dignify professional life for learning, integrity, devotion to duty, fearless manhood and unflinching moral worth, occupies an envious position-second to none, not even of the older States of the American Union. Your judiciary have ever been pure, elevating and ennobling, setting worthy examples for the younger members of the profession. Your Supreme Court has been adorned and dignified by many of the most eminent jurists who ever sat upon the But being now requested to cover the whole American Bench, and to-day, be it said to her ground, we answer frankly to the first question, credit, the judicial utterances and opinions of that, in our opinion, we should remonstrate or the Supreme Court of Alabama are sought for interfere in the proceedings taken by powers. with avidity by the members of the profession other than American with American nations on throughout the entire South. This is the posi-this, continent other than our own,' in all cases tion of your judiciary to-day, and while it per- arising under the Monroe doctrine? What is haps would not be proper to say more than this the Monroe doctrine? Here it is, taken textually of your living judiciary, I cannot refrain from from President Monroe's message: referring to few of the great names of the past, whose illustrious example is worthy of all imitation, and whose works and deeds have covered them with a renown which will live as long as learning is appreciated and virtue adored. What Alabama lawyer does not look with admiration upon the names of Abner S. Liscomb, who for fifteen years was a judge of your Supreme Court, eleven years Chief-Justice, and afterwards, after his removal to Texas, was elevated to the Supreme bench of that State-and maintained it, and whose independence we of Collier and Ormond and Goldthwaite; of have, on great consideration and on just princiDargan and Clay and Hitchcock, of Chilton ples, acknowledged, we could not view any inand Peck and Stone, and others too numerous terposition for the purpose of oppressing them, to mention? These names, gentlemen, shed a or controlling in any other manner their des lustre over your State, and give a dignity to tiny, by any European power, in any other your bar which not even the tooth of time can light than as the manifestation of an unfriendly eradicate. disposition towards the United States. * But in regard to these continents, circumWe publish in this issue of the LAW JOUR- stances are eminently and conspicuously differNAL a letter from John A. Finch, Esq., ent. It is impossible that the allied powers of Indianapolis, on special verdicts under a should extend their political system to any pornew statute in Indiana. The value of such tion of either continent without endangering practice, it is evident, is great where prejudice our peace and happiness; nor can any one bemay enter into the decision of a jury and the lieve that our southern brethren, if left to practice is rather simple, though we can appre- themselves, would adopt it of their own accord. ciate that the interrogatories by counsel to the It is equally impossible, therefore, that we court for its consideration might be multitudi- I should behold such interposition, in any form,

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nous, which is the only unfortunate possibility we can see in the system. It remains to be seen how many States will follow the statute which has been adopted by Indiana.

There has been so much opportunity within the last year to discuss the principles of the Monroe doctrine, and it is a subject which demands careful consideration and calm judgment from lawyers of this country, and which can be only properly carried out by a complete and perfect acquaintance with the principles which it involves, that we publish, almost in entirety the article in the Nation of Oct. 31st on the Monroe Doctrine. The article is as follows:


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"We owe it, therefore, to candor and to the amicable relations existing between the United States and those powers, to declare that we should consider any attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety. With the existing colonies or dependencies, of any European power, we have not interfered, and shall not interfere. But with the governments who have declared their independence


with indifference.' (Message of December 2, to all judgment on the affair. A person who 1823.) writes on it as Senator Lodge does in the magazines. or as the young men in the Tribune office do, with hardly any knowledge of these facts, is as ridiculous as your lawyer would be if, the minute you employed him on a difficult real estate litigation, and before he had looked at your papers and proofs, he began to make it hot for your adversary in the newspapers by calling him a notorious robber and defrauder of widows. All this sound and fury, besides making us a ludicrous spectacle as a nation, seriously embarrasses our officials who are charged with the duty of deciding what part we shall take in foreign disputes, and who have all the available and most correct information about it on their tables. Whatever their faults and

Consequently, if any European power should seek to set up or impose on the people of any South American state, by force of arms, any government or form of government which the people did not demand or were opposed to, or should seek to "oppress them or control their destiny" in any manner, we should hold it to be the duty of our government to repel by as much force as might be necessary any such attempt. The invasion of Mexico by the French was an attempt of this order, and Mr. Seward acted properly in giving them peremptory notice to quit as soon as we had forces available to compel compliance. This is an answer to questions 1 and 2.

The third question, apropos of the Venezuelan trouble, requires more extended treatment. England is already a neighbor of Venezuela, and holds conterminous territory by a title which nobody denies. The frontier runs for a long distance through a tropical wilderness. There have, for this reason, been disputes of long standing over the exact line, as there are between nearly all Spanish-American States. They are aggravated in this case by the fact that this wilderness is a gold country. All this raises the strong probability either that neither side is quite right, or that the truth of the matter is hard to get at. The Venezuelans are no more moral than the British, and no less greedy, and if we acknowledge the right of Great Britain to hold territory on this continent, we must acknowledge her right to protect that territory against invasion or appropriation. We cannot ask her to consider herself in the wrong because she is the more powerful, or confess that weakness, any more than might makes right, because we should never think of applying such a rule to ourselves. We have always, in all disputes with these little South American States, imposed on them our own view of the justice of the case. Witness our treatment of Chili in 1892.

The dispute is in part historical, in part topographical; or, in other words, one to be settled by lawyers and surveyors, not by big guns. It has been so treated by all our diplo matists, and is so treated still, and the ascertainment of the facts is an essential preliminary

shortcomings, they are our chosen and accredited representatives, and the business of deriding them because they do not take a hand in other people's quarrels should begin only after they have publicly revealed their folly or stupidity.


As to our duty in such quarrels, neither the Monroe doctrine nor any other doctrine known among civilized men gives us the right to protect the South American States against the natural consequences of their own insolence and folly. If they quarrel with a bigger power, rob its subjects, or assault and insult its representatives, they must take the quences, which are usually a fine, with some sort of security till it is paid. There are eighteen Spanish-American States, with a population of about 50,000,000. Not one of them has ever exhibited the slightest desire to accept our influence or control except when it got into a row with some European power. They are independent sovereign States, de facto and de jure. We are in no way responsible for them, aud our policy towards them has always been marked by a little dislike and a good deal of contempt, so that the notion that we are injured or insulted if anybody makes them pay their debts or indemnify people whom they have robbed or outraged, is worthy only of schoolboys who want to see a naval battle or read about it.

Whether Great Britain is proposing or "trying wrongfully to take and hold a large share of Venezuelan territory and hold it permanently

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as England's own" is something which we do
not know, and we do not know anybody in the
United States who does know. There cannot
be less trustworthy witnesses on this subject
than the Jingoes and the young newspaper men.
Not only do they not know the truth, but they
do not want to know it, if it is favorable to
England. And we shall never make beneficent
or rational contributions to international law
until this presumption against England gets out
of the heads of people who write or think on
this class of questions. To a great many
Americans "abroad" or "foreign powers" al-
ways means England, and England is a monster
who is always trying to seize more territory.
When these publicists want to annex something,
they always declare that England wants it too,
and sit down and wait for the appearance of
the British fleet. This is funny, but it disturbs
the judgment, and makes a great deal of our
talk on international affairs sound irrational.
England is very much like other nations except
in having a larger fleet. This superstition
causes, too, a widespread but comic popular
belief that anybody who opposes any bit of ag-
gression or fanfaronade on our part, is either in
the pay of Great Britain or is secretly working
for her interest and aggrandizement, and he is,
therefore, not listened to. This, together with.
the boyish eagerness for a big fighting force,
like a fleet, that will not entail risk or incon-
venience to people on shore, is rapidly causing
us the loss of the great place in the international
forum which we occupied in the beginning of
the century, and which the founders of the gov-it
ernment thought we would solidify and im-
prove as we grew stronger. We need more
men in public life, in the press, who seek na-
tional greatness in the sphere of mind and law,
and resist the popular longing for more bloody
corpses, desolated towns and the general "hell
of death and destruction," called war.

shop, who, it is claimed, was negligent and caused the plaintiff to sustain a broken leg, was a Mr. Hemmingway. In the decision, Judge Smith says:


Gentlemen, I have taken some pains to examine this question. There is a case where a foreman had charge of removing a hatchway. He had the sole right to employ and discharge men. The hatchway could be safely removed only by two or three persons acting together. The foreman ordered one person to remove the hatchway and although he was foreman in charge of the work his act was held to be the act of a fellow servant.


At the circuit term of the Supreme Court in in Ithaca, Judge Walter Smith in granting a non-suit recently made the following decision which is on the face of it most important. The action was a suit for damages brought by one Ludlow against the Groton Bridge Company. The plaintiff was injured while in the employ of the bridge company. The foreman of the

There is another case where there had been

some blasting of rocks, and a foreman was in charge of the blasting, and one of the fuses did not go off, and the foreman directed his men to proceed, nevertheless to work near where this fuse was. Afterwards the fuse did go off and injured the parties. Although they were working directly under the charge of the foreman and he had the sole charge of the work, it was held that where the place was rendered unsafe by the negligent act of a fellow servant, that that was not the act of the master for which he could be held responsible; and it was held that the foreman was a fellow servant.

There is another case where a foreman who

had charge of men and of placing them and directing them, had put a man under an embankment to work, which embankment was unsafe, and which the foreman had reason to believe was unsafe because it had been made was held that notwithstanding the act of the unsafe by the acts of the foreman himself; and foreman, and his having charge of the location of the men, and its being the duty of the master the act of the master, but was the act of a fellow to furnish a safe place to work, his act was not

servant. The later cases have all established the rule that it matters not what may be the position of the servant, whether high or low, whether foreman or a mere day laborer, that his act is not to be judged by the position as representing the master or representing a coservant; but whether he be the master or a co-servant, whether he be the alter ego of the master or a co-servant, is to be determined purely by the acts done.. So far as furnishing safe apparatus is concerned, the act of the humblest mechanic who furnishes the apparatus



is the act of the master. In the Cortland case, the engine had become unsafe, and it required to be repaired and a mechanic was employed to repair it; and his negligence is held there to be the negligence of the master because it was in the performance of a duty which the masters owed, and that duty was to furnish safe machinery and a safe place to work.

It has become settled, however, now, that if a master has furnished competent servants and safe machinery, that the use of that machinery, however negligent, and by whomsoever used,

is not attributable to the master. I think the same case practically establishes that. But whether it does or not, there are cases, and many cases, which hold that very conclusively.

In this case the master had furnished two cars

two different kinds of cars or trucks; the high truck and the low truck. It does not appear why one was used in preference to the other. He had also furnished the proper stakes or side-bars to those trucks, but they were not used. It is impossible that a master himself can control the detail work of any corporation or any private business of any size. This injury arose from negligence which

was connected with the detail work, and I am frank to say that while this morning I was in some doubt, from the examination I have made, my mind has been removed, and I think there is no possible question, and that this case cannot be sustained even if Mr. Hem

mingway was negligent, which we will assume for the argument, for these cases hold that his negligence is not the negligence of the master, but is purely the negligence of a co-servant.

This is one of those unfortunate accidents

which no one can be made to pay for, at least no employer. Whatever liability there may be on the part of Mr. Hemmingway to this man I do not discuss, but so far as the liability of this defendant to this plaintiff, I can find no such liability in the facts here proven. I assume that there is no proof in this case whatever to go to the jury upon the question of the competency of Mr. Hemmingway. I cannot see any proof that will make an issuable fact, and the motion for non-suit must, therefore, be granted.

The Supreme Court of Alabama in Holbrook v. State, 18 S. R. 109, held that where the de

fendant was given property by the prosecuting witness to deliver at the latter's house, and defendant sold it, he might be convicted of larceny.


The defendant was convicted of petit larceny. The evidence tended to show that the defendant was employed by one Wigginton to carry him from his home by conveyance to the

depot, where he intended to board a train. Arriving at the depot, Wigginton left with the defendant a quilt, to be returned to his home, which the defendant agreed to do. The defendant carried the quilt to a store and traded it off for an amount much less than its value.

The defendant requested the court to charge the jury that: If the jury believe from the evidence that the witness Wigginton delivered the quilt to the defendant, to be conveyed back to Wigginton's home, and that the quilt was received by the defendant for that purpose, and, after so receiving the quilt, the defendant conceived the intent and purpose to wrongOne of the difficulties in distinguishing befully dispose of it, he is not guilty as charged.' tween larceny and embezzlement consists in the

fact that in larceny there must be a trespass, and a trespass is a wrong to the possession. A bare charge of or custody of goods which belong to another does not divest the possession of the owner. It has, therefore, been held that a servant or other person, having the mere custody of goods, may commit larceny of them (2 Bish. Cr. Law, §§ 823, 824, note; 2 East P. C., 565; 1 Brick. Dig., p. 482, § 487; 12 Am. & Eng. Enc. Law. 768). In Oxford v. State (33 Ala. 416, 418) it is said: 'It is a clear rule of law that, where a party has only the bare charge and custody of the goods of another, the legal possession remains in the owner; and the party in custody may be guilty of trespass and larceny in fraudulently converting the same to his own In Rosc. Cr. Ev., § 646, it is said: 'In order to render the offense larceny, where there is an appropriation by a servant, who is already in possession, it must appear that the goods were at the time in the constructive possession of the master. They will be considered in the constructive possession of the master if they have been once in the possession of the master, and have been delivered by the master to the servant. But if the goods or money have come



* * *

The rule

years 1893 and 1894, a separate writ having issued for each assessment. The defendants were commissioners of taxes and composed the Board of Taxes and Assessments of the city and county of New York, and they made an assessment in each of the

to the possession of the servant from a third
person, and have never been in the hands of the
master, they will not be considered to have been
in the constructive possession of the master, for
the purposes of larceny.
has never been doubted,' &c. In the case of
State v. Washington (17 South. 546) we held
that the statute (Code, § 3795) creating and de-above years against the relator, which is a foreign,
fining embezzlement, did not, and was not in- corporation having money invested in this State,
tended to, convert that which was larceny at such assessment being based upon the provisions of
common law into statutory embezzlement. The the act, chapter 37 of the Laws of 1855, one section
general rule, that to constitute larceny the of which reads as follows: "All persons and asso-
felonious intent must exist at the time of the ciations doing business in the State of New York
'taking and carrying away,' does not militate as merchants, bankers or otherwise, either as prin-
against the rule of constructive possession by and not residents of this State, shall be assessed
cipals or partners, whether special or otherwise,
the owner, the defendant having but the bare and taxed on all sums invested in any manner in
custody, received from the owner, and, having said business the same as if they were residents of
such bare custody, fraudulently converts the this State, and said taxes shall be collected from the
money or goods. We are of opinion, under property of the firms, persons or associations to
the facts of the case; that the court did not err which they severally belong." The relator disputes
in refusing the charge requested."
the validity of each assessment. The defendants,
in 1893, assessed the relator at a certain sum, after
deducting that portion of its indebtedness which
they decided had been incurred in this State in the
purchase of property herein, and in 1894 they made
an assessment without deducting any of the indebt-
edness of the relator whatever. The relator claims

PANY relator and appellant v. EDWARD P.
THAL, as Commissioners of Taxes and Assess-
ments of the City of New York, respondents.
Appeal from orders entered at General Term,
affirming the action of the Commissioners of Taxes

that the defendants, in 1893, did not deduct all its
indebtedness which had been incurred in the pur-
chase of property within this State, and that if they
had done so, there would have been no assessment

and Assessments in assessing the personal property made against it here. It also claims that the assess

of the relator for the years 1893 and 1894.

ment of 1894, was void because of the refusal of the defendants to make any deduction whatever for any indebtedness. The reason for the difference in the decision of this court in People ex rel. Thurberthe two assessments is based by the defendants upon Whyland Co. v. Barker et al., reported in 141 N. Y. 118.

Where there is some evidence to support the conclusion reached by the Commissioners of Taxes and Assessments, this court will not interfere.

It was made to appear by the record in the proceeding

brought for 1893 that the company had assets at its home office enough to permit a deduction of all indebtedness asserted, and no indebtedness was claimed for the purchase of property in this State. The meaning of the words in chapter 37 of the Laws of 1855, "in any manner invested in business in this State," refers to property paid for and in the posses sion of the persons or associations doing business in this State or to such increase beyond any indebtedness incurred as may be established by competent proof upon the application to the Tax Commissioners.

The People ex rel. The Thurber-Whyland Company against

the Tax Commissioners (page 11 N. Y. Reports, page 118) explained and distinguished.

of 1880, for the purpose of reviewing the action of the above defendants in assessing the relator for all sums invested in its business in this State in the

PECKHAM, J.-. The above relator obtained two writs of certiorari under chapter 269 of the Laws

That case was decided here subsequent to the assessment of 1893 and prior to that of 1894. The defendants were of opinion that the decision in question covered this case and obliged them to assess the relator without making any deduction for any indebtedness whatever even though such indebtedness or some portion thereof were incurred in the purchase of the assets in this State for which

the assessment of 1894 was made.

Bowers & Sands (John M. Bowers of counsel) for

Prior to the time for finally making the assessment for each of the two years 1893 and 1894 re

the relator and appellant; Francis M. Scott (David spectively, the relator rendered to the defendants a

J. Dean and James M. Ward of counsel) for the respondents.

verified written statement of the condition of the company as of the second Monday of January in each of such years. The statement of 1893 shows that the total gross assets in all parts of the world

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