Imágenes de páginas

and that, therefore, the stay of the trial was still in cert being established, then the act of either one force and the trial could not be had.

was the act of the other; and in that way the deI have a reasonable doubt of the validity of this fendant could be convicted. Evidence had been precipitate proceeding in the Supreme Court. If it produced from which the jury could have found is to be allowed in this defendant's case, then it that the legal relation existed. Next, it was can be repeated in any one's case. It is quite as proved that Burns stopped the work of pulling important that justice appear to be done as that it down a building which Seagrist was engaged in, be done. It is important that crime should be and told him he could not go on with it till he saw punished, but far more important that the rights of the captain, namely, the defendant. This was the the individual should be held inviolable, for that coercion used to extort the money. Seagrist says alone is all that stands between him and tyranny, he went to the station to see the captain, but he was whether executive or judicial.

not in. The next thing to prove was that the If the order of the Supreme Court was void, then money was paid. Seagrist swore positively that he the stay was in force when the Court of Oyer and paid fifty dollars to either the defendant or Burns, Terminer tried the cause. I do not see how a court but that he could not remember which. His may force a party to bring on a trial or application dubiety was upon this point only. He then testified of any kind within less time than he has legally that he made a true memorandum of the occurrence noticed it for, unless by express statutory authority at the time of payment, and produced it. Being to shorten the time, which did not exist in the requested to look at the memorandum to refresh his prssent instance. It might as well try to make a memory, he did so, and then said: “I have no disparty bring on a trial or application that he had not tinct recollection by looking at the book to whom I given notice of at all. The notice was shortened in paid it, because it was a double entry.” The memo. this case by the aforesaid order of the Special Term randum was then offered and received in evidence of the Supreme Court upon the ground that the against the objection of defendant's counsel. It is public interest required that there be no delay of as follows: “ November 21, 1891. Material. Paid the trial of defendant. If there be a valid ground, to McLaughlin for protection per Seargent Burns, then a notice of trial or of motion in any case in- Ordinance officer, $50." Seagrist said, as we have volving public interests may be shortened or disre- seen, that he could not tell from this memorandum garded by a court. It seems to me the learned dis- to which one he paid the money, because it was a trict attorney mistook his course, and that the court “double entry;” not referring to double entry bookacted without jurisdiction. The way for the district keeping (for no such thing was before him), but attorney to prevent delay of the trial was plain. meaning that the entry was double in meaning, or The law had not left in the power of the defend-equivocal. And so the memorandum seems to be; ant to delay the trial at will. He had to get a stay for who can say from it, any more than Seagrist pending his motion in order to delay the trial at could, whether it conveys the statement that the all; and the district attorney had the right to apply money was paid to McLaughlin per or through to the judge who had granted the stay to vacate it, Burns for protection, or paid directly to McLaughunless the defendant would stipulate as an alterna- lin for protection to be given per or through Burns. tive to argue the motion in a shortened time. The It follows that this delphic memorandum like is often done in civil causes in respect of both not competent to prove to which one the money notices of trial and of motion. But that a court was actually given by Seagrist. That was the only has inherent jurisiliction to shorten at will notices point upon which his memory failed; and the essential to give it jurisdiction, I cannot believe. memorandum could not be competent to prove anyThere was no due process of law by which the thing except something which the witness could Special Term of the Supreme Court was able to do not recollect. (Ulster Co. Bank v. Madden, 114 N. what it assumed to do in this case.

Y. 280; Rice on Evidence, Vol. 3, p. 100.) He reAnother assigned error raises a grave question. membered positively that he paid the $50 to one or The indictment was for the extortion of fifty dollars the other, so that the memorandum could not be from one Seagrist. To make out the crime it be- received to prove that. But in another aspect it came necessary for the prosecution to prove a con seems that the memorandum could not be legal tinuing illegal concert between the defendant and evidence. The rule allowing an original written his ward man Burns, to extort money; for the acts memorandum of a fact to be used as evidence of necessary to constitute the particular crime for such fact in the absence of recollection of the fact which defendant was being tried were not at all by the person who made the memorandum, relates committed by defendant personally, but, on the only to memoranda of facts, and not to memocontrary, some, or, as the prosecution finally claimed, randum of inferences or conclusions. The memoall of them, were done by Burns. This illegal con randum in question is of a conclusion. It con


tains a conclusion that an illegal concert existed the globe -- however much the demand for harmony between McLaughlin and Burns; that payment to - the elegantia juris of the Romans — might desire Burns was payment to McLaughlin for his protec- the removal of all antinomies. But, as the author tion or else that payment to McLaughlin was for in a passage of great power at the close of his work his protection through Burns. Indeed, it contains points out, the rights of the foreigner are gradually a statement of a conclusion that the very crime for assuming recognition in our courts, in spite of that which the defendant was being tried was com positivism which gives our English school of jurismitted. It was competent for Seagrist to testify | prudence so marked a contrast to the jurisprudence that he paid the money to Burns, but not com of the continent. One of the most salient features petent for him thereupon to state the conclusion of modern legal history is the same as that which that such payment amounted to payment to Mc- the student of the Antonine jurisprudence enLaughlin. Yet that is what this memorandum was counters, the increased facility for acquiring citizeninterpreted to state by the prosecution. If one ship. The means employed are not the same, but in could make a written memorandum of his con

this respect, as in others, the aphorism of Sir H. S. clusions, and in that way afterwards have them | Maine holds good — that it is not possible to overreceived in evidence, no one would be safe in state the value of Roman jurisprudence as a key to inliberty or property. There would be no end of ternational law. That which Sir H. S. Maine wrote fabricated memoranda. Even an original memo the Cambridge essays of 1856 would one day be true of randum of a simple fact is received in evidence our municipal law, is, in the sphere of private interwith hesitation, and only from necessity, and such national law, un fait accompli, Sir W. Rattigan points caution is necessary, as our highest court has said, out that it is one of the instances of the final tri“ until the moral infirmity of human nature be- umph of the Roman principles of jurisprudence that comes exceptionally less than it yet has." (114 N. this (the principle of jus sanguinis in fixing nationY. 285.)

ality) is the theory which is now more and more The motion is granted.

largely recognized in Europe.” But no one can peruse the pages of this work without having to make

the admission that the want of a Gemeines Recht in PRIVATE INTERNATIONAL LAW.(a)

the sphere of international intercourse is only too

palpable. Private international law is, in fact, the The effect of the recent decision of the judicial appropriate sphere of le conflit des lois. It has been committee of the Privy Council in the case of Sir

well pointed out by a recent writer on international dar Gurdyal Singh v. II. H. The Raja of Faridkot law that the antinomies of different legislation are being to judicially affirm the sovereignty of the in- but ineffectually met by treaties. What is wanted is dependent native State within its own territorial uniformity of legislation. Thus the Berne convenlimits, it becomes easy to understand that private tion of 1885, adopted in England under the sanction international law has for the Indian student a prace of the international copyright act, while doubtless tical no less than a theoretical interest. It would

an act of international betterment in itself, brings indeed be difficult to conceive an author alleging a into full relief the fact that the copyright of an aubetter raison d'être for his work than Sir W. Ratti- thor in his works is protected longer in some coungan has done. India, like classical Hellas, now tries than in others. A signal illustration of le conflit consists of a number of separate independent States, des lois exists in the law of nationality respectively but the enormous number of those States (no less obtaining in France and England. Though the than 629) shows how far India transcends the clas- under secretary for foreign affairs (Sir James Fersical parallel. Though Sir W. Rattigan explicitly gusson) stated in the House of Commons in 1889, announces that this manual is written primarily for that the British government had no ground of prothe Indian or English student of law, no one who

test, yet grandchildren, born in France of natural looks into this work can doubt that it possesses in

born British subjects, who have British nationality terest for a much wider class of readers. On the

confered upon them by various statutes of Anne, psychological principle of variatio delectat, there must

George II., and George III,, become, by virtue of the be something to attract the mind in the extraordin

French naturalization act of 1889, French subjects, ary variety of legal systems that obtain throughout and are now liable as such to military service. This

(a) By Sir William Henry Rattigan, LL. D., of illustration may serve to show that, though the Lincon’s-inn, Barrister-at-La', Vice-Chancellor of Roman law is a key to international law, it is still the University of the Punjab. Author of “The far from being the Gemeines Recht of the nations. Science of Jurisprudence,' Roman Law of Per- The private international law of copyright, being a sons,” etc.

London : Stevens & Sons Limited, 119 purely modern creation, bears no trace of derivation and 120 Chancery lane.

from the Roman' law.



The fundamental notion of public international declared to be necessary in the case of Jeffreys v. law is the territoriality of sovereignty. In private Boosey. It only remains to say that the elaborainternational law, the student's attention is fre tions and wealth of reference of this little manual quently directed to exception to this principle – to will render it no less useful to the practitioner than the extra-territorial application of certain laws. its lucidity of exposition will render it attractive This conception of personal laws extending their to the student. --Law Times. empire and authority so as to attach to the person everywhere was first asserted by the Italian jurists

Abstracts of Recent Decisions. of the thirteenth century. As Sir W. Rattigan formulates the problem, Private International Law ASSIGNMENT FOR BENEFIT OF CREDITORS-VAL"solves the difficult questions arising from the

IDITY. – Where an assignment purports to convey all inquiry, as to what extent the native law is bound

the debtor's property to be equally distributed to respect the foreign law, and the conditions among all his creditors, and the same is accepted by under which the latter must always yield to the

the assignee, and by a majority in number, if not in former."

amount, of all the creditors, it cannot be held frauduSir W. Rattigan, in his chapter on the Law of

lent on its face, although it contains provisions which Things, says that “the jurisprudence of Continental

might be objectionable if the assignment were one Europe, following that of the old Civil Law, knows no other classification of things creept mobilia and granting preferences; nor can such assignment be

set aside because of the friluculent intent of the asimmobilia.” It is significant to observe that this signor, not shown to have been participated in by division into mobilia and immobilia does not occur

the assignee and the accepting creditors. (Porter in the eighth title of the First Book of the Digest -de divisione Rerum et qualitate.

v. James [U. S. C. ('. ofipp. }, 67 Fed. Rep. 21.)

The French Code Civil, adopted in Italy after 1866, certainly does

FEDERAL COURTS — say (art. 516): Tous les biens sont meubles ou immeu

BOOKS AND PAPERS. –The right given by Rev. St. bles." But this is invariably translated : All 721, to compel the production of books and property is either personal or real." In excellent papers in action at law, is not limited to requiring French dictionaries like Gasc's, the substantive their production at the trial, but the court may, in immeuble has the meaning of real estate, landed its (liscretion, grant an order for inspection, with estate, or property, but not immorable thing. The permission to copy, prior to the date of the trial. criticism so frequently directed against the Eng. (Lucker v. Phoenix Assur. Co. of London (C. S. C. lish division of property, that it designates lease | C., S. (ar.], 67 Fed. Rep. 18.) bolds for a term of years as chattles real, and there FEDERAL COURTS--SUPREME (YOU'RT-DENIAL fore a personal property, is adopted by Sir W. RIGHTS TYDER FEDERAL (OXSTITUTIOX. - When the Rattigan, who quotes Lord Selborne's dictum in ground of jurisdiction is the alleged denial of a Freke v. Lord Carbery, that land, whether held for title, right, privilege or immunity, secured by the a chattel interest or a freehold interest, is, as it Constitution or laws of the United States, it must matter of fact, immovable and not movable. But it appear that such title, right, privilege or immunity may be observed that the Code ('ivil gols nearly the was specially set up or claimed at the proper time same length in unduly extending the meaning of the and in the proper way; and cannot be recognized term real property, as the English law does in re as properly maile, when set up for the first time in stricting it to freehold interest in land. Thus, by

Thus, by a petition for rehearing after judgment. (Sayward Code Civil, under certain circumstances. cattle,

v. Dennyil". S. S. C.), 1.5 s. c. Rep. .) pigeons, warren rabbits, and farming implements

MECILINIC'S LIEN-COMMUNITY PROPERTY.—The may be designated real property (cf. art. 521)

husband may contract for the erection of buildings One of the most interesting chapters in this work is

on the community real estate, so as to subject it to the chapter on Immaterial Rights of Copyright,

mechanic's liens therefor. (Douthitt 1. McCulsky Tradesmarks and Patents. These rights have been slow to receive international recognition. It is (Wash.], 40 Pac. Rep. 186.) much to be regretted that Russia and the United PRINCIPAL AND SURETY - SUBROGATION.- Where States did not join in the Berne convention. The a surety for the payment of a debt receives a security decision in Routledge r. Low leaves it uncertain for his indemnity and to discharge such indebtedwhether the presence of a foreign author within ness, the principal creditor is, in equity, entitled to British territory at the time of publication is neces

the full benefit of that security. (South Omaha sary or not in order to enable him to claim the Nat. Bank v. Wright leb.), 63 N. ll. Rep. 126.) benefit of 5 and 6 Vict. c. 15.

Fourteen years pre

TRESPASS ON LAND.—Where a complaint alleges viously to this decision such presence was explicitly I a continuing trespass by defendant, through its


agents, on plaintiff's land, and the cutting and con


version of timber growing thereon, in a single Glenn's International Law is the ninth and latest,

count, the entire cause of action is local, and only hand-book of the now widely known Hornbook a federal court within the State in which the land Series, from the press of the West Publishing Co., lies has jurisdiction. (Ellen wood v. Marietta Chair of which series we had occasion to write at some Co. (U. S. S. C.], 15 S. C. Rep. 771.)

length two weeks ago.

The general merit of the series cannot but be en

hanced by the present work, which is a most broad New Books and New Editions.

and admirable treatise of international law, stating

the controlling principles of the law in a readily MANUAL OF PUBLIC INTERNATIONAL LAW.

accessible style, and giving copious references to Mr. Thomas Alfred Walker, fellow and lecturer the many ramifications of these principles met with of Peterhouse, Cambridge, Eng., has produced a in actual practice. most valuable and interesting addition to the sub The author, who is a member of a profession from ject of International Law.

which additions to the number of our text-book The book is designed as a comprehensive general | authorities would scarcely be dreamed of, Captain introduction to detailed study of the subject, and Edwin F. Glenn, acting judge advocate of 0. S. such a work the author has certainly produced show- | army, deliberately and in praiseworthy contrast to ing moreover a thorough and clear knowledge of so many authors, disclaims any original work in the subject in hand. The style is extremely clear this ancient field of the law, and emphatically states and the treatment careful.

that he has “ freely copied from authorities of reIt should prove a work of great interest not only cognized standing," claiming for his work the to the legal profession or any student, but also to greater merit in a treatise of this kind of careful the general public.

compilation and clear and accurate statement. Published by C. J. Clay & Sons, London, Eng.;

Published by the West Publishing Co., St. Paul, McMillan & Co., N. Y.



The second and third volumes of this valuable Prof. Goodnow, the present occupant of the chair of administrative law in Columbia College, has compilation of cases of a branch of the law the imadded to his already high reputation as an authority portance of which is only of late beginning to be added to his already high reputation as an authority felt, have just been issued by Matthew Bender, on administrative law by his latest work, “Munici

Albany, N. Y., being edited by William H. Morrill, pal Home Rule.”

the well-known writer on legal subjects. The book is a study in the administration of cities

The wide scope of these volumes makes them of which cannot fail of a wide and favorable reception, unusual merit, embracing as they do, the decisions coming as it does in the midst of the present agita- of the Federal Courts and of almost every State in tion of the subject.

the Union from 1886-1892. The cases in these Published by MacMillan & Co., N. Y. Price,

volumes are arranged most advantageously for $1.50.

reference, not being, as usual in such works, placed HALL'S INFRINGEMENT OUTLINE.

in chronological order, but grouped together acThis is an extremely brief and succinct outline of cording to the subjects of the decisions. the law of the infringement of patents for inven In his preface to Volume III, the author comtions (not designs) from the pen of Thomas B. Hall, ments on the rapid increase of adjudications in Esq., of the Cleveland bar, the author of the well- electrical law, especially in the newer field of known works, “ Hall's Patent Infringement” and applied electricity by reason of the many new ques“ Hall's Patent Estate."

tions arising from the interference of the powerful Mr. Hall has based his “Outline” solely on the currents of power and light companies with the opinions of the Supreme Court of the United States, weaker currents and more delicate apparatus of and the volume is of corresponding value to any telephone companies. patent practitioner of this country, or any one de The question as to the rights of abutting owners siring in brief form a short treatise on this branch as affected by the maintenance in highways of of the Patent Law.

apparatus required by users of electricity, occupy For a volume of its size, 86 pages, it contains an an important place in Volume III. unusually large number of references to well-estab These reports are of the greatest value to every lished cases.

lawyer of the present age of electricity. Published by Banks & Bros., New York and Published and sold by Matthew Bender, Albany, Albany.

N. Y.



should be tolerated here merely because it was The Albany Law Journal. organized in another State. If it were a lottery

company it would be promptly suppressed, ALBANY, AUGUST 10, 1895.

however clear might be its right to do business

in the State of its origin. A State that deCurrent Lopics.

sires to check the spread of monopolistic com

binations has the remedy in its own hands. It [All communications intended for the Editor should be ad

need not allow its people to be imposed on for dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other a day longer than they are willing to be. business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

The law on the subject is very fully set forth

in the opinion of the United States Supreme HE question is being raised in a somewhat Court delivered by Justice Field in the "Icad

peremptory way as to the right of a corpo- | ing case of Paul v. Commonwealth of Virration owing its charter to another State to do ginia. It is there laid down that as a corporabusiness accordingto methods condemned by the tion has no absolute right of recognition in any laws of a State in which it has established itself. other State save that of its origin, but depends There is a popular impression that a corpora- for such recognition and the enforcement of its tion organized, say, under the laws of New contracts upon the assent of other States, it folJersey, has a constitutional right to do business lows that such assent may be granted upon in the State of New York. But what may be such terms and conditions as those States may called the interchangeability of American citi-think proper to impose. They may exclude zenship guaranteed by the Constitution of the the foreign corporation entirely; they may reUnited States does not extend to those arti- strict its business to particular localities, or ficial persons known as corporations. These, they may exact such security for the performbeing the mere creation of local law, can have

ance of its contracts with their citizens as in no legal existence beyond the limits of the their judgment will best promote the public insovereignty where they were created.

In the terest.

The whole matter rests in their dislanguage of the United States Supreme Court: cretion. It is clearly an anomaly that corpora. A corporation “ must dwell in the place of its tions should be allowed to do business undiscreation, and cannot migrate to another sover

turbed in States where their charters would be eignty. The recognition of its existence, even annulled were they of doinestic origin. If the by other States, and the enforcement of its con laws of any State have been deliberately tracts made therein, depend purely upon the framed to favor the formation of trusts and comity of those States a comity which is monopolies, or if they are so administered us to never extended where the existence of the cor protect the existence of such combinations, poration or the exercise of its powers are pre- there is no reason whatever why other States judicial to their interest or repugnant to their should allow their laws to be similarly perpolicy."

verted. This latter statement is not so obviously true One of the first cases decided in England in as when it was written in deciding the case of some years as to the dispossession of the real the Bank of Augusta v. Earle, because it was property of one party by another was in Marnot then common to combine corporations "10 shall v. Taylor which was determined by the limit production, stile competition and mon- English Court of Appeals recently. Lord opolize the necessaries of life." Is Mr. Justice Halsbury in writing the opinion of the court Brown remarked in his recent address at Yale, says: the extent to which this has already been car “So far as the facts found by the Vice-Chanried is alarming, the extent to which it may cellor are concerned. I am not disposed to inhereafter be carried is revolutionary. Butterfere with anything he has found. But I there is no reason why a combination in unlaw-cannot concur with him in the inference he has ful restraint of trade, which could not be legally drawn from those facts. With reference to the formed under the laws of Massachusetts. I origin of this strip of land, 4 feet wide and

VOL. 52 - No. 6.

« AnteriorContinuar »