Imágenes de páginas
PDF
EPUB

the pleasure of making an investigation of the matter as stated.

"French historians believe that during the revolution of a hundred years ago, in the destruction of the Hotel De Ville ended a part of the observance of the contract on the part of the king of France. Judge Desty placed in my hands a large packet of legal documents signed by Henry IV, Francis I and other sovereigns of France, proving beyond question the distinguished character of his ancestral name and family. I took these documents to France with me, and they were examined by the historians and attorneys of France with great interest.

"As an American citizen, Judge Desty has become well known and his services are highly regarded."

Correspondence.

IMPROVEMENT OF THE ERIE CANAL.

At a time of great poverty, the citizens of New York built the Erie Canal. It was an event in its history of which all citizens may be proud, not only for the self-sacrifice of their ancestors, but because it has proved to be such a lasting benefit to the State and the entire Northwest.

Not only did New York build the Erie Canal, but it constructed branches both North and South, which, although they have not proved a financial success, have developed the regions through which they passed. The burden of constructing these lateral canals was borne by the entire State, but chiefly by what are known as the canal counties, because in these counties there existed the greatest wealth. In later days, although the canals have done their part, the State has not maintained the high position which it took in 1819 in regard to its public works. The canals, instead of being improved by science and made the pride of the State, have remained as they were in 1850, except for the deterioration which time has produced. They have greatly filled up, so that to-day, instead of being seven (7) feet deep they are more nearly six (6) feet.

In spite of the neglect of this artery of commerce, through which passes a large amount of the product of the West, it has proved of immense value to the State, and has brought into its lap millions of dollars in actual money, to say nothing of the benefit which it has been to all classes of the community.

By competition with other routes, it has kept down the price of transportation, so that to-day the railroads are forced to give better rates to the farmer than are enjoyed in other States. Not only does it affect points along the canals, but every station on the line of the railroads throughout the State, because these lines of transportation dare

not make a better rate for the canal towns than they do for other places at a like distance from the market.

While the Western part of the Union is aroused for cheap transportation and convention after convention meet for cheap waterways, the State of New York seems to take no interest in the plan to deepen its canals.

Without an effort to sustain them it would allow the railroads to drive this valuable competing route from the field, and like Pennsylvania, become the prey of its enemies, that built up towns like Baltimore, Richmond and other points.

In order to save a few cents in taxes New York State would throw away its chief hold on the commerce of the nation, and that which gives it control over every railroad line from the West.

With every reason why the State should improve its waterways it has done nothing for them for half a century. But while this is going on, and the question of cheap transportation is growing more and more important, it would seem as if nothing should be left undone to improve it.

The friends of the canal are encouraged by those living outside of the State, who have seen the importance of this channel of commerce, and who are buiding iron boats, fully up to the merits of the times, and who expect to reap a harvest in their use, which those who have been most familiar have neglected. The thing which threatens the usefulness of this venture, so full of importance to the State, is the lack of depth in the canals. The wheel of the propeller and the bottom of the boat are dragging the mud, because the canals are not dug out or not deepened so as to give free passage to the boats. With a foot more depth each boat could carry fifty (50) tons more cargo, an increase that would insure a profit to the venture. But this is not the only advantage of an increased depth. It so expedites the passage of the boats that more trips could be made in a season, and thus a gain could be realized.

While every effort is being made by the friends of the canal to improve their waterways, to increase their depth, and to lengthen their locks, the enemies of the canals are at work to lessen its merits in the eyes of the public.

They talk of a ship canal, and of government control, both of which would be destructive to the interests of New York. It is a well-known fact that ship canals should never be entered into except for short distances from the ocean to connect great seas, or to cut short isthmuses. But even these attempts have not proved successful. The Manchester ship canal, the only one that in any way compares with our water route, has not proved that it can transport merchandise from Liverpool to Man

chester, its terminus, only thirty-five (35) miles distant, cheaper than the railroads.

This canal, thirty-five and a half (354) miles long, and only overcoming an elevation of sixty (60) feet, has cost the immense sum of Seventy-five Million Dollars ($75,000,000) or more than two million ($2,000,000) a mile. What would it cost to overcome a distance of 352 miles from the ocean to Lake Erie, with a height of five hundred and sixty-eight (568) feet.

But the price is not the most difficult feature of the problem. With the Chicago canal, that is to reduce the water of the great lakes six inches, and perhaps more; with the Niagara Falls canal, that is drawing down the waters for its immense mills, it is suggested that a ship canal either entering Lake Ontario, as proposed by United States engineers, or taking its water by the way of Buffalo and Rochester, in a like manner, shall be constructed.

How long would the interests of the great lakes tolerate this folly, when millions of dollars are being spent to deepen them? When every effort is being made on the one hand to make a twenty (20) foot channel throughout their entire length, it is proposed by a party in one State to take steps which would lessen even the present depth an amount that it would be difficult to calculate.

While New York, with its immense commerce and great wealth, hesitates over the expenditure of nine million dollars ($9,000,000), it is proposed to enter upon a work that would cost six hundred millions of dollars ($600,000,000). But where shall this money come from? New York does not propose to spend it-it is to be raised by the general government.

So the enemies of the canals of the State (which have been its crowning glories for almost a century) are to allow them to pass out of its control into the hands of the general government, no longer to be carried on for the benefit of New York, but to suit the whim of Congress, although the State must pay a larger amount than any other both for its construction and maintenance.

Has New York lost its reason, and has it lost its power to look after its own affairs, that it must entrust them to others?

What power would it have with its two Senators and its thirty-four Congressmen against that large body of men composed of representatives from other States in the Senate and the House of Representatives?

The public works of the United States are under the control of the engineering department, a branch of the military service. While they contemplate this route for commerce, they also consider a ship canal to the sea as a war project. Their education

is eminently military. Commerce and war cannot go hand in hand. The route and the method that would promote commercial supremacy of the country cannot afford to be linked with any plan that contemplates war.

Why should New York seek to gratify the vanity of Chicago and Duluth to be seaports to her own disadvantage? The commerce of the country does not demand it.

the case.

People are led away with the idea that the majority of our products go abroad; but this is not Only a small amount of what we produce in the most favorable seasons is exported. The balance is used by our own people. There has grown up within the country commercial enterprises that would not be ashamed to stand before the trade of Europe. The products of the West, the corn, the wheat, the flour, the iron and the copper are carried to the lower lake ports and here they are distributed to supply the States of the East, whose people are engaged in manufactory. They meet there coal and supplies which are needed to build up new countries and thousands of tons of iron to carry railroads throughout the West. In this way not only does the East get cheap food and raw material, but the West obtains what it needs at a low figure.

There has grown up upon the lakes a fleet of wonderful vessels, large in size, and expensive in construction. They are the development of years, and are suited to the purposes for which they are constructed. By what reasoning should they be put upon the narrow waters of a canal, where they would compete with the cheap-made barges? They would move a little faster than two miles an hour, and while they were making a trip from Buffalo to New York, a distance of five hundred (500), miles they could have gone to Chicago and retui ned, nearly twice the distance, at a less cost.

Three (3) fects of barges which cost 50 per cent less would have carried the same amount of grain in the same time.

For whose benefit is this six hundred million dollars ($600,000,000) to be expended? Not for the commerce of the West, for it does not need it. The State of New York does not call for it, neither do the vessel owners upon the great lakes.

Let New York still keep its faith in its canals, improve them from time to time as science dictates and it will reap its reward. The railroads, because of their great wealth, may be able for a time to so lower their rates that they can compete, but this will not be so always. The cheapest route must prevail in the end. For a time the railroads sought to compete in transportation with the great lakes, but they had to abandon it, and to day all the great

railroads own steamships that struggle for the west

ern commerce.

The reason that the Erie canal is at a disadvantage is because it has been neglected, but as the necessity for cheap transportation increases, it will make itself felt. But New York must not think that this can be done without an effort. It must deepen its canals, it must lengthen its locks, it must furnish itself with every device that has proved useful elsewhere. It must take the example of the railroads and care for its property, or else it will be greatly outdone, and the supremacy that New York has held for nearly a century will pass away.

HORATIO SEYMOUR, JR.

EXCEPTION TO JUDGE'S CHARGE. Recommendations to Commissioners of Code Revision as to Changes in section 995.

ROCHESTER, N. Y., October 14, 1895. To the Commissioners of Code Revision, Albany, N. Y. : GENTLEMEN - I am in favor of a general revision of the Code of Civil Procedure.

66

I am in favor of a revision of the Code of Civil Procedure in the following particulars: That section 995 be amended so as to strike out all the words after the 31st word therein, and in place of the matter stricken out to insert the words, it may be taken either at the trial or thereafter at any time during the period allowed for appeal herein from the judgment entered upon the verdict rendered; and each single proposition in the charge which is is intended to be excepted to by either party shall be reduced to writing and specifically set forth, and the whole thereof enumerated serially, and the same shall be filed with the clerk and a copy thereof shall be served upon the opposing attorney within the same time as a part of the appeal.

JACOB SPAHN,
Attorney-at-Law,

517 Ellwanger & Barry Building.

ROCHESTER, N. Y., October 14, 1895. Hons. Charles B. Lincoln, William H. Johnson and A. Judd Northrup, Commissioners of Code Revision:

Between the care of a large practice which I superintend alone, and the care of a large amount of real estate which I am unfortunate enough to own in an age of municipal plunder by ruinous assessments, etc., your letter was reserved to be answered as early as practicable, and so suffered from the delay which I seek to excuse in the foregoing statements.

For years I have been impressed and to growing experience as time speeds forward, am more and more impressed with the fact that section 995 of

the Code of Civil Procedure contains one radically unjust, no less than insecure feature, concerning which I have sought the views of many brother lawyers who concur with me in what I am about to offer to your consideration in the hope that you will devise either some better remedy or adopt the remedy which I venture to suggest herein.

It must often have occurred to you that trial judges who are and mean to be perfectly fair men in the course of long charges to a jury frequently invent, with the best of intentions always, a great quantity of bad law which they impress hopelessly upon a suitor's rights because his lawyer is no stenographer. This deficiency will invariably prevent that lawyer from getting down specifically (or in any adequate detail) the whole of the objectionable matter to which he would except and which is exceptionable because it is bad law. Thus he is prevented from wholly protecting his client's rights; and though the remedy of appeal lies open to him, the rule also existing that his exceptions to any portion of the charge must cover specific matters charged in order to avail his client higher up, coupled with the fact that the present state of the Code neither gives him time to order a copy of the charge and carve out of it the exceptionable matter (since this must be done before the jury finds the verdict), nor lets him take an omnibus general exception against the charge with the right to frame specific details later and files these with the county

clerk for use on appeal, he is lost with his client before the battle in the Appellate Court has even begun on this head. It is useless to advance argument here that the trial court may in a proper case grant a new trial without recourse to any exception. That is discretionary of course. Yet the trial court does not uniformly do so but hesitates too often although it should never hesitate at all. Now a good system of law leaves nothing to human discretion because humanity are weak. Science alone is strong and where the rules of justice are no less liberally just than scientifically accurate human falibility is never able to play its incurably erratic part. Of course we all understand the claim that the reason why exceptions to the charge must be taken before the jury is discharged, was to give the law judge, if he desires, an opportunity to revamp his utterances to the empannelled judges of the fact. The better reason however remains for amending section 995 as hercin suggested and that is to give the suitor, who is infinitely more concerned in the verdict than the law judge, a right enforceable by appeal to insist that the law judge shall always nolens volens charge good law, otherwise that his charge shall suffer the fair consequences which follow and ought by right to follow in every proceeding or step of a proceeding tainted with bad law

whenever that bad law has resulted in a miscarriage of justice. Than the latter there is nothing worse to society except anarchy. Indeed every miscarriage of justice is in essence anarchical for it is antagonistic to good order.

Therefore I ask you gentlemen in the name of a system of Code law that shall be liberally just no less than scientific, to either secure an enactment of Section 995 of the Code of Civil Procedure in a form providing that a general exception against the trial judges charge to the jury is insufficient and shall avail to enable a suitor on appeal to raise every possible objection to each distinct proposition of bad law charged or else that a suitor may within the usual time for appeal file his objections and exceptions seriatim as specific points in numerical order to every one of the propositions of the charge which he thinks are bad, and then within the same time to serve a copy of these objections and exceptions upon his adversary for the purpose of any appeal in the premises. There is no such thing as making the rules of justice too broad along the mighty avenue of appeal wherein so many men and so much property have in time past been rescued from the direst risks. We must move and keep moving higher to a still better order of things mundane in the practice of jurisprudence.

Respectfully,

JACOB SPAIN.

N. B. I enclose your blank with the suggested amendment suitably framed. J. S.

New Books and New Editions.

RES JUDICATA; 2 VOLUMES; A TREATISE ON THE LAW OF FORMER ADJUDICATION, BY JOHN M. VAN FLEET, ESQ., OF THE INDIANAPOLIS BAR AND AUTHOR OF "COLLATERAL ATTACK ON JUDICIAL PROCEEDINGS."

The scope of this work includes that important branch of the law which determines when judgments of courts of law and decrees of courts of equity are conclusive and final adjudications, together with the force and effect of former adjudications as evidence to establish in another suit the cause of action or of defense or some issue therein as against parties, privious or strangers. The great importance of this branch of law would too often lead an author to expand the principles of the subject into an enormous and bulky book which would not at all meet the requirements of the bar. On the other hand a too short and general work on this important subject would not comprehend within its narrow confines the different phases of the subject which its importance merits. The author has

happily arranged the work in two volumes and in such a form that any part of the subject can be easily found, while the two volumes cover all the essential rules and principals which a work on this subject should contain. The cases cited are not only those of America and of every State within our confines, but includes Australian, Canadian, English, Hawaaian, Indian, Irish and those of New Zealand. It will thus be readily seen that the work is broad in its scope, while it is comprehensive and practical. The arrangement of the book is particularly satisfactory as each chapter is divided into sections and at the beginning of each chapter the section is placed with a short paragraph giving the contents of the section in a short, concise form. This makes the work easy of reference, while the foot-notes allow the practitioner to find the cases from which the principles are deduced. The first volume is divided into twelve chapters and there are eleven chapters in volume two. Chapter one deals with General Matters, while the succeeding chapters contain Special Matters, Final Judgments, Abatements, Cause Entire or Divisible, Defenses Omitted, Estoppels, The Issues Contested or Not Contested, The Issues, Immaterial, The Issues, Plaintiffs, The Issues, Defendants, The Same Issue Determined by the Record, Principal and General Matters. Volume two commences with chapter 13 on The Same Issue-Determined by the Record, while succeeding it are chapters on The Same Issue, Determined by Extrinsic or Parol Evidence, Election of Remedy, Wrong Remedy, Parties, Privies and Strangers, Crimes and Criminal Proceedings Cause Entire or Divisible, Issues Determined in Criminal Causes, Jeopardy in Criminal Causes, Pleading, Practice and Evidence in Criminal Causes, Second Appeals, Effect of Decision on First Appeal in, and Pleadings in Civil Causes. The index is arranged at the end of volume two and as it contains over 140 pages its practicability can easily be determined. Published by The Bowen-Merril Company, Indianapolis and Kansas City. Price $12.

A BRIEF DIGEST TO VOLUMES XXXVII To XLII

OF AMERICAN STATE REPORTS, TOGETHER WITH AN INDEX TO THE NOTES AND A TABLE OF CASES REPORTED, BY EDWIN D. SMITH.

This small index will be of great value to those who use this series of excellent reports, and is compiled with care. It will be acceptable and satisfactory to the active practitioner. Naturally, these digests of a small number of volumes of reports are more burdensome to the lawyer than otherwise, for it can be readily seen that no index can be arranged and added to yearly, and this convenient form of adding to the index of a series must be resorted to.

The Digest is bound in heavy paper, and contains an index to notes in the reports. Published by Bancroft-Whitney & Co., San Francisco, Cal.

AMERICAN STATE REPORTS, VOLUME 44. This last volume of these reports contains selected decisions from many of the reports of different States, including 91-93 Georgia, 95 Kentucky, 78 Maryland, 162 Massachusetts, 56 New Jersey Law, 115 North Carolina, 3 North Dakota, 164-65 Pennsylvania, 41 South Carolina, 3 South Dakota, 66 Vermont, and 90 Virginia. The reports are printed in their usual excellent manner, and the selection of cases by the editors seems most happy. Published by Bancroft-Whitney Company, San Francisco, Cal.

Abstracts of Recent Decisions.

[ocr errors]

ADVERSE POSSESSION BOUNDARY. Where a land-owner, believing that his land runs to a certain line, retains possession up to such line, which is on the land of an adjoining owner, he does not hold adversely to such owner, there being no agreement between them that such line should be the dividing line between their lands, and the former never intending to claim any more land than belonged to him. (Davis v. Caldwell, [Ala.], 18 South. Rep., 103).

APPLICATION OF PAYMENTS

SECURED DEBTS.

[merged small][ocr errors]

BOUNDARIES DISTANCES. Where three sides and the number of acres are known, and it is disputed whether the fourth side is a straight or meandering line, the straight line will be adopted, when the tract thus inclosed contains the number of acres called for, and when the acreage would be largely increased if the meandering line were adopted. (Hostetter v. Los Angeles Terminal Ry. Co., [Cal.], 41 Pac. Rep. 330).

is ever made, and no arrangements made for the
payment of debts or liabilities which may be in-
curred by such organization, the organization can-
not be said to have such a corporate existence as
would authorize its directors to incur any liability
in the name of the corporation, and the persons so
engaged in the enterprise are liable personally, as
promoters thereof, for a debt incurred for material
purchased by one elected by them as superintendent
and general manager, and needed in carrying on the
business for which such organization was formed.
(Whetstone v. Crane Bros. Manuf'g Co. [Kan.], 41
Pac. Rep., 211).
COVENANTS
ACQUIRING TITLE BEFORE SUIT.-
In an action for breach of warranty, where it ap-
pears that when the deed was made defendant had
no title, but acquired title before the suit was
brought, plaintiff is entitled to only nominal dam-
ages, as the title acquired by defendant inured to
plaintiff's benefit. (Sayre v. Sheffield Land, Iron
and Coal Co. [Ala.], 18 South. Rep., 101).

MARINE INSURANCE- CONSTRUCTION OF POLICY. A policy of marine insurance, containing a printed clause which prohibited the vessel from certain waters including the Gulf of Campeachy, had written into it the amount of insurance, the name of the vessel, and the terms of the policy, after which was written the words "Excluding the Gulf of Campeachy:" Held, that the written words were not for the purpose of qualifying the printed clause, but for calling particular attention to the Gulf of Campeachy, near which the vessel was when insured. (Parker v. China Mut. Ins. Co. [Mass.], 41 N. E. Rep. 269.).

MASTER AND SERVANT DANGEROUS MACHINERY -WARNING OF DANGER. - An employer who knows that a need of warning an inexperienced servant working on a dangerous machine has arisen, is bound to give it, though the danger arose from the negligence of a fellow servant. (Bjbjian v. Woonsocket Rubber Co. [Mass. ], 41 N. E. Rep. 265.

A

MORTGAGE OF ONE PARTNER'S INTEREST. mortgagee takes no greater right or interest than the mortgagor had, and, as one partner cannot take

(Aldridge v. Elerick, [Kan. ],

CONTRACT- TIME OF PERFORMANCE. When time is not made the essence of a contract for pay-possession of the partnership property, neither can his mortgagee do so. ment by the performance of specific services, the party entitled to such services does not absolutely 41 Pac. Rep. 199. forfeit them by failing to require them within the time named in the contract. (Kanopolis Land Co. v. Morgan, [Kan.], 41 Pac. Rep. 205). CORPORATION PROMOTERS. Where certain persons procure a charter, and are named therein as the directors of a corporation for the first year, and, as such directors, elect themselves as officers of such organization, but no bona fide subscription of stock

[ocr errors]
[ocr errors]

VENDOR AND PURCHASER COVENANT TO GIVE TITLE DEFAULT. -- A vendor is not in default on a covenant to give warranty deed on payment of the price, merely because, before final payment, a mortgage on the land was foreclosed; but the purchaser must tender balance of purchase money and a deed for execution. (Pate v. McConnell, [Ala.], 18 South. Rep. 98.

« AnteriorContinuar »