Gambar halaman


tribunal, which consists of one or more arbitrators. Albany R. Co, respondent; James Ferguson, appel., Cases involving considerable amounts are thus dis- lant, v. Fred B. Hubbell, respondent. — Judgment of posed of in short meter outside of the court-room. In Supreme Court reversed, that of the Court of Sessions the second place, corporations are in active operation, of Jefferson county affirmed-People, appellant, v. such as collecting agencies, on a large scale, title com- David Augsbury, respondent. — Judgment affirmed panies to search titles and guarantee the result; bond with costs—Johauna Voos, respondent, v. Second companies to furnish guarantee bonds, etc. In the AY nue R. Co., appellant; Em F. Temple and third place, the expensiveness of litigation prevents another, respondents, v. William D. Sammis, appel. many an interesting legal contest; in the fourth place lant. — Judgment affirmed with costs, but since the the slowness of such litigation, and lastly the state of defect in the complaint is capable of correction, the the law and statutes in regard to the collectiou of plaiutiff should have leave, upon costs of the demurrer, debts.

including those of the appeal to the General Term and We conceive this last to be a serious obstacle in the to this court, to serve within twenty days from uotice way of legitimate litigation. The legislation since of entry of this judgment, an amended complaint in 1840 has been all for the benefit of the debtor.

An ex

the action-Joseph F. Knapp, appellant, v. City of amination of the judgment docket in New York Brooklyn, respondent.- -Motion to prefer granted shows that millions upon millions of dollars are pre- without costs-David P. Newhouse, receiver, etc., resumably justly due judgment creditors, not a cent of spondent, v. Second National Bank of Oswego, appel. which has ever been collected. There should be some lant. - Motion to amend return denied, with $10 wholesome legislation in regard to the “wife racket," costs—Henry Stedeker, appellant, v. Henry 0. Barnas it is facetiously called, by means of which a debtor ard, respondent. Motion to amend remittitur may fail for half a million, may cause any amount of granted without costs-Moses May, respondent, v. Nelmisery and suffering, and still live with his wife, in the son Morris, appellant. —Motion to amend remittitur same house, drive the same horses, enjoy the same so- denied-Mechanics and Traders' National Bank v. cial distinction which wealth brings, purely upon a fic- Mayor, etc., of New York, appellant; Bigelow Blue tion of law that his property, over which he exercises Stone Company and others, respondents. the gume control, is really his wife's, and so cannot be reached.

NOTES. A gentleman of large wealth said recently in our hearing: “I never sue a debt unless my lawyer can E find the following mixed metaphor in a recent assure me that he can collect it. The result is that I

volume of law reports. “No inclination is have almost no litigation, my lawyer, who is unwill

shown to cut loose from the safeguards and well seting to make experiments, and is extremely cautious, tled rules which have been judicially established for seldoni assuring me of success."

the protection of trust estates, and to launch upon the We would suggest also a reform in the law of execu

open sea of speculation and peculation which some tions to sheriffs, by changing the limit of sixty days to trustees and their agents have brought to the managesix days, or even two days, within which an execution

ment of trust property.” We did not know before must be returned, satisfied or otherwise. The law as that trust estates come within admiralty jurisdiction. it stands now puts it in the power of a pheriff to first

We wish that somebody would send Mr. Justice collect a good fee from the debtor for not levying, and

Scott a supply of “thats." A writer whose style is then a bigger fee from the creditor for returning the otherwise good ought not to write: "The position execution within the sixty days, so that the creditor taken on this branch of the case is much weakened by may take proper steps to secure himself, in case the

the consideration it appears from the averments of execution is returned unsatisfied. Section 2436 of the

the plea itself the bringing of the defendant into the Code is practically a dead letter, since it is next to im- State

was,"etc. Although ducking female possible without an examination of the debtor to learn

scolds has fallen iuto disuse, yet there are still some whether he has any personal property or not. Any

legal disadvantages in having the reputation of a scold. reform measure directed to the better management of Thus in Tompkins v. Staw, Ohio Supreme Court Com. sheriff's offices would facilitate the collection of debts

mission, Oct. 28, 1884 (6 Ohio L. J. 151), where T. and increase legitimate litigation. A scheme by which claimed and had offered evidence to show that S., her the Civil Service Act could be applied to deputy sher

brother, had agreed to furnish her a home as long as iffs would be advisable. Deputies should pass an ex- she lived, if she would act as his housekeeper, and S. amination on languages, arithmetic, the Code of Pro- claimed that by the arrangement T. was to be his cedure, collection of debts, law of contracts, etc., etc.; housekeeper only so long as they could agree or 80 they should be paid a good salary, of say 81,500 a year; long as they could get along together. Held, that it should be dismissed for intemperance; should be held was competent for S. to prove that T. was a personi

of rigidly to their duties; should be subject to heavy fine peevish, nervous, and disagreeable temper, and that and imprisonment on proof of any receipt of money none of her relatives who had tried to live with her or thing of value from the debtor, except to be applied could do so; and that these facts were known to S. upon the judgment, and they should, if possible, be when the arrangement to live together was made.chosen from members of the bar. What young stary- In Boston a man has lately recovered $3,025 against iug attorney but would be glad to be the recipient for the New York Central Railroad Company for injury the first three years of his admission to the bar of a

to a Stradivarius bass viol. The instrument was prosalary of $1,500 a year? Instead of drunken loafers

nounced by experts to be the only one of tbat maker who have obtained their position through some politi- they had ever seen.-- -Corneilson, the lawyer who ascal favoritism we would have a set of honest, active saulted Judge Reid of Kentucky, inducing his suicide, assistants in the collection of moneys due on judg- and who was convicted and sentenced to three years ments.


imprisonment, it is said has disappeared. Let us hope

he never will enter an appearance again. - The COURT OF APPEALS DECISIONS.

Canada Legal News sends us the first number of "The

Montreal Law Reports," a new series, to be published THE following decisions were handed down Tues

in connection with that jourual, containing decisions day, Dec. 16, 1884:

of the Superior Court, court of review, and courts of Judgment reversed, new trial granted, costs to abide

Queen’s Bench. The number is very handsomely the event-Oluey L. Carpenter, appellant, v. Bostou &

printed, and apparently well edited.



[merged small][ocr errors]

The Albany Law Journal.

We the special com milte or the New York City ethit Siante.of the recognizes!xo controlling necessity

[ocr errors]

the preferences of any respectable minority upon a burning and important public question. But pref

erences which serve only as obstructions to what ALBANY, DECEMBER 27, 1884. we conceive to be the plain path of duty should be

subjected to the crucible of newspaper criticism. CURRENT TOPICS.

Professor Dwight, the chairman of the committee,

is hostile to the construction placed upon the ConE have received the fourth annual report of stitution of 1846 by nearly every public man of

He no | Bar Association, appointed to urge the rejection of for codification. He denies by implication that the the proposed Civil Code, reported by Mr. Field and

1 Constitution even authorizes codification, which his co-workers to the Legislature of this State.

conclusion if valid, would destroy every legislative We venture to think that the City Bar Association did itself great credit in passing Mr. Vanderpoel's action, past and present, looking toward codifica

} amendment striking the word "adopted” out of

tion. Surely this is a vagary, and not sound law. the resolution, thus virtually indicating a lack of

How can it be accounted for? It seems to us in confidence in the report by the special committee.

this wise: Professor Dwight's whole active life has The fact is that this report fully evinces that a few been practically the high one of an instructor, and spirits in the New York City Bar Association pro- no one can impeach his extraordinary faculty of pose to array themselves against the organic law of imparting knowledge to unwilling youths, or the State, and to oppose all codification; against youths with legal aspirations. But his vocation the progressive spirit of the age, and against what has been what the historian of philosophy, Lewes, we firmly believe to be the wishes of the majority characterizes as an objective aim through subjec-? of lawyers, both in and out of the city of New

tive methods." Now an examination of law in the York, as well as against the hopes of the sentient

abstract has an inevitable tendency toward a reacnon-legal portion of our political society. Every

tion from codification. Abstraction has but one thinking person among us must concede that there is something fundamentally wrong in our judicial method of building up a jurisprudence, and that system, a system which some think does not keep is the method which makes the perfect law conform pace with the advancements either of science or of

to the abstractions. If these abstractions are recommerce. Many who feel thus look forward to

duced by the jurist to form, or to a commentary on codification of substantive law as likely in some

the existing state of the law, we may as well exmeasure to alleviate recognized evils. They think | pect a camel to go through the eye of a needle as the time has come when the inchoate revolution in to expect the abstraction to be made all over again old conceptions of legal administration should be so as to conform to the revolutions of a revolutionaccomplishcd. The codes of practice only beganary code. At this writing we have neither time the work of reform; they fused the dual system of nor space to give a more minute criticism of this law and equity in so far as administration was con- practically rejected fourth annual report. It ends cerned, but no abolition of these contradictory with a poem selected by Mr. J. Bleecker Miller as systems can be fully accomplished without a fusion

suitable to the solemn occasion, We give it of the principles of substantive law in a code of

verbatim : substantive law. This is not our opinion only, but

“ Plastering our swallow nests on the awful past, the opinion of those whose lives have been spent in

And twittering round the works of larger men, an exhaustive study of political science. As a le

As we had builded what we but deface." gal organ, quite as independent of outside dicta

So say we! tion as any member of the committee whose report lies before us, we believe that the signs of the

Mr. J. Bleecker Miller is the most imaginative of times, and duty to our readers, justify and dictate

He attributes lynching to codification. He the upholding of the principles we have enunciated. says: “In Ohio we have just seen the effects of a The report in question is not only reactionary, similar reaction against the effects of this

sysdisputing as it does, through Professor Dwight, the tem of wholesale, cheap codification; that State obligation of any further codification whatever, adopted a penal code in 1878; the increase of lynchbut it is aggressive and decidedly hostile to Mr. ing in other States may be due to the same cause; Field as a competent codifier. Did we not think

the same results are to be expected in this State what we have already expressed, that the duty of

when the Penal Code shall have had time to make codification is positively obligatory upon the Legis

itself felt. And if we adopt this Civil Code we ture and the exccutive of this State, and that Mr. Field's large experience, training and accomplish will just as certainly have, first, a great increase of ments render him the best exponent of accurate

the power of rich and unscrupulous men, acting codification, we might have some sympathy with especially through corporations, and then a socialthe efforts of the local committee at the southern istic reaction, and a constitution as wild as that of end of the State. We do not however wish to ignore California. Who will not hear must feel.” Well,

VOL. 30-No. 26



we have heard Mr. Miller so long to this purport Massachusetts, and overruling the “well-my-gristhat we feel tired. There is only one other possible tle” and “ram-cats" case of Thompson, is too reevil for him to lay to the Code, and that is the cent for Mr. Roger's book. He might however well cholera. Possibly however the English tendency have included the English case of Latter v. Bradwell, to codification had something to do with that at- 44 L. T. Rep. (N. S.) 369, where the servant maid tempt to blow up London bridge the other day.

sued her master and mistress and a physician for compelling her to submit to a medical examination

on the charge of pregnancy, and her reluctant subThe queen has commuted the sentence of the Mig- mission was held to absolve the doctor. nonette cannibals to six months' imprisonment. The case involved a question of comparative horrors. It

The New York Daily Register, speaking of the is horrible for a starving man to cat his fellow sufferer. recent charge and verdict in the Cleveland oil transIt is also horrible to hang him for it. We think that the clemency of the crown was properly extended,

portation case says: “The doctrine of the decision but the prisoners would be more entitled to sympa

is the condemnation of what are known as special

rates. thy and to mercy if they had given their victim a

The railroad company favored the Standard chance for his life. It is a grim subject to legislate

Oil Company by charging it less for a carload transupon, but as' experience shows that such cases do ported than it did other shippers, and the plaintiff, occasionally arise, would it not be well to compel who was compelled during a certain period to pay the survivors of such catastrophes to give one the railroad company some $5,000 more than the another the chance of lot? Otherwise it will always rates charged to the oil company during the same turn out, as in this case, that might will make right.

season would have amounted to, brought an action It was argued, to be sure, that the boy had no one against the railroad company to recover back the depending on him, while the others had dependents.

The defense insisted that it was allowable But then the boy had a natural right to have some

to charge a very large customer less than others, one dependent on him in the future, and he had a

but the court held, that while it was allowable to natural right to live longer than the adults. It was a very selfish and cruel piece of business, this killing

charge less rates in proportion for a large quantity of the unresisting and helpless boy, and the killers

than for a small, the charge for either must be uniget off well with this light punishment. The sen- form to all customers. It may be that a sliding tence might well have been heavier. It was no scale could be adopted which might practically give more than might have been imposed upon a starving a large customer a lower rate per load on a thousand man for stealing a loaf of bread. It would not have loads than any shipper who had not so much to send been amiss to make more distinction between a loaf could get the benefit of, and perhaps this would not and a life.

be an infringement of the rule; but the rule itself is

clear and its justice is plain. Whatever rate the comThe right to eat is really getting to be a serious

pany fix must be fixed for all alike." Special rates business in the courts. Hardly have the Mignonette

to large customers have been approved in several cannibals been safely settled, when a case arises in

recent cases. See Ragan v. Aiken, 9 Lea, 609; S. this country. Mad. Scalchi, the famous contralto C., 42 Am. Rep. 684: Concord and Portsmouth Railsinger, sues Mr. Abbey, the manager, for salary. IIc road v. Forsaith, 59 N. H. 122 ; S. C., 47 Am. Rep. defends on the ground that she refused to sing in 181; Johnson v. Pensacola, etc., R. Co., 16 Fla. 623; The Prophet. She replies that he asked her too s. C., 26 Am. Rep. 731. In the latter case the test soon after breakfast, that term meaning a quarter

was held to be the reasonableness of the remunerpast twelve; that she couldn't rehearse so soon after ation, and it was held that the same price for all is eating. And now the court is gravely and anxiously not essential. These three cases will give the clue examining this question. The lawyers are looking to all the adjudications. into all the digests for precedents. But there was no disagreement of the jury. They agreed with the

Messrs. Sullivan and Greenfield, the pugilists,

have triumphed over those craven spirits who Mr. R. Vashon Rogers, Jr., of Kingston, Canada, that their fisticuffs were quite harmless — nothing

would fain keep the peace. The jury have found has put forth another of his clever little books.

“contention or fight.” To be sure,

Professor This is entitled “ The Law and Medical Men," and is published by Carswell & Co., of Toronto. The Greenfic.. lost a little blood, but he said it was chapter on “ Dentists” was originally published in due to his own carelessness in running his eye this journal. The book is characterized by the au- / against Professor Sullivan's head, and it satisfacthor's peculiar research and humor, and contains torily appeared that if he was guilty of any offense every thing that it is essential for medical men to it was only that of embracery. “Hugging" is 8 know concerning their relations to the law. The very serious offense among English barristers, but case of Commonwealth v. Pierce, just decided in it does not count among men of science.


like a

In Candera hora tehasten explicit power to sell on


they lay down, to the effect thut a debtor mighi

with equal justice prescribe any period of credi: N Badenach v. Slater, the Supreme Court of wbich to him should seem fit, as that which the

trustee should give upon sales of property assigned credit in an assignment for creditors does not avoid to him, as assume to vest in him a discretion to sel it. 7 Can. Leg. News, 392. Strong, J., observed : upon credit if such a mode of selling should seen “I cannot agree that a clause which invests such a

reasonable and proper and in the best interests ol trustee with a discretionary power, which so far the creditors. With the utmost respect for the big! from being necessarily prejudicial to the general authority of the Court of Appeals for the State o body of creditors is actually essential to their pro

New York, this seems to me to be equivalent to say. tection, renders the assignment invalid merely be- | ing that to express an intent of vesting in the trus. cause it hinders and delays' them. It is to be

tee authority and permission to exercise his best presuined that the trustee will do his duty; in judgment by selling on credit, if such mode of disother words, that he will execute the trust in the posing of the property should seem to be in the ininterest of the creditors exclusively, and that he

terest of the creditors whose trustee he is made, and will not sell on credit unless it is for their benefit to express an intent of divesting such trustee of all that he should do so. If he fails in his duty or pro

such authority, and to prescribe to him a rigid, poses to act in contravention, his conduct can be

unalterable course, which in the discharge of his controlled by a Court of Equity, who can also su

trust he must pursue against the dictates of his persede him in the office of trustee. Supposing there

own judgment, and against the will of the creditors are but a small body of creditors, and that the as

whose trustee he is made, are one and the same signment is made to them directly without the in- thing. There are other parts of the reasoning upon tervention of any trustee, the property being admit

which this judgment is rested which seem to me to tedly less in value than the debts, there should be

lead to the conclusion, that delaying a creditor in no reservation of an ulterior trust for the assignor, obtaining satisfaction of his debt by the particular could it be said that such a clause as this conferring process of execution in a suit at law is equally a deon them a power to do what they like with their feating and delaying of him within the prohibition own was void? Then what difference does it make of the statute as the vesting the trustee with authorthat a trustee is interposed, and resulting trust de- ity in his discretion to sell upon credit, if such clared for the debtor ? To the amount of the debts

would be a reasonable and proper course to pursue the goods are still the property of the creditors, who in the interest of the creditors, and that the former through their trustees have the control and man

is not within the prohibition of the statute is estabagement of them for their own behoof. Then to

lished in our courts beyond all controversy." say that the trustee may or may not in his discretion sell on credit, is but to say that he shall dispose of We cannot say that we are glad to see that Rodthe property in the way most advantageous for the erigas v. East River Savings Institution has at last whole body of creditors." Gwynne, J., said: “To found one friend. In Plume v. Howard Savings Inhold that this clause in the deed operates so as to stitution, 17 Vroom, 217, it was held that a decree compel the court to hold, as an incontrovertible of the Orphans' Court, granting letters of adminisconclusion of law, that the deed was not made and tration, founded on a petition and proofs, presentexecuted as in its terms it professed to be, for the ing a colorable case of the decease of the allegea purpose of paying and satisfying ratably and pro- intestate, and as to his residence, cannot be called portionately all the creditors of the debtors their in question in a collateral proceeding. Beasley, C. just debts, but was made and executed with intent J., said, obiter : “With respect to the authorities to defeat and delay such creditors, appears to me to cited in the briefs of counsel, it is sufficient to say involve a manifest perversion of the plain language that they are conflicting, and that none of them ap of the deed, and such a construction of the clause pear to be strictly in point. In most, if not all of in question is not warranted by any decision in the such cases, it was affirmatively shown that the English courts or in those of the Province of On- alleged decedent was actually alive at the time of tario, from which this appeal comes, and there is in the issuance of letters of administration, while in my judgment nothing in it which so recommends the present case there is no reason for even surmisit as to justify us in making a precedent by its ) ing such to have been the fact. In almost all the adoption.

I have however carefully pe- instances cited in which the fact of the death of the rused the judgments in the case of Nicholson v. alleged intestate was allowed to be shown in order Leavitt, so much relied upon by the counsel for the to overthrow the administration, the tribunal grantappellant, as it was decided by the Court of Appeals ing it was held to be a court of limited and special for the State of New York, as reported in 6 N. Y. jurisdiction. On the other hand, an authority to 10, and also the same case as decided in the Superior administer, granted even by such a court, was deCourt of the State, and reported in 4 Sandf, 254. clared to be invulnerable to all collateral attacks, in The Court of Appeals, when reversing the judgment the carefully considered case of Roderigas v. East of the Superior Court, seem to me to rest their River Savings Institution, 63 N. Y. 464; S. C., 20 judgment in a great degree upon a proposition which Am. Rep. 555. The point decide I was that a pay


hent by a debtor to an administrator duly appointed combination or conspiracy alleged. The fact that a pas valid, and a bar to a second action, although conspiracy exists, or the extent to which it goes, is he supposed intestate was alive at the time, and the not to be proved as against A., by the declarations etters of administration were subsequently revoked or the acts of B., with which no connection on the or that reason. As we are dealing in the present part of A. is shown, and which do not appear to have ase with the decree of a court of general jurisdic- been made or done in furtherance of a common ion, it is not necessary to affirm the doctrine of this design entertained by both. That a joint purpose eported case, though in passing it may not be out of the seven was carried into effect by throwing the f place to remark that its reasoning, notwithstand- coal in this instance, was not to be proved by showng the adverse criticism to which it has been sub-ing previous acts of combination and torts committed ected, appears to be of great weight. That a con- in pursuance thereof by three or four only. Prelusive efficacy should be given to letters of admin- cisely the limitation which the request contained stration by whatever tribunal issued, so far as was required in the legal statement of the case; that nerely collateral impeachment is concerned, is a the testimony to misconduct on the part of some of lain dictate of sound public policy, for few things the defendants before and after this assault, tending an be more oppressive than to require the debtors to show a combination among them, and offered and of a person, who chooses so to absent himself as to received only as evidence of the intention and purgive rise to a judicial conclusion that he is dead, to pose for which the seven defendants were out tocar the burden of paying the debts they owe together that night, and what kind of acts and invasuch absentee, to his representative duly appointed ions of the Freshmen in their rooms were to be ccording to legal forms, and at the same time to expected when parties were out on such an expedissume the risk of such payment being afterward tion, and so to indicate what kind of a concert of leclared to be invalid, on the ground that such ab. action subsisted between the defendants on the entee was still alive. The doctrine of the nullity night when the plaintiff was hurt,' should have been of such grants of administration would also be at- limited in its application to those defendants against ended by the further disastrous result of rendering whom such acts of prior or subsequent misconduct he surrogate or other court of limited jurisdiction were proved. The evidence was offered only for the iable to be treated as wrong-doers for everything purpose of proving the presence and the scope of a hat should be done by virtue of such letters, and joint intent in the single act, whether there was on vliich might prove detrimental to the interests of the this occasion a common purpose among the sereral person supposed to be dead. But this question is defendants and whether it extended to the throwing hot now before the court; for all that we are now of such a missile under such circumstances. The called upon to declare is the doctrine already stated, | previous act of one was not evidence to prove

this that this decree of the Orphans' Court is not con- against another, who did not participate in that act. estable in this collateral way.” All the chief jus- | The mind of one is not to be revealed by the act of ices in the United States could not make us believe another, till some relation between the two is shown hat a court can confiscate a live man's estate by in the doing of that act.

The existence lecreeing that he is dead. The contrary has very of a conspiracy, as we understand it, is not in the recently been held in Thomas v. People, 107 Ill. 517; first instance to be proved against one by the mere 3. C., 47 Am. Rep. 958; and Devlin v. Commonwealth, act or declaration of another, but beyond that, if 101 Penn. St. 273; S. C., 47 Am. Rep. 710. The the existence of the conspiracy were fully proved as Roderigas case stands solitary in its absurdity. to some of the defendants, that fact had no tend

ency to decide adversely to the other defendants the Two cases interesting to college students are de- vital question whether they took part in that concided in Maine. In Strout v. Packard, 76 Me. 148, spiracy, and in such a way, to such an extent, as to it was held that in an action against several indi

make them joint trespassers in this transaction." viduals for a joint assault, evidence of misconduct on the part of some of the defendants before and after

In Sanders v. Getchell, 76 Me. 158, it was held the assault, tending to show a combination among that although the Constitution of the State provides them, should be limited in its application to those that the residence of a student at any seminary of defendants against whom such acts of prior or sub- learning shall not entitle him to the right of suffrage sequent misconduct are proved; it is not evidence in the town where such seminary is situated, this against the other defendants. This was an action

does not prevent a student gaining a voting resifor hazıng a freshman. The court said: “ The dec-dence in such place if other necessary conditions laration alleged a joint assault. The averment of a

exist; he does not acquire a residence because a conspiracy was of no account except that under it

student, but may acquire one notwithstanding that at might be proved in any legal way that the hand fact. The court said: “It is clear enough that which threw the coal carried into execution the pur- residing in a place merely as a student does not conpose of the seven. Evidence of prior or subsequent fer the franchise. Still a student may obtain a votmisconduct on the part of some of the defendants | ing residence, if other conditions exist sufficient to was only admissible for the purpose of proving, as create it. Bodily presence in a place coupled with among them, the existence and character of the

an intention to make such place a home will estab

« SebelumnyaLanjutkan »