Gambar halaman

without hindrance of the plaintiff. Before any de- reference in the instrument to the exact nature of mand was made, the grantor fraudulently and not in the estate conveyed. We have looked at the cases the ordinary course of his business sold the whole of cited by Scribner under this head, and find that they the stock-in-trade to the defendants, who purchased bona fide and without knowledge of the fraud. Held, hold in substance nothing more than that there must that the defendants acquired no property in the goods, be express words of release or of grant, in such a deed. and that the fact that they purchased bona fide was The deed carries the interest of the wife in the premimmaterial. C. P. Div., May 3, 1880. Taylor v. Mc- ises. In addition to the case cited by our correKeand. Opinion by Coleridge, C. J., and Denman, J., spondent, this is the holding in Learned v. Cutler, 42 L. T. Rep. (N. S.) 833.

18 Pick. 9, and Dustin v. Steele, 27 N. H. 431. We

think this principle is the universal one, and can CORRESPONDENCE.

find no case making any exception to it. — Ed. ALB.

L. J.] “ APPARENTLY INCONSISTENT DATA" EXPLAINED. Editor of the Albany Law Journal:

Editor of the Albany Law Journal : The cases of Armstrong v. Cummings, 20 Hun, 313,

I wish to call your attention to section 1725 of the and People ex rel. Denhardt v. Kelly, id. 549, are en

new Code, and also to subdivision 2 of section 1762. tirely consistent with each other.

What is the policy of the former, or what benefit can In the first case the premises were described as No.

arise to the defendant by reason of it? 149 West Forty-fifth street, and as all of West Forty

In subdivision 2 of the latter section should not the fifth street was contained in one judicial district, and

words “former” and “latter" be transposed? Tho as the names of the streets and parts of streets con

substitution of the words “defendant” and “plainttained in the several wards and districts in the city of

iff” for the "husband” and “wife" of the R. S. was New York could be ascertained from the public laws,

an improvement; but may not the commissioners or the court held that they would take judicial potice of

engrossers have made an error in the latter part of the the number of the district in which the premises were

subdivision ?

J. H. N. situated. In the second case the premises were described as

[1. Mr. Commissioner Throop states that this is a No. 341 Fifth avenue, and as Fifth avenue does not lie wholly within any one district, but extends through substitute for the practice of stating in the answer several, the court held that they could not from the

the disposition that has been made of the property number of the house determine upon what portion of and demanding a judgment for its return, such the avenue it stood, and hence could not determine in practice being inconsistent with the existing mode which of the several districts through which that ave

of procedure and the proper functions of an answer. nue extends it was located. The difference between the two cases is clearly stated

2. We think the language is correct as it stands, alin the second paragraph of the head-note to The People though perhaps the other way would be equally corex rel. v. Kelly.

L. G. H. rect. ED, ALB. L. J.]
ALBANY, Sept. 29, 1880.


Editor of the Albany Law Journal:
Editor of the Albany Law Journal:

The suggestion of your correspondent (p. 239) as to In examining a title I have encountered a deed by a

the reporting of authorities cited by counsel ought not husband owning the fee in which the wifo is joined,

to meet with the approval of the profession. The obwhich contains the usual full covenants and is properly ject of law reporting, as we understand it, is to preacknowledged, but the usual words, “dower and right

serve the opinions of the court, and not the briefs of of dower” are omitted, and there are no other words counsel. Mr. Lee's idea is certainly opposed to the which might operate as a release eo nomine. I have

reform which is so much needed in this department. been greatly surprised at the diversity of opiuion | We want contraction and not expansion in our reamong lawyers of the highest standing here, upon the


Very respectfully yours, question as to whether express words must be used to

A. TACSIG. bar any claim for dower. I have exhausted authori

PITTSBURG, PENN., Sept. 28, 1880. ties and treatises bearing upon the subject, and have found that there are decisions in point in many of the States except New York; notably among the many | Editor of the Albany Law Journal: cases is that of Smith v. Handy, 16 Ohio, 191, which

In reply to the wish expressed by you in the ALBANT holds flatfooted in favor of the deed as stated. But I

LAW JOURNAL of 18th inst., “that some of our Lonam unable to satisfy myself that the law in this State

don contemporaries would supply us with statistics is the same, and while I am convinced that the law as

showing the number of judicial officers and the laid down in the case cited is sound, yet I hesitate to

amount of litigated business in England," I, though pass upon the subject owing to the fact that so many of our best conveyancers here hold firmly to an oppo-ply with the first part of your requisition. I have no

not a London contemporary, have endeavored to com. site view. If not too much trouble, will you kindly publish

means of ascertaining “the amount of litigated busi

ness in England," but judging from the statistics conyour views upon the subject, not only for my benefit,

tained in the current number of the Law Magazine but for the information of many others who are greatly interested in a solution of the question, and ing to the county courts during the year 1877, and

and Review, to which I used to be a contributor, relatoblige Very truly yours,

F. L. M.

taking into account my own experience as a practicing NEW YORK, Sept. 29, 1880.

barrister in England so late as the year 1874, and the [It would seem that the joining of the wife with accounts which I receive still from professional friends

there, I should say that the cases tried in the Superior the husband in a conveyance of the premises to a

Courts and at the Assizes, and in sundry local courts, third person should bar her dower, without express | would amount to double tho number tried in the

county courts alone. This, however, is mere conjecture, as I have no means at hand to test such belief, but the difficulty experienced by the judges, so late as last year, in reducing the arrears, confirms my view. I have, however, much pleasure in furnishing you with the inclosed. It is an abstract of the approximate cost of all judicial officers in England and Wales :

SUPERIOR COURTS. About forty judges, including the ex-chancellors and retired judges (who give good valuo for their pensions by rendering their services and matured experience available in tbe House of Lords, if peers, and in the judicial committee of the Privy Council) discharge the law business of the Superior Courts of England and Wales at an aggregate cost somewhat exceeding $1,000,000. The statistics are as follows:

Supreme Court of Judicature. Lord Chancellor ...

£10,000 Two Lords of Appeal ip Ordinary (£6,000 each)..

12,000 Three Chief Justices of Courts of Q. B.-C. P. and Exch. - aggregating

22,000 Master of the Rolls

6,000 Court of Appeal. Six ordinary Lords Justices of Appeal, aggregating ...

31,000 High Court of Justice. Four Judges of Chancery Division, one of

whom is also Chief Judge of Bankruptcy Court.....

20,000 Four Puisne Judges of Court of Q. B...

20,000 C. P.

20,000 Exch...

20,000 Two Judges of the Probate, Divorce and Ad. miralty Courts, aggregating....

10,000 Judge of the Arches and Church Discipline Court....

5,000 Two paid members of the Judicial Commit

tee of the Privy Council, aggregating...... The ex-Chancellors and retired Judges who

give their services as before mentioned, aggregating, on the average, say..

25,000 Total cost of Superior Courts....

£211,000 Or.......


There are also fifty-eight judges of county

courts, at a salary of £1,500 each, aggregat-
ing therefor....

£87,000 The registrars of these county courts, having

judicial duties in undefended causes, number upward of 500, and their aggregate re

muneration cannot amount to less than.... 250,000 The recorders of cities and boroughs number

112, some of them having a civil jurisdiction for the trial of causes, and all possessing a quasi civil jurisdiction in matters of appeal in rating, assessments, granting or refusing licenses, bastardy cases, and appeals against summary convictions; their aggregate cost may be set down at about... 17,000 Magistrates of the Metropolitan Police

Courts. Twenty-three, aggregating....

28,000 Other stipendiary magistrates throughout the

country, numbering 20, and aggregating about

17.000 Other judicial officers, such as the common

serjeant, commissioner and judge of sheriff's court in the city of London, assistant judge and deputy assistant judge of the Middlesex Sessions (having a like civil jurisdiction with all courts of quarter ses sions)....

7,000 Two Masters in Lunacy, aggregating..

4,000 Total

£410,000 Or....

$2,070,000 This estimate does not einbrace clerks of the

peace for counties and borougbs, numbering at least 200 or 250, high sheriffs or sheriffs and their deputies, though the latter exercise judicial duties in trying certain cases where damages alone have to be assessed, and also compensation cases. Neither does it include such judicial officers as vice-chancellors of the Duchy of Lancaster, of the county Palatine of Durham, the judge of the Hundred of Salford ; the passage court of Liverpool; the vicewarden of Stannaries, and other local courts; nor yet the judges of the courts of survey; the wreck commissioners, nor the forty-three district registrars of the probate court, most of whom are paid by fees not

easily ascertainable. Barristers appointed to revise the list of

voters for Parliamentary elections, and numbering about 100, exercise judicial functions in investigating disputed property qualifications, and an appeal lies from their decisions to one of the Superior Courts. Their aggregate cost, together with two commissioners for tho trial of municipal election petitions, amounts to about

22,000 Total cost of inferior courts.

£132,000 Or.......




If to these are added Registrars of the Court

of Bankruptcy, who sit judicially and as connected with the above courts, the Queen's Remembrancer - the Masters of the Courts of Q. B. - C. P. and Exch., who exercise judicial duties as referees, a fur

ther sum must be computed, aggregating.. And if, in addition, the chief clerks of the

Judges of the Chancery Division of the High Court of Justice, who sit judicially to take evidence and report the result to the court, are taken into account, a further sum must be computed of at least......

Total extra cost of Superior Courts....


£30.000 $150.000

Assistant Commissioners of Assize, engaged

on circuit trials and appointed pro hac vice as circumstances require, to supplement the Judges of the Superior Courts, at a probable aggregate cost of..

Additional cost of tho samo.....


The chairmen of quarter sessions, who are generally gentlemen of cousiderable experience in the commission of the peace, and sometimes counsel of eminence, county court judges or retired Q. C.'s, give their services to the country gratuitously or the cost of judicial offices would be still further increased.

Yours, respectfully,


£6,000 $30,000



trial and argument in the city of New York on the fall opening of tho courts is as follows: Supreme Court, General Term, 199 causes; trial term, 2,717; Special Term, 845; Superior Court, trial term, 950; Common Pleas, trial term, 804. Total, 4,625. This does not inte clude the general terms of the Superior Court and Common Pleas.


FROM JUNE 1, 1880.

M. B. Wright, county judge of Iroquois county, died Tuesday night, September 21, from the effects of an operation performed in the surgical hospital at Indianapolis. This case bears a singular resemblance to that of Judge Manning, of Alabama. Our lirely friend, Mr. Bradwell, of the Chicago Legal News, complains of Judge Harker for holding that a woman cannot be a master in chancery! But it is too bad in the Neus to insist that Chief Justice Taney held, in the Dred Scott case, that a colored slave had no rights which anybody was bound to respect.

Present - Hon. Judges Mullin, Talcott, Smith, Learned, Sheldon and Daly.

On motion of Judge Learned, Judge Mullin was appointed Chairman.

On motion of Judge Smith, Judge Learned was appointed Secretary.

On motion of Judge Smith it was resolved that the Couvention adjourn to meet at the Capitol at Albany on December 15, 1880, at 11 A. M., and that the secretary be requested to write to the several judges, required by section 17 of the Code of Civil Procedure, to meet and establish rules of practice, notifying them of such adjournment, calling their attention to the fact that three unsuccessful efforts to secure the attendance of a sufficient number to constitute a quorum have been made, and urging upon them the necessity of altering and revising the existing rules so that they may conform to the practice established by the new Code.

That he also request each of the said judges to inform him before December 10th as to whether or not he will be present at the meeting to be held on December 15th.

Judge Daly seconded the motion, which adopted.



RENDER UNTO CÆSAR THE THINGS THAT ARE CÆSAR'S.-- In our last issuo we reproduced from the columns of the Luzerne Legal Register an exceptionally pointed and readable article, entitled “Drinks, Drinkers, and Drinking,” and naturally gave credit to that journal. We have since ascertained that the article in question is from tho pen of R. V. Rogers, Jr., in the ALBANY LAW JOURNAL. We presume our friend of the Legal Register neglected to give the usual credit, or omitted it by mistake, and therefore led us astray. This is to make amends.-Ohio Law Journal.



T" E.collowing decisions were handed down Tuesday,

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Oct. 5, 1880 : Judgment affirmed with costs – Ward v. Warren. Judgment affirmed - Henze v. The People. Judgment reversed and new trial granted, costs to abide event- Greenwood v. Schumaker; Eggleston v. President, etc., of the Columbia Turnpike Company. Order affirmed with costs - Belmont V. Cornen; Walker v. Walker. Motion denied with costsBenedict & Burnham Vlg. Co. v. Thayer; People e.c rel. Thayer v. Boue.- Orders of General and Special Term reversed with costs, and the order of removal reversed and annulled — People ex rel. Campbell v. Campbell. Order of General Term reversed, and judgment on report of referee affirmed with costs Howard v. Johnson. Judgment of General Term modified so that it shall direct a reversal of the Special Term, and that the writ be quashed without costs - People ex rel. Weeks v. Board of Supervisors of Queens County. Motion for reargument denied, with ten dollars costs - Fisher v. Raab.

During the week beginning October 11, the city of Baltimore propose to celebrate the 150th anniversary of its founding. There is to be a grand procession, in two divisions, the first “illustrating the progress and development of the city from 1730 to 1812, the second from 1812 to 1880." We are glad to observe that the progress in the administration of justice is to be illustrated. The programme of the first division is as follows: “Two heralds in English costumo of 1730. Lords and baronets of 1730 on horseback, the trappings, etc., of the horses and tho sashes being the colors of Maryland -- orange and black. An Indian chief (to represent the chief from whom the ground now occupied by Baltimore was purchased) and his followers. Indian life, represented by a scene of Indians drawn in a wagon. Capt. John Smith and thirteen men in a boat on wheels. Smith was the first man who cast his eye on what is now Baltimore, and explored tho Chesapeake. Settlers in a wagon, among the representations being the log cabin and tho outfit of the settlers in colonial times. Representation of tho old courthouse, the first one built for Baltimore town, which formerly stood on a bluff forty feet high, on Monument Square, where the Battle Monument now stauds; the stock and pillory will also bo represented in this tableau. An old watch-box, with a squad of watchmen in the olden time in old-fashioned caps and overcoats and using rattles. Continental fifer and drummers. Military camp of the revolutionary war. А company of Maryland minuto men, kuown as the Maryland Line, commanded by a personification of Baron DeKalb; it was thought proper to introduce a representative of the latter in the procession, which will be in charge of tho German committee, as DeKalb was a German and lost his life at the head of the Maryland Line. Trade and commerce of Baltimore, represented by a clipper in full rig, on the deck being tobacco, wool, grain and other Maryland products. A representation of the Star-Spangled Banner, consisting of a collection of shells and bombs in pyramid form, the topmost being a bursted shell, out of which emerges the Goddess of Liberty. A representation of the Battle Monument."



American Law Review for October contains tho third part of Mr. Jones' contribution on the Law of Negotiable Securities — Pledge of Negotiablo Paper. Also copious extracts from the address of Hon. Benjamin H. Bristow, president of the American Bar Association, delivered at the late meeting. We have received the first number of the Colorado Law Reporter, a new periodical, to be published at Denver, and to be issued monthly in 8vo. of forty-eight pages, and to contain opinions in full, more especially those of local interest, and digests and notes of recent cases. The number before us is well printed, and the contents are of interest. The number of causes for

The Albany Law Journal.



become binding in law by the mere private contract of the parties, without going before any one, as a

magistrate or minister, is a matter for legislation, ALBANY, OCTOBER 16, 1880.

and not for judicial consideration.” We believe the statutes of the two States do not essentially differ.

Both provide for ceremonial marriage, but neither CURRENT TOPICS.

enacts that the absence of such ceremony shall

render the marriage void. IE different views of New York and Massachusetts as to the essentials of a contract of mar

The Pennsylvania Supreme Court have, so to riage are illustrated in two very recent cases in

speak, sat down on Judge Patterson, of the Quarter which the facts strain the different theories to their

Sessions of Lancaster, in the matter of Messrs. utmost. In the New York case, in the Court of

Steinman and Hensel, attorneys and editors of the Appeals, the administration and succession of the

Lancaster Intelligencer newspaper.

It will be reestate of a New York merchant of some wealth

membered that the judge summarily expelled these was disputed on the strength of an oral contract of

gentlemen from the bar of his court for publishing marriage entered into before witnesses by the de

a libellous article in their newspaper in reference to ceased, first in London, next on a ship crossing the

his judicial conduct. We urged pretty stoutly at channel, and third in Paris. Neither by French law nor by English does such a contract constitute a valid

the time that Judge Patterson had exceeded his marriage. Whether it does on board a vessel on the

judicial power, and that an attorney could only be

disbarred for misconduct in his professional capacity high seas is a delicate question into whose solution

or affecting his professional character. The Supreme many elements would enter, One of the most im

Court have taken this view, and have vacated Judge portant would be the nationality of the vessel, and

Patterson's order, and restored the attorneys to the this was not in evidence before the court, nor does

bar. The court also adopt the view that a libel, to it appear that the marriage law in France was proved,

amount to a breach of professional duty, must have a singular, not to say unaccountable oversight. The

been designed to acquire an influence over the judge court, therefore, declining to take cognizance of a foreign law unless it was proved as an issue of fact, strumentality of popular prejudice

in the exercise of his judicial functions by the in

- a motive which rendered its decision on the presumption that the

Now marriage contract on board the vessel and in France

is not alleged to have existed in this case.

we have Judge Patterson set straight, we think it was made under law like that of New York, and

would be in order for Messrs. Steinman and Hensel declared the marriage valid and the issue legitimate. In the Massachusetts case (Commonwealth v. Munson,

to set themselves straight by a public apology to the 127 Mass. 459), the defendant

, at a public religious | judge for a publication which they do not under

take to justify, and which was, therefore, clearly meeting called by him, at a chapel, in Worcester,

libellous. This is due to themselves as gentlemen Mass., at which about fifty were present, but at

and lawyers, and to the judge as a public functionwhich no magistrate nor clergyman was present,

ary. By the way, the county of Lancaster has to gave out a text, talked awhile about " repentance,'

foot the costs of the proceeding. We shall publish read Matt. xx, 1-5; then a woman came forward

the opinion in full. and read from the 6th to the 10th verse of the same chapter; they then joined hands and the defendant said: "In the presence of God and of these wit- We are pleased to learn that this winter the bar nesses, I now take this woman whom I hold by the of New York city are to have the benefit of a course right hand to be my lawful wedded wife, to love, to of lectures on the Roman Law, by Adolphe L. Pincoff, cherish, till the coming of our Lord Jesus Christ, of the University of Leyden. Professor Pincoff or till death do us part;”

the woman then said: has received the degree of Doctor of Civil and "And I now take this man to be my lawfully wedded Modern Law in its highest form -- summa cum laude, husband, to love, reverence and obey him until the and is a member of the bar of Rotterdam, his native Lord himself shall descend from Heaven with a city. Professor Pincoff will deliver his course in shout and the voice of the archangel and with English, of which he is a complete and elegant the trump of God, or till death shall us sever;" master. The civil law is receiving close attention in and the parties then bowed, and the defendant England, where it has many disciples among the more offered prayer; neither party was a Friend nor scholarly-inclined members of the bar.

There is no Quaker, and the ceremony was not conformable doubt that in its relations as a subject of comparato the usage of any religious sect; the rite was tive jurisprudence the civil law is of practical use performed in good faith and followed by cohab- to lawyers; nor, that in its historical aspects, it is itation. Held, no marriage. The learned chief of the first importance to the science of general justice, Gray, at the close of an elaborate opinion, jurisprudence. It is the only system of law, which, said: “Whether it is wise and expedient so to thus far, may be traced from its most primitive change the law of Massachusetts as to allow an act, forms to its maturest development — the birth and which so deeply affects the relations and the rights death of an actual juridical system -- and to it we of the contracting parties and their offspring, to

look for some of the most important legal pheVol. 22.- No. 16.






Its study has been too long neglected in gether by an absurd custom, and compelled, for their America, but only for a time. Just now there are own profit, to make as much as they can out of their many indications of a revival, and the universities unhappy clients.” are beginning to take the subject up in something more than its literary phase -- as a science.

This question of the cost of litigation arises colPincoff's lectures are highly recommended by Pro- laterally on the consideration of the claim of Jr. fessor Dwight, of the Columbia College Law School. Doutre, Q. C., upon the Dominion Government, for

services as counsel before the Fisheries Commission, A leading topic of discussion in the London legal which services he values at $50 a day, the aggregate and lay newspapers, at the present time, is the cost being some $20,000, we believe. The Canada Leof litigation. A correspondent of the Times attrib- gal News informs us that “Mr. Doutre deposed that utes the great cost of litigation to the law of evi

in the test case of Angers v. Queen Ins. Co. he redence, and the necessity of calling and keeping in ceived $500 in fees, although he spent but two days attendance a crowd of witnesses. He says: “In

in court. In another case, in which he obtained a former days causes were tried and witnesses exam

$12,000 verdict, he was three days in court, and reined on much stricter lines than they are now. Of

ceived $1,800 in fees besides the taxed costs. In late years cross-examination to the credit of a wit

the case of Grant v. Beaudry, known as the Orange

Mr. F. X. Archness' has become an insidious cause of the protrac-trial, he was paid $10 per hour. tion of trials. It has always been a rule in England ambault, of Montreal, stated that in the case of Wilnot to admit secondary evidence of any fact if pri

son v. Citizens' Ins. Co. the amount claimed in the mary evidence can be obtained. The attendance of suit was $2,000, but he received $1,000 as a retainer,

besides other fees. witnesses and the preparation of briefs for counsel

In the case of Rolland v. Citiand the fees of the latter are all regulated by these

zens' Ins. Co., his retainer was $2,000. In three exigencies of the law of evidence. There appear capias cases which were presented as one, and which to be two remedies for this evil: (1) A return to the

lasted about a month, he received $2,800 altogether. old system of winnowing out each case by a process

In the criminal case of a woman charged with stealof pleading and extracting out one or two precise ing some silks, he received a retainer of $1,500. questions of fact which will constitute the issues to

This client was merely admitted to bail. To defend be tried, and to confine the evidence strictly to

a criminal case, which would not occupy more than those questions; or (2) to relax the law of evidence

two days, he had received $2,000.” These amounts and to permit the judges and juries to consider doc

seem large, no doubt, but they are by no means unuments and other matters of evidence, although precedented in this country. There are a number not constituting primary evidence; and to modify of counsel in the city of New York who command the practice of the courts so as to allow of trials $250 a day. There would seem to be no reason being postponed for such further evidence on con- why a British lawyer should not be paid as much as troverted points as the judge may think necessary.

a British physician, both standing equal in their reThe first alternative remedy would no doubt be a spective professions; and a British jury recently retrograde movement, although probably an im

gave Dr. Phillips a verdict of £16,000 damages for provement on the present state of things. I believe

two years' loss of business. that the second remedy is the only one that could be successfully applied.” He recommends the adop

A correspondent writes us: “Referring to the tion of the French system upon the latter point.

comments of some of your correspondents upon the Much more conclusive is the reason assigned by another writer, who says: “Another great reason for

use of bad English by judges and reporters, is there

any possible justification for the use of the word the increase of costs nowadays is to be found in the division of the legal profession into the two branches

saloonist,' in the head-note of Thomas v. People,

39 Mich. 309? · Saloon' is bad enough as a synof counsel and solicitors. Looked at by the light of reason alone, there is no logical argument what

onym for dram-shop, but saloonist! Surely the ever in support of that division. What can be more

reporter must have risen from a perusal of Artemas

Ward, to indite that head-note.” Our correspondabsurd than compelling a suitor to filter his case through the brains of one man into the ears of an

ent is probably right. “Saloon” may be an Ameri

canism, but it has grown into very general use. other ? Even if a solicitor of talent and honesty

“Saloonist” is undoubtedly a coinage. "Baloon. wishes to act personally for his clients in those

ist,” however, probably commenced in the same courts where he has equal audience he can only do

way. so at a loss; for the authorized scales of costs are so arranged as to discourage this attempt at independSuch a solicitor can get but a wretched fee

NOTES OF CASES. for his own work, while, if he employs counsel, he can pay him well, and also run up a neat little bill

N Shepard v. Wright, New York Supreme Court, for himself. We doubt not but that a time will come when, all this old-world nonsense being swept judgment recovered in Canada against a person reaway, the lawyer will be one man complete in him-siding in this State, without the service of process self, and not, as at present, two people chained to- in Canada or appearance by the defendant, will not


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