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fastened to the dock; that the other lay outside and abreast of the first, and made fast to it, and had only one line fast to the dock, which, it was testified, was insufficient under the circumstances, and there was no watch kept on the tugs; that the accident took place in the night, and was caused by the breaking away of the tugs from the wharf. Held, that there was evidence sufficient to support a finding by the jury that the accident was caused by defendant's negligence. Judgment below affirmed. Carpenter v. Eastern Transportation Line, appellant. Opinion by Rapallo, J.
2. Evidence: expert witness testifying to facls.- An expert witness was asked this question, "Did Mr. Carpenter, in your opinion as a canal boatman, in any way omit or neglect to do any thing which he might have done to save his boat?" Held, improper. An expert may be asked whether certain acts which are proven are seamanlike and proper under a given state of circumstances, but he cannot be allowed to express an opinion as to what was or was not done as matter of fact. Ib.
3. Collection of insurance money no defense to action for loss by negligence. The court below refused to allow defendant to show that the plaintiff was insured and had received the amount of his loss from the insurance company. Held, proper. Ib. [Decided January 15, 1878.]
Motives of bringing foreclosure suit: when not. Where, in an action to foreclose mortgage, it was claimed that the owner of the mortgage bought it from motives of malice toward defendant, and solely with a view to sue upon it, and that the former owner of the mortgage, from like motives, transferred the mortgage without consideration. Held, not to constitute an equitable defense to the action. Order below affirmed. Morris v. Tuthill, appellant. Order per
[Decided February 19, 1878.]
In obtaining assessment of damages by referee : evidence of. An assessment of damages for keeping a party out of the use of premises by means of an injunction which was not sustained, was made by a referee in proceedings of which the sureties of the party procuring the injunction had no notice, and at which the principal did not attend, held, not reviewable in an action on the undertaking simply on the ground that it was ex parte and that the damages were fixed too high. But it would be open to attack on the ground of fraud; and the circumstance that the rental value of the premises was fixed at $4,000 per annum in the assessment, when it was in fact worth only $500, would, in connection with the fact that the adverse party was absent, be sufficient evidence of fraud to invalidate the assessment. Judgment below reversed. Jordan v. Volkenning, appellant. Opinion by Rapallo, J.
[Decided January 29, 1878.]
Setting fire to neighboring building by sparks from stove: evidence in.-In an action for setting fire to plaintiff's building by a negligent use of a stove in a switch house belonging to defendant, it was shown that a pipe from the stove came within fifteen feet of plaintiff's wooden building, that wood was burned in the stove, and that on the day of the fire, and before, large sparks had been seeu to come out of the pipe.
and at the time the fire took place, a strong wind was blowing from the switch house toward plaintiff's building, and the fire began in a point near by the pipe. Held, sufficient to submit to the jury the question whether the fire was caused by sparks from the stove. Judgment below affirmed. Briggs v. New York Central, etc., R. R. Co., appellant. Opinion by Rapallo, J.
2. What constitutes negligence.-The pipe led from the top of stove in the switch house perpendicularly without elbow or crook to the outer air. It was only about eight feet long and without any spark arrester. Held, that it was proper to submit to the jury whether it was not negligent to use a stove thus constructed with wood as a fuel. Ib.
[Decided January 15, 1878.]
Laws 1855, chap. 6: adjoining owners: damage done to buildings bg adjoining excavations.-The provision of Laws 1855, chap. 6, designed to protect the owners of buildings in New York and Brooklyn against damages from excavations of adjoining premises, that parties intending to carry excavations to the depth of more than ten feet below the curb shall shore up and protect adjoining walls "if afforded the necessary license to enter the adjoining laud, and not otherwise," does not require that the owner of the adjoining land shall tender to the person making the excavation a license to enter his land, but that the person shall apply for such license before making the excavations. Order below reversed. Dorrity, appellant, v. Rapp. Opinion by Andrews, J., Allen, Rapallo and Earl, JJ.,concurred; Church, C. J., Folger and Miller, JJ., dissented. [Decided January 29, 1878. Reported below, 11 Hun, 374.]
NEW BOOKS AND NEW EDITIONS.
Reports of cases in Law and Equity in the Supreme Court of the State of New York. By Oliver L. Barbour, LL.D. Vol. LXVII. To which are added a table of cases reported in the 67 volumes of the series, which have been affirmed, reversed, approved, overruled, etc. Albany: W. C. Little & Co., 1878.
THOSE who possess the sixty-six volumes of the series to which the book before us belongs, and they are many, will of course want this volume to complete their set. Of the manner in which the reporter has done his work we need say no more than that the present volume detracts nothing from the reputation achieved by Mr. Barbour in the course of his long and successful career in connection with legal publications. The cases contained in the present volume extend over a period of seventeen years, embracing those decided in February, 1860, and in intervening years up to July, 1877. Among the cases of interest appearing we will mention these: Nolan v. Bank of New York Nat. Banking Assoc., p. 24: A check on a bank drawn January 21, 1865, and certified, held not deemed dishonored in June, 1865, in the hands of a bona fide holder for value so as to discharge the bank. Campbell v. Page, p. 113: One letting a horse for hire is bound to inform the hirer of its vicious qualities, otherwise he will be liable for damages resulting to the hirer from such qualities. Patrick v. Excelsior Life Insurance Co., p. 202: Suicide, though it has been called a felony, will not avoid a life insurance policy under a condition that the policy be void if the assured die "in the known violation of the law of the State." People ex rel. Bixby, p. 221: A room in a house of prostitution not open to the general public, but only
to those permitted, and paying money to enter, held a "public place" under the provisions of the statute forbidding indecent exposure of the person in a public place. United States v. Graff, p. 304: The United States may sue in the State courts for duties due on imported articles. Johnson v. Utica Water Works Co., p. 415: A water-works company had power under its charter to take real estate for the purpose of supplying water to a city; held, that it was not limited to a single proceeding or acquisition of real estate, but might take successive proceedings. Monell v. North. Cent. R. R. Co.: Where one of several connecting lines of carriers contracts with a shipper to transport goods to a place of destination, service in transportation performed by the connecting lines is presumed to be performed by them as agents of the contracting carrier. The table of cases in the various volumes of Barbour's Supreme Court Reports, affirmed, reversed, approved, overruled, etc., will prove very valuable to those who have occasion to consult these volumes. The volume is finely printed and bound.
HOMANS' BANKERS' ALMANAC FOR 1878.
The Bankers' Almanacland Register for 1878. Twenty-seventh annual volume, containing full and carefully corrected lists of the National banks, State banks and private bankers of the United States, etc., the Savings banks, Trust companies and Safe deposit companies, etc., the banks and bankers of Canada, Europe, Asia, Africa, South America, West Indies, etc., a summary of the Statute of Limitations, Interest laws and the laws of grace on sight bills in each of the States, etc. With Calendar of important events, etc. Edited by Benjamin Homans. Copyright 1878 by J.S. Homans, publisher, New York. Published at the office of the Bankers' Magazine.
This annual has become an almost indispensable part of the library of every bank and banker, as it contains a summary of matters that are gathered in no other shape. The information given, every fact of which is liable to be of essential importance to those doing financial business, can be depended upon as reliable. The summary of the Statutes of limitation, the interest laws, and laws of grace on sight bills in the States and Territories is the best brief statement of law upon those subjects that we have met with. The volume is well indexed and is in every respect equal to the preceding numbers of the series, which are familiar to all business men.
LAW OF LIMITED PARTNERSHIPS. The Law of Limited Partnerships and Compromises by Joint Debtors in the State of New York, with an Appendix of Forms. New York. Wright & Schondelmeier, 1878. This brochure is made up of chapter XVII of Crary's Law and Practice in Special Proceedings, with forms. In form it is convenient, in cost small, and in all respects it is desirable, we should suppose, to those interested in the subjects of which it treats.
COURT OF APPEALS DECISIONS.
THE following decisions were handed down Friday,
February 22, 1878:
Motion for reargument denied with $10 costs - Coe v. Cassiday; Dorrity v. Rapp. Judgment affirmed with costs-Bruce v. Carter; Davis v. Van Buren; Vilas v. New York Central Insurance Company; Mason v. Decker; Driggs v. Bliss. Judgment reversed and judgment for defendant dismissing complaint with costs-Hagadorn v. Raux.-Orders handed down-Ordered that the court take a recess until Monday, the 18th day of March, 1878. No argument will hereafter be heard unless the printed cases are properly indexed. The names of counsel arguing case must appear on the brief.
ADJOURNMENTS OUT OF COURT. To the Editor of the Albany Law Journal :
SIR-At the last term of the Circuit Court, Oyer and Terminer, and Special Term of the Supreme Court of Chautauqua county, several interesting questions were raised relative to the power of a judge out of court to adjourn a term thereof, under section 36 of the Code. It appears that Judge Barker, the judge designated to hold the term, by reason of illness, was unable to attend at the time and place fixed for holding the court.
On the morning of the first day of court Judge Barker made an order, of which the following is a copy: STATE OF NEW YORK, 88. CHAUTAUQUA COUNTY,
I, George Barker, one of the justices of the Supreme Court appointed to hold a Circuit Court, Special Term, and Oyer and Terminer, in and for the county of Chautauqua, on the 7th day of January, 1878, being unable to attend and hold the said court on account of illness, do hereby order and direct that the said courts be and the same are adjourned over to Monday next, the 14th inst., at 10 A. M.
This order to be entered in the minutes of the court. Witness my hand this 7th day of January, 1878. GEORGE BARKER. To the Sheriff of Chautauqua county, the Clerk of Chautauqua county.
This order was delivered to the sheriff, who, on the morning of the first day of court, attended at the courthouse in Mayville and adjourned the court in pursuance thereof. On the 14th day of January, Judge Barker, being still unable to hold the court, made another order, of which the following is a copy:
STATE OF NEW YORK,
I, George Barker, one of the justices of the Supreme Court appointed to hold a Circuit Court, Special Term, and a Court of Oyer and Terminer, in the village of Mayville, in and for the county of Chautauqua, on the 14th day of January, 1878, being unable to attend and hold the same on account of illness, do hereby adjourn the same to the 16th day of January, 1878, 10 A. M. This order to be entered in the minutes of the court by the clerk.
Dated January 14th, 1878.
GEORGE BARKER. To the Sheriff of Chautauqua county, the Clerk of Chautauqua county.
By virtue of this order the sheriff attended at the court-house on the morning of the 14th of January, and further adjourned the court to the 16th day of January, 1878, at 10 A. M. On the second adjourned day Judge Haight, of the Supreme Court, attended, and opened a Circuit Court, Special Term, and Oyer and Terminer. The legality of the two adjournments are raised during the court, upon several motions, and Judge Haight held the adjournments were regular and valid.
These two adjournments were made under section 36 of the Code, which is new. There was no adjournment had pursuant to the provisions of section 35, for that provides only for an adjournment by the sheriff or clerk to nine o'clock of the next day, in case the judge authorized to hold the term does not come the first day; and if the judge does not attend by four o'clock of the second day, then the sheriff or clerk must adjourn the court without day. The 36th section contemplates an adjournment to some future day certain, by the sheriff or clerk, if before four o'clock of the second day the sheriff or clerk receives from a judge authorized to hold the term, a written direction to so adjourn, instead of adjourning it as prescribed
in section 35, that is, without day. Prior to the new Code there was no authority in a judge out of court to adjourn, or direct an adjournment of the court. The clerk or sheriff was the only person authorized to adjourn, and now a judge out of court can, under the circumstances provided for by the Code, direct an adjournment. There is no provision for a second or further adjournment upon the written direction of the judge.
The power to adjourn the court is a statutory authority, and the policy of the law is to restrict this power within the limits of the statute, and thereby inspire confidence in the administration of justice. It is the right of every citizen to know the times and places for holding courts, where his liberty or property may be put in jeopardy. People v. Northrup, 37 N. Y. 206. It was one of the causes of complaints of the Colonists in the early history of this country, that the Crown appointed the courts at unseasonable times and inconvenient places, greatly to the injury of the parties who had matters pending before the court. To avoid this, the legislature has determined that all the judges of the district shall unite in appointing the times and places of holding the various terms of court, and require that the appointments thus made shall be published in the State paper for three weeks before any court shall be held in pursuance of them. Section 44 provides for all cases and proceedings in cases of failure to adjourn, so that such failure can work no real injury to any; there is, therefore, no necessity for a forced construction of the Code. In case a term of court should fail, and public interest require it, the governor is authorized by section 234 to appoint extraordinary terms of the Supreme Court, and he is also to give notice of the appointment as in his judgment the public interest requires. Section 237 provides that the governor may designate a justice of the Supreme Court to preside at the term of Oyer and Terminer or Circuit Court in case there is danger of the term failing.
The Oyer and Terminer was adjourned the same as the Circuit. It has been decided that a Circuit judge in court could not adjourn the Oyer and Terminer, and such is the law now. In the case of The People v. Brodwell, 2 Cowen, 445, it was held that a court of Oyer and Terminer cannot be adjourned by a Circuit judge, or otherwise, by reason that a number of the county judges sufficient to make a quorum are not present at the day appointed for holding it. To hold that a judge out of court has greater authority to adjourn the term he is appointed to hold, than he would have if sitting in term, would be in conflict with the general principles of law; yet such must be the construction if it is held that an Oyer and Terminer may be adjourned upon the written direction of a judge out of court.
By the Constitution and the statutes, the Court of Oyer and Terminer was organized an independent court, not continuing as other courts with succeeding terms. People v. Appo, 18 How. 550. It cannot by implication be embraced in the Circuit, although held at the same time, for they are distinct in organization, and in jurisdiction, and are so recognized by the Constitution. On the first day of the term of the court, there was in attendance, at the court-house in Mayville, the county judge and two justices of Sessions, who were authorized to sit in the Court of Oyer and Terminer, and they constituted a majority of the court, although not authorized to organize or hold it. It
seems that if there was any authority vested in any one to adjourn the Oyer and Terminer, it was vested in the county judge and justices of the Sessions by virtue of section 34 of the Code, for it is there provided that any judge of the court may adjourn a term thereof in the absence of a sufficient number of judges to hold the term. From these provisions of the Code, and authorities cited, it would seem that the Oyer and Terminer must have failed on the first day of the term by reason of an unauthorized adjournment, and that the second adjournment of the Circuit or Oyer and Terminer was clearly without authority of law. JAMESTOWN, N. Y., February 18, 1878.
"THE WAY OUT" FOR SURETIES. To the Editor of the Albany Law Journal:
SIR-As one emerges from the cars at the terminus in London of many of the railways, he sees over the door of exit, in immense letters, the words, "The way out." The expression recurred to me when I read the case of Risley v. Brown, 67 N. Y. 160. To all inquiring sureties the remedy for their infelicitous condition is there prescribed, and if they will only read and heed they will there find the way out of their contract. It has occurred to me that a fair headnote to that case might be paraphrased from Goldsmith:
HE February number of the Law Magazine and articles. Sir Travers Twiss contributes what purports to be a review of the work of Albericus Gentilis on the Right of War, but which is in reality a very entertaining history of the life of Gentilis. Charles Clark follows with a critical discussion of the subject of General Average. The third article, upon the Curiosities of English law by Robert Collier, deals with the subject of Usurious Contracts with expectant heirs. "The Laws of War and the Institute of International Law" is a reproduction, with brief editorial comment, of a paper on that subject issued by the Institute named. "The Block in the Common Law Divisions," by J. V. Vesey Fitzgerald, is of local interest only. Law and Custom Among the Southern Slavs" is a very interesting and instructive description of the laws and customs of a people about whom we know but little. The closing article by G. Broke Freeman, on the "Evidence of Experts," treats the subject in a careful and learned manner. The Digest of Select Cases is well selected, and the Book Reviews are, as usual, written with discrimination and fairness.
A correspondent of the Nation suggests a method in which the debts of defaultingStates may be collected. In referring to the unpaid bonds of Tennessee, he says:
"New York can sue Tennessee in the Supreme Court of the United States. Let her take the Teunessee bonds of her citizens, giving her own in exchange for them, having a longer time to run, the transaction being upon such terms that she cannot in any event lose thereby. Perhaps it would answer for her merely to undertake to collect the Tennessee bonds for a
commission. An agent to whom commercial paper is transferred for purposes of collection may sue thereon in his own name. But some arrangement by which New York should sue on the bonds in her own name could easily be made. There would then be no difficulty in New York's obtaining a judgment in the Supreme Court of the United States against Tennes
There would be some trouble about enforcing collection of the judgment, but mandamus to the legislature of the State is suggested. In case that should prove insufficient, Congress might provide a remedy.
THE PUBLISHERS of the LAW JOURNAL issue with this number a sixteen-page Supplement containing the General Laws of the State and the laws relating to the City of New York, thus far passed. Subscribers to the LAW JOURNAL
in civil cases, and the other amending the Code of Civil Procedure now in operation. The fee bill is one urgently needed, and one likely to excite unusual interest, as it comes home to the "business and desiring to receive this and the subsequent Supplements bosoms" of a very large number of "fellow citi
should remit one dollar. To persons not subscribers to the
The Albany Law Journal.
ALBANY, MARCH 9, 1878.
In the supplement of laws issued with this number of the LAW JOURNAL, is an act which makes it a
HE supplemental nine chapters of the Code of misdemeanor to knowingly sell, use or expose “any passed both houses of disease known as the legislature by a majority so large as to render it glanders, or farcy, or any other contagious or of little moment whether the Governor gives them his infectious disease, by such person known to be danapproval or not. The vote in the Senate was 17 to 4, and in the Assembly 78 to 21. These chapters gerous to human life, or which shall be diseased past are to go into operation July 1st. An obstruction-recovery." The act further provides as follows: ist in the Senate undertook to delay or defeat the passage of the bill by insisting that the chapters be read section by section, and this being refused, he and his friends now insist that the bill was not passed in accordance with the requirements of the Constitution. It is not at all unlikely that some adventurer with a hopeless case will not long hence endeavor to topple over this bulky structure of the Commissioners, on the ground that the Senate would not read it. In this connection we must again call the attention of the members of the legislature to the necessity of making provision for continuing the revision of the statutes. The work is too far advanced- has already cost too much, is too much needed, to be allowed now to fail. The Civil Code, which embraces the great body of substantive civil law, is ready for submission to the profession and the legislature. Mr. Emott, also, has nearly completed the Criminal Code, which includes the law relating to crimes and their punishments, and, we are happy to say, has so nearly followed the Penal Code of 1865 as to insure a creditable performance. Now let the legislature continue the Commission with some instructions as to the completion of the work until at least these two Codes are completed. There certainly ought to be enough continuity of purpose in the legislature of this State to finish a work so far advanced.
The Revision Commission has submitted to the legislature, during the week, two acts: one relating to the fees, salaries and other compensation of officers connected with the administration of justice VOL. 17.- No. 10.
§2. Every animal having glanders, or farcy, shall at once be deprived of life by the owner or person having charge thereof, upon discovery or knowledge of its condition; and any such owner or person omitting or refusing to comply with the provisions of this section shall be guilty of a misdemeanor.
Of the constitutionality of this second section we doubt. So long as a person keeps animals affected with contagious diseases upon his own premises he is guilty of no invasion of the rights of others (Fisher v. Clark, 41 Barb. 329); nor can he be deprived of them "without due process of law." He is, of course, bound at his peril to keep them from harming others, and if he takes them into a public place, then the police power of the government may punish him for his disregard of Mills v. The N. Y. & Harlem R. R. the public weal. Co., 2 Rob. 236; Barnum v. VanDusen, 16 Conn. 200; Eaton v. Winne, 20 Mich. 156; S. C., 4 Am. Rep. 377; Mullett v. Mason, L. R., 1 C. P. 559; At best it is a Fultz v. Wycoff, 25 Ind. 321. It threatens very curious piece of legislation. with severe punishment the omission to do an act which is required to be done in a contingency about which there is liable to be differences of opinion.
Among the bills introduced in the legislature during the past week, not elsewhere noticed, are these: Requiring attorneys and counselors entitled to practice in the courts of the State to register with the clerk of the Court of Appeals a copy of their certificate of admission, or, if admitted before 1867, an affidavit of the fact; providing that attorneys shall be ex-officio notaries public; provid
ing that the verdict of nine jurors shall be sufficient in civil cases; permitting a person having husband, wife, child or parent to devise or bequeath to a benevolent or other society only one-fourth of his estate, after paying debts, and requiring such devise, to be valid, to be made more than two months before death; and repealing laws exempting from taxation the property of churches and clergymen.
The bills relating to attorneys, above mentioned, we are sure will meet the approval of the profession. An authentic list of attorneys entitled to
practice in the courts of the State is very much needed, and the method provided will undoubtedly secure it. When the requirements for admission to the bar were so easy that any one of ordinary intelligence could enter with but a brief preparation, there was, perhaps, little temptation to surreptitiously assume the title of attorney, but as the barriers have become more difficult to overcome, there are many who do not hesitate to hold themselves out to be what they are not There is at present no easily available means of determining whether a person claiming to be an attorney has been actually admitted, a difficulty which the proposed registra tion will remedy. The proposal to constitute all attorneys notaries public is a proper one, and has been brought before previous legislatures. A jealousy of the profession or some other cause has heretofore operated to defeat the measure, but we have hopes of better success this time.
The difficulties which are liable to result from the decision in the Franconia case have led to the introduction into the English Parliament of a bill wherein the authority of the government and the jurisdiction of the courts of the Kingdom are declared to extend three miles from its shores. It has, until the discussion raised by that case, been generally believed that the jurisdiction of every independent State embraced the extent of sea mentioned, and the doctrine that the courts were without jurisdiction over acts done by foreigners within that belt was adopted by a divided court, six judges dissenting from the view of the majority, who numbered seven. And even one of the majority, Mr. Justice Lush, is reported to have said that if Parliament had on any occasion declared the waters within the three miles' limit to be part of the United Kingdom, he would have been of opinion that the courts of law had jurisdiction. Such a declaration is contained in the Foreign Enlistment Act, but it was not brought to the notice of the judge. The bill, it is stated, will pass Parliament without dissent, and will tend to render more definite a very important principle of international law.
What is known as the Emma Mine suit, which has been pending before the United States Circuit Court for a year or more, was disposed of by Judge Wallace on the 2d inst., a motion for a new trial, made by the plaintiffs, having been denied. This suit, which was an attempt to revive, on this side of the water, a litigation that had been somewhat fruitlessly conducted in the English courts, was brought to recover $5,000,000, which it was claimed that the plaintiff, a corporation, had lost through the sale to it by defendants of a mine,
falsely and fraudulently represented to be of great value. The jury, as will be remembered, rendered a verdict for the defendants. The court, in a lengthy
opinion, holds that there were no mistakes made in
relation to the admission and exclusion of evidence, and that upon the evidence a case was not presented for a new trial. The complaint alleged that the defendants sold the mine to plaintiff by means of fraud and deceit, and in consummation of an original fraudulent scheme. The inquiry related to
the state of mind of the defendants, and while the evidence disclosed many circumstances connected with the sale which strongly impeached the honor and morality of the transaction, these were to be eliminated from the case except so far as they bore on the question of fraud; and the court could not say that they so established the fraud charged as to
warrant a disturbance of the verdict.
The well-known Bradlaugh-Besant case has been reversed on appeal by the English Court of Appeals. It will be remembered that the defendants were tried by the Court of Queen's Bench upon an indictment charging them with unlawfully publishing an obscene book called "Fruits of Philosophy." The defendants, at the trial, moved to quash the indictment on the ground of its insufficiency, because the book, or any passage thereof, was not set forth in the indictment. The court overruled the motion, citing as authority the American cases, Commonwealth v. Holmes, 17 Mass. 336; and Commonwealth v. Sharpless, 2 Serg. & Rawle, 91. In the former case, Parker, C. J., said: "It can never be required that an obscene book should be displayed upon the records of a court, for this would be to require that the public itself should give permanency to indecency." This reason seems to have influenced Chief Justice Cockburn in giving judgment against the defendants, though the reasons set forth by him were that setting out the whole book would be inconvenient, that it would be far more reasonable that the objection should be taken by demurrer before the trial, and that the publication was a public nuisance. The Court of Appeal overruled the objections raised by the Lord Chief Justice, answering that it would hardly ever be necessary to set forth the whole book, and that the same reasoning would