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The Albany Law Journal.




THE Governor's Message contains several excellent suggestions, which we trust will meet the approval of the legislature, as they certainly must that of all honest and intelligent citizens. His statements that "there are too many small offices in the towns, the incumbents of which can only be paid by illegal or exorbitant fees and petty exactions;" that "needless criminal complaints and legal proceedings are instituted that constables, justices and jailors may receive the fees of such prosecutions;" and that services performed and not performed are charged at double rates, and often several times," are strictly true as to almost every county in the State, and the recommendation that the superfluous offices be cut off, and that the bills of petty officials be taxed by the county judge, is a good one. The evil of special legislation has been set forth in numerous gubernatorial communications, and the Constitution is full of provisions designed to prevent it; yet His Excellency finds that it is still unchecked, especially in the direction of village charter amendments, which the legislature is asked not to pass hereafter. The governor believes that there has been too much legislation for the city of New York, which is probably so, as upward of twenty-four hundred laws have been enacted relating thereto in about twenty years. A new excise law is recommended which shall be "reasonable in its limitations and restraints, clear and explicit in all its provisions, and above all complete in itself, to be uniformly, steadily and constantly enforced." The law, as it now exists, was, until the decision of the Court of Appeals, misunderstood in an important point by those dealing in intoxicating drinks and by the officials charged with carrying it out, and the governor thinks it would be unjust to hold the dealers disobeying it to penalties as for a willful

violation of the law. He says: "The legislature is bound to make its enactments explicit and easy to be understood," which is a proper rule enough, but one that has not heretofore been often put in practice. The laws governing insurance, "passed for the mutual protection of insurer and insured," are claimed not to have been eminently successful, and in some instances to have worked positive harm. The statutes relating to deposits of securities in this and other States and the rules relating to the dissolution of companies are criticised. The statutes regulating savings banks are also unfavorably commented upon, and amendment suggested.

The governor gives as a reason for his failure to approve the supplementary chapters of the new Code, that he did not have time to read them during the thirty days given him after the adjournment of the legislature, and he did not feel authorized to approve what he had not read. He is not in favor of the new Code, for the reason that "this new system can only be continued at the expense of another long period of doubt and litigation over its proper construction, which will cost the people of the State many millions of dollars. Already serious questions of this sort have been brought before the courts." He further says: "The great question will be presented to you whether the new system can be so far superior to the old as to justify you in committing the whole administration of civil justice to the confusion of construction from which it has just emerged. The courts, under the old system, which they understand, are already burdened with labors beyond endurance, and it seems unwise to precipitate upon them a mass of practice litigation which must necessarily retard still more their accumulated load of business. I submit to your careful reflection the proposition that this grave subject would be best disposed of by the repeal of the partial Code which went into effect on the first of September, and the re-enactment of the Code which was in force up to that date, to be amended, from time to time, as experience may suggest."

The woman question is troubling the authorities and the courts of the District of Columbia. A woman having been permitted to act as attorney and counselor at law in the District, others of the female sex are encouraged to apply for various public positions heretofore held by men only. The office of notary public was first sought for, and this avenue to power and emolument being opened to female applicants, the next attempt was made on the office of constable, and a formidable petition was last week presented to the Supreme Court of the District, asking it to appoint a Mrs. Dundore to a vacancy then existing. The petition was brought before the court by the lady lawyer, Mrs. Belva A. Lockwood, whose professional employment seems chiefly to be arguing for the admission of her sex to public offices before various committees, courts and other bodies. The court said that the matter was one of unusual importance, and would "receive respectful consideration" on the part of the court. It is therefore possible that the constabulary of the Federal capital will hereafter be composed in part of women. For ourselves, we do not see what objection can be raised to the appointment of women to such a position by a court which freely admits them to the more important places of attorney and counselor. We perceive also that the ladies of California are asking for a law permitting them to act as notaries public, and that there is a strong probability of the passage of such a law. If the whole matter were submitted to the decision of the

intelligent part of the female sex generally, there would be no change in the present rules. It is only a few agitators, male and female, who care any thing about a change; but they make a considerable noise, and are sometimes given what they ask for for the sake of peace.

considering the judicial force, there is more business to be transacted in the third than in the first district. New York city contains about as many judges of superior courts, as there are in all England, while the third district will be left with two judges, one of whom is in poor health and the other of whom is away ever and anon, holding circuit in New York. We may, however, congratulate the New York bar on the appointment. Mr. Justice Ingalls is a thoroughly able and conscientious judge, and a gentleman without reproach.

According to the report of the comptroller, there has been no money in the State treasury to pay the salaries of the Court of Arbitration in New York since September 30, 1876. The suggestion of the comptroller that so long as the laws creating this court are upon the statute books, the appropriation called for by them should be made, is reasonable; but the fact that the appropriation was overlooked indicates that there is very little general interest in the court, and that the experiment which was made in its establishment has not succeeded.

The service of an injunction by telegraph is certainly a novel proceeding, and that such service should be held sufficient to bring a party into contempt for disobeying the injunction is somewhat remarkable. Yet, on a motion recently made before Vice-Chancellor Malins to commit an auctioneer who, after receiving a telegram notifying him that a sale he was about to make had been enjoined, by the advice of a barrister disregarded the notice and made the sale, the court said that the telegram was sufficient to bring home to the auctioneer the fact that the injunction had been issued, though, as he had, in making the sale, acted under the advice of counsel, he was only required to apologize to the court and pay costs. The English papers, both law and otherwise, severely criticise the decision, and we think with reason.


N the case of Hovey v. McDonald, decided on the

8th ult. by the Supreme Court of the District of Columbia, at General Term, the defendant had been, by an order of the court, directed to return certain moneys previously paid to him out of a fund in the hands of the court, under an order which was afterward set aside. Defendant failed to comply with the order to repay, and a motion was made to punish him for contempt. He had, however, placed himself out of the jurisdiction of the court, so that the moving papers could not be served on him, and his attorney and counsel would not admit service. The court held that, while as a rule personal service of motion papers is necessary to bring a party into contempt, if, after disobedience to the order of the court, he flees its jurisdiction, he cannot be permitted further to prosecute or defend his suit until he purges his contempt. Accordingly, an order was made that, unless within a time desigNotwithstanding the most strenuous protestation nated, the defendant should comply with the order, and earnest entreaty of the lawyers and the business his answer be stricken out, and the cause proceed as men of the third judicial district, the governor persists if no answer had been interposed. The course in his determination to assign Mr. Justice Ingalls to taken was the only one open to the court, and is the General Term of the First Department. Why, sustained by numerous authorities. See Maddock's no one less than a governor can probably tell. Mr. Ch. Pr. (Hartford ed., 1827), 403; Harrison's Pr. in Justice Ingalls is one of the very best circuit judges Ch. 202; 1 Daniel's Ch. Pr. 554; Vowles v. Young, in the State, and there are too few good ones to 9 Ves. 193; Williamson v. Carnon, G. & J. 184. In spare any of them for the General Term; besides, ■ Brinkley v. Brinkley, 47 N. Y. 49, where the partv

In Harris v. Newell, 2 N. W. Rep. 68, determined on the 20th of November last by the Supreme Court of Wisconsin, it is decided that where one signs a note as surety, it is his duty, and not that of the creditor, to see that the principal performs, and that a surety is not released at law by a failure of the creditor to proceed upon being notified by him to do so, though in some cases equity will interfere at his suit to compel the principal to pay the debt, or to compel the creditor to proceed against the principal. In Wright v. Simpson, 6 Vesey, Jr. 714, it is said that, as between the creditor and the surety, the creditor assumes no obligation of active diligence against the principal, and it is the business of the surety, not of the creditor, to see that the principal performs. But because the surety has no privity in the contract of the principal, and because the creditor or the principal may prejudice the surety by delay, equity will sometimes interfere in behalf of the surety, either against the principal, to compel him to pay the debt, or against the creditor, to compel him to proceed at law to collect it from the principal. 1 Story's Eq. Jur., § 327; Hayes v. Ward, 4 Johns. Ch. 153; Bishop v. Day, 13 Vt. 81. In Pain v. Packard, 13 Johns. 174, it is held, in conflict with the doctrine of the principal case, that notice by a surety to a creditor to proceed against the principal, and failure of the creditor to proceed, to the injury of the surety, will operate to discharge the surety from liability. See, also, acknowledging the same rule, Remsen v. Beekman, 25 N. Y. 552; also King v. Baldwin, 17 Johns. 384. But Chancellor Kent, in King v. Baldwin, 2 Johns. Ch. 554, says: "The established doctrine is, that mere delay in calling on the principal will not discharge the surety, provided that delay be unaccompanied with any settled or binding contract for that purpose.

And Chancellor Walworth, in Warner v. Beardsley, 8 Wend. 194, criticises the doctrine in Pain v. Packard, and says that case was decided without argument, and that two at least of the judges who concurred in it afterward dissented from it. In Pennsylvania the doctrine agrees with that of Pain v. Packard, but it is said that the reason of this was, that there was no court of chancery to enable the surety to proceed in his own name and compel payment. See Dehuff v. Turbitt, 3 Yeates, 157; Cope v. Smith, 8 S. & R. 110; Gardner v. Fervee, 15 id. 28; Wetsel v. Sponster, 18 Penn. St. 460.

or other proceedings which placed him in contempt. Morrison v. Morrison, 5 Hare, 590; Chuck v. Cremer, Cooper's Cas. Temp. Cot. 205; Odell v. Hart, 1 Moll. 492. See, also, Stone v. Byrne, 5 Brown's Cas. 209; Latham v. Latham, 1 Sw. & Tris. 299.

had left the jurisdiction of the court, it is said that the court is not limited to fine and imprisonment as a means of enforcing its orders. "Inasmuch as, after the commencement of the action, he has gone out of the jurisdiction, it would not have availed to have ordered him fined or committed. But it had control over its own proceedings, and could refuse to the defendant the benefit of them when asked as a favor, until he purged himself of his contempt." See, also, Ellingwood v. Stevenson, 1 Sandf. Ch. 366; Johnson v. Penney, 1 Paige, 646; Rogers v. Patterson, 4 id. 450; Evans v. Van Hale, Clarke, 17. But the rule that one in contempt shall not be heard applies only to matters of favor, and In Hall v. Stephens, 5 Cent. L. J. 530, just denot to those of strict right; and he is also entitled cided by the Supreme Court of Missouri, the meanA to be heard if his object is to get rid of the ordering of the word "family" is passed upon. testator devised certain land to "Hiram Stephens and family." The court held that this gave the fee of the lands to the recipient named and to his wife and children also. See Wylde's Case, 6 Coke, 16, where it was held that a devise to one and his children, the latter living at the date of the will, carried an estate in joint tenancy; and In re Terry's Will, 19 Beav. 580, where the word "family" is held to mean "children," unless some circumstance either in the will or in the condition of the parties prevent such construction. There were orphan children only in that case. In Barnes v. Patch, 8 Ves. 604, the words, "remainder of my estate to be equally divided between" the "families" of two persons named, were held to embrace the respective children of the families, one of the persons named having pre-deceased the testator. In Executors of White v. White, 30 Vt. 338, where the will gave a sum to the son of testator for the support of himself and family and for no other purpose, it was held that the word "family" included wife and children of the But bequests to the "family" of one have been held void for uncertainty (Harland v. Trigg, 1 Bro. C. C. 142; Doe v. Joinville, 3 East, 172; Robinson v. Wadlow, 8 Sim. 134); though the bequest will be upheld if it can be made out from the subjectmatter, or the context of the will, what the testator intended by the word "family." Doe v. Smith, 5 M. & S. 126; Parkinson's Trusts, 1 Sim. (N. S.) 242. In Woods v. Woods, 1 My. & Cr. 401, it was held that a bequest to one's wife toward the support of her "family," gave the children such an interest in the estates devised as to enable them to maintain a bill in their own names to protect such interest. See, also, Beales v. Crisford, 13 Sim. 592. The word "family" has been held to mean presumptively the heir. Counden v. Clerke, Hob. 29; Chapman's Case, Dyer, 333b; Wright v. Atkyns, 17 Ves. 255; Griffiths v. Eran, 5 Beav. 241. The usual rule is, however, to exclude parents. Barnes v. Patch, 8 Ves. 604; Mackleroth v. Bacon, 5 id. 159; Blackwell v. Bull, 1 Keen, 176; James v. Lord Wynford, 2 Sm. & Gif. 350. But it has been extended to include all who might be embraced in the term "next of kin." Williams v. Williams, 1 Sim. (N. S.) 358; In re Maxon, 4 Jur. (N. S.) 407,


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