Gambar halaman

exchange was, a charge of one-quarter of one per cent in addition to the statutory rate of interest would not be sufficient to authorize a forfeiture. Judgment of Superior Court of city, etc., of New York affirmed, Wheeler v. Union National Bank of Pittsburg. Opinion by Harlan, J.


Appeal: reversal not allowed for irregularities working no harm.-Where a reference was made to a master to compute the amount due, and the proceeding was wholly unnecessary, it being the duty of the court to compute the amount itself, or have it done by the clerk or the complainant's counsel, held, that the decree would not be reversed on the ground that appellant had no notice of the time of the master's sitting, or of the filing of his report. This court will not reverse a decree in chancery for an immaterial departure from the technical rules, when it can see that no harm resulted to the appellant. Decree of United States Circuit Court, Minnesota, affirmed. Allis, appellant, v. Northwestern Mutual Life Insurance Co. Opinion by Miller, J.



Not relieved from liability because shipper violates law: fictitious firms.- A wrong-doer is not protected in the invasion of the rights of another party because such party happens to be transacting business in violation of a special statute. Accordingly, where plaintiff, who was carrying on the business of selling carriages in the name of a firm in violation of the statute against fictitious partnerships (3 Rev. St., 5th ed., § 42), shipped a carriage upon defendants' railroad, directed to the firm, held, that defendant would be liable as carrier to plaintiff for injury done to such carriage in the course of transportation, and plaintiff's violation of the statute would be no defense. Judgment below affirmed. Wood v. Erie Railway Co. Opinion by Miller, J.

[Decided January 22, 1878. Reported below, 9 Hun, 648.]



Construction of: sale of “about a specified quantity: words of expectancy, not of quantity.- Defendants agreed to take "all the oil cake made by the plaintiffs at their mill" during six months, the plaintiffs to have the option of reserving not to exceed fifty tous per month for their local trade. The contract also stated that the plaintiffs agreed to sell defendant about 2,000 tons of oil cake to be delivered at the rate of about 350 tons per month. Held, that the words stating the amount were words of expectancy and not of quantity, and that the controlling stipulation of the contract as to quantity, was that which called for a sale and purchase of all that the mill made for the six months, and that the defendants were bound to take that amount less what plaintiffs kept in the use of their option. Judgment below affirmed. Kellogg v. Norman. Opinion by Folger, J. Decided May 28, 1878.]


What does not constitute: railroad upon highway. An act of the Legislature (Laws of 1873, chap. 531) provided for the laying out of an avenue and the construction of a horse railroad thereon by a company, but the use of steam power was not allowed. Plaintiff, through whose lands the avenue was to run, had several interviews with the president of the company,

in which he stated that he desired a steam road and would use his endeavors to enable the company to use steam. The company claimed to have the right to lay its track on the avenue without compensation under the act mentioned. In 1874 (chap. 307), a law was passed permitting the use of steam. Held, it could not be inferred that plaintiff, by his acts and declarations, surrendered his legal right to the land, or authorized the company to lay its track there without compensation. Judgment below reversed. Murdock v. Prospect Park and Coney Island Railroad Co. Opinion by Andrews, J.

2. License given to railroad company may be revoked. -The authorities in this State seem to be decisive that a license granted a railroad company to enter land and construct its railroad, operates simply to justify the entry, and is revocable at the pleasure of the licensor. Ib.

[Decided May 21, 1878. Reported below, 10 Hun, 598.]


1. General and special: negotiable warehouse receipts. -A maltster to whom barley is delivered for malting upon a general contract, though he may have a colorable right of lien upon any specific quantity of barley in his possession for the whole amount due upon the general contract against the one with whom such contract was made, if he issues negotiable warehouse receipts entitling the holder to the delivery of a specified quantity of barley on "payment of the charges accrued thereon," only has a lien against an innocent holder of the receipt for value, and without notice, for the charges on the specific barley described. Judgment below affirmed. White v. Hoyt. Opinion by Allen, J. 2. Estoppel: equivocal promise: consideration.Where, however, an innocent holder for value of such receipt was informed that the maltster claimed a lien upon the specific barley described for the entire amount due on the contract (the original owner having promised the maltster that the holder would pay such amount), and such holder did not deny his liability, but in answer to the maltster's message, stating that the barley would be delivered only upon the holder assuming such lien, wrote an equivocal letter, which was capable of being interpreted into a promise to assume liability, held that such holder, upon receiving the barley, became liable for the whole amount due, and for which a lien was claimed. Held, also, that the release of the barley was a sufficient consideration for the agreement. Ib. [Decided May 21, 1878.]


1. Provisions forfeiting policy for non-payment of premiums: when company estopped from insisting on.— A life insurance policy contained a provision forfeiting it in case the premium was not paid when due. The insured was entitled to share in the profits, and the amount of premium at any given pay day could be ascertained only by the company. The insured lived at a place distant from the office of the company, and transacted business with it for six years through a local agent of the company located at her place of residence, who, each pay day, was furnished with statements of the amount then due from the insured. This agent was, in March, 1874, removed, and no one put in his place. Variations from the terms of the policy had by mutual agreement been made on sereral occasions. Payment had been received by the

company by post-office order without objection. In March, 1874, seven days before the premium became due, the insured wrote the company, asking for a statement of the amount of premium to become due, and inclosing a post-office order which she believed would cover the amount. The company did not answer this letter until after the day of payment had passed. Held, that the company was estopped from claiming that the insured had failed to pay the premium when due, and could not insist on a forfeiture of the policy for such non-payment. Judgment below affirmed. Meyer v. Knickerbocker Life Insurance Co. Opinion by Folger, J.

2. Tender of premiums when not necessary to keep alive policy. The insured repeatedly offered to pay the necessary premiums, but the offers were refused, the company declaring that the policy had ceased. Held, that the insured need not on each following pay day make formal offer of payment to keep the policy alive. Ib.

[Decided May 21, 1878.]


Transferee for precedent debt not holder for value.— A party taking a promissory note in payment of a precedent debt is not a bona fide holder for value so as to cut off the defense that the person transferring the note had wrongfully diverted it from the purpose for which it was intrusted to him. Judgment below reversed. Potts v. Meyer. Opinion by Church, Ch. J. [Decided May 28, 1878.]


Corporation entitled to benefit of act of 1867: verification by president of corporation sufficient. The provision of the United States Statute of March 2, 1867, for the removal of causes to the Federal courts where the action in the State court is between citizens of different States, applies to corporations as well as individuals, and a petition by a corporation, signed in its name and verified by its president, accompanied by an affidavit of the president setting forth the required facts, is a compliance with the provision of the act requiring a citizen to make and file such petition and affidavit, etc., and entitles the corporation making it and complying with the statute in other respects to a removal of the cause. The case of Cooke v. State National Bank, 52 N. Y. 96, in form holding that a corporation could not make the affidavit required by the act of 1867, "was merely pro forma to facilitate the final disposition of that case, and it was not intended to lay down a rule which would govern other cases." Judgment below reversed. Mix v. Andes Insurance Co. Opinion by Earl, J. [Decided May 28, 1878. Reported below, 9 Hun, 397.]


Release of indorsement consideration for contract: contribution: burden of proof.-One Sayles and plaintiff made a joint and several note for the benefit of Sayles, but the fact that plaintiff signed as surety was not expressed. This note was indorsed by defendant, who afterward signed as surety. Held, (1) that a release of the contract of indorsement would furnish a sufficient consideration for the contract of suretyship, and (2) that defendant was presumptively a surety for both Sayles and plaintiff; and in an action for contribution on the ground that defendant was co-surety with plaintiff for Sayles, plaintiff must show that fact

affirmatively. Judgment below affirmed. Sayles v.
Sims. Opinion by Church, Ch. J.
[Decided May 21, 1878.]


Provision that corporations shall not plead, extends to their sureties.-The provisions of Laws 1850, chapter 172, forbidding corporations to set up the defense of usury, includes collateral contracts of individuals as securities, guarantors or indorsers for corporations. Accordingly where defendant indorsed a note for the accommodation of a corporation, which borrowed money thereon, held, that he could not set up the defense of usury. (Rosa v. Butterfield, 33 N. Y. 664, followed.) Judgment below affirmed. Stewart v. Bramhall. Opinion by Andrews, J. [Decided June 4, 1878. Reported below, 11 Hun, 139.]


THE following decisions were handed down Tuesday,

June 11, 1878:


Baldwin v. Liverpool and Great Western Steam. Co. (limited), No. 254, judgment affirmed; no opinion.Burleigh v. Center, No. 265, judgment affirmed; opinion per Curiam.Curtis v. Delaware, Lack. and Western R. R. Co., No. 202%, judgment affirmed; opinion by Miller, J.- - Fillgrave v. Chappell, No. 261, judgment affirmed; no opinion. Goodwin v. Simonson, No. 244, order affirmed; opinion by Miller, J.-Heidenheimer v. Mayer, No. 228, judgment affirmed; no opinion.- Hiscock v. Harris, No. 157, order affirmed and judgment absolute for defendants on stipulation, with costs; opinion by Andrews, J.-Jackson v. Johnson, No. 232, judgment reversed and new trial ordered, unless plaintiff stipulates to reduce recovery in the sum of $847.13 and interest from March 3, 1868, in which event judgment as so modified affirmed, without costs to either party in this court; opinion by Andrews, J. -Tyng v. Halsted, No. 412, dismissed, with costs of one appeal only; opinion by Church, Ch. J.



Reports of cases argued and determined in the Court of Com
mon Pleas for the City and County of New York. By
Charles P. Daly, LL. D., Chief Justice of the Court.
Vol. VI. New York: Baker, Voorhis & Co., 1878.


HERE are quite a number of interesting cases in this volume, among which we will notice these: Smith v. Reed, p. 33: A boarding-house keeper was held liable for the loss of a boarder's property by theft, committed by a stranger permitted by a servant, in the employ of the boarding-house keeper, to go into the boarder's room. Hoffman v. Gallaher, p. 42: Plaintiff agreed to paint a portrait of defendant, which should be a likeness satisfactory to his friends. In an action for the price of the portrait, held that it was not competent to exhibit the portrait to the jury to enable them to determine if it was a satisfactory likeness. McGuire v. N. Y. C. & H. R. R. R. Co., p. 70: In an action for personal injuries for negligence, a stipulation by defendant's attorney as a condition for postponement, that the action should not abate if plaintiff died, held valid and enforceable. Matter of Fincke, p. 111: The court may summarily order an attorney to pay to his client money collected in a suit, and if the attorney claims a lien for professional services, he

is not entitled to a jury to determine his claim. Sprague v. W. U. Tel. Co., p. 200: A failure to send a telegraph message at all is not a "mistake or delay in delivery or non-delivery," within the meaning of the usual stipulation in blanks for telegraph messages. Devlin v. O'Neil, p. 305: A sale of goods to be disposed of by the vendee at retail if conditional, is fraudulent and void as to creditors of vendee. Leviness v. Post, p. 321: A blacksmith was held liable for the unskillfulness, in shoeing a horse, of his servant, who was not employed to shoe horses, but who undertook the work. Richard v. Boas, p. 460: The certificate of protest of a notary to a foreign bill of exchange must have the impression of a seal upon the paper itself, or upon some adhesive substance attached thereto. Grosz v. Jackson, p. 463: Chairs furnished for a theater of a pattern that had to be made with reference to the size and shape of the theater, and which were screwed to the floor, held, a part of the building and subject to a mechanics' lien. Sulzbacher v. Dickie, p. 469: A landlord contracted with a builder to put a new roof on his building, without binding the builder to protect the goods of the tenants as a matter of injury from the weather. Held, that the landlord was liable to the tenants for injury to their goods from a storm, caused by the builder negligently leaving the roof without covering. Wynn v. Schappert, p. 559: Delivery of a letter to a mail-carrier in a city, held a deposit in the post-office. The reporting, we need not say, is excellently done, and the book is well printed and bound.


An abridgment of the Revised Statutes of New Jersey, and of the Amended Constitution. By A. V. D. Honeyman, Counselor at law, author of "The new treatise on the Small Cause Court, etc." Somerville: Honeyman & Rowe, 1878.

This is intended as a convenient manual of the statute law of New Jersey for handy reference. It appears to be accurate, and to embrace all the public acts now

in force in that State, and the small compass into which the substance of those acts is brought will render it a very valuable assistant to those who desire to

readily ascertain what is the statute law governing any particular subject, and where it can be found. The subjects are arranged alphabetically, and a very full index at the end of the volume renders its contents very easily accessible. We cannot well see how any lawyer or justice of the peace in New Jersey can dispense with the use of this convenient little book.


The Law of Married Women in Pennsylvania, with a view of the Law of Trusts in that State. By Clement M. Husbands, Esq., of the Philadelphia bar. Philadelphia: F. & W. Johnson & Co., 1878.

The law relating to married women was at one time quite uniform throughout the States where the common law prevailed. But statutory enactments have of late years rendered it so dissimilar in different localities that a treatise adapted to the existing law of one State could be only partially depended on in examining a case to be decided under the laws of another. The tendency of the legislation everywhere has, of course, been to emancipate the married woman from the disabilities under which she was placed by the English law, but the extent as well as the nature of

the changes made are very unlike. The author of this work has, therefore, very properly confined his labors to an attempt to show what are the rights and liabilities of married women in Pennsylvania alone. But the value of his book will not be confined to that State only. Several other States have modeled their legislation upon that of that State, and in many of the States those rules of the common law which still prevail in Pennsylvania are yet in force. The author in the treatise before us first considers who is a married woman, defining what constitutes marriage, what are voidable marriages, and what void ones. He next explains what are the reciprocal obligations of husband and wife; then the nature and effect of the contracts of married women, and how far she can impose liability upon her husband by her contracts, torts, frauds and crimes. Next he shows how far she can deal with her separate estate, what are her rights of property, and her capacity to sue and liability to be sued. After a consideration of how far husband and wife may be witnesses for each other, he treats upon her rights to trade, to make a will, and in her husband's estate, and what acts and functions she may perform. The subject of divorce, as well as other matters incident to the relation of marriage, are also treated upou. Trusts are so intimately connected in Pennsylvania with the estates of married women that the topic was not deemed foreign to the volume, and its principal features are therefore given. The treatise is well written and must prove of great use to the profession both in and out of Pennsylvania.



THE current number of the Law Magazine and Review contains several very interesting and valuable articles. "Codification and Legal Education," by Mr. Justice Markby, of the Supreme Court, Calcutta, is an elaborate discussion of the very important subject of codification, and its effect upon legal education

with criticisms upon the views expressed by Lord Cairns, Sir James Stephen, Sir Henry Thring and others. "Practical Legislation," by Francis Savage Reilly, Esq., is a consideration of the methods of constructing statutes with some suggestions as to style and subject-matter. "On the Study of the Law," by Charles Clark, Q. C., is a readable and valuable essay upon a subject which is always of interest to the profession. "Criminal Procedure in Scotland and its Lessons for England," by Alexander Robertson, M. A., will be found of practical value here as well as in England, the suggestions in respect to the discontinuance of the grand jury being upon a matter which has engaged the attention of several State Legislatures and constitutional conventions. "The Quarterly Notes," "Reviews of New Books," and other editorial departments, are, as usual, full of entertaining matter.

"Suffrage in Cities," and "The railway in relation to public and private interests," are the titles of two addresses delivered by Simon Sterne, Esq., the former in a popular course of lectures under the auspices of the trustees of Cooper Institute, and the latter before the merchants and business men of New York, at Steinway Hall. Like every thing written by Mr. Sterne, these addresses are philosophical and scholarly and clothed in the most elegant diction.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, JUNE 22, 1878.

The governor's veto of the amendments to the Code was simply factious, and his reason therefor flippant in the extreme. Howmuchsoever men may differ about the merits of the Code of Civil Procedure, it is conceded on all sides that some of its provisions need amending, and the amendments passed both houses of the Legislature without opposition, but have fallen in the Executive Chamber; not because they were not needed or were in themselves objectionable, but only because they were not in what the governor conceives to be the most approved form. The reason given for the veto is a mere pretext, or else the governor is not as consistent in all things as he is in his hatred of the Code. Last year he signed the Amending Act, which was VOL. 17.- No. 25.

in the precise form of the bill he has now veloed, and which has never given rise to any difficulty of application; but it now occurs to the governor that such amendments will "require two men to apply the Code." The real reason of the governor's action was unquestionably a desire to make the Code as unpopular as possible, by preventing its defects from being remedied. For this most unworthy object he has not scrupled to expose the profession and the public to the difficulties and inconveniences arising under some of the sections of the Code which the amendatory act would have corrected.



else the District have as much work to do as

Code of Civil Procedure passed by the special district in the State, and more than those in at least committee of the Senate of this State on the revision five of the districts, yet their pay is much less than of the statutes at its meeting on the 17th inst. It will what is received by their brethren in the first and be seen that the committee pronounces emphatically second districts, and no more than is paid to judges against any retrograde legislation on the matter and in the fourth, fifth, sixth, seventh and eighth disthat the Code now in force, as sought to be amended tricts, where the judicial office involves much less by the Legislature at the session which has just labor. To compensate these judges for the heavy closed, should be retained. The committee will, labors which they perform, the Legislature, at its therefore, report at the next session of the Legisla- recent session, passed an act which increased the ture the bill containing the nine supplementary amount paid them from $7,200, which they now rechapters with such amendments as may be deemed ceive, to $9,700 per annum. The governor has reexpedient. As the Senate remains unchanged until turned, without approval, this bill, giving, as reasons the close of the next session, there is no probability therefor, that enough is paid now. The judges in of repealing the thirteen chapters of the Code of the first district receive $17,500, and those in the Civil Procedure now in force. It is understood county of Kings $13,000, while those in the second that a careful review of the nine chapters mentioned district, not residing in Kings county, receive $9,will be made for the purpose of obviating the objec- 700. If there is any equity in paying judicial offitions of the governor to them, and that these chap-cers in proportion to the work they have to do, as ters will be passed anew at the next session of the those in other positions are supposed to be paid, the Legislature in such a form as to deprive the gover- judiciary of the third district are entitled to what nor of all pretext for vetoing them. The committee it was proposed in this bill to give them. The govintends also to review and report at the next session ernor thinks, however, that the example set in the the bill relating to property and other civil rights, first and second department of high judicial salaries, and also the Criminal Code prepared by Judge ought not to be followed in other parts of the State. Emott. It will be seen that the committee asks sug- The judiciary, as it seems to us, are not overpaid, gestions from the bench and bar of the State to aid it in its labors.

and would not be even with the increase which the bill mentioned designed to give them.

The Supreme Court judges of the Third Judicial

A criminal case has recently come before the courts of India which is exciting great interest in that country by reason of the position of the parties implicated. The Rajah of Poorree, who is the hereditary guardian of the temple of Juggernaut, and the secular head of the Hindoo religion in Oressa, and who is worshiped by vast numbers of people as the visible incarnation of Vishnu, became possessed with the idea that a Hindoo ascetic of great sanctity who enjoyed a special reputation for curing diseases was attempting to perform some work of incantation against him. He, therefore, induced the ascetic to visit his private apartments, and, with the aid of his servants, put him to the

torture and then cast him out into the street. The injured man was found by the police, but died from his injuries within a few days. The Rajah was arrested, tried for murder, convicted and sentenced to transportation for life. An appeal was taken, but it is probable that the conviction will be sustained.

The Bar Association of Chicago gave Mr. Justice Harlan, of the United States Supreme Court, a pub

lic reception and a dinner at the Palmer House in that city, on the occasion of his recent visit there for the purpose of holding the Circuit Court. The bench and bar of Illinois were fully represented, and the reception passed off in the most satisfactory manner. The fact that no speeches were allowed rendered the gathering much more social in its character than is usual upon such occasions. We trust the example set by the Chicago Bar Association may be followed in other localities. Such gatherings are not uncommon in England, and the result

is that the relations between the bench and bar are much more intimate if not more friendly than in this country. If the members of our profession in the large cities knew each other socially as well as in a business way it would be for their mutual advantage.

The Court of Appeals, on the 21st inst., adjourned until the 16th of September next, when a new calendar will be made up for the session then to be held. The cases undisposed of on the present calendar will be transferred to the new one without further notice. In other cases notice must be filed with the clerk on or before the second day of September. Judge Hand, the newly-appointed associate judge of the court, took his seat for the first time on the 17th inst.

Mr. Justice Dillon, of the United States Circuit Court, delivered an address before the Iowa State Bar Association, at its recent meeting at Des Moines, in that State, wherein he describes a visit to the Inns of Court and Westminster Hall, in the summer of 1875, and considers the peculiar advantages of the system of law which originated there, and which prevails throughout most of this country and many of the English Colonies, such as Australia, New Zealand, etc. The chief excellencies of this system he considers to be the independent and stable tenure of the judicial office, the trial by jury, and the doctrine of stare decisis. The peculiar merits of these features of our law are considered at length in the address. The jury trial, as juries now are, he considers to be less suited to civil than criminal business. The statutory limitations the power of judges to control juries, which exist in some of the States, he believes to be responsible for much of this.



IN Davis v. Lond. & Provinc. Marine Ins. Co., 38

1. Rep. (ul. 8.) 478, de

March last by the Chancery Division of the English High Court of Justice, one Evans, an insurance agent of defendant, having become liable to it for certain sums of money, plaintiff, who was his friend, having been given to understand that defendant could and was about to prosecute him criminally,

and that the police had been instructed to arrest him, agreed to and did deposit £2,000 in a bank as an indemnity and security for Evans' liabilities, under the belief that criminal prosecution would in consequence be abandoned. Before the agreement and deposit were made the defendant was informed, by its legal advisers, that the prosecution against Evans could not be maintained, and had withdrawn its instructions to the police to arrest, but plaintiff had not been informed of these facts. The court held

that the agreement must be rescinded and the money repaid to plaintiff. The court concludes, that al

though the contract was bad, whether as one to stifle a prosecution, or as induced by a misrepresentation that a prosecution was to be stifled when no prosecution was intended, plaintiff was not precluded from relief: first, because the money being in medio, something must be done with it; second, because illegality, arising from pressure or from an attempt to stifle a prosecution, is not sufficient to make the court stay its hand. The decision is not in conflict with that principle of law which forbids the courts from interfering to save a party who has entered into an illegal contract from the consequences of a failure by the other party to fulfill. In case of an agreement to compound a felony, the plaintiff, seeking to recover back money paid, cannot even claim relief on the ground of pressure. Sheppard v. Dornford, 1 K. & J. 491; Sharp v. Taylor, 2 Ph. 801; Thompson v. Thompson, 7 Ves. 470; Farmer v. Russell, 1 B. & P. 296. But see Tennant v. Elliott, 1 B. & P. 3; Williams v. Bayley, 4 Giff. 638. Such a contract, being one of suretyship, is not one uberrema fidei to be upheld only in the case of there being the fullest disclosure by the intending creditor. But the contract must be based on the full and

voluntary agency of the individual who enters into it, and when there is no consideration, as in the case at bar, a very little will do to authorize the court to interfere. Therefore, any thing like pressure upon the part of the intended creditor will have a very serious effect on the validity of the contract, and still more so where that pressure is the result of maintaining a false impression on the mind of the person impressed. See, also, Hill v. Gray, 1 Stark. 434; Carter v. Boehm, 3 Burr, 1905; Peek v. Gurney, L. R., 6 H. L. 377; Keates v. Cadogan, 10 C. B. 591; Turner v. Harvey, Jac. 169; Pulsford v. Richards, 17 Beav. 87; Rees v. Berrington, 2 Ves. Jun. 540.

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