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D. Wisconsin, reversed. Pound et al., plaintiffs in error, v. Turck et al. Opinion by Miller, J.
1. Statute requiring contracts to be in writing: contract under, void if not in writing.-The provision of the act of Congress of June 2, 1862, entitled "An act to prevent and punish fraud on the part of officers intrusted with the making of contracts for the government," requiring every contract by or on behalf of the secretary of war, secretary of the navy, or secretary of the interior, or officers under them, to be made in writing, etc., is mandatory, and a parol contract is not binding. Judgment of Court of Claims affirmed. Clark, appellant, v. United States. Opinion by Bradley, J.
2. Performance by one party of parol contract raises an implied contract to pay quantum meruit. But a parol contract, for the hire of a vessel by the United States, performed on the part of the owner of the vessel, will entitle the owner to recover for the value the use of the vessel as upon an implied contract for a quantum meruit. Ib.
3. Bailee for hire, when not liable for loss of property bailed. If, however, the vessel is lost, and the government officers were exercising ordinary diligence in its care, the loss falls upon the owner. A bailee for hire is only responsible for ordinary diligence and liable for ordinary negligence, in the care of the property bailed. This is not only the common law, but the general law on the subject. (Jones on Bailm. 88; Story on Bailm. 398, 399; Domat, Lois Civiles, lib. I, tit. IV, § 3, par. 3, 4; Bell's Com. 481, 483, 7th ed.) Ib.
COURT OF APPEALS ABSTRACT.
Not an equitable assignment of the fund drawn on: check in payment of insurance policy. - An insurance company gave petitioner a check upon a banking institution where it had funds sufficient to meet the check, in settlement of a policy upon the life of petitioner's husband. Before the check was presented to the institution on which it was drawn a receiver of the company was appointed, who withdrew the funds from the banking institution. Held, that the check did not operate as an equitable assignment of the fund upon which it was drawn pro tanto, and that petitioner was only entitled to the rights of a general creditor. (Haines v. Clark, 3 N. Y. 119; Lunt v. Bank of N. America, 49 Barb. 221.) Judgment below reversed. Attorney-General v. Continental Life Insurance Co. In re Petition of Merrill. Opinion by Church, C. J. [Decided November 27, 1877.]
Must be got at by calls of deed. The boundaries of land conveyed must be got at by the calls of the deed, where they are definite and distinct, and no extrinsic facts or parol evidence of intent can in such case be resorted to to control or vary the description. (Waugh v. Waugh, 28 N. Y. 94; Drew v. Swift, 46 id. 204.) Accordingly, where a lot conveyed is described by a reference to a number on a village map as the west half of lot No. 169, "bounded on the north by lot No. 171, south by Middle street, east by lot No. 170, and west by an alley," there is no need of hesitation in determining its exact locality, and the question whether the grantor had a title to the alley free from the public easement which he could convey would not
arise. The title to the alley was not involved, and the east line of the conveyed lot would not be further west than the middle of lot 169, as described in the deed Judgment below affirmed. Lawrence v. Palmer. Opin ion by Folger, J.
[Decided December 11, 1877.]
Testimony as to an impression admissible. - The testimony of a witness was that he had “an impression to that effect." Held, not inadmissible on the ground that it was an impression. A witness may testify to impressions. (Snell v. Moses, 1 Johns. 96, sed vide, Cutter v. Carpenter, 1 Cow. 81.) Judgment below affirmed. Carrington v. Ward. Opinion by Folger, J.
2. Cross-examination: how far within the discretion of the court. The extent and range of a cross-examination is very much within the discretion of the court. It must be some question pointing to a material matter, which, if rejected, makes ground of error. Ib.
[Decided December 4, 1877.]
Promise by, to repay money: advancement to procure separate estate. A promise of a married woman to repay money advanced to her is valid when it is advanced as a part of a transaction, the purpose and end of which is to create for her a separate estate. Plaintiff, upon the promise of a married woman that he should be repaid in an event not unlikely to happen, assigned to her a bond and mortgage, which became a part of the purchase-money of a farm, of which she received the deed and which became her separate estate. Held, that upon the happening of the event, which made her promise operative, her separate estate would be liable for the performance thereof. (Westervelt v. Ackley, 62 N. Y. 505. Fricking v. Rolland, 53 id. 525.) Judgment below affirmed. Hurrington v. Robertson. Opinion by Folger, J.
[Decided November 27, 1877.]
A mortgage given to secure the payment of a specific sum on demand, a part of which is owing and due, which is intended as a continuing security to cover the present and continuing indebtedness of the mortgagor to the mortgagee, is valid between the parties thereto, and when free from fraud as to creditors also. (Robinson v. Williams, 22 N. Y. 380; Fassett v. Smith, 23 id. 252; Miller v. Lockwood, 32 id. 293; McKinsler v. Babcock, 26 id. 378.) Judgment below affirmed. Brown v. Kiefer. Opinion by Earl, J. [Decided December 17, 1877.]
courts; and, even to do this, is becoming burdensome. The business of many of the profession is special, and eases relating to his own specialty are all that are of importance to one so engaged. And even those who undertake to do a general business soon find that the cases which are brought to them, so to speak, run in a certain groove of the law only; now and then an exceptional one being outside and involving questions that are not daily brought up. A very large number of practitioners devote their attention to criminal practice as a specialty. The criminal law is largely statutory; the statutes of England and our own States, being very similar, and not always clear. Cases wherein the meaning of statutes is construed, wherein the competency and sufficiency of evidence is considered, and wherein the points of procedure common everywhere are passed upon and explained, appear in every volume of State, Federal and English reports. These cases are, compared with the whole number of reported decisions, few, but scattered throughout a vast number of volumes, and a collection of them for a practicing attorney, full of business, must be of great value; even, as is not usually the case, though the original volumes wherein they are found are accessible to him. But we need not offer reasons why such volumes as this one are useful. Their presence in every law library in the land shows that the profession appreciate them. The present volume appears to give only those cases appearing in late numbers of the various reports, though there is nothing, except in the cases themselves, to indicate how wide a range the volume covers. The selection of cases seems to be well made; but the arrangement, which is designed to be according to the subject-matter, is faulty. A few of the titles will explain our meaning. The subjects are arranged alphabetically and a few of them come in order, thus-"Homicide;" "House of Ill Fame;" "Incest;"" Insanity;""Larceny;" (all the cases relating to burglary being arranged under this bead.) Oftentimes a case involves two or more subjects, and cannot be well arranged in this way. The true method in such a work is to arrange by states and countries, leaving to the index the division into subjects. The head-notes to the cases reported are concise and seem to be accurate, and the facts are stated briefly, or not at all, when the opinion states them. The index is a fair one. In most respects the volume will be found excellent, and will, undoubtedly, find its way into the libraries of all criminal practitioners.
PLATT'S RELIGION AND JURISPRUDENCE.
The Influence of Religion in the development of Jurisprudence. By W. H. Platt, formerly of the Mobile Bar. San Francisco, 1877.
This is a work upon a subject which interests those given to the study of jurisprudence as a branch of philosophical knowledge more than it does lawyers in active practice. To what extent the common law is indebted to that of Moses, or to the maxims for the government of human conduct enunciated in the Old and New Testaments, for the principles which compose it, will always be a matter of dispute. By some it will be claimed that the many points of agreement between the common law and the code of morals deduced from the Scriptures, conclusively show the source of the law, while others will maintain that both the law and the Bible, where they agree, express principles of justice which are recognized by all man
kind, and cannot be asserted to have originated in any age or among any people. The book before us is an able argument in favor of the theory of those who believe in the Hebraeic origin of our jurisprudence. The history of the various distinguishing principles of the English law is carefully examined and traced back to corresponding rules in the Jewish law, or to some regulation in the government of the Christian church. According to the view of the author all the existing law of Europe is derived from two sources, the Mosaic code, and such ideas as were embodied in the religion known as the worship of ancestors. From the latter source sprang the laws of Solon and the twelve tables of the Romans, and it contributed toward making up the code of Justinian. From the Mosaic code sprang the law of Christianity. This law furnished the most of the material out of which the old Anglican customs were formed, some things in these customs, however, being directly derived from the Mosaic code. These customs furnish the basis of the common law, which was largely re-enforced by the Canon law, a code made up chiefly from the law of Christianity, but deriving much from that of Justinian. The author maintains his views with great strength and ingenuity, and what he has written is worthy the perusal of every one who takes an interest in such discussions.
MR. HUN'S ANNOTATED RULES. To the Editor of the Albany Law Journal:
SIR: My attention has been called to a criticism in THE ALBANY LAW JOURNAL of January 19, of an edition of the rules prepared and annotated by myself.
The article points out four alleged errors in a volume of 242 pages, as follows, viz.:
I. "On page 7 he gives in full chapter 322, Laws of 1874, which was expressly repealed by chapter 417, Laws of 1877, but he nowhere gives, so far as we observe, section 191 of the Code of Civil Procedure, which takes of chapter 322."
Chapter 322 of 1874 is in substance, though not in phraseology, the same as section 191 of the Code of Civil Procedure; it is inserted in the book in a place by itself and not among the rules, simply for the purpose of showing the application of some eighteen cases following it, and decided under the phraseology of that statute and not under section 191. The first sentence following Rule 1 of the Court of Appeals, on page 11, reads "Code of Civil Procedure, §§ 190-191. Jurisdiction of the Court of Appeals," thus, at the very beginning of the rules of that court, calling attention to the new statute defining its jurisdiction. Your critic could not have "observed" the work very carefully.
2. "Of the eighteen statutes cited in force on page 29, all but two were repealed by the same act" (i.e., chapter 417 of 1877). Immediately preceding these statutes, the insertion of which in my work you regard as an error, are printed in full all the sections (789 to 795, both inclusive) of the new Code relating to that subject. It is impossible, therefore, for any one to be misled by the insertion of the statutes in question, while in the examination of the authorities following them, and other cases decided under them, but useful in giving a construction to the provisions of the new Code, I thought it might be of great convenience to
have in one table references to all the previous statutes relating to that subject.
3. "The statutes as to law schools, given on page 39, were repealed by the same act, and were superseded by section 58 of the new Code, which Mr. Hun forgets to note." This relates to paragraph No. 6, which reads as follows: "By section 58 of the Code of Civil Procedure, it is provided that" (here follows section 58 verbatim). At the end is the following in parenthesis: (see also Chap. 310 of 1855; 267 of 1859; 187 of 1860; 202 of 1860").
The statutes prevailing before the new Code were simply put in parenthesis at the end of the new law, ($58) for the purpose of showing under what statutes the decisions following it had been made. It would appear to be difficult to "note" section 58 more emphatically than by setting it out in full.
4. "On page 57 he announces that the Supreme Court is authorized by the Revised Statutes (2 R. S. 199, §§ 21 to 28) to compel the discovery of books, etc., and that these provisions were not repealed by section 388 of the Code, but he neglects to say that they were repealed expressly by chapter 417 of last year, and that their place is taken by sections 803 to 809 of the new Code."
The paragraph referred to purports to give the decision of the Court of Appeals in Rice v. Ehle, 55 N. Y. 518, and consequently states what that case decided. Just preceding it, and immediately following the rule under which this paragraph occurs, will be found sections 803 to 809 of the new Code, each being followed by a brief memorandum of its contents.
The criticism further contains the remark that "Mr. Hun has also omitted to notice a number of recent cases pertinent to the matter in hand." This general statement, of course, I cannot show in this note to be untrue, but to show that I have not been entirely neglectful of recent cases, I wish to call your attention to only one page of my book (page 8), where you will find no less than three cases decided in the Court of Appeals, never published, I believe, in any way, two of which are to appear in 67 New York Reports.
I regret very greatly that your critic, after only a "casual reading," should have undertaken to criticize my work, as he has done equal injustice to my book and the character of your paper.
Indeed, the article has so little of the spirit of fairness and just criticism, which is usually found in your notices of new books, that I am led to believe that it was prepared by some one interested in the volume of Rules published by Baker, Voorhis & Co., and, through inadvertence on your part, obtained a place in your Journal. MARCUS T. HUN.
ALBANY, January 22, 1878.
[Mr. Hun may dismiss his belief as to the origin of the notice of his performance, since it was written by the Editor of this Journal, who has no interest in "the volume of Rules published by Baker, Voorhis & Co.," nor in any other " Volume of Rules" further than that they be what they pretend to be; nor need he be seriously apprehensive that the critic has done injustice to "the character" of this paper until he can furnish a better answer to the criticism than that contained in the foregoing communication. The specific criticism of Mr. Hun's performance was that he had printed repealed statutes without stating that they were repealed. This he admits, but heattempts to parry the
force of the charge by saying that he has either printed or called attention to the provisions of the Code of Civil Procedure on the same subject. This is simply an evasion of the charge. So far as appears in his pages the repealed statutes and the provisions of the Code of Civil Procedure are concurrent laws. The tendency of his book is to mislead the busy practitioner into the belief that repealed statutes are still in force.
Of the propriety of printing, especially at length, statutes which have no longer an existence, there can hardly be two opinions; nor, we venture to add, can there be two opinions of the judgment of an author who devotes a page to a repealed statute, and a line to the statute passed to fill its place.
We can assure Mr. Hun that when we had pointed out "four alleged errors in a volume of 242 pages" we stopped for lack of space to devote to him, and not from lack of errors to point out. We should not feel much hesitation in binding ourselves to point out forty errors if it were worth our while. We did not even attempt to point out all the errors on the pages to which we did refer, otherwise we should have called his attention to the fact that he devotes half of page 39 to a statute relating to rules for the admission of attorneys, which was expressly repealed by chapter 417, Laws 1877 (which fact he does not mention), and only a half line to the provisions of the new Code on the subject. Indeed, it is only our good nature that prevents our calling Mr. Hun's book what Mr. Amos called Blackstone's Commentaries, "a charnel house of dead law."
Mr. Hun says truly that he has, on page 8, cited three cases not yet published in the regular reports, but he has also omitted to cite two that were reported (Ryan v. Waule, 63 N. Y. 57, and Sprague v. Western Union Telegraph Co., 64 id. 658) which on examination he will find very pertinent to the matter of that page, and to have been decided under the repealed statute, which the cases on that page are supposed to illustrate.
We mention these omissions on this one page simply because Mr. Hun has himself pointed to that page as a specimen of his work. What we have pointed out may serve to show him that our assertion that he has omitted to notice a number of recent cases pertinent to the matter in hand is not, as he intimates, "untrue."-ED. A. L. J.]
Mr. H. G. Wood, author of a treatise on "Nuiand on Master and Servant," has in the press of Banks & Brothers a treatise on The Law of Fire Insurance. There would seem to be no dearth of books on this subject, but we can safely promise that Mr. Wood will make a book that no one interested in the subject will care to do without. The critical analysis to which he subjects the adjudications of the courts and the exhaustive research that he gives to every subject upon which he writes, make his books much better than the average treatise.
The lawyers of Columbia county have done what the lawyers of every county in the State should do, formed a Bar Association. The following officers were elected: President, John Gaul, Jr.; Vice Presidents, J. C. Newkirk, H. W. McClellan; Recording Secretary, E. P. Magoun; Corresponding Secretary, Willard Peck; Treasurer, Cornelius Esselstyn; Executive Committee, R. E. Andrews, John Cadman, S. L. Magoun, Samuel Edwards, J. Rider Cady; Committee on Admission, A. F. B. Chace, C. L. Beale, S. Edwards; W. Peck, C. M. Bell; Committee on Grievances, Francis Sylvester, J. C. Newkirk, Nelson F. Boucher, E. D. DeLamater, C. Hawver.
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, FEBRUARY 2, 1878.
case of Hannibal & St. Joseph R. R. Co. v. Husen, just decided by the Supreme Court of the United States, and appearing in the abstract of recent decisions of that court in our present number, determines another question upon the important subject of the limitation of State rights by the Federal Constitution. The court holds that a statute of Missouri which forbids the driving or conveying Texas, Mexican, or Indian cattle into the State during a certain season of the year, is in conflict with the clause of the Constitution which gives Congress authority to "regulate commerce with foreign nations, and among the several States and with the Indian tribes." The object of the statute was to prevent the introduction of cattle disease, with which cattle of the kinds mentioned were liable to be infected, but the court hold that a State cannot exercise its power to enact sanitary laws to such an extent as to work a practical assumption of the powers conferred by the Constitution upon Congress.
In the State legislature the following bills of interest to the profession were introduced during the past week. To amend the law relating to interest by reducing the legal rate to six per cent; making a threat to make public facts disadvantageous to the reputation of another, for the purpose of extorting money, a misdemeanor; providing for the revision and codification of the poor-laws; permitting aliens to hold and convey title to real estate; providing that judges in charging juries shall not review the evidence given on the trial, except so far as may be necessary for a proper presentation of the law involved in the case; amending section 830 of the Code of Civil Procedure, relative to the testimony of husband and wife in certain cases; enabling married women to enter into contracts with the same effect as if they were single. The assembly judiciary committee has agreed to report in favor of the adoption of the constitutional amendment providing for an additional justice of the Supreme Court in the Second Judicial District, and also of a bill enacting the nine chapters of the Code of Civil Procedure which passed last year, but failed to receive the executive approval.
On Wednesday the judiciary committees of both houses of the legislature reported in favor of the adoption of the supplemental nine chapters of the Code of Civil Procedure substantially as they were passed last winter. With such a prompt and emphatic indorsement, the fate of the new Code is put beyond question. Not only will there be no repeal, but the nine chapters will be passed and by a majority sufficiently large, it is said, to carry them over the veto of the Governor, should he withhold his approval. These chapters are an essential part of the Revision, and the present Code is incomplete in many respects without them. A large part of the com
plaints which are made in reference to the Code
arise from the fact that it does not cover all the sub
jects which the practitioner expects to find there. Code also, to find out what he is to do, and he is thus He has to look, not only in the new but in the old led to condemn the Revision. With a complete and harmonious system of procedure, embracing all the statute law upon the subject and sufficiently comprehensive to cover every exigency, there would be little just cause for complaint. This is what the Revisers intended to give the profession, and if what became law only partially covered the field, the fault lay elsewhere than with them. That there should be a strong feeling in favor of the re-enactment of the previous Code among those who have grown up with that Code is not surprising. But it proves nothing, except that these members of the profession are averse to giving up what they are familiar with for something which they have accustomed themselves to look upon as entirely new and different. The branch of jurisprudence which comes nearest home, not only to the members of the legal profession, but to litigants in the courts, is that relating to practice. No excellence in a system of law in other respects will compensate for defective and uncertain rules of procedure. Justice may be denied as effectively by a technical application of a rule of practice as by
an unconscionable decision on the merits. The members of the bar have a duty to the public to see that the methods of litigation shall be as free from difficulty as is consistent with its decorous conduct, and it will be for their own best interests to properly perform that duty.
It is a well-established rule of the common law that no civil action lies for an injury which results in death, and that consequently the death of a human being, though clearly involving pecuniary loss, is not the ground of an action for damages. This rule receives an illustration in the case of Mobile Life Insurance Co. v. Brame, just decided by the Supreme Court of the United States, and reported on another page. The court holds that a life insurance company has no right of action against one willfully causing the death of a person whose life it has in
sured, although in consequence of such death it has been compelled to pay the amount of the insurance. The statute of the 9th and 10th Victoria giving a right of action to the representatives of a deceased person, under certain circumstances, which has been incorporated into the legislation of many of the States, does not apply to remote claimants such as the plaintiff in this action. The decision is one of great importance, particularly to insurance companies.
The Court of Appeals, on the 25th ult., in answer to several applications to it to modify the present rules and regulations relating to the admission of attorneys, made in behalf of students who were, at the time of the adoption of the rules, in attendance upon law schools in the State, as well as those who have pursued their studies at law schools out of the State, and also in behalf of gentlemen who have been admitted to the bar in other States, and have, without notice of any change in the rules affecting the admission of attorneys in this State, removed here, handed down an order declining to grant the applications. The court says that after deliberation it deems it inexpedient to modify or in any way interfere with the rules. As the classes of applicants mentioned embrace all who can, with any show of justice, ask for a change in the rules for their benefit, the action of the court indicates a determination on its part to adhere to the position heretofore taken in respect to this subject.
The bill introduced in the assembly by Mr. Peck is designed to place married women in the same position in respect to their personal contracts that all other individuals are. Its provisions are embraced in a single section reading as follows:
"A married woman may enter into any contract with any person other than her husband in the same manner and with the same effect as if she were sole."
The legislature has for thirty years been endeavoring to bring the law relating to married women into a satisfactory condition. But notwithstanding But notwithstanding there are several quite elaborate statutes in existence, the only thing accomplished has been to enable the married woman to deal with her separate property or to carry on a separate business in her own name. She is yet unable to make a contract binding on herself; to be enforceable it must in some way relate to a separate business or a separate estate. We trust the bill of Mr. Peck, which is simple and seems to meet the difficulty fairly and fully, may become a law.
A bill has been introduced into the legislature of Pennsylvania providing for a simple mode of procedure in suits of a commercial nature and in certain other suits where there is a default made. The provisions of the bill are very similar to
those of our Code in relation to civil actions. The prospects of the passage of the bill are fair, as the mercantile community, being tired of the technicality and delay of the system of practice now in force in Pennsylvania, are in its favor.
NOTES OF CASES.
N the case of Lanning v. Christy, decided by the Supreme Court Commission of Ohio at the December, 1876, term, and to appear in 30 Ohio St. 115, it is held that an action will not lie for statements con
tained in an answer alleged to be libelous, if such statements were honestly made without malice, and if they were relevant, believed by the defen dant to be true, and were made upon probable cause and under advice of counsel. This is according to the rule as stated in Townshend on Slander and Libel, § 221, that "whatever one may allege in his pleading by way of defense to the charge brought against him, or by way of counter-charge, counter-claim or set-off, can never give a right of action for slander or libel." In Hill v. Miles, 9 N. H. 14, it is said: "An action for libel cannot be sustained for a proceeding before a court having jurisdiction of the subject-matter, if the process was instituted under a probable belief that the matter alleged was true, and with the intention of pursuing it according to the course of the court, even if the matter turns out to be wholly false. * * ** It may well be questioned whether an action for libel could be sustained, under such circumstances, even if there was evidence of express ill will." Kidder v. Parkhurst, 3 Allen, 393; Watson v. Moore, 2 Cush. 133. See, also, 2 Addison on Torts, 933, § 1; Perkins v. Mitchell, 31 Barb. 461; Henderson v. Brownhead, 4 H. & N. 568; Hastings v. Lusk, 22 Wend. 410. In Marsh v. Ellsworth, 50 N. Y. 311, the court says: "The law is well settled that a counsel or party conducting judicial proceedings is privileged in respect to words or writings used in the course of such proceedings, reflecting injuriously upon others, when such words and writings are material and pertinent to the questions involved; and that, within such limit, the protection is complete, irrespective of the motive with which they are used; but that such privilege does not extend to matter having no materiality or pertinency to such questions." See further, Rex v. Salisbury, 1 Ld. Raym. 341; Dawling v. Wenman, 2 Show. 446; S. C., 3 Mod, 108; Cox v. Smith, 1 Lev. 119; Brown v. Mitchell, Cro. Eliz. 500; Hoar v. Wood, 3 Metc. 193; Gosslin v. Cannon, Briggs v. Byrd, 2 Ired. 377; Forbes v. Johnson, 11 B. Monr. 48.
In the case of the Appeal of Hartranft, recently decided by the Supreme Court of Pennsylvania, the question arose whether the Governor of the State can be called before a grand jury to answer in respect to the manner in which he has performed