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equities existing between the maker and payee which Term reversed ; that of Special Term affirmed, with inhero in or grow out of the note. Now, do the same costs-First National Bank of Oswego, appellant, 5. equities exist in favor of the true owner? that is, can John Dunn and another, respondents; Second Nahe recover it from the holder as he could a horse or tional Bank of Oswego, respondeut, v. Joho Dupa, other personal property? In 1 Daniel, Neg. Inst., $ appellant.-Judgment affirmed, with costs-Peter D. 782, it is said that “in the fourth place the holder, in Platz, respondent, v. City of Cohoes, appellant; Hugh order to acquire a better right and title to the paper Dillon, appellant, v. Sixth Avenue Railroad Company, than his transferrer, must become possessed of it be. respondent; William Green, appellant, v. John Banta fore it is due. * And if it were not paid at ma- impleaded with Edward Clark, respondent.-Moturity it is then considered as dishonored, and tion to open default granted ou payment of $20—Samalthough still transferable in like manner and form uel F. Edwards, appellant, v. New York and Harlam as before, yet the fact of its dishonor, which is appar- Railroad Company, respondent.-Motion to open ent from its face, is equivalent to notice to the holder, default granted, without costs to either party; printed and he takes it subject to its infirmities, aud can ac. cases to be served within five days after entry of this quire no better title than his transferrer.” The late order-George Jackson and another, respondents, F. case of Greenwell v. Haydon, 78 Ky. 333, is like the Horace D. Tupper and another, appellants. -Motion case at bar, and it was there held that the holder did to correct remittitur denied without costs-Herman not acquire title to the note as against the owuer. The Veeder v. Norman H. Galusha and others. Motion opinion is well considered, and the authorities cited to amend return granted without costs—Patrick A. commented on and explained. To the same effect are Whelan, respondent, v. Ansonia Clock Company, apthe cases of Texas v. White, a Wall. 700; Vermilye pellant.- -Motion denied without prejudice to apV. Adams Express Co., 21 id. 138; and Hinckley v. plication for additional time upon the argument on Union Pacific R., 129 Mass. 52. In the last case, it is appeal from the order-In re Application of Cnion said, “It is an elementary principle of commercial law Ferry Company of Brooklyn, to acquire title. that negotiable paper overdue carries with it on its very face notice of defective title sufficient to put the transferee on inquiry. In Earhart v. Gant, 32 Iowa 481, it was held that an assignment of a note by the
NOTES. sheriff, under the statute, has the same effect as if made by the payee, and the holder acquires the same rights as if the note had been indorsed and transferred
A LEGAL LAMENT. to him, in due course of business, in accordance with
AIR-“Ye Mariners of England. the law merchant. The note in that case, as we un
Ye litigants of Ireland derstand, was transferred before maturity, and it was
Who doze at home in ease, held the plaintiff was entitled to recover unless the-de
Ah, little do you think upon fendant established that the plaintiff had notice of the
The smallness of the fees defense pleaded of mistake and fraud. In the subse
Which, after all our wit and wile, quent case of MoCormick v. Williams, 54 Iowa, 50 ;
Our dash and splash and "go," S. C., 6 N. W. Rep. 138, the note was transferred by
We take from the cake the officer after maturity, and it was held that his
Where the legal currants show, transferee acquired no title or interest in the note. The authorities cited establish, we think, that a per
While the mighty judge bethunders " fudge,"
And the grand old bigwigs blow. son who acquires a promissory note after maturity acquires no better right or title than the party had from
Ye litigants of Ireland! whom he obtained it. And on principle we think this
Oh, did you know what lies must be so. The purchase of paper by the indorsee
We're apt to tell on your behalf. must be in the usual course of business. By this is
You could not then despise meant according to the customs and usages of com
The men who do their best for you, mercial transactions. If the paper is purchased be
Thro' toil and moil and woe, fore maturity it is such a transaction. Kellogg v. Cur
And catch or else snatch tis, 69 Me. 212. If paper is purchased after maturity
From the talons of the foe it is not in accordance with commercial transactions.
A verdict true that tells for you It is dishonored and regarded with suspicion; and if
Howe'er the big wigs blow. the maker can avail himsell of equities and defenses he could not have done if the paper had been acquired
Ye litigants of Ireland, before maturity, we are unable to see why the owner
We make no false pretence, may not do so; that is, he may pursue it and recover
We're not devoid of mother wit, it from any one in the same manuer and to the same
Perhaps we are of pence; extent as he can other personal property. Sup. Ct. of
But we'll ask you (the task you Iowa, June 6, 1884. Wood v. McKean. Opinion by
Will find an easy one), Seevers, J. (19 N. W. Rep.)
When we're named and defamed,
Slay the offspring of a gun,
And then-why then, cut and run.
-By the late John Rea, from the Irish Law Times.
contains the following leading articles: Corporate day, Oct. 28,
Taxation, by Edward C. Moore, Jr. : Sunday and SanJudgment reversed, new trial granted, costs to abide day Laws, by J. G. Woerner; Law Reforms in Gerthe event-John J.Landers, respondent,v.Frank Street many, by C. W. Ernst: Suing the State, by George M. Methodist Church, appellant; John Cassidy and Davie; Are Persons Born within the United States another, respondents, v. Bolton Hall and others, ap- ipso facto Citizens thereof, by George D. Collins.pellants. -Judgment affirmed-The People, respond- It seems to us that our digest-makers do not put half ents, v. Elsie Ryland, appellant.- Order of General euough law under the head of "Poor Law."
THE following decisions were handed down Tues
that if any judge shall have served ten years at any The Albany Law Journal.
time he is entitled to the retiring pension on the
abridgment of his final term. The pension is a reALBANY, NOVEMBER 8, 1884.
ward for judicial service, no matter when rendered,
and if the people do not want to bestow it, the CURRENT TOPICS.
remedy is easy — they need not elect a judge who
cannot serve out his term. The attorney-general's AN N interesting question of constitutional con- construction might operate very unequally, for a
struction is under discussion in this state. judge who had served ɔnly ten years might get the Our constitution retires judges at the age of sev
pension, and a judge who had served much longer enty, but provides that “the compensation of every might not get it. judge of the Court of Appeals, and of every justice of the Supreme Court, whose term of office We have never seen the subject of the overshall be abridged pursuant to this provision, and crowded state of the legal profession so sensibly who shall have served as such judge or justice ten commented on as in the following from the Philayears or more, sball be continued during the re- delphia Times, under the heading "Too Many Lawmainder of the term for which he was elected."
yers: "Out of the fifteen hundred lawyers in Being asked his opinion by the comptroller, Attor- this city it is perfectly safe to say that not more ney-General O'Brien expresses the opinion that the than five clear $30,000 and upward a year, not service of ten years must have been wholly in the more than thirty $10,000 and upward, not more term abridged, and that the pension can in no case than one hundred $5,000 and upward, and that extend beyond four years.
The refer- more than one thousand of the whole number do ence throughout this entire provision is evidently not average $500 a year each from legitimate fees. to the single official term which is shortened by When it is remembered that the majority of the the limitation of age, and the ten years or more of latter class do not earn even that small amount, that judicial service, required in order to entitle the re- all of them must defray office expenses, that many tiring judge to claim compensation for the re- of them have no other means of subsistence, and mainder of his term, cannot be made up by resort that some of them must unavoidably be forced by to previous official terms during which he may extreme necessity to steal or starve, it is not to be have served. There is nothing in this section of wondered at that clients are so frequently found the constitution to indicate that either the legisla. complaining of extortion, or that the pitiful spectators who proposed it or the people who adopted it cle is occasionally seen of a lawyer sitting with had in mind cases where ten years or more of ser- bowed head, hopelessly dishonored, inside the crimvice might occur through the re-election of the in- inal dock. The wonder is that so few unsuccessful cumbent. The word 'term' is used both at the be-lawyers, admonished by these examples, and hy ginning and the close of the sentence, and refer- years of personal experience, amounting almost to ences in each case is made to the term abridged.' practical starvation, ever seem to think of leaving And when it declares that the compensation of the the bar for some equally honorable pursuit, in judge shall continue during the remainder of the which at least a decent living can be honestly and term for which he was elected,' the natural and ob- easily earned. But the greatest wonder is that vious meaning of the word 'remainder,' is what is when the universal voice of the profession bears tesleft of the term after deducting therefrom the ten timony to the extreme difficulty of earning even a years or more of service. * * * Any other construc- bare livelihood by the practice of the law, lawyers tion would lead to results clearly not contemplated will go on multiplying in numbers as though the by the people when they adopted this provision. bar, like an omnibus, can never be so crowded as If the applicant for constitutional bounty under it not to afford a precarious standing room for one is permitted to avail himself of years of service dur- more innocent.
When any good printer on the ing previous terms, there is no limit to the time Times can earn $1,000 a year by eight hours daily when such service shall have been rendered. If at labor; when any competent and industrious carpenany period during his lifetime, no matter how re- ter or brick-layer or machinist can easily earn a larmote, he may have served as judge a number of ger income than is earned by one-half of those alyears sufficient, with the fragment of the term of ready at the bar, it is high time for young men who service abridged by the constitution, to make up contemplate studying law to halt and consider well ten years, he would be entitled to full compensa- before attempting to elbow a way into the ranks of tion for the remainder of the term for which he an already greatly overcrowded profession, in which was elected, which might in some cases still have so few fortunate ones can ever earn more than a thirteen years to run. An interpretation yielding decent living, after possibly a quarter of a century such unreasonable and illogical results ought not to of incalculable toil and hardships, and in which, be adopted unless imperatively required by the for the great majority, there is only the certainty
, plainest language in the constitutional enactment.” of disappointed ambition and semi-respectable
penury." But the trouble is that so-called “labor" We cannot agree with the attorney-general. We is not deemed respectable by the crowd of young think the Constitution means just what it says, and men pushing into the legal profession. Why do
VOL. 30 - No. 19.
not more of them go into the clerical profession? motion presents therefore is upon what shall the al It is not nearly so crowded as ours, and indeed we lowance be computed, upon the amount of the verhear constant complaint of a scarcity of ministers. dict only, or upon such amount with interest added We fear it is the chimerical idea of making money, from the date of the death? The language of the or the unworthy idea of getting political prefer- section (3253) giving the allowance, and which is ment that determines so many toward the bar. applicable to this case, requires it to be computed
upon the sum recovered. The claim of the plaint
iff was that the sum recovered' is the amount of We have lately learned that a revolver may be a the damages which he recovers by the action; necessary for an infant, and now we are informed while the claim of the defendant is that the exthat a bicycle may be. Such was the finding of pression only refers to the amount awarded by the the jury in St. George's Foundry Co. v. Duncan, verdict. The point involved has not been directly the defendant being a professional bicyclist. This decided to my knowledge, and must therefore be is much like holding a race horse a necessary for treated as an original question. In an action of an infant horse-racer. But we have always sup- this character when the plaintiff recovers, the jury, posed that stock in trade was not embraced in the the court, or the referee, to whom the question is description of necessaries.
submitted, may award ‘such a sum not exceeding
$5,000,' as they or he deem or 'deems to be a fair We have received a very handsome pamphlet,
and just compensation for the pecuniary injuries containing the “Constitution, By-laws and Pro” resulting from the decedent's death, to the person
or persons for whose benefit the action is brought.' ceedings of the Grafton and Coos County Bar As
The same section of the Code (1904), from which sociation, at its annual meetings held at Lancaster, the quotation has just been made, further provides: December 29, 1882, and January 28, 1884.” This comes from New Hampshire. It contains several the clerk must add to the sum so awarded interest
"When final judgment for the plaintiff is rendered, interesting papers and addresses, some poetry, and some very irreverent criticism of the 58th New thereupon from the decedent's death, and include Hampshire - not altogether undeserved, we should
it in the judgment. The inquisition, verdict, re
port or decision may specify the day from which say.
the interest is to be computed; if it omits so to do, It will be seen from Mr. Theodore Bacon's letter davits. From the section of the Code just referred
the day may be determined by the clerk upon affiin another column that he disclaims the implication of the Century that he had delivered a recent dis- to it seems reasonably clear that 'the sum recorcourse on “ Lawyers' Morals.” We had not forgot. verdict, which represented the judgment of the
ered' in this action is not only the amount of the ten that he had once read a paper on that subject before the Social Science Association, and one be- jury as to what would be a fair and just compenfore our State Bar Association, and we supposed "resulting from the decedent's death, but also the
sation for the pecuniary injuries' to the plaintiff that be bad been reading another quite recently, interest upon such amount from the date of the and that was the reason why we spoke of him as having apparently taken the morals of lawyers in death. That such interest is required by express charge. Certainly we have never spoken evil of statutory enactment to be added does not make Mr. Bacon, and certainly we did read his paper two
such addition any thing other or different than a years ago, but we shall read it again with respect thorized the jury to make the interest a part of the
part of the sum recovered. If the Code had auand pleasure, for he is a man always to be listened to with respect and pleasure, if not always with verdict, and that in fact had been done, the point
that the allowance should be confined to the jury's agreement.
estimate of the 'pecuniary injuries ' resulting from
the death would not probably have been made. NOTES OF CASES.
That the Code has by plain words made the inter
est a part of the sum recovered,' and has not left A
PRACTICE question of a good deal of inter- its allowance or non-allowance to the discretion of
est to the profession was decided by Judge the jury, cannot alter or change the words of secWestbrook at Special Term in September, in tion 3253. That section does not provide that the Bord v. Nero York Cent., etc., R. Co. The plaintiff allowance shall be based upon the amount of a verhad a verdict of $2,000 for the death of his son. dict, a decision of a court, or the report of a refThe plaintiff moved for an extra allowance under eree, but ‘upon the sum recovered.' In other section 3253, and asked that it be computed upon words the allowance shall be made upon the damthe sum awarded by the jury, with the interest ages which are awarded to the party by the action. thereon added from the date of the decedent's These damages may be such only as a jury, a court death (January 19, 1877), which interest the clerk or a referee may compute, or may be given solely is required by section 1904 to “add to the sum by statute, or may depend, as in this case, partly on awarded” by the jury, “and include it in the judg- both; but whether given in either of the ways ment.” The court said: “The question which this mentioned, so long as they represent 'the sum re
covered,' that sum, and no other, is the one upon assignor and the assignee only, and the transfer or which the allowance is to be computed.”
renewal to a third person of a policy, is illustrated
in the case of fire insurance. That is strictly a In Mutual Life Ins. Co. of New York v. Allen, personal contract of indemnity to the assured, and
he or his assignors in his name can recover only an Massachusetts Supreme Court, October, 1884, Boston Law Record, October 28, it was held that a
to him. It follows that
indemnity for actual wife, for whom her husband has insured his life, the benefit of an unexpired term, it must be by a
where a purchaser of insured property would have may make a valid assignment of the policy to a creditor of the husband, who accepted the assign
new contract with the insurer. The value and perment in satisfaction, and had no insurable interest manency of the interest is material only as bearing in the life of the insured. The court said: "The
on the question of whether the policy is taken out defendant Allen had no insurable interest in the
in good faith, and not as a gambling transaction. life of Mr. Fellows, except as his creditor, and that If valid in its inception it will not be avoided by a interest ceased when he ceased to be a creditor by assured himself has no interest in the life does not
cessation of the interest. The mere fact that the accepting the assignment in satisfaction of his avoid or annul the policy. The second ruling was debt, so that he is in the position of a bona fide assignee of the policy for a valuable consideration correct, and the fact that the assignee had no inwithout interest in the life insured, and the ques- ment. It is one circumstance to be regarded in
surable interest in the life does not avoid the assigntion is between him and the assignor, which has determining the character of the transaction, but the equitable interest in the policy? The policy is
is not conclusive of its illegality." a common form of what is called life insurance, and is a contract by which the insurer, in consideration of an annual payment to be made by the as- In Atchison, etc., R. Co. v. Thul, 32 Kans. 255, it sured, promises to pay to her a certain sum on the was held that it is error to charge that expert testideath of the person whose life is insured. To pre-mony “should be received and weighed with cauvent this from being void as a mere wager upon tion." The court said, by Valentine, J.: “We the continuance of a life in which the parties have think that such testimony should have been given no interest, except that created by the wager itself, | due and proper weight, and should not have been it is necessary that the assured should have some "received and weighed with caution.' In the case pecuniary interest in the life insured. It is not a of Carter v. Baker, 1 Sawyer, 512, the presiding contract of indemnity for actual loss, but a promise judge laid down the following rule: The testito pay a certain sum on the happening of a future mony of experts is to be considered like any other event from wbich loss or detriment may ensue, and testimony; is to be tried by the same tests, and reif made in good faith for the purpose of providing ceive just as much weight and credit as the jury against a possible loss, and not as a cloak for a may deem it entitled to, when viewed in connecwager, is sustained by any interest existing at the tion with all the circumstances.' We think this is time the contract is made. 15 Gray, 249. Mrs. probably as good a general rule as any that could Fellows bad an insurable interest in the life of her be adopted. Mr. Lawson, in his work on Expert husband, and the policy was a valid contract to and Opinion Evidence, page 240, states the rule as pay the sum insured to her upon the event of his follows: “The testimony of experts is entitled to death. 6 Cush. 282. This contract was a chose in the same credit; is to be tested by the same rules action assignable by her. The policy was not ne- as are applied to the evidence of other witnesses, gotiable, and her assignment could not in this State and should have weight with the jury according to pass the legal but only the equitable interest in the their opportunities and qualifications; but it is not contract. The assignment was a contract between conclusive.' Mr. Rogers, in his work on Expert her and her assignee, to which the insurer was not Testimony, page 65, 42, makes the statement a party. It purported to give to the assignee only that it is evident that the value of expert testithe equitable interest of the assignor in that con- mony depends on the learning and skill of the extract, the right to recover in the name of the as- pert, and on the nature of the subject of investigasignor the sum which should become due to her tion. If the subject of inquiry relates to the cause, under it. The direction in the policy, that notice nature or effect of disease, for instance, the opinions of an assignment of it should be given to the in- of eminent or learned physicians would be entitled surers, had no effect upon the character of the as- to the very highest consideration.' But in another signment, however its operation might have been part of the same section Mr. Rogers uses the very limited had notice not been given. The assent of language, with the addition of the word 'great,' the insurer to the assignment would not make a which the court in the present case used in the new contract of insurance. The only effect would foregoing instruction. Mr. Rogers says: “But in be to enable the assignee to enforce in his own all cases the testimony of experts is to be received name, instead of the name of the assignor, the and weighed with great caution.' This language rights she bad under the contract. This distinc- just quoted might be proper in some cases, but it tion between the assignment of the interest of the certainly cannot be proper in all cases, and it caninsured in a policy which is a contract between the not be proper in the present case. We think the
language first quoted from Mr. Roger's work on of appellant's boud. The bond and mortgage were Expert Testimony is correct. The opinions of emi
dated August 26, 1880. The bond was in the ordinary nent and learned physicians and surgeons and ocu
form of a money obligation, and was conditioned for
the payment to respoudent of $11,563.44, with interest, lists are entitled to great consideration, at least ou demand. The mortgage recited that it was inwhere they have made a personal examination of tended to secure the money which appellauts had so the subject, as in the present case.
While bound themselves to pay, and that the amount of many courts speak disparagingly of some kinds of
$11,563.44 was made up of $7,563.44, which was therein
declared to be due from appellants to respondent, and expert testimony – that with regard to handwrit
of $4,000 to be security for future advances. ing, for instance yet we think that all courts hold that the testimony of competent medical ex- so admitted to be due from appellants to respondent, perts is entitled to great respect and consideration. was made up of different sums. One sum represented Pannell v. Commonwealth, 86 Penn. St. 260; Eggers
the loss which had been incurred by Mr. Flagg in a v. Eggers, 57 Ind. 461; Cuneo v. Bessoni, 63 id. 524;
stock speculation which had been carried on by him
and one Ripley with respondent, a stock broker in Jarrett v. Jarrett, 11 W. Va. 584, 626; Thomas v.
New York. Another sum represented losses incurred State, 40 Tex. 65; Pitts v. State, 43 Miss. 472, 480; by Mr. Flagg in a like speculation carried on by bim Templeton v. People, 10 Hun, 357; Choice v. State, and respondent in joint account. Another sum rep. 31 Ga. 424, 481; Flynt v. Bodenhamer, 80 N. C. 205;
resented losses incurred in a like speculation originally
carried on by Mr. Flagg with respondent, and after. Getchell v. Hill, 21 Minn. 471; Wood v. Barker, 49
ward transferred to and carried on by Mrs. Flagg, ur
un. Mich. 295, 298; Rogers on Expert Testimony, 268, der the control and management of her husband, with 269.
In the present case we think the respondent. The losses thus incurred were the result expert testimony of the physicians and surgeons of stock dealings for these respective parties upon a who were in fact appointed by the court, and who
margin sometimes put up in cash, and in Mrs. Flagg's
case in her own note, which represented her mar. made a personal and professional examination of
gin. the plaintiff's eyes, is entitled to great considera
The $4,000 of future advances were designed and tion, and that the court below erred when it in- intended as a margin for a continuance of the stock structed the jury that such testimony should be speculatiou of Mrs. Flagg to be carried on in her name received and weighed with caution.'"
under the management of her husband with respond. ent, and the advances contemplated by both parties
were such as would cover and make good their losses CONTRACT -“FUTURES" -- LEX LOCI CON
therein, if any.
Respondent's books show that the bond and mort. TRACTUS.
gage were credited to Mrs. Flagg's account for the sum
of $11,563.44, and that account had been charged with NEW JERSEY COURT OF ERRORS AND APPEALS.
the previous losses. It appears further that the specuMARCH TERM, 1884.
lative stocks carried in that account have all been
closed out with the result of leaving a balance in Mrs. FLAGG v. BALDWIN.*
Flagg's favor of $653.93. Since the mortgage entered Contracts for speculations in stocks upon margins, when the
into the account, the effect is that there is due thereon broker and the customer do not contemplate or intend that the sum of $10,909.51, with interest, and its foreclosure the stock purchased or sold shall become or be treated as and the sale of the mortgaged premises must be conthe stock of the customer, but the real transaction is a mere ceded unless some of the defenses are sustained. dealing in the differences between prices—that is, in the The main defense goes to the validity of the bond payment of future profits or losses, as the event may be, and mortgage, and contests them on the ground that are contracts of wager, dependent on a chance or cas- the coutracts out of which they arose were wagering ualty. Such contracts, if made in this State, are unlaw- contracts, and illegal and void, and that the boud and ful, and securities given therefor are void by force of the mortgage securing an indebtedness arising solely from
provisions of "the act to prevent gaming." Rev., p. 458. such cause are tainted with the same illegality, and Such contracts, though made in another State, where they are cannot be enforced.
to be presumed to be lawful and enforceable, will not be In coming to the consideration of the question thus enforced here-at least against residents and citizens of raised, it is obvions that it is important to determine this State-because their enforcement would violate the at what place the contracts contested were made. plain public policy of this State on the subject of gambling For if they are New Jersey contracts, and subject to and betting evinced by the statute above mentioned. In our law, the sole question is whether they are such this respect such contracts are excepted from the rule of contracts as are declared unlawful by the “act to precomity which requires the enforcement by the courts of vent gaming." Rev., p. 458. While if they are conone State of contracts made in another, is valid by the lex tracts of another place it must be prelimiuarily deter. loci contractus.
mined whether they are objectionable by the law of the place of contract; or if not, whether they will still
be enforced by our courts. opinion is reported in Baldwin v. Flagg, 36 N. J.
The evidence seems to leave no room for doubt that Eq. 48. Opinion states the case.
the contracts in question are contracts made and to be A. Q. Keasbey, for appellants.
performed in the State of New York. The transacCortlandt Purker, for respondent.
tions anterior to the execution of the bond and mort.
gage took place wholly within that State. By the bond MAGIE, J. The bill in this case was filed for the
and mortgage the parties averred they resided in that foreclosure of a mortgage made by Jennie M. Flagg and William L. Flagg, her husband (who are the ap
State. The mortgagee did in fact reside there. The pellants), to Abram F. Baldwin (who is the respond
mortgage was acknowledged there. Delivery of the
papers was made, and the remaining transactions took ent) upon lands in this State, to secure the payment
place there. Although the mortgage affected lauds in * S, C., 38 N. J. Eq. 219.
this State, the above stated facts establish, according