Gambar halaman
PDF
ePub

his majesty's pleasure.' This high handed effort privy council, July 26, 1765, allowing appeals to to subvert the judiciary of the colony to the will the governor and council from the verdicts of juries of the king met with quick and determined oppo- on questions of fact. On the 9th of October this sition. The assembly refused to grant any salary order was laid before the council by Colden, and to the Chief Judge, or to any of the justices unless on the 15th a writ was issued to the Supreme Court. their commissions were issued during good be- On the 12th of November the Chief Justice made havior. The council exhausted its power of per- a return that the justices of the Supreme Court suasion in an effort to induce the assembly to grant found it impossible (as the law knew of no appeal salaries to the judges during the terms of their com- from a verdict) to comply with the command. On missions, but without avail. The justices presented the 15th of December the general assembly adopted a memorial to the lieutenant governor reciting that a resolution thanking the Supreme Court and the the commissions formerly granted to them by the council, sustaining their action, condemning the late governor were during good behavior, and illegal proceedings, affirming the right of trial by declined to act unless the new commissions con- jury, and declaring that an appeal from the verdict formed to the established custom. Pratt alone of a jury is subversive of that right, and that the served, and was compelled to do so at the expense crown cannot legally constitute a court to take cogof his private fortune for a period of three years nizance of any such appeal. or more, when it was found necessary to divert “A continued effort on the part of the crown some portion of the quit rents from the revenues to subvert the judiciary in connection with other to compensate him for his services. Subsequently abuses, brought forth the Declaration of Indethe assembly made an appropriation for the pay-pendence, in which we are told of George III: ment of salaries upon condition that the com- 'He has obstructed the administration of justice missions issue during good behavior; and the Lords by refusing inis ascent to laws for establishing juof Trade on the eleventh of June censured the diciary powers; he has made judges dependent on lieutenant governor for approving of the act, tell- his will alone for the tenure of their offices, and the ing him that no personal considerations ought to annount and payment of their salaries, and it was have induced you to acquiesce in such an unpre- the effort to establish this system of government cedented and unjust attack upon the authority of with no higher law than the will of the Monarch, the crown.' The subsequent death of Pratt put an which gave justification and majestic force to the end to the controversy, and strengthened the foun- language of Thomas Paine in ‘The Crisis,’ ‘These dations on which our present judiciary is builded. are the times that try men's souls. The summer

“ Perhaps one of the strongest examples of the soldier and the sunshine patriot will in this crisis, spirit of the judiciary, which it should ever be our shrink from the service of his country; but he that high purpose to emulate and maintain, at the ex- stands it now, deserves the love and thanks of man pense of every personal consideration, is to be and woman.' found in our colonial period, and at about the date “How mean and spiritless, in contemplation of of which we have just been speaking. One Thomas the times in which our judiciary was born, when Forfay, in 1764, obtained a judgment in a case of opposition to the crown was an invitation to the assault and battery against Waddel Cunningham, hangman, must appear that man, who, vested with and a motion for a new trial was denied. Robert any part of the judicial powers of the State, would Ross Waddel, agent for defendant, prayed for an prostitute them to his own personal or partisan appeal from the verdict and judgment to the lieu-ends. He has no place in the judiciary who is not tenant governor and council, which was denied on prepared to follow the law, and to administer it the ground that no such appeal could be had. without fear or favor, regardless of consequences Colden thereupon directed the Supreme Court to to himself; for in this way only may he vindicate forbear proceedings until the cause and merits were the oath of office which he takes and fulfill every heard by the lieutenant governor and council. obligation of honest manhood. It is one of the Chief Justice Horsemanden stated to the lieutenant highest and most sacred of public trusts; it reaches governor and council on the 14th day of November, every avenue and every relation of life — is all 1764, the reasons why the Supreme Court made no powerful to prevent evils; powerless to promote return as commanded, and on the nineteenth these them, for it is itself the creature of law, and cannot reasons were presented in writing, the other justices ! go outside of its sphere. subsequently following the example and giving their "• The executive,' says Hamilton, in the Fedopinions to the same effect. The attorney general: eralist (78), ‘not only dispenses the honors, but held that the council could only correct errors; the holds the sword of the community. The Legislacouncil concurred in this view of its powers. Not ture not only commands the purse, but prescribes withstanding this, the king issued order in 'the rules by which the duties and rights of every

an

SERVING THE WRIT.

citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of society, and can take no active resolution whatever. It may be truly said to have neither force nor will, but merely judgment, and must ultimately depend upon the aid of the executive arm even for the efficiency of its judgments.

Though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the Legislature and the executive. For I agree that “there is no liberty, if the power of judging be not separated from the legislative and executive powers."

“With this view of the judiciary, and for the purpose of stimulating the spirit of independence, the State of New York has tried many experiments; it has increased the length of terms, has made constitutional provisions to prevent legislative interference with the compensation of judges, and has sought all means to preserve to the people the power of selecting and controlling, without a too immediate responsibility to the electorate, but all of these expedients must prove futile unless we continue to have a sustaining public sentiment; unless we continue to rear an edifice to justice in the hearts of the people, and to develop men who have the courage of their convictions and a conscientious desire to discharge all public trusts in a spirit of fidelity and honor. Constitutions, statutes, judicial opinions are worthless unless we have mien back of them, men who are ready and willing to make sacrifices, if need be, to the cause of justice and right as formulated and promulgated in the law. The judiciary is helpless; it is, to quote the language of Judge Story, 'only set in motion when applied to, but, when thus brought into action, must proceed with competent power, if required to correct the error or subdue the oppression of the other branches of the government.' But to exercise this power it must be supported by a sound public sentiment, not in reierence to the particular question, but in relation to the judiciary in general, and this can be maintained only by the integrity of the men who are chosen to preside in our courts, and the healthful education which you, gentlemen of the bar, are peculiarly in a position to disseminate throughout the community. The judiciary must come from the bar, and your conduct as well as that of the court, is helping to form the popular estimate upon which must depend the continued confidence in the judiciary, and that moral support, without which there can be little requirement nor much use for judicial independence.”

She was a widow, graceful, young,

And oh, so very neat,
With swan-like neck and rosy lips,

And dainty little feet.
An attachment issued from the court

She'd failed to pay her rent
And to her lodgings, with the writ,

The constable was sent.
The constable — like all his ilk -

Was a man of tender heart;
Who strove as gently as he could

His business to impart.
He bowed and stammered ::“Madain, dear,

An attachment I've for you;
It grieves me sore to tell you so,

But ne'er the less 'tis true."
“Pray do not grieve," the widow cried,

" 'Tis very fortunate; For this same passion you avow

I do reciprocate!” “Buit, madam, dear,” he stammered forthi,

“ You do not understand; You must proceed to court forthwith,

For such is the command.” “But, my dear sir, I much prefer

That you would take the lead,
For women are so very shy,

Oh, yes, they are, indeed.
I will be frank; I'll not refuse

If you the courting do,
But, pray, do not exact from me

The part which falls to you."

Am ment sat upon his brow,

He gasped to catch his breath; And never will he paler grow,

E'en in the hour of death. “Dear madam, you mistake my words,

This paper will explain.
You must, forthwith, accompany me

To Squire David Blaine."
She threw her arms about his neck,

And seemed almost to faint,
And on the collar of his coat

Left copious streaks of paint; And clinging there, like ivy vine

About the sturdy oak, 'Twas full a moment ere again

Her voice the silence broke.

“How could you be so very Lold

As to engage the Squire,
And even get the license, too,

Without knowing my desire."
With giant strength, he tore away

And ran like a gazelle,
And swore he'd never serve that writ,

No matter what befell.
-Beecher W. Waltermeier, in Ohio Weekly Bulletin.

ASSETS.

Accrued Interest "Receivable

Cash on Hand and in Banks

ram.

THE ALBANY TRUST COMPANY. do whatever it is by law authorized to do. The

company is officered and managed by wide-awake, The Albany Trust Company, whose official an- thoroughly competent and always courteous gentlenouncement appears in another part of this issue men, with whom it is a pleasure to do business. of the ALABANY LAW JOURNAL, presents an example of growth and development which has few parallels.

A HANDSOME MEMORIAL. Commencing business on May 1, 1900, it has within that short time assumed a commanding position The law department of the University of Pennsylamong the solid financial institutions of the State vania has just published a handsome volume dewhich any company of a quarter century's growth signed to serve as a memorial of the dedication of might well envy. Its comparative statement up to its new building two years ago. The book conMarch 31, 1902, covering a period of twelve months, tains 250 printed pages, 25 full-page half tones, makes the following remarkable showing:

and a score of line-cut illustrations. It is a comMarch 31, 1901. March 31, 1902 plete account of the proceedings of February 21-22, Investments ..

$367,442 83 $1,499,218 25

1900, and contains all the addresses made on that Loans, Time and Demand..

1,373,390 53 1,848,014 85
12,849 05

32,463 91

occasion in full, together with a complete history Furniture, Revenue, etc......

2,106 26

69 17 of the law department. The work is printed on 224,925 75 1,128,922 87

regal antique paper, with wide 'margins, rough $1,980,714 42 $4,508,689 05 edges and gilt top, and is well bound in blue buckLIABILITIES.

The entire edition is limited to 550 copies, Capital

$200,000 00 $200,000 00 only 170 of which will be sold at cost to the Law Surplus...

100,000 00 100,000 00 Undivided Profits

School Alumni and members of the Bar who sub

12,550 94 *69,837 04 Deposits ....

1,660,896 49 4,119,083 03' scribed to the Memorial Dinner. Each book is Accrued Interest “ Payable".

7.266 99 19,768 98 numbered. The price has been fixed at $3.00; or $1,980,714 42 $4,508.689 05 in half-morocco, $3.50. The books will be deliv

ered in the order of the receipt of subscriptions • Dividends and taxes paid.

until the supply is exhausted, after which all subTotal Increase for Year $2,527,974.63.

scriptions will be returned. It would be difficult to point to a similar case of growth within an equal period of time. The 'THE NATURE OF THE RAILWAY MOVEAlbany Trust Company has taken its place among

MENT. the solid financial institutions, almost at a bound, and though its rise has been remarkable, that growth Whatever the legal view might be, the people of is but an indication of what the future will show, the country have not been accustomed to regard for the increase of business is still going on at a the movement for the amalgamation of railways marvelous rate, some days showing as high as a into large systems as identical with the movement score of new depositors added to its books. The for creating monopolistic manufacturing corporagrowth of the company has compelled it to seek tions. The transportation business tends naturally new and larger quarters, and with this end in view, toward monopoly. Moreover, by common law and the splendid property on State street and Broadway, by innumerable statutes, the carrying business has known as the " Museum Corner,” has been pur- been recognized and guarded as quasi-public and chased. Contracts have been let for a magnificent subject to government regulation control. "sky-scraper” which, in the course of the next Speaking in general, the consolidation of railways twelve months, will rise on this site.

in the United States has been regarded by most It is well for lawyers to remember that the Albany people as amply justified in the results. The larger Trust Company acts as depository for State, county, the system, as a rule, the more scientific has been city, court and trust funds, and is authorized reserve the management, and the more completely have the depository for State banks. It transacts all business variable and speculative factors been eliminated. At connected with the management of estates, and is one period the railways of the United States were authorized by law to act as executor, administrator, arrogant in their antagonism to public interest, trustee, guardian, receiver, committee, assignee, treacherous in their methods of competition with trustee under mortgage, register of stock, etc., etc. one another, and habitually criminal in the stealtlıy It does not, however, draw wills free of cost, as has system of private favors and rebates, by means of been supposed in some quarters. Attorneys in which some men were advanced to great fortunes. charge of estates, etc., can still act in that capacity while other men were, in the business sense, marked while calling upon the Albany Trust Company to for assassination. We have, in the main, lived

or

through that period of the dominance of railway cases in 3 Am. & Eng. Enc. Law, 2d ed., 334, as wreckers. The Western States regained their char- follows: 'An attorney is under no actual incapacity, ter of freedom from the new tyranny in the so- however, to deal with or purchase from his client; called “granger" decisions and analogous victories; all that can be required is that there shall be no and the full right of public regulation, extending abuse of the confidence reposed in him, no imposito the fixing of passenger and freight rates, as well tion or undue influence practiced, nor any unconas the control of methods of railway operation, scionable advantage taken by him of the client. As has long ago been settled beyond dispute. Under has been stated, in a transaction of this character the State railroad commissions and the Interstate the burden is upon the attorney to show its perfect Commerce Commission, a large measure of pub- fairness; but if the court is satisfied that the party licity has been secured as respects railway finance sustaining the relation of client performed the act and the carrying on of the railway business, and or entered into the transaction voluntarily, delibthe methods through which the public interest can erately and advisedly, knowing its nature and effect, assert itself and protect itself have come to be and that no concealment or undue means were used tolerably well worked out. Moreover, there is a to secure his consent to what was done, the transgrowing and effective pressure exerted by the in action will be upheld.' If the client is competent vesting public, without whose aid great feats of and capable, and with full knowledge of the transfinancial organization cannot be accomplished, in action he proposes to settle with his attorney, acts its demand for frankness as to the facts of corpo- deliberately and voluntarily settles his account for rate administration.-From "The Progress of the services with his attorney, there would seem to be World,” in the American Monthly Review of Re- no indispensable necessity for independent advice views for April.

on the subject. This would certainly be true, when

shown that there had been no fraud, deceit or unHOW THE CASE WAS LOST.

conscionable advantage practiced by the attorney on

the client, which would rebut the presumption of Oh, he was a deep young witness man

a violation of the confidence reposed, as much so All in this case of ours,

as independent advice would do. All that is necesAnd what an able liar can

sary is for the client to be placed in such a position He did with all his powers.

as would enable him to form an entirely free and That black was white, that wrong was right

unfettered judgment, independent altogether of any He swore with might and main;

sort of control.' If this does not appear, it would He saw what happened out of sight,

be necessary to show that the client had independAnd told it o'er again.

ent advice, in order to remove the presumption of -Robert Truslow.

unfairness. But when this presumption is otherwise removed, a rule that would, in addition, require

independent advice, would seem to be arbitrary and Notes of Cases.

unnecessary. “It is only when confidence is abused

that courts of conscience interfere,' and this essen‘Attorney and Client - Settlement for Services – tial fact in such cases may be shown by any compeUndue Influence. - In the case of Kidd v. Williams, tent evidence. Independent advice is simply a decided by the Supreme Court of Alabama in De- means of proof to establish the fairness of the cember, 1901 (10 So., 458), it was held that a settle settlement, and that it was voluntarily entered into, ment made between an attorney and client for ser- free from undue influence. This is made clear unvices of the former is not invalid because the client der the decisions of this court (Moses v. Noble, 86 did not have independent competent advice, he be- Ala. 408, 5. South. 181; Noble's Adm'r v. Moses, ing a capable and wealthy business man of unim- 81 Ala. 530, 1 South. 217, 60 Am. Rep. 175).” paired mind, and the settlement being after the In contrast with this very sound and just decision performance of the services, and on terms suggested was one by the same court in McQueen v. Wilson by him, with full understanding of the matters. (31 So: 94), in which it seems to have been held In this decision some stress was laid upon the fact, that the mere fact that a rector being a beneficiary as such fact actually existed, that the settlement of the will of one of his parishioners, participated was "in respect to services of the attorney already in its preparation by making suggestions, raised a performed, and not as to business then being prose- presumption of law that the will was made under cuted or attended to by the attorney for his client." | undue influence. This decision seems not upheld, The court, however, used the following language: but in reality opposed by the cited earlier decision

“The rule, even when the relation exists, well of the Supreme Court of Alabama, in 'Bancroft v. expressed – sustained, apparently, by numerous ! Otis (91 Ala. 279).

The general course of recent decisions on the that the vendor to Corbin acquired no title, but that question of undue influence illustrates simply the involved an attack upon the judgment rendered in application of principles of common sense to vary- 1888 by the Supreme Court, which certainly had ing conditions of fact. With regard to alleged jurisdiction of the persons and the estate of Bennett, undue influence by laymen upon laymen, the weight Sr., and which judgment was not void on its face, of modern authority is strongly against indulging and in which no fraud was shown. (See Black on in technical presumptions and in favor of sifting the Judgments, sec. 245 et seq.) facts and determining each case on its peculiar “If alter the rendition of a judgment of a court merits. In the case of an attorney the attitude of of competent jurisdiction (judgment of partition the courts is necessarily somewhat different. There and sale in Bennett v. Bell), and after the period the relation itself, very properly, raises something has elapsed when it becomes irreversible for error, of a presumption of unfair influence which the at- I and that court may in another suit (Corbin v. torney is required to rebut. But, as shown by the Baker) inquire into the irregularities or errors in recent decision of the Supreme Court of Alabama such judgment, there would be no end to litigation in Kidd v. Williams (supra) and the above extract and no fixed established rights." from the American and English Encyclopedia of

ANDERSON PRICE, Law, the attorney may support his burden by any

25 Broad Street. evidence that is intrinsically satisfactory. The neces- NEW YORK, April 10, 1902. sity of showing that a client took independent advice is not absolute, although in cases as to which doubt may arise the practice of insisting upon independent

New Bo oks and New Edition s. advice has much to commend it.- New York Law Journal.

Cyclopedia of Law and Procedure. Edited by Wil

liam Mack and Howard P. Nash. American Law

Book Company, 76 William street, New York Correspondence.

city. Vol. 3, “ Appeal and Error," “ Assignee."

We are in receipt of the third volume of the “THE TRUSTEE's Right TO PURCHASE THE TRUST

Cyclopedia of Law and Procedure, and, in view of Estate."

certain strictures of a rival publishing house, have

given it a more than cursory examination. We are To the Editor of the Albany Law Journal:

pleased that a careful analysis of its contents conThere is a marked distinction between the cases firms us in the view, heretofore expressed, that this of Scholle v. Scholle (101 N. Y. 167) and Corbin Cyclopedia is a carefully compiled and ably edited v. Baker (167 N. Y. 128), which is not noted by compendium of the law. Mr.Cutting in his consideration of the two cases The volume before us contains the concluding in your February number.

sections of the well-considered article upon “Appeal The Scholle suit was one in partition. William and Error,” edited by Walter Clark, of the Supreme was a tenant in common with Jacob and Abraham, bench of North Carolina. In view of the fact that who died, leaving a will, appointing William a trus- there has not heretofore been an attempt to cover tee and executor. He did not qualify, Jacob did, fully the law upon this all-important subject, we and the action was to compel them to complete have devoted more time to a critical examination their purchases, which they sought to be relieved of this article than to others in the volume; and from, on the ground that, as they were trustees, they | we feel no hesitancy in recommending the work, could not acquire a good title, and the cestuis united stamped as it is with the approval of so eminent in compelling them to take.

a jurist, to the profession at large. One highly Corbin v. Baker was a collateral attack on the commendatory feature of this publication is the right of trustees to acquire trust property | reference to the different sections of the Century by purchase under judgment of partition. Ben- Digest, pointing out where a parallel treatment of nett, Sr., died in 1872, leaving will - two children

different sections of the law may be found and each taking one-half, one share held in trust by treated from the digest point of view. The Century owner of other half under will. In 1881 he brought Digest purports to give an elaborate abstract of partition, and in 1888 he purchased, giving back a every reported decision in the United States, and mortgage for the half interest of the trust estate; it often happens that lawyers have access to these he then conveyed to Corbin, who held until 1896, abstracts of cases, where the fully reported decisions when he died. Corbin's executors sought to sell are not accessible. in 1900, and as regards all except the cestuis, he Of the other subjects treated in this volume, certainly had a good title. The objection is made ! « Arbitration and Award” is probably the most

« SebelumnyaLanjutkan »