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Hon. S. D. Halliday, President Schurman and Pro- the seal of one of the jurors who decided the matter. fessor Hufscut, to which Judge Finch feelingly * The verdict was rendered during the reign responded.
of Christian III of Denmark. The contesting
whose descendants had A father, who has committed the custody of his parties were Erik Bollsen infant child to another person by agreement to be it in their possession until about fifteen years ago, maintained and cared for, which agreement has when Ir. Lindholm secured it from one of Mr. been acted upon by such other person, is held, in Bollsen's descendants — and Mrs. Margaret NilsFletcher v. Hickman (W. Va. [55 L. R. A. 896]), datter, an heiress. In those days all cases of this to be bound by the agreement, unless he can show kind were tried before a jury consisting of four that the change of custody will plainly promote the governors, four attorneys and four counselors. Out
of these twelve men one was selected to act as judge, child's welfare.
and the evidence was taken. After a verdict had The noon intermission is held, in Mitchell-Tranter been decided upon it was written on a piece of Co. v. Ehmet (Ky. (55 L. R. A. 710]), not to sever sheepskin parchment and the seals of the twelve the relation of a servant to his master, so as to pre- men who tried the case were affixed. These seals vent his recovery for an injury resulting from an
were carried in the same manner as the people of tounsafe working place, received while attempting day carry their watch charms, and all men in official during that time, by direction of a superior, to positions had their seals attached to their watch remove broken timbers, which render unsafe the charms that they might be convenient when needed. work of the employes.
- St. Paul Pioneer Press. A railroad company which organizes a company An election of officers by vote of a majority of to construct an extension of its system into another a joint session of both branches of the city council State and through it operate such extension, is under the provisions of a statute, is held, in Schmulheld, in Buie v. Chicago, R. I. & P. R. Co. (Tex. bach v. Speidel (W. Va. (55 L. R. A. 922]), not to (55 L. R. A. 861]), to be properly regarded as doing be invalid because a majority of the members of one business in the latter State, so as to be liable to branch of the council did not vote, and were pressuit there, on causes of action arising out of the ent, not voluntarily, but only because they had been State, by service of process upon the officers of the arrested and compelled to attend under provisions new company.
of a city ordinance, and the presence of the majority A statute permitting commitment to a hospital for of the members of each branch was necessary to the insane upon an application by a relative or friend constitute a quorum. of the alleged insane person, or by any one of cer
A creditor who, after his debtor has made a tain officials, accompanied by a certificate of author- fraudulent and voluntary conveyance of his real ized medical examiners that insanity exists, but estate, but before any other creditor files a bill in without and provision for notice to the alleged in- equity to set aside such conveyance, obtains a judgsane person, is held, In re Lambert (Cal. (55 L. R. ment in a court of law against such debtor, is held, A. 856)), to be void as depriving him of liberty in Foley v. Ruley (W. Va. (55 L. R. A. 916)), to without due process of law.
have a lien, by virtue of his judgment, upon the real The value of insured chattels destroyed at a loca- estate so conveyed, from the date of the judgment, tion to which they were removed with the insurer's superior and prior to that of the creditor assailing consent, is held, in Ohio Farmers' Ins. Co. v. Bur- the deed. get (Ohio (55 L. R. A. 825]), to be recoverable In the habeas corpus proceeding, Lloyd v. Sheriff, notwithstanding their previous removal to another at Steubenville, Circuit Judge Cook sustained the location without such consent, under a policy pro- Beal local option law (95 O. L. 87). The law was viding that it shall become void if any change takes attacked as being a law of a general nature and place in the location of the property unless consent lacking uniform operation, and, therefore, in conin writing is obtained from the company.
flict with article 2, section 26 of the Constitution; Alexander T. Lindholm, of Stillwater, is the also, upon the ground, among others, of invalidity owner of an interesting old relic, dating back to in making no provision for the selection of a jury 1553, which he has mounted on a piece of oak and within the district. The case will undoubtedly be framed, and has hung it in a bank building in St. reported in full.— Ohio Law Bulletin. Paul. It is a verdict rendered by a jury of twelve We have never enforced so strictly our rules high officials in Norway, at Oslo Courthouse, where with regard to admission to the bar as to exclude Christiania now stands, in 1553, and decided the counsel from other States from being admitted by legal ownership of a large estate. At the bottom courtesy to argue to a particular case, but the chief of this novel verdict hang twelve strips of sheep- justice announced at the opening of the Court of skin, to which are attached twelve pieces of bees- Errors, that the attention of the court had been wax about the shape and size of a small gold watch. called to the fact that in the courts of New York These were called seals in the olden days when and Brooklyn their rules, which are the same as this verdict was rendered, and each one contains 'ours, have been construed so strictly as to refuse
this courtesy to lawyers from New Jersey. The complex state of facts was given, and the question chief justice said that the court had brought the ended with “A client comes to you and states the matter to the attention of the judges in New York above case. What would you advise him to do?” and had suggested that the same construction The best answer handed in was: “I would advise should be given to the rules in both States, and had him to come around at 10 o'clock the next morning. intimated that unless the courts of New York should In the meantime I would look it up."— N. Y. 1 imes. adopt our construction, it would be necessary for us to adopt theirs. He said that no reply had been
Former Justice of the Supreme Court Daly and received, although months had elapsed, and that ex-Assistant District Attorney Francis L. Wellman, the court had determined, for the protection of our
counsel for the Metropolitan Street Railway Comown bar, to announce that, so long as the rules of pany, during an interruption of a case in which they New York were so construed in Greater New York
were engaged on opposite sides were discussing the as to exclude New Jersey counsel from arguing
odd names of litigants in different suits. causes there, counsel from New York and Brooklyn
“Take the famous case of Bridges v. Shallcross, would not be permitted to appear in our courts, reported in the Sixth West Virginia Reports, for
instance," said Mr. Wellman. and that the ruling should include the Court of Errors, the Supreme Court and the Court of Chan
* That case was most ordinary,” said ex-Justice cery. This ruling is strictly protective and retalia- Daly. "compared with the truly remarkable case tory, and is expressly limited to the counsel from reported in the Arkansas law reports a few years courts which refuse the courtesy of admission to our
ago. counsel and to the time during which such courtesy tried for stealing five hogs belonging to a Mr. Pig.
'In that case a man by the name of Driver was is refused. If there is any advantage in the continuance of such refusal, it is on the side of the New One of the witnesses was named Hamm, the proseJersey bar, for New York lawyers have been in the cuting attorney's name was Chew, and the counsel
for the defense were Miles & Miles. habit of poaching upon our preserves much more freely than we have in theirs.
“The oddness of the names occasioned much
A similar ruling might well be made in the United States courts in merriment in the court, which was brought to a this district, with respect to the appearance of New
climax when one of the counsel propounded the York lawyers as solicitors and attorneys of record.
following question for the judge: We admit them as a matter of course, if they have
““If Driver drove Pig's hogs for Miles & Miles been admitted counselors of the Supreme
would Hamm be fit to Chew?' Court of the United States, but in New York
“ The court reserved decision."- N. Y. Times. they have a rule, adopted in 1825, that
A conductor on a Broadway car had refused to but attorneys of the Supreme Court of New
take a transfer the other day on the ground that it York shall be admitted to practice as attorneys
was too long after the hour punched. The passenger in that circuit, and no one who is not a resident of New York can be admitted to the bar of that State, was politely told that under the rules he could not and the United States judges refuse to relax the accept the transfer, and that he would have to pay
his fare or leave the car. rule in favor of New Jersey lawyers, even though
“I'll not pay and I'll not leave the car," said the admitted to practice in the Supreme Court of the United States. The result is that New York law
“I'll pay for you then," said the conductor, ringyers file bills in our Circuit Courts every week, while lawyers of New Jersey must retain solicitors ing up the fare. “I'd rather lose five cents than
wrangle with a passenger." in New York, if by chance they wish to obtain an
This would doubless have closed the incident had injunction in a patent case or seek any relief in the
not the irate passenger seen Abe Hummel sitting federal courts in New York.-N. J. Law Journal.
opposite him. To him the irate one appealed to
know if he was right or wrong in refusing to pay Humorous Side of the Law. his fare.
Do you wish my legal advice?” asked Mr. Lawyer - I see that case of yours is on. Jury
Hummel, with a show of gravity ? " drawn yet?
“I do." Lawyer Skinner -- Yes, and it's a splendid one.
“I never give legal advice without a fee.' Lawyer Brief - Above the average in intelligence,
“Well, here's a five dollar bill," said the passenger, eh?
peeling off a bill from a big roll and handing it to Lawyer Skinner – No; way below it.— Philadel- Mr. Hummel, who promptly accepted it. phia Press.
“My advice is — pay your fare or get off the car." That the next best thing to knowing the law is “Is that all?" knowing where to find it was illustrated once when "No," replied Mr. Hunmel. Then, calling the Judge Simeon E. Baldwin, of the Yale Law School, conductor and handing him the bill, he remarked: in an examination on corporations, asked his class “ It is certainly worth that much money to find and a question which was extremely difficult. A certain reward a gentlemanly conductor."- Phila. Times.
The Albany Law Journal. precedents slavishly, but has always thought
and reasoned for himself. His opinions, A Monthly Record of the Law and the Lawyers.
which run through the last forty-five volumes Published by THE ALBANY LAW Journal Company, Albany, N. Y. of the Massachusetts Reports, are models of
Contributions, items of news about courts, judges and lawyers' fine literary style, logical, well reasoned and queries or comments, criticisms on various law questions, addresses often sparkling with wit. We regard the apon legal topics, or discussions on questions of timely interest, are solicited from members of the bar and those interested in legal pointment as in every respect ideal. Justice proceedings.
Holmes will grace as well as strengthen a [All communications intended for the Editor should be addressed bench already noted for its ability. simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions or other business matters sbould be addressed to THE ALBANY LAW JOURNAL COMPANY.] Justice Horace Gray, who leaves the Su
Subscription price, Three Dollars per annum, in advance. Single preme Court bench because of illness and the number, Twenty-five Cents.
infirmities of age, like his successor is a native ALBANY, N. Y., SEPTEMBER, 1902.
of Boston, where he was born in 1828. Grad
uating from Harvard in 1845, at the age of Current Lopics.
sixteen, and later from the Harvard Law
School, he was admitted to the bar in 1851. The announcement from Washington that Three years later he was appointed reporter the President had appointed Oliver Wendell of the decisions of the highest court in MassaHolmes, Jr., chief justice of the Supreme chusetts, the Supreme Judicial, and remained Judicial Court of Massachusetts, to be an asso- in this position for seven years. Three years ciate justice of the United States Supreme later he was appointed an associate justice of Court to fill the vacancy caused by the retire- the court, of which he became chief justice ment of Justice Horace Gray, was not entirely in 1873, gaining a reputation of the first rank a surprise, for it had been known in Wash- as a jurist and in certain departments of jurisington for a long time that the President had prudence. Justice Gray has always been conhad Justice Holmes picked out for the va- spicuously independent in his views, holding cancy. Of course, the nomination must be to what he believed right against all opposiconfirmed by the Senate, and before that is tion. His specialty was will cases, although done it is not likely that Justice Holmes will he participated in the decision of many of the resign his seat on the Massachusetts bench, important issues which came before the court. but it is regarded as certain that there will Justice Gray was with the majority of the be no failure to confirm so excellent a choice. court in the decision of the Income Tax cases Justice Holmes has been a member of the and the Insular cases. Another important highest court in the Bay State for a score of cause of recent date was that growing out of years, and since 1898 its chief. Previous to the Spanish-American war, in which he dehis elevation to the bench he had been a prac- cided against the right of the government to ticing attorney of distinction in Boston, a scize certain fishing smacks, the property of soldier, scholar, legal writer and scientist. He Cubans, which the United States authorities was born in Boston on March 8, 1841, the believed were giving aid and assistance to the son of the distinguished author, scientist and enemy. His service to the country has been philosopher, Oliver Wendell Holmes, the long, faithful and exceedingly valuable. famous “ Autocrat of the Breakfast Table." Justice Holmes's reputation as a jurist is as Another interesting negligence case wide as the boundaries of the country. Pos- recently before the courts of this State. From sessed of strong powers of analysis, his a statement of the facts, it appears that James studies have been unremitting and varied, and Kelly, while standing, carly one evening near he is in the broadest sense a scholar. Few men the middle of one of the streets of the Borough will go to the highest court in the land better of Queens, waiting for a trolley car, was equipped than Justice Holmes. He has never knocked down and badly injured by a runadopted the easy course of following rules and away horse and wagon. There was no driver
VOL. 64. — No. 9.
on the wagon, and Albert Adelmann, the when a train approaches a crossing,” says Jusowner of the runaway, who was sued by the in- tice Fursman, for the court, is to warn jured man, contended, on his appeal to the persons who are about to cross of the danger Second Appellate Division from a judgment of doing so. The company is not required against him, that no negligence on his part to inform persons who are so far distant as could be inferred from the accident, happening ninety-five feet from the crossing, seated in a the way it did. The Court of Appeals, how- wagon, the horse attached to which is standever, decides that the rule is otherwise, and ing quietly in a place of absolute safety, that cites a case where damages were allowed a a train is about to run over the crossing, lest plaintiff who was injured by an unattended upon its failure to do so the horse may berunaway horse and wagon while crossing a come frightened by the noise of the train and city street. In another case which is referred run away. If such warning must be given to by Justice Bartlett, in giving the court's under such circumstances, then it must be opinion, it was said: “It is negligence to al given to all persons, however distant, and low horses to be in the public street unat- whether upon a highway which crosses the tended; and where they are so found the railroad or not, provided only they are near natural inference is that it was permitted, and enough to hear the bell or whistle, and if in it is not incumbent upon the party claiming such case it is omitted, and a horse is frightdamage to prove the negative of such permis- ened by the noise of the train and runs away, sion. The burden is upon the party seeking and the driver is injured, the company is to avoid the results arising from such a state liable.” Justice Smith dissented, saying that of facts to show that he has used all proper the fright of the horse and the consequent means to prevent the same and that he was injury was the result of the approach of the without fault: “It was also contended that train, and that approach was made without the plaintiff was guilty of contributory negli- the warning which the law requires. gence in being in the street. Justice Bartlett says it was entirely proper for Kelly to go out into the street to see if a car was coming, as
A case of decided interest to brokers and he said he did, and it was not negligence as others interested in share transactions is that a matter of law for him to fail to see the
of George A. Treadwell v. Senator William runaway horse in the twilight.
A. Clark. The facts briefly stated are these:
ago to recover 100 shares of United Verde The New York Supreme Court, Third Ap- Copper Co. stock, which belonged to him and pellate Division, has decided that it is not which Senator Clark had purchased. Profesnegligence on the part of a railroad in fright-sor Treadwell had pledged these shares in ening a horse ninety-five feet away. It London in 1888 for a debt. The man with appears that while Walter L. Lampman was whom they were pledged, or his agent, left sitting in his wagon, ninety-five feet from a London and unlawfully took away the stock New York Central Railroad crossing, an ap- to Arizona; sold it to another man, and that proaching train frightened his horse so that it man sold it to Senator Clark. Senator Clark ran towards the crossing and was struck by had knowledge of the fact that the stock had the train. Mr. Lampman was badly injured been pledged and that the debt was unpaid. and sued the road for damages, claiming that He nevertheless retained the stock. The stock it was negligent because the train gave no in 1888 was worth $50 to $100. When the warning of its approach by ringing a bell or suit was tried in 1900 it was worth about blowing a whistle. A judgment of the Su- $30,000 to $35,000. The case was tried before preme Court, holding that the railroad com- Judge McLean in the Supreme Court, New pany owed no duty to the plaintiff under the 'York county, and Professor Treadwell was circumstances, has been affirmed by the Third defeated, the court holding that too long a Appellate Division. “The purpose and ob- time had elapsed, and that any remedy Project of blowing a whistle or ringing a bell fessor Treadwell had should have been prosecuted at law for damages. Professor Tread-lightful and inspiring intellectual exercises to be well promptly appealed, and at the May term, either a general or a particular aspect, is invariably
met in its perusal, a consideration of the jury, in 1902, the Appellate Court consisting of Judges a matter of interest. O'Brien, Ingraham, McLaughlin, Hatch and In nothing, in no one way, are the workings and Laughlin, reversed the judgment and ordered the subtle influences which this body exerts so a new trial. The opinion was written by plainly perceptible as in the evolution of our system Judge O'Brien, who thoroughly reviewed the of evidence. To an extent, judges sitting in a court
of equity are governed by the same rules of evidence facts. He held that Professor Treadwell was which are followed by the common law judges in entitled to equitable relief, especially as Sena- the conduct of a case, and yet, the laxity, speaking tor Clark had notice of his rights, and further in a comparative sense, which actually exists on the held that the statute of limitation was no bar. part of the former in the reception of evidence, is
a significant indication of the potent factor the jury The court said that the pledgee of the stock
has been in the past, and will continue to be in the had no right to take it away from England, future, in the formation, expansion and contraction and inasmuch as there were numerous parties, of our law of evidence. I style the jury a potent the Court of Equity had power to adjudge factor in this regard; in reality it has been the shapall of their rights, especially as the action was ing force that has controlled the manner and extent one to redeem a pledge and to repay a debt, of the growth of our rules of evidence. The distincand to get the stock which had a special value. forums mentioned is based on a reason both logical
tion that has been drawn between judges of the Then, too, inasmuch as the company had be and convincing. The equity judge can safely be come dissolved, it was necessary to have equity less stringent in his rulings on questions of evidence, intervene to adjudge Professor Treadwell's because he can depend upon his own powers of perrights in the assets of the dissolved company. when he is forming his conclusion, discard entirely
ception and discrimination and will, ultimately, The opinion makes the distinction between
or give such weight to each piece of evidence as in promissory notes, where good title may be its nature requires that treatment. Could a law acquired, although they were wrongfully judge be just as lax and depend upon a jury doing negotiated, and shares of stock which are in the same? Can he know or control the influences
of a character akin to sympathy and sentiment no sense negotiable securities.
which experience has shown the jury has a tendency The court holds that Professor Treadwell's
to follow. The answering of these questions negarights accrued when Senator Clark refused to tively by the courts of common law, sometimes hurdeliver up the stock in 1893, and that the ten riedly, in busy administration of practical affairs, years' statute of limitation was the only one and again, by courts of varying individual temperato be considered. In fact the court said prob- stands at present, a well working and practical sys
ment and views, has left the law of evidence, as it ably the statute of limitation did not commence tem on the whole, though illogical in many particuto run until the action itself was commenced lars. Care! for the jury is an untrained body, has in 1899. By reason of this decision, it would been the constant watch-word of the common law appear that when the new trial takes place tribunals
, not uttered in a disparaging sense, but in next fall, Senator Clark will have to deliver recognition of the evident fact that a close and
analytical, mind is not to be expected of each of up the 100 shares of stock and account for all twelve men, drawn from all walks of life, and not dividends which he has received upon them especially trained for the position they are called for the last nine years.
Now, while the presence of the jury and the conTHE GROWTH OF THE HEARSAY RULE sequent cause and method of the growth of the
WITH A TABULAR EXPOSITION OF Its adjective law we are considering, has as indelibly EXCEPTIONS.
impressed its stamp upon the system of evidence at
the common law, as causation can ever be traced By " Roger De COVERLY."
into effect, yet in one particular, in a study of the
broad rule excluding hearsay evidence, is its imprint To those students of the common law who gaze
strikingly apparent (1). Relevancy affords no perupon that body of the jurisprudence with the awe (1) Greenleaf, in his Treatise on Evidence, vol. 1, and admiration which universally fills all beholders sec. 98, says: “ The first degree of moral evidence, and continue while engaged in life's busy pursuits and that which is most satisfactory to the mind, is and the onerous duties of their profession, to delve dence of the highest nature.
afforded by our own senses; this being direct evi
Where this cannot be into the recesses of its glory and revel in the de- had, as is generally the case in the proof of facts
upon the fill.