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Party," Evolution and the Present Age," " John and the granting of a new trial, where the counsel for
Milton," The Death of John Tyndall,” Koschei the accused objects to such remarks and moves the
the Deathless," “ The Makings of a New England court to declare a mistrial.
Town,” “Reminiscences of Huxley,” “The Fall of
French Power in America," and Connecticut and

In the absence of anything to show ill-will or the Federal Constitution.”

malice, it is held, in Cherry v. Des Moines Leader

(Ia. [54 L. R. A., 855]), that a verdict must be The Macmillan company contradicts the state- directed for defendant in an action for the publicaments recently made in regard to Charles Major's tion in a newspaper of an article ridiculing, in “ Dorothy Vernon of Haddon Hall.” There has exaggerated and uncomplimentary terms, a public been much curiosity to know what induced Mr. entertainment which is not only childish, but ridicuMajor to change his publishers after the Bowen- lous in the extreme. Merrill Conipany had done so much for his “When Knighthood Was in Flower.” It was said that the

The retirement of Justice Gray and the appointMacmillan Company guaranteed a royalty on 100,000 ment of Judge Holmes to the bench of the Supreme copies, and it was added that in regard to the size Court, will cause a rearrangement of the positions of the royalty, that people put it all the way " from occupied by the members of the court when it meets

in October. twelve and a half to twenty-five per cent., but Mr.

The associate justices are seated acMajor's friends say he was guaranteed $5,000.” The cording to seniority, alternately on the right and Macmillans say that not one of these statements is left of the chief justice. Following this custom, correct.

when the court convenes, the present associate justices will move up one seat with the exception

of Justice Harlan, who, as senior member of the Legal Botes.

court, occupies the first seat to the right of Chief

Justice Fuller, Judge Holmes will occupy the seat The fact that all places where intoxicating liquors to the extreme left of the chief justice. As now are sold are declared by statute to nuisances is constituted, the court will sit in the following order: held, in State v. Stark (Kan. (54 L. R. A., 910]), To the right of the chief justice: Justices Harlan, not to justify their abatement by any person or Brown, White and McKenna. To the left of the persons without process of law.

chief justice: Justices Brewer, Shiras, Peckham

and Holmes. An action by a father to recover damages for the seduction of his daughter is held, in Hutcherson A tentative program for the International Conv. Durden (Ga. (54 L. R. A., 811]), to be barred gress of Lawyers and Jurists at the World's Fair by the Statute of Limitations unless brought within to be held in St. Louis, 1903 or 1904, includes among two years from the time the right of action accrued. its proposed lectures the most eminent expounders

Libelous words in a pleading, which are entirely of the law in every nation of the first grade. foreign to the issues, and not pertinent to the sub- The congress will be held during the month of ject of the controversy, are held, in Grant v. Hayne October. The first order of business will be the (La. [54 L. R. A., 930]), not to be within the rule organization by the election of the presiding officer, protecting averments in judicial proceedings as

a secretary and the making of a provision for the privileged.

permanent preservation of the labors of the congress.

Speakers and the subjects assigned to them preA foreman of water supply of a railroad, whose sent this remarkable array: Sir Richard Webster. duty requires him to be carried from place to place Lord Chief Justice of England, on “ The Angloalong the road, is held, in Louisville & N. R. Co. Saxon System of Law; Its Present Condition and v. Stuber (C. C. A. 6th C. (54 L. R. A., 696]), when Administration ;” Melville W. Fuller, chief justice riding on a detached engine to a place where ma- of the United States, * The Anglo-Saxon System chinery needs repairing, to be a fellow servant of of Law, and Its Administration in the United the engineer.

States; ” and in the following order these speakers An assault and battery inflicted by a station agent

and subjects: and another upon a third person is held, in Lynch

The procureur d'Etat, on “The Civil Law;" Its Progv. Florida Cent. & P. R. Co. (Ga. [54 L. R. a., ress and Its Present Condition as Modified by the Code 810]), not to render the railroad company liable for Napoleon ; " James Bryce, M. P., “ The Adequateness damages, when it appears that the difficulty arose

of the Civil Law to Meet Modern Social Conditions out of a personal quarrel and that the agent was

as Compared with the Anglo-Saxon Systems of acting upon his individual responsibility.

Jurisprudence;” by the chief law officer of the Rus

sian Empire, “The System of Civil and Criminal Remarks of the solicitor-general in a criminal Law in Use in the Empire of Russia ; Its Origin, Deproceeding calculated to prejudice the jury, and not velopment and Distinctive Characteristics; ” by the authorized by the evidence or any fair deduction chief law officer of Spain, “ The Spanish Law; Its therefrom, are held, in Ivey v. State (Ga. (54 L. Origin, Development and Present Status ;” by the R. A., 959)), to require the reversal of the judgment' chief law officer of Italy, “The Italian Law; Its


Origin, Development and Present Status; ” by the you could have managed it in an hour or so," he chief law officer of Austria, “ The Austrian Law;” said. “Well, no doubt I could," retorted the motorby the chief law officer of Germany, “The German ist, but the other day you fined me for fast driving." Law;” by the chief law officer of Switzerland, “The Law of Switzerland ; ” by the chief law officer of

A Massachusetts jury reported that it would be Sweden, “ The Existing Systems of Law in Norway, impossible for them to reach an agreement.

The Sweden and Denmark; ” by Wu-Ting-Fang, “ The court

was displeased, and lectured them for their Chinese Law; by Marquis Ito, “ The Law of failure to agree. “Why, your honor," exclaimed the Japan; by Attorney-General Sir Richard Hart, new juryman, “how in the world do you expect the * The System and Administration of Law in India members of the jury to agree when the lawyers in Under British Control ;” by Honorable William H. the case can't agree themselves?" Taft, civil governor of the Philippine Islands, “A General View of Systems of Laws in Oriental Coun

A case was being tried in a county court. A horse tries; Their Differences in Theory from the Systems had been stolen from a field, and the evidence all of Western Europe, with Suggestions as to Their pointed to a certain doubtful character of the neighPossible Harmonization ;” by the attorney-general of borhood as the culprit. Though his guilt seemed Canada, “ Anglo-Saxon Jurisprudence as Modified clear he had found a lawyer to undertake his de

fense. in Canada ; " by the attorney-general of Australia,

At the trial the defendant's counsel “Anglo-Saxon Jurisprudence as Modified in Aus- pended his energy in trying to confuse and frighten tralia;

by Joseph H. Choate, ambassador to Great the opposing witnesses, especially a farmer whose Britain, “Inteệnational Law; Its Inherent Defects testimony was particularly damaging. The lawyer

— Means Looking Toward some Method of En- kept up a fire of questions, asking many foolish forcement ; by Sir F. Pollock, Bart., “Systems of ones, and repeating himself again and again in the Ancient Law;" by James C. Carter, of New York, I hope of decoying the witness into a contradiction. “Universal System of Law Applicable to all Civil

“ You say," the lawyer went on, "that you can ized Nations, the Possibility of Its Development, swear to having seen the man drive a horse past and First Steps To Be Taken in That Direction.” your farm on the day in question ?"

"I can,” replied the witness wearily, for he had already answered the question a dozen times.

What time was this?” Humorous Side of the Law.

“I told you it was about the middle of the

forenoon." One of the best known of our Circuit Court judges

“But I don't want any ‘abouts' or 'middles. I had an enemy, a lawyer who had once been his want you to tell the jury exactly the time.” unsuccessful opponent in politics, in one of the towns

“Why," said the farmer, “I don't always carry on his round, and was generally subjected to some

a gold watch with me when I m digging potatoes.” affront when he reached there, says an exchange.

But you have a clock in the house, haven't The lawyer took so little pains to conceal his con- you?” tempt that one of the judge's friends was moved to

Yes." ask:

"Well, what time was it by that? ” “Why don't you squelch B- - ? He neds it." "Why, by that clock it was just nineteen minutes

The judge laid knife and fork across his plate, past ten.” folded his hands, and, seemingly apropos of noth

“ You were in the field all the morning," went on ing at all, said:

the lawyer, smiling suggestively. "Up in my home town there's a widow with an

“I was." ugly yaller dog that, whenever there is moonlight,

“ How far from the house is this field ? " sits on her stoop and howls until the town can't

“ About half a mile." sleep, and generally keeps it up till daylight.” " You swear, do you, that by the clock in your

He then resumed his dinner. The friend looked house it was just nineteen minutes past ten?” at him in amazement for a moment, and then

“I do." inquired:

The lawyer paused and looked triumphantly at “Well, what of it?”

the jury. At last he had entrapped the witness into "Well," said the judge, slowly, “the moon keeps a contradictory statement that would greatly right on."

weaken his evidence.

The farmer leisurely picked up his hat and started A good story is told of a London magistrate who to leave the witness stand. Then, turning slowly, had to make a hurried journey to a town twenty- he added : four miles away.

As there was no suitable train, “I ought, perhaps, to say that too much reliance he went to a motor car agency, and inquired how should not be placed on that clock, as it got out of long it would take to convey him to his destination gear about six months ago, and it has been nineteen by automobile. “Two hours and a half," was the minutes past ten ever since."— Cincinnati Commer

The magistrate was surprised. “I thought Icial Tribune.



The Albany Law Journal. the salutary plan of renominating faithful


judges who were eligible under the ConstituA Monthly Record of the Law and the Lawyers.

tion for re-election, by both of the great Published by THE ALBANY LAW JOURNAL COMPANY, Albany, N Y.

political parties; never before has there been Contribntions, items of news about conrts, judges and lawyers' a failure to nominate and re-elect unanimously queries or comments, criticisms on various law questions, addresses

a retiring judge who was in a position to on legal topice, or discussions on questions of timely interest, are solicited froin members of the bar and those interested in legal accept another term. Chief Judge Charles proceedings.

Andrews, a Republican, was twice re-elected [All communications intended for the Editor should be addressed unanimously. Judges Rapallo and Earl, simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions or other business matters

Democrats, were each re-elected unanimously. shonld be addressed to The Albany Law Journal Company.] It will not be denied, probably, even by the

Sabscription price. Three Dollars per annum, in advance. Single partisans, that no man was ever more worthy number, Twenty-five Cents.

of re-election than Judge John Clinton Gray,

the nominee of the Democratic party. And ALBANY, N. Y., OCTOBER, 1902.

yet he was denied what was granted to every Current Lopics.

one of his predecessors on the Court of

Appeals bench. Why? Because of the The New York Evening Post of recent date determination of the partisans to take advanpublished the following editorial note apropos tage of a supposed opportunity to make the of the nominations for the vacancy in the court still more strongly Republican than it is Court of Appeals bench:

at present. It is their intention, with the help In making a nomination for judge of the Court of the voters of the State, to make the court of Appeals the Republican State Convention took a stand five to two Republican, instead of as backward step. Precedent and sound principle alike now, four to three a much safer majority, demand the renomination of a judge in actual ser for the conservative party and business sentivice, regardless of his political attachments, if he ment of the people of the State is that the has performed his duties satisfactorily to an lightened bar and public. The importance of the court should always stand four to three one office, the danger of political encroachments on the way or the other. We believe the principle of independence of the judiciary, the integrity of free honoring a worthy, faithful member of the institutions, should enforce the observance of this judiciary, especially if he happen to be a memrule. John Clinton Gray, whose term is expiring, ber of the highest court, by a re-election, ought has been a judge of ability, industry and unblemished character. Judge Werner, who has been nominated to find its practical application in the choice of as his successor, is probably his equal in these par- a judge quite as much as in the selection of a ticulars, but that fact does not excuse a violation of candidate for governor. Judge Gray has the sound rule referred to. The plea offered for served with distinguished ability and great violating the rule is that Judge Werner was also on

faithfulness for the term of fourteen years; the bench of the Court of Appeals by Governor Roosevelt’s appointment. Quite true, but he was not he is in the prime of his powers and usefuloccupying Judge Gray's seat. If Judge Gray is to ness to the State. He should have been nomibe displaced, it is immaterial whether his successor nated by both parties, thus making his is on the bench or off the bench. The rule once continuance on the bench beyond peradvenviolated becomes a nullity, and if its violation is sanctioned by the electors, the next nominating con- ture, and he would have been if the Republican vention will regard it as abolished. We trust that party's representatives, under the boss's the people of the State, in the coming election, will orders, had not determined to inject more put the seal of disapproval on this change of policy. politics into the court. All this is entirely

This, in our opinion, accurately voices the apart from the merits of the Republican candiopinion of the great majority of residents of date, who is a faithful and able jurist and an the State whose judgment is not warped by ornament to the bench. It is true that he has self-interest or political considerations. The been serving for nearly two years as action taken by Republican State Convention “extra ” member of the court, under appointat Saratoga constitutes the first instance in the ment of Governor Roosevelt, but in view of history of our highest court of a violation of his probable continuance in that capacity for

VOL. 64.- No. 10.


an indefinite period, he might well have mercial relations of foreigners, of foreign waited until the next vacancy.

companies or corporations who may reside, With a view of keeping this great court as carry on business or conduct their affairs or far removed as possible from the con- whose interests may remain or be represented taminating touch of politics and politicians, in Japan; a general review will also be prewe can only urge all conservative and thought- sented of the rights and immunities of ful citizens who have at heart the best welfare foreigners with reference to both the civil and of the State and the continued purity of one the commercial codes. It will thus be seen of its highest co-ordinate branches, to rebuke that the address will be of practical as well as this piece of impertinent partisanship by vot- academic interest. Dr. Masujima graduated ing to retain Judge Gray in the place he has in English law at the University of Tokio, so well and faithfully filled.

and was afterward called to the bar at the

Middle Temple, London, in the year 1883. Governor Odell's appointment of William He was one of the chief promoters, and the A. Keener, of New York city, ex-Dean of first president of the English Law School at Columbia Law School, as justice of the Tokio, established in 1885. He has recently Supreme Court, to fill the vacancy caused been appointed the legal adviser of the British by the death of Justice Miles Beach of the legation in Tokio, which in itself is sufficient First Department, is in all respects admirable. evidence of his high standing at the bar. We Prof. Keener was born in Augusta, Ga., bespeak for the distinguished Japanese jurist March 10, 1856. He is a graduate of Emory a hearty welcome to the capital of the Empire College, Oxford, Ga., class of '74. In the State. early nineties he was called by the trustees of Columbia University to become dean of the

The legal profession of the State, more parColumbia Law School. In this position, ticularly that of western New York, were which he held until August, 1901, he became much interested in the nomination of the widely known as a lecturer on “ Equity” and Hon. John Cunneen, of Buffalo, by the Demthe “ Law of Corporations." He is the author ocratic State convention for the office of atof “Quasi Contracts" and editor of “Cases torney-general. We refer particularly to this on Contracts ” and “ Cases on Corporations.” nomination because the nominee is an excelJustice Keener will bring to his duties on the lent example of the so-called “self-made bench a mind thoroughly trained in the law, man,” which means a man who is not born a wide knowledge of its various important with a silver spoon in his mouth, but who branches and a judicial temperament that makes his way alone, unaided and against cannot fail to make him an ideal judge. Governor Odell is to be congratulated upon professional eminence from a very hum

many obstacles. Mr. Cunneen's rise to having made so excellent a selection.

ble beginning ought to prove an inspira

tion to every struggling young man in The annual meeting of the New York State this broad land of vast opportunties. WithBar Association for 1903, will be held in

in fact, with borrowed money – Albany on January 20th and 21st next. In Mr. Cunneen came to this country from accordance with his plan to secure for the Ennis, Ireland, where he born in meeting an eminent lawyer of national or international repute, to deliver the annual

1848. The family, ruined by the famaddress, Secretary Frederick E. Wadhams has ine, consisted of seven boys. The hopelessobtained from Dr. R. Masujima, of Tokio, ness of the outlook determined young Cunhis promise to come to Albany on the occasion neen to try his fortunes in America, so, with referred to. Dr. Masujima has chosen for his the loan of $40 from a kind friend, he came subject, “The Present Position of Japanese to America. For a time he worked in OrLaw and Jurisprudence.” In the essay the leans county on a farm, the compensation learned doctor will treat of the civil and com- being $4.00 a month. Later he learned the

out means


machinist's trade, and also did carpenter neen will have the proud consciousness of work - anything to make an honest living. having carved his own way to his present All the time he was quenching his thirst for vantage ground of social standing and proknowledge, employing his nights in reading fessional success. law, and teaching school in winter. Abraham Lincoln's life was a constant inspiration The constant intermeddling by the polito the determined young student. It is not ticians with the courts is again shown in the surprising, therefore, that such a man, whom nomination of Attorney-General Davies for no obstacles could deter, and who was afraid the Supreme Court bench. He was selected of no sort of honorable work, should be ad- in the face of the almost unanimous sentiment mitted to the bar. This event occurred in of the district in favor of another, and as we January, 1874, and it was the goal which believe far worthier aspirant. That Mr. Davies

is a very weak candidate is pretty certain to young Cunneen had been striving for for

be demonstrated when the votes are canvassed, years. Clients did not at first come with em- and the fact that there is every probability of barrassing rapidity, and the young lawyer, the nomination of an independent candidate while making the best of his opportunities, in the district is not calculated to add to the brought others to himself by becoming inter- equanimity of the political managers. Here ested in politics. He was elected clerk of the will be another excellent opportunity for the board of supervisors of Orleans county, a po- voters of the State to register their dissition he held for seven years. He became approval of the methods whereby politics is chairman of the Democratic general commit- being injected into the judiciary regardless of tee of Orleans, and was recognized as a the rights and interests of the people. leader of ability, wisdom and excellent judg

CHARITABLE AND RELIGIOUS TRUSTS. ment. For many years he has been in the front rank of the legal profession, having

No part of the law of trusts has received more served as counsel in many of the great law judicial construction and explanation than that of suits in the western section of the State dur- charitable and religious beneficiaries. A fundaing the past decade. As a consulting lawyer,

mental rule of equity jurisdiction has laid it down

that those charities which are entities, which are he enjoys high distinction. In January, 1890, definite and distinct, where there can be no question Mr. Cunneen became a member of the form of as to the existence of cestuis que trustent, will be Tabor, Sheehan, Cunneen & Coatsworth, but enforced by law. While the courts agree on this

principle, they differ in applying the same, and it is is now practicing alone. He is lecturer on

well-nigh impossible to reconcile innumerable conequity jurisprudence in the Buffalo Law Alicting decisions which are the results of particular School and is a trustee of the Buffalo Law statutes, rules of construction, diverse interests or of Library. This hasty sketch is sufficiently simple public policy. long to show that such a man as John Cun- fined to a number of decisions illustrative of the

In the present paper, the discussion will be conneen could only be kept down by hard, un- principle that in the case of a religious trust, persons, yielding environment; in his unfortunate na- whose convictions differ from those which determine

the object of the trust, ought not to be appointed or tive Ireland, such an environment was to be

retained as trustees by the courts. found; but transplanted to this country, his

It is necessary, at the outset, to distinguish begenius took root, grew, flourished and flow-tween charities with a single object and those ered into a noble, useful life, one that in turn

with several objects. In the former instance no

difficulty is presented. For, if the charity is an will serve as a briglit example to the younger eleemosynary, no question as to the religious views men of the present generation, who “have it of the trustees arises; on the other hand, an ecclesiin them” to command success by hard work astical charity of necessity imports the agreement of

the trustees with the religious views of the founder. and constant endeavor. Whether or not the

In the latter case, a more difficult problem must be people of this great State shall choose him to solved. There may be a preponderance of religious the high office of attorney-general, Mr. Cun-objects or of charitable ones. In this case, the

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