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THE ALBANY LAW JOURNAL:
A WEEKLY RECORD OF THE LAW AND THE LAWYERS.
The Albany Law Journal.
violation of the law. He says: “The legislature is bound to make its enactments explicit and easy
to be understood," which is a proper rule enough, ALBANY, JANUARY 5, 1878.
but one that has not heretofore been often put in
practice. The laws governing insurance, “passed CURRENT TOPICS,
for the mutual protection of insurer and insured,”
are claimed not to have been eminently successful, THE CHE Governor's Message contains several excel
and in some instances to have worked positive harm. lent suggestions, which we trust will meet the
The statutes relating to deposits of securities in this approval of the legislature, as they certainly must
and other States and the rules relating to the dissothat of all honest and intelligent citizens. His state
lution of companies are criticised. The statutes ments that “there are too many small offices in the
regulating savings banks are also unfavorably comtowns, the incumbents of which can only be paid by
mented upon, and amendment suggested. illegal or exorbitant fees and petty exactions;” that "needless criminal complaints and legal proceedings are instituted that constables, justices and jail- The governor gives as a reason for his failure to ors may receive the fees of such prosecutions;” and approve the supplementary chapters of the new that “services performed and not performed are Code, that he did not have time to read them durcharged at double rates, and often several times,” are ing the thirty days given him after the adjournment strictly true as to almost every county in the State, of the legislature, and he did not feel authorized to and the recommendation that the superfluous ofhces approve what he had not read. He is not in favor be cut off, and that the bills of petty officials be of the new Code, for the reason that “this new systaxed by the county judge, is a good one. The evil tem can only be continued at the expense of another of special legislation has been set forth in numer- long period of doubt and litigation over its proper ous gubernatorial communications, and the Consti- construction, which will cost the people of the State tution is full of provisions designed to prevent it; | many millions of dollars. Already serious questions yet His Excellency finds that it is still unchecked, of this sort have been brought before the courts." especially in the direction of village charter amend- He further says: “The great question will be prements, which the legislature is asked not to pass sented to you whether the new system can be so far hereafter. The governor believes that there has superior to the old as to justify you in committing beeri too much legislation for the city of New York, the whole administration of civil justice to the conwhich is probably so, as upward of twenty-four fusion of construction from which it has just hundred laws have been enacted relating thereto emerged. The courts, under the old system, which in about twenty years.
A new excise law is recom- they understand, are already burdened with labors mended which shall be “reasonable in its limita- beyond endurance, and it seems unwise to precipitions and restraints, clear and explicit in all its tate upon them a mass of practice litigation which provisions, and above all complete in itself, to be must necessarily retard still more their accumulated uniformly, steadily and constantly enforced.” The load of business. I submit to your careful refleclaw, as it now exists, was, until the decision of the tion the proposition that this grave subject would Court of Appeals, misunderstood in an important be best disposed of by the repeal of the partial Code point by those dealing in intoxicating drinks and which went into effect on the first of September, and by the officials charged with carrying it out, and the re-enactment of the Code which was in force up the governor thinks it would be unjust to hold the to that date, to be amended, from time to time, as dealers disobeying it to penalties as for a willful experience may suggest."
The woman question is troubling the authorities considering the judicial force, there is more business and the courts of the District of Columbia, A woman to be transacted in the third than in the first district. having been permitted to act as attorney and coun- New York city contains about as many judges of selor at law in the District, others of the female sex superior courts, as there are in all England, while are encouraged to apply for various public positions the third district will be left with two judges, one heretofore held by men only. The office of notary of whom is in poor health and the other of whom public was first sought for, and this avenue to is away ever and anon, holding circuit in New York. power and emolument being opened to female We may, however, congratulate the New York bar applicants, the next attempt was made on the of- on the appointment. Mr. Justice Ingalls is a fice of constable, and a formidable petition was last thoroughly able and conscientious judge, and a week presented to the Supreme Court of the Dis-gentleman without reproach. trict, asking it to appoint a Mrs. Dundore to a vacancy then existing. The petition was brought
The service of an injunction by telegraph is cerbefore the court by the lady lawyer, Mrs. Belva A. tainly a novel proceeding, and that such service Lockwood, whose professional employment seems
should be beld sufficient to bring a party into conchiefly to be arguing for the admission of her sex to tempt for disobeying the injunction is somewhat republic offices before various committees, courts and markable. Yet, on a motion recently made before other bodies. The court said that the matter was
Vice-Chancellor Malins to commit an auctioneer one of unusual importance, and would “receive who, after receiving a telegram notifying him that respectful consideration ” on the part of the court. a sale he was about to make had been enjoined, by It is therefore possible that the coustabulary of the
the advice of a barrister disregarded the notice and Federal capital will hereafter be composed in part
made the sale, the court said that the telegram was of women. For ourselves, we do not see what ob
sufficient to bring home to the auctioneer the fact jection can be raised to the appointment of women
that the injunction had been issued, though, as he to such a position by a court which freely admits had, in making the sale, acted under the advice of them to the more important places of attorney and counsel, he was only required to apologize to the counselor. We perceive also that the ladies of
court and pay costs. The English papers, both law California are asking for a law permitting them to
and otherwise, severely criticise the decision, and act as notaries public, and that there is a strong
we think with reason. probability of the passage of such a law. If the whole matter were submitted to the decision of the
NOTES OF CASES. intelligent part of the female sex generally, there IN the case of lovey v. McDonald, decided on the would be no change in the present rules. It is only
8th ult. by the Supreme Court of the District a few agitators, male and female, who care any of Columbia, at General Term, the defendant had thing about a change; but they make a considerable been, by an order of the court, directed to return noise, and are sometimes given what they ask for certain moneys previously paid to him out of a fund for the sake of peace.
in the hands of the court, under an order which
was afterward set aside. Defendant failed to comAccording to the report of the comptroller, there ply with the order to repay, and a motion was macie has been no money in the State treasury to pay the
to punish him for contempt. He had, however, salaries of the Court of Arbitration in New York placed himself out of the jurisdiction of the court, since September 30, 1876. The suggestion of the
so that the moving papers could not be served on comptroller that so long as the laws creating this him, and his attorney and counsel would not admit court are upon the statute books, the appropriation service. The court held that, while as a rule percalled for by them should be made, is reasonable; sonal service of motion papers is necessary to bring but the fact that the appropriation was overlooked a party into contempt, if, after disobedience to the indicates that there is very little general interest in
order of the court, he faces its jurisdiction, he canthe court, and that the experiment which was made
not be permitted further to prosecute or defend his in its establishment has not succeeded.
suit until he purges his contempt. Accordingly, an
order was made that, unless within a time desigNotwithstanding the most strenuous protestation nated, the defendant should comply with the order, and earnest entreaty of the lawyers and the business his answer be stricken out, and the cause proceed as men of the third judicial district, the governor persists if no answer had been interposed.
The course in his determination to assign Mr. Justice Ingalls to taken was the only one open to the court, and is the General Term of the First Department. Why, sustained by numerous authorities. See Maddock's no one less than a governor can probably tell. Mr. Ch. Pr. (Hartford ed., 1827), 403; Harrison's Pr. in Justice Ingalls is one of the very best circuit judges | Ch. 202; 1 Daniel's Ch. Pr. 554; Vowles v. Young, in the State, and there are too few good ones to 9 Ves, 193; Williamson v. Carnon, G. & J. 184. In spare any of them for the General Term; besides, Brinkley v. Brinkley, 47 N. Y. 49, where the party
had left the jurisdiction of the court, it is said that And Chancellor Walworth, in Warner v. Beardsley, the court is not limited to fine and imprisonment as 8 Wend. 194, criticises the doctrine in Pain v. Packå means of enforcing its orders. “Inasmuch as, ard, and says that case was decided without arguafter the commencement of the action, he has gone ment, and that two at least of the judges who out of the jurisdiction, it would not have availed concurred in it afterward dissented from it. In to have ordered him fined or committed. But it Pennsylvania the doctrine agrees with that of Pain had control over its own proceedings, and could v. Packard, but it is said that the reason of this was, refuse to the defendant the benefit of them when that there was no court of chancery to enable the asked as a favor, until he purged himself of his surety to proceed in his own name and compel paycontempt." See, also, Ellingroood v. Stevenson, 1 ment. See Dehuff' v. Turbitt, 3 Yeates, 157; Cope v. Sandf. Ch. 366; Johnson v. Penney, 1 Paige, 646; | Smith, 8 S. & R. 110; Gardner v. Fervee, 15 id. 28; Rogers v. Patterson, 4 id. 450; Evans v. Van Hale, Wetsel v. Sponster, 18 Penn. St. 460. Clarke, 17. But the rule that one in contempt shall not be heard applies only to matters of favor, and
In Hall v. Stephens, 5 Cent. L. J. 530, just denot to those of strict right; and he is also entitled cided by the Supreme Court of Missouri, the meanto be heard if his object is to get rid of the order
ing of the word “family” is passed upon. А or other proceedings which placed him in contempt. testator devised certain land to “Hiram Stephens Morrison v. Morrison, 5 Hare, 590; Chuck v. Cremer, and family.” The court held that this gave the fee Cooper's Cas. Temp. Cot. 205; Odell v. Hart, 1 of the lands to the recipient named and to his wife Moll. 492. See, also, Stone v. Byrne, 5 Brown's Cas. and children also. See Wylile's Case, 6 Coke, 16, 209; Latham v. Latham, 1 Sw. & Tris. 299.
where it was held that a devise to one and his
children, the latter living at the date of the will, In Harris v. Newell, 2 N. W. Rep. 68, determined carried an estate in joint tenancy; and In re Terry's on the 20th of November last by the Supreme Court Will, 19 Beav. 580, where the word “family” is of Wisconsin, it is decided that where one signs a held to mean “children," unless some circumstance note as surety, it is his duty, and not that of the either in the will or in the condition of the parties creditor, to see that the principal performs, and that prevent such construction. There were orphan a surety is not released at law by a failure of the children only in that case. In Barnes v. Patch, 8 creditor to proceed upon being notified by him to Ves. 604, the words, “ remainder of my estate to do so, though in some cases equity will interfere at be equally divided between” the “families" of two his suit to compel the principal to pay the debt, or persons named, were held to embrace the respective to compel the creditor to proceed against the prin children of the families, one of the persons named cipal. In Wright v. Simpson, 6 Vesey, Jr. 714, it is having pre-deceased the testator. In Executors of said that, as between the creditor and the surety, White v. White, 30 Vt. 338, where the will gave a sum the creditor assumes no obligation of active dili- to the son of testator for the support of himself and gence against the principal, and it is the business of family and for no other purpose, it was held that the the surety, not of the creditor, to see that the prin-word “family” included wife and children of the cipal performs. But because the surety has no priv- But bequests to the “family” of one have ity in the contract of the principal, and because the been held void for uncertainty (Harland v. Trigg, 1 creditor or the principal may prejudice the surety Bro. C. C. 142; Doe v. Joinville, 3 East, 172; Robinby delay, equity will sometimes interfere in behalf son v. Wadlow, 8 Sim. 134); though the bequest will of the surety, either against the principal, to com- be upheld if it can be made out from the subjectpel him to pay the debt, or against the creditor, to matter, or the context of the will, what the testator compel him to proceed at law to collect it from the intended by the word “family." Doe v. Smith, 5 M. principal. 1 Story's Eq. Jur., § 327; Ilayes v. Ward, & S. 126; Parkinson's Trusts, 1 Sim. (N. S.) 242. 4 Johns. Ch. 153; Bishop v. Day, 13 Vt. 81. In In Woods v. Woods, 1 My. & Cr. 401, it was held that Pain v. Packard, 13 Jolins. 174, it is held, in conflict a bequest to one's wife toward the support of her with the doctrine of the principal case, that notice
the children such an interest in the family," gave
estates devised as to enable them to maintain a bill by a surety to a creditor to proceed against the
in their own names to protect such interest. See, principal, and failure of the creditor to proceed, to also, Beales v. Crisford, 18 Sim. 592. The word the injury of the surety, will operate to discharge “family” has been held to mean presumptively the the surety from liability. See, also, acknowledging heir. Counden v: Clerke, Hob. 29; Chapman's Case, the same rule, Remsen v. Beekman, 25 N. Y. 552; Dyer, 333b; Wright v. Atkyns, 17 Ves
. 255; Griffith's
v. Eran, 5 Beav. 241. The usual rule is, however, also King v. Baliwin, 17 Johns. 384. But Chancel
to exclude parents. Barnes v. Patch, 8 Ves. 604; lor Kent, in King v. Baldwin, 2 Johns. Ch. 554, Mackleroth v. Bacon, 5 id. 159; Blackwell v. Bull, 1 says: “The established doctrine is, that mere de- Keen, 176; James v. Lord Wynford, 2 Sm. & Gif.
350. But it has been extended to include all who lay in calling on the principal will not discharge the surety, provided that delay be unaccompanied with might be embraced in the term “next of kin.”
Williams v. Williams, 1 Sim. (N. S.) 358; In re
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