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for the benefit of creditors, including the General Assignment Act of 1877, as amended, together with a chapter on compositions and composition deeds, and an appendix of forms. By James L. Bishop. Second edition. New York: Baker, Voorhis & Co., 1884. Pp. xxxiii, 575. This seems a very opportune book for these “hard times.” The subject is of great practical importance, and Mr. Bishop's work, approved by several years' use of the first edition, is now thoroughly revised and brougbt down to the present time. It may safely be commended as a trustworthy and convenient compen
sory examination, unfortified by practical resort, we deem it to be well executed and likely to prove useful. It does not embrace the subject of appeals. It cites three thousand cases, and is well printed. We do not hesitate to recommend it, for it occupies a place by itself.
COURT OF APPEALS DECISIONS.
dium, and is nearly indispensable to the practitioners The following decisions were handed down Tues
of our State. The publishers' work has been well performed.
BOONE ON MORTGAGES.
cluding also the law of pawn or pledge and collateral se-
day, Dec. 2, Judgment modified in accordance with opinion in the case, and as modified, affirmed-Lewis H. Bailey, executor, etc., appellant, v. A. M. Bailey and others, respondents and appellants. Judgment affirmed with costs-Robert L. Crooke and others, appellants, v. John D. Prince, respondent; Crooke v. County of Kings.-Judgment reversed, new trial granted, costs to abide the event-Carl John Jonsson, respondent, v. Nelson Thompson, appellant: John Gay and another, appellants, v. William H. Seibold, impleaded. etc., respondents. -Judgment reversed, new trial granted, costs to abide the event, unless the plaintiffs stipulate to deduct from the judgment the amount awarded as treble damages, with interest on the same, in which case judgment so modified is affirmed without costs of this appeal to either party-Margaret Loff and others, respondents, v. Cyrus Lawton, appellant.
-Motion for reargument denied with ten dollars costs-Henry L. Nagle, respondent, F. Robert McFeeters and another, appellants. -Motion to amend return granted, but as the amendment gives the respondent a better position, it should be on payment of costs of opposing motion to the defendant's attorney, and with leave to the defendants to withdraw its appeal and go to a new trial under the order of the Supreme Court if it elects to do so, without costs of the appeal-National City Bank of New York, appellant, v. New York Gold Exchange Bank, respondent.Motion to open default for not serving cases granted, on condition that appellants serve the cases required within twenty days and to pay to respondents ten dollars costs of this motion; otherwise motion denied with ten dollars costs-Jonathan E. Robinson and another, ex’rs, etc., respondents, v. Ephriam A. Smith and others, appellants.-Motion to dismiss appeal denied with ten dollars costs--Edgar M. Payı, respondent, v. Charles H. Field and another, appellants.
LAWRENCE ON MARRIED WOMEN'S PROPERTY.
Women in England (being an essay which obtained the
TUCKER ON WILLS.
pendix of forms. A book of Massachusetts law. By
SPEAR ON EXTRADITION. This is a second edition of this well-known and highly approved work, the first having been published in 1879. It has this field all to itself, we believe, and is accepted in the courts as a cogent authority. Published by Weed, Parsons & Co., Albany.
In Sinclair V. Railroad Co., MacArth. & Mack. (Dist. Columbia) 13, MacArthur, J., says:
“Although the surgeons, who were examined as experts, testify that a broken bone when once cemented is better and stronger than one that has never been subjected to fracture, yet I have great doubt whether any person will submit to that operation for the purpose of strengthening bis ribs.”—The American Law Register for November contains a leading article on Power of partners to withdraw at will from partnerships entered into for a definite period, by Benjamin F. Rex: and the following leading cases: Loog v. Bean (Eng. Ct. App.), on injunction of slander, with note by Robert P. Clapp; State v. State Medical Examining Board (Minn.), on statute requiring physicians to have certificates from the State board, with note by Wm. Drayton; Wilson v. St. Louis, etc., R. Co. (U. S. Circ.), on removal of causes, separation of controversies, with note by Eugene MoQuillin.
BAYLIES' TRIAL PRACTICE.
of civil actions in courts of record under the Code of Pro-
The Albany Law
Journal. good reason on the ground of excessive damages,
for the jury were left with absolutely no direction
as to damages, and may have taken into account all ALBANY, DECEMBER 13, 1884.
manner of things not legally proper for considera
tion, such as a supposed unkindness of the defendCURRENT TOPICS.
ant to his correspondent, the non-appearance of the
defendant as a witness, and so on.” The Times UR London legal exchanges have at last found says: “We are sorry to be compelled to express
time to express opinions upon the Adams- the very serious conviction that the proceedings in Coleridge case. The Solicitors' Journal and the Law this too famous action of libel have struck a blow Times both speak of it. Both these authorities at the administration of justice more severe than condemn the course of Justice Manisty in submit any which has been given in the memory of living ting the case to the jury, and then setting aside | lawyers. * But the question whether maltheir verdict. It seems that the ground of this ice exists destroying the protection afforded to bona proceeding was that there was no express proof of fide false statements made on a privileged occasion malice. It would seem then that the natural and is for the jury, and the only way in which, legitiordinary course would have been to order a non- mately and regularly, the determination of that suit. It looks however as if the judge left it to the question can be withheld from them is by directing jury hoping or expecting a verdict for the defend a nonsuit, which is now equivalent to a judgment ant, and disappointed in this, exercised the legal for the defendant, on the ground that there was no right which he ought to have exercised at the out- evidence of malice upon which a jury could reasonset. The Journal says: “That a letter which ably find a verdict for the plaintiff on that issue. should not have been written should have been fol- To leave the question of malice to a jury is to prolowed by an action which should not have been ceed upon the assumption that there is some evibrought is not surprising, but it is surprising in-dence to go to them. Every summing-up to a jury deed that some of the teps above detailed should is necessarily founded upon the existence of some have been taken by the learned judge, and the evidence. Therefore to sum up and leave such a amazement both of the profession and the public question to a jury, and on their verdict being given is, we believe, without parallel.” The Journal says upon the evidence left to them, to enter judgment that the judge could legally take this course, and
in the teeth of that verdict is in our judgment to that although unusual, it is not unprecedented, cit- stultify the whole proceeding. Mr. Justice Manisty ing Bridges v. North London Ry. Co., L. R., 6 Q. says that it has been the practice of the judges to do B. 377. But continues: “We cannot however as he did, and he shall do it again. We would never think that Adams v. Coleridge was one of the cases see it done without making a strong protest; but in which the unusual course of leaving the case to whether the course he adopted was in strictness the jury, and at once entering judgment non obstante regular, or whether he was actuated by a motive veredicto ought to have been taken. In favor of which he has since suggested of facilitating the such a course there was the doubtful advantage of final settlement without the expense of proceedings saving the parties the expense of an intermediate by way of new trial, it is universally agreed that in application to the Divisional Court, while against such a case it was calamitous in its result. Had such a course there was a clear disadvantage, aris- the verdict been entered with judgment and costs ing from obvious peculiarities of the case itself, of for the plaintiff, or had the plaintiff been left to giving the defendant the benefit of the verdict if it move for judgment no harm could have been done; should be in his favor, and the benefit of the judg- indeed, had the latter course been taken the question ment if it should be against him; and there was a of law could have been argued on the motion for further disadvantage of applying a practice suitable judgment, and if judgment had been entered one to cases where the law is doubtful and the wit- way or the other the dissatisfied party could have nesses many, to a case where the law was clear and gone to the Court of Appeal.” We do not yet the witnesses necessarily few. It is to be observed clearly understand whether the plaintiff has lost too that judgment was directed to be entered with any rights by the procedure. The Times seems to costs against the plaintiff, on the ground no doubt intimate that he has; the Journal, in language that in the opinion of the learned judge the action which we have not quoted, implies that he has not. ought not to have been brought(an opinion shared by We are inclined to regret that this unusual course ourselves and by many, but not by the jury), and should have been taken, and we should think that did not legally lie. In thus exercising his discre- the Lord Chief Justice would feel annoyed by it. tion under order 65, r. 1, the learned judge ap- Undoubtedly he would have preferred to have his pears not to have been merely carrying his judg- son's case tried just like the case of the humblest ment to its logical consequences, but to have vis- and obscurest subject of the realm, and undoubtited the plaintiff with a penalty he was under no edly he does not thank Justice Manisty for this palegal obligation to visit him with. * On the rade of service, which certainly has done no good, other hand the defendant, if the judgment had been possibly has done some hurt, but ought not to entered in accordance with the finding, would have prejudice the Lord Chief Justice in the opinions of been able to move for a new trial
and with very
his fellow-citizens. A man frequently has more VOL. 30 - No. 24.
*All the kinds
need to be saved from his friends than from his Pythagorean sense of 'total abstinence,' yet seems enemies, as Job discovered, and as the distinguished to import abstemiousness, or at least moderation Republican candidate in our late election can
The rule of not too much.' vouch.
By temperance taught.'
I am, my Lords, inclined to adopt a fair and liberal In the Divisional Appellate Court in the Mignon-interpretation, having regard to the position of the ette cannibal case the three judges had no difficulty individual, the habits of the locality, and even the in pronouncing the defendants guilty of murder. peculiarities of the local municipal authorities in We do not see how there ever could have been any adjourning to neighboring public houses to 'condoubt about it, except for the novelty of the case. tinue the debate,' but notwithstanding all these alThe simple question is, is hunger an excuse for mur- lowances, I am coerced to come to the conclusion der? It certainly is not, any more than for larceny. that the evidence is sufficient to establish that the The appeal will probably be carried to the ultimate
assured was not a person of temperate habits; on the tribunal, at least we hope so, for we are thinking of contrary, his habits of intemperance had been retaking a sea-vayage next summer, and are curious peatedly observed at the town council and on other if not anxious to learn what our chances may be in public occasions. He has been shown at times to a shipwreck. If this conviction should be affirmed, have been incapable of transacting business or takthe defendants must rely on the clemency of the ing care of himself. He was remonstrated with by Crown, whereas if the case had been left to the jury friends, and does not seem to have denied the imout-and-out, it might have been found that they peachment, and finally there is evidence that he was were not in a state of mind to be morally responsi-elected provost in the hope that his responsibilities ble. The well-fed Briton has a very tender feeling of office might produce reformation of habit. The for all hungry men except Frenchmen.
evidence for the defenders is not in my judgment displaced by the negative evidence led for the pur
The cause of death too is confirmation We are aware that our current topics have taken
strongly of the assured having fallen into that fatal a decidedly English turn of late. But this is not
habit which produces our fault. The English have recently been much more interesting than the Americans in a legal sense.
Of maladies that lead to death's grim cave, The presidential election seems to have taken all
Wrought by intemperance.'” the virtue and all the humor out of us.
Now we would like Mr. St. John's opinion. We ought to be very civil to the English when we find know what Mrs. Hayes would say. We are glad to the House of Lords citing us. In Thomson v. Weems, see the English legal authorities inculcating temper9 App. Cas. 671, Lord Watson cites Knickerbocker ance in drinking as well as in eating. Life Assurance Co. v. Foley, 29 ALB. Law Jour. 70; 105 U. S. 350, on the meaning of temperate hab- The answer to Mr. Carter's objections to the its ” in an insurance policy. His lordship declined proposed codification of the common law has reached to adopt the doctrine of that case, that a man may a second edition and is being distributed throughout have delirium tremens and yet be of " temperate the State under the auspices of George Ticknor habits,” and observed: “I believe it to be useless to Curtis, Edwards Pierrepont, William Dorsheimer, attempt a precise definition of what constitutes | George H. Yeaman, Leslie W. Russell, Wager temperate habits,' or 'temperance,' in the sense in Swayne, William H. Arnoux, William S. Opdyke, which these expressions are ordinarily employed. John G. Milburn, John Frankenheimer, Roger FosMen differ so much in their capacity for imbibing ter, and the editor of this journal, a committee on strong drinks that quantity affords no test; what publications relating to codification. We have had one man might take without exceeding the bounds occasion to say before, that we regard this answer, of moderation, another could not take without com- prepared by Mr. Fowler, as the fairest and most inmitting excess. In judging of a man's sobriety, telligent exposition of the principles of Mr. Field's his position in life, and the habits of the class to work which has yet been made. It wili repay a which he belongs must, in my opinion, always be careful perusal even if the reader differs from some taken into account; because it is the custom of men conclusions reached by its writer, engaged in certain lines of business to take what is called refreshment, without any imputation of ex
NOTES OF CASES. cess, at times when a similar indulgence on the part
N Commonwealth v. Franklin Pierce, (!) Massachu.
case evi. setts Supreme Court, Nov. 1884, the defendant, dence clearly establishes that the assured was a most a physician, was held guilty of manslaughter in able and estimable man, but that circumstance is causing thu death of a patient by keeping her in not of much weight, because able and estimable flannels saturated in kerosene. The court, by men are not necessarily exempt from social failings." Holmes, J., said: “The defendant's duty was not Lord Fitzgerald dropped into poetry on the occasion. enhanced by any expressed or implied contract; but He said: “6. Temperate in babits' is a sentence to he was bound at his peril to do no grossly reckless be interpreted, and though not to be taken in the act when he intermeddled with the person of
of men net so engaged would be to say the least: IN
another in the absence of any emergency or other In Hart v. Western Union Telegraph Co., Califorexceptional circumstances. The defendant relies on nia Supreme Court, Sept. 1884, 18 Rep. 676, it was the case of Commonwealth v. Thompson, 6 Mass. 134, held that a telegraph company is liable for the and that to constitute manslaughter the killing must damages consequent upon the incorrect transmission have been a consequence of some unlawful act. If of a cipher dispatch, and that a stipulation for nonthis means that the killing must be the consequence exemption unless the message is repeated, is void. of an act which is unlawful for independent reasons The court said: “ The rule of damages, as applied apart from its likelihood to kill, it is wrong. Such to telegraph companies, is that although the mesmay once have been the law; but for a long time it sage be unintelligible to the company, yet as its unhas been just as fully and latterly, we may add, dertaking was to transmit the message promptly much more willingly recognized that a man may and correctly, both parties contemplated that whatcommit murder or manslaughter by doing other- ever loss should naturally and in the usual course wise lawful acts recklessly, as that he may by doing of things follow a violation of that obligation, the acts unlawful for independent reasons, from which company should be responsible for. The same condeath accidentally ensues. But recklessness in a clusion was reached by the Supreme Court of Alamoral sense means a certain state of consciousness bama in Daughtry v. Teleg. Co., decided in Decemwith reference to the consequences of overt acts.ber, 1883, a note of which will be found at p. 731, There is no denying that Commonwealth v. Thomp. 46 Am. Rep., and by the Court of Appeals of son, although possibly distinguishable from the Virginia in Teleg. Co. v. Reynolds, 77 Va. 173; S. present case on the evidence, tends very strongly to C., 46 Am. Rep. 715. See also Rittenhouse v. Teleg. limit criminal liability for reckless conduct, in cases Co. 1 Daly, 474. It is contended on behalf of the where the recklessness is moral, in the sense above defendent corporation that as the message in quesexplained. But it is to be observed that the court didtion was not repeated,' defendant is not responsinot intend to lay down any new law. They cited ble under any circumstances beyond the amount and meant to follow the statement of Lord Hale, 1 received for its transmission; and this because it is P. C. 4–29, and we think that they fall into the so declared in the conditions printed at the head of mistake of taking him too literally. Lord Hale ad- the form upon which the dispatch was written, and mitted that other persons might make themselves to which, as is claimed, the plaintiff assented. liable by reckless conduct. We doubt if he meant There are numerous cases that hold that such a rule to deny if a physician might do so as well as any on the part of the company is reasonable, valid, and one else. He has not been so understood in later binding on the sender of the message. The cases times. In dealing with a man who has no special that so hold are too numerous to be here referred to training, the question whether his act would be in detail. They will be found collated in a note to reckless in a man of ordinary prudence is equivalent | Teleg. Co. v. Blanchard, 45 Am. Rep. 486. But there to an inquiry into the degree of danger attaching are many cases to the contrary, and the latter class to the act of common experience, under the circum- we think based on the better reason. stances known to his action. It is here implied, with the Supreme Court of Illinois in the case of and is undoubtedly true as a general proposition, Tyler v. Teleg. Co., 60 III. 421; S. C., 14 Am. Rep. that a man's liability for his acts is determined by 38; and S. C., 74 Ill. 170, where it is held that the their tendency under the circumstances known to regulation requiring messages to be repeated is not him, and not by their tendency under all the circum- a contract binding in law, for the reason that the law stances actually affecting the result whether known imposed upon the company duties to be performed, or unknown. Another cannot escape on the ground for the performance of which it was entitled to a that he has had less than a common experience. compensation fixed by itself, and which the sender Common experience is necessary to a man of ordi- had no choice but to pay; that among those duties nary prudence, and a man assuming to act as the de- was that of transmitting messages correctly; that the fendant did must have it at his peril. Here the tariff paid was the consideration for the performance defendant knew he was using kerosene. More than of this duty in each particular case, and when the that, he saw from day to day how it worked. The charges were paid the duty of the company began, jury found that it was applied in a foolhardy and there was therefore no consideration for the manner, and hence arises a presumption of gross supposed contract requiring the sender to repeat the negligence, and that is enough. When the de- message at an additional cost of fifty per cent of fendant applied the kerosene to the person the original charge. To the same effect is Bartlett deceased, in a way in which the jury have found v. Teleg. Co., 62 Me. 218; S. C., 16 Am. Rep. 437; to have been reckless, or in other words, seriously and Candee v. Teleg. Co., 34 Wis. 477 ; S. C., 17 Am. and unreasonably endangering life according to Rep. 452. We hold that the stipulation purporting common experience, he did an act which his pa- to exempt the corporation defendant from all liabiltient could not justify, by her consent, and which ity for mistakes or delays in the transmission or detherefore was an assault notwithstanding that con- livery, or for non-delivery of any unrepeated messent.” This is contrary to the recent cases of State sage, whether happening by negligence of its v. Schulz, 55 Iowa, 628; S. C., 39 Am. Rep. 187; servants or otherwise, beyond the amount received but in harmony with State v. Hardister, 38 Ark. 605; for sending the same, is void for want of a consid8. C., 42 Am. Rep. 5.
eration to support it. And further, that it is not
competent for telegraph companies to stipulate who while he could not maintain an action in this against or limit their liability for mistakes happen- State to recover a demand due to the testator or ining in consequence of their own fault, such as want testate, might still assign it to another person who of proper skill or ordinary care on the part of their could upon the title so acquired successfully proseoperators or the use of defective instruments. See cute such an action. And that an assignee might authorities above cited and Sweatland v. Teleg. Co. in like manner recover this demand would seem to 27 Iowa, 433; Wolf v. Teleg. Co., 62 Penn. St. 83; follow from the principle of Fitch v. Rathbun, 61 S. C., 1 Am. Rep. 387; Breese v. Teleg. Co., 48 N. Y. N. Y. 579; for if the assignee of the wife may main132; S. C., 8 Am. Rep. 526; Teleg. Co. v. Gildersleve, tain an action against her husband for the conver29 Md. 232; Teleg. Co. v. Buchanan, 35 Ind. 429; sion of her property, it would seem to follow that S. C., 9 Am. Rep. 744; Hibbard v. Teleg. Co., 33 the assignee of the husband might also maintain an Wis. 558; Teleg. Co. v. Griswold, 37 Ohio St. 301; s. action against the wife to recover the amount of an C., 41 Am. Rep. 500. We think the true rule is indebtedness she had lawfully incurred to her husthat such companies are exempt only for errors aris- band. The case of Perkins v. Perkins, 62 Barb. 531, ing from causes beyond their own control.
when its circumstances are considered, will not appear to be an authority sustaining the conclusion
arrived at by the Special Term." In Kingman v. Frank, 33 Hun, 471, a wife employed her husband to manage her separate business, at a stipulated compensation, and there was a cer- WOMAN AND THE LEGAL PROFESSIOY. tain amount unpaid therefor. Held, that this could be reached by a judgment creditor of the husband. THE foregoing heading is a translation of the title Daniels, J., said: “As she could enter into a lawful contract for the employment of her husband in Donna e l'Avvocatura,” recently published in Rome,
" this manner, and has been required by the statute written by the advocate FERD. SANTONI DE SIo, for to be considered as a feme sole in the exercise of the the purpose of maintaining the right, moral and authority conferred upon her, it would seem to fol- legal, of women to practice the learned professions, low that she could obligate and bind herself for the particularly that of the law. In his preface the payment of the stipulated compensation. From the learned author states, that inasmuch as it has been facts made to appear, the sum of money alleged in said by those who are opposed to his side of the the complaint has been earned by him, and become case, that the greater part of the advocates of the payable from her for the performance of his services female sex are celibates, “that is, contrabandists under a lawful agreement entered into by her, and by profession in the kingdom of women," he deems it is to be presumed in support of the plaintiff's ac- it proper to declare that he is a husband and a tion that she would be willing to pay over the father. The work is divided into two parts. First, amount voluntarily to him in satisfaction of his de- the judicial question. Secondly, the social question. mand against her husband as soon as the legal right of these the first part only has reached my hands, to receive payment shall be acquired in these pro- and I propose to afford the readers of the ALBANT ceedings from her husband. Certainly the court LAW JOURNAL an opportunity to learn the mode has no ground to assume, and for that reason to de- in which the great question of woman's rights is not feat the action, that she would not honestly and being treated by the successors of Cicero, Hortensius fairly perform her contract by payment of the and Quintilian. money as soon as the plaintiff shall be placed in a The circumstances which led to the writing of position where he would have a legal right to re- this work are the following: A lady of Pinerolo, ceive it. But it will not follow, from the inability unmarried, and presumably young and attractive, of the husband to collect the debt by means of legal | the Signorina Lidia Poët, having been admitted to proceedings, that the plaintiff would be prevented the courses of jurisprudence in the University of from doing so by reason of the same disability, if it Turin, and passed her examination by a full vote, should be considered to exist, for this disability received her degree on the 17th of June, 1881; and would extend no further than to affect the remedy, for two years afterward, “attended forensic pracand would not stand in the way of the plaintiff to tice” in the office of an advocate, and assisted st recover the debt, or of a receiver appointed for that the sessions of the tribunals. Then she sustained purpose, under a proper judgment of this court. To
a theoretical and practical legal examination, which warrant such a recovery all that would seem to be
was approved by forty-five out of fifty votes; and necessary is an obligation on the part of the wife to thereupon, on the 9th of August, 1883, pursuant to pay the money, and that obligation has been created the deliberation of the council of the order of adby her contract and the performance of her hus- vocates at Turin, she was inscribed upon the roll of band's services under it. Those facts, together with that body. By the Italian statute of June 8, 1874, the acquisition of the demand by the plaintiff, or these proceedings entitle a man, (and our author by a receiver in the action, would be all that could contends, a woman) to practice as an advocate. be legally required to maintain an action for the Then, as our author says, her troubles bezıl recovery of the debt. In this respect the case would The inscription of Signorina Poët upon the rol resemble that of a foreign executor or administrator, | “ did not please" the office of the Procuratore-ger