The Albany Law Journal.

THE

Journal. Cannot

ALBANY, APRIL 20, 1889.

CURRENT TOPICS.

that other men of equal mental ability generally afford to go. Of the two hundred and twenty probably not half earn over $5,000 a year in the practice of the law, and so they lose nothing by going. But great merchants, manufacturers, miners, inventors, authors, railroad magnates, etc., cannot afford to go. Their private affairs need their personal supervision every hour. Another reason is that the lawyers are accustomed to and fond of talking. They are the most at home in thinking on their feet. Not always are they the cleverest debaters or the greatest orators, especially in England, where Chatham, Fox, Pitt, Burke, Sheridan, Gladstone, Disraeli, Bright and others have quite eclipsed the mere lawyers, who can only offset Brougham, Romilly, Erskine and a few others, all however fåinter lights. Another reason is that in this country politics is the study mainly of the lawyers, and not of the gentlemen (so-called) as in England. The south had a great advantage over the north before the war in having kept her lawyers in Congress so long that they had grown into statesmen. A lawyer who goes to Congress for a term or two is not and does not become a statesman. He has not breadth or forecast or candor

advantage of the moment. He knows his political tenure is brief, so he spouts a few speeches (or doesn't spout them), prints them in the Record (30 disguised that the hearer would not recognize them),

sends them home to his constituents, and imagines himself a statesman. Our Congress ought to rep

in its personnel. As to the appointment of lawyers to most of the cabinet offices, we think it absurd.

Albany Times thinks that the lawyers are getting more than their fair share of the offices. It says: "Take the professional men in the House of Representatives. They are thus apportioned: Lawyers engaged in practice, 220; professional politicians, 18; editors, 12; doctors, 7; ministers, 5; labor delegates, 2. Lawyers appear to more than hold their own. Their success in obtaining political preferment is not confined to elective bodies." In making up the inter-State commerce commission, the Times continues, President Cleveland "appointed three political lawyers, who were competent no doubt to 'run' caucuses and manage conventions, but whose knowledge of practical commercial affairs was necessarily limited and imperfect. With commercial law no doubt they were familiar, but in the words of the Chamber of Com-enough. He is too technical and content with the merce 'grave commercial questions are constantly being brought to the attention of the commission, every member of which is a lawyer, and not one member of which is possessed of experience in commerce.' In their place lawyers are useful, but that is no reason why they should take every thing.resent more vocations, and to be more permanent As they preponderate in Congress they might justly be charged with most of our public ills, and if this be true it is plain that the lawyers should be made Lawyers are notoriously poor men of business. to go. On this momentous question the opinion of Why they should persistently be put in charge of our esteemed contemporary, the ALBANY LAW Jourthe treasury, the army, the navy, the post-office and NAL, will be welcome and will be valued." (We the interior, we cannot imagine, unless it is because had half a mind to pay no attention to this appeal they are willing to work for low wages for the sake because of the term of reproach which our neigh of political glory or the opportunity to promote bor applies to us. We have our own opinion of party measures. It is our sincere belief that if any man who speaks of us as an "esteemed conthere were only half as many lawyers in Congress temporary" or "estimable gentleman." But the public business would be much more promptly deforce of habit is our good neighbor's excuse.) Wespatched, and debates would be much less personal, think it hardly fair to speak of the inter-State commerce commission as composed of " political" lawyers, or to intimate that they are (just) "fit to run caucuses and manage conventions." Judge Cooley, as a great judge, a distinguished legal author, and an eminent authority on constitutional law, deserves some better description than that, even if he has been prominent in politics or party management of which we never heard an intimation unAttorney-General Schoonmaker has been much in politics, but is a most honorable, dignified and high-minded man. But as to the merits of the matter in regard to which the Times asks our (unremunerated) advice, we must say we agree with the Times. The lawyers are too multitudinous and prevalent, in Congress at least. It is absurd that there should be two hundred and twenty of them in Congress - it is one hundred and twenty One reason for this preponderance is VOL. 39 No. 16.

til now.

too many.

tedious and useless. We have felt ourselves called on to say a good many hard things of the press, but in spite of that we should be glad to see more than twelve editors in Congress. We move to strike off fifty lawyers and substitute fifty editors. We would not increase the number of doctors, for it would introduce discord. As to "ministers "well, we think clergymen and women would better keep out of Congress, and care for our souls and our babies. We do not however object to their voice in politics at home.

"The Juridical Review, a journal of legal and political science," is a new quarterly published at Edinburgh. The current number is varied and interesting, containing among other leading articles a good history of "Codification in the United States," by Mr. David Dudley Field. There is a very en

evidence in this case that Dunham desires to try his rights in the State court of South Carolina because he supposes the decision will be favorable to him; and it is equally plain that Mrs. Carson is anxious to try her rights in the Supreme Court of the United States or in this court, for the reason that she expects a decision in her favor. But it does not appear that the transfer to Dunham was merely colorable. The justice of this court who heard the case has found that Dunham 'became the absolute owner of said bond and mortgage.' This being so, it is immaterial what his motives were for purchasing it. He had the right to enforce it in any competent tribunal. The Supreme Court of the United States has held that even if the assignment to Dunham was colorable it furnishes no ground for removing the case to the Circuit Court of the United States, and intimates that it is for the State court to decide whether this fact furnished any defense in the suit pending before it. Carson v. Dunham, 121 U. S. 421; Society v. Ford, 114 id. 635; Oakley v. Goodnow, 118 id. 43. * ** The law gives the parties a choice of tribunals. Why is not Dunham's right to choose the South Carolina court as great as the right of Mrs. Carson to choose the United States court, or the courts of this Commonwealth. Reduced to its elements, the argument of the plaintiff is that we should interfere because there is danger that the Supreme Court of South Carolina will not rightly and justly decide the rights of the parties. We cannot yield to such an argument without a violation of every principle of inter-State comity. As we have said, the general rule of comity is that the court first acquiring jurisdiction shall retain it. In our judgment it would be indefensible for the courts of this Commonwealth to restrain the prosecution of a suit pending in the court of a sister State, which has jurisdiction of the subject-matter and of the parties, upon the ground that the decision of that court may differ from our own opinion, or from the decisions of other courts of equal authority. All the facts presented to us can be and are presented in the case pending in South Carolina, and it is presumed that the Supreme Court of that State will decide the case according to the law and the right."

In Re Joy; Purday v. Johnson, Chan. Div., 60 L. T. Rep. (N. S.) 175, a legacy of £1,000 was bequeathed to a clergyman for the benefit of the "Society for Suppressing Cruelty by United Prayer," and for accomplishing its purposes and objects." The so-called society had been originated by the testatrix herself in 1876, and had at various times had some thousands of members. The society had no rules, but the members were required to buy a card at the cost of twopence, and to use a prayer which was printed on the card. The testatrix caused the cards to be printed at her own cost, and received the money for the cards, but published no accounts. Held, (1) that if at the death of the testatrix the society had ceased to exist, the legacy

* * **

lapsed unless the gift was for charity; (2) that the evidence showing that the testatrix was in truth the society itself, at her death the society came to an end; (3) that the legacy was rather for the improvement of the persons praying privately for the objects stated under the name of the society than for the suppression of cruelty to animals by ordinary means, which was not a purpose of general utility; and therefore the legacy lapsed and fell into the residue. Chitty, J., said: "So far as 1 know, no case has ever been presented to the court which has the main features of this case. The testatrix was in point of law the seller of the card. She caused it to be printed at her own expense, and it is plain, upon the evidence, that on the sale of these cards she received a certain sum of money, which, taking one thing and another, was about sufficient to recoup her the expenses of printing and distributing the cards, including the postage where postage was required. No accurate accounts were ever kept by her. There is one account book which covers a short period of time, about 1876, I think. The testatrix, I am satisfied, would never have thought of appropriating to her own purposes a surplus, if any surplus there was, of this small fund; but in point of law it was her money, and when I have read the rest of the rules it will be apparent that I am right in the statement I am now making, that she was under no liability to account to any of the persons who purchased the cards. The next rule is to use the prayer. Of course in a society of this kind there could be no other than a moral obligation; in other words, what lawyers call an imperfect obligation. It was left to the good sense of the purchasers of the card to use the prayer or not; but there is no rule as to the prayer to be used, except that it is to be used. There is no rule as to the manner, the time, the place, the circumstances, and there is nothing on the face of the rule, nor in the rest of the evidence, to show that the rule meant (and it could have been perfectly expressed) that the prayer should be a public prayer. As far as I can see, the intention was that each individual should use the prayer, or that it should be used in an ordinary, private way in the family circle. The other and third rule is not fit to be called a rule. It is only an expression of hope, for she says: 'I left it to your free and honorable obligation to do as I hope you will do.' I will read the rule: 'It is hoped that each member will use his or her influence in gaining additional members, in circulating pamphlets, articles and leaflets, so as to disseminate facts relative to vivisection and all other cruelty.' It seems to me that that cannot be described fairly as an object of the so-called society. The lady had some leaflets printed again at her own expense and circulated among the persons who bought the cards, who in their turn were to circulate the leaflets. The money which was received from the leaflets was her money. She was not bound to account for that any more than she was for the money received from the sale of the cards. So also during the years 1880 and

means, the greater must be the general improvement. Though it may result in public benefit, and be a matter of public utility, it is clearly to my mind not within the statute, as I have said, or within the analogy of the statute. Now the case that was relied upon on this particular argument was the well-known case of University of London v. Yarrow, 1 De G. & J. 72. There it was considered by the lord chancellor and indeed I consider it settled law now-that a gift (I am not using the exact expressions, but I am sufficiently stating them) for the purpose of establishing an hospital for animals useful to man is a good charitable gift, and if the establishment was by means of delivering public lectures against cruelty to animals, or in other words, preserving them, or tending to preserve the animals, that would be a good charity. But I think that the substance of this case is that it was to be by means of the improvement of the individual that the lady desired that the objects which she had in view should be accomplished. The result is that I think this is not a good charitable gift. Of course this point, as I have said, does not arise if I am, as I think I am, right on the first question. If it was a gift to a society which has failed during the life-time of the testatrix, then the court does not fasten hold of the fund as devoted to charitable purposes and apply the doctrine of cy-près, the case being a different one where there is a charitable institution existing at the date of the death, or when the will comes into operation, and which subsequently fails."

THE

THE RIGHTS OF DEBTORS.

HE value of customs does not lie in their singularity, but in the principles around which they cluster. These come to us through experience and reflection; their ultimate justification is the common good. History is full of customs which have grown from the misconception of principles or from the application of superior force. It is a custom in the Roman Church to honor virginity-in some Eastern beliefs to regard the virgin as unfit for heaven. Both customs are timehonored, each has given rise to a set of popular moral prejudices, but neither grew out of a principle that could bear the light of experience or reflection.

It is much the same with the status of debtors. Their treatment has been uniformly severe since the earliest times; not even the Christian religion could break their chains. Aud a set of moral ideas has grown out of this treatment by which the non-payment of debts has come to be regarded as a stain upon character.

But we propose to show that nowhere can a principle be found that would justify this ancient serfdom. It rests solely upon custom. The barbarous maxim of Might that the vanquished shall become the slave has fastened its fangs into the law even down to the present day.

Much could be said upon the moral and economical aspects of this subject, sufficient, as we think, to change the law governing debtors, even if that law had been based upon ancient principles instead of ancient customs. But we shall only try to make it clear that the status of the debtor is inconsistent with the well-established principles of law and equity. And

let us see first what our law, the common law of England, has to say in regard to certain contracts.

It has been held by our highest courts that upon whatever consideration made, contracts which go to the total restraint of trade, such as obligate a man to pursue his occupation or exercise his trade, are void. Such contracts are injurious to the public, and operate oppressively upon one party without being beneficial to the other. The rule is that agreements which in this necessary operation upon the action of the parties to them, tend to restrain their mutual rivalry and competition, and thus to result in the disadvantage of the public, are against the principles of sound public policy and are void. This is elementary law, and no court would hesitate to declare void any contract by which, beyond very narrow limits, any person should undertake to do that which would deprive the public of his intellectual or physical abilities.

Let us apply this to the case of the insolvent debtor. A judgment, which is the creditor's ammunition to start with, the courts have declared to be the highest form of contract. By it the debtor, in effect, says to his creditor: "I owe you this amount of money, and you have from me a standing order to select from my present possessions, and if they shall not suffice, then from those which I may hereafter acquire, whatever you may need to cancel this debt; and if necessary, you can deprive me from time to time of all my property, and disable me entirely from pursuing any business occupation." Certainly principles which are applicable to all contracts should be applicable to this. And yet we meet the inconsistency that the law accomplishes by the machinery of a judgment, the highest form of contract, that which is in hostility to the established principles of law. It compels the debtor to abstain from all trade or business until all his debts shall have been paid; for we need not stop to show that no trade or business can be carried on subject to the constant inroads of the sheriff. Those too the law commands the debtor to pay, and at the same time deprives him of the means of doing so, running counter to another ancient principle that he who asks equity must do equity.

This treatment of the debtor, in such hostility to the spirit of law, has outlived most other evils of the kind, because its results have not been brought 80 vividly before the public. The debtor seldom falls into a state of physical destitution. Without this it is difficult to make the public listen to the cry of those who suffer, in other ways, the grossest wrongs.

There is indeed a distinction between the essential elements of a contract, and the remedies by which it is euforced. Courts have indulged in very nice refinements to determine whether the remedy is not in fact a part of the contract, and eminent authorities have held that by implication the remedy is incorporated into the contract. And so we would not stand alone in this position. But this sort of reasoning has no application to the present matter, for whether the evil is in the substance of the contract or in the remedy, the law indorses, in the form of a judgment and execution, the very principles which it rejects in a simple contract.

But more in harmony with this ancient principle is the later and less trammelled conception of business transactions which has been slowly working itself into the law. It is to regard business life as a venture, and only the fund ventured as subject to creditor's lien. This conception was faintly outlined in the earliest insolvent laws, which were made applicable only to traders. Why should the creditor be deprived of his remedial rights of imprisonment, or of taking the debtor's property, in the case of the trader, and not in that of the non-trader? The books intimate without any very clear basis of principle, that it is because of