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tion of claimants who have not already filed their tion. There are not a dozen lawyers in the country claims is invited to this notice.
who take, or have access to- outside of State libraries “HAMILTON FISH, Secretary.”
- complete sets of the current American and English
reports. The number of these reports is so large as to The following notice has also been given by the State
render it a very heavy burden, pecuniarily, to take department, namely:
them, and life is too short to justify an examination “Notice is hereby given that by the terms of the
of all of their contents. With the aid of this digest a treaty concluded on the 8th day of May, 1871, between the United States and Great Britain, all claims on the
lawyer engaged in the examination of a question, or in
the preparation of a case for argument, can very easily part of corporations, companies or private individuals, citizens of the United States, upon the government of
ascertain the current of adjudications on the subject
outside of his own State, and avail himself of all the her Britannic majesty, arising out of acts committed
The plan and execution of this volume are against the persons or property of citizens of the United
exceedingly good; indeed the arrangement- the rock States during the period between the 13th of April,
on which so many digests founder — could hardly be 1861, and the 9th of April, 1865, inclusive, not being
better. claims growing out of the acts of the vessels referred
Is it not about time that these twenty-eight volumes to in Article 1 of said treaty, generally known as the
were recast and consolidated into one work? It would Alabama claims and which yet remain unsettled, are
certainly be a great convenience to the profession; and referred to three commissioners to meet in Washing
although the expense attending the consolidation would ton for the examination, investigation and decision
be large, we should suppose that its increased popularof such claims, as well as like claims on the part of her
ity and sale would justify the attempt. Britannic majesty upon the government of the United States. By the terms of said treaty, all such claims,
A Treatise on the Constitutional Limitations which rest whether or not the same may have been presented to upon the Legislative Power of the States of the Amerthe notice of, made, referred, or laid before, said com ican Union. By Thomas M. Cooley, one of the mission, shall, from and after the conclusion of the
Justices of the Supreme Court of Michigan, and
Jay Professor of Law in the University of Michiproceedings of said commission, be considered and
gan. Second edition, with considerable additions, treated as finally settled and barred, and thenceforth giving the results of the recent cases. Boston: inadmissible.
Little, Brown & Company, 1871. “Robert S. Hall, Esq., of New York, has been appointed, under said treaty, agent of the United States,
Illinois Reports, vol. LI, by Norman L. Freeman,
Reporter. Springfield, 1871. to present and support the claims on its behalf, and to answer the claims made upon it, and to represent it
The most important decisions in this volume are the generally in all matters connected with the investiga
three or four growing out of the act to establish a park tion and decision thereof before the said commission.
in the city of Chicago, and involving the question, Corporations, companies or private individuals,
whether the legislature has power to compel a municicitizens of the United States, having claims against
pal corporation to incur debts for local improvements the government of her Britannic majesty, and coming
without its consent. The act providing for the estabwithin the terms of the above-recited provisions of the
lishment of the park appointed a board of commistreaty, are requested forthwith to send to the agent
sioners, and authorized this board to procure lands to above named, at the department of state, Washington,
be paid for by the bonds of the city, to be issued by the D. C., a statement of their respective claims, showing
mayor, etc., on demand of the commissioners. The the name and residence of the claimant, the nature mayor, etc., refused to issue the bonds, and a mandaand amount of the claim, with a brief general state
mus was sought. The court refused the mandamus on ment of the time, place and circumstances of the the ground that the consent of the corporation was transaction out of which the claim arose. It will be necessary to its incurring indebtedness of the kind. understood that the statement so invited is prelimin Some of our readers may remember that a strenuous ary merely, and does not preclude the necessity of a
effort was made last winter by certain interested subsequent formal memorial or statement, to be pre
parties to have Mr. Freeman ousted from the reportersented in conformity with such rules or regulations as
ship, or else to render his office a profitless one. We the commission, on its organization, may prescribe. It
are glad to believe — though without information on is provided by the treaty that the commissioners shall the subject — that the attempt was a failure. He is a meet at the earliest convenient period after they shall thoroughly good reporter, and the laborer in such a have been respectively named. It is expected that they
field is justly entitled to all the income that he is likely will meet during the ensuing month of September. to reap from his labors.
“HAMILTON FISH, Secretary.”
Counselor at law. Boston: Little, Brown & Com
pany, 1871. This volume- the twenty-eighth of the United States Digest proper, and the twenty-second of the annual series — contains an abstract of the decisions rendered in the courts of common law, equity and admiralty in the United States and in England during the year 1868.
The general merits of the series is, or ought to be, so well known as to render unnecessary any commenda
Ilill, LL. B. Second edition, revised and en
larged. New York: Baker, Voorhis & Co., 1871. A Treatise on the Common and Civil Law, as embraced
in the Jurisprudence of the United States, by w,
Voorhis & Co., 1871.
ett, State reporter. Baltimore: John Murphy &
of these we will speak in the order stated. That The
there may be an honest difference of opinion as to
the scope of the act providing for the revision, and ALBANY, SEPTEMBER 23, 1871. of the powers of the commission under it, we can
very well understand, but that the majority of the
commission design deliberately to exceed their powers THE MINORITY REPORT OF THE REVISION
and thereby violate the law no one can for a moment COMMISSION.
believe; and yet this is the impression conveyed — no The most important legislation of the last twenty doubt unintentionally - by Mr. Waterbury's report. years, so far as law reform is concerned, was the act On page 3 of his printed report he says: “In my of 1870, providing for a revision of the statute law opinion such amendments should be restricted to of this State, and it is greatly to be regretted that the
those which are expressly authorized by the act under commissioners appointed under that act have been
which we were appointed; while my associates think unable to harmonize their views as to the manner in
that they should be upon a more comprehensive which the work was to be performed. We have
basis.” Again, on page 4, after denying that "a heretofore published in this journal the substance large portion of the legal profession and the general of the report of the majority of the commission
public' expect us to report a series of codes,” he says: Messrs. Throop and Parker; and, also, the report of I could not believe that reasonable men expect us Mr. Waterbury, the dissenting member. Mr. Parker
to depart from the instructions of the legislature; but has retired from the commission since that report if any do, I deem it better to disappoint them than was made, and Mr. Stebbins has been appointed to virtually to disobey the statute from which all our fill the vacancy. As the retirement of Judge Parker
powers are derived." And again, on page 7, he says: left the commission equally divided, it is a matter of
“In dissenting from the report of niy associates, I am more than ordinary interest to know to which side
not forgetful of the general rule that the majority Mr, Stebbins will adhere.
should control, and that the oslice of the minority is We purpose in this article to notice briefly some of
to accept the result. This rule, however, loses its force the objections raised by Mr. Waterbury to the plan when a principle is involved; and I hold the duty of the majority. We have no hope or desire to of obedience to the law under which we exhaust the subject, but shall return to it again here- appointed to be matter of principle.” after.
Now, the obvious purport of all this language is, Two things are patent upon the face of Mr. Water
that Messrs. Throop and Parker, for certain reasons, bury's report— first, that the breach in the commis- | had deliberately planned to disobey the statute. Of sion is of a character altogether too serious to justify course, we do not say or suppose that Mr. Waterbury a very strong hope for reconciliation; and, second, meant this, but the language chosen conveys the that the report itself was not prepared with that care impression. and regard to logic that we should have expected at But, passing this by, let us examine Mr. Waterthe hands of its author; and the latter point is the bury's first objection on its merits. The act of 1870, more remarkable, from the fact that the minority chapter 33, provides in substance as follows: report was made some three months subsequent to § 1. The commissioners are to “revise, simplify, that of the majority, and after the latter had been
arrange and consolidate all statutes,” etc. debated by the entire commission long and anxiously. § 2. They are (1) to bring together all statutes and
But, by marshaling the arguments that Mr. Water- | parts of statutes, etc.; (2) to omit redundant and bury has presented, there appear to be three princi- obsolete enactments; (3) to make such alterations as pal objections to the majority report, which may be may be necessary to reconcile contradictions, supply stated thus, in the order of their apparent importance: | the omissions, and amend imperfections of the original
I. That the majority propose to amend existing text; (+) to arrange the revision under suitable divisstatutes to such an extent as to exceed the powers ions and subdivisions. granted to them by the act under which they were § 3. They are to suggest to the legislature (1) the appointed.
contradictions, omissions and imperfections of the II. That the amendments which they propose to original text and the modes in which they have make are of such a character as to assure the opposi- reconciled, supplied and amended the same; (2) “such tion of powerful interests, which, by applying the statutes or parts of statutes as in their judgment ought usual means of influencing the legislature, will defeat to be repealed, with their reasons for such repea!;" and the proposed revision.
(3) they “may also recommend the passage of new acts III. That the writer has an insurmountable object as such repeal may in their judgment render necessary.” to the use of the word "code" as a designation of It seems to us that this is about as broad a comthe principal or primary divisions of the revision, and mission as could be given. It is in fact even broader incidentally to there being any primary divisions than that given to the original revisers by the act of except the chapters.
April 21, 1925 (5 Edmonds' Stat. at Large. 497), for
the grant of power is in the same language and the existing enactments, with such changes only as might restriction placed upon the original revisers is be necessary to consolidate them and supply manifest omitted. Indeed, in this age and country the power to oversights, etc. ; while Messrs. Butler and Duer pre“revise” imports, by common understanding, a grant ferred the “ new and more scientific method,” which of power to at least suggest all needful amendments was afterward adopted. At the session of 1825 not in conflict with the fundamental policy of legis- | the legislature adopted a resolution calling upon the lation; and a much broader meaning was given to it revisers for information as to their progress, etc., by the same legislature which passed the act for the " and also what alterations, if any, were necessary in revision of the statutes. A joint resolution was at the law directing the revision to attain more effectuthat session passed “to revise the laws for the assess ally the objects for which it was enacted;" in pursument and collection of taxes.” (Laws 1870, p. 2149.) ance of which Messrs. Duer and Butler made a report, The report of the commission appointed under that which will be found at length in 5 Edmonds, 494–496. resolution recommends and proposes about as radical It is sufficient to state here that it sets forth with great a change in the existing laws as could well be minuteness the leading features of the plan which imagined. If Mr. Waterbury's theory, that a power they propose to pursue, not only as to arrangement, to revise means simply a power to segregate, beetc., but as to the general character of the changes correct, these tax commissioners must have taken a and amendments which they propose to make, and most extraordinary departure from the line of their asks for an additional power for that purpose. The duty.
act of 1825 was passed in consequence of this report It did not escape the attention of Mr. Waterbury, and (in its essential features) in the very language that the act under which he was appointed followed employed by Messrs. Duer and Butler in their request literally the act of 1825, under which the revisers for additional power, and the act of 1824 was repealed, reported and the legislature adopted more radical and Mr. Wheaton being appointed by the new act, in extensive changes in the recognized principles of place of Gen. Root. As already stated the act of civil and criminal jurisprudence, and the practice and 1870 is essentially a transcript of the act of 1825. proceedings of the courts, than had ever before been At another time we shall notice the other two effected by ordinary and peaceful legislation. But he objections urged in the minority report. must have strangely neglected to study the history of the act of 1825, or he would not have committed
THE NEW YORK CITY IMBROGLIO. himself, upon paper, to the extraordinary statements which are found in his report, respecting the action The case, in the supreme court of this State, of of the revisers which led to such a result. For he Foley v. The Board of Supervisors et al. is worthy of tells
us, in substance, that they exceeded the letter of more than a passing notice, involving, as it does, the the statute defining their powers, but the necessity municipal government of a city so populous and of doing so was so urgent, and the proposed changes wealthy as New York. At the present time, the were so beneficial, “that their work was readily political incidents of the matter so overshadow and accepted by the simple-minded and honest-hearted obscure its purely legal elements, that it is somewhat patriots of the day;” in other words, that they broke difficult to understand, properly, the merits of the litithe law, but were forgiven for having done so because gation, or the real position of the parties. The nomithey broke it so well.
nal plaintiff, for Mr. Foley acts but as a figure-head, Now Judge Edmonds has saved any investigator representing the tax payers of the city, brings suit the labor of hunting through the journals, documents against those in charge of the city government, claimand session laws of the period, in order to learn accu ing that they have, in the administration of public rately the history of the revision of 1830 (so called), affairs, been guilty of gross breaches of duty, and asks and the majority report of the present commission that they be restrained and enjoined from proceeding mentions that fact and expressly calls attention to his further in their alleged maladministration until the resumé. By turning to the 5th volume of Edmonds' termination of the suit. On the 7th of September Statutes at Large, pages 493 and onward, some very Mr. Justice Barnard, of the first district, issued, ex striking coincidences between the early stages of the parte, a temporary injunction, of the character asked last and of the present revision will be discovered. for, and included therein an order to show cause, on In 1824 an act was passed appointing James Kent, the 11th, why it should not be continued until the Erastus Root and Benjamin F. Butler to revise the determination of the action. On the 11th the real statutes; but Chancellor Kent declined the appoint- struggle began, and, as was to be expected, excited ment and John Duer was appointed by the governor great local interest. The arguments of counsel were in his place. The commission thus constituted given, more or less, to personal crimination and vinfound itself unable to act harmoniously; General dication, but the hearing was brought to a close on Root insisting that the statutes should be revised the 15th, when the court announced its decision, susupon the plan of the revisions of 1801 and 1813, taining substantially the demand of the plaintiff, and namely, in independent chapters, consisting of the granting an injunction of like purport as before.
This injunction, while not restraining the city gov- technical grounds will but little influence. It has ernment from paying out of moneys already in the determined these things: that the courts will, when treasury, for certain legitimate and necessary ordinary properly addressed, interfere in the affairs of municiexpenses, such as for the maintenance of the public pal bodies, and, so far as lies in their power, right any parks, police, water-works, etc., forbids the use of the wrong that is found to exist, and that wealth, position public funds for any other purposes. It also prohibits and political influence will not shield the transactions the raising of taxes until certain acts are performed, of public officers from legal investigation. which, though required by law, have been heretofore neglected by those in power. It also prohibits the further issue of city bonds, or the increase of the city
CURRENT TOPICS. debt. Justice Barnard holds, that the plaintiff is a
Since the last article on trustee for the people, and has a right to commence
The Minority Report of the action (the right being claimed, we suppose, un
the Revision Commission" was written and in type, der the act of 1864). Some points were also raised
we have received the cheering intelligence that the and passed upon, as to the constitutionality of certain
commissioners have unanimously agreed upon the provisions relative to the city of New York, which, principles which are to guide them in the future dishowever, only partially affect the merits, and are of charge of their duties, and that there is a fair proslittle general interest.
pect of their hereafter working in harmony. The grounds upon which this remarkable order was claimed and allowed are briefly these. By the laws
The trial of the French communists by military applicable to the city of New York, and to muni instead of civil courts is, according to the London cipalities generally, a person who is a member of a Law Times, considered by some writers as a gain to common council, or board of supervisors, or other the prisoners, but, if the manner of procedure in the body of like character, is prohibited from being inter
court at Versailles is indicative of what prevails genested in any contract authorized by the body to erally, the accused have hardly a fair chance. One which he belongs. It is alleged by the plaintiff, which
of the judges of this court is given to addressing the allegation is, however, denied by the defendants, that prisoners as assassins. The counsel for the prisoners the chief officers of the city government, in disregard
are of little help, as they make no attempt even at of the law, formed themselves into associations, with cross-examination, but content themselves with dethe object of securing to themselves large sums from claratory attacks upon every body connected with the the city treasury. Two newspapers, one printing and prosecution. But then the prosecuting counsel is just one stationery association, are particularly named,
as useless to his side, as he does not trouble the eviwhose combined receipts from the city are stated to dence, but depends on the power of Billingsgate to be $1,084,146,53.
carry his points. Were it not that the lives and libIt is further alleged, and denied, that fraudulent erty of large numbers of men and women depended claims to the amount of many millions have been
upon these ridiculous performances, we might laugh paid without authority, and in violation of law, for
at them. The whole thing is an illustration of the services never rendered and materials never furnished. impossibility of maintaining character and dignity The other charges are, that the city indebtedness has among the lawyers under a despotic government. been unlawfully increased to the enormous amount of one hundred and forty-seven millions of dollars, nearly There are many objections raised to the code by one hundred millions having been added within the common-law practitioners — that it is crude and imlast two years; that assessments have been made and perfect; that it only seems to simplify legal procedure, taxes levied without authority; and that in all their but does not really do so; that the old system, though transactions the heads of departments and their sub- somewhat faulty, is about as perfect as we can ordinates pay no attention whatever to the provisions hope to have, etc., etc. We believe, however, that very of a statute passed by the legislature in 1871, and much of the opposition to the adoption of a code comes known as the two per cent act (chapter 583). The from the fact that such a measure would render comprincipal charges are made against three individuals, paratively useless a certain knowledge, the acquisition who constitute what is denominated by that act the of which has cost its possessors much time and labor. board of apportionment.
We all remember the old-style stage-coachman, who What the ultimate result of the struggle may be could never be brought to see the superior advantage cannot now be determined. The plaintiffs have at of railways as means of communication. He would the outset obtained a substantial advantage, which produce various reasons why the new mode of travhas apparently been greatly increased by the inhar-eling could not succeed, and show, by lucid argument, monious action of the defendants. The injunction the greater excellence of the old. He advocated, may be set aside or modified by the appellate courts, however, his wishes rather than his convictions, hebut the action of Justice Barnard has produced a cause he saw in the impending change the destruction moral effect, which the overruling of his decision on of his means of livelihood. So, too, with our com
mon-law champions. They see in the code-maker only a destroyer who threatens to render worthless their stock in trade, and, like the old coachman, try to convince themselves and others that the change will never come.
OBITER DICTA. An early case of ejectment: In re Jonah.
A valuable treatise that might have been written:“Paul Pry on Intrusion.”
There is said to be a lawyer in the western part of Massachusetts who is noted for his wonderfnlly kind and benignant manners. His heart warms toward his fellow men. For years he has written all his numerous letters in sympathetic ink.
William Whitaker, who was a serjeant-at-law and king's serjeant about a century ago, was once conducting an examination at the bar of the house of lords. An objection being taken to some question, counsel were ordered to withdraw, and there was a deliberation of two hours. Nothing was resolved on, and, when he was re-admitted, he was requested to put the question again. He answered cleverly: “Upon my word, my lords, it is so long since I put the first question that I entirely forget it, but with your leave I'll now put another."
Serjeant Hill, of the greatest ability in black letter law, was a good mark for Lord Mansfield. “I have seen the serjeant,” says IIawkins, “standing up in the court, immovable as a statue and looking at no object, and arguing in support of his client's cause, so wrapt up in the workings of his own mind as seemingly, at least, to be insensible to any objects around him. In the midst of his argument, which was frequently so perplexed by parenthesis within parenthesis as to excite the laughter of the whole court, Lord Mansfield would interrupt him with: “Mr. Serjeant! Mr. Serjeant!' He was rather deaf; the words were repeated without effect. At length the counsel sitting near him would tell him that his lordship spoke to him. This roused him. Lord Mansfield would then address him with, “The court hopes that your cold is better.'”
GENERAL TERM ABSTRACT.
COMMON COUNCIL. Parliamentary law: local improvements. This is a motion for an order reversing and annulling all ordinances, assessments and other acts of the common council relating to a local improvement known as a
pipe sewer” in Savannah street, in the city of Rochester; also, enjoining further proceedings in relation thereto, and declaring the assessments therefor null and void.
At a meeting of the common council of Rochester, October 5, 1869, a resolution was adopted declaring it to be expedient to construct a sewer through Savannah street in said city, declaring that the expense should be borne by the property benefited, and also describing the property benefited, and directing the clerk to publish a notice requiring all persons interested in said improvement and opposed to the same to attend before the common council on the 19th October.
The clerk duly published the required notice.
On the 19th October the parties interested in the said improvement were heard by the common council, and an ordinance directing the construction of the sewer was lost; the next evening, at another meeting, the vote of the previous evening, by which the ordinance was defeated, was, on motion of one of the aldermen who voted with the minority on the previous evening, reconsidered and the clerk again directed to give notice to persons interested that they would be again heard on the 28 November. On the 20 November there was no meeting of the council, but on the 3d November an ordinance directing the construction of the sewer was duly passed, three-fourths of all the aldermen voting in the affirmative. The local assessment was made by the city assessors.
Held, that it was unquestionably competent for the board to reconsider the vote by which the ordinance of the 19th October was lost; that the question as to the enforcement of, or dispensing with, the parliamentary law requiring that any motion to reconsider must be made by one who voted with the majority on the motion proposed to be reconsidered, rests exclusively in the discretion of the body whose action it is proposed to reconsider, and no other tribunal has the right to treat such a reconsideration as void; the members of the body alone have the right to object to the violation of parliamentary rule. That the description in the clerk's notice was sufficient. That the depth under the surface that it is proposed to lay the pipes is no necessary part of the description. That, if the sewer is not low enough, the owners of property are not benefited and cannot be assessed. That the failure to give the necessary notice for the meeting of November 3 does not invalidate the proceedings; the persons interested had had one opportunity to be heard; the charter provides for but the one notice, and it was purely a matter of discretion whether another hearing should be allowed. That the provisions of the charter prescribing the length of notice to be given, by the assessors, of grieva ance day on local improvements, and by the treasurer, of the receipt of the assessment roll by him, are directory merely, and the failure to comply with the statute does not invalidate the proceedings. Certiorari quashed, with costs. The People ex rel. Locke v. The City of Rochester.
It is amusing to see how little it takes, sometimes, to convince a man that a joke is first rate. Witness the following extract from Woolrych's “Lives of Eminent Serjeants,” which abounds in anecdotos of a standard character, and a few not particularly brilliant:
"Smith, a name derived from the IIebrew, notwithstanding its endless and varied repetitions, afforded the sergeant (Wilkins) an opportunity of making a good-humored jest at the expense of one who bore that name. It is customary to propose a new comer for the men of the circuit, and the candidate was a Smith. If we could tack on the leading jovial countenance to the jest which he uttered upon the occasion, we might do some small amount of justice to it. Slowly he reared his portly frame. “Smith, Smith, Mr. Smith!' He then looked round complacently upon all. “I think I have heard that name before.'”
Every body has certainly heard this witticism before, and it is worth while to know who has the honor of having originated it.
Jurisdiction: pleadings.- Appeal from order overruling demurrer.