"After much reflection, it has been deemed best to attempt a scheme of arrangement founded rather upon the grants of legislative power contained in the constitution, as near as may be, or upon the considerations which, under the general operation of the fundamental law, have led congress to denounce and punish particular offenses. Yet this scheme, it is confessed, is not satisfactory to the commissioners. Under it, as perhaps under any other, certain crimes do not find an appropriate place, or, it may be, are wholly misplaced. The subject is full of difficulty; but it is fortunate that the following pages are submitted to the public and to the profession as purely tentative. The candid and exhaustive criticism of all is invoked. A better method may thereby be developed, or it may turn out, after all, that the subdivisions by chapters should be dropped altogether, and the title runs throughout by sections only, without any regard to an exact classification." It will be a great mistake to abandon the attempt at exact classification." It is of primary importance that every code-and this revision will be substantially a code-be philosophical in its plan and arrangement. Mr. Barringer has probably adopted the best plan possible under the powers delegated to the commission, but it may be doubted whether he has always executed it successfully. Take, for instance, chapter third, which has the title "Crimes arising within the Maritime and Territorial Jurisdiction of the United States." An awkward title certainly, and one altogether too comprehensive for "exact classification." Most of the sections of this chapter would be better arranged under one or the other of two titles, "Crimes against the Person" and "Crimes against Property." There is a noticeable absence of definitions- a very important omission in a work of this character. Thus, section twenty-one provides that every person who, within any fort, arsenal, etc., "commits the crime of murder" shall suffer death, yet we are not told what shall constitute murder. So every person who commits the crime of rape shall suffer death, yet what shall constitute rape is nowhere declared. Section thirty-one defines and prescribes the punishment for maiming "any person," by which we understand to be meant the maiming of another. In the same connection should be a section defining and prescribing punishment for the maiming of one's self to escape the performance of a legal duty. It is remarkable how many crimes under the laws of the United States are punishable with death. There are in one chapter of this revision thirteen sections in which that punishment is prescribed, and there are several sections in the other chapters. Thus, besides treason, murder and rape, some of these capital offenses are as follows: Casting away vessels, arson of dwelling, piracy, robbery of vessels, setting at liberty or rescuing a person convicted of a capital offense. The criminal legislation of the United States does not appear to have been affected by the humane spirit of the age. We have not space to notice at this time the titles drafted by Mr. Abbott. CURRENT TOPICS. Quite a sensation was created in the English parliament a couple of weeks ago by a motion to exclude all lawyers from the house who had been elected for counties. This motion was founded on act of Edward III, passed just 500 years ago, and which some industrious antiquary had exhumed. The reason for its passage was declared to be that these men of law who follow divers businesses in the king's courts on behalf of private persons, with whom they are, do procure and cause to be brought into parliament sundry petitions in the name of the commons which in nowise relate to them, but only the private persons with whom they are engaged." The lawyers directly declared the act repealed, on the authority of Lord Coke, and the attorney-general was of the same opinion. But the friends of the motion would not thus down, and a lengthy debate was the result. There is a curious passage in Lord Coke's institutes showing the evil results of excluding lawyers from law-making bodies. Referring to the ordinance of Edward III, which declared lawyers ineligible for parliament, he said: "At a parliament holden at Coventry, anno 6 Hen. IV, the parliament was summoned by writ, and (by color of the said ordinance) it was forbidden that no lawyer should be chosen knight, citizen, or burgess, by reason whereof this parliament was fruitless and never a good law made thereat, and therefore called 'indectum parliamentum,' or lacklearning parliament. And seeing that these writs were against law, lawyers ever since (for the great and good service of commonwealth) have been eligible, and lawyers might have been elected in that parliament." It is fortunate for some of our editors that they do not live, move and publish their papers in Australia. The chief justice of that country allows " no reflections on the administrator of justice" there. Lately a barrister omitted certain circumstances from an affidavit, and was fined 251. for malpractice. Popular feeling sided with the barrister, and he, himself, forwarded a letter over his own signature to the Inquirer newspaper, impugning the justice of the decision. The Inquirer took up the matter in its leading columns in favor of the barrister, and another newspaper, the Gazette, followed suit, and termed the decision an "unrighteous" one. Thereupon, the editors were summoned for a contempt of court. The Inquirer men were very penitent, and were sentenced to imprisonment for one month. The editor of the Gazette, however, claimed that the actions of public men, not excepting judges, were open to fair and legitimate comment. The result of his comment in this case was a fine of 100%. and two months' imprisonment. The chief justice, in the course of his remarks, said: "Sad, indeed, will be the fate of that country whose judges administer the laws under terror of popular clamor foreshadowed by public prints." that they receive nothing from my estate, either real or personal." The probate of the will was contested, but whether successfully or not we have not learned. We commend the case to Dr. Ray, as the text for a chapter on "Political Insanity." The supreme court of this State appears to be at the game of battledoor and shuttlecock with the act of 1867 to prevent animals from running at large in highways. The question is as to its constitutionality, so far as it authorizes the seizure of animals trespassing on private inclosures. The general term of the sixth district in Cook v. Gregg, not reported, and that of the fourth district in Fox v. Dunkel, 38 How. 136, have affirmed its constitutionality on that point, while It is a singular circumstance that, at this late day, the general term of the fifth district has, since those a court should be called upon to decide whether a decisions were made, twice held the other way. man has a legal right to whip his wife, and still more Mc Connel v. Van Aerman, 56 Barb. 534, and Leavitt v. singular that the court was not unanimous in its Thompson, id. 542. We now have a special term decisdecision. In a case lately before the supreme court ion re-affirming its constitutionality. Squares v. Campof Alabama, the defense was interposed to an indict- bell, in the August number of Howard's Practice Rement for assault and battery on the wife, that the hus-ports. It is to be hoped that the court of appeals will set the matter at rest before another supreme band had a right at common law to chastise his wife. A majority of the court held that "the rule of love court judge gets a chance at it. has superseded the rule of force," and that "the privilege, ancient though it be, to beat her with a stick, to pull her hair, choke her, spit in her face, or kick her about the floor, or to inflict upon her like indignities, is not now acknowledged by our law." The venerable chief justice dissented from this view, we are sorry Perhaps he felt himself bound by that old decision of the Mississippi court, in Bradley v. State, Walk. 156, which held that a man might chastise his wife within reasonable bounds. to say. There are some things which ought to be declared in and of themselves prima facie evidence of insanity, and among these is the attempt so often made to wreak "posthumous vengeance" through the instrumentality of wills. This as a rule; but when a father attempts to disinherit his daughter, because she favors political principles at variance with his own, the rule ought to be extended so as to make the act positive and plenary evidence of mental aberration. A will of this character has been propounded for probate in Chenango county. It contains the following item: "Fifth. Believing that the natural consequences of actions, based upon or dictated by the political creed or belief approved of or advocated by my daughters, Cornelia A. Wood and Ruby Houck, have been and are to largely increase taxation, it is my will that the amount of taxes paid by me since 1861, and to be hereafter paid previous to my decease by me, together with the succession or other revenue tax or taxes to be paid from or on account of property now or hereafter owned by me, be considered as having been paid for and on the account of my said daughters Cornelia A. Wood and Ruby Houck; and it is my will, and I hereby direct, แ 'Important if true." The American Society newspaper has a recent article, making the following startling announcements: First, that an eminent lawyer says that all marriages celebrated on Sunday are void, because marriage is a civil contract, and civil contracts made on Sunday are void; second, that the children of a deceased millionaire are going, for this reason, to contest their father's will, by which he gives his estate to his children by a second wife, to whom he was married on Sunday; and third, that a learned judge has lately decided that marriages between minors, or between an adult and a minor, are void. Now, people should avoid great excitement in warm weather, and although, of course, no lawyer needs to be told any thing about the law in question, yet, to relieve the minds of the laymen and lay-ladies who form and read our foolish "American Society," we will state, as gravely as we can, that there is no cause for alarm, at least, to the ladies. The marriages are all valid, everywhere. Even in this State, although marriage is held to be a civil contract, yet civil contracts made for a lawful purpose, and not tending to disturb the public peace and quiet, are valid and enforceable, although made on Sunday. Now, unless it can be made out that marriage is a contract tending to disturb the public peace and quiet, we see no trouble. Some marriages do have that tendency, undoubtedly, and we advise the female parties thereto to look out for themselves. As to the millionaire, we fancy his will must stand; he might have given his estate to Tom, Dick and Harry, who are not his children at all, even by a Sunday marriage, and they would take it in spite of the children by the week-day marriage. As to marriages of minors, in every community the lawful age at which marriage may be contracted is fixed below the age of majority; in this State it is fourteen for men and twelve for women, the latter being so much smarter, and, we may add, more impatient. GENERAL TERM ABSTRACT. JUNE TERM, 1871. NEW YORK COMMON PLEAS. ACCOUNT STATED. 1. This action was brought to recover a balance of $210, alleged to be due from defendant. The material part of the defense was the stating of an account between the parties, when a balance of $9 was agreed to be due plaintiff. The referee's findings agree with defendant's claim. On appeal by plaintiff, held, the account was gone over of the goods sold and the payments, and the result, the defendant says, that was arrived at was, that there was $9 due the plaintiff, showing that the defendant acquiesced and agreed in that as the amount due. Upon this state of facts an action could have been maintained against the defendant for that sum as upon an account stated. When an account is thus stated it is usually conclusive upon both parties, but not absolutely so, unless there have been mutual compromises, which operate as an estoppel in pais; but otherwise it is open to impeachment for fraud or mistake; but the burden of showing fraud or mistake is upon the party impeaching it. When parties have adjusted an account, have struck a balance and agreed upon the amount due, courts are exceedingly unwilling to open it again, unless there has been fraud, or it is very clear that there has been a mistake. In the case at bar, the plaintiff did not deny that the account of goods sold and payments had been gone over at the time stated, and that the result arrived at was a balance due to plaintiff of $9. He gave no testimony to show how this result was arrived at, or by what mistake in respect to any particular item or items the error was made. Judgment affirmed. Koch v. Bouitz. Opinion by Daly, C. J. 2. It is not necessary, in an account stated, that there should be mutual or cross demands. They may be all on one side, or consist, as in the case at bar, of charges and the acknowledgment of payment. The simple reading over of the items of an account between the parties, and the striking of a balance on the agreement upon the amount due, is sufficient. Ib. 3. Conforming pleadings to testimony, on appeal.The court, on appeal, should not hesitate to conform the pleadings to the testimony when the evidence was received without objection. Ib. APPEAL. See Account Stated; also see Brokers. BROKERS. 1. Evidence of custom as to commissions.-The claim in this action was based on an employment of plaintiffs, and an alleged usage of brokers to charge a rate of two and one-half per cent on the rent for the first year, one per cent on the rent for the subsequent years, and one per cent on the bonus. The exceptions, on review, are as to the admission of proof as to the usage or usual rate of commissions, and to the judge's refusal to grant a new trial on the ground of misdirection to the jury on the subject of the evidence of such usage. Held, that the evidence of usage of brokers as to com missions was admissible. All the parties were doing business in the city of New York, where the defendant employed the plaintiffs as real estate brokers. No compensation was agreed upon. Those who deal with brokers are presumed to do so with notice of their usages, when such usage is not in contravention of any rule or principle of law. A usage to charge a certain commission, if general, is notice to all who deal with brokers, and binds them. The evidence offered failed to establish the general usage claimed; the verdict in favor of plaintiffs, as an award of a reasonable compensation, is, however, warranted by the evidence. Siegel et al. v. Lewis et al. Opinion by J. F. Daly, J. 2. Review of charge on appeal. -The court at general term may review the charge below, even where no exceptions were taken to it, and, if error be found in it, may order a new trial upon an appeal from an order refusing a new trial. This is not a matter of right, however, in the appellant, when he took no exceptions and made no request. In all cases the whole charge must be considered, not detached portions which were not excepted to. Ib. 3. The employment of a broker. -The plaintiffs, real estate brokers, were authorized by defendant to find a purchaser for certain premises belonging to him, for which they were to receive the usual commissions. Plaintiffs subsequently introduced one Schwab, a person of good financial ability, to defendant, and negotiations were had between the parties, which finally resulted in the defendant executing (conjointly with his wife) the following receipt: "Received from A. Schwab the sum of $10, part of purchase-money on the sale of my house, No. 182 Ludlow street, in the city of New York, for $22,100." The sum named was paid and the receipt given preliminary to an agreement to be executed by the parties, in which the terms of sale should be more fully stated, and upon the execution of which $500 was to be paid. This agreement was never consummated. Schwab declined the purchase. Judgment was given below in favor of the plaintiffs for the amount of their commissions on sale. On appeal, held, the employment being clearly established, the only question is, did plaintiffs fulfill the terms of their employment? The minds of the defendant and Schwab, who had been introduced by plaintiffs, met, and were expressed in the payment of the money, and the giving of the receipt for the purchase. Defendant chose to consider the sale as made when the receipt was given, and trusted to the credit and honesty of the purchaser. The plaintiffs were not accountable for the imperfect manner in which the agreement or receipt was drawn; it was not their duty to supervise its execution, nor were they responsible for its performance. They found a purchaser whom defendant accepted, and thus performed the services for which they were employed. The statute of frauds does not affect plaintiffs' claim, which is independent of the agreement between defendant and the purchaser. Barnard v. Mount, 3 Keyes, 203, cited. Judgment affirmed. Heinrich et al. v. Kom. Opinion by Larremore, J. 4. When brokers cannot act for both parties.- Appeal from a judgment in favor of plaintiff for his commissions for effecting the exchange of certain real estate. The plaintiff claimed that he was entitled to receive the commissions from both parties to the exchange. Defendant denied his employment, or his right in any case to act as a broker for both parties. On appeal, held, upon an exchange like this it is difficult to say who is the purchaser, and, so far as the broker is concerned, this is immaterial, for his right to a commission depends upon his employment either to buy or to sell, or to effect an exchange of property for the person in whose interest he is acting, and for whom he must act exclusively. Plaintiff could not act for both parties and be compensated by both, unless that was the understanding with each other and with him. If the defendant ever employed the plaintiff at all, it was to get a satisfactory offer for his house, and it does not appear that any thing was done under the alleged employment; and, after the lapse of more than a year, nothing having been done, it must be regarded as practically at an end. The exchange of the properties was plaintiff's own conception, and if he meant in bringing it about to act exclusively as defendant's agent he should have so advised him. Plaintiff has precluded himself from receiving any thing from either party, for he was not, in the true sense of that relation, the broker of either. Pugsley v. Murray, 4 E. D. Smith, and Watkins v. Consall, 1 id., cited. Judgment reversed. King v. Parr. Opinion by Daly, C. J. 5. When brokers may act for both parties.-A broker or any other agent may undoubtedly act for both the principals in a sale or exchange of property, when that is the understanding of both the principals with each other and with him, and under such an arrangement he would have the right to apportion his regular commissions equally between them. Ib. Also, see Usury. CONTRACTS. Rescission of contracts.-The plaintiff put in defendant's house a furnace, which he guaranteed would heat the house satisfactorily. It did not prove satisfactory the first winter, and the plaintiff caused certain alterations to be made, with the consent of defendant, which, it is alleged, caused it to work well. Defendant continued to use the furnace, and made no complaint till the bill was presented, about a year and a half after the furnace was put in. Judgment for plaintiff in an action for the price of the furnace. On appeal, held, if defendant wished to rescind the contract, it was incumbent on him, if the furnace on cold days would not heat the house, as alleged, after the alteration made in it, to have so notified the plaintiff; otherwise he must be regarded as having elected to keep it, with the right to sue for the breach of the warranty, or show the extent of its diminished value in an action for the price. Defendant should not have gone on using the furnace throughout the whole of the winter, but should have given prompt notice of his intention to rescind. He might have been entitled, on his counterclaim, to something for the insufficiency of the furnace during the first winter, but he failed to give any evidence to serve as a measure to reduce the amount agreed to be paid in the first instance. Judgment affirmed. Butler v. Kellogg. Opinion by Daly, C. J. CUSTOM OF TRADE. See Brokers. 1. Measure of damages. -The defendants sold a horse, wagon and appurtenances, and a certain milk route in the city of New York, agreeing, at the same time, that he would not sell milk on the said route. This action is for damages for breach of the agreement. The defendant claimed that the correct rule of damages would be the difference between the contract price at which defendant sold the property and its actual value after the breach. This was overruled. Judgment for plaintiff. On appeal, held, that the loss of customers and loss of daily profits was the direct result of the defendant's breach of his agreement, and is admissible as proof of damage. It might be that the route was worth more than the defendant sold it for, but, if so, the plaintiffs were entitled to the benefit of their bargain; and the defendant has no right to reduce the value of the property, by interfering with it, taking away customers, etc., down to a sum equal to the contract price. Judgment affirmed. Tuttle et al. v. Hannegan. Opinion by J. F. Daly, J. 2. Evidence. On the trial the admission in evidence of a certain writing, which contained, in the form of a condition of a bond, an agreement substantially the same as in the complaint was objected to. Held, that the writing was not a bond, and, not being under seal, it cannot be regarded as an instrument of higher character, into which the parol contract of the parties was merged. The plaintiffs were not bound, therefore, to bring their action upon it, but had a right to plead the parol agreement, and offer the writing in evidence to sustain their case. Exceptions were not well taken. Ib. EVIDENCE. See Brokers, Damages, and Pleadings. INJUNCTION. Appeal from an order of special term of this court, denying defendant's motion to dissolve a preliminary injunction restraining the collection of a judgment in the 7th district court of New York city, in favor of defendant against plaintiff. Upon applying for the preliminary injunction, plaintiff, did not deposit the amount of the judgment and costs, nor give the bond as required by the revised statutes (R. S., part 3, ch. 1, title 2, art. 5, § 140). Held, that a compliance with this statute was necessary to give this court jurisdiction. This has been held in the superior court and in this court, where it is well settled that the provisions of the statute in that regard were not abrogated by the code. Cook v. Dickenson, 2 Sand. 691, and Carpenter v. Keating, Albany Law Journal, 51, cited. Order appealed from reversed. Gray v. Redfield. Opinion by J. F. Daly, J. JUDGMENT. See Pleadings. LEASES. Mechanics' lien: who is " owner "under lien law.The defendants, the Messrs. Pitt, were the owners of the premises in question. The defendant, Vierkant, applied to lease them for a Russian bathing establishment. The premises were not suited to this business, and, after some negotiations, the Pitts leased the premises to Vierkant for five years, with the understanding that the plan of the alterations were to be submitted to William Pitt, and, if it suited him, it was to be "all right." Vierkant then made the contract with plaintiff, under which the proceedings under the lien law are taken. It appeared that Pitt was the principal man in giving directions for the work. Both Vierkant and Pitt agree that the bath-house was to be built and the alteration made at the expense of the lessee, and the lessors were not to pay any part of the work. Held, that Vierkant was the owner within the meaning of the lien law. The word "owner," as used in the statute, refers to the erection, and not to the land on which it is placed, and, if the land is owned by one person and the building by another, it is only the title of the latter that can be affected by the lien. Vierkant, and not the lessors, were to pay for what was done, and all that the lien could reach was his right and title to the use and enjoyment of the premises for the period during which they were demised to him. The judgment against the Messrs. Pitt must be reversed. Muldoon v. Vierkant and Pitt. Opinion by Daly, C. J. See Mechanics' lien. PLEADINGS. On 1. What cannot be shown under general denial.-The claim in suit was predicated upon a judgment alleged in the complaint to have been given and entered in the supreme court on January 7, 1868. The suit was commenced in March, 1868. The answer, served in July, 1868, simply denied each and every allegation in the complaint. On the trial, a judgment roll was produced and given in evidence, establishing the recovery of the judgment as alleged in the complaint. Defendant then offered in evidence an order of the supreme court, dated April 29, 1868, vacating the judgment, which was objected to, first, because made subsequent to the commencement of the suit, and inadmissible under the answer; second, that it could only be admitted on order and by way of supplemental answer. It was, however, admitted in evidence and plaintiff excepted. Judgment was given for defendant. appeal, held, in the admission of this testimony there was an error. The issue being alone as to the alleged recovery of the judgment, the general denial could only allow proof as to that fact, and in no way presented any question as to the judgment having been subsequently vacated. The plaintiff established his case by production of the judgment roll, and defendants were allowed, against objection and exception, to maintain a defense, in no way suggested by way of answer, by introducing the subsequent order vacating it. This order constituted no part of the judgment roll, and was, in itself, the subject of a separate appeal from that which might be taken from the judgment. The judgment once perfected, however irregular in form or entry, was not void, but only voidable, and any matter of allegation attacking directly or collaterally its force or its right to "full force and credit" ought to have been specially pleaded. No application was made or allowed to amend the answer by adding this new defense, and evidence to establish it is inadmissible. A judgment in an action must be warranted by what has been alleged and proved. Wright v. Douglass, 25 N. Y. 270, cited. Judgment reversed. Carpenter v. Goodwin et al. Opinion by Robinson, J. 2. To what time pleadings relate.- By the former rule the pleadings all had reference to the state of facts existing at the date of the declaration in the action, and a defense thereafter arising could only be specially pleaded. The code, however, allows the defendant, by answer, to make available as a defense whatever has transpired previous to its being interposed, and the validity of the pleading is to be tested as to the state of facts when it is interposed. Ib. Also see Account Stated. PUBLIC OFFICERS. An officer of the government of the United States is not responsible upon contracts made by him officially in the discharge of his public duties unless he expressly engages to be answerable, or the circumstances are such as show that he intended to bind himself personally. He is not bound even in cases where, by the terms of the contract, he would be if the agency were one of a private nature, the reason being that it is not to be presumed that a public officer intends to bind himself personally when acting as a public functionary, or that the party dealing with him in matters relating to his public duties means to rely upon his individual responsibility. Crowell v. Crispin. Opinion by Daly, C. J. STATUTE OF FRAUDS. See Brokers. USURY. The defendants acted as brokers of the plaintiff, and advanced certain sums of money to carry the stock in question in this action. These sums were borrowed by them at the request and for the use of plaintiff, and the extra rate of interest paid therefor was not shown to have inured in any way to the benefit of defendants. The transactions in reference to the charge and payment of such extra interest were had and conducted, not between the plaintiff and defendants, but between third parties and the defendants as agents of plaintiff. Held, that, as defendants were discharging, by plaintiff's direction, obligations which he had assumed or incurred, they were entitled to payment of the amount thus disbursed. Plaintiff agreed to pay such extra interest, and may be said to have borrowed from defendants the amount necessary for that purpose. I cannot find in this proceeding any violation of the statute against usury. But, if this view be incorrect, the holder of the note is entitled to recover the amount of the original indebtedness for which it was given, exclusive of the amount alleged to be usurious. 37 N. Y. 353; 39 id. 325; 33 Barb. 637, cited. Smith v. Heath et al. Opinion by Larremore, J. DIGEST OF RECENT AMERICAN DECISIONS. SUPREME COURT OF NEW YORK. * ACTION. 1. To stay proceedings in another suit. It is improper to commence one action to stay proceedings in another, whether in the same or another court, where the plaintiff in the second action could have obtained the same relief in the original action that he may obtain in the second. Savage v. Allen. 2. If the former action is still pending, the defendant therein is not remediless. He may yet set up therein any defense which he has against the claim of the plaintiff. Ib. ALTERATION OF INSTRUMENTS. 1. It is not every alteration that will destroy an instrument. In order to produce that effect the alteration must be material. Flint v. Craig. 2. The general rule is, that any alteration which, in any event, may alter the promisor's liability, is material and vitiating, if made without his consent at the time or approval afterward; otherwise not. Ib. |