Imágenes de páginas
PDF
EPUB

<<

Legislature. The various provisions of the enacted statute all tend to show that the Legislature had no intention to permit physicians, druggists or any other person to sell intoxicated liquors for the excepted purposes without first having procured a druggists' permit therefor from the Probate judge." Ita lex scripta- so the law is written. We cannot make the law, nor by judicial construction change or modify its terms so as to legalize sales which are expressly prohibited. Woods v. State, 36 Ark. 36; Wright v. People, 101 Ill. 126; State v. Hall, 39 Me. 107; State v. Browu, 31 id. 523; Commonwealth v. Sloane, 58 Mass. 52. Counsel refer to the statutes of several States forbidding the sale of intoxicating liquors, which contain no exceptive provisions, and cite decisions from those States to the effect that the Legislatures of those States must be presumed to have left the necessity of saving life and curing the sick to operate as an implied exception to the general terms of the statutes. Thomason v. State, 50 Ind. 449; State v. Mitchell, 28 Mo. 563; State v. Larimour, 19 id. 391; State v. Wray, 72 N. C. 253. Some of these cases are in conflict with the previous decisions of this court. While the old dramshop act regulating the sale of intoxicating liquors was in force, this court decided that druggists had no right to sell intoxicating liquors, even for medical purposes, without license. City of Salina v. Seitz, 16 Kans. 143. But the decisions cited by the defendant are not applicable to the present case, because there is embodied in the statute of this State a specific provision made for the sale of intoxicating liquors for medical purposes, and the statute is bristling all over with provisions tending to show that it was in the mind of the Legislature, at the time the statute was adopted to forbid physicians and all other persons from selling or bartering intoxicating liquors for medical purposes, without first having procured a permit. It is very true that the evil sought to be remedied by the statute is the use of intoxicating liquors as a beverage, and that this purpose interprets the law. IntoxicatingLiquor cases, 25 Kans. 751. But the idea of prohibition as embraced in the statute is the absolute destruction of the use, as a beverage, of intoxicating liquors. To accomplish this, the Legislature has seen fit to throw severe restrictions around the anministering of liquors even as a medicine. It has attempted thereby to prevent the excepted sales from becoming the ways and means of rendering the statute abortive. Whether the Legislature has acted wisely, it is not for us to say, For the law, the Legislature and not the courts is responsible. It is ciearly indiscreet to prosecute trausactions like the one charged in the complaint; but the defendant had no right to administer liquor as a medicine contrary to the provisions of the statute. State v. Fleming. Opinion by Horton, C. J.

NEBRASKA SUPREME COURT ABSTRACT.

SALE-STOPPAGE IN TRANSIT.-The right of stoppage in transitu may be asserted by the vendor of the goods at any time before their delivery to the vendee by the carrier. But if the goods are by the vendee sold to a third party in good faith for value, and they are by the carrier delivered to the vendee, who delivers them to his vendee, the lien of the consignor is lost, and he cannot retake the goods in the possession of such vendee of his vendee. Hutch. Car., § 409; Story Sales, §§ 318, 319; Newhall v. Vargas, 13 Me. 93; Fraschieris v. Henriques, 6 Abb. Pr. (N. S.) 251. United States, etc., Pump Co. v. Oliver. Opinion by Reese, J. [See 35 Am. Rep. 17.]

[Decided Nov. 18, 1884.]

[ocr errors]

TAXATION-NOTICE TO OWNER-ENJOINING COLLECTION. There is no doubt that notice of some kind must be given to a property owner and an opportunity given him to he heard before an assessment upon his property becomes finally and irrevocably fixed. County of Santa Clara v. Southern Pac. R. Co., 18 Fed. Rep. 385; Same v. Same, 13 id. 722; Thomas v. Gaiu, 35 Mich. 155; Butler v. Supervisors, 26 id. 22; Paul v. Detroit, 32 id. 108; Philadelphia v. Miller, 49 Penn. St. 440; Patten v. Green, 13 Cal. 325; Gatoh v.Des Moines, 18 N. W. Rep. 310. And that the notice should be provided for in the statute or ordinance authorizing the improvement, there is no doubt. The object of notice however is to enable the property owner to protect his rights by the proper proceedings. If he appear in the case the object of notice has been accomplished, nor will he be heard afterward to complain on that ground. But even where there is neither notice nor appearance, but the circumstances were such that he must have known the facts, if there was authority to impose the tax, a party cannot, after the improvement is made, enjoin the collection of the tax assessed to pay for the same; in other words, retain the benefit derived from the improvement without doing equity by tendering the amount for which the property would be justly liable. La Fayette v. Fowler, 34 Ind. 140; Sleeper v. Bullen, 6 Kan. 300; Evansville v. Pfisterer, 34 Ind. 36; Weber v. San Francisco, 1 Cal. 455; Kellogg v. Ely, 15 Ohio St. 64; Tash v. Adams, 10 Cush, 252; Motz v. Detroit, 18 Mich. 495; Warren v. Graud Haven, 30 id. 24; Peoria v. Kidder, 26 Ill. 351. Barker v. Omaha. Opinion by Maxwell, J. [Decided Aug. 26, 1884.]

USURY-QUESTION OF INTENT-PLEADING.-To constitute an usurious transaction there must be a loan, and there must be au intent to take usurious interest. Pomeroy v. Ainsworth, 22 Barb. 118; Reed v. Coale, 4 Ind. 283; 2 Pars. Bills & Notes, 405. Both parties must concur in this intent-the borrower to give and the lender to accept usurious interest. State Bank v. Coquillard, 6 Ind. 232; Evans v. Negley, 13 Serg. & R. 218; Leavitt v. De Launy, 4 N. Y. 364; Agricultural Bank v. Bissell, 12 Pick. 586; Bank v. Waggener, 9 Pet. 378; Lloyd v. Scott, 4 id. 205. The intent which is essential is not intent to violate the statute, but to take more than the rate fixed by law. Abb. Tr. Ev. 793; Fiedler v. Darrin, 50 N. Y. 437. The intent may be deduced from the facts proved, as by the reservation of interest in excess of the legal limit (Abb. Tr. Ev. 793); but the proof cannot make a stronger defense than the answer in the case. It is therefore essential in pleading to state with whom the usurious agreement was made, its nature, and the amount of usurious interest agreed upon or received. Manning v. Tyler, 21 N. Y. 567; Maxw. Pl. & Pr. (3d ed.) 105. New England, etc., Co. v. Sanford. Opinion by Maxwell, J.

[Decided Nov. 18, 1884.]

[blocks in formation]
[ocr errors]

own use and benefit. It is not necessary that the as. sent of the wife shall be established by evidence proving words spoken or written by her. If it be clearly proved that the wife was called to act upon a definite proposal that she should consent to her husband's reduction to possession of a specific article, or part of her separate property, for his own use and benefit, and that she did act affirmatively upon that proposal, the assent is express within the obvious meaning of this statute. Pollock's Principles of Contract, 28, and cases cited; 1 Story Cont.,§ 14, Alexander v. Vane, 1 M. & W. 511. Franc v. Nirdlenger. Opinion by Granger, C. J.

NEGOTIABLE INSTRUMENT-MATERIAL ALTERATION -SURETY-CONTRIBUTION.-(1) The rule is elementary, that a material aud intentional alteration of a written instrument will avoid it, when the alteration is made by or with the privity of one claiming a benefit under the instrument, and after the instrument has been delivered and taken effect. Fullerton v. Sturges, 4 Ohio St. 529 and cases cited. In German Bank v. Dunn, 62 Mo. 79, after a note was completed, in the absence and without the authority or knowledge of the maker, the name of the payee was by the holder erased, and his own name substituted. In the case of Stoddard v. Penniman, 108 Mass. 366, the action was to charge the defendant as an original promisor upon a promissory note. It appeared that the note was made payable to the maker's order; that while it was in this condition, and before the maker indorsed it, the defendant put

his name ou the back of it for the maker's accommodation; and that in negotiating it to the plaintiff, the maker altered its face so as to make it payable to the plaintiff's order, without the defendant's knowledge

or consent. It was held that this was a material alteration, and avoided the defendant's liability. See also Cumberland Bauk v. Hall, 1 Halst. 215; Dolbier v. Norton, 17 Me. 307. (2) It is the general rule that if several persons become co-sureties, by the same instrument, and one surety pay the demand, or more than his own proportion of it in reference to the number of his co-sureties, and thereby relieve the latter from liability, he may recover against each co-surety his aliquot share or proportion of the debt, or of the sum paid by him beyond his own proportion, upon an implied promise to contribute. The note under consideration having been altered without the knowledge or consent of Philip Bauer, he was discharged from its payment. But notwithstanding his discharge, he paid the note sua sponte, and having done so, he could have no claim for contribution upon the other joint and several makers who were his co-sureties. To establish a olaim for contribution, the payment must have been made by him under a legal and fixed obligation. Pitt v. Purssord, 8 M. & W. 538; Davies v. Humphreys, 6 id. 153; 2 Parsons' N. & B. 253. In the emphatic language of the court in Russell v. Failor, 1 Ohio St. 327; Upon no principle of justice or sound reason, can a surety, by voluntarily paying money on a void note, impose au obligation upon a co-surety for contribution." Davis v. Bauer. Opinion by Dickman, J.

"6

NEGLIGENCE-PUBLIC

MUNICIPAL CORPORATION BUILDING-EXCAVATION FOR.-A city is not liable for an injury resulting from the unsafe or dangerous condition of lands adjacent to a street where the place of danger is so far from the street that no injury can result to persons in the ordinary and proper use of the street. The owner of land is not liable for injury resulting from the unsafe or dangerous condition of his premises, to persons who go upon them without invitation express or .mplied. The fact that a pavement was continuous from a sidewalk on a street over the adjacent lands to the place of danger, was not of itself an implied invitation to a person on the sidewalk to

go upon the adjacent lands. The liability of the city for the injury sustained by the plaintiff is contended for upon the principle of the cases of Hargreaves v. Deacon, 25 Mich. 5; Young v. Harvey, 16 Ind. 314; Mullen v. St. John, 57 N. Y. 567; Beck v. Carter, 68 id. 283, and many others, that a municipal corporation is liable for injuries resulting from obstructions, excavations, pitfalls or other dangerous condition of premises outside of the street, but so near to it as to cause injury to persons in the proper and lawful use of the street, and upon the principle also of the cases of Bennett v. Railroad Co., 102 U. S. 577; Sweeny v. Old Colony Railroad, 10 Allen, 368; Larue v. Farren Hotel Co., 116 Mass. 67, that the owner of laud is liable to persons who go upon it, by invitation express or implied, for injury arising from the unsafe or dangerous condition of the premises. The plaintiff was walking along the sidewalk immediately before the accident occurred. The place where he fell into the excavation was about thirty feet from the sidewalk or street proper. The north end of the excavation did not come within thirty feet of the street. A person therefore in the ordinary use of the sidewalk would seem to have been out of all possible danger of falling into the excavation. If the excavation had been so near the street that a person had fallen into it while passing on the sidewalk and in the ordinary use of it, a liability for resulting injury would follow. This excavation was so far from the street that it could have caused no injury, except when the person passing along the sidewalk turned out of his way, as the plaintiff clearly did in this case, and went to it. Protection against pitfalls, excavations, or other dangerous condition of grounds is extended to those only who are there by invitation express or implied. If business is carried on upon the lot, or any curiosity kept there, open to the public, or any inducement or allurement held out to the public beyond a mere permission to go there, the duty to keep the premises safe arises; but if a lot is left unfenced a person who goes upon it by bare permission because there is no obstruction to keep him off, goes at his own risk. Railway Co. v. Bingham, 29 Ohio St. 364; Beck v. Carter, 68 N. Y. 283. Kelley v. City of Columbus. Opinion by McCauley, J.

FINANCIAL LAW.

NEGOTIABLE INSTRUMENT-ALTERATION-DOES NOT RELEASE WHEN CONSENTED TO-BONA FIDE HOLDER.

(1) The material alteration of a promissory note avoids the note as to the maker not consenting thereto, eveu in the hands of a bone fide holder. Bauk v. Hall, 1 Halst. N. J. L. 215; Stoddard v. Penniman, 108 Mass. 366; Draper v. Wood, 112 id. 315; 17 Am. Rep. 92, 106; 2 Dan. Neg. Inst., §§ 1387-1390. (2) If a promissory note be altered by substituting another payee for the original payee with the knowledge and consent of one of the makers, but without the knowledge or consent of the other maker, such material alteration releases from all liability the maker not consenting. Lanier v. McCabe, 2 Fla. 32; Prince v. Crawford, 50 Miss. 344; Crossthwait v. Ross, 1 Humph. (Tenn.) 23; Smith v. Sloane, 37 Wis. 285; 19 Am. Rep. 757; Deardorf v. Thatcher, 78 Mo. 128; 1 Dan. Neg. Inst., §§ 355-358. (3) Where a note given for a threshing machine jointly owned by H. and L. was executed in the individual names of H. and L., and H. and L. are in partnership in the operation of the machine-dividing the profits and losses equally-and while such relation exists the payee in the note is altered by substituting the name of O. for the original payee, and the alteration is made with the knowledge and consent of H., but without the knowledge or consent of L., held, as H. and L. are not in a trading or commercial partnership, H. had no authority to make the material alteration in the note

[ocr errors]

Frary, appellant, v. Orleans County Bank, respondent;
Henry J. Goodwin and others, appellants, v. Leopold
Westheimer, impleaded, respondent.Order of Gen-
eral Term reversed; judgmen of Special Term
affirmed, with costs-James Jackson, receiver, appel-
laut, v. St. Paul Fire Ins. Co., respondent.—Judg-
ment reversed, new trial granted, costs to abide the
event-Sarah R. Odell, infant, respondent, v. Solomon
B. Solomon and others, appellants.—Order affirmed,
with costs-People ex rel. Mary S. Prendergast, appel-

eroy, 20 Mich. 425; Benedict v. Cowden, 49 N. Y. 396;
Bank v.
Stowell, 123 Mass. 196; 2 Dan. Neg. Inst., SS
1410-1413. Sup. Ct. Kans. Horn v. Newton City
Bank. Opinion by Horton, C. J. [32 Kans. 517.]

so as to bind L., and such material alteration being
made without the consent of L., releases him from all
liability upon it. The material alteration of a note
with the consent of a maker is virtually making a new
note and ante-dating it. We therefore conclude that
the material alteration of the note in question released
L. Broughton v. Fuller, 9 Vt. 373. That the bank
purchased the note before maturity, for a valuable
consideration, aud is therefore a bona fide holder of
the note, does not prevent L. from asserting the mate-
rial alteration of the note as a defense. Wait v. Pom-lant, v. Anna H. Fargo, respondent; Annie Smith, re-
spondent V. Philip Smith, appellant; People
ex rel. Thomas Byrnes, appellant, v. Stephen B.
French and others, commissioners, respond-
ents; Amelia Merritt, respondent, v. John H.
Merritt, appellant.-Appeal dismissed, with costs
Lewis J. Goddard, receiver, appellant, v. Stephen
Stilės, respondent; People ex rel. Abraham Dowdney,
appellant, v. Hubert O. Thompson, respondent; Jacob
Crounse and others, appellants, v. Harlow G. Booth-
wick, sheriff, respondent; People ex rel. William H.
Osgood and another, appellants, v. Commissioner of
Texas, respondent; Pardee Carpenter, appellant, 'v.
-Order affirmed, with
Harriet P. Wood, respondent.
costs. No opinion, all concur-People v. Merchants'
Bank (claim of Whittaker).-Motion to advance as
preferred, denied, with costs-Elias Q. Horton, re-
spondent, v. Coffin L. Brown, executor, appellant.-
Motion to date decision nunc pro tunc as of March 24,
1885, granted, without costs-Ezra Caulkins, respond-
ent, v. Danforth D. Bolton and another, commission-
ers, appellants.

CORRESPONDENCE.

ANSWER TO A QUERY. Editor of the Albany Law Journal:

In 30 Alb. L. J. 340 is found a query which the subsequent numbers of your journal do not show to have been answered. Will you kindly refer your correspondent to State ex rel. Laclede Bank v. Lewis, 76 Mo. 370, as being the latest and a very full discussion of the question asked?

Respectfully, L. C. KRAUTHOFF. JEFFERSON CITY, Mo., May 1, 1885.

NEW BOOKS AND NEW EDITIONS:

PAINE'S BANKING LAWS.

The Laws of the State of New York relating to Banks, Banking and Trust Companies, and companies receiving money on deposit, also the National Bank Act and Cognate United States Statutes, with amendments and annotations. By Willis S. Paine. Weed, Parsons & Co., Albany, N. Y. 1885.

[merged small][ocr errors][merged small][merged small]

Judgment affirmed with costs-Charles H. Russell, receiver, respondent, v. George W. Nelson et al., appellants; John Craigill et al., respondents v. Sterling G. Hadley, receiver, appellant; Henry A. Gildersleeve, appellant, v. Mayor, etc., of New York, respondent; Carrie Hagenlocher, infant, respondent, v. Coney Island and Brooklyn R. Co., appellant; Board of Education, of Auburn, respondent, v. Henry V. Quick and others, administrators, appellants; Board of Commissioners of Pilots, respondents, v. John W. Ambrose, appellant; George S. Riley, respondent, v. Francis A. Schoeffel, sheriff, appellant; James Roach, appellant, v. Benjamin B. Odell, sheriff, respondent; In re Final Accounting of Kendrick E. Morgan, assignee, etc.; In re Petition of George A. Harding, etc.; Augusta W.

NOTES.

""

An important decision concerning innkeepers. Among the anecdotes of Judge Walton is the following: Early after his first appointment he went to Alfred to hold court, and called on Landlord Berry, who offered him his best room with a proviso that after ex-Judge Howard's arrival he would have to put him in another room. "Well, what room?" asked Judge Walton. He was shown a little 7 by 9 den, whereupon he told Berry that he would take the best room, as Judge Howard would not want it. "Why "I shall adjourn the court to-morrow to Saco." "Who not?" asked Berry. "Because," said Judge Walton, is going to take your place here?" asked Mr. Berry, who was not quick to take in the situation. "Why, nobody," said Judge Walton. "A judge can't stay in town and hold court and sleep in the street; he must have a room.' "6 Oh," " said Berry, "I will see." He saw, and was conquered. He told Judge Walton he could have his best room. At the end of the term Judge Walton gave the landlord this advice: "Court week is your harvest. If you want a long term and to make lots of money make the judge just as comfortable as you can. He has power to break up the court just when he pleases; but if he is made comfortable he will stay just as long as he finds any thing to do."Lewiston (Me.) Journal.- -The Central Law Journal informs its readers that it has received commands from one or two subscribers to "stop the paper," but says the Journal, "the paper, our readers perceive, is not stopped. "" One of the subscribers was dissatisfied because of the Journal's opposition to champerty and an alleged attack upon the Bible. The Journal says: "This really hurt our feelings. We confess to being opposed to champerty, but we have never spoken disrespectfully of the Holy Scriptures. In fact it was from a story told in the Divine Book, of the soldiers casting lots for the garments of our Saviour, that we imbibed our antipathy to champerty. Good news. Mr. J. W. Donovan writes that he has sold his book, he is going to make no more books, being too busy. “Tact in Court," to his publishers for $2,500, and that The West Coast Reporter evidently has a Chinese proof reader. He transforms our case of Kortright v. Cady into Kortoryght v. Kaday.

[ocr errors]

The Albany Law Journal.

ALBANY, MAY 16, 1885.

CURRENT TOPICS.

THE

"C

HE lower house of our Legislature have defeated the Civil Code by a vote of 67 to 52. This result was not unanticipated, but some of the arguments that brought it about were. Many of them were puerile, both in the house and out of it. What kind of an argu ent is it that 160 of the 180 lawyers of Syracuse are opposed to the Code? Or that it proposes 3000 new " laws? Or that the members have not read it? When will they read it, and know anything about it, or about any thing that pertains to the reform of our laws? Will it be the next week or the next year, or will it be when they have passed from their brief tenure of authority, and the battle has to be fought over again with a new set of legislators? To illustrate how little the public press understand of this matter, outside of a few journals that have taken pains to understand it, the Troy Times, one of the most iufluential and respectable newspapers in the State, published two or three weeks ago an argument of some length in favor of the Code, but referring to the bill as an act to "amend" the Field Code, as if that were an existing law. Now that the act is defeated, the same journal characterizes the defeat as a "meritorious" act, and one of the three only meritorious acts of the house! Such are the instructors of our people, and such are our law makers. We say nothing of the inner history of this winter's campaign, although there is a history. We only say that we believe that the lawyers of the New York City Bar Association have left no stone unturned to effect their purpose. Of course, no one believes that a profession too lazy or indifferent to read the proposed Code have ever read Mr. Carter's or Mr. J. Bleecker Miller's oracular utterances on the subject. We believe we are the only man in the State who has read them all. Any candid man who read the speeches in the House on the third reading must admit the great superiority of those of the friends of the bill. Personally, we say, as we said a year ago, the result is not disadvantageous to us as editor and reporter of opinions. But, how will it suit even such code-phobists as Mr. Cowen, who used columns of this journal in blaming the Court of Appeals because they thought there is a legal difference between a ditch and a drain, and who would like to have some certainty about such things? But we are not discouraged. We shall be alive and lively, long after Prof. Dwight, the great constructor of lawyers upon the " elastic principles of the common law, and Mr. Carter, a really great lawyer, and Mr. J. Bleecker Miller, who doubtless will be greater some time, and all the rest of our opponents shall be dead and mainly forgotten. We might feel discouraged were it not for the recollection that the first law writing we ever VOL. 31-No. 20.

""

did was a thesis in 1857 in favor of allowing parties to be witnesses for themselves. A long and thorny and up-hill road is that of law-reform. Mr. Field also will be alive for twenty years, and he says: “I am not in the least discouraged. We have gained largely in circulating a knowledge of the Code, and the fifty-two members, who voted for it, acted upon a better knowledge of the subject than any fiftytwo members ever did before." In closing, we would remark, that if it is the purpose of our Legislatures to know the Code before voting for it, why did not Gov. Cleveland sign last year's bill for a commission! Will some of the New York clique rise to explain?¦

Although we desire to be known as the "organ" of our profession in this State, we also desire it to be understood that we are not to be played upon by others upon every occasion. So we frequently suppress what seems to us trivial fault-finding with our courts. We rather like to reserve that privilege for ourselves. Occasionally we make an exception in favor of a well-known lawyer of high standing, like Mr. Cowen, who adjourned his case to the tavern, and now in favor of Judge Peck, Readers will who finds fault in another column. draw their own conclusions. Judge Peck publishes on his own responsibility and signs his name like a man. If some of his readers come to the conclusion that he was beaten upon a technicality savoring more of old times than of Code practice, we shall not be surprised. We feel free to say, however, that such a state of things is a reproach to our system of law, which professes to be superior to such doctrines.

Now that we are in a fault-finding mood, we may as well inquire what right Judge Van Brunt had to tell the jury in the Short case that he was surprised at their verdict? He probably was, and so perhaps were others, but we conceive that it was no more in his province to tell them so than it is in ours. Two hundred years ago he would have had the power to emphasize his surprise by putting them in jail. The result was no more surprising to us than the usual verdict in corporation cases, whether tried by judge or jury, or in cases of emotional killing for injured honor's sake. It is unfortunate that the people cannot have a new trial in this case on the ground of the judge's surprise.

At a meeting of the Tennessee Bar Association last year, papers on codification were read by J. A. Cartwright, W. O. Vertrees and J. M. Dickinson, of Nashville, and ex-Judge Sneed, of Memphis. Messrs. Cartwright and Dickinson, pro, and the others, con. But Judge Sneed made the following telling argument in favor of codification: "In my judgment, one of the greatest evils under the sun is the rapid accumulation of books of reports which contain no new doctrine. Just think of it. A hundred years ago there was not a book of reports on this side of the sea. Ninety years ago there

were only two. And yet that was confessedly the Augustan age of great American lawyers. Now, there are between three and four thousand, and they are accumulating in this country at the rate of the rate of about a hundred every year. It was found that there were not geese enough in all the world to supply the judiciary with quills to write opinions with, and an ingenious artisan at Sheffield invented steel pens and scattered them broadcast over the world, mainly to meet the demands of the cacoethes scribendi, which, like an epidemic, had smitten the common law and equity courts of England and America." This we glean from the Central Law Journal.

66

According to the Tribune, a witness in the Hoyt will case, answering to a certain question by General Butler, on cross-examination, that "he could not tell," that refined and universally respected gentleman observed: Very well, don't answer then; it will take a good while to tell all you don't know." It was hardly necessary to send to Boston to get a vulgar brute to treat a witness in this way. There are plenty of shysters hanging around the Tombs who could do this just as well, without having been generals, and congressmen, and governors, or tried to be presidents, and for much less money.

The Language Club at Columbia College have been discussing "Iteration." According to the Tribune, David Dudley Field gave an exhaustive exposition on "Iteration in Law." He said that there were 860 superfluous words in every deed and 1,240 in every mortgage, and that the people of the State pay every year $100,000 for the recording of superfluous words. It was generally stated by lawyers, he said, that the use of so many unnecessary words was a matter of habit. Ex-Judge Dillon said that since he represented the bar he was obliged to plead guilty to the charge of Mr. Field. The remedy, he added, was in the hands of the Legislature. When these old forms were first used there were reasons which made the iteration necessary, but since the reasons no longer existed legal forms could be shortened without detriment to any one. The laws and forms covering the credit system in this country and in Europe were explained and as a moral, Mr. Dillon said that the Code should protect those who sold goods on credit to such an extent that all legal documents could be exceedingly brief. Mr. Field might have instanced the senseless iteration in assignments for creditors and in wills. Some of this springs from habit, but more from uncertainty in the law or in the writer's knowledge of it. The author of "Lorna Doone " says, in that admirable novel, that the lawyer "takes a careful delight in covering his traps and engines with a spread of dead-leaf words, whereof he himself knows little more than half the way to spell them."

NOTES OF CASES.

`N People v. Brown, 35 Hun, 324, the mother of a

the father placed the child with relatives of the mother, who nursed and cared for it until it had attained the age of seven years. After the child had been cared for while very delicate and sickly, the father gave a written promise to the relatives by which he agreed that the child should never be taken from them. Subsequently, the child having been allowed to visit the father, the latter refused to allow him to return to his relatives. Upon the return to a writ of habeas corpus, procured by the relatives, the court refused to receive evidence tending to show that the present wife of the father was an improper person to have charge of the child, and that his home was an improper place in which P. J., said: "It is not clear from the authorities to bring up a young child. Held error. Barnard, that a father may recede from an engagement in respect to his child, made with one who has received the child under it. If the subject were any thing but a child it would not be averred to be the correct and legal thing to avoid the engagement because it was against public policy and against the paternal right. I do not think these cases call for such a rule. They hold that the fatber's right is paramount as to the custody of the child. That as against the mother all things being equal his right is the best. That an agreement between husband and wife as to the custody of the child is bad. It is not necessary to decide this question upon the present record. It may be stated as a general rule in this state that the rights and interest of the child are paramount upon the question of the custody of the child. Wilcox v. Wilcox, 14 N. Y. 576. This ques tion includes the home of the ladies from which the boy goes. That is clearly seen from the case. It includes also the home of the father. The Special Term refused to receive proof that would show it to be an

improper home to which a child of seven and upwards should go. The glimpse obtained from the evidence is not favorable. The father was the cause of the divorce of a former husband of his present wife by her adultery with him. After the divorce he married her. Proof is refused which would show or tend to show that the present wife is very intemperate in some cases, at times to such an extent as to be helpless. Proof tending to show what this home is in respect to assemblages and practices in what is known as spiritualism is also refused. The proof of the character of the respondent's home should have been received." See note, 40 Am. Rep.

In Buck v. Moore, 35 Hun, 338, while the defendant's dog was following her along the street, it ran into an adjoining yard and there seized and killed the plaintiff's dog, without passive volition or the defendant's knowledge. Held, that defendant was not liable. Dykman, J., said: "It must be noticed in the outset that the action is not for trespass on the plaintiff's close, aggravated by the mischief done thereon, but. is simply for the damage sustained by the death of the dog. The case thereseems to fall within rule 3 of Moak's

[ocr errors]
« AnteriorContinuar »