The Albany Law Journal.

ALBANY, FEBRUARY 9, 1884.

THERE

CURRENT TOPICS.

HERE is one other man beside ourself who has read Mr. Carter's pamphlet on codification, and that is Mr. Austin Abbott, and we wonder, for Mr. Abbott is a very busy man. Here is what he says on the subject in the New York Daily Register: "If all of us were masters of the general principles which Mr. Carter claims should not be hampered by statute law we might all agree with his conclusions on the controversy to which these distinctions are introductory. But the need and justification of codification is in the necessity of an authoritative statement of what is settled law. There are questions constantly discussed at the bar simply because counsel and attorneys on one side, or both, are not aware they have been settled; and because the court is not so absolutely sure that they have been settled or have not been unsettled again, as to stop counsel in the discussion. There are questions constantly arising in business on which a lawyer has to spend hours, perhaps days, in finding and satisfying

himself that he has found a reliable statement of

what is settled; when if he had the learning and experience of our author he might have spoken with confidence at once. A code is the authoritative statement of what is the settled law, or what, in the judgment of the Legislature or their commis sioners, ought to be settled. It is not intended to invade the domain of debatable questions save in the exceptional instances where there is a general agreement of opinion that vexatious and expensive doubts should be authoritatively removed. The fact that any code is subject to imperfection is no more an argument against it than the abundance of overruled and reversed cases which attest the imperfection of jurisprudence is an argument against resort to judicial decision. Mr. Carter's discussion of the subject set in a clear light the reasons why a code should not attempt to devise a rule for every possible case or even attempt to settle every existing doubt; but no code has ever proposed this." We call special attention to the last sentence. The principal fault found with the proposed code, so far as we know, is its triteness and its enactment of familiar and simple principles.

by actual deliberation by the judges of that court, will form the best and most satisfactory barrier against the throwing of an undue amount of business upon the Court of Appeals. We do not mean to intimate that such deliberation is not usual, but it cannot be denied that the lack of it is far too common under the pressure which newspaper criticism puts upon the courts for rapid dispatch of business." In connection with this the editor lays stress on the manner of making up records for appeal as a cause of hinderance. There can be no doubt

that our records, especially since the prevalence of stenography, are abominably prolix and impertinent. This is mainly remediable, but still under our system a great deal of evidence on facts, properly before the general term, inevitably gets before the Court of Appeals where it has no business.

Mr. Croly, formerly editor of the World, is in favor of abolishing the attorney-general of the United States. He also yearns for "a mitigation of the lawyers' monopoly." In John Swinton's Paper he says: "One class, not over ten thousand in number throughout the United States, furnishes all our rulers, law-makers and judges; that is to say, the second-class lawyer furnishes nearly all our presidents, cabinet secretaries, governors, mayors, congressmen, legislators and members of local governmental boards. I say second-class lawyers advisedly, for first-class lawyers can make more money in their plundering profession than in holding offices. The lawyer caste in this country makes all our laws, expounds them from the bench, and enforces them in executive offices. The lawyer is supreme everywhere, even in so-called reform organizations. Scarcely a newspaper in the country but what some lawyer has more to say than its managing editor." For "makes all our laws, expounds them from the bench " read, "makes and expounds all our laws on the bench,” and he is right. Another decade or two of this, and Mr. Croly's wish will be gratified, for although lawyers may be too blind to see it, yet it is a fact that we can see, that the community are growing very tired of lawyers; and for this our system of unwritten law is chiefly to blame.

Mr. Kruse has introduced in the assembly a bill to allow married women to contract in the same manner and with the same effect as if unmarried. This measure has been introduced in former Legislatures, but we believe has never passed. It ought to prevail. It would do equal justice to the married women and to the public. It would not make a wife liable by implication where she contracts for her husband, as for example, for necessaries, and yet under this act she could bind herself for such articles if she chose, without troublesome formalities. Strange to say, it is understood that the "women's rights" people are opposed to it. Reformers however are always impracticable. Just so the ultratemperance people are opposed to Mr. Roosevelt's

excellent high license bill, on moral grounds. We recollect that the abolitionists, who had more sense, never failed to buy a slave when they could get him cheap and could not steal him.

If the author of the "Bread Winners " is not a lawyer, he has at least read the New York Reports to some purpose. When Sleeny is put on his trial for the murder of Offit, he has really no legal defense. But as he killed the man who had conspired to convict him of a crime, and to rob him of his sweetheart, it is one of those cases where a jury in most parts of the country would be likely to give a milder sentence than the law called for, where in Kentucky the prisoner could certainly count on an acquittal. In Sleeny's case the jury finds a verdict of "justifiable homicide" which return being flatly against the law and evidence, the judge refuses to receive. They come back with a verdict of acquittal on the ground of "emotional insanity," which verdict the judge is forced to receive. And it is here that the author makes a caustic reference to one phase of our jury system, which is likely to be looked upon by the unprofessional reader as an intentional travesty: "But this remarkable jury determined to do nothing by halves; and fearing that the reputation of being queer might injure Sam in his business prospects added to their verdict these thoughtful and considerate words which yet remain on the record, to the lasting honor and glory of our system of trial by jury: 'And we hereby state that the prisoner was perfectly sane up to the moment he committed the rash act in question, and perfectly sane the moment after, and that in our opinion there is no probability that the malady will ever recur. The unprofessional reader should know that this is not fiction. It is the exact verdict, founded on the instructions of the court, of the jury in the case of People v. Cole, 7 Abb. Pr. (N. S.) 321.

We

Our correspondent who sends us the communication, published in another column, on the United States Supreme Court Reports, appends a postscript, saying that he supposes we "do not dare publish this." We are not easily "stumped." We dare anything that we think is right, and our correspondent should have known it by this time. especially desire the legal profession to know that this JOURNAL is a medium, on which they can always depend, for the promulgation of their faultfinding and criticisms, so long as their communications are becomingly expressed. We have never rejected more than two or three communications in our management of this JOURNAL. At the same time, we would remind our correspondent that much of the delay in official reporting is due to the unavoidable retention of proofs by the judges. To get a volume of official reports in three months from the delivering of the opinions seems to us as prompt as can be expected.

Our weekly contribution to the "Humorous Phases of the Law," is found in the case of Nuzum

v. State, 88 Ind. 599. This was a prosecution for a violation of the excise laws. The court said: "Several ladies belonging to a temperance organization were summoned as witnesses on behalf of the State, and it was charged at the trial, and is reiterated in argument here, that these ladies were summoned by the prosecuting attorney for the purpose of unduly influencing the jury by their presence as well as their testimony, against the appellant, and that in that respect the prosecuting attorney was guilty of misconduct at the trial prejudicial to the appellant. In the first place, it was not shown that the prosecuting attorney caused or procured these ladies to be summoned as witnesses or to be brought into court in any other capacity. In the next place, it was not made to appear affirmatively that they were present in court for any unlawful or improper purpose. Their presence was at most a mere matter for comment before the jury, and can not be presumed to have exercised any undue influence upon the verdict rendered in the cause." In ruling upon a question of evidence in connection with the inquiry as to what kind of a liquid Catawba cider is, the court remarked, "It may be another name for lager beer, for all I know." The appellant assumes that this remark implied a sneer at, and a disparagement of, his defense in the presence of the jury, and in this way inflicted upon him an injury for which he became entitled to a new trial. But the appellate court did not think so. Judge Davis and Judge Arnoux should secure that judge for a coadjutor in their "temperance" campaigns. He certainly must be a temperance man.

ness.

"The Mormon must go! Such is the closing declaration of a publisher's circular sent us, announcing a new story which is going to settle the busiWe do not mind publishing part of this circular, as the most direct way of accomplishing what the publisher wants: "We have in hand the copy of a new story a thrilling and powerful tale-involving the pregnant (sic) question of mormonism, we propose to illustrate it in handsome style, and issue a large subscription edition this coming spring. We shall soon issue our prospectus, and advertise in the leading newspapers for agents to sell the same throughout the country. If you care to make a note of this fact in your literary or editorial columns, and send us a marked copy of your paper, we feel that you will not regret thus emphasizing the discussion of a question replete with interest and concern to the people of the United States." We are not informed of the author's name. Can it be Senator Edmunds? or is the author of the "Bread-winners" the lucky man who is going to "hasten the day for the uprising of an indignant nation," as the circular eloquently phrases it. We do not know what the publisher means by saying that we shall not "regret emphasizing," etc., but we have a strong suspicion that it is a Boston device for getting free advertising. However, we cast our bread on the waters.

IN

NOTES OF CASES.

N Henkel v. Murr, to appear in 30 Hun, 28, it was held that to render the owner of a building, the rooms in which are rented to different tenants, liable for the injuries sustained by a person who while visiting one of the tenants caught her heel in a hole in the oil-cloth laid upon the stairs in the hall, it must be shown not only that the fall was occasioned by the dangerous condition in which the oil-cloth was left, but also that the landlord neglected after having had knowledge or notice of its dangerous condition, to repair the same, or that he omitted to use reasonable means and precautions to ascertain its condition and make the requisite repairs. Also that evidence that some time after the accident the landlord had put new oil-cloth upon the stairs was inadmissible. The court said: But the question is not one of contract. The liability rests wholly upon actual negligence, in which the duty or obligation of the landlord is only an element; a most important one, it is true, but by no means exclusive and controlling. In addition to that element it must appear that with some notice of the condition of things, or under some circumstances equivalent to notice, such as an unreasonable omission to ascertain the condition, he had failed to make the necessary repairs or changes called for by the condition or exigency. It was not enough therefore to find that a hole had come in the oil-cloth in which the plaintiff's heel caught so as to cause the fall which injured her, for in the nature of things all that might occur without just ground to charge the landlord with negligence. * * * Against the appellant's objection and exception it was shown that some months after the accident to plaintiff the defendant had put new oil-cloth upon the stair-case. It has been frequently held that such evidence is not admissible to show knowledge of dangerous condition at the time of the injury. The cases are very decisive on that subject. Dougan v. Champlain Transportation Co., 56 N. Y. 1, 8; Baird v. Daly, 68 id. 547; Salters v. Delaware and Hudson Canal Co., 3 Hun, 338; Morrell v. Peck, 24 id. 37." On the latter point, see, to same effect, Hudson v. Chicago and North-western R. Co., 59 Iowa, 581; S. C., 44 Am. Rep. 692, and note, 694.

to get on board a moving train, no improper or negligent act of the conductor in shutting the gate would have injured him; or in other words, the negligence of the deceased put him in a position where the negligence of the defendant's servant produced the injury which resulted in the fatal injury. While the elevated railroads are to be held to strict responsibilities, it cannot be too strongly impressed upon the minds of all persons who make daily use of the elevated railway trains that their duty to themselves, as well as to the railway company, is to obey the reasonable rule of law and of good sense that forbids all attempts to board a moving train. The act is none the less dangerous because it is often done with impunity. When the train is in motion, whether the platform gates are closed or not, more or less risk of danger always accompanies an attempt to get on board the cars. The law must hold the taking of that risk by a passenger to be negligence, because it is an imprudent exposure to danger of serious injury. To accomplish 'rapid transit,' a great and now indispensable convenience to an active and busy population, the trains must not only be frequent and travel speedily, but must stop and start quickly, otherwise great frequency of trains would be impracticable. They who find a train already moving away from a station and think the few minutes before the next train of more value than safety from danger must understand that in law they take life and limb into their own keeping when they violate the reasonable rule that charges the risk of negligent exposure upon themselves. The law is thus established by the highest courts and our simple duty is to respect and apply it. The court in this case should have directed the verdict for the defendant." The court cited Phillips v. Rensselaer, etc., R. Co., 49 N. Y. 177; Burrows v. Erie R. Co., 63 id. 556; See Com. v. Boston & Maine Railroad, 129 Mass. 500; S. C., 37 Am. Rep. 382, and note, 384; 23 Alb. Law Jour. 124; Jewell v. Chicago, etc., Ry. Co., 54 Wis. 610. S. C., 41 Am. Rep. 63, and note, 65.

In State v. Roberts, 59 N. H. 256, it is held not indictable for one to take fish, out of season, from his private pond not communicating with public waters. The court said: "The right to have migratory fish pass in their accustomed course up and down rivers and streams is a public right, which may be regulated and protected by the Legislature, and so far as the waters of this State are common passage-ways for fish, they are of a public character, and subject to legislative control. The taking and killing of certain kinds of fish and game at certain seasons of the year tend to the destruction of the privilege by the destruction consequent upon the unrestrained exercise of the right. This is regarded as injurious to the community, and therefore it is within the authority of the Legislature to impose restrictions and limitations upon the time and manner of taking fish and game considered valuable as articles of food For this purpose fish and game The power to enact such laws

was exercised previous to the adoption of the Constitution, and it has been so long used, and so beneficially for the public, that it ought not now to be called in question. Stoughton v. Baker, 4 Mass. 522; Commonwealth v. Ruggles, 10 id. 391; Commonwealth v. Vincent, 108 id. 441; Cottrill v. Myrick, 12 Me. 222; Lunt v. Hunter, 16 id. 9; State v. Franklin Falls Co., 49 N. H. 240; S. C., 6 Am. Rep. 513; Holyoke Co. v. Lyman, 15 Wall. 500. But while the Legislature has power to regulate and limit the time and manner of taking fish in waters which are public breeding-places or passage-ways for fish, it has not assumed to interfere with the privileges of the owners of private ponds having no communication through which fish are accustomed to pass to other waters. Such ponds, whether natural or artificial, are regarded as private property, and the owners may take fish therefrom whenever they choose, without restraint from any legislative enactment, since the exercise of this right in no way interferes with the rights of others. The Legislature protects the owners of such ponds in the enjoyment of their privileges (Gen. St., chap. 251, § 5), and they are expressly excepted from the statutory restrictions by the third section of the act upon which the indictment in this case is founded. The defendant is in possession, claiming the ownership of North pond. There is no suggestion that the public have any rights in its waters other than as a breeding-place for the supply of fish to other streams, or a channel for their passage. If as the defendant claims, the trout are within his control, and there is no communication through which they can pass from the pond to other waters, the indictment cannot be maintained. If, as is claimed in behalf of the State, there is free communication through which trout pass from the pond to the streams leading into it and to the Ammonoosuc river, the indictment can be maintained upon proof of those facts."

In Davis v. Hamlin, 108 Ill. 39, where a confidential agent of one having a lease of a theatre, who, from his position, was well acquainted with the profits of his principal in the use of the building, and who knew, some months before the old lease expired, that the latter was desirous of renewing his lease, offered privately to lease the theatre of the owner, proposing to give a larger rental than was reserved in the old lease, and denied to his principal that he was competing with him for the lease, but in fact did procure a lease to be made to himself, it was held, that the benefit of such a lease a court of equity would hold to inure to his principal, and that the agent would be held to hold the same as a trustee for his principal. The court said: "Public policy, we think, must condemn such a transaction as that in question. To sanction it would hold out a temptation to the agent to speculate off from his principal to the latter's detriment. Davis very well knew that his employer would be willing to pay a much higher rent than that at which

he obtained the lease, and that he could dispose of the lease to Hamlin at a large profit to himself, and such means of knowledge was derived from his position as agent. If a manager of a business were allowed to obtain such a lease for himself, there would be laid before him the inducement to produce in the mind of his principal an under-estimate of the value of the lease, and to that end, may be, to mismanage so as to reduce profits, in order that he might more easily acquire the lease for himself. It is contended by appellant's counsel that the rule we apply, which holds an agent to be a trustee for his principal, has no application to the case at bar, because Davis was not an agent to obtain a renewal of the lease, and was not charged with any duty in regard thereto; that his was but the specific employment to engage amusements for the theatre, and that he was an agent only within the scope of that employment; that Hamlin having a lease which would expire April 16, 1883, had no right or interest in the property thereafter, and that Davis, in negotiating for the lease, did not deal with any property wherein Hamlin had any interest, and that such property was not the subject-matter of any trust between them. Although there was here no right of renewal of the lease in the tenant, he had a reasonable expectation of its renewal, which courts of equity have recognized as an interest of value, secretly to interfere with which, and disappoint, by an agent in the management of the lessee's business, we regard as inconsistent with the fidelity which the agent owes to the business of his principal. There was the good will of the business, which belonged to the business as a portion of it, and this the agent got for himself. It is further argued that the relation here between Hamlin and Davis was that of master and servant, or employer and employee, and that the rule has never been applied to that relation as a class, and that the classes coming within that doctrine are embraced within the list of defined confidential relations, such as trustee and beneficiary, guardian and ward, etc. The subject is not comprehended within any such narrowness of view as is presented on appellant's part. In applying the rule, it is the nature of the relation which is to be regarded, and not the designation of the one filling the relation." Citing Hamilton v. Wright, 9 Cl. & Fin. 111. See Devall v. Burbridge, 4 W. & S. 305; Hill v. Frazier, 22 Penn. St. 320; Fairman v. Bavin, 29 Ill. 75; Gilman, Clinton and Springfield R. Co. v. Kelly, 77 id. 426; Bennett v. Vansyckle, 4 Duer, 462; Gillenwaters v. Miller, 49 Miss. 150; Grumley v. Webb, 44 Mo. 446. See also Gower v. Andrew, 50 Cal. 119; S. C., 43 Am. Rep. 242, and note, 244.

In Fort Clark Horse Ry. Co. v. Anderson, 108 Ill. 64, it was held that an injunction would not issue to restrain the moving of a house through a street and upon and along the plaintiff's track, the operation occupying but three or four days, and the damage not being irreparable, even though the defendant