The Albany Law Journal. ALBANY, FEBRUARY 23, 1884. CURRENT TOPICS. NOME recent citations in this journal from 31st It is amusing to see how earnest our western contemporaries, the Chicago Legal News, the Central Law Journal, and the Denver Law Journal are in * our western contemporary confesses that he is. But we still suspect that lynching prevails in the west because of a public disbelief in the ability and independence of judges as well of as prosecuting attorneys. We do not have any lynching in this State, whatever may be the reason for it in the west. etc. The Central Law Journal gets more excited over the matter than is necessary, and talks of our "grotesque humor," "abuse," "taking offense," We hope that our brother does not carry any weapon more deadly than a "pocket pistol," else this temper of his may prove dangerous to his near neighbors. But he continues: "If the judges of New York must be dressed in silk before the people will treat them with respect, then we think our Albany contemporary would be more in place in confining its attention to home necessities, rather than in casting slurs at our western courts. The western courts of last resort are held in as high respect by the people as that of New York, and the ability of the western bench will compare with that of the court whose members our contemporary would robe. If there is a marked lack of respect in western communities for the administration of justice, it is for the verdicts of juries, and not for the opinions of the courts of last resort. Occasion opposition to the judges' gowns. We stirred up a hornet's nest by saying "it would not hurt our western communities if their courts were held in higher respect. * * Better have judges in gowns than lynchers in masks." Upon this the Denver Law Journal remarks: "We agree with our contemporary in these sentiments expressed by him. But would judges in gowns prevent lynchers in masks? Would the presence of a judge in his gown repel a party of lynchers about to inflict the penalty of death upon a red handed murderer, of whose guilt there is no doubt? We believe that the true remedy is to have a more honest administration of the law, to make the prosecuting officer an appointive instead of an elective officer, depend-ally the latter make mistakes, and we have freely ing for his position on the votes of the very class of people who are most frequently amenable to the law. We would give the State the benefit of the ablest counsel experienced in law, instead ef selecting for prosecutor some beardless youth just out of a law school, or as is more frequently the case, some frequenter of the corner grocery or pot-house politician, ignorant often of the very elements of criminal law. It is the want of ability in the prosecutor, while the defendant has the ablest and most astute counsel, and the tendency of the courts to give every advantage to the defendant, which so often results in a miscarriage of justice, and creates a want of confidence in our courts. Out of this arises lynch law. Can a gown restore confidence in the integrity of a court, in which a man of whose guilt there can be no question, is set at liberty through a mere technicality? Confidence in the honesty of the judge begets respect for the court, and such respect is far more desirable, and tends more to elevate the popular ideas of law and of the courts than all the gowns with which the judges could be robed. Prompt, swift and impartial justice administered by the courts is the true mode of elevating the popular idea of law and of the court. We suggest that our contemporary join with us in laboring to elevate the popular idea of the law and the courts by insisting on the prompt, speedy and impartial administration of justice by the courts, and dispense with gowns for the judges." This of course goes mainly to the matter of the inefficiency of the prosecuting attorneys, and yet we do not see how having the judge wear a gown could render the prosecuting attorney any less efficient than VOL. 29 No. 8. criticised them, but we have never conceived the A correspondent of the Delhi Republican also opposes the gowns, and says we are cool if not modest." We hope we are both. The gowns are both. The correspondent quotes De Tocqueville's approbatory comment on the absence of "ceremonial costumes," and dwells on the custom of our judges to sit without gowns, and distinguishes the case of military uniforms because they are prescribed by law, but he has not a word to say about the gowns of the Supreme Court judges. He also speaks of the superior simplicity of the early times of the republic, forgetful of Washington's four- (or six-) horse State carriage, and of the insuperable etiquette of the old White House. The correspondent of course quotes the somewhat familiar expression about crooking the pregnant hinges of the knee, but he winds up with an entirely unique and telling metaphor of "our democratic pyramid of liberty, fraternity and equality." We have not proposed to go back to the pyramids, but only to the fathers who put gowns on their judges, and whose degenerate offspring left them off through carelessness. Speaking of robes, we betook ourself to Washington the last week to behold a sight which we had never seen - the Supreme Court in session, and to see if there is really any thing so objectionable about their robes. To our disappointment we found the court taking a vacation for the month, which it seems is their uniform custom. Vacation" means a time for consultation and writing opinions. We were enabled, however, to see the court in detail, and to hear from them individually, which was much pleasanter than to hear some tedious lawyer lecturing them on elementary principles, and to undergo the possible shock of the robes. We also visited the chambers of our National legislators, and although perhaps it is a little outside our jurisdiction we will venture to suggest that it would be better manners if the Senate would not compel the chaplain to pray for empty seats at noon, and if the leading members of the House would not smoke in public session. Also that the atmosphere of both chambers is perfectly abominable—literally as bad as that of an Irish tenement house. Our own capitol has cost a good deal of money, and one of the rooms is deficient in acoustic properties, but all are well ventilated. A correspondent, whose communication appears in another column, thinks that we were not respectful enough to Mr. Carter's pamphlet on Codification. We thought we paid it the greatest respect by reading it. We hope we said nothing disrespectful, The worst we said of it was that it was too long, and that very few would read it. We stick to this, and we think Mr. Carter will realize the truth of our criticism when he reads (as we presume he will) Mr. Field's short answer an answer so short that everybody will be sure to read it without troubling themselves about the pamphlet to which it is an answer, and an answer so conclusive, as it seems to us, that it leaves no room for a reply. Some admirer of Mr. Carter has come out in The Nation with a pronunciamento against codification, in which there is an amusing attempt to conceal favoritism under the guise of impartiality. We have the greatest respect for The Nation's literary ability and authority; none at all for its politics or its law. We never knew it to be right on a legal matter yet. Even The Nation concedes the usefulness of "temporary statutes," but it prefers that the judges shall make them. All these theorists will find themselves defeated one of these days—perhaps not this year nor next by the success of what they deny. The man will get up and walk in spite of their denial of the power of motion. Meantime, we turn and point from Mr. Carter and The Nation to Story, Metcalf and Greenleaf, and we ask our readers to peruse their opinion of codification given in our last issue, and the opinions of the current working of the system in California. There is just one point in which The Nation is right. The Code of Civil Procedure, as it now stands, is an argument against codification. Mr. Throop spoiled Mr. Field's Code. Let us be careful to avoid another voluminous and obscuring glossary of this kind. The Tribune is circulating postal cards, with a request for answers to these questions. "1. Are you in favor of Codification of the Common Law in this State? 2. Are you in favor of the proposed ‘Field Civil Code ? 3. Why?" The Tribune ought to have added: "4. Have you read the proposed Field Civil Code?'" We have a strong suspicion that the answers to questions one and two from the class to whom the Tribune will send will be unanimonsly in the negative, and that the answers to question four would be nine-tenths in the negative. Sir John Mellor does not believe in oaths, and declares that he is "profoundly convinced by a long judicial experience of the general worthlessness of oaths, especially in cases in which their falsity cannot be tested by cross-examination, or be criminally punished," and that therefore he “has become an advocate for the abolition of oaths as a test of truth." Bentham and Pothier were of the like opinion. The latter said: "A man of integrity does not require the obligation of an oath to prevent his demanding what is not due to him, and a dishonest man is not afraid of incurring the guilt of perjury. In the exercise of my profession for more than forty years I have not more than twice known a party restrained by the sanctity of the oath from persisting in what he had before asserted." All this is chimerical. Unless it is conceded that oaths induce perjury, they must be useful at least as a profession that the witness is telling the truth, and recognizes the solemnity of his situation. But oaths tend to make truthful men careful, moderate, and candid, however ineffectual they may be with dishonest men. NOTES OF CASES. 'N Brewer v. Lamar, Supreme Court of Georgia, an injunction will be granted to restrain the maker of a compound from using his name, or the trademark of the medicine, when for a good consideration he has sold the right to make and vend it, and has stipulated that he will not use his own name, or permit another to use it for that purpose, and has transferred his trade-mark thereto to the purchaser. The court said: "A contract is declared void under our Code when it is in general restraint of trade.' Code, § 2750. This is but the announcement of a principle long recognized in the common law. In the case of Holmes v. Martin, 10 Ga. 503, this court announced, in construing a contract involving this question: 'A contract in general restraint of trade is void, but if in partial restraint of trade only, it may be supported, provided the restraint is reasonable, and the contract founded on a consideration.' This distinction between such stipulations as are in general restraint of trade, and such as are in restraint of it only as to particular places and persons or for a limited time,' has long been recognized both in England and America; the latter, if founded on a good and valuable consideration, are valid; the former are invariably prohibited. The reason assigned for this difference is, that all general restraints tend to promote monopolies and tend to discourage industries, enterprise, and fair competition, which reason does not apply to partial restraints. This distinction between general restraints and partial restraints has been recognized by this court also in 30 Ga. 414; 45 id. 319; 58 id. 567. This question was elaborately discussed and many cases reviewed and cited in the leading case of Morse Drill and Machine Co. v. Morse, 103 Mass. 73. In Leather Cloth Co. v. Lorsont, L. R., 9 Eq. 345, the plaintiffs purchased a right of a certain process of manufacture, with an agreement by the vendors that they would not directly or indirectly carry on, nor would they, to the best of their power, allow to be carried on by others in any part of Europe, any company or manufactory having such manufacture for its object, or in any way interfere with the exclusive enjoyment of the purchasing company of the benefits agreed to be purchased. It was held that the restraint was reasonable, and not greater, having regard to the subject-matter of the contract, than was necessary for the protection of the purchasers, and it was enforced against the vendors. But are the covenants of this contract in general restraint of trade? The stipulation which, it is alleged, is void for all that cause is in these words: 'I agree never to use, or permit my name to be used, or any preparation which could be recommended and sold for the same purpose.' Defendant below had already stipulated and did sell all his interest, with trade-mark, etc., in the 'Lung Restorer' to the defendants in error. Then in the stipulation above he agrees further 'never to use, or permit my name to be used, on any preparation which could be recommended and sold for the same purpose.' This stipulation does not forbid him to manufacture and sell such a preparation as he may compound, but that he will not himself use his name, or permit his name to be used, on any such preparation. The only restraint the covenant imposes on him is that his name shall not appear by his consent on any such preparations. Can this stipulation be said to be in general restraint of trade, or is it not rather a partial restraint, and is it at all unreasonable? The absence of his name may limit the sales of any new preparation he may compound; the preparation may be wanting in the magic word, but for its absence he contracted and received a consideration therefor. He may compound and sell a score of other nostrums to cure the diseases for which the 'Lung Restorer' is fitted; the only exhibition is, he must not put on them the cabalistic word 'Brewer,' and thus violate the contract into which he has entered. That he has done this the evidence abundantly shows, when he published and offered upon the market 'Brewer's Sarsaparilla Syrup,' professing to be a permanent cure for all diseases of the lungs and throat.” For a lawyer's wife to make her husband's clerk jealous of her husband is "extreme cruelty," justifying a divorce. In Carpenter v. Carpenter, Kansas Supreme Court, November 9, 1883, 1 Pac. Rep. 122, it appeared that the defendant prepared and sent anonymous letters to a clerk in the office of her husband, falsely charging that a criminal intimacy existed between her husband and the wife of such clerk; and also prepared and sent anonymous letters to the editors of newspapers at Leavenworth, making similar charges, with the expectation that such charges would be published in the newspapers and be made public. Her husband, at the time, was a member of a church, and professed to be an honest and faithful Christian, and had high aspirations for political preferment. These charges not only tended to wound his feelings and to destroy his peace and happiness, and to impair his bodily health, but they were also naturally calculated to put his life in jeopardy; they were naturally calculated, if the clerk believed that they were true, and that a criminal intimacy existed between the plaintiff and the clerk's wife, to cause the clerk to take vengeance on the plaintiff. Held, that this conduct on the part of the plaintiff's wife constituted "extreme cruelty," within the meaning of the statute. The court said: "The legal question that arises upon these facts is whether they constitute 'extreme cruelty' or not, within the meaning of the divorce statute. It was formerly thought that to constitute extreme cruelty, such as would authorize the granting of a divorce, physical violence was necessary; but the modern and better considered cases have repudiated this doctrine as taking too low and sensual a view of the marriage relation; and it is now very generally held that any unjustifiable conduct on the part of either the husband or wife which so grievously wounds the mental feelings of the other, or such as in any other manner endangers the life of the other, or so utterly destroys the peace of mind of the other as to seriously impair the bodily health or endanger the life of the other, or such as utterly destroys the legitimate ends and objects of matrimony, constitutes 'extreme cruelty' under the statutes, although no physical or personal violence may be inflicted or even threatened. Gibbs v. Gibbs, 18 Kans. 419; Bennett v. Bennett, 24 Mich. 482; Goodman v. Goodman, 26 id. 417; Palmer v. Palmer, 45 id. 151; Whitmore v. Whitmore, 49 id. 417; Caruthers v. Caruthers, 13 Iowa, 266; Wheeler v. Wheeler, 53 id. 511; Powelson v. Powelson, 22 Cal. 358, 361; Smith v. Smith, 8 Or. 100; Kennedy v. Kennedy, 73 N. Y. 369; Latham v. Latham, 30 Gratt. 307; Black v. Black, 30 N. J. Eq. 215, 221; Cook v. Cook, 3 Stockt. 195; Beyer v. Beyer, 50 Wis. 254; May v. May, 62 Penn. St. 206; Beebe v. Beebe, 10 Iowa, 133. None of the foregoing cases are precisely like the present case, but many of them sustain the principle above enunciated; and taken together, they clearly show the tendency of modern thought upon this subject. The tendency of modern thought is to elevate the marriage relation and place it upon a higher plane, and to consider it as a mental and spiritual relation, as well as a physical relation. In the present case the conduct on the part of the defendant below was not only such as would tend to wound the feelings of the plaintiff. below, and to destroy his peace and happiness and to impair his bodily health, but it was also such as would tend to put his life in danger. The legitimate result of the conduct on the part of the defendant below in sending the anonymous letters to Col. Carpenter's clerk, Mr. J. N. Mitchell, and in endeavoring in other ways to give currency to the charges that a criminal intimacy existed between Col. Carpenter and the clerk's wife, would naturally be to cause the clerk, if he believed the insinuations of criminal intimacy between Col. Carpenter and his wife, to take the utmost vengeance upon Col. Carpenter; and the repetitions of these charges by sending anonymous letters to newspaper editors, with their intended publication in the Leavenworth newspapers, was naturally calculated to induce the clerk to believe that the charges were true, and to cause him to assault the supposed invader of his home and marital rights. Experience and observation fully demonstrate that this is the natural order of things. Mrs. Carpenter's conduct was well calculated to put Col. Carpenter's life in jeopardy. Such conduct would also naturally tend to destroy his reputation and influence as a politician and officer, and to deprive him of his office and means of subsistence, and to utterly destroy his happiness and peace of mind. And mental suffering may be much greater than physical suffering. And the treatment Col. Carpenter received from his wife must have caused him intense suffering, great anguish of mind and spirit, and inexpressible sorrow. According to his own testimony, his grief was lit part of whose property was money in bank, bequeathed "one-half of the money of which I am possessed " to her sister, and the remainder to others. Held, that her whole personalty passed under the term "money." The court said: "I am not only at liberty, but I am bound to give a liberal interpretation to the words to avoid an intestacy, and for these reasons I feel compelled to hold that the lady used the word money in this will in the popular sense as a description of all her personal estate, and I do not think that any of the cases have laid down a rule which prevents that construction. I do not forget that part of the personal estate consists of leasehold and furniture property, which is not aptly described by the word 'money.' But I am of opinion that I cannot exclude these, because the choice seems to me to be between construing money' to mean 'cash at the bank' or 'personal estate,' and on the whole I think the latter the true construction. One of the cases I have mentioned, Prichard v. Prichard (ubi sup.), is, I think, an authority for this, so far as a decision on one will can help in construing another. Leaseholds and furniture, and all the personal estate, it was there held, passed by similar words. That case is at least an expression of opinion, in which I respectfully concur, that there should be no absolute technical meaning given to such a word as 'money' in a will, but that its meaning in every case must depend upon the context, if there is any which can explain it, and upon those surrounding circumstances which the court is bound to take into consideration in determining the construction." HORSE. In People v. Pico, 62 Cal. 50, under a statute of larceny of "horse or mare,' an indictment for larceny of a horse was held sustained by proof of larceny of a mare. The court said: “Although the courts of some of the States have held, under a statute similar to that of this State (section 487, subdivision 3, Penal Code), where both words 'horse' and 'mare' are used, the proof must agree with the indictment as to the sex of the animal, yet as at common law the word 'horse' was used in its generic sense, and was held to include all animals of the horse species, whether male or female, we are of opinion that the Legislature of this State, in using the word 'mare,' did not intend to modify or change the common-law rule, but inserted the WHEREFORE. This means, Ins. Co. v. Wright, 55 Vt. 526. 66 "for which reason. "" ceal' contemplates some action here; that he passes under an assumed name, has changed his occupation, or acts in a manner which tends to prevent the community in which he lives from knowing who he is or whence he came. It cannot be doubted that the Legislature has the power to make the statute of limitations absolute, and without any exceptions on account of concealment; and when we remember that this statute has no extra-territorial force, and therefore contemplates acts and conduct of the party within our limits, it would seem difficult to say that a man who, going under his own name, lives in a community in as open and public a manner as any other citizen in the same line of business, is concealing himself from the service of process within this State." SOUND HEALTH. This, in an insurance warranty, does not mean absolute freedom from bodily infirmity or tendency to disease. Morrison v. Wisconsin Odd Fellows' Mututal Life Ins. Co., Wisconsin Supreme Court, January 8, 1884. The court said: "It would be most unreasonable to interpret the term ' in sound health,' as used in contracts for life in PREMISES. — In an insurance policy on goods alone, the expression "premises insured' does not mean the goods, but the building. The court said: We are not referred to, nor have we been able to find, any adjudged case, or other recognized legal authority, which gives to the word 'premises' (except as used in conveyancing and the drafting of pleadings, etc.), any other legal definition than the one, time honored and generally understood, of 'lands and tenements.' Nothing is insured by the policies in this case that comes within that definition. In order to give the clause the construction contended for by the defendant as applicable to this case, we must add a new meaning to the word 'premises,' and say that it means not only 'lands and tenements,' but 'dry goods and groceries.' We must go even further than this, and alter the very words of the contract, because the context is incon-surance, to mean that the insured is absolutely free sistent with such a definition of the word 'premises,' the prepositions both being inappropriate. The skilled draftsman who formulated these bylaws would scarcely have prohibited the keeping of gunpowder upon or in the dry goods and groceries insured;' and we would therefore have to say that 'upon or in' is equivalent to 'among' or 'in the same building with,' which would be directly in the teeth of the great lexicographers, who tell us that the distinctive meaning of 'upon' is 'not under,' and of 'in' 'not outside of.' That the taking of such liberties with the language of a contract which is plain, unambiguous and apposite, each word having a perfectly well-established and understood meaning, would be allowable under any circumstances is matter of grave doubt. In the present case it would be not only giving an exceedingly liberal construction to the language of the contract, but straining that language to, if not beyond, its utmost tension in favor of the insurer instead of the insured, which, in view of the well-established rules and principles of the law, and the authorities above cited, as well as many others to the same effect, which might be referred to were cumulative authority necessary, we think would be wholly unjustifiable." CONCEAL. This word, as used in a statute of limitations, was thus commented on in Frey v. Aultman, 30 Kans. 181: "Suppose a merchant in the east absconds from his residence and comes to the city of Topeka, there engages in the same line of business under his own name, lives as open and public a life as other citizens of Topeka; can it be said that the manner of his departure from the east, and the failure of his creditors after reasonable efforts to discover his residence in Topeka, prove that he conceals himself, within the meaning of that section? We think not. We think the word 'con from all bodily infirmities or from all tendencies to disease. If that were its meaning we apprehend but few persons of middle age could truthfully say they were in sound health. Yet to obtain a life insurance a person must say that, or its equivalent. It is absurd to suppose that Mr. Morrison intended to say in his application that he had no bodily infirmity, and was aware of no tendency to disease, or that the company so understood him. Many cases have been adjudicated which give construction to the term 'good health,' or 'sound health' (which means the same thing), as those terms are used in contracts for life insurance. Some of these cases are referred to in May Ins., § 295. They all seem to sustain the conclusion we have reached, that 'a touch of dyspepsia coming on,' which manifests itself only after long intervals, which yields readily to medical treatment, and which is not shown to have been (as some of the cases put it) organic and excessive, is not inconsistent with a representation that the person so affected is in sound health, as that term is employed in contracts for life insur ance. PRESUMPTIONS ARISING EROM THE USUAL COURSE OF BUSINESS. RULE I. In commercial transactions the presumption is that the usual course of business was followed by the parties thereto. "Where" it was once said by an English judge, “the maxim of omnia rite acta præsumuntur applies there indeed, if the event ought probably to have taken place on Tuesday, evidence that it did take place on Tuesday or Wednesday is strong evidence that it took place on Tuesday."(1) ILLUSTRATIONS. 1. In an action against the acceptor of several bills of exchange which were made in November, 1850, and (1) Avery v. Bowden, 6 E. & B. 973 (1856). |