The Albany Law Journal. MR. ALBANY, APRIL 19, 1884. CURRENT TOPICS. [R. DAVID DUDLEY FIELD, in a recent address before the Law School of the University of New York, gave some interesting statistics of the present sources of the common law. He says there are 35,250 volumes in our State library, of which only 125 are our statutes, and 7,000 are of decisions of the courts. He continues: "Eleven years ago the Congressional Law Library held 26,000 volumes, it now holds more than 60,000. In the State of New York there are published, on an average yearly, four volumes of the Decisions of the Court of Appeals, three of the Supreme Court, one of the New York Superior Court and one of the New York Common Pleas, one of Surrogate's Cases, two of Abbott's New Cases, two of Howard's Practice Cases, two of Civil Procedure Cases, two of the Weekly Digest, one of New York Criminal Cases, and one of the new City Court Cases-twenty in all. The number of decisions reported in each volume varies of course, but they will certainly amount, one with another, to not less than 150 in a volume, so that we have in this State alone 3,000 reported decisions every year. Taking the whole country there are, it is estimated, 100 volumes of reports yearly, and if each volume contains as many cases as the last volume of Massachusetts Reports - 160 there are published in each year 16,000 decisions. ** * * The last volume of Supreme Court Reports (30th Hun) contains 169 cases reported in full or in part, of which 75 are reversals, and there is also a list of 464 other cases not reported, of which 127 are reversals. This volume shows the his long communication, but assuming that he is in earnest, we must say that this is not the way to make or to test laws. Comparatively few answers would be elicited, and these being, necessarily, from opponents or favorers, would be more or less uncandid. Lawyers are not the law-making power, and never ought to be. If the adoption of the code of 1848 had been made dependent on the opinion of the legal profession it would have been buried out of sight. If we were sure that a majority of the lawyers are in favor of the code, still we should oppose this suggestion. We would have no such "local option." The Legislature should make laws upon its own responsibility, and not prejudice them at the outset by the certificate of the body of men whose business it is simply to administer them. Again, very little weight could be attached to such a test, extending over a few months and not in. court. Judges always have different views of the law from those of one counsel in every case. How can the Legislature assume that the lawyer's certificate would be right in any given instance? "The wish is father to the thought," and this idea is true in every advocate's construction of precedents. Laws are not enacted wholly for the convenience or enlightenment of lawyers, but they are designed as rules of decision to control the courts. Even our correspondent would scarcely approve the making of the adoption of the code depend on the ex parte opinion of the judges themselves, and yet it would seem a more sensible scheme than the one he proposes. Again, our correspondent misses the real theory of statutes; they are not simply to enlighten the lawyers, but they are to instruct the community. The radical difficulty with our common unwritten law is that it can be found out, if at all, only by lawyers. We would have laws written so that the community may read and understand them, and we would not determine the question whether they are or are not so written depend on the ex parte and work of five months-May, June, August, Septem- prejudiced opinion of men seeking to read them in ber and October, 1883. The last volume of the a way to suit their own interests. The Alta CaliCourt of Appeals Reports contains 155 cases, offornia very wisely says: 'But lawyers are not the which 32 are reversals, and the period covered is only class, or the most numerous, to be consulted the months of June, October and November, 1883." about such a matter as codification. Independent Exclusive of this wilderness of reports the great of the courts and the lawyers there is a benefit conmass of our law libraries is made up of text-books, ferred by codes which is of no mean importance. which are efforts at statements of the common law. This is the accessibility and comprehensibility of And yet there are lawyers who tell us that no effort the law to the people. The law should be in such should be made to express the principles supposed a shape that the mass of the people can know someto be somewhere laid down in this maze of books thing about it. There will be just as much need for the professional lawyer when the law is codified as there was before, but it is nevertheless a great convenience and satisfaction to the property-owner and the workingman to be able to learn for himself something about his rights as established by the laws nnder which he lives. It is a necessary part of the political education of the people." in one statute book! A correspondent sends us a singular suggestion about the code. He proposes that it should not be adopted until a majority of the lawyers should express themselves in favor of it. To this end, he would have the Legislature ask all the lawyers of the State to certify how many times they have consulted the proposed code, and how many times they have found it to answer their purpose, or the contrary, and to make their action upon the code depend upon these answers. We have not space for VOL. 29-No. 16. A bill has been introduced in our Legislature providing that adultery with a married woman shall be punished by imprisonment. As we understand it, the bill provides that the woman shall be punished with less imprisonment than the man. It is right that adultery should be recognized as a crime in the eyes of the law. It has been practically so recognized for many years by the repeated refusals of juries to convict the slayer of his wife's seducer. We have always advocated punishing adultery as a crime, and then punishing the man who takes the law in his own hands. It is high time to get some of this wild-beast notion of justice out of the minds of men. But why should the woman be any less punished than the man? She is generally even the worse sinner of the two, and should be given to understand that she runs an equal risk. The great libel suit of Belt v. Lawes has come to an ignoble end—both parties have financially col lapsed, ruined, we suppose, by the expenses of the suit. So we shall have no appeal to the House of Lords, and the case goes out of court as did that of Jardyce v. Jardyce, for want of oil to trim the legal lamps. The lord chief justice of England and Justice Stephen have recently decided that a rule of a board of health, that no pig shall be kept within fifty feet of a dwelling-house, is unauthorized by a statute enabling them to make by-laws to prevent the keeping of animals on premises so as to be injurious to health. Down-trodden Ireland should now give the chief justice a long mark to his credit. A correspondent points out to us that under the laws of Pennsylvania the admission of lawyers to practice is in the discretion of the courts, the judges being authorized "to admit a competent number of persons." He also argues - not to our satisfaction - that the Constitution prohibits women from being lawyers. But grant all this, and our criticism is not touched. The judges may be right, but they have given wrong reasons for their decisions. We do not hear much of late about the relief of the United States Supreme Court. The Davis bill seems to sleep. But our attention has been called to the Dorsheimer-Mitchell bill, which provides substantially as follows: 1. That where the sole ground of jurisdiction of the United States Court is the fact that the suit is between citizens of different States, the appeal shall lie to a new court, called the United States Court of Appeals, to be composed of seven judges (§ 1). 2. That this court shall sit at New York, New Orleans, Chicago, and San Francisco, and shall assign, by districts, for hearing at each of these places the appeals from the various circuits (§ 6). 3. That in cases where the amount involved exceeds $20,000, there shall be an appeal from the Court of Appeals to the Supreme Court (87). 4. That all appeals from the Supreme Court of a Territory, not involving a Federal question, shall go to the Court of Appeals (§ 8). 5. That of cases involving $20,000 or less, now on docket of the Supreme Court, there shall be transferred to the new Courts of Appeals all cases which would have gone to the latter, had the present bill been law when these cases were taken up (§ 12). 6. That the Circuit Court in banc for every species of review shall consist of four judges, viz.: The circuit justice, the circuit judges, and two district judges, with substitutes from neighboring circuit or district judges, and that an additional circuit judge shall be appointed for every circuit (§§ 14, 15). 7. That, except on motions for new trials, etc., the judge whose ruling is the subject of review shall not sit (§ 16). We understand that the Supreme Court justices strongly favor the Davis bill. IN NOTES OF CASES. N State v. Carman, Iowa Supreme Court, March 20, 1884, 18 N. W. Rep. 691, it was held that a defendant in felony cannot waive a jury trial. The court thought the statute imperative, but said further: "The question presented is not as to the waiver of a mere statutory privilege, but an imperative provision, based, as we view it, upon the soundest conception of public policy. Life and liberty are too sacred to be placed at the disposal of any one man, and always will be, so long as man is fallible. The innocent person, unduly influenced by his consciousness of innocence, and placing undue confidence in his evidence, would, when charged with crime, be the one most easily induced to waive his safeguards. There is no resemblance between such a case and that of a person pleading guilty. In the latter case there is no trial, but mere judgment upon the plea. If the language of the statute were less imperative than it is, the adjudications would support us in reaching the same conclusion. Maine, 27 Conn. 281; Bond v. State, 17 Ark. 290; Hill v. People, 16 Mich. 351; State v. Wilson v. State, 16 id. 601; League v. State, 36 Md. 259; Williams v. State, 12 Ohio St. 622; People v. Smith, 9 Mich. 193; United States v. Taylor, 11 Fed. Rep. 470." Seever, J., dissented. Women are getting their rights in the far west. In Kelly v. Kelly, Nevada Supreme Court, July 11, 1883, it was held that a husband was entitled to a divorce on the ground of cruelty where the wife circulated false reports of his infidelity. The court said: "We scarcely need the aid of judicial authority for the enforcement of the truth that there may be cruelty without personal violence, and that such cruelty, working upon the mind, may affect the health. Wretchedness of mind can hardly fail to have this result. In causes of divorce, upon the ground of cruelty, wives appear as complainants more frequently than husbands. This arises from the fact that the husband is generally physically stronger than the wife, and less susceptible to the effect of ill-treatment than she. He too, may, in fact, frequently restrain the wife's violence by the exercise of marital power in the domestic forum not encourage him to measure strength with her. 'sauce' Lawyers must be careful how they But the law does | judges in the streets. In People v. Green, Colorado Supreme Court, Feb. 29, 1884, 17 Rep. 456, an attorney used abusive and threatening language to a judge while the latter was driving in the street (with his young daughter, too), concerning the judge's action in a cause pending before him, and this was held "misconduct in office," justifying disbarment. The court said: "The respondent's objection to the jurisdiction of this court in this case is, in our judgment, not well taken. It is not necessary that the indignity or insult to a judge should occur in open court, nor that it constitute a statutory contempt of court, in order to confer on this court jurisdiction to disbar therefor. Bearing upon this proposition, the views. of Mr. Justice Field are in point: The obligation which attorneys impliedly assume, if they do not, by express declaration, take upon themselves when they are admitted to the bar, is not merely to be obedient to the Constitution and laws, but to maintain, at all times, the respect due courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but it includes abstaining out of court from all insulting language and offensive conduct toward the judges personally for their judicial acts. Whatever may be thought in such a case of the power to punish for contempt, there can be no doubt of the existence of a power to strike the offending attorney from the roll.' Bradley v. Fisher, 13 Wall. 335. Chief Justice Sharswood of Pennsylvania is equally positive upon the point. Says he: No question can be made of the power of a court to strike a member of the bar from the roll for official misconduct in or out of court.' In Banks v. Highland Street Railway Co., Massachusetts Supreme Court, Feb. 28, 1884, 17 Rep. 434, the plaintiff, while engaged in running a telegraph wire across a street where the telegraph company had no right to put wires, was thrown from a pole by a passing street car, and injured. Held, that he had no cause of action against the railroad company. The court said: "The wire, at least while looped across the street so that it might be hit by passing carriages, was a nuisance which any person lawfully travelling on the way, and incommoded by it, might remove. Arundel v. McCulloch, 10 Mass. 70; Wales v. Stetson, id. 143. The plaintiff was carrying the wire looped across the street attached to his person, and with his back to the street, so that if the wire was struck he would be pulled from the pole he was climbing. He was not only doing an unlawful act, but doing it in a manner peculiarly dangerous to himself. What the plaintiff was doing was not merely a condition, it was a directly contributory cause of his injury. The car was lawfully passing upon the street, and could not continue its course without striking the wire. The driver of the car when he saw the wire had no right to drive on without care or concern for the consequences, but the defendant was not liable to the plaintiff for mere error of judgment on the part of the driver of the car. The jury should have been instructed not only that the plaintiff was doing an illegal act, but that his illegal act contributed to his injury, and that he was not entitled to recover, unless he satisfied them that the driver of the car recklessly and wantonly drove against the wire." * * * Ex parte Steinman, 95 Penn. St. 220. To the same effect are the views of Chief Justice English: "The power of the court to punish for contempt by fine and imprisonment is one thing, and its power to strike an attorney from the roll is another and distinct thing, although the misconduct for which an attorney may be disbarred may, in some instances, involve a contempt of court. Beene v. State, 22 Ark. 151. The status of the case then is, that the respondent has been guilty of conduct toward the relator, on account of the latter's judicial action in a cause pending in the District Court, which warrants his disbarment, and he has produced no testimony which either justifies or mitigates his offense." nial servant; but save as aforesaid, means any chopper, all labor, but in different ways, requiring the exercise of different mental and physical powers. From the original and comprehensive meaning of the word itself, no reason, perhaps, could be sug gested why a person who accomplishes a certain amount of work by the exercise of his mental powers, in connection with the physical exertion of others, could not be said to labor. The two classes or kinds of labor are dependent, the one on the other, and without both nothing would be accomplished. But when we study the legislative intention in the enactment of a law granting those who work chiefly through physical means, certain privileges, it is possible to see that the term 'labor' is used in a restricted sense, and not in its broad and comprehensive meaning. The object of the lien laws, now almost universal, is not doubtful, on authority at least. One purpose may have been to protect the laboring man, the man whose subsistence depends on the wages earned by his own manual labor, from the reckless improvidence of his employer, and to furnish him with ample security for his earnings, which ordinarily he could not successfully demand. If this was the intention of the Legislature in the passage of the law in question, then it follows that it does not apply to contractors employing men and teams to cut and haul timber, doing no manual labor themselves, and deriving their compensation from the profits realized. Most of the authorities that we have examined support this view of the law, except in cases where, from the wording of the statutes, a different intention clearly appeared. And we are not disposed to question the wisdom of those cases. Weymouth v. Sanborn, 43 N. H. 171; Balch v. N. Y. & 0. M. R., 46 N. Y. 521; Parker v. Bell, 7 Gray, 429; Stryker v. Cassidy, 17 N. Y. (S. C.) 18; Wentroth's Appeal, 82 Penn. St. 469; Jones v. Shawhan, 4 N. & S. 257; Ericsson v. Brown, 38 Barb. 390; Aiken v. Wasson, 24 N. Y. 482; Sullivan's Appeal, 77 Penn. St. 107; Winder v. Caldwell, 14 | How. 434; Hoatz v. Patterson, 5 W. & S. 538.” HARVEST.- This designates the time when crops of grain and grass are gathered, and does not apply to second crops gathered out of the harvest season. Wendell v. Osborne, Iowa Supreme Court, March 21, 1884. -- ACTUALLY DWELLS. - This expression, in a statute of settlement, was thus defined, Town of Hay River v. Town of Sherman, Wisconsin Supreme Court, March, 1884: "The words 'actually dwells' in the statute, are certainly broad enough to include one who is boarded or supported at a particular house; certainly this is so when applied to a pauper having a legal settlement in a town. When so used, they would seem to mean nothing more than the place where he actually remains, tarries, abides for some length of time, continues, stays, sojourns. The place where he actually lodges and takes his meals must come within the meaning of the words 'actually dwells.' BEACH.- In Trustees of East Hampton v. Kirk, 68 N. Y. 459, the court said: “ Ordinarily in a grant of lands under the name of a 'beach,' or a boundary of lands upon or by or along a 'beach,' the word would be held synonymous with the shore or strand, and as having reference to and including only the lands washed by the sea, and between high-water mark and low-water mark. In the case of a boundary it would be necessary so to restrict the meaning of the word, in order to have a certain and definite limit to the lands granted. If held to mean the sandy land or flats between the upland and the shore, which is frequently formed by a change of the shore line, and is not unfrequently called a beach,' it would be quite too uncertain and indefinite to constitute a line bounding lands granted. In a grant of a 'beach,' and perhaps when a 'beach' is made the boundary of lands, other clauses of the deed, and the situation of the lands granted or other circumstances may authorize a different interpretation, and effect may be given to the word as meaning flats, or the sandy land between the upland and the actual shore line. In Storer v. Freeman, 6 Mass. 435, Chief Justice Parsons, in interpreting a deed substituted the word 'flats' for shore' in the which they were only recently declared by the Court Appeals after years of litigation, presents a strong arg ment for its enactment into law and for the princip upon which it is based. For the purpose of instit ing such a comparison I have selected only a few stances in some of the leading branches of the law a have oy no means exhausted the subject. I. PARENT AND CHILD. This is a personal relation of such an ordinary cha acter, that we would naturally expect to find the pri ciples of the law governing this relation so elementa and well settled as to be considered beyond dispu That the husband frequently dies and leaves the w to take care of the children, is not an unusual occu rence. Is the widowed mother entitled to the se vices of the minor child, and as a corollary to th question, can she sue for the seduction of her min daughter? In Bentley v. Rickmeyer, 4 Comst. Brouson, J., declared that she was not entitled to su services, and in Re Ryder, 11 Paige, 185, Chancell Walworth held that she was. In 1867, in the case Gray v. Durland, 50 Barb. 100, Miller and Peckha JJ., held, after a thorough examination of the autho ities, that the mother was entitled to such service and Hogeboom, J. (id., p. 211), after a similar exam nation of the authorities, held that she wasn't. C description to give effect to the intent of the appeal in 1873, the Commission of Appeals, Hunt, ( parties, and held that the land conveyed extended to the 'flats,' but did not include any part of them. The reasons given by the chief justice in the case quoted for restricting 'shore' or 'sea shore' to the ground between ordinary high water mark and lowwater mark are equally applicable to a boundary upon, or by, or along a beach. He says: 'It can not be considered as including any ground always covered by the sea; for then it would have no definite limit on the sea-board. Neither can it include any part of the land for the same reason.' The definition of the shore is an accurate definition of a beach having respect to the nature and situation of both. Both words denote lands washed by the sea. Littlefield v. Littefield, 28 Me. 180; Phillips v. Rhodes, 7 Metc. 322; Cutts v. Hussey, 15 Me. 237." IT CODE LAW v. JUDGE LAW. T is constantly urged by the opponents of the Civil Code, now pending before the Legislature of this State, that in so far as the Civil Code states elementary principles of the law it is unnecessary; that these principles are so well settled that it is a work of supererogation to restate them in the form of a code. A cursory review of the recent adjudications of the highest appellate courts, upon elementary principles governing ordinary legal relations, may lead the blind panegyrists of the common law to admit that its so-called flexibility is a euphemism for its uncertainty. It may be asking too much from the opponents of codification, to expect that such a review may induce them to acknowledge that a code, which as early as 1865 stated elementary legal principles in the form in stated that the question was not free from doubt, b dodged this issue, and affirmed the right of t widowed mother to sue for the seduction of her min daughter in this case, on the ground that the daught was actually in the mother's service at the time. 1874, the question was decided by the Court of Appe in Furman v. Van Size, 56 N. Y. 435. The majority the court, per Grover, J., examined the question novo, and held that the widowed mother is entitled common law to the services of her minor daughte and can therefore sue for her seduction. The mind ity of the court (Allen and Folger, JJ.), traversed t same ground in an able dissenting opinion, and can to the conclusion that no such right belonged to t mother at common law. The glorious flexibility the common law is beautifully illustrated in the n merous cases cited in support of both views of tl question at issue. The Civil Code of 1865 would ha settled the question once and for all. Section 32 (§. of 1884) declares that the right of personal relatic forbids the seduction of a daughter, and sections 8 GO (§§ 123, 124, of 1884), entitle the widowed moth to the care, services and earnings of her minor ch dren. This elementary principle governing the rel tion of parent and child was "inflexibly "fixed by th code in 1865, and was only "flexibly "declared by ou highest court in 1874. II. HUSBAND AND WIFE. 1. Is an agreement between husband and wife f immediate separation valid? Its validity was attacke by one of the most prominent opponents of the cod on the ground that such an agreement would be equi alent to a voluntary extra-judicial divorce. It seen strange that Judge Cowen, in People v. Mercein, Hill, 411, actually calls such voluntary separation “ kind of divorce which the courts cannot very 'we gainsay at this day.'" The validity of such an agre ment was upheld in 1882 by Judge McAdam, in Alla v. Affleck, reversed by the General Term of the Marin Court, and such reversal in turn reversed by the Ger eral Term of the Court of Common Pleas, 64 How. Pi 380. The question was again mooted as late as 1883, i Desbrough v. Desbrough, in 29 Hun, 592. The Civi Code settled this question in accordance with thes decisions as early as 1865 (§§ 80, 81, being §§ 105, 106, a 1884). |