The Albany Law Journal. WE ALBANY, MAY 10, 1884. CURRENT TOPICS. be informed of the contents of the will. If they are not to be informed, and if a probate during the life of the testator is to be made final by act of Assembly, there will be no end of opportunity for fraud. The only advantage of the law is this: If a testator is alleged to be a lunatic and a contest begun, the jury, if there be one, will have the benefit of his own testimony and may have their judgment guided by an explanation from his own lips of his reasons for disposing of his property in the way that he sees fit. That however is not preventing contests, as you can see. It is simply putting a man in the midst of them, instead of fighting them out after he is gone and beyond the reach of rancor." We regard these objections as well founded. As we have once before suggested, it would be rather inconvenient and ludicrous to have a public inquiry into a testator's sauity every time he wanted to make a new will, as for example, when a new child was born. The best way to prevent will contests is to compel the contestants to give security tor costs. This matter seems to have been viewed only from the point of justice to the testator, but others have be against his sanity, would suffer under an undeserved and unnecessary stigma for the rest of his life. The bill in question is also objectionable because it puts the matter of parties to the proceedings within the choice of the testator. It provides that every person who would be "heir" at the time of the petition, and also such other persons as the testator may desire, shall be parties. Where is the widow left? She is not an "heir" and yet she is the person most interested, and making her a party is exclusively within the control of the testator. E hope the ante-mortem probate bill pending in our Legislature will not prevail. It is a very impolitic and unnecessary measure. A Michigan Circuit judge, writing to the New York Tribune, says of the similar act in that State, that it is impolitic, first, because the proceedings necessary to establish a will during the testator's life cause strife and dissension, stirring up bitter hatred between parents and children, husbands and wives, and so are contrary to public policy; second, because in Michigan, by special statute, husband and wife are precluded from testifying for or against each other without consent, and so the very best evidence is unnecessarily excluded. If that rule of evidence does not apply in contested will cases, then so much the worse, for we shall have the un-rights. And even the testator, if the decision should seemly spectacle of husband and wife revealing the family skeletons and resorting, very likely, to violence afterward to be avenged for the disclosure." Prominent lawyers in Philadelphia have also avowed themselves opposed to such a measure. Judge Penrose, of the Orphan's Court, says: "This law might perhaps shorten these contests, because the examiners would have the benefit of the testator's own testimony. Even as to that point there is an uncertainty. I think that an investigation in the nature of a proceeding in lunacy could easily be drawn out over months and years. The ante-mortem probation would, of course, be regarded as final. We hope our legislature will abolish imprisonWhat then? A will is ambulatory until the maker ment for debt. It is a relic of barbarism almost as of it die. A man might want to change his will a dozen times after it had been probated. Would vile as slavery: The law as it now stands is an not the register or the surrogate come to regard him abomination, intrinsically, and because under it in as a nuisance? Then as to publicity. A testator certain cases perpetual imprisonment is possible. ought to be required to give notice of the disposi-Matter of Brady, 69 N. Y. 215; Coffin v. Gourley, 20 Another objection, which was forcibly tion of his property to all who have an interest in his Hun, 308. estate. To omit that would be opening the door pointed out in a recent hearing before the judiciary to gross fraud. Yet see how this publicity would committee of the Assembly, is that a creditor residing in a community where imprisonment for debt affect the testator's peace of mind. He would run does not prevail may come here and enforce this the risk of having his life made miserable by the relatives to whom he had given nothing or had not harsh remedy against his debtor resident here, when given what they regarded as enough. Then again he could not resort to it at home. The best thing publicity would be placing a premium on murder. to do with this law is to reform it altogether. Let Suppose a man had induced another to make a will caveat venditor be the rule. in his favor, or had been favored without his bringing it about, might he not sometime believe it to be to his interest to have the testator's death hastened? I do not say that the thing I suggest would happen frequently, but once would be once too often. Antemortem probation, to my mind, would never do." And Register Rex says: "Suppose a man make a will and his mental soundness be tested. latives would be much averse to precipitating an unseemly contest during his life-time. They would be forced into silence. Yet they all have a right to VOL. 29 No. 19. His re The Central Law Journal seems to be "perking "Our Albany cotemporary says: up." It says: 'Mr. Leonard A. Jones, the well-known legal author, is preparing an Index of Periodical Legal Literature, and is desirous of obtaining the names of unsigned leading articles in this journal. The contributors of such articles will confer a favor by sending their names to Mr. Jones, 209 Washington street, Boston, Mass.' We believe that Mr. Jones is desirous of obtaining the names of the contributors of the articles, not of the articles themselves. Score one It is in the face of such statistics that our legislafor our Albany cotemporary's bad grammar. Any ture is asked to excuse still more of the best classes contributors to the Central Law Journal of articles, of citizens from jury duty—not only bank officials, notes to cases, correspondence, etc., will please send as we have before pointed out, but officers of insurtheir names to Mr. Jones." There seems to be no ance companies. If that bill should pass, we earnfault with our 66 grammar." There is merely an ap- estly hope that the Governor will veto it. As a parent omission of the words, "the writers of." sound lawyer and discreet citizen he must recognize Besides, if our paragraph was obscure, the same ob- the awful danger into which our country is drifting. scurity is chargeable to the last sentence of the We have our choice between lynch law or better Central's paragraph. To what does "their names" juries and prompter and more inexorable justice. refer to the contributors or to the articles, etc? The Hub man should remember that he that taketh up the pen shall perish by the pen. Moreover, a cultured Boston man should not use the word cotemporary. But we are glad to note this indication of his attentive reading of this journal. A continuance therein will be a liberal education to him. It will be news to most of our readers that the late eminent novelist, Charles Reade, was a lawyer by education, having been called to the bar in 1843. He felt however that his proper call was to literature, and in this he achieved marked success. We doubt however that posterity will rank him among the great novelists. In his latter days he exhibited a furious and ungovernable temper in controversy, and this, with several astonishing instances of plagiarism, has led us to suspect that his wits were not quite well regulated. Whenever he stole a passage however he seemed perfectly able to protect his possession by force and abuse. teen to one. The London Spectator, in an article on crime in America, says: "That except when public feeling is really roused, or good citizens crowd into the jury-box, the chances in favor of a murderer escaping the scaffold are in many States more than sixLast year, for example, more than 1,500 convictions for murder were recorded in the Union, and only ninety-three criminals were hanged. The penalty of death may be said to be informally abolished, and, as invariably happens when that is the case, murders have multiplied till a general sense of insecurity has penetrated downward even to the classes living by labor. The details are almost incredible, but Mr. Mulhall, in his 'Dictionary of Statistics,' shows that murder is more than three times as common in the Union as in England, France or Germany. We give the figures. Murder is a cause of death: The Senate failed to pass the Civil Code for want of a quorum. The bill received fifteen votes in favor to eleven opposed. Mr. Ellsworth declared the bill a statute and not a code. And yet the Throop bill, conceded to be a statute, and covering part of the same ground, was passed. Mr. Lansing exhibited very bad taste in speaking of the bill as a mere glorification of the codifier. He should at least recognize the fact that the codifier has merely discharged an official duty. It looks now as if the enemies of the bill had temporarily succeeded by dilatory tactics. They may gratify their personal animosities and their own pride of opinion by this course, but the cause of codification will live long after they and their petty interests are forgotten. Senators may write this sentence down in their tablets: The people are determined to have written laws, which they can read for themselves, without paying senators and other lawyers to interpret for them. NOTES OF CASES. [N Price v. People, 109 Ill. 109, a conviction of one IN Price v. 100 Tar 109, a conviction of the ground that the evidence showed that he was acting as a detective. The court observed in the prevailing opinion: "Waiving all controverted questions, the undisputed facts as appears from the foregoing are, that the accused on the day of the attempted robbery went deliberately to a constable of the town in which he lived, and told him all about the contemplated crime, giving the true names of the parties, and telling him when and where it was to take place, and the name of the intended victim; that the attempt was made at the very time and place, and by the parties stated by him, and that on the following morning he in like manner went to a justice of the peace and told him all about what had been done, and furnished him with the true names of the parties implicated, by means of which on the same day they were brought to trial, and were subsequently convicted of the crime. That a sane person, really guilty of committing so grave a crime as the one imputed to the accused, would thus act, is so inconsistent with all human experience as not to warrant the conviction of any one under the circumstances shown. The accused is a mere youth, only some nineteen years of age at the time of this transaction, and the fact that some of his conduct subsequent to the occur rence tends rather to strengthen the view taken by the jury, as is conceded, yet that may well have resulted from his youth and inexperience. But as to the exculpating facts above stated, we see no rational solution of them, and none that is satisfactory has been suggested by counsel for the people which would seem to warrant the conviction." Scott, J., however, dissented, observing: "It is admitted the accused went to the house of the prosecuting witness with others, whose avowed purpose was to rob him of his money. That he might have done with no criminal intent. But he went much farther. It is proven he entered the house where the burglary was to be committed, with one who carried a drawn pistol that he knew was loaded with a deadly charge, that he presented it in the face of the prosccuting witness, and demanded his life or his money,' and that accused aided him in his wicked purpose by his presence, and by exhibiting an unloaded pistol, and by the use of threatening language calculated to intimidate the witness and his wife, both of whom were old persons, and alone in their house in the night time. But for the unusual bravery exhibited by the prosecuting witness and his wife, the attempt to rob them might have been, and no doubt would have been, successful, and that result would have been accomplished in part, at least, by the acts of the accused. It might be admitted the accused went to the house with no original felonious intent, yet as has been seen, he stood by and aided another while he was attempting to commit a felony. That made him a principal in the wrongful act. It was unlawful for him to aid in the perpetration of a crime under the pretense he was acting as a detective. His presence in the house with pistol in hand, whether loaded or unloaded, was a cause of terror to the parties assailed, and as effectually aided the man who was attempting to rob them as though the intention of the accused had from the beginning been felonious. It is no answer to this view of the case to say that he notified the officers to be present and make arrests. When he ascertained there were no officers or others present to make arrests he ought to have stopped before entering the house, and given the alarm elsewhere. This he did not do, nor is it shown he was prevented from doing it by intimidation or otherwise, but on the contrary he actually participated in the attempted crime. The effect of his presence upon the witness and his wife was the same as if he was, in very fact, one of the 'James boys,' as he declared he was. The law will tolerate no such conduct. It would be to establish a most pernicious doctrine to hold that a person might participate in the commission of a felony, and obtain immunity from punishment on the ground he was a mere detective or spy upon the conduct of others." Craig and Walker, JJ., also dissented, and so do we. In Pullman Palace Car Co. v. Bluhm, 109 Ill. 20, it was held that one whose negligence causes a personal injury is not excused from liability by the negligence of a competent surgeon in treating the injury. The court said: "There is evidence tending to show that had this broken arm received ordinary care and ordinary professional skill, the parts would have united with little or no permanent injury, and on this hypothesis alone appellant insists that the matter of this false joint should have been, at least hypothetically, excluded from the jury. We understand the law on this subject to be that plaintiff cannot hold defendant answerable for any injury caused, even in part, by the fault of plaintiff in failing to use ordinary care or ordinary judgment, or for any injury not resulting from the fault of defendant, but caused by some new intervening cause not incident to the injury caused by defendant's wrong. Thus in this case if it be conceded that the false joint, under proper care and skill, would not have resulted from the breaking of the arm alone, but was brought about by the subsequent separation of the parts after they had been properly set, and before nature had formed a firm union, then if this subsequent separation of the parts had been caused by an assault and battery by a stranger, or some foreign cause with which appellant had no connection, and which was not in its nature incident to a broken arm, plainly appellant ought not to be held to answer for the false joint, but if appellee exercised ordinary care to keep the parts together, and used ordinary care in the selection of surgeons and doctors, and nurses if needed, and employed those of ordinary skill and care in their profession, and still by some unskillful or negligent act of such nurses, or doctors or surgeons, the parts became separated, and the false joint was the result, appellant if responsible for the breaking of the arm, ought to answer for the injury in the false joint. The appellee, when injured, was bound by law to use ordinary care to render the injury no greater than necessary. It was therefore his duty to employ such surgeons and nurses as ordinary prudence in his situation required, and to use ordinary judgment aud care in doing so, and to select only such as were of at least ordinary skill and care in their profession. But the law does not make him an insurer in such case that such surgeons or doctors, or nurses, will be guilty of no negligence, error in judgment, or want of care. The liability to mistakes in curing is incident to a broken arm, and where such mistakes occur (the injured party using ordinary care) the injury resulting from such mistakes is properly regarded as part of the immediate and direct damages resulting from the breaking of the arm." In Duffy v. City of Dubuque, Iowa Supreme Court, April 9, 1884, 18 N. W. Rep. 900, it was held that one who steps partly off a city street to get a drink of water from a hydrant on an adjacent lot is still legitimately using the street, and the city is liable for an injury to him by its neglect to take proper care of the street. The court said: "The position of counsel for appellant is that to entitle plaintiff to recover he must have been using the street at N CERTIFICATE OF SHARES. important question was involved in Moores v. Citizens' National Bank of Pigna, which was de by the Supreme Court of the United States in March, to appear in 110 U. S. And it is to be feared that it hardly received sufficient consideration. Mrs. Moores, the plaintiff, agreed to lend $9,100 to a cashier of the defendant, a National bank, for his own use, upon the security of ninety-one shares of the bank which he said he owned. He sent her a certificate in the usual form, bearing the seal of the bank and signed by the president and by himself as cashier, and certifying "that Mrs. Carrie A Moores is entitled to ninety-one shares of one hundred dollars each of the capital stock of the Citizens' National Bank of Pigna, transferable only on the books of the bank, in person or by attorney, on the surrender of this certificate." Upon receiving this certificate she paid him the money. In fact no shares were transferred to her, and the certificate was one that the president had signed in blank and left with the cashier to be used if and issued it to Mrs. Moores. She had no knowledge needed, and the cashier had fraudulently filled it up of the fraud. When it was discovered, the bank repudiated the transaction, and Mrs. Moores brought an action against the bank to recover damages, on the ground that she had parted with her money on the faith of the representation contained in the certificate. It was held that she was not entitled to recover. the time of the accident for some of the ordinary LIABILITY OF A CORPORATION ISSUING A and legitimate objects, for the promotion of which the city is required to keep it in repair, and that the act he was doing at the time is not of that char-A acter. The following cases are cited as sustaining cided this position: Stinson v. Gardner, 42 Me. 248; Stickney v. Salem, 3 Allen, 374; Blodgett v. Boston, 8 id. 237; Norristown v. Moyer, 67 Penn. St. 359; Sykes v. Pawlett, 43 Vt. 446. The rule in the New England States, and in some others, undoubtedly is that the public corporation, which is charged with the duty of keeping the highway in repair, is liable to one who is injured by the failure to perform that duty only in case the injury is received while in the legitimate use of the highway. In those States however, the duty to keep the highway in repair is imposed on the corporation by statute, and the extent of that duty is expressly defined by statute. The liability of the corporation to one who suffers an injury by reason of its failure to perform the duty is also created and defined by statute. The Massachusetts cases cited are determined under statutes which impose upon the corporation the duty of keeping all highways within its limits in such state of repair that they may at all seasons of the year be safe and convenient for travellers passing along and upon them, and which make it liable to any person who suffers an injury through any defect or want of repair therein, and they hold that unless the person injured by the defect was a traveller on the highway, within the meaning of the statute, when he received the injury, the corporation is not liable to him therefor. They have put a very liberal construction on the word 'travelers' as used in the statute. It is held to include every one who has occasion to pass over the highway for any purpose of business, convenience or pleasure, and that the highway is to be kept safe and convenient for all persons having occasion to pass over it while engaged in any of the pursuits or duties of life.' Blodgett v. Boston, supra. Now, we feel that we are not called upon to determine in this case whether the rule in this State as to the liability of the corporation is any different from what it is in those States, by reason of the fact that it is not created or defined by statute - a question discussed by counsel - for it seems to us that the use which plaintiff was making of the street at the time of the injury was a legitimate and proper use. He was on the street in the ordinary course of his busi ness. He had the right to go to the hydrant for the purpose for which he went there, and in going there he had the right to pass along the street. It was convenient for him to stand upon the sidewalk while drawing the water. It was certainly not unlawful for him to stand there for that purpose. He was not a mere lounger on the street, obstructing the travel thereon, but his stopping there for the time, and for the purpose for which he stopped, was a mere incident to the general use which he was making of the street at the time." See Varney v. Manchester, 58 N. H. 430; S. C., 42 Am. Rep. 592, note, 601. In the opinion of the court, which was delivered by Mr. Justice Gray, it is stated as beyond doubt that when a certificate is improperly issued, and the holder transfers the shares to another who gives value on the faith of the certificate and without notice of any defect, the latter, although he does not acquire a title to any shares, is entitled to recover from the corporation the damages he has incurred by acting on the representation contained in the certificate. The reason why Mrs. Moores was not entitled to recover is thus stated: "The certificate which he delivered to the plaintiff was not in his name, but in hers, stating that she was entitled to so much stock, and showed, upon its face, that no certificate could be lawfully issued without the surrender of a former certificate, and a * transfer thereof upon the books of the bank. ground of the decision, and the case is treated as if he have been transferred on the books of the bank many times from one owner to another without any certificate having been issued. Shares are often properly transferred in this way by those who have many dealings in them. It is only when a certificate has been issued that its surrender is required upon a transfer. It is plain therefore that the certificate did not give the notice supposed, and if such notice had been given, it would have been contrary to the fact. It is mentioned in the opinion that the plaintiff had no notice of any irregularity otherwise than from the certificate. The certificate would obviously have given to any one else that saw it the same notice that it gave to the plaintiff. The consequences are startling, for if the decision be sound, any one who purchased the shares from the plaintiff, and paid for them on the faith of the certificate, would have been affected with the same notice as the plaintiff, and so would have had no claim to damages against the bank. A corporation therefore will never be liable to any one who acts on the faith of a certificate improperly issued, if it contains the clause that the shares are transferable only on the books of the corporation on surrender of the certificate. If a purchaser taking such a certificate ascertains that the legal prerequisites were actually complied with and that a former certificate was surrendered, the former certificate would also give him notice of similar prerequisites to its validity, and he would have to continue his inquiry into the fulfillment of legal prerequisites ad infinitum. But was it in any way material that Mrs. Moores knew (as she must have known) that there must have been a valid transfer of the shares to her before a certificate that she was entitled to them could lawfully be issued? The certificate was a representation by the bank that every thing had been done that ought to have been done to make her owner of the shares. This is the only ground on which a corporation is ever liable to one who acts on the faith of a certificate. The step Mrs. Moores took to assure herself that the legal prerequisites were complied with was to get the certificate of the bank to that effect before she parted with her money. Saying that she knew it could not be lawfully issued unless the legal prerequisite, a transfer of the shares to her, had been complied with, is only equivalent to saying that she knew the representation ought not to have been made unless it was true. Yet it was because she knew this (who does not?), that she was held not entitled to recover. It should be added that if this legal prerequisite to the validity of the certificate had been complied with, she certainly would have had no cause of action. The decision of this case in the court below (15 Fed. Rep. 141) was put on a far more plausible ground, but one that can hardly be regarded as sufficient. It was there said that the cashier issued the certificate for his own benefit, and that this was enough to put the plaintiff on inquiry. An answer to that is that the certificate purported to be issued by the president as well as by the cashier. The president had signed it in blank and left it with the cashier to be used if needed. In the hands of the plaintiff who had no notice of this, it was as effectual against the bank as if the cashier had procured the president's signature after the certificate had been filled up. It is also to be regretted that Mr. Justice Gray should have suggested a doubt whether a corporation would be liable to the person to whom a certificate was issued, e. g. in case of a forged transfer, in the same way as it would be to another who purchased the shares from him on the faith of the certificate. He says: "According to the decision of Lord Northington in Ashby v. Blackwell, 2 Eden, 299, Ambler, 503, it would be seen that the corporation would be liable. Acto the decisious of Sir Joseph Jekyll in Hildyard v. South Sea Co., 2 P. Wms. 78, and of the Court of Appeal in Simm v. Anglo-American Tel. Co., 5 Q. B. D. 188, it would seem that it would not, because the holder of the new certificate takes it, not on the faith of that or any other certificate of the corporation, but on the faith of the forged power of attorney." In neither of the two last cases is there the slightest intimation that the corporation would not be liable to the person to whom the certificate was issued, where he paid money on the faith of it, but on the contrary, there is in the last case the most positive assertion that the corporation would be liable. It was held that a purchaser of shares who had taken a forged transfer and paid for them and then brought the transfer to the company and had it registered, had no cause of action against the company, for he had acted on the faith of the forged transfer, and not on any representation of the company. The company however after registering the transfer, issued a certificate at his request to Simm and Ingelow, who then advanced him money on the security of the shares, but the advance was repaid before the forgery was discovered. Brett, L. J., said. Pausing here, I may say that I think it clear upon the authority of In re Bahia & San Francisco R. Co., L. R., 3 Q. B. 584, that the certificate issued by the company, being acted upon by Simm and Ingelow, did raise an estoppel between them." Cotton, L. J., said: "Simm and Ingelow were purchasers for value; and no doubt while their interest remained they had a right of action against the company, who were estopped as against them from saying that their transferrors * * were not stockholders." That case was carefully considered, and an attentive perusal of it will clear away much of the confusion that has been created with regard to the subject. * J. L. THORNDIKE. RECEIVERS OF CORPORATIONS-RIGHT TO SUE STOCKHOLDERS FOR UNPAID SUB N SCRIPTIONS. the case of Farnsworth v. Wood, 91 N. Y. 313, Judge Rapallo decides, with the concurrence of the full bench, that the liability of a stockholder of a manufacturing corporation is a several individual liability directly to such of the creditors of the corporation as have complied with the requisite conditions precedent, and that there is no statutory provision by which such liability can be vested in a receiver of the corporation, and hence a receiver cannot collect unpaid subscriptions to stock under section 10, chapter 40, Laws of 1848. It is argued that the receiver, appointed under section 36, 2 Revised Statutes, 467, received only "the stock property, things in action and effects of the corporation," and that the liability of delinquent stockholders being directly to the creditors, and not, in so many words, to the receiver, the latter could not, under section 10, supra, have any right of action. This decision is the occasion of a dilemma, since it is disputed that such a receiver can enjoin any creditor from bringing a separate action. Rankine v. Elliot, 16 N. Y. 377; Calkins v. Atkinson, 2 Lans. 15; Phoenix W. Co. v. Badger, 67 N. Y. 299. In this last case Judge Rapallo says: "The right to collect the unpaid subscriptions was transferred to the receiver," citing 2 Rev. Stat. 463; § 36, L. 1852, p. 67; L. 1860, p. 699; 2 Rev. Stat. 409, §§ 67, 69; Rankine v. Elliot, supra; Tracy v. First Nat. Bank of Selma, 37 N. Y. 523. But it seems these cases, as far as they affect the point, are now overruled. Inasmuch as section 10, chapter 40, Laws of 1848, is essentially the same as section 10, chapter 140, Laws of |