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WITNESS.-(1) The indictment charged appellant and Elliott, 16 N. H. 82. And a good cause for so suppos-
four other persons with jointly making to John Faying in the present case was the defendant's knowledge
certain false representations as to the value of a mort- that the animal was of vicious disposition and a
gage of $2,000 on certain lands in Ulster county, by torious kicker;" and the jury might well conclude
which he was induced to convey his farm, in Geddes, from these undisputed facts alone that the defendant
and accept such mortgage and $500 in payment. Held, had sufficient knowledge of its vicious nature and pro-
that the right of the prosecution to try the prisoners pensity to make bim liable for its subsequent attack
separately is fixed by statute. Code Crim. Proc., $462. on the plaintiff in consequence of that nature and pro-
(2) Fay was asked, on cross-examination, if before the pensity. For when it is made to appear that any do-
bargain was closed he had been advised by his counsel mestic animal is vicious and inclined to do hurt, and
kot to accept the mortgage without an examination the owner bas notice, express or implied, of the fact,
of the land. The question was excluded, but the fact the law then imposes upon him the duty to keep the
was afterward fully proved by Fay's counsel on his animal secure, and makes him liable to any person,
(the counsel's) cross-examination, but Fay was after- who without contributory negligence on his part is
ward recalled by plaintiff, and answered the question, injured by it. And this rule is so entirely reasonable,
under appellant's objection, in the negative. Held, and is so strictly in accordance with the legal and
that no harm resulted from the error, and that it was moral duty, obligatory upon everybody, so to keep
immaterial. (3) A juror had an impression as to the and use his own property as not to wrong and injure
guilt or innocence of the prisoner, but would be gov- others, that authorities need not be cited in its sup-
erned by the evidence, and could render an impartial port. N. H. Sup. Ct., July 3, 1886. Reynolds v. Hussey.
verdict according to it, and give the prisoner the bene- Opinion by Blodgett, J.
fit of every reasonable doubt, and acquit him such
doubt existed. Held, to be competent. (4) How far DAMAGES


OPINION EVIthe examination of a prisoner may be carried in regard DENCE.-In an actiou brought to recover damages for to his history and mode of life is necessarily very much injuries to plaintiff's growing crops by the flowing of in the discretion of the court. June 25, 1886. People his land alleged to have been caused by ditches dug by v. Clark. Opinion by Finch, J.

defendant to drain its road-bed, the damages are to be estimated as of the time of the injury, and the

measure of damages is compensation for the value of ABSTRACTS OF VARIOUS RECENT DE- the crops in the condition they are in at that time. 3 CISIONS.

Suth. Dam. 381, 382; Richardson v. Northrup, 66 Barb.

89; Folsom v. Apple River, etc., Co., 41 Wis. 609. In ACCORD AND SATISFACTION-WHAT NOT SUFFICIENT. applying this rule a considerable latitude of inquiry is -Defendant seut to the plaintiff a statement of its permissible from the nature of the case. The estiaccount, a note for the apparent balance, and a letter mate must be based largely upon the condition, stage explaining some items, and ending, “trusting you of growth, and promise of the grain, and the capacity will find this correct and satisfactory,” etc. The of the land to produce crops; and in addition to tbe plaintiff kept the note, but there was nothing that in- opinions of witnesses qualified to speak in reference dicated that it was offered in satisfaction of the ac- to the extent of the injury and of the value of the count, or that any condition was attached to its ac- growing crop in its then condition, we think it would ceptance. Held, not to be an accord and satisfaction.

be proper to receive evidence of the average product There was no act or declaration accompanying the or yield of like crops upon the game and other lands giving of the note that amounted to a condition that

in the neighborhood, under like circumstances and if accepted it was to be in satisfaction of the claim; conditions, and also the average market value of such nothing to give the plaintiff to understand that if he grain, within reasonable limitations as to time and took it, he took it subject to such a condition. Vt.

the expense of harvesting and marketing, to be subSup. Ct., Aug. 6, 1886. Boston Rubber Co. v. Peerless mitted to the jury under proper instructions by the Wringer Co. Opinion by Taft, J.

court. If the estimates are extravagant, the evidence ANIMALS--INJURY BY--SCIENTER.-In an action for may be sifted upon cross-examination and controverted injury to the plaintiff by the defendant's horse strik- by witnesses. Folsom v. Apple River Co., supra; ing him with its fore feet, evidence that the animal Whitbeck v. R. Co., 36 Barb. 647; Grand Rapids Boom. had the vicious propensity to injure mankind by Co. v. Jarvis, 30 Mich. 327; Allison v. Chandler, 11 id. kicking with its hind feet, of which propensity the 542; Williams v. Currie, 1 Man., G. & S. 841. The defendant had knoweldge, may be received. It is not court therefore properly admitted evidence tending necessary, in order to fasten a liability upon the to prove the average amount of wheat and oats per owner, that he have notice of a previous injury to acre usually raised on these or similar lands in the others. Rider v. White, 65 N. Y.54; Godsan v. Blood, vicinity during the years in question. All estimates 52 Vt. 252; Worth v. Gilling, L. R., 2 C. P. 1; Judge v. must include and make allowance for the risk to the Cox, 1 Stark. 285; Cooley Torts, 344. It is the pro- growing crop, but may also include the reasonable pensity to commit the mischief that constitutes the probability of its coming to maturity, and its value danger (McCaskill v. Elliott, 5 Strohb. 196), and there- when so matured, and that it will be of the average fore it is sufficient if the owner has seen or heard ralue of such crops; and where the evidence develops enough to convince a man of ordinary prudence of the with reasonable certainty the average price of the maanimal's inclination to commit the class of injuries | tured grain for that year during the marketing season, complained of. Eightlinger v. Egan, 65 III. 235; Buck- it becomes an element which the jury may consider ley v. Leonard, 4 Denio, 500: Applebee v. Percy, L. R., in their estimate of damages to the then growing crop 9 C. P. 647; Abb. Trial Er. 645; Shearm. & Redf. Neg. in arriving at a conclusion as to the amount of com(3d ed.), $ 190. The question in each case is, whether persation which the plaintiff may be entitled to for the notice was sufficient to put the owner on his crops injured or destroyed. Armstrong v. Smith, 44 guard, and to require him, as an ordinarily prudent Barb. 125. This would seem to follow from the rule man, to anticipate the injury which has actually oc- adopted in Goebel v. Hough, 26 Miun. 253; and Boom curred. Cooley Torts, 344. Hence it is unnecessary Co. v. Prince, 24 N. W. Rep. 315, 316. Minn. Sup. Ct., to prove more than that he has good cause for suppos- July 12, 1886. Limmerlanıl v. St. Paul, etc., R. Co. ing that the animal may so conduct. Kittredge v. Opinion by Vanderburgh, J.

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DEED BOUNDARY ON HIGHWAY - QUANTITY CON- tiff's building the defendant is not liable for shading
VEYED.-A warranty deed described part of the prem- it to the exteut of that right. The defendant how-
ises conveyed as “the horse-shed on the west side of ever does not have, or stand at all upon, the rights of
the highway, with the laud covered by the same; the these other perso118. The buildings were not raised to
grantee to have the right and privilege to go on laud that height, and the plaintiff would bave enjoyed the
of the grantors around the shed for the purpose of re- light which the defendant's structure did intercept,
pairing the same." Held, that the land couveyed was but for that structure which the defendant, as against
that actually covered by the shed as it then stood the plaintiff, had no right to erect. There is no owu-
without reference to the true line of the highway. In ership in light itself, as it is diffused, and the jury has
Falls Village Water Power Co. v. Tibbets, 31 Conn. pot awarded any thing to the plaintiff for wbat be-
367, it was held by this court, Butler, J., delivering longed to any one else. This evidence would not have
the opinion, that "a road or highway, mentioned in a shown that the injury was to others, and not to the
deed as a boundary, must be understood to mean what plaintiff. U. S. Cir. Ct., S. D. N.Y., Aug. 10, 1886. Fifth
is meant by other existing objects or monuments de- | Nat. Bank v. New York Elevated R. Co. Opinion
scribed and intended as boundaries, namely, an ob- by Wheeler, J.
ject existing in fact, not of record merely, something
apparent, unmistakable and permanent."


And this positive rule was applied to a case where the special sidewalk in violation of an ordinance are injured by a

TION OF ORDINANCE.—Where goods placed ou the reasons for such an application were not nearly as strong as in the case at bar. Conn. Sup. Ct. of Errors,

horse running upon the sidewalk, such violation canJan. 22, 1886. Bristol Man'fg Co. v. Barnes.

not be given in evidence as showing contributory neg

ligence on the part of the owner of the goods in a suit EVIDENCE-OPINION-VALUE OF SERVICES-CLAIM brought by him against the owner of the horse. Penn. AGAINST RESPONSIBLE PARTY POVERTY OF PLAIN- Sup. Ct., Feb. 8, 1886. Gannon v. Wilson. Opinion TIFF.-A witness having a general knowledge of the per Curiam. character, extent, and quality of the plaintiff's work in a livery stable, and being acquainted with the kind

NEGOTIABLE INSTRUMENT -- CONSIDERATION - IGof work, may give his opinion or estimate of its value.


LAW -- SURETY. The surrender of Opinions as to the value of services, professional or

an old promissory note is a sufficient consideraotherwise, run along the same line as opinions as to

tion for a new one executed by a surety, although the value of property, which are always admissible the surety had been released from payment of the old uuder proper conditions. So the opinions of witnesses

note by the action of the insolvent principal, where acquainted with the business and running of a certaiu

both parties knew the substantial facts, but being igrailroad, were held admissible to show the value of norant of the law, in good faith supposed the surety the use of the road for a particular period. Sturgis v.

was liable for the old note. In Stevens v. Lynch, 12 Knapp, 33 Vt. 486. (2) Evidence is admissible to show

East, 38, the drawer of a bill of exchange, knowing that one is poor, whose claim has been long orer due

that time had been given by the holder to the acagainst a responsible party and without demand, if it ceptor, but apprehending that he was still liable on appears that the claimant was actually in need of

the bill in default of the acceptor, three months after money to use; but not so if, though poor, his current

it was due said he kuew he was liable, and would pay needs were supplied, and he had no occasion to use

it if the acceptor did not, and it was held that he was more than he received. Vt. Sup. Ct., Aug. 2, 1886.

bound by the promise. 8. C., 2 Camp. 332. The uniStone v. Tupper. Opinion by Rowell, J.

versal rule is ignorantia juris non excusat, the word jus

being used as denoting general law-the ordinary law FRAUDULENT CONVEYANCE-SECRET TRUST-GRANT

of the landmand not a private right. 1 Benj. Sales, OR'S CREDITORS. — A conveyance of land absolute on

$611. The cases that hold that money paid in ignoits face with a secret understanding that on payment

rance of the law is not recoverable are analogous. of the debt the land shall be reconzeyed, constitutes a

Brisbane v. Dacres, 5 Taunt. 144; Clarke v. Dutcher, secret trust that renders the conveyance void against

9 Cow. 674. Any act that is a detriment to the plainsubsequent as well as existing creditors. The convey- tiff' is a sufficient consideration for a promise to pay ance is deemed fraudulent, whether the actual pur

money. Williamson v. Clements, 1 Taunt. 523. It was pose to defraud is found as a fact, or is conclusively

a detriment to the plaintiff to give up the old uote, as presumed from admitted facts. The trust being es

it was good against Brow}); and the fact that Browni tablished the intent to defraud creditors is conclu

was insolvent makes no difference, for the note must bively presumed. Such a trust is inconsistent with

be takeu to have some value, and a small consideratiou an absolute sale. Smith v. Lowell, 6 N. H. 67 ; Paul

will support a larger promise. Hitchcock v. Caker, 6 v. Crooker, 8 id. 288; Winkley v. Hill, I id. 31; Tifft v.

A. & E. 438; Creswell, J., in Southall v. Rigg, 11 C. B., Walker, 10 id. 150; McConihe v. Sawyer, 12 id. 403; | 381, 494; Denman, C. J., in Haigh v. Brooks, 10 A. & Page v. ('arpenter, 10 id. 77; Towle v. Hoit, 14 id. 61;

E. 309; Harrington v. Wells, 12 Vt. 505. Iu Shortside Ladd v. Wiggin, 35 id. 421, 420; Coolidge v. Melvin, 42

v. Cheek, 1 A. & E. 57, the giving up of a note against id. 510; Putnam v. Osgood, 51 id. 192; S. C., 52 id. 148;

a third person was held to be a sufficient consideraRanlett v. Blodgett, 17 id. 298; Coburn v. Pickering, 3

tion from a promise to pay the amount of it. Parke, id. 415; Lang v. Stockwell, 55 id. 561; Cutting v. Jack-J., said: “There is no doubt that the giving up of any 801, 56 id. 233; Plaisted v. Holmes, 58 id. 293 ; S. C., id. 619; Sumner v. Dalton, id. 295. N. H. Sup. Ct., March cient consideration.” Iu Haigh v. Brouks, 10 A. & E.

note ou which the plaintiff might sue would be a suffi12, 1886. Stratton v. Putney. Opinion by Smith, J.

309, tbe consideration for the promise was that plainLIGHT-OBSTRUCTION BY ERECTION OF BUILDING- tiff gave up to the defendant his guaranty on behalf EVIDENCE.-In an action for obstruction of light by of a third person; and it was contended that the guaran elevated railroad, it is not error to exclude evidence anty was void for not expressing a consideration on to show, that if the buildings on the opposite side of its face, and that therefore the giving of it up constithe street from plaintiff's building were raised as high tuted no consideration for the promise. But without as the law and ordinances of the city allow, defend. deciding whether the guaranty could have been made ant's structure would not intercept any direct rays of available or not, the Queen's Bench gave judgment for the sun toward plaintiff's building. The admissibility | the plaintiffs on the ground that they had parted with of this evidence rests upon the claim that because something they might have kept, and the defendant others have a right to do what would shade the plain- | obtained that which he desired by means of his prom

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ise; that both being free, and able to judge for them- , right to clear the space. The right claimed was under selves, the defendant would not be justified in break- the permission of President Hadden, and no one else, ing his promise on afterward discovering that the 80 far as appears in the proof. It is certain, even if he thing in consideration of which he made the promise had authority to grant the right to enter on plaintiff's did not possess the value he supposed it did. The Ex- premises, he had not done so. He had granted only chequer Chamber affirmed that judgment, both on the the right to locate the line along the streets, the locaground that the guaranty might bave been made good tion to be fixed by the city engineer; and the defendby explanatory evidence, aud on the ground-Maule, ant was also authorized to cut away any limbs interJ., doubting-that the actual surrender of the posses- fering with the erection of the line overhanging the sion of the paper to the defendant was a sufficient con- street; but even as to this, he says the defendant was sideration without reference to its contents. Vt. Sup. to pay any damage inflicted on owners of property. Ct., July 19, 1886. Churchill v. Bradley. Opinion by He adds, his permits only gave the right of way on the Rowell, J.

street, but in no case were to interfere with private SALE-ACCEPTANCE-TRIAL OF ENGINE.-Where the property, as he did uot assume to settle controversies contract by which a village agrees to purchase a

of that kind. This being so, defendant shows no steam fire-engine and attachments provides for the

shadow of right to enter on the premises of plaintiff, payment of the first installment of the purchase-money

and cut the limbs off her trees near the body of the at the date of acceptance of the property, and at the

tree, thus greatly disfiguring the shade trees in the request of the vendee, the vendor sends one of its em

yard of a city home, as shown by the proof. It is true ployees to assist at the trial of the engine, the nature

defendant's witnesses insist that the limbs could only of the machinery making a trial necessary to deter

be cut in this way. Plaintiff swears the contrary, aud mine its fitness for the purposes required, held that the

we see that the fact is as she swears; for it would have acceptance was to be after trial, not when placed upon

been easy with a self-supporting ladder to have drawn the cars at the place of manufacture. The language

down the overhanging limbs and sawed them off, and of Justice Campbell in Cole v. Homer, 53 Mich. 438,

thus renioved the obstruction. Be this as it may, it seems to be applicable to the present case : “When a

is clear the court charged correctly that the defendant village corporation desires to supply itself with hydrau

had no authority to enter on the premises, and cut lic facilities it is a matter of common experience that

away the limbs, the plaintiff having positively forbidit cannot be readily computed in advance just what will

den the trespass; and a march was stolen on her, and meet its supposed necessities. It is only by experi

it done at midnight, as said by the employees, a most ment that it can be known whether any proposed sys

unusual time for such work. But it was seen from tem will serve its purposes. Machinery may do all

this issue that the question of license to let the limbs that it is warranted to do, and yet by its workings

grow over the street was totally irrelevant and immashow that something else is required to supply the cor

terial in the case. It is true it is now argued these porate needs. Most of the devices introduced here

limbs were a public nuisance, and might have been and there are urged, not merely as calculated to do

abated by any one; but the proof shows no such thing, prescribed work, but also on the ground that this work

On the contrary, it is shown that they did not interis just what the town requires. It is so usual to reserve

fere at all with the use of the street by the general a right to a preliminary trial, not to test particular public, and we can see their shade over the sidewalk capabilities, but to ascertain general fitness for general

would be grateful to parties walking the street in purposes, that when such provisions are inserted in

warm weather, and thus to be a public advantage contracts courts must see that they are respected." (2)

rather than interfere with their use. The limbs only Where a vendee refuses to accept merchandise, which

interfered with this private corporation in the proseby written contract, he has agreed to purchase, the

cution of their business in the precise way most conremedy of the vendor is not assumpsit for the pur

venient to them, as it is shown they might have had chase-money, but an action for breach of contract, and

their line so located as not to interfere at all with the refusal to accept on the part of defendant. Mich. Sup.

trees, but at probably less convenience, or it might be Ct., July 21, 1886. Mansfield Machine-Works v. Low

slightly additional expense. Temn. Sup. Ct., June 5, ell Common Council. Opinion by Morse, J.

1886. Memphis Bell Telephone Co. v. Hunt. Opinion

by Freeman, J.


DAMAGES. When specific chattels are purchased for a particular pur

ACCIDENT TO LAND.-The purchaser of real property pose understood by vendee and vendor, and the ven.

under an executory contract is the equitable owner, dee has no opportunity to inspect them, there is an im

aud must sustain any accidental loss accruing after his plied warranty usually that they shall be reasonably

purchase, and before the conveyance of the legal litle, fit for that purpose. (2) When there is a warranty,

he being entitled also to any benefit which may accrue express or implied, in the sale of goods, the vendee

to it during that time. After the execution of the conneed not return, or offer to return, the goods in order

tract, Carver, the purchaser, died; and in the month to establish his right to recoup the damages he sus

just named an unprecedented high flood swept the tains by a breach of such warranty. Vt. Sup. Ct., July valley of the Obio, where this land was situated, his 19, 1886. Best v. Flint. Opinion by Walker, J.

widow being yet in possession of it. Some of the out

buildings and fencing were carried away by the water, TELEGRAPH AND TELEPHONE COMPANY-RIGHT OF and the premises otherwise injured. It is earnestly WAY-ENTRY ON ADJOINING LAND. - When a munici- insisted that it was but an agreement to sell in futuro, pal corporation grants the right of way through its aud that a portion of the improvements having been streets to a telephone company, this does not license destroyed prior to the time when the deed was to be an entry upon adjoining lands owned by private indi- made and the possession given, the appellant is not viduals, and such entry is unauthorized. The court, bound to accept the title, and pay the purchase-money. among other things, charged the jury that if defend. Viewed in the light of the entire testimony it is quesant, by its agents, entered upon the inclosure of plain- tionable whether the improvements which were detiff against her will, for the purpose of cutting the stroyed by the flood formed such a material part of trees or limbs, it was a trespass; and this was so, even the value of the premises as tu entitle the appellant, if it was done for the purpose of clearing a space for even under the rule as adopted by the courts of some their wires outside the inclosure, in case they had the of the States-as Maiue and New York-and which

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appears to have been that of the civil law, to be re- houseman for the refusal to deliver upon due demand lieved from the contract. Indeed the evidence tends goods which had been intrusted to him for storage. strougly to show that the benefit to the land by the The answer alleged, that without any negligence of alluvial deposit was equal to the damage to the prem- the defendant the goods were stolen from its wareises in other respects from the flood. But conceding house. The decision and opinion of a majority of the that this is not so, yet should the contract be an- court is carefully confined to the precise case before nulled? It is true that if A. agrees to sell and deliver it. It recognizes fully the general principles which we his horse to B., upon a future day,and the horse dies in have stated above, both as to the nature of the warethe interval, that tbe obligation is at an end, but in such houseman's contract and as to the burden of proof, a case the title does not pass. In the case now in hand and the utmost scope of tbe decision is that where however the equitable title did pass, and if property there has been a refusal to deliver goods upon debe destroyed by inevitable accident, or the act of God, mand, and the warehouseman alleges that they have the loss should fall upon bim who is at the time the been stolen without his fault, the burden is upon bim owner of it. Its safety is at tbe risk of the then to prove this fact. This does not reach the case at bar. owner, and the purchaser of real property by execu- The plaintiffs do not and could not allege that there tory contract is the equitable owner, and must sustain had been a refusal to deliver upon demand. On the any accidental loss occurring after his purchase, and contrary, they are compelled by the facts to allege, as before the conveyance of the legal title; he be- they do in the second count, that the goods were daming also entitled to any benefit which may accrue aged while in the custody of defendants by their neg. to it during that time. This appears to be the well-ligence. Negligence is an issue raised by the pleadunderstood rule in this state, and even if it were ings, and is a fact which must exist in order to create not the best rule, it would be hazardous to alter it. any liability of the defendants. We see po reason to Moreover, being understood, parties to such execu- suppose from the decision or the opinions in Cass v. tory contracts can easily protect themselves, and Boston & L. R. Co., that if the case before the court guard against accidental loss, if they desire to do so. had been like the case at bar, the decision would have Johuston v. Jones, 12 B. M. 326. Ky. Ct. of App., June been different from ours. But we think the two cases 19, 1886. Martin v. Carver's Adm'r. Opinion by really depend upon the same principles; and upon Holt, J.

careful consideration we can see no principle upon

which the decision in that case can be maintained. It WAREHOUSEMEN-INJURIES TO GOODS-BURDEN OF PROOF.-In an action of contract against a warehouse- First, that as the plaintiff does not allege negligence

seems to proceed upon one or both of two grounds: man to recover damages for injuries to goods intrusted

in his declaration, therefore negligence is not an issue; to him, the burden of proof is upon the plaintiff to show that the goods were injured by the negligence of prima facie case by proof of a refusal to deliver on de

and second, that as the plaintiff could make out a the defendant while they were in his custody. The

mand, any excuse which the defendant set up for the fundamental rule as to the burden of proof is that

refusal to deliver was matter in discharge and avoidwhenever the existence of any fact is necessary in or

ance which must be proved by him. The opinion recder that a party may make out his case or establish a

ognizes the question of negligence as one of the issues defense, the burden is on such party to show the ex

in the case; for the case proceeds upon the ground, istence of such fact. In Stephens on Evidence the

that if the defendant shows that he was not negligent, rule is stated to be that “whoever desires any court to give judgment as to any legal right or liability depend-Sup. Jud. Ct., July 6, 1886. Willett v. Rich. Opinion

it is a complete answer to the plaintiff's case. Mass. eut on the existence or non-existence of facts which he

by Morton, C. J. asserts or denies to exist, must prove that those facts do or do not exist." Steph. Ev. (Am. ed.) 175. The test of the question before us then must be the former

CORRESPONDENCE. question, whether the existence of the fact of vegligence on the part of the defendants is necessary to create a liability for a breach of their contract. This de A PROBLEM FOR EXPERTS IN THE CONTINGENT FEE pends upon the character of the contract, which by

BUSINESS." implication of law the warehouseman enters into

Editor of the Albany Law Journal : when he receives goods for storage. It is clear that this contract is not such a one as is set out in the first

Where suit is taken by attorney of this city on shares count of the plaintiff's declaration. He does not agree

for party plaintiff residing in California with express that he will keep them safely, and on demand deliver contract that nothing shall be charged as fees uuless them in the same order and condition as when re

successful, issue having been joined, arguments before ceived by him. This would make him an insurer of

United States justice had, wherein one of the defendthe goods against all damage by accidents, deteriora

ants demurred and demurrer was sustained by the tion, or any other cause. But the authorities clearly court, in fact plaintiff was beaten at every point, so show that the implied undertaking of the warehouse- far as arguments have been had before the court. man is not that he will at all events keep the goods

Plaintiff now writes a letter to her attorney requestsafely, but that he will use ordinary care and diligence ing him to withdraw the suit, nothing so far baving in keeping them. Thomas v. Boston & P. R. Corp., 10 been recovered or likely to be recovered. Metc. 472; Lamb v. Western R. Corp., Allen, 98;

Question. Can plaintiff's attorney collect from his Cass v. Boston & L. R. Co., 14 id. 448; Gay v. Bates, 99

client any fees whatever, and Mass. 263; Roberts v. Gurney, 120 id. 33; Aldrich v. Q. (an plaintiff's attorney still maintain the suit Boston & W. R. Co., 100 id. 31; Lane v. Boston & A. for the purpose of obtaining his fees, as against his R. Co., 112 id. 455. Unless he fails to use due care in

client's request in writing to cease firing? keeping the goods he has not broken his contract, but

An answer in your usual, prompt and erudite style has done all that he agreed to do. The ruling at the will help to confound a lawyer who is wiser than trial was made in deference to the decision in Cass v. what is written, and if a member of the English bar, Boston & L. R. Co., above cited, and the plaintiffs con would be incarcerated for champerty, and at the same tend that that case covers and is decisive of the case

time oblige at bar. That case might be distinguished from the case

LAY SUBSCRIBER FROM THE BEGINNING. at bar. It was an action of contract against a ware- NEW YORK, Sept. 6, 1886.

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The Albany Law Journal.


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crats. If they should name such a man as Esek Cowen it would put a heavy responsibility on the

Republicans to refuse him. But if they should ALBANY, SEPTEMBER 25, 1886. nominate a known and pronounced partisan, they

ought not to complain if the Republicans put up a

candidate of their own party, and follow the preceCURRENT TOPICS.

dent in future elections. Assuming that the nomi

nation now should be given of grace to Albany or ANY, if not most of the leading newspapers of

Troy, and having already expressed our preference this State, advocate the nomination of party for a particular candidate of both parties, and lookcandidates for the Court of Appeals. They are

ing forward to the probability that Judge Peckgenerally outspoken in their desire to preserve the

ham will be nominated by the Democrats notwithDemocratic " complexion” of the court, or to

standing, we suggest that the Republicans put up change it to Republican. We very much regret to

Isaac Lawson, of Albany, whose name will comsee this, and we should very much regret to see a

mend itself to every lawyer in this region, without partisan nominated and elected. There is no such

distinction of party, as that of a person of excepman on the bench now. Except Judge Miller, who

tional learning and experience, both as a lawyer before he was a judge — that is to say, twenty- and as a judge — for he has long been a favorite eight years ago — used to take an active part in

referee — and as synonymous with integrity, canpolitics, none of the judges, to our knowledge, dor, impartiality, and freedom from political bias has ever been much engaged in party strifes, even

or affiliations -- in short, a man as much born to be before his election. The judges are all apparently

a judge as Mr. Cowen. We write all this from a quite indifferent to politics, and the court has never

sheer sense of duty, and not with the slightest exbeen seriously accused of being influenced by party pectation or hope that our words will have any considerations, except in one instance, and then weight with the real judge-making power, the party most unjustly, and the charge fell still-born. Now wire-pullers and boodle-spenders, who care nothing to attempt to keep or to change the political con

for the good of the State but every thing for the
stitution of the court for avowed party reasons
the bestowal of patronage, or to influence decisions organization of the party, in view of the next time

round and their present local issues.
-- would be a scandalous proceeding, and as short-
sighted as it would be unprincipled. There should
be one branch of the government in which party

The 94th North Carolina Reports is a volume of favor has no voice nor place. The precedent has above twelve hundred pages, of cases all decided been set up of uniting on a single candidate with- at one term - February, 1886. It would be hard out regard to his politics. That precedent should indeed if some good vacation reading could not be be followed now.

But the newspapers say there found in it, and we have been able to cull two are just as good men and lawyers on one side as on

choice extracts for our readers. One might be enthe other, and there is no reason why they should titled "the infallibility of judges" — truly they be pitted against one another. There is one reason ought to be infallible when they not only declare at least why there should be but one candidate.

but make the law - and it was written on a motion The popular election of judges is more or less un- for a resettlement of a case on appeal, which had popular, but if our courts can be chosen by such

been settled without notice, upon an alleged agreeagreement as was shown in the cases of Judges ment of counsel. Counsel denied such agreement, Rapallo and Andrews, all the arguments against and “insisted that the judge must have acted unthe system lose their force. We believe in the pol- der a misapprehension of facts, and that the case icy of having the judges directly responsible to the so settled should be quashed, as having been setpeople and not to a patron, but we would gladly tled improvidently or by inadvertence." The court have them free from any suspicion of indebtedness above said that the record imported verity "until in to party, as well. Therefore we should deprecate some proper way it should be arrested or modified any avowed effort to supplant an outgoing Democrat by the judge who made it," and then proceeded as by a Republican. Again, such a policy would be follows: "This proposition seems to us very singushortsighted. If it prevails now it will be apt to lar, and without precedent. We cannot for a prevail in the future, and as the Troy Times sug

moment think of allowing it to prevail. To do so, gests, when Judge Danforth goes out in 1890 there would be subversive of the integrity and dignity of will be a struggle over his place, and so on to the judicial proceedings, and justly offensive to the juend of time. There are just as good and capable dicial office. The law reposes in the judge imRepublicans as Democrats, it is true, but the out- plicit confidence as to his ability, integrity, care and going judge is a Democrat, and if the Republicans circumspection in his official conduct. It confides now try to substitute a Republican they must not to, and charges him with the conduct of judicial complain if in 1890 the Democrats try to substitute proceedings, as well as the decision of causes and a Democrat. In this way the court may eventually motions cognizable before him. What he says and become all of one party, which would be bad for

does in the course of his office must be accepted as the look of the thing, if for nothing else. The

true. There arises a strong presumption in favor initiative in this matter now lies with the Demo-1 of the integrity and correctness of his official state

VOL. 34 - No. 13.

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