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Entered, according to act of Congress, in the year eighteen hundred and seventy-five,
BY WEED, PARSONS AND COMPANY,
APR 20 1968
THE ALBANY LAW JOURNAL:
A WEEKLY RECORD OF THE LAW AND THE LAWYERS.
Albany Law Journal.
issuing, and which, their publishers think, no law library should be without, these must be the aims of
the journal of the lawyer — these are and have been ALBANY, JANUARY 2, 1875.
the aims of the LAW JOURNAL. Whether it has suc
ceeded let its ten volumes speak, for “it is better CURRENT TOPICS.
that every kind of work honestly undertaken and The Law JOURNAL commences its sixth year with discharged, should speak for itself than be spoken new type, and a change in its “make up." The
for." former certainly adds to the beauty and legibility of its pages, and the latter, if not more convenient, is The history of legal journalism, in this country, more in harmony with the prevailing taste in journ- might very well lead one to suppose that the profesalism. Other and more material improvements will sion was quite indifferent to publications in its be made as occasion serves, and no effort will be interest — for while many have, from time to time, spared to make the JOURNAL for 1875, not only better sprung into existence, most of them have been shortthan it has ever been before, but better than any lived. But this has been due rather to defects in similar professional journal ever published. There the periodicals themselves, than to any fault of the is, unquestionably, a demand for a well conducted, profession. Many of them have been only reports thoughtful and able legal journal. It is more of a ne- of decisions under another name, and very poor recessity to-day than it has ever been before. With the ports at that; others have been conducted by incomdevelopment of the means for the speedy diffusion petent persons, and again others, and perhaps most of news the demand for fresh intelligence has in- of them, owe their failure to lack of enterprise and creased
- the newspaper has grown with the tele- energy on the part of their publishers, and disingraph and the railroad — and not only is this true as clination to expend upon them money. It is just as to the general current news of the day, but also, as true in legal journalism as in the general newspaper to the news on special subjects. And since the field that capital must be sunk at the start. Of the general newspaper cannot, for obvious reasons, or at forty odd legal periodicals that have been underleast does not, give information on special subjects taken in this country, only about a dozen remain, or concerning special departments, with sufficient and a good part of those contain very little, if any, fullness and accuracy, the journal of the specialist reading matter beyond reports of cases. Of the becomes a necessity. These special periodicals have score or so of those that were in existence when the increased wonderfully both in number and in excel- LAW JOURNAL was commenced or that have been lence within the last few years, and it may now be since undertaken, several have dropped by the way said that almost every branch of human effort has its some of them that we should gladly have seen organ. The legal profession, like all the rest flourish to a green old age. Among these was the more than most of the rest -- needs a publication United States Jurist published by the Morrisons, at devoted to subjects that interest it, and have to do | Washington and edited with ability by Mr. James with its daily business. To give to the lawyer early Schouler, a very thorough legal scholar and a clever and accurate information of important decisions, to writer. It deserved to succeed, as did also the discuss questions of law reform, to advocate what- Bench and Bar, published by Callaghan & Cockroft, ever is for the interests of the profession, to culti- and afterward by Callaghan & Co., at Chicago, and vate the best professional ethics, to increase the edited formerly by Mr. James L. High and latterly esprit du corps, to speak honestly and intelligently of by Mr. J. A. L. Whittier. The New York Daily the numerous and bulky volumes that are constantly | Transcript went out with the Ring and its Baltimore
VOL. 11.-- No. 1
namesake also went out, though why, we know not. eral than any of his distinguished predecessors." But after all, the new-comers are, in some respects, As legal adviser in the Reconstruction Cases, in the better than those that suspended, which may serve Virginius Case, and, recently, in regard to the Pacito show that legal journalism is progressive. We fic Mail subsidy, and as counsel for the government should be glad, had we space, on this occasion and in the Credit Mobilier case, his qualifications have in this connection, to speak of our contemporaries been publicly tested, and it is only truth to say that - the new as well as the old, point out their merits in each he has proved himself a failure. The (most of them have merits, but we regret to say Department of Justice is one of the most imsome of them have not), and to hint at their faults. portant in the government. To direct and conBut there is, perhaps, no need. We are glad that so trol the legal advisers of the various departmany of them are successful; there is room for all, ments, and the numerous legal officers of the United and if any of them hereafter fail we may be sure it | States scattered over a vast extent of territory; to will be the fault of its managers and not that of the manage the suits brought by the government, to adprofession.
vise it as to all the legal phases of its intercourse
with other nations, and to have the general superAmong the recent utterances of well-known law
vision of the enforcement of Federal statutes yers we notice the letter of Mr. O'Conor to the New
these are duties which require for their proper disYork Tribune in which the validity of the constitu- charge knowledge and judgment and discretion and tional amendments is cogently defended. Mr.
character and reputation and integrity - qualities O'Conor also furnishes us with some of his own
not conspicuous in the present incumbent of that views on the adoption of constitutions and constitu- office, but which we hope soon to find happily comtional amendments in general. He favors the funda- bined in Mr. Williams' successor. mental doctrine that the voice of the people is superior to all technicalities, and even superior to constitutions themselves. Another letter from the
During the last session of the legislature, a bill same source is published in regard to the right of was passed providing that the presiding justice of the citizen to shoot and kill burglars. Mr. O'Conor the Supreme Court in the First Department, and the takes the ground that men must be guided by their Chief Judges of the Common Pleas, the Superior good judgment in the emergency created by burglars Court, and the Marine Court, should “designate entering dwellings. The letter is written rather in
a daily law journal," published in New York, in the character of the citizen than of the lawyer; and which should be published all court calendars and we judge that Mr. O'Conor in his old age is getting all notices and advertisements in legal proceedings. fond of oracular sayings, suited rather for the peo- The Governor did not append his signature to this ple than for the profession. Nevertheless we be- bill until December 17th, some nine months after it lieve with him that, as a whole, common sense is a came to his hands. Directly, the judges named, desgreater factor than law, and that law should con- ignated the Daily Register, a legal sheet published in form to common sense. Only we should be a little New York, and devoted mainly to advertising. careful about accepting our peculiar notions of Thereupon the New York Evening Post, in a sharp right and wrong as the law of the land. The law editorial, denounced the act of Governor Dix as has the advantage in many instances even if it is not one of those unaccountable mistakes which go common sense."
some way to offset an official record of exceptional
excellence," expressed its astonishment that the The attention of the public press has been again Governor, having seen in the late Daily Transcript directed to the Department of Justice and the Attor
“what a means of corruption and what a burden to ney-General, by the charges of Mr. Beck, made in the taxpayers such a journal easily may be made," should House some days since, that the former was “honey- lend his aid to "this similar scheme," declares the combed with fraud," and that the latter was corrupt whole business “to be a job,' and nothing but a and "a more guilty man than Judge Durell him- job,' ”” and calls upon the incoming legislature to self,” and his promise to make good the accusations repeal it. It seems that under the provisions of the
and, so far as we have seen, there is but one opin- | bill, the paper designated would get about $15,000 ion, and that is, that Mr. Beck was not very far per annum for printing the calendars alone to say wrong. - The fact is that it is becoming to be very nothing of the notices and advertisements; but, Govgenerally believed not only that Mr. Williams is ernor Dix, in a letter dated December 5th, and wanting in the qualifications of “intellect, experi- published in the Albany Evening Journal, stated ence and reputation,” as the Bar Association ex- that he would sign the bill, if the proprietors of the pressed it, but also that he is totally lacking in paper designated would enter into a stipulation that judgment and discretion, if not in common honesty. they would print the calendars for $6,000 per year. As the Nation pointed out the other day, Mr. Wil- We presume the stipulation has been made, but we liams has been "a more conspicuous Attorney-Gen- do not believe that it will have quite the force and effect that seems to be expected of it. There must rather than on precedents, but Branwell, I be more merit in this measure than is apparent upon posed of the case of Hicks v. The Newport, its face, and at this distance; for the governor as- R. Co., stated in a note in 4 B. & S. 403, wl serts that “the judges are unanimous, and the bar cited as an authority for the other side in all nearly so, in favor of the bill;" and the Daily Regis. | cases, by saying that while Lord Campbell's ter says that it is "confident that the mere publica- | in that case was correct it did not apply - th tion of the names of the eminent lawyers who are on action in that case being under statute to re record in favor of the measure, would carry convic- | the pecuniary loss, suffered by the family of th tion to all.” We ought, perhaps, to add, in order ceased, any pecuniary gain which had happen that our readers may have the gist of the arguments the family by the death, was properly dedi on both sides, that the Daily Register pronounces the from the damages, but that where the action Evening Post's article to be “as discreditable an ex- by the injured party himself no such rule app hibition of interested meanness as we have ever Precisely the same distinction was made and seen."
same principle held in Harding v. Toun or 7
shend, 43 Vt. 536; 5 Am. Rep. 304, in a judgn We are quite at a loss to understand the secrecy which presents a very learned review of the aut! manifested about the amendments to the Supreme ties. So in Werer v. Morris & Essex Railway Court rules. Over a month has elapsed since the 35 N. J. 409; 10 Am. Rep. 253, the same doct meeting of the judges, and yet no record of their was held as to fire insurance, where the one throu action has been filed with the Secretary of State, nor whose negligence buildings were fired, attempted have their proceedings been made known to the pub- have the insurance money applied in reduction lic. There would seem to be nothing in such a
damages. The explanation, given by the Court matter, that should require secrecy. On the contrary, Exchequer to Micks v. The Newport, etc., Railu we should suppose that there should be the utmost
Co., would make that case an authority in an acti publicity, that lawyers might familiarize themselves
under the New York Statute and similar statntes with the changes.
other States, but in Althorf v. Wolfe, 2 Hilton, 34
it was held that the insurance money could not The interest manifested in the selection of a suc
taken into account, and the case was aflirmed ( cessor to Judge Miller in the Third Department, has
N. Y. 355), but the Court of Appeals expressed i been comparatively slight, except among the score
opinion on this point. or so of aspirants. The opinion seems to be now very generally entertained that Mr. Rufus W. Peck
The Civil Damage Act of 1873, came before th ham will receive the appointment, and we believe
General Term of the Supreme Court for the firs this opinion to be well founded, though, of course,
time, we believe, in Baker v. Pope, 5 N. Y. Sup. 102 guesses on such a matter may be even more unrelia
and was therein held to be a part of the excise law ble than the predictions of “Old Probabilities."
and binding upon those who take licenses thereThe matter was, however, very likely settled at the
under, and also, so far as it affects the seller of inManhattan reception on Tuesday. The indications toxicating liquors, not in violation of the constituare that Mr. Justice Learned will be designated to
tion as impairing the obligation of a contract. A thie General Term.
similar statute exists in several of the States, and the
decisions made thereunder are gathered in a note to NOTES OF CASES.
the above case. The Supreme Court of Wisconsin In Bradburn v. The Great Western Railway Com- | in State v. Fisher, 33 Wis. 154, and in State v. Ludpany, 31 L. T. R. (N. S.) 464, the Court of Ex- | ington, id. 107, held under a similar statute, precisely chequer added the weight of its authority to the the same doctrine as the above case, and in lightfew recent decisions holding, that in an action for man v. Devere, id. 570, the same court held that a injuries the wrong-doer is not entitled to have the wife might recover for any personal injuries suffered damages reduced by the proceeds of a policy of in- by her from the violence of her husband, for nursing surance against such injuries. The action was by a and tending him while ill from injuries received in person against a railway company to recover com- consequence of intoxication, for injuries to her own pensation for bodily injuries sustained through the health by such watching, for the services of others negligence of defendants. The plaintiff held, at the employed to assist in his care, for a physician emtime of the injury, a policy of insurance against ac- ployed to attend him and for the services of men cident, and the defendants claimed that the amount / employed by her, and who were paid by her, in carreceived on the policy should be deducted from the rying on her farm, which the husband had, while damages awarded to the plaintiff. But the court sober, carried on. It was also held, that exemplary held otherwise. Bramwell and Cleasby, BB., deliver-damages were recoverable where the evidence showed ing opinions, and Amphlett, B., concurred. The a state of facts that would warrant it — the jury opinions are brief and argue the question a priori / being the judges of what such facts would be.