GOWNS.

Editor of the Albany Law Journal:

I have wondered that in favor of gowns no one has suggested the simple and obvious argument of fitness. "G. S. P. S." and others obstinately continue to be reminded of monarchical forms, priests, etc., but why does not a soldier's uniform yet more painfully remind them of a military despotism?

There was a time in our history when policemen, firemen, brakemen, coachmen and others could not be induced to wear uniforms. Whenever men of a particular class adopt a distinctive dress, would "G. S. P. S." hold that this was a step backward?

The gown gets its fitness from a suggestion of complete bodily repose, a natural accompaniment of the calmest deliberation.

These reflections are offered merely for the consolation of "G. S. P. S.," for surely the custom does not suffer from any argument advanced in this letter.

R. W. G. WELLING.

RAILROAD PASSES TO MEMBERS OF THE LEGISLATURE.

Editor of the Albany Law Journal:

In many States of the Union, as soon as the senators and representatives to their several legislatures receive their certificates of election, the heads of the numerous and powerful railroad corporations prepare for each and all of them either annual passes or passes which continue during the session of the Legislature.

Now ought such a state of things be allowed to exist? What are such passes issued for? Can it be to secure just and impartial laws?

Suppose any man had a case in court, just about to be tried before a jury of twelve men, and he boldly or otherwise approached these jurors and presented each a dollar without any explanation, would not such a proceeding be a sufficient warrant, in the presiding judge, to set aside a verdict rendered in such a case? Would it not be tacitly buying such jury?

Now do not members of the Legislature, who rarely or never receive passes when they are not members, have all the appearance of being bought or bribed by receiving such favors, for during the session should a piece of legislation come up affecting such or such a railroad, would it not be reasonably expected that such members would, from the natural infirmity of human nature, lean toward favoring such and such corporation?

It is often asked: Does anybody expect that a man will forfeit his reputation for a pass on a railroad? But why then give him a pass? and why receive it? It is given for some object. Now what is that object? Is it a mere compliment to the man who is lucky enough to be elected? What does the president of the "Universal Central Railroad" care about the election of Jefferson Batkins, of Cranberry Centre?

The plain fact is that they want his vote should any measure come up in the interest of the railroad, and that is all there is about it.

In Massachusetts in vain have been the repeated attempts to interpose a legislative interdict against such passes. When it is introduced it is either laid on the table, indefinitely postponed or referred to the next General Court, but the members want their present passes until they get home.

As an illustration of a fact we will refer to a caucus In a town in Massachusetts. Some years ago a gentleman arose, and with a sanctimonious face moved that our representative in the Legislature be instructed not to accept a pass from a railroad, and accompanying his motion with a fair argument against the propriety of

receiving it. But how did this man turn out in his future experience in this matter? Why two years afterward he was accidentally elected to the General Court, and he received a pass, and used it through two sessions, and when asked why he did so, his reply was, "It is the custom." E. S. WHITTEMORE.

SANDWICH, Mass., 1884.

FARNSWORTH V. WOOD.

Editor of the Albany Law Journal:

Your contributor "J. S. W.," in the number of your journal of this date, in his article upon "Receivers of Corporations; Right to Sue Stockholders for Unpaid Subscriptions," refers to the case of Farnsworth v. Wood, 91 N. Y. 313, as seemingly overruling the cases which have held that the right to collect unpaid subscriptions of stockholders to corporations passes to a receiver thereof. In this he is in error. The cases are not antagonistic.

In Farnsworth v. Wood the action was brought against the stockholders because of a violation of section 10 of the General Manufacturing Act by reason of the capital stock not having been duly paid in in cash, and a certificate of such payment duly made and recorded, as provided for in that and the following section.

By section 24 of such act creditors could not commence an action to enforce the personal liability provided for in section 10, among others, unless the debt were of the kind mentioned in section 24, nor unless a suit had been commenced against the company within a year, etc.

The action of Farnsworth v. Wood was not brought to collect unpaid subscriptions, but on the contrary, was an action of a totally different nature, brought against the stockholders, because the provisions of the tenth section had not been complied with; and the receiver brought the action as representing the creditors of the company, not for the purpose of recovering unpaid subscriptions of stockholders to the capital stock, but to recover from stockholders the amount of the debts due the several creditors of the corporations who had complied with the conditions of section 24, up to an amount equal to the amount of the capital stock held by the stockholders respectively. A careful perusal of the Farnsworth case will show that there is no overruling of past cases as to actions to recover unpaid subscriptions by a receiver, nor is there any inconsist ency in the Farnsworth case with the cases upon that subject. Yours,

ALBANY, May 10, 1884,

Editor of the Albany Law Journal:

A. B.

Your correspondent "J. S. W." has discovered a dilemma in which the Court of Appeals has placed him by its decision of Farnsworth v. Wood, 91 N. Y. 313, and "sincerely hopes all will concur in overruling Farnsworth v. Wood as soon as opportunity is offered."

We submit that the dilemma is of his own, and not of the court's making. Farnsworth v. Wood does not decide that a receiver of a manufacturing corporation cannot maintain an action to recover from stockholders their unpaid subscriptions.

No such question was in the case. It simply decides that the statutory liability of stockholders can be enforced by those creditors only who have claims which the statute makes enforceable against the stockholders, and that the right to enforce them never was the prop

ETERNAL VIGILANCE.

Editor of the Albany Law Journal:

To my statement in the JOURNAL of April 19 prox., that Victor Hugo is the author of the expression, "Eternal vigilance is the price of liberty, and that the expression may be found in his "Les Miserables," you reply that "the expression is a great deal older than "Les Miserables." In the JOURNAL of May 10 inst. I find that W. F. Warner, of Waverly, Tioga county, N. Y., says that you are right in your conclusion that the author of said expression "is unknown." In his “Les Miserables" Victor Hugo uses said expression without quotation marks, and unless you or Mr. Warner or some other person can tell us what author used the expression prior to the production of "Les Miserables," what right have you to ask the readers of your valuable journal to withhold from that eminent Frenchman the credit of being the author of this justly celebrated expression?

CYRUS A. PEAKE.

Very truly yours, YONKERS, N. Y., May 12, 1884. [We derive our right" from prior use. We knew the expression before "Les Miserables"

was

the editors, on the West Coast Doctrine as to Riparian Rights, the merits of which need no recommendation, the name of John N. Pomeroy carrying with it sufficient indorsement. The index contains double the number of pages of that of the Pacific, which of necessity makes the contents more accessible. It is well printed and bound in half sheep.

PACIFIC REPORTER.

Containing all the decisions of the Supreme Courts of California, Colorado, Kansas, Oregon, Nevada, Arizona, Idaho, Montana, Washington, Wyoming, Utah and New Mexico, December 27, 1883-January 31, 1884, Vol. 1, Saint Paul, 1884; West Publishing Co. Pp. 946.

In this volume covering the short period of one month, there are reported 513 cases, of which 242 are of the Kansas Supreme Court, which State is not included in the West Coast Reporter. The price of subscription ($5) places the reports of 12 States for a year at the command of every lawyer in the country. Even the "briefless barrister" would hardly miss, and he is a niggard indeed who finds fault with it. With others we cannot see how the thing is done; but of that consideration the profession will think little and care less. It is printed similarly to the Northwestern, and is well bound, but heaven's first law was forgotten when the lower title was arranged.

COURT OF APPEALS DECISIONS.

day, May 9, 1884:

Editor of the Albany Law Journal:

In Curran's speech upon "The right of election of lord mayor of Dublin," delivered before the lord lieutenant and privy council of Ireland in 1790 (Irish Eloquence, 192), occurs this: "It is a common fate of the indolent to see their rights become a prey to the active. The condition upon which God had given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt." I have never discovered "Eternal vigilance is the price of Liberty" in any thing earlier. Has any of your readers?

The speech is not in the American edition of Curran's speeches.

Yours,

ALBANY, N. Y., May 12, 1884.

N. C. MOAK.

NEW BOOKS AND NEW EDITIONS.

WEST COAST REPORTER.

Issued in weekly parts, containing all the decisions as fast as filed, of the following courts: United States Circuit and District Courts of California, Colorado, Nevada and Oregon, and the Supreme Courts of Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming; also Legal Essays and Editorial Notes. Editors, John Norton Pomeroy, LL. D., Carter P. Pomeroy. Vol. 1, January-February, 1884. A. L. Bancroft, San Francisco, 1884. Pp. 949.

This volume contains 272 cases, one more than the Pacific, excluding Kansas. But of the 272 cases, 29 are United States Circuit and District, making the volume to that extent a Federal Reporter. It also contains a series of articles by Professor Pomeroy, one of

Judgment affirmed with costs-Johnson v. Meeker: Ellis v. Phoenix National Bank; Burnap v. National Bank of Potsdam; Powers v. Benedict.-Orders of General and Special Terms reversed and motion vacating order of arrest granted, with cost of appeals to General Term and to this court and $10 costs of the motion-Morris v. Talcott.-Judgment reversed, new trial granted, costs to abide the event-Cornell v. Cornell.-Judgment of General Term and Oyer and Terminer reversed and new trial grauted-People v. Casey. Judgment affirmed without costs in this court-Haight v. Brisbin. Ordered: That this court take a recess from this date to Monday, the second day of June, 1884, then to meet at the Town Hall in the village of Saratoga Springs and proceed with the call of the present calendar.

NOTES.

APHYSICIAN testifying in Ex parte Gitstrap, 14

Tex Ct. App. 240, said that by "sedentary life" he understood "one free and retired from excitement; one in the country on a sheep or stock ranch, where he could hunt and fish and have proper diet and medicine." This seems a rather novel definition, but some kinds of fishing are sedentary.-The conflict between the opponents and advocates of codification continues to wage in New York with unflagging zeal. The latest contribution to the code controversy is the "reply of Messrs. Field, Swayne, Arnoux, Yeaman, Opdyke, Milburn, Frankenheimer and Foster to the briefs which Messrs. Carter, Matthews, Hornblower, Adams and Dwight have submitted to the Judiciary Committee of the two Houses in opposition to the Civil Code." The reply contains "specific answers to specific objections" in detail of the opponents of the code. The most interesting part of the pamphlet is the article on "Codification," taken from the ALBANY LAW JOURNAL and that entitled "Instances in which the Civil Code has anticipated decisions of the Court of Appeals."-Cincinnati Law Bulletin.

The Albany Law Journal.

OUR

ALBANY, MAY 24, 1884.

CURRENT TOPICS.

UR Legislature have at last very cleverly got rid of the Code for the present by putting it in commission, which contrary to naval usage, means laying it up for repairs. They have with almost absolute unanimity passed a bill for the appointment of a commission to revise it, and report as to what repairs it needs. The Code as at present proposed is the work of a commission to revise the laws, and if commissions to revise commissions are to be the order of things there will be no end of delay. To make sure of faithful and efficient service by the commission, the commissioners are to have no pay. A senator had the impudence to inform us that the bill could not have been "got through" it it had not been agreed that it was to cost nothing. Why should lawyers be called on to work for the State for nothing? Legislators scruple not to squander millions on the huge, ugly, dark, gloomy, inconvenient and inadequate new capitol, but when it comes to revising the laws of the people, this must not cost any thing the poor people will not submit to such extravagance. We can tell that senator that he and others of his way of thinking will be "got through" with, without the appointment of revising commissions, if they do not mend their ways. But now that we have, or are to have a commission, let us hope some lawyers will be found rich enough and good-natured enough and 'public spirited enough to give the Code a thorough examination, and patiently to hear all who wish to attack or defend it, and to bear up as well as they may under the same old threadbare arguments, from Mr. Carter with his marine adjuster, and Professor Dwight with his nautilus, on the one hand, to Mr. Field with his calm persistency a generation old, and Mr. Frankenheimer with his pitiless exposures of the uncertainty of our laws on the other. Then perhaps we may have a report next winter, and then more pamphlets from the same old opposers, who are as omnipresent as "old truepenny " under the stage, and are the cause of just about as much "swearing." Meantime, we advise the pamphleteers, and the commissioners that are to be, and the legislators who are and who are not to be, to read, ponder, and digest the seventeenth section of the first article of the Constitution of this State, which commands that the whole body of the law of this State shall be reduced into a written and systematic code.

Speaking of pamphlets on the Code reminds us that there is one in preparation which will make Mr. Carter sorry, and his pamphlet appear a sorry performance.

VOL. 29-No. 21.

The outcome of the assault on Judge Reid in Kentucky has been most terribly tragical. The case may be stated thus: "A ruffian we blush to say, a lawyer-publicly assaults and beats a judge on account of a decision against him; a highstrung wife nags the judge to sally out and kill his assailant, and two-thirds of the community, barbarous as Fejee islanders, loudly echo the demand; the victim, being a gentleman, a law-abiding citizen and a christian, for a while bravely bears up against the clamor, but finally stunned and stung into madness is driven to take his own life. This is better than to murder his assailant, but there is one thing that would have been better yet, namely, to put about a thousand miles between himself and such a vixen of a wife and such a horde of barbarian and assassin neigbors, and go on living. If a man is in the midst of fire, and can get out, but will not, he must be a fool indeed. The blue-grass chivalry of Kentucky have dogged to death a man of whom they were not worthy, and no doubt they feel proud of it. There will be more swearing and whisky drinking and cleaning up of shot-guns than ever, and any number of high-toned generals, and colonels and majors will be anxious to take to wife such a spartan widow. Possibly they will elect the judge-beater in place of his victim. this tragedy as the most disgraceful stigma that has been fixed on any portion

gard

of

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our country in many a day, and we are glad to see that the Kentucky Law Journal and Reporter had the courage and manliness to write as follows on this subject, even before the sad last act in the drama: "But there seems the oddest disposition in this community to leave the settlement of such affairs to the prowess of the individuals concerned. Any appeal to the law for reparation is considered as a confession of weakness. It is true that the indignity to which Judge Reid has been subjected cannot be overestimated, but for this very reason the magnitude of the offense demands reparation from the law, yet one will hear it said the outrage is too great a matter to be left to the law. The sufferer must right himself. The law is not strong enough. His own greater powers are called for. Could there be greater presumption, or a sentiment more characteristic of a barbarous people where law is weak and individuals strong? The law should be stronger than any ten, than any one hundred men. But it is said this strength of the law is mere theory. We know in fact that law is weak, and the chances of escape for the culprit are many, and punishment, even if administered, is inadequate. That is indeed true, but the only mode of strengthening the law is that all should look to it, and rely on it great and obscure, strong and weak alike. When it shall become the last and only refuge of all then it will develop the strength it ought to possess. And as it becomes our only protection so it will become an adequate and sufficient one. This is the normal, healthy tendency of all civilized communities where the law is professedly supreme. If public sentiment demands any

thing else of a man than that he should look to the law to redress his wrongs it is lawless and wrong. It rises above the law, and it is time some one should come forward to oppose it, and restore it to that subjection to the law which is its proper place. To whom can we look for such resistance so rightfully as to a judge? There is no lack of physical courage in this community, but there is a most shocking want of moral courage on this particular question. All men condemn a resort to brute force, yet none dare restrain himself from resorting to it. All basely yield to a wrong-headed public sentiment instead of rising above, and bravely trying to guide it. Judge Reid has placed himself on this high plane, and we hope to see him receive that support at the hands of the community which the idea he represents, and his own past ability and worth, merit. Life is full of opportunities for the exhibition of courage, where it will be both a noble and useful quality, displayed in the performance of duty in calmly facing the inevitable. Let it be reserved for such an occasion."

On the other hand, South Carolina is losing its chivalric spirit. The officers of justice persisted in trying to arrest that gallant murderer, Cash, so long in hiding, and in spite of the protection of his father, the old murderer and outlaw, because the young man showed fight in a lion-hearted manner, they actually peppered him full of bullets, and deprived a jury of admiring fellow-citizens of the blessed privilege of acquitting him on the ground of insanity. There is only one thing more for them to do to render them wholly and eternally infamous, and that is, to arrest, and convict and hang the saintly old father. But seriously, we are glad to see South Carolina trying to abolish the Cash system, and we recommend Kentucky to imitate the example.

"Eternal Vigilance" has at last had its reward. Mr. Evariste Moïse, of New Orleans, informs us that "Eternal vigilance is the price of liberty” is from Tom Paine's "Common Sense." Mr. Ben

ton C. Reede, of Wellsville, N. Y., also writes us: "A similar discussion in one of the public journals some years ago resulted in the conclusion that Thomas Paine first used the expression. Whether it appears in his writings of the time of the American Revolution, or in those of a later date during the French Revolution I cannot say, not having Yet the expression

time to examine. * ** *
may have been older than Paine."

Our readers will be greatly interested by a perusal of Mr. Wilder's admirable paper on Trial of Insanity by Jury, ante, 386. The oppressions of the Lunacy Laws have been the subject of recent comment in England in the cases of Mrs. Wilder and Mrs. Scott. The Solicitor's Journal has a powerful appeal, in a recent issue, for awarding a jury trial in all cases of this kind, and comments in severe

terms on the injustice of putting the imprisonment of the citizen within the discretion or caprice of two physicians. Quoting the language of the Transactions of the Social Science Association, of 1878, it says: "What that fashion is has been publicly described already, and as the accuracy of the description has never been impugned, even by the most thoroughgoing advocates of the present system, we venture to transcribe it here: Two medical men, neither of whom need be, or ordinarily is, possessed of any special acquaintance with the subject of mental phenomena, have separate interviews with the victim, whom they may, and often do, then meet for the first time in their lives; they come, or may come, to this interview carefully primed as to the 'delusions' to which the 'patient' is subject; and their instructor must be a bungler indeed, or the case a singularly hopeless one, if sufficient cannot be elicited from some peculiarity of temper or manner to justify, or seem to justify the foregone conclusion desired. In accordance with this conclusion a certificate is then signed, which suffices to warrant the forcible arrest of the victim, and his removal to a house of detention (called a private asylum), from which his chances of liberation are in inverse proportion to the truth of the accusation — for such it is in effect - against him.' * The remedy for all this is simple, practical and efficient. The most atrocious criminal is not deprived permanently of his liberty until his case has been investigated before, and decided upon by a jury of his countrymen, and if no one would think of inflicting permanent imprisonment without public trial as the result of crime, however flagrant and notorious, with what consistency can we apply to misfortune a rule which we consider too harsh for guilt?" It is a favorite theory of some of the most celebrated alienists that a large majority of the hu-say three of every four-are more or less insane. This being so, one and a half, or so, of every two physicians must be more or less insane, and it is rather cruel to invest them with the power of incarcerating their fellow-madmen.

man race

-

NOTES OF CASES.

N Hegerich v. Keddie, 32 Hun, 141, it was held IN that under the statute giving to the personal representatives of a deceased person a right of action for the negligent killing of such person, an action therefor may be maintained against the personal representatives of the wrong-doer. The court said: "The proposition on the part of the defendant is that the action dies with the person causing the injuries. That this rule of law exists as to all other actions sounding in tort there can be no doubt. Sce 3 R. S. (7th ed.), pp. 2394, 2395. With regard however to the statutes under which this action was brought a different rule prevails. The Court of Appeals, in the case of Whitford v. Panama Railroad Co., 23 N. Y. 465, 480, declared in reference to them that the action therein pro

vided appeals to no common-law right, and rests upon no common-law principle, and that it is created by and derives all its vitality from the statute. This has been substantially reasserted in the case of McDonald v. Mallory, 77 N. Y. 546, 550; S. C., 33 Am. Rep. 664. These authorities seem to establish the proposition that the right of action under the statutes mentioned is to be considered without reference to the rules of the common law in relation to actions of tort for injuries to the person. But it is not necessary to pursue this inquiry further, for the reason that in the case of Yertore v. Wiswall, 16 How. Pr. 8, it was decided by the General Term that such an action survived, and could be maintained against the representative of the wrong-doer, because it was for the enforcement of a statutory right of property. The point seems to have been fully considered in that case, and to have been determined in favor of the right of action, as already stated. This case has not been overruled by the Court of Appeals in any reported adjudication, and is regarded as controlling of the question, and to be followed until it is reversed by the court of last resort." Daniels, J., dissented.

In Dinsmore v. Neresheimer, 32 Hun, 204, the defendant, a resident of this State, commenced an action against an express company in the Supreme Court of the District of Columbia, to recover the value of goods delivered for carriage upon a receipt limiting the carrier's liability to a specified sum. The action was brought there to avoid the effect of the decisions of the courts of this State holding such provisions valid, and to get the advantage of the decisions of the District to the contrary. Held, that the prosecution of the action should be enjoined. The court said: "The defendants by informing the company of the value of their packages, and paying a corresponding increase for the risk of their carriage delivering them, might have secured a complete right of indemnity against the company for their loss. But they omitted to do that, and delivered one of the packages without any valuation whatever, and the other at the low valuation of $200. And to allow them to avoid the restraint of the contracts upon this subject, and hold the defendant liable for the full value of the articles, in plain violation of their language, would be to perpetrate a successful fraud upon the company, as the facts have been made to appear, and it was to prevent the success of this attempt that the injunction in this case was issued and continued by the court. In support of the appeal it has been urged that this injunction was improper, and that upon the facts as they have been disclosed the law does not sanction the issuing of an injunction by the courts of one State to restrain the prosecution of actions in another State, or in the District of Columbia. But it is the province of a court of equity to prevent one party from taking an unconscionable advantage of another, and when that may be attempted, to interpose and re

strain the success of the act by means of an injunction, and when that advantage is sought through the instrumentality of a legal action, to restrain its prosecution, and subordinate the controversy to the control and determination of equitable principles. This view was taken and enforced by a comprehensive and able opinion of Lawrence, J., in Claffin v. Hamlin, 63 How. 284; and he also considered it in Reinach v. Meyer, 55 id. 283. In the Erie Railroad Company v. Ramsey, 45 N. Y. 637, the same subject was before the Court of Appeals for its consideration, and it was determined that in a proper case, where equity required it should be done, an injunction might regularly issue from one court to restrain proceedings carried on in another. It is true the precise point presented by this appeal was not then directly before the court, but the principle on which its decision proceeded included a controversy of the nature of the present one. The principle has been regarded and stated as elementary in its character that a court of equity should interfere, when sufficient equitable reasons are presented for doing so, to restrain the prosecution of an unconscionable action, although it may be pending in the courts of another State or country. Story's Eq. Jur., § 899. This may be done without interfering with the proceedings themselves by controlling the conduct of the parties when they are subject to the jurisdiction of the court so interposing for the prevention of injustice." Citing Carron Iron Co. v. Maclaren, 35 E. S. & Eq. 37; Dehon v. Foster, 4 Allen, 545; Bank of Bellows Falls v. Rutland, etc., R. Co., 28 Vt. 470.

In Bransom's Adm'r v. Labrot, Kentucky Court of Appeals, March 13, 1884, appellee owning an unfenced lot opening on a public street, on which lot children had been accustomed for years to play, piled up thereon a number of heavy timbers so carelessly that one of them fell on appellant's child and killed him instantly. Held, appellees are liable for willful negligence under the statute. The court said: "It is held that a party is guilty of negligence in leaving any thing in a place where he knows it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third person.

1 Add. Torts, 511. And said a learned judge: 'It appears to us that a man who leaves in a public place along which persons, and amongst them children, have to pass, a dangerous machine, which may be fatal to any one who touches it, without any precaution against mischief, is not only guilty of negligence, but of negligence of a very reprehensible character, and not the less so because the imprudent and unauthorized act of another may be necessary to realize the mischief to which the unlawful act or negligence of the defendant has given occasion.' 39 Q. B. Div. 339. Counsel for appellees refers us to the following rule, laid down in the case of Hargraves v. Deacon, 25 Mich. 1: The owner of private grounds is under no obligation to keep them in a safe condition for the