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State v. Berning, 74 Mo. 88, the executor pledged cer- party who sues for the consequential injury. And
MASTER AND SERVANT-RIGHT OF DISCHARGED EMsions were never carried into any subsequent settle
PLOYEE TO SUE FOR WAGES.-A railroad employee ment. To hold these second sureties liable therefor
upon being discharged, from service, is entitled to imunder the circumstances is to wholly disregard the mediate payment of the wages due, and may mainrule that sureties are not liable for a past default.
tain an action for the recovery of the same; the eviPrima facie the allowances were correct, and the sur
dence failing to show a general custom among raileties had a right to assume that they were correct. If roads to defer payment, or notice to the plaintiff of a it should be found that these commissions set apart in regulation or usage of his employer to do so. The the settlements before the execution of the second question before us is whether, upon plaintiff being disbond are excessive, still these sureties should not be charged from the defentant's service, on the 31st day held liable therefor. Mo. Sup. Ct., June 21, 1886. State of July, after five days' service, a right of action at V. Jones. Opinion by Black, J.
once arose for the recovery of his wages, or whether, MARRIAGE-HUSBAND'S ACTION FOR INJURIES TO
by force of an alleged usage, or from the inconven
ience to which the obligation of immediate payment WIFE--LOSS OF SERVICE.--Where a married woman is personally injured by a common carrier to such an ex
would subject the fendant, the right of action was tent as to disable and prevent her from the discharge deferred, so as to enable the defendant to make payof her ordinary duties, her husband can maintain an
ment in the manner shown in the latter part of the action predicated solely ou the loss of her services,
twelfth finding of the court. The obligation to make even though she alone made the contract of common
payment arose at once upon the termination of the carriage, without the consent or joinder of her husband.
contract of service, and the right of action became I do not find any case which goes the leugth of holding Rep. 943) unless the case is to be deemed to be excep
perfect (Ganser v. Firemen's Fund Ins. Co., 25 N. W. that a husband, in such circumstances, cannot maintain a separate action in his own name for the loss of tional, upon the grounds above referred to.
The the services of his wife, and for any expense or loss
usage of the defendant as to the manner of paying consequent upon the injury thus received by the wife. employees not on the monthly pay-roll is not found to The rule is the other way. This position is abundantly less this was done it would not be, by implication, a
have been brought to the notice of the plaintiff. Unsustained by the authorities. 2 Rorer R. 1093-1095; Fuller v. Railroad Co., 21 Conn. 557; McKinney v.
part of the contract, nor would it affect the plaintiff'; Stage Co., 4 Iowa, 420; Cregin v. Railroad Co., 75 N.Y. and he would be entitled to payment at once, upon 192; McDonald v. Railroad Co., 26 Iowa, 124; Hop- the termination of the service by the discharge of the kins v. Railroad Co., 36 N. II. 9; 2 Thomp. Neg. 1240,
servant. No regulation or usage of the employer of $ 15; Filer v. Railroad Co., 49 N. Y. 47; Cooley Torts,
which the servant is not chargeable with notice could 226, 227, and cases cited. And in such cases it matters
affect the legal obligations arising from the contract. not that the injury arose as an incident or conse
Collins v. New England Iron Co., 115 Mass. 23; Steve
ens v. Reeves, 9 Pick. 198. The fact that the same us. quence of a breach of contract made with the wife when the injury extends further, and invades rights does not show the existence of a custom with regard
age was observed by four other railroad corporations which are personal to the husband, depriving him of her services, and compelling him to the expenditure
to which the contract in question is to be deemed to of money on account of her injuries. The gravamen
have been made. Pevey v. Schulenburg & Backler
Lumber Co., 33 Min n. 45; Januey v. Boyd, 30 id. 319; of such an action by the husband being a breach of
Taylor v. Mueller, id. 343. Minn. Sup. Ct., July 13, duty by the common carrier, privity of coatract is not
1886. essential. Any one sustaining damage by reason of
Thompson v. Minneapolis & St. L. Ry. Co.
Opinion by Dickinson, J.
Reports PB Eastsa: Auselly: Waterhouse: Ifwa, Cod: Tue September number of the American Law Rec
Rep. 469; Bliss Code Co., ord , a 117 Mass. 511. The action is bottomed on a violation great advocate and admirable man, accompanied by of a public duty-a duty which the law imposes inde- an excellent portrait. We make some extracts: pendent of contract. Stanley v. Bircher, 78 Mo. 245. “ IIenry Stanbery was born in New York city, and It is a principle of the common law that where a per- came to Zanesville, Ohio, in 1814. He graduated at son sustains loss or damage by the wrong of another, Washington College, Pennsylvania; studied law in the be may have an action on the case to be remunerated office of Goddard & Granger; was admitted to the bar in damages. 1 Com. Dig. 168, tit. “Action on the at Gallipolis, in 1824, and the same year commenced Case, A.” And it is also a general principle that an practice with Thomas Ewing, at Lancaster, Ohio. action lies for an injury done to one who stands in “He was the first attorney-general of the State, hav. such relation to the party injured that the injury of ing filled the office soon after its creation, and he was the latter causes Joss of service or expeuse, etc., to the a member of the Constitutional Convention of 1850.
In 1853 he removed to Cincinnati, where he kept his one can well imagine the strain and test of counsels' law office up to the date of his death, in 1881, and bad knowledge and readiness, upon being called to conhis residence at the Cedars,' a lovely spot on the duct such legal contests with no brief and only five summit of one of the Kentucky hills, overlooking the minutes' consultation or preparation. If this was exriver and the suburbs of our city. In 1866 he was ap
cellent mental training, and thoroughly conducive to pointed by President Johnson attorney-general of self-confidence, readiness, and familiarity with the the United States, and filled the positiou with rare axioms of law and equity, it had a bad effect physability and distinction until 1868, when he resigned in ically, as the hot biscuit, pie and coru cakes of order to defeud Johnson in the celebrated impeach- the various inns, with the limited time of digestion, meut of the president for 'high crimes and misde- laid the ground-work of a dyspepsia which troubled meanors.' He was also nominated for associate jus: Mr. Staubery for the balance of his days. His exact tice of the United States Supreme Court, but was not knowledge and reliance upon principles always preconfirmed by the Senate, on the alleged ground that
vented him from quoting many cases in support of his the number of judges composing that tribunal were to position; it was very rarely that he appealed to over be permanently reduced. This is the only political three or four books. This is strikingly illustrated by episode which interrupted the course of the distin- the series of cases argued by Mr. Stanbery, while atguished advocate in a brilliant career which lasted torney-general of the United States, in the Supreme over half a century, and this occurred at a time when Court at Washington, and reported in volumes 4,5 the great battle was ragiug, upon which hung the
and 6 of Wallace. A reference to these reports answer to the momentous question whether the Union will show how few were the precedents relied on, should be broken or preserved. Mr. Stanbery had no
and yet how clear and convincing are the argudoubt as to the result of the contest, as those will bear ments. witness who heard his vigorous and inspiring address “When the war closed a series of important oases at Pike's Opera House, in the darkest days and most arose, and were presented in the United States Sudoubtful period of the war. When the best and the preme Court, in which tho separate powers and funcbravest were leaving their daily avocations for the tions of the executive and judicial branches of the field of honor, it is not to be wondered that Mr. Stan- government were closely criticised and defined. For bery should find his place in the national council, for instance, in State of Mississippi v. Johnson, an appli. as of old, 'amid the clash of arms, the laws are cation was made for a writ of injunction, to restrain silent.'
the president of the United States from executing the “The defense of Johnson by Mr. Stanbery and Mr. provisions of certain acts of Congress, which provided Groesbeck, algo of the counsel, in the impeachment
that this State sbould form a part of a military disproceedings, was said to be able, thorough and suc- trict, and be placed under the control of a military cessful; but owing to the failing health of Mr. Stan- commander. Mr. Stanbery, as attorney-general, obbery his speech had to be read to the Senate by one of jected to the bill in limine, and the question prehis assistants, and was thus probably deprived of
sented was as to the leave to file the bill for the purmuch of its force and vivacity by this second-hand pose indicated. In the discussion that followed, the delivery. His duties as cabinet minister over, Mr. ministerial and executive duties of the chief magisStanbery returned to the practice of the law at Cincin- trate, as well as the jurisdictional powers of the Sunati, and remained faithful to the profession he loved, preme Court, were examined and defined. So also in and the duties be so skillfully aud ably fulfilled, until State of Georgia v. Stanton, a bill was filed asking for a the final order of release came in his seventy-ninth writ to enjoin the secretary of War and Generals year."
Grant and Pope from carrying out and putting into “His ready knowledge of the fundamental princi- force the provisions of similar acts of Congress. Mr. ples of jurisprudence, and of the leading cases upon Stanbery, in his argument against the issue of the vital points of the common law, arose in part from the writ, claimed that this attempt to fetter the execuconditions and circumstances surrounding his early
tive branches of the government from the perforpractice of the law, as well as from his strong and re- mance of duties devolved upon them by law,was an ato tentive memory and clear insight. Regular as the tempt to imitate the veto of the Roman Tribunes, who terms of court, he rode the circuit from county to although they had no seat in the Senate, and no voice county, and in the absence of railroads, did his travel in the enactment of its statutes, could nevertheless, by ling upon horseback. The period of consultation with a single word, check one of the most important funchis clients and associate counsel was short-while the tions of government. His arguments are singularly jury was being impanelled, or at farthest, while the vigorous and eloquent, the style lucid and direct, with preceding case was being tried. Judge, jurors, cli- scarcely more than a couple of precedents to illustrate ents, witnesses, lawyers and spectators all arived at and enforce his view. the court-house about the same moment; and the “The fact is, that Mr. Stan bery had very great litplaintiff or defendant picked out his lawyer and com- erary ability, and his study of the classics, ancient and menced to instruct while the latter was tying up his modern, gave him a style as rich as it was simple and horse in front of the court-house door. There was no direct. library at band, or law clerk to fish up decisions bear- “Next to a catalogue of bugs, or a State geological ing directly upon the point in issue, and the only vade report, the ordinary lawyer's brief is the dryest, most mecum was a good memory and the ability to build up incoherent and fragmentary of written compositions. an organism from its imprint in the sand. The terms It glitters with italics and underscored points, like the were short, for the judge was desirous of getting bliud door of a jail with imitation knobs and bolts, through his docket, and hurrying away to the best and to the uniniţiated must be as meaningless as the county-seat; and his cavalcade of lawyers found them- symbols on an Egyptian obelisk. On the contrary, selves on one side or another of every suit. Murders, the briefs of Mr. Stan bery were not only readable larceny, forgery, alternated with actions quare clare- but instructive even to laymen. If they were dry, sem fregit, bills in equity, suits to foreclose mortgages, it was from the dry ligbt so highly extolled by Baand applications for writs of injunction and habeas corpus. And as the English common law form of “One of his constant admonitions was the absolute pleading prevailed, and special pleas were the mode, necessity of careful preparatiou before trial. It asked with all their delightful ambiguities and prolixities what were the three principal factors in his own suo
cessful advocacy, he would paraphrase the answer of three weak ones, and doubted if multiplicity of coun-
or the other of nearly all the important trials in the
I remained in his office; the first day was a correct try to bully him into spitting out the truth, nor prob- sample of the whole. Always courteous, gentle in ably what is more tedious still, turn his memory in- speech, easy of approach, and eager to help by advice side out, in the vain hope that in an unguarded mo- or discussion; and always a gentleman." ment, something might drop out, useful to one side, To the article is subjoined the following from Mr. or at least damaging to his opponeuts; but like a Justice Matthews' address to our State Bar Associaguide in a maze, carefully concealed the approaches tion in 1882: to the center, until the witness stood fairly in front “If there, in fact, has been any decline in the influof it.
ence and power of the legal profession during the "To Mr. Staubery the trial at nisi prius was like a present generation, it certainly cannot be said to be game of chess, in which more depended upon the skill due to any failure on its part to realize, from time to of the player than upon the intrinsic value and uum- time, as in times past, in its foremost men its highest ber of the pieces employed; and he never losing sight ideal. Doubtless there will arise to the memory or of the fact that the capture or loss of a pawn often de. imagination of every one present, the figure of one, at termines the victory. Ilis vigilance was unceasing; least, that answers to the call for the exemplar of his nay, it rather increased than diminished if the result profession. I have in my mind's eye-for he has looked doubtful."
passed from corporeal sight, though but recently-ove "He knew so well bow to keep the equipoise between that might have sat, even to such a painter as Bacon, the respect due to the court, and the equally import- for his portrait as a model lawyer. Nature had done ant factor in the proper administration of justice, the much for him. She endowed him with many graces, respect due to himself as a member of the bar. He both of body and spirit. He was a picture of manly loved the law, and brought into the practice of it the beauty and dignity; his presence was benign, but manatural dignity and reverence which formerly pre- jestic; his address was winning, ivsinuating, persuavailed between the Roman patron and bis client. It sive, impressive; his posture firm, collected, self-pogwas an old saying, “that all roads lead to Rome,' and sessed, self-respecting, full of respect to others; bis with Mr. Stanbery, all branches of learning and science movements gracious and inspiring; his voice musical were useful and necessary to the advocate; as in the and various; an eye beaming with sympathy and inmanifold diversity of suits, there was no line of study telligence. He had every physical quality to fit him or thought-music, chemistry, physiology, anatomy, for grave and serious oratory. His intellect was keen, mathematics, poetry, painting — but would,
incisive, rapid and unhesitating; his logic inexorable. time or another, be called upon in the legal forum to Fie had a rare faculty of lauguage, which pictured in aid in judicial examination and judgment. And the vivid and striking colors all the images of his mind. kuowledge of science and art furnished the most con- A moral and intellectual energy that was tireless vincing illustrations and examples to the zealous ad- answered every call of enthusiasm that was born of a vocate.
union of a lofty sense of duty with a strikingly sincere “He thought that any, good, clear head was worth love of his profession. Unremitting and systematic
study bad filled a retentive memory with the stores INCONSISTENCIES IN CODE OF CRIMINAL PROCEDURE
Section 56 of the Code of Criminal Procedure of the of every case and argument the instinctive delight State of New York vests in Courts of Special Sessions which all living activities have in natural exercise. In exclusive jurisdiction of the trial of certain specified judicial tribunals he recognized the authority and ma
misdemeanors, subject however by section 57 to trial jesty of the law, which he felt that both they and he
on indictment by obtaining proper certificate. And it were appointed to administer, and he respected as
has been held that the Legislature possesses the power well his own fuuction as counsel and advocate as the
thus to deprive, for minor offenses, of the supposed person of the magistrate. He recognized no man as
constitutional right of trial by and before the common master, but respected all men, each in his own place law jury of twelve. and degree, and stood for his cause, like a knight,
Section 211 of the same Code seems to conflict with answerable only to his own honor. He was, indeed, section 56, inasmuch as it is by section 211 left to the the very prince and paragon of lawyers. Doubtless option of its defendant whether to be tried in the there are those who survive him entitled to be num
Court of Special Sessions, or “held to answer to a bered with him, whom living, it were invidious to dig.
court having authority to inquire by the intervention criminate; but him, dead, it is no offense to praise no
of a grand jury into offenses triable in the county.” shame to name; he lives still in the love of those who
Section 211 should be repealed if it has not been, will always take pride in recalling the name and per- which after a somewhat cursory examination I cannot son of Henry Stanbery."
find to be the case.
J. B. DALY.
PRATTSVILLE, N. Y., Oct. 5, 1886.
COURT OF APPEALS DECISIONS.
IE following decisions were handed down Tues-
day, Oct. 12, 1886. fect consistency in the decisions of Justice Pratt in
Judgment reversed, new trial granted, costs to abide Brassford v. Oelrichs and Cross F. Belknap, both re
the event - Arthur V. Briesen, appellant, v. Long ported in 24 Week. Dig. The difference is that in the Island R. Co., respondent: Louis Bajus, respondent, latter case the artist agreed as part of the contract to
V. Syracuse, Binghamton & New York R. Co., appelperform the work to the satisfaction of the other lant; Anna N. Dwight et al., executors, respondents
, party, and it is well settled that under such a contract,
v. Germania Life Ins. Co., appellant.-Judgment afwhen the subject involved is a matter of taste, the
firmed with costs-James S. Morton, respondent, v. person for whom the work is done is the sole arbiter. Metropolitan Life Ins. Co. et al., appellants ;
Robert Brassford v. Oelrichs does not conflict with this
doc- W. Gleason, respondent, v. James W. Smith.-Judg. trine. There the contract was simply to do the work, ment of General Term reversed, and judgment of but with no stipulation that it should be done to the Special Term modified in accordance with the opinsatisfaction of the other party, and the court beld, ion; that judgment be settled before the judge who that as matter of law under such contract the artist is
writes in the case. Neither party to have costs of aprequired only to do the work in a skillful and artistic peal to the General Term of the Supreme Court or to manner, and it is for a jury to say whether it was so
this court as against the other-Margaret I. Wilmerdone.
ding, appellaut, v. John McKesson, respondent.In a word, instead of a mere matter of taste, it is a
Motion for reargument denied with costs-Henry mere matter of contract.
Weble, appellant, v. Albert Karutz, respondent.
WEST END. Denied with costs-Isabella R. Clute, respondent, v.
Jacob Knies et al., appellants.-Motion to amend re-
tus N. Weller, respondent, v. Charles DeKay TownEditor of the Albany Law Journal:
send, appellant.---Motion to correct calendar granted If the readers whose attention was called to the de
without costs-Bessie J. Cuming,an infant, respondent, cisions of Mr. Justice Pratt in Cross V. Belknap and
v. Brooklyn City R. Co., appellant. - Motion for leave Brassford v. Oelrichs, in 24 Week. Dig. 233, 256, will
to withdraw appeal denied without costs-Erastus S. give these cases attention, they will find no difficulty appellant. ---Motion to advance cause denied without
Prosser, respondent, v. First National Bank of Buffalo, in reconciling them. In the first case plaintiff agreed to build a house “in a good, workmanlike and sub-costs-Syracuse Water Co., appellant, v. City of Syrastantial manner, to the satisfaction of defendant,”
cuse, respondent; Syracuse Water Co., appellant, v. and on the trial it was proved “that the contract was
Central City Water Works, respondent. - Motion to not performed to a very material degree, and many de
dismiss appeal granted under section 191 of the Code fects in workmanship and materials were shown."
of Civil Procedure with costs--Bridget Mulcahy, re
In the second case the contract was pure and simple, for spondent, v. Fraucis C. Devlin, appellant. — Motion the painting of a picture, and it was only claimed by mer, respondent, v. New York Elevated R. Co., appel
to dismiss appeal denied without costs-Mary v. Weidthe defendant that the painting was to be done to his satisfaction, and that it was not so done.
lant. --Motion to dismiss appeal granted with costs It seems only fair to Judge Pratt that your readers
of appeals, but without costs of motions-J. Daniel should not be misled, for the cases are very plain, and
Ackerman et al., appellants, v. Marcus Braunstein, the comments made on them show the advantage of respondent; Julius M. Wile et al., appellants, v. Same; reading more than the head-notes.
David A. Sahliem v. Same.- - Motion to dismiss ap-
peal granted, with costs to one appeal and $10 costs of
motion-Iu re Application of City of Rocbester, apNew York, Oct. 2, 1886.
pellant, to acquire water rights of George R. Smith
The Albany Law Journal.
captain before any thing of the kind can be recognized. No captain is to expect head-quarters con
sent to his marriage, either, after two years' service ALBANY, OCTOBER 23, 1886. or more, unless he has proved himself an efficient
and successful officer, and is backed by his divi
sional officer, who, in consenting to his marriage, CURRENT TOPICS.
must agree to give him three stations. In future
no marriage will be agreed to by head-quarters unTHE MHE autumnal legal campaign opens with several
less we have consented to the engagement at least encouraging or interesting events. Foremost twelve months before.” The Solicitors' Journal says among these in our State is the affirmance of the
of this: "The staff-council' can hardly have been conviction of Jaehne. It is fortunate that the ap
aware that according to English law any contract pellate court were able to come to this conclusion,
in general restraint of marriage is absolutely void; for it would have been disheartening to see the
and that any engagement by a “male lieutenant'or prisoner gaining another chance on a vexatious
'captain ’not to court'or marry, will not be worth technicality. We regret however that the rest of
the paper on which it is written. But if a solicitor the “boodle" aldermen are likely to have an un
had been at hand before the order was promulgated molested journey to Canada at the expense of their
he could probably have indicated a less objectionabail. The denial of a new trial for the Chicago an
ble mode of wording the order, and also a mode in archists is also a good step toward justice, although
which a valid contract, sufficient for the purposes of we regret to say not the final one. We take no
the staff-council,' might be constructed. Conpleasure in hangings, but really these wretches de
tracts in partial restraint of marriage are valid, serve the immortality of infamy which they seem
however large may be the class alliance with any of to court. It will be a sorry day for our country if
whom is prohibited. Thus the Court of King's they do not hang. In the celebrated Dwight insur
Bench, eighty years ago, held that a condition ance case the Court of Appeals have granted a new
against marriage with a Scotchman was valid. trial, which may be pronounced an interesting if
Perrin v. Lyon, 9 East, 170. Vice-Chancellor Hall not an encouraging fact. Certainly the insolvent
held that a condition against marriage with any Colonel Dwight was a fortunate man to be able to get such a vast amount of life insurance, pay only person who did not profess the Jewish religion was
good. Hodgson v. Halford, L. R., 11 Ch. D. 959. one premium, and then so easily walk himself to
And the last of the vice-chancellors has recently dedeath. Against these items must be set off the
cided that a condition against marriage with any pardon of the boycotters by Governor Hill. The governor certainly states some plausible reasons for person being, or ever having been a domestic serhis action, the most convincing of which is that the marked, it was competent for the person indicated
vant,' was valid, for, as he characteristically redistrict attorney advised it. We have confidence
in the condition to choose a wife from the whole in his discretion. The ignorance of the offenders female world except only that portion of it which is a much less cogent reason, for they must have comprises domestic servants.' Jenner v. Turner, 29 known that they were doing a grossly unjust, if not
W. R. 99. It would seem easy therefore to frame an illegal act. But they were probably the tools of bad and designing men.
an agreement, to be entered into by 'male lieutenAt all events the com
ants' and 'captains,' which should bind them not munity are now warned that such conspiracies are
to marry any of the various classes of persons mencrimes, and must not expect to be rescued by the
tioned in the schedule thereunder written; and by executive arm in future. Meantime the boycotters including in such schedule “the whole female are out of durance in ample time to vote for judge world,' except daughters, sisters, aunts or cousins of the Court of Appeals! Then there is Governor Tilden's will with a probable contest.. Certainly lujah lasses,' the object in view would probably be
of any member of the staff-council,' being 'Hallethe trust in the will is very loose and indefinite, and if held invalid will afford another proof of the
accomplished. We may add that any undertakings
by amorous 'male lieutenants' or 'captains' to renvalue of advice.
der services to the staff-council'in consideration
of facilities for marriage, will apparently convert It is probable that next to the bureau for the protection of the interests of workingmen, which or
that sublime body into proxeneto or match-makers. ganizes strikes and dictates boycotts, the “Salva- The civil law looked with some favor on persons tion Army" business is the most successful fraud
who stipulated for reward in promoting marriages, of the present time, which thrives by appealing to
but our courts from a very early period have treated
such contracts as utterly void.” ignorance, bigotry and prejudice. The officers of these two precious organizations undoubtedly make a fat living. The “Salvation Army" people have We are advised, by Gibson's Law Notes, of a new a rule, it seems, which prohibits marriage among organization for the collection of debts, which rivtheir officers. This order, as given in the daily pa
als the well-known “black-list” scheme which is pers, provides: “That in future no sanction will be much used in this country, and which has been degiven to courting or any engagement of any male nounced by the law journals. The new scheme is lieutenant. He must get promoted to the rank of
described as follows: “The old-fashioned system VOL. 34 -- No. 17.