« AnteriorContinuar »
from injury, and did not furnish other suitable protec- meant piece or price. These letters do not mean any
ESTOPPEL-JUDGMENT-SPECIFIC PERFORMANCE OF question in regard to this is whetber it remained there
CONTRACT-REFORMATION.- Where in an action for for such time, and in such form, as to establish the
the specific performance of a contract for the sale of negligence of the defendant, and that this negligence
real estate, a judgment was rendered on the merits in contributed to the injury of the plaintiff. Penn. Sup.
favor of the defendant, held, that the judgment was a Ct., Oct. 14, 1886. Neslie v. Second & Third Sts. Pass.
bar to another action to reform the contract, and to Ry. Co. Opiņion by Mercur, C. J.
enforce it as reformed. We are unable to see however CONSTITUTIONAL LAW-COMMERCE-STATUTE PRO- why the matter should not be held to be res adjudiHIBITING CARRIERS FROM LIMITING LIABILITY.-A cata, and the plaintiff bound by his election. The new statute of Iowa prohibiting corporations engaged in issue was merely incidental to the main cause of actransporting goods or passengers between different tion. Winchell v. Coney, 27 Fed. Rep. 483, 484. The States from limiting their liability as common car- written contract was imperfect, but the plaintiff chose riers by contract is not a regulation of commerce to rest a suit upon it as it was, and the judgment in among the States. It is contended that the State has the case, until set aside, was mutually binding upon no power to place a restriction of that character upon the parties to it, and final as respects the merits of the carrier who contracts for the transportation of plaintiff's claim, notwithstanding mistakes and omisproperty from this State into another State or Terri- sions in the proceedings, or the failure on the part of tory. The position is that the restriction, if applica- either party to make a full presentation of his case by ble to a contract of this character, would be a regula- | the proper allegations and proofs. Thompson v. Myrtion of commerce among the States, a subject, which
ick, 24 Minn. 11. It is manifest that the two actions under the Federal Constitution is within the exclu- could not prooeed pari passu to trial and final judgsive jurisdiction of the Congress of the United States. ment in the same court, and that the plaintiff in such In our opinion however this position cannot be main- case would be compelled to elect, and be bound by his tained. The provision is in no just or legal sense a
election. Neither can they be so prosecuted successregulation of commerce. It prescribes no regulation ively. Washburn v. Insurance Co., 114 Mass. 175; for the transportation of freight upon any of the chan- Steinbach v. Insurance Co., 77 N. Y. 502; 8. C., 12 nels of communication. It leaves the parties free to Hun, 645. In such cases the plaintiff should take a dismake such contracts as they may choose to make with
missal in the nature of a nonsuit before final submisreference to the compensation which shall be paid for sion on the merits. The former suit was dismissed in the services to be rendered. The carrier is left free to this instance by the court after the plaintiff's case was demand such compensation for the carriage of the submitted; but it is not material that the judgment property as is just, considering the responsibility he
was in form of one dismissal if it was in fact deterassumes when he receives it. He is forbidden to make mined on the merits. Boom v. St. Paul F., etc., Co., any contract that would exempt him from any of the 33 Minn. 256. Minn. Sup. Ct., Oct. 6, 1886. Thomas v. liabilities which arise by implication from his under- Joslyn. Opinion by Vandenburgh, J. taking to carry the property. But no burden is placed MORTGAGE-SALE BY MORTGAGOR TO MORTGAGEEupon the property which is the subject of the con
LIEN OF SUBSEQUENT JUDGMENT.–Where a mortgagor tract; nor is any rule prescribed for his government deeded the land mortgaged to the mortgagee in conrespecting it. That it is within the power of the State sideration of the satisfaction of the mortgage debt, and to prescribe such a limitation upon a power to con- a subsequent judgment creditor sought to enforce his tract, we have no doubt. The statute was enacted by
lien against the land, held, that it was intended that the State in the exercise of the police power with the land should pass, free from incumbrances, in pay. which it is vested, and it is applicable to all contracts ment of the mortgage debt, and that if the judgment entered into within its jurisdiction. The question in
is a subsisting lien upon the land, this condition fails, volved is not different in principle from that decided and the mortgage is un paid, and the mortgagee may by the Supreme Court of the United States in what
enforce it. Stimpson v. Pease, 53 Iowa, 572; Wickerare known as the Granger cases.
See Munn v. State, sham v. Reeves, 1 id. 413; Lyon v. Mollvaine, 24 id. 9. 94 U. 8. 113; Chicago, B. & Q. Ry. Co. v. Iowa, id. 155; Counsel for defendant insists that upon the conveyPeik v. Chicago & N. W. Ry. Co., id. 164. Iowa Sup.
ance of the property, the estate and interest under the Ct., Oct. 11, 1886. Hart v. Chicago & N. W. Ry. Co.
mortgage merged in the fee-simple title under the Opinion by Reed, J. (See Railway Co. v. State, ante,
deed executed by the mortgagor. The doctrine is well 406.-ED.)
settled in this State that in such a case no merger will CONTRACT--UNINTELLIGIBLE ORDER-EVIDENCE.- occur when the intention of the mortgagee is OtherAction to recover the price of a
counter rail." The wise, and the merger is against his interest. Wickerplaintiff put in evidence a postal card signed by the sham v. Reeves, 1 Iowa, 413; Lyon v. McIlvaine, 24 id. defendants, of' wbich the substance is as follows: 10; Stimpson v. Pease, 53 id. 572; Woodward v. Davis, "Please send us pice of counter screen like draft." | 53 id. 694; Wilhelmi v. Leopard, 13 id. 330; Vannice v. Upon this card was a draft of a counter screen, with Bergen, 16 id. 555; Rankin v. Wilsey, 17 id. 463; Linmeasurements thereof. The court rightly ruled that scott v. Lamart, 46 id. 312. In the case last cited the this order was unmeaning and unintelligible, and that conveyance to the mortgagee was by a deed of warit could not be construed as an order for a piece of ranty executed by the mortgagor, and the notes secounter railing. It presents a case of incurable uncer- cured by the mortgage were surrendered. Like facts tainty, and the court properly refused to submit it to are relied upon in this case. But it was held, that in the jury to determine whether the letters pice" the absence of an intention to merge the mortgage es
tate in the fee-simple, it would not occur. Smith v. igation, or obstruct in any way the navigation of the Swan. Iowa Sup. Ct., Oct. 5, 1886. Opinion by river. It is clear that the plaintiff's dock is an imBeck, J.
provement, and in the general interest of navigation, TRIAL-ERROR - MISSTATEMENTS BY COUNSEL.
and a public as well as a private benefit. It is equally Where it is alleged that an attorney in the argument
clear that the defendant's boom is strictly & private of a cause ou trial to a jury made misstatements of
venture and enterprise, for his use and benefit alone, the evidence, and went outside of the record in his
in which the public has no interest; and it not only statements of the facts proved on the trial, the atten- does not facilitate, but it obstructs the free navigation tion of the court should be called to the language and
of the lake. It is uncommon to place booms along or conduct of the attorney by the proper objection, and
near the shores of lakes, and it is probably never done a ruling had thereon by the court. If the objection is except for such private use for the storage and saleoverruled, and an exception taken, the question may keeping of logs. Along rivers they facilitate the run, be reviewed in the Supreme Court, upon the language, ning and sorting of logs, and in that way aid navigaobjection, ruling, and exception being inade a part of tion. Docks, wharves, and public landings are essenthe record by the proper bill of exception, but not
tial to navigation, and highly favored in the law. The otherwise. A question involving the priuciple now
defendant, as a riparian proprietor, may have had the under examination was for the first time, so far as my right to construct this boom for his own benefit, il it information extends, presented to this court in the
had not interfered in such way with the free and uncase of Cropsey v. Averill
, 8 Neb. 151. The opinion of obstructed navigation of the waters of the lake. When the court was unanimously concurred in. I quote the it does so interfere with the private and public eighth clause of the syllabus: “(8) One ground of navigation then it becomes a private and public nuiserror assigned was the misconduct of the opposing
ance to be abated, and those who place them or main. counsel, in their argument to the jury, prejudicial to
tain them there are liable in damages for any special the plaintiff in error. But it was not shown by the injury. In view of the well-settled law of this State, record they were called to order, nor that the court
the defendant is guilty of a gross infringement of the was requested to confine them within the bounds of plaintiff's right to the full use of his dock in couneclegitimate discussion. Held, that while the offense
tion with the navigation of the lake. The cases in this complained of, is properly presented, would be good
State involving the right to construct booms are those ground for a reversal of the judgment, still as the
of booms upon navigable rivers, which in many rerecord does not show any ruling by the court below
spects are in aid of navigation, but all of tbem invarirespecting it, there is no question for this court to re
ably lay down the doctrine that even euch boomg view." The above case has been adhered to by this
must not obstruct or interfere with the general navcourt without exception. See Chicago, St. P., M. & igability of the river. The cases in this State, cited 0. Ry. Co. v. Lundstrom, 16 Neb. 254; Bradshaw v.
by the learned counsel of the appellant himsell, all State, 17 id. 147; McLain v. State, 18 id. 154. The case
hold the same doctrine, as in Stevens' Point Boom of Cleveland Paper Co. v. Banks, 15 Neb. 20, consti
Co. v. Rielly, 44 Wis. 295; that the boom must not iu. tutes no break in the above line of decisions. A care
terfere with any one's right of navigation, or obstruct ful examination of that case will show that the judg. in any way the navigation of the river. In all the ment was reversed and a new trial awarded for mis. cases the paramount right of general navigation is conduct of the prevailing party, and that this miscon- fully recognized. Diedrich v. Railway Co., 42 Wis. duct consisted in the persistent effort, by one of the
248. In Stevens' Point Boom Co. v. Reilly, 46 Wis. attorneys of the defendant in error, in the course of | 237, in this court the second time, Chief Justice Ryan the trial in the court below, to prove and get before
said: “The private right of the riparian owner, as the jury tbe alleged fact that ono Smith, the secre
declared in Diedrich v. Railway Co., quoted in the tary of the company of which defendant in error was
opinion on the former appeal, is subordinate to the president, had embezzled the funds of the said com
public use of a navigable river, and is always exercised pany. It is true, the opinion recites the fact, that in at peril of obstructing navigation. This subjection of the course of the argument of the cause to the jury,
the private right to the publio use may sometimes im. one of the counsel for defendant in error used the fol- | pair the private right, or defeat it altogether. But the lowing language, which was quite outside of the case:
publio right must always prevail over the private ex. “ The bistory of Smith you know; they told you di
ercise of the private right.” This principle, often rerectly after these goods were shipped Smith went peated, was recognized early in this State, in Walker away with property that was not his own." But it
v. Shepardson, 2 Wis. 384, in which the driving of piles also appears that “the plaintiff's attorneys objected to
in a navigable river, obstructing public navigation and the use of this language, and the court restrained the causing a private special injury to the plaintiff's right attorney from making such statements. Certainly of navigation was held to be indictable as a public this could not have been beld error.” As an individ nuisance, and actionable by the party injured. But ual member of the court, I doubt that any application, State to require further citation of authority, except
the question is too plain and tov well settled in this motion, or proceeding made, or sought to be made by Harrington v. Edwards, 17 Wis. 604, which in priucicounsel in open court, under the eye and within earshot of the presiding judge and opposing counsel, can
ple, is closely in point. It is there held that raftsmen be held to be misconduct of the prevailing party,
on navigable streams have no right to moor their rafts within the meaning of the statute. But certainly in a
in such a manner as to deprive wharf-owners of access case like the one at bar, where the alleged misconduct
to their wharves. This is the precise principle in this consisted in an irrelevant statement by counsel, for
case. The plaintiff's dock is in the interest of navigawhich he was not even called to order by opposing tion, the same as a wharf, and serves the same purcounsel, nor the attention of the court called to it, ex.
pose, and cutting off access to it on one side was cept for the purpose of getting the language used into equally a wrong. Wis. Sup. Ct., Sept. 21, 1886. Union
Mill Co. v. Shores. Opinion by Orton, J. a bill of exceptions, 110 error can be predicated upon it. Neb. Sup. Ct., Sept. 29, 1886. Bullis v. Drake.
BUILDING OVER ALLEY. Opinion by Cobb, J.
The owner of the fee in the land, over which is a right WATER AND WATER-COURSE-BOOM – OBSTRUCTION of way, may erect a building over said way, if in so OF NAVIGATION.-A riparian owner may not construct doing he does not interfere with the right of way. a boom so as to interfere with any one's right of nav- What is included in the ordinary grant of a right of
way commonly called an all-y-way?' The com- played in winning the hearts of juries. It was his plainant relies on Kaua v. Bolton, 36 N. J. Eq. 21. So custom when Henry Brougham or David Dundas, or far as the right to an easemeut entered iuto the con- some other eloquent or “hyfalutin " pleader sat down troversy in that case, it was not decided that building amidst a hun of applause, to appeal to the jury as a over or across it, six feet above the ground, was or was plain matter-of-fact man, who merely wished to take not an obstruction. Nor can I find any case which a common-sense view of the matter before them. supports the claim of the complainant; but so far as “Gentlemen of the jury," he would commence, after the question has been considered by the courts, the lodging bis by no means inconsiderable paunch concases are agaiust the complainant. In Massachusetts fortably upon the edge of the table, “I am quite sure the owner of an adjoining tenement, who had the fee that like all the rest of us, you will have been overpowin the soil over which was a way, built over the way ered and fascinated by the eloquence of the speech to at an elevation of eleven feet. The court (Gerrish v. which we have just listened with such delight.” After a Shattuck, 132 Mass. 235) held that it was lawful for few more words of judicious praise, sometimes interhim to do so. See also Atkins v. Bordman, 2 Metc. mixed with shafts of dexterously-administered criti457. In the case before me it appears that in describ- cism, Sir James Scarlett would continue: "Let me now ing the property, the way is referred to, and that fol- endeavor in my prosaic way to draw you down from the lowing the description, are these words: “Together empyrean to which you have been lifted by my learned with the appurtenances, and also the free and joint brother." Bit by bit the arguments of the predecesuse of said five feet three and a half inch wide joint sors were ruthlessly stripped of verbiage, and their alley,‘for ingress and egress forever.” There is noth. worthlessness was exposed in its unadorned nakeding to show any special use intended. The usual and ness. Before Sir James had spoken half an hour every ordinary rights conferred upon a grantee can only be man on the jury regarded him as a personal friend. taken into an account in such case. What are those As he looked them in the face and exchanged glances rights? Only the right of ingress and egress upon the with them, be seemed to read their thoughts as though surface of the soil, not beneath the surface, not above he was reading an open book. In quickness of apprethe surface at such elevation as he may elect. He hension, knowledge of human nature, subtlety of reacould not construct an underground way, soning concealed under the plainest and least ambi& drain, nor other openings. He could not tious language, admirable skill in marshalling his facts construct elevated way in order to reach and power of communicating to the jury his own prohis lot or dwelling, or any part thereof. His rights found conviction that he was in the right and entitled are confined to and upon the surface of the soil. Not to their verdict, I have never seen his equal at the bar 80 limited are the rights of the owner of the fee. He within the last sixty years, during which I have heard has only couvoyed the right to the use of the surface. every famous advocate that ever lifted up his voice in All other rights of ownership not inconsistent there. an English court of justice. There are some few points with he retains and may exercise. If he does not in- in bis long forensic career of which it may not be out terfere with the right of way, he may use the subsoil, of place to remind some of his successors. In the first or go beneath the surface for any purpose; and so uu- place Scarlett trusted to cross-examination in a higher doubtedly he may appropriate the space above the sur- degree than airy other'barrister in my experience, and face. Below the surface he has imposed no barrier; was never afraid of wearying the court by the length and above, none, except tho right of way; and with at which he conducted it, although Lord Ellenborough this exception all other rights are as perfect as they once spitefully said that 'Scarlett's cross-examinacan be. Does the erection of a structure over said tion gave him the best idea of eternity.” Nevertheway, at an elevation of nine or ten feet, interfere with less it was liked, and even enjoyed by juries; and or obstruct the right of the complainant to ingress and his skill in eliciting the facts which he wanted to get egress? I think not. There is nothing in the case to at was unmatched. This he did by never bullying or show that when he purchased his lot he intended to brow beating witnesses, however hostile or refractory engage in any thing that would suffer by the proposed they might be. In the end he rarely failed to make erection; nor that siuce he has undertaken any thing them his friends, and he won them, as he won the which cannot so well be done. So that I can find noth-jurymen, by apparent sincerity and good-nature. In ing in the present situation, nor in any of the attend short, his recipe for success at the bar-as ne often ing oircumstances at or since the grant, which calls told my father, who gave him scores upon scores of for the interference of this court. N. J. Chan. Ct.,Oct. briefs-was "bonhomie and close study of human na9, 1886. Sutton y. Groll. nion by Bird, V. C. ture as indicated by the countenauce." As a member
of Parliameut. and again as a judge, Lord Abinger was
more or less a failure. Lord Macaulay indeed speaks of CORRESPONDENCE.
him as “one of the greatest bores he ever heard in the
House of Commons.” As he advanced in years he beAPPEAL FROM ORDERS ON DEMURRERS.
came of so prodigious a bulk that his activity and enEditor of the Albany Law Journal:
ergy surprised all beholders. When in the country, Can you inform one of your oldest subscribers he lived at Abinger, near Dorking, where he spent a whether an appeal will lie to the General Torm from
vast sum of money in bricks and mortar. Chancing an order sustaining or overruling a demurrer to a com- to find myself at Dorking last summer, I went over to plaint, where leave is given to amend? The decisions, have a look at the well-remembered house in which so far as I am aware, seriously conflict.
Lord Abinger lived. I found that it had disappeared, The First Departmeut, in March, 1884, held that an
aud that in its place Sir Thomas Farrar, of the Board appeal does not lie in such a case; that the remedy is of Trade, baving bought the old house and property by appeal from the final judgment. 32 Huu, 194.
from the present Lord Abinger, had erected a brick The Third Department, in January, 1884, held other
mausiou, which is, I doubt not. much more commowise. 31 Hun, 532.
dious than its predecessor. Yet I regretted the disDOUBT.
appearance of the latter, for it reminded me of the
days when Sir James Scarlett used to set off on horseNOTES.
back from Abinger at half-past six in the morning,
and ride to London-distant nearly thirty miles-As a boy, I have often heard Lord Abinger carry all changing horses at Epsom. At that time he walked before him by the exquisite skill and tact which he dis- abont seventeen stone, and when be appeared in court
at ten A. M. no one would have thought he had ridden much-needed solicitor, which will be found exceed. thirty miles that morning. Some fifteen years since I ingly interesting.--Albany Evening Journal. chanced one day to meet the late Baron Martin in the strand near Temple Bar. Addressing me by name,
An Indiana justice of the peace, who had twentySir Samuel remarked: “It would do you good to go higher court, has resigned in disgust and opened a
seven of his twenty-eight decisions reversed by the into the House of Lords and hear Benjamin plead. He
meat market. He says that the professional courtesy is the greatest advocate we have had since Scarlett.” Now it is worthy of remark that Scarlett and Benja- / and bar has entirely petered out, and that a justice of
which used to be a distinguished feature of the bench min were both born in the West Indies.-A Retired the peace of to-day is of no account. Solicitor in Daily Telegraph. Among the legal curiosities to be seen in the room
She was posted in law, and she would have no more of the State Bar Association at the Capitol is the orig- “I am a lawyer's daughter, you know, George, dear,"
nonsense, according to the New York Independent: inal roll of the solicitors of the old Court of Chancery, she said, after George had proposed and been accepted, of which Chancellor Walworth was the last custodian. It is an interesting old document, bearing the names
"and you wouldn't think it strange if I were to ask of many of the great jurists and statesmen of the you to sign a little paper to the effect that we are en. State and the Republic. Mr. Proctor, whose extensive gaged, would you?" George was too happy to think acquaintance with the legal bistory of the State en
any thing strange just then, and he sigued the paper ables him to relate many interestiog events connected
with a trembling hand and a bursting heart. Then with it, gave a Journal tourist the following incident they were very, very happy. “Tell me, darline,"
she laid her ear against his middle vest button, and connected with the old roll: “It was one of the rules George said, after a long, delicious silence, of the Court of Chancery concerning the admission of
why did its solicitors that they should be examined by one of you want me to sign that paper? Do you not repose the vice-chancellors. If successful, the register certi.
implicit coufidence in my love for you?" "Ah, yes," fied the fact to the chancellor, before whom the can
she sighed, with an infinite content, "indeed do; didate appeared, took the solicitor's oath, signed the but, George, dear, I have been fooled so many times." roll, and was ready to hang out his shingle as a “Solic- Jessel had a difficulty with that Shibboleth of polite itor in Chancery.' Before a man could be a candidate English, the letter h. He did not always drop it, but for such admission he must have been an attorney of
he did sometimes, and he was conscious of his failing. the Supreme Court. In August, 1845, a young lawyer He was however too careless of small matters to make just admitted as an attorney, desiring admission to any affectation about it. He appeared to drop the h the Court of Chancery, came to Albany, and was ex- or sound it just as at the moment he seemed inclined. amined by our distinguished fellow-citizen, the Hon. An old story arises out of this habit of his. When at Amasa J. Parker, then one of the Circuit judges of the bar, he was cross-examining a French witness, State, and one of the vice-chancellors. The candidate through an interpretor, in a patent case, in regard to a was successful. The late George M. Davidson, then certain chemical compound, of a poisonous character. the register in chancery, gave him the usual certifi
"If you 'eat it?" asked Jessel. “Si voue le mangez,'' cate, and he proceeded to Saratoga to take the oath echoed the interpreter. “Mançezl” said the witness, and sign the roll. Arriving there, he found the chan- lifting up his hands in horror, “Mais, ce n'est pas pour cellor engaged in hearing an appeal from a decision of manger.” It was some time before Jossel could get ou one of the vice-chancellors. Daniel S. Dickinson, of sufficiently good terms with thc evasive letter to inBinghamton, N. Y., then a senator in Congress, and duce the interpreter to ask what would happen: "Si Ogden Hoffman, the great New York city advocate,
vous l'echauffez?”-A Generation of Judges. were pitted against each other. Hoffman was in the Although no longer in office, Karslake was habitumidst of his argument wben the young lawyer entered ally consulted by Cairns in regard to men at the bar the court-room. When the argument ended, and just who applied to him for appointments, and whom Kars. as Dickiuson arose to begin bis address, the young lake was likely to know. Cairns' sccretary arrived at candidate for equity honors being in great haste to re- Karslake's chambers one afternoou when he was surturn home, approached the senator in great haste,say- rounded by his friends and in the middle of a tale. ing: “Will you be kind enough, sir, to suspend your “ The chancellor wants to know what you think of argument long enough for me to take the solicitor's | Bateson, of the Western Circuit," asked the secretary. oath?' 'Young man,' said the chancellor, severely, “Bateson," said Karslake; "why he was the cleverest 'you should not interrupt counsel; there will be time man I ever knew. I'll tell you why presently, but let enough for you to take the oath when Mr. Dickinson me finish this story first." He finished the story, and has concluded his argument. Go on, Mr. Dickinson.' then turning in the directiou of his new visitor, said: "Oh, no, your honor, the request of this young man is “Now, Graham, I will tell you why I think Bateson exceedingly important. The State of New York is the cleverest man I ever knew.” But the secretary very much in need of one more solicitor. Indeed, was gone.
“Well,” said Karslake, “I will tell you your honor, it cannot do without another any longer, fellows the reason, because it is rather a good story. and I am very happy to suspend my argument for the The fact is that Bateson was the only man who ever purpose of giving our great State the much-needed so
robbed me of a fee. That is why I call him the clevlicitor. So, my young friend, as you appear to be the erest man I ever knew.” Thereupon he proceeded to proper person for that high distinction, I will cheer relate bow Bateson had been an attorney on his cirfully suspend for you.' The chancellor administered cait, how he had owed Karslake fees, and how by some the oath, the roll was signed, and the State was pro- ingenious shift he had avoided paying them. Meanvided with another 'much-needed solicitor in chan- wbile the chancellor's secretary, who was a busy man cery.' "Who knows but that young man will in a few and could not wait to hear stories, posted off to the years become your opponent in a great case, and beat chancellor and reported that it was all right about you in it, Dickinson ? He ought to do so, for you Bateson. Karslake had said that he was the cicvcrest made him the object of one of your sharp witticisms man he ever knew. So the lucky Bateson was made a without cause,' said Hoffman. The young solicitor County Court judge, and to this day does not know did become Dickinson's successful opponent in several that he owes his place to the neglect of a Chancery great cases. His name is on that roll, and some other secretary to wait for the end of a story.-A Generatime when you call I will give you the history of this tion of Judges.
Theantat nuvemtiered as The Wall Breakers," repre
calities. As it now stands, we may say, with a
so no two courts will think in the same way about ALBANY, NOVEMBER 27, 1886.
the same will, and even one court will never think the saine way twice about similar wills. That is
the reason why the law of wills is written in three CURRENT TOPICS.
big volumes, and why different annotators cite
many cases peculiar to their own edition, and HE last number of Puck contained a full-page why sometimes they cite the same case to contrary
doctrines. A learned court in Pennsylvania resenting a moribund old gentleman sitting at a table cently held that a lease was a deed on account with a highly respectable and virtuous-appearing of the order of certain phraseology, and so the orlawyer in the act of drawing his will, who has gone
der of phraseology frequently defeats a testator's as far as "in the name of God, amen! I give, de- clear intention. As to trusts, while we acknowlvise, bequeath” etc., when they are rudely inter-edge that a trust may be so loosely expressed, or rupted by a flock of harpy-will breakers, perched
confer so much discretion as to be illegal under our upon the window sill and croaking, “ha, ha, ha!” | technical rules, yet if a testator clearly intends to All of which is according to the popular notion of confer an unlimited and absolute discretion we see no the morals of people who try to assert and vindi- reason why he should not be allowed to do it, procate their legal rights against an illegal disposition vided always that the object of the trust is lawful. of property. Unlike most men a few months dead, While he is alive he may give lands and money in Mr. Tilden is having a vivid remembrance on ac
trust for the trustee to devote to the benefit of count of his will, and probably no will ever excited
others in any way he chooses, and so long as the more attention and interest in this country. If Mr.
donor continues to live this is all right; but why Tilden drew his own will, it is highly probable that
should the mere fact that he dies work any change it will meet the fate of most of such documents | in his rights and powers? If Mr. Tilden did not where the man is his own lawyer. Our opinions want to leave his money absolutely to his relatives, are somewhat divided on the subject in question. and wanted to leave it to charity, and was not exWe have no sympathy on the one hand with those actly sure what charities he would prefer, we see who think that a rich man ought to be compelled
although we see some law – why he to leave his property to relatives not his children, might not leave his estate to some one to choose for nor on the other with those who look on a will as a him. Especially so, when he gives a life use of a sacred thing, not to be disputed, and on those who handsome fortune to each of his relatives. We dispute it as infidels and sacrilegious. If a rich have not for a long time seen a decision on testaman prefers to leave his estate to large incorporated | mentary trusts which we have so much admired as charities rather than to verify the adage that char- that one in Connecticut, which upheld a trust for ity begins at home”- especially when the “home” poor, deserving, democratic widows,” and that is several squares distant -- we do not know why he too in spite of the fact that our own widow, alshould not. There is a great deal of sentimental though certain to be poor and deserving, would nonsense about the claims of distant relatives,
not be democratic. whose affection is usually born of and measured by the testator's means, and who, if he were poor, Mr. Roscoe Conkling has been vindicating those would probably be quite willing to let the public who bet on horse-races. The character of a witsupport him. A testator is ordinarily under no ness was impugned on the ground that he was acmore obligation to nephews and cousins and the like customed to bet on horse-races, and Mr. Conkling than he is to the heathen, and the insane, and the was constrained to contend that this, if not an aldestitute, and drunkards, and little children pining together admirable trait in human nature, was at for fresh air. At the same time, if a testator is too least a venial sin, and even an indication of a good wise or too penurious to employ a lawyer, or if he disposition. Mr. Conkling cited Fox as an examemploys one who makes a mistake there is certainly ple of a notorious gambler, who was “the best no legal reason, and we are not sure that there is loved man in Britain." But we suspect that even any moral reason, why bis relatives should not get in Fox's day, when almost everybody gambled, he the estate if they can, provided always that they was loved in spite of rather than on account of his are made to pay their own costs if they do not suc- gambling. Even the sainted Washington gambled, ceed. Perhaps it would be a good plan to make but we have never seen the habit cited as one of his them also pay the costs of the other party. But virtues. Not that we regard horse-races as imcertainly their own. Then again we think there moral, or betting on them as a deadly sin. We are entirely too many artificial and arbitrary legal have attended such festivities ourselves, Parliament doctrines on the subject of wills. A will is noth- adjourns for the Derby, General Grant loved fast ing but a man's will — his wish. Where courts can horses, so did our beloved friend, Judge Folger, see what he means, they should really do what they and ex-Judge Tracey owns “trotters," and we are always pretending to do, and not always doing should not wonder if our friends, the equestrian - carry out his intention without regard to techni- I judges of the Court of Appeals, speeded their cobs
VOL. 34 - No. 22.