Imágenes de páginas
[merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small]

others, raised a conflict in evidence which we cannot, his client to sign a deed of real estate under the imas an appellate court, declare to be insufficient to pression that it was a duplicate of a lease which had show that the assumption was uufounded. Juve 1, been read to him, held, that the conveyance was void, 1886. Harbeck v. Harbeck. Opinion by Danforth, J. and that a mortgage given by the fraudulent grantee

was also void. It is very evident that the deed of these NEGLIGENCE--CONTRIBUTORY--TRIAL-CHARGE OF

premises was not in fact the deed of the complaivant. COURT.-The only ground of error alleged by defend

He never meant to execute a deed, and never knew ant is the exception taken to the following phrase in

that he had executed one till confronted with his sigthe judge's charge: “If the train appeared to have

nature to the same. As was well said by Chief Justice stopped, then for all practical purposes and for the

Ryan, in Griffiths v. Kellogg, 39 Wis. 294, the deed, “if consideration of this case, it had stopped." This

not a forgery, was akin to forgery." That was a case pbrase was followed and explained by this language:

where a lightning-rod agent induced a woman to sign "If from the evidence you shall say that when this

a promissory note for a greater sum than she owed, by woman stepped out upon the platform, the train had

reading the instrument to her as of the less and real stopped, or appeared to persons of ordinary intelli

sum of her agreed obligation. The court said: “The gence and observation to have stopped, following, as it

note in suit was as little hers as if the transaction did, the conceded announcement, the fact that an an

between her and the lightning-rod man had not taken nouncement had been made that the station had been

place, and he had forged the note.” The person who approached, and by a sudden jerk, of which she had

relies upon the records for the authenticity and validno warning, she was precipitated and received this in

ity of a deed does not stand in as favorable a position jury, she has a right of action." There was no error

as a good-faith holder of negotiable paper. In this case, in the portion of the charge excepted to. The plaintiff if the vame of complainant had been forged by Navin was in a strange place in the nigbt-time, aud upon her

(the attorney) without the presence or knowledge of inquiry, as the traiu neared Rochester, the conductor

McGinn, and placed upon the record, the abstract of informed her that she must change cars at the first

title upon which defendant Tobey and his copartner place at which the train was stopped; that “Roches

relied would not have disclosed the forgery any more ter" would be called, and she must take the second

thau it did the fraud of Navin. It seems to us that in right-hand train. Some time after this the brakemau

order to make them bona fide holders of this mortgage, called “Rochester; change cars." The train was then

as agaiust the lands of McGinn, they were bound to go either stopped or slowed down, so that to her, in the

further than the abstract, and to examine the deed. inside of the car, it appeared to have stopped. She

This they did not do. But we consider this deed was bound to act upon appearances, and after making clearly a forgery, under the best definitions of that the announcement, if the train was run so slow as to

offense. Bishop defines “forgery" to be “the false appear to a person of ordinary intelligence and observa

making or materially altering, with intent to defraud, tion to have stopped, ordinary care for the safety of of any writing, which, if genuine, might apparently be the passengers required the train to be so run and

of legal efficacy, or the foundation of a legal liability.” managed as not to endanger their lives, and a sudden

2 Bisb. Crim. Law (7th ed.), $ 523. It is the “fraudujerk or start without any warning, when the passen leut making and alteration of a writing to the prejugers were upon their feet, moving toward the plat- dice of another mau's rights." 4 Bl. Com. 247. The form of the cars, was sufficient evidence of careless

signature to this iustrument is genuine, but the body ness to impose liability upon the defendant. As to of the deed is false, and the signing of complainant's any one in the cars when the train appeared to have name, without knowledge of such falsity, cannot cure stopped, it was the same as if it had stopped, and the it, and make it a true and valid instrument in the same duty rested upon the defendant to cure for the hands of any one. A genuine signature cannot change safety of passengers. June 1, 1886. Bartholomew v. the character of an instrument of this kind, unless the New York Cent. R. Co. Opinion by Earl, J.

intent to do so goes with the signature. The question SPECIFIC PERFORMANCE-DISCRETION OF COURT

of the complainant's negligence in signing this supTRESPASS-SUBCONTRACTOR BUILDING ROAD.-Defend

poged copy of the lease, without reading it, if this is a ant purchased land of plaintiff in Orange county, ad

forgery, as I think it is, cannot be considered in this joining the Hudson river, and agreed always to keep

case; for if the deed is in law a forgery, the question a passage-way under the railway for the use of plain

of good faith cannot arise. Camp v. Carpenter, 52 tiffs. Held, that in view of the difficulty of construct

Mich. 375; Austin v. Dean, 40 id. 386; De Wolf v. ing it, and its inutility, when constructed, it was

Haydn, 24 Ill. 5:25; Griffiths v. Kellogg, 39 Wis. 293 ; within the discretion of the court in its equitable ju

Crawford v. Hoeft, 24 N. W. Rep. 645, 653. Mich. Sup. risdiction to deny specific performance of the con

Ct., July 1, 1886. McGinn v. Tobey. Opinion by tract, and leaves plaintiffs to their remedy for damage

Morse, J. for its breach. (2) Defendant let a contract for build

PLEDGE OF ALIMONY FOR COUNSEL FEES.-A ing a road, and it was sublet, and the subcontractor contract made between the wife and her solicitor, in trespassed on plaintiff's land; but as it did not appear advance of a decree for divorce and allowance of alithat the contract which defendant made with the con- mony, to pay one-hall of what she should be awarded tractor could not have been executed as inade, with- to her solicitor, is void as against public policy. The out any interference with plaintiff's land where tres- law has provided that allowance may be made to carry passed upon, held, that defendant could not be said to on the suit, which includes whatsoever reasonable have caused the trespass. June 1, 1886. Murtfeldt v. sums the services of the solicitor may be worth, and New York, W. S. & B. Ry. Co. Opinion by Earl, J. also the other expenses, as well as for her support, so

that she shall stand before the tribunal, which admin

isters one Jaw alike to the husband and wife, on an ABSTRACTS OF VARIOUS RECENT DE

equal and common ground with him. It would be a

fraud upon the court who makes these allowances, based CISIONS.

upon the facts before him of the husband's ability and

the wife's necessity, and also upon the husband who is ATTORNEY AND CLIENT--ATTORNEY FRAUDULENTLY called upon to pay, if the fund so decreed to the wife INDUCING CLIENT

PEED-MORTGAGE as her temporary alimony should be bartered away to FRAUDULENT GRANTEE. -Where an attorney induced

her solicitors under the guise of “compensation

[merged small][merged small][ocr errors][ocr errors]




[ocr errors]

der a private contract with the wife. The allowance himself in forwarding the transactiou. Md. Ct. App., or temporary alimony is discretionary with the court, May 14, 1886. Stewart v. Schall. Opinion by Ritchie, J. and it cannot be for a moment imagined that an al

ANNUITY-DISTINGUISHED FROM COVENANT lowance would be made if the court was apprised that

FOR SUPPORT.-In this case the grantor contracted for one-half the sum allowed for her sustenance had been

the payment of $200 on the first day of March in each agreed to be paid over to her solicitors under a con

and every year, commencing on the first day of March, tract like that set up in this case. It was held iu Per- 1872, and thereafter, during the natural life of the kins v. Perkins, 10 Mich. 425, that a decree for alimony grantor, and the release by the grantee of the interest vests an absolute right in the wife thereto. The power he otherwise would have in the estate of the grantor to decree alimony is statutory and incident to the ju- upon his death as one of his heirs at law. This release risdiction in suits for divorce, and the statute prescribes the entire powers and regulations on the sub- shaw, 102 Ill. 307-and the payment to the grantor of

was conclusive upon the grantee-Kershaw v. Kerject. In fixing the amount and time of payment, the $200, according to the contract, would give him all court is entitled to have all the facts which would in

that he bargained for and ever expected to receive. fluence its decision laid before it. Can it be supposed that the court would make an allowance to the wite In the coustruction of deeds courts will always incline

to interpret the language as a covenant rather than as of a gross sum for permanent alimony, to be paid by

a condition. Board Ed., etc., v. Trustees, etc., 63 Ill. the husband out of his estate, if it was possessed of the

204. There is nothing in the form of the language fact that the wife had contracted to pay one-half or

here employed to indicate that it was intended the any other portion of what she should be awarded to her solicitor? Such contracts are against public policy words "upon condition" do not occur, and there are

conveyance was upon a condition subsequent. The for another reason. Public policy is interested in

no other words of equivalent meaning. There is no maintaining the family relation. The interests of so

clause providing that the grantor shall re-enter, in any ciety require that those relations shall not be lightly event; and these are the usual indications of an insevered; that families shall not be broken up for in

tent to create a condition subsequent. Shep. Touch. adequate causes or from unworthy motives, and that (6th ed.) 118. The rule is, a court of equity will never where differences have arisen which threaten disrup- I lend its aid to divest an estate for a breach of a condition, public welfare and the good of society demands tion subsequent. 4 Kent Comm. (8th ed.) 134, 130. But a reconciliation, if practicable or possible. Contracts

where a compensation can be made in money, courts like the one in question tend directly to prevent such of equity will relieve against such forfeitures, and reconciliation, and if legal and valid, tend directly to compel the party to accept a reasonable compensation bring around alienation of husband and wife by offering a strong inducement, amounting to a premium, to

in money. 2 Story Eq. Jur., $ 1315 et seq. The lan

guage here is reasonably susceptible of the construction induce and advise the dissolution of the marriage ties

that the parties only intended to secure the payment as a method of obtaining relief from the real or fan

of the $200 during the life-time of the grantor, and it cied grievances, which otherwise would pass unno

is clear that much was intended. That was the only ticed. Mich. Sup. Ct., July 1, 1886. Jordan v. Wester- pecuniary interest the grantor had in the question of mun. Opinion by Champlin, J.

whether the land should be alienated or not during CONTRACT

- PROVISION for ARBITRATION - DAM- his life-time. If alienated, the grantee might not be AGES — PROFITS.-(1) A provision in a buildiiig con- able to pay the $200 per annum; but if it could not be tract that disputes with respect to the value of extra alienated during his life-time, it was ample security work, or of work omitted by directions of the owner, for the payment of the $200. The duty to pay the should be determined by arbitrators, is no bar to an $200 and the inability to alienate go together. It acaction by the contractor for damages for a breach of complishes the same result, does injustice to no one, contract by the owner in refusing to allow the con- and is more in harmony with the general rules governtractor to do the work contracted for, and letting the ing the alienation of real property to hold that the work to another. (2) On the breach of an executory grantor here retained a lien on this land for the paycontract for erecting a building the contractor may ment of the $200 annually, on the first day of March, recover as damages the profits he would have realized during his life-time. The appellants took whatever if he had been allowed to complete the contract, and rights they may have, with notice by the record of the difference between the cost of executing the con- the deed of all its reservations in favor of the appellee tract and the contract price furnishes the means of es- (Willis v. Gay, 48 Tex. 463; S. C., 26 Am. Rep. 328) timating such damages. N. J. Sup. Ct., June, 1886, and so theirs are subordinate to his. Ill. Sup. Ct., Bryd v. Meighan. Opinion by Depue, J.

May 15, 1886. Gallaher v. Herbert. Opinion by Schol-
ILLEGALMARGINS.--In an action to recover

field, J.
for money advanced and services performed by a bro. CRIMINAL LAW
ker for a customer, in sales of stocks, etc., bought on MADE BY VICTIM AFTER THE ACT-EXCEPTION TO RULE
margins, it is competent to show that though the con- -YOUTH OF VICTIM.-Iu prosecutions for rape, the

tract is apparently legal, it is in fact a mere guise un- rule of evidence admitting the fact that complaint was · der which a gambling transaction may be conducted, made by the victim, and excluding the complaint and a recovery may thus be defeated. Grizewood v. itself, ought to yield in cases where such victim is of Blane, 11 C. B. 536;

Benj. Sales, $ 542; Irwin v. Wil tender years, and her silence is the direct consequence liar, 110 V. S. 499. The plaintiffs seem to assume that of fears of chastisement induced by threats of the deif the plaintiffs acted merely as defendant's broker in fendant. The reason of the rule admitting the fact negotiating the contracts, and as they are suing, not that complaint was made, and excluding the comou the contracts themselves, but for services per- | plaint itself, is founded, aside from its being hearsay, formed and money advanced for the defendant, they by those courts which do not treat it as part of the do not stand in the same position as if seeking to en- res gestae, upon the danger of allowing a designing foforce the original agreement. But as laid down in male to corroborate her testimony by statements Irwin v. Williar, 110 U. S. 499: “Where a broker is made by herself to third persons, and the difficulty of privy to a wagering contract, and brings the parties disproving the principal fact by the accused. But together for the very purpose of entering into an ille- some courts hold that the evidence that complaint 'gal agreement, he is prrticeps criminis, and cannot was made is received merely as corroborative of the recover for services rendered or losses incurred by statement of the prosecutrix, but as a part of the res



[ocr errors][ocr errors][merged small][merged small][merged small]
[ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors]




[ocr errors][merged small][ocr errors][merged small][ocr errors][ocr errors][ocr errors][merged small][merged small][merged small][ocr errors]

Desta, where they are made immediately after the out- which it is claimed that the land was dedicated would
rage complained of, and this is the holding of our own manifestly be promoted. Lennig v. Ocean City Asso-
court. Lambert v. People, 29 Mich. 71; People v. ciation. Opinion by the Chancellor.
Brown, 53 id. 533. If the complaint, made imme-

MARRIAGE SEPARATE ESTATE LIABILITY FOR diately after the occurrence constitutes a part of the

HUSBAND'S DEBTS.--The separate estate of the wife res gestee, it would seem that not only the fact that

cannot be charged with the debts of the husband, complaint was made, but the complaint made, should

even though the money be advanced upon av express be admitted. Besides the reason upon which the rule promise, in writing, by her to pay out of a particular of exclusion is based, namely, the difficulty of dis- fund. This is now the provision of our statute, and it proving the accusation, no longer exists in this State,

was the law in this State before the legislature so dewhere the accused is permitted to testify in his own

clared. Perkins v. Elliott, 7 C. E. Green, 127; S.C. on behall. Mich. Sup. Ct., July 1, 1886. People v. Gage. I appeal, 8 id. 526; Peake v. La Baw, 6 id. 269; ArmOpinion by Champlin, J.

strong v. Ross, 5 id. 109; Van Kirk v. Skillman, 5 INJUNCTION-EASEMENT IN CAMP-MEETING GROUND.

Vroom, 109. N. J. Ct. of Chan., June 3, 1886. Law-Defendants laid out a large tract of land in lots, and

rence v. Warwick. Opinion by Bird, V. C. made a map thereof, exhibiting a plot marked "Camp- SUPPLEMENTARY Ground,” whereon from time to time camp-meetings ANOTHER STATE.- Proceedings supplementary to exeand other religious assemblages were held. The ob

cution not only perform the office of a creditor's bill, ject of the enterprise of the association (which was off but have a somewhat enlarged scope and purpose. a religious character, and under the auspices of the Flint v. Wobb, 25 Minu. 263; Heroy v. Gibson, 10 Methodist denomination), was to furnish to-religious Bosw. 591. The court or judge before whom they are people a place of summer resort and residence, where pending has as much power to apply the debtor's they could have religious advantages and be sur- property to satisfy the creditor's demand as the court rounded by religious influences. The plot contained a of chancery had upon a creditor's bill, and can enforce large building in the centre, called "The Audito- such application in a similar manner. To reach, for rium," where the most of the meetings convened. The that purpose, real estate lying out of the jurisdiction, complainant bought a lot frouting this plot. Different the court of chancery could appoiut a receiver, and parts of the plot were annually leased by defendants compel the debtor to execute to him such conveyances to persons attending camp-meotings, who erected as would be effectual to pass the real estate according tents thereon, to live in, which remained during the tatbe law of the State or country where it was situasummer and were then removed. Held, that the ted Mitchell v. Burch, 2 Paige, 606; Bailey v. Ryder, Court would not, at complainant's instance, restrain 10 N. Y. 363. This it could do by virtue and in the defendants from leasing any part of the plot to per- exercise of its jurisdiction over the person of the 6018 to erect thereon small cottages for greater con- debtor, and it did not thereby assume any power over venience and comfort while attending the camp meet- the real estate itself. The debtor, in supplementary ings, and that complainant is entitled to no advan- proceedings, may, in a similar manner, be compelled tage from a map, whereon the plot is marked Park,

to make appnication of real estate beyond the jurisdicwhich map was made and filed after he eight his tion. Sup. Ct, Minn., May 26, 1886. Towne v. Goldproperty. It appears very clearly that the intention. I bun vental pollon by Gilfillan, C. J. of the association has been at all times to reserve the plot in question, for the purposes just indicated, for camp-meetings and other religious and philanthropio NEW BOOKS AND NEW EDITIONS. assemblies, and that while it intended to devote the plot to those purposes, it never intended to dedicate JONES' CONSTRUCTION OF COMMERCIAL Contracts. it to general public use as a park or open space

for ventilation, prospect or ornament. If the map be re

A treatise on the construction and interpretation of commergarded as evidence of dedication of the plot to public

cial and trade contracts. By Dwight Owen Jones, of the use, that use is special for holding camp-meetings

New York Bar, Baker, Voorhis & Co. New York, 1886.
there. The complainant does not allege that the de- Pp. xl, 554.
fendants propose to divert it from that use, but he This is av admirably executed work, and deserves,
complains that in such use the defendants intend to and no doubt will win its way to the front rank of
use it in a manner different from that in which such books which are absolutely needed in a working law-
grounds were generally used at the time when he yer's library. The subject of contracts, covering as
bought his lot. At that time the persons who re- it does, most of the transactions of everyday business
sorted to that place to reside upon the ground dur-life, is one of the most important subjects in the law,
ing the camp-meeting season, dwelt in tents which and one which the lawyer is constantly upon for ad-
were erected there. It is now proposed, for the greater vice and counsel. The ten chapters on Parol Evidence,
convenience of such persons as wish to attend the its admissibility and effect as an aid to construction,
meetings, to substitute for tents small cottages to be will, if consulted, save much time and labor, and this
built by the owners upon the camp-ground, upon land feature alone will make the book a desiderutum.
to be leased to them by the association. The objec-
tion made by the complainant to this plan is, that such
buildings will remain permanently upon the ground

while the tents would not be erected until at or near
the beginning of the season, and would be removed at

or near the end thereof. But the dedication of the
land for camp-meeting purposes would not in itself Editor of the Albany Law Journal:
preclude the use of it in any particular way

Dear Sir-Solinus, duke of Ephesus, remarked as consistent with the object. It surely would his eyes fell upon the two Dromios: “One of these admit of the use of it in the most convenient men is genius to the other; * which is the and desirable way, and the complainant

would natural man and which the spirit? Who deciphers have no ground of complaint so long as it was not di

them?" And with like astonishment, I ask concernverted from the use to which it was devoted by the ing the case of Curter v. Wallace, reported once in 32 dedication. By the plan proposed, the purposes to Hun, 384, and again in 35 Hun, 189, which is the nat

[ocr errors]


[ocr errors]

ural case and which the spirit? Who deciphers ever known the like. For here we have a foreignerthem?

in the sense that he resides without our jurisdiction, As first reported the judgment went for the plain- refusing to give evideuce as agreed, and he evidently tiff on the opinion of Barker, J., in which Smith and has been detained in this country for a long time, at Hardin, JJ., concurred. This was iú March, 1884, at the request of the plaintiffs, and so has been prevented the General Term of the fourth department. As last from earning, he states, £15 a month. This is his reported, the case was decided for the defendant at story, and I have here no means of trying such a questhe General Term in the fifth department in January, tion, nor do I intend to do so. It I thought for a mo 1885, on the opinion of Lewis, J., in which Barker and ment (addressing the jury), gentlemen, that this man Haight, JJ., concurred. Here are two appeals from was refusing to give his evidence for any contemptuthe same report of the same referee, and two conflict- ous reasons I should not hesitate, but would follow the ing decisions, while Justice Barker has, in Wall street usual course in such cases, and commit him. But I do parlance, a “Straddle" on the case. “Who deciphers not think that he is so acting, and under all the pecuthem?

liar circumstances of this case, I decline to imprison

G. H. C. this man unless counsel can give me some authority LIBERTY, July 17, 1886.

upon which I can act. As counsel could not oito any

authority, the witness escaped. — London Law Times. COURT OF APPEALS DECISIONS.

It will be remembered that several letters recently

appeared in these columns under the heading, “KissHE following decisions were handed down Tues. ing the Book.” They arose from the circumstance

that a medical witness, when giving evidence in the day, July 27, 1886:

Divorce Court, objected to kiss the book presentod to Judgment affirmed with costs-People ex rel. Mayor him, on the grounds, that as the two previous witof New York, appellants, v. Dennis McCarthy, et al.,

nesses were common prostitutes, he might incur a risk resp'dts. - Judgment affirmed without costs-John

of infection. Simultaneously, several medical witA. Ricker, executor, etc., respondent, v. St. Luke's

nesses in different parts of the country made a similar hospital, appellaut.-Judgment affirmed with costs

objection, the difficulty in each case being eventually -Delia E. Pittman v. Henry Johnson, executor, etc. - Judgment affirmed with costs–Margaret Ken: got over by the witness being permitted to kiss the

open book. Mr. John Patterson, J. P., of Liverpool, nedy, administratrix, etc., appellant, v. Manhattan

has recently addressed a letter to one of the local Ry, Co., respondent.

daily papers, in which he calls attention to the act of Adjourned to meet in the Capitol in Albany the first

Parliament which is still in force, and which ruus as
Monday in October.

follows: "1& 2 Vict., ch. 103, 14th Aug. 1838. Be it
declared and enacted. That in all cases in which an

oath may lawfully be and shall have been adminis-

tered to any person, either as a juryman, or a witness

or a deponent in any proceeding, civil or criminal, in The Tribune powerfully asks, " When, oh, when will any court of law or equity iu the Uuited Kingdom, or decent citizens put their shoulders to the wheel and on appointment to any office, employment, or on any sweep away iú a body these corrupt municipal occasion whatever, such person is bound by the oath leeches?!

administered, provided the same shall have beeu adNot only are railway conductors and brakemen ex- ministered in such form and with such ceremonies as pected to pronounce the English language distinctiy, such person may declare to be binding; and every but iv a recent Marylavd case it was held that "they such person, in case of willful false swearing, may be are presumed and required to have the ordinary convicted of the crime of perjury in the same manner senses, especially in so responsible a condition as the as if the oath had been administered in the form and couductor of a railroad train. They certainly are pre.

with the ceremouies most commonly adopted.” Mr. sumed and required to have the ordinary eye-sight, so

Patterson contends from this that any Presbyteriaus that they can distinguish between a man in the vigor may claim to be sworn as their coreligionists in Scotof his life, and a woman in a state of pregnancy, and

land and Ireland are, with uplifted hand. We have accompanied by young children."

taken some paius to ascertain the law upon this poiute

and find that not ovly is this true, but also that any On Monday, in the course of the trial of an action be. native of Scotland or other country where the oath is fore Mr.Justice Field, a witness, who spoke with a very administered with uplifted hand may claim to be strong American accent, declined to be sworn until he sworn in a similar manner. Aud moreover any perwas paid for having been kept here in Eugland awaiting son who declared that that is the method of taking the this trial for two and a-half years. The learned judge oath which he considers binding may claim to be asked, “What sum is it you claim ?” Witness—“£450,

sworn, be his or her nationality or religion what it judge.” Mr. Justice Field.-" Will you give your evi- may. All that is required by the court is that an oath dence if the plaintiff's solicitors undertake to pay you shall be taken before it. It will thus be seen that all such a sum as the court shall determine to be fair and

those witnesses who object to the kissing of the same reasonable?" Witness~"I guess that depends on book can avoid doing so, provided they declare that what the court decides." A solicitor's clerk was here by holding up the right hand while the words of the called and proved the service. The witness, address- oath are repeated they consider themselves duly ing the clerk in indignant tones, said: “Is that the

Whether this may lead to the universal adopway you serve suvpenas in a British court? Coming | tion of the Scotch oath remains to be seen, but there up and shoving a bit of blue paper into my face, the can be no second opinion as to its being preferable to contents of which I don't know, and which I have not the present mode adopted in England. Even if the read. Do you wear no badge to show your authority? | risk of iufection were remote, the successive handling Why, Mr. Judge, I didn't know who he was. Didn't and kissing the book by a number of witnesses is, to know him from a row of beans!” After some discus- say the least, an uncleanly practice. Should any obsion, Mr. Justice Field retired to consult another jection be taken by the court to a wholesale preferjudge. On his return he said: “This is a most excep- ence for the uplifted hand, perhaps each witness will tional case; neither my learned brother nor I have be permitted to bring his own testament.-Lancet.

[ocr errors][ocr errors][ocr errors]




The Chicago Leya? Neues publishes an answer by tvey cannot possibly forever to facilitalics are our

[merged small][ocr errors][merged small][merged small][ocr errors][ocr errors]

setts Code prescribe? * Every new code,
Albany Law
Law Journal. . whenever adopted, in my opinion, ought to have a

special enactment contained in it, requiring the judges ALBANY, AUGUST 7, 1886.

to recede from the words of the law whenever they lead to injustice or great inconvenience ; for it seems pre

sumptuous in any body of men to attempt to reguCURRENT TOPICS.

late by absolute terms future affairs and rights re

specting things, the existence and relations of which HE Mr. E. T. Merrick, of New Orleans, to the cir

It seems to us incorrect to talk about a prescular of the committee of the American Bar Associ- ent “homogeneous system,” for not only do the ation on the delay and uncertainty of judicial ad

various States differ widely between one and anministration. Mr. Merrick is opposed to codifica- other, but they are inconsistent and varying with tion; not much in favor of juries; and is in favor themselves. The italicized recommendation seems of dividing the Supreme Court into three sections to us the worst we ever heard. Would the writer of five each. On all points but the last we differ

or any one else dream of making such a recomfrom him. We agree with him however that nine mendation in reference to a statute? Then why in jurors should pronounce the verdict in civil casesrespect to a code? And what about the boasted On codification he says: “But according to my

doctrine of strere decisis ? reading and observation the transition from the elastic system of principles, resting on pure reason, to & system of positive law, is marked at first by a Appended to the Forty-ninth Annual Report of liberal interpretation corresponding more to the the managers of the State Lunatic Asylum at Utica, equity of the older system. But little by little, for the year 1885, is a remarkably interesting paper from veneration or some other motive or cause, the on “Insanity: its frequency, and some of its prewords of the statute law are considered of more sanc- ventable causes." We do not discover the authortity, and come to be more rigorously executed, until at ship, but infer that it is Doctor Gray's. The aulast it is thought that it is of more importance that thor gives the following case interesting to lawyers: the law should be strictly observed than that equity “A lawyer telegraphed me from Syracuse that he should be done. You tie your timid or least learned would be at the asylum at a certain hour. I was judges with toughened withes, which they neither absent in the city when the telegram came, and have the wisdom to untie nor courage to break. when he called, being told this, he left. Two days How often have the judges felt constrained to en- afterward I got a telegram from him at Albany say. force statutory laws, against which their sense of | ing he would call again at a given hour, and rejustice revolted? Ita lex scripta est is a broad shield questing me to have Governor Seymour and Julge for indolent and unlearned men. It seems to me Denio meet him. He came at the appointed hour, that during the present age of investigation and in- and said to me, “I called yesterday to consult you vention, in which new industries are developed and because I have for some time past felt so strangely new discoveries are being made almost daily, and that I thought I might be out of my mind, but I immensely numerous and valuable objects are have just been to Albany and argued an important brought within the domain of jurisprudence for ad- case before the Court of Appeals, and feel satisfied judication, it is much better to leave it to wise that I do not need advice.' I saw from his manner judges to select from the great storehouse of prin- and speech that he was very insane, and said to him, ciples which admit of an infinitude of exceptions, 'you seem to me to be very insane now. He said, such as are fitting the new subjects brought for 'well, perhaps I am excited. I have been at times their determination, than to leave it to less experi- irrational, I know, but for the most part I am raenced men who happen to have the power as legis- tional.' Soon afterward he was brought to the asy. lators to freeze principles into rigidity. But the lum, and declared himself to be president of the important reason why the great body of our com- United States, and finally said that he was the ruler mon law should not, in my opinion, be reduced to of the Universe. Judge Grover, of the Court of codes, is that it would ultimately produce a greater Appeals, said to me that he had heard his ·

'argudivergence in the jurisprudence of the different ment,' which was partly a fourth of July oration, States than now exists. At present we have the judges and partly an attack on the courts, and that he was of all our States building up one homogeneous system. an insane man. Rarely indeed at this point will efThe opinions of the courts of every State are exert- forts to reason with them change their ideas. No ing an influence, more or less, on the courts of matter what philosophy may teach as to consciousevery other State on all questions arising under the ness and recognition of surroundings, the majority common law, and hence the uniformity of the law of men and women in a state of insanity are inclined as administered everywhere. This condition of to believe what they see and feel and think in ordithings would cease to exist so soon as each State nary life.” The writer ranks the use of alcohol and should reduce its laws to a code. Instead of in- opium by adults, and tobacco and over-study among quiring what principle of law controls this case, it the young, as the chief promoters of insanity. He would be what does the New York or Massachu- thinks that " religion or religious fervor does not

[merged small][ocr errors]
[merged small][ocr errors][merged small]
« AnteriorContinuar »