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CONVENTION OF JUDGES TO REVISE TIIE
GENERAL RULES OF PRACTICE.
trial and argument the city of New York on the fall opening of the courts is as follows: Supreme Court, General Term, 199 causes; trial term, 2,717; Special Term, 845; Superior Court, trial term, 950; Common Pleas, trial term, 804. Total, 4,625. This does not include the general terms of the Superior Court and Common Pleas.
HELD AT THE CAPITOL AT ALBANY ON SEPTEMBER 29, 1880 PURSUANT TO AN ADJOURNMENT
FROM JUNE 1, 1880.
M. B. Wright, county judge of Iroquois county, died Tuesday night, September 21, from the effects of an operation performed in the surgical hospital at Indianapolis. This case bears a singular resemblance to that of Judge Manning, of Alabama. Our lively friend, Mr. Bradwell, of the Chicago Legal News, complains of Judge Harker for holding that a woman cannot be a master in chancery! But it is too bad in the News to insist that Chief Justice Taney held, in the Dred Scott case, that a colored slave had no rights which anybody was bound to respect.
Present - Hon. Judges Mullin, Talcott, Smith, Learned, Sheldon and Daly.
On motion of Judge Learned, Judge Mullin was appointed Chairman.
On motion of Judge Smith, Judge Learned was appointed Secretary.
On motion of Judge Smith it was resolved that the Conveution adjourn to meet at the Capitol at Albany on December 15, 1880, at 11 A. M., and that the secretary be requested to write to the several judges, required by section 17 of the Code of Civil Procedure, to meet and establish rules of practice, notifying them of such adjournment, calling their attention to the fact that three unsuccessful efforts to secure the attendance of a sufficient number to constitute a quorum have been made, and urging upon them the necessity of altering and revising the existing rules so that they may conform to the practice established by the new Code.
That he also request each of the said judges to inform him before December 10th as to whether or not ho will be present at the meeting to be held on December 15th.
Judge Daly seconded the motion, which adopted.
WM. L. LEARNED,
RENDER UNTO CÆSAR THE THINGS THAT ARE CASAR'S.— In our last issue we reproduced from the columns of the Luzerne Legal Register an exceptionally pointed and readable article, entitled “Drinks, Drinkers, and Drinking," and naturally gave credit to that journal. We have since ascertained that the article in question is from the pen of R. V. Rogers, Jr., in the ALBANY LAW JOURNAL. We presume our friend of the Legal Register neglected to give the usual credit, or omitted it by mistake, and therefore led us astray. This is to make amends.-Ohio Law Journal.
NEW YORK COURT OF APPEALS DECISIONS.
THE.collowing decisions were handed down Tuesday,
Oct. 51880: Judgment affirmed with costs Ward v. Warren. Judgment affirmed -- Henze v. The People. Judgment reversed and new trial granted, costs to abide event- Greenwood v. Schumaker; Eggleston v. President, etc., of the Columbia Turnpike Company. Order affirmed with costs – Belmont V. Cornen; Walker v. Walker. Motion denied with costs Benedict & Burnham Jifg. Co. v. Thayer; People ex rel. Thayer v. Boue.-- Orders of General and Special Term reversed with costs, and the order of removal reversed and annulled - People ex rel. Campbell v. Campbell Order of General Term reversed, and judgment on report of referee affirmed with costs IIoward v. Johnson. - Judgment of General Term modified so that it shail direct a reversal of the Special Term, and that the writ be quashed without costs - People ex rel. Weeks v. Board of Supervisors of Queens County. Motion for reargument denied, with ten dollars costs - Fisher v. Raab.
During the week beginning October 11, the city of Baltimore propose to celebrate the 150th anniversary of its founding. There is to be a grand procession, in two divisions, the first “illustrating the progress and development of the city from 1730 to 1812, the second from 1812 to 1880.” We are glad to observe that the progress in the administration of justice is to be illustrated. The programme of the first division is as follows: “Two heralds in English costumo of 1730. Lords and baronets of 1730 on horseb the trappings, etc., of the horses and the sashes being the colors of Maryland - orange and black. An Indian chief (to represent the chief from whom tho ground now occupied by Baltimore was purchased) and his followers. Indian life, represented by a scene of Indians drawn in a wagon. Capt. John Smith and thirteen men in a boat on wheels. Smith was the first man who cast his eye on what is now Baltimore, and explored the Chesapeake. Settlers in a wagon, among the representations being the log cabin and tho outfit of the settlers in colonial times. Representation of the old courthouse, the first one built for Baltimore town, which formerly stood on a bluff forty feet high, on Monument Square, where the Battle Monument now stands; the stock and pillory will also bo represented in this tableau. An old watch-box, with a squad of watchmen in the olden time in old-fashioned caps and overcoats and using rattles. Continental fifer and drummers. Military camp of the revolutionary war. A company of Maryland minute men, kuown as the Maryland Line, commanded by a personification of Baron DeKalb.; it was thought proper to introduce a representative of the latter in the procession, which will be in charge of the German committee, as DeKalb was a German and lost his life at the head of the Maryland Line. Trade and commerce of Baltimore, represented by a clipper in full rig, on the deck being tobacco, wool, grain and other Maryland products. A representation of the Star-Spangled Banner, consisting of a collection of shells and bombs in pyramid form, the topmost being a bursted shell, out of which emerges the Goddess of Liberty. A representation of the Battle Monument."
IE American Law Review for October contains tho
third part of Mr. Jones' contribution on the Law of Negotiable Securities — Pledge of Negotiablo Paper. Also copious extracts from the address of Hon. Benjamin H. Bristow, president of the American Bar Association, delivered at the late meeting. We have received the first number of the Colorado Law Reporter,' a new periodical, to be published at Denver, and to be issued monthly in 8vo. of forty-eight pages, and to contain opinions in full, more especially those of local interest, and digests and notes of recent cases. The number before us is well printed, and the contents are of interest. The number of causes for
The Albany Law Journal.
become binding in law by the mere private contract of the parties, without going before any one, as a
magistrate or minister, is a matter for legislation, ALBANY, OCTOBER 16, 1880.
and not for judicial consideration." We believe the statutes of the two States do not essentially differ.
Both provide for ceremonial marriage, but neither CURRENT TOPICS.
enacts that the absence of such ceremony shall
render the marriage void. THE different views of New York and Massachusetts as to the essentials of a contract of mar
The Pennsylvania Supreme Court have, so to riage are illustrated in two very recent cases in
speak, sat down on Judge Patterson, of the Quarter which the facts strain the different theories to their
Sessions of Lancaster, in the matter of Messrs. utmost. In the New York case, in the Court of
Steinman and Ilensel, attorneys and editors of the Appeals, the administration and succession of the
Lancaster Intelligencer newspaper.
It will be reestate of a New York merchant of some wealth was disputed on the strength of an oral contract of
membered that the judge summarily expelled these
gentlemen from the bar of his court for publishing marriage entered into before witnesses by the de
a libellous article in their newspaper in reference to ceased, first in London, next on a ship crossing the channel, and third in Paris. Neither by French law
his judicial conduct. We urged pretty stoutly at
the time that Judge Patterson had exceeded his nor by English does such a contract constitute a valid marriage. Whether it does on board a vessel on the
judicial power, and that an attorney could only be
disbarred for misconduct in his professional capacity high seas is a delicate question into whose solution many elements would enter. One of the most im
or affecting his professional character. The Supreme
Court have taken this view, and have vacated Judge portant would be the nationality of the vessel, and
Patterson's order, and restored the attorneys to the this was not in evidence before the court, nor does
bar. The court also adopt the view that a libel, to it appear that the marriage law in France was proved,
amount to a breach of professional duty, must have a singular, not to say unaccountable oversight. The
been designed to acquire an influence over the judge court, therefore, declining to take cognizance of a foreign law unless it was proved as an issue of fact, strumentality of popular prejudice — a motive which
in the exercise of his judicial functions by the inrendered its decision on the presumption that the
is not alleged to have existed in this case. Now marriage contract on board the vessel and in France
we have Judge Patterson set straight, we think it was made under law like that of New York, and
would be in order for Messrs. Steinman and Hensel declared the marriage valid and the issue legitimate.
to set themselves straight by a public apology to the In the Massachusetts case (Commonwealth v. Munson, 127 Mass. 459), the defendant
, at a public religious judge for a publication which they do not under
take to justify, and which was, therefore, clearly meeting called by him, at a chapel, in Worcester,
libellous. This is due to themselves as gentlemen Mass., at which about fifty were present, but at which no magistrate nor clergyman was present,
and lawyers, and to the judge as a public function
ary. By the way, the county of Lancaster has to gave out a text, talked awhile about “
foot the costs of the proceeding. We shall publish read Matt. xx, 1-5; then a woman came forward and read from the 6th to the 10th verse of the same
the opinion in full. chapter; they then joined hands and the defendant said: “In the presence of God and of these wit- We are pleased to learn that this winter the bar nesses, I now take this woman whom I hold by the of New York city are to have the benefit of a course right hand to be my lawful wedded wife, to love, to of lectures on the Roman Law, by Adolphe L. Pincoff, cherish, till the coming of our Lord Jesus Christ, of the University of Leyden. Professor Pincoff or till death do us part;" the woman then said: has received the degree of Doctor of Civil and “And I now take this man to be my lawfully wedded Modern Law in its highest form — summa cum laude, husband, to love, reverence and obey him until the and is a member of the bar of Rotterdam, his native Lord himself shall descend from Heaven with a city. Professor Pincoff will deliver his course in shout and the voice of the archangel and with English, of which he is a complete and elegant the trump of God, or till death shall us sever;" master. The civil law is receiving close attention in and the parties then bowed, and the defendant England, where it has many disciples among the more offered prayer; neither party was a Friend nor scholarly-inclined members of the bar. There is no Quaker, and the ceremony was not conformable doubt that in its relations as a subject of comparato the usage of any religious sect; the rite was tive jurisprudence the civil law is of practical use performed in good faith and followed by cohab- to lawyers; nor, that in its historical aspects, it is itation. Held, no marriage. The learned chief of the first importance to the science of general justice, Gray, at the close of an elaborate opinion, jurisprudence. It is the only system of law, which, said: “Whether it is wise and expedient so to thus far, may be traced from its most primitive change the law of Massachusetts as to allow an act, forms to its maturest development- the birth and which so deeply affects the relations and the rights death of an actual juridical system — and to it we of the contracting parties and their offspring, to look for some of the most important legal phe
Vol. 22.- No. 16.
Its study has been too long neglected in gether by an absurd custom, and compelled, for their America, but only for a time. Just now there are own profit, to make as much as they can out of their many indications of a revival, and the universities unhappy clients." are beginning to take the subject up in something more than its literary phase — as a science. Dr.
This question of the cost of litigation arises colPincoff's lectures are highly recommended by Pro- | laterally on the consideration of the claim of Jr. fessor Dwight, of the Columbia College Law School. Doutre, Q. C., upon the Dominion Government, for
services as counsel before the Fisheries Commission, A leading topic of discussion in the London legal
which services he values at $50 a day, the aggregate
The Canada Leand lay newspapers, at the present time, is the cost being some $20,000, we believe. of litigation. A correspondent of the Times attrib- 1 gal News informs us that “Mr. Doutre deposed that utes the great cost of litigation to the law of evi- in the test case of Angers v. Queen Ins. Co. he redence, and the necessity of calling and keeping in
ceived $500 in fees, although he spent but two days attendance a crowd of witnesses. He says: "In
in court. In another case, in which he obtained a former days causes were tried and witnesses exam
$12,000 verdict, he was three days in court, and reined on much stricter lines than they are now.
ceived $1,800 in fees besides the taxed costs. In late years cross-examination to the credit of a wit
the case of Grant v. Beaudry, known as the Orange ness' has become an insidious cause of the protrac- trial, he was paid $10 per hour. Mr. F. X. Archtion of trials. It has always been a rule in England ambault, of Montreal, stated that in the case of Wilnot to admit secondary evidence of any fact if pri
son v. Citizens' Ins. Co, the amount claimed in the mary evidence can be obtained. The attendance of
suit was $2,000, but he received $1,000 as a retainer,
besides other fees. In the case of Rolland v. Citiwitnesses and the preparation of briefs for counsel and the fees of the latter are all regulated by these
zens' Ins. Co., his retainer was $2,000. In three exigencies of the law of evidence. There appear capias cases which were presented as one, and which to be two remedies for this evil: (1) A return to the
lasted about a month, he received $2,800 altogether. old system of winnowing out each case by a process
In the criminal case of a woman charged with stealof pleading and extracting out one or two precise ing some silks, he received a retainer of $1,500. questions of fact which will constitute the issues to
This client was merely admitted to bail. To defend be tried, and to confine the evidence strictly to
a criminal case, which would not occupy more than those questions; or (2) to relax the law of evidence
two days, he had received $2,000.” These amounts and to permit the judges and juries to consider doc- seem large, no doubt, but they are by no means unuments and other matters of evidence, although precedented in this country. There are a number not constituting primary evidence; and to modify of counsel in the city of New York who command the practice of the courts so as to allow of trials $250 a day. There would seem to be no reason being postponed for such further evidence on con- why a British lawyer should not be paid as much as troverted points as the judge may think necessary.
a British physician, both standing equal in their reThe first alternative remedy would no doubt be a
spective professions; and a British jury recently retrograde movement, although probably an im- gave Dr. Phillips a verdict of £10,000 dainages for provement on the present state of things. I believe two years' loss of business. that the second remedy is the only one that could be successfully applied.” He recommends the adop
A correspondent writes us: “Referring to the tion of the French system upon the latter point.
comments of some of your correspondents upon the Much more conclusive is the reason assigned by an
use of bad Englislı by judges and reporters, is there other writer, who says: “Another great reason for
any possible justification for the use of the word the increase of costs nowadays is to be found in the
saloonist,' in the head-note of Thomas v. People, division of the legal profession into the two branches
39 Mich. 309? “Saloon' is bad enough as a synof counsel and solicitors. Looked at by the light onym for dram-shop, but ‘saloonist! Surely the of reason alone, there is no logical argument whatever in support of that division. What can be more
reporter must have risen from a perusal of Artemas
Ward, to indite that head-note." Our correspondabsurd than compelling a suitor to filter his case through the brains of one man into the ears of an
ent is probably right. “Saloon” may be an Ameriother ? Even if a solicitor of talent and honesty canism, but it has grown into very general use.
" Baloonwishes to act personally for his clients in those ist," however, probably commenced in the same
“Saloonist” is undoubtedly a coinage. courts where he has equal audience he can only do
way. so at a loss; for the authorized scales of costs are so arranged as to discourage this attempt at independSuch a solicitor can get but a wretched fee
NOTES OF CASES. for his own work, while, if he employs counsel, he can pay him well
, and also run up a neat little bill I Shepard v: "right, New York Supreme Court, for himself. We doubt not but that a time will June, 1880, it was held by Van Vorst, J., that a come when, all this old-world nonsense being swept judgment recovered in Canada against a person reaway, the lawyer will be one man complete in him- siding in this State, without the service of process self, and not, as at present, two people chained to- in Canada or appearance by the defendant, will not
support an action in this State, although the de- “According to the testimony, this appellant and fendant may have been a citizen of Canada, and another, on a quiet Sunday morning, engaged in a although a copy of the bill of complaint was served quiet game of cards, in which fortune seems not to on the defendant in this State, which according to have favored the defendant. One of the defendthe laws of Canada gave the court of that country ant's witnesses who, it seems, was not present at the jurisdiction to render judgment there. The court time, says the first time he saw them, they (the playobserved: “But the learned counsel for the plaintiff ers) put up $1.50. The defendant seems to have urges that the service upon the defendant at Chau- been called Lon, which we suppose to be an abbretauqua county of a copy of the bill of complaint, viation for Alonzo, the Christian name of the deunder the laws of Canada, gave the court jurisdic- fendant; his adversary seems to have been called tion of the person of the defendant. I cannot Tobe; the witness, after mentioning the wager of a agree with him in such contention. No sovereignty $1.50, says: “Tobe won Lon's money; Lon put up can extend its powers beyond its own territorial his saddle; Tobe won that also, and Lon put up his limits to subject either person or property to its | horse, and Tobe won him.' There seems to be some judicial decision. Every exercise of authority of discrepancy between the witnesses as to whether the this sort, beyond this limit, is a nullity. Story on defendant really staked the horse on the game or Conflict of the Laws, $ 539. The jurisdiction of whether he did not sell the horse to Tobe for $25 in State courts is limited by State lines. Ewer v. Cof- money and lost that instead of the horse; be this as fin, 1 Cush. 23. This last case states that upon it may, whether he staked the horse or the money, principle it is difficult to see how an order of a Tobe was the winner, either of the horse or the $25.” court, served upon a party out of the State in which “If this had been a civil action for the recovery of it is issued, can have any greater effect than knowl
the horse, the argument of counsel and the authoriedge brought home to the party in any other way.' ties cited in support thereof would have been more A citizen of one State or country cannot be com- appropriate. As it is, however, there was evidence pelled to go into another State or country to litigate going to show that the horse was sold by the dea civil action by means of process served in his own fendant and delivered to Green, the alleged owner. State or country. And a judgment obtained upon This was an issue in the case and submitted to the such service, where no appearance is made by the jury for their determination. The jury having person so served, can impose no personal liability determined that issue against the defendant, and which will be recognized beyond the State in which there being testimony to support it, we are of opinthe action originated. Freeman on Judgments, SS | ion the conviction was proper, even though the tes564, 567. In Holmes v. Holmes, 4 Lans. 392, it is timony showed that the defendant subsequently to the held that in order that the court have jurisdiction purchase and sale, did lose the money he received of the person of the defendant, it is necessary that for the horse at cards with the purchaser.” the defendant be served with the process of the court, or voluntarily appear in the action, and that such service of process can only be made within the
In Hebblethwaithe v. Hepworth, Illinois Supreme territorial jurisdiction of the court.' Dunn v. Dunn, Court, Sept. 25, 1850, 13 Chic. Leg. News, 19, it 4 Paige, 423; Ex parte Green v. Onondaga Com.
was held that a valid marriage is not contracted by Pleas, 10 Wend. 592; Folger v. Columbia Ins. Co.,
mere verba de futuro followed by cohabitation. The 99 Mass. 267.” “The comity due to the courts of
court said: “ By the common law, if the contract other countries is urged as a ground for a recovery
be made per verba de presenti it is sufficient evidence here upon this judgment. The courts of this State
of marriage, or if made per verba de futuro cum do recognize foreign judgments as binding here, copula, the copula would be presumed to have been when the record shows that thc courts rendering a
allowed on the marriage promise, so that at the time judgment had jurisdiction of the subject and of the
of the copula the parties accepted each other as hus
band and wife. On this subject the maxim of the person of the defendant, and give full credit to such judgments by refusing to retry the matters
law is inexorable, that it is the consent of parties and when once determined in an action where the for
not their concubinage that constitutes valid mareign courts had acquired such jurisdiction. We go riage. The well-being of society demands a strict no further with respect to judgments of a sister
adherence to this principle.”
"A contract of marState.'' The same doctrine was held by the Supreme riage per verba de futuro, while it may give an action, Court of Michigan, on a very careful and extended
is not evidence of valid marriage. Nor are the reexamination, in McErcan v. Zimmer, 38 Mich. 765;
lations of the parties changed by the fact that coS. C., 31 Am. Rep. 332.
habitation may have followed the promise to marry at a future time. Port v. Port, 70 Ill. 484. A con
tract of marriage in the future even where the parIn Matthews v. State, Texas Court of Appeals, ties may afterward cohabit, is not understood to June 2, 1880, 4 Tex. L. J. 71, it was held that when constitute marriage, unless when at the time of the a person sells a horse and the purchaser wins back cohabitation the parties accept each other as husthe money at cards, if the former owner take the band and wife, and so conduct themselves that that horse from the possession of the purchaser without relation is understood and acquiesced in by relatives his knowledge or consent, with the intention of re- and other acquaintances. Such was not the case gaining ownership, it is theft. The court said: 1 here. Even the reputation as to the relation of the
THCS Tocan application and statutory construction,
parties was divided in the neighborhood where
wheat at Buffalo. On acceptance of the draft, the they resided. Some thought they were married, but plaintiff delivered the bill of lading to B, with an others did not. But it does not appear the parties,
indorsement to the effect that the wheat was or either of them, ever understood they were in fact pledged to it for payment of the draft, and was married. Her admissions clearly and understand-placed in B's custody “in trust for that purpose,” ingly made are to the contrary, and we are not at
and was not to be diverted to any other use until liberty to declare otherwise.” To the same effect,
the draft was paid. B sold and delivered the wheat Peck v. Peck, Rode Island Supreme Court, 21 Alb. L.
to C, but did not pay the draft. C knew of the J. 344; 12 R. I. 485.
bill of lading and the indorsement before his purchase. Held, that he was liable in an action for
conversion of the wheat. SEVENTY-EIGHTH NEW YORK REPORTS. People v. Security Life Insurance and Annuity Co.,
p. 114. — An insolvent life insurance company, disTHIS volume contains an unusual number of cases continuing business and failing to carry its policies,
is liable to policy-holders in damages for breach of and those depending on peculiar and intricate states
contract; the policy-holders are creditors for the of fact. We glean the following as the main cases value of their policies at the date of the dissolution of general interest and application:
of the company; and the claims of holders of unPeople ex rel. Francis v. Common Council of Troy, matured policies are not to be postponed to deathp. 33. — A city charter required the common coun- claims maturing before the dissolution. cil to designate not to exceed four newspapers hav- People v. Merchants and Mechanics' Bank, p. 269. ing the largest circulation in the city, in which the – The C. N. Bank cashed a check on the M. and city advertising should be done. A designation M. Bank, and sent it for payment; the latter bank was made, for a year, and acted upon, but the re- sent the former its draft for the amount, charged lator insisted and produced evidence that his news- the check to the drawee's account, which was good, paper had a larger circulation in the city than some and returned him the check as paid. Two days of those designated. The proprietors of the other afterward the M. and M. Bank failed, and was newspapers were not made parties. Held, (1) that the placed in the hands of a receiver. On an applicacourt could not by mandamus compel the designa- tion by the C. N. Bank to have the receiver pay the tion of any particular newspapers in the first in- amount of the draft to it, hell, that the transaction stance; (2) that it could not vacate the designation was a simple shifting of indebtedness by the M. and of any already made, nor add the relator's newspa- M. Bank, and did not impress any trust on the per to those already designated; (3) that the year drawer's funds in its hands. having elapsed for which the designation had been Willy v. Mulledy, p. 310. — A statute requires made, this remedy is not appropriate.
owners of tenement houses to provide such fireFowler v. Butterly, p. 68. – A husband procured escapes as shall be directed and approved by certain an insurance upon his life for the benefit of his wife, commissioners. Teld, that the duty is presently and delivered her the policy. Afterward, without imperative, and the owners must procure such direcconsideration, and without any knowledge on her tion and approval, without waiting for the action of part of the purpose or purport, and without
de- the commissioners. Also, held, that a tenant who sign to part with her property therein, but by the moves into such a house, knowing it has no fireundue influence and control of her husband, she escape, is not guilty of contributory negligence such was induced to execute an assignment of the policy as will defeat his recovery of damages for injury to a third person, who assigned it to a fourth, and through the defect. those assignees paid the premiums. In an action on Hook v. Pratt, p. 371. — The putative father of the policy, wherein the wife was made a party by an illegitimate child drew a draft payable to his own order of interpleader, held, that she was entitled to order, and indorsed it, payable to the order of the the amount of the insurance, independent of the mother, expressly “for the benefit” of the child. question whether the policy was assignable under Held, (1) that the undertaking was not illegal; (2) the statute.
that the draft imported a consideration. Chapin v. Dobson, p. 74. — It was orally agreed by White v. Miller, p. 393. — In an action of damA and B, that A should furnish B with certain ma- ages for breach of warranty on sale of seed, held, chinery at a specified price, and that B should ac- that the proper measure of damages is the differcept and pay for the same in a specified manner, and ence in value between the crop raised and the crop that A should guarantee that the machines should represented, without interest. do B's work satisfactorily. The agreement was re- Arthur v. Homestead Fire Insurance Co., p. 462. duced to writing and signed, not including the A fire policy was conditioned that no suit upon it guaranty. Held, that parol evidence was compe- should be sustained unless commenced within a year tent to add the guaranty.
after the claims should accrue. An action was comFarmers and Mechanics' National Bank v. Hazeltine, menced upon it within the year, and on the trial it
- The plaintiff at Buffalo discounted a draft appeared that in the statement of incumbrances in on B, on delivery as collateral, by B's agent, of a the application, a mortgage had been omitted. The bill of lading of wheat shipped to B at New York, plaintiff offered to show that the defendant's agent the proceeds being used by the agent to pay for the was informed of the mortgage but omitted it by