« ZurückWeiter »
ance on all causes decided, and we have no power to tional provision, without reference to the statutes of bring them back. After that, we can do no more than the State passed in fulfillment of the constitutional correct any clerical errors that may be found in the mandate. Groves v. Slaughter, 15 Pet. 449; Fusz v. record of what we have done. In Brown v. Aspden, Spaunhorst, 67 Mo. 256; Railroad v. Buchanan, 39 id. 14 How. 26, where the practice in respect to orders for 485; French v. Teschemaker, 24 Cal. 518; Gray v. rearguments was first formally announced, the rule in Coffin, 9 Cush. 192; Erickson v. Nesmith, 15 Gray, 221; this particular was not extended, for Chief Justice Windham Prov. Inst. v. Sprague, 43 Vt. 502; Priest v. Taney was careful to say that the order for reargument Manuf. Co., 115 Mass. 380; Shaft Co. v. Evans, 72 Penn. might be made after judgment, provided it was en- St. 331; Lowry v. Inman, 46 N. Y. 119; Dauchy v. tered at the same term; and in United States v. Kuight, Browl, 24 Vt. 197; Thompson on Liab. Stockh., $ 56; i Black. 490, the same limitation is maintained. Down Knowlton v. Ackley, 8 Cush. 93; Cambridge Waterto that timo such an order could be made only on the works v. Dyeing & Bleaching Co., 4 Allen, 239; Briggs application of somo member of the court who con- v. Penniman, 1 Hopkins, 300; S. C., 8 Cow. 387; Slee curred in the judgment, and this continued until Pub- v. Bloom, 19 Johns. 456; Bank of Poughkeepsie v. Iblic Schools v. Walker, supra, when leave was given bottson, 24 Wend. 473. U. S. Circ., Massachusetts, counsel to submit a petition to tho same effect. In all Sept. 1880. Morley v. Thayer. Opinion by Clifford, C. J. other respects tho rule is now substantially the same
JURISDICTION - OF FEDERAL COURT - NEGOTIABLE as it was before this relaxation. Appeal from United
INSTRUMENT.-(1) Tho Circuit Courts of the United States Circuit Court, Iowa. Brooks et al., appellants, v. Burlington & Southwestern Railway Co. Opinion by
States have jurisdiction, under section 1, chapter 137, of
the act of March 3, 1875, over a suit brought by the asWaite, C. J.
signee of a municipal bond, where such bond is in form a
simple acknowledgment of indebtedness, and an unUNITED STATES CIRCUIT AND DISTRICT conditional promise to pay a certain sum of money at COURT ABSTRACT.
a time certain. (2) The words
are not essential to the negotiability of a promissory COMMON CARRIER — HAS NO RIGHT TO EXAMINE CON- pote. See City of Lexington v. Butler, 14 Wall. 282, TENTS OF PARCELS INTRUSTED TO HIM.–The refusal of a 293; Brainerd v. N. Y. & H. R. Co., 25 N. Y. 496; railroad company to carry an express company's safes
Blake v. Sup're S. Co., 61 Barb. 149; 3 Keut's Com. 77; and chests, unless it was allowed to open the same and
Story on Notes (7th ed.), S$ 43 and 44; Daniels on Neg. inspect their contents, or was furnished with an inven
Instr., $ 1016; Klauber v. Biggerstaff, 47 Wis. 551. U. tory of such contents, with the further understanding
S. Ciro. (t., W. D. Wisconsin, July, 1880. Porter v. that the railroad company might, whenever it saw fit,
City of Jonesville, Opinion by Bunn, D. J. open and inspect the safes aud chests of tho express company, and also collect the freight on each separate article or parcel contained therein, as if each had been
IOWA SUPREME COURT ABSTRACT. shipped by itself, violates both tho express company's
OCTOBER, 1880. rights as a shipper, and the terms of an interlocutory judgment temporarily restraining an interference with
CORPORATION — SUBSCRIPTION STOCK — WHAT the express company's business. In tho Nitro Glyce
CONSTITUTES VALID SUBSCRIPTION.-Defendant subrine case, 15 Wall. 524, it was held that express carriers
scribed a statement and tho articles of incorporation were not chargeable with notice of the contents of the
of a banking corporation. The statement read thus: packages they carry. The court then remarks: “If
“We, the undersigned, having associated ourselves express carriers are thus chargeable with notice of the
together for the purpose of organizing a banking assocontents of packages carried by them, they must have
ciation, and transacting the business of banking, the right to refuse to receive packages offered for car
under chapter 52 of the revision of 1860, do declare and riage without a knowledge of their contents. It
state as follows: First, tho namo and title of the assowould in that case be unreasonable to require them to ciation shall be the Farmers & Merchants' Bank of accept as conclusive, in every instance, the information
Bloomfield, Iowa; second, the authorized capital of given by the owner. They must be at liberty, when
said Farmers and Merchants' Bank of Bloomfield, ever in doubt, to require for their satisfaction an in
Iowa, shall be $150,000, which shall be divided into spection even of the contents, as a condition of carry- shares of $100 each; third, the name and residence of ing the packages. This doctrino would be attended, in
the shareholders of this association, with the number practice, with great inconvenience, and would seldom
of shares held by each, are as follows:" To this was lead to any good. Fortunately, the law is not so un
appended defendants' subscription thus, “J. W. Clayreasonable. It does not exact any such knowledge on
ton, 10 shares.” The articles of incorporation conthe part of the carrier, nor permit him, in cases free
tained this: “ Eighth. Fifty per cent of all the stock from suspicion, to require information as to the con- subscribed for this association before it commences tents of the packages offered.” In Leaf v. Tuton, 10 business shall be paid in at the time of commencing Mees. & W. 397, a number of small parcels belonging to
business, and the balance so subscribed shall be paid in different owners were united in one large package, and
at such times and in such installments as the board of directed to one person as consignee, and it was held
directors may prescribe.” The directors called for full that the carrier was bound to take the package, charg
payment for tho stock subscribed. Held, in an action ing for it as if each parcel belonged to one person, aud
by tho assignee of the bank to recover fifty per cent that there was no right to charge upon each separate unpaid on the stock, that the subscription was a valid parcel as if it had been shipped by itself. U.S. Circ.,
one and defendant liable for the amount unpaid. In Indiana, June, 1880. Dinsmore v. Louisville, New Al
Spears v. Crawford, 14 Wend. 20, the writing subscribed bany & Chicago Railroad Co. Opinion by Gresham, D. J.
was in these words: “We, the subscribers, do hereby CONSTITUTIONAL LAW – EFFECT OF STATUTE LAW severally agree to take the shares by us subscribed in UPON PROVISION OF CONSTITUTION.-Section 2, art. 12, the Harlemn Caual Company.” A certain number of of the Constitution of Massachusetts, provides that shares was set opposite the name of each subscriber. dues from corporations shall be secured by individual The question presented was whether the mere agreeliability of the stockholders to an additional amount ment to take shares rendered the defendant liable to equal to the stock owned by each stockholder, and such pay for them. The court held that it did. In Ilartother means as shall be provided by law. Held, that ford & N. H. R. Co. v. Kennedy, 12 Com). 500, the suit could not be maintained by virtue of this constitu- word “subscriber" was used in what was claimed to
be the subscription to stock. It was held that the sub- chester, etc., Ry. Co. v. Fullarton, 14 C. B. (N. S.) 53. scriber was liable to pay for tho stock without a Hart v, Chicago, Rock Island & Pacific Railway Co. promise to do so in so many words. The court said: Opinion by Day, J. “It is true a promise to pay in precise terms does not
REAL ESTATE — BUILDING ERECTED BY LICENSE ON appear to have been made. The defendant has not
RAILROAD, RIGHT OF WAY NOT. – S. owned a mill affixed his signature to an instrument which contains
near a railroad company's right of way. By permisthe words 'I promise to pay,' but he has done an
sion of the company he erected an elevator on the equivalent act. He has contracted with the plaintiff right of way. The machinery in this he operated by to become a member of the corporation and to be in
shafting carried from this mill across lands of another terested in its stock.” In Rensselaer & W. P. Co. v.
to the elevator. Held, that the elevator was a mere Barton, 16 N. Y. 460, the court said: “Whatever may
chattel not subject to a judgment lien and was liable be the form or language of a subscription to the stock
to be seized upon execution. “A house erected by one of an incorporated company, any person who in any
man upon the land of another, by his assent, and upon manner becomes a subscriber for, or engages to take
an agreement or understanding that the builder may any portion of the stock of such company, thereby
remove it when he pleases, does not become a part of assumes to pay according to the conditions of the
the real estate, but remains a personal chattel, and charter." See, also, Small v. Herkimer Manuf., etc., Co.,
removable." 3 Wait's Act. and Def. 381. Even if S. 2 Comst. 335; Dayton v. Borst, 31 N. Y. 437; Hartford
had held a lease of the land upon which the building & N. H. R. Co. v. Crowell, 5 Hill, 384; W. & M. R. Co.
was erected, and had built it for the purpose of carryv. Dwyer, 49 Iowa, 121. Nultor. v. Clayton. Opinioning on his business therein, he would have had the by Adams, C. J.
right of removal; and in such case it has been held
that the building would have been personal property NEGLIGENCE — ENGINE ON RAILWAY NEAR HIGH
during his term of lease, and liable to be levied upon WAY MAKING NOISE WITHOUT NOTICE - QUESTION OF FACT.-While plaintiff was approaching defendants'
and sold as personal property for his debts. Heffner
v. Lewis, 73 Penn). St. 302; Lemor v. Miles, 4 Watts, railway crossing on the highway with his horses, an
330; Amos & Ferr. on Fix., 250; 3 Wait's Act, and engine which stood still, without notice made a noise
Def. 391. caused by blowing off steam and ringing a bell, pre
Walton v. Wray. Opinion by Rothrock, J. paratory to backing, whereby the horses were frightened and overturned plaintiff's wagon, injuring him.
GEORGIA SUPREME COURT ABSTRACT. In an action for such injury, held, that whether defend
OCTOBER 12, 1880. ant was under obligation to notify plaintiff of the intended noise and movement was a question of fact to
DEBTOR AND CREDITOR --DUTY OF CREDITOR AS 70 be determined from all the surrounding circumstances.
COLLATERAL SECURITY. - (1) One who receives collatIf the noise and movement were likely to be attended
eral security is bound to the use of reasonable diligence with danger to plaintiff, then it was the duty of defend
in comection therewith. If the collateral be promisant to exercise reasonable and ordinary care to prevent
sory notes or like evidences of debt, he is bound to uso injury; and if the exercise of such reasonable and
ordinary diligenco to collect them. But where stock, ordinary care, under the circumstances, would require
worth about par, was deposited as collateral security, notice in some manner to plaintiff, then it was the duty
the creditor was not compelled, on failure of the of defendant, as a matter of law, to give such notice.
debtor to pay the debt, to sell the collateral; although The true doctrine upon this subject is stated in Penn.
he had the option to do so, in the manner provided by R. Co. v. Barnet, 59 Penn. St. 259. There the plaintiff
the Code, section 2140. His not selling, although he was driving over a bridge which crossed the defend
knew that the debtors had failed in business, and the ant's railroad 19 feet above the track. Whilst he was
subsequent depreciation of the stock constituted no upon the bridge defendant's train passed under it,
defense to an action on the indebtedness, it not apwhistling as it passed, at which plaintiff's horses took
pearing that the debtors took any steps to secure a fright and ran away, injuring him. The court say:
sale. (2) It did not alter the case that the stock was " It is as clearly the duty of a railroad company as it
transferred on the books and new stock issued to the is of a natural person to exercise its rights with a con
creditor. No sale was claimed, and he held only sub siderate and prudent regard for the rights and safety
modo. A plea to an action on the debt which sought of others; and for injuries occasioned by negligence,
to recoup because of the failuro of the creditor to sell both are equally responsible. Nor is it any excuse or
the collateral, not caused by him, was demurrable. justification that the act occasioning the injury was in
Colquitt v. Stultz. itself lawful, or that it was done in the exercise of a
INJUNCTION CIRCULATING lawful right, if the injury arose from the negligent
LIBEL- JURISDICTION manner in which it was done. If there was no dauger
— PATENT. — A court of equity has the power to enjoin to the persons and property of those who might be the publication and circulation of a libel. This printravelling along the public road, in running its trains
ciple is applicable to equitable rights arising under the without giving any notice of their approach to the
patent laws of the United States, where the legality bridge, then the company is not chargeable with negli
of the patent is not the subject of inquiry but is only genoe in not giving it; but, if danger might be reason
collateral to the relief sought. Bell v. Singer Manuably apprehended, it was the duty of the company to fucturing Co. give some notice or warning in order that it might be avoided. If it would have been negligence in the
RECENT ENGLISH DECISIONS. plaintiff to drive upon the bridge just as the train was about to pass under it, had he been aware of its ap- EVIDENCE OF AGE AND NATIVITY - REPORT OF proach, then he was entitled to notice, and it was the OFFICIAL COMMITTEE.— In 1790 M., who had been conduty of the company to give it. Whether, therefore, sul in London for the Genoese government for about the company exercised proper care and diligence in ten years, applied to be appointed “agent" for that running the train, in order to prevent injury to the government, and a committee was instructed to report persons and property of those who were lawfully on as to his qualifications. M. was appointed agent, and the public road and in the vicinity of the crossing, was died in Loudon in 1803. B., his daughter, and sole a question for the jury." See, also, Hill v. P. & R. R. next of kin, died intestate in London in 1871. In an Co., 55 Me. 438; Norton v. Eastern R., 113 Mass. 366; action brought by various persons claiming to be next Toledo, W. & W. Ry. Co. v. Harmon, 47 mi. 293; Mau- of kin to B., it was proposed to put in evidence the re
CRIME - AGREE
port of the committee made to the Genoese govern- An excuse on behalf of Mr. A. J. Abbott was rement in 1790, to prove the age and birthplace of ceived and filed. The minutes of the meeting held M. Held (affirming the judgment of the court February 18, 1880, were read and approved. The below), that the evidence was not admissible either amendment proposed by Albert Mathews to By-law X. as part of the res gestae, or as being an entry by as follows: In the paragraph of said By-law X, coma deceased person in discharge of his duty, or as mencing with the words, “In case any standing coma public document mado by a public officer. Doe | mittee shall fail to organize,” striko out the words, v. Turford, 3 B. & Ad. 890, followed. Cases re- “whose duty it shall be to submit by mail,” etc., down ferred to: Higham v. Redgway, 2 Sm. L. C. 318; Price to and including the words, “as prescribed in the Byv. Lord Torrington, 1 id. 3:28; Irish Society v. Bishop laws;” also tho whole of tho succeeding paragraph of Derry, 12 Cl. & F. 611; Price v. Littlewood, 3 Camp. ending with the words “by a plurality vote be elected 288; Arnold v. Bishop, v. Bath, 5 Bing. 316. House chairman of the committee," and substitute in lieu of of Lords, June 18, 1880. Cturla v. Freccia. Opinions all the matters so stricken out the words following, by Lord Chancellor Selborne and Lords Blackburn viz., "to be the chairman thereof, and another memand Watson. 43 L. T. Rep. (N. S.) 209.
ber to be the secretary thereof, until otherwise proHUSBAND
vided by such committee," was taken up for considWIFE — AUTHORITY
eration. The secretary reported that he had on tho CREDIT DURING COHABITATION - NECESSARIES - RE
15th day of April, 1880, pursuant to By-law XI, notiVOCATION OF IMPLIED AUTHORITY.-A husband who
fied in writing all members of the Executive Commitis able and willing to supply his wife with necessaries, and who has forbidden her to pledge his credit, cannot
tee, of the proposed amendment to By-law X, and had
invited the views of tho chairmen of the various be held liable for necessaries bought by her; and a tradesman, without notice of the husband's probibi- read a letter received from John F. Seymour, Esq.,
standing committees in regard to the same, and also tion and without having had previous dealings with | Chairman of tho Committee on Grievances, relative the wife with his assent, canuot maintain an action
thereto. against him for the prico of articles of female attire suitable to her station in life, and supplied to her upon
The question being taken on the adoption of the his credit but without his knowledge or assent. Jolly
amendment, the same was unanimously adopted. v. Reese, 15 C. B. (N. S.) 628; 33 L. J.(C. P.) 177, resolution adopted at tho meeting of this committee,
The secretary also reported that pursuant to tho approved of. Ct. App., March 24, 1880. Debenham v. Mellor. Opinions by Bramwell, Baggalay and Thesiger,
held February 18, 1880, requesting that “the chairman L. JJ. L. R., 5 Q. B. D. 394.
and secretary of the committee prepare for publication
tho report of tho annual meeting of 1879, pursuant to PUBLIC POLICY - COMPOUNDING
article XII of the Constitution, and that a sum not MENT NOT TO PROSECUTE MISDEMEANOR - RIGHT TO
exceeding $600 be appropriated for that purpose RETURN OF SECURITIES DEPOSITED.- An agreement that they had discharged the duties thereby imposed, not to go on with a prosecution of an offense of a pub- that the contract for the printing thereof was awarded lic naturo for privato benefit is contrary to public to the Argus Company, for tho sum of $419, they being policy and bad. For tho purpose of this rule some the lowest bidders; that the usual number of copies misdemeanors aro considered to be of a private nature were printed and distributed, and that the bill for tho only, but all felonies and many misdemeanors (among samo had been audited to the abovo amount, and tho which is the crime of larceny by a bailee) are consid
same had been paid. ered to be of a public nature. It is immaterial whether
Mr. Hand moved that the report be accepted and the proposal for the compromise proceeded in the first the action ratified. Adopted. instance from the prosecutor or from the accused per- The secretary reported that no determination had son or his friends. It is immaterial whether the judge been reached relative to bills for printing “Subject presiding at the criminal trial did or did not give his and Regulations for Prize Essay of 1879.” Further assent to the withdrawal of tho prosecution on the time was ranted. terms of tho compromise. It is immaterial whether The secretary presented bills as follows: the wrongful act charged against the accused person
Disbursements. was or was not sufficient to give rise to a right to proceed civilly as well as criminally. Where title deeds Postage on Annual Reports, etc...
$53 48 have been deposited at a bank in order to insure the
Weed, Parsons & Co.....
52 25 carrying into effect of an agreement for a compromise The Argus Company of a prosecution, on the agreement being declared in- On motion the secretary was authorized to audit valid, the person who deposited the deeds is entitled bill for clerical services for the remainder of the year to have them returned to him. Clubb v. Hutson, 18 for an amount not exceeding $150, the balance of the C. B. (N. S.) 414; Keer v. Leeman, 3 L. T. Rep. 299, ) appropriation. and Osbaldiston v. Simpson, 7 id. 347; 1 id. 535; Will- Mr. Ivins, Mr. Buchanan and Mr. Miller, from the iams v. Bayley, 14 L. T. Rep. (N. S.) 802. Ch. Div., Committee of Arrangements, reported that the arJuly 1, 1880. Whitmore v. Farley. Opinion by Fry, J. rangements for the annual meeting had been com43 L. T. Rep. (N. S.) 192.
pleted; that Hon. George W. Biddle, of Philadelphia, had been invited and had accepted the invitation to
deliver the annual address; that Essays had been NEW YORK STATE BAR ASSOCIATION.
promised by members from each of four districts, as MEETING OF THE EXECUTIVE COMMITTEE.
follows: Edward E. Sprague, of Flushing; Hon.
Mathew Halo, of Albany; James D. Teller, of AuA meeting of the Executive Committee was held, burn; Joshua Gaskill of Lockport; and that all mempursuant to a call issued by the chairman, at the office bers of the Association had been notified of the of the secretary, Albany, N. Y., November 15, 1880, annual meeting, by the secretary of this committee at 4 P. M. Mr. Mathews in the chair.
inclosing, with tho notice, a copy of the order of exerThere were
present · President Hand, Albert cises; that the arrangements had been made at tho Mathews, Clifford A. Hand, Elliott F. Shepard, First | Kenmore Hotel for the annual dinner, same as last District; William M. Ivins, Second District; S. W. year, and that the Judges of the Court of Appeals, Rosendale, Third District; Horace E. Smith, John R. and of the General Term of the Supreme Court, Third Putnam, Fourth District; and Bradley B. Burt, Fifth Department (to be in session), had been invited. District-a quorum.
Mr. Ivins moved that the sum of $150, or so much
thereof as might be necessary, be appropriated for the
CARTER'S OLD COURT HOUSE. payment of any deficiency arising from the expenses, The Old Court House: Reminiscences and Anecdotes of the the same to be paid by the treasurer on the certificate Courts and Bar of Circinnati. By Judge Carter. Cinof Mr. Peyton F. Miller.
cinnati: Peter G. Thomson. 1880. Pp. 466. The treasurer, Martin W. Cooke, Esq., presented his
This book is one of a class which we are always sorry report of receipts and disbursements during the year.
It misrepresents the bar. It is in the main a The bill of Hon. P. S. Danforth, chairman of the
collection of coarse, vulgar, drunken, profane and comCommittee on Admissions, for $6.50, for postage, etc.,
mon place matters, which either ought not to be told paid by treasurer, was audited.
in print, or are not worth the telling; things only exOn motion, Mr. Shepard was appointed a com
cusable after a bar dinner. The book is well peppered mittee to audit the accounts of the treasurer.
with italics to point the jokes, and with dashes to take The treasurer also reported 64 members in arrears
the curse off the profanity. Also with startling head for dues; of these several had resigned.
lines to excite the curiosity, after the manner of Mr. Hand moved that the resignations of those who
modern newspapers. A few of these latter will give an are not indebted to the Association be accepted, and
idea of the contents: “John Brough beaten by a darthat those who have resigned, but not paid their dues, key witness;" Jacob Flinn and the Old Democrat; " be stricken from the rolls, unless the same are paid
· Lawyer ('ross and the Cincinnati Lager Beer!" within twenty days after notice has been given by the
“Lawyer Nelson Cross and Lawyer Adam Hodge, they treasurer. Adopted.
have a bout; “Money makes the mare go." These Mr. Ivins, from the committee appointed “to con
will suffice. Wo are not aware whether “Judge" on sider what changes may be made in the Constitution
the title page is the author's surname or his official and By-laws in order to facilitate the purposes for title. But aside from that, he evidently thinks well of which the Association was formed," reported progress
himself and his writing, for he gives us an engraved and asked permission to continue, which was granted. portrait of himself (a good picture and a good-looking On motion, a recess was taken till 8 P. M.
man, we are bound to say), and in his dedication he
informs us that his “ pages "facetious." We can
8 P. M. discover nothing in the portrait nor in the “pages,' Mr. Ivins moved that the treasurer be authorized to
however, to warrant him in pronouncing the late
Recorder Hackett, of the city of New York, one of the advance $250 out of the funds of the Association to pay the prize to be awarded to the successful competitor and one who did much to restrain and intimidate the
most useful citizens and best judges that we ever had, for the post-graduate prize for 1880, to be reimbursed
criminal classes - a “personal and official tyraut" and to the treasury out of the funds subscribed for that
a “ vulgar tyrant.” One of the harshest terms which purpose. Adopted. Mr. Shepard, from auditing committee, reported devil murderer,” a favorite expression of his. He
this author can find to characterize a criminal is “poor that he had examined the accounts of the treasurer and found them to be correct, and recommended that collects, at the end, some passages from Shakespeare, the items of disbursements made by the treasurer for
on "Law and Lawyers and the like." If we thought incidental expenses be approved and allowed, as stated
this book correctly depicted lawyers as a class, or the in his report.
old bar of Cincinnati, or even the author himself, we Mr. Hand moved that the report be accepted and the should exclaim, with Jack Cade, in Henry VI, as recommendations of the committee be approved. quoted in this book, “The first thiug wo do, let's kill
all the lawyers.” Adopted. Mr. Ivins moved that Mr. Mathews, as chairman,
WEEKS ON DEPOSITIONS. and Mr. Rosendale, as secretary of Executive Committee, prepare for publication the report of the annual
A Treatise on the Law of Depositions, comprising also ab
stracts of the Statutory law pertaining thereto. By meeting of 1880, pursuant to article XII of the Consti
Edward P. Weeks, Counsellor at Law, etc. San Frantution, and that a sum not exceeding $600, out of any
cisco : Sumner, Whitney & Co. 1850. Pp. xx, 714. money in the treasury, is hereby appropriated for that purpose, to be paid on the certificate of this committee.
This is apparently a very exhaustive and careful Adopted.
monograph, on a useful subject, and is prepared by a On motion, meeting adjourned.
very competent author. The work bears marks of (A transcript.)
good method, industry, and intelligence, and it must S. W. ROSENDALE,
prove a welcome guide in a field hitherto unoccupied. Secretary, Albany.
LXII ALABAMA REPORTS.
Reports of Cascs Argued and Determined in the Supreme NEW BOOKS AND NEW EDITIONS.
Court of Alabama, during December Term, 1878, ending
July 31, 1879. By Thomas G. Jones, State Reporter. STARKIE'S TRIAL BY JURY.
Vol. LXII. Montgomery, Ala.: Joel White, 1880. Pp.
vii, 602. On the Trial by Jury. By Thomas Starkie. Reprinted from The following cases are noteworthy: Hutchinson v.
the fourth number of the “ Law Review and Quarterly State, p. 3.- One who carries concealed on his person Journal of British and Foreign Jurisprudence," vol. ii, all the separated pieces of a pistol, capable of being p. 370. For use in Harvard Law School. Boston: Little, readily and effectively put together, is guilty of carryBrown and Company. 1880. Pp. 49.
ing concealed weapons. Dotson v. Slate, p. 141.- The THIS
the great work on Evidence, the inost excellent in that crime who, in the life-time of his first wife, marstyle of any of the standard law books. Mr. Starkieries again, knowing her to be living, or not having al was among the first to recommend dispensing with reasonable belief of her death. llerring v. Skuggs, p. unanimity in verdicts, and in this monograph he gives 180.– An agent for the sale of safes has no implied augood reasons for his views. It was a happy thought to thority to warrant them burglar proof, but express revive this essay, and it will interest every reader. authority or a custom must be shown to found a warThe author considers the subject under three heads: ranty. In case of an alleged breach of such a warfirst, origin and history; second, present practical ranty, the measure of damages is the difference bestate and use; third, capabilities.
tween the value of the safe as it was, and that as rep
resented, and does not include the value of articles of the eagle's nest, in the Preface to the 8th Reports. stolen from it. National Commercial Bank of Jobile How delicate and beautiful is the allusion to Mansfield v. Mayor, p. 284.- An assessment upon the shares of a and Camden, then holding divided rule in the House National bank in gross, or upon the capital stock, of Lords! Lord Bacon, however, had said before: against the corporation, is invalid, but the remedy is “When the famous case of the copper-mines was at law and not by injunction. Buckalew v. State, p. argued in this court (the Exchequer), and judged for 334.– Where money is put upon a round board, having the king, it was not upon the fine reasons of wit; as different numbers around its rim, in equal amounts by that the king's prerogative drew to it the chief 'in several persons, each in turn whirling a hand fastened quaque specie;' the lion is the chief of beasts, the in the center, the one at whose whirl the hand regis- eagle the chief of birds, the whale the chief of fishes, ters the highest number taking all the money, the and so copper the chief of minerals; for these are but owner of the board sornetimes putting up money and dalliances of law, and ornaments; but it was the grave sometimes charging the winner a small sum for the records and precedents that grounded the judgment use of the board, this is not a lottery. Wright v. of that cause; and therefore I would have you both Paine, p. 340.– An instrument acknowledging the re- guide and arm yourself with them against these ceipt of money “ for safe-keeping,” to be "returned vapours and fumes of the law, which are extracted out whenever called for,” is prima facie a special and not of men's inventions and conceits." a general deposit; and an instrument acknowledging Dr. Blair evidently had Eden's book before him the receipt of money on deposit, to be paid on de- when he composed his Lecture on the Eloquence of mand,” is prima facie a loan, against the recovery of the Bar - the 28th of his " Rhetoric." which the statute of limitations will run from the date Having thus displayed before us in the old books the of the writing, and not from demand. Sumter County true model of forensic eloquence, it is not to be wonv. National Bank of Gainesville, p. 461. — Repeating dered at that the highest legal talent should aim at a the doctrine of Nat. Bk. v. Mayor, supra, and adding calm and temperate method of speech. As, in the prothat where a provision in a statute that a tax shall be gress of the nation, all the arts become more refined paid by the bank for the shareholders, depends upon and subdued to the rigid laws of taste, it is but natural other and unconstitutional provisions, and is incapa- that our profession should feel the influence of this ble of independent operation, it is invalid, and the progress. The fervid flights of Patrick Henry and the county has no right of action against the bank for the vehement declamation of Pinckney would hardly be tax. John v. City National Bank of Selma, p. 529.- deemed fitting, at the present day, in the discussion It is a sufficient excuse for omitting personal notice of of grave questions before a competent court. The dishonor to an indorser, residing in the same place finest exhibitions of legal eloquence to which it has with the holder, that an attempt was made during been my fortune to listen have been made by the late business hours to do so, but his office was locked and no George Wood, of New York, and Judge B. R. Curtis. oue was present to receive the notice, and in such case Their arguments always filled the mind, the ear and notice by mail is valid. The volume is marked by the the sense of fitness and good taste. Aud of the two, I usual excellencies of the series.
always thought the style of George Wood the more
admirable. It was chaste, yet rich in choice legal dicCORRESPONDENCE.
tion, pervaded with the odor of jurisprudence, as
parchments with the sandal-wood in which they are FORENSIC ELOQUENCE.
kept, and conveying the impression that it was the law
itself, and not an argument upon the law, which the Editor of the Albany Law Journal:
advocate was unfolding. Your note in yesterday's ALBANY LAW JOURNAL on
But I am digressing. I took my pen merely to refer the decline of eloquence at the bar brought to my you to the beautiful passage of Eden. mind a passage which I regard as one of the gems of Respectfully, your obed't servant, our judicial literature. It is from William Eden's*
JOSEPH P. BRADLEY. “ Principles of Penal Law," published auonymously WASHINGTON, Nov. 14, 1880. in 1771. Of course its allusious will be readily understood by placing one's self in imagination at that
LEGISLATIVE HUMORISTS. period. You will find it on the 159th and 160th pages of the second edition - one paragraph commencing
Editor of the Albany Law Journal : with the words: “It is a consequence of that wis
Your correspondent, J. II. Hopkins, in his article dom," etc. Lest you may not be able to lay your on Legislative Humorists, might have instanced sevehands on the volume, I copy the paragraph :
ral other blunders perpetrated by the last Legislature “It is a consequence of that wisdom which charac- of the State of New York. terizes the English, as a people, in the whole system Chapter 480 of the Laws of 1880, cited by him, not and administration of their laws, that all the artifices only amends a section that had been twice repealed, of speech are banished from the bar. The passions but is in conflict with the Constitution of the State ought not to be addressed in appeals to the reason. (Art. 6, § 15). The unsubstantial harmony of declamation may be
Chapter 416 of the Laws of 1880 purports to amend well adapted to the ears of an arbitrary tribunal; but sections 197 and 198 of title 3, chapter 3, part the decisions of English judges are founded on the 4 of the Revised Statutes. These numbers are eviargumentative inferences of strict statutes and re- dently taken from Banks & Brothers' sixth edition of corded precedents. Our courts have furnished proofs
the Revised Statutes (so called), a book which, as every indeed, that the strains of ancient eloquence are lawyer knows, is an unauthorized compilation of all neither inimitable nor unattainable; but a nobler and
the statutes of the State, revised or general, which more proper theater hath been found for the exertion seemed to the editor to be of general interest, and in of that talent. Plain sense, delivered in accurate ex
which the editor has taken the unwarrantable liberty pression, with a warm and graceful articulation, is the of prefixing numbers to the various sections to suit true eloquence of law."
himself. The sections intended to be amended by It seems to me that this passage is worthy to be set
chapter 416 of the Laws of 1880, are 150 and 151 of the beside the concluding paragraph of Coke's Commen- above title, chapter and part of the Revised Statutes. tary upon Littleton, and his application of the apologue Chapter 437 of the Laws of 1880, amends section 16,
article 3, chapter 6, part 1 of the Revised Statutes. * Afterward Lord Auckland.
There are eight titles in chapter 6, and several sections