Abstracts of Recent Decisions.

ACCIDENT INSURANCE.-In an action on a policy of accident insurance, where the company set up a contract to accept a weekly payment for a certain number of weeks in discharge of the claim, parol evidence is admissible to show that plaintiff could not read or write, and placed his mark on the proofs of loss without knowledge that they contained such contract, and that he afterwards refused to sign a receipt in full when the sum of such weekly payments was paid to him. (Lord v. American Mut. Acc. Ass'n. [Wis.], 61 N. W. Rep. 293.)

DEEDS ACKNOWLEDGMENT. - Certificates of acknowledgment to deeds, made in July, 1839, in foreign States, are not insufficient because they do not state that the deeds were executed according to the laws of such States, since the registry law then in force only required certificates to state that "the officer taking the acknowledgment is such officer as by his certificate of acknowledgment he purports to be, and that he is duly commissioned and qualified." (McCammon v. Detroit, L. & N. R. Co. [Mich.], 61 N. W. Rep. 273.)

OF
TRUST IN FAVOR

WIFE.

Where a wife's father, with her consent, for the purpose of PLEADING. — In an action of assump-making an equal distribution of his property among his children, causes land to be conveyed to her husband by a deed of general warranty, the land is not charged with any trust in favor of the wife. Acker v. Priest [Iowa], 61 N. W. Rep. 235.)

ASSUMPSITsit to recover damages for defective machinery which plaintiff had purchased, paid for, and returned as useless, the plaintiff must charge the promise that the machinery would perform the work for which it was intended, positively, and not by way of recital. (Wolf v. Spence [W. Va.], 20 S. E. Rep. 610.) ATTORNEY AND CLIENT ACTION. — An agreement to pay an attorney for his services an amount equal to that paid another attorney connected with the same action, is valid. (Lungerhausen v. Crittenden [Mich.], 61 N. W. Rep. 270.)

SLEEPING CARS

CARRIERS OF PASSENGERS CONTRACT FOR BERTH. — It is no excuse for a sleeping car company's breach of contract to reserve a certain berth for plaintiff that another person demanded it before plaintiff presented herself to pay for and occupy it, and that there was no other unoccupied. (Pullman Palace Car Co. v. Booth [Tex.], 28 S. W. Rep. 719.)

CONTRACT FOR PERSONAL SERVICES. Contracts for personal services are subject to the implied condition that the party contracting to perform shall continue in health, and such contracts are revocable by his incapacity from illness to perform. Powell v. Newell [Minn.], 61 N. W. Rep. 335.)

COUNTY DEFECTIVE BRIDGE

NOTICE OF DE

FECTS.—In an action against a county for injuries caused by a defect in a county bridge, evidence that a member of the board of county supervisors was informed of the defect prior to a regular meeting of the board held before the time of the accident is competent, as it is the duty of each member of the board to report defects in bridges. (Morgan v Fremont County [Iowa], 61 N. W. Rep. 231.)

CRIMINAL LAW- -ARGUMENTS OF COUNSEL. Where the evidence against a defendant on trial for assault is positive, a remark of the county attorney that, if the jury make a mistake, defendant can appeal called forth by a line of argument opened by defendant's attorney, is not ground for reversal. (Moore v. State [Tex.], 28 S. W. Rep. 686.)

ESTOPPEL IN PAIS.-A contract for the sale and

construction of a creamery was signed by the purchasers at the solication of the seller's agent. The purchasers failing to provide land on which to construct the creamery, the seller, as permitted by the contract, procured land and erected the creamery in compliance with such contract, in the view of such purchasers. Soon after the contract was executed, and at various times afterwards, the latter sought to be released from, and refused to comply with, the contract for various reasons, which did not include

any claimed alteration of it: Held, that the purchasers could not, in an equitable action by the seller to enforce such contract, set up an unauthorized alteration, of which the seller was ignorant, made by the agent after part of them signed it. (Davis & Rankin Building and Manufacturing Co. v. Dix U. S. C. C. [Mo.], 64 Fed. Rep. 407.)

FEDERAL COURTS—JURISDICTION.-The organization by the individual stockholders and officers of a corporation existing under the laws of one State of a corporation under the laws of another State for Court to try the title to a tract of land claimed by the express purpose of bringing a suit in a Federal

the former corporation, and conveyed to the latter after its organization and before suit brought, will not enable the grantee to maintain a suit in ejectment in such court. (Lehigh Min. & Manufacturing Co. v. Kelly [U. S. C. C., Va.], 64 Fed. Rep. 401.) GARNISHMENT DEBTS SUBJECT TO. Where, in garnishment the evidence shows that the garnishees owe defendant directly, or as heir of his deceased wife, plaintiff is entitled to judgment. (Simmons v. Carmichael, [Tex.], 28 S. W. Rep. 690.)

The Albany Law Journal.

ALBANY, MARCH 9, 1895.

Current Topics.

[All communications intended for the Editor should be ad

would confront them, and there should be no valid reason why a person should be debarred from entering the profession of law until a time when he could become a citizen of this country. Some, probably, would be so foolish as to start the cry of "foreign labor," but in the legal pro

dressed simply to the Editor of THE ALBANY LAW JOURNAL. fession, at least, it is hoped that there will rise

All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

A

up no person or class of persons who will fear an active and vigorous mental conflict with one who, though born in another country, desires to obtain the benefits and privileges of a citizen of the United States and a member of the legal profession.

A reprint of the toast "How to Explain to Your Client Why You Lost His Case" is printed in the Law-Book Record, and is not only amusing, but abounds in historical and clever sayings, which were compiled and well arranged by the author. He jests with the subject very attractively; but the well-known facts in relation to the findings, which are, unhappily, too well known to the legal profession in their active practice of law in the courts of this and other States, reveals the fact that the mind of a juryman works in a way which is most peculiar to the genus of jurymen, and puzzling to the mind of an attorney. The writer has of late observed several cases in which verdicts have been rend

NY criticism which may appear in this paper on any action of the Legislature of the State of New York, is not intended as a partisan effort to disparage the accomplishments and enactments of a political party, but are written only for the purpose of calling attention to what appear to us to be either needless or bad legislation on the part of a body in which, from our standpoint of view, we recognize no distinction of political faith. So long as no political bias or prejudice can be attributed to a criticism which is intended to be fair and reasonable and wholly in relation to the merits, so much greater is the effect of suggestions advocated by any journal on the minds of reasonable men. The newspapers of recent date have been attempting to disparage the propriety of passing several bills which are now before the Senate for its consideration, and which have reference to the admission of certain persons to practice as attor-ered where one or more of the jury have given neys and counselors in the courts of record of this State. The two bills to which our attention has been called simply authorize the State Board of Law Examiners to examine certain individuals in the same manner as other appli-known to enter into the determination of many cants, and with the same force and effect, and cases, while other causes are as varied as the giving the General Term the same power to ad- temperaments and characteristics of men. The mit such persons as if they were citizens of the judges themselves many times influence the forUnited States and this State; provided, how-mation of an opinion as to the merits of a case. ever, that the persons who are thus exempted from the general rule shall declare their intention of becoming citizens of the United States. There seems to be no reason why such a bill should not pass, as the persons seeking admission to practice are to be subjected to the same mode of examination. As can be seen, the idea is simply to allow them to undertake this examination as though they were citizens of the United States and of this State, and under the rules of the Court of Appeals. In case these persons sought to enter any other business or occupation, no such unfortunate state of affairs VOL. 51 No. 10.

-

as a reason for their action facts which were absolutely extraneous to the issues involved, and which had no pertinency to the merits of the case. Sectional and class feeling are well

In relation to this, it has been a pet theory of the writer, which he has started many times to explain, that in the charge to the jury the judge should be most brief, or should be absolutely prohibited from attempting to sum up the facts which are presented by the issues, and should charge the jury in the simplest manner, almost in the words of the law which are applicable to the circumstances, which may be brought out by the evidence. Not only would this be an excellent arrangement for the lawyers and their clients, but the judges would be free from many harsh criticisms of partiality and favoritism

of course, are never to blame; the fault is that of the judge, the jury or your client himself, and it may be of all three. It becomes your duty to divert the tide of his wrath into those channels where it can do the least possible harm. If he be a crank and shoots the judge or cripples a juror, they fall as blessed martyrs, and their places and their mantles are easily filled; but not so readily your place or your mantle. As one of America's sweetest poets, Mr. G― M. D—, has expressed it in a touch

which are so frequently heard after the case has ended and the verdict rendered. The attempt to remedy the prejudices of jurymen would be as foolhardy as to try to angelize human nature, or for Edison to invent an electrical mind to replace the shattered intellects of some of the gentlemen in the box. But we suggest that the word to the wise, when it reaches the ears of the judge, will be sufficient, and that an effort may be made generally and successfully by judicial officers to leave the facts alone when addressing the jury. The toast "How to Ex-ing tribute to our professional and social worth,

plain to Your Client Why You Lost His Case" is as follows:

·

"The question, as framed, is not unlike that with which Charles II long puzzled the Royal Society. He demanded the cause of certain phenomena, the existence of which he falsely assumed. The answer was simply the denial of the existence of the phenomena. What lawyer ever attempted to explain the loss of the case upon the hypothesis that he had lost it? That a lawyer cannot lose a case is as well established a maxim as that the king can do no wrong,' or, that 'the tenant cannot deny his landlord's title.' Eliminate this error and our question is of easy solution. Coke tells us that law is the 'perfection of human reason;' Burke, that it is the pride of the human intellect;' 'the collected reason of ages, combining the principles of eternal justice with the infinite variety of human concerns;' 'the most excellent, yea, the exactness of the sciences;' and the eloquent Hooker, that her seat is the bosom of God, her voice the harmony of the spheres; all things in heaven and on earth do her homage the least as feeling in her care, the greatest as not exempt from her power.' But we know that, if it be the purest of reason, the exactness of the sciences, its administration is not always intrusted to the severest of logicians or the exactest of scientists. We know that the great, the crowning glory of our noble English common law is its uncertainty, and therein lies the emolument and pleasurable excitement of its practice. If, oblivious of this, you shall have assured your client of success in the simplest case, the hour of disappointment will be that of your tribulation, and professional experience can extend to you no solace or aid. But your client's cause has resulted unfavorably. You,

|

unequaled for delicacy of sentiment, boldness
of imagery, and beauty of diction in the whole
range of English poetry:

'Judges and juries may flourish or may fade,
A vote can make them as a vote has made;
But the bold barrister, a country's pride,
When once destroyed can never be supplied ¡'

The selection then of a target for your client
(I use the word 'target' metaphorically) must
rest upon the peculiar facts and circumstances

of the case and the sound discretion' as the But

·

venerated Story has it, of the counsel.
avoid, if possible, imputing the blame to your
client, for although this has been attended with
very happy results, yet his mood at such times
is apt to be homicidal, and, moreover, you
should bear in mind there your aim is to con-
ciliate. 'Who wrote that note?' demanded an
Indiana lawyer who, under the old system of
proceedure, had declared in covenant as on a
writing obligatory, and gone out of court on a
variance. I got Squire Brown to write it,'
answered this sorely perplexed and discomfited
client. 'I thought so.' sneered the learned.
counsel. Didn't you know that no d-
magistrate could write a promissory note that
would fit a declaration?' First as to the jury.
Upon this head I need not enlarge, only remind
you that you are not held by the profession as
committed or estopped by any eulogium, how-
ever glowing, which you may have pronounced
during the progress at the trial on their intelli-
gence or integrity. It is only in the capacity
of a scapegoat that the American juror attains
the full measure of his utility, and as such he
will ever be regarded by our profession with
gratitude not unmingled with affection. But it
is to the judge that we turn in this extremity
with unwavering confidence. The serenity and
grandmotherly benignity enthroned upon his
visage is to the layman that placidity of surface