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Entered, according to act of Congress, in the year eighteen hundred and seventy-five,
BY WEED, PARSONS AND COMPANY,
In the office of the Librarian of Congress, at Washington.
APR 2 0 1966
THE ALBANY LAW JOURNAL:
A WEEKLY RECORD OF THE LAW AND THE LAWYERS.
The Albany Law Journal.
ALBANY, JANUARY 2, 1875.
The LAW JOURNAL commences its sixth year with new type, and a change in its "make up." The former certainly adds to the beauty and legibility of its pages, and the latter, if not more convenient, is more in harmony with the prevailing taste in journalism. Other and more material improvements will be made as occasion serves, and no effort will be spared to make the JOURNAL for 1875, not only better than it has ever been before, but better than any similar professional journal ever published. There is, unquestionably, a demand for a well conducted, thoughtful and able legal journal. It is more of a necessity to-day than it has ever been before. With the development of the means for the speedy diffusion of news the demand for fresh intelligence has increased the newspaper has grown with the telegraph and the railroad- and not only is this true as to the general current news of the day, but also, as to the news on special subjects. And since the general newspaper cannot, for obvious reasons, or at least does not, give information on special subjects or concerning special departments, with sufficient fullness and accuracy, the journal of the specialist becomes a necessity. These special periodicals have increased wonderfully both in number and in excellence within the last few years, and it may now be said that almost every branch of human effort has its organ. The legal profession, like all the restmore than most of the rest-needs a publication devoted to subjects that interest it, and have to do with its daily business. To give to the lawyer early and accurate information of important decisions, to discuss questions of law reform, to advocate whatever is for the interests of the profession, to cultivate the best professional ethics, to increase the esprit du corps, to speak honestly and intelligently of the numerous and bulky volumes that are constantly VOL. 11.- No. 1
issuing, and which, their publishers think, no law library should be without, these must be the aims of the journal of the lawyer- these are and have been the aims of the LAW JOURNAL. Whether it has succeeded let its ten volumes speak, for "it is better that every kind of work honestly undertaken and discharged, should speak for itself than be spoken for."
The history of legal journalism, in this country, might very well lead one to suppose that the profession was quite indifferent to publications in its interest - for while many have, from time to time, sprung into existence, most of them have been shortlived. But this has been due rather to defects in the periodicals themselves, than to any fault of the profession. Many of them have been only reports of decisions under another name, and very poor reports at that; others have been conducted by incompetent persons, and again others, and perhaps most of them, owe their failure to lack of enterprise and energy on the part of their publishers, and a disinclination to expend upon them money. It is just as true in legal journalism as in the general newspaper field that capital must be sunk at the start. Of the forty odd legal periodicals that have been undertaken in this country, only about a dozen remain, and a good part of those contain very little, if any, reading matter beyond reports of cases. Of the score or so of those that were in existence when the LAW JOURNAL was commenced or that have been since undertaken, several have dropped by the way some of them that we should gladly have seen flourish to a green old age. Among these was the United States Jurist published by the Morrisons, at Washington and edited with ability by Mr. James Schouler, a very thorough legal scholar and a clever writer. It deserved to succeed, as did also the Bench and Bar, published by Callaghan & Cockroft, and afterward by Callaghan & Co., at Chicago, and edited formerly by Mr. James L. High and latterly by Mr. J. A. L. Whittier. The New York Daily Transcript went out with the Ring and its Baltimore
namesake also went out, though why, we know not. But after all, the new-comers are, in some respects, better than those that suspended, which may serve to show that legal journalism is progressive. We should be glad, had we space, on this occasion and in this connection, to speak of our contemporaries the new as well as the old, point out their merits (most of them have merits, but we regret to say some of them have not), and to hint at their faults. But there is, perhaps, no need. We are glad that so many of them are successful; there is room for all, and if any of them hereafter fail we may be sure it will be the fault of its managers and not that of the profession.
Among the recent utterances of well-known lawyers we notice the letter of Mr. O'Conor to the New York Tribune in which the validity of the constitutional amendments is cogently defended. Mr. O'Conor also furnishes us with some of his own views on the adoption of constitutions and constitutional amendments in general. He favors the fundamental doctrine that the voice of the people is superior to all technicalities, and even superior to constitutions themselves. Another letter from the same source is published in regard to the right of the citizen to shoot and kill burglars. Mr. O'Conor takes the ground that men must be guided by their good judgment in the emergency created by burglars entering dwellings. The letter is written rather in the character of the citizen than of the lawyer; and we judge that Mr. O'Conor in his old age is getting fond of oracular sayings, suited rather for the people than for the profession. Nevertheless we believe with him that, as a whole, common sense is a greater factor than law, and that law should conform to common sense. Only we should be a little careful about accepting our peculiar notions of right and wrong as the law of the land. The law has the advantage in many instances even if it is not "common sense.
The attention of the public press has been again directed to the Department of Justice and the Attorney-General, by the charges of Mr. Beck, made in the House some days since, that the former was "honeycombed with fraud," and that the latter was corrupt and "a more guilty man than Judge Durell himself," and his promise to make good the accusations and, so far as we have seen, there is but one opinion, and that is, that Mr. Beck was not very far wrong. The fact is that it is becoming to be very generally believed not only that Mr. Williams is wanting in the qualifications of "intellect, experience and reputation," as the Bar Association expressed it, but also that he is totally lacking in judgment and discretion, if not in common honesty. As the Nation pointed out the other day, Mr. Williams has been "a more conspicuous Attorney-Gen
eral than any of his distinguished predecessors." As legal adviser in the Reconstruction Cases, in the Virginius Case, and, recently, in regard to the Pacific Mail subsidy, and as counsel for the government in the Credit Mobilier case, his qualifications have been publicly tested, and it is only truth to say that in each he has proved himself a failure. The Department of Justice is one of the most important in the government. To direct and control the legal advisers of the various departments, and the numerous legal officers of the United States scattered over a vast extent of territory; to manage the suits brought by the government, to advise it as to all the legal phases of its intercourse with other nations, and to have the general supervision of the enforcement of Federal statutesthese are duties which require for their proper discharge knowledge and judgment and discretion and character and reputation and integrity qualities not conspicuous in the present incumbent of that office, but which we hope soon to find happily combined in Mr. Williams' successor.
During the last session of the legislature, a bill was passed providing that the presiding justice of the Supreme Court in the First Department, and the Chief Judges of the Common Pleas, the Superior Court, and the Marine Court, should "designate a daily law journal," published in New York, in which should be published all court calendars and all notices and advertisements in legal proceedings. The Governor did not append his signature to this bill until December 17th, some nine months after it came to his hands. Directly, the judges named, designated the Daily Register, a legal sheet published in New York, and devoted mainly to advertising. Thereupon the New York Evening Post, in a sharp editorial, denounced the act of Governor Dix as "one of those unaccountable mistakes which go some way to offset an official record of exceptional excellence," expressed its astonishment that the Governor, having seen in the late Daily Transcript "what a means of corruption and what a burden to taxpayers such a journal easily may be made," should lend his aid to "this similar scheme," declares the whole business "to be a 'job,' and nothing but a 'job,'" and calls upon the incoming legislature to repeal it. It seems that under the provisions of the bill, the paper designated would get about $15,000 per annum for printing the calendars alone to say nothing of the notices and advertisements; but, Governor Dix, in a letter dated December 5th, and published in the Albany Evening Journal, stated that he would sign the bill, if the proprietors of the paper designated would enter into a stipulation that they would print the calendars for $6,000 per year. We presume the stipulation has been made, but we do not believe that it will have quite the force and
effect that seems to be expected of it. There must be more merit in this measure than is apparent upon its face, and at this distance; for the governor asserts that "the judges are unanimous, and the bar nearly so, in favor of the bill;" and the Daily Register says that it is "confident that the mere publication of the names of the eminent lawyers who are on record in favor of the measure, would carry conviction to all." We ought, perhaps, to add, in order that our readers may have the gist of the arguments on both sides, that the Daily Register pronounces the Evening Post's article to be "as discreditable an exhibition of interested meanness as we have ever seen."
We are quite at a loss to understand the secrecy manifested about the amendments to the Supreme Court rules. Over a month has elapsed since the meeting of the judges, and yet no record of their action has been filed with the Secretary of State, nor have their proceedings been made known to the public. There would seem to be nothing in such a matter, that should require secrecy. On the contrary, we should suppose that there should be the utmost publicity, that lawyers might familiarize themselves with the changes.
The interest manifested in the selection of a successor to Judge Miller in the Third Department, has been comparatively slight, except among the score or so of aspirants. The opinion seems to be now very generally entertained that Mr. Rufus W. Peckham will receive the appointment, and we believe this opinion to be well founded, though, of course, guesses on such a matter may be even more unreliable than the predictions of "Old Probabilities." The matter was, however, very likely settled at the Manhattan reception on Tuesday. The indications are that Mr. Justice Learned will be designated to the General Term.
rather than on precedents, but Bramwell, B., disposed of the case of Hicks v. The Newport, etc., R. R. Co., stated in a note in 4 B. & S. 403, which is cited as an authority for the other side in all such cases, by saying that while Lord Campbell's ruling in that case was correct it did not apply — that the action in that case being under a statute to recover the pecuniary loss, suffered by the family of the deceased, any pecuniary gain which had happened to the family by the death, was properly deducted from the damages, but that where the action was by the injured party himself no such rule applied Precisely the same distinction was made and the same principle held in Harding v. Town of Townshend, 43 Vt. 536; 5 Am. Rep. 304, in a judgment which presents a very learned review of the authorities. So in Werer v. Morris & Essex Railway Co., 35 N. J. 409; 10 Am. Rep. 253, the same doctrine was held as to fire insurance, where the one through whose negligence buildings were fired, attempted to have the insurance money applied in reduction of damages. The explanation, given by the Court of Exchequer to Hicks v. The Newport, etc., Railway Co., would make that case an authority in an action under the New York Statute and similar statntes of other States, but in Althorf v. Wolfe, 2 Hilton, 344, it was held that the insurance money could not be taken into account, and the case was affirmed (22 N. Y. 355), but the Court of Appeals expressed no opinion on this point.
The Civil Damage Act of 1873, came before the General Term of the Supreme Court for the first time, we believe, in Baker v. Pope, 5 N. Y. Sup. 102, and was therein held to be a part of the excise law and binding upon those who take licenses thereunder, and also, so far as it affects the seller of intoxicating liquors, not in violation of the constitution as impairing the obligation of a contract. A similar statute exists in several of the States, and the decisions made thereunder are gathered in a note to the above case. The Supreme Court of Wisconsin in State v. Fisher, 33 Wis. 154, and in State v. Lud
NOTES OF CASES.
In Bradburn v. The Great Western Railway Company, 31 L. T. R. (N. S.) 464, the Court of Ex-ington, id. 107, held under a similar statute, precisely chequer added the weight of its authority to the the same doctrine as the above case, and in Wightfew recent decisions holding, that in an action for man v. Derere, id. 570, the same court held that a injuries the wrong-doer is not entitled to have the wife might recover for any personal injuries suffered damages reduced by the proceeds of a policy of in- by her from the violence of her husband, for nursing surance against such injuries. The action was by a and tending him while ill from injuries received in person against a railway company to recover com- consequence of intoxication, for injuries to her own pensation for bodily injuries sustained through the health by such watching, for the services of others negligence of defendants. The plaintiff held, at the employed to assist in his care, for a physician emtime of the injury, a policy of insurance against ac- ployed to attend him and for the services of men cident, and the defendants claimed that the amount employed by her, and who were paid by her, in carreceived on the policy should be deducted from the rying on her farm, which the husband had, while damages awarded to the plaintiff. But the court sober, carried on. It was also held, that exemplary held otherwise. Bramwell and Cleasby, BB., deliver- damages were recoverable where the evidence showed ing opinions, and Amphlett, B., concurred. The a state of facts that would warrant it - the jury opinions are brief and argue the question a priori | being the judges of what such facts would be.