The Albany Law Journal.

WO

ALBANY, AUGUST 3, 1889.

CURRENT TOPICS.

Curiosity Shop' would say, 'was making believe very much,' but it was a clumsy sort of contrivance which suited the Anglo-Saxon temperament, and which was enshrined as carefully in the commonlaw system of the State of New York as if it had been the corner-stone of the whole fabric." He very justly characterizes it as "rubbish of fiction." It is a remarkable fact, pointed out by Mr. Butler, that the Legislature of that time were in advance

Two of the most eminent lawyers and useful citi-even of the radical revisers themselves, and abol

not proposed to abrogate, but for which they had furnished provisions which might be taken as substitutes. Mr. Butler gives an interesting account of the first mention of the Revised Statutes in the judicial decisions, and of the first case in which its provisions were cited and applied - Lorillard v. Coster, 5 Wend. 172; 14 id. 265. In the latter the judges and senators gave the ancient system some vigorous and vicious kicks. Senator Young speaks of it as "an ancient, complicated and barbarous system." "A fathomless abyss of metaphysical subtilties." Another early case expounding the case was Hawley v. James (the defendant was an Albanian), 5 Wend. 317; 16 id. 61. Until these present degenerate days New York has always been the pioneer in legal reform, the adoption of the Revised Statues preceding by seven years the beginning of similar reforms in England. It is a tribute to the principles of codification when Mr. Butler says: "The many additions which have necessarily been engrafted upon the Revised Statutes in the course of the three-score years of amazing progress and development contained in the seven successive editions through which they have passed since their enactment, have not changed the integrity of the original plan, or weakened in any essential part the main structure." Not the least interesting part of the essay is that given to the biography of the revisers. This tempts us to quotation which lack of space prohibits, but we cannot resist the following of the upright and downright Duer: "A young man of the name of Finn, a lawyer by profession, conceived the idea that under the existing statutes in relation to the Superior Court a vacancy existed on the bench which could be filled at a pending election. Accordingly he prepared and printed a few ballots with his own name as candidate, distributed them among voters, and there being no opposing aspirant, claimed to have been elected as a judge of the court. He then made his appearance in the court-room, and asserted his right to be recognized as a member of the court. As his claim was based upon the statute, he supposed himself entitled to be regarded as having a prima facie right to civil treatment, at least, on the part of the court of which he declared himself an associate justice. But Chief Justice Duer, looking upon the 'claimant' as attempting to steal a judicial office from the people, as a trespasser ab initio, made short work of his clumsy pretensions. He would not tolerate Finn, or temporize with him, or give him a standing in court, or even a back seat on the bench, and the

cation-John Duer and Benjamin F. Butler. They, with John C. Spencer, are freshly brought to mind to us by Mr. William Allen Butler's address on "The Revision and the Revisers," delivered before the Bar Association of the city of New York last January, and now published in an attractive volume, with portraits of the revisers. On this address our New York letter writer made some comments and gave some extracts from it at the time. It is always a pleasure to read any thing from the pen of the accomplished author, and the profession in this State will welcome this succinct, instructive and agreeable biography of three lawyers to whom they and the public owe an incalculable debt of gratitude. The legal revolution which these brilliant young men wrought was unprecedented, and hardly less radical in theory than the Civil Code now pending in this State. Indeed, in perusing Mr. Butler's account of it, and his words of praise of its operation and results, we have wondered that he himself should not be an advocate of general codification. It is of course a thought not pertinent to the present purpose, but it would be gratifying to enrol him in the ranks of those who believe that the laws can and should be written, and who point to the great work of his ancestor and his associates in the revision of the statutes as conclusive evidence of the easy administration of such a body of laws and its successful and beneficial working. We learn from this essay that Chancellor Kent declined to act as one of the revisers, and for a reason quite characteristic of him. "He was willing to serve, but he did not want any associate." We fully agree with Mr. Butler that it was fortunate that he declined, and that "his exercise of the judicial function had unfitted him for sympathy and co-operation in the bold and novel methods for which the revision gave the opportunity, and which demanded the enthusiasm and courage of men of a new generation." It is evident from Mr. Butler's account that the largest amount of labor on the revision fell to his father. Nowhere else can one easily find such a striking and amusing account of the intricacy, artificiality and absurdity of the common law of real estate as in this book. Mr. Butler describes in a manner perfectly comprehensible to persons who are not lawyers, the doctrine of fines and recoveries, the rule in Shelly's case, the farcial contests of John Doe and Richard Roe, and the other ridiculous fictionary attributes of the English law. "All this," observes Mr. Butler of Messrs. Doe and Roe, "as the little marchioness in 'Old VOL. 40 No. 5.

men.

ination see the same figure standing unmoved on the deck of the sinking Ville de Havre. We recommend our readers to procure Mr. Butler's instructive and interesting book, and read it in vacation. It may be procured from Banks & Brothers of this city.

way in which the unfortunate aspirant for judicial afternoon and read on his case, bent over his books, honors vainly tried to maintain some show of a his eyes shaded by his hand, and his head followclaim to act as a judge of the court under the un- ing the lines as he plodded through the decisions. concealed contempt and visible honest indignation Rufus H. Peckham, the elder, used to dash up to the of the chief justice, was matter of considerable en- door with a pair of fine horses, descend and march tertainment for the bar and some activity on the in his stately way down the aisle the handsomest part of the court officers, and resulted in the utter man in the State, looking like a portrait of a Spandiscomforture of the judicial pretender." Noth-ish grandee by Velasquez, just stepping out of his ing could be more exquisite than the figure used by frame. - until he came to the Judge. A great the beloved and brilliant James T. Brady in speak- affection existed between the two men. Peckham ing of this great judge: "It is true that his mind would stand an instant regarding his old friend caught from the discussion, which elicited sparks with a half amused smile, then strike his cane on of flashing intelligence from the members of the the floor, and exclaim, "come, put away those bar, many a ray of parti-colored light. In that re-books, and take a trot with me. The old judge spect the gem set within his soul suggested a close would start, look up in a dazed way, heave a comparison to another jewel highly prized among sigh as if regretting to part even for an hour with It could give back all the tints cast upon it; the law books which were to him more fascinating but it remained still the diamond - brilliant in its than novels, and go off leaning on the arm of his pure integrity, with its singleness of color, and its stalwart friend. Every time we see the superb capacity to diffuse more light than its face re- portrait of Peckham in the Court of Appeals chamceived." Naturally a considerable part of the bio-ber we recall this oft-repeated scene, and in imaggraphical sketches is devoted to Benjamin F. Butler, and this is executed with unfailing good taste. We are glad to have such a picture of one of the most learned, brilliant, indefatigable and self-sacrificing of men. A charming letter from Vice-President Van Buren to him, urging his acceptance of the office of attorney-general under President Jackson, shows in the writer, as Mr. Butler says, "the Saratoga county is a bad place for some great exercise of qualities as far removed from the du- military reputations. Col. Fellows and Gen. Burplicity of political intrigue as his pure personal goyne both came to grief there. The latter cercharacter and fidelity to duty were alien to the low tainly was outnumbered, and the former thinks he instincts of his traducers." Very interesting to was. He has uttered some very sensible opinions Albanians is the account of the elder Butler's dis- on the impolicy of going to the country to try such cussion, arranged by Edward C. Delavan, on the a case. The question then is, why did he go? duty of "total abstinence " from intoxicating drink, Why did he not try his fortune again in New York? with an English clergyman by the name of James, It is very foolish in him and his associates to talk in which the latter failed to convince Mr. Butler about bribery. There was no need of bribery. that the Bible inculcates "total abstinence" as a There was not evidence enough to convict, and duty. Although meant as a sneer, it was really a there never was in any of the cases, and after the compliment to Mr. Butler that he was called the subsidence of the early popular excitement, and afpresident's "conscience-keeper." An account is ter the newspaper men became tired of railing here given of the great Schuyler trust case, which about the boodlers, there was no fair prospect of engrossed an entire term of the old Court of Ap-conviction in the city or in the country. It may be peals in the argument, and the decision of which that the local counsel at Ballston were more expert occupies half of volume fifteen of the New York Re-in getting friends on the jury than the strangers ports. Probably no other case on appeal in this country ever took so much time or exhibited so much talent at the bar. One side was represented by Greene C. Bronson, Samuel Beardsley and Nicholas Hill, and the other by Benjamin F. Butler, Charles O'Conor, William Kent and William Curtis Noyes, the greatest lawyers of the State, and greater than two of whom certainly none have ever lived in this country. The argument of this case, which we daily attended, is one of the most vivid recollections of our student days. One scene which we witnessed more than once is amusingly illustrative of the character of one of these men, and of another, well known and remembered with deep regret for his untimely fate. In those days we used to read law in the State library. Judge Beardsley, stricken in years, and feeble of vision, used to come in every

from New York. We ourselves know how that is, for we were concerned many years ago in an antirent murder case removed from Rensselaer to Saratoga county, in which local counsel were retained, and after our client was acquitted we were shocked and surprised to hear that our local counsel had eight of his clients and tenants on the jury! But as the late William A. Beach, a Saratoga man, although resident in New York city, was of counsel for the people, we did not feel any stings of conscience, for we of course depended on him to look out for himself. The Colonel says he shall not try any more boodlers. He is to be applauded for this determination. And now Justice Daniels must scratch around to find some other employment for his spare hours. How would it answer to constitute him the much needed and long sought "relief" of the Federal

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NOTES OF CASES.

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Supreme Court? We guarantee that he would ing with sleds, without interruption by the city auknock off the arrears in no time. thorities, upon a sidewalk which the defendants were bound to keep in repair, and had made the snow and ice upon it so slippery as to be dangerous; that while the plaintiff wife was walking upon the sidewalk on a dark evening, a boy, in sliding, Mahogany v. Ward, Rhode Island Supreme ran upon her with his sled and threw her down, Court, February 23, 1889, B., driving on a high- whereby she received the injury complained of; way and meeting plaintiff, did not turn to the right that she did not see the boy or sled until she was of the center of the road as required by law, and struck, and by reason of the slippery condition of plaintiff was in consequence compelled to drive the sidewalk could not have avoided them if she upon the side of the road, and was injured by col- had seen them coming. The court held, affirming liding with a post standing outside of, but close to the prior cases of Rowell v. City of Lowell and Kidthe travelled carriage-way. Held, that the wrong- der v. Inhabitants of Dunstable, that as it did not apful act of B. was the proximate cause of the injury, pear that the plaintiff, Mrs. Shepherd, was injured and the town was not liable. The court said: "As by the alleged defect in the way, but it was clear in law it is the proximate and not the remote cause that the accident happened in part from the unlawwhich is regarded, he who is guilty of the original ful or careless act of a third person, the action negligence is not chargeable, but redress must be could not be sustained. The rule above stated is sought from him who directly caused the injury. subject to the qualification that if the intervening Perhaps this principle is nowhere more clearly stated act is such as might reasonably have been anticithan by Wharton in his treatise on the Law of Neg-pated as the natural or probable result of the origiligence, sections 134, 199. And see also nal negligence, the original negligence will, not2 Thomp. Neg. 1089, § 6; Houfe v. Town of Fulton, withstanding such intervening act, be regarded as 29 Wis. 296, 307; Cuff v. Railroad Co., 35 N. J. the proximate cause of the injury, and will render Law, 17, 32. In Rowell v. City of Lowell, 7 Gray, the person guilty of it chargeable. Whart. Neg., 100, in which the plaintiff while passing out of the § 145; 2 Thomp. Neg. 1089, § 6; Lane v. Atlantic post-office building slipped from the steps, which Works, 111 Mass. 136, 139, 141; Griggs v. Fleckenwere outside the limits of the street, and for the stein, 14 Minn. 81 (Gil. 62); Clark v. Chambers, L. R., condition of which the defendant was not responsi-3 Q. B. Div. 327; Burrows v. Coke Co., L. R., 7 ble, to the sidewalk, and then continued slipping Exch. 96, 97; Dixon v. Bell, 5 Maule & S. 198, 199; until she fell and was injured, both the steps and Illidge v. Goodwin, 5 Car. & P. 190, 192; Lynch v. sidewalk being so covered with ice as to be slippery Nurden, 5 Jur. 797. But we do not think that it and unsafe, and having remained so more than can be reasonably held that the town ought to have twenty-four hours, the court held the defendant not anticipated, as a probable result of permitting the liable, and in distinguishing the case from Palmer post to remain by the side of the road, that some v. Inhabitants of Andover, 2 Cush. 600, one of the one would be forced against it by the wrongful and cases supporting the rule applied in Hampson v. Tay- unlawful conduct of another in keeping the middle lor, said: 'We think the only exception to the rule of the travelled path instead of turning to the right that the plaintiff cannot recover unless the defect of the center of it, as required by the statute. in the highway was the sole cause of the injury, Parker v. City of Cohoes, 10 Hun, 531; affirmed, 74 must be one where the contributing cause was a N. Y. 610, the water commissioners of the city of pure accident, and one which common prudence Cohoes, acting under authority of law, made an exand sagacity could not have foreseen and provided cavation in one of the streets for the purpose of against.' In Kidder v. Inhabitants of Dunstable, 7 laying water-pipes for public and general use, and Gray, 104, an action to recover damages for an in- in so doing caused earth to be thrown out along the jury from a defect in a highway, the court says: trench, and also brought into the street a heap of 'The alleged defect in the highway here was a neg- sand for use in the work. At the end of the day lect to remove the snow therefrom, and the injury barriers, consisting of planks extending from sideis alleged to have been received by the upsetting of walk to sidewalk, supported by barrels placed in the sleigh in which the plaintiff was travelling upon the street, were erected to prevent vehicles from * * The court are of the opinion entering the street. Subsequently some person, that if this injury was caused wholly by Coburn, without the authority or knowledge of the commisor was the combined result of a defect in the high- sioners, removed one of the barriers, and the plainway, and carelessness or negligence on the part of tiff in the darkness drove through the opening thus Coburn in driving his vehicle, whereby the stakes made, ran upon the obstruction, and was thrown in his sled struck the sleigh of the plaintiff and from his carriage and injured. It was held that overturned it, the defendants are not chargeable the defendant was not bound to anticipate mistherefor.' So too in Shepherd v. Inhabitants of Chel-chievous or wrongful acts on the part of others, and sea, 4 Allen, 113, the plaintiffs sued for an injury to the plaintiff wife by reason of a defective highway. It was proved or admitted for the purposes of the trial that boys had been in the habit of slid

the road.

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hence was not bound to guard against them. See also Doherty v. Inhabitants of Waltham, 4 Gray, 596; McGinity v. Mayor, etc., 5 Duer, 674.”

was unchaste, and that she had become pregnant, and had committed an abortion, held that the court properly refused to make an order requiring her to submit her person to a medical examination, for the purpose of furnishing evidence under defendant's plea of justification. The court said: "We are not cited to any case where any court has held such an examination to be proper, and we think none can be found. One should not publish and circulate slanderous charges against a young unmarried female, as proven in this case, without being able to substantiate them when called upon to do so, without calling upon the court to aid in the search for evidence in his behalf by ordering and subjecting her to an indelicate examination of her person, with the hope of obtaining some information advantageous to the defense, and call to his aid the power of the court as a means of humiliating her still more. When one voluntarily asserts a slanderous charge against another, and defends by alleging the truth of his assertion, he must be able to substantiate the truth of the charge without invading the privacy of the person about whom the charge is made. The court very properly refused to make the order requiring the plaintiff to submit her person to an examination." See note, 50 Am. Rep. 156.

In Middleditch v. Williams, New Jersey Preroga-lication being that plaintiff, an unmarried female, tive Court, June 17, 1889, it was held that a believer in " spiritualism may make a valid will. The court said: "The testator's belief in spiritualism was not a morbid fancy, but a conviction produced by evidence. The proofs show that when he first commenced attending what are called 'séances' he was inclined to be skeptical. Afterward his mind seemed to be in an unstable condition - he sometimes believed and at others doubted; and it was not until the spirits gave an extraordinary exhibition of their power, by printing or painting on a pin worn by his mother-in-law on her neck, in brilliant letters, which sparkled like diamonds, the word 'Dickie,' a pet name of his dead wife, that his last doubts as to the reality of the manifestations were removed. Believing, as I do, that these manifestations were correctly described by ViceChancellor Giffard in Lyon v. Home, L. R., 6 Eq. 655-681, when he called them 'mischievous nonsense, well calculated on the one hand to delude the vain, the weak, the foolish and the superstitious, and on the other to assist the projects of the needy and of the adventurer,' still it seems to me to be entirely clear that it cannot be said that a person who does believe in their reality is, because of such belief, of unsound mind, or subject to an insane delusion. No court has as yet so held. No cases on this subject were cited on the argument. Those which I have examined uniformly hold that a belief in spiritualism is not insanity. The court in Robinson v. Adams, 62 Me. 369; S. C., 16 Am. Rep. 473, said: 'Belief in spiritualism is not insanity, nor an insane delusion. The term 'delusion,' as applied to insanity, is not a mere mistake of fact, or the being misled by false testimony or statements to believe that a fact exists which does not exist.' And in Brown v. Ward, 53 Md. 376; S. C., 36 Am. Rep. 422, it was said: 'The court cannot say, as matter of law, that a person is insane because he holds the belief that he can communicate with spirits (of the dead), and can be and is advised and directed by them in his business transactions and in the disposal of his property.' Substantially the same view was expressed in Otto v. Doty, 61 Iowa, 23, and also in the matter of

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WILLS CHARITABLE BEQUESTS — BENE

FICIARIES.

NEW YORK COURT OF APPEALS, JUNE 4, 1889.

RIKER V. LEO.

A bequest in remainder "to any responsible corporation in this city, existing at the time of the death" of the precedent legatee, "whose permanent fund is established by its charter for the purpose of ameliorating the condition of the Jews in Jerusalem, Palestine, * ✰✰ by promoting among them education, arts and sciences, and by learning them mechanical and agricultural vocations," does not pass to a corporation whose object, as shown by its charter, is to contribute "to the relief of the indigent Jews in Jerusalem, Palestine," of which testator, a lawyer, was an incorporator and president at the time of executing the will, and which the will does not mention, though there is no other corporation in existence, at the time mentioned, which can take the legacy.

Smith's Will, 52 Wis. 543; S. C., 38 Am. Rep. 756. A

The utmost length to which any court has gone on this subject is to declare that a belief in spiritualism may justify the setting aside of a will, when it is shown that the testator, through fear, dread or reverence of the spirit with which he believed himself to be in communication, allowed his will and judgment to be overpowered, and in disposing of his property followed implicitly the directions which he believed the spirit gave him, but in such case the will is set aside, not on the ground of insanity, but of undue influence. Thompson v. Hawks, 14 Fed. Rep. 902." See note, 36 Am. Rep. 426; note, Weed, Parsons & Co.'s ed. N. Y. Rep., Book vii, 561.

PPEAL from Supreme Court, General Term, First
Department.

John E. Parsons, for appellant.

Adolph L. Sanger and Myer S. Isaacs, for the society. GRAY, J. In this action the plaintiff seeks to have it determined whether, under the will of the decedent, American Relief Society for the Indigent Jews in Jeru the defendant Leo, or the defendant "The North

salem, Palestine," is entitled to the capital of a certain trust fund of $50,000. It was claimed by each, and thus far in the court below the society has been successful. The testator left the fund in trust to his

executors, to apply the income thereof to the support of a nephew. When he died the executors were directed to pay the same "to any responsible corporation in this city, existing at the time of the death of my said nephew, whose permanent fund is established by its charter for the purpose of ameliorating the conIn Kern v. Bridwell, Indiana Supreme Court, dition of the Jews in Jerusalem, Palestine, and I deJune 4, 1889, an action for slander, the alleged pub-ries such corporation annually to transmit the interest