judges, under familiar signatures, rush into print and express unasked opinions. The result is a loss of dignity. They are flouted at by Mrs. Weldon and others like her, the public stands by and applauds more or less vociferously according to its temper, and the judge is impotent. Finally later on in the afternoon, he revenges himself upon some innocent junior, and one goes away from the scene of action with impressions any thing but pleasant. These personal plaintiffs and defendants, whose name is not indeed legion, but according to recent returns forty, are a source of serious alarm to the profession in this country. Men complain not of the loss of some fifty or sixty briefs, for what are they amongst so many thousands, but at the inexcusable waste of time which amateurs, in their ignorance of law, practice, and the rules of evidence, invariably cause. One party in person causes the suit to consume at least five times as much time as one properly conducted under professional guidance. But worse that parties in person are those who sue in forma pauperis. They go up to the House of Lords without hesitation, they bother their counsel at all hours of the day or night without the smallest consideration, and worst of all, they fancy themselves to possess some knowledge of law upon which they chatter unendurably. Once a pauper suitor plants his foot in a man's chambers he hangs on like a leech, sucking the brains of unfortunate counsel without mercy. Amongst other sufferers your correspondent has his private affliction; a man who apparently possesses no papers, and has been hopelessly beaten in half a dozen legal conflicts, until at last his legal adviser, whose peaceful advice is never followed, has adopted the expedient of being always on circuit. Amongst the main legal topics of the day are a pending reform in the details of the Bankruptcy Act, the queen's counsel question, and the law of equitable deposits. The alteration in bankruptcy law will be merely this, that professional work in the Bankruptcy Court will obtain reasonable instead of ridiculously small remuneration. The leading principle of Mr. Chamberlain's act appears to have been that lawyers, rather than live idle, would work for nothing, and he has found himself mistaken in so much that solicitors are practically "on strike." The other principles of the act were, firstly, that as much business as possible should be transacted by government officials, and secondly, that in the administration of insolvent estates the wishes of creditors should be consulted. Upon the first point the public is dissatisfied with the result of the altered system, upon the second the act had, up to the end of December, been consistently disregarded. At that time however a severe blow was dealt at officialism by Mr. Justice Cave, to the infinite delight of the profession in general and bankruptcy practitioners in particular. The queen's counsel question is still in statu quo, and Lord Selborne's reluctance to add to the members of the inner bar remains unconquered by the protest of the victims of delay. A reform in the law of equitable deposits ought to be a subject of immediate and strong agitation. There are one or two men in America who could tell more than an honest correspondent of the manner in which the present law works for the benefit of the fraudu lent and to the ruin of the innocent. Messers. Parker and Parker, especially, are familiar with this fact. Day after day in in the Bankruptcy Court and elsewhere, it is discovered that these colossal swindlers-I do not think you need fear an action for libel-had deposited the securities of their clients with this or that banker and received personal advances in return. In these cases the public opinion is clearly coming round to the belief that the loss ought to fall not on the innocent owner of the securities but upon the banker. The latter can best afford to lose, and further, if the law were other than it is, would be remarkably careful before he placed himself in a position of possible loss. A case remarkably illustrative of this difficulty was tried at the end of the last sittings. A manufacturer handed over to his bankers the delivery order for some raw material, paid for by a worthless bill of exchange at three months, as security for a loan. It was argued on behalf of the banker that this was an ordinary trade transaction, the impeachment of which tended to destroy the whole system of credit. Plain men, amongst whom the presiding judge was one, were of opinion that if the system of credit rested on such foundations as were disclosed, its ruin would not exactly be a subject for public sorrow. A recent decision on Leeman's Act, proves the Stock Exchange to be stronger than the Legislature. The Legislature, inconveniently and perhaps foolishly, said that contracts for the sale and purchase of shares in joint-stock banks should be void unless the distinguishing numbers of the shares were set out in the contract note. This edict was issued in the full knowledge that the practice ordained would be full of inconvenience to the members of the Stock Exchange, and it has never been obeyed by them. Finally Mr. Justice Mathew, who is fully as affectionate toward business considerations as toward the majesty of the law, has so interpreted the statute that until his judgment is reversed by a higher authority the act must remain a dead letter. It comes to this: The Legislature commands speculators to abstain from a particular kind of speculation, speculators deliberately disobey, and mirabile dictu, the law backs them in their disobedience. But one doubts whether this view of the functions and authority of the judges will obtain public recognition, and whether Parliament, if the Dynamitards allow it to meet, will not parody the rebuke addressed to the men of Succoth. I fear that the virtuous tone of opinions in regard to Mrs. Yseult Dudley is confined to the press, and that the general public feels toward her as France felt to Madame Clovis Hugues, that her offense should be excused by its result. NEW BOOKS AND NEW EDITIONS. HALL'S MEXICAN LAW. The Laws of Mexico, a compilation and treatise relating to real property, mines, water rights, personal rights, contracts and inheritances. By Frederick Hall. San Francisco: A. L. Bancroft & Co., 1885. Pp. cxxiv, 840. well-arranged and practically useful digest of the peThis is apparently an exhaustive, and is certainly a culiar law which it purports to give. The publisher has done his work well. IX SAWYER'S REPORTS. This volume, published by A. L. Bancroft & Co., of San Francisco, contains interesting cases, but we sup pose it has been in great measure anticipated by the Federal Reporter. Those who have the preceding voland the series is of especial value. umes of the series however will probably keep it up, WAPLES ON ATTACHMENT AND GARNISHMENT. This volume, published by Callaghan & Co., of Chicago, wil not supersede Drake on Attachment, but the other topic is important and fairly treated. The book will be of considerable practical value. thoughtful letter of our correspondent "Y.," Tin our issue of February 21st last, called pub plans suggested for the relief of our appellate tribunal, that of "Y." to make judgment debtors pay up before appealing is probably as incisive as any, but we fear it is too radical, and might work hardship in individual cases. Reforms are rarely accomplished by riding rough-shod over the rights of the minority, a tendency to be guarded sedulously in a republic. In a paper recently read before the Albany Instilic attention to various remedies for the relief of tute, Mr. Gilbert M. Tucker, an accomplished philour Court of Appeals. The calendar of this tribu-ologist, accused our profession of perverting the nal is fast accumulating beyond the power of the meaning of the word "enjoined." He said: "It judges. The frequent suggestion to augment the can hardly be necessary to remark that to enjoin' sum involved so as to confine appeals to larger a course of conduct is to urge that it be followed; amounts than at present meets with just disfavor. the lawyers, oddly enough, have so perverted the The court is not for the rich, nor are appeals in meaning as to reverse it completely; in their lanthemselves an evil. A litigious nation is always a guage to enjoin an act is to forbid it! Thus I read free nation, and even a prudent nation. Controver- in the ALBANY LAW JOURNAL (Vol. 28, page 43), sies as to legal rights are the food of freedom, that in Leet v. Pilgrim Church, St. Louis Court of and an apathetic nation is a melancholy spectacle Appeals, the ringing of the church chimes between in history. There is no question in our minds that 9 P. M. and 7 A. M. was enjoined. The court reone immediate remedy is to cut off interlocutory fused to enjoin the ringing for worship on Sunday appeals, except in the single cases where personal or in the daylight hours,' and continued: 'But the liberty is involved. Final appeals alone should striking of the clock at night must, we think, be bring up all interlocutory questions. If judgments relegated to the category of useless noises. * * * were a lien notwithstanding security to stay execu- We therefore think that the striking of the hours tion, many dilatory appeals would also disappear. upon the largest bell between the hours of 9 P. M. But the main remedy is to raise the standard of the and 7 A. M. ought to be enjoined.' Of course this courts of first instance. Codification of substantive means that while the court declined to order the law will do something toward relieving the courts ringing of the church bells on Sunday or by dayof last resort, but the main remedy must be found light during the week, it did command that the in higher education of the bench and bar, and a chimes should be faithfully operated between 9 at greater division of skilled labor. Our omnibus law- night and 7 in the morning. Of course, also, the yers are breaking down, and the courts derive pain- writer of the paragraph, and the learned judge fully little assistance from the advocates, because who prepared the opinion, intended that their the latter most frequently are improperly familiar words should mean the precise opposite. * * * with the line of discussion. Their efforts being Meaning forbid, why could they not say forbid? tentative, not confident nor to the main issue. A Or if it is considered desirable to have a special class of counsel for the Court of Appeals and for word to signify the formal forbidding of an action work in banc would mightily aid the Appellate by a writ, far, far better would it be to raise to reCourts. We concede that this supposition needs spectability a term which is now ranked with the to be carefully elaborated so as to prevent a noblesse vilest newspaper slang, and say that the action is de la robe, unfitted for democracy. This however "injuncted." It may be answered that this horrican be done, and meanwhile we only suggest that ble word, if it means any thing, must be synonythe folly of saying that a division of labor is expe- mous with enjoined; but the fact is, it has never dient for a cotton factory and bad for a "law fac- been used except to signify forbidden by injunction; tory," must be patent to the reflecting. Much of and as for its irregular formation, one who cares the evil complained of is due to the selfishness of more for the substance of the language, its real serour leading advocates, and their willingness to de- viceableness in expressing thought, than for the reprive the State of their services, if only they can finements of grammatical science, will easily disrebe employed in purely ministerial attorney business. gard that objection." Mr. Tucker is unquestionably Some of our leading advocates, instead of aiding le- right. Now let him "go for" the barbarians who gal administration become the mere agents of cor- use "garnishee" as a verb. porate speculation, of indigent juniors at the bot tom of the legal firm, or of other bad or doubtful agencies. Owing to counsel's partnerships, again, attorneys frequently refrain from employing counsel, there being no esprit d'honneur among them not to ultimately engage the attorney's client. All these are elements of our present difficulty. Some day we shall elaborate them to the point of demonstration; here we crudely suggest them. Of all the VOL. 31-No. 10. We once asserted that the State of New York had never paid a dollar for a statue, bust or portrait of any one of her public men. This it seems was a slight mistake. The State did once, we believe, buy a very bad portrait of Lincoln, which is somewhere it does not matter where in the Capitol. Meanwhile the State has spent fifteen millions on its capitol, and is likely, we think, to spend as much more. But an appropriation of a very trifling amount to purchase Palmer's statue of Chancellor Livingston has been twice vetoed by over-prudent governors. This bronze statue, by our honored and talented townsman, a duplicate of one in the National Capitol, has stood for several years in the State Capitol, and for a year in the Court of Appeals chamber. It is the noblest statue of a public man that we know of, unique in its simplicity, grace, dignity and refinement. Its subject was the first chancellor of our State. His fame as a magistrate is traditional, because there was no reporter of his court in his day, and he shares the fate of the heroes who lived before Agamemnon, and who had no poet to commemorate them. But his reputation as a statesman and citizen is on a firm basis. He was one of the most useful and far-sighted citizens of his time. Our State owes much to such as Livingston and DeWitt Clinton. This statue ought to remain where it is, fronting the bench of our highest court, and the cost of it would be a very small acknowledgment of the services of the great man whom it figures, and of the genius which has created it. We hope the legislature will resolve to buy it, and that the governor will approve the resolve. Let it not be said that the State of New York is squandering hundreds of thousands of dollars on useless and inappropriate ornamentation of its capitol, but is too poor to buy a statue of one of its chief men who made the State rich and great. There are two important legal compilations in course of publication, continually coming to us, and calling for and deserving remark—the American Decisions and Myer's Federal Decisions. Of the former, now in the 61st volume, and brought down to the year 1854, we have so often spoken in terms of praise, that the doctrine of stare decisis alone would compel us to stand by our opinion. But we see no reason to change our judgment. Everything about the series is excellent, and its usefulness must increase every day. Of the other publication, volumes six and seven of which are about to appear, we have formed a very favorable impression. The scheme is admirable, and the editorial staff is unprecedented for special learning and reputation, and from what we have seen of the series we believe the work will be very useful. The usefulness of this series also must increase with time, as the snowball of adjudication grows too unwieldly to be rolled. These are two very great works, and much depends on them for the relief of the coming lawyer. turing the hirer, is entitled to the statutory reward for the apprehension of horse thieves. The court said: "The statute makes no distinction between the owner of the horse stolen and any other person. The reward is to any one who shall pursue and apprehend the thief. We see no reason for excluding the owner from the benefit of a statute which seeks to encourage the most active pursuit of a thief, who takes property susceptible of such rapid removal to a distant place. It does not matter by what mode the larceny be committed, whether by a bailee or otherwise, the requirement of the statute is fulfilled provided the person pursued and apprehended shall have stolen one of the animals named, and shall have been duly convicted thereof." a tele In Sullivan v. Kuykendall, Kentucky Court of Appeals, January 22, 1885, 6 Ky. L. J., and Rep. 481, where A., desiring to talk over phone with B., asked the operator to call him, and the operator thereupon had a conversation with B., reporting to A., who was standing by, what B. said as it came over the wire, held, in a subsequent action between A. and B. that the former might prove by himself and others what the operator reported to him as coming from B., the operator being called and not remembering the conversation. The court said: "It would beyond question have been competent to prove by the Morgantown operator what Sullivan said to him; but whether his report to the appellee of what Sullivan was saying, made as the conversation progressed, is competent or falls within the domain of incompetent hearsay testimony is a question of importance in view of the astonishing growth of the business to which it relates, and one not free from difficulty. In the case of a telegram the original must usually be produced in evidence, or its loss shown, before its contents can be proven or the copy delivered by the operator to the party receiving the message used, useless it be where the copy becomes primary testimony by the telegraph company being the agent of the sender. In the use of the telephone however the parties talk with each other as if face to face; and save where a message is sent, there is no written evidence of what has passed. By inventive means they are brought together for the transaction of business. It is a well-settled rule that where one through an interpreter makes statements to another, the interpreter's statement made at the time of what was so said is competent evidence against the party. The interpreter need not be called to prove it; but the interpreter's statement made at the time may be proven by third persons, who were present and heard it. Camerline v. Palmer Co., 10 Allen, 539; Schearer v. Harber, 36 Ind. 536; 1 Greenl. Ev., § 183; 1 Phillips Ev., 519 (side page). The reason of this rule is, that the interpreter is the agent of both parties, and acting at the time within the scope of his authority; and we have been unable to draw any satisfactory distinction between this case and the one under consideration. The argument is at least plausible, if not correct, that the testimony in question is competent as a part of the res gesta, aside from the question of agency. It is true the parties cannot see each other; but the statements of an interpreter between blind persons could be proven by third parties, without calling the interpreter as a witness; and by telephonic means persons are as much together for all purposes of conversation and actors in what may be occurring as if they were immediately present with each other. We must not be understood however as holding the testimony competent upon the above ground, because there is another reason for so ruling which is conclusive to our minds. Subject to various qualifications the old rule that a party must produce the best evidence within his power to prove a fact should govern. But as business expands by the aid of new inventions wider scope must be given to the rules of evidence. There is no need however of any departure or innovation in this case, because it is a well-settled rule of evidence that the statements of an agent, when acting within the scope of his agency, are competent against his principal. When one is using the telephone, if he knows that he is talking to the operator, he also knows that he is making him his agent to repeat what he is saying to another party; and in such a case certainly the statements of the operator are competent, being the declarations of the agent made during the progress of the transaction. If he is ignorant whether he is talking to the person with whom he wishes to communicate or with the operator, or even any third party, yet he does it with the expectation and intention on his part that in case he is not talking with the one for whom the information is intended, that it will be communicated to that and person; he thereby makes the person receiving it his agent to communicate what he may have said. This should certainly be the rule as to an operator, because the person using a telephone knows that there is one at each station whose business it is to so act; and we think that the necessities of a growing business require this rule, and that it is sanctioned by the known rules of evidence." In Goodwin v. Young, 34 Hun, 252, a servant of the plaintiff, a resident of Vermont, took a team of Richardson v. N. Y. C. R. R., 98 Mass. 85. The present is not quite such a case. The sale of liquor was not a wrongful act, either at common law or by the statute. It might have been an act which the defendant was specially licensed to do by the authorities of the State. The plaintiff urges that a sale of a glass to be drunk on the premises, and of two bottles to be carried away, must have violated some part of the excise law. But under the civil damage act it is of no consequence whether or not the vendor was licensed. We need not therefore consider the subject of the excise law. The wrongful act which caused the injury to the plainttiff was the act of Connelly, his servant, and was done in Vermont. The plaintiff undoubtedly had a right of action against Connelly for negligence, on which he could have sued in Vermont, and probably here also. But our statute gives a cause of action for the injury, and this, as it is a special statutory provision, must refer to an injury done in this State. It cannot be intended to have an extra-territorial effect. The statute is peculiar, in that it makes an innocent man liable for the wrongful act of another. But we are confident that its effect must be limited to the State. This case is similar to that of Le Forest v. Talman, 117 Mass. 109; S. C., 19 Am. Rep. 400. There the defendant owned a dog in Massachusetts. The dog strayed into New Hampshire and bit plaintiff. The plaintiff claimed to make the defendant liable on a Massachusetts statute, making every owner of a dog liable in double damages to every person injured. But it was held that the action could not be sustained. See cases there cited. Our statute, as it were, imposes upon certain injuries this quality, viz.: that a person is liable for the inthat quality to an injury caused out of the State." juries who did not cause them. It does not give See Willis v. Mo. Pac. Ry. Co., 61 Tex. 432; S. C., 48 Am. Rep. 301; Hyde v. Wabash, etc., Ry. Co., 61 Iowa, 441; S. C., 47 Am. Rep. 820; Taylor's Adm'r. v. Penn. Co., 78 Ky. 348; S. C., 39 Am. Rep. 244; S. C., 47 Am. Rep. 771; McCarthy v. Chicago etc., R. Herrick v. Minn. and St. L. Ry. Co., 31 Minn. 11; Co., 18 Kans. 46; S. C., 47 Am. Rep. 771. horses belonging to his master, drove them into this RULES AS TO THE PRIVILEGES OF WIT State, and there drank a glass of liquor upon the defendant's premises and purchased whisky from him. He returned to Vermont intoxicated and placed one of the horses in a stable, leaving the door open. whereby the horse took cold and died. Held, that no action would lie here under the Civil Damage Act, there being no corresponding statute in Vermont. The court said: "Several cases cited by counsel are instances where a wrongful act, done in one State, has caused injury to a person there, and person or his representative has sued to recover damages for such injury in another State. Leonard V. Col. Steam N. Co., 84 N. Y. 48; S. C., 38 Am. Rep. 491; Whitford v. Panama R. Co., 23 N. Y. 465; that NESSES. In case 3 it was said: "We are all of opinion that it cannot be laid down that all public documents, including treaties with foreign powers, and all the correspondence that may precede or accompany them, and all communications to the heads of departments are to be produced and made public whenever a suitor in a court of justice thinks that his case requires such production. It is manifest (we think) that there must be a limit to the duty or the power of compelling the production of papers which are connected with acts of State. As an instance, we would put the case of a British minister at a foreign court, writing in that capacity a letter to the secretary of State for foreign affairs in this country, containing matter injurious to the reputation of a foreign or a British subject. Can it be contended that the person referred to would have a right to compel the production of the letter in order to take the opinion of a jury whether the injurious matter was written maliciously or not? We are of opinion that if the production of a State paper would be injurious to the public service, the general public interest must be considered paramount to the individual interest of a suitor in a court of justice; and the question then arises, how is this to be determined? It is manifest it must be determined either by the presiding judge, or by the responsible servant of the crown in whose custody the paper is. The judge would be unable to determine it without ascertaining what the document was, and why the publication of it would be injurious to the public service an inquiry which cannot take place in private, and which taking place in public may do all the mischief which it is proposed to guard against. It appears to us therefore that the question whether the production of the documents would be injurious to the public service must be determined, not by the judge, but by the head of the department having the custody of the paper; and if he is in attendance, and states that in his opinion the production of the document would be injurious to the public service, we think the judge ought not to compel the production of it. The administration of justice is only a part of the general conduct of the affairs of any State or Nation, and we think is (with respect to the production or non-production of a State paper in a court of justice) subordinate to the general welfare of the community. If, indeed, the head of the department does not attend personally to say that the production will be injurious, but sends the document to be produced or not, as the judge may think proper, or as was the case in Dickson v. The Earl of Wilton, before Lord Campbell (Foster and Finlason's N. P. Rep. 425), where a subordinate was sent with the document, with instructions to object, but nothing more, the case may be different. My brother Martin does not entirely agree with us as to this view of the point in question. My brother Martin is of opinion that whenever the judge is satisfied that the document may be made public without prejudice to the public service, the judge ought to compel its production, notwithstanding the reluctance of the head of the department to produce it, and perhaps cases might arise where the matter would be so clear that the judge might well ask for it, in spite of some official scruples as to producing it; but this must be considered rather as an extreme case, and extreme cases throw very little light on the practical rules of life." 1. The governor of a State is summoned by subpœna to attend a trial at a certain time. He does not attend, alleging that he is occupied with offi cial business which prevents his attendance. His excuse must be received (1). In case 1 it was said: "As the governor is the chief executive of this Commonwealth, and as such embodies the power of the people for the conservation of the peace and the protection of the rights and property of the citizens of the State; as he is also part of the legislative branch of the government, it must be obvious to every one that there are times when he must be excused from the ordinary process of the courts. We presume it will not be contended that he would be obliged to obey the mandate of a subpoena during the session of the Legislature, when his presence at the capitol is constantly required, or whilst engaged in the suppression of an insurrection. These however do not embrace all his duties as governor; we must therefore go one step further, and concede that he is exempt from such process whenever engaged in any duty pertaining to his office. Granting that there may be times when he is not so engaged, and when he might be free to answer to a subpoena, who is to be the judge of his engagements or disengagements? May he be compelled to appear before a court and submit himself to the judgment thereof as to whether his duties, just then, require him to be in his office at Harrisburg, or at the head of the army in the field, or whether he may not have a few days of leisure, during which he may await the will and pleasure of a grand jury? It will be conceded that in all ordinary cases he must himself judge as to what things he must do and what things he must leave undone, and that this is a duty imposed upon him by the Constitution. But how then shall a court at any time step in and assume the power of judging for him? This cannot be done except by an unwarrantable assumption of executive prerogative. The same reasoning which brings us to the conclusion that the governor is the absolute judge of what official communications to himself or his department may or may not be revealed, in like manner leads us to conclude that he must be the sole judge, not only of what his official duties are, but also of the time when they should be attended to. The governor, disavowing any disrespect to the court or its process, has answered that in consequence of his constant communication with the State forces now in the field, in the disorderly and riotous districts, his time is fully occupied in the discharge of the duties of his office, and that to leave his post would endanger the interests of the public service. This brings us face to face with the question whether the executive, or the courts for him, are to determine the character of his official duties, and the order in which they may be performed. For instance, is obedience to a subpœna one of his duties, and if so, shall he discharge that duty in preference to that which rests upon him as commander-in-chief? The answer to this question is easy; for if the courts can in any one instance, or at any one time, control or direct the (1) Hartranft's Appeal, 85 Pa. St. 449 (1877). |