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judges, under familiar signatures, rush into print and to the belief that the loss ought to fall not on the inexpress unasked opinions. The result is a loss of dig- nocent owner of tbe securities but upon the banker. nity. They are flouted at by Mrs. Weldon and others The latter can best afford to lose, and further, if the like her, the public stauds by and applauds more or law were other than it is, would be remarkably careless vociferously according to its temper, and the ful before he placed himself in a position of possible judge is impotent. Finally later on in the afternoon, loss. A case remarkably illustrative of this difficulty he revenges himself upon some innocent junior, and was tried at the end of the last sittings. A manufactone goes away from the scene of action with impres- urer handed over to his bankers the delivery order for sions any thing but pleasant.

some raw material, paid for by a worthless bill of exThese personal plaintiffs and defendants, whose change at three months, as security for a loan. It was name is not indeed legion, but according to recent re- argued on behalf of the banker that this was an orditurns forty, are a source of serious alarm to the pro). nary trade transaction, the impeachment of which fession in this country. Men complain not of the loss tended to destroy the whole system of credit. Plaio of some fifty or sixty briefs, for what are they amougst men, amongst whom the presiding judge was one, so many thousands, but at the inexcusable waste of were of opinion that if the system of credit rested on time which amateurs, in their ignorance of law, prac- such foundations as were disclosed, its ruin would not tice, and the rules of evidence, invariably cause. One exactly be a subject for public sorrow. party in person causes the suit to consume at least five A recent decision on Leeman's Act, proves the Stock times as much time as one properly conducted under Exchange to be stronger than the Legislature. The professional guidance. But worse that parties in per- Legislature, inconveniently and perhaps foolishly, said son are those who sue in forma pauperis. They go up that contracts for the sale and purchase of shares in to the House of Lords without hesitation, they bother joint-stock banks should be void unless the distintheir counsel at all hours of the day or night without guishing numbers of the shares were set out in the the smallest consideration, and worst of all, they contract note. This edict was issued in the full knowlfancy themselves to possess some knowledge of law edge that the practice ordained would be full of incon. upon which they chatter unendurably. Once a paupervenience to the members of the Stock Exchange, and suitor plants his foot in a man's chambers he hangs on it has never been obeyed by them. Finally Mr. Juslike a leech, sucking the brains of unfortunate coun- tice Mathew, who is fully as affectionate toward busi. sel without mercy. Amongst other sufferers your ness considerations as toward the majesty of the law, correspondent has his private affiction; a man who ap- has so interpreted the statute that until his judgment parently possesses no papers, and has been hopelessly is reversed by a higher authority the act must remain beaten in half a dozen legal conflicts, until at last his a dead letter. It comes to this: The Legislature comlegal adviser, whose peaceful advice is never followed, mands speculators to abstain from a particular kind has adopted the expedient of being always on cir- of speculation, speculators deliberately disobey, and cuit.

mirabile dictu, the law backs them in their disobeAmongst the main legal topics of the day are a dience. But one doubts whether this view of the pending reform in the details of the Bankruptcy Act, functions and authority of the judges will obtain pubthe queen's counsel question, and the law of equitable lic recognition, and whether Parliament, if the Dynadeposits. The alteration in baukruptcy law will be mitards allow it to meet, will not parody the rebuke merely this, that professional work in the Bankruptcy addressed to the men of Succoth. Court will obtain reasonable instead of ridiculously I fear that the virtuous tone of opinions in regard to gmall remuneration.

Mrs. Yseult Dudley is confined to the press, and that The leading principle of Mr. Chamberlain's act ap- the general public feels toward her as France felt to pears to have been that lawyers, rather than live idle, Madame Clovis Hugues, that her offense sbould be exwould work for nothing, and he has found himself cused by its result. 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

NEW BOOKS AND NEW EDITIONS. by goverument officials, and secondly, that in the administration of insolveut estates the wishes of credit

HALL'S MEXICAN LAW. ors should be consulted. Upon the first point the

The Laws of Mexico, a compilation'and treatise relating to real publio is dissatisfied with the result of the altered

property, mines, water rights, personal rights, contracts system, upon the second the act had, up to the end of

and inheritances. By Frederick Hall, San Francisco: A. December, been consistently disregarded. At that

L. Bancroft & Co., 1885. Pp. cxxiv, 840. time however a severe blow was dealt at officialism by Mr. Justice Cave, to the infinite delight of the profeswell-arranged and practically useful digest of the pe

This is apparently an exhaustive, and is certainly a sion in general and bankruptcy practitioners in particular.

culiar law which it purports to)give. The publisher

has done his work well. 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

IX SAWYER'S REPORTS. the victims of delay.

This volume, published by A. L. Bancroft & Co., of A reform in the law of equitable deposits ought to

San Francisco, contains interesting cases, but we sup. be a subject of immediate and strong agitation. There are one or two men in America who could tell more

pose it has been in great measure anticipated by the

Federal Reporter. Those who have the preceding volthan an honest correspondent of the manner in which

umes of the series however will probably keep it up, the present law works for the benefit of the fraudu

and the series is of especial value. 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

WAPLES ON ATTACHMENT AND GARNISHMENT. do not think you need fear an action for libel-had de- This volume, published by Callaghan & Co., of Chiposited the securities of their clients with this or that cago, wil not supersede Drake on Attachment, but the banker and received personal advances in return. In other topic is important and fairly treated. The book these cases the publio opinion is clearly coming round will be of considerable practical value.

The Albany Law Journal.

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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, ALBANY, MARCH 7, 1885.

but we fear it is too radical, and might work hardship in individual cases. Reforms are rarely ac

complished by riding rough-shod over the rights OURRENT TOPICS.

of the minority, a tendency to be guarded sedu

lously in a republic. THE thoughtful letter of our correspondent "Y.,"

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 bistory. 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, pot 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, We once asserted that the State of New York had attorneys frequently refrain from employing coun- never paid a dollar for a statue, bust or portrait of sel, there being no esprit d'honneur among them any one of her public men.

This it seems was a not to ultimately engage the attorney's client. All slight mistake. The State did once, we believe, these are elements of our present difficulty. Some buy a very bad portrait of Lincoln, which is someday we shall elaborate them to the point of demon- where

it does not matter where – in the Capitol. stration; here we crudely suggest them.

Of all the Meanwhile the State has spent fifteen millions on its Vol. 31 - No. 10.

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capitol, and is likely, we think, to spend as much turing the hirer, is entitled to the statutory reward more. But an appropriation of a very trifling for the apprehension of horse thieves. The court amount to purchase Palmer's statue of Chancellor said: “The statute makes no distinction between Livingston has been twice vetoed by over-prudent the owner of the horse stolen and any other person. governors. This bronze statue, by our honored | The reward is to any one who shall pursue and apand talented townsman, a duplicate of one in the prehend the thief. We see no reason for excluding National Capitol, has stood for several years in the the owner from the benefit of a statute which seeks State Capitol, and for a year in the Court of Appeals to encourage the most active pursuit of a thief, who chamber. It is the noblest statue of a public man takes property susceptible of such rapid removal to that we know of, unique in its simplicity, grace, a distant place. It does not matter by what mode dignity and refinement. Its subject was the first the larceny be committed, whether by a bailee or chancellor of our State. His fame as a magistrate otherwise, the requirement of the statute is fulfilled is traditional, because there was no reporter of his provided the person pursued and apprehended shall court in his day, and he shares the fate of the heroes have stolen one of the animals named, and shall who lived before Agamemnon, and who had no have been duly convicted thereof." 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

In Sullivan v. Kuykendall, Kentucky Court of his time. Our State owes much to such as Living- Appeals, January 22, 1885, 6 Ky. L. J., and Rep. ston and De Witt Clinton. This statue ought to re- 481, where a., desiring to talk over

a telemain where it is, fronting the bench of our highest phone with B., asked the operator to call him, court, and the cost of it would be a very small and the operator thereupon had a conversation with acknowledgment of the services of the great man B., reporting to A., who was standing by, what B. whom it figures, and of the genius which has created said as it came over the wire, held, in a subsequent it. We hope the legislature will resolve to buy it, action between A. and B. that the former might and that the governor will approve the resolve. prove by himself and others what the operator reLet it not be said that the State of New York is ported to him as coming from B., the operator being squandering hundreds of thousands of dollars on

called and not remembering the couversation. The useless and inappropriate ornamentation of its capi- court said: “It would beyond question have been tol, but is too poor to buy a statue of one of its competent to prove by the Morgantown operator chief men who made the State rich and great.

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 There are two important legal compilations in within the domain of incompetent hearsay testimony course of publication, continually coming to us, is a question of importance in view of the astonishand calling for and deserving remark — the Ameri- ing growth of the business to which it relates, and can Decisions and Myer's Federal Decisions. Of

one not free from difficulty. In the case of a telethe former, now in the 61st volume, and brought gram the original must usually be produced in evidown to the year 1854, we have so often spoken in dence, or its loss shown, before its contents can be terms of praise, that the doctrine of stare decisis proven or the copy delivered by the operator to the alone would compel us to stand by our opinion. party receiving the message used, useless it be where But we see no reason to change our judgment. the copy beeomes primary testimony by the teleEverything about the series is excellent, and its use- graph company being the agent of the sender. In fulness must increase every day. Of the other the use of the telephone however the parties talk publication, volumes six and seven of which are with each other as if face to face; and save where about to appear, we have formed a very favorable a message is sent, there is no written evidence of impression. The scheme is admirable, and the what has passed. By inventive means they are editorial staff is unprecedented for special learning brought together for the transaction of business. It and reputation, and from what we have seen of the is a well-settled rule that where one through an inseries we believe the work will be very useful. The terpreter makes statements to another, the inusefulness of this series also must increase with terpreter's statement made at the time of what was time, as the snowball of adjudication grows too un- so said is competent evidence against the party. wieldly to be rolled. These are two very great The interpreter need not be called to prove it; but works, and much depends on them for the relief the interpreter's statement made at the time may of the coming lawyer,

be proven by third persons, who were present and heard it. Camerline v. Palmer Co., 10 Allen, 539;

Schearer v. Harber, 36 Ind. 536; i Greenl. Ev., S NOTES OF CASES

183; 1 Phillips Ev., 519 (side page). The reason of this rule is, that the interpreter is the agent of both

IN o

preme Court, October 22, 1884, 15 Week. Notes his authority; and we have been unable to draw Cases, 464, it was held that the owner of a horse any satisfactory distinction between this case and let for hire and sold by the hirer, pursuing and cap- the one under consideration. The argument is at

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least plausible, if not correct, that the testimony in Richardson v. N. Y. C. R. R., 98 Mass. 85. The question is competent as a part of the res geste, present is not quite such a case. The sale of liquor aside from the question of agency.

It is true the was not a wrongful act, either at common law or parties cannot see each other; but the statements of by the statute. It might have been an act which an interpreter between blind persons could be the defendant was specially licensed to do by the proven by third parties, without calling the inter- authorities of the State. The plaintiff urges that preter as a witness; and by telephonic means per- a sale of a glass to be drunk on the premises, and sons are as much together for all purposes of con- of two bottles to be carried away, must have vioversation and actors in what may be occurring as if lated some part of the excise law. But under the they were immediately present with each other. civil damage act it is of no consequence whether or We must not be understood however as holding not the vendor was licensed. We need not there. the testimony competent upon the above ground, fore consider the subject of the excise law. The because there is another reason for so ruling which wrongful act which caused the injury to the plaintis conclusive to our minds. Subject to various qual- tiff was the act of Connelly, his servant, and was ifications the old rule that a party must produce the done in Vermont. The plaintiff undoubtedly had a best evidence within his power to prove a fact right of action against Connelly for negligence, on should govern. But as business expands by the aid which he could have sued in Vermont, and probably of new inventions wider scope must be given to the here also. But our statute gives a cause of action rules of evidence. There is no need however of for the injury, and this, as it is a special statutory any departure or innovation in this case, because it provision, must refer to an injury done in this State. is a well-settled rule of evidence that the statements It cannot be intended to have an extra-territorial of an agent, when acting within the scope of his effect. The statute is peculiar, in that it makes an agency, are competent against his principal. When innocent man liable for the wrongful act of another. one is using the telephone, if he knows that he is But we are confident that its effect must be limited talking to the operator, he also knows that he is to the State. This case is similar to that of Le Formaking him his agent to repeat what he is saying est v. Talman, 117 Mass. 109; 8. C., 19 Am. Rep. to another party; and in such a case certainly the 400. There the defendant owned a dog in Massastatements of the operator are competent, being the chusetts. The dog strayed into New Hampshire and declarations of the agent made during the progress bit plaintiff. The plaintiff claimed to make the of the transaction. If he is ignorant whether he is defendant liable on Massachusetts statute, making talking to the person with whom he wishes to com

every owner of a dog liable in double damages to municate or with the operator, or even any third

every person injured. But it was held that the acparty, yet he does it with the expectation and intention on his part that in case he is not talking Our statute, as it were, imposes upon certain injuries

tion could not be sustained. See cases there cited. with the one for whom the information is intended, that it will be communicated to that person; and

this quality, viz.; that a person is liable for the inhe thereby makes the person receiving it his agent that quality to an injury caused out of the State."

juries who did not cause them. It does not give to communicate what he may have said. should certainly be the rule as to an operator, be

See Willis v. Mo, Pac. Ry. Co., 61 Tex. 432; 8. C.,

48 Am. Rep. 301; Hyde v. Wabash, etc., Ry. Co., 61 cause the person using a telephone knows that there is one at each station whose business it is to so act;

Iowa, 441; S. C., 47 Am. Rep. 820; Taylor's Adm'r. and we think that the necessities of a growing busi

v. Penn. Co., 78 Ky. 348; S. C., 39 Am. Rep. 244; ness require this rule, and that it is sanctioned by S. C., 47 Am. Rep. 771; McCarthy v. Chicago etc.,

Herrick v. Minn, and St. L. Ry. Co., 31 Minn. 11; the known rules of evidence.”

R. Co., 18 Kans. 46; S. C., 47 Am. Rep. 771.

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In Goodwin v. Young, 34 Hun, 252, a servant of the plaintiff, a resident of Vermont, took a team of horses belonging to his master, drove them into this

RULES AS TO THE PRIVILEGES OF WITState, and there drank a glass of liquor upon the de

fendant'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,

In case 3 it was said: “We are all of opinion whereby the horse took cold and died. Held, that that it cannot be laid down that all public docuno action would lie here under the Civil Damage ments, including treaties with foreign powers, and Act, there being no corresponding statute in Ver- all the correspondence that may precede or accompany mont. The court said: "Several cases cited by them, and all communications to the heads of departcounsel are instances where a wrongful act, done in

ments are to be produced and made public whenever a one State, has caused injury to a person there, and suitor in a court of justice thinks that his case rethat person or his representative has sued to recover quires such production. It is manifest (we think) damages for such injury in another State. Leonard that there must be a limit to the duty or the power 5. Col. Steam N. Co., 84 N. Y. 48; S. C., 38 Am. of compelling the production of papers which are Rep. 491; Whitford v. Panama R. Co., 23 N. Y. 465;

connected with acts of State. As an instance, we

would put the case of a British minister at a for- cial business which prevents his attendance. His
eign court, writing in that capacity a letter to the excuse must be received (1).
secretary of State for foreign affairs in this country, In case 1 it was said: “As the governor is the
containing matter injurious to the reputation of a chief executive of this Commonwealth, and as such
foreign or a British subject. Can it be contended embodies the power of the people for the conserva-
that the person referred to would have a right to tion of the peace and the protection of the rights
compel the production of the letter in order to take and property of the citizens of the State; as he is also
the opinion of a jury whether the injurious matter part of the legislative branch of the government, it
was written maliciously or not? We are of opinion must be obvious to every one that there are times
that if the production of a State paper would be in- when he must be excused from the ordinary pro-
jurious to the public service, the general public inter- cess of the courts. We presume it will not be con-
est must be considered paramount to the individual tended that he would be obliged to obey the man-
interest of a suitor in a court of justice; and the date of a subpæna during the session of the Legis-
question then arises, how is this to be determined? lature, when his presence at the capitol is con-
It is manifest it must be determined either by the stantly required, or whilst engaged in the suppres-
presiding judge, or by the responsible servant of sion of an insurrection. These however do not em-
the crown in whose custody the paper is. The brace all his duties as governor; we must therefore
judge would be unable to determine it without as- go one step further, and concede that he is exempt
certaining what the document was, and why the from such process whenever engaged in any duty
publication of it would be injurious to the public pertaining to his office. Granting that there may
service — an inquiry which cannot take place in be times when he is not so engaged, and when he
private, and which taking place in public may do all might be free to answer to a subpæna, who is to be
the mischief which it is proposed to guard against. the judge of his engagements or disengagements?
It appears to us therefore that the question whether May he be compelled to appear before a court and
the production of the documents would be injurious submit himself to the judgment thereof as to
to the public service must be determined, not by the whether his duties, just then, require him to be in
judge, but by the head of the department having his office at Harrisburg, or at the head of the army
the custody of the paper; and if he is in attend- in the field, or whether he may not have a few
ance, and states that in his opinion the production days of leisure, during which he may await the will
of the document would be injurious to the public and pleasure of a grand jury? It will be conceded
service, we think the judge ought not to compel that in all ordinary cases he must himself judge as
the production of it. The administration of jus- to what things he must do and what things he
tice is only a part of the general conduct of the af- must leave undone, and that this is a duty imposed
fairs of any State or Nation, and we think is (with upon him by the Constitution. But how then shall
respect to the production or non-production of a a court at any time step in and assume the power
State paper in a court of justice) subordinate to of judging for him? This cannot be done except
the general welfare of the community. If, indeed, by an unwarrantable assumption of executive pre-
the head of the department does not attend person- rogative. The same reasoning which brings us to
ally to say that the production will be injurious, the conclusion that the governor is the absolute
but sends the document to be produced or not, as judge of what official communications to himself or
the judge may think proper, or as was the case in his department may or may not be revealed, in like
Dickson v. The Earl of Wilton, before Lord Camp- manner leads us to conclude that he must be the
bell (Foster and Finlason's N. P. Rep. 425), where sole judge, not only of what his official duties are,
a subordinate was sent with the document, with but also of the time when they should be attended
instructions to object, but nothing inore, the case to. The governor, disavowing any disrespect to
may be different. My brother Martin does not en- the court or its process, has answered that in con-
tirely agree with us as to this view of the point in sequence of his constant communication with the
question. My brother Martin is of opinion that State forces now in the field, in the disorderly and
whenever the judge is satisfied that the document riotous districts, his time is fully occupied in the
may be made public without prejudice to the pub- discharge of the duties of his office, and that to
lic service, the judge ought to compel its produc- leave his post would endanger the interests of the
tion, notwithstanding the reluctance of the head of public service. This brings us face to face with
the department to produce it, and perhaps cases the question whether the executive, or the courts
might arise where the matter would be so clear for him, are to determine the character of his offi-
that the judge might well ask for it, in spite of cial duties, and the order in which they may be
some official scruples as to producing it; but this performed. For instance, is obedience to a sub-
must be considered rather as an extreme case, and pæna one of his duties, and if so, shall he discharge
extreme cases throw very little light on the practi- that duty in preference to that which rests upon
cal rules of life."

him as commander-in-chief? The answer to this 1. The governor of a State is summoned by sub- question is easy; for if the courts can in any one pæna to attend a trial at a certain time. He does instance, or at any one time, control or direct the not attend, alleging that he is occupied with offi

(1) Hartranft's Appeal, 85 Pa. St. 449 (1877).

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