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book did it not touch the great objective aim of all perience of over two thousand years of authentic hislaws, private right, and by private right we mean tory. Mr. Clark's book is not a strong book, though property, a “burning question.”

it is strongly written and shows adequately in small The theories in “ Mau's Birthright" are not new, compass the theories of George and others of that ilk. nay, they are better treated by men like the Belgian It is very portentous, but at the end it cautions per economist Laveleye, whose thoughtful utterances de- song who think as the writer does from using explo. rive slender support from these ultra-rhapsodies of sives to enforce their theories, as if frightened at the their American allies. No doubt there is a growing awful possibilities of the power of the author's argufeeling that the world has not solved all the laws of ment. property, and that in some respect the Roman institu- We should not be surprised if this book were widely tion of Quiritarian,or as Laveleye calls it, private prop- read (because it contains elements of truth but erty has been pushed too far by the civilizations which of truth not stated with that dignity and phil. have arisen on the ruins of the Latin Ceasars. What osophy of demeanor which is necessary to make a thinking man can deny that in those countries where book a power for good, or a power for evil often. no small land-holdings are possible, there is a crying times. evil to be speedily redressed? We agree that the Swiss Allmend, as Laveleye paints it, where there is an annual redistribution of agricultural land, is a picture of

TAUSSIG'S HISTORY OF THE TARIFF. contentment hard to equal, and long before this book The History of the Present Tariff from 1860 to 1883. By F. under review was written, its effect on the future of W. Taussig, Ph. D., instructor in Political' Economy in agricultural tenures was foreseen by more temperate Harvard University, etc. G. P. Putnam's Sons, New men than the writer of “Man's Birthright.” We con- York and London, 1885. feas that we should like to see larger holdings of com

Very different from "Man's Birthright is this little mon lands in this country, and a better preservation

monograph, from the same publishers. It is a clear of the public domain in the far West., for these are

guccinct history of the tariff of the United States, and important checks on the proletariat of a populous na

as it arrays the facts which speak for themselves, the tion.

author has not seen fit to resort to needless arguIt is a great mistake to take the investigations of Sir

ment. H. Maine and Laveleye as final. They are at best in

Professor Lieber first made the meaning of "instithe experimental stage of a new science, the science

tutions" clear to the American reader. In his sense of comparative jurisprudence. Many of their theories

of the term, the tariff would be an organic institution, must be ultimately modified by further research.

and of course susceptible of separate literary treatWriters such as George and Clark welcome only that

ment. Dr. Taussig's history is an application of this in the comparative jurists, which coincides with their

view to a given case. It is a history of the tariff insti. conceptions of a state of nature, and they run riot in

tution of this country. We have no besitation in prothe deductive process. Will Mr. Clark show us any

nouncing it a valuable history, and one which every fact in the history of a civilized nation that points to legislator and politician should know before he comthe superiority of owning urban property in common?

mits himself to a position from which there may be no From the earliest times and even in primitive socie

consistent retreat. It is astounding that the ig. ties the facts point to the absolute ownership of the

norance of the science of government should be so home and home lot in the burg or vil or town.

wide-spread. The amount of accurate, adequate With regard to the agricultural lands of any State we

knowledge on any subject, relative to law or legislation confess to some doubt as to whether certain parts of

is not large, and that which there is, can be widely difthese lauds should not be kept public and annually re

fused only by an array of facts and not by dogmatiz: distributed, as in the Swiss Allmend at the present

ing. For this reason Dr. Taussig's history is a valuday, and in this doubt we are in the company of the

able addition to our stock of economic knowledge. most illustrious thinkers of modern Europe. But to go farther than this and to concede that that which chiefly distinguishes modern civilization from barbar

ABBOTT'S NEW YORK DIGEST, 1884. ism, is a fundamental political error, seems to us as

Mr. Austin Abbott's Annual Digest of the reports absurd as pronouncing the attraction of gravitation an

and statutes of this State has become an indispensable

aid to every lawyer. We can say of this, as we said of That our political society is vulgar and plutocratio

the last preceding annual, that it is as good as possible. we concede; that corporate and political jobbery are

It embraces 96th New York, and it digests nineteen rampant, we know, but that the political millennium is

volumes of reports. Published by George 8. Diossy, to come with any such vagaries as those suggested' in

New York, melo-dramatic fashion by Mr. Clark we deny.

Better goverument, better political theories, better laws, less favoritism to the rich corporation are in store for this America of our's, but they will not come by revolution, nor by the subversion of property

COURT OF APPEALS DECISIONS. private property that which makes every one, the poorest as well the richest, monarch of his own.

HE following decisions were handed down Fri. We have long advocated reform, reforms in law, re- day, March 27, 1885 : strictions of the corporation nuisance, advancement Judgment affirmed-People, respondents, v. Charles in legal studies from the technical to the philosophi- H. Rugg, appellant. — Judgment affirmed with costs cal standard. We are in favor of our lawyers enter- --In re Accounting of Francis A. Mason and others; ing upon a new era and deplore as much as any one Lydia Miller, appellant, v. Thomas McBlain, executor, the narrow, superstitious view of property entertained

etc., respondent; Catherine Lockwood, administra. by most leading men of our profession, but we still

trix, respondent, v. N. Y., L. E. & W. R. R.-Apthink that Mr. Clark goes too far in his notions, and peal dismissed- Town of Cherry Creek v. Phillip we propose to pin our faith to the more conservative

Becker, impleaded. - Order affirmed with costs--In views of such economists as Mill and de Laveleye, and re Accounting of C. A. Waldron, assignee, etc. The not run riot with theories which contravene the ex- court adjourned to April 13th.

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The Albany Law Journal.

magistrate or county court judge had used similar phraseology, and the case with respect to which

the remark had been made had come before the ALBANY, APRIL 11, 1885.

High Court, there would probably have been some

expressions of disapproval from the court. Much CURRENT TOPICS.

of the law of England depends on cases, the princi

ples of which could not possibly find approval at LAWYER as President may be depended upon

the present day. Still more is founded on facts of A to select a cabinet of lawyers. President

medieval life, and factors in mediæval thought that Cleveland has disappointed no one in this respect,

have long ago disappeared. Is some bold follower unless it may be the lawyers who expected to be

of a new school of case-rejecting judges to alter called on as his advisers, and were not. All his

the law of primogeniture, because the feudal syscabinet but one, we believe, are lawyers. Mr. Bay- doctrines or 'a double possibility,' and the impossi

tem has now disappeared? Or are we to have the ard was once district attorney for Delaware. Mr. Endicott was for nine years a judge of the Supreme doubted? Again we must say, as we have done be

bility of the existence of a use upon a use ' again Judicial Court of Massachusetts. Mr. Whitney was a very active lawyer, and has been corporation fore in commenting on a recent decision of Mr. counsel for the city of New York. Mr. Vilas was

Justice Kay's, we are not now quarrelling with his one of the most eminent lawyers of Wisconsin

decision, which was on the construction of a will. graduate of our Albany Law School, by the way.

You cannot always test a testator's expressed intenMr. Lamar was once professor of law in the Univer

tion by considering how far his phraseology agrees sity of Mississippi. Mr. Garland has long been

with or differs from previous testators — you canrecognized as one of the ablest. lawyers in the na

not construe one man's nonsense by another man's tion. But when it comes to the question of mak

nonsense.' But these terribly unguarded dicta ing money, or taking care of money, the president really require some observation.” very wisely concedes that lawyers are not the best counsellors, and so he puts the treasury into the

A correspondent sends us the following scheme hands of a layman an Albanian, by the way, of

for the relief of our Court of Appeals: " There which we are duly proud. It must be admitted

shall be a Court of Appeals composed of a chief that the president has put plenty of brains into his judge and nine associates, who shall be chosen by cabinet, and the lawyers need not yet despair of

the electors of the State, and shall hold their offices their influence in national affairs.

for the term of fourteen years from and including the 1st day of January next after their election.

The judges being in office at the time of the adopThere is an “irrepressible conflict” between the

tion of this amendment shall continue until the pretense of stare decisis” and the actuality of ju- expiration of their respective terms, death, removal dicial legislation. The opponents of codification

or disqualification. Upon the adoption of this in one breath tell us that our law is all settled by / amendment the Court of Appeals shall be divided judicial decisions, and in the next that the greatest into two parts; the chief judge and four associate merit of the common law is that it may so easily be judges constituting part I, Part II being commade to suit circumstances - stretched or con

posed of five associate judges designated by the tracted, narrowed or widened – elephant-trunk chief judge. The presiding judge of part II shall fashion, made to launch a ship or pick up a pin. be the senior judge in respect of time of service On this matter we call attention to the following among the associate judges. No less than four from the London Law Times : “The following dic- judges shall constitute a quorum in either part of tum of Mr. Justice Kay is deserving of more notice the court, and a concurrence of three shall be necthan it has so far received. In Re Chapple ; New

essary to a decision.

The chief judge may order ton v. Chapman, 51 L. T. Rep. (N. S.) 748, his lord

argument of any case to be heard and decided by ship is reported to have said: 'I always struggle all the judges of the court, in which case a concuragainst being bound by authority, unless the prin

rence of seven shall be necessary to a decision. The which the authority proceeds commends additional judges provided for by this amendment itself to my judgment.' If this simple plan of

shall be chosen as at present provided.” It seems to treating previous decisions is followed by other us that it would be much better to have more judges, the 'glorious uncertainty of the law will judges in each part — at less six or seven. The above rapidly become such that law in its modern sense

might barely answer at present, but in a very few will tend to disappear, and a system of what may

years it would prove inadequate, and it is best to be called decision in accordance with the judge's provide ample means now for at least a generation. subjective view of natural equity will replace it. With all deference to the learned judge, we must

Mr. Thomas has introduced & bill in our Senate protest against this theory that the authority of a decision depends on whether or no its principle ap

for the republication of the Session Laws from 1777

to 1801 inclusive. We hope this will prevail. These
proves itself to any particular judge who has to ad-
minister the law subsequently.

Mr. Moak,
If any unpaid laws have become exceedingly scarce.
Vol. 31 -- No. 15.

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who is the best possible authority, says there are lature by a general law governing its procedure, so not five complete sets in existence, and that he has as to afford an opportunity for scrutiny and examvainly tried for twenty years to complete his own ination before the bill comes before the Legislature, set. A few fires might destroy all there are. The and to present objections thereto. The Legislature design of the bill is to supply sets to all the legis- should by such a general law governing its prolative and judicial libraries of the State, and to cedure provide a mode of hearing of all private and furnish copies to any who may wish to purchase. local bills by special committees; and all local and Doubtless the sales would go far toward paying the special bills affecting city, town, township or expense. At all events the State ought to take county interests, and all bills creating corporations immediate measures to perpetuate the records of its or amending corporate powers, or involving the exearly laws.

ercise of the power of taxation, or of eminent do

main, should be treated as bills requiring formal The Association of the Bar of the City of New investigation. It is a well known fact that all the York have reported a “Plan for improving the expenses of the legislative sessions of parliament Methods of Legislation of this State,” by a commit- are defrayed by the payment of the fees which protee consisting of Messsrs. Simon Sterne, James M.

moters of private bills are required to pay into Varnum, Theron G. Strong and George H. Yeaman. chancery upon filing and hearing of their measures

. We infer that the germs of this plan may be found

It might be well for the Legislature in a general in Mr. Sterne's excellent essay read before the

law to make provision that the promoters of private American Bar Association last summer, and pub- and local bills should pay a specific sum of money lished in this journal. The committee say: “Your to the comptroller of the State of New York, for committee respectfully recommend a constitutional the necessary expenses incident to the examination amendment creating a Commission of Revision

and hearing of such bills.” We believe that someto be appointed by the Governor for the period of thing of this sort must be done. In connection with his own term of office, which shall consider all pub- this we call attention to Mr. Hopkins' communicalic legislation except supply bills. This consider

tion in another column. ation shall relate to the constitutionality of a bill, its effect upon existing statutes, its relation to and As a letter in our issue of April 4th last, signed its effect upon the common law, whether the object “Relwof,” treats of a question now in actual litiof the bill can be secured under existing statutes, gation in which Mr. Robert L. Fowler appears, it whether the language of the bill is apt for the pur- | may be possibly attributed to his interest in the pose intended, whether its provisions are consistent question, which would be unjust to Mr. Fowler, with each other and with existing law, and to point who is not afraid to say what he has to say openly, out whatever incongruities there may be either in and in his own fashion. Hereafter we must request language or in the provisions themselves. The our correspondents to use somewhat less misleading useful operation of the scheme here suggested as to noms de plume than family names spelled backpublic legislation would involve a material modifi- ward. cation of the present system of standing legislative committees, a system rendering the annual contest

NOTES OF CASES for the speakership both arduous and demoralizing. Bills might be submitted to special committees, IN Union National Bank v. Dersham, Pennsylvania after being scrutinized by the Commission of Re- Supreme Court, October, 1884, 15 Week. N. vision, but it would not be a committee selected Cas. 540, A., a man of ordinary firmness, made a in advance by the friends or opponents of the deposit in a bank, for which the cashier gave him a measure, nor its composition known in advance. certificate of deposit, but neglected to append For all special and local laws your com- thereto the word "cashier " after his name.

Submittee respectfully recommend a constitutional sequently, after the cashier had resigned his posiamendment, which shall provide that no local or tion in tbe bank, he added the word “ cashier" to special bill which involves the exercise of the right correct his former error. The certificate of deposit of eminent domain or the power of taxation shall was then cashed by the bank. Afterward the bank be passed by the Legislature unless such bill, and a called A.'s attention to the fact that the word petition setting forth the necessity therefor, shall “cashier" had been added to the certificate at a have been filed in the office of the secretary of State different time, and with different ink, accused him at some fixed period in advance of the legislative of making the ulteration, said they would go to law session, and its general purpose and effect adver- and recover the amount paid him, and that they tised in such manner and for such time as the

could prosecute him for forgery. A., then, to Legislature shall by a general law to govern its avoid litigation and to settle the dispute, gave the legislative procedure direct; and that the Legislature bank a note for seventy-five dollars, and paid it. shall not consider a special or local bill not of this Tield, that he could not recover it. The court said: character unless the same shall have been filed in “ There is no evidence that the plaintiff is timid or the office of the secretary of State and notice of feeble, or not possessed of ordinary firmness by reasuch filing given as shall be directed by the Legis- son of age or other cause.

He did not believe they

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could collect the money back, finally settled and | him in good faith, had borne him children, bad kept gave the note to avoid a lawsuit, and he does not his house, had aided him in business and helped assert that his judgment was overcome, or that he him accumulate his estate; and he had treated her gave the note through fear arising from a threat of as his wife, had supported her as such, she had criminal prosecution. As bearing upon the ques- passed in society as such, and was dependent upon tion of duress, his act of payment of the note is as him for support.' Equitable Life Insurance Co. v. potent as if no transfer had been made; he did not Paterson, supra. She had therefore, as in fact occulearn of the transfer till in the act of payment. He pying the relation of wife, a deep interest in the gave the note and paid it in settlement of a claim preservation of his life. But she had also an interfor a larger sum. The whole testimony, or that on est as the mother of his children. He was under a the part of the plaintiff, did not warrant a finding of natural obligation to maintain them until they

that degree of severity, either threatened and im- | could maintain themselves: Cooper v. Scott, 62 Penn. pending or actually inflicted, which is sufficient to St. 139; and he was under a legal obligation for at overcome the mind and will of a person of ordinary | least part of their minority to assist their mother in firmness.' There is no threatened exercise of power their support. This policy of life insurance was in from which he needed immediate relief; if sued, he no sense an equivalent for such an obligation, and could defend. It may be conceded that the rule could not be considered as adequate compensation has become settled that any contract produced by for its loss. There is no principle of public policy, actual intimidation voidable, not only where the justice or humanity upon which to found a discrimcircumstances were sufficient to intimidate a man of ination against the right of Maria Mueller in the ordinary firmness, but were sufficient to and did in- policy in evidence. She was married under our timidate the particular person because of his or her laws; lived as a faithful wife and mother; the infirmity, though insufficient to intimidate one of policy was taken out for her benefit; and her estate ordinary firmness. The question of duress ought is entitled to the proceeds, under our laws." not to be submitted on a scintilla of evidence"

In Poole v. Delaware, etc., R. Co., 35 Hun, 29, In Estate of Mueller, Pennsylvania Orphans' Court, the defendant, which ran trains from Oswego to January, 1885, Pittsb. Leg. Journ., April 1, 1885, J. Fulton station, entered into an agreement with one M. took out a policy of life insurance for the bene- Hatch, who ran an omnibus from Fulton station to fit of "his wife M.,” by whom he had children and Fulton village, distant about a mile therefrom, by with whom he continued to live as his wife until which the defendant's agent, at Oswego, sold tickets his death. Held, that M. had an insurable interest to Fulton village, and Hatch sold tickets at the vilin A.'s life, notwithstanding he had a prior undi- lage to Oswego; the fare charged for the whole disvorced wife in life at his death. The court said: tance being the sum of the two separate fares, and "The test of insurable interest is that the benefici- each party accounted to the other for the fares ary named in the policy has an interest in the con

received for it. The tickets were on separate cards; tinuance of the life of the party insured; Stevens v.

one a railroad ticket from Oswego to Fulton, the Warren, 101 Mass. 564. The principle is stated in other an omnibus ticket from the station to the different form in the Supreme Court of the Un- village. The plaintiff having purchased tickets at ited States (Conn. Mutual Life Ins. Co. v. Schaefer, Oswego for the village, and having been injured 94 U. S. 460), thus: 'Indeed it may be said gener- while going in the omnibus from the station to the ally that any reasonable expectation of pecuniary village through the negligence of the driver, benefit, or advantage from the continued life of brought this action to recover the damages thereby another creates an insurable interest in such life.' sustained against the railroad company. Held, that Thus it is well settled that a man has an insurable it could not be maintained. The court said: interest in his own life, and in that of his wife and separate tickets delivered to the plaintiff, whether children; a woman in the life of her husband; and regarded as contracts or tokens, are insufficient the creditor in the life of his debtor.' Conn. evidence to justify the conclusion as a matter of Mutual Life Ins. Co. v. Schaefer, 94 U. S. 460. law, or of fact, that the defendant contracted to The Supreme Court of Missouri in the case of carry the plaintiff beyond Fulton station. Milnor

Phoenix Ins. Co., 28 Mo. 383, applied the V. N. Y. & V. H. R. Co., 53 N. Y. 363. In principle to the case of a divorced woman who had | this case the defendant issued coupon tickets and borne children during coverture to the insured; | checked the plaintiff's baggage over a connecting and the Supreme Court of Georgia in Equitable Life road. The baggage was burned while in the cusIns. Co. v. Paterson, 41 Ga. 338, held that a woman tody of the connecting road, and it was held that who had married the insured with the knowledge the tickets and check were insufficient evidence to that he had another wife then living undivorced authorize the conclusion that defendant contracted had an insurable interest in his life.

to carry over the connecting road. In Kessler v. Judged by the reason of the principle, there can be N. Y. C. & H. R. R. Co., 61 N. Y. 538, the plaintno doubt that Maria Mueller had an insurable in- iff purchased a coupon ticket from the Baltimore terest in the life of John Mueller, when the policy and Ohio Railrood at Washington, for Buffalo, over was taken out for her benefit. She had married the defendant's road, and checked her baggage

- The

McKee v.

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through, wbich was never delivered. The plaintiff course, sirange revelations will be made. He will
failed to show that the baggage came into the pos- find laws repealed, and then repealed three or four
session of the defendants, and it was held that the. times in addition, and then repealed once more in
tickets and checks were insufficient evidence to order to make death certain — under an apparent
justify the conclusion that the connecting roads belief that a law can be killed only by repeated
were liable as joint contractors. In Isaacson v. N. blows; and he will discover that after all this
Y. C. & H. R. R. Co., 94 N. Y. 278; S. C., 46 Am. heroic treatment, these same laws have been calmly
Rep. 142, it was held that a check upon baggage amended by some legislature, oblivious of repeals.
through to New Orleans was evidence of a contract He will see a legislature, moved by the conviction
to safely deliver to a connecting road, but not evi- that a certain law should be repealed, repealing an
dence of a contract to deliver at New Orleans. The entirely different law - -- an act very much like that
same principle is decided in Knight v. Portland R. described by the Irishman when he told how he
Co., 56 Me. 234; Myrick v. Mich. Central R. Co. 107 killed the rat: “ The first time I hit him I missed
U. S. 102; Gass v. New York Providence & Boston R. him, and the second time I hit him in the same
Co., 99 Mass. 220; Burroughs v. Norwich & Worcester place where I missed him before.” And finally he
R. Co., 100 id. 26; S. C., 1 Am. Rep. 78; see also will observe, with dismay, that after these repeated
Whart. Neg., 98 582, 583; 2 Rorer Railroads, 975. | legislative Donnybrook-Fairs, in which laws are in-
Each ticket is, as it purports to be, an independent discriminately knocked on the head, most of the
contract or token, one by the railroad to carry laws that ought to be repealed still stare at him
from Oswego to Fulton station, and the other by from the statute books, with all the similitude of
the omnibus line to carry from Fulton station to life. Dead enough, no doubt, the majority of them;
Fulton village. In Buxton v. North Eastern R. Co., supplanted by subsequent laws covering the subject,
L. R., 3 Q. B. 549, the defendant, by a single and so killed by indirect repeal. But they ought to
ticket, agreed to carry the plaintiff to a station on a be put out of misery by direct action and not left
connecting road. The plaintiff was injured on the in this painful uncertainty as to whether they are
train of the connecting road and the defendant was alive or not. If any one desires an example of these
held liable. The same rule was held in regard to comatose laws, let him read the Penal Code, and
the carriage of goods in Bristol & Exeter Railway then, turning to the Revised Statutes, find nearly
v. Collins, 7 H. L. Cas. 194. The rule in England every law relating to crimes in full force, except as
differs from the rule generally laid down in the it is indirectly repealed by the Penal Code.
United States. For a discussion of the English and

But it is not alone in the matter of repeals that
American rule, see 3 Alb. Law J., 485; 2 Am. Law wonder is excited by the action of those singular
Rev. 426.” See Cent. Railroad v. Combs, 70 Ga. beings, whom a mysterious dispensation of Provi-
533; S. C., 48 Am. Rep. 582.

dence permits to sit in the legislative halls of this
State. They seem to imagine that their reputation

as legislators depends upon the quantity rather than

the quality of their work, and that every law of

which they deliver themselves is a credit mark in POR a long time past gentlemen who know all their favor. So it coines to pass that they often as

about the proposed Civil Code have been ad- sail a perfectly peaceable law, with diabolical fury, vocating its adoption, against the vehement oppos- loading it with amendments until it is flattened out ition of other gentlemen, who also know all about of shape. And in groping through this labyrinth of the proposed Civil Code. While the war is yet amendments, stumbling occasionally over a repeal

, unended, it is possible that some remarks from one one frequently arrives — nowhere. who knows nothing about the Civil Code may not All this is familiar to those who have made a be out of place. In this position I stand ; but the careful examination of the laws of this State, and it humiliation which would ordinarily attend such a would be unnecessary to mention it but that the confession of ignorance is unfelt by me, for the productions of the opponents of the proposed Code reason that I have, as I think, a sufficient justifica- breathe an apparent complacency — an owl-like tion. Let any one endeavor to ascertain what laws satisfaction in the present condition of things. I of this State are actually in existence, and then let use the word "apparent ” because I do not wish to him declare how much time remains for the study accuse any one, without absolute proof, of being of proposed laws. Unless he be a prodigy, he will, contented with the laws as they are. And yet, a I think, find ample justification for a profound few days ago, I read an extract from an article in. ignorance of proposed laws.

the Albany Evening Journal in which the laws of Now upon this subject of the present condition New York received as flattering mention as if they of our statutes I do claim the right to a hearing. were incapable of improvement. If the author of It has for years been my practice, on the appearance that article had the creation of a world on hand, of the annual flood from the legislative halls of New he would rest when he reached chaos and proYork, to examine carefully the laws of former years nounce it “ good.” But with the exception of the and to note what they have suffered at the hands Evening Journal - unless, indeed, the article was of the law-mixers. To any one who takes this written by the “ funny man" of that paper – I


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