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80 as to bind. L., and such material alteration being Frary, appellant, v. Orleans County Bank, respondent;
Merritt, appellant.-- -Appeat dismissed, with costs-
Lewis J. Goddard, receiver, appellant, v. Stephen
Stiles, respondent; People ex rel. Abraham Dowdney,
appellant, v. Hubert 0. Thompson, respondent: Jacob Editor of the Albany Law Journal :
Crounse and others, appellants, v. Harlow G. BoothIn 30 Alb. L. J. 340 is found a query which the sub- wick, sheriff, respondent; People ex rel. William H. sequent numbers of your journal do not show to have Osgood and another, appellants, v. Commissioner of been answered. Will you kindly refer your corre
Texas, respondent; Pardee Carpenter,, appellant, . spondent to State ex rel. Laclede Bank v. Levis, 76 Mo.
Harriet P. Wood, respondent. -Order affirmed, with 370, as being the latest and a very full discussion of the
costs. No opinion, all concur—People v. Merchants' question asked ?
Bank (claim of Whittaker). -Motion to advance as
preferred, denied, with costs-Elias Q. Horton, reJEFFERSON CITY, Mo., May 1, 1885.
spondent, v. Coffin L. Brown, executor, appellant. —
1885, granted, without costs-Ezra Caulkins, respondNEW BOOKS AND NEW EDITIONS.
ent, v. Danforth D. Bolton and another, commissionPAINE's BANKING LAWS.
ers, appellants. The Laws of the State of New York relating to Banks, Banking and Trust Companies, and companies receiving money
NOTES. on deposit, also the National Bank Act and Cognate United States Statutes, with amendments and annotations.
important decision concerning innkeepers. By Willis S. Paine. Weed, Parsons & Co., Albany, N. Y.
Among the anecdotes of Judge Walton is the follow1885.
ing: Early after his first appointment he went to The title shows the scope of the volume, and the ar
Alfred to hold court, and called on Landlord Berry, rangement of the material was no doubt as the author
who offered him his best room with a proviso that says, “A difficult task involving very arduous labor."
after ex-Judge Howard's arrival he would have to put The work though intended for use in New York State Judge Walton. He was shown a little 7 by 9 den,
him in another room. “Well, what room?" asked will doubtless be found of value throughout the several States of the Union. Throughout the work, re
whereupon he told Berry that he would take the best ferences are made to the decisions of the courts, the
room, as Judge Howard would not want it. "Why whole preceded by an historical sketch of the banking "I shall adjourn the court to-morrow to Saco." Who
vot?” asked Berry. “Because," said Judge Walton, methods of the State of New York.
is going to take your place here?" asked Mr. Berry,
who was not quick to take in the situation. “Why, DIGEST OF AMERICAN DECISIONS.
nobody," said Judge Walton. "A judge can't stay in This volume of 1245 pages embraces the decisions re- town and hold court and sleep in the street; he must ported in volumes thirty-one to sixty, inclusive. It is have a room.” “Oh," said Berry, “I will see.”. He of course indispensable to the owners of the series,
saw, and was conquered. He told Judge Walton he and appears in every respect thoroughly executed. could have his best room. At the end of the term Published by A. L. Bancroft & Co., San Francisco. Judge Walton gave the landlord this advice: “Court
week is your harvest. If you want a long term and to
make lots of money make the judge just as comfortCOURT OF APPEALS DECISIONS.
able as you can. He has power to break up the court
just when he pleases; but if he is made eomfortable he THE TAE following decisions were handed down Tues
will stay just as long as he finds any thing to do."day, May 5, 1885 :
Lewiston (Me.) Journal. — The Central Law Journal Judgment affirmed with costs-Charles H. Russell,
informs its readers that it has received commands
from one or two subscribers to “stop the paper," but receiver, respondent, v. George W. Nelson et al., ap
says the Journal, “ the paper, our readers perceive, is pellants; John Craigill et al., respondents v. Sterling
not stopped.” One of the subscribers was dissatisfied G. Hadley, receiver, appellant; Henry A. Gildersleeve, because of the Journals opposition to champerty and appellaut, v. Mayor, etc., of New York, respondenti an alleged attack upon the Bible. The Journal says: Carrie Hagevlocher, infant, respondent, v. Coney Is- " This really hurt our feelings. We confess to being land and Brooklyn R. Co., appellant; Board of Educa. opposed to champerty, but we have never spoken dis
respectfully of the Holy Scriptures. In fact it was tion, of Auburn, respondent, v. Henry V. Quick and
from a story told in the Divine Book, of the soldiers others, administrators, appellants; Board of Commig- casting lots for the garments of our Saviour, that we sioners of Pilots, respondents, V. John W. Ambrose, imbibed our antipathy to champerty.'
Mr. J. W. Donovan writes that he has sold his book, appellant; George S. Riley, respondent, v. Francis A.
“Tact in Court," to his publishers for $2,500, and that Schoeffel, sheriff, appellant; James Roach, appellant,
he is going to make no more books, being too busy.-v. Benjamin B. Odell, sheriff, respondent; In re Final
Coast Reporter evidently has a Chinese proof Accounting of Kendrick E. Morgan, assignee, etc.; In reader. He transforms our case of Kortright v. Cady re Petition of George A. Harding, etc.; Augusta W. | into Kortoryght v. Kaday.
The Albany Law Journal.
did was a thesis in 1857 in favor of allowing parties to be witnesses for themselves. A long and thorny
and up-hill road is that of law-reform. Mr. Field ALBANY, MAY 16, 1885.
also will be alive for twenty years, and he says: “I
am not in the least discouraged. We have gained CURRENT TOPICS.
largely in circulating a knowledge of the Code, and
the fifty-two members, who voted for it, acted upon HE lower house of our Legislature have defeated
a better knowledge of the subject than any fiftyresult was not unanticipated, but some of the argu
would remark, that if it is the purpose of our Legisments that brought it about were. Many of them latures to know the Code before voting for it, why were puerile, both in the house and out of it. did not Gov. Cleveland sign last year's bill for a What kind of an argument is it that 160 of the 180 commission! Will some of the New York clique lawyers of Syracuse are opposed to the Code? Or rise to explain; that it proposes 3000 “new” laws? Or that the members have not read it? When will they read it,
Although we desire to be known as the organ and know anything about it, or about
of our profession in this State, we also desire it to that pertains to the reform of our laws?
Will it be be understood that we are not to be played upon the next week or the next year, or will it be when by others upon every occasion. So we frequently they have passed from their brief tenure of author- suppress what seems to us trivial fault-finding with ity, and the battle has to be fought over again with
our courts. We rather like to reserve that privia new set of legislators? To illustrate how little lege for ourselves. Occasionally we make an exthe public press understand of this matter, outside ception in favor of a well-known lawyer of high of a few journals that have taken pains to understanding, like Mr. Cowen, who adjourned his case stand it, the Troy Times, one of the most iufluential to the tavern, and now in favor of Judge Peck, and respectable newspapers in the State, published who finds fault in another column. Readers will two or three weeks ago an argument of some length draw their own conclusions. Judge Peck publishes in favor of the Code, but referring to the bill as an
on his own responsibility and signs his name like a act to "amend” the Field Code, as if that were an
man. If some of his readers come to the conclusion existing law. Now that the act is defeated, the
that he was beaten upon a technicality savoring same journal characterizes the defeat as a “merito
more of old times than of Code practice, we shall rious" act, and one of the three only meritorious not be surprised. We feel free to say, however, acts of the house! Such are the instructors of our
that such a state of things is a reproach to our syspeople, and such are our law makers. We say
tem of law, which professes to be superior to such
Now that we are in a fault-finding mood, we may
as well inquire what right Judge Van Brunt had to effect their purpose. Of course, no one believes
tell the jury in the Short case that he was surprised that a profession too lazy or indifferent to read the
at their verdict? He probably was, and so perhaps
were others, but we conceive that it was no more in proposed Code have ever read Mr. Carter's or Mr. J. Bleecker Miller's oracular utterances on the sub
his province to tell them so than it is in ours. Two
hundred years ago he would have had the power to ject. We believe we are the only man in the State who has read them all. Any candid man who emphasize his surprise by putting them in jail. The
result was no read the speeches in the House on the third reading verdict in corporation cases, whether tried by judge
more surprising to us than the usual must admit the great superiority of those of the friends of the bill. Personally, we say, as we said
or jury, or in cases of emotional killing for injured
honor's sake. It is unfortunate that the people a year ago, the result is not disadvantageous to us
cannot have a new trial in this case on the ground as editor and reporter of opinions. But, how will
of the judge's surprise. it suit even such code-phobists as Mr. Cowen, who used columns of this journal in blaming the Court of Appeals because they thought there is a legal At a meeting of the Tennessee Bar Association difference between a ditch and a drain, and who last year, papers on codification were read by J. A. would like to have some certainty about such Cartwright, W. 0. Vertrees and J. M. Dickinson, things? But we are not discouraged. We shall be of Nashville, and ex-Judge Sneed, of Memphis. alive and lively, long after Prof. Dwight, the great | Messrs. Cartwright and Dickinson, pro, and the constructor of lawyers upon the "elastic” princi- others, con. But Judge Sneed made the following ples of the common law, and Mr. Carter, a really telling argument in favor of codification: "In my great lawyer, and Mr. J. Bleecker Miller, who judgment, one of the greatest evils under the sun doubtless will be greater some time, and all the is the rapid accumulation of books of reports which rest of our opponents shall be dead and mainly for- contain no new doctrine. Just think of it. A gotten. We might feel discouraged were it not for hundred years ago there was not a book of reports the recollection that the first law writing we ever
on this side of the sea. Ninety years ago there VOL. 31 - No. 20.
were only two. And yet that was confessedly the the father placed the child with relatives of the Augustan age of great American lawyers. Now, mother, who nursed and cared for it until it had there are between three and four thousand, and attained the age of seven years. After the child they are accumulating in this country at the rate of had been cared for while very delicate and sickly, about a hundred every year. It was found that the father gave a written promise to the relatives there were not geese enough in all the world to by which he agreed that the child should never be supply the judiciary with quills to write opinions taken from them. Subsequently, the child baving with, and an ingenious artisan at Sheffield invented | been allowed to visit the father, the latter refused steel pens and scattered them broadcast over the to allow him to return to his relatives. Upon the world, mainly to meet the demands of the cacoethes return to a writ of habeas corpus, procured by the scribendi, which, like an epidemic, had smitten the relatives, the court refused to receive evidence common law and equity courts of England and tending to show that the present wife of the father America.” This we glean from the Central Law was an improper person to have charge of the child, Journal.
and that his home was an improper place in which According to the Tribune, a witness in the Hoyt P. J., said: “It is not clear from the authorities
to bring up a young child. IIeld error. Barnard, will case, answering to a certain question by Gen
that a father may recede from an engagement in eral Butler, on cross-examination, that "he could not tell,” that refined and universally respected ceived the child under it. If the subject were
respect to his child, made with one who has regentleman observed: “Very well, don't answer then; it will take a good while to tell all you don't
any thing but a child it would not be averred to be
the correct and legal thing to avoid the engagement know.” It was hardly necessary to send to Boston to get a vulgar brute to treat a witness in this way.
because it was against public policy and against the There are plenty of shysters hanging around the
paternal right. I do not think these cases call for Tombs who could do this just as well, without hav
such a rule. They hold that the father's right is ing been generals, and congressmen, and governors,
paramount as to the custody of the child. That as or tried to be presidents, and for much less money.
against the mother all things being equal his right
is the best. That an agreement between husband The Language Club at Columbia College have
and wife as to the custody of the child is bad. It been discussing “Iteration.” According to the
is not necessary to decide this question upon the I'rilmne, David Dudley Field gave an exhaustive present record. It may be stated as a general rule exposition on “Iteration in Law.” He said that
in this state that the rights and interest of the child there were 860 superfluous words in every deed and
are paramount upon the question of the custody of
the child. Wilcox v. Wilcox, 14 N. Y. 576. This ques. 1,240 in every mortgage, and that the people of the
tion includes the home of the ladies from which the State pay every year $100,000 for the recording of superfluous words. It was generally stated by law. boy goes. That is clearly seen from the case. It inyers, he said, that the use of so many unnecessary
cludes also the home of the father. The Special Term words was a matter of habit. Ex-Judge Dillon said
refused to receive proof that would show it to be an that since he represented the bar he was obliged to
improper home to which a child of seven and upwards plead guilty to the charge of Mr. Field.
should go. The glimpse obtained from the eviremedy, he added, was in the hands of the Legisla- of the divorce of a former husband of his present
dence is not favorable. The father was the cause ture. When these old forms were first used there were reasons which made the iteration necessary,
wife by her adultery with him. After the divorce
he married her. Proof is refused which would but since the reasons no longer existed legal forms could be shortened without detriment to any one.
show or tend to show that the present wife is very The laws and forms covering the credit system in intemperate in some cases, at times to such an this country and in Europe were explained and as a
extent as to be helpless. Proof tending to show moral, Mr. Dillon said that the Code should protect
what this home is in respect to assemblages and those who sold goods on credit to such an extent practices in what is known as spiritualism is also that all legal documents could be exceedingly brief.
refused. The proof of the character of the respond
ent's home should have been received." See note, Mr. Field might have instanced the senseless itera
40 Am. Rep. tion in assignments for creditors and in wills. Some of this springs from habit, but more from uncertainty in the law or in tlie writer's knowledge In Buck v. Moore, 35 Hun, 338, while the defendof it. The author of “Lorna Doone ” says, in that ant's dog was following her along the street, it ran admirable novel, that the lawyer “takes a careful into an adjoining yard and there seized and killed delight in covering his traps and engines with a the plaintiil's dog, without passive volition or the spread of dead-leaf words, whereof he himself defendant's knowledge. Held, that defendant was knows little more than half the way to spell them.” not liable.
Dykman, J., said: “It must be noticed
in the outset that the action is not for trespass on NOTES OF CASES.
the plaintiff's close, aggravated by the mischief'
done thereon, but is simply for the damage susN People v. Broun, 35 Hun, 324, the mother of a
tained by the death of the dog. The case therefore
to fall within rule 3 of Moak's
Underhill on Torts. "No person is legally respon- and sustained injuries. Held, that defendant was sible for any act or omission not attributable to not liable. Pratt, J., said: “It was no part of the active or passive volition on his part.' In other duty of the assistant engineer to assist the plaintiff language, no person is responsible for an involun- in hiding his tools, or show him where to hide them tary injury. If while following its owner along a for the night, therefore the plaintiff voluntarily and highway, a dog discovers game and follows it, the at his own risk went to a part of the vessel where owner is not liable. By the common law the owner no duty called him and where the defendant could of a dog that worried and killed sheep was not not presume he would be likely to go. The plainresponsible for the damage done, and it required a tiff's work was upon the spar deck, and if he chose statute in our State to create such liability. The for his own purposes to go upon other parts of the reason of this rule was that the killing and worry- vessel he went there upon his own risk. It would ing of sheep could not be anticipated or expected be a harsh and unreasonable rule to hold that if a to result from a dog running at large. That rule person was employed to work upon a certain porapplies here. The defendant could not know or tion of a vessel, all other use of the remainder believe that her dog would kill or injure the dog of must be suspended in anticipation that the workthis plaintiff, simply because she permitted her dog man might travel to parts where no duty called to follow her along the street." Chemot v. Larson, him, and thereby receive some injury.
So long as 43 Wis. 536; S. C., 28 Am. Rep. 567, and note, 569; the master keeps the places where the workman is Fallon v. O'Brien, 12 R. I. 518; S. C., 34 Am. Rep. employed, or likely to go, in a safe condition, he 713; Saunders v. Teape, Q. B. Div., 29 A. L. J. 321. discharges his whole duty in that regard. It has
been held that the owner of a vessel is not bound
to close the hatches at night so as to protect from In People v. Dennin, 35 Hun, 327, the defendant injury a trespasser, or one who has no right or and two other men played ball on Sunday in private
license to be on the vessel. Severy v. Nickerson, 120 grounds with the consent of the owner thereof.
Mass. 306; 8. C., 21 Am. Rep. 614; Zoebisch v. TarThey simply pitched the ball from one to another
bell, 10 Allen, 385. It cannot be said that the plainand made no noise. Held, that their playing was
tiff was invited or licensed to go forward to the not prohibited by section 265 of the Penal Code,
boiler, or that he went there in any connection with which provides that “all shooting, hunting, fishing, the work he was employed to do. I fail to see upon the first day of the week,
any negligence or breach of duty on the part of the and all noise disturbing the peace of the day, are
defendant causing the injury to the plaintiff. The prohibited.” To constitute a violation of that sec
case must turn upon the single point whether there tion the "playing" must seriously interrupt the
was either an expressed or implied invitation by the repose of the community on Sunday. Barnard, P.
defendant to the plaintiff to go where he was J., said: “From the three sections it is manifest injured, and there being no conflict of evidence it that the thing done must be a serious interruption
was a question of law for the trial judge to deterof the repose of the community on Sunday. The mine. To say that every portion of a vessel over thing prohibited must be to a greater or lesser
300 feet long must be guarded and kept safe, extent public. The proof in the present case fails because at a particular place a workman is employed to make out an offense. The grounds were private. and may assume to leave his work and travel over The defendant was not even a trespasser, as his
the whole ship where no duty calls him is unreasonentry thereon was by permission of the owner. able.” See note, 36 Am. Rep. 403; Wright v. RawThere was no noise. There was
no assembly of
son, 52 Iowa, 329; S. C., 35 Am. Rep. 275; note, persons beyond the three persons, and the offense
40 Am. Rep. 327.
RULES AS TO THE PRIVILEGES OF WITthe third person was a party to the play of ball,
RULE. The risk of prosecution to avail the witness munity. That is in terms declared to be the object
as an excuse for refusing to answer a question must be of the law."
to himself (a), and must be a reasonable one in the In Belford v. Canada Shipping Co., 35 Hun, 347, ordinary course of justice (b). the plaintiff, a carpenter, was employed in erecting
ILLUSTRATIONS. some cattle stalls on the upper or hurricane deck of
(A.) a steamer belonging to the defendant. On stopping A. being called on to give certain evidence dework in the evening he went with the assistant clines, on the ground that it will subject B. and C. engineer to the deck below where his tools were to penalties. This is no answer and A. must tesplaced by the engineer in the boiler to hide them | tify (1). over night. On returning to the vessel the next - The privilege is confined to penal consequences morning the plaintiff, while walking along the
(1) King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 329 lower deck to get his tools, fell into a bunker hole (1851),
likely to be occasioned to the party himself; nemo some informality in the pardon. Is a witness justitenetur seipsum prodere ; but there is no privilege fied in refusing to answer on that account?" against disclosing matter within the knowledge of the party merely because it might subject other
RULE. And the matter must be criminating and persons to punishment.”
punishable in the country of the former and by its laws (B.)
(a), unless it clearly appears from the evidence that 1. On a trial of B. for bribery, C. a witness is such will be the effect likewise in a foreign state or asked if he had received a bribe from B., C. refuses country (b).
ILLUSTRATIONS. to answer, on the ground that it may criminate him. It is shown that C. has received a pardon
(A.) from the Crown covering the matters inquired into. 1. A witness, a foreigner, refuses to produce cerC. will be compelled to answer, although there is atain documents on the ground that they would expossibility that the pardon may be informal or that
pose him to prosecution in his own country. There he may be impeached by the House of Commons
is no proof as to what acts are penal in his country. pardons from the Crown not covering this (2). The proof is not privileged (3). In case 1 Cockburn, C. J., said: “We are of the
In case 1 Lord Cranworth, after pointing out that opinion that the danger to be apprehended must
as to the laws of the former the judge is able to be real and appreciable, with reference to the ordi
determine whether or not the act which in the nary operation of law in the ordinary course of ) opinion of the witness is a crime, does or does not things—not a danger of an imaginary and unsub- amount to a crime, said: “In respect of penal constantial character, having reference to some extra
sequences in a foreign country, this cannot be. No ordinary and barely possible contingency, so im- judge can know, as matter of law, what would or probable that no reasonable man would suffer it to
would not be penal in a foreign country; and he influence his conduct. We think that a merely re- cannot therefore form any judgment as to the force mote and naked possibility, out of the ordinary
or truth of the objection of a witness, when he decourse of the law, and such as no reasonable man
clines to answer on such a ground. In the present would be affected by, should not be suffered to
case indeed there will probably be no difficulty in obstruct the administration of justice. The object believing that the defendants are speaking quite of the law is to afford to a party, called on to give truly; as the documents may, in all probability
, evidence in a proceeding inter alios, protection form links in a chain of evidence which might against being brought by means of his own evi
enable the courts in Sicily to convict the defendants dence, within the penalties of the law. But it
of high treason. But if the principle is once adwould be to convert a salutary protection into a mitted, it must be admitted in all its ramifications. means of abuse if it were to be held that a mere
Thus, for instance, in a bill against a firm, some of imaginary possibility of danger, however remote whom, though resident here, are Spanish subjects, and improbable
, was sufficient to justify the with seeking an account of mercantile transactions in holding of evidence essential to the ends of justice. Spain, the defendants might refuse to set out an Now in the present case no one seriously supposes account of these transactions, on account of the that the witness runs the slightest risk of an im- dealings having been (as probably they would have peachment by the House of Commons. No instance been) to a great extent, contraband, and so tending of such a proceeding in the unhappily too numerous
to subject them to penalties for having infringed cases of bribery which have engaged the attention the fiscal law of Spain.
The case was put, at the of the House of Commons has ever occurred, or so
bar, of a bill for an account of an opium transaction far as we are aware, has ever been thought of. To
in China; and instances might be multiplied, to suppose that such a proceeding would be applied almost any extent, by ascertaining, as matter of to the case of this witness would be simply ridicu- fact, what acts, by the laws of any foreign country, lous; more especially as the proceeding in this
are penal, though not so here, and which might case) was undertaken by the attorney general by become the subject of investigation in our courts. the direction of the House itself, and it would
The impossibility of knowing, as matter of law, therefore be contrary to all justice to treat the par
to what cases the objection, when resting on the don provided in the interest of the prosecution, to danger of incurring penal consequences in a foreign insure the evidence of the witness as a nullity and
country, may extend, furnishes very strong, and to to subject him to a proceeding by impeachment. It my mind, satisfactory evidence that the objection appears to us therefore that the witness in this case
cannot be sustained.
It is to be observed that in was not in a rational point of view, running the
such a case, in order to make the disclosure danslightest real danger from the evidence he was called on to give when protected by the pardon he should first quit the protection of our laws, and
to the party who objects, it is essential that from all legal proceedings; and that it was therefore the duty of the presiding judge to compel him has violated.
willfully go within the jurisdiction of the laws he to answer.
And Crompton, J., asked: “There is | objecting are Sicilian subjects; and so the probabilalways the remote possibility that there may be
(3) King of the Two Sicilies v. Willeox, 1 Sim. (N. S.) 301 (2) R. V. Boyes, 1 B. & S. 311 (1861).