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AFTER 'TRIAL-ENTRY respondent.-Judgment affirmed with costs-John NUNC PRO TUNC.-Where a party to an action dies H. Haight, appellant, v. Mayor, etc., respondent.– after trial and submission to the court, but before a Order and award affirmed, with costs-John Sipple, decision is announced, the court has jurisdiction, and respondent, v. State of New York, appellant. — Judgin furtherance of justice, may enter judgment nunc ment reversed, new trial granted,costs to abide events pro
tunc as of the day of submission. It is-George C. Gerritt, appellant, v. City of Brooklyn, well established that to prevent injustice and respondent.-Judgment reversed, vew trial granted, to promote justice judgments may be
costs to abide event-Samuel D. Coykendall, appellant,
such case motion denied-Clarence T. Sanford, re-
if uot paid within twenty days from entrance of this
order, motion to dismiss appeal granted; otherwise
dismissed-Edward D. MoCarthy, respondent, v. Robfollowing decisions were handed down Tues- ert Bouynge, appellant.-- Motion to vacate order day, June 9, 1885 :
granted without costs-Julia E. Blackman, respondJudgment of the General Term reversed; that of ent, v. Eliza Wheeler, appellant.--Motion denied, Special Term affirmed, with costs—Eliza Hegerick, ad without costs-J. Smith McIntosh, appellant, v. State ministrator, etc., respondent, v. John Keddie, execu- of New York, respondent.- Order that remittitur be tor, etc., appellant. -Order of General and Special consolidated, and that it direct that on plaintiff's ap Terms reversed and motion denied, with costs to all | peal the judgment of General Term, so far as it re. courts-Polly Moriarty, respondent, v. Virgil C. Bart- versed the judgment entered in referee's report, be lett, executor, etc., appellant.- Order of General | modified by ordering a new trial, and as modified afTerm reversed, and case remitted to General Term firmed; and on defendant's appeal the judge of Genfor further consideration-James Mingay and others,
eral Term, so far as it affirms the referee's report, be respondents v. Henry B. Hansom and others and the Holly Manufacturing Company, appellants.- Judg
reversed and new trial granted, costs to abide eventment affirmed with costs—People ex rel. Alfred Short Daniel R. Lyddy, appellant and respondent, v. Lilah and others, appellants, v. Orin 8. Bacon, sheriff, etc., Chamberlain, respondent and appellant.
have been overlooked. “Judex," in our opinion, The Albany Law Journal.
labels this practice wrong. It really springs from
the unconscious desire -- if there can be such a ALBANY, JUNE 20, 1885.
thing — of makiug a precedent that shall do for all
like cases. Some things must be taken for granted CURRENT TOPICS.
of the judiciary. It must be presumed that they
examine and consider all the points raised, without A TTENTION is called to a communication in their certificate to that effect. It is no part of a
another column on “The Law's Delays,” criti- | judge's duty to convince parties or counsel. It is cising Judge Learned's article of that title in the their duty simply to decide, adjudge, declare the North American Recier. It is written by a jurist of law. Therefore we have always been opposed to the distinguished experience and ability and of great practice of reporting dissenting opinions. They eminence, whose opinions on the topic in question are mischievous - a note of dissent is enough, if should command the same respect that his judicial not too much. When Judge Learned speaks of opinions have long obtained. We do not however disregarding errors when substantial justice has altogether agree with “ Judex.” He is unquestion- been done, he probably does not mean that appelably right about the methods of such arbitrary | late judges have that power, but that it would be judges as Kenyon and Ellenborough, the latter of well to confer it on them. But let all read the whom went through the calendar like an elephant forcible and candid views of our correspondent, through a sugar plantation.” To turn off “seven- and not be in haste to decide a matter that divides teen defended cases" in one day, unless they are such eminent judges as Judge Learned and “ Judex.” intrinsically “short causes,” is a monstrous perversion of justice. We do not agree with “ Judex" that "most lawsuits are brought to a termination
Those who try to keep cool in this weather“ by with all the speed any reasonable person could ex
thinking on the frosty Caucasus,” may find some pect or desire," but we do agree with him that
comfort in reading a recent decision of the Iowa generally when they are not, the judiciary is not Supreme Court, that a fireman on a railway locomoto blame.” The parties, and their counsel, one or
tive, injured in the act of “bucking snow,” runs both, are usually willing or even anxious to pro
his own risks, and cannot hold the company recrastinate. Especially is this true of referred sponsible. causes, where great delays occur through the disposition of counsel to accommodate each other.
President Dwight's address to the graduating We have no doubt that Lord Eldon's doubting class of Columbia Law School is very interesting. habit was a curse to suitors in a great many in
We do not even object seriously to what he says stances, and yet it was justly said that his “tardy
about Codes. He says: “Having had considerajustice was better than the swift injustice of his ble experience in the nurseries of the law, I conVice.". Trial judges, in our opinion, are frequently fidently affirm that no legal infant can be named not strict enough in compelling parties to trial, but
who has developed, by a mere law of his inner nawe should be very loth to believe that this even
ture, a natural fondness for such a code.” (Infants proceeds from an indisposition to work. As to a
seldom know what is good for them.) He continues: desire to make precedents, we think, as we have
“One code develops another quite unlike itself. said before, that Judge Learned is substantially The Field Code of my youth has given way to the right. Not that they do this purposely, perhaps, Throop Code of my later life --- a tiny pop-gun supor consciously, but that it is the inevitable ten planted by a mighty cannon. Into what the dency of “judge-made law” to bend the judges Throop Code will develop I am straining my eyes toward making rules that will answer for other
After all, one cannot help feeling a sincere We once heard William A. Beach say with sympathy for the ingenuous and earnest youth just great indignation to Judge Hogeboom, “why, sir,
from college, full of high hopes, and born, as he there is no precedent for your honor's ruling." fondly imagines, to aid in reforming the world, “Very well,” drawled the great judge, with his in- just from the critical study of Homer, and an arimitable sarcastic grin, “then we'll make one."
tistic analysis of the tragedies of Shakespeare, with Now if Mr. Beach had not reminded the judge of
the very freshest dew of Castalia on his lips, who the manufacturing process, it would not have oc
is called upon in a down-town office to translate the curred to him that he was making a precedent, but
New York Code of Procedure into lucid and intelhe would have been doing so, nevertheless. But ligible English, and then to mark and inwardly diwe chiefly disagree with “ Judex” in the matter of gest it.” We concur. Nobody ever heard us sa long opinions. As a rule, we do not think that
any thing in favor of the style or dimensions of the opinions in this State, especially in the Court of Throop Code. But to forbid codification is not the Appeals, are too long, and it is true, perhaps, that
way to cure bad codification. it takes longer to write a short opinion than a long one; but we do not accede to the necessity of tell- An interesting communication in another column ing the suitor all about the reasons, nor of satisfy- accounts for the inconsistency of Illinois decisions ing him and his counsel that none of the points | by the practice of assigning opinions to be written
VOL. 31 — No. 25.
by a single judge, and the absence of critical exam- shall look to see a bill introduced into the Vermont
NOTES OF CASES.
T is important to know that evidence that "the
prosecuting witness will be twenty-one years There is no book more delightful for a lawyer's old the first day of August next” after the trial summer vacation than Mr. McMaster's “ History of justities a finding that he was under twenty-one on the People of the United States,” the second volume
the 15th of November preceding. Dolke v. State, 99 of which has just been published. The author is Ind. 229. The court observe: “But counsel say undoubtedly an imitator of Macaulay's method and that evidence that the alleged minor will be twentystyle, but he follows him closely and worthily. His one years old next August is not conclusive that he work is a wonderful mosaic. His industry and re- was under twenty-one years of age at the time of search are wonderful. His list of petty and obscure the alleged sale, and they cite Meyer v. State, 50 authorities is an astonishing evidence of his patience. Ind. 18, which seems to support their position. The result is a book as picturesque and interesting Upon the point now under consideration the case as a novel. We note a singular mistake on the cited was criticised and condemned in the recent first page of the current volume. The author states case of Ehlert v. State, 93 Ind. 76, and must now be that Oglethorpe served with Peterborough in Italy; regarded as overruled.” In the Meyer case, the meaning Spain — the war of the Spanish succession, minor being Edward Gresh, the evidence showed undoubtedly.
that “Gresh ” was nineteen; it was held that it did
not show that he was a minor. The court said: It will probably be necessary to fence Vermont “For any thing that appears in the evidence Gresh in with a strong barrier, to prevent her from tres might have lived the age of Methuselah,” because passing on her neighbors, so swollen with pride will it does not show he was older than that." But she be to think that Minister Phelps had an in the Ehlert case it was held sufficient that the evition" in the House of Lords on the 12th instant, dence showed that the person in question was nineHe appeared before that august body, and testified | teen in August preceding the trial. The court said that between 1691 and 1830 a ceremony was not of the Meyer case: “What was said in that case in essential to a marriage in the State ană colony of relation to the age of the party to whom the liquor New York. We do not suppose that he means it was sold was not necessary to a decision of the to be understood that he lived here during all that case, and may therefore be regarded as a dictum. period and speaks from knowledge, but that such | The statement there made, and the argument bere, is his opinion of the law. Others may have a dif. are too refined and technical to commend them. ferent opinion, and think that the common law did selves to our judgments. In this case the witnesses not prevail here in the earlier colonial days. But it were asked to state the age of the party to whom seems that “when Mr. Phelps arose to leave the the liquor was sold by appellant. It would be a Chamber, their lordships all rose and bowed defer- straining of terms, and an unusual interpretation of entially to him, the American minister returning the language, to hold that the answers left any reathe greeting in a graceful and appropriate manner.” sonable doubt as to the young man's age." But see It is a great thing to be “known and honored in Arbintrode v. State, 67 Ind. 267; S. C., 33 Am. Rep. the House of Lords,” and it is touching to observe 86, holding that an allegation in an indictment of a that these representatives of an effete civilization do sale of “one gill” does not necessarily imply less not " forget the deference due” to the representa-than a quart. tive of this glorious country, any more than the victim forgot that due the executioner, in Mr. Gil- In State v. Wasson, 99 Ind. 261, it was held that bert's last opera. We flatter ourselves that when under a statute requiring election tickets to be it comes to manners our new minister knows all printed on plain white paper, but prescribing no about the politest observances, and will never, quality or thickness, they may be printed on plain never trip over his own sword. But what was Mr. | white paper of unusual thickness. The court said: Phelps' “ return” for the greeting? We are con- “ The object of the statute undoubtedly was to sesumed with curiosity to know. Probably he had cure the privacy of the ballot. But if a voter uses not his sword about him; otherwise he might have a ballot which comes within the letter of the statute, drawn and flourished it. Did he ask their lord- his vote is not to be rejected because the quality or ships all out for “a modest quencher ?” That grade of the paper upon which it is printed differs would have been “graceful and appropriate." We from that of others, which also come within the
letter of the statute, even though the difference be enforcement, collection, or recovery of any debt, so perceptible as to partially destroy the privacy of demand, claim, or pecuniary liability, such person the ballot.
In State v. Adams, 65 Ind. may set off a debt, claim, or demand due him from 393, the ticket claimed to be illegal under the above the city,” a depositor in an insolvent bank may offstatute was alleged in the information to have been set his deposit against the claim of the bank on tax*printed on very white, thin, and hard paper, which bills assigned to it before the failure, issued by a render it quite transparent; that at the head of said city to a contractor in payment for public improveticket, the words. Republican Ticket’ were printed ments. The court said: “In Howell v. City of Bufin with very peculiar and unusual type, and in unus- falo, 15 N. Y. 523, Denio, C. J., says this in definiual form, and with very black ink, and by reason tion of two of the terms employed in this statute: thereof, the words · Republican Ticket' were read- “Demands or claims are the largest words of that ily seen and easily read and understood by an in-class, and clearly embrace a cause of action founded spection of the other side of the ticket; that in the upon a trespass to personal property. Littleton ordinary way of folding the said ticket, the words says that the most beneficial release which a man ' Republican Ticket,' so printed as aforesaid, were can have is a release from all demands ($ 508); and exposed in such manner that the officers of the elec- Lord Coke declares that a release from all claims tion, or any other person who might be present and extends to all demands. Co. Litt. 291 6.' If it be desire to know the ticket which any elector was urged that the city is not the real party in interabout to vote, could readily ascertain and know est, and for that reason section 3870 can have no apwhether a person was voting the Republican, Dem- plication, we may wonder what principles of law or ocratic or National ticket.' This court in that case equity, or what consideration of public policy, reheld the information insufficient, thereby deciding quires that the contractor's insolvent assignees that a ballot was not to be rejected because the should in such a case as this have a tighter grip on paper on which it was printed was so thin as to be defendant and his property than the city itself could quite transparent. If a ticket on paper so thin as have, if by law the city could be, and in fact were, to be quite transparent is not illegal, the reason the real plaintiff. Here, by the law, without which would be equally strong for holding a ticket valid no contract could be made, the contractor must look although the paper upon which it was printed should exclusively to the individual lot-owners and their be regarded as unusually thick and heavy.” See several lots for the satisfaction of his demands, and Oglesby v. Sigman, 58 Miss. 502, where it was held must depend upon the ordinary process of law' that printer's dashes between the names on the face for the enforcement of his right. When the im. of a ballot are "a device or mark by which one provement has been completed, the assessment ticket may be known or distinguished from an-made, and the special tax-bills delivered, the conother;” which is nonsense or worse.
nection of the public with the transaction has
ended. And when the owner of the tax-bill, and In Thmsen v. Lathrop, Pennsylvania Supreme
the owner of the lot against which the assessment Court, January, 1884, it was held that the mere
was made thereafter, meet in court, they are on fact that defendant transacted the business and equal footing, the demand of the one ought not to signed the name of the firm does not make him a
be treated as a sacred thing, nor that of the other
as blighted in the contract. The policy of our laws, member of the firm, or establish the fact that he was holding himself out to creditors as a partner.
as lettered in the statutes, and interpreted by this The court said: “Upon the simple fact that he court, is, I think, to preserve, as a thing of subtransacted the business for and in the name of the
stance and of importance, the distinction between firm the court decided that Reed & Son had the general taxes, and local or special assessments. right to believe he was a partner and to credit him There is public policy in the conservation of individas such. Had he done the business in his own name
ual rights, and in the enforcement of individual he would have been liable as well-as his principals to the individual the right to set off in suits for
equality before the law. The doctrine that denies No authority has been cited nor reason given for
taxes finds no application in this case. Not in the holding that a clerk, salesman or agent of a partnership , who uses the firm name in transacting its formula
, but in the reason of the rule, is its binding
force.” As to “ claim or demand," see McGaffin v. business, should be liable as a partner, without other afirmative evidence that he held himself out ison, 43 Wis. 638; S. C., 28 Am. Rep. 576.
City of Cohoes, 74 N. Y. 387; Kelley v. City of Mad-
THE LAWS DELAYS.
American on The Tardiness of Justice” must In Kansas City v. Ridenour, Missouri Supreme strike the average reader as quite a severe arraignCourt, February, 1885, 19 Rep. 687, under a statute ment of the judiciary, although possibly not so inproviding that “in all actions at law, or other legal | tended. He commences his article by a citation of proceedings by any city against any person for the the parable of the unjust judge whose “injustice
consisted in putting off an action, not in making a curse than one whose decisions, rashly, hastily and
says slight excuses are accepted more readily “Lords Kenyon and Ellenborough tried than they formerly were for putting a case over to cases at the rate of twenty-five a day, The very the next term" and intimates quite plainly that last day that Lord Ellenborough sat at Guildhall judges are in the practice of putting cases over the when he was laboring under great infirmity and term so as to relieve themselves from the labor of weakness, he tried seventeen defended cases," does trying them and imposing that labor upon another he hold up such despatch as an example to be imi- judge. In this country trials have always been tated in these modern days ? A judge who at- postponed for substantially the same causes for which tempted to] follow the abitrary methods of the they are now postponed. Are there trial judges who judges named would shock the public sense of postpone causes for the sole purpose of shirking justice and would be speedily impeached as unfit labor and imposing it upon some other judge ? to wear the ermine.
Such a shameful practice has never come to my obHe says “the right of appeal, the chances of a servation and cannot exist to any great extent. If new trial, the deliberations of courts especially in it does exist it cannot be too strongly condemned. the case of a capital offense, put off punishment to Let the trial judges rise to explain.
when such a time that its infliction seems to be a cruelty." | a defendant once more reaches the highest court Should there, then, be no right of appeal, no chance upon a second appeal," he may find a distinguendo, for a new trial, no deliberations of courts in capital and that that court did not mean quite what he cases ? Should lynch law take the place of the slow thought they meant” upon the first appeal. What and deliberate methods of modern courts ?
of it? Who is to blame? A case is frequently on He refers to several cases which were pending in one side or the other of a very narrow line, and a the courts before final decisions for many years. very slight change in the facts may take from They were exceptional cases and by no means typi- one side and place upon the other. Shall the court cal law suits. Most law suits are brought to a keep it upon the wrong side for the sake of speedy termination with all the speed any reasonable per- justice, and thus make a wrong precedent ? son could expect or desire, and when they are not, He seems to complain that many cases are several the judiciary is not to blame. There are motions | terms tried before a final judgment which will stand and counter-motions, demurrers, answers, amend- is obtained. How can that be helped ? Judges, ments, appeals upon all sorts of questions, de- even the wisest and greatest, are not infallible, lays and postponements on account of deaths, and their errors must be corrected, and delays thus engagements of counsel and absence or sick- occasioned are unavoidable. ness of witnessss.
How can all this be helped ? He says “there is often an understanding beThe judges cannot help it without the exercise of tween the court and the parties at the trial which arbitrary power which in this country would not cannot be put upon paper, and which has most to be tolerated. A party unjustly attacked by a law do with the merits and with a just decision. Hence suit has the right to defend himself by all the an appellate court, while it has more time for demethods the law places at his diposal, and among liberation, sometimes misses the truth of the case.” them is delay so far as he can legitimately obtain it. This is really quite wonderful! What kind of an Like a nation taken at a disadvantage by a power- understanding can that be, fleeting as a ghost, passful adversary in war, he may adopt the Fabian ing over a case like a shadow, which cannot be policy of delay and thus weary out and circumvent caught so as to place it upon paper, and yet influences an antagonist seeking to enforce what he believes a just decision upon the merits? Of course apto be an unjust claim. The courts are powerless to pellate courts cannot take account of such an atprevent this, and always will be and always have tenuated, invisible understanding as impalpable as been except by the exercise of arbitrary power lim- the imponderable ether which is supposed to fill all ited only by the will and whim of the presiding judge. space, and thus necessarily they must decide withIf the parties desire a speedy settlement of the con- out reference to it, and justice may thus be delayed troversy, they can usually have it. They can arbi- or defeated. But there is no help for it. trate, or an action may be commenced and referred, He says " appellate courts seem at times to care and speedily tried, or the action can, without much more about making precedents than about deciding delay, be tried at a regular term of some court. the case in hand justly. This comes from the fact There need be no great delay unless one or both of so often discussed that our law is largely judgethe parties desire it.
made law. Instead of being guided by the rules of "the doubting Lord Eldons are the codes of law, or by sound judgment as to the merits. curse of suitors." Is that really so? Was Lord of the case, appellate courts are constantly searchEldon, the greatest of judicial doubters, really a ing for precedents in other cases and are anxiously curse to suitors? Is the painstaking judge who making a precedent out of the case in hand. When a carefully scans all arguments, examines all points, case is argued, the question is not whether justice was weighs all doubts, solves all difficulties, and thus, done in the court below; but it may be whether slowly it may be, reaches a conclusion, a greater some witness said something which might be con