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and he has a logical and orderly mind. Some topics Hencken, Jr.,and wife,appellants, v. U. S. Life Ius. Co.
Hutchins, respondent; Frank J. Mills and others, re-
Hermanus Bucher, appellant, v. New York Central
and Hudson River Railroad Co., respondents.
Order of award of State Board of Claims affirmed with The second volume of this important and carefully
costs-George Mark and others, appellants, v. People. edited work, covering Copyright-Insurance, edited
-Petition to vacate, etc., order of General Term re. by Benjamin Vaughan Abbott and published by
versed; that of Special Term reversed with costs—In George S. Diossy, of New York, is at hand. We can
re Petition of Solomon Mehrbach.—Appeal disbut reiterate our opinion of the merits of the work,
missed without costs-Abel H. Crosby, repondent, v. expressed on the publication of the first volume. See
Sarah Stephan, appellant (two cases). - Appeal dis. 29 A. L. J. 519.
missed with costs--People v. Kuickerbocker Ins. Co.
motiou denied with costs in all the courts--Thomas F.
Hayes, assignee, etc., appellant, v. Alex. V. Davidson,
sheriff, respondent.- Order affirmed with costs-Jas. CHE following decisions were handed down Tues- E. Brett, respondent, v. Gustavus A. Brett and others, day, Jan. 20, 1885 :
appellants; Catharine W. Cooke, appellant, v. Spencer
C. Platt and another, respondents.-Judgment of Orders of General and Special Terms reversed, and
General and Special Terms reversed, new trial granted, the writ of prohibition quashed, and defendants per
cost to abide the event-Aruold T. Niver, respondeut, mitted to proceed in the action of Faber v. Lawrence,
v. Melville M. Crane and another, appellants.-Judgas if the writ had not been issued, with costs to the
ment, so far as allows interest, modified, and as modidefendants against the relator on this appeal-People
fied affirmed-People, respondent, v. Gold and Stock ex rel. Alfred Lawrence, respondent, v. Elias Mann
Tel. Co., appellant; Same v. Western Union Tel. Co. and others, appellants.-Judgment affirmed with
-Judgment of General Term and County Court re. cost8-Edward Delahaunt and another, respondent, v.
versed; that of Justices' Court affirmed with costs in Etna Fire Ins. Co., appellant; H. Winsor Arnold, ap
all the courts-Edward H. Neary, appellant, v. George pellant, v. Harrey Parmlee and others, respondents;
Robinson and others, respondents.-Judgment afRobert T. Smart, respondent, v. Andrew J. Smart,
firmed without costs-E. T. H. Gibson and another, reappellaut; Daniel McDermott, respoudent, v. N. Y.
spondents, v. National Park Bank of New York, apC. & H. R. R. Co., appellant; Dennis G. Littlefield,
pellants.- -Reargument ordered upon its merits, and respondent, v. Albany Couuty Bank and others, appel
also its appealability, and that the case may be placed lants; Wm. H. Stratford, appellant, v. Edward R.
upon any day calendar and brought to argument when Jones and others, respondents; James Hennessey, re
reached-Addie M. Smith, respondent, v. Louis H. spondent, v. Greenwich Ins. Co., appellant; Henry Cramer, receiver, and another, appellant.-- Order Pennie, respondent, v. City of Brooklyn, appellant;
of General Term reversed and judgment ordered for Montague S. Marks, appellant, v. Edward M. Town)
the plaintiff upon the verdict with costs-Jacob F. send aud another, respondents; Hannah Lazear, ap
Wyckoff, appellant, v. Henry P. De Graff, respondent. pellant, v. Martha Ann Sly, respondent; Henry Van Gelder and another, appellants, v. James H. Prentice,
-Motion for reargument denied with costs-Alex. respondent; Samuel A. A vila, respondent, v. Wm.
Rich, respondent, v. Simon Solomon and another, apLockwood and others, appellants; Norman Porter, ap- pellants.-- Order of General Term reversed; that of pellant, v. John Beale, respondent; Anna E. Black- Special Term affirmed with costs-Robert C. Clapp mer, respondent, v. Arthur Holmes and others, ap- and others' executors, appellants, v. Thomas K. Hawpellants; Jay Ball, appellant, v. Edward P. Slafter,
ley and others, respondents.- -Order affirmed with respondent; Henry L. Rogers, exr., eto., and another,
costs-Edward Place v. Peter Riley, respondent; John respondents, v. Frank J. Squires, appellant; John P. Price, respondent, v. Ann Eliza Price, appellant; N.
Wittaker and others, purchasers, appellauts; In re peY. C. & H. R. R. Co., appellant, v. Village of Fishkill
tition of Union Stock Yard Co. to vacate assessment. Landing, respondent; William E. Langan, respondent,
----Order reversed and motion for mandamus deniedv. City of Brooklyn, appellant; David Kipp, respond- People ex rel. James S. Z. Stranaban, president, etc., ent, v. David W. McLean, appellant; James G. Aver- respondent, v. Hubert (). Thompson, commissioner, ill and another, respondents, v. David Day, 2d, and etc.- Order of General Term refusing to dismiss the others, appellants; Eliza J. Guion, appellant, v. Isaac Clark, respondent, Wm. Lee, respondent, v. Troy Cit
appeal of the city affirmed; appeal from order of reverizens' Gaslight Co., appellant: Edward D. James, ap
sal dismissed with one bill of costs upon the two appellant, v. George Shea, respondent; John P. Higgins,
peals against the appellants—In re petition of New appellant, v. Thomas J. Crichton, respondent; Temple
York and Harlem R. Co. - Ordered affirmed and Grove Seminary, regpondent, v. Louis H. Cramer, re- judgment absolute ordered against the appellant with ceiver, and another, appellants; Squires L. Newberry, costs--Mary Ann Dunbam, respondent, v. Deborah H. appellant, y. David Abrams, respondent; George H. Buckley and others, appellants.
The Albany Law Journal.
yet their thirty-five millions are better represented by their 642 Lords and 670 Commoners, than our fifty
seven millions by our 76 Senators and 325 Congress ALBANY, JANUARY 31, 1885.
We think we have national legislators
enough. We are willing to admit that our 325 CURRENT TOPICS.
Congressmen do not know as much as their 670
76 Senators know more than their 642 Lords. Mr. an article on “The French Law of Marriage,”
the fact that President-elect Cleveland served two vieu, Mr. Edmond Kelly says: “The true test of the
terms as vice-president of the association, French Code is to be found in the manner in which it handles & subject that is essentially and necessarily complicated. Let a conveyancer turn from his Mr. Ives, of the Assembly, has succeeded in relife-study of our system of mortgages to Articles ferring the subject of general codification to a 2114 to 2195, all of them short —- seldom exceeding special committee. This is a great step in advance, a few lines each, if he wants to know with what and will do something to defeat the obstructionists. magic complications disappear before an able codi- It is a quite significant fact that the governors of fier. But the work must be done well. The evils Ohio and Kansas have recommended general codifithat have resulted from the basty adoption of a bad cation in their last messages. The people seem to Code of Procedure in New York are a disgrace to
want it, and the old lawyers would better stand
In our remarks on the decision of the United inal Code of Civil Procedure, adopted more than States Supreme Court in Railroad Co. v. Ross, ante, 61 thirty years ago, construed, explained, and amended
we should have said that Justices Bradley, Mathews, through a generation, was as nearly perfect as such Gray and Blatchford dissented. We do not agree & work can often be. It needed perhaps a score of
with the Virginia Law Journal that this decision amendments. At this stage new, radical and
" will no doubt soon be followed by the State courts " hasty” work spoiled it, making its conciseness
The Federal Court has never had diffuse, disordering its method, obscuring its phrase - great success in persuading the State courts, and it ology, heaping up glosses, and converting the sym- is probable that a doctrine approved by Chief Justice metrical and beautiful frame-work into an unwieldy Shaw and uniformly followed by every State exand almost grotesque growth. We speak plainly, cept three or four will hold its own against a bare but sincerely on this subject, as we have often majority decision of the Federal Court. We do not spoken before. Mr. Throop is a man of great learn- believe in this sort of “protection " advocated by ing, elegant scholarship, indefatigable industry, the Federal Court. and untiring energy in furthering his purposes, but he is not the ideal codifier or reviser, We believe
A new Law Quarterly Review has made its appearthat even his personal adherents and admirers must
ance in London, edited by Frederick Pollock. The sigh for the simplicity and certainty of the old opening number has the following leading articles: Code, and regard bis performance with patience Section 17 of the Stature of Frauds Redrawn and rather than with approval.
Illustrated, by Mr. Justice Stephen and the editor;
the Franchise Bill, by Sir William R. Anson; the Mr. Elliott F. Shepard, late president of our State King's Peace, by the editor; Holtzendorff's EncyBar Association, said several noteworthy things in clopædie,
Dr. E, Grueber; Federal Government, his address at the late meeting.
He said that our by Professor A. V. Dicey; Homicide By Necessity, collection laws are probably more inefficient than by Herbert Stephen; the Literature of International those of any other State." We know it is fashion- Law in 1884, by Professor T. E. Holland. The next able to say this, but we do not believe a word of it. number will contain the following: Early English We believe our collection laws are among the most Equity, by Hon. O. W. Holmes, Jr., of Boston; the efficient. We have had experience that leads us to Lunacy Laws, by T. Raleigh; Bracton, by Professor say so. Let any one try the collection laws of other Vinogrodoff, of Moscow; Liability for the Torts of States
, and he will conclude that ours are speedier Agents and Servants, by Professor Pollock; Land and more efficient than most otbers. Mr. Shepard Tenure in Scotland and England, by Robert Campcounsels the "contingent fee” lawyers to do a litt
bell. The articles already published are excellent, work now and then for charity's sake, for the con
and much less soporific than English law quarterly tingent-fee business, he says, “is speculation and articles usually are. The array of distinguished not charity.” Mr. Shepard remarks upon the sup- names above given and promised speaks well for the erior expedition of trials in England. He calls at- interest and prosperity of the magazine. Among the tention to the fact that they have got two million reviews in this number is one of Ball's " Leading additional voters in Great Britain. He thinks that | Cases on the Law of Torts,” which takes the author although universal suffrage does not prevail there, severely to task for appropriating Mr. Bigelow's
Vol. 31 -- No. 5.
admirable labors in this field and striking out all a budding promise of the first three numbers.” We the reference to American cases in the notes, calling would amend by saying that it perished in the yelit a “capital error,” and characterizing the credit low the color of its covers. Pennsylvania seems given Mr. Bigelow as scant courtesy." We wish to be the banner State - the venerable Legal the new enterprise success, and we understand it Intelligence, the Pittsburgh Legal Journal, and the has already a large American patronage. Mr. Charles Weekly Notes of Cases all continue in the even C. Soule, 26 Pemberton Square, Boston, is the tenor of their way, and are all useful — the latAmerican agent.
ter especially, in matter and form, is one of
the most excellent of local records of legal decisThe course of the New York police about the ions. The Internal Revenue Record is one of the sparring match of Sullivan and Ryan reminds us of most readable of our exchanges, especially in its Justice Manisty's course in the Adams-Coleridge selected matter. We wish all such enterprises well, trial. In both cases the promise was given to the but nothing save experiment can satisfy anybody ear and broken to the hope. We almost wish the of the slender patronage at best of any law journal. police would let these two brutes have an effectual combat. Nothing else will give this country peace.
The very general attention attracted to Governor Nothing else will satisfy great “stalwart "statesmen Hill's proposed reform in the taking of the decenlike Mr. Conkling, and the rest of the $11,000 audience assembled to see the sport. It seems that bill introduced into the Senate, has led us to
nial State census, incorporated in Senator Thacher's New York is much more sensitive and humane than look into the method pursued in this matter. London. In New York a sparring match that did The Constitution very clearly directs an enumeration not leave a mark is stopped lest the ruffians might of the inhabitants to be taken once in ten years, hurt one another; in London two hungry men kill under the direction of the Legislature and for the and eat a little boy and get only six months' imprise specific purpose of fixing representation in the sevonment.
eral senatorial districts. The gathering of minute
statistical information was never directed by the The Court of Appeals have held that a justice of Constitution and was not known until quite lately. the peace is not disqualified on arriving at the age The general goverument takes a decennial census of of seventy years. This reverses the opinions of the most complete character, and the different the special and general terms, and confirms the bureaus and departments of the State now gather opinion of ex-Attorney-General Russell, and the annually all the statistical information which can impression which we have had. See opinion in be of any value in suggesting legislation. The exour present issue.
pense of taking the census in its present complicated
form is enormous. It cost in 1875 $128,000 to the The same court have held the act prohibiting the State and $265,000 to the sixty counties of the State. making of cigars in tenement-houses unconstitu- A simple enumeration can be taken at a comparational, affirming the opinion of the general term. tively trifling cost, and in a few days' time. In In our opinion a more glaringly indefensible act European countries the method is to take the census was never passed under the guise of a police meas
in twenty-four hours. It is proposed, for the securIt was a reproach to our legislation that such ing of efficiency in their labors, to bring the enumoppression could be exerted by the power of a few eration under the civil service rules. The county trade monopolists. See opinion in our present clerks are given the appointment of the enumerators issue.
because the respective counties bear the salaries of
the enumerators and because the county clerks would The last year has witnessed important changes in be apt to have a proper acquaintance with the work law journals in this country. Births, deaths, and to be performed in their own districts. We shall amalgamations have marked the record.
now see whether our legislators can rise above party lively contest is waging between the West Coast considerations in this matter. Reporter and the Pacific Reporter, one or the other of which-We will not undertake to say which might advantageously be dispensed with, The
NOTES OF CASES. great anaconda, the American Law Review, swallowed the Western Jurist, and from the tender way
N Atwater v. Sawyer, 76 Me. 539, it was held that in which it has been licking the Central Lar Journal
of late, we suspect it is preparing that for degluti- inn-keeper's refusal to receive a person as guest, tion. The Ohio Lar Journal and the Cincinnati Law without circumstances and facts justifying such apBulletin after a good deal of quarrelling have married prehension. The defendant offered to prove "that one another, preserving both titles, which is not eighty or a hundred men dressed in a certain unialtogether convenient for citation. The Georgia form arrived in Newport, and that more or less of Law Journal, we are informed by a correspondent, those men proceeded to the defendant's house, intoxi“which was projected at Atlanta some months ago, cated, and behaved in a disorderly manner, threathas perished in the green, and died untimely after eving to turn him and his house into the street;
and after that insult had taken place, the defend- It was the defendant's duty to discriminate. We ant announced that no man in uniform should have think the offered testimony, taken in connection dinner at his house, being unable to discriminate with the facts shown by the exceptions, falls short between them, taking them all as parties coming of a logical tendency to prove a reasonable cause there to create disturbance in his house;" which for the defendant's alleged apprehensions." testimony the presiding judge excluded. The court said: “An inn-keeper's right to exclude from his A rather curious Case of libel is Zier v. Hoflin, inn all disorderly persons; all persons who come Minnesota Supreine Court, Jan. 3, 1885, 21 N. W. with an intent to make an assault, or to insult him Rep. 862. The defendant caused to be inserted in or his customers, and the right to exclude such
a newspaper an advertisement, “Wanted, E. B. Z., without waiting until the assault was made, or the M. D., to pay a drug bill," and some third person affray begun, or the insult perpetrated, may be ad- cut it out, pasted it on a postal card, and sent it to mitted. Markham v. Brown, 8 N. H. 523. The de
a young lady to whom the plaintiff was affianced. fendant further claims however that when he has
Held, that a verdict for the plaintiff should be susreasonable cause to believe such conduct is intended, tained. The court said: “ We do not think the he may exclude though no such intent, may have, words published come under the third class in the in fact, existed. No authority is cited for this last classification given in Pratt v. Pioneer Press Co., 30 proposition, nor is its applicability clearly manifest. Minn. 41, i. e., of words already defamatory on their These actions are not for an exclusion from the inn. face. For the only facts suggested by them standThe exceptions do not show any attempt to exclude ing alone, to-wit, that the plaintiff owes a drug bill the plaintiffs from the house. They were admitted and that the creditor wishes him to pay, do not to, and allowed to remain in the house without ob- necessarily impute any thing wrong to plaintiff. jection. The only act complained of, was the re- But words which may be innocent of themselves fusal to furnish dinner. If however the proposition may be rendered libellous by the place and circumbe correct and applicable, the offered testimony stances of their publication, for such place and would not be admissible unless it logically tended circumstances may impress on them a meaning and to prove a reasonable cause for such belief. The suggestion which standing alone they do not have. bill of exceptions states, that some eighty or a hun- Thus, though the words here do not, of themselves, dred men, members of two militia companies, and
impute wrong, they might be published in such a clad in the uniform of the Maine militia arrived in place or under such circumstances as to make them town on the day named; that “more or less' of them capable of naturally conveying the impression that (how many is not stated) went to the defendant's plaintiff had been guilty of dishonest practices, inn, and there behaved in a disorderly and insulting either in contracting the debt or in withholding manner. These plaintiffs, though members of the payment of it. And so they come under the second militia companies, were not of this disorderly party, class mentioned in the case referred to, of words nor with them. It is not claimed that the plaintiffs reasonably susceptible of a defamatory as well as of were otherwise than sober, orderly and respectable. an innocent meaning. What meaning they would The only connection shown between them and the naturally convey was for the jury to determine, in disorderly ones was their membership of the same view of the circumstances of their publication. In militia companies. It is not even shown they were this respect the case is similar to Woodling v. Knickof the same company. The only similarity in ap
erbocker, 31 Minn, 268.
* Although one pearance was in the uniform. Such membership who publishes a libel is not to be held responsible was honorable, and there was not in that any rea- for an independent wrong done by a third person, sonable cause to believe the plaintiffs intended though connected with the libel, he is responsible insult. The uniform was honorable and the right- for the natural consequences of his own wrongful ful wearing it by the plaintiffs was no reasonable
act, although the wrongful act of a third person cause for apprehension of insult. We do not know
may concur in bringing about such consequences, how many of the organization had misbehaved. We
If it were a natural consequence of defendant's pubhave no right to assume the number was large. We
lication through the newspaper that some evil-disought rather to assume the number was small. It
posed person should send a copy of the paper, or would be illogical and unjust to say, there was rea- the item cut from the paper, to some one whom sonable cause to believe that every member of those defendant had not thought of its reaching, he would companies meditated misconduct because a small be liable for it as the consequence of his own wrong. number of them had already misconducted. Yet if Townsh. Sland. & Lib. 158; Miller v. Butler, 6 Cush, there was reasonable cause to fear insult from the
71. It was for the jury to say whether sending the plaintiffs, there was equal cause to fear it from every postal card by a third person was a natural consemember. The defendant's claim that he could not
quence of defendant's publication in the newsdistinguish between the plaintiffs and the others
paper.” In Woodling v. Knickerbocker, supra, the libel cannot be admitted against the plaintiffs' right to consisted in a placard on a piece of furniture entertainment. The plaintiffs were not with the on a sidewalk in front of a store, inscribed, "taken others. Their rights cannot be abridged by the sim- back from W., who could not pay for it; to be sold ilarity in appearance to other persons not present, at a bargain. Moral, beware of dead-beats.”
SOME FACTS ABOUT LAWYERS TOOLS. of New York. One of these cases, a case of descent,
turns upon the law of marriage as it stood in the WHAT lawyers should be indifferent to the tools early part of the eighteenth century; the other, and yet it is ineasurably true of them as a class. ership of the soil of the highways. These instances The law of the State of New York is the English are but two of many; they however serve to show common law, modified by certain accidents of situa
the practical importance of colonial law. tion, by local statute and by revolution. The meth
Unsatisfactory-most unsatisfactory-as the conods of its development are, notwithstanding the dition of the sources of colonial law is, it is next to revolution, essentially Anglican in character, and impossible to awaken the interest of the bar in the the modifications are such as the post-revolutionary subject. A very eminent private collector has exgovernment impressed upon it at a bound, or such pended a large part of a useful life in the collection as are consistent with the theory on which the pres-of the unpublished colonial statutes, but he has never ent government exists. The substratum of Ameri- been able to arouse the interest of the legal profescan law is still the English common law as it stood sion in his endeavors to publish them. Whether in the cases collected in Tomlin's Repertorium Ju- this lethargy comes from the large sprinkling of ridicum (which brought the English adjudications non-native lawyers in the New York State bar, about up to the battle of Lexington), and the there- many of them coming to the metropolis from other tofore adjudged colonial cases which determined States or countries, is uncertain; but the fact exwhat portions of the Anglican law were hostile to ists, and the fact is not creditable. That New York the colonial situation. The colonial cases have a should have less public spirit than Massachusetts or decided negative value, and act as a sort of index Maryland is equally discreditable. Why the bar expurgatorium to Tomlin's Repertorium Juridicum. associations should not now take hold of the subThe colonial statutes are of considerable absoluteject and interest themselves more than they do in value, notwithstanding their repeal, and they are of such movements we cannot tell. Certainly they immense historical value.
are the only professional associations of the kind in Yet New York lawyers as a class take little inter- the world that manifest lit:le apparent interest in the est in these vestiges of the past, either because they development of the literature of their profession. have no active fee-producing qualities, or because The reports of their doings might be made far less no immediate personal advancement is apparent in jejupe by their taking hold of some intellectual them. Consequently the antiquaries, or the public movement, by means of enlarged publication authorities, are left to do the work which should be funds, through professional
and paid done by the profession most interested.
responding secretaries, or by active participation in What the colonial law of New York was, is often the old world movements toward new educational a question of great practical importance, and yet the inethods. means for ascertaining it are wholly inadequate. As matters at present stand the • literary tools' of Massachusetts, and lately Maryland, have published the New York lawyers are behind the age. Comcostly volumes of their colonial statutes, but in the pare the curriculum of any of our law schools with great State of New York there is not a single pub- that prescribed by the law faculty of Oxford, and lic institution, not a public library where a com- learn how primitive our conceptions of legal plete set of the New York colonial statutes exists. training actually are. We have been termed the Massachusetts carries the history of her colonial * Asiatics of western civilization,' so complacent are courts back for some period by means of a volume we with our own crude methods, and with the legal of colonial reports of immense value, but in New ploughs, inherited from our ancestors. Nor do we in York nothing of this kind exists, though the mate- this remark ignore the notable exceptions which rial is abundant. The colonial bar of New York have from time to time been seen among us; they was an able one, clever, cultivated and assiduous, are not sufficient to change the fact. yet most of the present practitioners would be puz- In many directions we Americans prefer bigness of zled to know who the colonial barristers were, for tools to more delicate characteristics of skilful no official chronicles of their forensic triumphs and work. Our law libraries are comparatively enorcontentions remain. Yet they paved the way to the mous in point of quantity, but with one or two exrevolution, and they laid the foundations of our
ceptions they are singularly defective in quality. It present system of law.
would be unjust to deny that bigness is a merit in It is not in the sentimental aspect alone that a any library; but bigness is not all. No one apprevolume of colonial leading cases is due to the pro- ciates this better than the actual librarians of fession, but in the practical aspect. The true de- our institutions, but they are usually controlled by velopment of our law would be greatly promoted indifferent or perfunctory guardians, by respectable by tracing certain of our present juridical ideas to mediocritics or by ignorant officialism. One of the their source; and if properly annotated the reports best, perhaps the best, law library in the State is themselves would point the attorney's way to sources that of the New York Law Institute, in the city of of practical import. For instance, within the past New York. It now approximates to 33,000 volumes, few days, several important cases have arisen and by reason of the intelligent interest of Mr. which involve the construction of the ancient law Lodewick and Mr. Winters, the assistant librarians,