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and be imprisoned for one year. Plaintiff was imprisCOURT OF APPEALS ABSTRACT.
oned five days and he paid the sum of $200 to the clerk of ACTION.
the court as a fine, and the same was paid by the clerk Against ex-supervisor for failure to account for town to the government. Plaintiff procured a writ of habeas moneys: must be in name of town.-An action against corpus which was returned before defendant, who was a supervisor who has gone out of office, to recover for holding the same term of court at which plaintiff was moneys belonging to the town which have come into sentenced. Defendant, upon the return, vacated and his hands, and for which he has failed to account, set aside the sentence, and as a part of the same judimust be brought (Laws 1866, chap. 534) in the name of cial act and order, passed judgment anew on plaintiff the town, and an action in the name of the succeeding and re-sentenced him to be imprisoned for the term supervisor therefor is not maintainable. Judgment of one year, and plaintiff was imprisoned. Under probelow reversed. Hagadorn v. Raux, appellant. Opinion ceeding taken by plaintiff for that purpose, to whicb by Allen, J.
defendant was not a party, the re-sentence of plaintiff [Decided February 22, 1878.]
was set aside by the Supreme Court of the United
States as being without authority of law. In an action CONTRACT.
for imprisonment under the re-sentence, brought by 1. Construction of : market price.-A clause in a con
plaintiff against defendant, held that the act of defendtract wherein defendants agreed to sell blankets for
ant was done by him as a judge, and he was protectplaintiff, providing that the blankets should not be
ed by his judicial character from the action brought “sold for less than those made by D. & S.," held, to
by plaintiff. Judgment of General Term affirmed. mean that defendants were authorized to sell plain
Lange, appellant, v. Benedict. Opinion by Folger, J. tiff's goods at the same prices at which the goods of D.
[Decided March 19, 1878. Reported below, 8 Hun, 362.] & S. were sold or offered in the market. Either actual sales of the blankets of D. & 8., or their market value
SLANDER. as ascertained by bona fide offers to sell, established the Accusation of larceny: stealing from town. -Defendmarket price. Judgment below reversed. Harrison, aut said concerning plaintiff, who was a candidate for appellant, v. Glover. Opinion by Andrews, J.
supervisor, “he would be a pretty man to be elected 2. To fix price offer to sell must be in the present. – supervisor; when he was highway commissioner he But the offer to sell must be a present offer not neces- stole a thousand dollars from the town, and if he was sarily binding in law but in honor, and a promise to elected supervisor, where he would have the handling make a sale in the future, the negotiation not being of so much money, he would steal eight thousand." complete, would not establish a price. Accordingly Held, that it was not error to refuse to hold as a matwhen a purchaser asked an agent of D. & S. if he had ter of law that the words could not have charged larbetter buy plaintiff's blankets at 30 cents, and the
ceny or could not have been so understood, and a reagent told him he had better not, that he would see
fusal to grant a nonsuit was proper. Judgment below the purchaser in two or three days, and would sell as affirmed. Hayes V. Ball, appellant, Opinion by low as any one, held not to establish a price. Ib.
Church, C. J. Miller, J., dissented.
COURT OF APPEALS DECISIONS. by one not holding stock.-5. held certain shares in a
THE Vermont corporation, upon which assessments were
March 19, made. The assessments not being paid, the shares
Judgment affirmed with costs - Lange v. Benedict; were declared forfeited, and were sold by the com
Booth v. Boston and Albany Railroad Company ; pany, and certificates given to new holders. O., who
Mehan v. Syracuse, etc., Railroad Company; Bowtook title under S. claimed that the assessment
man v. Keenan ; Upham v. Ireland; Douglass v. Ireand sale were invalid, demanded to be treated as a
land; Lawrence v. Merrifield; Sparrowhawk v. Sparshareholder, and being refused, brought action on
rowhawk; New v. Nicall. -Judgment affirmed trover against the company for a conversion of the
Polinsky v. The People; Blake v. The People; Lesser shares. Thereafter, dividends were made on the shares
v. The People. Judgment reversed and new trial and paid to the new shareholders. Held, that 0. could
granted, costs to abide event -- Field v. Field; Winnot, while the suit in trover was pending, maintain an terunte 1. Cooke. - Order granting new trial reaction against the corporation for the dividends upon versed, and judgment at Circuit affirmed with costs the shares claimed by him. Judgment below affirmed. Walsh v. Hartford Fire Insurance Company. -OrHughes, appellant, v. Vermont Copper Mining Company. der granting new trial reversed, and judgment on reOpinion by Rapallo, J.
port of referee affirmed with costs - Birdsall v. Clark. [Decided January 29, 1878. Reported below, 7 Hun, Order affirmed with costs — Barton v. Speir. 677.)
Order dismissing appeal vacated – Mackey v. Lewis. JUDGE.
Judgment affirmed as to title, and judgment on Liability of judge for judicial acts: not liable civilly the accounting reversed, and proceedings remitted for for erroneously sentencing to imprisonment.—Defend- further accounting on principles stated in the opinion, ant was United States district judge, and plaintiff without costs to either party in this court - Madison was tried at a Circuit Court held by him upon an in- Avenue Baptist Church v. Baptist Church in Oliver dictment for embezzling mail bags. The jury found street. - Judgment reversed, and judgment for plaintiff guilty, and that the value of the mail bags was plaintiff on demurrer, with leave to defendants to anless than $25. The penalty prescribed in such case was swer within tweuty days after notice of the filing of a fine of $200 or imprisonment for one year. Defend- the remittance, costs to abide the event of the action. ant as judge sentenced plaintiff to pay a fine of $200 - Townsend v. City of Brooklyn (two cases).
TN collo wing decisions were handed down Tuesday,
legal decision in the State, and in which its citizens AMENDMENT TO RULES REGULATING THE
are liable to have had an interest, is noticed in these ADMISSION OF ATTORNEYS.
volumes. The work of digesting is thoroughly well 'HE Court of Appeals on the 19th inst. made the done, the statements of principle being clear, concise following order:
and accurate, and the arrangement being the best that Ordered, That Rule 3 of the rules for the admission could be devised. A table of cases overruled, etc., is of attorneys, eto., which went into effect October 1st, given, in which is included references to the decisions 1877, be and the same is hereby amended so as to read of other States approving or criticising those of New as follows:
Jersey, and it speaks well for the judiciary of that RULE 3. No person shall be admitted to an examina- State that very few decisions made by them have retiou as an attorney unless he shall have served a regu- ceived unfavorable criticism in other jurisdictions. lar clerkship of three years in the office of a practic- The work contains an excellent index, which faciling attorney of the Supreme Court, after the age of itates a reference to its contents, and a table of eighteen years. An allowance of one year shall be cases wherein every case is given under the name of made to applicants who are graduates of any college the defendant, as well as under that of the plaintiff. or university. Any portion of time not exceeding one Various matters of interest to the profession are inyear for graduates receiving the foregoing allowance, cluded in the digest, for instance the rules of the and two years for other applicants, actually spent in higher courts, lists of the judiciary, etc. The bench regular attendance upon the law lectures, or the law and bar of New Jersey are fortunate in having so exschool connected with any college or university of this cellent a compilation of the case law of their State. State, having a departmeut organized with competent professors and teachers, in which instructiou is regu
SAYLER'S AMERICAN FORM BOOK. larly given, shall be allowed in lieu of an equal period Sayler's American Form Book, containing the most imof clerkship in the office of a practicing attorney of
proved legal forms and instruments for the use of pro
fessional and business men; also a statement of the law the Supreme Court, and any person who holds a degree of deeds, mortgages, chattel mortgages, exemptions from in law from any law school out of this State, which
executions, interests, mechanics' liens, wills; with forms
for every State and Territory. By J. R. Sayler, Counselor maintains a course of instruction covering at least two at Law. Cincinnati, Robert Clarke & Co., 1878. academic years of not less than eight months each, and
The object of this work, as announced by the pubgives its degrees only after public examination, shall
lishers, is to provide a comprehensive, clear and relibe allowed the time spent in such law school, in lieu
able form book for professional and business men in of an equal period of clerkship in the office of a prac
the several States of the Union. Forms for all the ticing attorney of the Supreme Court; but in no case
more important classes of transactions, and especially shall an applicant be entitled to an examination as an
such as require to be performed with legal precision, attorney without having served a clerkship in the
are given, with such instructions and directions as the office of a practicing attorney of the Supreme Court
practice and laws of the respective States relating to for the period of at least one year.
the same seem to demand. The forms cover all the subjects usually included in form books, and so far as
we have been able to examine them, appear to be reliNEW BOOKS AND NEW EDITIONS.
able. The synopsis of the laws of the several States
relating to deeds, mortgages, etc., have been carefully STEWART'S NEW JERSEY DIGEST.
prepared and acourately state the statutes as they now A digest of the decisions of the Courts of Law and Equity
exist. The work will be found useful in every lawof the State of New Jersey from 1790 to 1876; embracing yer's library. all the cases reported in the regular reports of the State, and also in the reports for the District and Circuit Courts of the United States for the District of New Jersey; in two volumes. By John H. Stewart, Counselor at Law. Trenton, N. J., 1877.
CORRESPONDENCE. HIS is an excellent work. The compiler was, under
RETROSPECTIVE CONSTRUCTION OF STATUTES OF LIMa statute of the State of New Jersey passed in 1876,
ITATION. appointed by the Supreme Court to prepare a digest of the decisions of the courts of that State. The latest To the Editor of the Albany Law Journal : New Jersey digest in existence at that time was one SIR: By way of note to the interesting article in the made in 1844, so that the vast bulk of the case law of JOURNAL of the 9th March, commenting on the case the State was in a chaotic mass scattered through of The People v. Lord, 12 Hun, 282, and ably reviewing numerous volumes of reports, and only accessible after numerous authorities on the question, I would call the considerable research. Mr. Stewart, however, with attention of “F. P. M.” to the case of Mayor and a commendable diligence set about his task, and before Council of Hagerstown v. Schner, 37 Md. 180, in which the close of the year in which he was appointed com- the whole subject was elaborately discussed. The acpleted the first volume, and by the end of the year tion was instituted by Schner against the town to re1877 had concluded his entire work. In it he has cover damages for the destruction of his hardware embraced, in addition to the cases appearing in the store by a mob on the night of the 25th May, 1862, regular reports of the State, those in the Supreme during the war. The suit was brought under the proCourt of the United States arising in or affecting New visions of the Code, giving a remedy against cities or Jersey, together with those in the regular reports of
counties in such cases. It was instituted on the 4th the District and Circuit Courts of the United States May, 1867, not quite five years after the injury. Under for New Jersey and of the adjoining districts of New the Statute of Limitations of the State, in force at the York, Pennsylvania and Delaware, and also those re- time of the destruction, this action would have been ported in the National Bankrupt Register and the Legal barred after three years, to wit, on the 26th May, 1865. Intelligencer. It will be seen, therefore, that every u the winter of 1866 the Legislature passed an act
amending the article of the Code giving the remedy in this particular case, so as to provide “that any cause of action that may have heretofore arisen under this Article shall be prosecuted within the period of five years from the time of such cause accruing and not after; and all causes hereafter accruing shall be prosecuted within the period of three years from the time of the accrual of the same." The suit having been brought more than three years and less than five after the cause of action accrued, the only question was the power of the Legislature to extend the time of limitations in such cases.
On the part of the city it was contended that where the statute has become a flat bar, under pre-existing laws, it is beyond the constitutional power of the Legislature to pass an act extending the time: the right to plead the statute becomes a vested right. A large number of authorities were cited, among them, Cooley on Const. Lim. 357, 365, et seq.; Girdner v. Stephens, 1 Heiskell, 280; Gospel v. Wheeler, 2 Gallison, 105; Bangher v. Nelson, 9 Gill. 299; Sedgwick on Stat. & Const. LAW, 659, and very many others.
The plaintiff contended that there is no constitutional prohibition against the enlargement or suspension of the term of limitations in actions of tort, relying on 9 Gill. 309; Foster v. Bunk, 16 Mass. 245; Welch v. Wadsworth, 30 Conn. 149, and many others. Also that the principle, at any rate, has no application to this class of cases, because the statutory liability is a liability of counties and towns, public political corporations created by the Legislature and subject to its control and jurisdiction. The authorities in support of this position are numerous. State v. B. &0. R. R., 12 Gill. and Johns. 436; Regents v. Williams, 9 id. 400; Dartmouth College case, 4 Wheat. 518; People v. Morris, 13 Wend. 331; Davidson v. Mayor, etc., 27 How. Pr. 342, et als.
In their opinion the court say they “have encountered great difficulty in arriving at a satisfactory determination of this question, and it was in consequence of it that a reargument was ordered.” “The annulling of this act must assume that it is not within the scope of legislative power to pass a law which will have the effect to revive as between private individuals a cause of action which was completely barred by limitations before its passage. It must be conceded that the weight of authority elsewhere sustains this proposition. But it is not clear the Maryland decisions would allow its adoption here. Upon this point we express no opin
Grenville Tremain, one of the ablest and most brilliant of the younger members of the New York State Bar, died at his residence, in this city, on the 14th instant, after a brief illness. He was the son of the wellknown lawyer, Lyman Tremain, and was born at Durham, Greene Co., N. Y., on the 19th of April, 1845. He was graduated at Union College, pursued his professional studies in the office of Peckham & Tremain, of this city, and at the Albany Law School, from which institution he was graduated in 1867. He subsequently became a partner of the firm of Peckham & Tremain and at once took an active and leading part in the business of his profession. He was corporation counsel of the city of Albany for several years, and in 1877 was the Republican candidate for Attorney-General of the State. No man in the profession had a higher promise of success than he a week before his death. Possessed of all the qualifications that go to make an eminent lawyer, enjoying the entire confidence of the bench and the bar, and having a large and lucrative practice, nothing seemed to be wanting to render his position the best that could be desired. His early death is, therefore, particularly to be regretted, not only by his relatives and friends, but by the profession to which he belonged and the community in which he had spent the greater portion of his life.
HENRY A. TAILER.
Henry A. Tailer, a prominent member of the New York City Bar, died on the 15th inst., at his residence in that city. He was born in New York in 1833, and received his education at Columbia College. Having been graduated from that institution at the head of the class of 1852, he passed the next two years in Europe, studying civil law at the universities of Bonn and Heidelberg. He also acquired an excellent knowledge of German and French, and was thoroughly acquainted with the best literature in both languages. Upon returning to New York, Mr. Tailer studied law in the office of Kent, Eaton & Kent. After having been admitted to the bar, he became a partner of the firm at the death of Mr. Kent. The firm then was Eaton, Davis & Tailer, and since the retirement of J. C, Bancroft Davis, has been Eaton & Tailer.
-ion: The learned judge then enters into a discussion In the cascades Tiere uit
Rcrum,amor inet Edecided District
of to be “those rights to which a party may adhere, and upon which he may insist without violatiug any principle of sound morality. There can be no vested right to do wrong." But, say the court, “ between public bodies and private citizens there is a wide and substantial distinction with respect to vested rights protected from legislative power. Public corporations are created by the Legislature for political purposes, with political powers to be exercised for purposes connected with the public good, subject at all times to the control of the Legislature with respect to their duration, powers and rights.” 10 How. 534. "It would be difficult to conceive how such corporations could have or acquire any vested rights not subject to legislative control.” The result was that the court sustained the act and the judgment for the plaintiff was affirmed. HAGERSTOWN, March 12, 1878.
H. K. D.
LUnited States Circuit Courtfor the of Virginia, the court sustains a demurrer of plaintiff to a plea of a want of jurisdiction interposed by the United States Attorney-General, the plea being that the United States was indirectly the defendant, and could not be sued. The ruling is that, if the sovereign power intervenes in a suit in which it is not a defendant on the record, with an objection that it cannot be sued, the court will look into the grounds of its right to intervene, and that accordingly the government in this suit must stand upon the strength of its title and not upon its exemption from suit.
A bill reported from the House committee on expenditures of the Department of Justice provides that in cases involving large amounts in which the United States may be a party in interest, and in cases of the United States against individuals for high crimes and misdemeanors, a district attorney may employ assistant counsel, but not more than one attorney or firm of attorneys in one case. Another bill reduces the compensation of clerks of District and Circuit Courts when one person holds both offices from $7,000 to $3,500 after the payment of necessary expenses.
The Albany Law Journal.
ALL communications intended for publication in the
cause, and (2) whether, supposing it had not that LAW JOURNAL should be addressed to the editor, and the effect ipso facto, the court might look into the name of the writer should be given, though not necessa
grounds on which the intervention was made, the rily for publication.
first question was answered in the negative, the Communications on business matters should be ad- court holding that the executive cannot on mere dressed to the publishers.
prerogative forbid the hearing of a citizen's plea. As to the second question Judge Hughes says that he is not at liberty, sitting as an inferior court, to hold that the fact of the Federal government being claimant by record title of the property which is
made the subject of an indirect suit against it, in ALBANY, MARCH 30, 1878.
possession of it and in the actual use of it for public purposes, defeats the jurisdiction of the court to
look into the grounds of the government's title and CURRENT TOPICS.
decide the action upon the merits. To so hold, he POINT of very great importance was passed says, would be to overrule the Supreme Court in the
upon in the Circuit Court of the United States cases of Meigs v. McClung's Lessee, 9 Cranch, 11; Wilfor the Eastern District of Virginia on the 15th inst., cox v. Jackson, 13 Pet. 498; Gresar v. McDowell, 6 in the case of Lee v. Kaufman. The plaintiff Wall. 263; and Cooley v. O'Connor, 12 id. 391. brought action of ejectment to recover the well- This ruling of the Supreme Court has been susknown Arlington estate, near Alexandria, Virginia, tained by decisions of other courts: Elliot v. Van which was, by the will of its owner, who died in Voorst, 3 Wall. Jr. 301; Dreux v. Kennedy, 12 Lou. possession in 1857, devised to the wife of General | 489; French v. Bankhead, 13 Gratt, 183; Polack v. Robert E. Lee, with remainder to the plaintiff. In Mansfield, 44 Cal. 36. 1864, under acts passed by Congress for the collection of direct taxes in the insurrectionary States, Mr. Stephens of Georgia introduced in the House the land was sold for the payment of a tax as- on Monday a bill for the reorganization of the Susessed upon it, and bid in for a sum largely in ex- preme Court of the United States. The main fcacess of the amount of the tax, by the United States, tures of the bill are those providing for the division which at once took possession. At the time of the of the United States into fifteen judicial circuits commencement of this action the land was occupied and the appointment of six additional Supreme by defendant Kaufman, and about two hundred Court judges. The Chief Justice is to divide the others. No part of the sum in excess of the tax for Supreme Court into five sections of three judges which the estate was bid in was ever paid to plain-each, one of whom is to be a presiding justice, and tiff or any one interested in the estate. After the com- the business of the court is to be parceled out mencement of the action the United States, which among those sections. The success of this bill had not been made a party, intervened, claiming to would be a deplorable matter. While it might exbe the owner of the land, and to occupy it in the exer- pedite business, it would dissipate the authority and cise of its sovereign and constitutional powers, and the influence of the court. suggested that the court had no jurisdiction of the subject in controversy, and moved that the decla
It is announced that the law in reference to diration in the suit be set aside and all proceedings
vorce in Connecticut has been so amended that the stayed and dismissed. The plaintiff demurred to the suggestion of the government. Judge Hughes, be marriage contract can hereafter be dissolved only in
cases of adultery, fraudulent contract, willful defore whom the motion for a stay was made and ar
sertion for three years, seven years' absence unheard gued, has delivered an elaborate opinion in which from, habitual intemperance, intolerable cruelty and the whole subject presented by the motion is learn- imprisonment for an infamous crime in the State edly discussed. The court says that although an intervention of the government in this manner in prison. These reasons seem to be sufficiently nu
merous, but the law of Connecticut is much more a cause pending between other parties is unusual
rigid than it has heretofore been. in this country, it is sanctioned by authority (Florida v. Georgia, 17 How. 478; Maxwell's Lessee v. Levy, 2 Dall. 381; The Exchange, 7 Cranch, 117) and is The bill introduced in the English Parliament for the settled practice in England. Legh v. Rose, 8 the abolition of the action for breach of promise of Mees. & Welsby, 579. Upon the questions of law marriage has led to a considerable discussion of the presented by the suggestion and demurrer, namely: subject in the press of that country. The opponents (1) Whether the suggestion was of itself sufficient of the bill have presented many cogent reasons to defeat the jurisdiction of the court over the against a change in the law, among which, is the
very general existence of such a right of action in the conference and it is to be hoped that the United different countries and ages, and under different sys- States will be well represented. tems of jurisprudence. It was recognized in the Roman law. Under the title de sponsalibus, in the Pan
The Senate committee on judiciary have reported, dects of Justinian, it is stated that the action ex
without recommendation, a bill to repeal the bankisted in Latium, and Servius Sulpicius in a work
rupt law. The views of the members of the comentitled de Dotibus says the action was maintainable
mittee were not at all harmonious, but a majority when the Lex Julia conferred upon all the people of
directed the report made, and several who did not Latium the rights of citizenship. The canon law
favor repeal consented that the bill should be retreated of promises of marriage with great serious
ported without recommendation. If the feeling of ness, even admitting that in foro conscientiæ spiritual
the committee is an index of that of the Senate the compulsion might be employed to enforce perform- passage of the bill by that body seems certain. The ance; but in later times the rule was relaxed by House is sure to take like action on the matter and the Popes, and damages adjudged in lieu (er litteris
the only hope of those interested in a perpetuation de Sponsalibus). In Sweden the power to decree per
of the law is in delaying action in one or the other formance of a promise to marry was retained so late
of the two houses. We sincerely hope they may not as the year 1810, when it was abrogated. The Ori
be able to do so, for the great majority of the peoental Church, following the Israelitish doctrine, ple, both business men and lawyers, have become viewed a breach of promise in the light of a breach
convinced that the bankrupt law is productive of of marriage (Concil. Trullana 692, can. 98). An ac
more harm than good, not only to business interests tion of this kind will lie, according to French law,
but to those of the legal profession. In one or two provided special damage be proved (Code Nap, and
instances the courts have severely animadverted on decisions thereon). By the law of Italy, this right
the opportunities for fraud it atfords. Matter of of action arises whenever the formalities specified
Allen, 17 Alb. L. J. 170. In various ways it opein Article 54 of the Code are complied with. The
rates to injure the community, and even its friends Prussian Code renders the breach of a legally consti
admit that essential amendments are needed if it tuted agreement to marry actionable, and, under should remain in force. No two persons agree as to certain circumstances, a penal offense. In one re
what amendments should be made, and the only spect, the French, German, and Italian law, differs
solution of the difficulty is that proposed by the from that prevailing here, and in England, in that it
Senate committee, namely, unconditional repeal. does not admit injury to the feelings as an item of damage. And the rule permitting such an element of damage is, perhaps, the cause of most of the in- The State of Iowa, after an experience of several justice that arises under the operation of our law. years under legislation not permitting capital punIf the plaintiff could recover only such pecuniary ishment for murder, has restored the death penalty. damage as she has actually suffered, there would This State is very favorably situated for testing be no objection to the law as it now exists here. wbether it is better for the community to inflict
death as a penalty for murder, having an agriculThe New Code, or that part of it that the gover-tural community with fertile lands, and with no nor vetoed, has not yet been voted upon in the Sen- large centers of population so as to develop what is ate, to which it was returned. The opp
known in our great cities as the criminal class. If the measure in both houses are preparing for a vig- an experiment of this kind ought to succeed anyorous contest, and its friends will need all the where it is in Iowa, but we judge that it has not strength they can muster, to overcome the veto. from the circumstance that the change mentioned And work is being done very vigorously outside the has been made. legislature in the way of obtaining petitions against the proposed law, and in publishing editorial and
The Vanderbilt will case, which has for some other articles in those newspapers which are sup- months occupied most of the spare time of the posed to have an influence on legislation. It is im
surrogate of New York, has been productive at possible, at this time, to say what will be the result length of an opinion from that official, wherein the of all this, but both sides appear to be confident question whether the declarations or admissions of a of success.
legatee under the will tending to show undue influ
ence, or the absence of testamentary capacity are adIt is announced from New York that the next missible in evidence in behalf of the contestants, is annual conference of the Association for the reform elaborately and learnedly discussed.
Numerous and codification of the Law of Nations will be held authorities, American and English, are examined, at Frankfort, Germany, on the 20th of August, 1878. and the conclusion reached that the declarations Numerous matters of interest will be brought before and admissions should be excluded.