Слике страница
PDF
ePub

The latter must, it is submitted, be deemed directly adverse to the decision of the court, unless the circumstance of the defendant in this case being a holder of a vivum vadium, and the defendant in that case a mortgagee shall be thought to distinguish the cases. Lawrence v. Fox. If an authority in the case at all is not in point as to the precise question decided therein (see 47 N. Y. 240, per Rapallo, J.), unless the Hoods were the owners of the property at the time of its transfer to the defendant, if, indeed, even then, Lawrence v. Fox could be deemed applicable. The court makes no comment upon Mr. Burtis's method of paying his debts by making his creditor a debtor to another, nor is the question whether the defendant, after paying the indebtedness to his firm out of the profits, could retain the land as security against the claim of the plaintiff passed upon.

The case of Vrooman v. Turner, supra, holds (being it is believed the first reported decision directed in point to that effect in this State), that a grantee of real estate is liable to a mortgagee on a covenant in the deed to pay a mortgage on the land, although his grantor was not liable; thus overruling the decision of Chancellor Walworth in King v. Whitely, 10 Paige, 465, approved by the Court of Appeals in Trotter v. Hughes, 12 N. Y. 74.

A clause in a conveyance assuming payment of the mortgage is regarded by the court as "simply an agreement to pay her own (the grantee's) debt," and the court adds, "there is every reason both in law and morals why she should do so; she bought the land for a stipulated price, and instead of paying it all to her grantor, she retained a part of it and agreed to pay that part upon this mortgage." Might it not however be argued that the moral, if not the legal, view of the case would be equally well satisfied by regarding the assumption clause as a qualification of the covenants of the grantor, or by considering the debt of the grantee as paid, by the allowance of the amount of the mortgage out of the purchase-money? Is there any moral or even legal reason why, if such a view would carry out the intention of the parties, it should not be adopted? See Belmont v. Coman, 22 N. Y. 438.

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down in the New York Court of Appeals on Tuesday, April 24, 1877:

Order affirmed, without costs as to either partyGoetchens v. Matthewson and ano.— Judgment affirmed - People ex rel. Folk v. The Board of Police and Excise of Brooklyn.- -Judgment affirmed, with costs Harger and ano. v. Worrall; Pulver v. Martin; The Merchants' Bank of Canada v. The Union Railroad and Transportation Co.; Yerkes v. The National Bank of Port Jervis; Nuendorff v. The World Mutual Life Insurance Co.; Catlin v. Martin; Wright and ano. v. Booth. Judgment affirmed, without costs to either party -The People ex rel. Kilmer et al, v. Cherritree et al.- Motion granted, with costs of appeal up to time of giving notice of motion, and $10 costs of motion - Haight v. Haight.- - Judgment reversed and new trial granted, costs to abide event — Cameron and ano. v. Seaman and ano.; Chadwick v. Fonner et al.; The Whitney Arms Co., respondent, v. Brooks and ano.

The following order was handed down Thursday. April 19, 1877:

This court will take a recess from the 27th of April to meet again on the 3d Monday of May. No causes will be taken up after the 25th of April, except the appeals in the New York Elevated Railway actions. A new calendar will be made up for the third Monday of May, on which the clerk will place in their proper order the causes on the present calendar which shall not have been heard or otherwise disposed of, and all causes which have been or shall be noticed for argument, and the proof of service of notice filed with the clerk on or before the 7th day of May. Rule five is amended so as to read as follows:

RULE V.

Appellant to make a case-1

its form.

In all calendar causes a case shall be made by the appellant, which shall consist of a copy of the return of the clerk and the reasons of the court below for its judgment, or an affidavit that the same cannot be procured, together with an index to the pleadings, ex

As in Campbell v. Smith, so in this case the court seems disposed to fix a liability upon the grantee with-hibits, depositions and other principal matters. Every

out much consideration of the actual intention.

Conceding that "what the precise state of the law is in this State, which is to govern this case, it is not very easy to determine," the court sustain the action because there is "no controlling authority to prevent."

Whether the doctrines of these cases in the Supreme Court will be sustained by the Court of Appeals, remains, so far as I know, yet to be seen.

There is one point upon which there is a striking difference of opinion between the Court of Appeals of New York and the Court of Chancery of New Jersey. In Garnsey v. Rogers, supra, it is said that an assumption of a mortgage in an absolute conveyance of land is irrevocable. "The grantor cannot retract his conveyance or the grantee his promise or undertaking." See 47 N. Y. 242.

as a contract

In Crowell v. Currier, 27 N. J. Eq. 152, on the contrary the undertaking is treated within the power of the contracting parties to abroC. W. S.

gate.

NEW YORK, April 17, 1877.

opinion in the cause, at Special Term as well as at General Term, relating to the questions involved in the appeal, is included by the foregoing provision. [NOTE. By this amendment an index is required as a part of every case.]

NOTES.

THE publishers of The Syllabi are about to discontinue that paper and to issue in its place a new weekly to be called The Northwestern Reporter.· Robert of Law Publications. This is a catalogue of American Clarke & Co. have issued a new edition of their Digest and British law books, classified according to their recognized legal titles, with an index of authors. It comes down to 1877, and will be found a valuable assistant to all who are interested in law publications of any kind.The department of law claims and real estate of the Missouri, Kansas and Texas Railway has published a report of its work for the year ending December 31, 1876. The report shows that the department has effected a great saving for the company whose interests it has in charge. The rule adopted

by the general attorney, namely, to adjust promptly all just claims, is worthy of the attention of all railway managers. He says the result of this course has been flattering, and that the company in consequence stands as well in court as an individual and gains more suits than it loses.- - Messrs. George W. Smith & Co., of New York, have issued in pamphlet form a work entitled " Regulations and Special Practice of all Courts of Record in New York city." It is prepared by a competent member of the bar, and contains the special rules as amended to date, of the Supreme Court, New York Superior Court, New York Common Pleas, Marine Court and Surrogate's Court. It has a copious index, and must prove of great value to those having occasion to practice in the First District.

The case of Richardson v. Miller, decided by the United States Circuit Court for the District of Massachusetts, on the 13th inst., was a suit for the infringement of plaintiff's copyright of certain playing cards. It was contended by the defendants that the complainant's copyright was invalid, for the reason that his prints were not a fit subject of a copyright. Upon this point the court, in granting a decree for injunction and accounting, said: “Courts of justice will not lend their aid to protect the authors of immoral works. But where there is nothing immoral or improper in the prints themselves, the fact that they may be used by persons to violate the laws against gambling does not, of itself, deprive them of the protection of the law. To do this it must appear either that there is something immoral, pernicious or indecent in the things per se, or that they are incapable of any use except in connection with some illegal or immoral act. It is not contended that the playing-cards of the complainant are subject to either of these imputations."

Judge Cooley, in his recent address before the graduating class of the law department of Michigan University, said, in respect to the laws: "They give us the best insight to the real character of the people. The laws are not merely their professions, but they are professions which they consent shall be put in practice. They present us such rules of order, morals, good neighborhood and equality as the people consent to live up to. If these rules tolerate a vice, we know the general sentiment at the time is unwilling to outlaw it. If they condemn a vice, we know that indulgence must be so far exceptional that the common voice calls for its punishment. If they allow slavery, we know that the evils which attend the institution necessarily prevail; if they prohibit it, and make every person equal before the law, we see that there prevails a benevolent spirit, which insists that every one shall be entitled equally with others to his opportunity to make of his powers the best possible use. In short, the laws give us, in place of the outward professions of the people, such pledges of conduct as they are willing to be tested by at the bar of justice and under civil and criminal penalties; and when the laws have changed for the better, this is evidence that the character of the people has changed in like degree."

The Central Law Journal does not fully acquiesce in the opinion of Judge Cooley. It says: "Suppose a descendant of Macaulay's New Zealander should, centuries hence, undertake to write a history of the American people during the first century of their in

dependence, and all other materials being lost, should found his work on a volume of the statutes, say, of this State. He would then recount how the ancient Americans observed the Sabbath, doing no work, except of necessity or charity; he would relate that among them gambling was unknown; that they were a peaceful and non-aggressive people who carried no weapons for their protection; that the suffrage was free and incorrupt, bribery and fraud being high crimes; that betting was not heard of; that bawdyhouses, and prize-fighting, and dueling, and cock-fighting were unknown; and that murderers were hanged by the neck until they were dead. Such would the historian be forced to write, if he relied on the written laws, and was unable to discover in what manner they were enforced; and that his history was authentic, only the people who had lived under those laws, and the legislators who had established them, and the officers who had not sustained them, would be able to deny."

In San Francisco, recently, a Chinaman who was indicted for murder was instructed by his counsel to attempt to prove an alibi as his best line of defense. Accordingly, at the trial a couple of Celestials appeared and swore that at the time of the murder he was at work in a wash-house, two more swore that he was at a boarding-house in bed, and several others were prepared to prove him in several other places, when the lawyer interfered and stopped further testimony.— In the Circuit Court for Garret county, Md., recently. during the trial of a suit, to which a clergyman and his wife were parties, the counsel for the reverend gentleman said to the court: "We have a prayer to offer before the case goes to the jury." The clergyman's wife immediately said to her husband in a whisper, which was overheard by several lawyers, "Jonas, they'll call on you to pray, sure, for there's no one else here that can do it."

The statute books in the United States Circuit Court at St. Louis are chained to the judges' table for fear counsel will carry them off. The Central Law Journal says that the books are misnamed "The Statutes at Large." The Tennessee Legislature has established a commission to relieve the Supreme Court of that State of the business now overburdening it. Cases are to be heard by it only by consent of parties. It is said that the Boston University School of Law is about to extend the time required to complete its course of study to three years.- Judge Brown of Baltimore censured a juryman recently for novel-reading in court, and ordered one of the bailiffs to take charge of the book which he had.

Mr. Eli T. Sheppard, for many years United States Consul at Tientsin, China, has accepted a position in the government of that country as assistant legal adviser to the Foreign Office. He was at one time a student in the office of John A. Bingham, now Minister to Japan. The Bar Association of the District of Columbia have appointed a committee "to take up the consideration of the reorganization of the courts of the District of Columbia, and to prepare a bill for that purpose, to be submitted to Congress at its next session." It is expected that what is known as the "Frye Bill," will form the basis of the committee's work. But should this bill fall through, its failure will not influence their exertions.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

tice, was, on Friday morning, seated upon the floor of the Assembly beside a member who had invited him to the floor. During the discussion of that

Communications on business matters should be ad- morning over the Revision, Mr. Strahan, angered dressed to the publishers.

The Albany Law Journal.

THE

ALBANY, MAY 5, 1877.

CURRENT TOPICS.

that the Assembly did not adopt his view, called for an enforcement of the rule excluding from the floor others than members. The Speaker, in surprise, looked around the chamber, and said he saw no unauthorized person present. "I do," said Strahan, and he pointed to Mr. Field. The rule was ordered enforced, and Mr. Field retired. Directly after, however, the House voted Mr. Field the privilege of the floor. There are several things that render the conduct of Mr. Strahan peculiarly contemptible. Only a few days previous, when Mr. Field was in Albany for the purpose of arguing a cause before the Court of Appeals, he was introduced into the Assembly by Strahan himself, and invited to take his seat; Strahan suggested and arranged the joint committee for the purpose of hearing Messrs. Field, Throop and Emott; Mr. Field had come to Albany on the invitation of the joint committee; he was the guest of another member; he was an ex-member of Congress, a prominent citizen, and, of all men, entitled to entertain and to express views upon any code of procedure. Common decency would have, at least, led Mr. Strahan to suggest that Mr. Field's presence was not desirable before requiring the enforcement of the rule; common courtesy would have entirely prevented any such exhibition of bad

manners.

HE framers and friends of the Code of Remedial Justice have this satisfaction at least, that, notwithstanding the most overwhelming opposition, an opposition that, upon the essential points, had almost carried with it both houses of the legislature, it became the law of the State. This result came from what would seem an easily settled matter of dispute. The House wished to postpone the time when the Code should go into operation until May, 1878, but the Senate was unwilling to allow a longer time of delay than October, 1877. There was also an amendment providing that no officer of the court in certain counties should be appointed referee, upon which the houses did not agree; but this was not considered material, and, if the other dispute could have been settled, would probably have been arranged. The two bodies not being able to agree, the act took effect according to its own provision, on the 1st inst., and was on that day the law of the State. This circumstance has caused much surprise and some annoyance to the profession, who, notwithstanding the declaration in the Code itself that it would come into force on the 1st of May, 1877, believed that a later day would certainly be named. It would have been better to have postponed the operation of the act until the amendments to it were passed and the nine chapters forming its comple-ance, ment adopted; but if the legislature intends to finally adopt the Code of Remedial Justice, with such amendments as the two houses have agreed upon, the mischance that resulted from their disagreement as to the matter of time will be of little moment. The act in force can be as easily amended as if it were to come into force, and the plea advanced by many that there has been no opportunity given to become familiar with the new law, is not of great moment. Whether we are to have or not to have the new Code, is a question, however, that the legislature should settle at this session.

One of the cabinet officers, a leading lawyer, before he was appointed to the position he now holds, in like manner as others of his profession, accepted retainers for services thereafter to be performed in proceedings then pending before the courts, or expected soon to be pending. After he entered upon his official duties one or two cases of extraordinary importinvolving large amounts of money, and affecting, directly or indirectly, a large number of persons in which he had been retained, came on for trial or argument. He appeared as counsel therein, giving but a brief time to them, and immediately returning to his regular duties. The cases involved no matter which could render it improper for the official to act as counsel therein, and it did not appear that he neglected a single official duty to attend to them. Yet, certain newspapers have not ceased to censure the action of the gentleman mentioned in the matter, and to claim that he is guilty of great wrong in not giving his whole time to the public service. If he had been a farmer, and had Mr. Robert H. Strahan, member of Assembly, devoted an equal time to the management of his gave a very contemptible exhibition of petty spite estate, nothing would have been said; neither do we on Friday week. Mr. David Dudley Field having think that a newspaper editor, in similar circumcome to Albany upon the invitation of the Judiciary | stances, would have been criticised for closing up a Committees of the two houses, to give them, in joint matter of private business. The lawyer alone is session, his views upon the Code of Remedial Jus-expected to abandon his regular business when he

VOL. 15.- No. 18.

enters the service of the public, and he is, perhaps, the very one who can least afford to do this. It requires many years to establish a professional practice, and few men can build up one more than once in a life-time. If the lawyer must entirely abandon his calling in order to serve his country, the honors of official position will be more than counterbalanced by the loss he must submit to in order to accept such position. We think, however, the people do not agree with the partisan press, and are willing that Mr. Evarts should, in proper cases, act as counsel, when he neither violates nor neglects a public duty in doing so.

The Supreme Court of Utah has at last ended a judicial farce which has disgraced the reputation of that tribunal for several years. We refer to the case of Young v. Young, in which the woman, known as Ann Eliza Young, brought action against the Mormon leader for divorce. As is well known, at the time she claimed to have been married to him he had a wife living, and had also numerous females who had formed an alliance with him similar to that made by the plaintiff. Thus the essential ground-work for an action of divorce was taken away, and inasmuch as the plaintiff knew all the facts of the case when she entered into her alliance with the defend

ant, there was no basis for an action declaring the pretended marriage void. Yet, notwithstanding all these circumstances were of public notoriety, a judge of the court granted a decree for alimony pendente lite, thus deciding that, although the plaintiff was not entitled to maintain her action,

the defendant should furnish her the means to do so and to support herself until the final determination thereof. The Utah court has now decided that the plaintiff had no ground of action. The telegraph states that the court held that the plaintiff and defendant were not married de jure, but were married de facto, that the marriage was induced by undue influence and coercion, and that while the plaintiff is not entitled to divorce, she is to compensation for her services as a menial servant while living with the defendant. The alimony, however, that has been paid by defendant upon the decree ordering it, is held to be more than would be due her for services, and so she is not allowed further compensation. Precisely what the court mean by calling the arrangement between the parties a marriage de facto we do not undertake to say. The excuse for allowing the plaintiff to retain the alimony already paid her is a poor one; but it is probably of small moment, as under any decision the defendant would receive nothing back. We are glad the matter has terminated, because its continuance was an imputation upon our national courts. We say terminated because there is no foundation for an appeal, and we think the plaintiff too wise to expend her winnings in such a course.

The suit brought by the Emma Mining Company against Trenor W. Park and others to recover for damages caused by alleged fraudulent misrepresen. tation as to the value of a mine, has resulted in a verdict for the defendants. The trial commenced on the 13th of December, 1876, and has been continued with comparatively little interruption ever since. It is said that the jury sat seventy days, and that the sittings each day were none of the shortest. One of their number was taken sick during that time, and the trial proceeded with eleven jurors. It was expected that the result would be a disagreement, but the members of the jury were humane enough to decide the case, and not burden another body of men with the tedious task they had themselves gone through. The plaintiffs in the action must by this time have become convinced that there is little hope of their recovering the moneys they have sunk in their enterprise. They have instituted suits in the courts of two countries against those they claimed to be instrumental in duping them, and as yet have obtained no satisfaction. Of the merits of the controversy we know but little, but what we have seen convinces us that when the company whose stockholders claim to have been swindled was organized, every one understood that the enterprise was to a great extent speculative; it might be very profitable, but was extremely liable to result in loss, and that the defendants and those connected with them did nothing and made no representations which vendors of such property might not be expected to do or make. At least the jury have determined this, and we suppose have ended the doubtful part of the litigation, for we do not imagine that in the face of a seventy days' jury session the courts will award a new trial. It is said, however, that other suits have been instituted upon the same grounds, and that the plaintiffs have not by any means given up the fight.

A decision of Judge Wallace, pending the trial in this case, checked what would have been a very dangerous precedent. Prior to the commencement of the summing up, the counsel on both sides made an application to the court to allow the parties to the suit, complainant and defendant, to subscribe $2,500 each, to be divided between the jurymen as a partial compensation for their loss and inconvenience from giving so long a time to this trial. The judge refused to allow this to be done. His reasons are stated fully in another column. most prominent one is, that if it were allowed, it would furnish a ready means of influencing & jury by an appeal to their pecuniary interests. A counsel having a doubtful case could ask the opposing counsel to join him in a donation to the jury, the amount of which it might embarrass the other to raise. The effect on the jury of a refusal

The

to participate would be to the detriment of the party refusing. In other ways, too, the practice would be bad, and every one must be gratified at the decision of Judge Wallace.

There has been during the past week comparatively little business in the State legislature of general interest to the profession outside of the discussions upon the Code of Remedial Justice. A bill providing for the abolition of the grand jury system and the division of the duties now performed by that body between district attorneys and justices, and also one regulating the tariff upon telegraph messages was introduced. The bill allowing women to hold school offices has passed both houses, and now needs only the approval of the governor to become a law. This enactment is another step in the direction of giving woman every legal right and privilege possessed by those of the opposite sex. How much it will benefit those in whose favor it was passed we do not pretend to say, but we think that the friends of the movement, which has accomplished this result, have overestimated the consequences that will flow therefrom.

THE

NOTES OF CASES.

HE case of Hawman v. Thomas, 44 Md. 30, was an instance of an inoperative bequest. A testator by will gave to certain persons named three equal shares, without saying of what. The will also directed that all debts due to testator from either of the persons named were to be deducted from the share of such person. The court held that the bequest was defective, by reason of the failure to state therein any property upon which it could operate; that extrinsic evidence was not admissible for the purpose of showing what property was intended to be embraced in it. It was held, however, that it was not wholly void, but was valid and operative to give the parties named the amount of the debts due from them to the testator. The court enunciate the general principle that words can never be supplied in a will except when it is certain, beyond reasonable doubt, what particular words were omitted, and this certainty must be reached by a construction of the terms of the will. The conclusion of the court is supported by a number of decisions. Thacher v. Seaman's Aid Society, 7 Metc. 205. Here it is said that "extrinsic evidence is admissible only where the will is plain and clear upon its face, and becomes doubtful when applied to the subject-matter. It would not be admissible to show that the testator intended to devise property which had been omitted by mistake." It has been held, that where the name of a legatee or the subject of a legacy has been left blank or entirely omitted from the will, the legacy fails for uncertainty. Harris v. Pue, 39 Md. 547. Hunt v.

|

Host, 3 Brown's Ch. 311, where a gift of pictures to Lady was held void, and not to be supplied by parol evidence. In the case of Mohun v. Mohun, 1 Swanst., the words were, "I leave and bequeath to all my grand-children, and share and share alike." The counsel for the grand-children endeavored to show by parol evidence what was intended, and asked the court to transpose the words "to all," but this was refused, and the will was held void for uncertainty. See also Hiscocks v. Hiscocks, 3 Mees. & W. 383; Miller v. Travers, 8 Bing. 244; Fouke v. Kemp's Lessee, 5 H. & J. 4 ; Cæsar v. Chew, 7 G. & J. 127; Walston's Lessee v. White, 5 Md. 297.

In the Court of Appeals of New Zealand the question whether extrajudicial confessions, uncorroborated by any other proof of the corpus delicti, are of themselves sufficient to found a conviction of the prisoner for murder, was discussed in the case of Regina v. Woodgate, reported in the New Zealand Jurist Reports. Here the prisoner was convicted of the willful murder of an illegitimate child, of which he was the father. It was proved that he was present when the child was born, and assisted in the delivery; that he removed the child from the house where the mother was, immediately after the birth, and that it was never seen again, though search was made for it. The mother of the child, who was prisoner's niece, testified that prisoner told her shortly before the child was born, that he was going to smother the child, and, after the birth, that he had smothered it. Threats by the prisoner to the mother if she made any trouble about the child, and concealment of her, when pregnant, by him from her relatives, were proved. The court held that there was sufficient proof of the corpus delicti. In discussing the question the court say, that "it is difficult to see why a man should be punishable on his uncorroborated confession that he committed a crime which was proved to have been committed by somebody, and not on his uncorroborated testimony as to both crime and agent; for the same reasons which would induce him to confess a crime which had never been committed might induce him to confess that he was the perpetrator of a crime which had actually been committed." A contrary rule prevails in the United States, however, it having held that the prisoner's confession, where the corpus delicti is not otherwise proved, is insufficient for his conviction. 1 Greenl. Ev., § 217; Guild's Case, 1 Halst. 163, 185; Long's Case, 1 Hayw. 524. Mr. Greenleaf well says, that this opinion certainly best accords with the humanity of the criminal code and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases; and it seems countenanced by approved writers on this branch of the law. See Haw. P. C. Bk. 2, ch. 46, § 18.

« ПретходнаНастави »