« السابقةمتابعة »
lard, 10 id. 152; Hopkinson v. Foster, L. R., 19 Eq. Port Jervis, appellant; Henry Beckworth, etc., ro. Cas. 74; Lunt v. Bank of North America, 49 Barb. 221; spondent, v. James Brackett and others, appellants; Chapman v. White, 6 N. Y. 412; Ætua Bank v. Fourth Benjamin C. Nottingham, respondent, v. Maggie National Bank, 46 id. 82; Duncan v. Berlin, 60 id. Clark, appellant; Philip A. Fitzpatrick, respondent, v. 151; Attorney-General v. Life Ins. Co., 71 id. 325; Carr Lauren C. Woodruff, appellant; John Glushing, rev. Bank, 107 Mass. 45; Lloyd v. McCaffrey, 46 spondent, v. Thomas R. Sharp, receiver, etc., appelPeun. St. 410; Bullard v. Randall, 1 Gray, 605; Dana lant; Gertrude B. Murray, appellant, v. New York v. Bank, 13 Allen, 445; Moses v. Bank, 34 Md. 580; Life Iusurance Company, respondent; Thomas H. Fogarties v. Skillman, 12 Rich. (S. C.) 518; Munn y. Larned, appellant, v. William E. Tillotson, respondBurch, 25 III. 35; Bank v. Bank, 80 id. 212; Roberts v. ent; Henry Helbriegel, respondent, v. John B. MariCorbin, 26 Iowa, 315; Buckner v. Sayre, 18 B. Mon. ning, appellant; Allen Wilson, appellaut, v. New York 745; Lester v. Given, 8 Bush, 357. Dickinson v. Coates. Central and Hudson River Railroad Company, reOpinion by Norton, J. (See 7 Eng. R. 69; 21 id. 796.] spondent; George A. Coe, respondent, v. David
Bearup, appellant; Lizzie Hannon, infant, etc., ap
pellant, v. John T. Agnew and others, respondents: A. FINANCIAL LAW.
B. Hepburn, receiver, appellant, v. W. H. MontgomNEGOTIABLE INSTRUMENT- PLEADING OFFSET.
ery and others, respondents. --_Judgment reversed. The maker of a promissory note, transferred after ma
new trial granted, costs to abide the event-Francis B. turity, sued in the name of the holder and owner, can
Wallace and another, respondents, v. Robert H. Bernot plead in offset a claim in his favor against the
dell and others, appellants; Ambrose 8. Murray v. payee; but under the general issue, he can make any
Same; George W. Wood, appellant, v. Rudolph F. defense, which grew out of the note transaction, or
Rabe aud another, respondents; A. Barton Hepburn, out of any agreement between himself and the payee
receiver, etc., appellant, v. William H. Montgomery in relation to the note. Among the cases so holding
aud others, respondents; Same v. Same; James Wilare Britton v. Bishop, 11 Vt. 70; and Armstrong
more, appellant, v. James A. Flack and others, execuv. Noble, 55 id. 429. In Adams v. Bliss, 16 id. 39, it
tors, etc., respondents; Lewis G. Knowles, appellants, was held that offset could not be pleaded although the
v. Clara C. Toone, impleaded, etc., respondents; Alice note had been transferred for the purposes of collec
Huntington, respondent, v. Emeline Asher, app. ; Chas. tion merely. The defendant in this case gave notice,
W. Durant, Jr., appellant, v. Wm. P. Alendreth, resp.; by his pleadings, of payment, but the findings of the
John B. Grow, resp. v. Horace Garlock, app.court below do not show payment, but an independ
So much of the judgment of the Supreme Court as ad. ent claim in offset against the payee. Sup. Ct. Ver- judges that the provisions of the will of Michael Kubn, mont. Haley v. Congdon. Opinion by Taft, J. (56 Eighth avenue, are contrary to law, and void, and all
deceased, relating to the house and premises No. 472 Vt. 65.
directions in said judgment respecting that property NEW BOOKS AND NEW EDITIONS.
reversed, and that the rights and interests of the par
ties in said premises No. 472 Eighth avenue shonld be HOWELL ON NATURALIZATION.
declared in accordance with this opinion. The residuo Naturalization and Nationality in Canada, Expatriation and
of the judgment of the Supreme Court affirmed, and repatriation of British subjects, etc. By Alfred Howell of
the costs of all parties in this court to be paid out of Osgoode Hall, Barrister. R. Cargwell & Co., Toronto and
the funds in the hands of the trustee-William P. RadEdinburgh, 1884. Pp. 132.
ley et al., respondents, v. Peter Kuhn et al., executor, This manual comprises the Canada Act of 1881, with
etc., appellants, v. Margaret Schoenberger et al., rean explanation of the technical terms used therein,
spondents.--Order of General Term reversed; that former statutes affecting subject-matter collated, acts
of Special Term affirmed-People v. Globe Mut. Life wholly and partly repealed by Imperial Act of 1870,
Ins. Co. (claim of Mary M. Brown). — Order of Genalso the Laws of the United States on Citizenship and
eral Term reversed; writ of certiorari quashed-People Naturalization. The whole supplemented with ap
ex rel. Second Ave. R. Co. v. Board of Commissioners propriate forms. The author also considers in twenty
of Public Works; Same v. Same.--Order of General six pages “the old rule of perpetual allegiance." Those Term reversed, and case remitted to General Term to for whose use it is intended will find needed informa
exercise its discretion in reversing the order of the tion in convenient form. The publishers' work is ad- Special Term; costs of this appeal to abide the event mirably done.
of the action-Frank P. Reed, appellant, y. Mayor,
etc., of New York, respondent.- - Order affirmed COURT OF APPEALS DECISIONS.
with costs—Thomas Cahill, appellant, v. Henry Hilton
and another, spondents; William R. Barr and others, THE following decisions were handed down Tues
respondents, v. New York, L. E. & W. R. Co. et al.,
appellants; Adam Emerich, respondent, v. Peter Hefday, Oct. 7, 1884:
feran and others, appellants; Jennie E. Erkenbrach, Judgment affirmed with costs-Patrick Walsh, ap- appellant, v. George A. Erkenbrach, respondent. pellant, v. Trustees of New York and Brooklyn Bridge Juilgment of the General Term affirming judgmentenCompany, respondent; People v. Equitable Trust Com- tered upon the verdict at Circuit affirmed with costs pany of New London, Conn.; City National Bank of -Joseph W. Duryee, respondent, v. Mayor, etc., ap
pellant.-Judgment affirmed-People, respondent, v: Poughkeepsie, respondent, v. William Phelps, im
August Muller, appellant. Order of General pleaded, appellant; Philip Kruman, respondent, v. Term reversed and judgment entered ou the report of Elias W. Beach et al., appellants; Rochester Savings the referee affirmed with costs-John Baird, appellant, Bank, respondent, v. James G. Averell and others, ap- v. Mayor, etc., of New York, respondent. — Decree of pellants; Levi Sillerman and another, respondents, v.
surrogate and General Term modified, and case remit.
ted to surrogate for judgment in accordance with the Edward Clark and others, appellants; John McDer
opinion in this case, costs of appellants and responde mott, respondent, v. Sarah M. Bull, appellant; Na
ents in this court to be paid out of the estate-In re tional Bank of Rondout, respondent, v. Benedict Drey- accounting of the executors of Bullard, Coe Adams fus and others, appellants; Todd v. Same; Gertrude and others, executors, etc., appellants, v. Arthur W.
Benson and others, executors, etc., respondent. --Or; E Armitage, respondent, v. Daniel Mace, appellant;
der of General Terin reversed, and that of Special People ex rel. Chamberlain, as trustee, respondent, v.
Term affirmed with costs-Agricultural Ins. Co., ap. John G. Forrest and others, appellants; Village of
pellant, v. Henry Barnard, impleaded, etc., respondPort Jervis, respondent, v. First National Bank of
truly a piteous object. The judge is not patient The Albany Law Law Journal. with technical objectione. In State V. Johnson,
page 843, he says: “If courts should tolerate such ALBANY, OCTOBER 18, 1884.
verbal objections, the criminal pleader might exclaim with the Melancholy Dane, we must speak
by the card, or by’r lady, equivocation will undo CURRENT TOPICS.
In Bourdier V. Railroad Co., page 949,
speaking of a taking of lands without consent, he E once amused ourselves, if not our readers,
says: “ The dazed plaintiff was roused from his atby publishing some specimens of “fine writ
titude of waiting for his permission to be asked, ing" by the judges. At the risk of extending va
by the scream of the locomotive." We cannot recation topics beyond the proper bounds, we venture call any thing more vivid than that, unless it is the to add a few examples. Chief Justice Jackson,
next. In City v. Roos, page 1011, holding that a of Georgia, has such a way of putting things charge of keeping a bawdy-house in an indecent that we suspect he must be descended from
manner need not specify the acts of indecency, he “Old Hickory." In Hussey v. State, 69 Ga. observes: “The experience of the city fathers in 54, an indictment for keeping open a tippling that domain is doubtless so limited that in drafting shop on Sunday, he thus discoursed:
an ordinance which should comprehend all the indoor on the street, through the bar and office decent convolutions of lascivious cyprians, they room into the restaurant, was kept open to the ex- would be forced to put fancy on the wing, and imtent that any visitor had only to push it and go in, agine postures they never beheld. This would be and tipple in the restaurant. The counter, where dangerous occupation.” In Tilton v. Railroad Co., on other days drinking could be done, was covered page 1072, on the subject of signing a petition to by canvas from the ceiling to the floor, so as to be continue a nuisance, he says many “sign it with invisible itself, and to conceal the bottles on the same indifference and facilty that they would shelves behind, and on it in bruzen letters was the sign a petition for the pardon of a criminal, or for announcement "bar closed,' and all the drinking the execution of a saint.” In Rihert v. Bataille, was carried on in the rear and restaurant room.
page 1173, he says: “So far as these two are conThis fact, that the ostrich thus hid his head in the cerned, we may repeat here the adjuration of the sand, and thereby imagined that his body was all | priestess to the intruder into the sucred grove, covered too, is absolutely assigned as the legal rea- quoted years ago by the great chief justice of this son why he was not visible to the keen eye of the court on a similar occasion: law, which penetrates and despises all subterfuge and deceit! But one witness, though the canvas
• Procul, 01 Procul este profani,
totoque absistite luco.'" tried to hide the bird's head, actually did see poked out through a sort of aperture or window, the bill By the way, we take it for granted that the printer or beak which let out the liquor from the bar to is responsible for "sticking in the back," in the servants in the restaurant. So that the foolish bird opinion on page 795, on a question of construction did not even keep all his head hid all the time! It of contract, as we cannot conceive that such a repmakes no difference in law whether the place be
rehensible mode of assassination has any thing to called a bar-room, or a glee club resort, or a parlor,
do with such a question. Judge Manning applies or a restaurant, if it be a place where liquor is re- to a lawyer who sued for malicious prosecution the tailed and tippled on the Sabbath day, with a door maxim, de minimis, etc., in Maille v. Lacassagne, to get into it, so kept that anybody can push it page 595, as follows: “ The plaintiff is the only open and go in and drink, the proprietor of it is witness for himself. He has been practicing law guilty of keeping open a tippling house on Sunday.” since November, 1880 or 1881. The date is very
recent, and yet his knowledge of so interesting an
event is so misty that he does not fix the year with But after all, it seems to us that Judge Manning, precision. He has not lost any business in conseof Louisiana, “takes the cake,'' in this respect, to quence of the defendant's charge against him, and borrow a phrase from the world's people. He his outlay, as stated in a bill of particulars, has makes the 35th Louisiana Annual very lively read- been $2.60 for newspapers, $9.75 for car fare and ing. The following are brilliant examples: In extra clerk hire, and $1.50 for mail matter and telespeaking of a man afflicted with a cancer in the grams, and even these items are reduced upon his throat, in Czarnowski v. Zeyer, page 797, he says:
cross-examination to 80 cents for newspapers, 10 “The stricture became so complete, and the eso- cents for car fare, 12 cents for postage, and 30 cents phagus so rigid, that nourishment by the mouth for a telegram. The whole affair is so puerile that
Enemas would not answer as a sub- it seems unaccountable that the counsel on each stitute. The man
was in danger of starvation. side should have wasted over twenty pages of Food around and before him in abundance, and no printed brief upon it." But inasmuch as the lawpower to appropriate it - - a modern Tantalus sit- yer got a verdict of $450, which was affirmed, he ting on his own hearth-stone." Tantalus sitting probably does not much care for the judicial before the fire, and beyond the reach of enemas is sarcasm.
Vol. 30 - No. 16.
had to cease.
It seems that at Swansea Assizes, recently, Mr. not the spirit that has made Great Britain great, Justice Stephen lad occasion to complain of the The determination to stand up for one's rights, annoyance caused in court by the continued ham- however small, is what has made the little island mering on board a ship in the neighboring dock | great, and that resolution should always be facilibasin. Having sent once or twice to request that tated. Lord Bramwell is the person, we believe, the noise might be discontinued, he despatched the who advanced the doctrine that one travelling by high sheriff to the scene of the annoyance, and he railway ought to take his chances of the railway presently returned with the offending workmen. company's negligence without recourse for damllis lordship, after lecturing the men, told them ages, in consideration of the great advantage of that they must desist, adding that if it caused being transported. Perhaps we are stating it too them inconvenience to stop hammering they must strongly, but it was much to that effect. If bis let him know. London Truth remarks: “It must lordship denies it we will look it up. naturally cause workingmen inconvenience, and probably loss, to knock off work for an indefinite
The fair sex have always been allowed to be priod in the middle of the day, and I fail to see sworn without taking their bonnets off, and now by what right any judge can order them to do so. the question is discussed whether it is necessary If the Swansea courts are unsuited for their pur- for them to remove the glove. Lord Bramwell, it pose, by all means let steps be taken to improve is said, never required it. He was a rather impathem, but not in this way.” The Canada Legal tient man, we believe, and probably could not enNews observes: “Mr. Justice Stephen met with a dure the waste of the public time necessitated in measure of success; a learned correspondent ro- removing a glove with, say, fourteen buttons. minds us that the late Mr. Justice C. Mondelet was not as fortunate, when he sent to the Regimental Band to stop playing upon the Champ de Mars in
NOTES OF CASES. Montreal. It refused.” We do not see why the learned justice should conceive himself entitled to
N Mallett v. Lewis, 61 Miss. 105, it was held that stop the industries of the community. Better move his court. Next we shall hear of his suppressing | from a certain person for five years, if he sells as an auction or a singing school. If it is only a man
reasonably as others, is within the statute of frauds. practicing on a cornet we do not object.
The court, Chalmers, J., said: “The first contin-
within the year, to wit: that the plaintiff might fail We are sorry to observe that Lord Justice Bram
and refuse to sell the goods on as good terms as well is in favor of cutting off the right of appeal could be obtained elsewhere, is no contingency at in small cases. He says: “líy objection is not that
all in the proper sense of the word. On the condifficult questions do not arise when the dispute is
trary, it is an attempt to avoid the force of the statfor a small amount. They do as much as when it
ute by saying that the adversary might within the is for a large one. Nor do I say that such appeals year have refused to comply with his portion of it, are vexatious, except in so far as the amount is so
and therefore his possible refusal makes the contract small as to make them so. My objection is that good. In other words, it is equivalent to saying such appeals 'do not pay,' that prudent litigants that the contract is condemned by law; but inasshould agree to do without them, and that as liti- much as it is possible that the adversary party may gants will not be wise for themselves, the State break it, or be unable to comply with its terms should be for them. Suppose one man honestly within less than twelve months, it therefore escapes believes that another owes him £20, and suppose the coudemnation of the statute. If the mere posthe other as honestly believes he does not. What sibility that one of the parties to a contract may is to be done? They will not toss up to settle, for within the year refuse or be unable to comply with each would feel that they would be giving up the its terms avoids the statute prohibiting verbal conadvantage of being in the right. They must get it tracts which do not contemplate full performance settled for them by a court of law or an arbitrator. within the year, it is apparent that the statute is at Would they not show good sense and good temper once at an end, since it is hard to imagine a case by agreeing that the first should be the final decision? where such a replication to a plea of the statute of This
must be arranged before any decision is pro- frauds could not be filed. A refusal to comply nounced. For the one against whom it is pro- with the terms of a contract by one party usually nounced, if he gave up his right to appeal, would releases the other, but the court never anticipates a do so without any return, besides which costs refusal in advance for the purpose either of uphuldwould have been incurred, increasing the tempta- ing, or of annulling the contract as made. It is tion to appeal. It may be said that litigants can also true that a contract for an indefinite time, as so agree now. That is true, but they do not. Liti
for instance, for life, or until the happening of some gants are in a state of quarrel, and do not agree. contingent, uncertain and expected event, is held Each is satisfied that what the one proposes is for not to be within the statute where the contract is the disadvantage of the other. The result is that
strictly personal, and does not descend against the the law should do them this kindness." This is
administrator of the promisor, because in such
cases the parties are supposed to have contracted in cise of their functions while engaged in the disview of the uncertainty of life, and with full charge of their duties, is too well settled by adjuknowledge that death might ensue within the year, dicatio.s, and too well founded in considerations and thus end the contract. In such cases, as the of public policy to admit of controversy. It is so contract was purely personal, and must end with expressly declared in 1 Dill. Mun. Corp., $ 98, and life, it is held to be fully performed by death, and the references fully support the general proposition the court cannot say, from the terms of the agree- asserted in the text. The consequence might be ment, that such was not the contemplation of the most serious if such officers were to be left to strugparties; but where the agreement, as in this case, gle alone and unaided against every action that perstipulates in terms for a longer period than twelve sons arrested may choose to bring upon an allegamonths, the court is bound to see that the deliber- tion of abused authority, though honestly exercised, ate attempt of the parties was to bind each other in the maintenance of the public peace and the verbally in the teeth of the statute for a longer pe- preservation of good order, and the results of riod than one year. Where the time is indefinite, which, though successfully defended, might prore and supervening death may work completion within disastrous to the officer. Within the range of this the year, the court will not infer an intention to conceded power must be embraced the employment violate the statute, but where two, five or ten years of counsel, and the payment of a reasonable comis expressly stipulated for, there is no room for in- pensation for their services, and the more necessary ference, and the statute comes like a tyrant, and is it to a municipal body, such as this is, who have makes all unenforceable.” Disapproving, Doyle v. no regular and salaried legal adviser to resort to in Dicon, 97 Mass. 208.
case the occasion shall require. Such a right, lim
ited by a just responsibility for its exercise, must In Acker v. County of Anderson, 20 S. C. 495, it abide in the corporation as essential to its self-prowas held that a county is not responsible for injur- tection, and the attainment of the ends for which ies to a mule and buggy caused by the mule tak- it is formed. Adjudicated cases are not wanting ing fright at a placard placed on a public bridge in the reports which sustain this view, to some of without the knowledge of the county commission- which we will refer." Citing Bancroft v. Lynners, and removed by them as soon as it was brought field, 18 Pick. 566; Bobbitt v. Savoy, 3 Cush. 530; to their attention. The court said: "This action Hadsell v. Hancock, 3 Gray, 526; Sherman v. was brought under this authority, and the only Carr, 8 R. I. 431. In the last
the question was whether the plaintiff's injury was re- court said: "Is it then
of the usual ceived through a defect in the repair' of Rocky and ordinary expenses of a city to protect its river bridge. It appeared that the county commis- officers, who, while exercising in good faith the sioners had nothing to do with putting the placard functions of their office, have been found by the on the bridge, which was placed there as a public verdict of a jury to have exceeded the lawful powplace by some enterprising business man, intent on ers of that office and to have trespassed upon the advertising the merits of the ‘force-pump,' and that rights of a citizen? If the power to indemnify an as soon as it was brought to their attention they officer under these circumstances does not rest in had it taken down. If therefore any responsibility that body who appropriate the money for all the as to consequences arose out of the placard being legitimate duties of a municipality within its own on the bridge, it would seem not to attach to the province, the various executive officers of a city percounty. Even if the commissioners had allowed form their duties at the peril of an individual reit to be placed there, it is more than doubtful sponsibility for all their mistakes of law and of fact, whether the county could have been made liable. however honest and intelligent they may be, and The only matter for which the act gives an action also at the peril of the possible mistakes of a jury against the county is a defect in the repair of a naturally jealous of the rights of the citizen when highway, causeway or bridge. If there was no de- brought in conflict with the exercise of official fect in this bridge there was no right of action power. If the officer is thus responsible, he will against the county, and whether there was such a naturally be too cautious, if not timid, in the exerdefect was a question of fact, which was submitted cise of his powers which must be frequently exerto the jury, upon what we must assume to have cised for the protection of socity, before and not been a fair charge, as no complaint is made here on after a thorough investigation of the case in which that point.” We should suppose that a court might he is called upon to act.
We know of no hold, as matter of law, that a placard on a bridge case in which, while the officer continues to act in " defect in a bridge."
behalf of the community, and not in his own be
half, it is held that the community cannot indemnify In Roper v. Town of Laurinburg, 90 N. C. 427, it him." was held that a town may appropriate a reasonable amount of its funds to employ counsel to defend its | AN ARTICLED CLERK'S DAY IN LONDON. police officers in actions for false imprisonment. The court said: “The right of a municipal corpo-TURNING out of Fleet street, just on the city ration to provide an indemnity for its officers who side of Temple Bar (for be it premised we are may incur a liability to others in the bona fide exer- speaking of days when the old Bar still retained its
is not a
local habitation), we find ourselves in a long, nar- glance on Chitty's pile of briefs. That learned
network that sooner or later the smallest and most Do not suppose from the sudden rush to yonder obscure succession gets captured therein. And not corner, and the general scrimmage ensuing, that a only must the accounts of all, from the Duke of football has been surreptitiously introduced into Westminster down to Jones, the little country shopthese strictly business precincts. Oh, no! The keeper in Northumberland, pass and pay toll, but judge of the day has just come, and the fight is to these accounts must all be conformed to certain get before him. A powerful porter guards the procrustean forms, and vouched throughout. It is door leading to the luminary's presence, and cau- a matter of perfect indifference to yonder bland tiously opens that portal from time to time to let and smiling clerk whether item 6 of schedule X is in those who have fought their way to the front. a matter of £5 or £5,000. All he knows is that it Our athletic training stands us in good stead here, is not “ip form." His politeness is only exceeded and after a short, but lively struggle, we rush tri. by his firmness, and he is bound to win in the long umphant over a fat solicitor, and heedless of his
run, so we can only make a careful note of his reobjurgations soon find ourselves inside. The judge, quirements, and send them down to our country whom , not being in the glory of his judicial attire, client for him to comply with as best he can. we regard as a dull and rather testy old gentleman, We have one more call to make before we leave 800n knocks off our little matters, and whilst we the building, and we make our way across to the are still busy explaining, scribbles a few words on
probate office in the southeastern corner. Here we our summonses, hands them back to us, and we
have to search a will, nor are we the only persons emerge as unceremoniously as we entered. The on a like errand bent. Observe these two women formal orders are soon made out, and stamped with poring with blank countenance over the closely the undecipherable blot which is supposed to rep- written pages of yonder ponderous folio. They resent the judge's signature, and now we are free
will probably pass the whole day here, and make of chambers for the day. Heated and excited we life miserable for the unhappy attendants, who turn into the Rolls to look at the cause list, and conscious of impending fate, are all furtively take a hurried glance at Jessel disposing of motions watching the pair, and casting about for some at express pace, not without casting an envious
mcans of escape. Vain hope! The stern glances