« السابقةمتابعة »
the plaintiff, by accepting the amount allowed him by
CORRESPONDENCE. the board of supervisors, with knowledge that the balance bad been rejected, cannot maintain the action
MR. MILLER ON MR. FOWLER'S PAMPHLET. we cannot consider the effect of an approval of the claim by the board of health. Brick v. County of
Editor of the Albany Law Journal : Plymonth. Opinion by Rothrock, C. J.
Will you allow me through the JOURNAL to say a [Decided April 25, 1884.]
few words on the one sentence of Mr. Fowler's learned
of New York," which appears to me to bear upon the ALABAMA SUPREME COURT ABSTRACT.
practical question of the adoption of Mr. Field's Civil COSTS-DISMISSAL OF SUIT DISCRETION. When
Code? ever an actor or plaintiff declines to proceed further
On page 66, Mr. Fowler declares that “a poor Code and dismisses his own suit, he thereby takes on him
is better than no Code." His idea of a Code may be self the costs he has caused to be incurred. 2
gathered from what he says on page 16. “A true Dan. Ch. Pra., star page, 1376 et seq.; Beames
statement of codification is concerned only with those ou Costs (22 law lib.), star page 228; Cooth v.
larger principles indicated; those which have the force Jackson, 6 Ves. 12, 41; Brooks v. Byam, 2 Sto. Rep.
of law universally, or independently of the peculiar 553; Eastburn v. Kirk, 2 Johns. Ch. 317; Saunders v.
group of facts to which they have been applied.” Frost, 5 Pick. 259; Due v. Pidcock, 7 Halst. 363; Bruce
Is it not conceivable that these “larger principles" v. Gale, 2 Beasly (N. J. Ch.), 211; Moses v. Dade, 58
should be stated in a statute so imperfectly, that our Ala. 211; Wykam v. Wykam, 18 Ves. 395, 423. The
legal system would be thereby injured, instead of present case is presented in a different aspect. After
benefited? We all know what work our Legislature the original bill and the original answers were filed,
makes with very simple principles; by calling a statthe defendants purchased their peace, or purchased
ute a “Code"we cannot secure it any especial immuthe complainant's cause of action. One term of the
nity, although Mr. Fowler appears to think so. He contract was that complainant was to dismiss his suit.
says on page 52: “But this may safely be claimed This he failed to do, and defendants were forced to
for codification. It will tend to certainty in legal adset up the release in bar of the further prosecution of
ministration; it will enable us to remove the enormi. the suit. They did this in an amended answer. They ties of the case law; it will render the frame-work of probably should have raised it by cross bill; but no the law accessible to the unlearned, and mainly it will objection was made to the form of its presentation.
afford more exact bases for forensio discussion. It Moses v. Dade, 58 Ala. 211; Jones v. Clark (in MS.), Ala. Being raised by the pleadings and the caso
will also introduce simpler methods of logic. * * * going off on that defense, the exercise of the judicial
Another merit may be and is claimed for codification, functiou was necessarily called into requisition. This
that it will ultimately necessitate a higher type of leg. case is therefore brought directly within the rule islative activity.” Will any statute, no matter how which allows to the chancellor a discretion in the im- “poor,” if called a “ Code," necessarily produce any position of costs; a discretion which we cannot revise.
or all of these results ? Allen v. Lewis. Opinion by Stone, J. [Decided Jan., 1884.]
If not, can any one favor Mr. Field's Code, without having convinced himself by an examination that it is
not a “poor” Code? That examination is all that the CRIMINAL LAW.
opponents of the Code ask for. But it should be FLIGHT
made, not as though a digest were being examined, by PRESUMPTION OF GUILT ARISING FROM. Flight from a charge of crime raises a presumption of
taking one or two sections and ascertaining their guilt; but this presumption may be modified or over
agreement with the authorities, but by an examina
tion of the whole work and by a comparison of the thrown by evidence showing that the flight was occasioned by other causes than consciousness of guilt, and
different parts, so as to ascertain how it will stand the when there is such evidence the jury should be directed
strain which will be put upon it, after it becomes a to consider it and determine how far it tends to re
statute, when immense interests may depend upon the but the presumption. State v. Phillips, 24 Mo. 475;
interpretation of any sentence and when every other
section will be ransacked to find aid for the various State v. Williams, 54 id. 170; State v. Mallon, 75 id. 355. Sup. Ct., Mo. State v. King. Opinion by Hough,
interpretations. Every lawyer of whom I happen to C. J. (78 Mo. 555.) [See ñ Am. Rep. 592; 35 id.
know that he has personally examined this Code 69; 119 Mass. 312; 56 Ga. 113. Must be actual, not con
thoroughly, agrees with the opinion expressed in my structive. 8 Phila. 606.--En.)
pamphlet of 1882, that is “poor” beyond amendment; INTENT-KNOWLEDGE-CHARGE ERRONEOUS.-On au
and the object of this letter is to emphasize the fact indictment for selling cattle, knowing them to be un- that whatever opinion lawyers may hold on the subder quarantine, evidence was given on the trial of ject of codification in general, no one should advocate facts tending to create a belief in the mind of defend
this Code without having examined it thoroughly, and ant that the quarantine had been removed when the
examined it as a statute. sale was made. It was held error in the court to refuse
Respectfully yours, on request to charge for an acquittal if the jury found that the defendaut did so believe in those facts. As a
J. BLEECKER MILLER,
dure, by T. W. Tempany; Injunotion against Crimidisproved and a defense is made. Sup. Ct., N J. Hess v. Stute. Opinion by Knapp, J.
(16 Vroom, 445.)
val Acts, by Seymour D. Thompson; Liability of Em[Where intent is an essential element to constitute á ployer, for wrongful acts of persons serving him in the crime the defendant may testify as to it. 60 N. Y. 221; course of an independent employment, by H. A. Har18 Am. Rep. 158.-- ED.)
Casact. The statutory offense is selling in violation Thing he fano ving leading articles: A short his
The Albany Law Journal.
of cating up the oysters whom they had invited to walk, in the immortal verses in "Alice in Wonderland". a delicious bit of nonsense which every well-educated lawyer should read at once if he has not already done so.
ALBANY, SEPTEMBER 6, 1884,
We feel relieved. We have found out the cause
of that earthquake the other day. It was the E have received from Mr. Simon Sterne, and "sensation created by her blessed majesty, the
have perused with pleasure and instruction, queen's proclamation, " that in all times hereafter the paper which he read at the late meeting of the the judges of county courts in England and Wales American Bar Association, on Prevention of Defec- shall be called, known and addressed by the style tive and Slipshod Legislation. It is an exceedingly and title of “His Honour” prefixed to the word able and suggestive production, and was eminently “Judge” before their respective names, and shall worthy of the discussion which it elicited, and of have “Rank and Precedence next after Knights the reference made of it to the committee on juris- Bachelors.” We hope Henry, Duke of Norfolk, prudence and law reform. We shall give the paper will see to this at once, as the queen commands in full week after next, and we hope our State Bar him. Association will pay heed to its lessons. The reader will find in it an excellent account of the English Such privileges as the above ought to compenmethods of legislation, which will probably be sate for some pecuniary disadvantages of the legal novel to most of them, and some pregnant compari- profession in England, as for example, the inability sons between those methods and our own. 'This is of a barrister to compel payment of his fees. a most vital topic, and Mr. Sterne has struck it vig- recent case the Master of the Rolls said that any orously. Perhaps we should not quite agree with agreement as to fees between solicitor and barrister him about bi-ennial sessions; that is to say, while was wholly unprofessional, and equally dishonorwe might agree that the reason generally given for ) able to both parties.” The barrister's only safety is them is unsound, yet really there may not be in in exacting his fees beforehand, and this seems to most States any need of more frequent sessions. us an unreasonable requirement. It seems to us a We might, perhaps, also consider some of Mr. great deal better to let every barrister be his own Sterne’s analogies a little out of parallel. We are attorney and solicitor, if he wishes, as is the cusmuch impressed by his idea that there is less legis- | tom among us. This seems to us as little demorallative corruption than there seems, and that most izing as all this business of retainers, reminders, reof the attempted corruption reaches not beyond freshers, etc. the lobby. Unquestionably, many a good legislator's vote is supposed by promoters or opponents of In a notice of Dr. Wharton's “ Commentaries on bills to be bought and sold, without his ever hear- American Law," the London Law Times remarks: ing of such a transaction, or even being ap- “It is a curious point that while the judgment of proached. We would fain believe in Mr. Sterne's the Supreme Court of the United States as to the theory on this point. We commend his sugges- constitutionality of any given proceeding is decitions to our senators, some of whom we know to sive as to the case in litigation, neither the execube genuinely interested in the idea of improving tive nor the legislature are concluded thereby from and regenerating our legislative methods and prac- acting directly in the teeth of the court's decision. tices.
And we may here note that a description of the
executive as he reads extremely oddly. The At the same meeting Mr. David Dudley Field striking point about the whole is the excessive deintroduced the following resolution, which was liberation with which over-hasty legislation is unanimously adopted: “That a special committee guarded against, and the very careful provision of five be appointed by the president, to consider
made by the various amendments to the Constituand report at the next annual meeting, whether the
tion of the United States for the overruling of any present delay and uncertainty in judicial adminis: legislation, either by Congress or by the several tration can be lessened, and if so, by what means.”
States, oppressive in its character to individuals or Thus early has Judge Dillon's address begun to classes. And this brings us to a notable decision show the promise of fruitage.
under the fourteenth amendment, in Kinney's case,
30 Gratt. 858, in which it was held that a State law We are told that the banquet ” (how we detest forbidding marriage between whites and persons of that word!) was a very amusing occasion. Among African descent does not discriminate against the the toasts was one to the “evils of codification,” latter, because the prohibition applies to both cases to which, paturally, Mr. Field was called to re- alike. Similarly it has been held in Pace v, llaspond. We can imagine that the speaker was very bima, 106 U. S. 583, that affixing a greater punishpathetic on this theme. The tears he shed were ment to adultery between a negro and a white than doubtless as abundant as those of the Walrus and is imposed on adulterers of the same race does not the Carpenter," when they regretted the necessity I discriminate against persons but against the offense.
VOL, 30 - No. 10.
Logically, it may be allowed, these rulings are de- of upsetting the testament, and invoked to his aid fensible, but it is not a little amazing that Dr. the old familiar friend of lawyers — mental incaWharton records these decisions without a word of pacity.” He filed a bill in Chancery, and by condisapproval, and even seems disposed to defend sent an issue derisarit vel non was sent down for them.” It is curious how incapable the English | trial, and came on for hearing before Cresswell, J., seem to be of comprehending our Federal system and a special jury at Stafford Assizes on Saturday, and laws.
March 15, 1856. For the widow, plaintiff on the
issue, Sir F. Thesiger, afterward Lord Chancellor
statements as to the old man's incapacity to recog.
them that the person dead was Mrs. Swinfen. A LEGAL ROMANCE, OR THE SWINFEN Other damaging points also were made against the CASES.
will, and Thesiger was so impressed that he sent
for the widow to his lodgings, and strongly urged OME thirty years ago there dwelt in Stafford- her to leave the matter in his hands to settle as best
Swinfen, the possessor of an estate valued at be- mated to Thesiger his opinion that the case was
en-. But if the heir had a verdict, the widow had postal paralysis. In fact, friends of the family, writ session, and to possession she clung. From the ing in the widow's behalf in answer to letters of beginning she had asserted that she would stand condolence, stated that “old Mr. Swinfen was hap- or fall by the will, and at this crisis she rose to the pily spared the shock, being incapable of understand occasion like Maria Theresa, and abandoned by all ing the loss he had sustained.” Under these cir- she quietly returned to the Hall, and awaited cumstances the widow, who, let us state at once, is events. Speedily possession was demanded and the heroine of our tale, actually took some steps to refused. The heir's next step was to take a rule nisi test his sanity, but the doctors differing, nothing for attachment against her. This was quashed on was done.
the ground of insufficient proof of disobedience The old gentleman, in fact, was not insane. He (Swingen v. Swinfen, L. J. R. 25, C. P. 303), but the knew that in default of a will the estate would court consisting of Cresswell, Williams and Willes pags to the heir-at-law and representative of his all seemed to agree that the compromise was predecessor, Captain Swinfen, of the Sixth binding. Dragoon Guards, and after due consideration he Another rule accordingly was taken out (Swinfen gave instructions for, and executed a will, whereby V. Swinfen, L. J. R., 26 C. P. 97), in answer to he devised the whole property to the widow. The which Mrs. Swinfen made an affidavit setting out will was made on July 7, 1854, and on the 26th of all the facts. Fortunately for her Crowder, J., the same month the testator died.
happened to be sitting this time, and he held disThereupon, Captain Swiufen cast about for means tinctly that the mere relationship of counsel and
client did not give a general power to compromise, testator, and a recent judge (not named) who, and that there was no special authority shown, but thougli struck with hydrocephale, yet performed on the contrary an emphatic repudiation. The his duties “ with transcendent ability” to the very other judges held to their previous views, but the last. The whole report, in fact, is well worth practice of the court being to confirm rules for at reading by the student of medical jurisprudence. tachment only when the judges were unanimous, The writer ventures to think, from his limited the rule fell through, and the widow escaped as by observation of human nature, that the desire for fire.
vengeance is usually stronger with the fair sex than The heir, who evidently had more confidence in with their soi-disant lords and masters. Mrs. Swinthe verdict already obtained than in the result of a fen was no exception to this rule. Flushed with fresh trial, went to chancery with a supplemental | victory she now entered the lists against her late bill for a decree for a specific performance of the counsel, the august chancellor himself, and sued compromise (Swinfen v. Swinfen, 27 L. J. R. Eq. 35), Lord Chelmsford for damages for a “fraudulent? and now a fresh actor appeared upon the scene, in compromise against instructions. Swinfen v. Chelmsthe person of Kennedy, a provincial barrister prac- ford, L. J. N. S. Exch. 383. This however was a ticing at Birmingham, who had taken up the for- little too much, and the court unanimously dismissed lorn widow's cause, and who proved a champion her suit, and settled by its decision the powers and very different from Thesiger. The Master of the responsibilities of counsel. And here, if this were Rolls, Romilly, in an able and exhaustive judgment, a novel, and not a statement of facts, would come rejected the compromise, taking the same view as the obvious and happy conclusion, viz.: the marriCrowder, that counseł had no power to give estates age of the plucky widow to her devoted advocate, away at his own discretion. He instanced with and the usual notice in the Times, "St. George's, approval a case within his own knowledge where a Hanover Square - Swinfen to Kennedy. No cards.' great advocate had in open court refused to consent But unfortunately the affairs of mankind seldom to a compromise actually agreed to by his client, on end correctly. Mrs. Swinfen did not become Mrs. the ground that the client did not understand the Kennedy, but she did become Mrs. Brown, and sacrifice he was making, and refusing the specific thereupon followed another great suit, viz.: the performance prayed, he ordered a new trial. leading case of Kennedy v. Brown and Wife, 32 L. J.
This judgment was the first crumb of comfort | R., C. P. 137. Kennedy alleged that having given that had fallen to the widow's lot, but was, of up his other practice, and devoted himself wholly course, far from pleasing to the heir, who appealed to the advocacy of the widow's rights, both at the
- only to get an excoriation from the lord justices bar and by writings and pamphlets, "designed to (Swinfen v. Swinfen, 27 L. J. R. Eq. 69), Knight render her cause popular,” she had agreed in return Bruce observing that the heir's attempt was only a
to pay him a fee of £20,000 in the event of sucpis aller, and varying the Master of the Rolls' de- cess, and for this sum he sued. Upon the argucision in the widow's favor, so far as to give her ment English common lawyers became civilians for costs of the suit.
the nonce, and went deep into the mysteries of the The new trial accordingly came on at Stafford in “ler cincia," and the old usages of the Roman March, 1858. The evidence of the letters re- patrons and advocates. C. J. Erle presided, and mained, but a mass of other evidence was put in, delivered perhaps his finest judgment, settling all tending to show that the testator's mental facul- what in fact had hardly before been seriously ties, if impaired at all, were not so damaged as to doubted, that an English barrister's fee is an honordeprive him of testamentary competency. The arium, and cannot be made the subject of a legal judge summed up against the widow, but the jury claim. He was terribly hard on poor Kennedy, but were not influenced by his lordship, and returned as a specimen of judicial eloquence his deliverance a verdict establishing the will, a result due princi- can hardly be surpassed, and we cannot resist the pally to the able advocacy and thorough mastery temptation of quoting therefrom the following deof the case displayed by Kennedy.
scription of a model advocate:
" We are aware The heir was not yet shaken off however. He
that in the class of advocates, as in every other went to the Master of the Rolls for a new trial numerous class, there will be bad men taking the (Swinfen v. Swinfen, 28 L. J. R. Eq. 819), but far wages of evil and therewith also for the most from getting it the Master stated that had the ver- part, the early blight that awaits upon the servants dict been otherwise he would have sent the case
of evil. We are aware also that there will be down again. In the course of argument Kennedy many men of ordinary powers performing ordinary went far and wide for instances of physical imbe
duties without praise or blame, but the advocate cility combined with mental competency. Many entitled to permanent success must unite high poweminent characters in history were referred to,
ers of intellect with high principles of duty. His amongst others the great Marlborough, who stricken
faculties and acquirements are tested by a ceaseless with paralysis, his mouth awry, unable to articulate, competition, proportioned to the prize to be gained, was yet competent to make a most important that is, wealth and power and honor without, and accodicil just before his death. Lord Eldon, the tive exercise for the best gifts of mind within. He famous chancellor, Sir Herbert James Fust, who
is trusted with interests and privileges and powers suffered from the very disease which affected the
almost to an unlimited degrec. His client must
trust to him at times for fortune and character and civilization. The citizen upon the Pacific coast cannot life. The law trusts him with a puvilege, in re
help but differ somewbat from his brother in the far spect of liberty of speech, which is, in practice, east. The sons of New England are not the same in
habits of thought, ir universally held opinious and gen. bounded only by his own sense of duty, and he eral character with those who belong to the middle may have to speak on subjects concerning the States, and they are even farther removed from the deepest interests of social life, and the innermost dwellers in the far south. The southern Atlantic States feelings of the human soul.
If an advo contain a population in many respects different from cate with these qualities stands by the client in the that of Texas, Arkansas, and even Mississippi, Teunestime of his utmost need, regardless alike of popu- called when Ohio was still a western State, is very dif
see and Kentucky. The western man, who was go lar clamor and powerful interest, speaking with a ferent in his individualities from all that I have menboldness which a sense of duty can alone recom- tioned. And as you approach the Rocky mountains mend, we say the service of such an advocate is and the Pacific the character of the general westeru beyond all price to the client, and such men are the
man changes, the boundaries of each State seeming to guarantees to communities of their dearest rights, and thought, and of mental and moral being among our
have something to do with creating diversity of the words of such men carry a wholesome spirit to all citizens. There seems to be something in mere boundwho are influenced by them. Such is the system of ary everywhere, which makes men on either side differ advocacy intended by the law; requiring the re- from each other; this is especially perceptible in the muneration to be by gratuity.” And he then pro- How different the Scotchman, Irishman, Welshman,
Old World, and very remarkable in Great Britain. ceeds with little difficulty to show, from a long and Englishman! And yet they live largely under the course of precedent, that such an action as the
very same laws, and have but one Parliament. Much present could not lie.
more remarkable is the difference apparently created After this nothing was left for Kennedy but ruin, merely by shire or county lines in England itself, 80 to which he added disgrace, by certain unsavory
that there are found there over twenty dialects--diastatements made in the bitterness of despair. He lects such that it is difficult for the residents of one was disbarred, and died broken-hearted, perhaps ing to speak the English tongue.
county to be understood in another, though all professthe only instance of a lawyer who saved his client We in America have no differences 80 strongly and ruined himself.
marked as those we find still existing in the two small As for Mrs. Swinfen, she may, for all the writer islands forming Great Britain. But there are differknows, still be living full of years and honors at
euces nevertheless between the inhabitants of different Swinfen Hall, but if so, she is the sole survivor of I shall not mention the States alphabetically, nor ac
sections. Hence in performing the task allotted to me the dramatis personce in the "Swinfen cases.' cording to seniority of settlement, but shall note their Thesiger, Cockburn, Romilly, Knight Bruce, Erle, statutory changes according to the grand geographical and all the other erst famous advocates and judges divisions existing by common consent. We have eastwho figured in this long litigation, have now
ern, middle, southern and western States. I shall re
mark upon them in this order. passed to a world where, it is to be presumed,
An advancing public sentiment tiring of the too briefs and special retainers are unknown, and new often recurrence of legislative machinery has very much trials are not allowed.
lightened the labors of your present president, while
theless made his task quite sufficiently hard. There
are now no less than twenty States whose Legislatures
Vermont, New Hampshire among the eastern States;
in Delaware among the middle; in Illinois, Michigan,
Wisconsin, Missouri, Nebrasba, Colorado, Minnesota,
to be expected from the complete success of this Louisiana and Arkansas among the southern and Association, even if it was not avowed by its original south-western. From none of these have I any report framers. The bar have, all know, the most to do with at this time to make. The Louisiana Legislature is suggesting, and ordinarily a very large share, directly now, or lately was, in session; too lately however to or indirectly, in the framing of statute law. Familiar afford any report. Iu Maine an adjourned session has communion amoug them tends to barmonize opinions been busy passing into laws a revision of their general and action, and do away with those variances, if not law made by a designated commissioner. conflict, in the institutions, legal customs, laws and Biennial sessions of Legislatures seem exceedingly polity of the different States, which so powerfully in- popular among the members of this association, and it terfere with the oneness of the whole people. And as is supposed the bar generally. The member of the I suppose, with direct intent to aid in the most desira- | General Council for one State writes that its Legislable result, more than simply to give information which ture “convenes only iu biennial session, and that since may profit us as practitioners, was the provision of our
the last meeting of the association the State bas been Constitution which I am now called upon to obey, that mercifully spared from any change in the existing law, your president at each yearly meeting shall communi- as well as from the enactment of any new statutes." cate "the noteworthy changes in statute law, in the Others express the same feeling, though with less pious various States and by Congress which have occurred unction. Nor can one help sympathizing with it, and since the last meeting.”
hoping that one day all of the thirty-eight commonClimate, early settlement, and various other circum- wealths now existing in our wide domain may rest at stances affecting locality have grouped the States of least one winter or two from “noteworthy statutory this Union in such a way as to create shades of differ- changes." ence not in the degree, but in the character, of their The idea of yearly legislative sessions came to us