« EelmineJätka »
Gr. 370; Boove v. Ridgeway Ex’rs, 2 Stew. Eq. 513; 1 | 58 Me. 508; but that decree in no way qualified or atGreenl. Ev., § 421 ; 3 id., š 369. (2) Though the party fected the legal consequences of the prior decree. The against whom an incompetent witness has given evi bar is just as effectual when a day only intervenes bedence may have lost his right to object to his evidence, tween the decrees as if it was a year. Doulton v. yet the court may, on its owu motion, if it appears Moulton. Opinion by Walton, J. that the evidence is opposed to the policy of the law, MALICIOUS PROSECUTION EXCESSIVE DAMAGESand dangerous to the administration of justice, sup
PROBABLE CAUSE-ADVICE OF COUNSEL.-In an action press it in suits where either party to the transaction for malicious prosecution, for causing plaintiffos arrest put in context by the suit was dead, the survivor
upon a warrant charging him with forgery by making should not be a competent witness unless his adver
unauthorized entries in certain books of accounts, and sary chose to make him so by becoming a witness
upon his discharge, by causing his arrest upon another himself. The design was a highly salutary one. It is
warrant charging him with embezzlement amounting eminently just that when death has sealed the lips of
to larceny, held, that a verdict in favor of the plaintone party the law should seal the lips of the other.
iff in the sum of $1,100 was not excessive. Humphries The great object of the restriction, as stated by the
v. Parker, 52 Me. 502. In an action for malicious chancellor in Colfax v. Colfax, 5 Stew. Eq. 206, was to
prosecution, where the defendant claims that he acted guard against the injustice which would arise from a
under the advice of counsel, it is for the jury to say want of mutuality in the exercise of the right to tes
whether the fact that the attorney and counsellor tify. There can be no doubt that if the parties are
whose advice was sought was the attorney in a civil allowed to testify in their own cases, the safe admin
suit to recover of this plaintiff the sum alleged in the istration of justice requires that they should be put criminal proceeding to bave been embezzled, made the upon an equal footing, and that if one is allowed to
attorney an improper person to consult-whether he go upon the stand to testify, the other should have the
was carrying on the suit under such circumstances and right to go there also, either to contirm or to contradict
with such motives as prejudiced him and rendered his adversary's evidence, and that when the lips of
him unfit to give fair and impartial advice in the one are closed, the other should not be tempted to
premises. The true doctrine is, that previous consulcommit perjury by being permitted to testify to mat
tation with and favorable advice of counsel learned in ters which his adversary can neither contradict nor
the law, are facts which bare a bearing, both upon the explain. If the evidence of one party was admissible existence of probable cause and the presence or absence when the other could not testify, the interests of man of malice in the prosecution complained of (which last kind, an eminent English judge has recently said, is always a question for the jury); but the conditions would in his opinion imperatively require that unless under which such consultation and advice will amount corroborated it should be wholly disregarded. lle
to a valid defense are such as alnıost ineritably to refurther said: “Nobody would be safe in respect of
quire the submission of the evidence to the jury,under his pecuniary transactions if legal documents
proper instructions. to find whether those conditions found in his possession at the time of his death, and exist in the case on trial. If they do, the jury are to endeavored to be enforced by his executors, could be give them effect by applying the instructions to the set aside, varied or altered by the parol evidence of
facts as they find them. It is not every member of the the person who had bound himself." Hill v. Wilson,
bar whose character and standing are sufficiently L. R., 8 (h. App. 888, 900. Jonfort's Idm’r v. Row known to the court to enable the presiding judge to lund. Opinion by Van Fleet, V. ('.
say that he answers the description of “counsel
learned in the law.” See Stevens v. Fassett, 27 Me. JLIVE ST PREJE (OIRT ABSTRA('T.* 266. Of those whom he might so regard, the situation
may be such in relation to the particular case, as to ('ONTRIBUTION
prevent their opinion from amounting to a justificaMON.-Two persons purchased timber-lands and gave
tion, or at least to make it doubtful whether it was their joint votes, secured by mortgage, for a portion the unbiased, deliberate opinion of counsel learned in of the purchase-money, then as co-partners they cut
the law and properly informed respecting the case. therefrom and manufactured a portion of the timber.
Carr, 71 Mo. 555. In Hewlett v. Cruchley, 5 About two years after the business of the firm ceased, Taunt. 277, it was well said, that "it would be a most one of the partners paid a judgment rendered on one
pernicious practice if we were to introduce the priuof the mortgage notes, and both joined in a deed ofciple that a man by obtaining an opinion of a counsel, quit-claim of the lands to tho mortgagee as it com
by applying to a weak nan, or an ignorant man, may promise settlement of the mortgage debt. Helil, that
shelter his malice in bringing an unfounded prosecu. the one who paid the money could maintain an action
tion." But in addition to this, it is an essential conat law against the other for one-half the amount so
dition that there should be plenary proof that the paid. Soule v. Frost. Opinion by Symonds, J.
client communicated to the counsellor all kuowledge MARRIAGE-DIVORCE-DOWER.—('ross libels for di- and information which he had, respectivg the matevorce pending between a husband and wife were rial facts-and not that alone-but also all such knowlheard together; the court first decreed a divorce on odge and information as in the exercise of reasonable the husband's libel for the fault of the wife, and the care and prudenco (with due regard to the rights of next day decreed a divorce on the wife's libel for the the party against whom he proposes to proceed) he fault of the husband, and decreed to her a certain sum might havo obtained. Stevens V. Fassett, supra; in lieu of alimony. Eight months afterward the hus White v. Carr, supru. Iatt v. Corey. Opinion by band died and the wife then brought an action against Barrow8, J. his heirs to recover her dower. Held, that she was not endowable. When the final decree of divorce was
PENNSYLI’ANIA SUPREME COURT entered on the husband's libel for the fault of the
ABSTRACT. wife she was at onco barred of her dower in his lands. Stilphen v. IIoudlette, 60 Me. H7. True, the court had
CON jurisdiction after the decree in favor of the husband
TRIBUTORY NEGLIGENCE.- A municipal corporation on his libel to enter the decree in favor of the wife on
is not liable for injuries to a pedestrian caused by a hor libel and grant her alimony; Stilphen v. Stilphen,
fall upon snow and ico upon the foot pavement of a *To appear in 76 Maine Reports.
public stroet, which had been permitted to accumulate
TENANTS IN ('OM
for a period of seven days, where the slippery and dan it, he is not bound to give to another that which gerous condition of the pavement could have been rightly belongs to himself.” Of course if a sheriff's seen and avoided by the person injured. Denhardt v. sale of the landlord's title, under a judginent which City of Philadelphia. Opinion per Curiam.
incumbered it, would vest it in the tenant when he [Decided Feb. 4, 1881.]
was the purchaser, it would rest it for the same reason MUNICIPAL CORPORATION-ICY
in a stranger should be become the purchaser. In SIDEWALK-CON
IIeritage v. Wilfong, Sharswood, J., said: “This unTRIBUTORY NEGLIGENCE.—The owner of an ice-house,
doubtedly makes it the duty of the justice to hear any fronting upon a public street in the city of Lock
lawful defense which the tenant may offer. It would Haven, constructed, without the consent of the muni
be such a defense if he could show that the title of his cipal authorities, a slide of heavy timbers in front of
landlord had come to an end since the commencement bis premises, extending entirely across the street.
of the lease. It would therefore be competent for him Many lumps of ice had fallen from the slide upon and
to plead and prove that under a judgment against the near the pavement in front of the ice-house, so that
lessor his estate had been sold by the sheriff, and that the only safe way for foot passengers was to turn out into the street, and cross the slide at a point where ap
he had attorned to the purchaser." It is true that in
the foregoing case the judgment was against the tenproaches to it had been constructed. A. lived next
ant's immediate landlord. But we can see no differdoor to the ice-house, and during a period of about
ence in substance between the determination of the two weeks, while the obstruction continued, became well acquainted with its dangerous nature; she testi
landlord's title by a sale under a judgment against
him personally, and such determination in a caso fied that she always crossed it with great care, and fre
where the sale was made wider a judgment which was quently after crossing it continued on some distance up the middle of the street instead of turning on to
a lion upon the landlord's title at the time of its inthe sidewalk. She might have avoided passing the ception. The legal result is the same in both cases,
the title, the very title of the immediate landlord is slide altogether by using an alley near her house,
divested in each instance, and it is this divestituro which would however have made hergo a short distance further than if she crossed the slide. A snow having
which a tenant may set up against his landlord. The fallen which partly covered the ground, and ice blocks judge in Koontz v. IIammond where he said, speak
same doctrine was repeated by the same eminent fallen from the slide, A. started out from her house in the day-time, crossed the slide in the iniddle of the
ing of the rights of defense by the tenant: “He might
have shown that tho title of the plaintif had come to street, and then finding the street slushy, turned to
an end by expiration, by her own act, or been divested go upon the sidewalk near the slide. In so doing sho
by act of law." For these reasons we think that the slipped and fell upon the blocks of ice lying there. In an action by her against the city to recover damagesceived, in so far as they related to the divestiture of
defendant's offers of testimony should have been refor the injuries sustained: Held, that she had been guilty of such contributory negligence as warranted
the plaintiff's titlo by judicial sale, and because of
their rejection the case must be reversed. Smith v. the court in giving to the jury binding instructions to
Crossland. Opinion by Green, J. find for defendant. Fleming v. City of Lock Iluven. Opinion by Trunkey, J.
[Decided May 26, 1881.] [Decided Oct. 6, 188-1.] LANDLORD AND TENANT--DISPUTING LANDLori's
(I'R LOV10.1 LETTER. TITLE-MAY SHOW IT HAS TERMINATED.-A'tenant in a proceeding by his landlord to recover possession may
N show in defense that the title of the plaintiff' has come of the most distinguished of her lawyers. His to an end by expiration, by his own act, or been di career was extraordinarily felicitous. 1 Roman Cathvested by act of the law. Newell v. Gibbs, 1 W. & S. olic, an ally of the Repeal Association, the champion 496; Menough's Appeal, 5 id. 432; Elliott of the accused in countless crown prosecutions, he Smith, 11
IIarr. 131; IIeritage Wilfong, nevertheless found himself promoted from office to P. F. S. 137; Koontz
Ilammond, 12 id. office until he finally was created lord chancellor of 177. In Newell v. Gibbs, suprui, Rogers, J., said on p. Ireland, amidst the combined applause of the couser498: “ For although the defendant is not permitted to vative and the liberal press. All this is matter of show that his lessor never had title to the demised common knowledge for the daily papers, and those premises, he may, on admitting that he once had title, which deal solely in legal commodities have published prove that his interest has expired." In Menough's lengthy obituary notices in a biographical form. There Appeal the landlord's title during the term of the is nothing new to be said about the departed judge, lease was purchased at sherifl's sale under a judgment except that his career was such as to be a lesson to his obtained prior to tho commencement of the term. fellow countrymen who may learn from it the generThe rent for the year fell due at the end of the term, osity of the English government, a quality which they and was claimed by one to whom the landlord had as are somewhat slow to acknowledge. The preseut gensigned it, by the purchaser of the landlord's title and eration was more familiar with Lord O'llagan as a by an execution creditor of the tenant. The rent was judge than as an advocate. In the latter capacity awarded to the purchaser of the landlord's title on the fresh and vivid tradition gives us a portrait of a man express ground that the judgment under which the endowed with extraordinary eloquence of that fiery land was sold was paramount to the lease, and it was yet pathetic kind which is distinctly high and wonat the purchaser's option to disaffirm the lease or to derfully effectual. On the bench, primus inter pares, affirm it and to recover the rent, and that as the rent he was remarkable for clearness of thought and absoran with the land it could not be assigned by the land- lute impartiality. Moreorer he was dignified beyond lord after the judgment so as to defeat the right of the the ordinary run of judges. This brings me gradually purchaser to have it. In Elliott v. Smith we said: “I to a topic which now attracts very considerable attentenant cannot dispute the title of his landlord, nor can tion, and deserves to attract more. The majesty of a he purchase an outstanding title and under it withhold judge of the present day is not to be compared to that the possession from his landlord. When however he of a judge in the past. Vot long since a polemical corbecomes the owner of the very title under which his respondence appeared in the Times, and it was more landlord claims, either by purchase from the landlord, than suspected that iwo judges were the main comor at a sheriff's sale upon a judgment which incumbers batants. Whenever a question of iutricacy crops up
judges, under familiar signatures, rush into print and to the belief that the loss ought to fall not on the inexpress unasked opinions. The result is a loss of dig- nocent owner of tbe securities but upon the banker. nity. They are flouted at by Mrs. Weldon and others The latter can best afford to lose, and further, if the like her, the public stands by and applauds more or law were other than it is, would be remarkably careless vociferously according to its temper, and the ful before he placed himself in a position of possible judge is impotent. Finally later on in the afternoon, loss. A case remarkably illustrative of this difficulty he revenges himself upon some inuocent junior, and was tried at the end of the last sittings. A manufactone goes away from the scene of action with impres urer handed over to his bankers the delivery order for sions any thing but pleasant.
some raw material, paid for by a worthless bill of exThese personal plaintiffs and defendants, whose change at three months, as security for a loan. It was name is not indeed legion, but according to recent re argued on behalf of the banker that this was an orditurns forty, are a source of serious alarm to the pro nary trade transaction, the impeachment of which fession in this country. Men com plain not of the loss tended to destroy the whole system of credit. Plain of some fifty or sixty briefs, for what are they amongst men, amongst whom the presiding judge was one, so many thousands, but at the inexcusable waste of were of opinion that if the system of credit rested on time which amateurs, in their ignorance of law, prac such foundations as were disclosed, its ruin would not tice, and the rules of evidence, invariably cause. One exactly be a subject for public sorrow. party in person causes the suit to consume at least five A recent decision on Leeman's Act, proves the Stock times as much time as one properly conducted under Exchange to be stronger than the Legislature. The professional guidance. But worse that parties in per- Legislature, inconveniently and perhaps foolishly, said son are those who sue in forma pauperis. They go up that contracts for the sale and purchase of shares in to the House of Lords without hesitation, they bother joint-stock banks should be void unless the distintheir counsel at all hours of the day or night without guishing numbers of the shares were set out in the the smallest consideration, and worst of all, they contract note. This edict was issued in the full knowlfancy themselves to possess some knowledge of law edge that the practice ordained would be full of inconupon which they chatter unendurably. Once a pauper venience to the members of the Stock Exchange, and suitor plants his foot in a man's chambers he hangs on it has never been obeyed by them. Finally Mr.'Juslike a leech, sucking the brains of unfortunate coun tice Mathew, who is fully as affectionate toward busisel without mercy. Amongst other sufferers your ness considerations as toward the majesty of the law, correspondent has his private affliction; a man who ap has so interpreted the statute that until his judgment parently possesses no papers, and has been hopelessly is reversed by a higher authority the act must remain beaten in half a dozen legal conflicts, until at last his a dead letter. It comes to this: The Legislature comlegal adviser, whose peaceful advice is never followed, mands spoculators to abstain from a particular kind has adopted the expedient of being always on cir of speculation, speculators deliberately disobey, and cuit.
inirabile dictue, the law backs them in their disobeAmongst the main legal topics of the day are a dience. But one doubts whether this view of the pending reform in the details of the Bankruptcy Act, functions and authority of the judges will obtain pubthe queen's counsel question, and the law of equitable | lio recognition, and whether Parliament, if the Dynadeposits. The alteration in baukruptcy law will be mitards allow it to meet, will not parody the rebuke merely this, that professional work in the Bankruptcy | addressed to the men of Succoth. Court will obtain reasonable instead of ridiculously I fear that the virtuous tone of opinions in regard to small remuneration.
Mrs. Yseult Dudley is confined to the press, and that The leading principle of Mr. Chamberlain's act ap the general public feels toward her as France felt to pears to have been that lawyers, rather than livo idle, Madame Clovis Hugues, that her offense should be exwould work for nothing, and ho has found himself cused by its result. mistaken in so much that solicitors are practically “on strike." The other principles of the act were, firstly, that as much business as possible should be transacted
NEW BOOKS AND NEIV EDITIONS. by government officials, and secondly, that in the administration of insolvent estates the wishes of credit.
IIALL'S MEXICAN LAW. ors should be consulted. Upon the first point the
The Laws of Mexico, a compilation'and treatise relating to real publio is dissatisfied with the result of the altered
property, mines, water rights, personal rights, contracts system, upon the second the act had, up to the end of
and inheritances. By Frederick Hall. San Francisco: A. December, been consistently disregarded. At that
L. Bancroft & Co., 1885. Pp. cxxiv, 810. time however a severe blow was dealt at officialism by
This is apparently an exhaustive, and is certainly & Mr. Justice Cave, to the infinite delight of the profession in general and bankruptcy practitioners in par
well-arranged and practically useful digest of the po
culiar law which it purports to) give. The publisher ticular.
has done his work well. The queen’s counsel question is still in statu quo, and Lord Selborne's reluctance to add to the members of the inner bar remains unconquered by tho protest of
IX SAWYER'S REPORTS. the victims of delay.
This volume, published by A. L. Bancroft & Co., of A reform in the law of equitable deposits ought to
San Francisco, contains interesting cases, but we sup. be a subject of immediate and strong agitation. Thero
pose it has been in great measure anticipated by the are one or two men in America who could tell more
Federal Reporter. Those who have the preceding volthan an honest correspondent of the manner in which
umes of the series however will probably keep it up, the present law works for the benefit of the fraudu
and the series is of especial value. lent and to the ruin of the innocent. Messers. Parker and Parker, especially, are familiar with this fact. Day after day in in the Bankruptcy Court and else
WAPLES ON ATTACHMENT AND GARNISHMENT. where, it is discovered that these colossal swindlers-I do not think you need fear an action for libel-had de
This volume, published by Callaghan & Co., of Chiposited the securities of their clients with this or that
cago, wil not supersede Drake on Attachment, but the banker and received personal advances in return. In
other topic is important and fairly treated. The book these cases the public opinion is clearly coming round
will be of considerable practical value.
The Albany Law Journal.
plans suggested for the relief of our appellate tribunal, that of “Y.” to make judgment debtors pay up before appealing is probably
as incisive as any, ALBANY, MARCH 7, 1885.
but we fear it is too radical, and might work hardship in individual cases. Reforms are rarely ac
complished by riding rough-shod over the rights CURRENT TOPICS.
of the minority, a tendency to be guarded sedu
lously in a republic. HE thoughtful letter of our correspondent “Y.,”
In a paper recently read before the Albany Instilic attention to various remedies for the relief of tute, Mr. Gilbert M. Tucker, an accomplished philour Court of Appeals. The calendar of this tribu- ologist, accused our profession of perverting the nal is fast accumulating beyond the power of the meaning of the word “enjoined.” IIe said: “It judges. The frequent suggestion to augment the can hardly be necessary to remark that to enjoin' sum involved so as to confine appeals to larger a course of conduct is to urge that it be followed; amounts than at present meets with just disfavor. the lawyers, oddly enough, have so perverted the The court is not for the rich, nor are appeals in meaning as to reverse it completely; in their lanthemselves an evil. A litigious nation is always a guage to enjoin an act is to forbid it! Thus I read free nation, and even a prudent nation. Controver in the ALBANY LAW JOURNAL (Vol. 28, page 43), sies as to legal rights are the food of freedom, that “in Leet v. Pilgrim Church, St. Louis ('ourt of and an apathetic nation is a melancholy spectacle | Appeals, the ringing of the church chimes between in history. There is no question in our minds that 9 P. M. and 7 A. N. was enjoined. The court reone immediate remedy is to cut off interlocutory fused to enjoin the ringing for worship on Sunday appeals, except in the single cases where personal
or in the daylight hours,' and continued: “But the liberty is involved. Final appeals alone should striking of the clock at night must, we think, be bring up all interlocutory questions. If judgments relegated to the category of useless noises. * were a lien notwithstanding security to stay execu We therefore think that the striking of the hours tion, many dilatory appeals would also clisappear. upon the largest bell between the hours of 9 P. M. But the main remedy is to raise the standard of the and 7 A. M. ought to be enjoined. Of course this courts of first instance. Codification of substantive
means that while the court declined to order the law will do something toward relieving the courts ringing of the church bells on Sunday or by dayof last resort, but the main remedy must be found light during the week, it did command that the in higher education of the bench and bar, and a chimes should be faithfully operated between 9 at greater division of skilled labor. Our omnibus law-night and 7 in the morning. Of course, also, the yers are breaking down, and the courts derive pain writer of the paragraph, and the learned judge fully little assistance from the advocates, because
who prepared the opinion, intended that their the latter most frequently are improperly familiar words should mean the precise opposite. with the line of discussion. Their efforts being Meaning forbid, why could they not say forbid ! tentatire, pot confident nor to the main issue. A Or if it is considered desirable to have a special class of counsel for the Court of Appeals and for word to signify the formal forbidding of an action work in banc would mightily aid the Appellate by a writ, far, far better would it be to raise to reCourts. We concede that this supposition needs spectability a term which is now ranked with the to be carefully elaborated so as to prevent a noblesse
vilest newspaper slang, and say that the action is de la robe, unfitted for democracy. This however “injuncted.” It may be answered that this lorrican be done, and meanwhile we only suggest that ble word, if it means any thing, must be synonythe folly of saying that a division of labor is expe mous with enjoined; but the fact is, it has never dient for a cotton factory and bad for a law fac
been used except to siguify forbidden by injunction; tory,” must be patent to the reflecting. Much of
and as for its irregular formation, one who cares the evil complained of is due to the selfishness of
more for the substance of the language, its real serour leading advocates, and their willingness to de
riceableness in expressing thought, than for the reprive the State of their services, if only they can finements of grammatical science, will easily disrebe employed in purely ministerial attorney business. gard that objection." Mr. Tucker is unquestionably Some of our leading advocates, instead of ailling le-right. Now let him “ go for " the barbarians who gal administration become the mere agents of cor garnishee " as a verb. porate speculation, of indigent juniors at the bot. tom of the legal firm, or of other bad or doubtful agencies. Owing to counsel's partnerships, again, We once asserted that the State of New York had attorneys frequently refrain from employing coun never paid a dollar for a statue, bust or portrait of sel, there being no esprit d'honneur among them any one of her public men. This it seems was a not to ultim ately engage the attorney's client. All slight mistake. "The State did once, we believe, these are elements of our present difficulty. Some buy a very bad portrait of Lincoln, which is someday we shall elaborate them to the point of demon where — it does not matter where — in the Capitol. stration; here we crudely suggest them. Of all the Meanwhile the State has spent fifteen millions on its
Vol. 31 – No. 10.
capitol, and is likely, we think, to spend as much turing the hirer, is entitled to the statutory reward
But an appropriation of a very trifling for the apprehension of horse thieves. The court amount to purchase Palmer's statue of Chancellor said: “The statute makes no distinction between Livingston has been twice vetoed by over-prudent | the owner of the horse stolen and any
person, governors. This bronze statue, by our honored The reward to any one who shall pursue and apand talented townsman, a duplicate of one in the prehend the thief. We see no reason for excluding National Capitol, has stood for several years in the the owner from the benefit of a statute which seeks State Capitol, and for a year in the Court of Appeals to encourage the most active pursuit of a thief, who chamber. It is the noblest statue of a public man takes property susceptible of such rapid removal to that we know of, unique in its simplicity, grace, a distant place. It does not matter by what mode dignity and refinement. Its subject was the first the larceny be committed, whether by a bailee or chancellor of our State. His fame as a magistrate otherwise, the requirement of the statute is fulfilled is traditional, because there was no reporter of his provided the person pursued and apprehended shall court in his day, and he shares the fate of the heroes have stolen one of the animals named, and shall who lived before Agamemnon, and who had no have been duly convicted thereof." poet to commemorate them. But his reputation as a statesman and citizen is on a firm basis. He was one of the most useful and far-sighted citizens of
In Sullivan v. Kuykendall, Kentucky Court of his time. Our State owes much to such as Living- Appeals, January 22, 1885, 6 Ky. L. J., and Rep. ston and DeWitt Clinton. This statue ought to re- 481, where A., desiring to talk over
a telemain where it is, fronting the bench of our highest
phone with B., asked the operator to call him, court, and the cost of it would be a very small and the operator thereupon had a conversation with acknowledgment of the services of the great man B., reporting to A., who was standing by, what B. whom it figures, and of the genius which has created said as it came over the wire, held, in a subsequent it. We hope the legislature will resolve to buy it, action between A. and B. that the former might and that the governor will approve the resolve. prove by himself and others what the operator reLet it not be said that the State of New York is ported to him as coming from B., the operator being squandering hundreds of thousands of dollars on
called and not remembering the couversation. The useless and inappropriate ornamentation of its capi
court said: “It would beyond question have been tol, but is too poor to buy a statue of one of its competent to prove by the Morgantown operator chief men who made the State rich and great.
what Sullivan said to him; but whether his report
to the appellee of what Sullivan was saying, made There are two important legal compilations in within the domain of incompetent hearsay testimony
as the conversation progressed, is competent or falls course of publication, continually coming to us, is a question of importance in view of the astonishand calling for and deserving remark — the Ameri- ing growth of the business to which it relates, and can Decisions and Myer's Federal Decisions. Of
one not free from difficulty. In the case of a telethe former, now in the 61st volume, and brought gram the original must usually be produced in evidown to the year 1854, we have so often spoken in dence, or its loss shown, before its contents can be terms of praise, that the doctrine of sture decisis proven or the copy delivered by the operator to the alone would compel us to stand by our opinion. party receiving the message used, useless it be where But we see no reason to change our judgment. the copy becomes primary testimony by the teleEverything about the series is excellent, and its use- graph company being the agent of the sender. In fulness must increase every day. O the other the use of the telephone however the parties talk publication, volumes six and seven of which are with each other as if face to face; and save where about to appear, we have formed a very favorable
a message is sent, there is no written evidence of impression. The scheme is admirable, and the what has passed. By inventive means they are editorial staff is unprecedented for special learning brought together for the transaction of business. It and reputation, and from what we have seen of the is a well-settled rule that where one through an inseries we believe the work will be very useful. The terpreter makes statements to another, the inusefulness of this series also must increase with terpreter's statement made at the time of what was time, as the snowball of adjudication grows too un so said is competent evidence against the party. wieldly to be rolled. These are two very great The interpreter need not be called to prove it; but W and much depends on them for the relief the interpreter's statement made at the time may of the coming lawyer.
be proven by third persons, who were present and heard it. Camerline v. Pulmer Co., 10 Allen, 539;
Schearer v. Tarber, 36 Ind. 536; 1 Greenl. Ev., NOTES OF CASES
183; 1 Phillips Ev., 519 (side page). The reason of
this rule is, that the interpreter is the agent of both IN N County of Butler v. Seibold, Pennsylvania Su- parties, and acting at the time within the scope of
preme Court, October 22, 1884, 15 Week. Notes his authority; and we have been unable to draw Cases, 464, it was held that the owner of a horse any satisfactory distinction between this case and let for hire and sold by the hirer, pursuing and cap- | the one under consideration. The argument is at