« EelmineJätka »
Legislature. The various provisions of the enacted TAXATION-NOTICE TO OWNER-ENJOINING COLLECstatute all tend to show that the Legislature had no in TION.—There is no doubt that notice of some kind tention to percait physicians, druggists or any other must be given to a property owner and an opportunity person to sell intoxicated liquors for the excepted giveu him to be heard before an assessment upon his purposes without first having procured a druggists' property becomes finally and irrevocably fixed. permit therefor from the Probate judge.” Ita lex County of Santa Clara v. Southern Pac. R. Co., 18 Fed. scripta — go the law is written. We cannot make the Rep. 385; Same v. Same, 13 id. 722; Thomas v. Gain, law, nor by judicial construction change or modify its 35 Mich. 155; Butler v. Supervisors, 26 id. 22; Paul v. terms so as to legalize sales which are expressly pro Detroit, 32 id. 108; Philadelphia v. Miller, 49 Penn. St. bibited. Woods v. State, 36 Ark. 36; Wright v. Peo 440; Patten v. Green, 13 Cal. 325; Gatch v.Des Moines, ple, 101 Ill. 126; State v. Hall, 39 Me. 107; State v. 18 N. W. Rep. 310. And that the notice should be Browu, 31 id. 523; Commonwealth v. Sloane, 58 Mass. provided for in the statute or ordinance authorizing 52. Counsel refer to the statutes of several States for the improvement, there is no doubt. The object of bidding the sale of intoxicating liquors, which contain notice however is to enable the property owner to prono exceptive provisions, and cite decisions from those tect his rights by the proper proceedings. If he appear States to the effect that the Legislatures of those in the case the object of notice has been accomplished, States must be presumed to have left the necessity of nor will he be heard afterward to complain on that saving life and curing the sick to operate as an implied ground. But even where there is neither notice nor exception to the general terms of the statutes. appearance, but the circumstances were such that he Thomason v. State, 50 Ind. 449; State v. Mitchell, 28 must have known the facts, if there was authority to Mo. 563; State v. Larimour, 19 id. 391 ; State v. Wray, impose the tax, a party cannot, after the improvement 72 N. C. 253. Some of these cases are in conflict with is made, enjoin the collection of the tax assessed to the previous decisions of this court. While the old pay for the same; in other words, retain the benefit dramshop act regulating the sale of intoxicating derived from the improvement without doing equity liquors was in force, this court decided that druggists | by tendering the amount for which the property would had no right to sell intoxicating liquors, even for medi be justly liable. La Fayette v. Fowler, 34 Iud. 140; cal purposes, without license. City of Salina v. Seitz, Sleeper v. Bullen, 6 Kan. 300; Evansville v. Pfisterer, 16 Kang. 143. But the decisions cited by the defend 34 Ind. 36; Weber v. San Francisco, 1 Cal. 455; Kelant are not applicable to the present case, because logg v. Ely, 15 Ohio St. 64; Tash v. Adams, 10 Cush, there is embodied in the statute of this State a specifio 252; Motz v. Detroit, 18 Mich. 495; Warren v. Grand provision made for the sale of intoxicating liquors for Haven, 30 id. 24; Peoria v. Kidder, 26 Ill. 351. Barker medical purposes, and the statute is bristling all over v. Omaha. Opinion by Maxwell, J. with provisions tending to show that it was in the mind [Decided Aug. 26, 1884.] of the Legislature, at the time the statute was adopted
USURY—QUESTION OF INTENT-PLEADING.–To conto forbid physicians and all other persons from selling
stitute an usurious trausaction there must be a loan, or bartering intoxicating liquors for medical purposes,
and there must be an intent to take usurious interest. without first having procured a permit. It is very
Pomeroy v. Ainsworth, 22 Barb. 118; Reed v. Coale, true that the evil sought to be remedied by the statuto
4 Ind. 283; Pars. Bills & Notes, 405. Both parties is the use of intoxicating liquors as a beverage, and
must concur in this intent-the borrower to give and that this purpose interprets the law. Intoxicating
the lender to accept usurious interest. State Bank v. Liquor cases, 25 Kans. 751. But the idea of prohibi
Coquillard, 6 Ind. 232; Evans v. Negley, 13 Serg. & R. tion as embraced in the statute is the absolute destruc
218; 'Leavitt v. De Launy, 4 N. Y. 364; Agricultural tion of the use, as a beverage, of intoxicating liquors.
Bank v. Bissell, 12 Pick, 586; Bank v. Waggener, 9 Pet. To accomplish this, the Legislature has seen fit to
378; Lloyd v. Scott, 4 id. 205. The intent which is esthrow severe restrictions around the anministering of
sential is not intent to violate the statute, but to take liquors even as a medicine. It has attempted thereby
more than the rate fixed by law. Abb. Tr. Ev. 793; to prevent the excepted sales from becoming the ways
Fiedler v. Darrin, 50 N. Y, 437. The intent may be and means of rendering the statute abortive. Whether
deduced from the facts proved, as by the reservation the Legislature has acted wisely, it is not for us to say,
of interest in excess of the legal limit (Abb. Tr. Ev. For the law, the Legislature and not the courts is re
793); but the proof cannot make a stronger defense sponsible. It is ciearly indiscreet to prosecute trans
than the answer in the case. It is therefore essential actions like the one charged in the complaint; but the
in pleading usury to state with whom the usurious defendant had no right to administer liquor as a medi
agreement was made, its nature, and the amount of cine contrary to the provisions of the statute. Stale
usurious interest agreed upon or received. Manning v. Fleming. Opinion by IIorton, C. J.
v. Tyler, 21 N. Y. 567"; Maxw. Pl. & Pr. (3d ed.) 105. New England, ctc., Co. v. Sanford. Opinion by Max
well, J. NEBRASKA SUPREME COURT ABSTRACT.
[Decided Nov. 18, 1884.)
OHIO SUPREME COURT COMMISSION AR
SALE-STOPPAGE IN TRANSIT.—The right of stoppage in transitu may be asserted by the vendor of the goods at any time before their delivery to the vendee by the carrier. But if the goods are by the vendee sold to a third party in good faith for value, and they are by the carrier delivered to the vendee, who delivers them to his vendee, the lien of the consignor is lost, and he cannot retake the goods in the possession of such vendee of his vendee. Hutch. Car., § 409; Story Sales, ss 318, 319; Newhall r. Vargas, 13 Me. 93; Fraschieris v. Henriques, 6 Abb. Pr. (N. S.) 251. United States, etc., Pump Co. v. Oliver. Opinion by Reese, J. (See 35 Am. Rep. 17.] [Decided Nov. 18, 1884.]
MARRIAGE WIFE SEPARATE ESTATE CONSENT THAT HUSBAND) MAY USE.-If a wife, wheu asked to permit her husband to apply a specified part of her separate estate in payment of his debt, delivers said property to him, and be, with her knowledge and without objection by her, transfers it to his creditor for said purpose, she thereby makes her express assent that her husband may dispose of said property for his
*To appear in 41 Ohio State Reports.
own use and benefit. It is not necessary that the as. go upon the adjacent lands. The liability of the city sent of the wife shall be established by evidenco prov for the injury sustained by the plaintiff is contended ing words spoken or written by her. If it be clearly for upon the principle of the cases of Hargreaves v. proved that the wife was called to act upon a definite | Deacon, 25 Jich. 5; Young v. Iarvey, 16 Ind. 314; proposal that she should consent to her husband's re Mullen v. St. John, 57 N. Y. 567; Beck v. Carter, 68 duction to possession of a specific article, or part of id. 283, and many others, that a municipal corporaher separate property, for his own use and benefit, and tion is liable for injuries resulting from obstructions, that she did act affirmatively upon that proposal, the excavations, pitfalls or other dangerous condition of asseut is express within the obvious meaning of this premises outside of tho street, but so near to it as to statute. Pollock's Principles of Contract, 28, and cause injury to persons in the proper and lawful use of cases cited ; 1 Story Cont.,$ 14, Alexander r. Vane, 1 M. the street, and upon the principle also of the cases of & W. 511. Frunc v. Nirdlenger. Opiniou by Granger, Bennett v. Railroad ('0., 102 U. S. 577; Sweeny v. Old C. J.
Colony Railroad, 10 Allen, 368; Laruo v. Farren IIotel NEGOTIABLE INSTRUMENT-MATERIAL ALTERATION
('0., 116 Mass. 67, that the owner of land is liable to -SURETY-CONTRIBUTION.-(1) The rule is elementary,
persons who go upon it, by invitation express or imthat a material and intentional alteration of a written plied, for injury arising from the unsafe or dangerous instrument will avoid it, when the alteration is made condition of the premises. The plaintiff was walking by or with the privity of one claiming a benefit under along the sidewalk immediately before the accident the instrument, and after the instrument has been de-occurred. The place where he fell into the excavation livered and taken effect. Fullerton v. Sturges, 4 Ohio
was about thirty feet from the sidewalk or street St. 529 and cases cited. In German Bank v. Dumn, 02 proper. The north end of the excavation did not come Mo. 79, after a note was completed, in the absence and
within thirty feet of the street. A person therefore without the authority or knowledge of the maker, the
in the ordinary uso of the sidewalk would seem to name of the payeo was by the holder erased, and his have been out of all possible danger of falling into the own name substituted. In the case of Stoddard v.
excavation. If the excavation had been so near the Penuiinan, 108 Mass. 366, the action was to charge tho
street that a person had fallen into it while passing on defeudant as an original promisor upon a promissory
the sidewalk and in the ordinary use of it, a liability note. It appeared that the note was made payable to
for resulting injury would follow. This excavation the maker's order; that while it was in this condition,
was so far from the street that it could have caused no and before the maker indorsed it, the defendant put injury, except when the person passing along the sidehis name on the back of it for the maker's accommo).
walk turned out of his way, as the plaintiff clearly did dation; and that in negotiating it to the plaintiff, the
in this case, and went to it. Protection against pitmaker altered its face so as to make it payable to the falls, excavations, or other dangerous condition of plaiutiff's order, without tho defendant's knowledge grounds is extended to those only who are there by or consent. It was held that this was a material alter | invitation express or implied. If business is carried ation, and avoided tho defondant’s liability. See also
on upon the lot, or any curiosity kept there, open to Cumberland Bank v. Hall, 1 IIalst. 215; Dolbier v.
the public, or any inducement or allurement held out Norton, 17 Me. 307. (2) It is the general rule that if to the public beyond a mere permission to go there, several persons become co-sureties, by the same in- the duty to keep tho premises safe arises; but is a lot strument, and one surety pay the demand, or more
is left unfenced a person who goes upon it by bare perthan his own proportion of it in reference to the num
mission because there is no obstruction to keep him off, ber of his co-sureties, and thoreby relieve the latter
goes at his own risk. Railway ('0), v. Bingham, 29 Ohio from liability, he may recover against each co-surety
St. 364; Beck v. Carter, 68 N. Y. 283. Kelley v. City of his aliquot share or proportion of the debt, or of the
Columbus. Opinion by McCauley, J. sum paid by him beyond his own proportion, upon an implied promiso to contribute. The noto under con
FINANCIAL LAW. sideration having been altered without the knowledge or consent of Philip Bauer, he was discharged from its
NEGOTIABLE INSTRUMENT-ALTERATION, DOES NOT payment. But notwithstanding his discharge, he paid
RELEASE WIIEN (OVSENTED TO-BONA FIDE IIOLDER. — the note su sponte, and having done so, he could have (1) The material alteration of a promissory noto avoids no claim for contribution upon the other joint and sev the note as to the maker not consenting thereto, even eral makers who were his co-sureties. To establish a
in the hands of a bone fide holder. Bauk v. IIall, 1 claim for contribution, the payment must have been
Halst. N. J. L. 215; Stoddard v. Penniman, 108 Mass. made by him under a legal and fixed obligation. Pilt 366; Draper v. Wood, 112 id. 315; 17 Am. Rep. 92, 106; v. Purssord, 8 M. & W. 3:38; Daries v. Humphreys, 6 | 2 Dan. Neg. Inst., $S 1387-1390. (2) Ifa promissory note id, 153; : Parsons' N. & B. 253. In the emphatic lan
be altered by substituting another payee for the origiguage of the court in Russell v. Failor, 1 Ohio St. :3.27; nal payee with the knowledge and consent of one of Upon no principle of justice or sound reason, can a
the makers, but without the knowledge or consent of burety, by voluntarily paying money on a void note, the other maker, such material alteration releases imposo an obligation upon a co-surety for contribu- from all liability the maker not consenting. Lanier v. tion.” Davis v. Bauer. Opinion bg Dickman, J. McCabe, 2 Fla. 32; l'rince v. Crawford, 50 Miss. 314;
Crossthwait v. Ross, 1 Ilumph. (Tenn.) 23; Smith v. MUNICIPAL CORPORATION NEGLIGENCE - PUBLIC Sloane, 37 Wis. 283; 19 Am. Rep. 757; Deardorf v. BUILDING-EXCAVATION FOR. – A city is not liable for Thatcher, 78 Mo. 128; 1 Dan. Neg. Inst., $S 355-358. (3) an injury resulting from the unsafo or dangerous con Where a note given for a threshing machine jointly dition of lands adjacent to a street where the place of owned by II. and L. was executed in the individual danger is so far from the street that no injury can re names of H. and L., and II. and L. are in partnership sult to persons in the ordinary and proper use of the in the operation of the machine-dividing the profits street. The owner of land is not liable for injury re and losses equally- and while such relation exists the sulting from the unsafe or dangerous condition of his payee in the note is altered by substituting the name premises, to persons who go upon them without invi- of O. for the original payeo, and the alteration is made tation express or .mplied. The fact that a parement with the knowledge and consent of H., but without was continuous from a sidewalk on a street over the the knowledge or consent of L., held, as II. and L. are adjacent lands to the place of danger, was not of itself not in a trading or commercial partnership, H. had no an implied invitation to a person on the sidewalk to authority to make the material alteration in the note
so as to bind L., and such material alteration being Frary, appellant, v. Orleans County Bank, respondent; made without the consent of L., releases him from all Henry J. Goodwin and others, appellants, v, Leopold liability upon it. The material alteration of a note Westheimer, impleaded, respondent.- Order of Genwith the consent of a maker is virtually making a new eral Term reversed; judgment of Special Term note and ante-dating it. We therefore conclude that affirmed, with costs-James Jackson, receiver, appelthe material alteration of the note in question released laut, v. St. Paul Fire Ins. Co., respondent.-JudgL. Broughton v. Fuller, 9 Vt. 373. That the bank ment reversed, new trial granted, costs to abide the purchased the vote before maturity, for a valuable event-Sarah R. Odell, infant, respondent, v. Solomon consideration, and is therefore a bona fide holder of B. Solomon and others, appellants.—Order affirmed, the note, does not prevent L. from asserting the mate with costs—People ex rel. Mary S. Prendergast, appelrial alteration of the note as a defense. Wait v. Pom- / lant, v. Anna H. Fargo, respondent; Annie Smith, reeroy, 20 Mich. 425; Benedict v. Cowden, 49 N. Y. 396; spondent Philip Smith, appellant; People Bank v. Stowell, 123 Mass. 196; 2 Dan. Neg. Inst., $$ ex rel. Thomas Byrnes, appellant, V. Stephen B. 1410-1413. Sup. Ct. Kans. Horn v. Newton City | French and others, commissioners, respondBank. Opinion by Horton, C. J. (32 Kans. 517.] ents; Amelia Merritt, respondent, John H.
Merritt, appellant. — Appeal dismissed, with costs_ CORRESPONDENCE.
Lewis J. Goddard, receiver, appellant, v. Stephen
Stiles, respondent; People ex rel. Abraham Dowdney, ANSWER TO A QUERY.
appellant, v. Hubert 0. Thompson, respondent; Jacob Editor of the Albany Law Journal:
Crounse and others, appellants, v. Harlow G. BoothIn 30 Alb. L. J. 310 is found a quory which the sub- wick, sheriff, respondent; People ex rel. William H. sequent numbors of your journal do not show to have Osgood and another, appellants, v. Commissioner of been answered. Will you kindly refer your corro
Texas, respondent; Pardee Carpenter, appellant, 'v. spondent to State ex rel. Laclede Bank v. Lewis, 76 Mo.
Harriet P. Wood, respondent. -Order affirmed, with 370, as being the latest and a very full discussion of the
costs. No opinion, all concur-People v. Merchants’ question asked ?
Bank (claim of Whittaker). -Motion to advance as Respectfully, L. C. KRAUTHOFF.
preferred, denied, with costs—Elias Q. Horton, reJEFFERSON CITY, Mo., May 1, 1885.
spondent, v. Coffin L. Brown, executor, appellant.Motion to date decision nunc pro tunc as of March 24,
1885, granted, without costs—Ezra Caulkius, respondNEI BOOKS AND NEW EDITIONS.
ent, v. Danforth D. Bolton and another, commissionPAINE'S BANKING LAWS.
ers, appellants. The Laws of the State of New York relating to Banks, Banking and Trust Companies, and companies receiving money
NOTES. on deposit, also the National Bank Act and Cognato United States Statutes, with amendments and annotations.
An important decision concerning innkeepers. By Willis S. Paine. Weed, Parsons & Co., Albany, N. Y.
Among the anecdotes of Judge Waltou is the follow1885.
ing: Early after his first appointment he went to The title shows the scope of the volume, and the ar
Alfred to hold court, and called on Landlord Berry, rangement of the material was no doubt as the author
who offered him his best room with a proviso that says, “A difficult task involving very arduous labor.”
after ex-Judge Howard's arrival he would have to put
him in another room. The work though intended for use in New York State
• Well, what room?" asked will doubtless be found of value throughout the sev
Judge Walton. He was shown a little 7 by 9 den, eral States of the Union. Throughout the work, re
whereupon he told Berry that he would take the best ferences are made to the decisions of the courts, the
room, as Judge IIoward would not want it. “Why whole preceded by an historical sketch of the banking
not?" asked Berry. “Because,” said Judge Walton, methods of the State of New York.
“I shall adjourn the court to-morrow to Saco." "Who is going to take your place here?” asked Mr. Berry,
who was not quick to take in the situation. “Why, DIGEST OF AMERICAN DECISIONS,
nobody,” said Judge Walton. "A judge can't stay in This volume of 1245 pages embraces the decisions re town and hold court and sleep in the street; he must ported in volumes thirty-ono to sixty, inclusive. It is have a room.” “Oh,” said Berry, “I will see." He of course indispensable to the owners of the series,
saw, and was conquered. He told Judge Walton he and appears in every respect thoroughly executed. could have his best room. At the end of the term Published by A. L. Bancroft & Co., San Francisco. Judge Walton gave the landlord this advice: “Court
week is your harvest. If you want a long term and to COURT OF APPEALS DECISIONS.
make lots of money make the judge just as comfortable as you can. He has power to break up the court
just when he pleases; but if he is made comfortable he HE
will stay just as long as he finds any thing to do." day, May 5, 1885 :
Lewiston (Me.) Journal. -The Central Law Journal Judgment affirmed with costs—Charles H. Russell,
informs its readers that it has received commands receiver, respondent, v. George W. Nelson et al., ap
from one or two subscribers to “ stop the paper," but
says the Journal, “the paper, our readers perceive, is pellants; John Craigill et al., respondents v. Sterling not stopped. One of the subscribers was dissatisfied G. Hadley, receiver, appellant; Henry A. Gildersleeve, because of the Journal's opposition to champerty and appellant, v, Mayor, etc., of New York, respondent; an alleged attack upon the Bible. The Journal says: Carrie Hagevlocher, infant, respondent, v. ('oney Is
• This really hurt our feelings. We confess to being land and Brooklyn R. Co., appellant; Board of Educa
opposed to champerty, but we have never spoken distion, of Auburn, respondent, v. Henry V. Quick and
respectfully of the Holy Scriptures. In fact it was
from a story told in the Divine Book, of the soldiers others, administrators, appellants; Board of Commis- casting lots for the garments of our Saviour, that we sioners of Pilots, respondents, v. John W. Ambrose, / imbibed our antipathy to champerty.' -Good news. appellant; George S. Riley, respondent, v. Francis A.
Mr. J. W. Donovan writes that he has sold his book, Schoeffel, sheriff, appellant; James Roach, appellant, he is going to make no more books, being too busy:
“Tact in Court,” to his publishers for $2,500, and that v. Benjamin B. Odell, sheriff, respondent; In re Final Accounting of Kendrick E. Morgan, assiguee, etc.; In
The West Coast Reporter evidently has a Chinese proof
reader. fIe transforms our case of Kortright v. Cady re Petition of George A. IIarding, etc.; Augusta W. iuto Kortoryght v. Kaday.
The following decisions were handed down Tues
Albany Law Journal.
did was a thesis in 1857 in favor of allowing parties to be witnesses for themselves. A long and thorny
and up-hill road is that of law-reform. Mr. Field ALBANY, MAY 16, 1885.
also will be alive for twenty years, and he says: “I
am not in the least discouraged. We have gained CURRENT TOPICS.
largely in circulating a knowledge of the Code, and
the fifty-two members, who voted for it, acted upon NHE lower house of our Legislature have defeated
a better knowledge of the subject than any fiftythe Civil Code by a vote of 67 to 52. This
two members ever did before.” In closing, we result was not unanticipated, but some of the argu
would remark, that if it is the purpose of our Legisments that brought it about were. Many of them latures to know the Code before voting for it, why were puerile, both in the house and out of it. did not Gov. Cleveland sign last year's bill for a What kind of an argument is it that 160 of the 180
commission! Will some of the New York clique lawyers of Syracuse are opposed to the Code? Or rise to explain?; that it proposes 3000 "new" laws? Or that the members have not read it? When will they read it,
Although we desire to be known as the “ organ' and know anything about it, or about any thing of our profession in this State, we also desire it to that pertains to the reform of our laws?
be understood that we are not to be played upon
Will it be the next week or the next year, or will it be when by others upon every occasion. So we frequently they have passed from their brief tenure of author-suppress what seems to us trivial fault-finding with ity, and the battle has to be fought over again with
our courts. We rather like to reserve that privia new set of legislators? To illustrate how little lege for ourselves. Occasionally we make an the public press understand of this matter, outsideception in favor of a well-known lawyer of high of a few journals that have taken pains to under-standing, like Mr. Cowen, who adjourned his case stand it, the Troy Times, one of the most iufluential
to tlie tavern, and now in favor of Judge Peck, and respectable newspapers in the State, published
who finds fault in another column. Readers will two or three weeks ago an argument of some length draw their own conclusions. Judge Peck publishes in favor of the Code, but referring to the bill as an
on his own responsibility and signs his name like a act to "amend” the Field Code, as if that were an
man. If some of his readers come to the conclusion existing law. Now that the act is defcated, the
that lie was beaten upon a technicality savoring same journal characterizes the defeat as a “merito
more of old times than of Code practice, we shall rious” act, and one of the three only meritorious
not be surprised. We feel free to say, however, acts of the house! Such are the instructors of our
that such a state of things is a reproach to our syspeople, and such are our law makers. We say
tem of law, which professes to be superior to such
doctrines. nothing of the inner history of this winter's campaign, although there is a history. We only say that we believe that the lawyers of the New York
Now that we are in a fault-finding mood, we may City Bar Association have lest no stone unturned to
as well inquire what right Judge Van Brunt had to cffcct their purpose. Of course, no one believes
tell the jury in the Short case that he was surpriscul
at their verdict? IIe probably was, and so perhaps that a profession too lazy or indifferent to read the
were others, but we conceive that it was no more in proposed Code have ever read Mr. Carter's or Mr. J. Bleecker Miller's oracular utterances on the sub
his province to tell them so than it is in ours. Two ject. We believe we are the only man in the State
hundred years ago he would have hail the power to who has read them all. Any candid man who cmphasize his surprise by putting them in jail. The read the speeches in the IIouse on the thirsl reading verdict in corporation cases, whether tried by judge
result was no more surprising to us than the usual must admit the great superiority of those of the friends of the bill. Personally, we say, as we said
or jury, or in cases of emotional killing for injured
honor's sake. It is unfortunate that the people a year ago, the result is not (lisadvantageous to us as editor and reporter of opinions. But, how will
cannot have a new trial in this case on tlie ground it suit even such code-phobists as Mr. Cowen, who
of the judge's surprise. used columns of this journal in blaming the Court of Appeals because they thought there is a legal At a meeting of the Tennessee Bar Association difference between a ditch and a drain, and who last year, papers on codification were read by J. A. would like to have some certainty about such ('artwright, W. (). Vertrees and J. M. Dickinson, things? But we are not discouraged. We shall be of Nashville, and ex-Judge Sneed, of Memphis. alive and lively, long after Prof. Dwight, the great | Messrs. Cartwright and Dickinson, 2pro, and the constructor of lawyers upon the “elastic” princi- others, con. But Julye Sneed made the following ples of the common law, and Mr. Carter, a really telling argument in favor of codification: “In my great lawyer, and Mr. J. Bleecker Miller, who | judgment, one of the greatest evils under the sun doubtless will be greater some time, and all the is the rapid accumulation of books of reports which rest of our opponents shall be dead and mainly for contain no new doctrine. Just think of it. A gotten. We might feel discouraged were it not for hundred years ago there was not a book of reports the recollection that the first law writing we ever on this side of the sea. Ninety years ago there
VOL. 31 - No. 20.
were only two. And yet that was confessedly the the father placed the child with relatives of the Augustan age of great American lawyers. Now, | mother, who nursed and cared for it until it had there are between three and four thousand, and attained the age of seven years. After the child they are accumulating in this country at the rate of had been cared for while very delicate and sickly, about a hundred every year. It was found that the father gave a written promise to the relatives there were not geese enough in all the world to by which he agreed that the child should never be supply the judiciary with quills to write opinions taken from them. Subsequently, the child having with, and an ingenious artisan at Sheffield invented been allowed to visit the father, the latter refused steel pens and scattered them broadcast over the to allow him to return to his relatives. Upon the world, mainly to meet the demands of the cacoethes return to a writ of habeas corpus, procured by the scribendi, which, like an epidemic, had smitten the relatives, the court refused to receive cvidence common law and equity courts of England and tending to show that the present wife of the father America.” This we glean from the Central Law was an improper person to have charge of the child, Journal.
and that his home was an improper place in which According to the Tribune, a witness in the Hoyt P. J., said: “It is not clear from the authorities
to bring up a young child. IIcld crror. Barnard, will case, answering to a certain question by Gen
that a father may recede from an engagement in eral Butler, on cross-examination, that “he could not tell,” that refined and universally respected ceived the child under it. If the subject were
respect to his child, made with one who has regentleman observed : Very well, don't answer then; it will take a good while to tell all you don't
any thing but
child it would not be averred to be
the correct and legal thing to avoid the engagement know.” It was hardly necessary to send to Boston
because it was against public policy and against the to get a vulgar brute to treat a witness in this way. There are plenty of shysters hanging around the
paternal right. I do not think these cases call for Tombs who could do this just as well, without hav
such a rule. They hold that the fatber's right is ing been generals, and congressmen, and governors,
paramount as to the custody of the child. That as or tried to be presidents, and for much less money.
against the mother all things being equal his right is the best. That an agreement between husband
and wife as to the custody of the child is bad. It The Language Club at Columbia College have been discussing “Iteration.” According to the
is not necessary to decide this question upon the Tribune, David Dudley Field gave an exhaustive present record. It may be stated as a general rule exposition on Iteration in Law.”
in this state that the rights and interest of the child
He said that there were 860 superfluous words in every deer and
are paramount upon the question of the custody of
the child. Il’ilco. v. Ililcox, 14 N. Y. 576. This ques. 1,240 in every mortgage, and that the people of the
tion includes the home of the ladies from which the State pay every year $100,000 for the recording of superfluous words. It was generally stated by law
boy goes. That is clearly seen from the case. It inyers, he said, that the use of so many unnecessary
cludes also the home of the father. The Special Term words was a matter of habit. Ex-Judge Dillon said
refused to receive proof that would show it to be an that since he represented the bar he was obliged to
improper liome to which a child of seven and upwards plead guilty to the charge of Mr. Field. The
should go. The glimpse obtained from the evi
dence is not favorable. The father was the cause remedy, he added, was in the hands of the Legislature. When these old forms were first used there
of the divorce of a former husband of his present were rcasons which made the iteration necessary,
wise by her adultery with him. After the divorce
he married her. Proof is refused which would but since the reasons no longer existed legal forms could be shortened without detriment to any one.
show or tend to show that the present wife is very The laws and forms covering the credit system in
intemperate in some cases, at times to such an this country and in Europe were explained and as al
extent as to be helpless. Proof tending to show moral, Mr. Dillon said that the Code should protect practices in what is known as spiritualism is also
what this home is in respect to assemblages and those who sold goods on credit to such an extent that all legal documents could be exceedingly brief.
refused. The proof of the character of the respond
ent's home should have been received." See note, Mr. Field might have instanced the senseless itera
40 Am. Rep. tion in assignments for creditors and in wills. Some of this springs from habit, but more from uncertainty in the law or in the writer's knowledge In Buck v. Joore, 35 IIun, 338, while the defendof it. The author of “Lorna Doone” says, in that ant's clog was following her along the street, it ran admirable novel, that the lawyer "takes a careful into an adjoining yard and there scized and killed delight in covering his traps and engines with a the plaintiff's dog, without passive volition or the spread of dead-leaf words, whereof he himself defendant's knowledge. IIeld, that defendant was knows little more than half the way to spell them.” not liable. Dykman, J., said: “It must be noticed
in the outset that the action is not for trespass on NOTES OF CASES.
the plaintiff's close, aggravated by the mischief
done thereon, lont is simply for the damage susN People v. Broin, 35 IIun, 324, the mother of a tained by the death of the dog. The case therechild having died a few weeks after its birth, forc
to fall within rule 3 of Moak's