« EelmineJätka »
English v. Franklin Fire Ins. Co..
Ere City Iron Works v. Barber...
Griffith v. Charlotte C. & A. R. R. C..
Little v. Dusenberry
missioners of Emigration.
Long v. Moore....
Lyon y. Travellers’ Ins. Co....
Marion v. Chicago, etc., R. Co..
Martin v. Alter..
Mayor v. B’dway & Seventh Ave. R. Co
Mayor, eto. V. Johnson..
McCormick, etc., Cojv. v. Chesbrown
Meier v. Blume..
Merrill v. Eastern Railway Co..
Morse v. Riblet.....
Mulesone v. American Lumber Co...
Nagle v. MoFeeters
Newrath v. Hecht...
Norris v. Corkhill..
Noyes v. Davidson...
People v. Augsbury
People v. Comstock..
People v. Gold and Stock Telegraph Co.
People v. Shriver...
Plimner v. Mayor of Wellington.
30% 282 561
77 378 194
Second National Bk. of Oswego v. Dunn Severin v. Rueckerick.. Shackelton v. Sun Fire Office. Shale v. Minges Sharp v. Ponce. Sherman v. New Bedford, etc., Savings Bk. Shoenberger v. McEwan Simpson v. Garland Sims v. United States Trust Co Slymer v. State. Smith v. Crossland Smith v. Duggert... Smith v. Harrison...... Smith v. Jones Smith v. Smith Smith v. State Ins. Co.. Snow y. Whitehead Snyder v. United States.. Snyder v. Wabash, St. Louis & Pac. Ry. Co. Socher's Appeal Solomon v. Hollander. Somerset v. Parson ..., Soule v. Frost.. Spanogle . Doane.. Stadler .. vrieben State v Statr, ! Biur, Str. Bir Si lo v linanili. Education. Shaus 6.1. Alt; 3..... Guidon Stats 7. idoran.. $. tu Ī Jackson Slati V. Jenkins Sca.3 v. Johnsou.. State v. Kelley.. state v. Maine Central Railroad Co. State v. Moore... State v. Muir.. State v. Nebraska Telephone Co. State y. Raypholtz State v. Simon.. State v. Vansant State v. Wasson State Colvin v. Six.. State of Tennessee v. Whitworth Stearns v. Cope.. Steele v.United States Stephens v. State. Stephenson v. Stephenson Stockes v. N. J. Pottery Co. Stockwell v. McHeury. Stout v. Smith... St. Paul, etc., R. Co. v. United States Strain v. Gardner .... Stratford v. Jones... Streeper v. Victor Sewing Machine Co
Ulrich v. New York Cent., etc., R. Co.
444 255 436 132 255 442 438 179 236 479 139 295 257 437 135 255
23 356 298 178
78 327 458 402 257 377 448
20 255 238 358
42 309 197 256 143 234 357 278 482 217 292 415 395 358 253
33 398 410 356 235 290 332
103 254 215
Wagner v. Nagel ...
403 237 517 94 17 419 413 176 458 178 212 197 333 333 418 32 17 95 58 515 377 350 298 455 294
THE ALBANY LAW JOURNAL: :
A WEEKLY RECORD OF THE LAW AND THE LAWYERS.
The Albany Law Journal.
Europeanize instead of Americanize them. Truly the code question is a far-reaching and all-important one to this country, and to this State as the foremost State in population and material resources.
ALBANY, JANUARY 3, 1885.
Judge Cooley's paper in the December number of
the Vorth American. Rerieur seems to invite discussion E recently called attention to the very great and notice, for it is from the pen of one of our most
importance of the Panama canal question, in distinguished juridical writers and it touches a cluding the Clayton-Bulwer treaty and Professor grave problem in the science of politics. When Lawrence's presentation of the British arguments. Judge Cooley departs from the arena of municipal The matter was hardly in print before the news of law, in the constitutional branch of which he is the Nicaraguan treaty reached us. The news how certainly an acknowledged master, and discusses ever confirms all we then said to the effect that pul). the relations of labor and capital to the law, he no lic discussion would soon be directed to this subject, longer speaks ex cathedru, and all of us are at liberty and to the rules of international law, claimed to be to differ from either his reasonings or his conclurelevant to the American canals. The London Times sions. It is a most noticeable fact that in this essay and the Pall Mall Gazette have already protested, Judge Cooley discusses certain great elements of the as we learn by cable to the New York Times, against law without precise regard to the value of several any violation of the Clayton-Bulwer treaty, while technical terms, the import of which is settled bethe St. James Gazette says that the powers whose yond controversy. This disregard is however rather representatives are now assembled at Berlin are di the fault of his school than that of this writer: All rectly interested in the Nicaraguan treaty. It may those who consider themselves disciples of the be that this treaty is only a counterblast of the ad Blackstonian school of common law persist in adoptministration against Mr. Blaine's pretensions to the ing Blackstone's errors, and in confusing public exclusive advocacy of our national policy, but if it opinion, popular standards and other ethical views is what we presume it is, a genuine assertion of the with custom as a source of law. That judiciaryparamount rights of the United States in contin made law should be dictated by public opinion ental questions, no good American will admit, with everyone will concede to be a dangerous sentiment out considerable reflection, the claims of the British for a popular government. That well marked custo a joint control of the contemplated canal. There tom should, on the other hand, be regularly connever was a time in our history when a knowledge verted into law, at certain epochs, is a recognized of international law was so important to our leading phase of the development of any body of law. But men as now, and there never was a nation in history that popular opinion should be mistaken for custom to which international law afforded so many impor is a confusion of the two divergent conceptions and tant illustrations as to this country, with its peculiar is fraught with great peril to the liberty of a repubinter-State relations. The time is not far distant lic. Yet many common lawyers seem to resent when our States will have to meet in convention in being forced to rigorous speech. Like the enemies order to adopt some common plan of codification, of Socrates they prefer the loose flowing language or our commercial intercourse will be as much of indefinite associations to precise valuations of fettered as were the States of Prussia in the days of words. The importance of precise reference to cusFrederick the Great, our central government being tom as a source of law is apparent in the North powerless, under the Federal Constitution, to med American article to which we now allude, and for dle with private law. Had New York State adopted this reason it deserves a more emphatic refutation the Civil Code, Japan and China would both have than we are able to give it in so short à space. adopted it instead of the French Codes which now Judge Cooley thinks that the common law is still in
VOL. 31 - No. 1.
formative process, and that popular legislation, as probability is those salient assistants to self-control, he calls public opinion, is all-powerful in determin- which came from the existence of the penal law, ing the decisions of the courts on moral questions of were taken away, New York would be a ruin in a public interest. He cites the nicago Warehouse week, from what would, without those sanctions, cases and several others as evidence, and frankly be called the uncontrollable impulses of reckless, avows that the courts of judicature have even re
lawless and criminal classes." versed their former judgments at the instance of public dictation. This seems to us a very mischievous
In the case of Graff v. Kennedy, Judge Brown, doctrine, calculated to destroy the entire authority at special term of the Supreme Court of this state, of our courts. Yet it is very prevalent, and this is
has recently held that husband and wife may form one reason why we prefer to relegate law-making to
a valid copartnership with reference to the wife's the legislature proper. Let the courts adhere to
separate estate. It is said that this question has their true functions, the application and interpreta
never been passed upon by a general term or the tion of law. Let the legislature, on the other hand, Court of Appeals of this State, but that Judge enter upon an cra of better legislation, consulting Westbrook at special term has held the contrary. more frequently those who are versed in the science Judge Brown says: “I am unable to see the disof legislation. Judge Cooley's article shows plainly tinction between a contract which a married woman the necessity of a new departure unless our courts
enters into with her husband, under which he manare to usurp the functions of the legislature and
ages her separate estate or business as her agent, deal out to us popular sentiments, thinly disguised, and a contract of partnership, which is nothing instead of the law --- that fixed and immutable law
more than a mutual agency by cach in reference to which alone should proceed from courts of justice.
the common business of both." By this section the It is now become a question whether we shalı have
Legislature intended to
married law from the legislature or law from the courts made as Judye ('voley says it is.
women the power to do three things: first, to bargain, sell, assign and transfer their separate per
sonal property; second, to carry on any trade or In a recent discussion in the New York Medico business; third, to labor on their sole and separate Legal Society, on Madness and Crime, Vr. Austin account. The first two a married woman had no Abbott, speaking of emotional insanity,” very power to do under the common law; the last she wisely said: “I believe that those qualities of self- could do, but the wages for her labor belonged to restraint which mark the highest notch of civilized
her husband. To confer upon her the power to character have come largely through the existence carry on a trade or business was to give her a right, and administration of the penal sanctions of law, that prior to the passage of this act, she had not against men who but for those penal sanctions enjoyed. To declare that she might labor and would have had much less capacity of distinguish- perform services would have conferred no new right ing between right and wrong, and no power to re upon her, but to declare the wages of her labor to strain the impulses of nature. If this be so, the be free from the control of her husband was to way to increase iminensely the mischiefs of uncon confer upon her a new and substantial right, and trollable impulse in the community is to put an end to accomplish this the Legislature declared that to punishment for acts committed under uncon she might perform labor and services upon her trollable impulse, and the way to increase those sole and separate account.'” In Bitter v. Rathman, faculties by which we control impulse is to main- | 01 N. Y. 512, the commission of appeals held that tain the punishment which the law inflicts for crim a married woman could contract a valid partnership inal acts, irrespective of the attempt to prove such with third persons, although she held her interest impulses as a justification or excuse. It may well in the firm upon a secret trust for her husband, and be that the time will come when penal justice will
that she could maintain an action for cuissolution to be put on a better footing, but the refusal of the protect her apparent rights, and that she was liable law to recognize such justification or excuse is as a partner to the creditors of the ostensible firm. made in view of the present state of public opinion, The court say: “If the wife has the capacity to in view of the present imperfect adaptation of tri contract with the husband with reference to her bunals of justice to the investigation of uncontrol separate estate, there is no limit put upon the power lable impulse, and we ought to aild, in view of the in the statute. The courts of this State have decided present condition of society I do not think that that she has such power, and I am unable to see by medical men appreciate generally the power which what principle it may be upheld by one class of the existence of the law and its penal sanctions ex contracts and denied as to others." And in Scott v. ercises on the lawless in aiding the control of wliat Conway, 58 N. Y. 619, it was held that a married would otherwise be uncontrollable impulse. Those woman, apparently carrying on a separate business, who are familiar with the administration of crim cannot interpose as a defense against creditors that inal law, those who are charged with its adminis she had it dormant partner, namely, her husband. tration, those who have the responsibility of main This was by a divided court. By chapter 381, Laws taining public peace and order, will not, I think, of 1881, it was provided that a married woman may deem it an exaggerated statement to say that in all contract as if unmarried, but “this act shall not