« EelmineJätka »
ant and his property. Cal. Sup. Ct., April 25, 1887. fendant to the Auburn State prison to serve the unSullivan v. Royer. Opinion by Foote. C.
expired term of his original senteuce of fifteen years RAILROAD - CROSSING – YARD — INJUNCTION.- (1) -People, appellants, v. Joseph Elliot, respondent. Where property has been taken for one public use, by
Opinion by Earl, J.; all concurring. Elliot was a corporation, it cannot be taken by another corpora
charged and convicted of forgery, second degree, in tion for another use, except by express grant or by
presentiug for cashing by a Rochester bauk of a forged necessary implication. (2, The runuing of its tracks
draft. The principal evidence was given by au accomby one railroad company through the yard of another
plice, and the Supreme Court held that it was not suffi. company and across some of the tracks aud switches
ciently corroborated uuder section 399 of the Criminal is not a “crossing," within the meaning of the statute.
Code. Elliot and the accomplice formed a play in (3) A railroad company, although another route was
New York city to swindle some country bank. He open to it, for economy ran its proposed line for tracks
forged a $3,900 draft ou the National Bank of the Rethrough the yard of another company in operation.
public of New York in the name of La Banque du cutting through the coal yard, the repair yard, and a
Peuple, Montreal, and they went to Rochester, where the portion of the coal chute. Held, a proper case for a
accomplice took the draft to the Flour City National preliminary injunction. Penn. Sup. Ct., Oct. 4, 1886,
Bauk, August 14, 1886, and deposited it. The next day Appeal of Pittsburg Junction R. Co. Opinion by
he drew ou it $2,500, of which he gave $2,000 to Elliot. Gordon, J. Trunkey and Clark, JJ., disseuting.
Both were arrested, and the accomplice turned State's evidence, mainly on which Elliot was convicted. The
General Term reversed the conviction on the sole NEW BOOKS AND NEW EDITIONS.
ground of nou-corroboration. The Court of Appeals
reverses the Supreme Court decision, and hold that the SHARSWood's LEADING CASES.
evidence given on the trial, that Elliot and the accomThe third volume of " Leading Cases in the Law of
plice witness were old acquaintances in New York; Real Property decided in the American courts, with
that they were seeu together at the time of the swin.
dle and for several days prior in Rochester aud Charnotes by George Sharswood and Henry Budd,” is at
lotte; that Elliot registered in Rochester under the hand, from the house of M. Murphy of Philadelphia. It contains the subjects of joint tenancy, coparcenary,
false name of "J. W. Massey, Jersey City," aud that
he had previously, on November 13, 1878, been contenancy in common, estates by entireties, merger,
victed in New York of forgery, and had served four devises and dedications to charities - mort main, title by descent, escheat, inviolability of legislative grants.
years therefor in Sing Sing, was sufficient corroboraIt includes among others the great cases of Vidal v.
tive proof to satisfy both the Criminal Code and the
trial "jury. --Judgment affirmed with costs—David Girard's Ex'rs., and Fletcher v. Peck. The work is
A. Scott and another, respoudents, v. Augustus L. the only one of the kind in this country, and is valu
Case aud another, appellauts. Judgment affirmedable not only on account of the intrinsic importance
People, respondent, v. Hanford West, appellant. of the subject but for the learning of the annotations.
Opinion by Andrews, J.; all concurriug. The appeal The notes in the present volume have been made by Mr. Budd. Occasionally they might well bave been
was by au Erie county milk vendor from a conviction
for selling watered milk. West declared the dairy law fuller, as for example, on the question of the effect of the married women's acts on tenancy by entireties, in
unconstitutional ip depriving him of his rights, liber
ties and privileges. --Judgment affirmed with costswhich we find no reference to the decisions in New
Johu Robinsou, respondent, v. Otto Huber, appellant. Hampshire, Iowa, and especially the case of Pray v. Stebbins, 141 Mass. 219; S. C., 55 Am. Rep. 462. The
Judgment and order affirmed on opinion given in matter in the notes is divided and arranged in a very
Rielly v. Delaware & Hudson Canal Company (102 N.Y. intelligent and logical manner.
383), with costs-Josephine Myers, respondent, v. Geo. S. Riley, appellant. All concur. - Return of remit.
titur requested, and when returned to be amended in STEWART'S NEW JERSEY DIGEST.
accordance with plaintiff's motion — Witthaus v. The third volume of Judge Stewart's Digest 18 just Schack. -Motion for reargument denied-Anderson published at Trenton, N.J. It comprises all the decis- v. Continental Insurance Company. Memorandum ions of the New Jersey courts from 1876 to 1887, and per Curiam; all concurring. -Motion to dismiss is a thorough piece of work, like all that comes from granted with costs--Baldwin v. Rood.-Motion to this iudefatigable haud.
dismiss grauted -Hyatt v. Dusenbery. Memorandum per Curium.
-Motion to strike appeal from calendar
granted-Willis v. Bellamy. COURT OF APPEALS DECISIONS.
THF.following decisions were handed down Tuesday,
June 28, 1887: Appeal dismissed with costs-Frank M. Jenkins, respoudent, v. John L. Putnam, appellant. Opiuion by Earl, J.; all concurring except Rapallo,J., who votes for affirmance.--- Judgment affirmed with costs--Caleb E. Whitaker, appellant, v. John M. Masterson aud others, respondents. Opinion by Earl, J.; all concur.
-Judgment affirmed with costs-Rebecca B. Martin, respondent, v. William F. Garrison, appellant.
- Judgment reversed, new trial granted, costs to abide event—Daniel Vail, respondent, v. Long Island Railroad Co., appellant. Opinion by Andrews, J.; all concur.-Judgment of the Supreme Court reversed aud that of Monroe Sessions affirmed; proceedings to be remitted to that court, with directions to enforce its judgment of conviction by recommitting the de
The ALBANY LAW JOURNAL, which has a happy kpack of touching amusingly on the humor which here and there shines through the dry and sombre monochrome of the law reports, has a collection of droll head notes, and he outdoes the reporter by suggesting a few useful ones on a similar pattern. He might add one to his collection - one we remember to have seen in the Practice Reports of the late Mr. Howard. The case was decided in an inferior court, and not in accordance with the reporter's sense of propriety or opinion of the law, we do not know which; and the first head--note he prefixed to it read as follows: “This little case shows what a Justice of the Peace can do." N. Y. Daily Register.
The Albany Law Journal.
pool law enforced for what it is worth. Why not?
ALBANY, JULY 9, 1887.
Vacation opens breezily in legal matters. The Supreme Court of the United States has been over
ruled! By the Court of Appeals of Texas. It CURRENT TOPICS.
would seem that justice of the peace, Dogberry
Stofer, of Kentucky, has escaped, run away to THE conviction of Jacob Sharp is the most im- Texas, got elected to the Court of Appeals, and
portant in this country since that of Tweed. essayed a more daring flight than the overruling of Both men belonged to the most dangerous criminal the highest court of a State. The Court of Appeals classes men of ability, influence and wealth, and of Texas, be it known, is a court of appellate crimof unscrupulousness and audacity. Both seemed | inal jurisdiction alone, and although of great anto have no moral sense, and believed the entire tiquity – twelve years — and a respectable authorcommunity made up of just such as themselves. ity in regard to murders, rapes, mule-stealing and Sharp is amazed at his conviction, stupefied, cannot such matters, has not been regarded as an oracle of understand how it comes about that a gentleman constitutional law. But now, in Ex parte Asher, and a man of fortune and power should be sent to it overrules the Federal Supreme Court in Robprison, put into striped clothes, have his hair bins v. Tacing District, and holds that a State cropped, and be set at hard mechanical work, just tax upon drummers from other States is valid. because he did what was very common and com- The court is good enough to say that “In monly winked at, although to be sure it was forbid- cases clearly involving the constitutionality and den by law. We have no sympathy with him. He validity of State laws with reference to the knew better, and he defied the law, tried bis Federal Constitution, the decisions of the Sustrength, was worsted, and there he is, where he preme Court of the United States clearly, certainly ought to be. It is a wholesome moral lesson, not to and unequivocally expressed upon the questions insay a sublime spectacle, to see a municipal community volved, are binding upon the courts of the States." rising in rebellion against its impudent, shameless, But the court continue: “Such decisions, no more corrupt rulers, and putting them at honest work for than the decisions of State courts, are or should be the people whom they have abused and defrauded. binding upon the latter, if in themselves unwarWe heartily wish that the same public opinion, ranted, assumptions of constitutional authority effectuated by similar official ability and devotion, innovations of Federal power, where such power had brought about a similar result in a flagrant does not and never was intended to apply and operand notorious case of bribery at the capitol a ate — and moreover where said decisions are directly few years ago.
Instead of that the newspapers in conflict with well-adjudicated cases of the laughed at the charge, and it was swept into the same court, which are not overruled, and which district attorney's waste basket. Great praise is due in addition to their equal authority are based upon to District Attorney Martine and his efficient assist fundamental and eternal principles of reason, jusants for their perseverance in most discouraging tice and right.” “ The doctrine announced in the circumstances, and for the signal success which Robbins case, and which is here relied on, stands their honest and intelligent efforts have achieved. without support in previous adjudications of the It is refreshing to see such proofs of faithful and court in which it was laid down, and this too withconscientious public service, and they should receive out overruling previous decisions of the same court not only cordial praise but imitation in other places. in diametrical opposition to it. The Robbins case We hope that this good work of enforcing the law -decided by a divided court
is in direct conwill not stop here. The enforcement of laws should | flict with a number of cases decided by the same not resemble a convulsion of nature an eruption court, and in which there was no division of opinof a volcano, an earthquake, a tidal wave, a cyclone; ion on the question. Under such circumstances should not result from a spasm of long-suffering we do not feel bound by the Robbins decision, and and outraged virtue wbich gradually comes to a not believing it to be the law of the land, we will head like a boil; but should be constant, steady not consider it of binding force upon us." Thus and a matter of course. There is something ludi- does the little bantam feather-weight essay to knock crous in the idea of a community submitting to out the great slugger! Thus does the adolescent notorious infractions of the law for a course of years, ram, with budding horns, gallantly butt the great “ nursing its wrath to keep it warm," like Tam patriarch of the flock! How astonished those misO'Shanter's wife, and once in ten years coming guided justices at Block Island and other cooling down on the offenders with a swoop, and then re- places will feel when they get this news! Sic semlapsing into slothful submission for another decade. per tyrannis, and the “lone star,” forever! So far We should now like to see the continued enforce- we had written in our first natural impulse of sym. ment of the saloon laws on Sunday, and to have pathy with the gallantry and pluck of the weaker the gambling-shops — at which even judges and party.
But now there comes over us a sudden lawyers of high degree play — shut up and kept sickening suspicion that the Court of Appeals of shut. We should also like to see that contemptible Texas has been making a goose of itself. Now
Vol. 36 — No. 2.
we do not mean to intimate that the Supreme them Sundays for the courts, as well as the public Court is right. Nor would we insinuate that it offices, but it was not done, and the courts remain is wrong. But it occurs to us that the law which unrestricted and unlimited by this law.” We beit has laid down in the Robbins case, and reit- lieve it was held that the old law had no application erated, is the law of the land, which all good citi- to courts. zens are bound to obey, and especially which all State courts are bound to bow to, however stiffly and THE EDITOR HAS THE CONCEIT TAKEN OUT OF Hmm. reluctantly. The Supreme Court may be wrong, but
(Fact — all but the last stanza.) who can overrule it in its interpretation of the
The editor turned his revolving chair, Federal Constitution? The Texas P. J. says the
Revolving a neat paragraph, decision is inconsistent with previous ones of the When out by the stairway he met a broad stare same court. Does he intend to be understood that
And heard a bucolical laugh. the Supreme Court may not overrule its own de- “Are you Irving Browne!" the visitor said; cisions? This action of the Texas court is pert,
"I am he," said the editor bland,
And graciously bent his ambrosial head, foolish, unseemly, not to say ridiculous. Let the
And extended his inky right hand. little court devote itself to demonstrating that a
“Your name I have honored for many a year," verdict of "guilly” is good, but one of “guity” is
The rustic replied, as he "
“shook; bad. Let the little court pull in its little horns, "And having some business that brought me up here, and take the law from its superiors, obediently if
I was curious to see how you'd look." not contentedly. Else it will some day find some The editor felt an unusual flame, justice of the peace defying its own awful author
Approaching a blush, and reflected,
"Here's a sensible man, and this is true fame, ity, and then it will know how sharper than a ser
But to hear it I never expected." pent's tooth it is to have a rebellious inferior.
And then a research of his pockets began,
In quest of a possible quarter,
But concluded to go to the near Delavan," Justice Dykman, of the New York Supreme
And treat to free lunch and cold water. Court, has deemed it necessary to consider the
“In the place where I live," that countryman said, question whether the Saturday half-holiday act pro
"There's a lawyer whose name's Irving Brown, hibits the holding of courts after noon on that day,
And I didn't suppose, till your sign I read,
There was one of that name in this town." and he concludes that it does not. He points out that “no law in this State has ever interdicted the hold- The editor rose with a choleric air,
And entreated that rustic full sore, ing of any court on a holiday," and that this law
And used some expressions which I do not dare does not profess to apply to courts, and embraces
To repeat, as he bolted the door. only the subjects of protesting negotiable paper and closing public offices of the State and counties. He observes: “Holidays are periods of relaxation and The tenth annual meeting of the American Bar amusement and exemption from labor, and it was Association will be held at Saratoga Springs, on the object of the law under view to enlarge their Wednesday, Thursday and Friday, August 17, 18 number and provide for their enjoyment. That and 19, 1887. The exercises will be as follows: end was obtained by considering the designated Wednesday morning. The president's address, by holiday as Sunday for all purposes of business in Thomas J. Semmes, of Louisiana; nomination and the public offices, and authorizing the protest of election of members; election of the general coundishonored paper the day before. The closure cil; reports of the secretary and treasurer; discusof the banks and public offices was thus secured, sion and action on report made in 1886, by the comand that released a large number of persons. Yet mittee on jurisprudence and law reform, on securing holidays have never been made non-juridical days, uniformity in the mode of settling estates of deceand there is no reason why they should be. It is of dents leaving property in several States. Wednes. great importance to have the courts open for suit- day evening.- A paper by Henry Jackson, of ors at all times, and no intention should be imputed Georgia, on “Indemnity the Essence of Insurance;. to the legislature for their closure without unequivo- Evil Consequences of Legislation Qualifying this cal language expressing such a design. The legis. Principle; " discussion upon the subject of the lature has declared this to be an act to designate the paper read; discussion and action on the report holidays to be observed in the acceptance and pay- made in 1886, by the committee on judicial adminment of bills of exchange, bank checks, and prom- istration, as to indeterminate sentences for convicted issory notes and relating to the closing of public criminals, Thursday inorning. The annual adoffices, and no design is expressed either in the title dress, by Henry Hitchcock, of Missouri; reports of or the text to embrace any other subject in this leg- standing committees; reports of special committees; islation, If the legislature entertained the purposes discussion of the reports, and action on report of abridging the days or limiting the times in which made in 1886, by the committee on jurisprudence courts could be held in this State, it would have and law reform, in regard to the use of the whipemployed plain and unequivocal language for the ping-post as a punishment for crime. Thursday accomplishment of that end. It would have been evening.- A paper by J. K. Edsall, of Illinois, on easy to restrain the courts upon holidays and make “The Granger Cases and the Police Power; ” discussion on the subject of the paper read; discussion to narrow their scope to what is expressed in them, and action on report made in 1886, by the commit- by the exclusion of what, but for the expression, tee on jurisprudence and law reform, in regard to would be implied. Thus is a lot, with no access to the appointment in all legislative bodies of a joint it save over the grantor's land, be conveyed with standing committee for the revision of bills, and as the express grant of a particular way, any way to the proper procedure in matters of special and which might otherwise be implied will be excluded. local legislation. Friday morning. - Nomination
Friday morning. – Nomination This is not the manner in which the defendant of officers; unfinished business; miscellaneous busi- seeks to have the maxim applied. His aim is to ness; election of officers.
raise rather than to rebut an implication. Indeed the amendment is not a grant. The first clause is
in effect a prohibition. It prohibits the manufacWe are informed by lawyers of this State that
ture and sale of intoxicating liquors for use as & Banks & Brother are offering to furnish them New
beverage, and the defendant contends that it York Reports at $1.50 per volume, express paid. The contract price to which they are entitled is only sale for other purposes. He seeks to reverse the
thereby impliedly licenses their manufacture and 98 cents over the counter, and $1.10 delivered by maxim, and apply it as if it read, the exclusion of mail or express. These prices however are cash.
one is the expression of another, or the prohibition
of one is the permission of another, instead of the NOTES OF CASES.
expression of one is the exclusion of another.'
Perhaps a prohibition to do a thing for one purpose 'N State v. Kane, Rhode Island Supreme Court,
may imply a permission to do it for other purposes
in some circumstances, but generally such an imamendment providing "the manufacture and sale plication is not warranted by any usage of the lanof intoxicating liquors to be used as a beverage nothing in the first clause of the fifth amendment
guage with which we are acquainted. We can see shall be prohibited, does give the right to manufacture and sell intoxicating liquors to be used
which warrants such an implication. The second otherwise than as a beverage. The court said:
clause is a command to the general assembly to “The purpose of the amendment is not simply to provide by law for carrying the first clause into ef
fect. prohibit the sale of intoxicating liquors as a bever
Of course if the general assembly had preage, but to prevent it. Any act therefore designed the command would confer by implication the
viously had no power to legislate on the subject, to carry the amendment into effect should be framed with a view of prevention. Now it seems clear to
power required for its own execution. But the us that an act which should only prohibit selling or
general assembly had power before the amendment
not only to prohibit the sale of intoxicating liquors keeping for sale for a beverage, leaving everybody free to sell for all other purposes, would be less ef
as a beverage, but also to restrict and regulate their fectual for prevention than an act which should
sale for other purposes. The two powers, if they
Why confine the right to sell to a few persons, selling may be called two, are not inconsistent. under strict regulations, and prohibited everybody
then should an express command to exercise the else altogether from selling; for if all persons are
one be tantamount to abrogation of the other? We permitted to sell for other purposes, we may be
see no reason why it should.” sure, from our experience of human nature, that many will use the permission as a blind, and will In Baines v. Geary, 57 L. T. Rep. (N. S.) 567, sell for a beverage under the guise of selling for T. G. agreed to enter the employment of C. B., a other purposes, and it will be exceedingly difficult dairyman, as milk carrier at weekly wages, the serto prove the deception. This consideration has al. vice to be determinable at two weeks' notice on ways had its influence in prohibitory legislation. either side. And T. G. undertook that he would The aim of such legislation has uniformly been to not “either during such service or after being disprevent selling for use as a beverage, and not to charged or quitting such service, serve or cause to prevent it for other purposes, and yet so far as we be served for his own benefit, or that of any other are informed, prohibitory laws have always been person or persons, either directly or indirectly, or framed so as to allow only a few to sell for other cause to be interfered with in any way any of the purposes, and to prohibit everybody else from sell- customers served or belonging at any time to the ing at all. For this reason alone therefore we said C. B., his successors or assigns." Afterward might well decide that the act under which the de-T. G. set up in business as a dairyman on his own fendant is complained of is not obnoxious to the account, and solicited and obtained the custom of objection interposed by him. We think it is not some persons whom he had served as carrier for C. open to the objection for still another reason. The B. Held, that a covenant in restraint of trade is defendant's argument rests upon the legal maxim, divisible in point of time, and will be enforced so expressio unius est exclusio alterius, which literally far as it is reasonably necessary for the protection translated signifies, the expression of one is the ex- of the covenantee; that the present covenant would clusion of the other. The maxim is often applied be reasonable so far as it prevented T. G. from in construing written instruments, particularly grants, serving any person who had been a customer of C.
B. during T. G.'s employment by him, and to that came clients of the plaintiff afterward, while the extent must be enforced. The court, North J., defendant continued his articled clerk. As the said: “It is argued, that unless the covenant in judgment of the court was very short, I must refer the case before me is limited to persons who were to the arguments of counsel. Mr. Bramwell for the customers of the plaintiff Baines at the time when defendant, who had demurred, contended that it was entered to, or at any rate, who became "such a covenant almost puts it in the power of the such during the period of the defendant's employ- plaintiff to exclude the defendant from all business ment, it would be too extensive, and that a cove- whatever, and it is much more extensive than can nant, the terms of which are too extensive, must be required for the protection of the plaintiff; there fail altogether. The terms of the covenant in this is no limitation as to time or space. Here he would case are, no doubt, wider than those of the cove- have been fully secured against the loss of business nant in Rannie v. Irvine, 7 Man. & Gr. 869. But it from the opportunities which he gave the defendant is quite clear that a covenant in restraint of trade by a covenant, that the defendant should not be is good if it does not go further than is necessary concerned for any one who had been the plaintiff's for the reasonable protection of the person who im- client before, or at the time of the defendant's beposes it. There is nothing illegal in such a cove- ing with him.
But it will be argued that nant, but it is considered unreasonable if it im- the covenant is good for a part, and that the good poses a larger restraint than is necessary for the part may be severed from the bad. Now first, the protection of the covenantee. The courts have contract is a whole, and every covenant on the one however seen their way to treat such a covenant as side is in consideration of every covenant on the divisible, and to enforce it to the extent to which other; and if any part be void the whole is void.' it is reasonable while declining to enforce that part He went on to argue that there could be no distincof it which is unreasonable. There are many re- tion on the ground that the contract was under seal. ported cases in which covenants in restraint of Mr. Cowling, for the plaintiff, argued, that “even trade have been held to be divisible as regards without separating the parts of the covenant there space. Price v. Green, 16 M. & W. 346." is no more protection than the particular profession case however was cited to me in which a covenant requires, the defendant being restricted only as to of this kind has been held to be divisible in regard persons, and not as to place or time. In the course to time. I postponed judgment in order that I of his argument Lord Denman, C. J. said: “The might see if any such case has been reported, and body of customers here may alter from time to time. I found the case of Nicholls v. Stretton, 3 L. T. Rep. Could you enforce a covenant prohibiting a man 0. S. 117; 7 Beav. 42. In that case the defendant, from dealing with such persons as you might name on being articled to the plaintiff, a solicitor, cove- from time to time?' Mr. Cowling then contended nanted that he would not during the five years of that the covenant is at least good so far as it conhis articles, nor at any time after the expiration of cerns the clients, who carried on business with the the term, either directly or indirectly, interfere or plaintiff at the time of making the indenture or intermeddle with or be concerned as attorney, agent, during the continuance of the articles; and the or otherwise, for any person who had already been, breaches are confined to these. It is true that when or who should from time to time thereafter become, any covenant, whether under seal or not, is in part or be the client or correspondent in business of or illegal, the whole contract fails. But that is differwith the plaintiff, or any partner or partners, he ent from the present case, where the contract is, not might admit to a share or shares with him, or any to do any thing illegal, but only to abstain from person or sersons to whom he might sell or assign certain acts, some of which a party cannot bind the whole or any part of his business or profession himself not to do but may still legally abstain from of attorney, solicitor, or conveyancer. Lord Lang- doing. In such a case the law will enforce such dale, M. R., held that the covenant was not too restrictions as the party can bind himself to.' Mr. extensive, and granted an interlocutory injunction Bramwell replied and the court took time to conto restrain the defendant from interfering or inter- sider their judgment. Lord Denman, C. J. delivmeddling with, or being concerned as an attorney ered the judgment of the court thus: “This case agent, or otherwise, for any client or correspondent must be decided in favor of the plaintiff in conof the plaintiff, or of the plaintiff and his partners, formity with Price v. Green in the Exchequer Chamin the plaintiff's business of an attorney, solicitor, ber.'16 M. & W. 346. That decision is precisely or conveyancer. A note to the report states that in point, and it shows that though the terms of the an appeal was presented from the decision, and a covenant are large enough to include all the persons case was directed to a court of law. Either the who might be clients of the plaintiff at any time, case, or an action for damages for breach of the still it was separable and was at any rate good as covenant, came before the Court of Queen's Bench regarded those persons who had been clients of the in Nicholls v. Stretton, 10 Q. B. 346. In that action plaintiff during the time in which the plaintiff was two sets of breaches of the covenant were relied on serving his articles with, him, and that the court by the plaintiff. The first was in respect of persons considered that, as regards persons who became who had been clients of the plaintiff before and at clients of the plaintiff after the defendant had the time of the defendant's entering into the cove-quitted his employment, the covenant would have nant; the second was in respect of persons who be- been bad. That exactly applies to the present case.