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The Albany Law Journal.

ALBANY, APRIL 10, 1875.


IT appears that examinations for admission to the bar in England are scarcely more satisfactory and thorough than they are in this country. According to the present regulations the Inns of Court provide for the examination, and the Law Times states that the examination papers require so small a knowledge of law that practically the examination affords no test of legal knowledge. The questions

put on all the required branches of legal study are only sixty in number. Twelve of these are designed to test the proficiency of the applicant in commonlaw doctrines. Of this class of questions eight require definitions of a contract, a bill of exchange and promissory note, a tort, a special indorsement and an indorsement in blank, murder, manslaughter, perjury and crime. Other questions are as follows: Illustrate the difference between an executory and executed, an express and implied contract? Is a contract obtained by fraud a valid one? Is a wife, servant, or son, who commits an offense, excused because the commission is ordered by husband, master, or parent? What steps are to be taken when a judge's ruling, at nisi prius, is objectionable in point of law? Eminent Queen's counsel superintend the examination, but the Law Times thinks this is open to the objection that they have no time to overlook it and are not specially qualified to conduct it, except by their readiness to do so. Our contemporary also remarks, that an amiable desire not to exclude men from the bar should not blind the benchers to the fact that, when an examination is set up as a test of the fitness of the aspirants, each examination is a trial not only for the applicants, but also for the profession to which they seek admission, and to exact no knowledge and require no information as a necessary preliminary to becoming a barrister, is a sure way of covering the legal profession with contempt.

A correspondent of the New York Herald has interviewed Mr. Elbert Herring of New York, who was born at Stratford, Conn., July 8, 1777, and is now in his ninety-eighth year. He studied law in New York with the "old oracle of law," Judge Samuel Jones, and was admitted to the bar in December, 1799, when the population of the city was scarcely fifty thousand. He was elected judge of VOL. 11.- No. 15.

the Marine Court in 1805, and in 1812 served as register, being the first register ever appointed in this State. Charles O'Conor studied law in his office, and James P. Allaine, the distinguished engineer, was his errand boy. At one time Mr. Herring was at the head of the Indian bureau at Washington and was intimate with Daniel Webster. He expressed the opinion that he was the oldest lawyer in the city and probably in the world. His career, though not remarkable in itself, is particularly noteworthy in connection with the varying phases of the profession during the last century.

The United States Supreme Court has decided the case of Bailey v. The N. Y. C. & H. R. R. Co., reThe lating to the taxation of scrip dividends. court decides the case against the company, holding that the interest certificates used by the Central road, payable at the pleasure of the company, are road before its consolidation with the Hudson river properly taxable under the act of 1868. This act

provides that dividends declared by a railroad company in scrip or money, due and payable to their stockholders as part of the earnings, profits, income or gains of the company carried to the account of fund or used for construction, are proper objects any of taxation. A divideni in scrip is subject to the tax whenever, and wherever, or to whatever person the same shall be payable. The scrip becomes operative and due within the meaning of the revenue act, when it is unconditionally declared, without containing any provision postponing its effect. This decision reverses that of Judge Wallace, who held that the scrip was not taxable.

The relative rights of attorneys and clients have been considered in two cases in New York recently. In the case of Porter v. Townsend, in the Superior Court, it was held that an attorney whose client claims a fund in the attorney's hands is not entitled to a jury trial as a matter of right, even when he sets up that the fund he retains belongs to him under an agreement. The client claimed that the attorney had received $31,963.81 and had only paid over $16,680.22. The client admitted that the services were worth about $4,000, and made a motion at special term that the attorney pay over the balance. The attorney answered, that, by agreement, he was to have half the recovery and insisted on a jury trial. The court, however, sent the case to a referee who found against the attorney, and the court ordered him to pay over. On appeal to the general term Judge Monell delivered an elaborate opinion, holding, that the legalizing of agreements for fees between attorney and client has in no way altered the control of the court over attorneys, and that the court may, at its discretion, either proceed on motion, or leave the client to his action against the

attorney. A similar decision was made in the general term of the Court of Common Pleas in the case of Fincke v. Cornell. The attorney was ordered, on motion in the court below and after a reference, to pay over certain funds. The attorney appealed on the ground that a suit should have been brought, but the court holds, that summary proceedings by motion are proper in such a case.

The trial of the Guicowar of Baroda, India, for attempting to poison Col. Phayre, was unique in every respect. The court-room, though devoid of Oriental magnificence, had an air about it indicating that a prince was being tried by princes and the representatives of the sovereign. The accused was deeply impressed with the humiliation of his position; and he looked askance at the chair in which he was to sit, and with an apparent effort seated himself. One of the judges wore a pink silk robe and scarlet turban and sparkling jewels; another was clad in black velvet enriched with gold embroidery; another was robed in white muslin, and another wore the clothes common to Europeans. The first business of the court was the reading of the commission of the judges in three languages, and the case was opened for the prosecution by Mr. Scoble. The defense was conducted by Sergeant Ballantine of England. The trial resulted in the disagreement of the commission.

The Supreme Court Reporters' bill has passed, and now only waits the Governor's signature. The Senate Judiciary Committee some time since amended the bill so as to provide for a meeting of the judges to make the appointment in Albany, on the last Wednesday of May next, and as thus amended it passed the Senate. The Assembly Judiciary Committee last week amended the bill by changing the date of meeting to the first Tuesday in June. On Wednesday a conference committee agreed upon the latter date, and in that form it was finally passed. The bill provides that the reporter shall be appointed by the judge designated to hold general terms, at a meeting to be held at the capitol, in Albany, on the first Tuesday of June; that he shall hold his office for five years; shall report not to exceed three volumes a year, of not less than seven hundred pages each, at a price not exceeding two dollars and fifty cents per volume. Copies of cases and points are to be furnished by the counsel for the use of the reporter, and copies of all opinions of the general terms are to be sent to him. It now only remains for the judges to appoint an energetic and competent reporter, for an ending of much of the confusion and contention that has for some time characterized reporting in this State. Backed by the judges, such a reporter can very soon put an end to any other series, either of the general

or special term, and that is precisely what is needed and precisely why a reporter should be appointed by the court. But if, on the other hand, the appointee lapse into the methods of the past official reporters of this court, private enterprise will again take the matter up, and there is even a possibility that those ambitious young men of the Bar Association Committee might realize their scheme. We have neglected to say that the Senate Judiciary Committee threw out the bill for incorporating the "Council of Law Reporting."

The troubles which frequently arise in regard to wills, receive fresh illustration in the case of Lord St. Leonard's will, which cannot be found. It having been surmised that it was buried with him in his dressing gown, it is thought probable that he will be disinterred to ascertain the truth of the conjecture. Singular vicissitudes attend wills. A will disposing of immense property was found in an old bedstead being taken to pieces; another will was found, eighteen years after the death of the testator, in a secret recess of a bureau, which had been sold at auction. It is a remarkable fact, as a lay contemporary observes, that eminent lawyers make a muddle of their own testamentary affairs. The will of Lord Westbury gave rise to troublesome litigation; and in a case before the English Probate Court a will was declared null on account of defects in the attestation clause which had been drawn up by a colonial chief justice. The will of a relative of an eminent judge was found to be fatally defective, although two learned judges had been concerned in drawing it up. As a general rule the fewer the wills made, the better. The law will dispose of property in the great majority of instances more impartially and justly than the testator.

The argument of Mr. David Dudley Field, before the Supreme Court of the United States last week, in the case of the United States v. Cruikshank, was very able and elaborate. This case, it will be remembered, involves the constitutionality of the Enforcement Act. The defendants were convicted under that act for conspiracy to prevent negroes from voting. The question was whether the new amendments to the Constitution conferred the power upon Congress to enact the law. Mr. Field contended that the amendments did not authorize such legislation. The amendments, he said, are to be construed with the other parts of the Constitution, and there are many limitations upon the choice of means for attaining an end beyond those which are expressed. They are implied from the nature of the government, the history of the country and the traditions of the people. He contended that the natural interpretation of the language of the new amendments did not justify the present legislation;

and that if the natural interpretation did justify it, as the language is susceptible of a different one, the latter must be preferred as that alone in which it is understood by the people. It might seem that the Fifteenth Amendment declared the right of citizens of the United States to vote; but that is an error. No right is guaranteed or asserted; discrimination only is prohibited. State inaction is no cause for Federal action. If, in consequence of the prohibition upon the States, Congress can exercise plenary

power over the subject, it can do the very things which the States are prohibited from doing. Congress can do nothing beyond providing judicial remedies in Federal courts for parties aggrieved. It cannot frame a code of privileges and immunities, defining the methods of enjoyment and providing penalties for their violation. Mr. Field's argument was a masterly exposition of constitutional law.

In Jeffries v. The Economical Mutual Life Insurance Company, decided this week in the United States Supreme Court, the doctrine of immaterial warranties in life insurance was sustained. Mr. Justice Hunt delivered the opinion, holding that the untrue answers of an applicant to the questions whether he

with so much bitterness and animosity through the Bar Association and the press. We commend to him the study of the character of Voltore in Jonson's drama "The Fox."


IN Riegel v. Wooley, 1 Weekly Not. Cas. 310, the
Supreme Court of Pennsylvania held that a con-
dition to a gift of personal property to a married
donor shall be paid out of the proceeds, does not
woman by her brother, that certain debts of the
render it less a gift as to the remainder, or voidable
on that account by the creditors of the donee's hus-
band. In Hick v. Keats, 4 B. & C. 69, 71, Bay-
ley, J., held that where money is advanced by a
parent to a child, the presumption is that such ad-
vance is by way of gift and not by way of loan. In
respect to conditional gifts, see Smith v. Dorsey, 38
Ind. 451; 10 Am. Rep. 118, where plaintiff's in-
testate who entered the military service during the
late war, and just before starting to the army said to
defendant, to whom he had previously loaned a gun,
"if I never return you may keep the gun as a pres-
ent from me." He never returned but died in the
service. Held, that the facts did not constitute a

was married or single, and whether he had before gift either inter vivos or causa mortis.
applied for insurance, avoid the policy when that
instrument states that the insurance is made on the
condition that all representations in the application
are true. The court holds that it makes no differ-
ence, that the answers which are untrue are imma-
terial to the risk or are unintentionally false.

The most curious part of Chief Judge Church's statement to the Tribune correspondent, relative to the attempt to identify him with the "canal ring," was the closing part:

Correspondent.-Have you noticed some newspaper attacks on the Court of Appeals and its judges? Judge Church.-Yes, I have. Correspondent.-Have you any idea who instigated it? Judge Church. Yes, it was Francis C. Barlow. Correspondent. Are you willing to state how you ascertained this? Judge Church.-Yes, from the writer; not directly, but through another person. Correspondent.-Have you any idea what induced this attack? Judge

Church.-I cannot of course know the motive. I

can only infer that he has taken advantage of the excitement on canal matters to vent his spleen against the court because he has happened to be unfortunate in his private and public litigations. Correspondent.-What do you think of it? Judge Church. It reminds me of my brother Grover's remark, which he often jocosely makes. He says that up in Allegany, when a lawyer gets beaten in court, he has two remedies. One is to go down to the tavern and swear at the court, and the other is

to take an appeal. As there is no appeal from this court, Mr. Barlow seems to have taken his only remedy.

Mr. Barlow was formerly Attorney-General of the State, and was one of those "busy reformers" who, a few years ago, assailed Mr. David Dudley Field

In Murphy v. Southern Life Insurance Company, the Supreme Court of Tennessee held, that where a local agent of a life insurance company waived the forfeiture of a policy arising from the payment of only a portion of an annual premium when due, the waiver was binding on the company, although he was acting in excess of his special authority and in violation of his instructions, such waiver being within the apparent scope of his employment as agent. This case was distinguished from Bouton v. The American Mut. Life Ins. Co., 25 Conn. 342, where the court denied the authority of the agent to waive payment of premium in advance before the policy took effect, because there was no other evidence than the terms of the policy as to his agency. The powers of local insurance agents were discussed at considerable length. Marky v. Mutual Benefit Life Ins. Co., 103 Mass. 78, was relied upon for the position that the authority of an insurance agent must be determined by the nature of his business and the apparent scope of his employment. In Flanders on Insurance, 104, it is said that the general tendency of the cases is that officers and agents of insurance companies may waive the usual condition that the premium must be paid before the policy shall be effectual, as well as any other condition in the contract, and if the assured is allowed to act upon the confidence of such waiver, the insurer is estopped from denying the fulfillment of the condition." See Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305.



HE recent attacks, by the newspapers, upon members of the judiciary in England and in this country are evidences of a disposition on the part of the lay press to abuse its right of free speech, if not to trample upon justice itself. We have heretofore endeavored to show the proper relations of the press and the bench; but such exhibitions of unjustifiable and unlicensed censure, as those we have just seen in the newspapers, call for additional remarks upon the subject. And it may be well to premise that, in our criticism, we do not include the entire press of the country. For the greater portion of the newspapers seem to understand their rights and duties when dealing with matters pertaining to the administration of justice. It may be well also to state our unqualified approval of a temperate and enlightened discussion of the merits of judges and of the soundness of their decisions. It is, too, one of the legitimate functions of journalism to expose venality and fraud whether in the administration of legislative, executive, or judicial affairs. But it

should be borne in mind that one of the essential characteristics of the administration of justice is that it be free from reproach and suspicion. When the newspapers of any country begin to breathe suspicion and imputations upon the names of their judges, they must be first sure that they are right in their assertions and animadversions. It is a most reckless matter for a journal to impute unfairness or venality to a member of the judiciary without ascertaining, beyond reasonable doubt, the truth of the charges. The ease and freedom with which charges of judicial corruption and bias can be made by the newspapers, and the difficulty which attends the refutation of such charges is another important consideration. Judicial etiquette requires that the judge should practically shut himself up from the ordinary controversies of men; for he does not know what questions may come before him for judicial determination. To engage in every newspaper controversy about his fitness for office, or his freedom from bias on great public questions of whatever character, has a tendency to compromise the dignity of the judicial office and lower the administrators of justice in the eyes of the people. A judge seldom or never can defend himself from newspaper attacks with good grace or good success. The absolute unfairness and inequality of an attack, by a respectable journal, on a respectable judge is perfectly patent to all who have considered the matter.

There is still another aspect of this question which is worthy of attention. There are some newspapers which think judges carry with them, upon the bench, all the old associations and interests which they may have espoused during their career at the bar. If a judge has been counsel for an extensive concern; if he has been identified with any political

party or movement, there is a constant endeavor to slur his motives and judicial acts when cases involving similar interests or possessing quasi-political aspects come before him for decision. Unquestionably a judge may be biased by his antecedent career as counsel or politician; but there is no presumption to that effect, and the conclusion should not be drawn without irrefragable proof. If it were true that judges who have been politicians or counsel for extensive commercial or industrial organizations cannot act with impartiality when matters connected with such organizations, political, commercial or industrial, come before them for adjudication, then we have no hope of ever securing a competent and impartial judiciary. For the very lawyers who, by their abilities and attainments, are entitled to the highest seats on the bench, are frequently identified with politics and with great industrial and business interests. No one advocates more ardently than ourselves the withdrawal of the judiciary from politics and from business; but we are not so impracticable as to attempt to secure a judiciary whose members were not formerly identified with any of the great political, commercial and social forces which move the body politic.

It is hardly necessary to state, that there never was a more unfair and discourteous, if not inconsiderate, attack by the newspapers than that of some of the New York and New England journals, upon the character of Chief Judge Church and other members of our Court of Appeals. The present members of this court stand as high among the profession as any of those who have constituted it from its foundation nearly thirty years ago. We never have had a more able, industrious and impartial appellate court, as a whole and in respect to its individual members than now; and it is a disgrace to journalism that the imputations, which have been thrown out by certain journals on such flimsy excuses, have been allowed to go without any thing more than a passing rebuke from the great majority of better-informed and better-tempered journals. And it is a humiliating sight when the Chief Judge of the highest court of this State is compelled, by the force of public sentiment, to make an express denial of such baseless charges. For the sake of the dignity and sanctity of the judicial office, and for the sake of the intelligence and courtesy of journalism, we hope that this matter will not occur again.

The medal for legal studies, the gift of the Chancellor of the University of Cambridge, England, has recently been awarded to Courtney Stanhope Kenny, law scholar of Downing college, who was admitted to rolls in 1869. Mr. Kenny has received several honors. In 1871 he was proxime accessit for the Whewell scholarship of International Law, and he was senior in the last Law and History Tripos. In 1874 he obtained the first Winchester reading prize, and was elected president of the Cambridge Union Debating Society.



ORD CRANWORTH, in delivering his opinion in Rylands v. Fletcher, Law Rep., 3 H. L. 330, laid down the following principle: "If a person brings or accumulates on his land any thing which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been and whatever precaution he may have taken to prevent the damage."

In that case water from a reservoir artificially created, flowed through some passage apparently filled up and long disused, into the plaintiff's mine. The Exchequer Chamber held, reversing the judgment of the Court of Exchequer, that the defendant was liable for the damage caused. Mr. Justice Blackburn, delivering the opinion of the court, said: "The question of law, therefore, arises what is the obligation which the law casts on a person who, like the defendant, lawfully brings on his land something which, though harmless while it remains there, will naturally do mischief if it escape out of his land? It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbors; but the question arises whether the duty which the law casts upon him under such circumstances is an absolute duty to keep it in at his peril or is, as the majority of the Court of Exchequer have thought, more a duty to take all reasonable and prudent precautions in order to keep it in, but no more;" and he reached the conclusion that the duty was absolute. This conclusion the House of Lords affirmed.

Referring to this case and to Smith v. Fletcher, 20 W. R. 987, and citing this proposition, Mr. Commissioner Earl said, in Losee v. Buchanan, 51 N. Y. 476; S. C., 10 Am. Rep. 623: "It is sufficient to say that the law, as laid down in these cases, is in direct conflict with the law as settled in this country." In this the learned Commissioner erred — and the error arose from not observing with sufficient care the distinction made in Rylands v. Fletcher between natural and artificial causes of injury. On this point Lord Cranworth said: "If water naturally rising in the defendant's land had by percolation found its way down to the plaintiff's mine through the old workings and so had impeded his operations, that would not have afforded him any ground of complaint. But this is not the real state of the case. The defendants, in order to effect an object of their own, brought on to their land a large accumulated mass of water and stored it up in a reservoir. The consequence of this was damage to the plaintiff, and for that damage, however skillfully and carefully the accumulation was made, the defendants, according to the principles and authorities to which I have adverted, were certainly respon

* * *

sible." The cases cited by Mr. Commissioner Earl, as authorities for his assertion, did not either notice the distinction or were themselves cases of

injury from natural causes.

The question was squarely presented in Wilson v. City of New Bedford, 108 Mass. 261; S. C., 11 Am. Rep. 352. There the defendant built a reservoir for the purpose of supplying the city with water on land sold to them by the plaintiff for that purpose. Water from the reservoir percolated through the soil and injured plaintiff's adjacent lands. The defendants were held liable for the damages. The doctrine of Rylands v. Fletcher was cited and approved.

So in Cahill v. Eastman, 18 Minn. 324; S. C., 10 Am. Rep. 184, the case of Rylands v. Fletcher was very emphatically approved and followed. In that case defendant excavated a tunnel in his own land extending under the bed of a stream. The pressure of the water having broken in the roof of the tunnel, the water rushed in and through the tunnel and undermined plaintiff's land. The court held in a very elaborate and careful opinion that the defendant was liable for the damage occasioned without proof of negligence or unskillfulness on his part.

In Losee v. Buchanan, above cited, the defendants owned and were operating a steam boiler in their mill, when it exploded and injured the plaintiff 's adjoining premises. The court held that the defendants were not liable in the absence of proof of negligence.

The opinion in that case, after referring to Rylands v. Fletcher, as we have above stated, says: "In conflict with the English cases is a class of cases in reference to damage from fire communicated from adjoining premises." But it is to be observed with regard to these cases that they have been largely, if not entirely, controlled by the statute (6 Anne, ch. 3, § 6, as amended by 14 Geo. III, ch. 78, § 76), which has generally been regarded as a part of our common law. Again, as to fire communicated by engines, etc., in relation to which Mr. Commissioner Earl cited some illustrations, there is this to be said that the principle that a man in exercising rights which belong to him may be liable without negli. gence for injury done to another person has been held inapplicable to rights conferred by statute. This distinction was specifically made in considering Rylands v. Fletcher, in Madras Railway Co. v. The Zeminder, 30 L. T. R. 771, 10 A. L. J. 150, and was acted on in Vaughn v. The Taff Vale Railway Co., 5 H. & N. 679, where a railway company was held not responsible for damages from fire kindled by sparks from their locomotive, in the absence of negligence, because they were authorized to use locomotive engines by statute.

Whatever may be thought of the decision in Losee v. Buchanan, the opinion itself is not entitled to great consideration. We are able in the space at our command only to hint at its shortcomings, but we have said enough to show that it is vulnerable.

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