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The Albany Law Journal.

ALBANY, MAY 15, 1875.


port or place within the jurisdiction of any foreign State or sovereign, by any person belonging to the company of said ship, or any passenger, on any other person belonging to the company of said ship, or any other passenger, the same offense shall be cognizable and punishable by the proper Circuit Court of the United States, in the same way and manner and under the same circumstances as if said offense had been committed on board of such ship or vessel on the high seas, and without the jurisdiction of such foreign or sovereign State. This provision is not embodied in the United States Revised

THE newly-appointed Attorney-General will take Statutes, and the repealing clause is such that all prepossession of his office on Saturday of this week. He has been in Washington for several days, making arrangements for his entrance on the performance of his new duties. It seems to be generally understood that Mr. Pierrepont will make a thorough and general change in the administration of the department of justice; and we have good reason to believe that the important duties of the position will be discharged in a manner more satisfactory and efficient than for some years back. The resignation of Assistant Attorney-General Hill will take effect on Saturday, and there are a large number of applicants for the position. His successor has not yet been designated.

In the case of Trowbridge, adm'r, v. The Commissioners of Taxes, the Supreme Court general term of the first department has rendered an important decision, involving the right to tax stock of foreign corporations held in this State. It was held error to include in the assessment the stock of corporations created by and under the laws of other States. Such corporations, it is to be presumed, are taxable and taxed in their respective home-States to the amount of their capital stock. The stock certificates in such corporations, held by individuals residing in this State, are simple representatives of capital or property employed in business in other States, the title to which is controlled by, and vested in, the artificial persons created by, and residing in, such other States. It was further held that stock certificates in foreign corporations are not themselves property, but evidences of rights to be possessed, enjoyed and enforced in conformity with the laws of the State which created the body corporate. The property of the corporation, whether real or personal, is not within the State, and does not come within the test of taxability.

It is said that a strange and unfortunate defect has been discovered in the laws concerning crimes on shipboard. By the act of March 3, 1825, it was provided that if any offense shall be committed on board of any ship or vessel belonging to any citizen or citizens of the United States, while lying in a VOL. 11.- No. 20.

vious statutes are void and unenforceable. The consequence is, it is claimed, that there is no remedy where a sailor or passenger on board of an American ship in a foreign port assaults, robs or murders another sailor or passenger, and where the perpetrator of the deed escapes to this country, the federal courts being powerless to punish him, because the Revised Statutes have deprived them of the jurisdiction conferred by the act of March 3, 1875. The New York Tribune states that a few days ago a sailor, accused of assaulting an officer of his ship in a South American port, was before Commissioner Shields, but it was held that the Commissioner had no jurisdiction, and the sailor was released.

One of those remarkable cases of judicial longevity which sometimes occur in England and this country was that of Judge Willard Hall, of Delaware, who died on Monday, in his ninety-fifth year. For forty-eight years he was judge of the United States District Court of Delaware, having resigned his judgeship in 1871. He was born in Massachusetts in 1780, and graduated at Harvard College in 1799. He removed to Delaware in 1803, and was appointed, in 1823, judge of the United States District Court by President Monroe. Besides his extensive and able judicial services, he assisted in the revision of the State Code in 1829, drafted the school system in 1830, and was an active member of the Constitutional Convention of 1831. We do not recall any instance where a judge has held a single position so long as Judge Hall occupied the United States district judgeship. His career shows that extensive and continuous judicial service is not inconsistent with great longevity.

A case came before one of the courts in New York city recently, involving the right of sewing machine companies to reclaim machines for non-payment of installments of the purchase-money without refunding the amount already paid. It seems that the Howe Sewing Machine Company, like many other companies, in selling their machines, make it a condition that whenever payment is to be made by in

stallments, the machines are to be considered as leased, and the purchasers are to forfeit all the money paid upon a failure to pay any installment when due. The plaintiff in the case was a widow who brought suit to recover $65 that she had paid on account of a sewing machine which was valued at $70, but which was taken from her because the last installment of $5 was not paid when due. When the machine was taken from her she offered to pay the $5 which was overdue, but this was refused. The plaintiff also denied that the signature to the contract of sale, including the forfeiture, was hers. The judge, in deciding the case, said, that sales of this character, with the right to take the machines back by force, when nearly the full value has been paid, without refunding what has been paid or any part thereof, are contrary to public policy, and unjust and oppressive to a deserving class of people. Judgment was, therefore, given for the plaintiff, and the $65 was paid over.

In the case of Ann Eliza Young v. Brigham Young, Chief Justice Lowe, of Utah, has rendered a decision denying an attachment against the defendant to compel payment of $500 per month alimony, pendente lite, as awarded by ex-Chief Justice McKean. The decision proceeds on the ground that, in cases of divorce, alimony cannot be allowed unless a valid marriage is either first admitted or proved. The defendant had alleged in his answer that the marriage in question was a polygamous one, and the allegations, not being denied, must be taken as true. The Chief Justice said it would be strange, if, under these circumstances, it could be imposed upon a court of equity to direct or enforce payment of alimony, and thus bestow apparent, if not, indeed, real, sanction of the law upon a practice which is hostile to the civilization of the age, and which the penal statutes of the land visit with punishment. It was obvious, at the outset, that Judge McKean's allowance of alimony could not be sustained.

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The Law Magazine and Review, in speaking of Sir Henry Thring, the author of the pamphlet on the 'Simplification of the Law," says, that no one has had greater experience in the drafting of bills in parliament than Mr. Thring. It is stated, in Mr. Thring's pamphlet, that the statute law of England is comprised in about 100 octavo volumes, containing more than 18,000 acts of parliament, a considerable portion of which is obsolete, and another portion of which relates to local and private matters, The "reports" contain the judicial decisions through a period of more than 550 years. In 1866 they consisted of 1,308 volumes, and they increase with great rapidity. In 1866 the number of reported common-law cases was 60,000; and the number of

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equity cases was 28,000. Sir Henry Thring is of the opinion, that in order to properly simplify the law a code is essential; that a code is the most complete form in which the law of a country can be presented and the ultimate aim of all law reform; but that the bulk of English law is so vast that it does not admit of being codified, as a whole, until it has previously been collected, sifted and put in form adapted to codification. He then proposes a scheme the object of which is to consolidate the existing statute and adjudicated law; and urges upon all classes the policy of the simplification of the law.

The Court of Commissioners of Alabama Claims, which is now in session in Washington, is transMr. acting its business with much rapidity. Creswell, of counsel for the United States, is reported as saying that the majority of claims filed involve large sums of money, but that the aggregate of awards will not be so great as to consume the whole $15,000,000 paid by Great Britain. The surplus, if any, will remain as a fund from which congress may direct payment of other claims arising under the treaty of Washington. But if the sum awarded to the claimants should exceed the amount of the Geneva award, the amounts will be distributed ratably among those in whose favor particular awards shall have been made. The court has decided several cases in which damages for injuries to the person were claimed. These injuries were received in consequence of the capture by the confederate vessels of the ships on which the claimants were. The court held that it had no jurisdiction of claims for damages of this character, it could only entertain claims for injuries to property.

The Court of Commissioners of Alabama Claims has also decided several other important questions. Among these is a question relating to "prospective profits," which arose in the case of the whaleship "Splendid." She was chased off the fishing grounds by the Alabama and prevented from returning in time for the "season's catch." The claimant estimated that if the voyage had not been interrupted a profit of $50,000 would have been realized; and a judgment was claimed for that amount, with interest. The court held that the damages were not such as "directly resulted" from the acts of the Alabama, and that the claim could not be entertained, The existence of this court terminates by limitation of the statute creating it, on July 22, 1875, but the President has power to extend the term of its existence six months longer in case the business before the court cannot be thoroughly disposed of. It is thought that it will be found necessary so to continue the term on account of the large number of claims and the importance of the questions involved.

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violation of the internal revenue laws. The defendant was originally arrested on a warrant issued by a United States commissioner upon a complaint under oath. The information was afterward filed by the district attorney, by leave of the court, and the defendant, after pleading guilty, moved in arrest of judgment. The fifth amendment to the Federal Constitution provides, that "no person shall be held to answer for a capital or otherwise infamous crime unless upon presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger." Judge Dillon, who delivered the opinion, said: "The offense charged against the defendant is not a 'capital or infamous crime.' The words 'infamous crime' have a fixed and settled meaning. In a legal sense they are descriptive of an offense that subjects a person to infamous punishment or prevents his being a witThe fact that an offense may be, or must be, punished by imprisonment in the penitentiary does not, necessarily, make it, in law, infamous. 1 Bish. Cr. Law, sections 70, 644; Rex v. Hickman, 1 Moody, 34; Commonwealth v. Shaver, 3 Watts and Serg. 838; Russel on Crimes, 126, 1 Greenl. Ev., sections 372, 373; People v. Whipple, 8 Cow. 707; United States v. Shephard, 1 Abb. U. S. Rep. 431, 439." "The constitutional provision leaves all offenses open to prosecution by information, except those which are capital or infamous, and there is no enactment of congress preventing a resort to this mode of procedure. On the contrary, there are provisions in several acts of congress which imply that informations may be filed for criminal offenses. 1 Stats. at Large, p. 98, sections 7, 32; 2 id. p. 290, section 3; 3 id. p. 305, section 179; 14 id. p. 145, section 179." "And it has been several times expressly adjudged that offenses not capital, or otherwise infamous, may be prosecuted in the federal courts by information. United States v. Waller, 1 Sawyer's C. C. 701 (Field and Sawyer, JJ.); United States v. Shephard, Abb. U. S. Rep. 431 (Withey, J.); United States v. Ebert, 1 Cent. Law Jour. 205 (Krekel, J.). And such seems to have been the opinion of Justice Story. United States v. Mann, 1 Gall. C. C. 3; 1 id. 542, 554, and see Walsh v. United States, 3. W. & M. 341; Bish. Crim. Prac., sections 604, 611; Contra, United States v. Joe, 4 Ch. Leg. News, 105. In The United States v. Isham, 17 Wall. 496, the United States v. Buzzo, 18 id. 125, the proceeding by criminal information does not seem to have been

questioned in either court. See, also, Territory of Nebraska ex rel., etc. v. Lockwood, 3 Wall. 296, 532; Stockwell v. United States, 17 id."

In Illinois Central R. R. Co. v. Godfrey, 14 Am. Law Reg. (N. S.) 290, the Supreme Court of Illinois considered the liability of a railroad company for injuries done by a locomotive to a person walking along the track. The plaintiff was traveling on the track, not for any purpose or business connected with the railroad, but for his own convenience as a footway. It appeared that citizens had been in the habit of passing over the railroad, but the company had not seen fit to enforce its right to put people off its premises. The court held that no right of way had thus been acquired by persons using the track for their own convenience. A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner to provide against the danger of accident. Sweeney v. Old Colony & Newport R. R. Co., 10 Allen, 373; Hickey v. Boston & Lowell R. R. Co., 14 id. 429; Phil. & C. R. R. Co. v. Hummell, 44 Penn. St. 375; Gillis v. Penn. R. R. Co., 59 id. 129. In the present case it was held that the company is only liable for wanton or willful injury. But where the negligence complained of consists in not ringing a bell, or blowing a whistle, or in not slackening speed-the attention of those in charge of the engine being directed to a train on another road near by, instead of forward on the track—this will not be sufficient to warrant a recovery by plaintiff. See The Aurora Branch R. R. Co. v. Grimes, 13 Ill. 585; Cal. & Chi. R. R. Co. v. Jacobs, 20 id. 478; St. L. A. & T. H. R. R. Co. v. Todd, 36 id. 409; Chi. & Alton R. R. Co. v. Getzner, 46 id. 74; Shearm. & Redf. on Negligence, §§ 25-36; 1 Redf. Law of Railways, 464-568; Tonawanda R. R. Co. v. Munger, 5 Denio, 255.

In Washington Life Ins. Co. v. Schaible, 1 Weekly Not. Cas. 369, the Supreme Court of Pennsylvania considered the admissibility of photographs in evidence. The action was on a life insurance policy issued October 16, 1871. The application contained the question "has the party consumption," etc.? The answer was "No." The insured, a female, died October 24, and the defense sought to show that she died of consumption, the post-mortem examination revealing the fact that her lungs were filled with tubercules. Plaintiff rebutted by evidence that the death of the insured was very sudden, and that she was attending to work with every external appearance of health until within two or three days of her death. The plaintiff also offered in evidence a colored photograph of the insured, taken a short time before her death, which, several witnesses testified, was a good likeness. This evidence was admitted under objection, and the court on appeal sustained the ruling.


PARSONS says: "So too if one party, without

the fault of the other, fails to perform his side of the contract in such a manner as to enable him to sue upon it, still, if the other party have derived a benefit from the part performed, it would be unjust to allow him to retain that without paying any thing. The law, therefore, generally implies a promise on his part to pay such a remuneration as the benefit conferred upon him is reasonably worth, and to recover that quantum of remuneration an action of indebitatus assumpsit is maintainable." (2 Contracts, 35.)

as for Oxendale v. Wetherel, the only attention he pays it is to say that it "is as exceptionable and as repugnant as the case decided by Lord Hale." This is surely very slender reason for disapproving the common law of England, sanctioned by so intelligent a court as that of Massachusetts, but it is all that seems to be given, and has been blindly followed.

Now it is not the policy of the law, except under peculiar circumstances, to compel men to keep their contracts, but rather to render them liable in damages for a breach. And even in cases where men break their contracts, the law will not punish them to the uttermost, but only to an extent sufficient to indemnify the injured party. As was said by Judge Denio, in a case to which we shall refer hereafter: "The law no doubt intends to discourage men from break

The doctrine of the text would seem eminently reasonable; it is the law of England, of Massachu-ing their engagements, but this is not generally acsetts, and several other States; but it is not the law of this State. The leading case in England is Oxendale v. Wetherel, 9 B. & C. 386. This was an action to recover the price of one hundred and thirty bushels of wheat delivered on a contract for two hundred and fifty bushels. Lord Tenterden said, that if the rule contended for by the defendant were to prevail, it would follow that if there had been a contract for two hundred and fifty bushels, and two hundred and forty-nine had been delivered to and retained by the defendant, the vendor could not recover, because he had not delivered the one bushel. The court, in this case, said that no action would lie for the part delivered before the expiration of the time appointed for the delivery of the whole, because the vendee might, within that time, return the part delivered if the balance were not delivered; but if he retain the part delivered, after that time has elapsed, the vendor may recover for that part, without delivering the balance. This is the settled rule of England. This doctrine was adopted in Massachusetts at an early day. in Bowker v. Hoyt, 18 Pick. 555, where it was said that the vendee's retention of the part, after the vendor's refusal to deliver the residue, amounts to a severance of the entirety of the contract. Parsons remarks upon this: "We apprehend that a similar rule would be adopted by a majority of the courts of this country."

The rule thus laid down was summarily rejected and disapproved at an early day in this State, in Champlin v. Rowley, 13 Wend. 258, and the doctrine of that case has been uniformly followed among us. The opinion of Judge Nelson, in that case, it must be confessed, is very inconclusive and unsatisfactory. The nearest approach to a reason for the doctrine enunciated is the following: "The case falls within principles familiar in this court, which inculcate the observance of good faith in the fulfillment of contracts." His honor disposes of an early case decided by Lord Hale, which was followed in Oxendale v. Wetherel, by saying that Judge Spencer had pronounced it "a very unreasonable decision." And

complished by visiting them with a penalty beyond the damages sustained by the party injured." Take for example the case of one who contracts to give another employment for a year, but who at the end of six months, without excuse, discharges the employee. The law will not tolerate the latter in sitting idle during the balance of the term, and give him judgment at its expiration for the whole year's wages. The employer may show, in mitigation, that the employee obtained, or might have obtained, employment elsewhere, and will be compelled to pay only such damages as the employee has actually suffered by reason of a smaller remuneration. Otherwise, we should have the unreasonable rule that a servant may obtain employment equally or even more remunerative elsewhere, and yet have a cause of action against his first master also for his whole year's wages. This would prove thriving business for the servant, especially if he could manage to get himself turned away by several masters. The law tolerates no such absurdity. It will indemnify the injured party for his actual damage; nothing more. The same policy is apparent in the disinclination of the law to enforce covenants for liquidated damages, where the agreed sum is evidently in excess of the actual damage; and in the persistent leaning of the courts to construe such covenants as mere penalties, warranting a recovery for only the actual damage.

Now to apply the same benevolent principle to the case of a sale of goods. If one contracts to deliver two hundred and fifty bushels of wheat, but delivers only one hundred, and the vendee retains the one hundred bushels, it would seem equitable that the vendor should have pay for the quantity delivered, and should pay damages for not delivering the balOtherwise the vendee might gain a much larger measure of damages than he is entitled to, by getting the one hundred bushels for nothing. We believe it is a general principle, that a party wishing to rescind a contract must put the other party in the same position in which he stood at first. So it seems to us, if the vendee does not intend to pay


for the quantity delivered, he should return it, or notify the vendor of such intention.

The doctrine which we advocate is the only one that does equal justice. It compels the vendee to pay for what he receives, and the vendor to indemnify him for his failure to deliver the balance. Indeed, we do not know that it is at all inconsistent with the doctrine of Champlin v. Rowley, that the vendee may not only refuse to pay for what he has received, but may also maintain an action of damages for failure to deliver the rest. This would be | dealing more harshly with the failings of human nature than would be convenient or appropriate, except in an utopia.

The law is always struggling against its own inconsistencies and inequalities. So the result of the New York doctrine on this subject is, that the courts will always strain a point to make such contracts severable, so as to authorize a recovery for a part performance; and here again our courts, and those of England, are amusingly at variance. In Champion v. Short, 1 Camp. 53, where the contract was for "half a chest of French plums, two hogsheads of raw sugar and six hundred lumps of white sugar, to be all sent down without delay," Lord Ellenborough said: "Where several articles are ordered at the same time, it does not follow, although there be a separate price fixed for each, that they do not form one gross contract. I may wish to have articles A, B, C and D, all of different | sorts and of different values; but, without having every one of them, as I direct, the rest may be useless to me." Still, the defendant was held for the plums and raw sugar, although the white sugar was not delivered. Now Judge Denio, in Tipton v. Feitner, 20 N. Y. 423, the case to which we alluded above, practically holds the contrary. There the. plaintiff, in one agreement, contracted to deliver forthwith a quantity of dressed pork to the defendant, for a certain price, and also to sell him, at a different price, upon arrival, a number of live hogs then on the way and expected in a few days, no stipulation being made as to the price of payment for either. The pork was delivered, but the hogs were not. A recovery for the price of the pork, subject to recoupment for damages for the nondelivery of the hogs, was sustained; the court saying it is a question of intention whether a contract is severable or entire. Inasmuch as this intention can be derived only from the character of the contract, we do not see why the contract in Tipton v. Feitner is any more severable than that in Champion v. Short. Plums and sugar naturally go together, but no more naturally than dressed pork and live hogs. Judge Denio saw the harshness of the old cases and distinguished them. In speaking of the case in which Judge Spencer gave the opinion to which we have before alluded, he says: "This dictum, taken broadly, would always preclude a party


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from recovery for any thing done under a contract where he had himself violated any of its provisions; " but, he continues, this was the case "of a vendee in an executory contract for the purchase of land, who had paid a part of the price, and refused, without cause, to make the final payment and receive a deed." He distinguishes Champlin v. Rowley by saying that, by the very terms of the contract, the delivery of the whole was a condition precedent to the final payment - a feeble distinction, for, with rare exceptions, delivery is always a condition precedent to payment. In this same case Judge Selden, while he recognizes, seems to lament the doctrine under discussion, and says; "It is not surprising that we find it so frequently said that constructions, productive of such conditions, are not to be encouraged," and that "courts are to see that such was the intention of the parties before they are held to so rigid a rule."

It seems to us, therefore, that while the case of Tipton v. Feitner is a sound decision, it is also indicative of the internal and unconscious protest of the judicial mind against the rigidity of the case of Champlin v. Rowley and kindred decisions. The latter case is a curious instance of the way in which much of our law was established, even when contrary to the law of England, and other of our States. It must be admitted, that in several important points, our State stands alone, and this is due to the blind reverence with which the dicta of a few of our great early judges have been received and followed without much examination.


TWO events of unusual importance relating to professional fidelity have recently occurred — the one in England and the other in the United States. It is considered one of the sacred principles of the legal profession that matters which come under the cognizance of its members, while acting in the professional capacity, are not to be divulged or made use of in any but a professional way. A violation of this principle seems to have occurred in the case of Sir Henry James who, as member of the House of Commons, has initiated an inquiry into the manner in which foreign loans are introduced into England. There were undoubted abuses in the foreign loan system, but the previous professional connection of Mr. James with it rendered it exceedingly unfortunate that he should institute an attack upon it as a member of parliament. And the question has been largely discussed in English legal circles whether Mr. James has not only acted in bad taste but also in bad faith. The circumstances which suggested that he was availing himself of information received as counsel to institute a public and legislative inquiry, were these: In May, 1874, he was engaged as counsel in a suit brought against

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