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counsel in England, but to keep them in their pay, and, to a large extent dependent upon them for their income, justice would be administered among us in a very different spirit from that in which it is administered at present."

NOTES.

The Central Law Journal says that when the convention which framed the present constitution of Missouri was in session, Theodore Tilton telegraphed to the convention: "Give the ballot to those who can read; deny it to those who cannot." But it was resolved to give all who could not read ten years to learn. That time expires during the present year; and it is apprehended that the new constitutional convention will further extend the time or strike out the provision, thus allowing all to vote (who are otherwise qualified), whether they can read or not. The cases of Joseph B. Stewart against Speaker Blaine and Joseph B. Stewart against Sergeant-at-Arms Ordway came up in the District Supreme Court. They were submitted without argument for the purpose of getting the case before the Supreme Court of the United States as speedily as possible, and the whole question involved in regard to witnesses being in contempt of either house will be finally settled. The cases cited in this JOURNAL, ante pp. 46, 47, 62-64, from 41 Coun. are from 40 Conn. Vol. 41 is not yet printed.

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The death is announced of M. A. Roussell, professor of law at the University of Brussells, one of the leading Belgian patriots of 1830, and formerly a member of the Belgian chamber for the arrondissement of Brussells.- On January 1, the Right Hon. John Thomas Ball was sworn in as lord high chancellor of Ireland by Sir Ralph Cussack, clerk of the crown and hanaper, before Sir Joseph Napier and the Right Hon. Justice Lawson, two of the lords commissioners for

the custody of the great seal.- -There are nine appeals from Bengal, two from Oude, one from the Cape of Good Hope, three from Canada, one from Madras, and one from Victoria, before the Judicial Committee of England.

In Sweden a law has just been signed by the king which gives to women the absolute control and disposition, as against husbands, of the money they may earn, and of property acquired subsequent to marriage. The prominent lawyers who will have offices in the Equitable Building, New York, have suggested to the society the propriety of setting apart a large and convenient room in the central part of their great building, to be well furnished with book cases, which shall be for a common library for the exclusive use of the tenants. Each lawyer in the building to be invited to loan to the library such books as he may be willing to place there. The room to be furnished, cared for, and warmed by the company, the only expense to the tenant to be a small annual contribution for the purpose of purchasing books, which, added to those loaned at the start, would in a short time form a most valuable library. With such a guild established exclusively for the use of the tenants, the Equitable would become a most desirable place for lawyers, and would be superior to the Temple in London. The Equitable is said to be seriously considering the proposition.— The clerk of the commissioners of the Alabama claims is directed to enter on the record the following minute: The time allowed for the filing of claims in

this court expired on the 22d day of the present month of January. The whole number filed is 1,385. Before the expiration of this time it would have been useless to strike cases from the record, for the claimants could have filed new petitions. Justice to all parties now requires that the cases yet unheard should be disposed of with the least practical delay. The clerk is therefore directed to enter upon the trial docket, in their numerical order, all claims in which no decision has been rendered. This docket will be called three times, but a greater number than fifty cases will not be called in one day. At each calling of the docket parties who have not been previously heard will have an opportunity to submit their proofs and arguments. On the third calling of the docket every claim shall be disposed of by a final judgment.

The following is related of the late "Harry Byrne," the celebrated California lawyer: "Mr. Byrne rose in the court-room amid deep silence, and proceeded to close for the prosecution. Pale as the white wall around him, with long and flowing black locks, his eye burning and glowing like a blazing coal, he tore the veil of sophistry, woven around the subject by his adversaries, and laid the bald and awful facts before the jury. Now rising to awful denunciation, he seemed a Nemesis to the cowering criminal before him; now he turned his voice to low persuasion as he sought to mold the jury to his wishes. But as he paused, after a tremendous effort, his eye persuaded him that unless he called to his aid some new and startling line of action the verdict would be against him. At the time an old eccentric man was bailiff of the court. One of his peculiarities was to sleep through the arguments of counsel, and naught could arouse him save the command of the court, and the voice of the district attorney directing him to some official act, but at these wellknown sounds he would start from his seat with an alacrity remarkable for one of his years. Turning to the man (who was enjoying his usual nap), Byrne, to whom this idiosyncrasy was well known, pointed his finger at the peaceful countenance, and then eulogized his faithful attention to his duties. But,' said he, 'he has in this case left one duty unperformed.' Then, with a voice that thrilled through men's hearts and made the rafters ring: 'Mr. Bailiff, call William Adams.' The old man sprang from his seat, and hurrying across the court-room to the entrance beyond, called, in a weird, thick manner, the dead man's name: William Adams, William Adams, William Adams, come into court.' The criminal shivered in his seat, men's blood flowed coldly, and the silence was death. Justice seemed crying to heaven for retribution; the faces of jurors grew white and blue, and each man glued his eyes upon the door as if he expected the apparition to answer the summons. Gentlemen,' continued Byrne, 'that witness can never come. The one who can relate to you the circumstances of this tragedy lies in his cold and silent grave. No bailiff's voice can arouse him from his eternal sleep; naught save the clarion blast of the archangel's trump can pierce the adamantine walls of his resting place. He has been deafened forever by him who now stands arraigned at this bar. Base, brutal, bloody man, upon you hangs this awful responsibility. Your hands have dabbled in his blood, and, as the instrument of outraged society I demand your conviction.' Genius triumphed. Justice was vindicated, and the prisoner expiated his offense on the scaffold."

All communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, FEBRUARY 6, 1875.

CURRENT TOPICS.

The "legal paper bill," of which mention has heretofore been made in this journal, has recently developed much opposition from the non-professional press in New York. It will be remembered that this bill provided that the presiding justices of the courts of record in New York city, should designate a daily law journal in which should be published the calendars and certain legal notices. The Daily Register was designated by the judges, and has since been publishing the calendars and such legal notices as it could get. It seems that in the designation of the judges the scope of the Register's publication was the "calendars of the courts of record, together with every notice or advertisement in legal proceedings, or which may be required by law to be published in one or more papers, etc." This little word "or," which we have italicized seems to have created a great commotion. It is said by some to have been left out of the original act; by others it is said to be in the original. The question arises whether the Register is entitled to publish only notices in legal proceedings, or all notices which may be required by law to be published in a newspaper. The word "or" would render the latter construction the true one, and would entitle the Register to call upon a large class of institutions and corporations for their legal

notices.

It is asserted that the Register has interpreted the law in its own favor, and is calling for all legal notices required by law to be published in a newspaper. The title of the act in question is "An act relating to the publication of judicial proceedings and legal notices in New York city and county." The Register claims that the title of the act governs its provisions, and that the only question involved is as to the meaning of the phrase "legal notice.” It asserts, with more force than reason, that it makes no difference whether the word "or" is in the original bill or not. It calls the non-professional press, which is with great unanimity opposing its pretensions, some rather hard names, and alleges that they have entered into a conspiracy against the Register. It urges that there is a necessity for a legal publication such as it claims to be, and in which all legal notices required by law to be pubVOL. 11.- No. 6.

lished can appear, so that the option of parties may not be exercised unfavorably to their adversaries or to the public, by having the notices published in newspapers not likely to meet the eye of those most interested. It sees no good in the fact that the daily papers of the city, as a rule, publish court calendars and proceedings voluntarily and without expense; and contends that certainty and uniformity are to be obtained only by the maintenance of a publication like the Register.

Several of the most influential newspapers of New York have announced their opposition to the Register, and their condemnation of its course in calling for legal notices other than those in legal proceedings. They denounce the "legal paper bill" as a "job;" and they assert that the designation of a paper "which few of their readers ever saw," for the publication of such notices, is an imposition on the public. One newspaper ventures the grim assertion that the Register may "print" the notices but it cannot " "publish them, referring to the fact that the circulation of the Register is by no means so large as the non-professional dailies. The controversy has culminated in the introduction, into the legislature, of one or more bills providing for the repeal of the 'legal paper bill." The contest is likely to be a spirited one to the end.

66

tions.

The commissioners to revise the statutes of this State have submitted to the legislature their annual report. Twenty-one chapters of the revision have been prepared, printed and distributed among the judges, members of the bar and others, for suggesThese twenty-one chapters contain 3,119 sections copiously annotated, and they complete the draft of Part 3. Some further work is necessary before this Part can be presented in its finished state to the legislature. It is proposed to submit to the legislature, next winter, simultaneously with Part 3, "an act relating to wills, and the care, management and disposition of the property of a decedent," containing 114 sections. This well, ultimately, constitute a portion of Part 2 of the revision. In addition to this work which is, as has been stated, in an advanced stage of preparation, much progress has been made by the revisers on Part 2; and the work is stated to have been prosecuted as rapidly as the character of the revision would permit.

The revisers in their report give the legislature to understand what a laborious and difficult task the revision of the statutes is. They say, "the review and perfection of Part 3 is, of itself, a much greater task, than a person, not familiar with the subject, would suppose. Although the changes contemplated in the draft, relate, principally, to matters of detail, they are numerous, and will require great

care in their execution; many of them being rendered necessary by alterations of the statutes, made by the legislature, and by principles of law, expounded by the courts, since the earlier chapters were printed." But the greater the amount of labor and ability expended on the revision, the more enduring and satisfactory will it be, when finished. It certainly is a work which the whole State demands, and which ought to go forward with earnestness, and with such rapidity as is practicable.

The chairman of the Revision Commission, Mr.

Montgomery H. Throop, addressed the judiciary committee of the Senate, at a recent meeting, in reference to the proposed action for facilitating the work of revision. Mr. Throop stated that two vacancies had been caused by the resignation of Messrs. Stebbins and Werner, and the future of the commission depended very much upon the manner in which these vacancies were filled. He pointed

out the immense amount of labor which was necessary to the drafting of the statutes, and stated that this work required the entire time of the revisers. For the coming year Mr. Throop thought that as the principal work would be the review of the work already prepared, men of acknowledged ability and eminence in the profession might be appointed commissioners, although they could not be expected to give up their other professional duties. In reference to the completion of the work not yet prepared, Mr. Throop thinks that in the hands of three competent men, devoting their whole time to it, it will not consume as much time, in proportion, as the part now about completed. "In thoroughly competent hands," says he, "the work can, I think, be completed by January, 1879." This remark refers to the completion of the entire revision. He advocates a liberal allowance for assistance, on the ground that a large amount of the work upon subsequent parts can be done by other lawyers, temporarily employed, acting under the direction of the commissioners.

be more so.

We beg to say that, if the object is to complete the revision, it is desirable to have, in addition to Mr. Throop, two men with some considerable capacity for work as well as a good degree of legal capacity. Mr. Throop is thoroughly familiar with the whole scheme of the revision, and is able and competent to direct and supervise it no one could With such a commission, devoting their time to it the work would go on apace. If the object be to create a popular and professional sentiment in favor of the revision, it may be politic to select for the commission, men of "acknowledged ability and eminence,"—of wide political and professional influence-without regard to their capacity or inclination to work. For our own part, we believe it to be better to complete the work as promptly as

is consistent with its proper execution, believing that if well done- and so far it has been it will speak for itself and create for itself whatever sentiment is needed.

The bill pending in the legislature of this State, relative to the appointment of a Supreme Court reporter, provides that the appointment shall be made by the justices designated to hold General Terms or "by a majority of the justices who shall attend the meeting," at a time and place to be designated by the presiding justice of the General Term in the mailed to each such justice of the General Term, First Department "by a notice in writing to be directed to him, at his place of residence, ten days before the time appointed for such meeting." The meeting is to be called within six months after the passage of the act. The reporter is to hold office for five years, is to issue three volumes a year. This bill is still in the hands of the Judiciary Committee,

but, we do not doubt, will be reported favorably

and passed as it ought to be.

Speaking of the amended rules of the Supreme Court, in a recent number, we stated that the MS. of the revision was intrusted to Mr. Justice Miller. We made the statement on what we then regarded as good authority. We are now satisfied, however, that the statement was incorrect, and that we did Mr. Justice Miller great injustice. The MS. of the rules in his possession was a copy and not the original, and he was in nowise instrumental in their publication, nor responsible therefor. The original

MS. was intrusted to Mr. Justice Davis, and, we presume, was by him given to Messrs. Banks. In this connection we would call attention to the fact that the judges apparently overlooked the decision of the General Term of the First Department in Banks v. Banks, 2 N. Y. Sup. 483, when they revised the 85th rule. The last clause of the rule, as it now stands, is in conflict with that decision.

As we mentioned in the last issue of this journal, the lawyers who have offices in the Equitable Life Assurance building, in New York, propose to found a library in the building for the use of the legal tenants. They have, accordingly, addressed a letter to the president of the Assurance Society, referring to the fact that there are, or probably will soon be, a greater number of lawyers gathered under a single roof, than in any other building in this country. They speak of the fact that many members of the profession keep the greater part of their books of reference at their homes, where cases are chiefly prepared; and there being constant necessity for the use of the same books at the office, a library containing all law books of value, and accessible to all the lawyers in the building, would do away almost entirely with the

The

inconvenience. In addition to the law library it is suggested that an arrangement might be made for telegraphing from the courts, a very happy suggestion. It is also proposed to have a bulletin with the calendars of local courts and of the Supreme Court of the United States and Court of Appeals. president of the Assurance Society has made a favorable response to this letter, and it is understood that the arrangements are to be speedily perfected. The building, when fully leased, will contain over one hundred lawyers. With a full and excellent law library, and with so many representatives of the profession in daily attendence, the "Equitable" will be truly a temple of law as well as of business.

The proposed appointment of Mr. Samuel Hand, by the governor, to fill the vacancy in the Supreme Court judgeship in the third department, was greeted with satisfaction by the entire profession in this section of the State. His declination caused a regret correspondingly great to be felt. No better appoint

ment could have been made than that of Mr. Hand. He has all the requisites for the position, and could easily command the deference due the judiciary; and if the governor is fortunate enough to make a final selection as good as that of Mr. Hand, the bench of this department will have gained a competent and worthy judge.

NOTES OF CASES.

In Day v. Mutual Benefit Life Ins. Co., 2 Wash. Law Rep. 18, decided by the Supreme Court, of the District of Columbia, the following facts appeared: The annual premium, on a life policy, not having been paid on the 16th of July, 1870, when it became due, the assured applied to the agent of the company, on the 1st of October, to have the policy reinstated; he paid the premium at the same time and furnished certificates of his health made by himself and the physician of the company. A renewal receipt was delivered to him on the 14th of the said month of October, and it was held that the assured was under no obligation to furnish the company with further statements of any variation in his physical condition, intermediate the 1st of October and the date of the delivery of the renewal receipt. The court remarked, very properly, that "the grounds upon which forfeiture of these policies depend are sufficiently numerous without increasing the number by others which are not provided for." The prevailing opinion seems to coincide with Day v. Ins. Co. Where a renewal is effected the statements should be taken only as true when originally made. See Bliss on Life Insurance, p. 311; Brady v. Ins. Co. 11 Mich. 425; Ins. Co. v. Wetmore, 32 Ill. 221; Ins. Co. v. McGowan, 16 Md. 47; Foster v. Assurance Co., 3 E. & B. 48; S. C., 24 Eng. L. & Eq. 103. This latter case is one of great importance.

In Busk et al. v. Pavenstedt, the effect of bill of lading was considered in the Court of Arbitration, in New York, before Fancher, J. The decision is thus summed up by the judge: A bill of lading is a contract, and while, in so far as it partakes of the nature of a receipt, it may be open to explanation, it is, in the absence of fraud or mistake, binding upon the parties. Where the measurement of the shippers and that of the captain differed, and with full knowledge of that fact the captain voluntarily signed the bills of lading wherein the measurement of the shippers was adopted, and the amount of freight was stated on the basis of that measurement, it amounted to a waiver of the captain's dissatisfaction and dissent. It would be depreciating the character and purpose of a bill of lading below its intended value to make it of no effect, and to give precedence to the prior expression of dissatisfaction and dissent of one of the parties. The captain was not obliged to sign the bill of lading to the form in which it was presented to him. If erroneous, he should have corrected it. But having signed and returned it to the shippers with full knowledge of all the facts, he is estopped thereby from afterward asserting that it was not true. The captain is, while in command of a vessel, the agent for the owners. He represents the ship, and his act in signing and delivering the bills of lading is binding upon the owners, unless there be some fraud or mistake.

In Commonwealth v. Ortwein, 7 Leg. Gazette 33, insanity as a defense on a trial for murder was considered by the Supreme Court of Pennsylvania. It appears that, by the statute of March 31, 1860: "In every case in which it shall be given in evidence upon the trial of any person charged with any crime or misdemeanor, that such person was insane at the time of the commission of such offense, and he shall be acquitted, the jury shall be required to find specially, whether such person was insane at the time of the commission of such offense, and declare whether he was acquitted by them on the ground of such insanity." Under this statute it was held that the jury before finding the fact of insanity must be satisfied of it from the evidence. A reasonable doubt of the fact of insanity is not sufficient to find such a fact. The judge said: "Merely doubtful evidence of insanity would fill the land with acquitted criminals. The moment a great crime would be committed, in the same instant, indeed, often before, would preparation begin to lay ground to doubt the sanity of the perpetrator. The more enormous and horrible the crime the less credible, by reason of its enormity, would be the evidence in support of it; and proportionately weak would be the required proof of insanity to acquit of it." It is now the well-settled rule that the burden of proof rests on the party setting up the defense of insanity.

CONVEYANCES BY INSOLVENTS AS AF

FECTED BY BANKRUPT ACTS.

We propose briefly to review the decisions of the English and the American courts, in respect to the effect of the bankrupt acts upon conveyances made by insolvents, partly to secure antecedent debts and And partly in consideration of present advances. our inquiry will be directed to three points, namely, whether such conveyances are altogether void, altogether valid, or partly void and partly valid.

The language of the English statute is, "shall make or cause to be made any fraudulent grant or conveyance of any of his lands, tenements, goods, or chattels," ," "or make or cause to be made any fraudulent gift or transfer of any of his goods or chattels."

The tendency of the English courts seems to be to hold that such conveyances are not acts of bankruptcy, but altogether valid, provided the conveyance does not embrace all the debtor's property, and there is an actual and substantial present advance to the debtor.

In Graham v. Chapman, 12 C. B. 85, a trader, in consideration of a past debt and a present advance, conveyed, substantially, the whole of his property; held an act of bankruptcy.

In Lacon v. Liffin, 11 W. R. 135., A. D. 1862, the bankrupts, a few days before their bankruptcy, gave a bill of sale of all their effects as security for a past debt and future advances; held an act of bankruptcy. This was affirmed on appeal. Ibid, 474. In the latter report it appears that the case was treated as a transfer to secure an antecedent debt only, for it was agreed by the parties that no further advances were to be made until the debt was reduced onehalf. The chancellor says: "That security, therefore, is taken upon the very face of it for an existing debt, and not only does it contain no agreement to advance any money by the bankers to the bankrupt; but it was accompanied, as I have already observed, by a declaration on the part of the bankers that they would not advance any more money until that debt was reduced to £300."

In Topping v. Keysell, 15 C. B. (N. S.) 258, A. D. 1864, a trader, by a bill of sale, assigned all his household furniture, stock in trade, and effects as security for an existing debt, and any future advances which the creditor might make to him. No further advance was ever made; held, an act of bankruptcy. The court put it on the ground that there was no present advance of money.

In Penson v. Moore, 15 L. T. (N. S.) 444, Ex., A. D. 1867, it was held, that an assignment by a trader of all his property, book debts, and stock in trade, in consideration of an old book debt of £530, the only present advance being £20 to pay the trader's attorney the cost of the assignment, amounts to a fraud in the eye of the law, and is an act of bankruptcy. This is put on the ground that there was in reality no present advance to the trader.

Thus far, the doctrine we have laid down is negatively or inferentially held. It is affirmatively held in the following cases:

In Sarubsole v. Sussams, 16 C. B. (N. S.) 452, A. D. 1864, A being indebted to B executed to him a bill of sale of all his effects, as security therefor, and for a small advance, the amount being about a fair equivalent for the value of the goods, and B took possession, leaving A to manage for him. A was subsequently adjudged bankrupt on his own petition. In an action by the assignee to recover the value of the goods thus conveyed, the jury having found that the transaction was bona fide, and that possession was really and notoriously taken by B prior to the bankruptcy, held, that the transaction could not be avoided either as an act of bankruptcy or as a fraudulent preference.

In Whitmore v. Claridge, 12 W. R. 214, in the exchequer chamber, a trader, being pressed by two creditors, one of whom had bill of sale of part of his property, and the other an execution against the residue of his goods, applied to C to assist him, and in consideration of his agreeing to pay off the two creditors, assigned to C, by a bill of sale, all his estate and effects. C paid off the creditors. Held, that the assignment was not an act of bankruptcy, as it was not an assignment in consideration of a past debt only, but an assignment in consideration of the assignee's releasing the trader's property from a charge already laid upon it.

In Mercer v. Peterson, 3 L. R. 104, Exch., A. D. 1868, on the 9th of December, 1865, in consideration of the defendant having agreed to lend to J £107, to pay an acceptance then about to fall due, J agreed to give him a mortgage of all his goods and chattels as security for that sum, and also for any further money the defendant might lend him; on the 6th of January, 1866, the defendant made a further advance of £64 to J, who, on the 27th of January, executed a bill of sale in pursuance of the agreement, reciting the total amount then due, and assigning all his personal property to the defendant as security for it; on the 31st of December, 1866, J was adjudged a bankrupt. Held, that the bill of sale being given partly in respect of the original agreement, and partly in respect of the subsequent advance, which was actually made to such an amount as to constitute a substantial equivalent for the assignment, was a valid bill of sale as against the assignee in bankruptcy.

In the American courts there seems to be some balancing between holding such conveyances altogether valid, and partly valid and partly void; but we do not find that it has ever been held that they are altogether void.

It is true that in Denny v. Dana, 2 Cush. 160, a mortgage of personal property, which as to some portion of the debt thereby secured was in contravention of the insolvent laws was held wholly void;

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