페이지 이미지
PDF
ePub

- COPY OF

PROBATE

NOT

PROOF

OF

TEE FOR LIFE CAN ASSERT TITLE AGAINST GRANTOR TO

and to guard against the possible evil which the UNITED STATES SUPREME COURT ABlengthened term alone suggested as possible." If this

STRACT. was the only reason for the insertion of this restriction in the Constitution, it would not apply to justices EVIDENCE – of the peace, as their terms of office were not extended, VALIDITY OF WILL IN ANOTHER STATE-WHEX GRANbut I think the law was also based upon the assumption of incapacity on account of age, for certainly a REVERSION—ESTOPPEL.-(1) An exemplified copy of person at seventy years of age, who had served for a the record of the admission of a will to probate in a long term could not be said to have less ;capacity to Virginia court is not to be received in the courts of the perform the duties of his office than if he had served District of Columbia as conclusive proof of the a short term.

validity of the will and of all matters involved in the But there is nothing in the terms of the Constitu. probate. The act of Congres declaring the effect to be tion to distinguish between the officer elected for a given in any court within the United States to the relong term and the one elected for a short term, be- cords and judicial proceedings of the several States, tween the justices of the Supreme Court and the does not require that they shall have any greater force justices of the peace; both come within the broad, and efficacy in other courts than in the courts of the comprehensive term of “justices of a court," and both States from which they are taken, but only such faith fall within the reason of the restriction, if it is as- and credit as by law or usage they have there. Any sumed to be based on incapacity on account of age.

other rule would be repugnant to all principle, and as Certainly if there was wisdom in applying this re- we said on a former occasion, would contravene the striction to the terms of the judicial officers of the policy of the provisions of the Constitution and laws State, no reason exists why it should not apply to those of the United States on that subject. Board of Pubof the lower grade, as well as to those (of the higher lic Works v. Columbia College, 17 Wall. 529. The procourts.

bate in Virginia was sufficient to pass all property My attention is called by the respondents to section

which can be there transferred by a valid instrument 54 of the Code of Civil Procedure, which requires

of that kind. But po greater effect can be given out “judges of courts of record to file certificates of the

of Virginia to the proceedings. The probate estabtime when their terms of office will expire, either by

lishes nothing beyond the validity of the will there. completion of a full term or by reason of the disability

It does not take the place of provisions necessary to of age;" and it is argued, as justices' courts are not

its validity as a will of real property in other States, if courts of record, that this section must be taken as

they are wanting. Its validity as such will in other indicating the opinion of the Legislature that the pro

States depends on its execution in conformity with vision under discussion does not apply to those officers.

their laws; and if probate there be also required, such I do not concur in this view, but I think that this sec

probate must be bad before it can be received as evition of the Code, which is a substitute for the law of

dence. McCormick v. Sullivan, 10 Wheat. 202, and of 1870, hereinbefore referred to, is a further indication

Darby v. Mayor, id. 468. (2) A party who receives a that the provision was intended to apply to judges of deed of a life estate, and persons taking a subsequent all courts.

conveyance in fee from him or his grantees, or derirThe argument for the respondents is that justices' ped to deny that the reversion upon the termination

ing title by devise from such grantees are not estopcourts are not mentioned or referred to in the Con

of the life estate is vested in the grantor or his heirs. stitution, and therefore justices of the peace do not fall within the term “justices of a court;"

An estoppel in pais can arise as between grantor and but the

grantee only where from the relation of the parties same may be said of the marine court of New York,

there is implied in the acceptance of possession under the surrogates' courts of the several counties, and

the deed an obligation to restore the possession on the the other courts mentioned in

section of happening of certain events, or to hold the property the Code, all of which are now courts of record. It would seem from section 54 that in the opin, such as exists from the relation of landlord and tenant,

for the grantor's benefit or persons designated by him, ion of the Legislature the restriction as to age applied

of mortgagor and mortgagee, or the creator of a trust to judges of all courts of record. But if the restriction applies to surrogates, recorders of Utica and Oswego, Blight v. Rochester, 7 Wheat. 547; Wilson v. Watkins,

and trustee. Gardner v. Greene, 5 R. I. 110. See also and justices of the “justices' court of Albany," why 3 Pet. 43; Watkins v. Holman, 16 id. 54. To the gennot to justices of the peace generally? who as I have eral statement of the law there is this qualification, shown, are “justices of a court."

that a grantee cannot dispute his grantor's title at the At the time of the adoption of the Constitution time of conveyance so as to avoid payment of the purmany of the courts mentioned in section 2 of the Code chase-price of the property; nor can the grantee in a were not courts of record, and are not mentioned or contest with another, whilst relying solely upon the referred to in the Constitution; yet clearly in the title conveyed to him, question its validity when set opinion of the Legislature, the constitutional restric-up by the latter. In other words he cannot assert that tion as to age applies to the judges of such courts. the title obtained from his grantor, or through him is

I am unable to find in the language of the Constitu- sufficient for his protection and not available to his tion, or in what seems to me to be the true reason of contestant. Where both parties assert title from a the restriction, any thing upon which one class of ju- common grantor, and no other source, neither can dicial officers can be distinguished from another, and deny that such grantor had a valid title when he exe

cuted his conveyance. Ives v. Sawyer, 4 Dev. & Bat. my conclusion is that it was intended to apply this re

51, and Gilliam v. Bird, 8 Iredell, 280. The case of striction to the judges and justices of all the courts of

Board v. Board, to which counsel refer, was decided the State whatever their grade or jurisdiction.

on similar grounds; there the defendant in ejectment, Justices of the peace are clearly “justices of a claiming as grantee under the devisee of a life estate court” within the fair meaning of that term, and fall under a will, was held to be estopped from denying within the restriction.

the validity of the will in an action by the grantees of A final order must therefore be entered, awarding tions or limitations of this character it will be found

the remainder-man. L. R., 9 Q. B. 48. With excepan absolute writ against the respondents, but without on examination of the authorities, particularly those costs.

of a modern date, that the doctrine of estoppel in pais

NEGLIGENCE

however it may have been applied formerly, cannot murder of another Indian of the tribe in the Indian now be asserted to preclude the grantee from denying country. Matter of Kangi Shanca. Opinion by Matbis grantor's title and acquiring a superior one, unless thews, J. there exists such a relation of the parties to each other [Decided Dec. 17, 1883.) as would render the proceeding a breach of good faith and common honesty. No such relation exists be

MAINE SUPREME JUDICIAL COURT tween grantor and grantee in an absolute couveyance

ABSTRACT.* without recital or covenant, whether it be of the fee

MAY 1883. or of an estate for life. The grantee does not recognize, by the acceptance of such a conveyance of an estate

BETTERMENTS—WHAT ARE NOT.–Buildings erected for the life of another, the possession of any greater

on the land of another by one occupying under a conestate in the grantor, or any obligation to hold the

tract to purchase become the property of the owner premises for him after the termination of the estate.

of the soil if the purchase be not completed, and are So far as he is informed by such a conveyance he takes

not betterments. Tyler v. Fickett. Opinion by Applethe entire interest of the grautor in the property. He

ton, C. J. does him therefore no wrong by purchasing any ad

EASEMENT RIGHT OF SUPPORT TO AQUEDUCTverse claims which may strengthen his own title, or

LAND OWNERS AND GRANTEES OF which may give him a title after the termination of

QUARRY.-In an action by the owner of an aqueduct the life estate. Covenants in the instrument intended for him, such as to restore and surrender the premises working of a lime quarry, held that in regard to an

against the land owner for damages caused by the on the termination of the life estate, or recitals declar

aqueduct as in regard to a way, the owner of the ing the reversion to be in the grantor or others, would

eagement may peaceably pursue his right against any of course change the relations of the parties. Obliga

obstructions which the land owner throws in the way tions from such covenants or recitals might arise which

of its enjoyment. If the blasting in the quarry underwould control the action of the grantee. Atlantic

mines the aqueduct, he may adopt new means of supDock Co. v. Leavitt, 54 N. Y. 39. By taking a deed

porting it in its place; and if a broader base for the poll for life of grantor without covenants or recitals as to any further interest of the grantor or others, no

new support than the width of the original location of obligation to the grantor could arise, and consequently

the aqueduct has been rendered necessary by the blast

ing, it is not a trespass upon the owner of the soil to no estoppel precluding the grautee, and those claiming

use his land for that purpose. The aqueduct has the ouder him, from accepting conveyances from other

right of support in the land, and if the blasting under sources to strengthen their existing interests or to ac

it within the limits of the location by the land owner quire the reversion, and thus securing to themselves

deprives it of its former support, the right still remains the absolute fee. Osterhout v. Shoemaker, 3 Hill, 518; Sparrow v. Kingman, 1 N. Y. 254. Robertson v. Pick

and its enjoyment may be reclaimed with the inci

dents which necessarily go along with it. Held, also rell. Opinion by Field, J.

that the defendant was liable for injury done to the [Decided Dec. 17, 1883.]

aqueduct whether the working of the quarry was FORECLOSURE OF RAILROAD MORTGAGE-FRAUD OF negligent or not. Held, also that the defendant was DIRECTORS--RIGHT OF STOCKHOLDERS TO INTERVENE not liable in such a case for injuries occasioned by the -HOW FAR MORTGAGE VALID.-(1) Where the direct- acts of his grantees, though holding the quarry under ors of a railroad company were benefited by the issue bis warranty deed. Rockland Water Co. v. Tillson. of bonds secured by mortgage upon the railroad, and Opinion by Symonds, J. when the mortgage was foreclosed, filed an answer

NEGLIGENCE-LIABILITY OF PRINCIPAL FOR ACT OF confessing plaintiff's right to relief, and the court ren- AGENT–WRONGFUL ARREST.–To hold one responsible dered a decree of foreclosure, and an apparent'sale was

for a tort not committed by himself, nor by his orders, had thereunder, this being in pursuance of an agree

bis adoption of and assent to the same must be clear ment with the directors, held that the agreement was and explicit and made with a full knowledge of the immoral and stockholders of the company should be tort, or at least of the injured party's claim that there let in to resist the foreclosure. Twin Lick Co. v. Mar- has been one. “Ignorance or misapprehension of any bury, 91 C. S. 587; Wardell v. Union Pacific R. Co., 4 of the essential circumstances relating to the particuDill. 330; S. C., 103 U. S. 631. (2) The bonds were is- lar transaction alleged to have been ratified will absued in payment of work on the railroad to a specified solve the principal from all liability by reason of any amount. Held that to the extent of this amount the supposed adoption of or assent to the previously unbonds were valid against the stockholders. See Gard- authorized acts of an agent." Coombs v. Scott, 12 per v. Butler, 30 N. J. Eq. 702. Thomas v. Brownville, Allen, 493. And this is so even though the ignorance Fort Kearney and Pacific Railroad Co. Opinion by or misapprehension arises from the negligence and Miller, J.

omission of the defendant to make any inquiry relative [Decided Dec. 10, 1883.]

to the subject matter. Id. To hold one responsible

for a tort not committed by his orders, his adoption of OFFICER WHEN NON-RESIDENCE

and assent to the same must at all events be clear and QUALIFY UNDER KANSAS STATUTE.-The laws of Kan- explicit, and founded on a clear knowledge of the sas provide that certain officers shall be residents of tort which has been committed. Adams v. Freeman, the townships or districts for which they are chosen. 9 Johns. 117; West v. Shockley, 4 Harring. 287; There is no provision to that effect as to a township Kreger v. Osborn, 7 Blackf. 74; Abbot v. Kimall, 19 treasurer. Held, that the removal of a township | Vt. 551. And this rule is not affected by the fact that treasurer into another town did not vacate the office, the defendant has received the money coming by and that service on him as township treasurer was means of the tort from his servant. Hyde v. Cooper, sufficient. Salamanca Township v. Wilson. Opinion 26 Vt. 552. The case was for the arrest of defendant by Waite,'C. J.

on a writ sued out in the name of the defendant by [Decided Dec. 17, 1883.]

one C., who acted as agent for defendant. Defendant JURISDICTION OF FEDERAL COURT AS TO MURDER OF

was not shown to have known any thing in relation to OSE INDIAN BY ANOTHER. – The District Courts of the action, and was held not liable. Tucker v. Jervis. Dakota held to bave no jurisdiction to try one Indian Opinion by Barrows, J. of an Indian tribe located in that territory for the

*To appear in 75 Maine Reports.

DOES NOT DIS

WHERE

MINNESOTA SUPREME COURT ABSTRACT. was refused. The defendant however has a right to

the opinion of every court as to the propriety of his CONFLICT OF LAW --TRANSFER BY INSOLVENT LAW OF

imprisonment." Ex parte Partington, 13 Mees. & W. ANOTHER STATE-VOLUNTARY CONVEYANCE.-A trans

679. Matter of Sewell. Opinion by Berry, J. fer of property effected only by the operation of the [Decided Sept. 19, 1883.) insolvent law of a State will not be recognized in

INJUNCTION-BUILDING ERECTED ON LAND INEFFECanother State as being effectual as to property in the

TIVELY CONVEYED MAY BE REMOVED-LICENSE. latter State, and as against the just claims of its own

Plaintiff hy deed attempted to convey to a church citizens. The foreign law, in such a case, is accorded no extra-territorial power to divest or transfer property. By reason of non compliance with the statute the

society a lot of ground on which to build a church. Hoyt v. Thompson, 5 N. Y. 320, 352; Kelly v. Crapo, deed was not effectual to convey the title. The church 45 id. 86; Caskie v. Webster, 2 Wall. Jr. 131; Burr.

association however erected a church on the land and Assignm. (4th ed.), $ 303. But it is well established

afterward begau to remove the same to another place. as a general rule that a voluntary conveyance of per- Held, that plaintiff was not entitled to an injunctiou sonal property, valid by the law of the place where it restraining such removal. Where the authority for is made, passes the title wherever the property may be placing a building upon the land of another rests upon situated, and that such transfers, upon principles of

his license, and the consideration of the case is unincomity will be recognized as effectual in other States when not opposed to public policy or repugnant to

fluenced by the unreasonable laches of the licensee, or their laws. This principle is applicable in the case of ing to be the owner of the building, and equitably el

other special circumstances, he is regarded as continuvoluntary assiguments for the benefit of creditors.

titled to remove the same if he elects, and if such reOckerman v. Cross, 54 N. Y. 29; Hanford v. Paine, 32

moval be practicable, and works no serions injury to Vt. 442; Frazier v. Fredericks, 24 N. J. Law, 162. Matter of Page-Sersmith Lumber Co. Opinion by Dickin

the land or premises of the licensor to which it was

annexed. 2 Am. Lead. Cas. (5th ed.) 561-563; Keyser son, J.

v. School-district, 35 N. H. 480; Dame v. Dame, 38 N. [Decided Sept. 25, 1883.)

Y.431 ; Barnes v. Barnes, 6 Vt. 394; Wilgus v.Gettings, CROP-TITLE OF LANDLORD

TENANT ON

21 Iowa, 180; Northern R. Co. v. Canton Co., 30 Md. SHARES THREATENS TO CONVERT-INJUNCTION.-The

353; Fuller v. Tabor, 39 Me. 519; Dietrich v. Murdock, landlord of a farm let on shares, where the defendant 42 Mo. 285; Bachelder v. Wakefield, 8 Cush. 283; Curtis refuses to deliver the landlord's share, but threatens v. Riddle, 7 Allen, 187; Howard v. Fessenden, 14 id. to convert the same, is entitled to an injunction re

128; Weathersby v. Sleeper, 42 Miss. 742; Witherspoon straining him from disposing of the share of the land.

v. Nickels, 27 Ark. 333. Little v. Willford. Opinion by lord, especially if the defendant is without property Vandenburgh, J. except such as is exempt by law. The contract was an [Decided Oct. 17, 1882.] ordinary letting on shares, and whatever relations it created between the parties as to the land, it constituted the owner of the land and the cropper tenants

RECENT ENGLISH DECISIONS in common nf the crops. Moulton v. Robinson, 27 N. H. 550. If so the plaintiff was clearly entitled to the ATTORNEY-HAS NO PRIVILEGE FROM ARREST FOR relief prayed for. But even if the title to the crops CONTEMPT.-A solicitor who obeys an order of the was wholly in the defendant, and that the one-third court made against him as an officer of the court com. was to be paid expressly as rent in kind, this action mits a contempt of a criminal nature, and no privilege would still lie, in view of the fact that defendant had from arrest exists or can be claimed against the execuno tangible property which could be made subject to tion of an attachment issued to enforce such an order attachment or execution, and hence that an action at of the court. Privilege from arrest can be claimed in law would be unavailing. Gregory v. Hay, 3 Cal. 332. respect of attendance as an advocate at a police court Schmitt v. Cassilius. Opinion by Vandenburgh, J. during the preliminary inquiry into a charge of felony, [Decided July 17, 1883.]

provided the privilege otherwise exists. An order was HABEAS CORPUS-DISCHARGE OF ONE WRIT NOT BAR

made against F., a solicitor, as an officer of the court, TO ANOTHER WRIT.-The sound rule, and that sup

that he should deliver up certain documents, and that ported by a great weight of long-stauding authority, is

he should pay a sum of 101. and costs. He delivered up that the decision upon habeas corpus of one court or

the documents, but did not pay the sum of 102. Upou officer refusing to discharge a petitioner is not a bar to

an order of attachment being made, he paid the sum the issue of another writ upon such petitioner's appli- of 101., but did not pay the costs. He was arrested upon cation upon the same state of facts as at first, to

the attachment while returning from a police court, another court or officer, and to a hearing or a dis- where he had been attending as advocate to defend charge thereupon. A decision under one writ of

certain persons charged with felony. Held, that he habeas corpus, refusing to discharge a prisoner, does

was not entitled to be discharged on the ground of not bar the issuing of a second writ by another court privilege from arrest, ivasmuch as the contempt for or officer. People v. Brady, 56 N. Y. 192. This would

which the attachment had issued was a contempt of a appear to overrule the intimations of earlier New

criminal nature. Ct. of App., May 24, 1883. Matter of York authorities. A decision under the writ of a Freston. Opinions by Brett, M. R., and Lindley and habeas corpus, refusing the discharge of a prisoner, is Fry, L. JJ. (49 L. T. Rep. [N. S.] 290.) no bar to the issuing of any number of other succes- DEFINITION-MEANING OF “SOLE AND UNMARRIED" sive writs by any court or magistrate having jurisdic. IN WILL. -A testatrix bequeathed her estate upon tion. Ex parte Kaine, 3 Blatchf. 1. “I feel no diffi- trust to pay the income to her husband for life, and culty in delivering the opinion which I entertain, be- after his decease to divide the same into four parts, cause the prisoner will not be concluded by it, but and stand possessed of one of such parts upon trust to may, if he be dissatisfied, apply to the other courts of pay the same to J., spinster, “if she should be then Westminster Hall.” 1 East, 314, per Lord Kenyon. sole and unmarried, but if she should be then mar“This case has already been before the Queen's Bench ried," upon trust to pay her the income for her separon the return of a habeas corpus, and before my lord ate use for life, and after her death upon trust for her chief baron, at chambers, on a subsequent application children, with other gifts over in default of children. for a similar writ. In both instances the discharge | The will was dated in 1860, H. married in 1861, the

cover

AGAINST

testatrix died in June, 1878, and her husband died in COPYRIGHT-AUTHOR OF PHOTOGRAPH. – A person April, 1883. A decree nisi for the dissolution of the who is merely the proprietor of a photographic estabmarriage of J. was pronounced in February, 1878, and lishment, and who employs a staff of servants (payingmade absolute in November, 1878, there having been them wages or salaries) for the purpose of taking phothree children of the marriage, all of whom were still tographs, and provides the materials for taking and living. J. had not been married again at the death of making them, is not the author or joint-author with the tenant for life. Held, that the meaning of “sole his servants, of any photograph so taken and made by and unmarried” was "not being under

any one or more of them, within section 1, of the ture," and that therefore in the events which had hap- Copyright Act of 1862. Decision of Field, J., affirmed. pened, J. was absolutely entitled to the one-fourth The author of a photograph is the person who most share. Ch. Div., August 6, 1883. Matter of Lesingham's effectively contributed to the result, that is the person Trusts. Opinion by North, J. (49 L. T. Rep. [N. who directed his mind toward and superintended the S.) 235.)

particular arrangements which have actually resulted

in the formation of the picture; and who that person EMINENT DOMAIN-RAILWAY COMPANY DOES NOT is, is a question of fact in each particular case. Ct. of ACQUIRE RIGHT TO SUBJACENT SUPPORT

App., August 2, 1883. Noltage v. Jackson. Opinion MINE OWNER.–Where a railway company has compul- by Brett, M. R., and Cotton and Browu, L. JJ. (49 sorily purcbased land with mines and minerals subja- T. Rep. [N. S.] 339). cont thereto, and subsequently sells a portion thereof as superfluous land, the purchaser from the railway company does not acquire the right of subjacent support for his surface as against the owner of the mines and minerals, and therefore cannot maintain an action

CRIMINAL LAW. for damages against the mine owner for so working his mines as to cause injury to the surface and the buildings erected thereon. Ct. of App., April 20, 1883. BRIBERY- INDICTMENT FOR OFFERING BRIBE TO Pountney v. Clayton.. Opinions by Brett, M. R., and LEGISLATOR-CORPORATE STOCK.-(1) An indictment, Bowen, L.J. (49 L. T. Rep. [N. S.] 283.)

under section 6900, Ohio Revised Statutes, which

charges that defendant corruptly offered and promised TRADE-MARK-INNOCENT PURCHASER FOR PRIVATE to B., a member of the House of Representatives of the CSE LIABLE FOR INFRINGEMENT.-In an action by a General Assembly of the State, with the intent to corfirm of cigar manufacturers for an injunction to re- ruptly and feloniously influence his vote upon a cerstrain the defendant, who had bought 5,000 cigars for tain bill then pending in such house, “a valuable private purposes, from selling or parting with them in thing, to wit: Stock of the Cincinnati Union Railboxes bearing a colorable imitation of the plaintiffs' way Co., of the amount and value of $20,000, and a registered mark or brand; for the destruction of the large amount of money of great value," is not bad for boxes, and for damages; and where the plaintiffs uncertainty. It is not necessary, in addition to such on having learnt that the boxes bearing the spurious allegation, to recite the facts which give the thing ofmarks were warehoused at the docks to the order of fered a value, nor to charge that a definite sum of the defendant, had served him with the writ in the money was offered. (2) To charge the jury in a present action without notice; and where the defend

trial upon such indictment, that the thing offered or ant had already assented to an order being made promised must have a value at the very time it is ofagainst him in the terms asked by the plaintiffs; the fered or promised, and while the bill is pending, is defendant moved the court that he might not be com

error, but not to the prejudice of the defendant. It pelled to pay the plaintiffs' costs as he was iguorant of is a crime, under section 6900, to offer or promise a all matters concerning the alleged spurious trade- thing valuable at that time, or which will be valuable, marks, and was an innocent purchaser of cigars for his

when according to the promise, it is to be given or deown private purposes, and had committed no infringe- livered. Ohio Supreme Court, Jan. Term, 1883. Wätment. Held, that the defendant had used the plaint

son v. State of Ohio. Opinion by Doyle, J. (39 Ohio iffs' particular trade-mark, and was guilty of infringe- St. 123.) ment; that it was not necessary and would have been unwise of the plaintiffs to have given the defendant

LARCENY-POSSESSION OF RECENTLY STOLEN GOODS notice before the issue of their writ in this action;

AS EVIDENCE.-Where the defendant is apprehended that though the defendant might be an innocent pur

immediately after the larceny, with the stolen goods chaser, and never have intended to infringe the plaint

in his possession, it is a violent presumption of his iffs' trade-mark, he must pay the plaintiffs' costs. Ch.

having stolen them, and the court should instruct the Div., June 22, 1883. Upmann v. Forester. Opinion by jury, that in law he is guilty. Where he is found in Chitty, J. (49 L. T. Rep. [N. S.] 122.)

possession some time after the larceny, and refuses to

account therefor, it is a probable presumption, and a CONFLICT OF LAW-LEGACY TO ALIEN FEMALE IN

question of fact for the jury. But where he is not FANTS MARRIED -A legacy had been paid into court

found in possession recently after the loss (here to which, on the death of the tenant for life, two female infants, who were French subjects by birth, and

eighteen mouths), it is a light or rash presumption, and resident in France, became absolutely entitled. They

not sufficient to warrant conviction, unless the atwere both married, and by the French law, under the

tending circumstances tend to implicate the defeud. settlements made on their respective marriages, their

ant in the larceny, as where he makes false statehusbands were absolutely entitled to receive their

ments in respect to his possession. North Carolina shares of the fund. One of the infants had since at

Supreme Court, Feb. Term, 1883. State of North Carotained twenty-one Held, that the infants not being

lina v. Jennett Opinion by Ashe, J. (88 N. C. 665.) subjects of or domiciled or resident in England, the court bad a discretion as to whether or not they should POST-OFFICE-USING MAILS FOR FRAUD.-An atbe treated as wards of court, and that the money tempt to defraud a creditor by inclosing with a letter might therefore be paid out to the husbands. Ch. Div., to him worthless slips of paper in place of money, Aug. 3, 1883. Brown v. Collins. Opinion by Kay, J. stated by such letter to be inclosed therewith, and (49 L. T. Rep. (N. S.] 329.)

seuding such letter and inclosed slips to such creditor

TO

JURY

DEFENDANTS

through the mail, is not an indictable offense under necessarily, and act as though hearing tbe argument section 5480 of the Revised Statutes. U. S. Dist. Ct., were a matter of favor and not a right. They decide E. D. Missouri, July 3, 1883. United States v. Owens. frequently upon the mere oral statement of the case, Opinion by Treate, J. (17 F. R. 71.)

and without looking at the cases and points, and they

take every opportunity to snub the younger members TRIAL CHALLENGES

of the bar. There is no confidence in the decisions at JOINTLY TRIED.—Where two defendants are jointly General term, and this bench think notbing of holdcharged in one information, with a misdemeanor, and ing diametrically opposed views on the same legal being refused a separation are put on trial together, question during the same week. It is frequently reeach is entitled to the same number of peremptory marked that lawyers, no matter how good their case challenges he would be entitled to if tried separately. In United States v. Marchant, 12 Wheat. 480, it is is, expect to be beaten, and anticipate an appeal to the said: “Upon a joint trial, each prisoner may chal- higher court, which they are beginning to regard as a

matter of course if the question or the amount inlenge his full number, and every juror challenged as to one is withdrawn from the panel as to all the pris- inefficiency of the judges is largely due to the im

volved is of any importance. We suppose that the oners on the trial; and thus, in effect, the prisoners in

mense amount of business they are called upon to such a case possess the power of peremptory challenge

transact. If the first judicial department were divito the aggregate of the numbers to which they are respectively entitled. This is the rule clearly laid down ded, so that two or even three General Terms could be

held, the judges would have time enough at least to by Lord Coke, Lord Hale, and Serjeant Hawkins, and

read the printed papers presented, and the bar would indeed by all the elementary writers.” (u State v.

have some respect for the decisions rendered. The Stoughton, 51 Vt. 362, it was held that one indicted

number of reversąls would diminish, and consequently with others does not waive his right to the statutory

the number of appeals. number of peremptory challenges by consenting to be

Respectfully, tried with them. If one consenting to a joint trial New YORK, Jan. 29, 1884. JNO. G. YEATMAN. does not waive this right, a fortiori, one who is compelled against his will to a joint trial ought not to be deprived of it. Iu Cruce v. State, 59 Ga. 83, it was held by a majority of the court that each of two de- THE UNITED STATES SUPREME COURT REPORTS. fendants jointly tried was entitled to the full number of peremptory challenges. See also Smith v. State, 57 Editor of the Albany Law Journal : Miss, 822; Bixbee v. State, 6 Ohio, 86; Mahan v. State, Permit me through your valuable medium to con10 id. 233; 1 Bishop Cr. Pro., $ 967. In Stroh v. Hinch- gratulate the profession most warmly on the great man, 37 Mich. 490, it was held under a statute such as gain and advantage accruing to it by reason of the Mich. Comp. Laws, 6027, that in all civil cases each new departure in Supreme Court reporting. Here we party may challenge peremptorily two jurors; audhave, January 15, 1884, eleven opinions, average nine when several defendants unite iu one plea and defeuse, pages each, just about eighty days after filing of the and appear by the same counsel, two challenges to all last thereof, set up and printed, not to mention the acthe defendants are all that need be allowed. But companying invaluable head-uotes. Take the first where two defendants sever in pleas, and appear by head-note for instance. Osborne v. Adams Co. It different counsel to litigate antagonistio defenses, each fills the exact requirements of the true head-note; must be deemed a "party" within the enactment, and merely read it over and you see at once that by do entitled to two challenges. See also Sodousky v. Mc-human possibility could any lawyer ever need the case Gee, 4 J. J. Marsh. 267 ; Reynolds v. Rowley, 2 La. Ann. as an authority on any point. To be sure this suggests 890; Stone v. Segur, 11 Allen, 868; Hill v. State, 2 another query, but that involves one of two supposiYerg. 246; Blackburn v. Hays, 4 Coldw. 227 ; Wiggins tions, both of which must be rejected. To say that v. State, 1 Lea (Tepp.), 738. Kansas Supreme Court, another periodical had given us six of these eleven January Term, 1883. State of Kansas v. Durien. Opin- opinions ou November 8, 1883, four more on Novemion by Brewer, J. (29 Kan. 688.)

ber 28, 1883, and the remaining one on December 8, 1883, and had incidentally supplied us down to the date of the “Part I.," with the opinions in sixty-four more

causes, would manifestly be unjust and unfair. CORRESPONDENCE.

Also may I inquire whether the expression, “the statement of facts appears fully in the opinion," is an

exact equivalent for the expression, "The facts of (in) RELIEF OF THE COURT OF APPEALS.

the case appear, etc." This may seem hypercritical, Editor of the Albany Law Journal :

but we are entitled to demand the highest class of I have read with interest the various projects ad- work from the official reporters of that court if of 10 vanced by correspondents of your paper, for the relief other. of the Court of Appeals. It seems to me that the real Now it may be urged that the periodical gives but a remedy of the evil is to be found, not in increasing hasty report and inaccurate head-notes, and that the . the number of judges or in dividing their duties, but value and advantage in these respects of the regular in preventing the accumulations of so many appeals. reports fully compensates for the waiting. If any one Without knowing the exact proportion I should say is of this opinion let him compare word by word the that nearly two-thirds of the appeals come from the syllabus of the “Civil Rights Cases" in the periodical, first department in New York city, and fully one-half and in the regular report (and it is submitted that no of such cases are reversed. This shows that something more important cases than the “Civil Rights Cases" is wrong in this department, and the fact is made are liable to come up at least commonly), and he will much more apparent by an attendance upon the busi- see his theory at its vanishing point. It would seem ness of this department for a short time. The way in as though in these progressive days the public should which cases are decided at General Term here is the be better served than official reporters appointed for cause of wide and growing discontent among these reasons of State seem inclined to serve it. members of the bar who are unfortunate enough to be

Yours respectfully, obliged to bring appeals in this department. The

CHAS. STEWART DAVISON. judges are arbitrary, they limit the time of couusel un- NEW YORK, Jan. 19, 1884.

« 이전계속 »