subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defense, he assumes the character of the judge — nay, he assumes it before the hour of judgment; and in proportion to his rank and reputation, puts the heavy influence of, perhaps, a mistaken opinion in the scale against the accused, in whose favor the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel.'" English Botes. francs, in the case of the widow, and the same amount in the case of her son. The law of England does not seem to regard an action in such circumstances with much favor. In Rex v. Topham (4) T. R. 126) Lord Kenyon laid down the law as follows: "To say, in general, that the conduct of a dead person can at no time be canvassed, to hold that even after ages are passed the conduct of bad men cannot be contrasted with the good, would be to exclude the most useful part of history. And, therefore, it must be allowed that such publications may be made fairly and honestly. But let this be done whenever it may, whether soon or late after the death of the party, if it be done with a malevolent purpose to vilify the memory of the deceased and to injure his posterity * * then it is done with a design to break the peace, and then it is The St. James Gazette says that a memorial tab-illegal." The later cases of Reg. v. Labouchere (12 let, the outcome of subscriptions from friends of the late Lord Coleridge, has been placed in the parish church of Alfington, in Devonshire. It is inscribed as follows: "To the glory of God, and in memory of the Right Honorable John Duke, first Baron Coleridge, Lord Chief Justice of England, P. C., F. R. S., D. C. L., etc., for seven years member of Parliament for the city of Exeter. Born the 3d of December, 1820; died the 14th of June, 1894. A worshipper within these walls, a friend and benefactor of the church and parish of Alfington. The vicar, parishioners and other friends, mindful of his generous kindness, desirous of honoring his name, have inaugurated a fund for the fabric of this church, and have placed this stone, June mdccccii. He served the law; he sought the truth. He loved liberty." The First Chamber of the Civil Tribunal of the Seine has just given its decision in a case in which it became necessary to consider an interesting branch of the law. It will be remembered that Colonel Henry, who gave evidence against Captain Dreyfus in the proceedings which have become historical, was afterwards arrested and committed suicide. The Siecle, a newspaper friendly to Dreyfus, published an article by M. Joseph Reinach reflecting upon the conduct of Colonel Henry in his lifetime. The widow of Colonel Henry and his son, a minor, then took proceedings against M. Reinach and also against M. Chambre, the manager of the Siecle, claiming substantial damages. It was admitted that the defendants had acted in good faith and without any malice or ill-will with regard to the family of Colonel Henry, and that they had no other motive in publishing the article than that of vindicating the rights of Dreyfus. The court held that in these circumstances there was no ground for criminal proceedings, but that the widow and children of a deceased person would necessarily be prejudiced by defamatory words reflecting upon his character, and that they were entitled to recover damages, which the court assessed at 500 B. D. 320) and Reg. v. Ensor (3 Times L. R. ceedings in such a case, while in a case which came 366) tend to limit the right to take criminal probefore the courts in India (3 Bombay L. R. 580) it in which the family of a deceased person had rewas said that no English authority could be found covered damages for a libel reflecting upon his memory. Solicitors' Journal. There has, says the Pall Mall Gazette, been no trial for treason in the three kingdoms since 1882, when Maclean was tried at Reading by a special commission - namely, Lord Coleridge and Baron Huddleston - for shooting at the late queen at Windsor railway station. He was acquitted on the ground of insanity and ordered to be detained during her majesty's pleasure. The law on the subject is as curious as any in our system. It is still based on a statute of 1352, which the barons obtained in their own interests, to check the tendency of the judges to multiply high treasons at common law, whereby the crown got the lands of those convicted. It is expressly declared to be treason "if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm or elsewhere, and thereof be provably attained of open deed by the people of their condition." In his new book on criminal law, Dr. Kenny remarks: "In Natal it was held, in 1901, that by serving the Boer forces, even as a cook, a man gave them aid and comfort.'" The telegraph has become such a common medium in business transactions that the utmost certainty is desirable as to the contents and transmission of telegrams. The inconveniences which may flow from negligence on the part of a telegraph company's servants are forcibly illustrated in Dickson v. Reuter's Telegraph Company (47 Law J. Rep. C. P. 1; L. R. 3 C. P. Div. 1), the leading case on the subject. X. & Co., merchants at Valparaiso, receive a telegraphic message which they understand, and reasonably under- commended him to the good-will of the bar was his stand to be a direction from their correspondents at Liverpool to ship barley to England. They ship the barley, the market falls and they sustain serious loss. The telegram was, in fact, intended for another person, and was delivered to X. & Co. by the negligence of the company's servants. Did the misdelivery give X. & Co. a cause of action against the company? The Court of Appeals were clear that it gave none. There was no duty on the company's part to X. & Co. to use care. In Lord Justice Brett's language, the company performs the part of a mere messenger, and its only contract is with the sender, not with the receiver. Such a state of the law is well calculated to encourage laxity on the part of telegraph companies. It does not commend itself in America. There statutes have been passed in most of the States regulating the transmission and delivery of messages, and holding telegraph companies to a high degree of diligence and a strict discharge of duty as quasi public agencies. In some States the obligation of telegraph companies is still further extended, so that even a person beneficially interested in the message, though neither the sender of the message nor the person to whom it is sent, may maintain a suit for damages for errors or failure to deliver.Law Journal (London). promptness in the decision of cases tried before him. He seldom reserved his decision for any long period of time, and frequently decided cases without any delay at all, while other judges retained briefs for long periods before rendering their decisions. Bumorous Side of the Law. In an after-dinner speech at a banquet in New York the other day a well-known lawyer related this story of the late Recorder Smyth, who was for so long a time a terror to the evil-doers of the metropolis: A young man came before him upon a grave charge and was accompanied by a lawyer in whose judgment the recorder had little confidence. The moment the accused was called upon to plead he jumped up hastily and said: "Guilty, your honor." The recorder knew he had a fair defense, and, calling him close to the bar, said to him in a friendly manner: 'Now, tell me who told you to plead guilty." "Me lawyer, your honor." "Why did he tell you that?" "Because he said if me case ever came up before that old hatchet face with the big nose I'd be sent up for life sure, and the best I could do was to fall on the mercy of the court." The American correspondent of the London Law Judge Smyth entered a plea of "not guilty," Times writes as follows to that periodical: Two deaths among the justices of the New York Supreme Court occurring within a few weeks have again called attention to the overwhelming pressure of business in that court, and to the unhealthful conditions under which the work of the judges is carried on. Neither of the justices who died in May had approached closely to the retiring age of seventy years, and both had been able to perform their duties until shortly before their death. The court rooms in which they were compelled to sit are poorly ventilated, and the judges' private rooms are small. The whole court-house, built in the days of William Tweed, has long been considered an unwholesome place in which to work, and the deaths of five of the judges within two years have been attributed largely to the condition of the building. Justice Charles P. Andrews, who died most recently, had served as corporation counsel of the city, and his opinions on corporation matters were of special value. Justice Miles Beach, who died earlier in May, had been a judge of one of the higher courts for twenty-three years. His personal affairs were brought to public notice several years ago, when suit was brought against him for the payment of debts of his father's estate, which, it was said, he had promised to pay. It was shown that in the opinion of the judges who passed upon the case Justice Beach had done all that could be required of him toward the payment of the debts. One of Judge Beach's qualities which especially ordered the case to be heard and at its conclusion the young man was discharged. "Both the plaintiff and the defendant were very sharp persons, my lords," observed counsel while opening a case a few days ago in the Court of Appeals, says the Daily Telegraph. "And we have to say which of them was the sharper?" asked one lord justice, innocently. That is so, my lord," answered the advocate, with a gravity which indicated a want of appreciation of the aptness of the question. Law Journal (London). Justice Giegerich was hurrying through City Hall Park the other morning to take his place on the bench, when a seedy-looking man doffed his hat and said: "Will your honor hear me?" "Haven't time," replied the justice. "I wish to make a motion," persisted the beggar. "What is it?" asked his honor. "That the court direct Mr. Giegerich to give me the price of a breakfast," said the man, blandly. "Can't you settle that out of court?" laughed the justice, amused at the novelty of the beggar's method. "It seems that the opposition prefers to litigate the question," replied the vagrant. "Then the court will deny the motion." "Yes," said the justice, producing a quarter.New York Times. The Albany Law Journal. tirely different things. Miss Taylor seems to A Monthly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, N. Y. Contributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law questions, addresses solicited from members of the bar and those interested in legal on legal topics, or discussions on questions of timely interest, are proceedings. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions or other business matters should be addressed to THE ALBANY LAW JOURNAL COMPANY.] Subscription price, Three Dollars per annum, in advance.. Single number, Twenty-five Cents. ALBANY, N. Y., AUGUST, 1902. Current Topics. be mentally confused. No one will deny her right to say or print anything she may choose about her superiors, if she will first resign her position so as to be free to do so; but surely she cannot expect to show her disloyalty to her superior with respect to its leading policy and still retain her place. The enforcement of such a rule would be subversive of all discipline and efficient administration. In an address delivered recently, Mr. Justice Childs, of the Eighth Judicial District, made a vigorous protest against what has come to be known as the "third degree," i. e., the method often resorted to by police officers or other agents of the criminal law to obtain confessions from persons accused of crime. The law," says the justice, "is not an instrument of oppression against any man. A man accused of crime has the right to every safeguard to prove his innocence and to see that his every right is protected. Liberty is an inalienable right. Men who deal lightly with that right ought to be brought to book, and by the members of the legal profession. I do not care how degraded or friendless a man may be the more degraded or friendless he is the more he needs the aid of others — when he is deprived wrongfully of his liberty for a single moment, it is the duty of every lawyer Better that every to stand in his defense. There seems to be a mistaken notion as to what the Constitution of the United States means when it says that "Congress shall make no law abridging the freedom of speech or of the press." Does this mean that any citizen may publish anything that may occur to him at any time touching public affairs, no matter how false or foolish it may happen to be, and that the organic law of the United States will protect him in the exercise of such "right?" By no means. The matter has been brought up by the case of Miss Taylor, a former employe in the bureau of war, who was dismissed by Secretary Root because she had written and signed newspaper articles criticizing the policy of expansion adopted by the govern- criminal should go free than that one man, ment of which she was a part, though a some- for a single hour, should be deprived unjustly what insignificant part. Miss Taylor's conten- of his liberty." Justice Childs is right, and tion that she held her office during good behavior, and that her action in criticizing the policy of a superior afforded no grounds for her dismissal. The fact has been well pointed out that in private business nobody would be permitted to publicly denounce his employer, or even his immediate superior, and still retain his employment; then why should there be any different rule in regard to the public employ- In the case of Roberts v. Parker, Sheriff, ment? Surely, there is a limit to the so-called etc., the Supreme Court of Iowa decided that right of free speech, and loyalty is or ought a painter, paper-hanger and bill-poster, who to be one of the first requirements of an em- habitually uses a bicycle to earn a living, he ploye. The making of laws regarding the being the head of a family, can claim exempright of free speech, and the permission to an tion of the machine under the Code of that employe to say or write anything he pleases State, which provides that the head of a family and still retain his employment, are two en-may hold exempt from execution, if a laborer, VOL. 64.- No. 8. his protest is timely as well as well-founded. This republic has no place in it for men who seek to trample on inalienable rights; and it is peculiarly the province of the lawyer not only to heed the warning, but to see that the rights of all citizens, even though they be accused of crime, are fully protected. a team, with the wagon or other vehicle and the proper harness or tackle by the use of which he habitually earns his living. The court holds that the fact that bicycles were not known when the statute was enacted makes no difference. The court said in part: how the exchange could be made and said "That plaintiff was a laborer within the meaning of this section (sec. 4008) is not questioned. As certainly the bicycle is a vehicle. The decisions so holding are too numerous for citation. But is it a vehicle such as was contemplated by the legislature in enacting the statute? It is well settled that statutes of exemption should receive a liberal construction, such as shall aid, in so far as may be, in carrying out the beneficent object of the legislation, and they are to be construed in favor of those claiming their benefits. Because of the liberal construction usually given a statute of this character, the majority of the court holds that a bicycle is included and a direct contradiction, and at the close of in the term 'other vehicle' as found in the section the testimony, Justice Herrick submitted two quoted. While it was not in use, or even known, questions to the jury: in the State at the time of such enactment, they are of opinion that the law should keep pace with progress and the improvement in the industrial arts, and that the bicycle should be judged exempt to a laborer who is the head of a family, and habitually uses it to earn a living." Two judges, however, say that precisely what may be claimed as exempt is enumerated in the statute, and nothing should be added. The reference in the statute to a team and harness, the minority judges think, means that the "other vehicle" must be one of the character of a wagon, for of what use would a wagon be without a horse? If this contention be not true, anything within the definition of "vehicle" may be exempt, such as an electric car or automobile, regardless of the value of either. "First. Did the plaintiff agree with the defendant to release him from the bond and to take Wilbur G. Martin in his stead?" "Second. Did the plaintiff at the time of the drawing of the deed from Van Wert to Martin, and from Martin to Van Wert, advise Van Wert in words or substance that it was not necessary for him to give the defendant, Van Wert, a release from his lability upon the bond and tell him that he would fix it in the deed so that he would be discharged?" To the first question the jury answered. "No," and to the second, "Yes." Justice Herrick heard arguments on the apparent inconsistency of the findings, and directed judgment for the defendant, with costs. Judge Herrick's enunciation of the principle that "when an attorney comes into a court of which he is an officer, seeking justice against. a client, he must come in with absolutely clean hands," is perfectly sound, as well as eminently safe law. Mr. Justice Herrick, of the New York Supreme Court, in the suit of Aiken v. Van Wert, laid down the principle that "when as a result of the conduct of a lawyer with his client, either the lawyer or his client must suffer, the court will protect the client against the lawyer." It appears that Aiken, who is the attorney, and Van Wert, his client, had been personal friends for a number of years, and had had business dealings on several occa- The "Octopus" seems to have gotten its sions. On the 18th of May, 1896, the defend-" second wind," with the result of landing a ant, Van Wert, borrowed $500 from Aiken contract or two. The State printing board. and gave him a bond and mortgage on his farm. In the year 1897 Van Wert exchanged farms with one Wilbur G. Martin. Martin's farm was also subject to a $500 mortgage. But Van Wert claims that he went to his friend and attorney, Aiken, for advice as to which showed some evidences of fairness in awarding the contract for the legislative printing to the lowest bidder, The Argus Company, has undone in part that good work by awarding the contract for the printing of the Session Laws and slips for 1903 to the J. B. Lyon PROCEDURE. Procedure was, that is history. Procedure is, that is our present method of enforcing a legal right. To study procedure, in all its evolutionary stages, is to study the history of the civilized world; the social and political conditions of the individual from the beginning of civilization to the present time, when individual rights mark the highest stage of development. Instructive, interesting and necessary as is this history to a more fully developed knowledge of our law, with its attending machinery - procedure — the writer deems it far too broad a subject to be Company, upon the recommendation of the State's printing expert, Mr. Henry E. Ducker, notwithstanding that The Argus Company's bid seemed by all fair rules of calculation, clearly the lower by several hundred dollars. It seems so easy to juggle with figures that the wonder is that The Argus Company ever received any contract at all. The fact also, that in spite of the exceptionally early adjournment of the legislature this year, the bound volumes of the Session Laws were delayed until as late a date as July fifteenth, thus greatly incon-treated in this discussion, with necessary limitations veniencing the legal profession, was entitled to some weight in considering the bids and awarding the contract. It ought to be possible to find some way of dealing with contractors who fail to get out their work as called for by contract. 66 It now appears that the contract for the department printing, which was recently awarded to the "Times-Union" (Albany), has been gobbled" by the Octopus, the "Times-Union" bid being, as alleged by those who ought to know, merely a "blind." Here is additional reason why no contract should be let to any bidder not possessing facilities for doing the work advertised for. It was a fact well known to the printing board that the Times-Union" had no facilities except an ordinary newspaper plant, yet that concern was awarded the contract though the printing board must certainly have known that it would "farm it out." The transaction shows the wily nature and devious tactics of the Octopus in using other to pull its chestnuts out of the fire. One of the bidders for the department printing, whose bid is claimed to be clearly lower than that of the "Times-Union "— and this biader is not The Argus Company - is taking steps to prevent the consummation of the transaction, its leading official having made affidavit that the president of the "Times-Union" Company had acknowledged to him that his (the "Times-Union's ") bid was not a bona fide one. A thorough legislative probing of this whole matter of letting State printing contracts is in order, and we hope to see some member start and keep in an agitation in favor if it until something definite results. A shaking up of some of the dried bones would be extremely beneficial. and of such vastly practical importance. Yet, recognizing the fact that a glimpse of the common law duce to a better appreciation of our methods of practice, we deem it no waste of time to give a cursory description of that frame work in which the common law lived and whose practice evolved into that finished product, our reformed procedure. practice, the foundation of our procedure, will con The Saxon judicial system, popular in form, with its simple laws and rude and ill-adapted modes of practice, promulgated to the people by earls and sheriffs in their perambulatory nature, withstood the many and severe shocks from the irruptions of the Danes and numerous other northern nations. Indeed, so excellent was the frame work of government and so strongly bound together by remedial law, built by the hand of that master, King Alfred, that it continued till William the Conqueror met Harold at Hastings and won the crown. A great change swept over England, not sudden, but, like all English changes, it was slow, sure and firm. The shrewd William brought with him a highly centralized legal system. Careful, wise and far-seeing, the Norman conqueror did not immediately interfere with the Anglo-Saxon decentralized But the soft and popular judicial organizations. tendrils of the feudal system were fast sinking deep into the English political and social soil, not to die out for centuries to come. This created a variety of prerogatives and duties from the tenant to the king, thus introducing many and varied remedies. The suitor not getting the desired result in the popular courts, sought the English "fountain of all justice," the king in council. Seeing the realization of his dreams, the Conqueror permitted these appeals from the County, Manor and Ecclesiastical Courts, and thus instituted what became known as the Supreme Royal Court of Aula Regis, which contained the possibility and certainty of the overthrow of King Alfred's courts. This court took its inspiration from the king. Its members pronounced the king's judgments. It followed the king in his travels, settling disputes as it went. Thus it continued to administer until the reign of Henry II (1154-1189) when, to meet the pressing demands of numerous appeals, Henry II, in 1170, sent out justices who, because they had charge of the finances, heard, tried |