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THE ALBANY LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

J'

The Albany Law Journal.

ALBANY, JULY 3, 1880.

CURRENT TOPICS.

UST as the warm weather and vacation are coming on, when materials for current topics become scarce, it is a great relief to be judicially informed that "a law weekly is not a newspaper." This was held in Beecher v. Stevens, 25 Minn. 146, under a statute requiring publication of summons in a newspaper, in regard to our much esteemed contemporary the Northwestern Reporter. The court observed: "This is a twelve-page weekly publication, somewhat different in size and shape from an ordinary newspaper, though the difference is not such as to render it improper to denominate it a newspaper, provided its usual contents are, in general character, like the usual contents of newspapers. It purports to be and is 'devoted specially to the interests of the legal profession.' Its usual contents are the general laws of this State, published shortly after their passage, the 'decisions' of the Supreme Court of this State, the decisions' of the Supreme Court of Wisconsin, and occasional decisions of other courts, a court directory, cards of attorneys and counsellors-at-law, a list of transfers of real estate in Ramsey county, advertisements and notices of law books, about a page of miscellaneous advertisements, and legal anecdotes. Except as above, it does not publish, nor assume to publish, what is understood by the current news, or news of the day. Newspapers are of so many varieties that it would be next to impossible to give any brief definition which would include and describe all kinds of newspapers. We are not called upon to incur the risk of giving any such definition at this time. It will be sufficient for all the purposes of this case to say, that in the ordinary understanding of the word, a newspaper is a publication which usually contains, among other things, what is called the general news, the current news, or the news of the day; and nothing which does not usually contain such news, and is intended for general circulation, is a newspaper, in the ordinary sense of the VOL. 22. No. 1.

word. Such a newspaper is a publication adapted to the general reader. Now, in the absence of some controlling consideration to the contrary, the statute is to be taken to have used the word newspaper in this its ordinary sense, or as Gen. St., ch. 4, § 1, expresses it, according to the common and approved usage of the language;' and when the object of the publication of a summons is considered, the reasonableness of such a construction of the word newspaper as requires the publication to be made where it will be likely to meet the eye of the general reader, is quite apparent. For these reasons, we are of opinion that the Northwestern Reporter,' though it may properly enough be denominated a 'legal newspaper,' is not a newspaper within the meaning of the statute above cited."

The London Law Times seems to think that the legal profession are growing rich too fast. That journal recently remarked: "It is seldom that an English judge, upon the bench, condemns the excessive costs of litigation, and of legal proceedings generally, in this country. We would that it were done more often, hardly less in the interest of the profession, than on public grounds. We hope that the strong, but becoming language in which Lord Justice James recently condemned the enormous cost of litigation, will not be lost upon our profession, and especially upon those members of it upon whom the responsibilities of a seat in Parliament are now resting. Is it wise, we ask, for lawyers to try the experiment of leaving laymen, both in and out of Parliament, to cut down the cost of legal proceedings? Is it not the duty of the legal profession itself to take up this question and apply the necessary remedies, some of which are already at hand? Any sufficient, and therefore substantial, alterations in legal procedure, must necessarily affect large numbers of members of the profession; in some cases adversely, and in others to their advantage. Among the sources which give rise to costs, the incurring of which might often be avoided, the following may be mentioned: Pleadings, which practice the Judicature Acts have to all intents and purposes preserved; the central, instead of the local administration of justice; the interests and privileges of the bar; the system by which solicitors are remunerated; the practice of the

judges in granting new trials; the unnecessarily large fees often received by counsel, and allowed on taxation; the scale of costs drawn with a distinct view of encouraging solicitors to employ counsel, instead of vice versa; the delay in dealing with the business of the High Court of Justice; the uncertainty of the law as at present administered, in the absence of a code, and in view of the enormous accumulation of case law, and by which litigation sometimes becomes little better than a gambling speculation; and finally, both branches of the profession are filled to overcrowding, and the result is a residuum in both branches of speculative lawyers, who are a danger to society, and who include the black sheep of the profession." In the same connection the London Law Journal speaks of a recent lawsuit, involving £21, and four times tried, in which the defendant's costs amounted to between £400 and £500, and the total costs to probably £1,000, "facts which lawyers will read with humiliation." These words of the Times are well worth heeding in this country. Lawyers should recall the fable of the goose that laid the golden egg. Is there any lawyer whose services are worth $250 a day? We ask for information, for we know some lawyers who get that amount.

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If that construction is right, it would prevent the owner of a private house from having a balcony, verandah, or other harmless projection, if it projected beyond the vertical line. We are persuaded, looking at the act, that this was not its intention. The object of the string of sections relating to footways was to keep them clear for foot-passengers, and of the words 'over or' was to meet the case of a projection not actually touching the foot-path, but at the same time an obstruction to foot-passengers. Therefore, the words referring to shop fronts, etc., are inserted to except them, under certain conditions, from this section. If the intention had been to prevent projections all the way up the house, we should not have expected to find the exceptions relating to facias. We are, therefore, of the opinion that the magistrate took the right view, and that these sections are not intended to preserve the free passage of air, but only the free passage of footpassengers."

In Dinsmore v. Nashville, etc., Railroad Co., post, the court give the following interesting information as to the magnitude of the express carrying business in this country: "The express business, which had its inception as herein previously stated, now extends all over the States; is carried on by numerous organizations, which meet the requirements of the several localities in which they do business; and occupies every railroad line in the country available for the purpose. They have an invested capital of over $30,000,000, and the Adams and Southern Express Companies have in daily use and occupation 21,216 miles of railroad; employ 4,297 persons; make 911 daily trips, over 64,560 miles, aggre

for the transportation of their freights they pay the railroad companies over $2,000,000 per year. It is further alleged, as showing the extent and magnitude of the express business, that these companies carried for the government $1,200,

The case of Goldstraw v. Duckworth, in the Queen's Bench Division, March 23, 1880 (42 L. T. [N. S.] 440), will be of interest to residents in cities and towns who wish to put out oriel windows. A statute provided that "no projection of any kind shall be made in front of any building over or upon the pavement of any street," with exceptions for shop fronts, doorways, cornices and pilasters, under certain conditions. The sections immediately pre-gating 19,884,420 miles of travel annually. And ceding prohibited the discharge of water, steam and smoke upon the footways or into the street, and provided for covering openings in or into the footways. It was held that the words "over or" only included such projections as would be an obstruction to foot passengers, and did not include projec-000,000 in 1878, and 661,000,000 in 1879, and tions all the way up a house. On the hearing of the information it was proved that the projection complained of was an oriel window of stonework, which measured from the bottom to the top 11 ft., and projected over the foot-path 2 ft. 6 in., and that the distance between the lowest part of the window and the foot-path was 14 to 15 feet, and that such oriel window was not in the nature of a shop front, doorway, cornice or pilaster, and also that the land over which the window projected was to the extent of 2 ft. 6 in. part of the public highway, being, in fact, the foot pavement of the street. It was, however, proved to the magistrate that the window was not any nuisance or obstruction, except only so far as any such projection necessarily interferes with the access of light and air to the street, and with the regularity of the line of buildings in the street, and that it did not interfere with the free use of the foot-path. The court said: "It is contended that the words 'over or' upon the pavement apply to any projection in any building, however high. I

for private parties, in the last-named year, the
enormous sum of $1,050,000,000; and that the
Adams Express Company alone receives and dis-
burses, in New York city, 14,000 packages daily,
employing therefor, in connection with their gen-
eral business, 918 horses, with the necessary num-
ber of wagons." Mr. Schouler says (Bailments,
316): "The American pioneer in that business is
said to have journeyed in person, by steamboat and
rail car, between New York and Boston, with all
his customers' valuables contained in
a hand
satchel."

NOTES OF CASES.

[N connection with Livingstone v. Rawyards Coal Co., 21 A. L. J. 442, we call attention to the case just reported, of Franklin Coal Co. v. McMillan, 49 Md. 549, holding the contrary doctrine, namely, that the measure of damages in an action for waste for mining coal, where the mining is innocently done under

an erroneous impression of title, is the value of the coal before separation from its bed, without allowance for the expense of severing. This is the same doctrine held in Barton Coal Co. v. Cox, 39 Md. 1; S. C., 17 Am. Rep. 525; and Illinois, etc., R. and Coal Co. v. Ogle, 82 Ill. 627; S. C., 25 Am. Rep. 342; but cannot be considered the prevalent doctrine. The court in the principal case said: "We have examined all the cases which have been cited in the argument, and have discovered no sufficient reason for departing from the decision so recently made by this court; nor have we seen any good reason to doubt that the rule then announced is upon the whole a sound and salutary one, which, while it awards no more than a just compensation to the party injured, will, as said by Baron Parke, 'tend to prevent trespasses of this kind.' We think no real distinction can be drawn between this case and that of the Barton Coal Company. There this court held the rule applicable, though the defendant was not a willful trespasser, but 'dug the coal without knowing that it was trespassing upon the property of the plaintiffs, but believing it was its own coal.' It is said that in that case there was no dispute or question about boundaries, and that it was negligence in the defendant to go beyond its own lines. the trespass was committed under ground, where the lines were not easily ascertained. Trespasses on the land of another, if not willful, always imply some degree of negligence. In this case the defendant's excuse is, that it claimed to be the owner of the land. But it has been shown by the proof and by the verdict that its claim was not well founded. As said in Maye v. Tappan, 23 Cal. 306: Where a party has the means of ascertaining the dividing line, he is guilty of negligence in not ascertaining its location.' In this respect, therefore, this case is not to be distinguished from that of the Barton Coal Company. Considering that case as decisive of the present, we have not thought it necessary to make further reference to the authorities, or to discuss the proposition there decided over again." Robinson, J., dissented in a learned and able opin

ion.

But

In Dinsmore v. Nashville, etc., Railroad Co., U. S. Circuit Court, District of Kentucky, May, 1880, 10 Cent. L. J. 468, it was held that a common carrier is as much bound to carry for another common carrier as it is for others. Therefore, a railroad company cannot refuse to carry for an express company, nor to extend to its messengers and agents the facilities requisite to the prosecution of the express business. The court said: "If express carriers were ejected from the railroads, the latter could not be compelled to supply their places, and, consequently, the country would be without such facilities unless the railroad companies would exceed their corporate obligations and voluntarily undertake to do what they are not legally required to do, and to do many things which under their charters they have no right to do. As they are under no legal obligations to render such accommodations to the public, and could not be compelled to render them, they could, after

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ejecting the express carriers, monopolize the business, dictate oppressive rates, while affording less safety, celerity and convenience to customers as a substitute for the expeditious, reliable and necessary services of expressmen. The country would be dependent upon an illegal assumption of authority by railroads, an assumption in some respects in contravention of public policy, because it would enlarge their power and influence for controlling the business of the country, which, to say the least, is already sufficiently formidable. But it is enough to say that railroads were not created to do an express business, are not suited to such service, possess no legal capacity to engage in it, cannot be required to undertake and perform it, and I may add, ought not to be permitted to engage in these branches of the express business, ultra vires their corporate powers, if they would; and as they are not legally bound to render express facilities to the country themselves, can they, by excluding the expressmen, deprive the public altogether of this necessary facility? Or else extort such concessions as the petty resentment or cupidity of their managers might prompt them to exact? We think not. On the contrary, if the express business, as we have hereinbefore asserted, has become a convenience to the general public, we think it the duty of all railroad companies, through their managers, and in the exercise of the trusts confided to them for the public good, to make proper provision for everybody wishing to carry express matter over their respective roads, as, in doing so, they would be accommodating the public, and fulfilling to that extent, the objects and purposes of their creation." No authorities are cited, and so far as we know, the question is new.

In Sawyer v. Gerrich, 70 Me. 254, the plaintiff's mare was served by the defendant's stallion for the purpose of raising a colt, whereupon the plaintiff agreed in writing to pay the defendant twenty dollars twelve months after date if his mare proved with foal, "colt holden for payment." Held, that

the written agreement created a contract-lien in the nature of a mortgage. The court said: "It would seem that if the defendant had sent his mare to the plaintiff for the purpose of raising a colt from the latter's stallion, the defendant would have had, at common law, a lien upon her for the use of his horse, so long as he retained possession of the mare. Scarfe v. Morgan, 4 M. & W. 270; and perhaps upon the foal since partus sequitur ventrem, 2 Bl. Com. 390; Allen v. Dinsmore, 55 Mc. 113." It is well settled that the owner of personal property having a potential existence may sell it. Grantham v. Hawley, Hob. 132; 2 Kent's Com. 468 and note g, 492 note 1, c.; Farrar v. Smith, 64 Me. 77. And within this principle, the owner of a mare may, during gestation, sell her future offspring, which will vest in the vendee when parturition takes place. McCarthy v. Blevins, 5 Yerg. 195." "Our opinion is that the contract was in the nature of a mortgage; and the case not distinguishable in principle from Oakes v. Moore, 24 Me. 214, 220." See Moore v. Byrum, 10

S. C. 452; S. C., 30 Am. Rep. 58, and note, 63, holding that a mortgage of a crop to be planted is valid. This is held not only inter partes but as against creditors. See note, supra. Farrar v. Smith, cited in the principal case, was the case of a sale of manure to be made.

DECLARATIONS AS RES GESTE IN
CRIMINAL CASES.

III.

pose a declaration had been made by the deceased, on the previous day, of an intention to go to her husband on that particular evening; such declaration, being unaccompanied by any act, would rest wholly in assertion, and would be clearly without the rule referred to; yet the proof would be essentially of the same character, and subject to no greater objections than the evidence we are considering. I am of opinion, therefore, that the case was not within the rule admitting a declaration accompanying an act, on the ground of its being a part of the res gestœ." "A majority of the judges

N Douglas v. Chapin, 26 Conn. 76, the plaintiff's concurred."

I intestate had contracted to go to California and

take charge of defendant's steamboat. In an action on the contract, it was held that his statement on leaving San Francisco, that he was going up the river to Sacramento to go on board the boat, was admissible, as part of the res gestæ, in proof that he so went. The court simply said, "it was manifestly a part of the res gestæ.”

In State v. Dula, Phillips, 211, the deceased was met a few miles from the place where she was murdered, going on horseback in that direction. It was held that her declarations then and there that she was going to that place to meet the prisoner were inadmissible in evidence. The court said these declarations may have been true or may have been false, but were not verified by the tests which the law of evidence requires, namely, the sanction of an oath, and an opportunity for cross-examination.

In People v. Williams, 3 Abb. Ct. App. Dec. 596, on an indictment for poisoning, it was held that evidence that the deceased, on going out of the house just before she was poisoned, said she was going to meet the prisoner, is not admissible as tending to prove their meeting, even in connection with her illness on her return, and her attributing it to what he had given her to drink. The court, Denio, J., said: "To render the declaration competent, the act with which it is connected should be pertinent to the issue; for where the act is in its own nature irrelevant, and when the declaration is per se incompetent, the union of the two will not render the declaration admissible. The material fact here was that the prisoner and the deceased were together on Saturday night. Even this was not a principal fact, but only a circumstance to show that the prisoner had an opportunity to commit the offense.

That

In Carroll v. State, 3 Humph. 315, the declarations of the deceased while on a journey with the prisoner, and in State v. Vincent, 24 Iowa, 570, his declarations as to the object of a contemplated journey which he afterward took, were received in evidence. In neither case was there any thing in the declarations tending to fasten any criminal intent on the prisoner.

In Cheek v. State, 35 Ind. 492, a witness was allowed to testify to the following declaration by the deceased concerning the prisoner just before his death: "Doc, I am glad you have come; there are two ruffians going up the road, and they have threatened to take my life; they have gone to my house, and I want you to go back with me.". The court said: "Was it res gesta? We think not. Bouvier says: 'When it is necessary, in the course of a cause, to inquire into the nature of a particular act, or the intention of the person who did the act, proof of what the person said at the time of doing it is admissible evidence as a part of the res gesta, for the purpose of showing its true character.' We think the books may be searched without success, to find a case where the statements of a murdered man, made before he came in sight or hearing of his slayer, can be given in evidence against the accused on his trial." Of this case Mr. Bishop says (2 Crim. Proc., § 625, n. 2): "This may be putting it strong; but in substance the statement is doubtless correct as applied to such a case."

The case of State v. Dickinson, 41 Wis. 299, is very much like the Hayden case in its circumstances, but the decision steers a middle course. This was a criminal action for procuring the death of a pregnant woman by abortion. It was claimed that the death occurred on Saturday. The witness, Mary Erickson, was permitted to testify as to conversations had by her with the deceased on the previous Wednesday and Friday, in which the deceased stated that she understood or had found out that she was in a family way; that she had been to see the defendant about it; had been or was going to defendant to get medicine and syringe; that she had made an arrangement or bargain with defendant to have an operation performed upon her; was to give $25, and was to return to defendant's on Saturday afternoon for the purpose of having instruments used to get rid of the child. The prosecution offered this evidence to show that the deceased had at that time the intention of having an abortion Sup-produced. In his charge the judge so restricted the

the deceased left the house in Duane street at a particular time was of no materiality unless it was also shown that during her absence she met the defendant. The act itself was indifferent to the issue, whatever the intention with which it was done. If the deceased met the prisoner, and thus afforded an opportunity of committing the offense, it is immaterial whether she expected or intended to meet him or not; and so of course if she failed to meet him, he could not properly be prejudiced by the circumstance that she went out with a design to go to him. The evidence was not offered to qualify an act connected with the issue, but to induce the jury to infer another act not otherwise shown to exist, that of his being in company with the deceased.

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