« 이전계속 »
CALIFORNIA SUPREME COURT ABSTRACT.
should hold the offie from the date of the appointment, subject to the condition that if they failed to
qualify, or perform some other act, the appointment CORPORATION — NOTICE — WHEN KNOWLEDGE OF
should go for naught. Ball v. Kenfield, Controller. DIRECTOR NOT THAT OF CORPORATION.-- The kuowl
Opinion by McKinstry, J. edge of the director of a corporation acquired inci
[Decided July 22, 1880.] dentally and not while acting for the corporation is not the knowledge of the corporation so as to charge it. Accordingly where structures were erected upon
CRIMINAL LAW. lands belonging to an agricultural society which were in the possession of W., a director of the society, under a lease for the benefit of W., held, that a mechan
EVIDENCE — DYING DECLARATIONS - HOPE OF REic's lien could not be filed against such lands on the COVERY RENDERS INCOMPETENT. — An alleged dying ground that the knowledge of W. of the erection of
statement of deceased set forth that “believing that I the structures was chargeable to the society. Unless
am very near death and realizing that I may not rethe knowledge of a director of a corporation was ac- cover, I wish to make this, my dying statement,” etc. quired by him in the management and couduct of its
She was then sick from the effect of an abortion. Ileld, business, notice of it is not attributable to the corpo
that the statement was inadmissible. It is essential to ration. If the agent acquires his knowledge casually,
the admissibility of such declarations that it appear or privately, or by rumor, and he does not inform the that they were made under a sense of impending corporation or its agents of it, the corporation is not
death. It is the impression of almost immediate dischargeable with it. “I agree,” says Nelson, C. J., in
solution that renders the testimony admissible. Bank of U. S. v. Davis, 2 Hill, 451, “that notice to “ Therefore," says Greenleaf, “where it appears that a director, or knowledge derived by him while not en
the deceased, at the time of the declaration, had any gaged officially in the business of the bank, cannot and expectation or hope of recovery, however slight it may should not operate to the prejudice of the latter. This
have been, and though death actually ensued in an is clear from the ground and reason upon which the
hour afterward, the declaration is inadmissible. On doctrine of notice to the principal through the agent
the other hand, a belief that he will not recover is not rests. The principal is chargeable with this knowledge
in itself sufficient, unless there be also the prospect of for the reason that the ageut is substituted in his almost immediate dissolution.” 1 Greenl. Ev., $ 158. place, and represents him in the particular transac- This is the rule recognized and approved by all of the tion ; and as this relation, strictly speaking, exists
authorities. The only difficulty that arises comes only while the agent is acting in the business thus
from the application of the rule to the facts of the pardelegated to him, it is proper to limit it to such occa
ticular case. In the case before us, however, we think sions." See, also, Fulton Bank v. New York, etc., it appears upon the face of the paper itself that the Canal Co., 4 Pai. 1:27. So where a defective deed had
deceased had not abandoned all hope of recovery. been recorded purporting to convey certain land, and
There is here a clear indication that the deceased at one of the directors of a corporation which had ac- the time of making the declaration had not abandoned quired an equity of redemption in the premises, not all hope of recovery. The declaration was therefore acting as agent of the corporation, and having no man
inadmissible. Wharton's Hom. 306-8; Rex v. Woodagement of its business otherwise than as a director, cox, 2 Leach's C. C. 267, 566; People v. Sanchez, 24 Cal. went to the town records for the purpose of ascertain
24. In the last case cited this court said: “This species ing the situation of the land, and there saw the record
of testimony should always be received with the greatof the deed, but did not inform the corporation or any
est caution, and too much care cannot be observed by of its agents thereof, the Supreme Court of Connecti- the court in scrutinizing the primary facts upon which cut held that the corporation was not, by reason of
its admissibility is grounded. No person is entirely these facts, chargeable with knowledge of the deed. exempt from a disposition to excuse aud justify bis Farrel Foundry Co. v. Dart, 26 Conn. 376. Lothian v. own conduct, or to inflict vengeance upon one at whose Wood et al. Opinion by McKee, J.
hands he has suffered a grievous wrong: and in the [Decided July 26, 1880.]
eye of the law this proclivity is presumed, in cases like
the present, to be overcome and silenced only by the OFFICE — WHEN OFFICIAL TERM COMMENCES — STATUTORY CONSTRUCTION.
An undoubting - A statute of California pro
presenco of almost immediate death.
belief existing in the mind of the declarant, at the time vided that the governor should appoint commissioners
the declarations are made, that the finger of death is “who shall hold office for the period of three years
upon him, is indispensable to that sanction which the from and after their appointment,” that they should
law exacts; and if it shall appear in any mode that “within twenty days after their appointment” meet
there was a hope of recovery, however faint it may and take an oath to faithfully perform their duties, etc.
have been, still lingering in his breast, that sanction is Held, that a commissioner appointed under the statute
not afforded, and his statement cannot be received." held office from the time of his appointment. This
California Sup. Ct., June 7, 1880. People of California would not sometimes be the case. As was said by
v. Hodgdon. Opinion by Ross, J. Field, J. (People v. Whitman, 10 Cal. 47): “To the complete investiture of an office, the acts of the ap- PLEADING - ATTEMPT TO STEAL. — In an indictment pointing power and of the person appointed must, in for an attempt to steal, it is not necessary to specify some instances, concur. The appointment is complete the particular articles intended to be stolen. In Whart. when the commission is signed by the President; but on Cr. Law, $S 292 and 1282, it is said that in indictit is competent for Congress to require the perform- ments for attempts to commit crimes in themselves ance of certain acts by the appointee, such as the exe- indictable, it is not necessary to observe the same parcution of security, the taking of an oath of office, ticularity as is required in indictments for the comand the like, beforo he can enter into the possession mission of the offeuse itself. And as illustrative of of the office. This has been done in relation to the that position, he says an indictment for an assault office of surveyor-general. The performance of the with an intent to steal from the pocket is good without acts are conditions precedent to the holding of the stating the goods or moneys intended to be stolen. In office." United States v. Le Baron, 19 How. 78. It is accordance with this statement of the rule, it has been also competent for the Legislature to make the taking decided in various states that tho offense of attempts of the oath of office, etc., a condition subsequent, and to commit larceny is complete by an intention to steal to provide, as in the case at bar, that the appointees and an act done in pursuance thereof apparently effi
-SEX OF CHILD NOT RE
cient to carry out the purpose, and it is not necessary to his conduct in disobeying the order. 2 Taylor on in the bill of indictment to aver the specific articles Ev. (7th ed.), $$ 1400, 1401, 1402 ; 3 Wharton's (rim Law. intended to be taken, as such fact is extrinsic and not (ñth ed.), S 30090. In Cobbett v. Hudson, 72 Eng. C.L. essential to constitute a criminal attempt. State v. 11 (decided by Queen’s Bench in 1852), Lord Campbell, Wilson, 30 Conn. 500; Comm. v. McDonald, 5 Cush. C. J., observed, that with respect to ordering wit365; People v. Bush, 4 IIill, 133; Spencer v. Ohio, 13 Ohio, nesses out of court, although this is clearly within the 401; Hunter v. State, 29 Ind. 80. North Carolina Sup. power of the judge, and he may fine a witness for disCt., January Term, 1880. State of North Carolina v. obeying this order, the better opinion seems to have Utley. Opinion by Dillard, J.
been that his power is limited to the infliction of the
fine, and that he cannot lawfully refuse to permit tho PLEADING -INFANTICIDE
examination of the witness. Citing Cook v. NetherQUIRED TO BE STATED. - - In an indictment for infanti
cote, 6 C. & P. 471; Rex v. Colley, 1 Mood. & Mal. 3:29; cide, although convenient and advisable when it can
Tbomas v. David, 7 C. & P. 350. And in Chandler v. be safely done, it is not indispensable that the sex of
Horne, 2 Mood. & R. N. P. 423, Erskine, J., said: “It the murdered child be stated even though its name be
used to be formerly supposed that it was in the disunknown or it has no name. The law requires that an
cretion of the judge whether the witness should be indictment shall be so certain as to the party against
examined. It is now settled and acted upon by all tho whom the offense was committed, as to enable the
judges that the judge has no right to exclude the witprisoner to understand who the party is, and upon what charge he is called upon to answer, as to prevent
ness; he may commit him for contempt, but he must
be examined; and it is then matter of remark as to the prisoner from being put in jeopardy a second time
the value of his testimony, that he has willfully disfor the same offense, and as will authorize the court to
obeyed the order. See, also, Nelson v. State, 2 Swan, give the appropriate judgment on conviction. What
237. Virginia Ct. of Appeals, Nov. Term, 1879. Hey would it practically add, in these respects, to the rights
v. Commonwealth of Virginia. Opinion by Burks, J. and safety of the accused to have the sex alleged ? In a criminal proceeding, the allegation of name is enough though there may be more than one person of the same name in the same place. State v. Grant, 22 Me. 171.
THE ENGLISH EMPLOYERS' LIABILITY It is enough to allege the namo to be unknown, al
BILL. though the grand jury might have ascertained what the name was. Com. v. Stoddard, 9 Allen, 280. An HE indictment need not describe, by an addition, the per- regulate the liability of employers to make comson upon whom an offeuse is committed. Com. v. pensation for personal injuries suffered by workmen in Varney, 10 Cush. 402. In Bac. Abr. (Indictment G.) it their service, as amended in committee on recommitis said, “Sometimes it may be convenient, for dis- ment and on consideration as amended,” and in the tinction sake, to add it," but not esseutial, "for it is
form in which it is presented to the House of Lords: suflicient if the indictment be true, viz., that J. S. was
“1. Amendment of Law. – Where after the comkilled or robbed, though there are many of the same
mencement of this act personal injury is caused to a name.” The tendency of modern decisions is to less
workman (1) by reason of any defect in the ways, strictness than formerly in describing persons and
works, machinery, plant or stock-in-trade connected properties in indictments. If it is sufficient to describe
with or used in the business of the employer; or (2) by a man by his name alone without an addition, when
reason of tho negligence of any person in the servico there are many others of the same name, or allow the
of the employer who has superintendence intrusted to person to be nameless in a presentment of the grand
him while in the exercise of such superintendence; or jury because they do not know what the name is, (3) by reason of the negligence of any person in the although they could have ascertained it by some pains
service of the employer to whose orders or directions taking, it can be no stretch of legal principle, to say
the workman, at the time of the injury, was bound to that in the case of an infant it is not essential that the
conform, and did conform, where such injury resulted sex should be stated. Com. v. Brettun, 100 Mass. 206;
from his having so conformed; or (4) by reason of the Com. v. Campbell, 103 id. 436; Com. v. Strangford, 112
act or omission of any such person in the service of id. 289. Maine Sup. Ct., Dec., 1879. State of Maine v.
the employer done or made in obedience to the rules Morrisey. Opinion by Peters, J.
or by-laws of the employer, or in obedience to particuTRIAL- EXCLUSION OF WITNESS FROM COURT-ROOM lar instructions given by any person delegated with — FAILURE TO OBEY ORDER DOES NOT DISQUALIFY the authority of the employer in that behalf; (5) by WITNESS. — On a trial of a prisoner for receiving goods reason of the negligence of any person in the service knowing them to be stolen, on the motion of the attor- of the employer who has the charge or control of any ney for the Commonwealth, without objection by the signal, points, locomotivo engine, or train upon a railprisoner's counsel, the court directs the witnesses to way - the workman, or in case tho injury results in leave the court-room; and they all leave but one, who death, the legal personal representatives of the workwas in the prisoner's box in the court-room, held on a man, and any persons entitled in case of death, shall requisition from the governor of another State, upon hieve the same right of compensation and remedies the charge of the larceny of the same goods. In the against the employer as if tho workman had not been progress of the trial the attorney for the Common- a workman of nor in tho service of the employer, uor wealth offers this man as a witness, and he is objected engaged in his work. to by the prisoner, on the ground alone of his remain- “2. E.xceptions to Amendment of Law. – A workman ing in the court-room, after the order of the court, shall not be entitled under this act to any right of held, that he was a competent witness. Whero an compeusation or remedy against the employer in any order directing the exclusion of witnesses from the of the following cases; that is to say, (1) under subcourt-room during the trial is made, if a witness or the section 1 of section 1, unless tho defect therein menofficer in charge willfully disobeys or violates such tioned arose from or had not been discovered or remeorder, he is liable to be punished for his contempt, and died owing to the negligence of the employer, or of at one time, according to the English practice, it was some person in the service of the employer, and inconsidered that the judge, in the exercise of his dis- trusted by him with the duty of seeing that the ways, cretion, might even exclude the testimony of such a works, machinery, planks, or stock-in-trade were in witness. But now it seems to be the practice to allow proper condition, (2) Under sub-section 4 of section the witness to be examined, subject to observation as 1, unless the injury resulted from some impropriety or
defect in the rules, by-laws, or instructions therein mentioned; provided that where a rule or by-law bas been approved or has been accepted as a proper rule or by-law by one of her majesty's principal secretaries of State or by the board of trade or any other department of the government, under or by virtue of any act of Parliament, it shall not be deemed for tho purposes of this act to be an improper or defective rule or by-law. (3) In any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence.
"3. Limit of sum recoverable as compensation. — The amount of compensation recoverablo under this act shall not exceed such sum as may be found to be equivalent to the estimated earnings, during the three years preceding the injury of a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury.
“4. Limit of time for recovery of compensation.- An action for tho recovery under this act of compensation for an injury shall not be maintainable unless notice that injury has been sustained is given within six weeks, and the action is commenced within six months from the occurrenco of the accident causing the injury, or in case of death, within six months from the time of death; provided always that in case of death the want of such notice shall be no bar to the maintenance of such action if the judge shall be of opinion that thero was reasonable excuso for such want of notice.
**5. Money payable under penalty to be deducted from compensation under act.-- There shall be deducted from any compensation awarded to any workman, or representatives of a workman, or persons claiming by, under, or through a workman in respect of any cause of action arising under this act, any penalty or part of a penalty which may have been paid in pursuance of any other act of Parliament to such workman, representatives, or persons in respect of the same cause of action, and where an action has been brought under this act by any workman, or the representatives of any workman, or any persons claiming by, under, or through such workman for compensation in respect of any cause of action arising under this act, and payment has not previously been made of any penalty or part of a penalty under any other act of Parliament in respect of tho same cause of action, such workman, representatives, or person shall not be entitled thereafter to receive any peualty or part of a penalty under any other act of Parliament in respect of the same cause of action.
** 6. Triul of actions.-1. Every action for recovery of compensation under this act shall be brought in a county court, but may, upon the application of either plaintiff or defendant, be removed into a superior court in like manner and upon the same conditious as an action commenced in a county court may by law be removed. 2. Upon the trial of any such action in a county court before the judge without a jury one or more assessors may be appointed for the purpose of ascertaining the amount of compensation. 3. For the purpose of regulating the conditions and mode of appointment and remuneration of such assessors, aud all matters of procedure relating to their duties, and also for the purpose of consolidating any actions under this act in a county court, and otherwise preventing multiplicity of such actions, rules and regulations may be made, varied, and repealed from time to time in the same manner as rules and regulations for regulating the practice and procedure in other actions in county courts. “County Court'sball, with respect to Scotland, mean the Sheriff's Court,' and shall,
with respect to Ireland, mean the Civil Bill Court.' In Scotland any action under this act may be removed to the Court of Session at the instance of either party, in the manner provided by, and subject to the conditions prescribed by, section 7 of the Sheriff Courts (Scotland) act, 1877. In Scotland the sheriff may conjoin actions arising out of the same occurrence or cause of action, though at the instance of different parties and in respect of different injuries.
“). Mode of serring notice of injury.-Notice in respect of an injury under this act shall give the name and address of the person injured, and shall state in ordinary language the cause of the injury and the date at which it was sustained, and shall be served on the employer, or if there is more than one employer, upon one of such employers. The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. The notice may also be served by post by a prepaid letter addressed to the person on whom it is to be served at his last known place of residence or place of business; and if served by post, shall be deemed to have been served at the time when a letter containing the samo would be delivered in the ordinary course of post; and in proving the service of such notice, it shall be sufficient to prove that the notice was properly addressed and put into the post. Where the employer is a body of persone corporate or unincorporate,the notice shall be served by delivering the same at or by sending it by post in a prepaid letter addressed to the office, or if there be more than one office, any one of the oflices of such body. A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy therein, unless the judge who tries the action arising from the injury mentioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defense by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading
“8. Definitions. For the purpose of this act, unless the context otherwise requires, the expression 'person who has superintendence intrusted to him' means a person whose solo or principal duty is that of superintendence and who is not ordinarily engaged in manual labor; the expression employer' includes a body of persons corporate or unincorporate; the expression 'workman' means a railway servant and any person to whom the Employers and Workmen Act, 1875, applies.
"9. Commencement of act. - This act shall not como into operation until the first day of January, 1881, which date is in this act referred to as the commencement of this act.
“10. Short title.- This act may be cited as the Employers' Liability Act, 1880."
Editor of the Albany Law Journal :
It may seem presumptuous for the writer to suggest that “ Midsummer's" problemn has not been correctly solved by any of your correspondents; especially as some of them are supported by tho authority of very respectable courts. He is, however, prepared to take that responsibility.
The fallacy of tho reasoning of “ E. M. S.," "Subscriber" of Port Richmond, and "Sol. Kohn," must bo apparent when it is seen that it would serve to leave either A, B or C “out in the cold,” as follows.
* E. M. S.” starts with the proposition that C is to be paid in full, except as affected by B's mortgage; for the purposes of this argument we will number this proposition “1.". The same reasoning which satisfies
“ E. M. S.” that C is to be paid in full except as affected As to A the order of priority indisputably is, C 1st, by B's mortgage, would lead to the conclusion that B A 2d, B 3d. is to be paid in full, except as affected by A's mortgage, As to B the order of priority indisputably is, A 1st, which is the only superior lien to B; this wo will call B 2d, C 3d. proposition “2." And it would also lead to the con- As to C the order of priority indisputably is, B 1st, clusion that A is to be paid in full except as affected | C 2d, A 3d. by C's mortgage, which is the only superior lien to A;
RECAPITULATION. and this we will call proposition "3.” Starting with
A is B is proposition “1," "E. M. 8.” uses a lino of argument
C is which leaves B "out in the cold.” Now, if we start
As to A....
2d 3d 1st with proposition “2,'' using the same line of argument,
As to B...
1st 2d 3d we leave A out, and if we start with proposition "3" As to C....
3d 1st 2d we leave Cout. Substantially the same criticism may be made on the argument of “Subscriber” of Port
6 Richmond, which in effect is that of “E. M. S.”
Chas. F. ESTWICK. "Sol. Kohn” says that B takes $5,000, leaving an NEW YORK CITY, Sept. 23, 1880. equal amount for A; but Cintervenes and by reason of his priority causes the balance which В left for A to be paid to him, thus leaving A out. The same reason- Editor of the Albany Law Journal : ing would permit us to say that C takes $5,000, leaving
I have read the several communications published an equal amount for B; but A intervenes and by rea
by you in reply to “Midsummer's" problem as to prison of his priority causes the balance which Cleft for
ority among mortgages, at page 160 of vol. 22 of your B to be paid to him, thus leaving B “out in the cold."
JOURNAL. The fallacy of these arguments and of the decision
Let me change the problem by striking out $10,000 as in Bacon v. Van Schoonhoven, mentioned by “Sub- proceeds of sale of the mortgage premises, and insertscriber” of Troy, is that they assume that some one of
ing $5,000 in lieu thereof. the parties has a right to take the amount of his wort
Question. Upon which one of the three mortgages gage out of the fund, thus giving him that priority mentioned by “Midsummer,” should the money be over the others which is tho very subject of dispute.
applied ? The unsoundness, too, of the decision in Manufac
Answer. As between A and B the $5,000 belongs to turers' Bank v. Bank of Pennsylvania, mentioned by
A, for B had notice of A's prior unrecorded mortgage, “S. T. N.," we think is apparent. The reasoning there
and B has therefore no claim upon the $5,000. is that the first purchaser will have priority over the As between A and C, C takes the money, for the reathird, because the third cannot hold his ground against
son that C had not notice of A's prior but unrecorded the secoud, who must in turn yield to the first. The
mortgage. court ignores the fact that the third though unable to
It may be said that C stands behind B and that hold his ground against tho second can nevertheless
therefore B's claim should precede C's. Why so ? compel the first to yield to him. For instance: In the
If the mortgage of C did not exist, B would not take case there presented of the purchaser of an entire the $5,000. Now, since C's mortgage is in esse does it estate, we may suppose that A obtains possession after make or operate a right in B to the money? If so, the delivery and record of the conveyances; C then
then B gets the money by virtue of C's mortgage, who, sues in ejectment, and recovers against A; for, as be
as between B and C, stands behind B, and this would tween A and C, the priorities are C, A, B, -C having
be simply absurd, and is not demonstrable. C, therethus obtained possession is in turn liable to be ousted
fore, must have the $5,000. by B, for as between B and C the priorities are B, C, A.
If the proceeds of the sale were $10,000, as mentioned B may then be ousted by A, for, as between A and B
by “Midsummer," the remaining $5,000 must go to B, the priorities are A, B. C. And C may again oust A,
as heretofore stated by me, and as sufficiently shown and the parties might thus “swing around the circle”.
by Mr. Sol. Kohn, at page 238 of this volume. indefinitely, there being no ground upon which the
Never mind the adjudication of courts in other cases. doctrine of estoppel could be invoked against either. Wo have examined the reasons upon which the answer As to the arguments which go to leave one or the
to the question hinges. other out on tho ground of subrogation or substitu
C takes the first $5,000; B takes the remaining $5,000; tion, as it is termed by some, we think the error is
A is “out in the cold " with his first mortgage unsatisevident. They all assume that one of the parties has fied, on the same footing, in this respect, as your coran absolute right to the amount of his mortgage (the respondents, without compensation for their services fallacy above pointed out) and then applying the doc
in thinking out “Midsummer's” problein. trine of equitable (?) subrogation between the other
Yours again, two only deny one of them any interest; forgetting
EGBERT WHITAKER. that in each case tho victim of their system of sub
SAUGERTIES, N. Y., Sept. 20, 1880. rogation has (if subrogation be applicable to the case at all) a right in turn to be subrogated to the position of the very one to whom they gave the amount of his
Editor of the Albany Law Journal: mortgage by indisputable right. For instance, those who give C the amount of his mortgage and by subro- I have noticed a variety of answers to “Midsumgation give A the hare left for B, forget that B is mer's " question in your recent issue. It seems to me really entitled to be subrogated to C's rights. The that the question is fully answered by the case of truth is that the doctrine of subrogation can lend us Bacon v. Schoonhoven, 19 Hun, 158. no assistance to the solution of “ Midsummer's" prob
Yours, W.P. lem, for the simple reason that if C can be subrogated CATSKILL, N. Y., Sept. 20, 1880. to A's rights, B may be to C's, and A to B's, and so on.
From what has been stated it will be seen that the writer claims that there is no spriority in the case put
Editor of the Albany Law Journal : by “Midsummer," but that A, B and C are entitled to Reading the answers of your correspondents to share equally in the proceeds of the sale. He deems “Midsummer's" problem, reminds me that similar this capable of mathematical demonstration as fol- questions have twice been before the Supreme Court lows:
of Ohio. See Day v. Munson, 14 Ohio St. 488, and
Babbett v. Morgan, 31 id. 273. Perhaps you or some of your correspondents can tell what the language of the court in Day v. Morgan means; but it puzzles some of us out here.
READER. Sept. 23, 1880.
Editor of the Albany Law Journal :
I read with much interest the account in your issue of September 18, of an incident mentioned in the London Law Times that occurred in the Bristol County Court where one of the counsellors objected to proceeding with the trial of the case because the judge was father to the opposing counsel, because of the interest I felt in the subject-matter, which has been greatly increased by the conduct of a trial justice in this State. Our statute provides that the town councils of the several towns sball elect a trial justice from the qualified justices of the peace, his court being designated the justice court of that town, which has exclusive jurisdiction of all civil cases in which the amount claimed does not exceed one hundred dollars, excepting actions commenced by attaching real estate and certain cases where the title to real estate or some easement therein is the subject-matter in dispute. The towo council of the town to which I refer elected one of its members trial justice, and also elected him constable.
This same trial justice issues writs under his official hand and seal, serves them as constable by attaching the defendant's personal property or otherwise, as the case may be, reuders judgment in the same case, charges fees both as officer and court, issues executions and by virtue of them sells the property originally attached or levies upon other property. In fact, performs all the functions both of officer and trial justice of the same court.
In one particular case the trial justice served the writ in which case his brother was the plaintiff, and rendered judgment for plaintify for the amount claimed and costs, 'notwithstanding the defendant appeared by counsel and by proper pleas objected to the proceeding.
In another (criminal) case, the trial justice issues his warrant against the boy over whom he is guardian, alleging the offense of larceny; arrests his ward; finds him guilty; sentences him to the State reform school for two years, and to pay all costs of prosecution, which costs all go to the guardian as court and officer, and which bill it is reasonable to presume will be presented in the guardian's next account to the Court of Probate for allowance.
Quere, Is there any law outside the statute which prohibits a judge from officiating as officer of and in his own court, or which prohibits a judge from sitting ip a case in which he may have an interest except an immediate pecuniary interest?
LAWYER. PROVIDENCE, R. I., Sept. 20, 1880.
chapter 460, Laws 1847, was substituted and directed to be published as chapter third of part fourth. Said chapter 460 is divided into titles, subdivided into articles, and the sections numbered. In such chapter sections 155, 156 are the ones no doubt intended to be amended by chapter 416, Laws 1880. After 1847 various laws were passed bearing upon the subject-matter of chapter 3, part 4, of tho Revised Statutes, both amending and changing the same; but not all laws passed were made amendments ; nor has there been any change made by such laws in the numbering of the sections of the Revised Statutes. In the fifth edition of the Revised Statutes the compilers inserted such changes and assumed to renuinber the sections of chapter 3, part 4, and in such editions the sections in question are numbered 178 and 179. But the change is that of the compilers and not of the Legislature. Under these circumstances can the Laws of 1880 be of any effect, there being no sections 197 and 198 of the Revised Statutes proper?
So chapter 517, Laws 1880, amends section 20, title 14, chapter 9 of part 1 of the Revised Statutes. There is no such title. But the compilers of the fifth edition inserted as title 14, chap. 150, of the Laws of 1837, of which chapter section 18 is probably the one sought to be amended.
Chapter 423, Laws 1880, amends section 23 of title 2, chap. 5, part 2 of the Revised Statutes. By chap. 245, Laws 1880, the whole of titlo 2, chap. 5 of part 2 is repealed from September 1, 1880.
Chapter 437 of Laws 1880 ameuds section 16 of article 3, chapter 6 of part 1 of the Revised Statutes. The law probably intended to amend section 16 of article 3 of title III of chapter 6. The chapter is divided into eight titles, in four of which there is an article Ill. Though the subjects may not be of great importance the carelessness of the Legislature is, and suggests that perhaps it may be well in the future for some committee of the bar to examine bills introduced, and where there are errors like the ones noted above, have them rectified.
Very truly yours, NEW YORK, Sept. 1, 1880.
NEW BOOKS AND NEW EDITIONS.
XIX AMERICAN DECISIONS.
HIS volume contains cases from 2 Stewart; 1, 2, 3,
J. J. Marshall; 8 Martin N. S.; 6 Greenleaf; 1, 2, Gill & Johnson; 7, 8, 9 Pickering; 6 Halsted ; 1 Paige; 1, 2 Wendell; 4 Ohio; 2 Rawle; 1 Rhode Island; 1 Bailey ; 2 Vermont; 1 Leigh; with important notes on who are officers de facto; judgment at law based on false return of process; power of equity to perfect or enforce defective execution or acknowledgment of instrument by married woman; quantum meruit under special contract; special deposit in bank; arrest; power of equity to relieve against judgment at law; crops on execution sale of land.
LOOSE LEGISLATION. Editor of the Albany Law Journal:
Permit me to call your attention, and that of the profession and public generally, to some examples of loose legislation by the Legislature of 1880.
Without referring to chapter 480, to which attention has already been directed in your columns, the provisions of chapters 416, 4:23, 437 and 517 may be pointed
VI BRADWELL'S REPORTO. Reports of the Decisions of the appellate courts of the State of
Illinois, By James B. Bradwell. Volume VI. Containing all the remaining opinions of the first, second, third and fourth districts, up to August 12, 1880. Chicago: Chicago Legal News Company, 1880. Pp. 698. Wo have noted the following cases in this volume as of special interest: Morrison v. Jones, p. 89. -On liability to pay for services by acoepting them without express contract. Combs v. Bradshaw, p. 115. - Parol evidence is admissible to show that the consideration for an indorsement on a note, that the interest should be at the rate of ten per cent until paid, was an exten
Chapter 416 amends sections 197 and 198 of title 3, ch. 3, part 4 of the Revised Statutes. By chapter 460 of Laws 1847, title three chapter 3 of part 4 of the Revised Statutes was repealed from January 1, 1848, and