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CONVENTION OF JUDGES TO REVISE THE GENERAL RULES OF PRACTICE.

HELD AT THE CAPITOL AT ALBANY ON SEPTEMBER 29, 1880 PURSUANT TO AN ADJOURNMENT FROM JUNE 1, 1880.

Present Hon. Judges Mullin, Talcott, Smith, Learned, Sheldon and Daly.

On motion of Judge Learned, Judge Mullin was appointed Chairman.

On motion of Judge Smith, Judge Learned was appointed Secretary.

On motion of Judge Smith it was resolved that the Convention adjourn to meet at the Capitol at Albany on December 15, 1880, at 11 A. M., and that the secretary be requested to write to the several judges, required by section 17 of the Code of Civil Procedure, to meet and establish rules of practice, notifying them of such adjournment, calling their attention to the fact that three unsuccessful efforts to secure the attendance of a sufficient number to constitute a quorum have been made, and urging upon them the necessity of altering and revising the existing rules so that they may conform to the practice established by the new Code.

That he also request each of the said judges to inform him before December 10th as to whether or not he will be present at the meeting to be held on December 15th.

Judge Daly seconded the motion, which was adopted. WM. L. LEARNED,

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Judgment affirmed with costs. Ward v. Warren. Judgment affirmed - Henze v. The People. Judgment reversed and new trial granted, costs to abide event Greenwood v. Schumaker; Eggleston v. President, etc., of the Columbia Turnpike Company. Order affirmed with costs- Belmont v. Cornen; Walker v. Walker. Motion denied with costs Benedict & Burnham Mfg. Co. v. Thayer; People ex rel. Thayer v. Bowe.- Orders of General and Special Term reversed with costs, and the order of removal reversed and annulled - People ex rel. Campbell v. Campbell. Order of General Term reversed, and judgment on report of referee affirmed with costsHoward v. Johnson. - Judgment of General Term modified so that it shall direct a reversal of the Special Term, and that the writ be quashed without costs -People ex rel. Weeks v. Board of Supervisors of Queens County. Motion for reargument denied, with ten dollars costs-Fisher v. Raab.

NOTES.

THE American Law Review for October contains the

third part of Mr. Jones' contribution on the Law of Negotiable Securities - Pledge of Negotiablo Paper. Also copious extracts from the address of Hon. Benjamin H. Bristow, president of the American Bar Association, delivered at the late meeting. We have received the first number of the Colorado Law Reporter, a new periodical, to be published at Denver, and to be issued monthly in 8vo. of forty-eight pages, and to contain opinions in full, more especially those of local interest, and digests and notes of recent cases. The number before us is well printed, and the contents are of interest. The number of causes for

trial and argument in the city of New York on the fall opening of the courts is as follows: Supreme Court, General Term, 199 causes; trial term, 2.717; Special Term, 845; Superior Court, trial term, 950; Common Pleas, trial term, 804. Total, 4,625. This does not include the general terms of the Superior Court and Common Pleas.

M. B. Wright, county judge of Iroquois county, died Tuesday night, September 21, from the effects of an operation performed in the surgical hospital at Indianapolis. This case bears a singular resemblance to that of Judge Manning, of Alabama. Our lively friend, Mr. Bradwell, of the Chicago Legal News, complains of Judge Harker for holding that a woman cannot be a master in chancery! But it is too bad in the News to insist that Chief Justice Taney held, in the Dred Scott case, that a colored slave had no rights which anybody was bound to respect.

RENDER UNTO CÆSAR THE THINGS THAT ARE CÆSAR'S. In our last issue we reproduced from the columns of the Luzerne Legal Register an exceptionally pointed and readable article, entitled "Drinks, Drinkers, and Drinking," and naturally gave credit to that journal. We have since ascertained that the article in question is from the pen of R. V. Rogers, Jr., in the ALBANY LAW JOURNAL. We presume our friend of the Legal Register neglected to give the usual credit, or omitted it by mistake, and therefore led us astray. This is to make amends.-Ohio Law Journal.

During the week beginning October 11, the city of Baltimore propose to celebrate the 150th anniversary of its founding. There is to be a grand procession, in two divisions, the first "illustrating the progress and development of the city from 1730 to 1812, the second from 1812 to 1880." We are glad to observe that the progress in the administration of justice is to be illustrated. The programme of the first division is as follows: "Two heralds in English costume of 1730. Lords and baronets of 1730 on horseback, the trappings, etc., of the horses and the sashes being the colors of Maryland -orange and black. An Indian chief (to represent the chief from whom the ground now occupied by Baltimore was purchased) and his followers. Indian life, represented by a sceno of Indians drawn in a wagon. Capt. John Smith and thirteen men in a boat on wheels. Smith was the first man who cast his eye on what is now Baltimore, and explored the Chesapeake. Settlers in a wagon, among the representations being the log cabin and the outfit of the settlers in colonial times. Representation of the old courthouse, the first one built for Baltimore town, which formerly stood on a bluff forty feet high, on Monument Square, where the Battle Monument now stands; the stock and pillory will also be represented in this tableau. An old watch-box, with a squad of watchmen in the olden time in old-fashioned caps and overcoats and using rattles. Continental fifer and drummers. Military camp of the revolutionary war. Α company of Maryland minute men, known as the Maryland Line, commanded by a personification of Baron DeKalb; it was thought proper to introduce a representative of the latter in the procession, which will be in charge of the German committee, as DeKalb was a German and lost his life at the head of the Maryland Line. Trade and commerce of Baltimore, represented by a clipper in full rig, on the deck being tobacco, wool, grain and other Maryland products. A representation of the Star-Spangled Banner, consisting of a collection of shells and bombs in pyramid form, the topmost being a bursted shell, out of which emerges the Goddess of Liberty. A representation of the Battle Monument."

The Albany Law Journal.

ALBANY, OCTOBER 16, 1880.

CURRENT TOPICS.

HE different views of New York and Massachu

riage are illustrated in two very recent cases in which the facts strain the different theories to their

utmost. In the New York case, in the Court of Appeals, the administration and succession of the estate of a New York merchant of some wealth was disputed on the strength of an oral contract of marriage entered into before witnesses by the deceased, first in London, next on a ship crossing the channel, and third in Paris. Neither by French law nor by English does such a contract constitute a valid marriage. Whether it does on board a vessel on the high seas is a delicate question into whose solution many elements would enter. One of the most important would be the nationality of the vessel, and this was not in evidence before the court, nor does it appear that the marriage law in France was proved, a singular, not to say unaccountable oversight. The court, therefore, declining to take cognizance of a foreign law unless it was proved as an issue of fact, rendered its decision on the presumption that the marriage contract on board the vessel and in France was made under law like that of New York, and declared the marriage valid and the issue legitimate. In the Massachusetts case (Commonwealth v. Munson,

127 Mass. 459), the defendant, at a public religious

meeting called by him, at a chapel, in Worcester, Mass., at which about fifty were present, but at which no magistrate nor clergyman was present, gave out a text, talked awhile about "repentance," read Matt. xx, 1-5; then a woman came forward and read from the 6th to the 10th verse of the same chapter; they then joined hands and the defendant said: "In the presence of God and of these witnesses, I now take this woman whom I hold by the right hand to be my lawful wedded wife, to love, to cherish, till the coming of our Lord Jesus Christ, or till death do us part;" the woman then said: "And I now take this man to be my lawfully wedded husband, to love, reverence and obey him until the Lord himself shall descend from Heaven with a shout and the voice of the archangel and with the trump of God, or till death shall us sever;" and the parties then bowed, and the defendant offered prayer; neither party was a Friend nor Quaker, and the ceremony was not conformable to the usage of any religious sect; the rite was performed in good faith and followed by cohabitation. Held, no marriage. The learned chief justice, Gray, at the close of an elaborate opinion, said: "Whether it is wise and expedient so to change the law of Massachusetts as to allow an act, which so deeply affects the relations and the rights of the contracting parties and their offspring, to VOL. 22.- No. 16.

become binding in law by the mere private contract of the parties, without going before any one, as a magistrate or minister, is a matter for legislation, and not for judicial consideration." We believe the statutes of the two States do not essentially differ. Both provide for ceremonial marriage, but neither enacts that the absence of such ceremony shall render the marriage void.

The Pennsylvania Supreme Court have, so to speak, sat down on Judge Patterson, of the Quarter Sessions of Lancaster, in the matter of Messrs. Steinman and Hensel, attorneys and editors of the Lancaster Intelligencer newspaper. It will be remembered that the judge summarily expelled these gentlemen from the bar of his court for publishing a libellous article in their newspaper in reference to his judicial conduct. We urged pretty stoutly at the time that Judge Patterson had exceeded his judicial power, and that an attorney could only be disbarred for misconduct in his professional capacity or affecting his professional character. The Supreme Court have taken this view, and have vacated Judge Patterson's order, and restored the attorneys to the bar. The court also adopt the view that a libel, to amount to a breach of professional duty, must have been designed to acquire an influence over the judge in the exercise of his judicial functions by the instrumentality of popular prejudice a motive which is not alleged to have existed in this case. Now we have Judge Patterson set straight, we think it would be in order for Messrs. Steinman and Hensel to set themselves straight by a public apology to the

judge for a publication which they do not undertake to justify, and which was, therefore, clearly libellous. This is due to themselves as gentlemen and lawyers, and to the judge as a public functionary. By the way, the county of Lancaster has to foot the costs of the proceeding. We shall publish the opinion in full.

We are pleased to learn that this winter the bar of New York city are to have the benefit of a course of lectures on the Roman Law, by Adolphe L. Pincoff, of the University of Leyden. Professor Pincoff has received the degree of Doctor of Civil and Modern Law in its highest form · summa cum laude, and is a member of the bar of Rotterdam, his native city. Professor Pincoff will deliver his course in English, of which he is a complete and elegant master. The civil law is receiving close attention in England, where it has many disciples among the more scholarly-inclined members of the bar. There is no doubt that in its relations as a subject of comparative jurisprudence the civil law is of practical use to lawyers; nor, that in its historical aspects, it is of the first importance to the science of general jurisprudence. It is the only system of law, which, thus far, may be traced from its most primitive forms to its maturest development - the birth and death of an actual juridical system—and to it we look for some of the most important legal phe

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gether by an absurd custom, and compelled, for their own profit, to make as much as they can out of their unhappy clients."

This question of the cost of litigation arises collaterally on the consideration of the claim of Mr. Doutre, Q. C., upon the Dominion Government, for services as counsel before the Fisheries Commission, which services he values at $50 a day, the aggregate being some $20,000, we believe. The Canada Le

in the test case of Angers v. Queen Ins. Co. he re-
ceived $500 in fees, although he spent but two days
in court. In another case, in which he obtained a
$12,000 verdict, he was three days in court, and re-
In
ceived $1,800 in fees besides the taxed costs.
the case of Grant v. Beaudry, known as the Orange
Mr. F. X. Arch-
trial, he was paid $10 per hour.
ambault, of Montreal, stated that in the case of Wil-

A leading topic of discussion in the London legal and lay newspapers, at the present time, is the cost of litigation. A correspondent of the Times attrib-gal News informs us that "Mr. Doutre deposed that utes the great cost of litigation to the law of evidence, and the necessity of calling and keeping in attendance a crowd of witnesses. He says: "In former days causes were tried and witnesses examined on much stricter lines than they are now. late years cross-examination 'to the credit of a witness' has become an insidious cause of the protraction of trials. It has always been a rule in England not to admit secondary evidence of any fact if primary evidence can be obtained. The attendance of witnesses and the preparation of briefs for counsel and the fees of the latter are all regulated by these exigencies of the law of evidence. There appear to be two remedies for this evil: (1) A return to the old system of winnowing out each case by a process of pleading and extracting out one or two precise questions of fact which will constitute the issues to be tried, and to confine the evidence strictly to those questions; or (2) to relax the law of evidence and to permit the judges and juries to consider documents and other matters of evidence, although not constituting primary evidence; and to modify the practice of the courts so as to allow of trials being postponed for such further evidence on controverted points as the judge may think necessary. The first alternative remedy would no doubt be a retrograde movement, although probably an improvement on the present state of things. I believe that the second remedy is the only one that could be successfully applied." He recommends the adoption of the French system upon the latter point. Much more conclusive is the reason assigned by another writer, who says: "Another great reason for the increase of costs nowadays is to be found in the division of the legal profession into the two branches of counsel and solicitors. Looked at by the light

of reason alone, there is no logical argument whatever in support of that division. What can be more absurd than compelling a suitor to filter his case through the brains of one man into the ears of another? Even if a solicitor of talent and honesty wishes to act personally for his clients in those courts where he has equal audience he can only do so at a loss; for the authorized scales of costs are so arranged as to discourage this attempt at independence. Such a solicitor can get but a wretched fee for his own work, while, if he employs counsel, he can pay him well, and also run up a neat little bill

for himself. We doubt not but that a time will

come when, all this old-world nonsense being swept away, the lawyer will be one man complete in himself, and not, as at present, two people chained to

son v. Citizens' Ins. Co. the amount claimed in the suit was $2,000, but he received $1,000 as a retainer, besides other fees. In the case of Rolland v. Citizens' Ins. Co., his retainer was $2,000. In three capias cases which were presented as one, and which lasted about a month, he received $2,800 altogether. In the criminal case of a woman charged with stealing some silks, he received a retainer of $1,500. This client was merely admitted to bail. To defend a criminal case, which would not occupy more than two days, he had received $2,000." These amounts seem large, no doubt, but they are by no means unprecedented in this country. There are a number of counsel in the city of New York who command $250 a day. There would seem to be no reason why a British lawyer should not be paid as much as a British physician, both standing equal in their respective professions; and a British jury recently gave Dr. Phillips a verdict of £16,000 damages for two years' loss of business.

A correspondent writes us: "Referring to the comments of some of your correspondents upon the use of bad English by judges and reporters, is there any possible justification for the use of the word 'saloonist,' in the head-note of Thomas v. People, 39 Mich. 309? Saloon' is bad enough as a syn

onym for dram-shop, but 'saloonist!' Surely the reporter must have risen from a perusal of Artemas Ward, to indite that head-note. " Our correspondent is probably right. "Saloon" may be an Americanism, but it has grown into very general use. "Saloonist" is undoubtedly a coinage. "Baloonist," however, probably commenced in the same way.

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support an action in this State, although the defendant may have been a citizen of Canada, and although a copy of the bill of complaint was served on the defendant in this State, which according to the laws of Canada gave the court of that country jurisdiction to render judgment there. The court observed: "But the learned counsel for the plaintiff urges that the service upon the defendant at Chautauqua county of a copy of the bill of complaint, under the laws of Canada, gave the court jurisdiction of the person of the defendant. I cannot agree with him in such contention. No sovereignty can extend its powers beyond its own territorial limits to subject either person or property to its judicial decision. Every exercise of authority of this sort, beyond this limit, is a nullity. Story on Conflict of the Laws, § 539. The jurisdiction of State courts is limited by State lines. Ewer v. Coffin, 1 Cush. 23. This last case states that 'upon principle it is difficult to see how an order of a court, served upon a party out of the State in which it is issued, can have any greater effect than knowledge brought home to the party in any other way.' A citizen of one State or country cannot be compelled to go into another State or country to litigate a civil action by means of process served in his own State or country. And a judgment obtained upon such service, where no appearance is made by the person so served, can impose no personal liability which will be recognized beyond the State in which the action originated. Freeman on Judgments, §§ 564, 567. In Holmes v. Holmes, 4 Lans. 392, it is held that in order that the court have jurisdiction of the person of the defendant, it is necessary that the defendant be served with the process of the court, or voluntarily appear in the action, and 'that such service of process can only be made within the territorial jurisdiction of the court.' Dunn v. Dunn, 4 Paige, 423; Ex parte Green v. Onondaga Com. Pleas, 10 Wend. 592; Folger v. Columbia Ins. Co., 99 Mass. 267." "The comity due to the courts of other countries is urged as a ground for a recovery here upon this judgment. The courts of this State do recognize foreign judgments as binding here, when the record shows that the courts rendering a judgment had jurisdiction of the subject and of the person of the defendant, and give full credit to such judgments by refusing to retry the matters when once determined in an action where the for

eign courts had acquired such jurisdiction. We go no further with respect to judgments of a sister State." The same doctrine was held by the Supreme Court of Michigan, on a very careful and extended examination, in McEwan v. Zimmer, 38 Mich. 765; S. C., 31 Am. Rep. 332.

In Matthews v. State, Texas Court of Appeals, June 2, 1880, 4 Tex. L. J. 71, it was held that when a person sells a horse and the purchaser wins back the money at cards, if the former owner take the horse from the possession of the purchaser without his knowledge or consent, with the intention of regaining ownership, it is theft. The court said:

"According to the testimony, this appellant and another, on a quiet Sunday morning, engaged in a quiet game of cards, in which fortune seems not to have favored the defendant. One of the defendant's witnesses who, it seems, was not present at the time, says the first time he saw them, they (the players) put up $1.50. The defendant seems to have been called Lon, which we suppose to be an abbreviation for Alonzo, the Christian name of the defendant; his adversary seems to have been called Tobe; the witness, after mentioning the wager of a $1.50, says: Tobe won Lon's money; Lon put up his saddle; Tobe won that also, and Lon put up his horse, and Tobe won him.' There seems to be some discrepancy between the witnesses as to whether the defendant really staked the horse on the game or whether he did not sell the horse to Tobe for $25 in money and lost that instead of the horse; be this as it may, whether he staked the horse or the money, Tobe was the winner, either of the horse or the $25." "If this had been a civil action for the recovery of the horse, the argument of counsel and the authorities cited in support thereof would have been more appropriate. As it is, however, there was evidence going to show that the horse was sold by the defendant and delivered to Green, the alleged owner. This was an issue in the case and submitted to the jury for their determination. The jury having determined that issue against the defendant, and there being testimony to support it, we are of opinion the conviction was proper, even though the testimony showed that the defendant subsequently to the purchase and sale, did lose the money he received for the horse at cards with the purchaser."

In Hebblethwaithe v. Hepworth, Illinois Supreme Court, Sept. 25, 1880, 13 Chic. Leg. News, 19, it was held that a valid marriage is not contracted by mere verba de futuro followed by cohabitation. The court said: "By the common law, if the contract be made per verba de presenti it is sufficient evidence of marriage, or if made per verba de futuro cum copula, the copula would be presumed to have been allowed on the marriage promise, so that at the time of the copula the parties accepted each other as husband and wife. On this subject the maxim of the law is inexorable, that it is the consent of parties and not their concubinage that constitutes valid marriage. The well-being of society demands a strict adherence to this principle." "A contract of marriage per verba de futuro, while it may give an action, is not evidence of valid marriage. Nor are the relations of the parties changed by the fact that cohabitation may have followed the promise to marry at a future time. Port v. Port, 70 Пl. 484. A contract of marriage in the future even where the parties may afterward cohabit, is not understood to constitute marriage, unless when at the time of the cohabitation the parties accept each other as husband and wife, and so conduct themselves that that relation is understood and acquiesced in by relatives and other acquaintances. Such was not the case here. Even the reputation as to the relation of the

wheat at Buffalo. On acceptance of the draft, the plaintiff delivered the bill of lading to B, with an indorsement to the effect that the wheat was pledged to it for payment of the draft, and was

parties was divided in the neighborhood where they resided. Some thought they were married, but others did not. But it does not appear the parties, or either of them, ever understood they were in fact married. Her admissions clearly and understand-placed in B's custody "in trust for that purpose,”

ingly made are to the contrary, and we are not at liberty to declare otherwise." To the same effect, Peck v. Peck, Rode Island Supreme Court, 21 Alb. L. J. 344; 12 R. I. 485.

SEVENTY-EIGHTH NEW YORK REPORTS.

THIS volume contains an unusual number of cases

of local application and statutory construction, and those depending on peculiar and intricate states of fact. We glean the following as the main cases of general interest and application:

People ex rel. Francis v. Common Council of Troy, p. 33. A city charter required the common council to designate not to exceed four newspapers having the largest circulation in the city, in which the city advertising should be done. A designation was made, for a year, and acted upon, but the relator insisted and produced evidence that his newspaper had a larger circulation in the city than some of those designated. The proprietors of the other newspapers were not made parties. Held, (1) that the court could not by mandamus compel the designation of any particular newspapers in the first instance; (2) that it could not vacate the designation of any already made, nor add the relator's newspaper to those already designated; (3) that the year having elapsed for which the designation had been made, this remedy is not appropriate.

Fowler v. Butterly, p. 68. A husband procured an insurance upon his life for the benefit of his wife, and delivered her the policy. Afterward, without consideration, and without any knowledge on her part of the purpose or purport, and without any design to part with her property therein, but by the undue influence and control of her husband, she was induced to execute an assignment of the policy to a third person, who assigned it to a fourth, and those assignees paid the premiums. In an action on the policy, wherein the wife was made a party by order of interpleader, held, that she was entitled to the amount of the insurance, independent of the question whether the policy was assignable under the statute.

Chapin v. Dobson, p. 74. - It was orally agreed by A and B, that A should furnish B with certain machinery at a specified price, and that B should accept and pay for the same in a specified manner, and that A should guarantee that the machines should do B's work satisfactorily. The agreement was reduced to writing and signed, not including the guaranty. Held, that parol evidence was competent to add the guaranty.

Farmers and Mechanics' National Bank v. Hazeltine, p. 104. The plaintiff at Buffalo discounted a draft on B, on delivery as collateral, by B's agent, of a bill of lading of wheat shipped to B at New York, the proceeds being used by the agent to pay for the

and was not to be diverted to any other use until the draft was paid. B sold and delivered the wheat to C, but did not pay the draft. C knew of the bill of lading and the indorsement before his purchase. Held, that he was liable in an action for conversion of the wheat.

People v. Security Life Insurance and Annuity Co., p. 114. — An insolvent life insurance company, discontinuing business and failing to carry its policies, is liable to policy-holders in damages for breach of contract; the policy-holders are creditors for the value of their policies at the date of the dissolution of the company; and the claims of holders of unmatured policies are not to be postponed to deathclaims maturing before the dissolution.

People v. Merchants and Mechanics' Bank, p. 269. -The C. N. Bank cashed a check on the M. and M. Bank, and sent it for payment; the latter bank sent the former its draft for the amount, charged the check to the drawee's account, which was good, and returned him the check as paid. Two days afterward the M. and M. Bank failed, and was placed in the hands of a receiver. tion by the C. N. Bank to have the receiver pay the amount of the draft to it, held, that the transaction was a simple shifting of indebtedness by the M. and M. Bank, and did not impress any trust on the drawer's funds in its hands.

On an applica

Willy v. Mulledy, p. 310. - A statute requires owners of tenement houses to provide such fireescapes as shall be directed and approved by certain commissioners. Held, that the duty is presently imperative, and the owners must procure such direction and approval, without waiting for the action of the commissioners. Also, held, that a tenant who moves into such a house, knowing it has no fireescape, is not guilty of contributory negligence such as will defeat his recovery of damages for injury through the defect.

Hook v. Pratt, p. 371. The putative father of an illegitimate child drew a draft payable to his own order, and indorsed it, payable to the order of the mother, expressly "for the benefit" of the child. Held, (1) that the undertaking was not illegal; (2) that the draft imported a consideration.

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White v. Miller, p. 393. — In an action of damages for breach of warranty on sale of seed, held, that the proper measure of damages is the difference in value between the crop raised and the crop represented, without interest.

Arthur v. Homestead Fire Insurance Co., p. 462.A fire policy was conditioned that no suit upon it should be sustained unless commenced within a year after the claims should accrue. An action was commenced upon it within the year, and on the trial it appeared that in the statement of incumbrances in the application, a mortgage had been omitted. The plaintiff offered to show that the defendant's agent was informed of the mortgage but omitted it by

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