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(N. Y. 1903) 85 App: Div. 440. The decision does not involve holding that the partnership may be treated as a legal entity for the purposes of the case ; for the court, extending the principle widely recognized as applicable in the taxation of real property, viz.: that the property pays the tax, to personalty, concludes that a precise designation of the owners is not necessary under the statute in the absence of a provision requiring it, and the entry in the firm name is sufficient.
Torts --ProximATE Cause—SUICIDE WHILE INSANE. The plaintiff was injured by the defendant's negligence. After some weeks he became insane, locked his bedroom door, twisted a napkin tightly around his neck, and held it so as to produce strangulation. Held, the voluntary, willful act of suicide of an insane person who knows the purpose and physical effect of his act, is a new cause, so that his death is not by reason of the negligence of defendant. Daniels v. N. Y., N. H. & H. R. Co. (Mass. 1903) 67 N. E. 424.
The question of proximate cause was decided the same way in Scheffer V. Railroad Co. (1881) 105 U. S. 249, though the two courts disagree as to whether moral appreciation of the act is necessary to relieve an insurance company where the policy contains a clause of exemption for "suicide.” The latter question involves the intent of the parties in making a con. tract. Massachusetts is supported by the weight of authority in holding it to be suicide within the intent of the parties when the person is conscious of the probable consequence of his act, and did it for the express purpose of destroying himself. Cooper v. Insurance Co. (1869) 102 Mass. 227. In Manhattan Life Insurance Co. v. Broughton (1883) 109 U. S. 121, it is held that the person must appreciate the moral aspect of his act to make it suicide within the intent of the parties.
TRUSTS_TRUSTEE'S DUTY OF PRUDENT INVESTMENT. Trustees" with full power to make investments * * * in such manner as to them shall seem expedient” invested between a fifth and a quarter of the trust fund in stock and bonds of a railroad company. Later, in perfect good faith, and relying on the advice of persons whom they thought qualified to give advice, the trustees made further investments in the same securities. Held the trustees were personally responsible for the latter investments, as not made in the exercise of a sound discretion. In re Day's Estate (Mass. 1903) 67 N. E. 604.
A trustee to invest must act with good faith and sound discretion. Harvard College v. Amory (1830) 9 Pick. 446. The wisdom and fitness of the investment is to be judged as of the time when it was made, and not by subsequent events which could not then have been anticipated. Brown v. French (1878) 125 Mass. 410. Whether the trustee exercised the reasonable diligence, prudence and discretion required of him should be determined from the facts of each case. In the principal case that method was not used. Instead the court followed the mathematical rule of Dickinson, appellant (1890) 152 Mass. 184, that for any investment in excess of from a fifth to a quarter of the trust fund the trustee is personally liable. Previous Massachusetts cases do not demand the exercise of any such infallible judgment by the trustee. Harvard College v. Amory, supra; Hunt, appellant, (1886) 141 Mass. 515. See also King v. Talbot (1869) 40 N. Y. 76. Wills—Contract to Devise-PREDECEASE OF Devisee. A testator agreed to devise certain land to A in consideration of A's giving his promissory notes for $2,200 to testator's daughter. A gave the notes but died before the testator. The testator left a will in accordance with his contract. Held, the devise, on A's death, did not lapse. Ballard v. Camplin (Ind. 1903) 67 N. E. 505.
The decision may be reached in either of two ways: (1) by treating the case as an exception, because of the consideration given, to the doctrine of lapsed devises, or (2) on the theory that equity will specifically enforce the contract. The courts usually prefer the former treat
ment, as shown by the analogous cases of a devise made to a creditor of the testator in consideration of the release of a pre-existing debt. Cole v. Niles (1874) 3 Hun 326; affirmed, 62 N. Y. 636. The authorities are numerous to the effect that equity will, as nearly as it can, specifically enforce a contract to devise, where the testator has died first but has made other disposition of his property.. Johnson v. Hubbell (N. J. 1855) 2 Stockton 332 ; 66 Am. Dec. 773, with note collecting the authorities. When the contract is made, the promisee acquires an equitable interest in the property, just as if he had contracted to purchase. His death before that of the testator cannot affect this vested right. Healy v. Simpson (1892) 113 Mo. 340. Wills-Right To Probate in Solemn Form. The decedent's will was admitted to probate without notice being given to the parties interested. After the statutory period for appeal had passed, the petition of the decedent's widow was filed asking that the executor be directed to offer the will for probate after giving notice to the interested parties. Held, the petition should be granted. In re Hodnett's Will (N. J. 1903)
The practice in the English Ecclesiastical Courts which had exclusivə probate jurisdiction was that if the first probate of the will was in common form, i. e., without notice to the interested parties, any such party might at any time call upon the executor to prove the will in solemó form, i. e., with notice to all interested parties. Finucane v. Gayfere (1820) 3 Phillim. 405; Blake v. Knight (1843) 3 Curt. 547. This practice was recognized by most early, American jurisdictions as a part of their common law. Noyes v. Barber (1828), 4 N. H. 406 at 412; Etheridge v. Corprew's Executors (N. Car. 1855) 3 Jones Law 14. The proceeding seems never to have been conceived of as an appeal. See Waters v. Stickney (Mass. 1866) 12 Allen, 1, 5.
LEGAL MASTERPIECES. By Van Vechten Veeder. St. Paul, Minn. Keefe-Davidson Company. 1903.
PP xxiv, 1324.
The purpose of the editor in making this collection of addresses and judicial opinions has been, he assures us, “to bring together, from the whole field of legal literature, specimens of the best models of the various forms of discourse and composition in which the lawyer's work is embodied.” Even a cursory glance at the contents of these two handsome volumes will convince any student of legal literature that Mr. Veeder has attained his purpose. Every selection is admirable. Every one is entitled to rank as a legal masterpiece. It is hardly to be expected, however, that this collection will satisfy every reader. While no one ought to object to the presence of any argument or opinion which is here reprinted, the absence of any specimen from Story, or Kent, as well as from other favorite jurists will disappoint many a student of the volumes. If this feeling of disappointment is strong enough, it may result in a rival compilation; and certainly there is ample material for a second, or even a third, collection of legal masterpieces.
The authors represented in these pages are Lord Mansfield, Thomas Erskine, Alexander Hamilton, Lord Stowell, Curran, Marshall, Brougham, Horace Binney, Webster, Cockburn, Benjamin R. Curtis, Wendell Philips, O'Connor, Richard Henry Dana, Jeremiah S. Black, David Dudley Field, Evarts, Lord Bowen, and James C. Carter. The selections from each are preceded by a brief biographical sketch of the author and a critical estimate of his work. These contributions of the editor are very interesting and valuable.
It will be observed that the selections are confined to modern writers. This is due to the fact that, in the editor's opinion, law and literature were completely divorced until Mansfield and Blackstone. Coke was “a dry legist," "knowing little of general literature and caring still less,” while the “great names even of Hale, Hobb and Nottingham have come down to us in work which, though invaluable in substance, shows, as a rule, small approach to art.” Since the age of Mansfield and Blackstone, however, there have been scholarly lawyers in abundance, and their addresses and opinions have been reported with fulness and accuracy. It is easy, therefore, to select from modern forensic literature “specimens designed to indicate the best methods of making the thought of the lawyer most effective; to show discourse as a system of thought animated by a rational order and sequence of ideas, and to display the effect of skill and taste in expression."
THE LAW OF BANKRUPTCY. Edwin C. Brandenburg. Third Edition. Chicago: Callaghan & Company. 1903. pp. Ixi, 1032.
This is the third edition of a well-known work, and can scarcely be recommended as a scholarly exposition of the theory and practice of the law of bankruptcy. However, the author appears to have planned it to serve only as a ready guide for the busy lawyer through the intricacies of the present Federal bankruptcy statute, and it seems to be well calculated to be of use to one who needs that sort of book. Evidence of care in the writing is not lacking, and the material in hand has been judiciously arranged, so that all that relates to each topic is easily accessible to the reader: but, like many of our legal text books, this is likely to be found serviceable, chiefly as a digest.
In form, the plan of the earlier editions has been followed with but little modification. In the opening chapter is found a suminary of the history of bankruptcy legislation at home and abroad, which might have been amplified with advantage. The various sections of the statute now in force are given in order, each section being followed in the text by appropriate comment on its phraseology and scope, with illustrations drawn from decided cases and suggestions of the author, in the main well-considered and helpful, on such points as have not yet been the subject of adjudication. There is copious citation of decisions under the old and new statutes and reference to the rules and orders of Court; the analogous provisions of the Act of 1867 appear in the foot-notes. Following the body of the treatise come the rules, forms and orders, the text of the present statute and that of the Act of 1867, and an index which is unusually full.
The importance of the amendments of the current year made necessary a revision of the second edition, and the author has taken advantage of the opportunity thus afforded by bettering his treatment of the subject in several respects. The volume of decisions rendered since the publication of the last preceding edition has aided in this. A portion of the text has been rewritten, many new cases have been included, and needed rearrangement of the subject-matter has been made, while the author's comment is fuller and more helpful.
STATUTORY CRIMES. Joel Prentiss Bishop. Third Edition by Marion C. Early. Chicago: T. H. Flood & Company. 1903. pp. XV, 997.
This well-known work requires no extended introduction to the legal profession. Originally published as supplementary to the author's Criminal Law, it has long been the standard authority on the subject with which it deals. Its introductory chapters on classification and interpretation of written laws have wide application and are of value outside the narrow limits of the Statutory Law of Crimes. The new edition appears without any substantial modification of the plan and scope of the earlier edition. The original text has been preserved in its entirety, all new matter being appended in the form of notes. The work of revision has been practically limited to bringing the work down to date by the collection of late cases extending or modifying the principles discussed in the text, and in all about four thousand new citations have been added. Only constant use will reveal the care and accuracy with which this work has been done. It appears, however, to have been done in a manner to justify the publication of the new edition and to commend the work to all interested in the enactment or enforcement of criminal statutes.
A BRIEF FOR THE TRIAL OF CRIMINAL CAUSES. Austin Abbott. Second Edition. Rochester: Lawyers' Co-operative Publishing Company. 1902.
pp. xx, 814. This work is devised to render the same assistance in the trial of criminal causes as that afforded in civil causes by Abbott's Trial Brief in Civil Cases. Like the first edition, it contains nothing novel and little which could not be obtained from the various legal publications devoted to the topics of which it treats. Its value lies rather in its arrangement in convenient form of the various topics which may demand consideration during the progress of a criminal trial and in the collection of concise digests of the cases having a more or less direct bearing on each topic. The result is a “handy” work of reference which is never scientific, seldom exhaustive, but always suggestive. Although double the size of the first edition, no indication is given of what is new and what is old matter; and as the revision is prepared by the un-named editorial staff of the publishers, not only is its authority anonymous, but a doubt is raised as to the uniformity of the revision, which can only be settled by constant reference to the reports of the cases cited. We are confident, however, that the new edition will be found a convenient means of tracing the authorities bearing upon the debatable questions which may arise in this branch of practice.
COLLATERAL INHERITANCE AND TRANSFER Tax Law OF THE STATE OF New York, ETC. By Edward H. Fallows, Transfer Tax Attorney for the State Comptroller in New York County. Associate Editor, George M. Judd. New York: Baker, Voorhis & Co.
1903. pp. XV, 305.
Mr. Fallows' and Mr. Judd's book does not pretend to be a scientific treatise on the subject of succession taxation generally or even within the state of New York. The plan of the book is, as stated in the preface, “to present every successive Collateral Inheritance and Transfer Tax Law in the State of New York * * * with the decisions of the different courts grouped under the respective sections of the law which they affect.” The result is a great deal of repetition and an absolutely unreadable book. But while the plan adopted is unfortunate from the point of view of the student of the subject, it is unquestionably useful from that of the practicing lawyer who wishes to find out what are the obligations of his clients. For the exact state of the law as it existed at