« ForrigeFortsett »
mony with the decisions elsewhere. We will refer to predecessor; but I own it is more gratifying to me a few cases showing the conflict which has been going than any personal compliment which could be paid to on and the final conclusion reached. It was held in me, for I see in this another proof, in addition to the Frevall v. Fitch, 5 Whar. 325, and in Hopkius v. R. many which have been pressed upon me during the Co., 3 W. & S. 410, that an instrument in the form of short time since I landed on these shores, of the cora promissory note, if attested by the seal of the cor dial and hearty feeling of sympathy which exists beporation, was not negotiable. In Carr v. Lefevre, 3 tween the English people and the people of the counCasey, 113, it was held that a bond issued by a corpo try which I have the great honor to represent. Au ration, payable to bearer, will pass by delivery, and the American representative coming here finds that it is holder may sue on it in his own name. In the opin no foreign mission on which he has been sent. On ion of the court, by Mr Chief Justice Lewis, it is said: both sides of the Atlantic he finds that he is equally “We do not desire to have any doubt on the question at home. He has changed his sky, but not the hearts whether the holder of bonds issued by a corporation, by which he is surrounded. [Applause.] He comes payable to bearer, may maintain an action on them in as a stranger, but he is soon made to perceive that he his own name. Such' bonds are not strictly negoti is welcomed and established at once as a friend. able under the law merchant, as are promissory notes [Hear, hear.] It is an undeniable fact, and in my and bills of exchange. They are however instruments judgment a most significant and gratifying fact, that of a peculiar character, and being expressly designed the relations between the people of the two great counto be passed from hand to hand, and by common tries are growing more cordial every day. I believe usage so transferred, are capable of passing by deliv they never were so cordial as they are at this moment. ery so as to enable the holder to maintain an action on [Applause.] International prejudices are usually the them in his own name.” This rule is recognized to be offspring of international misunderstanding; and correct in Phila. & Sunbury R. Co. v. Lewis, 9 Casey these rapidly disappear under the influence of a large 33. It was ruled in Diamond v. Lawrence County, 1 and liberal international intercourse. [Hear, hear.] Wright, 353, that a coupon bond of the county, under That is the means, under providence, that is bringing seal, should not be treated as negotiable paper, these people nearer and nearer, all the time, to each although it was there conceded that all the courts, other. [Ilear, hear.] Steam and electricity have American and English, held otherwise. County of bridged the Atlantic, and both countries are full of Beaver v. Armstrong, 8 Wright, 63, contains a very the citizens of each other. Many Americans live here, full reference to the authorities, showing that corpor and many English reside in the United States. Every ation bonds under seal payable to bearer in money summer this country is overspread with visitors from were negotiable. See also Bunting Admr. v. Camden, the other side of the Atlantic. How cordially on our etc., R. Co., 31 P. F. Smith, 254; Gibson v. Lenhart, 5 side of the Atlantic the feeling I have referred to as (ut. 522; Phelan v. Moss, 17 P. F. Smith, 59; McSpar- | existing here reciprocated, those who have traveled ran v. Neeley, 10 Norris, 17. Sup. ('t. Penn., Oct. 6, in the United States will know [hear, hear), while 1881. Jason v. Irick. Opinion by Mercur, J. (15 W. those who have not been there I cordially invite in Note ('as. 369.)
the name of my country to go. [Cheers.] It is such
intercourse that has brought the two people together MALVISTER PHELPS" FIRST AFTER-DIVNER in the manner to which I have alluded. The nature of SPEECIT LV ENGL:LVI).
the relations between governments, and especially of
great nations, is most importaut undoubtedly, and we [From the London Daily Standard, Jue 5.]
are to be felicitated, that as the lord mayor said, T the Mansion house last night the loral mayor en the relations between the governments of England
tertained her majesty's judges at a banquet, and and of the United States are now on so satisfactory & not only the bench but the bar and law generally were footing that nothing has to be said of them on any oclargely represented. An additional interest attached casion. But after all the real sympathy and fraterto the occasion from the presence of the American nity which should exist between nations depend not minister, who is a distinguished member of the legal upon the governments, and are not to be brought profession in the United States, and who made his first about by diplomacy; they depend upon the personal appearance in public. There were some 300 ladies and sympathy of the feelings of the people for each other. gentlemen present, the legal notabilities being Lord [Ilear, hear.] If I may be permitted to allude to reJustice Lindley, Lord Chief Justice Morris, Lord Jus cent events, I can assure you that when it was pertice Fry, Lord Watson, Lord Justice Bowen, Justices oeived in America that the clouds of war which apDenman, Kay, Manistry, Mathew, ('are, Day, Lopes peared to be settling down began to dissipate, aud and North, Baron Pollock and a strong muster of Q. there was a hope-in which I pray God we may uot be C.'s and of other guests.
disappointed-that tho sunshine, if continued, was At the banquet the loving cup was circulated and likely to fall unobstructed on the multiplied industhe royal toasts were duly drunk.
tries of England, there was no people within the range Tho lord mayor proposed the health of the min of humanity by whom that conclusion was received ister of the United States. Whilo cordially wel with more sincero and complete satisfactiou aud gratcoming his excellency in the name of the whole itude than by the people of the United States. country, he would express a hope that the existing ro [('heers.] Especially, sir, as it seems to me, should lations between the two countries might be main the fraternal feeling between these great nations find tained, so that no great diplomatic activity on his part expression in this place, and on such an occasion, would be necessary.
where you, my lord mayor, preside in the capacity of Mr. Phelps, whose rising was the signal for contin chief magistrate of this greatest city in the world, ued applause, said: I am very much indebted to you, whose commerce has more than put a girdle round my lord mayor, for the very kind words in which my about the earth, and whose great industry and businame has been presented, and to you, my lords, ladies ness have made its commerce. It is there that you and gentlemen, for the more than kind and generous touch us most nearly. America is emphatically a manner in which you havo received it.
I do not pre
country of industry and business, and in uo other sume to take to myself in any degree the honor of this country in the world do business men bave so large a reception I am as yet a comparative stranger within share of influence in the affairs of government. Amer the gates of England, and have no such claim upon ica is pre-eminently a country for the worker and not your personal consideration as had my distinguished for the idler, and therefore here more than anywhere
else is it appropriate that expression should be given fluous or are not being performed. Between leading to the true relations which exist between the two) States like the Union and Great Britaiu causes of countries. [Hear, hear.) But there is another reason friction are ever liable to arise. They may be rubbed why an American representative who, as you have into sores, or soothed into subsidence, much at the said, my lord mayor, is an American lawyer, should discretion of diplomacy. A sympathetic American be glad to come here on this occasion, and that is the representative will understand that for Englishmen common share we claim with you and the common to wish to provoke American ill-will is inconceivable. admiration which we feel with you for those distin Ile will comprehend their general disposition to guished men who are the judges of England. [IIear, friendliness, and something warmer. He will put to hear.] We claim them also as our brethren, for in the true account the accidents of local manner and hundreds of American courts, and to thousands of expression. He will feel himself accredited to the lawyers as well as judges who never saw and never British people no less than to the secretary for foreign will see the faces of English judges, their names are affairs. To Englishmen it is at least as important as household words, and their judgments are the sub to an American minister that he should accept his jects of constant study and instruction. Of American functions in that spirit. Jr. Phelps' sample of himjudges, it may be said that they administer laws over self at the Mansion Ilouse is testimony that his the wide area between the Atlantic and Pacific largely | interpretation of his obligations agrees with theirs. founded on your judgments here, so greatly are they A special connection with one of the great divisions esteemed and valued. We have lately had among us of English life and thought tends to facilitate a genone of the most distinguished members of the English eral appreciation of the nationality it is an American bench-Lord Chief Justice ('oleridge. He came as the envoy's province to study. A member of an American guest of the American bar, but he remained as the profession which is also an English profession begins guest of the American people. [('heers.) He delighted by not being a stranger. Mr. Lowell from the mothem, and I believe he came away not altogether dis ment he occupied the legation was at home. As a pleased with us. [Ilear, hear.] I hope many of his member of the vocation of letters, he had a key to the distinguished brethren will follow his example and citadel of English hearts. Mr. Phelps is among the travel through what I may call the second jurisdiction most eminent of American lawyers, and has stepped of the British bench. I think in no one thing are the on shore in the midst of a confraternity which is British people more largely to be congratulated than scarcely other than his own. An American minister upon their judiciary; for it is British justice which has who has spent, as Mr. Phelps worthily boasts, his best built up British liberty. The freedom of England has years in the practice of the law, is provided witz, a been fought for in many a field, and contended for in wedge warranted to open the hardest knots of insular many a parliament, and many a great light has been
llo speaks the dialect in rogue wherever lawthrown upon it from the judicial bench, and the free vers are met; and where are they not? Armed with dom we enjoy wo inherited from you. Your poet lau the professional shibboleths, he has of his personal right reate hus condensed the whole thing in his lines: as unchallenged admittance into the inmost recesses of
English habits as the author whose heart both sides of "Where freedom broadlens slowly down
the Atlantic are equally empowered to read. Not in From precedent to precedent." (Cheers).
literature itself, common as it is to the two lands, is The London Times of June 5th says: Mr. Phelps, the National inheritance of Great Britain and the the new United States minister, appeared for the first United States more genuinely undivided and joint time on Wednesday evening in his official character, than in law. There are American text books which before a large assemblage of Englishmen. Ile give on have educated two generations of English jurists. Judgthat occasion abundant reason for the British public ments of English courts are cited at Washington with to desire that he may let it see much of him, and en hardly less technical and almost more moral authority able it to become intimately acquainted with his mer than the decisions of American judges. On particular its. In his answer to tho Lord Mayor's proposal of points, sometimes grave, oftener trivial, the courts of his health, he chose his topics with the utmost judg the two countries differ. In guiding principles and in ment, and treated them with perfect taste. It was spirit they obey the same motives, and would esteem something of an ordeal at once for his audience and it a serious discredit to be convicted of unexplained for himself, and both emerged from it with mutual divergence. For both the advantage is manifest and satisfaction. The succession to Mr. Lowell could not extraordinary. The absence of direct authority in the but be a trying inheritance. Aninfusion of a little liter expositions from across the water, to which Mi ary crossgrainedness iuto his predecessor's diplomatic Phelps referred, increases rather than lessens their behaviour would have smoothed Mr. Phelps' entrance utility. A lawyer adopts more or less mechanically on his ministerial career. Mr. Lowell has supplied when in his favor, or struggles against as tyrannical him with no opportunities of solacing contrast be when adverse, precedents from his native tribunals. tween men of genius and men of affairs. No legation Without any sense of constraint ho consults conclucould have been conducted more efficiently than that sions arrived at by minds which, though foreign, are of the United States during the past few years. its trained like his own and acknowledge identical princhief showed himself to be as capable in interviews at: ciples, in order to inform his own intelligence, and to the foreign offico as he was brilliant in the Abbey assist his reason in it's voluntary operations. AmeriChapter IIouso. Ilis successor is known for excellent can lawyers are in this impersonal way very familiar business qualities. He spoko on Wednesilay with a already to Englishmen, and have long been highly regrace of diction and an elevation of tone which prove garded by them. Individually they are less well him fitted to fill Mr. Lowell's place as well socially as known abroad than the liberality of the English legal in office. The two countries want at the United States vacation has enabled the professors of this country to legation in London one who will live with English be. Ur. Phelps will do much toward repairing the omismen while he negotiates. The lord mayor expressed sion. IIe will be a medium toward bringing the Enga natural hope that very little might be heard of Mr. lish and American bars and benches together in other Phelps' discharge of bis diplomatic duties. As Jr. mocles than by their partnership in law books and axPhelps said in his reply, it is indeed matter for con ioms. Lord Coleridge investigated minutely during his gratulation when, as now, they require nothing to be American tour the American legal procedure,and is besaid about them. Because they excite no public lieved to have persuaded himself of its adaptibility in anxiety it is not to be supposed they either are super several respects to English needs. Mr. Phelps can
similarly compare the system in which he is an expert conceived and arranged. The work is published by with that from which it has been mainly derired. He M. Murphy, of Philadelphia. is heartily welcome to any transportable improvements he may discover. The one return to be asked of him is that he shall not praise English law for its
CORRESPONDENCE. defects. Ile quoted at the Mansion House an American judge's description of the two courses open to dis
SURETYSHIP. appointed American suitors. They may either appeal the case or go away and swear at the court. With rea
Editor of the culbany Law Journal : sonable professional feeling he seems to regret that his
The death of one of two joint sureties discharges his countrymen are unlike Englishmen in inclining to the
estate both in law and in equity. Wood v. Fisk, 63 N. second alternative. He is as au American, though not
Y. 245. But to effect that result the undertaking must as a lawyer, ungrateful at any rate in seeming to rep
be joint, and not joint and several. Id. The relation robate the American disregard of the liberty of ap
also must be strictly that of a surety. Richardson v. peal. It is devoutly to be wished that English liti
Draper, 87 N. Y. 337. And the rule obtains in case of gants were slower to use it. Redundancy of appeals
direct proceedings by a creditor against the legal repis the disgrace of English law. It would frequently be
resentatives of the deceased surety, but not where the better to go away and swear at the court in modera
action is brought by a co-surety for contribution. tion. (ourts however have broader shoulders here
Johnson v. Harvey, 84 N. Y. 363. perhaps that in parts of the United States.
The doctrine of the last cited case would seem to enOf the incorruptibility and impartiality of British
courage circuity of actions, or make it necessary,rather courts there can be no question. The praise is so in
than to discourage the same, which generally is the disputable that the judges can themselves join in it policy of the law. without consciousness of an indulgence in vainglory.
In Richardson v. Draper, supra, Earl, J., delivering ('are simply for the true decision is an obvious quality the opinion, makes in passing the following observaof British judges. Sir Hardinge Giffard uttered on
tion: “The reasoning upon which the exemption of Wednesday a hope that no political and constitutional
the deceased surety's estate from liability is founded, changes may be allowed to sully judicial patronago at
though sanctioned by numerous cases, is not very conits source, without any real fear that the Nation would vincing, and has not always been viewed by judges in any circumstances suffer the intolerable pollution. and jurists with favor. It is difficult to perceive why The extent to which recent legal reforms have restorec
the estate of a surety who was a joint obligor, upon to the Nation possession of its own law, and made law
whose credit and responsibility mainly the obligee a manageable and available instrument of National
loaned his money, should be discharged by the death life, is more debatable ground. Lord Justice Lindley
of the surety. It would seem that in good conscience does not claim without cause that English jurisprui
and sound morals, and upon priuciples of natural jusdenco in the last few years has shaken off a vast load
tice, it should respond and bear the loss, if any, rather of technicalities. It has become more practical and
than the obligee who trusted the surety.” heedful of common sense. It employs the learning of
The views of Judge Elliott with respect to the imthe past as a clue to the truth, and does not feel it a
portance of following precedents, as cited in the deep groove from which it may not try to escape. The
ALBANY LAW Journal of June 13, 1885, are sensible sole cloubt is whether the evident amelioration there
and judicious. To determine when to depart from has been of legal processes, and the advance toward a
precedent is most difficult. But such power should certainty of the triumph of right in the end, have been
exist. sufficiently matched by an improved prospect of final
June 19, 1885.
J. B. DALEY, and speedy deliverice from the legal labyrinth. Eng. lish law, though much less unintelligible and artificial
COURT OF APPEALS DECISIONS. than formerly, remains for the litigant, as it has been said to be for the practitioner, a jealous mistress, that
IE following decisions were handed dowu Tues bears no rival. No wise man will go to law now any
day, June 23, 1885 : more than of old who is not prepared to make it for an indefinite time his profession. A suit progresses more
Judgment affirmed with, costs-Crosby v. Hotaling; swiftly than in the days of Lord Eldon; it is scarcely
Adamson r. Elwell; Almy v. Thurber; Risley v. Abeasier for a suitor to be sure when, if ever, he will be
bey ; Langley 1. Sixth Avenue Railroad Co.; Pond v.
Starkweather. Order out of it for good and all. In view of all the unavoiil
Woerrishoffer v. Vorth River Construction Co.able complications of modern existence it is unfair
Order of General Term reversed ; that of Special Term that a necessary like litigation should be a resource
atlirmod, with costs-Rice v. Barrett. Judgment against which prudence warns in the United States
allirmed-People v. Morse alias West. - Motion for according to the minister, suitors either appeal or
reargument denied, with costs-Jackson v. Andrews. swear at the court. They are not hung up on both
-Motion to amend remittitur denied, with costshorns of the dilemma at the same instant. In England it is not to be assumed that they abstain always from
('arpenter v New York, Lake Erie & Western R. Co. the second form of intemperance because they are ex
-Motion to amend remittitur. Granted, with costs
to be paid by appellant and without costs of this travagantly addicted to the first.
motion-Inie Petition of Waring and another.
Motion to amend remittitur. Granted and remittiVEI BOOKS «IND NEW EDITIONS.
tur to be amended so as to allow appellants costs of
appeal, together with all necessary disbursements in SILARSW00D & Budi's LEADING CASES ON REAL
both-In the matter of the final accounting of the exPROPERTY.
ecutors of William Tilden. -Motion to put cause on The second volume of this series is at hand. We can
calendar for day certain. Denied without costs—City do no more than reiterate our opinion expressed on of Brooklyn v. Copeland; Parker v. Supervisors of the publication of the first volumo. The editorship Saratoga; Haight v. Sane; Powell v. Same. -Motion has been deprived, by death, of the services of the ac to strike cause from calendar. Granted on payment complished Judge Sharswood, but Mr. Budd shows of taxable costs of appeal and $100 counsel fee-Champgood discrimination in selection, and his notes are well liu v. Stodart.
Page. | CORRESPONDENCE-Continued.
answers to an interesting inquiry..
answer to a query....
cancellation of notice of pendency.
Court of Appeals calendar.
181, 220, 240, 279
261 guaranty; attention called to case of; Allen v.
inconsistent decisions; denials on informatlon and
political contributions from candidates for judge
.219, 240, 338
COURT OF APPEALS, suggestion of double
(See Current Topics.)
420 CRIMINAL LAW, abstracts. 19, 78, 238, 256, 278, 358,
438, 458, 499
380 CURRENT TOPICS :
act prohibiting cigar-making in tenement-houses de-
agnosticism; increase of, necessitates modification
aldermen ; enjoining and release of, for political
American decisions; importance of, to coming
Anthony, Judge Elliott, interesting articles on
appeals from petty orders in First Department, N.
Y., letter on..
Arnold, late Isaac N., portrait of.
Arthur, ex-president, resuming old law practice;
London Law Times on...
assassination ; never justiflable in national differ-
281 Bar association ; Georgia on Judicial Reform, per
of New York city; printing of absurd social
theories against Codification by.
122 of New York State ; meeting oi, notice of trans-
341 Cairns, the late Earl; reminiscences of, by Lord
"catch-lines; proper office of, as distinguished
279 Chicago Law Institute; catalogue of, library of 162
300 cigar-making in tenement-houses ; act probibiting,
399 Civil Code, and revision of Statutes; names of
Assembly ; -- general, recommended by Gov-
142, 181, 281, 321
Judge Cooley and ex-Judge Erskine on..... 402
always for amplification instead of bare point
compelled to stoop to contemptible questions... 262
ican Decisions, and Myer's Federal Decisions.. 182
State, between 1691 and 1830, Minister Phelps on... 482
engineers for injuries incurred by negligence of its