The Albany
Albany Law Journal.

THE

ALBANY, JANUARY 12, 1884.

CURRENT TOPICS.

HERE ought to be a statute prohibiting artists from bringing their quarrels into court. We have not noticed lately, but we suppose that the case of Feuardent v. Cesnola, about the Cyprus "mugs," is still going. It has already cost the country more than the entire collection is worth. The similar case of Belt v. Lawes, in England, has become one of the most celebrated causes of the century, and not the least so because of the disagreement of the judges on the appeal. The London Law Times says: "The question to be answered was nothing more than this: Has the plaintiff, or has he not, been guilty of the deceitful conduct imputed to him by the defendant? Is he, or is he not, entitled to be called an artist? The answer was not given until forty-three entire days had been consumed, until the plaintiff had executed a bust within the precincts of the court, until an enormous mass of contradictory evidence had been given on both sides. When given it was in the negative, and the damages were assessed at the undoubtedly high sum of £5,000. Whether that verdict was right or wrong, we are entirely unable to offer an opinion; but the defendant and his advisers considered that they had grounds for arguing that it was faulty in three respects, as being against the weight of the evidence, as the result of misdirection from the bench, as awarding excessive damages. A rule nisi was accordingly obtained for a new trial, and upon the plaintiff's argument against the rule, three judgments which, taken together, are perhaps the most extraordinary that have ever proceeded from the bench, have recently been delivered. First, Mr. Justice Manisty expressed at length his opinion that the original verdict was perfectly right, that the libel had been of the most terribly serious kind, that there had been no misdirection on the part of Baron Huddleston, and that the damages were by no means excessive. Upon him followed Mr. Justice Denman, not equally certain that there had been no misdirection, not so confident in the justice of the verdict, and clearly of opinion that the damages were exactly tenfold as large as they ought to be. Then the Lord Chief Justice delivered a judgment to the effect, that apart from technical principles, there had, morally speaking, been misdirection, and that the verdict was against the weight of the evidence. Three more dissimilar opinions upon one matter it is impossible to conceive, and there must be at least two out of the three judges to whom the compromise eventually made appears thoroughly unjust. Lord Coleridge must still think that the defendant is entitled to a new trial, Mr. Justice Manisty must still be of opinion that the plaintiff has been subjected to a great hardship. From these diametrically opposite positions it has been agreed, VOL. 29 No. 2.

in a somewhat rough-and-ready fashion, that the plaintiff shall be put to his election between reducing the damages to £500, or undergoing the enormous cost of a new trial." And the LAW JOURNAL says: "Let us hope that we shall be spared any further discussion of the case, as it appears to be one upon which not only no two people agree, but upon which not even any two out of three judges agree."

Justice Ingalls, of Troy, is charged with the following scheme for the relief of our Court of Appeals: "There should be only one appellate court, the numerical strength of which should not be less than twelve judges. The whole court should meet every morning at the State Capitol, and should be divided into four equal sections. One of these should hear all questions relating to real estate; another should determine questions of contract; a third should hear criminal matters and some other branch, while the fourth should consider miscellaneous matters, not heard in the other sections. Where constitutional questions arise, the full bench should hear the arguments, and when the judges of any section were not unanimous on any knotty point they could refer it to the entire court for a decision. All the General Terms and the appellate powers of intermediary courts should be abolished, and appeals of every nature should be taken directly to the Court of Appeals. The Supreme Court districts should be made much smaller, and one Circuit Judge located in each, whose duty it should be to dispose of all civil business arising in his district, holding court every month if necessary. The power to try civil causes should be taken from the County Judges, who should be given jurisdiction of all criminal cases, from petit larceny to murder. Under such a system there would be no need for costly references, appeals to intermediate courts would be dispensed with, business would be greatly expedited, and there would be a great pecuniary saving to the State and to litigants." We should like to have the judge explain how twelve judges are going to do the business which nineteen are now unable to perform, and of what material he expects men to be made who are to hold court "every morning." We are now inclined to think that the scheme of assigning certain business to certain sections of the court is less meritorious than dividing up the business without regard to its character.

"I see

A very high legal authority writes us: that the ghost of Large v. Benedict, will not down. You have materialized its spirit in the last number of the ALB. LAW JOUR. I was inclined to make a critique, but will content myself with a quotation: 'It is not becoming an independent Nation to repair ordinarily to the sea shore, to listen for opinions recently given in a foreign realm.' For 'Nation' read 'Editor,' and you will perceive that you are 'set down upon with all the weight of Sullivan's Land Titles, preface, p. v." Our distinguished correspondent should

reflect that by resort to the sea side one may get a notion of legal matters that may be valuable. It is frequently useful to inquire "what are the wild waves saying," even in legal affairs. And that is probably the reason that the Supreme Court justices resort to Block Island in the summer, although ostensibly to play whist.

A correspondent writes us to "express the real interest I feel, and the pleasure I have enjoyed in your contributions to our law literature by your sprightly commentaries upon adjudged words and phrases.

Were such criticisms heeded by bench and bar, law-theses and opinions must become more accurate and reliable. Sentence-constructing in a good and workman like manner, the value of words duly considered, the right word adapted to the right and appropriate place, are almost as essential to judicial opinion as the correct appreciation of the law."

The attendance on the annual meeting of the New York State Bar Association, on the 8th instant, was distinguished, but it was not large. In the absence of the president, Chief-Judge Ruger, Governor Cleveland, one of the vice-presidents, called the meeting to order, and made a few remarks which are given in another column. The usual routine business was transacted. The prize of $250 for the best essay was awarded to Mr. Lemuel Skidmore of New York. Mr. Skidmore read his essay, which was a very excellent one, the subject, Trial by Jury. He recommends the retention of the present system with some modifications, the chief of which was the permission to allow eight or nine to pronounce a verdict. All the other contestants for the prize came substantially to the same conclusion. Mr. John G. Milburn, of Buffalo, delivered an address, which he has not entitled, but which we should entitle, the Origin and Development of Law-a very admirable production, which we shall give in full next week. Mr. Milburn is strongly in favor of general codification. Mr. Elliott F. Shepard, of New York, was elected president. Thus the awkward and undesirable precedent of re-elections was disregarded, and fit recognition of distinguished executive ability and the most untiring service to the association was shown. A reception and collation in the evening finished the programme. The association now has some 1,500 members, of which at least one-third have been added during the last year.

One of the most interesting of recent law books is "The Patentability of Inventions," by Henry Childs Merwin. The curiosities of patent law here disclosed are often very amusing. Thus, in Reckendorfer v. Faber, 99 U. S. 347, the patentee had combined a pencil with a rubber eraser by sticking the handle of the pencil into a small tube of rubber. The court held that there were two simple infer- that a pencil and an eraser were useful together, and that the pencil would stick in the

ences

hole if it was once inserted there. Of this the London Laro Times remarks: "Yet here there is something of a leap over a logical chasm, and further, the useful nature of the combination is such, notwithstanding its simplicity, as to lead to the conclusion that something more than ordinary reasoning power was required for its production. The author is therefore driven to admit that the adverse decision of the court is assailable." The Times also remarks: "Inasmuch as the work is

primarily intended for American readers, it is natural that greater attention should be paid to American than English decisions, and some of the latter are summarily treated in such a manner as to render the ratio decidendi a matter of speculation. The following, for instance, is all that is given concerning a case decided by Malins, V. C.: A tubular rib for umbrellas being in use, it is no invention to make such a rib with one side open, like a trough.' We should say that is enough an admirable statement; and the power to make such statements is what has enabled the author to put all the essentials of his subject into one volume. Let us bless him for it.

It is surprising that the English, who have been so quick to adopt our reforms in the administration of the civil law, should be so reluctant to allow

prisoners to tell their own story as witnesses. They have sometimes allowed the prisoner's counsel to make a statement on his behalf, but of course that has no sanction and no weight. The right to do this was denied on the late O'Donnell trial. It seems that two years ago the English judges united in the following minute: 'At a meeting of all the judges liable to try prisoners held in the Queen's Bench room on the 26th of November, 1881 (Present: Lord Chief Justice Coleridge, Lord Justice Baggallay, Lord Justice Brett, Lord Justice Cotton, Lord Justice Lush, Lord Justice Lindley, Justice Grove, Justice Denman, Baron Pollock, Justice Field, Justice Manisty, Justice Hawkins, Justice Lopes, Justice Fry, Justice Stephen, Justice Bowen, Justice Mathew, Justice Cave, Justice Kay, Justice Chitty, Justice North), Lord Coleridge stated the Lord Justice Brett moved the following resolution: subjects for which the meeting was summoned, and the administration and practice of the criminal law, 'That in the opinion of the judges it is contrary to as hitherto allowed, that counsel for prisoners should state to the jury, as alleged existing facts, matters which they have been told in their instructions, on the authority of the prisoner, but which they do not propose to prove in evidence.' Stephen, J., moved the following amendment: 'That in the opinion of the judges it is undesirable to express an opinion upon the matter.' This amendment, having been put to the meeting, was negatived by nineteen votes to two. The original motion was then put, and carried by nineteen votes against two (Justice Hawkins and Justice Stephen dissenting). The question of the propriety of laying down a rule as to the practice of allowing prisoners to address the

jury before the summing up of the judge, when their counsel have addressed the jury, was then considered, and after some discussion was adjourned for further consideration." The prisoner's privilege to testify has been conceded in a number of our States, and has given general satisfaction.

NOTES OF CASES.

N Williams v. Mudgett, Texas Commission of

1 1893, 3 Tex. L. Rev. 337,

an action for an injury sustained by a horse by being driven against a barbed wire fence, erected partly across a public road, it was held that such fences are dangerous unless constructed with planks in connection with the wire. The defenses were set up that the plaintiff was riding very fast, and that he was intoxicated. On these points the court observed: "But there are limits beyond which the doctrine of contributory negligence cannot be extended. Suppose, for instance, that the defendant, instead of putting up this barbed wire fence, had placed daggers or barbed wires in the plaintiff's bed, and the plaintiff, in the act of lying down, had received serious injury, would the defendant be heard to plead that the plaintiff had come home drunk and had rashly thrown himself upon his bed and hurt himself? Now a public road is by no means so sacred as a man's private couch, yet it is entitled to very high privileges and immunities. In all ages men have been accustomed, in the country, to ride rapidly upon public roads, especially at nightfall. The greatest master of the English language and of English customs has canonized this usage in the following words:

'Now spurs the lated traveler apace to gain the timely inn.'MACBETH.

Not only so, but men, women and children are sometimes compelled to ride fast on these roads The safety of health and life may depend upon the speed with which they travel. The highest consideration of public policy requires that our highways should be free from any unnecessary danger which may threaten the safety of travelers. Now, a barbed wire fence is an array of miniature daggers. It is dangerous not merely to run against it, but to touch it. When put up across a public road, or across a line of general travel, without something to indicate its presence, it is like a man trap or a spring gun. And in our opinion, he who thus heedlessly besets the travel of the country with such peril is not entitled to demand a very high degree of care on the part of those whose flesh is lacerated, or whose lives are endangered by his acts. Yet we do not think the court erred in admitting the evidence which tended to show that the plaintiff and his companions may have been intoxicated at the time. The facts given in evidence for the defendant in this connection were connected, both circumstantially and in point of time, with the facts stated by plaintiff. They are parts of the res gestæ.

But it should be remembered that intoxication does not deprive a party of the protection secured by the law to sober people. The plaintiff therefore forfeited no right by being drunk, if he were really so. The drunken man however is placed at this disadvantage, while he might act more rashly than he would act if sober, yet his being drunk does not release him from the duty of being careful and cautious, just as if he were sober. Field on Dam., § 198."

In Rice v. Rice, 50 Mich. 448, it is held that delusions as to "greenbacks," or running for or holding office, or that his wife had courted him do not necessarily render a man incompetent to make a will. The court said: "Much of the evidence in the case, which was put in to prove insanity, had a tendency to show delusions on certain subjects. The decedent, it is said, talked foolishly about 'greenbacks;' he imagined himself a high federal officer, and he solicited votes for an office when no election was pending. But we look in vain in the will, whose provisions were dictated by himself, for any trace of these delusions, or any evidence that it was in any way influenced by them. Conceding the delusions therefore does not dispose of the will, or necessarily determine that it should be set aside. Fraser v. Jennison, 42 Mich. 206. The most remarkable evidence on this branch of the case is of statements made by decedent that his wife made the advances in courtship, and that on one or more occasions she inflicted outrageous personal injury on him after marriage. No attempt was made to show that the decedent was really under delusion in respect to these matters, and the natural tendency of the evidence was to prejudice the jury against the plaintiff by leading them to believe or to suspect that she was an unworthy person and undeserving of her husband's bounty. But the existence of a delusion that his wife was unworthy of esteem, or was abusing him, would be a singular reason for setting aside a gift which he had deliberately made in her favor."

In Kelleher v. Kernan, 60 Md. 440, a man eighty years old executed an instrument, by which, “in anticipation of his departure from Baltimore," and "to provide for possible contingencies," he sold and transferred to his daughter all his personal property, present and future, reserving the use and the right to dispose of the same otherwise if he thought proper. He made the expected journey, returned safely, and died shortly afterward. Held, that the instrument might be proved as a will. The court cited Cross v. Cross, 55 E. C. L. 714; Cock v. Cooke, L. R., 1 P. & D. 241. In Rehn v. Coles, L. R., 2 P. & D. 362; Att'y-Gen'l v. Jones, 3 Price, 369; Jackson v. Jackson's Adm'r, 6 Dana, 257; Morrell v. Dickey, 1 Johns. Ch. 153; Watkins v. Dean, 10 Yerg. 321; Walker v. Jones, 23 Ala. 448; McGee v. McCants, 1 McCord, 517; Welburn v. Weaver, 17 Ga. 267, Johnson v. Yancey, 20 id. 707;