The Albany Law Journal. MR. ALBANY, APRIL 12, 1884. CURRENT TOPICS. R. Leonard A. Jones, the well-known legal author, is preparing an Index of Periodical Legal Literature, and is desirous of obtaining the names of unsigned leading articles in this journal. The contributors of such articles will confer a favor by sending their names to Mr. Jones, 209 Washington street, Boston, Mass. ger of "miscarriage of justice" when one counsel is a young and pretty woman. We are glad to see the Journal candidly confessing that the potent argument against women lawyers is the jealousy of the male lawyers. It says: "Suitors will be naturally inclined to employ a pretty woman lawyer to plead their cases, relying on the effect of beauty, and the winning way natural to women. This of course puts a man lawyer on an unequal footing with this woman competitor. If therefore women are to be admitted to practice law, we suggest that they be permitted to practice only in courts presided over by a woman, and before a jury composed of women. We do not object to a woman practicing law, but she should not be permitted to do so, if an unfair advantage is given her over her male A correspondent takes us to task for saying that competitors. A woman would never have an unfair "whatever is said of General Butler must generally be against him," but that "he is a capital lawyer, one of the very ablest of the present time," and accuses us of gross inconsistency in these statements, apparently not being able to see how a man can be a good lawyer, and yet be a bungling generai, a demagogue, an insincere and designing politician, and a person of low moral tone. Our correspondent is unlawyer-like in failing to give due effect to our "generally." We think that being a good lawyer does not include all the cardinal virtues nor cover a multitude of sins. Especially we think that "generally " General Butler is all wrong, not only in a military but in a civic sense. admire the man's prodigious abilities, but we have very small respect for his public career and moralsno more than we have for those of Napoleon the First, for example. We Even Mr. Justice Gray himself can hardly fail to be amused by our correspondent, "The Modern Webster," who writes in another column about Implied Powers in the Federal Constitution. The opinion criticised appears to be rather unpopular, but it seems to us to deal with a subject political rather than legal. We should suppose that Mr. Carter might deduce, from the conflicting and fluctuating decisions of the Supreme Court on constitutional questions, a very potent argument against written Constitutions. But after all, if it is difficult to obtain agreement and consistency in decisions upon a written rule, how can we hope for any thing better for an unwritten rule? We commend this query to "The Modern Webster," who although one of the greatest wits in the legal profession, is a strong opponent of general codification. We would by no means insinuate that "Great wits to madness sure are near allied, And thin partitions do their bounds divide." The Denver Law Journal deprecates the admission of women as lawyers on the ground that there are already "too many old women practicing law, even among male practitioners." We hope the Journal means no double entendre when it says there is danVOL. 29-No. 15. advantage before a jury composed of women." As there are as many women as men in the world, they ought to be willing to take their chances. Let there be a "survival of the fittest." Now we are not jealous not even of our good-looking, clever, and successful rival, the editor of the Chicago Legal News. The legal profession of this State will find a great deal of interest (in the Memorial of the Old City Hall in this city, prepared by Messrs. Henry Smith, Hamilton Harris, and W. C. McHarg, in pursuance of the direction of Justice Westbrook, at the suggestion of the bar of this county. The old city hall was completed in 1832, and was destroyed by fire on the 10th of February, 1880. The Memorial speaks of "the pure white marble walls so pleasing to the eye, the Doric columns simple in their classic dignity and crowning all the gilded dome, so long an object of pride to citizens and an attractive picture to the traveller or tourist as he approached this ancient capital." Did Boston get their idea of its gilded dome from our city hall? We ask for information, The Memorial continues: "There was but little ornamentation to the interior of the not building, yet the artistic or æsthetic was wholly wanting. A full length statue of that distinguished statesman and lawyer, Alexander Hamilton, stood in the centre of the upper hall between the court room and the common council chamber. And upon one of the sides of that hall was a basrelief of another of New York's eminent statesmen, DeWitt Clinton, with a view of the primitive canal boat in the distance, and on the opposite wall a like figure of Sir Walter Scott in like style of art, but whether so placed in honor of his official rank as deputy sheriff of Selkerkshire, or as a tribute of respect to the author of Marmion and Waverly, we are not at this distance of time able to determine." We hope these plaster glories have been duly preserved. They could hardly be more unsubstantial, if less artistic, than the Hunt cartoons in the new Assembly chamber. The Memorial does not speak in glowing terms of the interior of the new city hall. We have no acquaintance with the interior, but in exterior the new edifice seems to us one of the most beautiful municipal buildings in this country. The anticipated cyclone from the far West, in regard to the judges' gowns, has at last struck us. The Denver Law Journal says: "The judges of the Court of Appeals of the State of New York have yielded to the importunities of our contemporary, the Albany LAW JOURNAL, and a few members of the bar, and have adopted silken gowns as their judicial robes. Must we assume that the silk robe will add weight to the opinions hereafter announced by that court? Facilis descensus averni, etc. In the West this act will cause the opinions of the New York court to be viewed with suspicion, and the fact of their yielding be regarded as an indication of weakness on their part, which will detract much from their authority. If however the plutocratic members of the bar of New York are satisfied with their judges aping the English customs in this respect, we have no reason to grumble.” This is the hardest blow up to date. That Virgilian quotation is really unkind. And why "plutocratic"? Perhaps because of the descent to Avernus. It is a little relief to turn to Sam Slick, whose commentary on gowns is recalled to us by the Canadian Law Times: "Silence!' said the sheriff, and all was as still as moonlight. It looked strange to me, you may depend, for the lawyers looked like so many ministers all dressed in black gowns and white bands on, only they acted more like players than preachers, a plaguey sight. But, said I, is this not the case in your country is there not some sort of professional garb worn by the bar of the United States, and do not the barristers and the court exchange those salutations which the common courtesies of life not only sanction but imperatively require as essential to the preservation of mutual respect and general good breeding? What on airth, said the clockmaker, can a black gownd have to do with intelligence? Them sort of liveries may do in Europe, but they don't convene to our free and enlightened citizens. It's too foreign for us, too unphilosophical, too feudal, and a remnant of the dark ages. No, sir; our lawyers do as they like. Some on 'em dress in black and some in white; some carry walking-sticks and some umbrellas, some whittle sticks with penknives and some shave the table, and some put their legs onder the desks and some put 'em a-top of them, just as it suits them. They set as they please, dress as they please, and talk as they please; we are a free people. I guess, if a judge in our country was to order the lawyers to appear all dressed in black, they'd soon ax him who elected him director-general of fashions, and where he found such arbitrary power in the Constitution as that, committed to any man.' 99 An apology is due Mr. John Cotton Dana for a misprint of his middle name in the signature of his article on "Responsibility," ante, 248. An error in so staple an article as Cotton ought not to have occurred, but it is after all probably self-evident. In a recent charge to a grand jury Justice Daniels contrived to vary the usual monotonous recital of in terms of severe reprehension of the customary the cardinal sins of usury, lotteries, etc., and spoke methods of selecting jurors. Perhaps the grand jury could not very well help the manner of their own selection, or provide for the proper selection of future juries, but the occasion was convenient for the promulgation of the judge's views, which we have no doubt were excellent, and having heard one of his ethical discourses to a jury we can imagAbout the first thing necessary to the reformation ine the severity and plainness of his remarks. of our jury system is to prevent all the decent and intelligent men in the community from getting excused. We do not know any reason, for example, why a manufacturer should be excused; if he has a great many men in his employ he owes the greater duty to the community which protects him in his large interests. The true way to reform the jury system is the same which is essential to the reduty, and not defend or encourage them in shirkform of politics. Compel good citizens to do their ing it. It is all very well for men to whine about the criminal disorder of the country, but we should think better of these virtuous citizens if they would put the right men into office, and pay their taxes like honest people, and not squirm and wriggle to escape jury duty. The laziness, indifference, dishonesty, and selfishness of the best people in the community are chargeable with much of the wrong-doing of the worst. NOTES OF CASES. In Moebus v. Becker, New Jersey Supreme Court, November, 1883, 7 N. J. L. J. 104, two minors went gunning together, and one threw up stones for the other to shoot at, and the shooter's gun being cocked it went off accidentally and wounded the stonethrower. "The boys were friends, enjoying a holiday together, drank some 'Russian bitters,' were inexperienced and unsuccessful as gunners." Held, a question of negligence for the jury. The court said: "The duty which a person lawfully carrying fire-arms owes to others is not different from that which is imposed on all who have control of any hurtful thing, except in the degree of care to be exercised. As fire-arms are more than ordinarily dangerous when loaded, those who handle them are bound to use more than ordinary care to prevent injury to others. The cases cited in the plaintiff's brief of actions for injuries caused by the explosion of fire-arms, and many others are found in the notes to Morgan v. Cox, 22 Mo. 373, collected in 1 Thomp. Neg. 238. Beginning with the leading case of Weare v. Ward, Hob. 134, all hold a strict rule of accountability for the want of extraordinary care in their use, but in no case is it said that where persons are gunning voluntarily together each may be held responsible for every accident or mishap that may occur to the other, while thus engaged; or that it is necessarily negligence to carry a gun cocked when in pursuit of game, or that in passing through brush, crossing ditches, climbing fences, or resting upon them, the gun must be uncocked; nor if one should pass in front of the other by his request, or on his own motion, and by stumbling or falling the gun of the other is discharged and a wound inflicted, that the only question to be considered by the jury is the amount of damages to be paid, and that negligence will be inferred as a presumption of law. Each case must stand upon its own peculiar facts, and rational rather than distinctive legal conclusions must usually be drawn from them. Whether in this case the damage to the defendant was the result of the pointing of the gun, or the accidental turning of the rail of the fence, causing the defendant to fall, and the discharge of the gun, as he has testified, was a question for the jury, and not for the court." * * * The statute as applicable to the rate of interest only, In Parker v. Stroud, 31 Hun, 578, it was held, that personal demand of payment of a note of the maker is valid as against the indorser, although not made at the specified place of payment. The court, Brady, J., said: "The plaintiff insists that the prior demands are of no avail, inasmuch as they were not made at the bank where the note was payable. But this proposition should not be sustained, for the reason that the maker, when applied to personally, admitted his inability to pay, from which it is clear that there were no funds in the bank for the purpose. The presentation at the bank, if necessary as a matter of form, should then have been made, in addition to the personal demand, if the plaintiff designed to hold the indorser. He knew from the maker's declaration that the note could not be paid, and he was therefore advised of the essential fact which put upon him the obligation to send notice to the indorser. *** The demand at the bank was a mere form, the re In Insurance Co. v. Carpenter, 39 Ohio St. 264, it was held that an agreement to pay lawful interest in advance is usurious. The court said: "It is contended by the learned counsel for the plaintiff in error, that the statute fixes the rate of interest and not the time of payment, and that as a contract to pay the rate semi-annually is not usurious, there is no principle that would prevent the contract from providing for the payment of the rate semiannually or annually in advance. This means neither more nor less than that the borrower may be bound to pay interest at a stipulated rate of eight per cent per annum upon money of which he has never had the use, and yet the contract be free from usury. Interest for money is the reward or compensation which is paid by the borrower to the lender, or by the debtor to the creditor, for its use. If it is paid in advance or deducted at the time of the loan, the principal, of which the borrower is tosult of which might readily be anticipated by the have the use, is reduced pro tanto, and the lender should not be compensated for the use of money which in fact he has not loaned. B., for illustration, borrows and gives his note for $12,000, payable in one year after date, with interest at the rate of eight per cent per annum, and the interest is deducted in advance. He receives only $11,040, which he uses for one year; but as compensation therefor, pays the stipulated rate of interest on twelve thousand dollars. By computation 'it will be seen that he has paid interest at the rate of eight and sixty-eight one-hundredths per cent on the amount which he has actually received. He has lost the use of the $960 held back by the lender, which he would have had, if the interest had been payable only after it had accrued or been earned. His payment of interest on the sum so deducted is without consideration, and solely for the benefit of the lender. A construction of the language of the plaintiff, with his knowledge of the maker's financial condition, of which he had been advised, and it was an idle ceremony as to such result. It has not been declared in any case which has been found, that a presentation for payment, to the maker of a note payable on demand, is not an actual demand, although the note is payable at a particular place." Daniels, J., concurred, doubting, yielding, as he said, to the "superior wisdom" of his associates. COMMON WORDS AND PHRASES. INDICATE. -In Coyle v. Com., Pennsyl said: "Although the words 'show' and indicate' are sometimes interchangeable in popular use, they are not always so. The present ordinary use of the words discloses a difference in signification, and wagon, and thus constituting a team, do not come that difference is perhaps more recognizable when under the designation of live stock. The word these terms are applied to the law or to medical stock, as employed in agriculture, means, accordscience. 'To show' is to make apparent or clearing to Webster, domestic animals or beasts collected, by evidence, to prove, whilst an 'indication' may be merely a symptom, that which points to or gives direction to the mind." a way of less than the usual width of a street. It is generally understood to be an open and unobstructed way. An order to open and provide an alley-way, is not fulfilled by providing a passage-way through which a person may pass by opening and closing doors and gates. Such means of passage are not within the reasonable and natural understanding of an alley-way." So it was held that an order to open and provide an alley-way is not fulfilled by providing a passage-way over the land where the alley should be, through a store-room, along which a person may pass by opening and closing doors and gates. PASSENGER SHIP.-A steam-tug, carrying a number of guests gratuitously on a pleasure trip on a single occasion is a (6 passenger ship," and liable to the penalty under the Merchant Shipping Act for not having a certificate. Board of Works v. Kidstone, Ir. Q. B. Div., January, 1884. The court said: "Neither does the fact of the ordinary employment being that of a tug-boat affect the question now for our decision. It is the user and employment of the vessel on the particular occasion which impresses her character on her at the time of that user and employment." O'Brien, J., dissenting, observed: "What is the ordinary sense of the words? A person going by a railway or a stage coach, or a steamer, anywhere, and paying his fare, would be called a passenger; but a person going out in a yacht or in a private coach would not usually, at all events, be so spoken of, just as a person who stopped at his friend's house would not be called a lodger, though he was lodged. * * * The whole foundation of the argument for the Board of Trade, as it appears to me, rests upon the error that lurks in the meaning given to the use of the word 'carry' in the 303d section. To carry is a term so common in the law as to have a defined meaning. It means carriage for profit. A person that carries is a carrier, and in the idea of a carrier hire is always included. Persons who are on board a ship by permission are not carried in a legal sense-they are not passengers, they are licensees. They have no right to remain, they have no regular destination, they may be put out anywhere. The law gives them no right of action for negligence. They are on board without any right or contract whatever, their legal presence perishes at any moment at the will of the owner." used or raised on a farm; as a stock of cattle or of sheep-called also live stock. Now, whilst it may be admitted that the term stock does not embrace the idea of a team, it cannot, nevertheless, be denied that the term team embraces the idea of live stock. The word team means two or more horses, oxen or other beasts, harnessed together to the same vehicle for driving. A team therefore is composed of live stock, and cannot exist without it. It would be exceedingly technical to hold that two horses, when harnessed and hitched together to a wagon, cease to fall under the designation of live stock." RUNNING AT LARGE.- A team of horses running away are running at large." In Inman v. Chicago, etc., R. Co., 60 Iowa, 459, the court said: "The appellant further insists that the team was not running at large, as contemplated in the statute. In Welsh v. C. B. & Q. R'y Co., 53 Iowa, 632, it was held that the jury was warranted in finding that a horse was running at large which had on a bridle with the rein over his head, and a halter rope which was untied and dragging. In that case an instruction, as follows, was approved: The words, 'running at large,' as used in the statute, import that the stock are not under the control of the owners; that they are not confined by inclosures to a certain field or place, nor under the immediate care of a shepherd or herdsman; that they are left to roam wherever they may go. But where an animal escapes from the control of the owner, and can not be caught by the owner, then such animal would be running at large within the meaning of the statute.' We are content with the doctrine announced in the foregoing case. Under it there can be no doubt that the horse in question in this case was running at large when it received the injury complained of." order of the court State, 30 Kans. 88, the abide,' as used in the ABIDE. TO "abide" the means to obey. In Jackson v. court said: "Now the word statute, means obedience, compliance. In Hodge v. Hodgson, 8 Cush. 297, Shaw, chief justice, in an action on a similar bond, uses these words: 'We have already said that the condition of the defendant's original obligation was to abide the final order of the court. To abide,' we think, as used in this statute, is to 'perform,' to 'execute,' to 'conform to,' such order. Taylor v. Hughes, 3 Greenl. 433.'" APPENDAGE. A well may be an appendage to a school-house. In Hemme v. School District, 30 Kans. 377, the court said: "Section 25, article 4, chapter 122 of the Laws of 1876 (Comp. Laws of 1879, p. 830), provides that 'the district board shall provide the necessary appendages for the school-house during the time a school is taught therein.' Unless this language can be construed so broadly as to authorize the school board to construct a well, or a fence, or a privy upon the ground supon which the schoolhouse is situated, it would seem that neither the -- STATUTORY CAPACITY OF HUSBAND AND WIFE TO CONTRACT TOGETHER. HE word "contract" in this article includes (1) executory contracts or contracts proper; (2) executed contracts or transfers; (3) and transfers without consideration, or gifts. Under the unwritten common law contracts between board nor the school district itself has any authority to construct any such improvements. We would therefore think that the Legislature must have used the word 'appendage' in said section 25, and also in sub- THE division 5, section 11, article 3, of said chapter, in a very broad and comprehensive sense, and intended to include these improvements, as well as many other things which might come within the general defini-husband and wife are absolutely void at law, because tion of appendages.' Webster defines the word 'appendage' as 'something added to a principal or greater thing, though not necessary to it, as a portico to a house.' Worcester defines the word as 'something added, attached, or annexed; a concomitant.' As before stated, we think the word ought to be construed broadly, so as to include a well constructed on the same premises on which the school-house is situated." PRESENT TIME.- In State v. Rose, 30 Kans. 501, the court said: "Present time' usually means a period of time of some appreciable duration, and generally of some considerable duration. It may mean a day, a year, or a century. We often speak of the present century and of future centuries. 'Present time' usually means some period of time within which certain transactions are to take place; and 'future time' usually means a period of time to come after such present time, and after the period of time when such transactions have actually taken place." CARRIAGE.- A police magistrate in London has recently held that a "perambulator," or baby carriage, is a "carriage" within the statute prohibiting "any cart or carriage, sleigh, truck or barrow upon any footway," i. e., sidewalk. The London Law Journal says: "This decision will carry dismay into the nursery. * We agree that two perambulators are an obstruction, and that nursemaids combining in the attack will often trample the toes of passers-by under their chariot wheels. But if one perambulator is a carriage in the obstructive sense, so is a toy wheelbarrow or a child's horse." a wife has no capacity to contract at all, and because husband and wife being one, any contract between them is void for want of parties. (1) But in equity where the duality of husband and wife has always been recognized and where a wife has always had a limited capacity to contract as to her separate property, contracts between husband and wife if equitable are valid. (2) Such contracts are not however discussed in this article, but only the validity of contracts as far as respects capacity between husband and wife under statutes. The statute the effect of which is in question may refer (1) expressly to contracts between husband and wife, or (2) simply to contracts of married women. 1. Some statutes expressly prohibit contracts (3) or some contracts (4) between husband and wife; others expressly authorize them. (5) A statute prohibiting contracts between husband and wife destroys their prior capacity only so far as such capacity is expressly referred to or as is necessary to secure the efficiency of the statute. (6) A statute authorizing contracts between husband and wife generally includes all contracts each could make with a third party, but if it specifies certain contracts the capacity it gives is confined to these. (7) If annexed to a general statute empowering a married woman to contract there is a clause excepting certain specified contracts with her husband, such statute gives her power to make all contracts with her husband, but those excepted, which it enables her to make with third parties. (8) Thus, under the Alabama statute, which provides that a married woman may contract but may not make a contract of sale with her husband, she may make any other contract with him and receive gifts from him,(9) and married woman may acquire property except from her under the Maryland statute, which provides that a husband in prejudice of his creditors' rights, she may acquire property directly from her husband when his creditors are not affected; (10) but a statute like that of Iowa (11) authorizing transfers between husband and wife does not authorize personal contracts. (12) (1) Scarborough v. Watkins, 9 B. Monr. 540, 545; Johnson v. Stillings, 36 Me. 427, 428; White v. Wager, 25 N. Y. 328, 332, 333; 32 Barb. 250. (2) Wallingsford v. Allen, 10 Pet. 583, 593, 594; Dale v. Loomis v. Brush, 36 Mich. 40. 46; Winnas v. Peebles, 32 N. Y. 423, 426. (3) Ala. Code, 1876, § 2709; Mass. P. S. 1882, p. 819, § 2; Bas sett, 112 Mass. 99, 100. (4) La. Civ. Code, 1875, §§ 2326, 2327; Minn. St., 1878, p. 769, BUSINESS. -A covenant not to carry on any Lincoln, 62 Ill. 22, 26; Stockett v. Halliday, 9 Md. 480, 498; "business on demised premises is broken by using the premises as a home for working girls, without compensation. Rolls v. Miller, Ch. Div., March 8, 1884. Pierson, J., said that a business" might be carried on without money being received; and he stated that in his opinion that was a business which was carried on by any person in addition to or as diverse from his ordinary domestic life. $4. (5) Cal. Civ. Code, 1881, 158, 159; Pa. Pur. Dig. 1872, p. 1007, § 21. ¡ (6) See Ingoldsby v. Juan, 12 Cal. 564, 575, 576: Maclay v. Love, 25 id. 367, 381, 382. (7) Jenne v. Marble, 37 Mich. 319, 323; See Stevroufeltz v. Frickey, 34 Md. 569, 571; Robertson v. Bremer, 24 Miss. 242, 244. (8) Goree v. Walthall, 44 Ala. 161, 164, 165; Trader v. Lowe, 45 Md. 414; Gregory v. Dodds, 60 Miss. 549, 552; Whitney v. Wheeler, 116 Mass. 70. (9) Goree v. Walthall, 44 Ala. 161, 164, 165; Goodlett v. Han RELIGIOUS WORSHIP.- In State v. Morris, 59 N. H. 536, it was said that this term has no technical meaning; and so it was left to a jury to say whether a temperance camp-meeting, opened with prayer and reading of Scriptures, and accompanied by singing of religious hymns, was an assembly for "relig- Robertson, 25 Iowa, 350, 355. ious worship." sel, 66 id. 151; Harden v. Darwin, id. 55. (10) Trader v. Lowe, 45 Md. 1, 14. (11) Iowa R.'C., 1880, § 2206; but § 1935, may authorize them; (12) Jeune v. Marble, 37 Mich. 319, 321.] |