The Albany Law Journal.

AS

ALBANY, JUNE 7, 1884.

CURRENT TOPICS.

S a general thing we know of no drearier reading (except these current topics of ours) than the conventional address to the graduates at law school commencements. The same old laudation of the profession (which nobody believes), the same good old advice (which nobody heeds), and the same old prophecies of coming greatness on the part of the auditors particularly addressed (which they all swallow), make up a bill of fare that has become tiresome, and has lost its nutritive properties. It is a pleasure to take up an address to law school graduates so wise and original in thought, and so graceful in expression as that by General Wager Swayne, delivered at the commencement of the law school of the University of the city of New York, on the 15th ultimo. We wish that we could find space for the whole of this admirable production, but instead we must content ourselves with a few extracts. In speaking of the power of the sense of his trust to develop the talents of the lawyer, the speaker said: "So the first practical result of cultivating this sense of trust is found in the distraction it removes. The very idea of a trust involves the presence of an interest which is to be cared for, as between it and our personal interest, in preference to that interest which is our own. The prime consideration is our duty, not our interest. The habit of mind this brings is helpful to a lawyer in two very important ways. First, it sets the mind free from distraction of personal solicitude. That means a great deal in the mere matter of available time and amount of work accomplished. Then it induces a cool and clear habit of mind, which means a great deal more. To the lawyer who regards his profession as a trust there must come this gain in time, and opportunity for work. Whenever at work for a client every personal distraction is met by this opposing sense of duty. Even when not so engaged the duty of fitting for the next trust reposed in him suggests itself continually. This one sense is in constant exercise. It is as constantly growing in the habit and power of control. By this process, easily realized, it is all the while putting down a number of unworthy things which I need not here specify, but with which you are familiar. Each one of them comes only as an isolated conception or distraction. It is met by the connected strength and cumulative force of a habitual sense of duty, and I know of no consideration so effectual. Out of this comes a concentration that is in its turn most fruitful. You remember the beautiful use which Bunyan makes of Sampson's riddle, 'Out of the eater came forth meat, and out of the strong, sweetness.' He had met and slain a lion, and he afterward found honey VOL. 29-No. 23.

in its skull. Bunyan says this is the allegory of temptation overcome. The honey that is found in the skull concentrated on its duty to the law is a delight and satisfaction in the law. This in its turn results in a progressive and delighted concentration. It is comparatively easy to rant or to declaim; it is also comparatively easy to see through that sort of thing. If, on the other hand, it is seen that a simple duty of truth is being done in the presentation of the cause, though it be but the truth of one side of it only, and though it extend to every true consideration likely to win sympathy for that side, and a verdict of approval, though it be plainly the one-sided truth of an advocate, still it draws the sympathy which truth elicits, and is stronger and stronger as in the progress of the presentation it becomes more and more obviously the thought and feeling and suggestion of a man who is under the control of his own sense of duty. Hence, as it seems, all of these intuitive perceptions, power of statement, strength of reason, and persuasive effect, all naturally arise and grow from that which is within yourselves, and which you have the power to increase by giving to it the momentum of accumulated motion. All of these things are thus, in a real and positive sense, within To reach them pre-supposes only your reach. health and strength, and possibly provision for a time for such deficiency of earnings as apprenticeship to any trade of skill involves. All of those other things, of which some break a lawyer down, or keep him down, or turn him into other tradesand of which some, on the other hand, exalt him to great honors, but require what you cannot yet be sure that you possess - these also are outside of the profession, and not part of it. They are things which belong to the perversions of life, or the accident of natural qualities, to the man, not to the lawyer. To be a lawyer, and a good one, to be recognized as such, and as such to be full of work and reasonable honor, is, I believe, within the reach of every one of you, and by this plain and practicable road."

We have nowhere met with a better treatment of the question about the lawyer's par-. tisanship than the following from the same address: "Another individual result within your reach is a courtesy of judgment that is closely allied to wisdom. A lawyer's lot is to find himself all the while very earnest in the support of certain views, yet all the while confronted with men as earnest as himself, but thinking the other way, and urging their views also. This results, not from any insincerity on either side, but from the effect of a lawyer's duty. The lawyer should be as sincere as the judge, but his duty is not

the same. The lawyer has to prepare and present but one side of a case, not both. He is, as to his side of it, a laborsaving apparatus for the court. It is not his business to prepare the other side. He comes to know best the facts that support his side, for it

Cleaves v. Willoughby, 7 Hill, 83; Surplice v. Farnsworth, 8 Scott N. R. 307; Francis v. Cockerill, L. R., 5 Q. B. 501; Jones v. Just, 37 L. J., Q. B. 89; Searle v. Laverick, 9 L. R., Q. B. 43; West Lake v. De Graw, 25 Wend. 669; Dutton v. Gerish, 9 Cush. 89; Foster v. Peyser, id. 242; McGlashan v. Tallmadge, 37 Barb. 313; Sutphen v. Seebass, Common Pleas, General Term,May 18, 1883; Truesdell v. Booth, 4 Hun, 100; Nemelty v. Naylor, 18 Alb. L. J. 498; Laughlin v. Kief, 15 id. 255; Krueger v. Farrant, 29 Minn. 385; S. C., 43 Am. Rep. 223; Wilkinson v. Clausen, 29 Minn. 91; Allegeant v. Smart, 11 Rep. 784."

In Third Nat. Bank of Buffalo v. Guenther, Buffalo Superior Court, General Term, January, 1884, 13 Abb. N. C. 428, it was held that a married woman who carries on a separate business in the name of a former firm, of which she is the lawful successor, and habitually issues bills and promissory notes in the ordinary course of such business in such firm name, is estopped when sued by a bona fide purchaser of a promissory note, which on its face purports to have been made by her in the ordinary course of such separate business, from showing that such note was accommodation paper. The court said: "If the note was a void contract, as claimed by the defendant, it is argued by the plaintiff that the defendant, actually carrying on a separate business, is bound by the same rules of law and equity in the conduct of it that are applicable to men and unmarried women. And why not? It cannot be that the Legislature has invested the married woman with certain rights and privileges in derogation of the common law, without it being intended in the law that she shall be held, in the exercise of those rights and privileges, to the same responsibilities and liabilities that govern the man or the unmarried woman. Were it not so, then the citizens and members of the community are not equal in their standing in the law. A married woman carrying on a separate business or trade is but a member of the social organization or body politic, entitled to every right that men have, but not to any exemption from the effect of those principles of law and equity which have been established by the courts for the protection of property, and the well-being of society. She need not carry on a separate business or trade, she need not accept the position and privileges given her by statute, but if she does, and goes out into the arena of active life seeking for its advantages and power, she should be governed by and held to the same rules of action, the same liabilities, and bound by the same doctrines of established law and equity as are those with whom she mingles in the business transactions of life. She can be only their peer, and not their superior; she cannot justly be clothed in an armor of exemption and special privileges because of her weakness at the common law, and at the same time assert her right to all the privileges of manhood in her business transactions. If she accepts the privileges of the statutes and the position the law gives her, she

accepts them cum onere, bearing the same burdens, and subject to the same liabilities and rules of law and equity as her unmarried sister. The true solution of the question is to be found in the declared position and rights given to her by statute; she may hold property, and carry on any trade or business on her sole and separate account, and sue and be sued as if she were unmarried. In carrying on her business she is to be considered as an unmarried woman, and of course, an unmarried woman can claim no exemption, but stands on an entire equality with men. Before the passage of the act referred to the courts all agreed that the doctrine of estoppel in fact and equitable estoppel had no application to married women or infants, unless their conduct had been intentional and fraudulent. But when the reason of the rule is done away with, and the married woman is placed by law on the same plane of equality with the man or unmarried woman, then the rule becomes abrogated, or at least not applicable to her transactions in carrying on her separate business." The reporter adds: "It has been frequently decided that the doctrine of estoppel in pais has no application to married women. DeLancy v. McKeen, 1 Wash. C. Ct. 354; Bank of United States v. Lee, 13 Pet. 107; Drury v. Foster, 2 Wall. 24; Glidden v. Strupler, 52 Penn. St. 400; Lowell v. Daniels, 2 Gray, 161, 168; Bemis v. Call, 10 Allen, 512; Merriam v. Boston R. Co., 117 Mass. 241, 244; Rangeley v. Spring, 21 Me. 130; Morrison v. Wilson, 13 Cal. 494. In Concord Bank v. Bellis, 10 Cush. 276, the court held that a married woman could not do by acts in pais what she could not do by deed. To say that one might by admission, by concealment, or by silence, in effect do what could not be done by deed, would be practically to dispense with all the limitations the law has imposed upon the capacity of married women. Yet married women might be estopped if their conduct was fraudulent. McCoon v. Smith, 3 Hill, 147; Bigelow on Estoppel, 443, 446; Carpenter v. Carpenter, 10 C. E. Green, 194; Schwartz v. Saunders, 46 Ill. 18; Connolly v. Braustler, 3 Bush. 702; Wright v. Arnold, 14 B. Mon. 638; Davis v. Tingle, 8 id. 539; Jones v. Kearney, 1 Dru. & War. 134; Vaughan v. Vanderstegen, 2 Drew. 363; Wright v. Leanord, 8 Jur. N. S. 415; In re Lush, L. R., 4 Ch. App. 591." See Shivers v. Simmons, 54 Miss. 520; S. C., 28 Am. Rep. 372, and note, 374; Patterson v. Lawrence, 90 Ill. 174; S. C., 32 Am. Rep. 22; Innis v. Templeton, 95 Penn. St. 262; S. C., 40 Am. Rep. 643.

In Dun v. Seaboard and R. R. Co., Supreme Court of Appeals of Virginia, February, 1884, 17 Rep. 699, it was held that a passenger on a railroad train who protrudes his arm from the window of the car while it is in rapid motion is guilty of such con tributory negligence, if it is struck by cord-wood piled near the track, that it will prevent a recovery against the company for the injury. The court said: "In Laing v. Colder, 8 Penn. St. 479, the arm

of a passenger was broken whilst he was travelling on a railroad car. The accident occurred while the car was passing over a bridge, which was so narrow that the plaintiff's hand, lying outside of the car window, was caught by the bridge, and the arm was broken. In this case the court held that the merely suffering the hand to remain outside the window was not necessarily negligence which would bar a recovery. But in a subsequent case in the same court, of the R. v. McClurg, 56 Penn. St. 294, where an injury had been sustained by a passenger from a similar cause, it was held that the thoughtless or imprudent protrusion of the elbow from the window of a car was negligence in se, etc., which would exempt the company from all liability, although the hurt was produced by the passenger's arm coming in contact with a car standing on a switch on defendant's road. And in Todd v. R., 3 Allen, 18; 7 id. 207, where an action was against a railroad company to secure damages for a personal injury to the elbow of a passenger extended through an open window, it was held that there was no liability upon the company. And the rule laid down has been followed in many subsequent cases. R. v. Sickings, 5 Bush, 1; R. v. Rutherford, 29 Ind. 82; R. v. McClurg, supra; R. v. Andrews, 39 Md. 329; S. C., 17 Am. Rep. 568; Holbrook v. R., 12 N. Y. 236. According to these decisions the protrusion of the limbs of the passengers, even to the minutest distance, out of the windows of the car will be regarded as necessarily, and under all circumstances, such contributory negligence on the part of the passenger as will deprive him of all right to claim compensation from the carrier for injuries which may be occasioned thereby, however incautious the latter may have been in guarding against such accidents. A different rule has been laid down in other cases in other States of the Union, and in some of them the courts have gone so far as to hold that the carrier is responsible for such injuries received under such circumstances, unless the windows of the cars are so barricaded with bars as to render it impossible for the passenger to put any of his limbs outside of the window. R. v. Kennard, 21 Penn. St. 203; Spencer v. R., 17 Wis. 487; R.v. Pondrom, 51 Ill. 333; S. C., 2 Am. Rep. 306. But we are constrained to withhold our sanction from these cases. It seems to be the better rule, both upon authority and upon reason, that the passenger, being endowed with intelligence which enables him to foresee and to avoid danger, the exercise of at least ordinary prudence is required on his part to escape it, and if by his failure to exercise these faculties for his own preservation a misfortune be fall him, though the carrier may have been in fault, it will be attributed to his own carelessness and inattention, and the responsibilities will not be thrown on the carrier." This is contrary to Germantown Pass. Ry. Co. v. Brophy, ante, 222; Barton v. St. Louis, etc., R. Co., 52 Mo. 253; S. C., 14 Am. Rep. 418; and Summers v. Crescent City R. Co., 37 La. Ann. 139: S. C., Am. Rep. 419.

44

DOMICIL OF MARRIED WOMAN-VALIDITY OF FOREIGN DIVORCE.

THE

THE case of Harvey v. Farnie, a transcript of the judgment in which appears in the ALBANY LAW JOURNAL of September 15, 1883, has decided that not only by the law of England, but also upon every principle of international law, in the absence of special legislation to the contrary by any one particular State or nationality, where a marriage has been duly solemnized or effected according to the local law of the place of celebration, the wife no longer retains any other domicil than that of the husband; and therefore when an Englishwoman married in England according to English law a foreigner, with a foreign domicil, and resided with him abroad, the courts of the country of the husband's domicil had power to dissolve the marriage for a cause for which a divorce could not have been granted in England, and that such decree would be recognized in England. This was held, affirming the judgment of the court below.

This case came originally before a court of criminal jurisdiction upon a charge preferred of bigamy, but was referred to the civil tribunals, primarily to the Divorce Court for a decision upon the validity of a divorce relied upon by the defendant Farnie.

It has thus passed through all the stages of the courts, both primary and appellate, including the ultion which has long agitated English society has now timate court of appeal, the House of Lords. The ques

been set at rest, once and forever, in that country, and from the very nature of it cannot fail to find interest if not acquiescence in every other civilized, or at least Christian country-that is, wherever the matrimonial law is based upon the principles accepted throughout Christendom.

The lords who delivered their opinions were the lord chancellor (Selbourne), Lord Blackburn and Lord Watson, the latter a Scotch judge of eminence, whose opinion is the more valuable because the case involved the law of Scotland, which country, so far as its marriage law is concerned, must for all intents and purposes be considered a foreign country.

The first case that naturally presented itself for the consideration of the court, and which was relied upon by the appellant's counsel, Mr. Benjamin, Q. C., was that of Lolley. Russ. & Ry. 237.

In that case Lolley was a domiciled Englishman,and he married a domiciled English woman in England. They afterward went to Scotland for a temporary purpose. He committed adultery there, and the wife obtained a divorce in that country. Lolley then married

again in England-was subsequently tried in England for bigamy, convicted and sentenced. Both of these marriages were English in every sense of the word, and the cause of divorce in Scotland (adultery) was not such as would have entitled the wife to a decree of divorce a vinculo in England; so that this case was dismissed as having no application to the appeal before the House. There was an English domicil throughout the whole period of the case, and the parties themselves were English.

The next case referred to was Tovey v. Lindsay, 1 Dow. 117. In this case the husband was a Scotchman, married at Gibralter to an Englishwoman, but he subsequently resided in Durham, in England, for the education of his children. His original domicil undoubtedly was Scotch, but the real question to be solved was whether he had not subsequently changed it by acquiring an English domicil at Durham, and whether therefore he could avail himself of the Scottish jurisdiction to obtain a divorce a vinculo from his wife, such divorces at that time not being granted by the English courts but only those a mensa et thoro.