The Albany Law Journal.




E have received many responses to our invitation for propositions to relieve the Court of Appeals, most of which we have published in full. Meanwhile we have been waiting, with bated breath, for the utterance of the American "Thunderer," the New York Times, on this subject. We knew that when it came it would settle the question. And now it has come. The sovereign remedy, it seems, is not a proposed way to do the business, but a way not to do it. It may be objected that we have already a way not to do it, but the Times has devised a new way not to do it. The proposal to limit appeals to cases involving at least $1,000 is not new, and is no credit to the Times' inventive genius. But its plan of denying compensation to every lawyer who has advised an appeal which the court shall adjudge frivolous is decidedly original with the Times. It does not appear in the "funny man's" peculiar column, but it bears the marks of his inimitable humor. Now if the Times would only add a penalty against the clients who advise appeals in spite of the warnings of their lawyers, much would be accomplished toward the desired relief. To be sure, the Times' proposal might be thought unconstitutional, but what good reformer would ever stop for a little thing like that? To be sure, the great majority of appeals are on serious grounds, in cases of grave moment, — (in the last volume of the Court of Appeals' Reports more than a third of the decisions are reversals) — and the cases in which an appeal can be adjudged "frivolous" are exceedingly rare, as every lawyer and every judge knows; but on the "old woman's" ground that "every little helps," the Times' idea is entitled to the most respectful consideration.


And then the Times has another original idea, namely: that practicing lawyers are never "efficient law reformers." Mr. Matthew Hale, of this city, most conclusively answers this, as well as the other notions of the Times, in a recent letter to that newspaper. On this particular point he says: you instance any practical law reform in England or in this country which has not either originated with or received its most efficient aid from 'practic-❘ ing lawyers'? Bentham himself was a lawyer by education. The greatest law reformer of his day in England was Sir Samuel Romilly, who is said to have been the most successful advocate since the time of Coke, and to have had the largest practice in the court of chancery of any barrister of his time. The recent law reforms in England have been largely due to the efforts, while at the bar, of the present Lord Chief Justice Coleridge, and Lord Chancellor Selborne (Sir Roundell Palmer), both VOL. 29 No. 3.

most actively engaged in practice, the former in the law and the latter in the equity courts, before their promotion respectively to the Queen's Bench and the woolsack. It is an easy, but not altogether a fair way of criticising a plan suggested, to say that it comes from a lawyer, and therefore must be prompted by self interest." Mr. Hale might also have instanced Brougham, next to Romilly the greatest of England's practical law reformers, who it is understood was quite actively engaged in practice, and David Dudley Field, the greatest of American law reformers, who is still heard of in our courts now and then, as well as before our Legislature. The simple truth is, that every law reform has originated with and been consummated by lawyers.

Attention should be given to the address, in another column, delivered before the State Bar Association at its late annual meeting, by Mr. Milburn. This address is one of the most thoughtful, suggestive, and admirable to which the lawyers of our State have ever listened. Its ideas, so gracefully and so cogently presented, especially upon the subject of general codification, should find attentive audience, and should be laid close to the intelligence and the consciences of our legislators. If every lawyer could be persuaded to regard this subject with the calmness and disinterestedness of the orator, the first costly step toward the accomplishment of this great object would be taken. We hope our profession this winter will demonstrate the incorrectness of the Times' assertion that practicing lawyers are never efficient law reformers, by laying aside personal prejudices and arising above their ordinary habits of thought, and working earnestly, candidly and unselfishly for the interests of the State. The great measure of general codification - the most important that has been presented to our Legislature and our Governor in a third of a century - should not be discussed or decided on personal or partisan grounds. We hope every legislator will read the closing paragraphs of Mr. Milburn's admirable paper.

Our Court of Appeals met in their new chamber for the first time on Tuesday last. They did not assume robes, but Mr. David Dudley Field presented resolutions at the State Bar Association, asking them to consider the matter, and advocated the wearing of robes in an elegant address which may be found in another column. We hope the court will not be deterred from acceding by the following found in last Sunday's Argus : "The next thing we know these gentlemen will be asking that the judges wear perruquiers, or judicials wigs. In fact I am informed on excellent authority, that one of these super-serviceable, high-toned gentlemen recently brought from Europe with him a complete collection of wigs, which he is ready to bring out, as soon as the entering wedge is successfully inserted." Our judges' burdens are certainly heavy enough without assuming the extraordinary addition

deprecated by the Argus. A court loaded in such a Sinbad fashion would be an object of commiseration. It would be bad enough to wear wigs, without wearing the wig-makers. But we guess that the judges will put on robes, and we hope they will; but whether they do or not we shall think they do right.

The 100th Pennsylvania Reports is probably not intended as a humorous publication, but there are a few things in it that will excite a smile: In Mutual Aid Society v. White, p. 12, in an application for insurance there were the following question and answer: "A. Are you married? B. Give name of


A- -—. B. Widdower." The court said: "The court also erred in submitting to the jury, for its construction, the answer to the question, are you married?' It was the duty of the learned judge to construe this, as well as every other part of the application. To us there does not seem to be any ambiguity about the reply to this interrogatory. It is perhaps true, that properly, the answer' widdower' should have followed question A, but however put, it is responsive to both the questions. It means that though once married, his wife is now dead, hence her name is not necessary. Nor do we think the fact, that the word widdower is spelled with two d's, of the slightest consequence; it was certainly not intended for a proper name, and bad spelling is not so rare as, of itself, to create hesitation."

In Rice v. Commonwealth, p. 32, the court below, in commenting on courtship with matrimonial intent, said, "each case must stand on its own four legs." We think the court meant to say, "on the parties' own four legs." The court also said: "He met her out in the evenings, sometimes at church, walked home with her, and left her at the gate. This is not the kind of intercourse that usually takes place between persons engaged to be married." That is true, for in those cases it seems as if the man never would leave her at the gate.

The voluntary retirement of Justice Benjamin F. Graves of the Supreme Court of Michigan, after a judicial experience of a quarter of a century sixteen years of which was upon the bench of the court he has just left is deserving remark, especially as he is a son of New York. Judge Graves was in his youth a student of Addison Gardiner at Rochester, but went to Michigan soon after its admission to the Union, and soon became known as an upright and honorable man, with a thoroughly judicial habit of mind, and the State availed itself of his services in a judicial position as soon as he was disposed to accept one. After serving one term and part of another as Circuit Judge he was made Justice of the Supreme Court, with Justices Christiancy, Campbell and Cooley as associates, and at the expiration of his term of eight years was re-elected without opposition. He retires

one of the

voluntarily, at the early age of sixty-six, in the full possession of mental and physical vigor, and to the general regret of the people of his State. The Michigan Supreme Court under the administration of the four judges above-named was ablest the country has ever known. We are informed it has been the uniform practice of the Michigan court for twenty-six years, to adjourn no term until every case ready for hearing had been submitted, and to decide every case submitted during the term or in the early part of the term ensuing. Keeping to this practice, it has been impossible that there should be any arrears. Before Justice Graves retired he could have the satisfaction of saying that every case which the parties were ready to bring to the notice of the court had been heard, and that the judgment of the court had been passed upon it. So here is a third instance, in addition to our Court of Appeals, of a court habitually keeping up with its business. We do not expect to hear of more.



"N Dudley v. Camden and Philadelphia Ferry Co., New Jersey Errors and Appeals, 45 N. J. 368, the plaintiff drove upon a ferry boat with a span of high-strung horses and a wagon. Wishing to blanket the horses, he left the wagon and stepped out of reach of the lines. The horses becoming frightened, plunged forward, and there being no barrier but a single chain hanging at its centre but a few inches from the deck, they went over-board and were drowned. The plaintiff did not require any of the persons in charge of the boat to assist him in the care of the horses, and was not required to pay toll. Held, that the plaintiff's contributory negligence prevented a recovery, and that a nonsuit was properly ordered. Magie, J., said: "Under such circumstances I have come to entertain no doubt that the plaintiff was not exercising the care of this property which was required of him on that occasion. In my judgment his duty required him to place himself and remain in a position where he might control, or at least have the opportunity and means of exerting all possible control of his horses if startled by any of the occurrences incident to the crossing. He should have retained the reins in hand or within reach, or should have stood at their heads. He did neither, but he voluntarily placed himself, at the instant of their mad, ungovernable rush, where he was incapable of either checking or making an effort to check them. That this was negligence is clear to my mind. It was negligence which undoubtedly contributed to the loss of the plaintiff's property. Indeed, if the most approved gates had been erected, and had been securely closed, it is doubtful whether, then, these young horses, thus left to themselves, would have been checked or preserved by them. But it is strenuously contended that the blanketing of these horses was a necessity, which the plaintiff had a right to do

* *


under the circumstances, even though he thereby
momentarily removed from the position in which he
might have used means for controlling them. If
some occurrence entirely unforeseen had rendered
necessary plaintiff's removal from the position of
control, then it might have been a question for the
jury to say whether the requisite care was exercised
therein. But the necessity of blanketing his horses
was well known beforehand to plaintiff. * *
At this time he attempted to do the work alone, and
without any effort to retain within reach the means
of controlling the horses.
* But where the
passenger retains the custody of his property there
would seem to be no duty to provide servants to
aid him in that care. If plaintiff chose to take the
risk of obtaining a deck-hand to aid him, and fail-
ing in that, proceeded to incur the hazard of doing
the work alone, I do not think he can shelter him-
self under the claim of a necessity which he brought
upon himself. On the ground of contributory negli-
gence the direction of a nonsuit was therefore not
erroneous. This conclusion relieves us from the
consideration of the question (much pressed on the
argument, whether the defendants were liable to the
plaintiff for any thing but gross negligence, in view
of the fact that the plaintiff was being carried with-
out compensation, his father being a director of the
defendant company.
It may not be improper to
add however that since the evidence shows that
the only barriers used at the end of the boat off
which the horses plunged were two chains and a
rope, and the evidence tended to show that but one
chain was then up, and hung, at its centre, but a
few inches from the deck, no nonsuit, proceeding
on the ground that the defendants were not guilty
of gross negligence, (if that was the measure of
their liability), could have been sustained. Indeed,
the whole case is one of a class in which the defend-
ant escapes the consequences of conduct which
seems to be grossly negligent solely because, upon
well-settled principles, we are compelled to deny
relief to a plaintiff contributing to his loss by his
clear negligence, however slight." Seven other
judges concurred with this, and seven others dis-
sented. The case is reported below, 13 Vroom, 25;
S. C., 36 Am. Rep. 501.

He can no more enforce the condition of his license than he could maintain an action upon her promise, or the promise of any other person, to pay him for the license a sum equal in value to a release of his obligation of support. That obligation, whatever it is, cannot be avoided by such illegal bargains. Marital rights and duties are established by law. The marriage contract may be broken by either party, with or without the consent of the other; but it cannot be rescinded or modified by them. Cross v. Cross, 58 N. H. 373. The plaintiff is in no way connected with the lawless transaction."

In Labrie v. Manchester, 59 N. H. 120, it is held that health officers have authority to employ nurses at the expense of the town, for persons committed by them to the pest-house. The court said: "Having power to compel the confinement of infected persons and prevent their communication with others, and having exercised that power, it became their duty to provide for the wants of those confined there. They could not shut them out from communication with their friends and with the world, and deprive them of any means of obtaining assistance, and at the same time lawfully withhold necessary support and care. They could not establish a hospital without ordinary hospital accommodations, and they could not make the hospital a place of involuntary confinement and escape the duty of supplying the reasonable wants of those who, by confinement and seclusion, were prevented from applying to any one else for relief. They could not furnish relief against the will of those confined, and afterward recover the expense of them, or of those liable in law to support them. Farmington v. Jones, 36 N. H. 271. If the health officers were obliged by law to confine persons infected with dangerous diseases, and it was their duty to nurse and support them, and they could not recover the reasonable expense from them or from their guardians, they would be remediless, unless they could charge the expense upon the city. The law does not require the performance of a duty, and at the same time withhold the means reasonably necessary for its performance."


In Richards v. Hubbard, 59 N. H. 158, it is held that a physician's wagon and harness, used by him In Ferren v. Moore, 59 N. H. 106, it was held in and reasonably necessary for his practice of his that a husband is liable for necessaries furnished to profession, are exempt as "tools of his occupation." his wife living separate from him and in adultery The court said: "The court cannot say, as a matter by his connivance and consent. The court say: of law, that a wagon or a harness is a tool of a "As we understand the referee's report, the ques- physician's calling, and so exempt to all physicians; tion is, whether the defendant's duty to support nor can they say that it is not such a tool. his wife ceased when she committed adultery in most that can be said, as a matter of law, is, that it pursuance of his express written license, given, may be a tool of his profession, if, in the particular with deliberation and without solicitation, upon case, it is reasonably necessary for him to use it as condition that she should not look to him for support. a tool. If it should appear that his practice was What he consented to he cannot complain of in this confined to his office, or that he was a physician or suit. The execution of their agreement that she surgeon in a hospital, attending to no cases outside should violate their marriage contract was not a of the institution, or that he was a surgeon on shipjustification of his violating that contract by turn-board, or that he went on foot or on horse-back, or ing her out of doors, and refusing to support her. on the cars, to visit his patients, a wagon and

harness would not be exempt under our statute, because they would be of no use to him as tools in his practice. They might be of use to him in other respects, as in going to church, or in carrying his children to school, or in visting friends, or as a means of recreation and pleasure; but these uses are manifestly not within the legitimate scope of the technical duty of a physician. Not coming within the strict definition of the term tools, and not being reasonably necessary as tools for him in his practice of his profession, they would not be tools within the meaning of the statute, and so would not be exempt as such. But if it should be found that the physician claiming the exemption could not practice his profession with reasonable success without a team with which to visit his patient; that he was located in a country town, for example, where it was necessary for him to ride a large part of the time in order to accomplish any thing professionally, —a wagon and harness might properly be found to be reasonably necessary for him as tools of his occupation. But the finding would be one of fact, so far as the reasonableness of the use is concerned: and it could not be said that these articles are exempt to every physician, or to physicians generally, but only to the debtor in the particular case. If there is any doubt whether an article claimed to be exempt from attachment is a tool under the statute, the question should be submitted to the jury whether its use as a tool by the debtor in his business is reasonably necessary. If it is, it is exempt; otherwise, it is not exempt."

In George v. Fellows, 59 N. H. 206, it is held that the debtor's use of his horse to convey his children to school and church is evidence for the jury on the question whether it is "required for actual use," so as to be exempt. The court said: "The duty of parents to educate their children is of the greatest importance. 1 Bl. Com. 450, 451. At common law this is said to be a moral but not a legal obligation. Cooley on Torts, 40. Blackstone says it is a defect in the municipal laws of some countries that parents are not constrained to perform this duty Our Constitution declares the promotion of morality and learning to be a public duty, and ten chapters of the statutes are devoted to the cause of education. Const., Part 1, art. 6; Part 2, art. 83; Gen. Laws, chaps. 85-94. The penalty imposed by Gen. Laws, chap. 91, § 16, for not sending children to school, illustrates the legal necessities of the plaintiff. It is not a matter of law that the use of a horse for conveyance cannot be necessary in the discharge of the duty of supplying a family with mental and moral instruction. The plaintiff's use of his horse for that and other purposes should have been submitted to the jury in a more liberal way, on the broad question whether the horse was required for the plaintiff's actual use. While his mere unperformed duty of using his horse for any purpose is no ground of exemption, his duty and business, and his use of his horse in that duty and business, are evidence on the question of requirement for actual use."



- This

phrase in a statute prohibiting the acting of plays without consent of the authors, means a public place, and not a private amateur performance. Duck v. Bates, Q. B. Div., 49 L. T. Rep. (N. S.) 507. Lord Coleridge, C. J., said: "I cannot say that this case is not an important case, and it is important because judges cannot help knowing what other people know, that amateurs do act dramatic pieces for the purpose of making money, not indeed for themselves, but for some charitable object; and I will not disguise the fact that it may be a great injury to the owner of a dramatic piece that companies of ladies and gentlemen should give dramatic performances and take money for some charity, thereby possibly preventing people who go to their performances from going to the regular places of public entertainment." He bases his opinion upon Wall

v. Taylor, 11 Q. B. Div. 102, observing: "The song in that case had been represented at a large public hall, open to all who could pay, and expressly for the profit of the person who represented it; and the court, at p. 237, twice over, in dealing with the question whether the place was a place of dramatic entertainment or not, put it that the place was public, and that payment was made for admission. It does seem to me extraordinary, that if this were wholly unnecessary for the decision of the case, it should have been twice inserted in the judgment of the court. I am not aware that that case has ever been overruled or questioned. I am aware however that certain dicta of the Master of the Rolls do go a long way toward deciding this case in the way the appellant contends. The Master of the Rolls, in construing the later statute, certainly does say that a place becomes a place of dramatic entertainment if the song is sung in a room with more than one other person present. I have had the advantage of speaking to him on the subject, and he has told me that his dicta there go beyond what he intended." Stephen, J., said: "The act says, it seems to me, that you are not to give any public representation at any place of dramatic entertainment; and without saying that profit is a necessary element in considering it, it is a strong element in considering whether the place was a public place. This representation wanted all the elements of publicity. There was no profit, and the public were not admitted. I can conceive possible cases which I should be sorry to say would not be within the act. Suppose a copyright play were to be acted at some theatre, and another manager were to have the same play represented at his theatre, and to throw open his theatre free to his friends, I do not say that this would not be within the act. * * * The interpretation put upon that act by the Master of the Rolls is that the words in the earlier act relating to places of dramatic entertainment do not apply to musical compositions. But that does not bind us in this case. No doubt he uses strong language, which would go to show

that a person who sang a copyright song in his own drawing-room to his guests would be liable to the penalties. I should be very loth indeed to arrive at the same conclusion."

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INCESTUOUS CONNECTION. "Incestuous connection,' according to Worcester, means 'sexual intercourse between persons who, by reason of consanguinity or affinity, cannot lawfully be united;' according to Webster, the crime of cohabitation or sexual commerce between persons related within the degrees wherein marriage is prohibited; and according to the Imperial 'the crime of cohabitation or sexual commerce between persons related within the degrees wherein marriage is prohibited by the laws of a country.'" Hintz v. State, Wisconsin Supreme Court, November 20, 1883.

OTHER BUSINESS.-Cutting and driving logs is not within a statute giving a lien "for labor and services rendered by any miner, mechanic, laborer or clerk, for any person or persons, or chartered company, employing clerks, miners, mechanics or laborers, either as owners, lessees, contractors or under-owners of any works, mines, manufactory or other business where clerks, miners or mechanics are employed." The court said: "The words, 'works, mines, manufactory,' thus employed in the act, have a definite signification, well understood in their general and popular acceptation. Ex vi termini the branches of business intended to be described by them are, in a certain sense, complete and independent, and of a fixed and permanent character, as opposed to a temporary employment that is merely incidental to any particular branch of business. It will scarcely be pretended that either of these words fitly describes the business in which appellant was employed. It is contended however that the expression, other business,' etc., is sufficiently comprehensive to embrace cutting and driving logs. Perhaps it would, if we were at liberty to construe it without reference to the context; but the preceding words, designating particular branches of business with which the idea of permanency and completeness, in a certain sense, is always associated, must control the meaning of the more general expression used in immediate connection therewith. The other business' is ejusdem generis with that more particularly described by the preceding words of the context, business of the same general character, not embracing every species of employment in which the services of others may be rendered." Pardee's Appeal, 100 Penn. St. 408.

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INCOME. A bequest of "the income of a farm" for the support of a wife and minor children means the product of the farm. Thompson's Appeal, 100 Penn. St. 478. The court said: "Now we may admit that in the ordinary, commercial sense, the term 'income,' especially when connected with the word 'rent,' may mean net or clear income, and in that view of the case, the judgment of the court below must be taken as correct; the widow was entitled to but the one-half of the one-half, or onequarter, of the product, or whole income of the

farm. But in arriving at the meaning of words we must understand not only how, but by whom, they are used, otherwise the intent of the person using them may be wholly perverted. One may say that his income from a certain property amounts to a certain sum, and yet he may be speaking merely of the accruing rent, without regard to either insurance, taxes or repairs. The lumberman who uses the timber from his own lands will speak of the income from his business without considering the value of the stumpage, or even the interest of the money which the land cost him. And we well understand, that outside of the business circles, it is so common thus to speak of income, that we can never know whether net or gross income is meant, without further inquiry. Had Thompson, in his life-time, spoken of being in the receipt of the onehalf of the income of his own farm, we suppose no one would have minunderstood him; certainly not his neighbors who, like himself, were farmers, and who knew, from the general custom of the country, that the income of a farm was its entire product, which was to be divided between the owner and the tenant, or cropper. Nor do we see why, from the farmer's standpoint, this is not a correct application of the word. Worcester, among other definitions of this word, gives that of 'produce.'”

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CONTRACTOR. One who contracts to drill oil wells is not within the statute giving a lien to laborers for "owners, lessees, contractors, or underowners of any mines, manufactory, or other business." The court said: "The word 'contractors' as used therein is applicable only to persons employed by the owner or lessee of a mine to operate the same, produce the mineral, coal, iron, or whatever it may be, for an agreed compensation, and does not embrace those who undertake to perform some special service in the construction of works, or the opening of mines preparatory to their being operated."

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FENCE. In Morton v. Reynolds, New Jersey Supreme Court, 45 N. J. 326, it was held that a license to build a fence on a division line does not authorize the building of a worm" or zig-zag fence. The court said: "The license was to build a fence upon the division line. Since a fence is necessarily made of some material substance, it must occupy space. Such a license will doubtless confer a privilege to place a fence so as to occupy an equal space on each side of the actual mathematical line of division. For this purpose a reasonable amount of space of the licensor's land may be used. is a reasonable amount of space for that purpose is to be determined by the situation of the land and the uses to which it is devoted, and perhaps, to some extent, by the usage and custom of the locality. Newell v. Hill, 2 Metc. 180. Usage and custom however cannot control the requirements of the license. The question whether the fence in question was one occupying no more than a reasonable amount of Morton's land does not however arise here. For under the facts, we are of opinion that


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