Page images
PDF
EPUB

narrow term which might mean, among other things, a 'statute' or a clause expressing a 'condition'—but never 'law. Later, in the Middle Ages, when 'lex' was commonly used for the law and not simply a law, the 'ius' idea, probably because of its primitive (if not original) ethical bearing, became associated with everything contrasted with positive law-natural law, philosophy of law, science of law.

There seem to be only two comparable legic adjectives. One is 'legal, which may mean (1) conformable to law, (2) created by law, (3) cognizable in law, and (4) pertaining to law. The other word is 'law' itself used as an adjective. Illustrations are plentiful, but a good one is found in our midst. In Chicago there is a wellknown 'Law Club' and an equally well-known 'Legal Club.' How the members of the one avoid paying dues to, or attending the meetings of, the other, we do not know. We have never been able to separate them. Both have the same kind of activities—they foster legic scholarship. We suspect that the organization last in the field thought it was avoiding unfair competition by the addition or dropping of a syllable. (Incidentally, we put aside the association of violence raised by the word 'club.') We have no doubt that the club law of the Law Club has as much legality as the club law of the Legal Club; but, Is the Law Club a 'law club? Do its activities anywhere touch the law ?

Having seen the programs, and having occasionally co-operated in printing papers read before the Law Club (or was it the Legal Club?), we cannot doubt our senses—we do not question that it deals with discussions about the law. But that test would not disclose a cause of action in trespass; for a trespass is not committed by walking about (outside) another's land. Where does this journey take us? The Law Club, after all, is only a 'legal club, i. e., it exists in conformity with law. But there are many varieties of ‘legal clubs, and we cannot avoid thinking that the label, to the outside, is no more definite than would be the trade-name 'Chicago Store' if used by a merchant on Blue Island Avenue.

The test we would venture to propose is that 'law' used as an adjective must deal in or with the law and not merely pertain to, relate to, or be about the law. It should have an official or authoritarian connotation or involve legal consequences. A law-maker is one who makes law, a law-suit is a suit in law, a law-officer is an officer of the law, a law-breaker is one who violates the law, etc., etc. But one who writes comments on recent cases is not a ‘law-writer,' and it seems a trifle awkward to speak of him as a ‘legal writer,' although that usage is not uncommon. A text-book about law (unless of the official kind like Justinian's Institutes) is not a law-book, much less would it be called a 'legal book.' Nor is a blank form of document a 'legal blank,' although it bears that name. Why a legic treatise should be called a law-book and a blank form be called a legal blank, and why a writer about law is called a legal author and the book he writes a law book and not a legal book, are profound secrets. Even a law office will usually be found

a

a lawyer's place of business. If what is implied in these remarks is valid, it follows that the Law Club is not a law club, nor is the Legal Club what it purports to be, i. e., a law club.

What can be done to inject accurate discrimination in these meanings ?

It will be observed that the first three of the four meanings attached to 'legal' have a direct or internal connection with lawit means what is conformable to, created by, or cognizable in, law, in a concrete or specific reference. For non-specific or non-authoritarian ideas which pertain to the law, it will be convenient to employ the coined but not unnatural label, 'legic,' which appropriates the fourth meaning attached to 'legal.' Thus a specific act is a legal act or an illegal act; but a legal act as distinguished from an act not cognizable in law is a ‘legic' act. A concrete duty enforcible in law is a legal duty; but a 'legic' duty is contrasted with a moral duty. A concrete decision of a judge is a legal decision, but precedent is legic. An incapacity of a particular person is a 'legal' incapacity; but incapacity in general is a ‘legic' concept for the lawyer as it is juristic for the jurist. So much for illustrations of the distinction of the specific and non-specific.

In the field of what pertains to the law, i. e., what is outside the law and what yet deals with a legic content, we may note as examples of the usage suggested, legic schools, legic clubs, legic development, legic history, legic philosophy, legic science, legic books (treatises on law: the statute book is a law-book, but a commentary on it is a legic book), legic writer, legic method, legic classification, legic terminology. We do not fail to observe that law reviews are not reviews of law even when they correctly state the latest decisions of the courts (for no matter how recent a decision, it has already become legic history), or even when they correctly predict the next legic phenomenon.

Summing up: Our proposal is to segregate definitely and to harmonize in a systematic arrangement the ‘ius' terms, “juridical,' “jural,' and 'juristic' and the 'lex' terms, law (as an adjective), ‘legal,' and 'legic.' However, having in mind the conventional misapplications of words apparent everywhere, and the fact that we thrive upon such misapplications, we entertain not the slightest hope of securing adoption of our “legic' coinage even if we should succeed in convincing anyone of its propriety and value. As a Dutch proverb has it, "Oude honden is kwaad bassen te leeren" (it is hard to teach old dogs to bark).

A. K.

Notice TO CITIES OF PERSONAL INJURIES.—The act of 19052 requiring notice of personal injuries to be given cities within six

1. "An act concerning suits at law for personal injuries and against cities, villages and towns," approved May 13, 1905; L. 1905 p. 111; SmithHurd 111. R. S. (1923) Ch. 70 “Injuries” sec. 6-8.

Sec. 1 imposes a one year limitation on the bringing of actions against cities, villages and towns "by any person for an injury to his person."

Sec. 2 reads: "Any person who is about to bring any action or suit

3

months after cause of action accrued has stood unchanged on the statute book for almost twenty years. The object of the statute is to furnish timely notice of the injury and thereby to enable the city to investigate the claim while the facts are fresh.2 The statute is not invalid as special or class legislation, nor is it unconstitutional under article 4, section 13, of the Illinois Constitution which requires an act seeking to amend or revive a preëxisting law to set forth such law—this latter because the act under consideration does not amend or revive any preëxisting law."

Construction. Being in derogation of the common law, the act should be strictly construed.5

Applicability. The act requiring notice does not apply to personal representatives suing on behalf of next of kin under the death act of 1853.? A child of seven years was excused from giving notice, because “the act is meant to apply only to those who are mentally and physically capable of comprehending and complying with its terms."

Sufficiency. The question of the verbal sufficiency of the notice is one of law for the court, although, because the giving of notice is one of the elements of the cause of action (as we shall see), the general question of whether or not notice was given is one of fact for the jury.10 A notice which gives an incorrect date, 11 or which omits “about the hour" of the accident,12 is fatally defective. A notice which gives the name of the attending physician is not erroneous simply because the name of a second physician, who examined the plaintiff, is omitted,13 because the statute was not intended to

8

at law in any court against any incorporated city, village or town for damages on account of any personal injury shall, within six months from the date of injury, or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney (if there is a city attorney, and also in the office of the city clerk) a statement in writing, signed by such person, his agent or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where such accident occured, and the name and address of the attending physician (if any).”.

Sec. 3: “If the notice provided for by section two of this act shall not be filed as provided in said section two, then any such suit brought against any such city shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing."

2. Donaldson v. Dieterich (1910) 247 Ill. 522, 526.

3. Erford v. Peoria (1907) 229 Ill. 546, Condon v. Chicago (1911) 249 Ill. 596.

4. Erford v. Peoria, supra. 5. Donaldson v. Dieterich (1910) 247 Ill. 522. 6. Prouty v. Chicago (1911) 250 I11. 222, vide comment Ill. L. Rev. VI 7. L. 1853, p. 97 ; Smith-Hurd Ill. R. S. (1923) Ch. 70, sec. 1-2. 8. McDonald v. Spring Valley (1918) 285 Ill. 52, 55. 9. Wikel v. Decatur (1908) 146 Ill. App. 51. 10. Condon v. Chicago (1911) 249 111. 596. 11. Ouimette v. Chicago (1909) 242 111. 501. 12. Condon v. Chicago, supra. 13. Graham v. Rockford (1909) 238 Ill. 214.

347.

provide the city with the names of all the physicians who might testify on behalf of the plaintiff at the trial.14 A notice was held sufficient as to place which stated that the accident happened "at or near the corner of Thirty-ninth street and Campbell avenue" in the city of Chicago, and that the plaintiff was discovered by police officers and taken to the county hospital in a police ambulance, because it gave sufficient information to enable the city authorities, by the exercise of reasonable intelligence and diligence, to locate the place of the injury.15

Service, To entitle a city to service of notice on its attorney, that officer must be a licensed attorney who maintains an office or place of business where he may be found.16

Pleading. The giving of notice is a condition precedent to the right to bring a suit for injuries coming within its scope, and the giving of notice must be averred and proved by the plaintiff,"? except in fourth class tort actions in the Municipal Court of Chicago where the giving of notice need not be averred,18 although it must be proved as part of the plaintiff's case. A common law declaration which fails to aver the service of notice does not state a cause of action, “even defectively," and does not stop the running of the Statute of Limitations.19 An amendment to such a declaration, curing the defect by averring the giving of notice, states a new cause of action which is vulnerable to a plea of the Statute of Limitations if the amendment is made after one year from the date of the accident.19 A city has no power to waive the statutory notice. 20 Since every element of a cause of action must exist at the time it is begun, the filing of a præcipe before the notice is served on the city

a

14. Maxey v. East St. Louis (1910) 158 I11. App. 627.

15. McComb v. Chicago (1914) 263 Ill. 510. The liberality of this opinion is perhaps due to its author, Mr. Justice Farmer, who had previously dissented from the somewhat narrower interpretations by the majority: Walters v. Ottawa 240 I11. 259, Condon v. Chicago 249 Ill. 596, Langguth v. Glencoe 253 111. 505.

Designations of place were held sufficient in the following appellate court cases: Brenner v. Chicago (1913) 182 Ill. App. 348 (gave street, names of cross streets between which the accident occurred, and described nature of defect); Wikel v. Decatur (1908) 146 Ill. App. 51 (East avenue "at a place where a certain alley intersects said street between the Wabash railroad right of way and East Eldorado street and near the residence of the undersigned"); Youngvert v. Chicago (1912) 174 Ill. App. 299 ("West side of Center avenue between Sixteenth and Seventeenth streets”).

Designations were held insufficient : Reichert v. Chicago (1912) 169 Ill. App. 493 (“At and near the intersection of La Salle street with Madison street") and Swenson v. Aurora (1915) 196 Ill. App. 83 (“Upon the west side of La Salle street, between North avenue and Washington street and opposite Jennings Seminary").

16. Donaldson v. Dieterich (1910) 247 Ill. 522.

17. Erford v. Peoria (1907) 229 Ill. 546, Walters v. Ottawa 240 III. 259 (1909), Langguth v. Glencoe (1912) 253 Ill. 505.

18. Enberg v. Chicago (1916) 271 Ill. 404. Cartwright, Dunn, and Cooke, JJ., dissented. Vide comment Ill. L. Rev. XI 117.

19. Walters v. Ottawa, supra.
20. Walters v. Ottawa, supra, at p. 263.

(even though the notice is served before the declaration is filed) is fatal to the action.21

Defendant's method of attack. Section 3 of the act in question provides that an action brought without complying with section 2 *shall be dismissed,” but failure to allege and prove the giving of proper notice is ground for a directed verdict,22 and a declaration which fails to aver notice may be attacked by demurrer23 and after verdict by motion in arrest of judgment.24 Moreover, the trial court has no power to dismiss an action after the defendant has pleaded the general issue merely because the defendant exhibits a defective notice to the court before the jury has been chosen and sworn—and this is true even though the plaintiff does not deny that the defective notice was the only one served. 25 The proof of notice should go to the jury as an integral part of the plaintiff's case and the plaintiff is under no duty to deny that the defective notice was the only notice given until he has offered proof before the jury. It would seem, however, since the sufficiency of the notice is a question for the court, that if the plaintiff had offered the notice in evidence and admitted that it was the only one served, the court might properly have dismissed the suit, for if the notice is insufficient, the court may undoubtedly refuse to allow its admission in evidence,26 and then direct a verdict for the defendant because the plaintiff has not proved a prima facie case.

O. F. R.

a

PLEDGE-Actio PAULIANA-DOES A Right OF PLEDGE CONTINUE TO ExisT WHERE THE PLEDGE Claim Is SATISFIED BUT THE PAYMENT IS ATTACKED IN A PAULIANIAN ACTION WHEREIN THE CREDITOR IS COMPELLED TO RESTORE THE PAYMENT?- [Entscheidungen des Reichsgerichts in Civilsachen, III, No. 58).-Both parties held mortgage notes against B of Lübeck who became a bankrupt in 1877. The mortgage notes held by the defendant were dated 15 September 1873; the mortgage notes held by the plaintiff were dated — May 1875. In a judgment of 13 Dec. 1875, the claims of both parties were put in the hypothec class, but the claim of the defendant, since it antedated the plaintiff's claim, was given a preferred position. In the present action the plaintiff asks to be preferred over the defendant.

Before the bankruptcy proceedings the defendant obtained from the common debtor the full amount of the defendant's mortgage notes. But the administrator of the bankrupt estate attacked the payment by the Paulianian action and the defendant was required to repay the money received by him. The repayment was made in the spring of 1879 and the mortgage notes were returned to the defendant by the administrator of the bankruptcy estate.

21. Langguth v. Glencoe, supra.
22. Ouimette v. Chicago (1909) 242 Ill. 501.
23. Erford v. Peoria 229 Ill. 546, Walters v. Ottawa 240 Ill. 259.
24. Walters v. Ottawa, supra.
25. Condon v.

Chicago (1911) 249 I11. 596. 26. The method used in Zycinski v. Chicago (1911) 163 Ill. App. 413.

« PreviousContinue »