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able to say that he never delivered a dissentThe Albany Law Journal. ing opinion - would that more judges could

say the same. Long life and happy days to

the venerable judge! A Weekly Record of the Law and the Lawyers. Published by CHE ALBANY LAW JOURNAL COMPANY, Albany, N. Y.

Contributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law questions,

That the study and practice of the law are addresses on legal topics, or discussions on questions hos et imely not ordinarily to be regarded as the best

the those interested in legal proceedings.

training for the production of fiction, will All communications intended for the Editor_should be ad probably be generally conceded; on the other dressed simply to the Editor of THE ALBANY LAW JOURNAL: hand, the close connection between law and All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.)

literature seems to be demonstrated by the

numerous examples of lawyers who have beSubscription price, Five Dollars per annum in advance. Single Qumber Twenty-Five Conts.

come famous as authors of fiction, as well as

philosophers and poets. R. D. Blackmore, ALBANY, FEBRUARY 17, 1900. the author of that classic in fiction entitled

"Lorna Doone," who died recently near Current Topics.

London, became a member of the Middle

Temple nearly fifty years ago and for a num'HE Hon. John A. Peters recently re-ber of years practiced as a conveyancer. He

signed his office of chief justice of the also made good use of his legal knewledge Maine Supreme Court after a long, honor- and training in other though less famous able and distinguished judicial career. The works. Other examples of writers of fiction esteem - indeed affection - in which he is who have had legal training will occur to the held by the legal profession of his State was reader, such as Robert Louis Stevenson, Sir amply testified on the occasion of his retire- Walter Scott, Anthony Hope, Stanley Weyment, when the planting of a baby oak -a man and Rider Haggard. Sir Walter, in thrifty sprout from the famous Penobscot speaking of himself and the law, once said: oak — was planted on the court-house lawn “ There was no great love between us, and it at Wiscasset, followed by a banquet in honor pleased heaven to decrease it on further acof the retiring jurist. The tree will be known quaintance." Lovers and readers of Stevenappropriately as the “ Peters Oak.” Judge son's works will also recall the fact that he Peters' response to the honors tendered him

never put a very high estimate upon the value on the occasion referred to was brief but in of his legal training in its bearing upon his excellent taste. He retired, he was proud to literary labors. The London Law Journal say, while he had mind and sense to know mentions the fact that the present poet-lauwhat he was doing. He was not quite ready reate is a member of the Inner Temple and to say as Lamb did on a similar occasion, once practiced on the Northern Circuit, and that it " was like passing from life into eter- that two of the leading dramatists of Engnity." He was not ready for eternity, and land, W. S. Gilbert and Sidney Grundy, also did not believe that eternity was ready for have precticed at the bar. It also points out him, but he did confess somewhat sadly to a that not alone in the ranks of the novelists sort of indescribable feeling of being buried are lawyers to be found who have given up alive, in thus taking final leave of his duties to mankind what they once intended for the on the bench. “Yet,” he patriotically added, law, and cites Lord Bacon, in the realm of “I would rather be buried alive in old Lin- philosophy, Macaulay in the region of hiscoln county than anywhere else in the world.” tory, and Cowper and Gray in the domain Such service as Justice Peters has rendered of poetry, as having increased the prestige on the bench is worthy in the highest degree of the profession in which they were trained. of the recognition it received, for a purer or more useful life would be difficult to point A very interesting point pertaining to the to. Judge Peters long took pride in being duty and liability of sheriffs was decided

VOL. 61 – No. 7.

recently by the New York Appellate Divi- cedents of the prisoner. We confess to besion, Second Department. It appears that ing in the category of those who did not ir: June last William V. Malloy, sheriff of believe that the prosecution had made out a Westchester county, having discharged very clear or coherent case in support of its Susan S. Weeks from the county jail, where contention that Roland B. Molineux caused she had been committed by order of the sur-the death of Mrs. Adams while attempting to rogate, he was adjudged, in a proceeding take the life of Harry S. Cornish. Although brought against him by Laura Leggatt, to there seems to have been a consensus of opinbe guilty of contempt of court, and was fined ion that the right man had been indicted, $250. Mrs. Weeks' commitment was for there still remained the necessity of proving neglecting or refusing to comply with the his guilt, beyond a reasonable doubt, in order surrogate's order directing distribution of to justify the jury in bringing in a verdict of certain funds which had come into her pos- guilty. It had been presumed generally that session as executrix of Laura Slater. Before something more than the testimony of handher discharge by the sheriff, Mrs. Weeks' writing experts, upon which the prosecution commitment had been judicially declared in very largely relied, would be necessary. habeas corpus proceedings to be “void upon However, petit juries are proverbially uncerthe face,” by a court of competent jurisdictain, and in criminal jurisprudence the unextion. The Appellate Division of the Second pected frequently happens, as in this case. Department has directed a reversal of the In view of the result, the prisoner and his order committing the sheriff for contempt, counsel, who doubtless acted in full accord holding, Justice Woodward giving the opin- with his wishes, realize now, if they did not ion, that it having been judicially determined at the time, that in refusing to put in any tesir. the habeas corpus proceedings that the timony they staked all on a chance - and prisoner was illegally confined, such judicial lost. We believe this action had a very determination protected the sheriff in dis- powerful influence upon the jury in detercharging her. The court held that it was mining their verdict, and that had the prisnot the province of the sheriff, in habeas oner's character and habits been such that corpus proceedings, to inquire whether the he had no fear of the most rigid cross-excourt, in directing the discharge of the pris-amination, the result probably would have oner, had erred in acquiring jurisdiction. been different. We fully agree with the While neglect of the formalities provitted by strictures upon the system or the administrathe code might afford grounds for reversing tion of it which permits a trial, even for a the decision of the judge, it did not subject capital offense, to last thirteen weeks, and the sheriff, who acted under the order of the that some plan must be devised whereby the court, to punishment.

repetition of such scenes as were witnessed

in this case shall be prevented is plain to The verdict of the jury in the Molineux everyone. The case on appeal is being precase which, unless the judgment be set aside pared and will doubtless be decided in the by the Court of Appeals, will send the ac- course of three or four months. The priscused to the electric chair, appears to have oner and his counsel appear to be supremely been a great surprise to nearly everybody confident that errors occurred which will deexcept the prosecuting officials. Equally mand a new trial in order to protect the prissurprising, at least to the laity, was the action oner's rights; so that the recorder and his of the prisoner's counsel in letting the case conduct of the case, in a sense, will be on go to the jury on the plaintiff's own testi- trial before the highest court. The result of mony, although probably Mr. Weeks' deci- tlie trial, though surprising, must be gratifysion to do so did not greatly astonish the ing in the highest degree, not merely to the members of the legal profession who have prosecuting officials, whose conduct of the fcund time to follow the proceedings of the case is thoroughly vindicated, but to those trial and know something about the ante- I who had begun to fear that all of the enorm

The pur

ous expenditure of time, energy and money the sale, had been unpacked when the defendant would go for naught because of the inability first examined the stock. It is immaterial, except of the jury to agree upon a verdict. We But if he had then asked for some evidence of

as bearing on the good faith of the defendant. have heard the cost of the trial estimated as

ownership, he could only have been shown a bill high as $250,000 and no estimate has put for goods consigned, and the real character of the the amount below $200,000. In the near

Ricciardellis' possession would have been apparfuture the ALBANY LAW JOURNAL will pub

ent. The defendant chose to rely on the authority

of the possessors to sell in their retail business lish a careful and critical review of the case

indicated only by the possession described. He from the legal standpoint by a lawyer who would have been protected in a purchase within attended the trial.

the scope of such authority, which was real as well as apparent. But the selling out of the whole

business was not within the scope of that authority. Notes ot Cases.

It does not necessarily follow that a retail dealer, authorized in the ordinary course of business to

sell the articles on his shelves, is, therefore, the Factors — Unauthorized Sale of Goods - Bona

owner of the whole business and every article in Fide Purchaser. In Romeo v. Martucci, decided

his possession. If he attempts to sell his business by the Supreme Court of Errors of Connecticut in

and stock as a single chattel, he enters upon an January, 1900, it was held that a bona fide consign

outside and independent transaction. ment of goods by a principal to his factors, to be chaser çanaonetain, as against the real owner, sold by them in their name at retail, on copumis

portions of that stock held under consignment, sion, in the ordinary course of their business jaś

unless the owner has clothed the consignee with retail merchants, does not give them such indicia

some index of ownership beyond that incident to of title as to enable them to defeat the title of the the fact of a consignment, where a principal, with principal by a sale of such goods to an innocent

full knowledge, permits his factor to transact the purchaser for value, who buys their entire business ordinary business of a merchant in his own name, and stock on the day the consignment is received. he would even then be bound by his acts only so The court said in part:

as they were within the ordinary mode of A consignee differs from

transacting the particular branch of business, pro

an ordinary bailee mainly in that he is authorized to sell \in the ordi

vided there were no circumstances to show that he nary course of business; but if he sell out of the permitted him to use shis jown name with a view ordinary course of business he abuses his powers,

of imposing upon oners (Potter v. Dennison, and against this abuse the consignor is protected,

10 III. 590, 599.) The printiff has done nothing to like any other bailor. When a mortgagee leaves mislead. unless, every consignment is misleading. the property mortgaged in the possession of ile He gave- the Ricciardellis possession, but it was mortgagor, possession under such circumstances

the-possesviott of consignees only. He knew that may be treated as an index of title. It is incon-the goods were to be sold by the consignees in sistent with the real transaction, which demands a

their retail store in connection with their other change of possession, and the mortgagee deliber

stock, and that the goods were to be sold at retail ately puts himself in a false position. But in the

in the name of the consignees; but these are the

a retail case of a consignment the reverse is true. Posses- ordinary incidents of a consignment to sion by the consignee is consistent with the trans

merchant. (Ex parte Dixon, 4 Ch. Div. 133, 136, action, and is evidence of the authority pertaining 137: Slack v. Tucker, 23 Wall. 321, 330, 23 L. ed. to that transaction, but furnishes no other index of

143; Potter v. Dennison, 10 Ill. 598.) The conduct title as against the consignor. Some act of the

of the plaintiff amounts to a consignment of his consignor inconsistent with the true relation is goods for sale in the ordinary course of business, necessary for that purpose - as if the bill for and nothing more. The title cannot be defeated goods consigned were made out as one for goods by any disposition of the property not within the sold, or a bill of lading were given which treats agency established by such consignment. A conthe consignee as owner or purchaser. In such way signee cannot transfer the property in payment of the consignor may put himself in a false position, his own debt. (Benny v. Pegram, 18 Mo. 191.) so that, if the rights of an innocent purchaser in- | He must sell in the market where he transacts tervene, he cannot change that position without business. (Wooltiers v. Kaufman, 73 Tex. 395. fraud and damage. There may be other acts by 399, 11 S. W. 390; Catlin v. Bell, 4 Camp. 183; Marr which a consignor may be estopped from asserting v. Barrett, 41 Me. 403.) He cannot sell by way of his title, but they must be equivalent in force to barter. (Guerreiro v. Peile, 3 Barn, & Ald. 616, the ones indicated.

618.) He cannot pledge the goods consigned. In the present case it does not appear whether (Paterson v. Tash, Strange, 1178; Kuckein v. Wilthe goods consigned, and received on the day of son, 4 Barn. & Ald. 443, 447; Kelly v. Smith, I

THE Teeth Anhuala Comparative Summary and

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Blatchf. 290, 293, Fed. Cas. No. 7675; Gray v. SUMMARY AND INDEX OF LEGISLATION Agnew, 95 Ill. 315.) To turn over the goods con

BY STATES IN 1899. signed to another by a sale of his business and stock in trade is as distinctly a disposition foreign The New York State Library has just issued its to the consignment, and for the benefit of the consignee, as a pledge, or sale in payment of con

Index of Legislation by States," covering the laws signee's debt, or a barter. By the general rule a factor cannot bind the principal by a disposition of passed in 1899. This bulletin digests and organizes

the enormous annual output of legislation so as to his property out of the ordinary course of busi

render available with a minimum of labor the most ness.” (Bank v. Heilbronner, 108 N. Y. 439, 444,

recent experience of other States, enabling those 15 N. E. 701; Warner v. Martin, 11 How. 209, 224,

interested in any specific law to find readily what 13 L. ed. 667.) We are asked to treat the ordinary States have recently passed similar laws. An inincidents of a bona fide consignment as sufficient indicia of title to enable the consignee to bind his teresting feature of the bulletin is its review of the

most important and distinctive legislation of the principal by every act of ownership as against an

year, indicating the trend of legislation by referinnocent third party. This would involve the reversal of the whole line of cases by which the following notes are taken:

ence to laws of previous years, from which the contract of consignment has been recognized and

Utah has established a State institute of art defined

having a governing board of seven members appointed by the governor. The object of the

institute is declared to be to advance the interests Railroads -- Injury to Employe — Release. — In of the fine arts, develop the influence of art in Potter v. Detroit, G. H. & M. Ry, decided by the

education and to foster the introduction of art in Supreme Court of Michigan in December, 1899, it manufactuçes.” It is the duty of the institute to was held that a release given by a brakeman to a

make art collections, hold annual exhibits and railway company, reciting that he had received

provide annual lecture courses. certain injuries, and that, to avoid litigation, he, in

The plan adopted in Kentucky in 1898 for placconsideration of the re-employment by the com

ing elections in the hands of a State board elected pany for such time as might be satisfactory to the

by the legislature has during the present year been company, released such company from all claims

followed in North Carolina. This law creates a for damages for such injuries, is without consider

State board of elections, consisting of seven memation where he was, at the time it was given, in

bers elected biennially by the general assembly. the employ of the company. The court said in

The State board appoints and has power to remove part:

county boards of three members, who in turn apSome time after plaintiff received his injuries, point and may remove the registration and election and on October 31, 1892, he signed a release recit- officers. ing that he had received certain injuries, as fol- Wisconsin has adopted an act regulating lobbylows: “ At Milwaukee Junction, while riding on a ing. A public register is to be kept containing the ladder of car, was knocked off by a post standing names of all lobbyists, the various bills to oppose a little west of the road crossing, cutting my head and promote which they are employed and the and bruising my shoulder; ” and after reciting that names of the individuals or corporations by whom the company denied liability, for the purpose of they are employed. Within thirty days after the determining and ending the question of liability adjournment of the legislature persons or corporaand to avoid litigation, in conisderation of re-em- tions employing lobbyists must make a detailed ployment by the company, the release proceeds: statement of expenditures to the secretary of state. “I do hereby waive and relinquish all claims that Vermont has enacted that all local bills for the I may have against the said company for damages amendment of city and village charters must be for the aforesaid injuries, and do hereby release published in a newspaper of the county at least the said company of and from all claims as afore- three weeks previous to the session of the legislasaid.” The recited consideration for this release ture. This safeguard will doubtless prevent much is “the re-employment by said company for such hasty local legislation in the interest of private time only as may be satisfactory to the said com- individuals, which is often put through during the pany.” The testimony shows that at the time when closing hours of the session without the knowledge the release was signed the plaintiff was already of the localites concerned. again in the defendant's employ. No change as to A number of States have provided for the reguthe terms of employment was made, nor was the lation and licensing of private employment agendefendant company bound to retain him in its cies, but only a few have as yet entered the field in employ for any length of time whatever. There competition with private enterprise. During 1899 was no consideration for the release. The case is, Illinois has established free employment agencies in this respect, very similar to Puriy v. R. R. Co. in cities of 50,000, to be conducted by officers ap(125 N. Y. 209, 26 N. E. 255).

pointed by the governor, and Missouri has directed


the commissioner of labor statistics to establish stitutional amendment authorizing State taxation free employment bureaus in cities of 100,000. to improve highways.

Delaware has adopted a general corporation law To obviate the inconvenience caused by the disdesigned to offer special inducements to corpora- similar bicycle regulations of the various municitions to organize under its laws. It has reduced

palities of the State, New York has prescribed a its incorporation fee to 15 cents for each $1,000 of set of ordinances and regulations for the use of capital, while that of New Jersey is 20 cents and bicycles that must be adopted by cities, towns and that of New York $1.25, and hopes to attract many villages wishing to have any regulations whatever. corporations that would otherwise incorporate in New York and Oregon have passed general laws New Jersey and other States. Industrial combi- for the construction of sidepaths by counties. A nation which has attended the recent industrial

Pennsylvania law provides for the construction of prosperity has brought about numerous renewed sidepaths by townships, and in Washington cities attempts to cope with the assumed evil. Nine have been authorized to construct paths. Florida, States have during the present year again taken up Illinois, Massachusetts, Michigan, Minnesota and the solution of the problem. The laws of Ar- Pennsylvania have passed laws to protect sidekansas, Michigan, Missouri and Texas are par- paths from injury. ticularly drastic. Besides the national Anti-Trust

The indiscriminate imprisonment of all kinds of Act, 29 States and territories now have laws spe

offenders, whether they show serious pathologic cially constructed to prohibit trusts.

symptoms or not, is responsible for making many Inheritance taxes have been established in Mich-confirmed criminals, just as dosing a healthy perigan, Wisconsin and Missouri. The direct inher

son with medicine may make a permanent invalid. itance tax of 2% on personal property above $5,000

Massachusetts authorized the appointment of proestablished by Pennsylvania in 1897 has been de

bation officers in 1891 and Vermont has now folclared unconstitutional, as the $5,000 exemption

lowed her example in an act providing for the violates the provision that all taxes shall be uni- appointment in each county by the county court of form on the same class of subjects. Inheritance

a probation officer who may recommend that pertaxes now exist in some form in 20 States.

sons be released on probation, may expend money California has made it unlawful to publish cari- for temporary support and transportation, and catures of residents of the State which“ in any way must report monthly to the prison commission. reflect upon the honor, integrity, manhood, virtue,

Illinois and Minnesota have provided for probareputation or business or political motives” of the tion officers for juvenile offenders. No State has person caricatured, or tend to expose him to yet had sufficient confidence in the criminologists " public hatred, ridicule or contempt.” Not stop- to adopt a real indeterminate sentence law. Crime ping with this, however, it is also made a mis

is the result of a diseased or defective social demeanor to publish portraits of residents of the

nature, and the only scientific way to deal with it State, except public officers and criminals, without

is to keep the criminal under treatment till cured. the written consent of the person concerned. Cali

At present it is evident that the trend is in this fornia has also enacted that published articles impeaching the reputation or exposing the natural

direction; many States are adopting maximum and defects of any person shall be signed by the author

minimum sentence, parole and a good time " laws. under penalty of $1,000, and Florida has followed

Within the present year maximum and minimum with a law requiring the signature of the author sentence laws have been adopted in California and to articles charging immorality.

Vermont, and the provisions of the Indiana law Indiana has adopted a strong law to prevent have been geratly extended. lynching. The penalty for actively aiding or abet- At an extra session held just previous to the ting is fixed at life imprisonment or death, and regular session in Kansas a court of visitation, the attorney-general may conduct the prosecution. consisting of three elective judges, was created and If any person is taken from the custody of the given very extensive control over railroad, express officer and lynched, it is made prima facie evidence and telephone companies. In case of a strike the of failure on the part of the officer to perform his court may summon the corporation to appear and duty, and it thereupon becomes the duty of the may order it to resume operations at once if after prosecuting attorney and attorney-general to in- | investigation the strike appears unjust. The act stitute impeachment proceedings.

has recently been held unconstitutional in the A commission has been appointed in Pennsy!- United States District Court. Florida has vested vania to investigate the subject of good roads and its railroad commission with judicial power in the report to the legislature of 1901. In Vermont the exercise of its control over rates and accommodaoffice of State highway commissioner has been cre- tions, and Arkansas has created a railroad commisated, while in Rhode Island the office of State sion with power to fix freight and express rates. commissioner of highways has been abolished and | The Michigan law of 1891 requiring railroads to the act granting State aid to towns repealed. Wissell 1,000-mile tickets for $20 has been declared consin has referred to the next legislature a con- unconstitutional by the United States Supreme

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