The Albany Law Journal. A Weekly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, N. Y. Contributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law questions, addresses on legal topics, or discussions on questions of timely interest are solicited from members of the bar and those interested in legal proceedings. All communications intended for the Editor should be ad. dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] able to say that he never delivered a dissenting opinion would that more judges could say the same. Long life and happy days to the venerable judge! That the study and practice of the law are not ordinarily to be regarded as the best training for the production of fiction, will probably be generally conceded; on the other hand, the close connection between law and literature seems to be demonstrated by the numerous examples of lawyers who have be Subscription price, Five Dollars per annum in advance. Single come famous as authors of fiction, as well as aumber Twenty-Five Cents. THE ALBANY, FEBRUARY 17, 1900. Current Topics. philosophers and poets. R. D. Blackmore, the author of that classic in fiction entitled "Lorna Doone," who died recently near London, became a member of the Middle Temple nearly fifty years ago and for a number of years practiced as a conveyancer. He also made good use of his legal knewledge and training in other though less famous works. Other examples of writers of fiction who have had legal training will occur to the reader, such as Robert Louis Stevenson, Sir HE Hon. John A. Peters recently resigned his office of chief justice of the Maine Supreme Court after a long, honorable and distinguished judicial career. The esteem indeed affection in which he is held by the legal profession of his State was amply testified on the occasion of his retire-Walter Scott, Anthony Hope, Stanley Weyment, when the planting of a baby oak-a thrifty sprout from the famous Penobscot oak - was planted on the court-house lawn at Wiscasset, followed by a banquet in honor of the retiring jurist. The tree will be known appropriately as the "Peters Oak." Judge Peters' response to the honors tendered him on the occasion referred to was brief but in excellent taste. He retired, he was proud to say, while he had mind and sense to know what he was doing. He was not quite ready to say as Lamb did on a similar occasion, that it "was like passing from life into eternity." He was not ready for eternity, and did not believe that eternity was ready for him, but he did confess somewhat sadly to a sort of indescribable feeling of being buried alive, in thus taking final leave of his duties on the bench. "Yet," he patriotically added, "I would rather be buried alive in old Lincoln county than anywhere else in the world." Such service as Justice Peters has rendered on the bench is worthy in the highest degree of the recognition it received, for a purer or more useful life would be difficult to point to. Judge Peters long took pride in being VOL. 61-No. 7. man and Rider Haggard. Sir Walter, in speaking of himself and the law, once said: 'There was no great love between us, and it pleased heaven to decrease it on further acquaintance." Lovers and readers of Stevenson's works will also recall the fact that he never put a very high estimate upon the value of his legal training in its bearing upon his literary labors. The London Law Journal mentions the fact that the present poet-laureate is a member of the Inner Temple and once practiced on the Northern Circuit, and that two of the leading dramatists of England, W. S. Gilbert and Sidney Grundy, also have precticed at the bar. It also points out that not alone in the ranks of the novelists are lawyers to be found who have given up to mankind what they once intended for the law, and cites Lord Bacon, in the realm of philosophy, Macaulay in the region of history, and Cowper and Gray in the domain of poetry, as having increased the prestige of the profession in which they were trained. A very interesting point pertaining to the duty and liability of sheriffs was decided recently by the New York Appellate Division, Second Department. It appears that in June last William V. Malloy, sheriff of Westchester county, having discharged Susan S. Weeks from the county jail, where she had been committed by order of the surrogate, he was adjudged, in a proceeding brought against him by Laura Leggatt, to be guilty of contempt of court, and was fined $250. Mrs. Weeks' commitment was for neglecting or refusing to comply with the surrogate's order directing distribution of certain funds which had come into her possession as executrix of Laura Slater. Before her discharge by the sheriff, Mrs. Weeks' commitment had been judicially declared in habeas corpus proceedings to be "void upon the face," by a court of competent jurisdiction. The Appellate Division of the Second Department has directed a reversal of the order committing the sheriff for contempt, holding, Justice Woodward giving the opinion, that it having been judicially determined in the habeas corpus proceedings that the prisoner was illegally confined, such judicial determination protected the sheriff in discharging her. The court held that it was not the province of the sheriff, in habeas corpus proceedings, to inquire whether the court, in directing the discharge of the prisoner, had erred in acquiring jurisdiction. While neglect of the formalities provided by the code might afford grounds for reversing the decision of the judge, it did not subject the sheriff, who acted under the order of the court, to punishment. The verdict of the jury in the Molineux case which, unless the judgment be set aside by the Court of Appeals, will send the accused to the electric chair, appears to have been a great surprise to nearly everybody except the prosecuting officials. Equally surprising, at least to the laity, was the action of the prisoner's counsel in letting the case go to the jury on the plaintiff's own testimony, although probably Mr. Weeks' decision to do so did not greatly astonish the members of the legal profession who have found time to follow the proceedings of the trial and know something about the ante cedents of the prisoner. We confess to being in the category of those who did not believe that the prosecution had made out a very clear or coherent case in support of its contention that Roland B. Molineux caused the death of Mrs. Adams while attempting to take the life of Harry S. Cornish. Although there seems to have been a consensus of opinion that the right man had been indicted, there still remained the necessity of proving his guilt, beyond a reasonable doubt, in order to justify the jury in bringing in a verdict of guilty. It had been presumed generally that something more than the testimony of handwriting experts, upon which the prosecution very largely relied, would be necessary. However, petit juries are proverbially uncertain, and in criminal jurisprudence the unexpected frequently happens, as in this case. In view of the result, the prisoner and his counsel, who doubtless acted in full accord with his wishes, realize now, if they did not at the time, that in refusing to put in any testimony they staked all on a chance - and lost. We believe this action had a very powerful influence upon the jury in determining their verdict, and that had the prisoner's character and habits been such that he had no fear of the most rigid cross-examination, the result probably would have been different. We fully agree with the strictures upon the system or the administration of it which permits a trial, even for a capital offense, to last thirteen weeks, and that some plan must be devised whereby the repetition of such scenes as were witnessed in this case shall be prevented is plain to everyone. The case on appeal is being prepared and will doubtless be decided in the course of three or four months. The prisoner and his counsel appear to be supremely confident that errors occurred which will demand a new trial in order to protect the prisoner's rights; so that the recorder and his conduct of the case, in a sense, will be on trial before the highest court. The result of the trial, though surprising, must be gratifying in the highest degree, not merely to the prosecuting officials, whose conduct of the case is thoroughly vindicated, but to those who had begun to fear that all of the enorm ous expenditure of time, energy and money would go for naught because of the inability of the jury to agree upon a verdict. We have heard the cost of the trial estimated as high as $250,000 and no estimate has put the amount below $200,000. In the near future the ALBANY LAW JOURNAL will pub lish a careful and critical review of the case the sale, had been unpacked when the defendant first examined the stock. It is immaterial, except But if he had then asked for some evidence of ownership, he could only have been shown a bill for goods consigned, and the real character of the Ricciardellis' possession would have been apparent. The defendant chose to rely on the authority of the possessors to sell in their retail business indicated only by the possession described. He as bearing on the good faith of the defendant. from the legal standpoint by a lawyer who would have been protected in a purchase within attended the trial. Notes of Cases. 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. 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 owner of the whole business and every article in his possession. If he attempts to sell his business and stock as a single chattel, he enters upon an The pur Factors Unauthorized Sale of Goods Bona Fide Purchaser. In Romeo v. Martucci, decided by the Supreme Court of Errors of Connecticut in 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 sold by them in their name at retail, on commis sion, in the ordinary course of their business as retail merchants, does not give them such indicia of title as to enable them to defeat the title of the principal by a sale of such goods to an innocent purchaser for value, who buys their entire business and stock on the day the consignment is received. The court said in part: A A consignee differs from an ordinary bailee mainly in that he is authorized to sell in the ordinary course of business; but if he sell out of the ordinary course of business he abuses his powers, and against this abuse the consignor is protected, like any other bailor. When a mortgagee leaves the property mortgaged in the possession of the mortgagor, possession under such circumstances may be treated as an index of title. It is inconsistent with the real transaction, which demands a change of possession, and the mortgagee deliberately puts himself in a false position. But in the case of a consignment the reverse is true. Possession by the consignee is consistent with the transaction, and is evidence of the authority pertaining to that transaction, but furnishes no other index of title as against the consignor. Some act of the consignor inconsistent with the true relation is necessary for that purpose · as if the bill for goods consigned were made out as one for goods sold, or a bill of lading were given which treats the consignee as owner or purchaser. In such way the consignor may put himself in a false position, so that, if the rights of an innocent purchaser intervene, he cannot change that position without fraud and damage. There may be other acts by which a consignor may be estopped from asserting his title, but they must be equivalent in force to the ones indicated. In the present case it does not appear whether the goods consigned, and received on the day of chaser cannot retain, as against the real owner, Blatchf. 290, 293, Fed. Cas. No. 7675; Gray v. Agnew, 95 Ill. 315.) To turn over the goods consigned to another by a sale of his business and stock in trade is as distinctly a disposition foreign to the consignment, and for the benefit of the consignee, as a pledge, or sale in payment of consignee's debt, or a barter. By the general rule a SUMMARY AND INDEX OF LEGISLATION BY STATES IN 1899. TH THE New York State Library has just issued its "Tenth Annual Comparative Summary and Index of Legislation by States," covering the laws factor cannot bind the principal by a disposition of passed in 1899. This bulletin digests and organizes his property out of the ordinary course of business." (Bank v. Heilbronner, 108 N. Y. 439, 444, 15 N. E. 701; Warner v. Martin, 11 How. 209, 224, 13 L. ed. 667.) We are asked to treat the ordinary incidents of a bona fide consignment as sufficient indicia of title to enable the consignee to bind his principal by every act of ownership as against an innocent third party. This would involve the reversal of the whole line of cases by which the contract of consignment has been recognized and defined. Railroads Injury to Employe - Release. In Potter v. Detroit, G. H. & M. R'y, decided by the Supreme Court of Michigan in December, 1899, it was held that a release given by a brakeman to a railway company, reciting that he had received certain injuries, and that, to avoid litigation, he, in consideration of the re-employment by the company for such time as might be satisfactory to the company, released such company from all claims for damages for such injuries, is without consideration where he was, at the time it was given, in the employ of the company. The court said in part: Some time after plaintiff received his injuries, and on October 31, 1892, he signed a release reciting that he had received certain injuries, as follows: "At Milwaukee Junction, while riding on a ladder of car, was knocked off by a post standing a little west of the road crossing, cutting my head and bruising my shoulder; and after reciting that the company denied liability, for the purpose of determining and ending the question of liability and to avoid litigation, in conisderation of re-employment by the company, the release proceeds: I do hereby waive and relinquish all claims that I may have against the said company for damages for the aforesaid injuries, and do hereby release the said company of and from all claims as aforesaid." The recited consideration for this release is "the re-employment by said company for such time only as may be satisfactory to the said company." The testimony shows that at the time when the release was signed the plaintiff was already again in the defendant's employ. No change as to the terms of employment was made, nor was the defendant company bound to retain him in its employ for any length of time whatever. There was no consideration for the release. The case is. in this respect, very similar to Purdy v. R. R. Co. (125 N. Y. 209, 26 N. E. 255). the enormous annual output of legislation so as to render available with a minimum of labor the most recent experience of other States, enabling those States have recently passed similar laws. An ininterested in any specific law to find readily what teresting feature of the bulletin is its review of the most important and distinctive legislation of the year, indicating the trend of legislation by referfollowing notes are taken: ence to laws of previous years, from which the Utah has established a State institute of art having a governing board of seven members appointed by the governor. The object of the institute is declared to be " to advance the interests of the fine arts, develop the influence of art in education and to foster the introduction of art in manufactures." It is the duty of the institute to make art collections, hold annual exhibits and provide annual lecture courses. The plan adopted in Kentucky in 1898 for placing elections in the hands of a State board elected by the legislature has during the present year been followed in North Carolina. This law creates a State board of elections, consisting of seven members elected biennially by the general assembly. The State board appoints and has power to remove county boards of three members, who in turn appoint and may remove the registration and election officers. Wisconsin has adopted an act regulating lobbying. A public register is to be kept containing the names of all lobbyists, the various bills to oppose and promote which they are employed and the names of the individuals or corporations by whom they are employed. Within thirty days after the adjournment of the legislature persons or corporations employing lobbyists must make a detailed statement of expenditures to the secretary of state. Vermont has enacted that all local bills for the amendment of city and village charters must be published in a newspaper of the county at least three weeks previous to the session of the legislature. This safeguard will doubtless prevent much hasty local legislation in the interest of private individuals, which is often put through during the closing hours of the session without the knowledge of the localites concerned. A number of States have provided for the regulation and licensing of private employment agencies, but only a few have as yet entered the field in competition with private enterprise. During 1899 Illinois has established free employment agencies in cities of 50,000, to be conducted by officers appointed by the governor, and Missouri has directed the commissioner of labor statistics to establish free employment bureaus in cities of 100,000. stitutional amendment authorizing State taxation to improve highways. To obviate the inconvenience caused by the dissimilar bicycle regulations of the various municipalities of the State, New York has prescribed a set of ordinances and regulations for the use of bicycles that must be adopted by cities, towns and villages wishing to have any regulations whatever. New York and Oregon have passed general laws for the construction of sidepaths by counties. A Pennsylvania law provides for the construction of sidepaths by townships, and in Washington cities have been authorized to construct paths. Florida, Illinois, Massachusetts, Michigan, Minnesota and Pennsylvania have passed laws to protect sidepaths from injury. Delaware has adopted a general corporation law designed to offer special inducements to corporations to organize under its laws. It has reduced its incorporation fee to 15 cents for each $1,000 of capital, while that of New Jersey is 20 cents and that of New York $1.25, and hopes to attract many corporations that would otherwise incorporate in New Jersey and other States. Industrial combination which has attended the recent industrial prosperity has brought about numerous renewed attempts to cope with the assumed evil. Nine States have during the present year again taken up the solution of the problem. The laws of Arkansas, Michigan, Missouri and Texas are particularly 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 inheritance tax of 2% on personal property above $5,000 established by Pennsylvania in 1897 has been declared unconstitutional, as the $5,000 exemption violates the provision that all taxes shall be uniform on the same class of subjects. Inheritance taxes now exist in some form in 20 States. California has made it unlawful to publish caricatures of residents of the State which "in any way reflect upon the honor, integrity, manhood, virtue, reputation or business or political motives" of the person caricatured, or tend to expose him to "public hatred, ridicule or contempt." Not stopping with this, however, it is also made a misdemeanor to publish portraits of residents of the State, except public officers and criminals, without the written consent of the person concerned. California has also enacted that published articles impeaching the reputation or exposing the natural defects of any person shall be signed by the author under penalty of $1,000, and Florida has followed with a law requiring the signature of the author to articles charging immorality. Indiana has adopted a strong law to prevent lynching. The penalty for actively aiding or abetting is fixed at life imprisonment or death, and the attorney-general may conduct the prosecution. If any person is taken from the custody of the officer and lynched, it is made prima facie evidence of failure on the part of the officer to perform his duty, and it thereupon becomes the duty of the prosecuting attorney and attorney-general to institute impeachment proceedings. A commission has been appointed in Pennsy!vania to investigate the subject of good roads and report to the legislature of 1901. In Vermont the office of State highway commissioner has been created, while in Rhode Island the office of State commissioner of highways has been abolished and the act granting State aid to towns repealed. Wisconsin has referred to the next legislature a con son with medicine may make a permanent invalid. Massachusetts authorized the appointment of probation officers in 1891 and Vermont has now followed her example in an act providing for the appointment in each county by the county court of a probation officer who may recommend that persons be released on probation, may expend money for temporary support and transportation, and must report monthly to the prison commission. Illinois and Minnesota have provided for probation officers for juvenile offenders. No State has yet had sufficient confidence in the criminologists to adopt a real indeterminate sentence law. Crime is the result of a diseased or defective social nature, and the only scientific way to deal with it is to keep the criminal under treatment till cured. At present it is evident that the trend is in this direction; many States are adopting maximum and minimum sentence, parole and "good time" laws. Within the present year maximum and minimum sentence laws have been adopted in California and Vermont, and the provisions of the Indiana law have been geratly extended. At an extra session held just previous to the regular session in Kansas a court of visitation, consisting of three elective judges, was created and given very extensive control over railroad, express and telephone companies. In case of a strike the court may summon the corporation to appear and may order it to resume operations at once if after investigation the strike appears unjust. The act has recently been held unconstitutional in the Florida has vested United States District Court. its railroad commission with judicial power in the exercise of its control over rates and accommodations, and Arkansas has created a railroad commission with power to fix freight and express rates. The Michigan law of 1891 requiring railroads to sell 1,000-mile tickets for $20 has been declared unconstitutional by the United States Supreme |