Both branches of the profession in Ireland have passed resolutions protesting strongly against the appointment of a member of the English bench to fill the vacancy among the lords of appeal caused by the retirement of Lord Morris, and the Solicitors' Journal thinks they have ground for dissatisfaction. It is regarded as obviously desirable that there should be a representative of the Irish bench among the official members of the ultimate tribunal for Irish appeals. The promotion of Sir Robert Finlay to the attorney-generalship followed naturally on Sir Richard Webster's acceptance of the mastership of the rolls, says the Law Journal. Sir Robert Finlay is one of the best lawyers and one of the ablest men that the bar of England has produced in the present generation. He is, as Lord Beaconsfield said of Cairns,"great in counsel." He possesses the respect and trust of every member of the profession; and there will be no lack of touch" or sympathy between the bar and the law officers while he holds the attorney-generalship. 66 Sir Nathaniel Lindley, the new lord of appeal, was born at Acton Green in 1828, and is the son of the late John T. Lindley, professor of botany at University College, London. Here Sir Nathaniel was educated for the law, and in 1850 was called at the Middle Temple. He was made a Q. C. in 1872, judge of Court of Common Pleas 1875, and lord justice of appeal in 1881. He became master of the rolls in 1897. His works on Partnership and Company Law rank among the legal classics. He is one of the very few eminent lawyers of to-day whose name is not asociated with politics. The Irish criminal statistics which have just been published are of considerable interest to every one engaged in the practice or administration of the law, says the Law Times. It appears that the habitual criminals, or the persons who have been previously convicted, constitute a very large proportion of the convicts. Thus, of the 30,999 convicted prisoners in Ireland in 1897, no fewer than 22,588 had been previously convicted, and of these 3.457 had been convicted from eleven to twenty times, and 5,514 had been convicted more than twenty times.. The close connection between illiteracy and crime is, moreover, strongly marked. It is shown that while 32.6 per cent. of convicted prisoners in 1897 were absolutely illiterate, only 16.8 per cent. of the general population of Ireland in 1891 were in a similar condition of ignorance, while there is no doubt that the percentage of illiterate among the general population was considerably less in 1897 than in 1891. In connection with the celebrations in Berlin on the occasion of the coming of age last Sunday of the crown prince of Prussia, it may be of interest to point out that, while he has attained his majority on his eighteenth birthday, an ordinary person in Germany does not in general acquire the same status until the completion of his twenty-first year. In certain cases, however, where it is for a person's benefit, this may be granted to him by judicial decree on the completion of his eighteenth year. In this country, as is known, full age in male or female is twenty-one years, which age is completed on the day preceding the anniversary of the person's twenty-first birthday. This is the general rule, and to it there is one exception only, and that is in the case of the sovereign, who attains majority at eighteen. In the United States our law prevails generally as to males, but in a number of States within the Union women acquire the status of majority at eighteen. In France the age is twenty-one in the case of both males and females. Law Times. Remarking upon Mr. Justice Darling's reference to Shylock, the Outlook says: "It is interesting to recall the fact that many years ago a writer in one of the magazines challenged the accuracy of Portia's law - although from a very different point of view to Mr. Justice Darling's. This writer contended that Portia was entirely wrong in saying that Shylock might cut a pound of flesh, but might not shed a drop of blood because there was no mention of blood in the bond. He founded his opinion upon the familiar maxim, Omne majorem in se minorem continet. Permission to take a thing, he argued, involves a grant of the necessary ways and means. The same writer ridiculed, justly enough, the declaration of Portia: If thou takest more or less than a just pound thou diest.' Of course a creditor is always entitled to take less than his due. Moreover, if Shylock was not entitled by presumption to blood as well as flesh, neither could he be held to have incurred the penalty of death and loss of all his goods, because, by presumption, he had sought the life of Antonio. If there was nothing about blood in the bond, neither was there anything about life." Tegal Laughs. Baron Brampton, when Justice Hawkins, was accosted at a railway station on one occasion by a rough fellow who seemed very anxious to assist with his luggage. Struck by his friendliness, Sir Henry said: You seem very desirous to assist me." "That's what I am, sir," replied the man. "You see, sir, once you did me a good turn." 66 Yes," said the judge. 'When and where. pray?" 66 When ye 'ung Crooked Billy," replied the man. Me and Billy oncet was pals, but we fell out, and Billy said as 'ow next time 'e chopped eyes on me 'ed do for me with a knife. I knowed Billy and knowed 'e'd do as 'e said, and so 'e would if you 'adn't 'ung 'im in time. So I'd like to do you a good turn, too, Sir 'Enry." 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 addressed 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.] ALBANY, JUNE 9, 1900. Current Topics. 0 NE of the most novel and curious actions at law we have come across in some time originated not long ago in Stroudsburg, Pa. Among the residents of that city is the Rev. E. E. Dixon, who, in a public prayer, invoked the divine vengeance upon a brewery that had been erected in that town. In his prayer the Rev. Dixon, after calling down curses upon the aforesaid brewery and its proprietors, according to newspaper reports, specifically urged God to strike it with lightning. Sure enough, not long afterward, during a violent storm, a bolt from heaven struck and partially wrecked the building; thereupon the owners brought suit for damages against Mr. Dixon, claiming that through his intercession and appeals the divine wrath had been brought down upon their property. The clergyman, in his answer, it is understood, puts forth the claim that he should not be held responsible for an act of divine providence, and this is the novel question with which the court will be compelled to wrestle. Such a plea would seem to indicate a woeful lack of faith in the power of prayer, yet perhaps it was the only plea he was able to make under the circumstances. The trial of this novel suit, if it ever comes to trial, ought to prove decidedly interesting. The Good Book tells us that all that one needs in order to have his prayers answered is faith. Did the Rev. Dixon possess it, and VOL. 61-No. 23. was that faith potential in calling down the divine vengeance upon the brewery referred to, or was its destruction so soon after the prayer a mere coincidence one of those strange correspondences with which the busy world is filled? Here is a question which is calculated to cause the average juryman's hair to turn gray. Subscription price, Five Dollars per annum in advance. Single the Court of Divorce and judge advocateaumber Twenty-Five Conts. The news that Sir Francis Jeune (pronounced in identically the same way as the sixth month of the year), now president of general, is to become lord high chancellor and to succeed Lord Halsbury on the woolsack, seems to have evoked almost universal approval, although as a matter of fact few persons seem to have thought of Sir Francis in connection with the woolsack. It may well be doubted whether any other appointment could have given such general satisfaction as that of Sir Francis, to the administration, to the bar and to the people. Sir Francis is described as in appearance the very antithesis of the present occupant of the office of lord high chancellor, being tall, of fine figure and the very embodiment of the majesty of the law, whereas his predecessor is not only a small man physically, but very commonplace- indeed, insignificant in appearance. The office is one of great dignity and importance; besides presiding over the deliberations of the house of lords, and being entitled to precedence immediately next to the Archbishop of Canterbury, the incumbent becomes a peer of the realm and receives a salary of $50,000 per annum - the same as that of the president of the United States and on retirement from the office is entitled to a pension of $25,000 for the remainder of his days. He becomes by virtue of his office a member of the cabinet, and receives from the crown as token of his office the great seal of the realm, of which he is the "lord keeper." As occupant of the woolsack he becomes the "keeper of the queen's conscience," and likewise "general guardian of all infants, idiots and lunatics." The fact is pointed out that in olden times the office of chancellor was invariably held by an ecclesiastic, and hence it is somewhat appropriate that Sir Francis should have first attained distinction as an expert in ecclesiastical law. But we are told that still more widely known than Sir Francis is his wife, whose name is familiar to the reading public of the United States as the author of numerous articles in American publications. The correspondent adds: A Scotch woman by birth, she married as her first husband the late Colonel the Hon. John Stanley, brother of Lord Stanley, of Alderly, and in this way is the sister-in-law of the Countess of Carlisle, of the Dowager Countess of Airlie, of Mgr. Stanley (who is a member of the pope's household, and generally credited with being the correspondent of the London Times within the precincts of the Vatican), and of the Hon. Lyulph Stanley, the well-known Radical. Mrs. Stanley married Sir Francis Jeune about twenty years ago, and from that time forth has been one of the most The somewhat unexpected announcement came from Saratoga early in the week that the Court of Appeals had appointed Mr. Edwin A Bedell to succeed Mr. Edmund H. Smith as state reporter. It had been com conspicuous figures in London life, having appar-monly supposed that the court would take no ently taken upon herself the queer mission of bringing together in her salon the most incongruous elements of society. Her salons, indeed, can only be compared to those of a species of glorified and really intellectual counterpart of the "Mrs. Leo Hunter" immortalized by Charles Dickens in Pickwick." The moment any new personage appears upon the London horizon, who is capable of being in any way lionized, straightway Lady Jeune gathers him into her net, and for a time he serves as the principal attraction of her entertainments. action upon Mr. Smith's resignation until fall, being extremely reluctant to lose his services, but as Mr. Smith's health did not show the hoped-for improvement, and he held out no hope of being able to resume his duties, the members of the court decided to fill the vacancy, the necessary order having been signed on Tuesday last. The appointment of Mr. Bedell, in our opinion, is ideally excellent. It is so regarded, we believe, by the judiciary and the profession throughout the State. It is right in the line of the most practical of all civil service, for the appointee has not only been assistant reporter of the Court of Appeals for the past twelve years, but he has during the past five or six months performed the work of his superior with the highest degree of satisfaction to the bench and the bar. There could, of course, be no more practical or convincing test of competency and efficiency than this. However true it may be that politics enters into the selection of Federal judges and a recent somewhat notorious case is still fresh in the public mind-our own Court of Appeals gives most convincing proof to the contrary. for, although the majority of its members are Republicans, the new appointee is a lifelong Democrat. The work of a state reporter requires not only wide knowledge and experience, but a peculiar talent which is possessed, we believe, by comparatively few Sir Francis Jeune's favorite recreation is bicycling, and a great many persons on both sides of the water are wondering whether the weight of his additional dignity and honors will prevent him from continuing to gain health and recreation in his favorite way. the case under the statutes of some other are Elsewhere in this issue will be found a decision of considerable importance in regard to the effect of the Bankruptcy Act upon mechanics' liens in the State of New York, rendered by the United States Circuit Court of Appeals in the Second Circuit, in Re Holland Emslie and others, bankrupts. The United States District Court had held that mechanics' liens filed under the New York statute, even if perfect in form, are dissolved by a petition in bankruptcy filed within four months after their filing, the court being of the opinion that a New York mechanics' lien is not created by the statute ipso facto, as is members of the profession; and after convincing themselves to their entire satisfaction that Mr. Bedell possessed all the necessary requirements, the members of the court did not hesitate to ignore all questions of party politics and give him the promotion to which his abilities and long, faithful service as an attache of the court justly entitled him. We congratulate the court and the new reporter upon the outcome, which we regard as the best possible solution of the question which was presented to the members of the court, because it not only assures them a thoroughly tried and proven official, but in the most convincing manner puts an end to all possible insinuations and we have heard some of these within the past few months that even the highest court of the State was not free from partisan considerations. Mr. Bedell, a portrait of whom and a sketch of whose brilliant career appears in another column of this issue of the JOURNAL, takes up the record of reports with volume 164, succeeding one of the most brilliant in a line of very able reporters. That he will come up to the high standard set by his predecessors in our opinion admits of no doubt. Notes of Cases. Legacy Consideration Lapse. In Ward v. Bush, decided by the Court of Chancery of New Jersey in February, 1900, it was held that, in the absence of evidence to the contrary, a legacy "for value received" will be presumed to have been given to discharge an obligation, so as to preclude a lapse by the legatee's dying before the testator. The court said: By her will, Mary A. Van Ortwick made the following bequest: Item. I give and bequeath unto Dr. J. J. Daly, of Rahway, N. J., the sum of $1,000 for value received." Dr. Daly died in the lifetime of testatrix, and the question is whether the legacy lapsed. The rule is that a legacy does not lapse when given to pay a debt. It has been so held even where the debt was barred by the Statute of Limitations at the time testator made his will (Williamson v. Naylor, 3 Young & C. Eq. 208; Philips v. Philips, 3 Hare, 281; Turner v. Martin, 7 DeGex, M. & G. 429). The case is said to be one of mingled bounty and obligation, and the rule with reference to the lapsing of legacies being itself founded on presumed intention, is held to be not applicable where the intent appears to be to discharge a duty a duty which, manifestly, is owing as well to the estate of the creditor as to the creditor himself. On much the same principle, a legacy given to and accepted by a widow in lieu of dower is not subject to abatement, proportionally with other legacies, on a deficiency of assets; for the legacy is considered as a purchase of the dower (Heath v. Dendy, 1 Russ. 546; Williamson v. Williamson, 6 Paige, 298). In the cast at bar there is enough to show that the legacy was given, not as mere bounty, but in discharge of an obligation. It need not appear to have been an exact equivalent to it (Philips v. Philips, 3 Hare, 292). The testatrix says that she gives it "f value received." These words, as well understood by lay men as by lawyers, raise the presumption of a legal consideration moving from the promisee sufficient to sustain the promise (Holliday v. Atkinson, 5 Barn. & C. 501; Clayton v. Gosling, I 360). It is so held not only in the case of notes and bills, but of other contracts (Whitney v. Stearns, 16 Me. 397), and even of deeds of land (Jackson v. Alexander, 3 Johns. 493). In the case last cited, where the deed was expressed to be for "value received," and could only operate as a bargain and sale under the Statute of Uses, Kent, C. J., says: "Value received' is equivalent to saying money was received, or a chattel was received. It is an express averment er vi termini of a quid pro quo." In the case at bar no evidence was offered on either side. There being, however, in the will itself, an admission of valuable consideration received, the bequest comes within the above mentioned rule, and must be held not to have lapsed by Dr. Daly's death in testatrix's lifetime. Duncan v. Franklin Tp. (43 N. J. Eq. 144, 10 Atl. 546), it was said, lays down a contrary rule. But the decision there was placed upon the ground that the expression, "his services in assisting m at different times," did not, standing alone, import obligation. It might have had reference to mere voluntary courtesy. Here the words used do. prima facie, import obligation. They import such consideration as would, in an action at law, support a promise. They must, therefore, in this court, suffice to indicate an intention on the part of testatrix to discharge a legal obligation, and not to confer a mere bounty. SOME PHASES OF THE RULE AWARDING DAMAGES IN ACTIONS CAUSING DEATH BY NEGLIGENCE. A N analysis of the leading decisions in England and the United States on the subject of the measure of damages in cases of death by negligence would seem to lead to the conclusion that in the very nature of things it is impossible to formulate any exact rules governing the elements of damages in cases of this sort. In truth, the various dicta scattered throughout the decisions, if we regard comparatively the progress of other branches of the law, point to a judicial state of tion of damages after the following fashion mind far more indefinite than the first utterances (Polock, C. B., in Franklin against S. E. R. R. of or courts of equity, in the days of old Seldon. Co., 3 H. & N. P. 213, Anno 1858): “The statute This is not intended as a blasphemous reflection (Lord Campbell's act) does not in terms say on upon the learning or clearmindedness of the bench, what principle the action it gives is to be mainbut rather as a reminder of the intrinsic difficulty tainable, nor on what principle the damages are to of framing definite juristic concepts, particularly be assessed, and the only way to ascertain what it upon the subject under consideration. The his- docs is to show what it does not mean." As a rule of tory of the development of the principles embody- statutory construction alone, this cogitation is iming the rules so far enunciated applying to the mortally unique. The New York statute, chapter awarding of damages undoubtedly indicate an 450, Laws 1847, modelled upon the lucid bit of augmentation of the confusion prevalent in the English legislation, has given rise to the most body of our law upon this subject. An opinion noble effort on the part of our judiciary to comdelivered by a judge of unquestionable ability in pare favorably with the courts of the mother the Supreme Court, Appellate Division, First De- country. Sedgwick, in his work, "Measure of partment (case of Morris as adm'r against Met. Damages," section 572, basing his classification St. R'y Co., reported in the N. Y. Law Journal of upon a leading decision in this State, divides the May 18, 1900), although on the whole probably as constituent elements of damages in cases of death sound as the universal status of legal opinion bear- arising from injuries negligently inflicted into (1) ing upon this very illusive subject of damages, those where there is a present pecuniary loss; contains the following dictum: "It is quite true (2) those where there is a prospective pecuniary that we are not to apply strict rules of logic in loss; (3) those in which death deprives the claimsustaining or setting aside the verdicts of juries. ant of services which would, in the ordinary course Were we to do so, the whole administration of of events, result in a pecuniary value to him. In the law by this means would be thrown into the the first place, the invention of the phrase, greatest confusion if it did not entirely fail. Never-" pecuniary damages," does not seem to have theless, we may be reasonably sure, when we are much facilitated the arriving at a scientific and confronted with a verdict which fails in logic when intelligible classification. The omission of the compared with others, and which upon a statement adjective "pecuniary" would even clarify the of it shocks the moral sense, that something about idea to be conveyed, and especially as our law has that verdict is so wrong that it ought not to be furnished us with a suggestion in the phrase, permitted to stand." For a clear statement of a Damnum absque injuria. Manifestly the damages perfectly untenable legal proposition this utterance allowed as a solatium, in Scotch law and in some can scarcely be excelled. Were the latter part of States of the Union (for instance, in Arkansas), the opinion of the court to be adopted as a rule under the English and New York doctrines would governing the verdicts of juries, it is safe to say certainly be regarded as no damages at all, or as that one-half of them would be set aside upon this occurring in cases where no real damages or ground alone. And yet the setting aside of the "injuria" is present. The statutes persist in disverdict in this case appears undoubtedly correct in tinguishing between pecuniary and nonpecuniary principle, and certainly moral. damages, but it would be decidedly preferable and clearer to simply say (damages), where definite measureable injuries are sustained by the plaintiff. As an illustration of how imperfect terminology has hampered the courts in applying the principles of the law where death resulted from negligence, the case of Tilley against Hudson River R. R. Co. (29 N. Y. 252) is instructive. In that case the wife of the plaintiff and the mother of his children sustained death through defendant's negligence. In discussing the question of the measure of damages the court, per Chief Justice Denio, held properly that the loss of education and nurture to the children by her death in a suit by the father as personal representative, under the statute was within the equity of the statute, as an element of pecuniary damages, although not in the strict sense of that word, but on the question of the loss of earnings to the father from the labor of the mother, and the resultant diminution to the in Now to take a short historical retrospect in order to prove that legal opinion has wandered aimlessly upon the shoals of speculation in this class of cases. It is generally understood, how from the very beginning of the legislation modifying or abolishing the common-law rule, actio personalis moritur cum persona, the courts proceeded to construe the statutes entirely different from their obvious import. Lord Campbell's act (9 & 10 Victoria, Ch. 93, Ad. 1846) from its verbiage clearly contemplated that the wife, husband, parent and child of the person whose death shall have been so caused" could recover only such damages as might have accrued in the event of the original party bringing an action, had that individual not died. This statute was certainly neither logical, legal nor ethical, and with this huge statutory monster of error upon which to found their mental abstractions, the courts began the work of demolishing all legal principle upon this practical ques-heritance of the children upon the father's de |
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