SENATOR COCKRELL'S MISTAKE.

HE TALKED OUT IN MEETING WHEN HE HAD No RIGHT TO DO SO.

HE "Congressional Record" for the first day of the session has had to be amended in order to save that body from everlasting disgrace. This is all because Senator Cockrell talked out in meeting when he had no business to do so. The senate is a continuous body. It is divided into three classes, and the terms of those belonging to each class expire on the 3d of March on alternate years. Mr. Cockrell's term expired on the 3d of March, 1899. He has not been a member of the senate since that date until he was sworn in last Monday. When the senate was called to order last Monday he was on the floor only by sufferance, and had no more right to be there or to take part in the proceedings than any other spectator in the gallery. Yet he arose in his seat and said: "I move that the credentials be referred to the committee on privileges and elections."

Nobody suspected at the time that Mr. Cockrell was an intruder, and his remark was allowed to go unrebuked. He did not imagine such a thing himself, for he has been a senator so long that he cannot realize how it would seem not to be a senator. But he actually was not a senator until about five minutes after he made the remark, when he went up to the clerk's desk and was sworn in. This "violation of the usual and orderly methods of procedure," as Mr. Hoar always expresses it, was discovered by a clerk, and the only thing that can be done now is to scratch Mr. Cockrell's remark out of the "Record."

him up in business. Even if trustees are expressly empowered to lend on personal security, they may not lend to one of themselves; a fortiori a sole trustee could not lend to himself. In the tenth edition of" Lewin on Trusts" it is stated that trustees having a power, with the consent of the tenant for life, to lend on personal security, cannot lend on such security to the tenant for life himself. The authority cited in support of this proposition is an Irish case of Keays v. Lane, decided about thirty years ago. In that case the trustees of a fund which was settled on a husband for his life or until insolvency, and then on his wife for life for her separate use, were held to have committed a breach of trust by lending part of the trust funds to the husband, who afterward became insolvent. They had power to invest on personal security with the husband's consent. It seems to have been admitted that a breach of trust was committed; and what the case really decided was another point, viz.: that the wife's separate estate in the trust fund, having been reversionary at the time of the loan, could not on that account be bound by her, and was not available to recoup the trustees. An examination of the facts of the case shows that the tenant for life was in embarrassed circumstances when he received the loan, and that it was this fact which rendered the question of breach or no breach unarguable. And Mr. Justice Kekewich has recently held, in In re Laing (68 Law J. Rep. Chanc. 230; L. R. [1899] 1 Chanc. 593), that trustees who have power with the consent of a tenant for life to invest on personal security may, if satisfied that there is a reasonable prospect of repayment, lend to the tenant for life himself. The case is analogous to that of a tenant for life whose consent is necessary to the exercise of a power of sale, but who, neveretheless, may himself purchase from the trustees. Law Journal (London).

A

LOANS OF TRUST MONEY UPON PERSONAL SECURITY.

N advance of trust money upon personal security is a breach of trust unless the terms of the settlement authorize it in the most explicit manner. And the trustees are not absolved by the fact that at the time of the loan the borrower is solvent and in good credit. Even the deposit of money at interest with a broker while an investment is being found is a lending on personal security: though it is possible that a power in wide terms to advance trust funds for the benefit of a wife may authorize a loan to her husband to set

TH

HONESTY OF PROSECUTOR.

HE decision of the Appellate Division of the Supreme Court in the Second Department in People v. Livingston (47 App. Div. 283) calls attention to a rule of the criminal law of this State, which, assuredly, would be more honored in the breach than the observance. It was held that where an indictment, found against an accused for having defrauded the complainant by the green goods game," contains two counts, one for obtaining the complainant's money on a false and fraudulent representation that certain papers and writings exhibited by the accused were genuine and lawful United States money or notes, and the secone for larceny pure and simple, a conviction cannot be had under either count if the jury find that the complainant did not believe the representation, but parted with his money with the intention of

procuring counterfeit money from the defendant in return therefor.

The court followed and relied upon McCord v. People (45 N. Y. 470), which in turn cites and relies upon People v. Williams (4 Hill, 9) and People v. Stetson (4 Barb. 151). It is true that in the McCord case Mr. Justice Peckham dissented from the short per curiam opinion. Neverthless the New York rule on the subject seems to be quite definitely established. Such New York rule was followed in State v. Crowley (41 Wis. 271).

On the other hand it was held in Commonwealth v. Morrill (8 Cush. 571) that it is no defense to an indictment for obtaining goods by false pretenses, that the party defrauded made false representations to the defendant as to the goods so obtained. In Cunningham v. State (61 N. J. L. 67), the just and proper rule in cases of this character is indicated by the following extract from the syllabus: The defendant was not entitled to set up in his defense that B. knew the suit she employed him to prosecute was for a fictitious claim. The distinction is between suits inter partes and indictments for breach of criminal law. In the former case, both parties participating in the illegal act, neither can ask the aid of the court. In the latter case public justice alone is concerned, and one party cannot excuse his criminal conduct because the other is equally guilty with him."

We concur in the recommendation for remedial legislation in New York contained in the following extract from the opinion of Cullen, J., in People v. Livingston (supra):

'We very much regret being compelled to reverse this conviction. Even if the prosecutor intended to deal in counterfeit money, it is no reason why the appellant should go unwhipped of justice. We venture to suggest that it might be wise for the legislature to alter the rule laid down in McCord v. The People (supra). It is true that there is now in the Penal Code a provision for the punishment of these "green goods" offenders, but prosecution under it seems to be difficult, the only reported case that we know of (People v. Albow, 140 N. Y. 130) having been unsuccessful, and that on account of technical defects. If the rule as to larceny by false pretense, and by trick or device, were made the same as the common-law rule that stealing property from a thief is the same crime as stealing from the true owner, we think this class of cases might be much more successfully dealt with. know that a feeling prevails to some extent in the community that it is unjust that one offender should be punished and his co-offender obtain immunity. This feeling is absolutely unreasonable. Where one offender is punished and another escapes, there may properly be a feeling of dissatisfaction, but the dissatisfaction should be not because one man is in prison but because the other man is out." - N. Y. Law Journal,

We

The forcible ejection and removal of a child of tender years from a railroad train on which it has taken passage with its parent, for the failure of the parent to pay the child's fare, is, whether rightful or wrongful, in effect the ejection and removal of the parent. If, in such case, the parent has paid his own fare before the removal of the child, such fare, or the unearned value thereof, must be returned, or offered to be returned, as a condition precedent to the right of removal."

The question, highly interesting in and about this city at this time of the year, as to whether a person or persons repeatedly guilty of boisterous conduct and the use of bad language while riding on ferryboats or other public conveyances, can lawfully be excluded from such conveyances unti assurance of good behavior is given, is consider

by the Supreme Court of the State of Washington,

in a recent case against the West Seattle La and Improvement Co., says the N. Y. Evening Post. A woman has been in the habit of riding on the Land Company's ferry between Seattle and West Seattle. When she crossed to the latter place, she would become intoxicated, and on the return would cause great annoyance to the other passengers on the boat. At last the superintendent of the ferry ordered that she should not be allowed to ride upon the ferry until she should give an express promise to behave herself. The next time she went to buy a ticket, the agent refused to sell it. In reply to her question, she was told that, if she would promise to behave herself, she might ride on the boat, but otherwise she would not be allowed on board. She refused to promise, was excluded, and subsequently she sued the company, on the ground that, being a common carrier, it was bound to carry her, provided she was behaving herself, without regard to what her conduct might have been at other times. She got a verdict, which was subsequently reversed by the Supreme Court. The exact reasons for which the court reversed the judgment are not at hand, but the court did hold that the woman's habits of becoming intoxicated and annoying passengers were proper matters of defense on the part of the ferry company. One can but wish that the reasoning in this case could be extended, and applied so as to do

away with much of the unpleasantness and discomfort arising out of the conduct of the boisterous and drunken passengers on the ferries and street cars in and about this city.

English Notes.

The Paris correspondent of the Morning Post reported recently that by a peculiar coincidence quite a number of judges telegraphed to the Palace of Justice that they would be unable to attend court. The presiding judges had, therefore, to call on barristers present to fill the places of the absentees. In the Tenth Correctional Chamber the accused were judged and sentenced by one of the greatest criminal-defending counsel of the day, Maitre Henri Robert, who had been chosen as assessor by President Fabre. An amusing incident occurred. When one of the cases was called Maitre Robert had to leave the bench and come to the bar to defend a prisoner, while another barrister acted as assessor. Maitre Robert's client was acquitted.

A good many things have happened to the Great Seal. It has been thrown into the Thames, and has been buried in a garden, but only once, says the Globe has a Lord Chancellor had the misfortune to have it stolen from his custody. Some thieves broke into Lord Thurlow's house in Great Ormond street, and were enterprising enough to include the Great Seal in their "swag." They were never captured, and not a single trace of the Great Seal was ever found. Lord Eldon always kept the Great Seal in his bedroom, and when an alarm of fire was raised at his house at Encombe he flew with it to the garden and buried it in a flower bed. The destruction of his mansion so affected him that he could not remember the spot where he had buried it. “You never saw anything so ridiculous," he said, describing the incident in later years, as seeing the whole family down that walk, probing and digging till we found it."

In settling the future of British South Africa it will be worthy of consideration whether efficient codes might not be substituted for Roman-Dutch law. The intermediate period of military or Colonial Office control in the Orange River and Transvaal terrtories would afford an opportunity for enacting a series of codes, including the meritorious parts of the existing statute law and RomanDutch law, but dispensing with the necessity of future reference to continental systems and textbooks. It is clear that a great gain would ensue from the adoption of a Penal Code based on that of India, with the necessary variations and with such improvements as may be suggested by the new and very complete code of Queensland. The law of evidence and of contracts, and also the

commercial law, might with advantage be based on British law; and codification of these latter would now be easy. The law of marriage and civil status and succession is no doubt readily susceptible of codification, and the same may be said of the land laws, subject to this qualification, that it is unlikely that English real property law would be either welcome or suitable in South Africa. If the codes were prepared by a commission, including experts from the Cape and Natal, the foundation of a satisfactory and unifying common law for South Africa could be laid, which would considerable assist the work of political unification and the creation of a South African Commonwealth. Law Journal (London).

The statement that the elevation of Sir Peter

O'Brien, Bart., the Lord Chief Justice of Ireland, to the peerage of the United Kingdom, and consequently to a seat in the House of Lords, as a tribunal of appellate jurisdiction, should be regarded as a compensation for the appointment of a member of the English judiciary to the lordship of appeal in ordinary vacated by Lord Morris, has prompted the following clever epigram, which has appeared in the columns of the Dublin Evening

Mail:

So here is Mr. Balfour's coup.

And what could possibly be neater?
He steals our law lord,, it is true,
But gives a peerage to Sir Peter.

Be justice done, though Heaven fall;
Could compensation be completer?
One hand has robbed the legal Paul,
The other makes a peer of Peter!
Law Times.

The strange story of an English lawyer told by him in a letter to Truth, the London publication, touches peculiarly upon matters and ways of local, contemporaneous interest. This man, who is still a member of the legal profession, is now in a London workhouse, and in his letter he tells a long story of wrongs alleged to have been suffered at the hands of fellow-lawyers. He says that through the bankruptcy of one of them he lost all of his money, and subsequently fell on such evil days that at last he conceived the happy idea of building up a practice in the workhouse. It occurred to him that some of the many missing next of kin and heirs to fortunes whose whereabouts are advertised for might be found among the paupers. to come inside and try "I determined," he says, my luck." It was easy enough to get in, but, unfortunately, up to the time of writing, he had never succeeded in getting out again. He picked up several pieces of good business in the workhouse, but always had to arrange with a qualified solicitor outside to carry the work through, and each time the qualified solicitor played him false and kept all the profits. Hence the sad plight of the ingeni

66

ous, trustful lawyer. This English idea of "working the workhouse," it may be noted, is a decided advance, as to novelty of conception, over the American ambulance chasing;" and though not as profitable as negotiating sales of yachts or other things to the United States government, or taxgathering for the State of New York, under our new Inheritance Tax Law, it compares favorably, in certain obvious respects, with "chasing," gotiating," or "gathering."- N. Y. Evening Post.

ne

The recently issued Judicial Statistics, Criminal Section, furnish food for serious thought in one or two ways, says the Law Times. Although the decrease in crime as a whole is still maintained, it

appears that the descriptions of crime classified generally as "crimes against morals" are tending to increase For a period of five years ending 1898, the proportion which these offenses bore to the usual unit of population (100,000) was 3.7 — a figure greater than has before appeared (with the exception of the periods ending in 1888 and 1893) since the year 1858. Moreover, the compiler notes that there is a greater disinclination to prosecute than formerly prevailed. Vindication of the law is a sentiment yielding place to the idea of treating offenders mercifully and giving them another chance. Probably this feeling is still more pronounced when the offenses in question are those against morals, for interference in these matters is a thing of some delicacy, not to say danger. One curious feature is noticeable from the maps showing the locality and gradations of crime in the geographical aspect, from which it is clear that the localities most given to drink are not by any means those most addicted to moral offenses. Cornwall and Pembroke vie with one another in being the least criminal of the counties, and the most criminal are Monmouth, London, and Glamorgan. A rather interesting portion of the report touches upon the operation of the Criminal Evidence Act 1898 in regard to the increased proportion of convictions to persons sent for trial. This proportion is perceptibly larger than it has been in any other year. The compiler, however, has most carefully sifted the returns in order to see whether the Act has been the chief factor in increasing the ratio, but he is forced to the conclusion that it he had no effect, inasmuch as the increase was caused by an exceptionally high rate just before the act came into force, and that since its introduction the proportion has relapsed to its normal state. One of the results of shorter sentences is shown in t considerable increase in the number of recidivists. The proportion of persons tried at assizes and quarter sessions having previous convictions against them has risen from 55 to over 60 per cent. in five years, whilst a still larger increase is shown if we take the number of prisoners received in prison after conviction, the percentage having risen in the like period from 50.1 to 60.0.

New Books and New Editions.

My Mysterious Clients. By Harvey Scribner. Cincinnati: The Robert Clarke Company, 1900. This is a collection of eleven short stories related by a lawyer, purporting to embody his actual experience. They are all told in charming style, and their mystery is carefully concealed until the denouement, when it is disclosed, in most cases, to the absolute surprise of the reader. There is not a dull story in the lot and not one but what will be read with interest and pleasure by layman as well as lawyer. The reader is, in fact, taken into the innermost confidence of the lawyer and shown how legal battles are lost and won. The stories are highly-wrought detective tales, with lawyers for leading characters, who are combined detectives and attorneys. The scene in the office of a young attorney in the opening story is characteristic. After waiting for a year, his first client calls and tells him a story that utterly bewilders him. In despair he takes himself to the office of an old attorney, who is engaged in a game of cards with a number of young lawyers. The old fellow is an expert in his profession. He cross-examines the stranger in a manner that is a revelation, and to the amazement and delight of the young lawyers, with one stroke solves the mystery.

Flashes of Wit and Humor. By Robert Waters. Edgar S. Werner Publishing & Supply Co., New York.

This book is a brief study of the best things of the brightest minds, and is as good as a comedy of the best sort; for it contains the best repartees, the most amusing and humorous utterances of the brightest minds, all told in the most genial and chatty way, without a single instance of an indelicate or questionable nature. To the man or woman who is wearied with business cares or hard work, this book must prove a benefaction; for, like a chat with a bright, cheerful, humorous friend, it is just the thing to afford relief and refreshment to mind and to body. It may be taken up at any chapter, almost at any page; for, wherever you dip into it, you are sure to be interested and amused nay, you are sure to be instructed as well; for all genuine wit and humor carries a moral with it. Here are the best, bright, brief utterances of Americans and Englishmen; of Irishmen and Scotchmen; of Frenchmen and Germans; of kings, queens, ambassadors, diplomatists; of politicians, lawyers, orators, and authors; of women and children; of physicians and their patients; together with a bright, breezy chapter on after-dinner speaking and speakers.

The whole book, which may be read almost at a sitting, is written with taste, tact, skill and discrimination.

The Albany Law Journal.

A Weekly Record of the Law and the Lawyers. Published by BE 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 inter

ested in legal proceedings.

A valued correspondent, Mr. Joel S. Mason, of New York, asks our opinion whether it would not be a defense for insurance companies to interpose that the insured was an advocate of the so-called Christian Science, in the event of a suit being brought

against them by the representatives of the deceased insured. Mr. Mason holds that the

tressed 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.]

aumber Twenty-Five Cents.

ALBANY, JUNE 30, 1900.

Current Topics.

ROM a recent issue of the New York

FROM

Times we extract the following:

Action of a kind that is likely to give the people who call themselves "Christian Scientists a lot of trouble, if it serves as a precedent for other organizations with similar aims, was taken at Buffalo last week by the Supreme Lodge of the Knights of Honor. This is among the largest of the mutual-benefit societies, and it has branches in most parts of the United States. After a full discussion, the Supreme Lodge decided that the Eddyites in particular, and faith curists in general, owing to their contempt for the sanitary precautions taught by modern science and observed by the sane and intelligent element in all civilized communities, and especially because of their refusal to submit themselves when ill to the care of trained physicians, are the most dangerous of risks, from an insurance standpoint, and hereafter shall not be admitted to membership in the Knights of Honor. The decision is an eminently sensible one, and the need for making it has often been asserted in this column. The delay of the other mutual societies and of the regular insurance companies in adopting the same policy of exclusion against the faith-cure fanatics is really inexplicable. Many a person to whom insurance is now refused because of maladies more or less serious is an appreciably better risk than a stalwart scientist" to whom sanitation is an impious farce, the existence of infectious maladies a negligible delusion, and the preservation of health a mere matter of assertion and belief. people are obviously exposed to numberless dangers from which others are comparatively safe, and their chances of recovery in case of illness are simply those given by nature, assisted only by imagination. If insured at all, it should certainly be at materially increased rates.

VOL. 61-No. 26.

Such

ordinary remedies that the materia medica prescribes. Our correspondent goes on to

say:

Suppose he were to break an arm or leg and refuse to have it set could he expect payment from his accident company for the time lost while his limb was healing?

Should he not rather be called upon to apply his own doctrine that the fracture was only imaginary -a "mortal error" and non-existent, and be thereby estopped from claiming any sick benefit from his company.

Apply the same method of reasoning to the case of a man whose life is insured and who refuses to call in medical aid when he is on his death bed --should not his representatives be disqualified from claiming the amount of his insurance policy upon his decease or “passing on?”

I am not an advocate of insurance on a general proposition, and yet I think that life and accident insurance companies ought to be protected against this damnable and unchristian Christian Science," and I believe that where the fact is proven that where the insured was an advocate of the so-called Christian Science and had put his belief into the practical application of refusing the generally accepted methods of restoration to health (in the event of sickness or accident) if the insurance company were absolved from responsibility and the necessity of paying the amount of the policy that there would be a marked decrease in the number of followers of the cult, and a corresponding benefit to the common health and to the increase in the number of normal minds. There is only one way to cure these fanatics of their folly, and that is in making them suffer in their mortal" pockets. I do not think that such a thing exists as an unselfish Christian Scientist, or one who does not have a natural desire to accumulate "mortal" dollars.

Apply their own foolish doctrines to themselves in a worldly way and they will soon be restored to their own natural selves, and the world at large be benefited and the dominion of common sense expanded.