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The chconscient has had to be amended in order
SENATOR COCKRELL'S MISTAKE. him up in business. Even if trustees are expressly
empowered to lend on personal security, they may HE TALKED OUT IN MEETING WHEN HE HAD
not lend to one of themselves; a fortiori a sole No Rigut To Do So.
trustee could not lend to himself. In the tenth
edition of “Lewin on Trusts” it is stated that trusTHE Congressional Record ” for the first day tees having a power, with the consent of the ten
ant for life, to lend on personal security, cannot to save that body from everlasting disgrace. This lend on such security to the tenant for life himself. is all because Senator Cockrell talked out in meet- The authority cited in support of this proposition ing when he had no business to do so. The senate is an Irish case of Keays v. Lane, decided about is a continuous body. It is divided into three thirty years ago. In that case the trustees of a classes, and the terms of those belonging to each fund which was settled on a husband for his life or class expire on the 3d of March on alternate years. until insolvency, and then on his wife for life for Mr. Cockrell's term expired on the 3d of March, her separate use, were held to have committed a 1899. He has not been a member of the senate breach of trust by lending part of the trust funds since that date until he was sworn in last Monday. to the husband, who afterward became insolvent. When the senate was called to order last Monday | They had power to invest on personal security he was on the floor only by sufferance, and had no with the husband's consent. It seems to have more right to be there or to take part in the pro- been admitted that a breach of trust was comceedings than any other spectator in the gallery. mitted; and what the case really decided was anYet he arose in his seat and said: “I move that other point, viz.: that the wife's separate estate in the credentials be referred to the committee on the trust fund, having been reversionary at the privileges and elections."
time of the loan, could not on that account be Nobody suspected at the time that Mr. Cockrell | bound by her, and was not available to recoup the was an intruder, and his remark was allowed to go trustees. An examination of the facts of the case unrebuked. He did not imagine such a thing him-shows thać the tenant for life was in embarrassed self, for he has been a senator so long that he can- circumstances when he received the loan, and that not realize how it would seem not to be a senator. it was this fact which rendered the question of But he actually was not a senator until about five breach or no breach unarguable. And Mr. Jusminutes after he made the remark, when he went tice Kekewich has recently held, in In re Laing tip to the clerk's desk and was sworn in. This (68 Law J. Rep. Chanc. 230; L. R. (1899] 1 Chanc. * violation of the usual and orderly methods of 593), that trustees who have power with the conprocedure," as Mr. Hoar always expresses it, was
sent of a tenant for life to invest on personal secudiscovered by a clerk, and the only thing that can rity may, if satisfied that there is a reasonable be done now is to scratch Mr. Cockrell's remark prospect of repayment, lend to the tenant for life out of the “Record.”
himself. The case is analogous to that of a tenant This is the second time that such an incident has for life whose consent is necessary to the exercise occurred. About a quarter of a century ago Sen- of a power of sale, but who, neveretheless, may ator Saulsbury, of Delaware, under similar circum- himself purchase from the trustees. — Law Journal stances, from force of habit attempted to take part (London). in a debate, and was called to order by Vice-President Hamlin, who was then in the chair, and in
FALSE PRETENSES AND LARCENY - DISformed that he was not a member of the Senate.
HONESTY OF PROSECUTOR. Mr. Saulsbury saw the point and apologized, amid roars of laughter from his colleagues, and sat HE decision of the Appellate Division of the down. — Chicago Record.
Supreme Court in the Second Department in
People v. Livingston (47 App. Div. 283) calls atLOANS OF TRUST MONEY UPON PER
tention to a rule of the criminal law of this State, SONAL SECURITY.
which, assuredly, would be more honored in the
breach than the observance. It was held that N advance of trust money upon personal secu- where an indictment, found against an accused for
rity is a breach of trust unless the terms of having defrauded the complainant by the green the settlement authorize it in the most explicit goods game,” contains two counts, one for obtainmanner. And the trustees are not absolved by / ing the complainant's money on a false and fraudthe fact that at the time of the loan the borrower is uilent representation that certain papers and writsolvent and in good credit. Even the deposit of ings exhibited by the accused were genuine and money at interest with a broker while an invest- lawful United States money or notes, and the secment is being found is a lending on personal secu- one for larceny pure and simple, a conviction canrity; though it is possible that a power in wide not be had under either count if the jury find that terms to advance trust funds for the benefit of a the complainant did not believe the representation, wife may authorize a loan to her husband to set but parted with his money with the intention of
procuring counterfeit money from the defendant in
Legal Notes. return therefor. The court followed and relied upon McCord v.
In Braun v. Northern Pacific R'y, decided by People (45 N. Y. 470), which in turn cites and re
the Supreme Court of Minnesota, in May, 1900 lies upon People v. Williams (4 Hill, 9) and
(82 N. W. R. 675), the following is the official People v. Stetson (4 Barb. 151). It is true that in
syllabus: the McCord case Mr. Justice Peckham dissented
** The law implies a contract on the part of a from the short per curiam opinion. Neverthless
parent who enters a railroad train with a chi the New York rule on the subject seems to be
non sui juris, and subject to payment of fare, to quite definitely established. Such New York rule
pay the fare of such child. was followed in State v. Crowley (41 Wis. 271).
“ If he refuse to pay such fare, both may be exOn the other hand it was held in Commonwealth
pelled and removed from the train, even though v. Morrill (8 Cush. 571) that it is no defense to an
the parent tenders payment of his own fare. indictment for obtaining goods by false pretenses,
“ The forcible ejection and removal of a child of that the party defrauded made false representa
tender years from a railroad train on which it has tions to the defendant as to the goods so obtained.
taken passage with its parent, for the failure of the In Cunningham v. State (61 N. J. L. 67), the just
parent to pay the child's fare, is, whether rightful and proper rule in cases of this character is indi
or wrongful, in effect the ejection and removal of cated by the following extract from the syllabus:
the parent. If, in such case, the parent has paid " The defendant was not entitled to set up in his
his own fare before the removal of the child, such defense that B. knew the suit she employed him
fare, or the unearned value thereof, must be reto prosecute was for a fictitious claim. The dis
turned, or offered to be returned, as a condition tinction is between suits inter partes and indict
precedent to the right of removal." ments for breach of criminal law. In the former case, both parties participating in the illegal act,
The question highly interesting in and about neither can ask the aid of the court. In the latter
this city at this time of the year, as to whether a case public justice alone is concerned, and one person or persons repeatedly guilty of boisterous party cannot excuse his criminal conduct because
conduct and the use of bad language while riding the other is equally guilty with him."
on ferryboats or other public conveyances, can We concur in the recommendation for remedial lawfully be excluded from such conveyances unti
assurance of good behavior is given, is consider ! legislation in New York contained in the following extract from the opinion of Cullen, J., in People by the Supreme Court of the State of Washington, v. Livingston (supra):
in a recent case against the West Seattle La
and Improvement Co., says the N. Y. Evening Post. “We very much regret being compelled to re
A woman has been in the habit of riding on the verse this conviction. Even if the prosecutor in
Land Company's ferry between Seattle and West tended to deal in counterfeit money, it is no reason
Seattle. When she crossed to the latter place, she why the appellant should go unwhipped of justice.
would become intoxicated, and on the return We venture to suggest that it might be wise for the
would cause great annoyance to the other passenlegislature to alter the rule laid down in McCord
gers on the boat.
At last the superintendent of v. The People (supra). It is true that there is now
the ferry ordered that she should not be allowed in the Penal Code a provision for the punishment
to ride upon the ferry until she should give an exof these “ green goods " offenders, but prosecution
press promise to behave herself. The next time under it seems to be difficult, the only reported
she went to buy a ticket, the agent refused to sell case that we know of (People v. Albow, 140 N. Y.
it. In reply to her question, she was told that, if 130) having been unsuccessful, and that on account
she would promise to behave herself, she might of technical defects. If the rule as to larceny by
ride on the boat, but otherwise she would not be false pretense, and by trick or device, were made
allowed on board. She refused to promise, was the same as the common-law rule that stealing excluded, and subsequently she sued the company. property from a thief is the same crime as stealing
on the ground that, being a common carrier, it was from the true owner, we think this class of cases
bound to carry her, provided she was behaving might be much more successfully dealt with. We
herself, without regard to what her conduct might know that a feeling prevails to some extent in the
have been at other times. She got a verdict, community that it is unjust that one offender
which was subsequently reversed by the Supreme should be punished and his co-offender obtain
Court. The exact reasons for which the court reimmunity. This feeling is absolutely unreason- versed the judgment are not at hand, but the court able. Where one offender is punished and an- did hold that the woman's habits of becoming inother escapes, there may properly be a feeling of toxicated and annoying passengers were proper dissatisfaction, but the dissatisfaction should be not matters of defense on the part of the ferry combecause one man is in prison but because the other
pany. One can but wish that the reasoning in this man is out.” – N. Y. Law Journal
case could be extended, and applied so as to do away with much of the unpleasantness and dis- commercial law, might with advantage be based comfort arising out of the conduct of the boister- on British law; and codification of these latter ous and drunken passengers on the ferries and would now be easy. The law of marriage and street cars in and about this city.
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 English Notes.
it is unlikely that English real property law would
be either welcome or suitable in South Africa. If The Paris correspondent of the Morning Post
the codes were prepared by a commission, includreported recently that by a peculiar coincidence ing experts from the Cape and Natal, the foundaquite a number of judges telegraphed to the Palace
tion of a satisfactory and unifying common law of Justice that they would be unable to attend
for South Africa could be laid, which would concourt. The presiding judges had, therefore, to
siderable assist the work of political unification and call on barristers present to fill the places of the
the creation of a South African Commonwealth. absentees. In the Tenth Correctional Chamber
Law Journal (London). the accused were judged and sentenced by one of
The statement that the elevation of Sir Peter the greatest criminal-defending counsel of the day, O'Brien, Bart., the Lord Chief Justice of Ireland, Maitre Henri Robert, who had been chosen as
to the peerage of the United Kingdom, and conassessor by President Fabre. An amusing inci
sequently to a seat in the House of Lords, as a trident occurred. When one of the cases was called
bunal of appellate jurisdiction, should be regarded Maitre Robert had to leave the bench and come
as a compensation for the appointment of a memto the bar to defend a prisoner, while another bar
ber of the English judiciary to the lordship of rister acted as assessor. Maitre Robert's client appeal in ordinary vacated by Lord Morris, has was acquitted.
prompted the following clever epigram, which has A good many things have happened to the Great appeared in the columns of the Dublin Evening
Mail: Seal. It has been thrown into the Thames, and has been buried in a garden, but only once, says
So here is Mr. Balíour's voup the Globe has a Lord Chancellor had the misfor
And what could possibly be neater? tune to have it stolen from his custody. Some He steals our law lord,, it is true, thieves broke into Lord Thurlow's house in Great
But gives a peerage to Sir Peter. Ormond street, and were enterprising enough to include the Great Seal in their swag.” They
Be justice done, though Heaven fall;
Could compensation be completer? were never captured, and not a single trace of the
One hand has robbed the legal Paul, Great Seal was ever found. Lord Eldon always kept the Great Seal in his bedroom, and when an
The other makes a peer of Peter!
- Law Times. alarm of Sre was raised at his house at Encombe he flew with it to the garden and buried it in a The strange story of an English lawyer told by flower bed. The destruction of his mansion so him in a letter to Truth, the London publication, affected him that he could not remember the spot
touches peculiarly upon matters and ways of local, where he had buried it. • You never saw any- contemporaneous interest. This man, who is still thing so ridiculous," he said, describing the inci
a member of the legal profession, is now in a Londent in later years,
as seeing the whole family don workhouse, and in his letter he tells a long down that walk, probing and digging till we
story of wrongs alleged to have been suffered at found it."
the hands of fellow-lawyers. He says that through In settling the future of British South Africa it
the bankruptcy of one of them he lost all of his will be worthy of consideration whether efficient money, and subsequently fell on such evil days codes might not be substituted for Roman-Dutch
that at last he conceived the happy idea of buildlaw. The intermediate period of military or Colo- | ing up a practice in the workhouse. It occurred nial Office control in the Orange River and Trans
to him that some of the many missing next of kin vaal terrturies would afford an opportunity for
and heirs to fortunes whose whereabouts are adenacting a series of codes, including the meritori
vertised for might be found among the paupers. ous parts of the existing statute law and Roman
"I determined,” he says, “to come inside and try Dutch law, but dispensing with the necessity of
my luck.” It was easy enough to get in, but, unfuture reference to continental systems and text
fortunately, up to the time of writing, he had never books. It is clear that a great gain would ensue
succeeded in getting out again. He picked up from the adoption of a Penal Code based on that several pieces of good business in the workhouse, of India, with the necessary variations and with but always had to arrange with a qualified solicitor such improvements as may be suggested by the outside to carry the work through, and each time new and very complete code of Queensland. The the qualified solicitor played him false and kept all law of evidence and of contracts, and also the the profits. Hence the sad plight of the ingeni
ous, trustful lawyer. This English idea of “work- New Books and New Editions. ing the workhouse,” it may be noted, is a decided advance, as to novelty of conception, over the
My Mysterious Clients. By Harvey Scribner. American ambulance chasing;” and though not
Cincinnati: The Robert Clarke Company, 1900. as profitable as negotiating sales of yachts or other things to the United States government, or tax
This is a collection of eleven short stories related gathering for the State of New York, under our
by a lawyer, purporting to embody his actual exnew Inheritance Tax Law, it compares favorably, perience. They are all told in charming style, and in certain obvious respects, with “chasing,” “ne
their mystery is carefully concealed until the degotiating," or "gathering.". "gathering." - N. Y. Evening
nouement, when it is disclosed, in most cases, to Post.
the absolute surprise of the reader. There is not
a dull story in the lot and not one but what will be The recently issued Judicial Statistics, Criminal
read with interest and pleasure by layman as well Section, furnish food for serious thought in one
as lawyer. The reader is, in fact, taken into the or two ways, says the Law Times. Although the innermost confidence of the lawyer and shown how decrease in crime as a whole is still maintained, it
legal battles are lost and won. The stories are appears that the descriptions of crime classified
highly-wrcught detective tales, with lawyers for generally as crimes against morals” are tending leading characters, who are combined detectives to increase For a period of five years ending
and attorneys. The scene in the office of a young 1898, the proportion which these offenses bore to
attorney in the opening story is characteristic. the usual unit of population (100,000) was 3.7 - a
After waiting for a year, his first client calls and figure greater than has before appeared (with the
tells him a story that utterly bewilders him. In exception of the periods ending in 1888 and 1893) despair he takes himself to the office of an old since the year 1858. Moreover, the compiler notes
attorney, who is engaged in a game of cards with that there is a greater disinclination to prosecute
a number of young lawyers. The old fellow is an than formerly prevailed. Vindication of the law
expert in his profession. He cross-examines the is a sentiment yielding place to the idea of treat
stranger in a manner that is a revelation, and to ing offenders mercifully and giving them another
the amazement and delight of the young lawyers, chance. Probably 'this feeling is still more pro
with one stroke solves the mystery. nounced 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 Flashes of Wit and Humor. By Robert Waters. curious feature is noticeable from the maps show
Edgar S. Werner Publishing & Supply Co., ing the locality and gradations of crime in the New York. geographical aspect, from which it is clear that the localities most given to drink are not by any means
This book is a brief study of the best things of
the brightest minds, and is as good as a comedy of those most addicted to moral offenses. Cornwall
the best sort; for it contains the best repartees, and Pembroke vie with one another in being the
the most imusing and humorous utterances of the least criminal of the counties, and the most criminal are Monmouth, London, and Glamorgan. A
brightest minds, all told in the most genial and
chatty way, without a single instance of an indelirather interesting portion of the report touches
or questionable nature. To the man or upon the operation of the Criminal Evidence Act
woman who is wearied with business cares or hard 1898 in regard to the increased proportion of con
work, this book must prove a benefaction; for, victions to persons sent for trial. This propor
like a chat with a bright, cheerful, humorous tion is perceptibly larger than it has been in any
friend, it is just the thing to afford relief and reother year. The compiler, however, has most
freshment to mind and to body. It may be taken carefully sifted the returns in order to see whether the Act has been the chief factor in increasing the
up at any chapter, almost at any page; for, wher
ever you dip into it, you are sure to be interested ratio, but he is forced to the conclusion that it la
and amused had no effect, inasmuch as the increase was caused
- nay, you are sure to be instructed
as well; for all genuine wit and humor carries a by an exceptionally high rate just before the act
moral with it. Here are the best, bright, brief came into force, and that since its introduction tha
utterances of Americans and Englishmen; of Irishproportion has relapsed to its normal state. One
men and Scotchmen; of Frenchmen and Germans; of the results of shorter sentences is shown in t': considerable increase in the number of recidivists.
of kings, queens, ambassadors, diplomatists; of
politicians, lawyers, orators, and authors; of The proportion of persons tried at assizes and quarter sessions having previous convictions
women and children; of physicians and their paagainst them bas risen from 55 to over 60 per cent.
tients; together with a bright, breezy chapter on in five years, whilst a still larger increase is shown after-dinner speaking and speakers. if we take the number of prisoners received in The whole book, which may be read almost at prison after conviction, the percentage having a sitting, is written with taste, tact, skill and disrisen in the like period from 50.1 to 60.0.
The Albany Law Journal.
A valued correspondent, Mr. Joel S. Mason, of New York, asks our opinion whether it would not be a defense for insur
ance companies to interpose that the insured A Weekly Record of the Law and the Lawyers. Published by HE ALBANY LAW JOURNAL COMPANY, Albany, N. Y.
was an advocate of the so-called Christian Contributions, items of news about courts, judges and lawyers'
Science, in the event of a suit being brought 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 var Aud those inter against them by the representatives of the sted in legal proceedings.
deceased insured. Mr. Mason holds that the (All communications intended for the Editor should be ad. principle that a man having a surety must tressed simply to the Editor of THE ALBANY LAW JOURNAL. ul letters relating to advertisements, subscriptions, or other use all reasonable means to protect that vusiness matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.)
surety against loss is applicable in the case
of a man who has insured his life, and then Subscription price, Five Dollars per aovum in advance. Single refuses in the time of illness to adopt the aumber Twenty-Five Conis.
ordinary remedies that the materia medica ALBANY, JUNE 30, 1900.
prescribes. Our correspondent goes on to
say: Current Lopics.
Suppose he were to break an arm or leg and
refuse to have it set - could he expect payment ROM a recent issue of the New York
from his accident company for the time lost while F Times we extract the following:
his limb was healing?
Should he not rather be called upon to apply Action of a kind that is likely to give the people his own doctrine that the fracture was only imagwho call themselves Christian Scientists” a lot inary a “mortal error" and non-existent, and of trouble, if it serves as a precedent for other be thereby estopped from claiming any sick beneorganizations with similar aims, was taken at Buf- fit from his company. falo last week by the Supreme Lodge of the Apply the same method of reasoning to the case Knights oi Honor. This is among the largest of of a man whose life is insured and who refuses to the mutual-benefit societies, and it has branches call in medical aid when he is on his death bed in most parts of the United States. After a full should not his representatives be disqualified from discussion, the Supreme Lodge decided that the claiming the amount of his insurance policy lipon Eddyites in particular, and iaith curists in general, his decease or passing on?” owing to their contempt for the sanitary precau- I am not an advocate of insurance on a general tions taught by modern science and observed by proposition, and yet I think that life and accident the sane and intelligent element in all civilized insurance companies ought to be protected against conimunities, and especially because of their re- this damnable and unchristian Christian Scifusal to submit themselves when ill to the care of ence," and I believe that where the fact is proven trained physicians, are the most dangerous of that where the insured was an advocate of the risks, from an insurance standpoint, and hereafter so-called Christian Science and had put his belief shall not be admitted to membership in the into the practical application of refusing the genKnights of Honor. The decision is an eminently erally accepted methods of restoration to health sensible one, and the need for making it has often (in the event of sickness or accident) if the insurbeen asserted in this column. The delay of the ance company were absolved from responsibility other mutual societies and of the regular insur- and the necessity of paying the amount of the ance companies in adopting the same policy of policy that there would be a marked decrease in exclusion against the faith-cure fanatics is really the number of followers of the cult, and a corinexplicable. Many a person to whom insurance responding benefit to the common health and to is now refused because of maladies more or less the increase in the number of normal minds. serious is an appreciably better risk than a stal- There is only one way to cure these fanatics of wart“ scientist" to whom sanitation is an im- their folly, and that is in making them suffer in pious farce, the existence of infectious maladies a their “mortal" pockets. I do not think that such negligible delusion, and the preservation of health a thing exists as an unselfish Christian Scientist,
matter of assertion and belief. Such or one who does not have a natural desire to acpeople are obviously exposed to numberless dan-cumulate “mortal” dollars. gers from which others are comparatively safe, Apply their own foolish doctrines to themselves and their chances of recovery in case of illness are in a worldly way and they will soon be restored simply those given by nature, assisted only by to their own natural selves, and the world at large imagination. If insured at all, it should certainly be benefited and the dominion of common sense be at materially increased rates.
expanded. VOL. 61 - No. 26.