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the present Lord Coleridge. The golden chain so that their life may be considered less ascetic than worn by Lord Russell of Killowen first belonged to frolicsome.” Hockey for ladies attracted Sir Alexander Cockburn, wlio entailed it upon his remark in 1850 than in 1900. Another gem is to successors in the office of Lord Chief Justice. Law: be found in Walker v. Armstrong (8 De Gex, M. Journal.

& G. 531), in which the plaintiff was an officer in the

navy: The judicial statistics of Ireland for the year 1899,

This litigation owes its origin to the manner in relating to civil proceedings, show a decrease in chancery proceedings from 1,226 cases and motions which a series of professional gentlemen in the to 986. In the Queen's Bench Division the num

north of England permitted themselves to transact, ber of jury cases tried declined from 315 to 261;

or in more accurate phrase, to entangle and perplex,

These and the writs of summons by upwards of 2,000.

some legal business intrusted to their care.

The amount of costs tased in the year shows a decrease licensed pilots undertook to steer a post-captain of 23.0411., or 8l. per cent.

through certain not very narrow straits of the law,

and, with abundance of sea-room, ran him aground The lists of names of persons liable to serve as on every shoal that they could make. First, in 1824, jurymen in England and Wales for the next year then in 1825, and again some years afterwards, was are now being exhibited for public inspection on the the gallant officer incumbered with help of a descripdoors of the various churches and chapels over the tion for which lie could, perhaps, supply a better country. Objection must be made during the pres- term than I can. ent month by persons who are sixty years of age Or take the opening words of the judgment in. and upwards and others who are exempt, otherwise Barrow v. Barrow (5 De Gex, M. & G. 782): their names will be returned, and they will be liable These and two other suits are the fruit of an allito serve on special and common juries.

ance between a solicitor and a wielow, who, for the

first sixty days of their married life, namely, from At the Journalists' Conference, says the Daily News, Sir Edward Clarke spoke in connection with reled, together, but at the end of that period

July 30 to September 28, 1850, lived, as well as quara diso ssion on newspaper copyright of the case of Walter v. Lane as extremely interesting, especially though continual, was merely domestic, for the

state of conflict, which,

parted, exchanging a as five highly-trained legal intellects were on

more conspicuous, more disciplined and side and four on the other. If ever there was

effectual warfare of Lincoln's Inn and Doctors' case in which it was justifiable, on the part of a

Commons. newspaper, to assert its rights, this was such a case.

The husband in the same case is described as har. He did not, however, think that the decision would be so far-reaching as had been supposed. If Lord ing been at the time of the marriage, though a

bachelor, versed somewhat in the ways of women, Rosebery wished to reproduce his speeches, and

as having, at least, eight living children by three used the report of a newspaper, it would be doubtíul

living mothers, a combination of circumstances. wliether any court would grant an injunction, and,

which, known to Mrs. C. when she resolved to if the worst happened, the damages against Lord Rosebery would be so small that even his limited marry him, was not viewed by her as unrecom

mendatory of the proposed connection. means would cover them easily. Sir E. Clarke was

Shower may be good, and Colles better; but from of opinion that newspaper articles and reports the " light literary" point of view we owe a good should be better protected than at present. Jour-deal to the late Sir John Peter De Gex.- Law nalists should not live iipon one another, and he

Journal. was glad to know that a bill had been prepared to further that view.

Although the qualification of Sir Robert Finlay to

occupy the position of Lord Chief Justice cannot We recently referred in these columns to the be doubted, the impression that he possesses, as pleasantries of the old law reports. A correspond-! Aitorney-General, a prescriptive right to the office ent reminds us that modern reports have their pleas- is erroneous. There have been eight occupants of antries, too. A generation has arisen that never the office during the present century, viz., Lord knew Lord Justice Knight Bruce in the Hesh; but Kenyon, Lord Ellenborough, Lord Tenterden, Lord his wit, as embalmed in his judgments, has been Denman, Lord Campbell, Sir Alexander Cockburn, recorded for all generations by the pen of De Gex. Lord Coleridge and Lord Russell, of Killowen; The judgment in the Agapemone case (Thomas v. and of these only two - Lord Ellenborough and Roberts, 3 De Gex and Smale, 758) should be read i Lord Denman - were promoted to the Lord Chief in its entirety; one wonders how the court pre- | Justiceship direct from the position of law officer, served any semblance of gravity as it heard for the The appointment of Lord Russell, of Killowen, first time of the spiritual tea-party at Bridgwater,” should alone have prevented the erroneous impresand listened to the description of the establishment, sion becoming prevalent, for he had ceased to be " placed not on the Euripus, but on the Bristol Attorney-General and was a Lord of Appeal in channel," whose inmates played at lively and Ordinary when he succeeded Lord Coleridge as energetic games, such as hockey, ladies and all. Lord Chief Justice.- Law Journal.

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The Albany Law Journal. transaction and formed a sufficient compliance

All letters


transaction and formed a sufficient

with the statute. The court said: A Weekly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, N Y..

It has been held almost universally that an attes

tation in the same room with the testator is good, Contributions, items of news about courts, jndges and lawyers' without regard to intervening objects which might queries or comments, criticisms on various law questions, addresses or did intercept the view; and also that an attestaon legal topics, or discussions on questions of timely interest, are solicited from members of the bar and those interested in legal tion outside the room or place where the testator proceedings.

sat or lay is valid if actually within his range of

vision. And no court seems to have doubted that a [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL.

man unable to see at all could properly make a will relating to advertisements, subscriptions or other business matters under the statute, if the witnesses attested within his shonld be addressed to THE ALBANY LAW JOURNAL COMPANY.] conscious " presence, whatever that means. Ex

Subscription price, Five Dollars per annum, in advance. Single actly why or how an exception in the case of one number, Twenty-five Cents.

temporarily or permanently blind can be injected

into this statute has not been attempted by any court ALBANY, N. Y., OCTOBER 13, 1900.

or writer, so far as we know. Nor has there been

any success in the effort to show why one kind of Current Topics.

an intervening object a partition wall for instance

- is better calculated to afford an opportunity for HE tendency of the courts to construe the perpetration of a fraud upon the testator than is

statutes liberally, according to their another kind, say the closed curtains of an oldspirit, which maketh alive, rather than accord-fashioned bed, or the head or footboard of a beding to the letter which killeth, is again illus- stead, or any other article of furniture which haptrated in the case of Cunningham v. Cunning- pens to be an obstruction to the sight. Again, it is

difficult to see what sound distinction could be made ham, decided by the Supreme Court of when applying the rule, between the case where the Minnesota, wherein the question whether the testator can see the witnesses attest, if he chooses to statute requiring that a will shall be subscribed lean his body forward a few inches, and the case " in the presence of the testator," had been where the act could not be seen if he steps forward

the same distance. Or, take a case where a testator complied with. It appears that the testator,

has been injured, and is compelled to lie on his who was sitting on the side of the bed, signed back with his eyes fixed on the ceiling. Must the his will in the presence of two physicians who witnesses affix their signatures from an elevation in were to be the witnesses. After he had signed order to sign in his presence? No case has gone the paper it was taken into an adjoining room that far, and yet what difference would it make with and signed at a table about ten feet from the such a testator in fact or in sound reason is the will

was attested ten feet distant, on a table in an adjointestator. The door was open, and he could

ing room, or on a table the same distance from the have seen the table had he stepped forward bed, but in the same room." two or three feet, but he did not do so. The will was immediately taken back to the testa- The recent decision of the New York Court tor, the signatures of the witnesses were of Appeals, in the matter of the O'Brien and pointed out to him, and he looked over the Clark aqueduct claims, makes very interestpaper and pronounced it correct. The Su- ing reading; besides, it seems to be an emipreme Court, in holding that there had been nently just and righteous decision, notwithsubstantial and satisfactory compliance with standing it does not uphold the majority of the statute, took occasion to say that the the court below. The Court of Appeals suscourts have often placed themselves in absurd tains the contention of Comptroller Coler that and inconsistent positions in construing the Mr. Scott, as corporation counsel of the city of words referred to; that in the case at bar the New York, had not the power to take the sum signing took place within the sound of the of $700,000, or any other sum, out of the city testator's voice; that he knew what was being treasury without the consent and against the done, and that when the signatures of the at- protest of the comptroller, and the city can testing witnesses were pointed out to him he i now sue for the recovery of the amount. The took the instrument in his own hands, looked story of the so-called $700,000 compromise is over it and pronounced it satisfactory, which thus told by the New York Commercial made the whole proceeding a single and entire! Advertiser:

VOL. 62.- No. 15.


When the new aqueduct was finished there was vent hostile legislation or to purchase peace " by left over a claim by O'Brien and Clark, contractors, ' preventing the prosecution of claims which have no of $7.000,000 against the city for 'repairs.' These legal existence. No more dangerous precedent “ repairs' consisted of work done under compulsion : could be conceived, as it practically puts the dispoby the contractors to conform to the specifications sition of the property of the city in the hands of the of their contracts. They had been caught scamp- corporation counsel. ing' eir work, and had been compelled by the aqueduct commissioners, of whom Mr. Scott was

No doubt this was a proper characterization one, to make their work good beiore receiving their of the transaction; at all events, the Court of money. There was never any doubt on this point. | Appeals has now sustained the view of JusAll the contracts for the work had been drawn by tices Patterson and McLaughlin. As our E. Henry Lacombe, at present on the United States

contemporary well says: Whatever else may Circuit Court bench, when he was corporation coun

be said of the argument that an unjust claim of sel, and had been of such ironclad character that escape for a 'scamping' contractor under their re

$700,000 should be paid by a public officer in quirements had been found be impossible. order to prevent another unjust claim of O'Brien and Clark found they had to make their $7,000,000 being paid by a Legislature, it obwork what they agreed to make it before they could viously has no legal status and hence has no get a penny of pay from the city.

standing in a court of law." When they had made their work good and received their pay they turned about and brought claims against the city for «all the money they had The Supreme Court of Georgia, in the respent in making it good, between $7.000,000 and cent case of Bowar v. Equitable Vortgage $10,000,000, alleging that it had been spent in

Company, held that the payee of a note, in repairs. Special counsel were retained by the city to fight these claims, and the courts in every instance possession of the same, is presumed to own it, decided that the contractors had no case. As one although his indorsement thereon may stand of the special counsel said in his argument, the uncancelled; he may sue upon the note, and courts held that the claims were without any his title thereto cannot be inquired into, unless foundation whatever, either in law, or justice, or equity.” After failing in the courts the claimants

it be necessary for the protection of the dewent to the State legislature and had a bill passed fendant or to let in the defense which he seeks appointing a commission to investigate the matter. to make. The court said: The commission reported in favor of a compromise. The note was in possession of the payee, and The corporation counsel, Mr. Scott, who had, from the presumption was that it was the owner, notthe outset, maintained that there was not the slight-' withstanding its indorsement upon the note stood est basis for a dollar of the claims, arranged a com- uncanceled, and it had a right to sue thereon in its promise of $700,000, and confessed judgment against own name. In Dugan v. United States (3 Wheat. the city for that amount. When Mr. Coler became 172; 4 L. Ed. 362), it was held that if any person comptroller he refused to pay the money, on the who indorses a bill of exchange to another, whether ground that the corporation counsel had not the for value or for the purpose of collection, shall power to do what he had done. The lower courts come to the possession thereof again, he shall be decided against him and directed him to pay the regarded, unless the contrary appear in evidence, as money. He paid it under protest, and, through a the bona fide holder and proprietor of such bill, and taxpayer, had suit brought restraining him from the shall be entitled to recover, notwithstanding there payment. The lower courts decided against him on may be on it one or more indorsements in full, subthis, but the Court of Appeals now reverses them sequent to the one to him, without producing any and opens the way for the protesting taxpayer to receipt or indorsement back from either of such bring suit for recovery of the money."

indorsees, whose names he may strike from the Throughout all the litigation on the $700,000 con- bill, or not, as he may think proper.' In Daniel, promise, there has been no attempt to defend it Neg. Inst. (sec. 1198), the rule is stated to be that upon legal grounds.

The argument made in 'where there appears on the paper the plaintiff's defense of it has been that if the city did not pay, own indorsement, it will be presumed either that this sum, the claimants would continue to appeal to he had not perfected his indorsement by delivery: the legislature and would ultimately recover the or that the paper has been returned to him as his entire amount of their claims. This argument was own property, and in either case he has the right made before the Appellate Division and was met by to sue upon it.' In 2 Rand. Com. Paper (sec. 717). Justices McLaughlin and Patterson as follows, in an the author says: “The payee's possession of a bill opinion dissenting from that of a majority of the or note is prima facie evidence of title in him, notcourt:

withstanding his own indorsement is erased, and, The property of the city cannot be used to pre-leven, it has been held, notwithstanding his own

must con

special indorsement, or indorsement in blank uncan- of plaintiff's fall from the platform under the circumceled.' To the same effect see 3 Rand. Com. Paper stances. The train was not at any station or place (sec. 1645), and 4 Am. & Eng. Encyc. Law, 280. where persons are invited to use the platform as a There are numerous adjudicated cases to this effect means of entering or leaving the car, when, as to cited by the authorities above referred to, and there such persons, the defendant would owe the duty to can be no question but that the great weight of so light the platform and landing as to insure safety judicial opinion sustains the doctrine.”'

in their use. Under the circumstances in the case

the defendant owed no duty to plaintiff to light up Notes of Cases.

the platform and adjacencies outside the cars for his

benefit. Carriers of Passengers — Proximate Cause of A presumption of negligence from the fact that Accident – Negligence Contributory Negligence plaintiff fell from the train and was injured could – Demurrer.-- In Jarrell v. Charleston and West- not arise. The case of Steele v. Railroad Co. ern Carolina Railway, decided by the Supreme (55 S. C. 389, 33 S. E. 509), cited by appellant, as Court of South Carolina in August, 1900, it was held well as other cases referring to the matter of prethat, where a complaint alleged that defendant negli- suming negligence by the fact of injury to a passgently stopped the train on which plaintiff was a enger on a railroad, shows that such presumption passenger for over half an hour on a high trestle, arises on proof of the fact of injury to a passenger and that while there, on account of the darkness caused by some agency or instrumentality of the and the poor lights furnished by defendant on the railroad company. In this case, as shown, it does train, plaintiff missed his footing and fell to the not appear from the complaint by any proper averground, but did not allege plaintiff's ignorance that ment that plaintiff's injury was caused by the defendthe train was on the trestle, a demurrer for failure ant. If so, then the presumption is rebuttable, and to state a cause of action was properly sustained, the complaint itself contains matter in rebuttal, since the complaint showed contributory negligence which, under the demurrer, the court hy plaintiff, which would defeat a recovery. The sider. For this reason we will notice the second court said, in part:

ground of objection to the complaint, viz., that the It will be seen that two acts of negligence are complaint shows contributory negligence by plaintspecifically alleged: (1) delaying the train beyond iff. The question of contributory negligence canthe schedule time; (2) stopping the train and allow- not properly arise, except when the negligence of ing it to remain for half an hour or

the defendant is a proximate cause of the injury. trestle. Then it is alleged that while the train was

Therefore, for the purpose of this question, we so standing, the plaintiff, on account of the dark- assume that the complaint shows negligence of ness of the night and poor lights furnished by defendant as a proximate cause of the injury. We defendant on said train, missed his footing and fell, may also say that, while contributory negligence is thereby causing the injury. To constitute a cause

ordinarily a matter of deiense, yet, if the complaint of action for negligence the complaint must not only shows contributory negligence by plaintiff, that show that the defendant was negligent, but that the would render the complaint demurrable for insuffinegligence of the defendant was the proximate cause' ciency, since it contained allegations that would of the injury. We cannot see, from any allegation defeat the cause of action alleged, or prevent a in the complaint, what possible connection the fail- recovery thereon. The complaint alleges the fact ure in starting the train on time had with the injury the train stood upon the trestle for half an hour or as a cause thereof. The negligence in stopping the more, and does not allege that plaintiff was ignortrain and allowing it to remain on the trestle for a

ant of this fact. The inference is that he knew the time could not have produced the injury, if plaintiff train was on the trestle when he went upon the had remained in the car, where the defendant had platform. He was aware of the condition, also, that reason to believe he would remain. The complaint there were poor lights on the train and that the does not show that plaintiff went out upon the night was dark. Nevertheless, he went out upon platform of the car by any order or invitation of the platform, without excuse or necessity. This the defendant; nor does it state any excuse

was certainly negligence, which, is not the only necessity warranting plaintiff being upon the plat- i proximate cause of his injury, was a proximate form at the time; nor does it show that defendant,

concurring with the negligence of the with knowledge of plaintiff's danger, failed to warn.

defendant. There is nothing in the complaint from which a reasonable person could infer that plaintiff's going

DEFENDING A GUILTY CLIENT. out upon the platform and falling therefrom was a natural and probable result of the stopping of the

By Louis SONDHEIM. train upon the trestle. As to the matter of a poor M

UCH has been said and written upon this lights,” even if it be granted that the complaint al- subject in contemporary legal periodicals, leged negligence therein,

how and still more remains to be said. It is a subject such “poor lights” could be the proximate cause , upon which hinges closely that most serious and

more on a






iniportant of all qualities — reputation. And to the ing his client innocent. He has seen the crime lawyer reputation signifies and means more, with committed, we will suppose, and, therefore, knows, out doubt, than to any other professional calling, to a moral certainty, of the client's guilt. What is because of the general low opinion of him existing his duty under such circumstances? It has been among the laity.

asked: “ May he rightfully, in such a case, make use In defending a guilty client it is a most perplex- oi all his eloquence to convince the jury and public ing and unsettled question as to just where to draw that the deceased, hav spent his money in the line. In no treatise on legal ethics, in no con- debauchery, fell down and was thereby killed in constitution or statute, in no general work or paper sequence of his drunkenness?" To this query all on the subject nowhere has been laid down any right-minded, faithiul and conscientious attorneys definite rule as to just where to draw the line of answer readily "no!” duty in such a case.

Under these circumstances it is the first sworn I shall not attempt, therefore, in a paper of this duty of the attorney to remember and comprehend kind to do more than others have done, but merely that the court is the impartial judge of the right to discuss generally the subject.

and the law in the case, and that he was the friend, Usually the lawyer who defends a guilty client, assistant and officer of the court before he was the that is, one whom he knows to be guilty, as far as attorney of his client, and that, as such officer, it is such a thing is possible, is looked upon by the pro- his duty to honestly and earnestly labor to render fession and especially the community as being aid to the court to arrive at a correct conclusion guilty of a criminal offense himself. This naturally upon the facts and the law, and that he do this leads us to the question, “is," as has often been said, speedily and without delay, and also that he thereby

an attorney bound to take every case that comes performs his full duty to and best serves his client. into his office?” This seems to have been the We have here, in a general way, a summary of his theory once upon a time, but the latest conclusions i duty. of prominent members of the profession are to the More, in detail, we have to consider the advocate's contrary; that “there are human demands which position in preparing and presenting evidence of are above professional, and I do not mean to sur-facts so as to favor his client's cause. It has been render the lawyer's privilege of choosing what he repeatedly said, and very truly, that it is the duty will be a party to, even among cases which involve of an attorney to present all evidence in such a law alone, without dispute of facts, and of choosing manner as iu aid the court in arriving speedily at on any grounds which his moral or mental comiort the correct conclusions, and, further, that in premay demand." This seems to be the best and most senting the evidence he shall favor his client's cause, logical manner of disposing of this decidedly as far as possible. But, unfortunately, some lawyers important problem. The Alabama Bar Association have constried, or, rather, misconstrued, the phrase Code of Ethics says upon this subject: “ An attor- | “as far as possible " so as to signify that it has no ney cannot reject the defense of a person accused bounds whatever, which, no doubt, has led Judge of a criminal offense because he knows or believes Waterman to ask: May he call to the stand withim guilty.” This section of the Code, commenting nesses to prove an alibi when he has the best of on his duty in such a case, says: “It is his duty, reasons for believing, and does believe, they testify by all fair and lawful means, to present such defenses to a falsehood?" Some attorneys may have gone as the law of the land permits, to the end that no to this extreme measure, no doubt, but they cannot, man be deprived of life or liberty but by due process within the bounds of legal ethics, have justified of law.” But what does the law of the land permit? their actions by any process of reasoning. In PeoSurely, it does not permit of deceiving the court ple v. Beattie (137 III. 553) the court reached the by falsifying evidence. Nor does it sanction the conclusion that the oath or duty of an attorney does intimidation of timid witness upon

not bund him to suffer false and perjured testimony examination, whom he knows to have told the sim- to be presented, with the possible result of inducing ple truth.

the court to take jurisdiction where there would be It is a well-known fact that every accused person otherwise no power to act, and to grant a judgment is entitled, by constitutional right, to be tried by a or decree which the law would prohibit, were the jury. But when a lawyer takes it upon himself to real character of the testimony known. say to his client " I believe you to be guilty, there- An attempt by an attorney-at-law to impose upon fore, I decline to defend you," he deprives the client and deceive the court by the introduction in evioi this constitutional right and usurps the functions dence of testimony known by him to be false and of both the judge and the jury by trying the accused perjured, whereby he obtains a fraudulent decree, is person himself.

professional misconduct. Suppose, however, as the case sometimes is, that The course which the prosecution pursues necesa lawyer knows his client to have knocked down, sarily and materially affects the lines upon which the robbed and killed a workingman on his way home defense conducts its case. with his week's earning. Here we have a different If the public shows its appreciation of the cause situation. Here the lawyer has no chance of believ- by clamoring in favor of the defense, the advocate


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