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In England they appear to be much more these ignorant and misguided people, and, particular than we are in this country about therefore, enlisting public sympathy in their the publication of articles in the newspapers behalf. Mr. Purrington's demonstration of which might interfere with the due and proper the dangers of the unrestricted practice of administration of justice. The following from Christian Science by“ healers,” self-concededly the London Law Journal will serve to empha- and boastfully ignorant of the very laws that size the point:

govern the human body, is complete, while his There has been, during the last week, a gross quotations from Mrs. Eddy's book reduce her deviation in certain daily papers from the unwritten so-called phuosophy to utter absurdity. To but well-established rule against comments on cur- those who are free from prejudice and open to rent criminal cases. We refer to what is known conviction,- it is of course out of the question as the Yarmouth murder case. Certain journals have been indulging in long articles of an American to think of converting the Eddyites themtype, which are calculated to prejudice the defense. selves, who are making too good a thing out It is perhaps well to remind the persons responsible of their impious cult to drop it, - Mr. Purfor these productions that the arm of the law is rington's arguments must be regarded as unstrong enough to deal with such performance, either by indictment for interference with justice answerable. They cannot fail to have an im(Regina v. Williams, 25 Revised Reports, 624), or portant influence in preventing the spread of by proceedings for contempt of court, such as were this dangerous cult. taken in Regina v. Vladge and Armstrong (29 Law Journal, 311); Times newspaper, May 9, 1894. If

Notes of Cases. the scandal is not discontinued, it is to be hoped that the matter will receive the attention of the

United States · Liability for Torts — Negligence attorney-general.

in Operating Elevator – Personal Injury.— In Whether the aspersion upon our methods Bigby v. United States, decided in the U. S. Circuit in this respect be justified or not we shall not Court, E. D. New York, in August, 1900, it was attempt to argue, although a great many per- held that, while the license extended by the United sons who are in a position to know (and these States to the public to use its passenger elevator in

a post-office building imposes upon the government include many eminent occupants of the bench), the duty to use ordinary care to see that the facilido not hesitate to declare that the liberty of ties offered to its licensees are in a condition of the press in this country is really license to reasonable safety, no implied contract arises from interfere with the administration of justice. such relation to carry the passenger to his destina

tion which will entitle one who is injured through The subject is one well worthy of attention.

the incompetence of a person in charge of the ele-
I
vator to maintain an action against the United

States for damages, under act March 3. 1887 (24 We take pleasure in giving to our readers, Stat. 505), permitting a recovery against the United in this issue of the ALBANY LAW JOURNAL, the States for claims founded upon any contract, exmasterly address of the Hon. 11. A. Purring- press or implied, with the government of the United ton, of the New York bar, before the Church States, or for damages, in cases not sou

ounding in Congress at Providence, R. I., on November lort. The following is the opinion:

“ The demurrer is to a petition stating in effect thirteenth last, on the subject of “ Eddyism that the petitioner, while on his way to the marBefore the Law." It is, perhaps, no exagger- shal's office in the post-office building in the city ation to say that no man in the United States of Brooklyn, was injured by the incompetence of is better equipped to expose the fallacies of a person in charge of an elevator in said building, the so-called “ Christian Science,"— an obvi- operated by the United States, which was a breach

of an implied contract whereby the United States ous misnomer, because the cult is both in- ' agreed to carry the petitioner safely. The cause of Christian and unscientific, -- than is Vr Pur- action exists, is at all, under that part of the Tucker rington. He has long been engaged in this act of March 3, 1887 (24 Stat. 505), which permits exposé, and has devoted much of his valuable recovery against the United States for claims energies to the procurement of remeclial legis- with the government of the United States, or for

founded lipon any contract, expressed or implied, lation, a subject which is hedged about by damages, liquidated or unliquidated, in cases many difficulties, not the least of which is the sounding in tort, in respect of which claims the ever-present danger of making martyrs of party would be entitled to redress against the

not

United States either in a court of law, equity or the license is expressed or implied. In the present admiralty, if the United States were suable.” The case the license to enter and use the elevator is elevator is the usual passenger elevator employed implied; hence it would be asserted that there was in buildings of the United States, and is devoted an implied contract to enter. Here, again, the sugsolely to the purposes of the government. The gestion is to imply a contract for the purpose of United States was not a common carrier in the raising a duty, when the law already imposes the operation of such elevator, for ‘no one can be con- duty without implication of a contractual relation. sidered as a common carrier unless he has in some Moreover, the courts and systematic writers have way held himself out to the public as a carrier in not classed with contracts a mere permission to do such manner as to render him liable to an action if or forbear the doing of an act, but have rather rehe should refuse to carry for anyone who wished to garded such license as authority to do something employ him’ (Allen v. Sackrider, 37 N. Y. 341, 342). that otherwise would be unlawfully done. Hence Neither did the United States expressly stipulate it cannot be inferred that congress, by use of the with the petitioner for his carriage, nor did the law term “implied contract,' intended to include mere imply such undertaking. The law does not imply breaches of duty productive of injury to the licensee a contract to carry even in the case of common upon property of the government. carriers. It often happens that a common carrier

Breach of Marriage Promise Damages.- In of goods does make a contract for their transporta- Hahn v. Bettingen, an action for breach of promise tion. Under existing modes of business such con- of marriage, the plaintiff had testified that she was tracts are usually made by such carriers and perhaps engaged to B. and at the solicitation of the defendless frequently by common carriers of passengers. ant she broke her engagement and promised to If an expressed contract to carry exists, the declara- marry him. The Trial Court instructed the jury cion may be upon the contract, although the of- that if the plaintiff broke her engagement with B. fended person may declare upon the duty imposed at the solicitation of defendant and on account of his by law. But when there is a mere refusal to carry, I promise to marry her, they might consider as an or injury or delay, the declaration should be upon element of her damages her loss of the opportunity the duty implied by law, and not upon the contract, I to marry B. Such instruction was held reversible unless there be some negotiation between the par-| error. The court said in part: ties tantamount to an agreement; in other words, We hold. with some hesitation, that the excepa contract to carry is not implied. If it exists, it tion was sufficient. It is impracticable to lay down is because it has been expressed; for, where the precise rules for the assessment of damages in an law imposes the duty to carry, it would be idle action for a breach of promise of marriage. Within to imply a contract to carry. When the law com- reasonable limits, the measure of damages is a quesmands something to be done, it need and does not' tion for the sound discretion of the jury in each resort to the fiction that the party commanded im- particular case. And in assessing the damages they pliedly contracted to do the act. Hence there is no may take into consideration the plaintiff's pecuniary implied contract for the reasons stated, even if the loss, her loss of opportunities during her engageUnited States be regarded as a common carrier. ment to the defendant for contracting a suitable But the true relation of the parties in fact and legal marriage with another, the disappointment of her theory is this: For the purpose of transacting busi-| reasonable expectations of material and social adness with its officials, the United States extended to vantages resulting from the intended marriage, the the petitioner a license to enter its building and to injury to her health or feelings, the wounding of her use in connection therewith the facilities for passing pride, the blighting of her affections and the marfrom floor to floor. This permission imposed a ring of her prospects in life, by reason of the duty upon the government. The duty respecting its defendant's promise and his refusal to keep it. elevator was similar to that relating to the safety Compensatory damages may be awarded for any of the floors, stairs or any other part of its building. ; or all of these causes if the evidence in the particuThe duty was the same as that imposed upon the lar case warrants it. But no adjudged case, so far owner oi any building having a public relation. I as we are advised, has ever gone to the extent of The duty grew out of a permission to enter and to holding that because the plaintiff broke her then use the building for the purpose for which it was existing promise to marry another man, at the soliintended. This permission imposed upon

the citation of the defendant, and promised to marry United States the duty to use ordinary care that the him, the loss of the opportunity to marry her jilted facilities offered to its licensees should be in a lover might be considered by the jury in assessing state of reasonable saiety, and a breach of such her damages for the defendant's breach of his promduty would constitute culpable negligence. Hence ise. Such, however, was the clear legal effect of the declaration in the present case must be in tort, , the instruction complained of in this case; for it which brings the case within the exception stated in plainly directed the jury that if the plaintiff broke the Tucker act. The learned counsel for the peti-, her previous engagement with Mr. Bach at the tioner urges that a license to enter private premises solicitation of the defendant, and on account of his is a contract, expressed or implied, accordingly as promise to marry her, they might consider as an element of her damages the loss of the opportunity stable, but not including any person or persons to marry Mr. Bach. This proposition is ethically wholly dependent upon the said town or parish for and legally unsound; for it enables the plaintiff to their support; and such appropriation and distributake advantage of her own perfidy and recover dam- tion to be so made to such respectable poor persons ages for her own breach of her engagement with without distinction of age, relation or color, but to Mr. Bach.

be only made to such persons as are native-born citizens of the United States or the descendants of

such native-born citizens." TESTAMENTARY TRUSTEES.

The testatrix died in 1881, and her sister, Esther

Frances, received the income of this fund until her DESIGNATION BY OFFICIAL TITLES ONLY.

death in 1896.

The Surrogate's Court found, as a fact, “that by New YORK COURT OF APPEALS.

the law of Massachusetts the trust so attempted to Decided November 20, 1900.

be created would there be a valid trust, and the

court there would have the power to appoint a In the Matter of the Judicial Settlement of the

trustee on its appearing that the testatrix had failed Account of Thomas STURGIS, as Sole Surviving

to disclose such a trustee competent to act." Trustee Under the Last Will and Testament of

It further found “that there was in the will of CATHARINE STURGIS, Deceased.

said testatrix no trustee designated competent to The naming of trustees in a will to administer a take and administer the trust attempted to be crecharitable trust, who are designated by their official ated by the eighth paragraph of her will.” titles only, viz., “the selectmen or other municipal

As a conclusion of law, the court found that the authorities of the East Parish of my native town, bequest in the eighth paragraph of said will is Barnstable,” is a sufficient designation to render

void, and that the property thereby attempted to be them competent to take and administer the trust, disposed of passed to the residuary legatee. as individuals.

The Appellate Division affirmed, with a divided When such a trust is valid by the laws of the

court, on the opinion of the surrogate. State where it is to be executed the provision will i

We thus have the single question presented be carried out and the fund paid over to the trustees whether this testatrix succeeded in naming trustees designated.

competent to carry out the provisions of a trust Appeal from an order of the Appellate Division, concededly valid under the laws of Massachusetts. First Department, affirming a decree of the Surrogate's Court of New York county.

It is further found by the Surrogate's Court that

the town of Barnstable was incorporated in 1639; E. Countryman, for appellants; James McKeen, that in 1717 the town was divided into two parishes, for respondents.

to wit, the East and West Parishes; that distinct BARTLETT, J.- This appeal involves the validity municipal officers have never been chosen for either of the eighth clause of the will of Catharine Sturgis, parish; that the selectmen, who were also assessors deceased.

and overseers of the poor, are chosen for the whole By the seventh clause of her will she gave to town, and, as such, exercise the duties of said offher sister, Esther Frances Sturgis, the income on cers throughout the several villages making up the the sum of $6,000 during the term of her natural town; that the parish lines are recognized by the life.

assessors in the assessment of taxes; that by the law By the eighth clause she gave and bequeathed of Massachusetts towns were not entitled to take to the selectmen or other municipal authorities of by bequest money in trust, the income to be applied the East Parish of my native town, Barnstable, for the benefit of a portion of the inhabitants of a in the county of Barnstable and State of Massachu- territorial subdivision of the town for the purposes setts, or their successors forever by what name and limitations set forth in the will of said testatrix. soever such municipal authorities may at any time It seems to us that there is no difficulty in dealbe known, the said sum of $6,000 after the death of ing with the phraseology of the eighth clause of my said sister, Esther Frances, in trust, neverthe- the will which describes the selectmen or other less, that the said selectmen, or other municipal inunicipal authorities as of the East Parish of the authorities, shall keep the same on deposit with the town of Barnstable. The fact that the town is said Massachusetts Hospital Insurance Company, divided into two parishes and the selectmen and and shall appropriate the annual interest, income municipal authorities are chosen for the entire town or profits thereof in sums of not less than ten dol- of Barnstable, but discharge their duties in both lars or more than fifty dollars to any one person parishes, is sufficient to satisfy the language of the in any one year, in the discretion of said selectmen will. or other municipal authorities, so as to do the most As we read this will, the act of the testatrix in possible good for the relief and benefit of respect- selecting trustees was most natural and effectual able persons in reduced circumstances of either sex under the circumstances. The testatrix found herin the said East Parish of the said town of Barn-1 self in this situation: the fund she proposed to have

invested, devoting the income to charity, was first is no uncertainty, with respect to the individuals to be enjoyed by her sister for life.

who were to execute the trust. The designation of This life estate might cover a very considerable the trustees, by their official character, is equivalent period of time, which proved to be the case, and to naming them by their proper names. Each the trust for charitable uses was to remain in force office referred to was filled by a single individual, indefinitely, as was permitted by the law of and the naming of them by their official distinction Massachusetts.

was a mere designatio personae. They are appointed In this emergency, what was more natural than executors by the same description, and no objection for the testatrix to appoint individual trustees; but, could lie to their qualifying and acting as such. by official description, that was quite definite. In: The trust was not to be executed by them in their this manner she selected trustees and a line of suc- official character, but in their private and individual cessors apparently unbroken for an indefinite period capacities." corresponding with the duration of the trust. The court, in an elaborate opinion, sustained the

There was no appointment of these officers in devise, holding it divested the heir of his legal their official capacity to the position of trustees, estate or charged it in his hands with the trust nor was the bequest, in any legal sense, a gift to declared in the will. the town of Barnstable.

In Wells v. Heath (io Gray, 17) the Supreme The trustees appointed are private citizens and Judicial Court of Massachusetts held that devise are to act as such, but by reason of their official to the selectmen of a town and their successors in position are likely to have a knowledge of local office forever," in trust to pay certain rents and affairs that will aid them in the discharge of their profits to charitable uses, took as individuals. duties.

Merrick, J., said (p. 24): “The devise to the In this State, where the suspension of the power selectmen of the town of Topsfield was a good to alienate real estate and the absolute ownership and sufficient description of the persons who were of personal property is measured by lives in being, to take the estate as devisees. It is clear that any testators are not often called upon to act under words which are sufficient to denote the persons the circumstances presented in the case before us. meant by the testator and to distinguish them from A very instructive case in the Supreme Court of all others will secure to them the property or estate the United States bearing on the right of a testator which may be given them in a will (6 Cruise Dig., to select individual trustees by their official titles tit. 38, chap. 10, § 27 et seq.)." originated in this State (Inglis v. The Trustees of

We are of opinion that Catharine Sturgis, the testhe Sailors' Snug Harbor, 3 Peters, 99).

tatrix, designated competent trustees to administer In this case, in 1830, certain provisions of the the trust created by the eighth subdivision of her will of Robert Richard Randall were under review. will, and, as that trust is valid under the laws of He gave and devised the residue of his estate, which Massachusetts, the fund involved and its accumulaconsisted of a large amount of real and personal tions, if any, should be paid over to the said property, to the chancellor of the State of New York, the mayor and recorder of the city of New

The order of the Appellate Division and the surYork (and several other persons by their official rogate's decree should be reversed, with costs in all descriptions only) and their successors forever, in the courts, and the case remitted to the Surrogate's trust, to erect and build on the lands devised, out Court, with direction to modify the decree so as to of the rents and profits, an asylum or marine hos- direct the surviving executor to surrender the fund pital, to be called “The Sailors' Snug Harbour,” to the appellants, as trustees under the eighth subfor the purpose of supporting aged, decrepit and division of the will of Catharine Sturgis, deceased. worn-out sailors, etc. The will iurther provided that if his intention, Landon, JJ., concur; Haight, J., not voting.

PARKER, Ch. J.; O'BRIEN, MARTIN, VANN and as above expressed, could not legally be carried out without an act of the legislature, he directed his

Order reversed. trustees to secure it and to incorporate under it for the purposes he had specified.

LITERATURE AND THE LAW. A few years after testator's death this legislation was secured, and the corporation of “The Trustees of the Sailors' Snug Harbour in the City of New Co

OMMENTING on the exceedingly dry charYork" has ever since been managed by a board of acter of most legal works, Literature says: trustees acting individually, although described by The average barrister in practice, if he possesses their official titles only, consisting of the mayor, the any literary taste, dissimulates it and lets it wither recorder, the rector of Trinity Church, the presi- for lack of nourishment. Seldom is his address in dent of the Chamber of Commerce and one or two court characterized by any literary grace; rarely, others.

indeed, in his speech brightened even by some illusMr. Justice Thompson said, in the course of his tration drawn from the masters of English literaopinion: “In the case now before the court there I ture. Sixty or more years ago we know that even

trustees.

64

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in the murky regions of the Bankruptcy Court Basil from Carey's piay Chrononhotonthologos," the Montagu would now and then “enliven the discus- well-known lines: sion of a point of law by citing some weighty Go call a coach, and let a coach be called, aphorism, or brilliant illustration from the De And let the man who calleth it be the caller, Augmentis or the Novum Organum - a descrip-And in his calling let him nothing call tion, which, it is amusing to recall, was only Mac- But coach! coach! coach! O, for a coach ye gods. aulay's full-dress account of an incident which he

While more recently still in a suit before Mr. Jusrelates in a letter to his sister written from Basing- tice Kekewich, as to the validity of an old custom hall street: Basil Montagu is haranguing about (L. Rep. (1898), 2 Ch. 120) we find allusions to Lord Verulam and the way of inoculating one's the classic pages of Tristram Shandy; and in mind with truth; and all this apropos of a lying another, before the Court of Appeal (15 Times L. bankrupt's balance-sheet!” Now, alas! there are

Rep. 231), the Lord Chief Justice takes “judicial few at the bar who quote either Milton or Bacon, notice” of the fat boy in Pickwick. Sometimes a or, indeed, anything but dreary statutes and musty

mere name in a report will awaken pleasant fancies, But the great mass of law books are not

remote enough from the “dusty purlieus of the only dull, they are absolutely repellent. This may law.” Looking through volume 4 of Bingham's account for the fact that so few lawyers evince an Reports (Common Pleas) for the year 1828 the enthusiasm for their science equal to that exhibited reader, familiar with his Dickens, when he chances by Baron Parke, who is reported to have taken

at page 218 upon the case of Brooke v. Pickwick beautiful demurrer” to the bedside of a sick friend gets a pleasant shock, for the defendant there was to comfort him in his illness, or by the old con

none other than the famous coach proprietor whose veyancer who admitted that it would be somewhat name was appropriated for the work we know and irksome to pore continually over abstracts of title, I love so well. Like his fictitious namesake, this were it not that now and then he met with “a bril- i Mr. Pickwick was uniortunate in his defense. Mr. liant deed” which rewarded him for all his labors. Justice Gaselee was concerned in both cases, But there are exceptions to most rules, and a few although in Bardell v. Pickwick he appears as modern law books can be read, not only with profit, Mr. Justice Stareleigh. The real Mr. Pickwick, but with real pleasu

sure. Mr. Birrell's short sketch however, was not sued by any Mrs. Bardell for of the Duties and Liabilities of Trustees, and his damages in respect of wounded affections, but by more recent volume on the Law of Copyright, are a prosaic traveler for the loss of his trunk. almost as fascinating as Obiter Dicta. Or, take Sir These may be small matters, but to find the preFrederick Pollock's important works on Torts or vailing dulness of law publications enlivened in any Contracts, or Mr. Edward Manson's delightful little way, and to discover that not all lawyers and writers book on Dog Law a work which, probably, has on legal subjects have vowed exclusive devotion the unique distinction of being the only English to the shrine of the Annual Practice and kindred law book provided with a pictorial frontispiece, works, are, in the circumstances, matters for reproduction of Landseer's Laying Down the congratulation. Law – or some of the articles in the recentlyissued Encyclopedia of English Law, and they will

EDDYISM BEFORE THE LAW.* dissipate the notion that legal text-books must necessarily be mere dull compilations.

Spoken under appointment before the Church Occasionally, too, an unattractive work may be

Congress at Providence, R. I., November 13, 1900, enlivened by some interesting literary reference

by W. A. Purrington, Esq., of the New York bar, which falls upon the stream of dreary narrative like

lecturer on the Relation of Law to Medical Praca glint of summer sunshine. To find Sam Weller's tice in the University and Bellevue Hospital Medievidence in Bardell v. Pickwick set out in Pitt-Tay- cal College and the New York College of Dentistry, lor on Evidence as an apposite illustration of the and counsel to the New York State Medical Assoworking of one of our evidential rules is delightful. ciation and State Dental Society. Printed from In reported decisions we sometimes light upon advance sheets of the proceedings, by permission equally pleasant surprises. In one of Lord Camp- of the publisher, Thos. Whittaker, Esq. bell's Reports (vol. 3, P. 539) we have a passage from Boswell relating to Jack Ellis, the last of the profession of money scriveners, set out in a note;

I assume that in honoring me by your invitation in a Scotch report for 1829 (7 Shaw & Dunlop, to address this congress, in association with learned pp. 159, 160) almost a page is devoted to an extract doctors of divinity and medicine, you desire me to from the Antiquary; in volume 33 of the Law Jour- discuss from the standpoint of the law the strange nal Reports (Q. B.), p. 149 is plentiíully dotted with madness, soi disant Christian Science, which we poetical quotations to illustrate the use of the word may better speak of as Eddyism, since it is neither

team; ” in a recent case (14 Times L. Rep. 532) Christian nor scientific. the Lord Chancellor breaks the continuity of a

This brings up for consideration two questions: prose narrative by quoting from Shakespeare, and First. Whether the doctrine of religious liberty

*

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