MR. sort. ALBANY, JUNE 17, 1882. CURRENT TOPICS. R. HIGH, in his article entitled, "What shall be done with the Reports?" in the current number of the American Law Review, makes some striking suggestions for relief. He recommends that these publications "should be confined, with the possible exception of the Circuit Courts of the United States, strictly to courts of last resort." He cites Hun's reports as an example of the evil to be avoided, in respect notably to "the Special Term decisions." But Mr. Hun does not report Special Term decisions, and in respect to the great majority of cases the Supreme Court is the court of last reWe draw attention to these facts because Mr. High would except the Federal Circuit Courts because they "are in many cases courts of last resort." Mr. High further recommends that "it should always be left discretionary with the court to determine what opinions" shall be published; that all cases should be excluded which merely reiterate familiar principles, or concern mere interlocutory matters or questions of fact; that less space should be given up to arguments of counsel, especially to mere citations, which are rarely verified; that the reporter should have no pecuniary interest in the volumes, but should be a salaried officer; and that the judges should write more briefly. These are all good suggestions, we think. Perhaps we are prejudiced in their favor, because we ourselves have so often urged most of them. We are glad to note Mr. High's remarks upon the "undue prolixity " the English opinions, especially in the House of Lords. There is no writing so dull and slipshod, and so generally useless as these opinions of the noble lords. Mr. High makes a generous reference to the American Reports, with which publication we have a considerable acquaintance. He says, 66 as a rule, the opinions are given in full, except where they turn upon questions of fact or upon merely local questions." In fact the editor also excises much of unimportant legal discussion which relates to familiar and well-established principles or is of inconsiderable general interest. Mr. High refers to the 28th volume as the last at the time of his writing, meaning probably the 36th. of A correspondent in another column dissents quite sharply from Judge Finch on the subject of the "mental essence." Our correspondent seems to believe with the Irish philosopher, that "one man is as good as another, and better too." Despite his rather summary way of disposing of the judge and ourselves, we are still inclined to believe that God gave men at the start an equal measure of intellect, and that if their environment had ever since been precisely alike their achievements would not have been essentially different, except as hard work VOL. 25 No. 24. - would have given superiority to one or another. As for "hereditary genius," we take no stock in the doctrine, and where our philosophical correspondent can point to one indication of it, we can point to a dozen failures. While belief in mental equality has led to "much wasted energy," it has also led to vast beneficial results, and were it not for such a prevalent belief, the world of mind would soon stagnate. At all events, we conceive it to be a commendable thing for every man to assume that he has as large and good an assortment of the "mental essence as anybody else, and not to give up until he is convinced that he is not the fittest to survive. It was probably this assumption, supplemented by hard work, that placed Judge Finch where he is, and we think it a wise lesson to "ambitious young law students" to encourage them to make a similar experiment. A man must find out his "natural superiors" by trial and not by instinct. It might be different among philosophers, but men ordinarily do not go about labelled "naturally superior." The unusual event of a re-argument in the Court of Appeals took place at Saratoga, on the 7th inst., in Story v. New York Elevated Railroad Company. It must be said by way of explanation that the reargument was granted, not because the court contemplated the possibility of changing their mind, but because they had not been able to make up their mind. The question was as to the right of an owner of adjoining property, on a street through which the railway passes and in the soil of which the city has the fee, to recover damages for obstruction to light and for injury by noise, smells, exposure of the interior of his house to the public, etc.; and the court on the first argument, before six judges, stood three to three. This would have affirmed the decision of the Supreme Court for the defendant. This division of opinion was indicated by the dissent in Matter of Elevated R. Co., 70 N. Y. 327. The late arguments were made by Messrs. Evarts, Parsons, and Foster, for the plaintiff, and Messrs. Field and Choate for the defendant. It is understood that the casting vote will now be with Judge Tracey. It is a pity to have a question of such importance so insecurely settled. For our own part we cannot see why there should be two opinions about it. If the decision should happen to be for the railroad company, there will be another excellent opportunity for the Times to charge another judge with "corruption." When Mr. High asks, "What shall be done with the Reports?" we answer, simplify them, condense them, and make them funny. When we started out in our youth to endeavor to infuse a little sportiveness into law reports, we little thought we should so soon have two such promising disciples as Mr. R. Vashon Rogers, Jr., of Toronto, and Mr. John D. Lawson, of St. Louis. Mr. Rogers has made several successful ventures in this line, such as Rights and Wrongs of a Traveller, Law of Hotel Life, etc. successful at least on this side of the - tricities had advised his client that he could not 'ellegal; ' "cruil;' There is "O that this too, too solid flesh would melt, or rather he is coming-in a volume of "Leading Cases Simplified," of which some advance sheets have reached us. They are of excellent quality and make us impatient for the completion. Among the best of those which we have before us is the report of Connecticut, etc., Ins. Co. v. Schaeffer, 94 U. S. 457, as to who may insure the life of another. A wife, who had insured her husband's life, got divorced, and re-married before his death, and when she asked for her money, the manager asked her if she had ever heard of Boldero (Godsall v. Boldero, 9 East, 72).. Upon her telling her lawyer this, he directed her to ask the manager if he had ever heard of Dalby (Dalby v. India, etc., Life Ass. Co., 15 C. B. 365). The report of Thurston v. Union Pacific R. Co., 4 Dill. 321, is also well told, as follows: "Thurston was a bad man to meet on a railroad train. And yet travellers were very apt to run against him, for his business called him there very frequently. His sole stock in trade was three pieces of pasteboard, and he earned his living by making small bets with unsophisticated grangers, whom he generally met in the smoking-car, concerning the identity of a particular card of the three. After the game was over, and when the shekels of the rural inhabitant were deposited in the pocket of Thurston, what used to puzzle the granger was how it came about that whenever he bet a small sum, he could generally locate the right card, and whenever he put up his pile, he always selected the wrong one. It was this sort of thing that gave Thurston the name of 'monte-man,' and that, one day having purchased his ticket on the defendant's road, caused the conductor of the train to prevent him from boarding it." Then follows the decision, briefly told. Our experience of these humorous reporters (leaving out ourselves, of course), is that they report the law more accurately, briefly, and impres-Union, it is the generally admitted doctrine, that a sively than the official reporters, and throw in the amusement. We hail the accession of Mr. Lawson to the ranks of our select few who do not deem the practice of the law necessarily a penance. The St. Louis Court of Appeals, as we learn from the Chicago Legal News, have recently granted a new trial to a prisoner convicted of murder, on account of the ignorance, stupidity and mismanagement of his counsel, Mr. A. Alpeora Bradley. The court distinguish between civil and criminal cases in this regard. In respect to Mr. Bradley's performance they mildly observe: "In looking over this record we find in the performance of the counsel for the defendant an exhibition of ignorance, stupidity and silliness, that could not be more absurd or fantastical if it came from an idiot or lunatic." "The prisoner here in effect went to his trial and doom without counsel." Mr. Bradley among other eccen 66 Or that the everlasting had not fixed His cannon against self-slaughter." This is really "too, too." In our opinion, if Mr. Bradley desires to make way with himself, he will not find any providential obstacle in the shape of "cannon" in this particular case. It is apparent that either his original share of the "mental essence" was inadequate, or his "environment" has been peculiarly unfavorable. We pray he may not take to acting Hamlet. IN NOTES OF CASES. N Campbell v. Brown, 86 N. C. 376, it was held that an acknowledgment by one joint obligor itations as to the others. will not arrest the running of the statute of limThe court said: “In England, as well as in most of the States of the payment made by one obligor in a bond before the expiration of the time necessary to raise a presumption of payment, and within the prescribed period before the bringing of the action, will take the case out of the rule of presumptions as to all his co-obligors. Various reasons have been assigned for thus holding. In some of the cases it is said that a payment is an unequivocal admission of the debt as still subsisting, more reliable than any mere promise, as being more deliberately made and less subject to misconstruction. Again, it is said to be an act which inures to the benefit of all the obligors alike, and of which each one could avail himself, in case he were sued on the bond within the time, and as they might take the advantage of it, so all must be bound by it. The correctness of the rule itself has been gravely doubted by some of the courts of the very highest respectability, and finally after some fluctuation in its decisions, it has been expressly repudiated by the Court of Appeals of the State of New York in Shoemaker v. Benedict, 1 Kern. 176, and the broad ground taken, that it is not within the power of the joint obligor, even by an actual payment on the bond, to bind the others -and such is said in 3 Pars. on Cont. 80, to be the tendency of the modern adjudications on the point. In this State however the rule, which allows the obligations of one co-obligor to be affected by such a payment made by another, has been directly applied in McKeethan v. Atkinson, 1 Jones, 421; Wilfong v. Cline, id. 499; Lowe v. Sowell, 3 Jones, 67, and has been clearly recognized in a number of other decisions. It is now too firmly established to admit of a thought of its being disturbed by us. But further than this our courts have never gone; and there seems to be no warrant of authority for the position that by a naked acknowledgment of the debt and a promise to pay it, whenever made and however unqualified they may be, can one obligor bind his co-obligor, and deprive him of the benefit of that presumption which the law makes in his behalf." The court explained Lane v. Richardson, 79 N. C. 159, and approved the "distinction between matter which extinguished the debt, and that which was only a bar to the remedy," and continued: "All the cases referred to by counsel, in support of the plaintiff's position, had reference to unsealed instruments, and therefore fell under the 'statute of limitations' proper, which affected only the remedy of the parties plaintiff, and as we have just seen, the law makes distinction between such cases and those in which the statute raises a presumption, such as affects the debt itself, and if unrebutted, extinguishes it. It may be difficult to perceive any just principle upon which to base such a distinction, but it has been clearly marked out by the court and constantly observed. Indeed, if resort be had in the matter to principle, as distin guished from precedent, it is impossible to understand how, in any case, the unauthorized acts and declarations of one party, though he be jointly bound, can be admitted to enlarge the promises or extend the obligations of another, and hence we are not disposed to push the rule one inch beyond the requirements of the adjudicated cases." Among recent cases we find, in harmony with the principal case, Bush v. Stowell, 71 Penn. St. 208; S. C., 10 Am. Rep. 694, and opposed to it, Beardsley v. Hall, 36 Conn. 270; S. C., 4 Am. Rep. 74. As to the effect of payment by a joint debtor, see ante, 4; 24 Alb. Law Jour. 451; Burgoon v. Bixler, 55 Md. 384. In Roosa v. Boston Loan Co., Massachusetts Supreme Court, March, 1882, Mass. L. Rep., June 8, 1882, an action of assault and battery, the attending physician was asked, "what did the plaintiff tell you about her condition?" and answered, "she stated that she had received a blow in the stomach." This was received to locate and describe the injury. A new trial was granted for this error, the court observing: "When the bodily or mental feelings of a party are to be proved, his exclamations or ex pressions indicating present pain or malady are competent evidence. Bacon v. Charlton, 7 Cush. 586; Chapin v. Marlborough, 9 Gray, 244; Barber v. Merriam, 11 Allen, 322; Illinois Central Railroad v. Sutton, 42 Ill. 438, cited and discussed. The facts in the case last cited, as in Chapin v. Marlborough, are similar to those recited in the bill of exceptions. It would clearly have been competent for a physician, after having testified to the plaintiff's condition, and to the complaints and symptoms of pain and suffering stated by her, to have given his opinion that they were such as might have been expected to follow the infliction of a severe blow. Such evidence was admitted without objection. But it was not competent for the physician to testify to her statements that she had received a blow in the stomach. No case has been called to our attention, and we are not aware of any case, where such evidence has been admitted." See Quaife v. Chicago and N. W. Ry. Co., 48 Wis. 513; S. C., 33 Am. Rep. 821, and note, 828; 22 Alb. Law Jour. 364. That In Bangor v. Masonic Lodge, 73 Me. 429, it was held that a masonic lodge is not a charitable or benevolent institution. The court said: 66 Masonry being a secret institution, and its main purposes being carefully guarded from public scrutiny and knowledge in the secrecy of its lodges, we can only ascertain the objects of its existence from the information afforded us by its constitution and its general regulations, so far as they are made part of the case. The intimate purposes of the institution are not disclosed. They are secret. They are kept sacred. It is only from what is known that we can infer what are its leading objects. The section rerefers to those which are purely charitable. lied on as exempting the institution from taxation, masonic lodges are charitable to their own memquestion. The inquiry is, whether it is a public bers is not to be questioned, but that is not the charity or a private charity for the exclusive aid of its members. The constitution, it seems by the preamble thereto, was ordained and established 'in insure tranquillity, provide for and promote the genorder to form perfect fraternal union, establish order, eral welfare of the craft, and secure to the fraternity the blessings of masonic privileges.' From the 'blessings of masonic privileges,' all not members, and all of the female sex not married to masons or begotten by them in lawful wedlock, are excluded, while no woman can be a member, and no man, except by a unanimous vote. It will, too, be perceived that charity is not even mentioned as one of the purposes for which the constitution was ordained and established, but 'the welfare of the craft' and 'the blessings of masonic privileges' are specially designated. It provides for the establishment and preservation of 'a uniform mode of working and lectures, in accordance with the ancient landmarks and customs of masonry,' and a grand lecturer, whose duty it shall be to exemplify the work' and 'impart instruction to any lodge requiring their services.' Its funds are derived from fees for initiation, assessments, fees for dispensation for holding new lodges, to be paid the grand treasurer, and generally from 'fees, dues and assessments.' Of the nine committees for which provision is made in the management of the institution, there is one for charity, whose duty it is to appropriate the interest of the charity, in whole or in part, for the relief of such poor and distressed brethren, their widows and orphans, as the grand lodge or the trustees of the charity fund may consider worthy of assistance, and if the whole be not so distributed, the residue, with all the other receipts of the treasurer, after deducting therefrom such sums as may be necessary for the ordinary expenses of the grand lodge,' is to be added to this fund. This limitation of charity in the constitution is found in similar terms in the charter of the defendant lodge. The jewels and the regalia, the elaborate schedule of official dignitaries with titles implying important functions and grave duties, inconsistent with and unnecessary for the distribution of charities, its splendid processions, its gorgeous rooms, its palatial temples, its 'duly' guarded doors, its mysterious rites, its secret signs of recognition, all its rules, regulations and proceedings, so far as made known to the public, negative the idea that charity is the primary and exclusive object of the institution, and conclusively prove that the welfare of the craft' and 'the blessings of masonic privileges' are the objects of its existence. It is a society for mutual benefit and protection, and the ends to be attained are private and personal, not public. The very word 'privileges,' implies rights and immunities superior to those enjoyed by others. It is apparent that the defendant corporation cannot be regarded as a purely public charitable institution, because it wants the essential elements of a public charity. It has other objects than charity. Whatever its ultimate purposes, they are other than charitable. Its funds are derived not from devises and gifts, as in case of a public charity, but from fees and the assessment of its members. The funds so obtained are to be distributed among the poor and needy members, from whom they were collected, and among their wives and children. It is an association for the mutual benefit of its members, and not a charitable institution within the meaning of the statute." Citing Babb v. Reed, 5 Rawle, 157; Delaware County Institute v. Delaware County, 94 Penn. St. 163; Humphries v. Little Sisters of the Poor, 29 Ohio St. 206; and distinguishing Duke v. Fuller, 9 N. H. 536; Mayor of Savannah v. Solomon's Lodge, 53 Ga. 93; Everett v. Carr, 59 Me. 326; Indianapolis v. Grand Master, 25 Ind. 518. See County of Hennepin v. Brotherhood of Gethsemane, 27 Minn. 503; S. C., 38 Am. Rep. 298, and note, 300. was terminated September 1, 1873, having sowed a crop of oats in November, 1872, and harvested it in June, 1873, had plowed in the stubble in the latter mouth, and the crop was growing when he left in November, 1873. Held, that he could not enter afterward and harvest that crop. The court observed: "When the tenancy is of uncertain duration and is terminated by the landlord after the crop is sown, but before it is severed from the freehold, the tenant or his representative shall be entitled to one crop of that species only which ordinarily repays the labor by which it is produced within the year in which that labor is bestowed, though the crop may in extraordinary seasons be delayed beyond that period. But he is not entitled to all the fruits of his labor, as such right might be extended to things of a more permanent nature, such as trees or more crops than one, since the cultivator very often looks for a compensation for his capital and labor in the produce of successive years. Such is the law, as stated in Broom's Leg. Max. 236, 394. The crop claimed in this case is ordinarily an annual crop, but the plaintiff harvested the first year's product of the sowing, and claims a second year's crop of the same sowing. True, he bestowed additional labor to produce this second crop, but as we understand the rule as above stated, it goes no farther than to give to the tenant the benefit of the law of emblements, so as to secure to him the benefit of the annual crop sown by him before the termination of his term. If this second crop of oats had grown without labor by the plaintiff, he would not have been entitled to it after the expiration of his term, as he had already harvested the crop sown by him, and the additional labor bestowed upon it does not change the result. The crop claimed matured in 1874, was sown in November, 1873. Plowing in the stubble, we think, is not equivalent to sowing another crop, though it produce the same result. The policy of the rule is the encouragement of the tenant in the cultivation of the soil, and is satisfied by giving him, after the termination of his term, the produce of his annual crop sown by him.” The rule declared in the last sentence is purely artificial and seems rather hard. We suppose the doctrine of emblements is not so much for the benefit of the land as for the benefit of the tenant; not so much to encourage the tenant to cultivate as to give him the due benefit of all his labor. If he can get two crops in one year or from one sowing, by additional labor, it seems no good reason for depriving him of the benefit of part of his labor that he has had the benefit of another part. The principal case is unique, we believe, but the analogous cases seem to sustain it. In Reiff v. Reiff, 64 Penn. St. 134, the question of emblements arose as between tenant for life and remainderman, in respect to grass. The court said: "At the time of her death there was standing uncut on the premises a quantity of mixed timothy and clover grass, a quantity of grass, part meadow and part timothy, and a quantity of timothy exclusively. The question was, was this grass emblements, belonging to the tenants of the deceased owner of the life-estate? The vegetable chattels called emblements are the corn and other growth of the earth which are produced annually, not spontaneously but by labor and industry and thence are called fructus industriales. The growing crop of grass, even if grown from seed, and though ready to be cut for hay, cannot be taken as emblements; because as it is said the improvement is not distinguishable from what is natural product, although it may be increased by cultivation (1 Williams on Executors, 670, 672)." The court below said: "It may be admitted, that Indian corn, wheat, rye, oats, buckwheat and potatoes, and even hemp, Hungarian grass, flax and millet are included among the emblements that do not pass to the remainderman, but these are all annual products; when cut the root dies." In Graves v. Weld, 5 B. & Ad. 105, a tenant for a term determinable upon a life, sowed the land in spring, first with barley and soon after with clover. The life expired in the following summer. In the autumn the tenant mowed the barley, together with a little of the clover plant which had sprung up. The clover so taken made the barley straw more valuable by being mixed with it, but the increase of the value did not compensate for the expense of cultivating the clover, and a farmer would not be repaid such expense in the autumn of the year in which it was sown. The reversioner came into possession in the winter, and took two crops of the same clover after more than a year had elapsed from the sowing. Held, that the tenant was not entitled to emblements of either of these two crops; first, because emblements can be claimed only in a crop of a species which ordinarily repays the labor by which it is produced within the year in which that labor is bestowed; second, even if the tenant was entitled to one crop of the vegetable growing at the time of the cesser of his interest, this had already been taken by him at the time of cutting the barley. "Crude turpentine which has formed on the body of the tree, and is usually known as scrape,' is personal property, and belongs to the person who has lawfully produced it by cultivation. State v. Moore, 11 Ired. 70. It is an annual product of labor and industry, and although it adheres to the body of the tree it is not a part of the realty. The turpentine crop may be properly classed with fructus industriales, for it is not the spontaneous product of the trees, but requires annual labor and cultivation. Upon a similar principle, hops which spring from old roots have long been regarded as emblements. A lessee of turpentine trees, even after the expiration of his lease, has the right of entry, egress and regress' to remove the 'away-going crops' which he has produced by his labor, provided he does so within reasonable time." Lewis v. McNatt, 65 N. C. 63. See, generally, Reeder v. Sayre, 70 N. Y. 180; S. C., 26 Am. Rep. 567. In Stewart v. Doughty, 9 Johns. 108, Kent, C. J., said: "The common law has established a distinc * * * tion in respect to this very subject of emblements, between the right to emblements and the costs of ploughing and manuring the ground, so that the determination of an estate at will would give to the lessee his emblements, but not any compensation for these improvements. He might be ousted of the possession before the crop was in the ground, and wholly lose the expense of ploughing and manuring the land, though if he was ousted afterward he would be entitled to the emblements. Compensation for preparing the ground for seed is not an indemnity for the loss of the crop, which includes the loss of the seed, the labor of sowing and nursing it, and the hopes, to the laborer and his family, of a fruitful harvest." To the same effect, Price v. Pickett, 21 Ala. (N. S.) 741. But in the principal case the sowing had been done before the plowing, and the necessary labor having all been performed it seems hard to deprive the tenant of its benefit. TENANT BY CURTESY-LEX DOMICILIICONFLICT OF LAWS. IN a certain case the husband and wife were married in New Jersey and domiciled there at the time of the death of the wife, she dying intestate; she held real estate in Pennsylvania at the time of her death, and left her husband surviving; they never had any children. In New Jersey a husband is not entitled to curtesy in his wife's real property in such case; in Pennsylvania a husband is entitled to curtesy where she dies intestate. None of the heirs or parties reside in Pennsylvania. The question now is, which law governs in the descent of the property to the wife's heirs (brothers and sisters); that of New Jersey which leaves it free from the husband's curtesy, or that of Pennsylvania which makes it subject to his curtesy? That is, can curtesy be defeated by domicile of the husband and wife, at the time of the death of the latter, irrespective of the location of the property? I am aware that commentators on real estate boldly say that curtesy and dower follow the law of location of the real estate, but they only dogmatically say so, and do not reason or consider the question of curtesy, and they have no judicial authority for saying so, nor any facts showing that it was ever based on any authority, or was even discussed by any court, or fairly or fully discussed by any writer upon real estate or by any writer upon the conflict of laws, so far as relates to the effect of the domicile of all the parties interested in the question. The general law in regard to descents is, that the law of the domicile governs. This is undisputed as to personal property without regard to its location. I assert and claim that it is also true as to real estate in the United States in certain cases, notwithstanding the great learning and high standing of the commentators who have asserted to the contrary. By the principles laid down and illustrated by Judge Story, Messrs. Wharton, Westlake and others, I can prove that their assertions in regard to a husband's curtesy following the lex rei sitae is without foundation and erroneous. This question as to tenancy by curtesy, as affected by the domicile of the parties, seems never to have arisen in Engish courts. On the continent of Europe the law of the domicile is in all cases administered by the courts there, both as to real and personal property alike, and the heir and other successors take according to that law wherever the property may be located. |