I am not a prophet, nor the son of a prophet, but I think I can foretell the result of a Civil Code. Scores of years and millions of money will be spent in the endeavor to ascertain and fix the rules of law so that they shall be as definite and certain as they are now. Then some new codifier, with the same laudable desire to hand his name down to posterity which actuates Mr. Field, will obtain the permission of the Legislature to unsettle the settled law, so that it can be settled over again. And the judicial construction of these Codes will be contained in hundreds of volumes of new reports, which you may perhaps edit, and which the profession will certainly have to buy. And the "ordinary business man wont understand the law as well as he does now, and will pay more money to be told. And this is what you call "making the law simple and cheap! Yours sorrowfully, ESEK COWEN. ANSWERS TO "AN INTERESTING INQUIRY." Editor of the Albany Law Journal: The correct legal method of computing time for the purpose of calculating interest is prescribed by Rev. Stat. Pt. 2, ch. 4, tit. 3, §§ 9, 10. See also Pt. 1, ch. 19, tit. 1, §§ 3, 4. PETER E. FONTES. Editor of the Albany Law Journal: Interest is by the year, and the year is legally ascertained to be 365 days. If "Inquirer's" language is to be taken strictly, his "from" and "to" settle the question, and the computation on the first note is 144 days; but if the dates given are the dates of the notes, and March 19, 1885, their due date (the last day of grace), then the day of the date is excluded, and the last day of grace is included and the computation for the first note is 145 days. The division of time into months affects the question of what day the note becomes due, but leaves the interest to be computed for the number of days the money is used. The debtor who undertakes to pay in so many months takes notice that some months are shorter than others, but he is not obliged to pay interest for thirty days of a month which has only twenty-eight. BUSINESS. PROTECTION AFFORDED BY CONSULS. Editor of the Albany Law Journal: With your consent I will occupy sufficient space to ask what is meant by the frequent statements in the newspapers, during the recent difficulty in Central America, that American merchants placed their property under the protection of their consul. To the best of my knowledge and belief, an American citizen who engages in trade in Guatemala, becomes for all civil purposes stamped with the character of a citizen of Guatemala, and in case of war between Guatemala and any other State, his property would be liable to seizure. Am I not correct? Yours respectfully, ROCHESTER, N. Y., Apr. 14, 1885. THE COURT OF APPEALS DECISIONS. B. HE following decisions were handed down Tuesday, April 21, 1885: Judgment affirmed, with costs-Samuel Tolles, respondent, v. W. Stanard Wood and others, appellants. -Order affirmed, with costs-People ex rel. Mary N. Townshend, respondent, v. Artemas S. Cady, appellant; People ex rel. German-American Loan & Trust Co., appellants, v. Samuel Richards, respondent; In re Petition of John Kennedy to vacation, etc.———— -Appeal dismissed on the ground that the order is not final, with costs-In re Sanderson Bros., Steel Company; J. J. Parkhurst and another, respondents. v. Lucius Gleason and others, appellants. To file new undertaking. Ordered that the appellant within ten days file and serve a new undertaking on the appeal in the form and manner reguired by the Code, and that in default thereof the appeal be dismissed-James Mahon, Jr., respondent, v. John Noon, appellaut.To advance cause on calendar. Motion to advance denied. Motion to intervene granted so as to allow attorneys in the second suit to submit points on the argument of this appeal-John G. Smith, appellant, v. Thomas Boyd and others, respondents. To recall remittitur for correction; denied, without costs-Edward J. Woolsey, appellant, v. John R. Morris and another, respondents.--For reargument. Denied on the ground that there was evidence to justify a finding of the fact that the first board of audit passed upon the merits. Ten dollars costs in one case-Teunis P. Osterhoudt, etc., respondent, v. Thomas Hyland and others, appellants; Same v. Cornelius Brackett and others; Same v. Owen Trodden and others; Same v. Butler and others; Same v. Murphy and another.For reargument. Denied with costs-In re several accountings of executors of William Tilden, deceased; Ezra Acer, appellant, v. Levi Hotchkiss, respondent; Thomas F. Baker and another, appellants, v. Levi Hotchkiss, respondent.-To place cause on calendar for day certain. Denied on the ground that this is an appeal from an order, and can be put on the calendar upon any motion day, without costs-In re guardianship of L. W. Valentine. NOTES. "the cross-ex The Legal Intelligencer pronounces amination of Guiteau by John K. Porter, of New York, the finest specimen of the art, in print, with which we are familiar." We concur.-Mr. Edward J. Phelps, who has been nominated minister to Great Britain by the president of the United States, is known to English lawyers as having been in association with the late Mr. William A. Beach, counsel against the English company in the case of the Emma Mining Co. v. Parke, tried in New York in 1877. Mr. Beach, who died last June, was eminent for his powerful advocacy in jury cases, while Mr. Phelps' powers lie rather in equity cases, and he is distinguished for his knowledge of law, his subtlety in argument, and the refinement of his style of speaking. Mr. Phelps comes of a good New England family, and has, socially, a reputation for wit, besides other engaging qualities, so that his arrival may be looked upon as another importation of geniality flavored with sal Transatlanticum which his predecessors have made so popular in England.-London Law Journal. The Albany Law Journal. WE ALBANY, MAY 2, 1885. CURRENT TOPICS. E call especial attention to Mr. Hayes' communication in another column on the subject of imprisonment for debt. Mr. Titus' bill now pending in our State Senate for the abolition of this remedy has been passed four times by the Senate in former sessions, and has uniformly failed in the lower house for want of attention. The bill ought to pass. We have more than once urged it, and never have heard a voice raised against it. There is no reason in morals or justice or policy why a man should be incarcerated because another man has chosen to trust him for a greater amount than he can pay. Especially unjust is the state of the law in which the debtor may be perpetually imprisoned, as is possible in this State, as Mr. Hayes points out. Penal remedies for civil wrongs are unwise. Frauds and false pretenses may be punished criminally, but criminal remedies should never be used to compel the mere collection of debts. This is recognized in respect to extradition. We earnestly hope that our Legislature will purge our statute book of this absurdity and injustice at once. We do not hesitate to declare our belief that the trusting creditor is generally as much to blame as the trusted debtor. If the creditor is unwilling or unable to invoke the criminal remedy, let him take the consequences of his own credulity or carelessness. The United States Supreme Court have pronounced a very important decision in the Virginia tax-coupon cases. The decision was against the State, and in favor of the bondholders on all material points. The court holds that all the legislation of the State which attempts to evade the obligation under which it rests to receive the coupons of its bonds in payment of State taxes is unconstitutional and void, because it impairs the obligation of a contract; that the taxpayer, having once made a due tender of coupons in payment of his taxes, is under no obligation to pay such taxes in money, but may rest securely upon his right to have the coupons received when offered, and that a tax collector who attempts thereafter to forcibly collect such taxes by levying upon the taxpayer's property is not shielded by the legislation of the State, but makes the attempt at his personal peril. The court holds furthermore, that a suit brought against a tax collector for seizure of a taxpayer's property, after due tender of coupons, is not a suit against the State, but is a suit against an individual trespasser acting without the legal authority of the State. The opinion was delivered by Mr. Justice Matthews. The chief justice and Justices Bradley, Miller and Gray dissented-Justice Bradley delivering the dissenting opinion. The dissent was on the ground that VOL. 31 No. 18. the suit is substantially against the State. Mr. Justice Bradley says: "The officers have no power but what the State gives them. They act for and on behalf of the State, and in no other way. To sue them therefore because they will not receive the coupons in payment, is virtually to sue the State. The sole object is to coerce the State. To say otherwise is to talk only for effect, without regard to the truth of things. * * * It is said that the government does not represent the State when it does an unconstitutional act or passes an unconstitutional law. While this may be averred when the government of a State attempts to force the State from its constitutional relations with the United States, and to producǝ a disruption of the fundamental bonds of the national compact, and while in such a case it may be admissible to say that the government of the State has exercised a usurped authority, this mode of speech is not admissible in ordinary cases of legislation and public administration. It also tends to sedition by inculcating the doctrine that the government may be treated and resisted as a usurpation whenever the citizen, in the exercise of his private judgment, deems its acts to be unconstitutional. But then it will be asked, has the citizen no redress against the unconstitutional acts or laws of a State? Certainly he has. Whenever his life, liberty or property is threatened, assailed or invaded by unconstitutional acts, or by an attempt to execute unconstitutional laws, he may defend himself in every proper way by habeas corpus, by defense to prosecutions, by actions brought on his behalf, by injunction and by mandamus. But all these means of protection and redress against unconstitutional operation and exaction are a very different thing from the right to coerce a State into the fulfillment of its contracts. The one is an indefeasible right, a right which cannot be taken away; the other is never a right, but may or may not be conceded by the State, and if conceded, may be conceded on such terms as the State chooses to impose. * This is the first time, we believe, since the Eleventh amendment was adopted, that any State has been coerced by judicial proceedings, at the suit of individuals, in the Federal courts. That this is such a case seems one of the plainest propositions that can be uttered. * We have not thought it necessary or proper to make any remarks on the moral aspects of the case." We must say that it seems to us that the majority stand upon rather technical reasoning in holding that the suit is not against the State. We are glad as citizens to see a State held to its contracts, but as lawyers we find difficulty in construing this suit to be other than one against the State. At all events, this dissent is a very formidable one-it is an instance where the tail seems almost strong enough to wag the dog. * * * * * * * The late Earl Cairns, who died on the 2d ultimo, was twice lord chancellor, a Tory in politics, an Irishman by birth, a lawyer of strong and grave talents, but not of brilliancy. Lord Coleridge said man inferior to himself in every respect, and on both those occasions it was Lord Cairns who first came forward with a frank admission of mistake, and with an earnest desire to continue the friendship, which was not only touching and honorable, but which showed that he was as good and as generous as he was great and commanding. As long as I live I shall be proud to think that I could call my friend the great man we have lost." We acknowledge the courtesy of Mr. Albert Matthews in sending us two pamphlets against codification "The Civil Code in California," by John Norton Pomeroy, and "The Definitions of Obligation, Property and Contract, in the Proposed Civil Code," by J. Bleecker Miller. No man 18 more open to conviction on this subject than ourself, but we would like to see the man " who can convince us that we are wrong. IN NOTES OF CASES. of him, in the House of Lords: "Lord Cairns had extent and accuracy of his reading, and the correcta mind powerful enough to throw light and order ness of his literary judgment. Lord Cairns, I dare into the most intricate and complicated facts, while say, was a man who did not readily give his heart. he could unweave the subtlest web of argument; He certainly seemed of a somewhat reserved manand yet he never wasted time or words, but grasped ner, but when he gave his heart at all he gave it more firmly than most men the subjects with which thoroughly. Twice it has come under my own obhe had to deal." His lordship also gave the follow-servation that he had a serious difference with a ing reminiscences, some of which will be peculiarly interesting to Americans: "It chanced from circumstances with which I need not trouble your lordships, that when I was chief justice of the Common Pleas Lord Cairns often consulted me as to judicial appointments which he had to fill, and which had been usually filled by members of the common law bar, with whom in the nature of things he could not have had much acquaintance. I do not suggest that he always took my advice. Lord Cairns was too great a man, he had too independent a mind, not to rely in the last resort upon his own judgment. He used the judgment of other men as materials to form his own. But this I may say, as those who knew him best must know, that he was always guided by the severest integrity, and always animated by a single-minded desire to do his duty as he understood it. It might be said that by those on both sides who disposed of judicial appointments, politics have for many years been disregarded, but any one acquainted with public affairs must know that it is not an easy thing to resist the importunities of men who perhaps from the nature of the case are not aware of the great public mischief that is done by incompetent persons acting in a judicial position. I may venture to say that Lord Cairns paid marked disregard to the importunity of such men, and would not appoint any one whom he did not believe to be fully competent. In one case I suggested to him to fill a judicial position one whose competence no one who knew him would venture to deny, and he declined to appoint him. I may speak of the case now without risk of doing any harm. I suggested that the late Mr. Benjamin should be appointed to the bench a man whom I was anxious to have seen among the judges of England, and who to my knowledge would have felt himself honored by being placed among them. But Lord Cairns refused to consider his claims, and he refused on grounds which I cannot help admitting were at the time urgent and forcible, and would by most men be held to be conclusive. I am sure that in not appointing that eminent person Lord Cairns acted against his own wishes, and on the purest and most patriotic motives. There is one other matter to which I will allude. I have seen it stated where in other respects ample justice was done him that Lord Cairns was cold and ungenial in manner, and that he had very little or no sense of humor. That was not my experience. I do not pretend to the honor of his intimacy, but I can say from what I knew of him, that I always found him most cheerful and amusing, and there were few men who had a keener sense of humor. His literary and classical acquirements I often had occasion to admire, as also the 'N Belo v. Wren, Supreme Court of Texas, January, 1885, 19 Rep. 510, it was held that the proceedings of a legislative committee, empowered to collect and perpetuate evidence of a criminative character, which are merely preliminary, and conducted ex parte and in secret, are not privileged. The court said: "The public are not regarded as having such an interest in proceedings embodying defamatory matter as will outweigh the necessity for protecting the character of individuals, unless they are proceedings of a legislative or judicial character. Cooley Const. Lim. 558; Townshend Sland. and Libel, 411; Sanford v. Bennett, 24 N. Y. 20. This rule includes within itself proceedings of a quasi judicial character, i. e., before a body having the power to hear and determine matters submitted to its jurisdiction by the voluntary consent of its members. Cooley Const. Lim. 448, and note. It is only on account of this judicial character that its proceedings are protected, and to give it such a character it must have authority not only to hear, but to decide the matters coming before it, or to redress grievances of which it takes cognizance. Barrows v. Bell, 7 Gray, 301. But to be privileged the proceeding must have been not only judicial or legislative, but it must not have been preliminary, ex parte, and secretly conducted. Libel, 244; Townshend Sland. and Libel, § 231; McCabe v. Cauldwell, 18 Abb. Pr. 377; McBee v. Fulton, 47 Md. 403; S. C., 28 Am. Rep. 465. There may be cases where a preliminary or ex parte proceeding would be privileged, but as to this we do not decide; but when to these two conditions is Flood added the fact that the proceeding is conducted in secret, we know of no privilege in the law of libel that will protect the publication. Ex parte proceedings have been held privileged where there was a right in the accused to appear and defend himself. If privileged, where this was not the case, it was on the ground that they were open and might be attended by the public, and that their publication was therefore only an enlargement of the area to which a knowledge of the proceedings would otherwise extend. But if merely preliminary, and at the same time ex parte and secret, no policy of the law can be subserved by their publication, which is not overborne by the damage which may result to the reputation of individuals. The accused may escape by reason of having publicity given to the preliminary proceedings upon which his prosecution is to be based. A person may have his case prejudged, and himself so far found guilty in public opinion as to deprive him of a future, fair and impartial trial, without any opportunity of defending himself in the preliminary proceedings; or he may have his character traduced without the slightest intimation that it will be the subject of investigation or discussion. It is true that the same thing may happen in a public trial, but what occurs there is open to the world, and what the public are entitled to witness may in many instances be disclosed to it through other channels. Even this however is not a universal rule, as there are cases where the defamatory matter may be spoken in privileged places when its publication at other places would constitute libel. Cooley Const. Lim. 457 et seq; Townshend Sland. and Libel, § 219, and notes. This is always the case where the proceeding in which it is uttered is of a secret character. Flood Libel, 193, 194. We think that the privilege of publishing defamatory matter is confined strictly to proceedings of a judicial or quasi judicial or legislative nature, and if preliminary and ex parte, they must at least be openly conducted, and subject to the inspection of the public. This is as far as it is necessary for us to go in this case now in consideration. The joint committee appointed by the Legislature of Texas, before whom the defamatory words published by the appellant were spoken, was not a body possessing judicial or quasi judicial powers. It determined nothing; exercised its judgment upon no question requiring judicial action; did not even procure evidence which could be recognized in a court of justice for any purpose whatever. It simply obtained the statements of witnesses under oath, to be used not in a court of justice, but as a guide to attorneys representing the State in bringing offenders against her criminal laws to justice. Nor can its proceedings, in strictness, be termed legislative. The committee was appointed by the Legislature, and was composed of members of that body, but it was to do nothing in aid of legislation-it was not even to The duties report any thing for legislative action. required of it, and the powers granted it, could as well have been discharged and exercised by persons not connected in any manner with the Legislature. The result of its labors was never one necessarily to come to the knowledge of that body, nor to form part of its records in any manner whatever." In Osten v. Morris, Pennsylvania Common Pleas, April 17, 1885, 42 Leg. Int. 171, it was held that the maker and seller of a machine, chargeable with negligence in its construction, is not liable to a third person for an injury sustained in consequence thereof while it is being operated by the purchaser. The court said: "Where there is negligence in a maker of a machine, he is not liable to a third person for an injury received whilst the machine is being operated by a purchaser. The causal connection is broken. Whart. Neg., § 438. Upon the argument a number of cases were cited in support of this principle. We will refer to three of them. Collis v. Selden, L. R., 3 C. P. 495, was where a man who negligently hung a chandelier in a public house was held not to he liable to a stranger upon whom it fell. Justice Byles says: 'This declaration charges negligence, carelessness and improper conduct. Negligence alone will not do, unless some breach of duty is shown.' In Losee v. Clute, 51 N. Y. 494; S. C., 10 Am. Rep. 638, the defendant sold to a corporation a steam boiler negligently made; it exploded and injured the property of the plaintiff, for which he brought suit. It was held that there was no right of action, on the ground that they owed him (plaintiff) no duty whatever at the time of the explosion, either growing out of the contract or imposed by law.' Spencer v. Campbell, 9 W. & S. 34, was an action against the owner and operator of a steam boiler to recover for injuries caused by its explosion. The plaintiff offered in evidence the deposition of its maker, which was objected to by the defendant on the ground that the contract for the boiler was made with him, and it was furnished by him, and that he, the maker, would therefore be liable to an action by the plaintiff Campbell. The evidence was admitted under exception. Judge Gibson thus disposes of this exception: 'It is just as clear that the plaintiff in this suit could not maintain an ac tion against either Boyle, the deponent, or Meixsell, his quondam partner, with neither of whom did he stand on any relation of privity. Boyle therefore was disinterested.' In opposition to this principle there have been cited the cases of Godley v. Hagerty, 8 Harris, 387; Godley v. Carson, 2 Casey, 111; Elkins v. McKean, 29 P. F. Smith, 493; and Deitel v. Hartford Boiler Ins. Co., C. P. No. 3, not reported. The first two cases arose upon the same state of facts. The fall of a warehouse in the occupation of a tenant, and in Hagerty's case an injury to the person, and in Carson's an injury to property. The law of these cases was severely criticised by Judge Black in a dissenting opinion in Godley v. Carson, 2 Phil. 138. The court in the first case, and a majority in the second, held the landlord liable for injuries occasioned by its fall whilst in the possession of a tenant, and heavily overloaded whilst out of his control. In Carson v. Godley, 2 Casey, 121, Judge Woodward says: 'We go not one inch beyond the case before us. We say not that he would be liable if he had sold the building and parted with all control of it.' With such a disclaimer the case is not of much value to this plaintiff. Elkins v. McKean was reversed upon the ground, inter alia, that there was not sufficient evidence to justify 'the submission of the fact of a willful sale by the defendants of such an explosive and unfit oil for burning purposes, with such a willful and malicious knowledge.' The defendants marked their oil as able to stand a fire test of 110 degrees. Does this not authorize a sub-vendor to so warrant it on behalf of the maker, and if so, is there not a contractual relation between the maker * * * and the last vendee? From the following quotation it seems that Chief Justice Agnew had this in his mind: 'The maxim, qui facit per alium, facit per se, applies when the article is thrown into the current of trade on the faith of the affirmation of its manufucturer that it is a fit oil * * * and can be safely used, * ** they cannot * determine how much of the responsibility is due to others.' But be this as it may, willfulness and malice were the grounds upon which the Supreme Court said the action might be sustained, notwithstanding the several hands through which the oil had passed." See Loop v. Litchfield, 42 N. Y. 351; S. C., 1 Am. Rep. 543. 3. W. being on trial for a crime, A. is called as a witness. A question is put to A., to which W. objects to A.'s answering, on the ground that it may criminate A. The objection of W. is not relevant (5). In case 2 (6) it was said: "The only question raised upon this bill of exceptions is whether the defendant had a right to interpose the objection, and require the judge to state the rule of law on the subject, independent of any objection taken by the witness himself. Upon this point the law is very well settled that the privilege of declining to answer questions propounded to a witness, on the ground that the answer will have a tendency to expose him to personal liability or to punishment on any criminal charge, is the privilege of the witness, and not of the party against whom he is called to testify." In case 3 it was said: "The witness could not be required to deliver inculpatory evidence, and it would present a very different question from that before us if her admissions made under these circumstances were resisted in a trial against herself. But if she chose to testify against the defendant he cannot object, because the evidence criminates herself. It was a privilege personal to herself to testify or not. If she waived it, the prisoner connot interpose it to shield himself from the damaging effect of her testimony." A counsel has no right to argue the witness' objection. In King v. Adly (7), a witness for the prosecution, having objected to answering a question, because it might subject him to a prosecution, the attorney-general, who appeared for the defendant, rose to support the objection. Lord Tenterden, RULES AS TO THE PRIVILEGES OF WIT- C. J., who presided, refused to allow this, but the NESSES. VI. RULE. The objection, within the foregoing rules, is personal to the witness, and cannot be availed of by another (1) (a), nor can another than the witness complain that his privilege has been improperly denied (2) (b). | But otherwise where it has been improperly allowed (c). ILLUSTRATIONS. (A) 1. An application is made that A. shall answer certain interrogatories. B., as attorney for A., replies that he believes the questions will criminate A. This is no answer to the application (3). 2. A. is indicted for stealing. W., a witness, is asked by A. if he was not the thief. The public prosecutor objects that the answer may criminate W. The objection of the public prosecutor is not relevant (4). (1) State v. Wentworth, 65 Me. 234 (1875); State v. Foster, 23 N. H. 354 (1851); Janvren v. Scammon, 29 id. 290 (1854); Southard v. Rexford, 6 Cow. 258 (1826); Newcomb v State, 37 Miss. 383 (1859): East v. Chapman, 1 Mood. & Malk. 47 (1827); Thomas v. Newton, id. 48, note (1827). (2) State v. Foster, 23 N. H. 354 (1851); Macarthy v. Bond, 9 La. 351 (1836). (3) Osborn v. London Dock Co., 10 Ex. 698 (1855). (4) Ward v. People, 6 Hill, 144 (1843); Com. v. Shaw, 4 Cush. 594 (1849). counsel for the prosecution having argued that the witness was compellable to answer, he allows the attorney-general to reply. But further on in the trial the chief justice said: "I think I am wrong in having allowed the attorney-general to argue the point at all. It struck me at the time that having heard argument on one side I ought to hear it on the other also. But the privilege is that of the counsel, not of the party, and I think therefore that counsel have no right to interfere for the purpose of excluding an examination, to which, as against their client, there is no objection." (B.) 1. In an action by A. against B., a witness called by A. is compelled (improperly) by the court to answer a criminating question. A. cannot avail himself of this as a ground of error in the admission of evidence (8). In case 1 it was said: "The privilege belongs exclusively to the witness, who may take advantage of it or not, at his pleasure. The party to the suit cannot object. He has no right to insist upon (5) White v. State, 52 Miss. 225 (1876). (6) Com. v. Shaw, ante. (7) 1 M. & Rob. 94 (1831). (8) Cloyes v. Thayer, 3 Hill, 564 (1842); Clark v. Reese, $5 Cal. 89 (1868); see Com. v. Kimball, 24 Pick. 366 (1837); criticized in Com. v. Shaw, 4 Cush. 594 (1849). |