Page images
PDF
EPUB

114 Ind. 20, and Railway Co. v. Sandford, 117 id. 265, that the employee assumes all the risks incident to the service he enters; but we assert that the rule does not apply where a superior agent, representing the master, orders the employee to do a desiguated act, and while the employee is engaged in doing what he was specially ordered to do, that superior, by an act of negligence, causes the employee to receive an injury. The employee in entering the service does not assume a risk created by the negligent act of the master's representative in making unsafe work which he specifically orders the employee to perform. If the master mechanic had been no more than a co-employee working with the appellant, or if the appellant had entered the service knowing that the master mechanic was to work with him, then he would be held to have assumed the risk arising from the master mechanic's negligence while working or acting merely in the capacity of a fellow-servant. We hold that the facts stated in the complaint are sufficient to compel the appellee to answer.

Judgment reversed.

NEW YORK COURT OF APPEALS ABSTRACTS.

ABATEMENT AND REVIVAL-LACHES.-The Code of

Civil Procedure of New York, section 757, provides that in case of the death of a sole party in an action which survives, the court must, on motion, allow or compel its continuance by or against his representative or successor in interest. Plaintiff died thirteen years after the commencement of the action, without having proceeded therewith after the filing of the answer, and after plaintiff's death the case rested eleven years, before the motion to revive was made, and the only excuse assigned for the delay was plaintiff's age, infirmity and illiteracy, and the absence from home during some of the time of two of her sons, one of whom was still alive, and one of the moving parties. Held, that no appeal lies here from an order denying a motion to revive. Coit v. Campbell, 82 N. Y. 509; Lyon v. Park, 111 id. 350; In re Palmer, 22 N. E. Rep. 221. Dec. 3, 1889. Duffy v. Duffy. Opinion per Curiam. Affirming 4 N. Y. Supp. 533.

AGENCY-EVIDENCE.-Where plaintiffs' right of recovery is dedendent upon proof that a certain person was defendant's agent, and the fact of such agency is denied by the defendant, it is error to refuse to permit defendant to disprove the agency by the testimony of the alleged agent. Second Division, Dec. 20, 1889. Rope v. Hess. Opinion by Parker, J. Reversing 43 Hun, 638.

EVIDENCE REVIEW ON APPEAL.- (1) Where evidence which has been stricken out on motion is preserved in the record, and it appears from inspection that its admission would not have affected the decision, the propriety of excluding it will not be considered on appeal. (2) Where a contract sued on was made by a third person, who testifies that he had no authority to bind defendant, and there is no other proof of agency, it is proper to dismiss the complaint. Second Division, Dec. 20, 1889. Deering v. Starr. Opinion by Brown, J. Affirming 54 N. Y. Super. Ct. 554. APPEAL INTERLOCUTORY ORDERS. Under the Code of Civil Procedure of New York, section 190, subdivision 1, which confers on the Court of Appeals jurisdiction to review interlocutory judgments rendered by the General Term of the Supreme Court only on appeal from the final judgment, no appeal from an interlocutory judgment in an action of partition lies here, Dec. 17. 1889. Tilton v. Vail. Opinion by Gray, J. 6 N. Y. Supp. 146.

ASSOCIATIONS

EXPULSION OF MEMBERS-MANDAMUS. (1) The by-laws of an incorporated musical society provided that the directors should investigate all charges against members, that any member bringing charges against another should appear personally to prove them, and that a copy of the charges must be served upon the accused. A member who had been charged with improper conduct appeared before the directors without being served with a copy of the charges, and denied the jurisdiction of the directors because the accuser was not present. Held, that an order of expulsion, entered on such charges during his absence, was void, the want of service not having been waived. Loubat v. Le Roy, 40 Hun, 546, 552, and cases there cited; People v. Protective Union, 47 id. 273; Wachtel v. Society, 84 N. Y. 28. (2) The fact that the by-laws provide for the restoration of expelled members by a two-thirds majority of the members, upon the payment of all dues and an additional fine, does not deprive such expelled member of the right of restoration by mandamus without first applying for restoration under the by-laws, the remedy so provided not being adequate. (3) Upon the awarding of a peremptory mandamus in such case, it is proper to allow the relator the damages suffered by him on account of his unlawful expulsion, under the Code of Civil Procedure of New York, section 2088, which provides, that where return has been made to an alternative writ, the low the relator the damages which he might recover in court shall, on issuing the peremptory writ, alan action for a false return. People v. Supervisors, etc., 28 N. Y. 112; Leeds v. Gas-Light Co., 90 id. 26, distinguished. Second Division, Dec. 20, 1889. People, ex rel. Deverell, v. Musical Mutual Protective Union. Opinion by Bradley, J. Affirming 42 Hun, 656.

CARRIERS-LIABILITY AS WAREHOUSEMEN.—(1) A railroad company received goods for transportation, and give a bill of lading, which stated, that after arriving at their destination, the goods should be held under the liability of a warehouseman, when they were placed in the storeroom, or were to be taken from the car by the consignee. They were kept in a freight car for several days after reaching their destination, and were then destroyed by fire. Before the fire the owner's agent had been wrongly informed that they had been unloaded, at which he expressed regret, and requested the company to store the goods for a few days. Held, that the company was not liable as a common carrier. Fenner v. Railroad Co., 44 N. Y. 505. (2) In an action for goods destroyed by fire while in possession of a warehouseman, where the evidence shows that the fire began in an adjoining building, and fails to show that the warehouseman owned such building, there is a failure to show negligence as to the origin of the fire. (3) In such case, where the goods were stored in a freight car, the fact that such car was not hauled away is not sufficient proof of negligence to justify giving the case to the jury where the fire was a large and fierce one, and there was a vast amount of other property exposed to its attack, and defendant's servants were actively engaged in trying to save what they could. Second Division, Dec. 20, 1889. Draper v. Delaware & Hudson Canal Co. Opinion by Haight, J.; Vann, J., dissenting on last point. Affirming 42 Hun, 654.

INSURANCE-CANCELLATION OF POLICY.- Plaintiff had obtained the policy in suit and four other concurrent policies at the same time, and had only paid enough to satisfy the premium on three of them. This payment had been applied by the insurance agents to the other policies. Plaintiff, who did not know how the payment had been applied, returned two of the policies on which the premium had been paid, and the company cancelled the policy in suit. Held, that the

evidence justified a finding that the policy was cancelled by agreement between the parties. Second Division, Dec. 20, 1889. Von Wien v. Scottish Union & Nat. Ins. Co. Opinion by Haight, J. Reversing 54 N. Y. Super. Ct. 276.

MORTGAGES-CHATTEL-RECORD-BONA FIDE PURCHASERS.-A creditor who receives goods in payment of his debt is a purchaser in good faith within the statute, which declares that an unfiled chattel mortgage is void as against subsequent purchasers in good faith. The defendant's rights, from the time of the sale and purchase and the delivery of the goods, and the giving of the credit in pursuance of the agreement, rested upon the title it acquired under the bill of sale. Youngs v. Lee, 12 N. Y. 551-554; Purchase v. Mattison, 3 Bosw. 310; White v. Bank, 3 Sandf. 222. There are several cases holding that as between a person claiming under an unfiled or void chattel mortgage and a purchaser in good faith in possession of the property covered by the mortgage, the latter will prevail. Weeks v. Zimmerman, 4 N. Y. Supp. 609; Powers v. Freeman, 2 Lans. 127. Second Divison, Dec. 20, 1889. Button v. Rathbone. Opinions by Potter, J., and Follett, C. J. Reversing 43 Hun, 147.

In

REFORMATION-DEED-RESULTING TRUST-DEVISE TO WIDOW-ELECTION.-(1) In an action to reform a deed, it appeared that, on the death of their father, plaintiff, her two sisters and her brother became seized as tenants in common of two tracts of land. pursuance of an agreement of partition, the title to both tracts was conveyed to the brother, who, on payment of $10,000 by plaintiff's husband, was to convey one of them, valued at $20,000, to plaintiff and her husband; the intention being that plaintiff's entire interest in her father's estate should vest in this tract, which would give her an undivided one-half interest therein. Conveyances were accordingly drawn up, but at the request of the husband the scrivener omitted plaintiff's name as one of the grantees. She was ignorant of the request, and both she and her brother believed that her name appeared as one of the grantees in the deed. Held, that though there may have been no intent by the husband to defraud plaintiff, the mistake was sufficient to entitle her to a reformation. Boyd v. De La Montagnie, 73 N. Y. 498. (2) Though the husband acted as plaintiff's agent in the transaction, as the consideration for the conveyance of one undivided half of the land was hers, a trust resulted in her favor, under 1 Revised Statutes of New York, page 728, section 53, which provides that a trust shall result"where the alienee named in the conveyance shall have taken the same as an absolute conveyance, in his own name, without the consent or knowledge of the person paying the consideration.” Reitz v. Reitz, 80 N. Y. 535. (3) The fact that plaintiff accepted a provision for her in her husband's will, which was declared to be in lieu of dower, does not estop her, as against the residuary legatees to whom he conveyed all the residue of "my estate," from afterward asserting title to the undivided half of the land in question, as the husband, who knew that one-half thereof equit. ably belonged to plaintiff, pretended to dispose only of his estate therein. Second Division, Dec. 17, 1889. Haack v. Weicken. Opinion by Haight, J.; Follett, C. J., dissenting. Reversing 42 Hun, 486.

WILLS-DESCRIPTION OF DEVISEE.-A residuary devise "unto my nephews and nieces hereinbefore named" does not include legatees previously mentioned in a separate clause of the will, and described as the children of testator's deceased niece, and nowhere classed with testator's nephews and nieces, to a number of whom legacies are given. Falkner v. Butler, Amb. 514; Shelley v. Bryer, Jac. 207; Cond. Eng. Ch. 97; Crook v. Whitley, 7 De Gex, M. & G. 490;

Cromer v. Pinckney, 3 Barb. Ch. 466; Low v. Harmony, 72 N. Y. 408. Dec. 17, 1889. In re Hunt's Estate; In re Woodward: Gray v. Woodward. Opinion by Dauforth, J. Affirming 6 N. Y. Supp. 186.

ABSTRACTS OF VARIOUS RECENT DE-
CISIONS.

BANKS-APPLICATION OF INDIVIDUAL DEPOSITS TO FIRM DEBT.-A bank may apply the individual deposit of a partner to the payment of a firm debt. Counsel for the administrator insists that the right of set-off by the bank exists only where the individual who is depositor and debtor stands in both these characters in precisely the same relation and on precisely the sition they rely upon the text of 1 Morse Banks, § 326, same footing toward the bank. In support of this poand the authorities there cited. The question was propounded from the bench during the argument whether any different rule applied to a banker than to any other person, to which counsel replied in the affirmative, on the authority above noted. We have examined the text of Morse and the authorities cited by him (except Ex parte McKenna, 30 L. J. Bankr. 20, to which we have not access), and do not think either the text or the authorities cited by him support the view advanced by counsel. Section 334 of the same volume deals with the right of set-off by the bank, but there is no suggestion that a bank may not avail of the right in any case in which another might do so. We have found no case in which a different rule has been applied to banks, and we are aware of no principle upon which it could rest. Morse but asserts as applicable to bankers the rule which is of general application, that to warrant set-off there must be mutuality in the character of the demands. The cases cited by him are: Watts v. Christie, 11 Beav. 546; Ex parte McKenna, 30 L. J. Bankr. 20; Dawson v. Bank. 5 Ark. 283; Axle Co.'s Appeal, 111 Penn. St. 291, and Bank v. Jones, 119 Ill. 407. In Watts v. Christie, after insolvency of the bank, an individual depositor directed the bank to apply his deposit to the credit of his firm, which was indebted to the bank. This the bank refused to do, and the firm sought to obtain the benefit of the individual deposit. Other arrangements of a similar character had been acquiesced in by the bank, and the master of rolls very strongly intimated that an unfair preference had been thus given to those securing transfers, which could be set aside by creditors of the bank. The authority seems to proceed to the extent that even by the consent of the depositor and the bank, the transfer could not have been made. In Dawson v. Bank, 5 Ark., it was held that a bank could not apply the deposit of an individual to the payment of a debt due by a firm of which he was a member. This was put upon two grounds-one, that the charter of the bank prohibited such set-off; and the other was because the debts were not mutual. On the latter ground this decision followed, and was based upon Trammell v. Harrell, 4 Ark. 602, in which it had been held that under the statute of that State controlling set-off a defendant could not set off the joint and several obligation of the plaintiff to himself. This decision was afterward overruled in Leach v. Lambeth, 14 Ark. 668. In Illinois (Bank v. Jones, 119 Ill. 409; Coates v. Preston, 105 id. 473: Gregg v. James, Breese, 143; Burgwin v. Babcock, 11 Ill. 28, and Hilliard v. Walker, joint and several under the statute of Illinois, so as to id. 644) it is settled that partnership contracts are not permit a defendant sued by a single partner on his own demand to set off the debt due him by the firm. Axle Co.'s Appeal, 111 Penn. St. 291, does not touch the question involved. In none of these cases is there any thing said indicating that a bank if sued would

be controlled by any other rule than would apply to other defendants. But it is settled in this State that a demand in favor of the defendant against the plaintiff and another, jointly and severally bound, may be set off against the plaintiff suing alone. Moody v. Willis, 41 Miss. 347. If the bank had been sued by Baley, it might have set off any demand it had against the firm of which Baley was a member, and because it might it could apply his credit to the debt due by said firm. Miss. Sup. Ct., Oct. 28, 1889. Eyrich v. Capital State Bank. Opinion by Cooper, J.

MISAPPROPRIATION

66

ACTION BY

CORPORATION MEMBER. Where trustees misappropriate funds of a voluntary society, claiming the right so to do, a member may institute proceedings for their restoration without demand on the trustees to take action in the matter. The original association was an unincorporated temperance society. It was formed in January, 1859, at the Howard Engine- House by seventeen public-spirited men, who took a pledge to abstain from all intoxicating drinks, except for medical purposes, the necessity of which was to be certified by a physician, and adopted a constitution and by-laws. The initiation fee was fixed at twenty-five cents, and the dues at twelve and one-half cents a week. The name adopted was the "Dashaway Association," the meaning of which is said to be that it was the object to encourage the members and their friends to "dash away' "the intoxicating cup from their lips. In May, 1859, a more extended constitution was adopted. After reciting that the original plans were "to bring under our banner all inebriates, not only here, but in other parts of the State," it provided for the establishment of branch associations, and that all persons admitted as members should take the pledge. The substance of the previous constitution was adopted. The enterprise seems to have received the approbation and assistance of the public. The press gave it encouragement; the Rev. Thomas Starr King consented to deliver a lecture for its benefit; and donations of books, of building materials, and of money were received. On one occasion the association received a donation in money" of $157.50; ou another, a subscription of $1,200; on another, $2,107.83; on another, $134.50; on another, $154.75-and letters of sympathy were received from other States. It 1860 the association purchased a lot on Post street, near Dupont, for the sum of $6,250, and a building was erected upon it for the use of the association. This is the lot which was subsequently sold, as mentioned below. It was mortgaged for part of the purchase-money, and subsequently other mortgages were placed upon it. In 1862 the association was incorporated. The articles were evidently framed under the provisions of the incorporation of "religious, social, benevolent and learned associations." 1 Hitt. Gen. Laws, § 1024 et seq. There was no capital stock. The articles state that the organization was "a benevolent association, formed for the purpose of promoting the cause of temperance." A "home" for the care of inebriates was provided, under the auspices of the association; but for this purpose a separate corporation was formed. The association had a numerous membership. "There were thirty-one hundred and sixtythree names before the incorporation, and forty-nine hundred and sixty-four since the incorporation." In 1882 however, from some cause which is not explained by the record, the membership had dwindled to fiftynine; and in the following year notice was given of a meeting of members to consider the question of selling the property above mentioned, in order to pay the indebtedness, and to reinvest in other property suitable for the association." At this meeting a resolution was passed that the trustees be instructed to sell the property, pay the indebtedness, "and purchase other cheaper property suitable for the uses and pur

poses of the association." A petition for leave to sell the property was accordingly filed in the Superior Court, stating, among other things, that the associa tion was incorporated purely and solely for the benevolent and laudable purpose of aiding and promoting the cause of temperance, and not pecuniary profit; " and the court granted leave to sell, reciting in its order the above-mentioned resolution. The property was then sold for the sum of $156,000. Of this sum $45,000 was used in discharging indebtedness; $31,543.54 was placed in savings banks, where it is to be presumed that it now is; and $73,500 was divided among forty-nine members, including the trustees. We think it clear that any member has the right to the aid of the courts in preventing or setting aside such a plain misappropriation of the corporate funds as is above shown. That any stockholder or member has this right in equity is well established. The rule is thus stated in a recent work: "Even the majority have no right to direct the affairs of a corporation except in accordance with the provisions of its charter, for the powers of the majority are derived wholly from the agreement of the stockholders, as set out in the charter; and every individual stockholder has the right to stand upon his contract, and forbid any departure from its terms. It may accordingly be stated as a rule that any departure from the chartered purposes of a corporation is an injury to every individual stockholder, for which equity will, under proper circumstances, provide a remedy." Mor. Priv. Corp., § 403. Another learned writer says: "It is ultra vires and illegal for the board of directors to donate the funds of the corporation to charitable or public purposes, or to aid corporations of a similar character, however praiseworthy the purpose of the donation may be. Nor can the directors legally use the funds of the corporation to induce promotors to abandon a proposed rival company. A stockholder may enjoin the directors from making free of tolls a bridge from which a corporation derives its income. The directors may be held liable for allowing the president to use the corporate funds for lobying purposes. An unreasonable use of the corporate profits of a leased railroad to build up and improve the lessor railroad, without reference to the rights of the former, has been held to be good cause of complaint on the part of a stockholder in the leased railroad company; and in general, any misapplication or waste of the property of a corporation may be remedied by a member thereof." Cook Stocks, § 674. The Supreme Court of Rhode Island, in reference to the misappropriation of corporate funds by a director, said: "The jurisdiction does not appear to be so firmly settled and defined in England as in this country; but we do not believe any English judge has ever decided that a president or director who fraudulently converts or embezzles corporate funds cannot be sued in equity by a stockholder, when the corporation willfully neglects or refuses to bring the suit. Indeed to hold that a corporation could gratuitously condone or release such a fraud by any thing short of unanimous consent would be monstrous; for it would be, in effect, to hold that a president or director who can control a majority vote in the corporation may rob or despoil it with impunity." Hazard v. Durant, 11 R. I. 206, 207. In accordance with those principles, it has been held that a stockholder may restrain the directors from paying an unfounded claim of the secretary for extra services (Butts v. Wood, 37 N. Y. 317), and may compel the repayment of funds misappropriated by the directors (Sears v. Hotchkiss, 25 Conn. 177), and may recover from a trustee property of the corporation which he has converted to his own use (Carpenter v. Roberts, 56 How. Pr. 216), and may prevent corporate securities from being misapplied to the benefit of other corporations (Chicago v. Cameron, 120 Ill. 447), and may have annulled a lease made in

excess of corporate powers (Mills v. Railroad Co., 41 N. J. Eq. 1), and may prevent the collection of payment of a tax illegally levied (Dodge v. Woolsey, 18 How. 331), and may prevent the payment of dividends out of a fund which ought to have been appropriated to repairs of the company's works (Dent v. Tramways Co., L. R., 16 Ch. Div. 344), and may prevent the couversion of the corporate assets by the officers (Real Estate Co. v. Bank, 75 Ga. 45), and may have restrained acts which amount to a violation of trust, or a breach of the charter (March v. Railroad Co., 40 N. H. 548; Wilcox v. Bickel, 11 Neb. 154; Teachout v. Railway Co., 75 Iowa, 727; Manderson v. Bank, 28 Penn. St. 379), or which amount to a fraud upon the company (Ryan v. Railroad Co., 21 Kan. 365), or to a breach of its charter (Cook Stocks, § 672). In Cali. fornia the rule was laid down in Wright v. Mining Co., 40 Cal. 20, in which case it was held that a stockholder could compel the company to refund the sum paid by him for the redemption of corporate property which the directors had allowed to be sold, and had wrongfully neglected to redeem, and Wallace, J., delivering the opinion, said: "It is settled that courts of equity in this country will, at the instance of a stockholder, control a corporation and its officers, and restrain them from doing acts even within the scope of corporate authority, if such acts, when done, would, under the particular circumstances, amount to a breach of the very trust upon which, as we have seen, the authority itself has been conferred. Dodge v. Woolsey, 18 How. 341. And upon the same principle the court will, even after such an act has been done, relieve an injured stockholder from loss, if, in the mean time, no superior equity has intervened, nor the rights of innocent third parties attached." See also Neall v. Hill, 16 Cal. 145; Beach v. Cooper, 72 id. 99; Chicago v. Cameron, 120 Ill. 458. Now, in the present case there was a plain misappropriation of corporate funds. The corporation was not dissolved, or, so far as appears, to be dissolved. It was a simple case of trustees who were in possession and in control of corporate funds, acting in pursuance of a vote of the majority of the members, "donating" the corporate funds to themselves and other members upon the pretext of "past services," although the fact was, as admitted at the trial, that no services had been rendered other than such as the parties were bound to render as members of the association. The division of more than one-half of the corporate property among forty-nine members was a diversion of the same from the cause of temperance, which was the "benevolent and laudable" purpose of the institution, into the private pockets of said members. Cal. Sup. Ct., Nov. 22, 1889. Ashton v. Dashaway Association. Opinion by Sharpstein, J.

MASTER MCKENZIE'S GOODIES.

(Wharton v. McKenzie, 5 Add. & Ell. 606.)

[The treats of an infant undergraduate at college are not necessaries.]

There went to Oxford University

A youth of fashion and of high degree;

To pine in precincts he reluctant felt,
And so in lodgings in the town he dwelt.
He had respect from provost and from don;
His governor was governor of Ceylon-
Immortalized in missionary hymn,
Though in geography, its place is dim-
That land where heathen bow to wood and stone,
But in their blindness they are not alone.

He had what made him to all tradesmen dear,
An income of two thousand pounds a year;

And they fell down unto a calf of gold,

As did the Israelites in days of old,

And in subservient superstitious zeal

They made obeisance to the younger veal.
This babe got measles and an inflammation,
Which gave the doctors awful consternation.
His medical advisers ordered quiet,
And very simple, unexciting diet-
For instance, fruit and ices, marmalade,
Confectionery-very sore afraid

That grosser victualling might carry off
This nursling patient in consumptive cough.
In worst of doctors' Latin it was writ;
The following was something like to it:

"Fruges terræ quant, suffi.;
Confectiones sacchari;
Marmalad. Cydoniæ;
Etiam glacies, recipe.
Edita sunt ad libitum.
Excitat. prohibitum."

One Wharton did this queer prescription fill,
And thirty-three pounds sterling was his bill;
For the sick lad invited all his mates
To help consume these nauseating cates.
And what a wild debauch those chappies had,
In reckless dissipation rushing mad,
With noise and laughter waking half the town,
And stuffing sweets with naught to wash them down!
But when the bill was borne on spicy breeze
To Ceylon's isle, the prospect did not please
The governor, who in that realm grown hot,
Declared that Wharton might just go to pot.
It angered him that while he pined with heat
He had to pay for cooling things to eat;
He thought of Lazarus and Abraham,
Who wouldn't spare a drop for Dives' damn;
While he was roasting in the isle of spices,
He had no mind for marmalade and ices,
In which his son and heir luxuriated:
And so he Wharton's bill repudiated.
A grosser wrong was never perpetrated.
Wharton, with indignation agitated,
Haled him into the queen's dread judgment-hall;
But there his quest was barren, after all.
Though counsel urged that this was medicine,
The judges thought that argument too thin,
For though such boluses for one might pass,
There was no need to physic the whole class;
Though babes with measles might break out in schools,
The court would not break out of settled rules;
The doctor lawfully might treat the lad,
But he no right to treat his playmates had;
Such dose heroic was unnecessary
For any youth in statu pupillari.

This case is of the first authority-
See Brooker v. Scott (Meeson v. Welsby);
And later, in the Cambridge County Court,
Miller v. Young-I haven't the report.

-Irving Browne, in The Green Bag.

CORRESPONDENCE.

RELIEF OF COURT OF APPEALS.

Editor of the Albany Law Journal:

A condition of things now exists in this State with reference to the court of last resort without a parallel in any civilized community, and especially incon sistent with the theory upon which courts of justice have been organized in this country since the formation of the government. I, of course, refer to the existence of two divisions of the Court of Appeals-one composed of judges elected as other judicial officers are required to be elected, and the other composed of judges selected from the justices of the Supreme Court by the governor and appointed without the consent of the Senate to perform judicial functions other than such as they were elected to perform. An appointment that may or may not last until the expiration of their terms of office as justices of the Supreme Court. The president or governor of any State, when judges

were appointed, could make no appointment without the consent of the Senate. Now, under the Constitution as it has been recently amended, the governor has the absolute power to organize a court of last resort and to appoint the judges thereof. It is a power too great to be placed in the hands of any executive solely, even if the principle were not otherwise objectionable. It is a system opposed to a republican form of government. It is a greater power than the crown of Eng--you are so glad to get it, at even the sacrifice of all land to-day possesses. The only pretended excuse for the conferring of this power is the accumulation of cases in the Court of Appeals and the necessity as far as possible of obviating delays in the hearing of cases. To accomplish this result we have the spectacle of two courts of last resort with the possibility of a conflict in their decisions or at least of views that may make the law still more uncertain.

You have long since carried this account to profit and loss-having reduced to the affirmative the "not pay it." The enclosed P. O. will oblige you to enter "Profit & Loss by Cash "-which illustrates the principle of not having things as you have determined. Again, you naturally expect interest on the account from date-you don't get it. Another example of not |-but, you have this solace-amid the wreck of hopes

It seems to me that the remedy is not to increase the number of judges as is suggested by a recently proposed amendment. This would create an unwieldy court and weaken the authority of its decisions. The true remedy, it seems to me, is to limit the cases that may be appealed. The tendency of modern thought and legislation is as far as is consistent with the rights of a citizen to diminish or restrain litigation within reasonable limits. If a limit say of $2,500 was fixed as the amount involved, below which an appeal could not be taken, as a matter of right the court could within a reasonable time dispose of all the cases before it. If an appeal could not be taken in such cases beyond the General Term, and as to which it would be the court of last resort, such cases would receive much greater consideration at General Term than they now receive, probably because of the knowledge of the fact that there is now a superior court to review their decisions where the amount exceeds $500.

It is not a case of favoring a rich suitor or of injuring a poor one; it stops litigation beyond a certain point and places it within reasonable limits. It would diminish litigation. Whatever tends to that result in jures no one, except possibly our profession. It confers a benefit on the public at large.

The objection to thus limiting appeals is similar to the cry of the demagogue against license laws. They injure the poor man he says, because he then has to pay more to indulge his appetite or has less facility to do so than he would have without such laws. A restraint is thus placed upon the exercise of his free will to drink as much and as often as he pleases, or as much as his purse will buy. The rich man's purse being longer, he is indifferent as to the cost, and such laws are practically no restraint upon him. If liquor selling is prohibited on Sunday, then the rich man who has his wine cellar or facilities for doing so may lay in a stock over night. The poor man, not having these facilities, is obliged to buy his liquor on Sundays, and if he cannot, to go without it. Therefore, says the demagogue, the poor and rich are not treated alike; such laws impugn the Declaration of Independence that all men are created equal, and the former's rights under the Constitution are impaired. Therefore such laws should not be enacted.

[blocks in formation]

those considerations. Yours Phylosophically, John Doe."

It has been said that he (Sir Henry Manisty) had no humor, but there is a tale told of the judge that some time ago he consulted an eminent physician on the state of his health. When questioned as to his diet, he replied that he drank good part of a bottle of port a day. The physician said: "That will not do; we must knock off that." The judge complied for a fortnight, and came back to say that he was no better and rather worse. The physician suggested that perhaps after all the change of habit had done more harm than good and advised him to return to his usual habit. Whereupon the judge said: "That is all very well; but how about the arrears?" The physician shook his head at this judicial devotion to clearing his list, but it is not impossible that the second prescription helped the judge to do what is the duty of every good judge -"keep down the arrears."-London Law Journal.

Dr. Thomas Door Crosby caught a tartar when he brought about the arrest of Jerome Hopkins for libel in sending him abusive poetry on postal cards, because Crosby refused to pay his subscription to one of Hopkins' concerts. Hopkins was tried at the Old Bailey before a jury, and though he was found guilty and compelled to enter into his own recognizance in £100, and to find one surety in £50 to keep the peace, he had fun enough with Dr. Crosby to compensate all his troubles. Hopkins addressed the jury for two hours, keeping them, the judge, spectators, and even Dr. Crosby's counsel in a continuous roar of laughter, while the doctor himself writhed in his chair, and doubtless wished from the bottom of his heart that he had paid the guinea when his tormentor asked him for it. It was such a scene as the Old Bailey never witnessed before, and when the case was concluded a throng of bewigged English barristers crowded about the American musician, offered their congratulations, and advised him to give up music and devote himself to the bar.-American Musician.

[blocks in formation]

JUDGMENTS AFFIRMED WITH COSTS.

John Danaher, administrator, appellant, v. City of Brooklyn; Jacob Ouderkirk, respondent, v. Central National Bank; Wm. H. Hollister v. Same; Harriet Beals, appellant, v. New York Central and Hudson River Railroad Company; Board of Supervisors of Erie County v. H. R. Jones, appellant; People, ex rel. P. Vaughn, etc., appellant, v. Board of Supervisors of Rensselaer County: Jeremiah Sullivan, etc., v. New York and Rosendale Cement Company, appellant; Robert Soltau, respondent, v. Otto Gerdau; Mary Costello v. Second Avenue Railroad Company, appellant; Thomas (). Bullock, etc., v. A. W. Oppmann, etc., respondent; Thomas E. Kane v. City of Troy, appellant; Daniel Magee v. City of Troy, appellant; James

« PreviousContinue »