The Albany Law Journal.

DAYS

ALBANY, NOVEMBER 28, 1896.

Current Topics.

AYS nominated for special functions and particular objects bring not only time for rest, but opportunities for thought and reflection. To-day perhaps we have too much given up Puritanical self-inspection, and in the hurry of our lives fail to give proper attention to past events and to their effect. Thanksgiving is a day designated by authority and established by custom; its primal characteristics have been rather lost in the country's development, which give a stronger reason for its proper observance. Some day every year may be well chosen by lawyers, to reflect on the changes which have taken place in jurisprudence and their effect on society. Few of us are richer than we were a year ago. Many of us are poorer, and unless we begin seriously to effect simplification in our courts, our procedure, our reporting, our reports, our ideas, and our actions, a large majority of us will die poorer than we now are. Why is this? Take an ordinary action on commercial paper. The service is made, the answer appears, the trial generally postponed from time to time, and sometimes it is decided at the end of a trial and two appeals in, say, three years, and again it takes longer for a new trial and a few more appeals. Now, business interests neither wish delay nor desire to pay for expounding and interpreting laws of practice. What they do want is a quick decision and relief from continued worry and anxiety, and until we band together and gain such an end we will continue to find ourselves more and more void of clients and what they bring. This is no new scheme of ours, but it comes to mind at each anniversary, and is getting worse because lawyers feel it more each year and know the exact cause and its remedy. Again, the tone in our profession is not being raised

from year to year.

That the lawyer's work offers many temptations, and often calls for a nice discrimination between good and evil, is certainly true. Its opportunities for mischief are unsurpassed. While the profession, in the persons of its good VOL. 54 No. 22.

members, is a bulwark of society, it is also, in its bad members, a menace, and an intolerable nuisance. No one knows so well as a lawyer what activity for evil goes on in the profession. We have no interest whatever in denying this. Our safety is rather in admitting it. Some considerable part of the daily friction of life, its teasing obstructions, interferences and petty nuisances, must be laid at the door of lawyers; and of the greater iniquities, the frauds of trade, the malignant combinations, the perverse and corrupt legislation, the miscarriage of justice, a fair share is planted, watered and brought to ripeness with the assistance of lawyers, and when attacked, is zealously, and often too successfully, defended by lawyers, and not always by the most obscure. Society finds among its great dangers that the worst attacks made upon it are often planned with an ingenuity which no other profession can supply. Mr. Bryce, that most indulgent critic of our American institutions, remarks that some judicious American observers hold that a certain decadence in the bar of the greater cities has been noticeable of late years, and they declare "that the growth of enormously rich and powerful corporations, willing to pay vast sums for questionable services, has seduced the virtue of some counsel, whose eminence makes their example important."

Against such evils within its own ranks the profession hardly attempts, by any regular discipline, to guard itself. Something is done by way of disbarment, and this is of great value, so far as it goes, in cases of unprofessional conduct which could not otherwise be reached. But is there a bar in the country which attempts to purge itself with any thoroughness. The profession cannot undertake to protect society by guaranteeing the moral character of its members. This could hardly be attempted without adopting all the closeness of a guild, and that would not improbably foster and protect more evils than it would prevent. We must be permitted, as a profession, to disclaim responsibility for unworthy members, except to the limited extent that cases of professional misconduct can be dealt with, and the tares and the wheat must, for the most part, grow together until the harvest. The world must make its own discrimination, and perhaps the most that we can do is to encourage publicity,

his special labors was theoretically distinct, though subsidiary, and practically indispensable, to the former. It was what may be called the logic of law, as distinguished from its morality or expediency. Its purpose was that of clearing up and defining the notions which the human mind is compelled to form, and the distinctions which it is obliged to make, by the mere existence of a body of law of any kind, or of a body of law taking cognizance of the concerns of a civilized and complicated state of society. A clear and firm possession of these notions and distinctions is as important to practice as it is to science. For only by means of it can the legislator know how to give effect to his own ideas and his own purposes. Without it, however capable the legislator might be of conceiving good laws in the abstract, he could not possibly 'so word them, and so combine and arrange them, that they should really do the work intended and expected. These notions and distinctions form the science of jurisprudence as Mr. Austin conceived it. But though the work which Austin did neither would nor could have been done if Bentham had not given the impulse and pointed out the way, it was of a different character from Bentham's work, and not less indispensable.

Austin does not specially contemplate legal systems in reference to their origin, and to the psychological causes of their existence. He considers them in respect of what may be called their organic structure. Every body of law has certain points of agreement with every other, and between those which have prevailed in cultivated and civilized societies, there is a still greater number of features in common. Independently of the resemblances which naturally exist in their substantive provisions, there is also a certain common groundwork of general conceptions or notions, each in itself very wide, and some of them very complex, which can be traced through every body of law, and are the same in all. These conceptions are not pre-existent, they are a result of abstraction, and emerge as soon as the attempt is made to look at any body of laws as a whole, or to compare one part of it with another, or to regard persons and the facts of life from a legal point of view. There are certain combinations of facts and of ideas which every system of law must recognize, and certain modes of regarding

facts which every such system requires. The proof is, that all legal systems require a variety of names which are not in use for any other purpose. Whoever has apprehended the full meaning of these names, that is, whoever perfectly understands the facts and the combinations of thought which they denote, is a master of juristical knowledge; and a well-made lexicon of the legal terms of all systems would be a complete science of jurisprudence, for the objects, whether natural or artificial, with which law has to do must be the same objects which it also has occasion to name."

In order to try to gain something in the way of reform of our procedure and simplicity in practice, we intend to devote two issues in December to the subject of changes in our own State, and hope that another year will see some modification along the lines of brevity and conciseness.

It is satisfactory to learn that there is reason for believing that the rules of the road at sea prepared by the international marine conference which was held in Washington in 1889, will go into effect on the first of next July. One reason for the delay in enforcing these has been the resistance encountered in the maritime circles of some of the European nations; but by degrees this opposition has been overcome in a realizing sense that, whatever local differences of opinion there might be, the rules, on the whole, were a great improvement upon existing regulations, and were probably as satisfactory as any international code that could be devised. The conference of seven years ago was attended by representatives of practically all of the leading nations of the world, France, Germany, Great Britain, and the United States sending, naturally, the largest delegations. Capt. James W. Norcross, who is one of the pilot commissioners of Boston, attended as one of the delegates appointed by our government. The conference was presided over by Admiral Franklin, and the result reached, as the outcome of its deliberations, was not a little due to his tact and good judgment. Practically all of the maritime nations of the world, with the exception of Norway and Sweden, have concurred in the adoption of these regulations, and when one takes into account the enormous increase in ocean commerce that each decade

Moreover, the Constitution places it in their power to make suggestions to the legislature which would correct abuses. But they all have totally disregarded this provision for years, except Judge Gibbons. He alone has prepared such a report, and put it in the way of accomplishing good.

"But, if the judges do not wish to go to the legislature, and hold, as the Supreme Court did in the Torrens case, that its prerogatives cannot be prescribed by the legislature, it follows that the judiciary can, if it chooses, make such rules for its own government as will correct these abuses. At all events, there is plainly much for the judges to do in the interest of the people and justice."

Judge Gibbons, who has sent in his report to the governor, stated: "I think if the judges should send in these reports, and, when requested by the governor, put their suggestions in the form of bills, it would not be long before many of the worst abuses in procedure would be corrected. I intend to embody the suggestions I have made in new biils for the next legislature. Of course, they would have more force and effect, it they were also recommended by the chief justice of the State.

There are, doubtless, many costly delays in trials; but the present tendency of the Supreme Court is to decide cases upon their merits, disregarding the technicalities. This tendency is shared by all the courts of the country; and I think the time will come when the courts will disregard all technical defects when they stand between them and the proper administration of

justice between litigants. At the same time, there are certain elemental principles which have become maxims of law, and which ought not to be overthrown, because the enforcement of them is necessary for the well-being of the people and the perpetuity and stability of

tenures."

A case which may be said to rather add to the large number of former adjudications than to enunciate anything of a startling nature, is that of Farmer L. & T. Co. v. New York & Northern Ry. Co. et al., 150 N. Y. 410.

business of the former, its officers and directors assume the same trust relation towards the minority stock of the corporation controlled that the corporation itself usually renders to the stockholders; and where it has made use of such trust relation to further some selfish interest, it is sufficient to set a court of equity in motion and to require the stockholders of the corporation to explain such a transaction. The facts are that a court of equity was called upon to exercise its functions when two of the defendants set up the defence of constructive fraud in an action to foreclose a second mortgage upon the property of the New York and Northern Ry. Company. The opinion of the court is long, but particularly interesting, and cites many prior decisions of their court to sustain the holding to which we have referred. Our attention is, however, chiefly directed to the quare as to whether or not this decision will be of material benefit upon the new trial which is granted, and whether it will be possible to defeat the foreclosure of the mortgage in case they show constructive fraud, collusion, or that the controlling corporation is attempting to defeat certain rights. very nature of the control of a corporation and the methods which are used to secure such power, it will be of peculiar interest to see whether the theory of the decision effectuates itself in the same kind of relief for the injuries which are so common, and yet, which are the resultant of corporations which we consider are of vital importance in commercial and business

ventures.

From the

There is a great deal of nonsense in the claims of some, as to the evils of corporations, while the same persons fail to see how much benefit corporate bodies result in. Naturally, we must expect in corporations as in governments, in which the majority shall rule, that numbers are important and the only danger

we have ever discovered is in the so-called "freezing out" process, which is the natural result of the possession of power in such bodies.