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Entered, according to act of Congress, in the year eighteen hundred and seventy-six, BY WEED, PARSONS AND COMPANY,
In the office of the Librarian of Congress, at Washington.
THE ALBANY LAW JOURNAL:
A WEEKLY RECORD OF THE LAW AND THE LAWYERS.
THE Index to Volume Twelve will be issued with the next number.
The Albany Law Journal.
ALBANY, JANUARY 1, 1876.
THE Report of the Committee of the Bar Associa
tion upon Litigated Business is a suggestive
document, and one that deserves the serious consideration of every one interested in the prompt and orderly administration of justice in the city of New York. There are in that city four courts of civil jurisdiction, not including the Surrogates' Court, nor the District Courts, nor the courts having only criminal jurisdiction. These courts are the Supreme, the Superior, the Common Pleas and the Marine, and number twenty-three judges. The Committee show that in these courts four systems of practice have grown up, differing, in many respects, the one from the other; that each having a General Term of primary appellate jurisdiction, opposite and conflicting rulings are frequently made; that "the different modes which obtain in making up, arranging, correcting, calling and disposing of the calendars of these various courts, and the modes of bringing on and hearing both enumerated and non-enumerated motions, give rise to needless confusion, delay and diversity of practice;" and that the judicial force and labor is unequally distributed. These are among the evils pointed out and dwelt on at length in the report. Among the remedies proposed are: A consolidation of the four courts named, or of the three first named; one or two judges to be detailed for ex parte motions and orders; one or two others for chambers for non-enumerated motions; one General Term of five judges; a sufficient number of judges assigned to hold Special Terms for trial of Equity Causes; one judge to constantly hold a trial term for short causes; the remaining judges to be assigned to common law trial terms. The Committee have drafted and recommend the adopVOL. 13.- No. 1.
tion of an amendment to the constitution necessary to carry out their suggestions. The report was discussed at a meeting of the Association on Tuesday, but no action was reached.
The Saints purpose to make the case of Reynolds, who was recently convicted of bigamy, a test case, and to abide by the decision of the Supreme Court of the United States thereon. Chief Justice White,
in charging the jury, admitted that the defendant had a right to his religious belief so long as it was confined to mere matters of faith, but charged that such belief was no excuse for practices contrary to the laws of the United States. But the Mormons Supreme Court upon an article in the treaty of base their expectation of ultimate success in the Guadaloupe Hidalgo, guaranteeing to all inhabitants of territory thereby acquired from Mexico the free exercise of their religion. Utah was a part of such territory, and the Mormons were there at the time that all laws placing a restraint upon that practice and in the practice of polygamy, and they now insist are unavailing as to them. It is stated that the Mormons are confident of the correctness of their
assumption, and sincerely desirous of bringing the question before the Supreme Court.
The question whether one returned to this country under extradition proceedings can be tried on a charge other than that for which he was extradited, is not likely to be at present tested in the Lawrence case. The indictment against him contained nine counts, only four of which covered charges upon which he was extradited. District Attorney Bliss desired to try him on all the counts, but the Attorney-General writes: "I now repeat what I have heretofore written with carefulness and urgency, and what I carefully tried to impress upon you when I saw you here, that for grave political reasons Lawrence must be tried upon the charge upon which he was extradited, and upon no other, until that trial is ended; and whether subsequent proceedings for other crimes
shall or shall not be taken must await the order of the President. Now, upon the examination of the papers, it is perfectly easy for you and the court to determine upon what charge Lawrence was extradited, and to proceed to try him upon that charge, and upon that only. This is a matter of very great importance, and you must not blunder in it. There are consequences involved in it of a serious nature, as I have already verbally told you, and we want to proceed in strict conformity with international law and international courtesy. Therefore, I merely add, try him first upon the charge for which he was extradited, and for that only. This instruction is so specific and so definite that it does not seem possible that an honest mistake can be made in this case."
Although the English Judicature Acts have been in operation only a month, the advantages they confer upon suitors are admitted by our English contemporaries to be distinctly perceptible. Especially is this said to be true of the provision which enables a defendant to insert a counter-claim in his statement of defense, and thus avoid the necessity of bringing a cross action. The Law Times says that a large number of cases heretofore commenced have been continued under the new procedure, for the purpose of enabling one of the parties to the action to avail himself of one or another of the benefits which the Acts bestow. It was not unnatural to expect that the Acts would at first be found to work badly, and the change be received with much disfavor, but such seems not to have been the case. The Law Times has already reported some one hundred and fifty orders and decisions on points of practice. What a fine field Mr. Howard would now have in England.
The London correspondent of the Tribune recounts a bit of judicial flunkeyism that does not accord well with the general notion of the independence of the English bench. The coroner's jury to ascertain the cause of the death of those killed when the Queen's Yacht ran down the Mistletoe were unable to agree, and Baron Bramwell was called upon to advise or "charge" them. In doing so he took up the cause of Captain Welch, the sailing-master of the Queen's Yacht-whom nine people out of ten thought responsible for the disaster-and defended him with all the warmth of an advocate. He told the jury to ask themselves whether they ought to punish Captain Welch, "notwithstanding any injury or loss of honor that might result; " that Captain Welch and his people swear they were right, "and that is a great thing in their favor;" that he thought it would be very unjust to blame the captain for running at a high speed on this occasion, because he had always done it. And then he added: "As
Englishmen, I should like to know whether you would not be proud to think that the Queen went at a greater pace than anybody else!" Of course, added Baron Bramwell, the Queen would never sanction any thing that would endanger her subjects' lives, "but that she should be able to travel fast is a matter of admiration to us all!" It has been done for years, he adds, “but when an unfortunate accident arises, a jury is invited to find a criminal verdict. Is it just and would it be reasonable?" Lest even this should not be sufficiently clear, he declared to the jury that "a verdict against Captain Welch would give great pain to her majesty." We thought the time had gone by when the personal influence of the sovereign would be invoked by an English judge to control the verdict of a jury.
The decision of the English Court of Common Pleas in the case of Marshall v. Green, which we give in another column, is a new and instructive addition to that "incoherent mass of cases," as to whether the sale of standing timber conveys interest in land, within the Statute of Frauds. The conflict which exists in the English cases is illustrated by a remark of the late Lord Abinger in Rodwell v. Phillips, 9 M. & W. 505, that “It must be admitted, taking the cases altogether, that no general rule is laid down by any one of them that is not contradicted by some other," and the American cases are no better. We shall not, at this time, attempt any consideration of the various Americar cases. In the English case Lord Coleridge declined to lay down any general rule, but Mr. Justice Brett lays down some rules which would be likely to afford a satisfactory settlement of the vext question, should they be followed. "It seems," said he, "that if the thing growing in the land is to be delivered at once by the vendor, the contract is within the 17th and not within the 4th section, and this seems to be so, even if the thing is to remain in the land until the delivery by the vendor, when the purchaser is to have no property in the thing sold until severed by the vendor. Where the thing sold comes under the denomination of fructus industriales, it is a sale of goods, although it is to be taken away by the purchaser, and is to derive nutriment from the land until taken away. If the thing sold does not come under the denomination of fructus industriales, the question then is, can it be gathered from the contract for whose benefit it is to remain in the land? If it is to remain in the land for the benefit of the purchaser, then some part of the contract is for an interest concerning land, and the contract falls within the 4th section, though the thing, when severed, would be a mere chattel. If the thing is to be severed and taken away at once, then the purchaser is to have no benefit from the land."
NOTES OF CASES.
NOVEL question of maritime law was decided by Sir R. Phillimore, of the English Admiralty Court, in the case of The Moxham, 33 Law Times Rep. (N. S.) 463. The suit was instituted by an English jointstock company, who were possessed of a pier at Marbella, in Spain, against the steamship "Moxham," for damages done to the pier through the negligent navigation of the ship. The owners of the Moxham intervened, and claimed that the laws of Spain governed the matter, and that by such laws they were not liable. Sir R. Phillimore, in delivering judgment, said, among other things: The damage of which complaint is made must be taken to have been inflicted by a British merchant vessel while in waters subject to the admiralty jurisdiction within the ebb and flow of the tide, upon a pier in the territory of Spain. The act of injury, therefore, was done from the merchant vessel at sea, though the object injured was situate on the land. The defendants contend that in these circumstances this court must apply the local law, which, as they allege, exempts the ship from liability, and neither the lex fori nor law of the flag, under which the ship, if properly navigated, would be liable for the damage. Various cases were cited in support of this proposition, among them Dobree v. Napier, 2 Bing. (N. C.) 781, and Phillips v. Eyre, as decided in the Queen's Bench and in the Exchequer Chamber, L. R., 4 Q. B. 225; 6 Q. B. 1. But the latter of these cases was in great measure dependent upon peculiar circumstances, and upon the powers of a colonial legislature as recognized by the law of the Empire. And in the former case, the alleged tort arose out of an act of an officer of a foreign state, acting, as the court held, lawfully in the seizure on the high seas of a vessel breaking the blockade, and therefore committing no trespass. Both cases, moreover, turning upon acts of State, afford no safe analogy upon which the court could rely. Upon behalf of the plaintiffs these cases were more especially relied upon. Regina v. Anderson, L. R., 1 C. C. R. 161; Lloyd v. Guibert, L. R., 1 Q. B. 115; 6 Best & Sm. 100, and The Halley, L. R., 2 P. C. 193. In the first case, which related to a charge of manslaughter committed on board an English vessel, within a French river where the tide ebbed and flowed, Bovill, C. J., said: "There is no doubt that the place where the offense was committed was within the territory of France, and that the prisoner was, therefore, subject to the law of France, which that nation might enforce if they thought fit; but at the same time he was also within a British merchant vessel, on board that vessel as a part of the crew, and as such he must be taken to have been under the protection of the British law, and also amenable
to its provisions." And in this view the other judges seem to have concurred. It seems hardly necessary to refer to other cases, but I would observe that the case of Lloyd v. Guibert establishes that in a case of contract the responsibility of the owner of a vessel for the acts of his servants is governed by the law of the flag. With regard to The Halley, I think it unnecessary to enter into an examination of that case, the decision in which is of more indirect application; but I agree with the counsel for the plaintiffs that it points in the same direction. Upon the whole I am satisfied, both upon principle and upon the authority of precedents, that the Spanish law is not applicable to the present case, and that the fourth article must be reformed by striking out all that part which pleads the Spanish law, that is, all the words after the words "the land of Spain."
The Supreme Court of Pennsylvania, in First National Bank v. Graham, 2 Weekly Not. Cas. 141, decided a question in the law of bailment relating to the liability of national banks in case of loss of bonds deposited for gratuitous keeping. Among the instructions given by the court at the trial was the following: "If the gratuitous bailee takes the same care of the goods bailed that he does of his own, that ordinarily repels the presumption of negligence. The desire to preserve one's own property from loss from any cause is, as a rule, so universal that the mind rests with satisfaction on the evidence which shows the same care of the bailed property which the bailee took to save his own, unless it was shown that he was grossly negligent as to both. And when this is done he is not excused, but held answerable." This was held unobjectionable. Whether the bank was guilty of such gross negligence as to make it liable, was a question which, like any other fact in the case, was for the jury to decide. It was further held that the mere voluntary act of the cashier in receiving the plaintiff's securities would not subject the bank to liability. But if the deposit was known to the directors, and they acquiesced in its retention, a contract relation was created by which the bank should be held bound, notwithstanding the bank had no express power by charter to receive such deposits. Foster v. Essex Bank, 17 Mass. 479, was cited by the court in support of this doctrine. The New York case of First National Bank of Lynn v. Ocean National Bank, 11 A. L. J. 250, and the Vermont case of Wiley v. National Bank of Brattleboro, id. 314, so far as it conflicts with this rule, were disapproved of. In the latter case it was held that the taking of special deposits to keep, merely for the accommodation of the depositor, is not within the authorized business of a national bank.