SOLICITORS AS OFFICERS OF THE COURT THE plead his own cause, lawyers are a class of the community who, by study and experience, have acquired the art and power of arranging evidence and of ap- THE question as to the liability of a solicitor for plying to the points at issue what the law has settled. the payment of trust funds lost through his A lawyer is to do for his client all that his client negligence, though the person who has sustained might fairly do for himself if he could. If by a the loss was never in any contractual relation to superiority of attention, of knowledge, of skill, and a him, has recently been brought before the courts better method of communication he has the advan- again in the case of Marsh v. Joseph. The rule was tage of his adversary, it is an advantage to which he first laid down in the case of Ezart v. Lister, 5 Beav. is entitled. There must always be some advantage 585, where Lord Langdale says: "There is no on one side or the other, and it is better that advan- doubt that, if a solicitor. knowing that money tage should be had by talents than by chance. If which is in court belongs to one person, presents a lawyers were to undertake no causes until they were petition in the name of another and obtains paysure they were just, a man might be precluded altoment, he is personally liable for the amount. I go gether from a trial of his claim, though were it judi- further; if he has not the knowledge of the fact, cially examined it might be found a very just claim." but has knowledge of circumstances which, if duly Boswell feared that the affectation of warmth in a considered, would lead to a knowledge of the fact, client's cause might produce habitual dissimulation. he must be made personally answerable for that "Why, no, sir, a man who is paid to tumble loss which his want of due consideration has occathe metaphor is not flattering to the lawyer will sioned." In a later case this doctrine of duty of not go on tumbling when he is not paid for it." solicitor as officers of the court was stated to make Lawyers cultivate the diffuser graces of rhetoric. them responsible for a due discharge of their duties They are sometimes accused even of garrulity. "It is unjust, sir,” said Johnson, "to censure lawyers for multiplying words when then argue. It is often necessary for them to multiply words. This," he said, referring to some point, "you must enlarge on when speaking to the committee (of the House of Commons). You must not argue there as if you were arguing in the schools. Close reasoning will not fix their attention. You must say the same thing over and over again in different words. If you say it but once they miss it in a moment of in attention." On many other legal questions, on entail, on Sunday consultations, on reports of cases, the doctor's opinions are wise and weighty. No one was more rapid in detecting a fallacy or more ruthless in exposing it. "I repeated to him," says Boswell, "an argument of a lady of my acquaintance who maintained that her husband's having been guilty of numberless infidelities released her from her conjugal obligations because they were reciprocal." Johnson: "This is miserable stuff, sir. To the contract of marriage, besides the man and wife, there is a third party society — and if it be considered as a vow, God; and therefore it cannot be dissolved by that consent alone. Laws are not made for particular cases, but for men in general." This is a truth too often forgotten, especially in matrimonial squabbles.- London Law Journal. COVENANTS-PLEADING.-In an action for damages for breach of covenant, defendant's piea of conditions performed is properly rejected where it fails to show specially the time, place and manner of performing each condition. (Norfolk & C. R. Co. V. Suffolk Lumber Co. [Va.], 23 S. E. Rep. 737.) they had undertaken, and to extend to mere neg lect as well as to misfeasance. The law is fully examined and expounded in the case of Re Dangar's Trusts, 60 L. T. Rep. 491, where Mr. Justice Stirling concisely states the principle in the following words: "The solicitor took upon himself a duty as an officer of the court, and he must be held responsible for the discharge of his duty-that of bring ing before the court all matters which were essen. tial for the court to know in order that it might deal properly with the fund." In this case (Marsh v. Joseph) the solicitor's name, it appears, had been used without his consent or knowledge in proceedings which had been fraudulently taken to obtain money out of court. When it came to his knowledge that his name had been used, but without notice of anything fraudulent, he received his share of the costs of the proceedings. Though," as Mr. Justice Kekewich says, had been improperly done towards himself cannot be said to put him on inquiry so as to give him notice of the greater iniquities, yet I consider that, as an officer of the court, he had no right to condone the impropriety without first ascertaining that all that had been done in his name had been prop "what erly done, and that the proceedings had been so conducted that all matters which were essential for in Dangar's Trusts, a step further, for a solicitor seems now to be liable for condoning an irregularity on the part of another solicitor, if he shall have neglected to inquire fully into the circumstances of that irregular act, and loss should arise in connection with that proceeding. This is of great importance to the profession, for it still further extends the liability of solicitors as officers of the court, and certainly now it will put all on inquiry where any impropriety or irregularity involving their action as such is brought to their knowledge. Law Times. - THE REPORTS. 0 N the 2d of December last, among the general rules of practice adopted by the judges of the Appellate Division of the Supreme Court of this State was rule 43, containing the following provision: "All cases cited on the briefs from the courts of this State shall be cited from the reports of the official reporter, if such cases shall have been reported in full in the official reporter." This rule was adopted presumably after due deliberation by judges of experience, and seemed to present a possibility of getting rid of the nuisance of duplication of reports, which has become a serious matter both for our purse and our time. And yet, when this rule has been in force only about six weeks, an attempt is being made to nullify it by the introduction into the Legislature of a bill which provides that no rule shall be made or enforced requiring attorneys "to cite from any reports prepared by the official reporters in reference" (preference) "to other published volumes of reports." Surely this is a matter in regard to which the judges are entitled to express their wishes, and a court which spends a large part of its time in the examination of cases is certainly also entitled to indicate its preference as to how these cases shall be cited. If the official reports were expensive or badly done, or were for any reason unacceptable to the bar, then it would be proper to abolish them en- | tirely and leave us to the tender mercy of "private enterprises," which would give us all sorts and kinds. But it is not understood that any fault is found with the official reports, or that the cases are not promptly and faithfully reported in them. The only grievance alleged is that the rule is aimed at the unofficial series, of which there are several. It has also been alleged that it is a hardship to members of the Bar who have the back numbers of the unofficial series to compel them to start in at this time and buy the earlier volumes of the official reports. But this is not at all necessary, each of the two leading series of unofficial reports contains tables of reference to the cases in the official reports, and every case heretofore unofficially reported may be found readily, if it is contained in the official reports, by means of these tables. So this hardship does not exist. As to the system of reporting, the very object of the establishment of the official reports was to discourage unofficial reporting and do away with the reporting over and over again of the same case. The evil is not only the duplication; in some instances cases appear in these unofficial reports in which the opinions had not been revised by the judges and were not verbally, at least, correct. In one instance, an opinion which had been ordered canceled by the court appears in full in one of these series as an official opinion. It was to attain the result aimed at by the official series, namely, the prevention of useless trouble and labor to the bar and the bench that several series of law reports, namely, Abbott's New Cases, Jones and Spencer Reports, Daly's Reports and Connoly's Surrogate Reports were voluntarily discontinued. There are many considerations which might be presented in connection with this question of official reporting, into which it is not necessary at this time to go, our only object being to point out that the judges were certainly entitled to make such a rule if thereby they could decrease the labor of examination of cases (always a heavy one, and under the new system especially so) without imposing any very great hardship upon counsel. In other words, if the needs of the bench and bar can be better subserved by having one official series instead of three or four, it would seem that the rule is a very reasonable one. amount for which he was liable as surety on the promissory note out of the money in court, or in the hands of the receiver in the action, though the executor's claim had not been made until after the chief clerk's certificate had been filed. (Re Giles; Jones v. Pennefather; Chan. Div. 74 L. T. Rep. 21.) or any part of the income which accrued down to the date of her attaining twenty-three in payment of the past maintenance of the two children, and to apply any part of the income which has accrued since that date, or should accrue before the younger child attained twenty-three, in or towards his maintenance. (Chan. Div. Re Wise; Jackson v. Parrot, 73, L. T. 743.) EXTRADITION. - By an extradition treaty made between the British and Belgian governments — to which the Extradition Acts were applied by Order SETTLEMENT POWER. Under certain settlein Council it was provided that: "In no case nor ments S. had power of appointment over certain on any consideration whatever, shall the High Con- property in which he had a life interest. He retracting Parties be bound to surrender their own leased this power, and with his daughter, who besubjects." came absolutely entitled in default of any appointHeld, That, under this treaty, while the executivement under the power, mortgaged the property. S. government of this country are not bound to surrender a fugitive criminal who is a British subject, they have a discretion to surrender and may surrender such person, although a British subject, upon a prima facie case being made out, and the requirements of the Extradition Acts being duly complied with. (Q. B. Div., Re Galwey, 73 L. T. 756.) INFANT MAINTENANCE.-W. by will directed his trustees to apply the whole of the income of his personal estate, or such part as they should in their absolute discretion think fit, in or towards the maintenance, education, apprenticeship, or in any other manner for the benefit of the child or children of his sister J., until they should respectively attain the age of twenty-three years, and to accumulate the residue of such income; and he gave the capital of his said personal estate to such of the children of J. as should attain the age of twenty-three years as tenants in common in equal shares. W. died in 1888. His sister survived him, and had two children only, both born in his lifetime. By an order made in January, 1889, upon a summons taken out by the trustees, it was declared that the gift of capital to the children who attained the age of twenty-three was void for remoteness; but that, on account of other clauses in the will, the persons to take it could not be ascertained until the death of J., and the trustees were ordered to accumulate the surplus income until further order. In 1895 the two children of J., one of whom had attained twenty-three and the other twenty-one, took out this summons for the determination of the questions whether the trust for the maintenance was not good and whether the trustees ought not to have applied and ought not now to apply the accumulated income for the maintenance, etc. Held, that the trust for maintenance could be severed from the gift of the capital and was good; that the accumulation by the trustees had plainly not been an exercise of their discretion, and that they had now, notwithstanding that one child had attained twenty-three, a discretion to apply all became bankrupt, and the property was sold; and the question arose whether the trustees could distribute the proceeds upon the footing that the power had been validly released. Held, That the release, though for the benefit of S., was valid, the doctrine which applied to the exercise of a power of appointment having no application to the case of a release of power. (Chan. Div., Re Somes; Smith v. Somes, 74 L. T. Rep. 49.) TRAMWAYS.-A by-law made by a tramway company requiring passengers to deliver up their tickets to an inspector of the company on demand and the fact that the passenger's failure to deliver or pay their fare over again is reasonable and good, up his ticket on demand is not wilful, but due to his having inadvertently lost or destroyed it does not relieve him from the obligation to pay his fare again. (Hanks v. Bridgman, Q. B. Div., 74 L. T. Rep. 26.) TRUSTEES-BREACH OF TRUST.-A. and B., trustees of a will, committed a breach of trust by investing trust moneys upon insufficient security, viz.: eight mortgages, for the purpose of giving the beneficiaries a higher rate of interest. After the date of the first four mortgage securities, A became entitled, as legal personal representative of his wife, who then died, to a beneficial interest in one-fifth of the trust estate, so that, when the four remaining mortgages investments were made, he was both a trustee and a beneficiary. Legal proceedings were taken, which resulted in the administration of the trust estate. The mortgaged properties were sold and realized less than the amount advanced upon them by the trustees, part of the loss being in respect of the four mortgages made prior to the date when A. became a beneficiary, but the greater part being in respect of the four mortgages made after that date. A. and B. were declared jointly and severally liable to make good the loss to the trust estate. The whole of the loss was, however, recouped out of A.'s share of the trust estate, and he sought to recover one-half of it from B. Held, That A. being a beneficiary as well as a trustee could not compel B. to bear any part of the loss occasioned by the breach of trust in which he, A., had concurred. (Ct. of App., Chillingworth v. Chambers, 74 L. T. Rep. 34.) TRUSTEES -INVESTMENT. R., by will, gave his residuary estate to trustees upon trust to convert and to invest in their or his names upon the public stocks, funds, or securities of Great Britain or of any foreign or colonial government, and he gave them power to postpone for such time as should seem expedient the sale, conversion, or getting in of any part of the trust estate. The testator's estate consisted chiefly of foreign stocks and bonds, some of which were payable to bearer. The trustees retained these securities for some years, then one trustee wished to realize; the other three thought it best to further postpone the sale. Held, On a summons taken out by the trustee who wished to realize, that under the power to invest in their names the trustees had not power to purchase foreign government bonds payable to bearer; that they had power to postpone the sale of such bonds possessed by the testator at his death, but that this power to postpone could only be exercised by the trustees unanimously, and if one trustee objected the bond or other unauthorized securities must be converted. (Chan. Div., Re Roth; Goldberger v. Roth, 74 L. T. Rep. 50.) Notes of American Decisions. ACCORD AND SATISFACTION—EVIDENCE. Where defendant sends a check for for the full amount ad mitted by him to be due plaintiff for commissions for a sale, and incloses a voucher to be signed and returned by plaintiff, which acknowledges receipt of the check" in full for commissions," and plaintiff accepts the tendered payment, he thereby accepts the conditions on which it was sent, though he does not return the voucher, and writes that there is yet due from defendant for such sale $1,200. (Nassoiy v. Tomlinson [N. Y.], 42 N. E. Rep. 715.) BANKS-ACTION FOR BANK DEPOSIT.-Where one mails to a bank money and checks for deposit, but the bank refuses to acknowledge receipt thereof, and persistently denies such receipt, the relation of depositor and depositee is not created. (Miller v. Western Nat. Bank of York [Penn.], 33 Atl. Rep. 684.) COUNTY TREASURER-ACTION ON BOND-PARTIES. -The county in which taxes for county and State purposes are levied, being the owner thereof when collected as well as of taxes levied for school purposes till apportioned to the several school districts, is a proper party to an action on the official bond of the tax collector of the county, though it runs in the name of the State; Hill's Ann. Laws, §§ 340, 341, providing that the undertaking of a public officer to the State or a county shall be a security to the State or county, as the case may be, and that when he forfeits his bond any person injured by his misconduct, or who is by law entitled to the benefit of the security, may maintain an action thereon in his own name. (Hume v. Kelly [Oreg.], 43 Pac. Rep. 380.) FEDERAL COURTS SUPREME COURT — JURISDICTION. The fact that the State Supreme Court, in affirming a judgment, decided against an immunity from liability expressly claimed under the laws of the United States, does not give jurisdiction to the Federal Supreme Court, if such immunity was not claimed in the trial court. (Chemical Nat. Bank of Chicago v. City Bank of Portage [U S. S. C.], 16 S. C. Rep. 417.) INJUNCTION-RIGHT OF CORPORATION.-A corporabecause they have conspired to exterminate it by tion cannot have persons or organizations enjoined compelling its members to leave it. (Silver State Council No. 1 of American Order of Steam Engineers v. Rhodes [Colo.], 43 Pac. Rep. 451.) LACHES CHARITABLE TRUSTS.-Though charitable trusts are highly favored by the law, and a court of equity will sometimes entertain a bill, after a long period of delay, to correct the administration of a charitable trust, which is being administered contrary to the plain intent of the founder, it is not a rule of universal application that laches cannot be set up in defense of a suit to enforce a charitable trust. Accordingly, held, that in a suit between rival church sects, each seeking to obtain possession of certain real estate in order to devote it in its own way to pious uses, neither the State nor the publiɔ by the complainant of 25 years before asserting its at large having any interest in the litigation, a delay claims, during which the defendant had expended money in buying an apparently valid title and in paying taxes, was laches such as to bar complainant from relief. (Church of Christ at Independence, Mo. v. Reorganized Church of Jesus Christ of Latter-Day Saints [U. S. C. C. of App.], 71 Fed. Rep. 250.) LIFE INSURANCE POLICY-PRESUMPTION OF DEATH. In an action on a policy on the life of one who disappeared about a year before the commencement of suit, it is proper to charge that the death of an absent person may be presumed in less than seven years from the date of the last intelligence from him, from facts and circumstances other than those showing exposure to danger which might probably result in his death. (Northwestern Mut. Life Ins. Co. v. Stevens [U. S. C. C. of App.], 71 Fed. Rep. 258.) A CASE which we consider of unusual importance has just been decided by the Appellate Division of the Fourth Department. It is the Matter of the Application of Cuddeback to compel the county clerk of Erie to file certificates of nomination. We are glad to learn that the Appellate Division saw fit to determine this question even after the election was over. As far as practical results are concerned it was of little importance, but we believe that many provisions and sections of the election law should be determined and adjudicated. The question in this case was, whether the provision requiring a nomination to be filed within a certain time before the election, was mandatory or directory, and the learned court properly holds that it is mandatory and that after the date for filing certificates is passed the county clerk has no right to receive and file other certificates of nomination. We print the opinion in full in this issue of the LAW JOURNAL for the express purpose of clearing away a much mooted question which never has been before determined by the Appellate Division. In the address of Hon. Edward J. Phelps, ex-minister to the Court of St. James, before the Institute of Arts and Sciences in Brooklyn, the distinguished jurist took occasion to make some remarks concerning jingo sentiments and the Monroe doctrine. Such remarks coming from a member of the Venezuela Commission are particularly interesting aside from their value as a note of warning to our rampant statesmen at Washington. Mr. Phelps said: "This Monroe doctrine, a phrase heard now for the first time by many Americans, has been brought strikingly before the country. It has nearly plunged us in war with Great Britain; it is now bringing us nearer to a war with Spain. It has operated to paralyze business, and bring VOL. 53 No. 14. It a loss which no arithmetic can compute. has brought us in conflict with countries with which we have had no quarrel. "A proposition that entails such consequences should be carefully examined. Why Monroe doctrine? Legal doctrines don't have personal names attached to them. In this case it is confusing. It is no new thing in the history of the errors of the world to find politicians reverting to a vocabulary not explanatory but concealing. "This Monroe doctrine was due to the Holy Alliance by which powers of Europe sought to crush out the republican spirit growing in South America. It was hoped by this alliance to enable Spain to subdue the eight republics who had gained independence from her. This was the problem with which Mr. Monroe dealing. was "The fear that there would be a combined effort to help Spain was the difficulty with which he was contending. How dangerous such a project as that proposed by the Holy Alliance would be to an infant republic, as this country was then, is apparent. That was what Mr. Monroe was dealing with; there was no other thought than that. "The principle he evoked was the right of self-preservation, and its first and paramount duty. But he did not institute this doctrine; it was already a fundamental part of interna tional law. "President Monroe's message was warmly attacked in Congress. It was said to transcend international law. It was defended by Daniel Webster, who took upon himself to state its principle. It is the true definition, in my opinion, that it is the right of the nation to defend itself, and it goes as far as that necessity does. "British Guiana has a dispute with its neighbor about a boundary line, a dispute a century old, a dispute which is involved in such obscurity as to its merits that eminent lawyers and jurists and diplomats have to be engaged. to determine what its merits are. Great Britain agreed to arbitrate a part of it, but it rerefused to arbitrate the other part because it was occupied by its own citizens and in every way its own property. |