Page images
PDF
EPUB

found the action for seduction on loss of service, but to say that there is a loss of service in such a case as this seems a still greater absurdity:

In Schaferman v. O'Brien, pp. 565, 574, the court say that " We are not aware of any case in the judicial history of this State, where the provisions of the statute of Henry VIII. [against champerty] have been enforced — without meaning to assert that there might not be such exceptionable conduct, savoring of champerty and maintenance, as to be punishable, yet there can be no doubt that this statute is, in a great measure, now obsolete."

The arguments in these cases are often reported with a fulness greatly disproportionate to their value.

Reports of Cases argued and determined in the Supreme Judicial Court of Massachusetts. Albert G. Browne, Jr., Reporter. Vol. II., being Massachusetts Reports, Vol. XCVIXI. Boston: H. O. Houghton & Company. 1869.

There are no great cases in this volume, but we have seldom seen a book of reports where so many interesting practical questions have come up for decision. We have drawn liberally from it for our Digest, and will here only notice a few of the decisions on points where there has been a conflict of authority.

In Cook v. Charlestown, p. 80, the court carried out the principle of Kingsbury v. Dedham, 13 All. 186, and Cook v. Charlestown, ib. 190, and held that if a horse becomes frightened at an object in the highway which is an obstruction and defect therein, and with which, but for his fright, he would have come in contact, and by reason of such fright, without coming in contact with it, he runs away and overturns the carriage at a place where there is no defect, the town is not liable for injury to the driver, under a statute making towns liable for injuries caused by defects in public ways. The courts of Vermont, Connecticut, and New Hampshire have held to the contrary, and have decided under similar statutes that objects frightful to horses are "obstructions" or "insufficiences." See Morse v. Richmond (Vt. Sup. Ct.), 8 Am. Law Reg. (n.s.) 81; Dimock v. Suffield, 30 Conn. 129; Chamberlain v. Enfield, 43 N.H. 8oli; Barllett v. Hooksett, 3 Am. Law Rev. 385. The case last cited, in which the frightful object was a pigsty occupied by five swine, and the declaration in which alleged that the horse was frightened by the swine's "starting and running about," "and by certain loud noises which the said swine then and there uttered," has the support of Judge Redfield's emphatic approval; he declares that it affords him great support as he travels down the Western declivity of life. 8 Am. Law Reg. (n.s) 94.

In Tucker Manufacturing Co. v. Fairbanks, p. 101, it was held that on a bill drawn on the P. Insurance Company and signed "F. & Co., Agts. P. Ins. Co.," F. & Co. were liable personally as drawers. The case of Ballou v. Talbot, 16 Mass. 461, in which a note signed by "J. T., agent for D. P.," was held not binding on J. T., was cited for the defendants, but the court distinguished it by the use of the word "for."

In Wilcox v. Wilcox, 13 All. 252, the court, adopting what may be called the American rule, held, that if on the death of a partner there remained, after winding up the partnership concerns, real estate of the partnership in which the legal title of the deceased partner corresponded to his share in the partnership, such real estate would not be considered in equity as converted into personalty, and that the deceased partner's share would go to his heirs and not to his next of kin. In Shearer v. Shearer, 98 Mass. 107, the same rule is extended to the case where the legal title does not correspond to the interest in the partnership. It seems pretty obvious that there can be no distinction between these two cases, nor is it easy to answer the argument against the change from realty to personalty founded on the general doctrines of equitable conversion; yet it seems to us that there are considerations in favor of holding, with the English courts, that partnership real estate is converted out and out, which were not sufficiently adverted to by the court. By these two cases it would appear to lie very much in the power of the surviving partner whether the share of his deceased copartner shall go to that partner's heirs or to his next of kin; and in fact, in the case of Shearer v. Shearer, the surviving partner actually used the personal assets in paying off encumbrances on the real estate of the partnership. Would he have been justified in selling partnership real estate to pay off mortgages on ships? or is this a power which he can exercise only in favor of the heir and not of the administrator?

In Harvey v. Varney, p. 118, the court held that a contract, whether executed or executory, for the conveyance of either real or personal property to defraud the grantor's creditors is good between the parties, though the grantee shared in the fraudulent intent. This is contrary to Nellis v. Clark, 20 Wend. 24. No part of the law is in a more chaotic condition than those cases which involve the application of the maxim, Ex turpi causa non oritur actio.

A promise to accept a bill of exchange, contained in a letter from the drawee to the drawer, written after the bill has been negotiated, will not enable the holder to sue the drawee as acceptor. Exchange Bank of St. Louis v. Rice, p. 288. The English cases are the other way.

An oral promise to pay the debt of another is within the Statute of Frauds if the original debtor remains liable and no consideration moves from the creditor to the new promisor; although there is a valuable consideration moving from the original debtor to the new promisor. Furbish v. Goodnow, p. 296. There is a great conflict of authority on this point, as the reader may see by consulting the notes to Birkmyr v. Darnell, 1 Sm. Lead. Cas. *371.

There are many more cases of interest in the volume, but we have left ourselves no room to notice them.

Reports of Cases argued and determined in the Supreme Court of the State of Wisconsin. With Tables of the Cases and Principal Matters. By O. M. Conover, Official Reporter. Vol. XXII. Containing all the Cases decided before August, 1868, and not previously reported. Chicago: Callaghan & Cockcroft. 1869.

We shall examine this volume, with care, for the Digest in the next number of the Law Review. In the mean time we insert here some of the more noteworthy cases. ,

The first case in the volume is Peterson v. Johnson. A garnishee gave his note to the defendant in the garnishee suit, for the whole claim of the defendant against him, with an oral agreement that if judgment should be recovered against him as garnishee, the amount of the judgment should be deducted from the note. Such judgment was afterwards rendered against him and was paid by him. Held, that these facts might be shown, by parol evidence, in an action on the note to prove a partial failure of consideration.

In Sayles v. Davis, p. 225, it Is held that Congress has no constitutional power, without the assent of a State, to impose a stamp duty on tax deeds executed under the laws of the State, such deeds being necessary instruments in raising the revenue of the State; and in Jones v. Davis, p. 421, it was held, that if a stamp is essential to the validity of a deed, an averment that the deed was made imports that it was stamped.

On. the question of damages on breach of the covenant of seisin, as to which there has been such a conflict of decision, the Supreme Court of Wisconsin hold in Mecklem v. Blake, p. 495, that if there has been no eviction, or other actual injury, the grantee can recover only nominal damages for the breach.

An oral agreement for a right to draw logs over the defendant's land, for a period less than a year, for a money consideration (the agreement not being an incident to a valid grant), is a mere revocable license. Duinneen v. Rich, p. 550. The consideration money had not been paid in this case, but the court say that its receipt would not have estopped the licensor from revoking the license. Whether if the licensee had expended money on the faith of the license, the license could have been revoked, qumre.

In Potter v. Chicago If N. W. R.R. Co., p. 615, the court take a course which we do not remember to have seen adopted elsewhere. In setting aside a verdict for damages as excessive and ordering a new trial, they intimate the maximum amount that they will allow to stand.

This volume contains more than the ordinary proportion of useful cases, and the style of reporting shows the most gratifying improvement.

Report of the Trial of Samuel M. Andrews, indicted for the murder of Cornelius Holmes, before the Supreme Judicial Court of Massachusetts, Dec. 11, 1868. Including the Rulings of the Court upon many questions of law, and a full statement of authorities upon the subject of Transitory Insanity. By Charles G. Davis, of Counsel for the Prisoner. New York: Hurd & Houghton. 1869.

This trial, for the combined reasons that the prisoner was a deacon in an Orthodox church, and that the evidence was particularly nasty, was a popular favorite, but the most important legal, or rather medico-legal, matter in this report of the case (which is very handsomely got up) attaches to the conflict between the medical experts on the possibility of transitory insanity. The jury negatived the theory of insanity by bringing the prisoner in guilty of manslaughter. The jury were right in not finding him guilty of murder, at the same time the court were right in inflicting upon him the heaviest sentence which the statute allows for the crime of manslaughter. Accepting his story as true, the prisoner acted under grievous provocation, but he was greatly to blame for continuing to consort with one from whom he knew such provocation's to be expected.

The Three Powers of Government. The Origin of the United States; and the Status of the Southern States, on the Suppression of the Rebellion. The Three Dangers of the Republic. By Joel Parker.

We cannot recommend these lectures as agreeable reading, but they are salutary and instructive. The Kentucky judge who spoke of Judge Parker as a New England Transcendentalist, would not, we are bound, repeat that phrase after reading them.

With some of the learned author's theories we agree, yet it is not what ho says, but the way in which he says it, that is most striking. He is like a voice from a past generation, though he does not, like many old men, moan over the "good old times;" he is too filled with the evil of the present days to think of the blessings of the past. For intense concentrated bitterness and hate, we should find it hard, indeed, to match these gloomy lectures.

The National Currency Act, with Amendments, and the Laws relating to Taxation of National Banks and Schedule of Stamp Duties, 1864-1869. Edited by G. C. Williams. Washington: Government Printing Office. 1869. pp. 70. The value of this compilation lies in the very convenient and elaborate index

with which it concludes.

Representative Government: its Evils and their Reform. A Lecture delivered, Feb. 27, 1869, at the Invitation and under the Auspices of the Trustees of the Cooper Union, by Simon Sterne. Published by Request, for Private Circulation. 1869.

Whether the formation of representative bodies on the plan of giving to each political or other party a number of the members proportionate to the size of that party in the community would be such a panacea for all our national sins and sorrows as some believe, we will not say; but that it would be, if practicable, a long step in the direction of right government, few who have tflought on the subject will be disposed to deny. The great question is not whether it should be done, but how to do it. Mr. Hare deserves great credit for what he has accomplished in the matter; but we are bound to say, after careful study of his system, that it is in some of its details far from theoretically perfect, and that it would be very complicated in practice; besides, he has enveloped it in a cloud of rather feeble talk, which makes it appear much less deserving of respect than it really is. Mr. Sterne's plan is simpler: he proposes that each candidate who receives a certain number of votes should go to the legislature, and have a vote there proportionate to the number of votes he has received. It would work a revolution in the character of our legislative assemblies; but in some of the Continental diets the members cast votes of different weight, and through proxies the system has long been used with success at corporation meetings. The plan is attractive, and deserves careful thought. Whether it should be found finally feasible or not, it is matter of gratulation to find the number every day increasing of those who are studying the problems of government and writing of them in a disinterested and philosophic spirit. The principal need on this subject is of a treatise which, taking for granted that personal representation is desirable, shall show, not in a general way, but down to the minutest details, how it could be carried into effect.

Address of Hon. Samuel F. MUler, of the Supreme Court of the United States, to the Graduates of the Law Department of Iowa University. June, 1869. Keokuk, Iowa. •

This excellent discourse, to be commended alike for the presence of unusual sense and the absence of customary nonsense, is worthy the vigorous intellect of the writer.

The Quarterly Journal of Psychological Medicine and Medical Jurisprudence. Edited by William A. Hammond, M.D. July, 1869. New York: D. Appleton & Company.

In the Chronicle of this journal is a section set apart for Medical Jurisprudence; in this number it is mostly devoted to questions connected with insanity. There is, besides, a short article from the Lancet on the Diagnosis of Hanging, anofher on a "Medico-Legal Case of Injury to the Nervous System," and a third from the Law Times on a case of Mistaken Identity. The first article in the number, on the Rochester Knockings, will be found interesting, even by the non-professional reader.

The Law Magazine and Law Review: or Quarterly Journal of Jurisprudence. For August, 1869.

The articles in this number are: I. Representations of Intention and Honorary Engagements. H. The Scotch Bar two centuries ago. HI. The Claim to the Earldom of Wiltes. IV. Sketch of Lord Cottenham as a Judge. V. The Historical Manuscripts Commission. VI. Todd's Parliamentary Government in England. VH. The Codes of New York. VTH. Law of Bastardy in Scotland. There are also Notices of New Books, &c. The first-named article is the one which possesses the most interest for readers in this country. It is an elaborate discussion of a very important class of cases.

The Boston Medical and Surgical Journal.

The number for July 29, 1869, contains a good article on Medical Evidence, by Alexander Young, Esq., of the Suffolk Bar.

Tlie Western Jurist for June, 1869, contains an article on the Law Department of Michigan University, and several recent decisions of value with notes.

The American Law Register, for June, July, and August, 1869, besides the usual collection of decisions, contains a brief notice of our Patent System, and articles on the Law of Contribution, and on Eloquence in England and America.

Bench and Bar. July, 1869. Chicago.

We have received the second number of this new legal periodical; we are not quite sure whether it is published monthly or quarterly, though we think the former. It is furnished gratis to all the members of the profession who apply for it. The number before us contains articles on the Liability of Telegraph Companies, on the Legal Status of the Southern States, and on S. S. Prentiss. There is, beside, a Digest of American Decisions and Book Reviews and a Summary.

The American Law Times. For June, July, and August, 1869.
The Internal Revenue Record and Customs Journal.
The Bankrupt Register. New York.
The Legal Intelligencer. Philadelphia.

« PreviousContinue »