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on considerations of equity and justice, and cannot be invoked to revive a contract which it would be unjust or inequitable to revive, - as where time is of the essence of the contract, or the parties cannot be made equal. 6. The average rate of mortality is the fundamental basis of life assurance, and this is subverted by giving to the assured the option to revive their policies or not after they have been suspended by war (since none but the sick and dying would apply), it would be unjust to compel a revival against the company.'
The doctrine of this case was re-affirmed in the following year, Mr. Justice Clifford dissenting.?
SEYMOUR D. THOMPSON. TURNER BUILDING, ST. LOUIS.
PAY OF JURYMEN IN ENGLAND.-- It seems, from a note in the Law Journal (London) that special jurymen in England receive a guinea a day for their services, while petty jurymen receive practically nothing. Mr. Justice Hawkins, of the Kent Assizes, drew attention to this, and expressed the opinion that it did not look fair, and hoped that it would be remedied by an act of Parliament.
SENTENCING A MAN FOR CONTEMPT OF COURT IN REFUSING TO DRINK BEER. — If we were to devote our attention to the antics of judges, we should have no space in these pages for anything else. One of the latest is the caricature of justice made by a judge at Wichita, Kansas, in committing an expert witness in a prosecution under the prohibitory liquor law, for contempt of court because he refused to taste of some beer which had been uncorked for him in the court, so as to testify whether it was beer or whether it was something else under which name it had been sold.
A CURIOUS WAY OF SELECTING JUSTICES OF THE PEACE: NOMINATED IN THE FIRST INSTANCE BY JUDGES OF THE COURTS OF RECORD.— This curious way of appointing justices of the peace, in towns within the limits of the city of Chicago, is in vogue. The Judges of the Courts of Record for Cook County, within which Chicago is situated, nominate them to the Governor. If he approves the nominations, he sends the names to the Senate of the State, and if the Senate confirms the nominations, the Governor issues commissions to the nominees.
FEDERAL SUPPRESSION OF TRAIN-ROBBING.— We heartily agree with the following editorial, which is found in the Railway Review:
If the running of trains in connection with interstate commerce is a matter of which the general government may duly take cognizance to the extent now generally admitted, it would seem as if in the matter of train robberies its
authority might find abundant and much-needed exercise. The ability of local authorities to cope with such occurrences has been demonstrated to be wholly inadequate. Time was when train robberies were confined to the more sparsely settled districts, but of late it would appear that no locality can be considered exempt from them. The administration of law through the medium of State courts is altogether too uncertain to inspire the class of men engaged in these robberies with respect, but all of them have a wholesome fear of “ Uncle Sam" for they know that when the Federal authorities take hold of a case they never let go until the end is reached. This is a matter that might well engage the attention of some of our congressmen during their vacation season to the end that – supposing legislation to be necessary – the matter might be pressed to an early issue at the coming session of Congress. As the question now stands it is a disgrace to the country.
The experience in many of the Western communities shows that while train robbers will loot the safe of an express company with impunity, they will not touch the pouches of the United States mail. One reason is, that in the former case they are tried before a jury in a local community, inspired with the hatred of corporations; whereas, in the latter case they get cold justice at the hands of a Federal jury, where the judge has something to say on the facts as well as on the law.
The RIGHT TO DEDUCT BREAKAGES FROM A SERVANT'S WAGES.- The Law Journal (London) says: “The amateur, it has been said, is strong in us all, and legal amateurism - the propensity to lay down the law and settle people's legal rights and wrongs for them — is perhaps even stronger than the propensity to prescribe for their complaints. Legal vulgar errors naturally, of course, show themselves most in those matters which come home,' as Lord Bacon says, 'to men's business and bosoms,' in ideas, for instance, about the rights of landlord and tenant, or master and servant - mistress and maid it would perhaps be better to say. The latest illustration of amateur law is the idea that you can deduct breakages from a servant girl's wages a very common form of fallacy among mistresses. The claim of the mistress is derived she thinks --- from some supposed natural equity ; but, as Judge Bacon pointed out, there is no such implied term in the contract of service; it is not so nominated in the bond,' and hold to your bargain' is a maxim which has the authority no less of Portia than of Lord Bramwell. In this, as in other cases, the fallacy lies in mixing up rights and remedies, which the law keeps — and rightly keeps — distinct. If a servant is negligent the remedy is dismissal, possibly an action for damages. But the law does not allow the mistress to fix her own damages *
and set them off against wages, which might vanish altogether on this principle under some domestic martinets. The natural equity of the amateur soon becomes, if unchecked, a very wild kind of justice' indeed.”
Is THERE A MAGIC IN A SEAL? — The Chicago Legal News says:
The Appellate Court in Morrill v. Baggott, following the opinion of the Supreme Court, say: The appellant therefore attempts to change a contract between landlord and tenant which was under seal, by an agreement between them which was not under seal, which the Supreme Court in Chapman v. McGrew,' decided co not done even in behalf of a surety. That case has been very often followed.” Does not this show very forcibly that our legislature should make some change in the law relating to the effect to be given to a seal, over a written instrument not under seal by the same party? Is there any reason in this commercial age why a man's name should not be just as good when written to an instrument without being followed by the word ( seal” as when that word is attached?
We should think not; and the legislature of most of the States are beginning to think not. In addition to the nonsense of maintaining the distinction between sealed and unsealed instruments a distinction which originated at a time when men could not write, and when their assent to written obligations was evidenced by affixing their seal, which in the case of a well-known man, of rank and distinction, was as much a matter of public notoriety as his coats of arms,
it is to be observed that the above rule of the Supreme Court of Illinois is technically erroneous as a rule of the common law. By that law a leasehold interest in land is a chattel interest, and consequently a seal is no more necessary to pass such an interest than it is, on a bill of sale, to pass the title to a horse. Using a seal on an instrument where no seal is necessary, - as in the case of a negotiable instrument,-- is mere surplusage, and does not alter the nature of the instrument. This has often been held where the seal of a corporation has been affixed to negotiable instruments executed by it; the conclusion being that the use of its seal by a corporation upon an instrument otherwise negotiable, does not render it non-negotiable; 2 and so the use of a seal where none is required, as in accepting a proposal, does not raise the contract to the dignity of a specialty, or prevent assumpsit, instead of covenant, from being maintained thereon. At the same time it is not improper to
1 20 Ill. 101.
Thomp. Corp., § 6064, and numerous 2 Bank v. Railroad Co., 5 S. C. 156; cases there cited. 8. C. 22 Am. Rep. 12; Thompson o. Levering o. Mayor, 7 Humph. Lee County, 3 Wall. (U. S.) 327; 5 (Tenn.) 653.
defer to the ancient, though now exploded rule of the common law, so far as to employ the common seal of the corporation for the purpose of expressing its assent even to a simple contract;1 though such a sealing does not turn a simple contract into a specialty, - otherwise, anciently, when every contract of a corporation was required to be evidenced by its seal, every such contract would have been a specialty. The writer does not overlook the fact that there is a class of ill-founded and senseless American decisions, rendered at an early day, to the effect that the affixing of the corporate seal to what would otherwise be a promissory note of the corporation, destroys its negotiability and converts it into a specialty.”
DEATH OF ROBERT DESTY.- A notice of the death of this distinguished lawyer was crowded out of our last issue. It took place at Rochester, New York, on September 27, 1895, in the sixty-ninth year of his age. While known to the legal profession throughout the United States, through his numerous works on the law, as plain Robert Desty, yet this was not his full name. As he himself wrote it, in signing a contract respecting a claim to ancestral estates, it was Robert Daillebout d'Estimauville de Beaumauchal. The following facts concerning his ancestry were thus stated in a public interview by Hon. O. F. Williams, of Rochester, New York:
Hundreds of years ago when the French nobles maintained themselves by the sword, one of Desty's ancestors, and of whom he is a direct descendant, tras asked by Francis I., King of France, for the deed of the territory where the city of Havre now stands. Justice Desty's ancestor yielded to the request but stipulated that there should be a street or rue constructed parallel to the Rue Notre Dame, now known as the Rue De Paris, which should bear forever the name Rue D'Estimauville; also that on the right hand door post of the Hotel De Ville, the City Hall of Havre, should be placed the armorial bearings of the noble house of D'Estmauville. These conditions were carried out so far at least as the street was concerned, and while at Havre I had the pleasure of making an investigation of the matter as stated.
French historians believe that during the revolution of a hundred years ago in the destruction of the Hotel De Ville ended a part of the observance of the contract on the part of the King of France. Judge Desty placed in my hands a large packet of legal documents signed by Henry IV., Francis I., and other sovereigns of France, proving beyond question the distinguished character of his ancestral name and family. I took these documents to France with me and they were examined by the historians and attorneys of France with great interest.
1 Bank v. Railroad Co., supra.
2 4 Thomp. Corp., $ 5121.