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them, its jurisdiction under the Constitution being purely judicial. ('ases may be found where it has been held that powers similar to those conferred by this act were properly delegated to certain so-called courts, but we think it will be found in almost every instance that these courts were not exclusively judicial, but also quasi municipal bodies invested with certain powers of local legislation. Such are tbe County Courts in some States, which take the place of our boards of county commissioners in the municipal government of the county. As bearing upon the question here considered, see City of Galesburg v. Hawkinson, 75 Ill. 152; Shumway v. Bennett, 29 Mich. 451. State v. Simon. Opinion by Mitchell, J. [Decided Dec. 18, 1884.]
CRLJIVIL LA IV.
trict Court; that upon a hearing of such «petition the court may proceed to hear proof for or against the incorporation, and take such evidence as it shall deem necessary; and that if the court after such hearing is satisfied “ that the lands embraced in such petition, or any part thereof,ought to be included in said proposed village, and that the interests of the inhabitants will be promoted thereby, it shall make an order declaring that such territory, the boundaries of which shall be therein set forth by metes and bounds, and which may be diminishe:) or enlarged by such court from the boundaries specified in the application, as justice may require, shall be an incorporated village. Held, that this act is unconstitutional, for the reason that it assumes to delegate legislative powers to the District Court, a tribunal not authorized under the Constitution to exercise such powers. The granting of all charters of incorporation involves the exercise of legislative functions. The proposition (says Dillon) which lies at the foundation of the laws of corporations ot the country is that they all, publio or private, exist and can exist only by virtue of express legislative enactment creating or authorizing the creation of the corporate body. All municipal corporations are mere auxiliaries to the State goverument in the busi. ness of municipal rule. The act of deciding when and under what circumstances the public interests require the creation of theso auxiliaries or aids to the State government is one of the highest and most important legislative powers and duties. By section 1, article 4, the Constitution of tho State, the legislative department of the government is made to cons st of a Senate aud House of Representatives. In them all legislative power is exclusively vested. One of the settled inaxims of constitutional law is that legislativo powers cannot be delegated. Where the ('onstitution has located the law-making power it must remain. The department to whose judgment and wisdom it has been intrusted cannot abdicate this power and relieve itself of the responsibility by choosing other agencies upon whom it shall be devolved. Cooley (onst. Law, 139. As said by this court in State v. Young, 29 Min. 551; S. C., 9 N. W. Rep. 1737, it is a principle not questioned tbat except when authorized by the Constitution, as iu respect to municipal corporations, the Legislature cannot delegate legislative power. The power of local legislation commonly bestowed on municipal corporations does not trench upon the maxim, since this is authorized, impliedly at least, by the Constitution itself; and the maxim itself is to be understood in the light of an immemorial practice which has always recognized the policy and propriety of vesting in such corporations these powers. As before remarked, municipal corporations are created for this purpose, as aid to the State government in the business of municipal rule. Cooley Const. Law, 140. Blad the Legislature, by the act in question, fixed and specified all the conditions and facts upon which the incorporation of certain territory should depend, we do not question their right to refer to some tribunal or body the question of ascertaining and determining the existence of these facts and conditions. Neither do we decide that they might not delegate certain legislative powers regarding the organization and incorporation of villages to some appropriato municipal body which might constitutionally exercise local legislative powers. The delogation of certain powers of local legislation to municipal bodies, for reasons already suggested, is permissible. Boards of county commissioners are already, under certain limitations, in vested with somewhat similar powers in the organization and change of boundaries of towns and school districts. But the present act assumes to delegate these legislative powers to the District Court, a tribunal pot authorized to exerciso
CONSPIRACY TO ROB—MURDER-ALL GUILTY.-If several are associated together to commit a robbery, and one of them, while all are engaged in the common design, intentionally kills the person they are attempting to rob, in furtherance of the common purpose, all aro equally guilty, though the others had not previously consented to the killing, where such killing was done in the execution of the common purpose, and was a natural and probable result of the attempt to rob. People v. Vasquez, 49 ('al. 560; State v. Shelledy, 8 Iowa, 477; United States r. Ross, 1 Gall. 624; People v. Pool, 27 ('al. 572; State v. Nash, ✓ Iowa, 347; Stipp v. State, 11 Ind. 62; 1 Bish. Crim. Law ñth ed.), $ 636; 2 Whart. Crim. Law (ñth ed.), $ 998. So if those inside the house while attempting to consummate the robbery, and in furtherance of such conspiracy purposely kill the person they are attempting to rob, while he is resisting such attempt, and such killing is the natural and probable consequence of the common purpose, the person outside, who is aiding and assisting, is equally guilty as the one striking the fatal blow, though he did not previous to such attempt agree to or assent to such killing. Sup. ('t. Ohio, Jan., 1884. Stephens v. State. Opinion by Johnson, C. J. [42 Ohio St. 150; See 28 Eng. Rep. 64.]
LARCENY-RECENT POSSESSION-INTENT.–The recent possession by the defendant of the stolen property, his conduct at the pawnbroker's shop, the nature of the account given by him of the manner in which he had acquired it, the conflict between his statement and his evidence in that regard, constituted sufficient proof that the defendant stole the watch. State v. Hogard, 12 Minn. 293 (Gil. 191); 2 Russ. Cr. 337, 338; Knickerbocker v. People, 13 N. Y. 177; Com. v. MoGorty, 114 Mass. 299; Ingalls v. Stato, 48 Wis. 647. The fact that the larceny was committed within the house during the night; that the defendant was not an inmate of the house, and up to the hour of the closing of the house for the night was not in it, render possible no other conclusion from tbe premise that he committed tho larceny than that he also entered the house. The felonious intent with which the entrance was effected was properly inforred from the fact of the larceny committed. Roscoe Crim. Ev. 369; 2 Archb. Crim. Pr. & Pl. (Pomeroy's ed.) 1107. Sup. C't. Minn., Dec., 1884. State v. Johnson. Opinion by Dickinson, J. (21 N. W. Rep. 843. Sec 30 Alb. L. J. 318.-ED.]
INDICTMENT-REFERRING TO THIRD PERSON AS UNKNOWN-BRIBERY-EVIDENCE.-At common law, in cases where an indictment referred to third parties as persons to the grand jury unknown, if u pon the trial it was made to appear that the grand jury did know the names of the persons roferred to, the accused would
have to be acquitted on the ground of a variance be feiture. See Titus v. Glens Falls Ins. Co., 81 N. Y.
Edilor of the Albany Law Journal:
The publication of legal reports, authorized and as Whart. (rim. Ev., $ 38 et seq. Sup. ('t. Neb., Nov. 18,
private enterprises, constitutes the only perpetual mo1884.
tion. It does not slacken, falter, or wear out. If sufGuthrie v. State. Opinion by Reese, J. (21 N. W. Rep. 455.]
ficient cases are not at hand to make a volume every month, what is called “annotation” is resorted to,
viz., dozens of pages of solid names of cases which FINANCIAL Lol.
more or less cover certain of the ground of the text. BANK AND BANKING-DEPOSIT OF NOTE FOR COLLEC
We have railway reports, corporation reports, teleTION-SALE.—(1) Leaving a note at a bank for collec- everybody who can use a pair of shears can make them
graph reports, and there is no reason why – since tion does not authorize the bank to sell it. And if the bank does sell it without authority, and satisfies the
-we should not have sugar-refinery cases, horse cases,
cow cases, mad-dog cases, snake-bite cases, etc.? Is payee, the purchaser cannot afterward collect it as
there no relief? Since nobody but the law booksellers against a surety of the maker. And if the purchaser enjoy this sort of thing, and in the end the people pay, bas left the payee to suppose that the note was regularly
cannot the State interfere? Why cannot a law be detaken up, the latter camot after the maker's death,
vised authorizing the reporter to abridge decisions and on being made a party to a suit upon the note
something like this: against the surety, be required to elect between affirm
"The court followed
and as to ing the sale and rescinding it and restoring the money which he has received in payment of it. (2) The maker
the novel point proceeded as follows," etc.” of a note that has been sold to satisfy the payee will
Why should we bǝ compelled to pay for a million decontinuo liable upon it if he consents to do so; but his
cisions to the effect that contributory negligence is a consent will not bind his surety. (3) Whether one
defense to an action for ordinary negligence, or any who in good faith bas purchased a note that has been
other proposition of horn-book law ? sold without authority has not a remely against the
In old times the lawyer who was buying books was vendor, qucere. Sup. ('t. Mich. Fuller r. Bennett. only losing the use of his money, plus ordinary wear
and tear. Opinion by Cooley, C. J. (21 N. W. Rep. 433.]
Now he is buying the costliest class of books published, with the certainty of their being su
perseded by new editions not only, but by private seINSURANCE LAW.
ries and voluminous “reports," within a year or so.
I do not remember the proceeds of the late Charles FIRE-AUTHORITY OF ADJUSTER-WAIVER OF FOR ()'Conor's library, but it was a case in point. The FEITURE.—However well the duties and powers of an amount realized was probably not one-tenth of the insurance adjuster may be known in the community, disbursement made. The result is that nobody but the law makes no presumption with reference to them, the law bookseller is benefited. and they must be proven in every case where the The ALBANY LAW JOURNAL will earn the gratitude rights of the parties depend upon the question whether of lawyers not only, but of clients who in the end pay his acts were dono with authority. Where there is no the lawyers, by not only calling attention to the matevidence of the authority of an adjuster to waire ter, but keeping it up, inviting suggestions, discussing proofs of loss, it is error to instruct the jury that a it, and lending its facilities to working our relief. waiver might be inferred from certain acts done by
BARRISTER. him. Where the assured asserts a claim for loss under NEW YORK, April 23, 1885. his policy, and the insureris informed of facts out of P.S. What is the meaning of the word “ reports ?" which a forfeiture it is claimed grew, but with knowl. It has an official sound. What right has any bookedge of the circumstances, continues to treat the con seller to get up a collection of cases by hack work and tract as binding, and induces the assured to act in that call them“ reports," anyhow? The bar itself could belief, the insurer may be held to have waived the for- stop this thing by simply refusivg to purchase.
from the recollection. Every lawyer has experienced Editor of the Albany Law Journal :
the difficulty of proving the character of the occupaIu reply to my query published on page 300 of your
tion of land after the lapse of comparatively a few issue of April 11, 1885, relative to the correct legal years. The book is handsomely printed, and we are method of computing time between two given dates glad to see that it has none of the portraits of self-made for the purpose of subsequently computing interest,
men which usually disfigure such works. We would the two answers, viz., page 319, April 18, and that of wbisper to Mr. Farmer that Shakespeare never could Mr. Fontes, page 310, April 25, do not solve the prob- bave said “native here and to the manor born.” What
he said was lem. Both cite the Revised Statutes, pt. 2, ch. 4, tit. 3,
manner.” S$ 9, 10. But I want to kuow how to apply the above citation and above all the authorities, or even one au
CAREYS' FORMS AND PRECEDENTS. thority on the subject.
Forms and Precedents, embracing the following subjects : As my theory resulted from an attempt to calculate Pleading and Practice in courts of equity, admiralty and an actual payment of interest on over-due notes, I common law; proceedings in orphans' courts; statutory sought to ascertain the authorized method for my own proceedings, patents, trade-marks, and copyrights; conprotection.
tracts and conveyancing; wills, etc. Compiled and There are three ways of computing, to mention no edited by James Carey, Jr., and Francis King Carey. Balmore, that I beg to instance to make my query clear. timore: M. Curlander. 1885 Pp. x, 1084.
The question is: What time has elapsed between This seems to be a very complete collection, but October 25, 1884, October 29, 1884, October 31, 1881, re many of the forms might well be boiled down and spectively, and March 19, 1885 ?
modernized. compiler of forms ought to find By method 1. The actual number of days is 145. Di- something newer than “made oath on the Holy Evanvide this by 30, and the result is 4 months and 25 days gels of Almighty God.” The book is. too coarsely for the first note; 4 months and 21 days for the sec printed; it ought to have been much less bulky. ond; 4 months and 19 days for the third.
By method 2. (alling October the tenth month, and March the third mouth, and subtracting as below, we
MURFREE'S OFFICIAL BONDS. get:
A Treatise on the Law of Official Bonds and other penal 1885.
bonds. By W. L. Murfree, Sr. St. Louis: Review Pub1884.
lishing Co. 1885. Pp. viii, 616.
The practitioner will here find all the learning on 4-24
this subordinate subject, conveniently arranged, and This gives 4 months and 2 days, 4 months and 20 concisely expressed. The book is very handsomely days, 4 months and 18 days for the three notes re
printed. The author's industry has enabled him to spectively.
cite cases filling a double-columued table of thirtyBy method 3. From October 25 to November 25 is
six pages. one month; to December 25, two; tɔ January 25, three; to February 25, four; leaving 22 days to Marcb
BUSWELL ON INSANITY. 19. This gives 4 months and 29 days, 4 months and 19 The Law of Insanity in its application to the civil rights and days, 4 months and 19 days for the three notes re capacities and criminal responsibility of the citizen. By spectively.
Henry F. Buswell. Boston: Little, Brown & Co. 1885. Which of the three methods is authorized, and what Pp. xxxviii, 595. authority can be cited ? Although I seek information,
A cursory examination leads us to think well of this I. would venture the following statement: I cannot see
work. It seems very comprehensive, and is a model that the above citation authorizes the third method.
for text-book writers in one respect-it wastes no I can see authority however for the other two, but of
words. The subject well deserves independent treatthese two the first seems to ine wrong, while the sec
ment such as it receives from Mr. Lawson and the ond, in my opinion, will meet every possible emer
present writer. gency. Thanking you for this space, I am, Very truly yours,
COURT OF APPEALS DECISIONS. New York, April 28, 1885.
HE following decisions were handed down Tues
day, April 28, 1885 : NEW BOOKS AND NEW EDITIONS.
Judgment modified, and as modified affirmed, with.
out costs to either party in this court-Margaret C. FARMER'S HISTORY OF DETROIT AND MICHIGAN.
Remington, respondent, v. William H. Walker, execThe History of Detroit and Michigan, or tho Metropolis illus utor, etc., appellant.-Judgment reversed, new trial
trated. A chronological cyclopedia of the past and pres- granted, costs to abide the event-Charles C. Motel, ent. Including a full record of territorial days in Michi infant, etc., respondent, v. Sixth Avenue R. Co., apgan and the annals of Wayne county. By Silas Farmer, pellant. — Judgment affirmed, with costs—Edward J. Historiographer. Detroit : Silas Farmer & Co. 1881.
McGeau, receiver, etc., appellant, v. Thomas MackelThis is a very elaborate and copiously illustrated lar et al., respondents. - -Order affirmed, with costs work, which must be of great interest to the inhabit- -Charles G. S. Baker, appellant, v. Jarvis S. Baker, ants of Michigan. It is in plan and execution about respondent. -Order of General Term reversed, that on a level with the many local histories which have of Special Term affirmed, with costs-Robert F. Litbeen issued during the last quarter of a century. tle, receiver, etc., appellant, v. Theresa Lynch, reWhile much of it is of no general interest, there are spondent. — Appeals dismissed, with costs—Bolton chapters on the legislatures, laws and courts, which Hall et al., respondents, v. United States Reflector are undoubtedly valuable to Michigan lawyers. One Co., appellant; Peter Rowe, sheriff, etc., appellant. of the most valuable characteristics of this history is | Order modified and affirmed as to the appointment of the large number of cuts of ancient buildings, perpetu a trustee only, with costs-In re petition of Edmund ating the appearance of old localities which easily fade | Wariog and another.
the mark than any we could get in another generaAlbany Law Journal.
tion. ALBANY, MAY 9, 1885.
One reason against codification has not been
Association, and we do not scruple to give them a
live reason. That reason is, that after we get a Code
the courts, having run so long in the ruts of the N last week's Nution we find a long editorial on
common law, will not pay any attention to it. For "The Lawyers and the Field Code.” It is ly example: the Code of Civil Procedure, section 3345, no means so lieavy as we expected. On the con
enacts that "the rule of the common law that a stattrary it is in spots amusing. For example, it would
ute in derogation of the common law is strictly be difficult to imagine any thing “cooler ”than
construed, does not apply to this act.” This was the following: “Since it is unquestionally the the provision of the old Code, $ 467. Now in the general opinion among lawyers that the adoption of
case of Noyes v. Daridson, an abstract of which is the Field Code will, for a time at least, greatly in- given in another column, our Court of Appeals say, crease litigation, the spirited resistauce offered by the chief judge himself writing the opinion: “Sec. the leaders of the profession to this measure cannot
tions 1421 et seq. of Code of Civil Procedure, aube explained by a reference to selfish motives,” thorizing the substitution of the indemnitors of a This is taking things for granted with a vengeance. sheriff as defendants in an action brought to recover The opposition say so, therefore so it is. Now we
personal property levied upon him by virtue of an do not assert or believe that the opposition are ac attachment or execution, or to recover damages for tuated by mercenary motives, althouglı we suspect such a levy are new, and constitute a serious and they are selfish. Prejudice, laziness, obstinacy, important innovation upon the law as it stood pique, have a good deal to do with the matter.
previous to their enactment. This statutc is clearly But the funniest thing the Nation says is this: “It in derogation of the common law and common is the product neither of the judges nor of the pro- right, and by settled rules of interpretation must be fession, and the profession will therefore refuse to
strictly construed, and not extended beyond its extake the responsibility of giving it a meaning until
press provisions and clear import. He Cluskey v. it has passed through the process of assimilation
Cromwell, 11 N. Y. 593; Spruugue v. Birdsull, 2 which they require. No Code, we may safely predict, Cow. 419; 4 Mass. 1-15, 473.” If courts are not gowill be successfully applied unless it first secures the ing to pay any more attention than this to Codes general approbation of the bar.” This is rank non
and statutes, of course we may just as well let sense. We suspected until just now, that some mem
them go ou making the law to suit themselves. We ber of the city bar association wrote these things for
wonder if the court would not have granted a rethe Nation, but it is hard to believe that any lawyer argument in this case on the ground that they had ever wrote such whimsical opinions is this. Vot misapprehended the law. one of the present Codes "secured the general :1pprobation of the bar," yet they are universally acknowledged to be successful. But we find no fault
The Pennsylvania Supreme Court, in April, 1884, with the Vation and Mr, Cowen. The nonsense of
were called on, in ('arroll v. Birns, to construe this the forıner, unalleviated by IIr. Cowen's wit and
provision in a will: “All the rest, residue and regood feeling, and the unsoundness of the latter,
mainder of my estate, real and personal, I devise uninfected by the Nation's editorial cataract, iire
and bequeath unto my said three daughters, to have alike amusing, and enable us, we trust, to season
and to hold to them during their natural lives, and the insipidity of Current Topics. But we find no
after their death then to the lawful issue of my argument sufficient to defeat the will of the people,
said three daughters and the heirs and assigns of and the repeated action of the Legislature.
such issue." They unanimously hell that “the
daughters a lise estate only, and on their death to We have read Mr. Pomeroy's and Mr. Miller's give to their children and their heirs the estate in pamplilets against the Code, and do not find much fee." Soon after this decision was rendered, leadstartling or new. Mr. Pomeroy was a learned ing conveyancers and real estate lawyers, although teacher and a good author, but he was a professor, without any standing in court as to the case, united and he was bounded by the spirit of the professor; in a memorial to the court, praying for a rehearing, he lacked the breadth of a man of affairs. We on the ground that the decision, as it stood, would would rather pin our faith to the opinion of Chief unsettle half the real estate titles in the city; and Justice Wallace. It is no disparagement to Jr. it was contended that the decision was contrary to Miller to say that his opinions are not even so the “rule in Shilly's case," the ancient and accepted weighty as Mr. Pomeroy's, although if we could rule for interpreting the principle involved. A resee general merit in liis minute criticisms we would hearing was granted, and the court, three judges admit it. Our answer to all these criticisms is that dissenting, held that “perhaps the testatrix init is hopeless to get a Code without fault or above tended to give a life estate to her daughters, and the criticism, and that this Code probably comes nearer remainder in fee to their children; but she has
Vol. 31 - No, 19.
used words which definitely vest in her daughters there is sufficient on this case to show that the coran estate tail, and the courts are not at liberty to oner had the right and power to hold one. No wrest them so that they may mean any thing else.' case absolutely in point has been referred to, but And so reversed their former decision.
there are many cases which w that interfering mentary on the precision and "elasticity" of the with and preventing the performance of duties imcommon law! This is cited as a remarkable instance posed upon officers by statute is a misdemeanor at of a court's reversing itself, but we recollect that common law. Now the holding of an inquest is a this same court turned a similar somersault a few matter of great public importance, and it is most years ago.
important that where a coroner has reasonable
grounds for holding an inquest, he should not be The constitutional question in the case of General prevented from doing so, otherwise the conseLawton's appointment by the president is not so quences would be most formidable. Child murder casy to dispose of as the party newspapers on both especially would be more likely to go unpunished, sides dcem it. Attorney-General Garland is a good if by disposing of the bodies by vg the only lawyer, and he holds that President Johnson's par- evidence perhaps of the crime could be destroyed. don made General Lawton a new man, and quite The very object of a coroner's inquest is to ascercompetent to hold office under the government in tain the cause of death, and it certainly is not the spite of his previous rebelliousness. Others think law that the coroner must be certain of the cause that the subsequent constitutional amendment re of death before he can hold an inquest, which quiring the removal of disability by Congress ap- would be the effect of the argument that the prisplies to the General's case, and that the pardon ex oners cannot be convicted, although the coroner tended only to criminal responsibility. But it is acted reasonably in determining to hold the inquest, replied that one of the consequences of rebellion or if the inquest should prove to be unnecessary. Untreason was incompetency to hold office, and that der the statute of Edward I, the coroner's duty is this disability was cured by the pardon. But then to act on information, and the inquest is held to on the other hand it is said that while an act of test the information. It is said in Bracton 3, chapCongress alone could not revive the disability, the ter 5, and Horne’s Mirrour, page 38, that the statconstitutional amendment did have that effect, that ute is in affirmance of the common law, and merely the change of the fundamental law could and did directory. Now the statute says “the coroner, if effect any thing that the sovereign law makers, the he be certified by the king's bailiffs or other honest people, intended or desired. It is much easier to men of the country, shall go to the place where any state the question than to solve it, and we shall not be slain, or suddenly dead or wounded,' nothing at present undertake to express an opinion, because being said about murder. An examination of the we have no right, upon present reflection, to have body is required by the statute, and the whole any. It is a good question for our law-school moot wording shows that an inquiry into the cause of courts to discuss, and settle off-hand. We think that death is intended, which would be useless had the General Lawton showed excellent sense in not ac coroner to satisfy himself by evidence as to the cepting the appointment. We will suggest however cause of death previously to holding the inquest." that it is a question that will need to be settled some time, and no time is better than now.
In City of Chicago v. O'Brien, 111 Ill. 532, it was The London Lur Times, in a review of Mr. Kelly's held that a city has not the constitutional power to “French Law of Marriage,” criticises the author require the owner or occupant of premises to keep for using the phrase “pass upon," in the sense of
the sidewalk and gutters in front thereof free from decide or adjudge, and calls it an “unpleasant
snow and ice, or to sprinkle the same with ashes or American phrase.” And yet it is used by Shakes- sand where the snow and ice cannot be removed peare and Jeremy Taylor, and we venture to say him for a neglect or failure to do so.
without injury to the pavement, and inflict a fine on never until now has been condemned except ly some
Referring to philological pedant. Most Americanisms" are
contrary cases the court said: “These cases go to traccable to good English origin.
the length of sustaining the doctrine contended for by plaintiffs in error. They announce the doc
trine that such improvements may be compelled NOTES OF CASES.
under the general police power. If this be so, by
an exercise of the same power we presume that the N Reg. v. Stephenson, Crown Cases Reserved, 52 owner could be compelled to construct and keep in
dictable misdemeanor willfully to prevent an in- upon or running through his lands, or the owner of quest appointed by the coroner, or to destroy the a city or village lot could be compelled to make body in question. Grove, J., said: “The two and repair the street in front of his property. A points submitted for our consideration and decision sidewalk is a portion of a public highway, appro
“Whether it is an indictable misdemeanor priated, it is true, to pedestrians alone, but still willfully to prevent the holding of an inquest of open and free to all persons desiring to use and enwhich the coroner has given notice, and whether joy it as a public highway. It is as much a public