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Hon. S. D. Halliday, President Schurman and Professor Huffcut, to which Judge Finch feelingly * responded.

A father, who has committed the custody of his infant child to another person by agreement to be maintained and cared for, which agreement has been acted upon by such other person, is held, in Fletcher v. Hickman (W. Va. [55 L. R. A. 896]), to be bound by the agreement, unless he can show that the change of custody will plainly promote the child's welfare.

The noon intermission is held, in Mitchell-Tranter Co. v. Ehmet (Ky. [55 L. R. A. 710]), not to sever the relation of a servant to his master, so as to prevent his recovery for an injury resulting from an unsafe working place, received while attempting during that time, by direction of a superior, to remove broken timbers, which render unsafe the work of the employes.

A railroad company which organizes a company to construct an extension of its system into another State and through it operate such extension, is held, in Buie v. Chicago, R. I. & P. R. Co. (Tex. [55 L. R. A. 861]), to be properly regarded as doing business in the latter State, so as to be liable to suit there, on causes of action arising out of the State, by service of process upon the officers of the

new company.

A statute permitting commitment to a hospital for the insane upon an application by a relative or friend of the alleged insane person, or by any one of certain officials, accompanied by a certificate of authorized medical examiners that insanity exists, but without and provision for notice to the alleged insane person, is held, In re Lambert (Cal. [55 L. R. A. 856]), to be void as depriving him of liberty without due process of law.

The value of insured chattels destroyed at a location to which they were removed with the insurer's consent, is held, in Ohio Farmers' Ins. Co. v. Burget (Ohio [55 L. R. A. 825]), to be recoverable notwithstanding their previous removal to another location without such consent, under a policy providing that it shall become void if any change takes place in the location of the property unless consent in writing is obtained from the company.

* *

the seal of one of the jurors who decided the matter. The verdict was rendered during the reign of Christian II of Denmark. The contesting parties were Erik Bollsen - whose descendants had it in their possession until about fifteen years ago, when Mr. Lindholm secured it from one of Mr. Bollsen's descendants and Mrs. Margaret Nilsdatter, an heiress. In those days all cases of this kind were tried before a jury consisting of four governors, four attorneys and four counselors. Out of these twelve men one was selected to act as judge, and the evidence was taken. After a verdict had been decided upon it was written on a piece of sheepskin parchment and the seals of the twelve men who tried the case were affixed. These seals were carried in the same manner as the people of today carry their watch charms, and all men in official positions had their seals attached to their watch charms that they might be convenient when needed.

- St. Paul Pioneer Press.

An election of officers by vote of a majority of a joint session of both branches of the city council under the provisions of a statute, is held, in Schmulbach v. Speidel (W. Va. [55 L. R. A. 922]), not to be invalid because a majority of the members of one branch of the council did not vote, and were present, not voluntarily, but only because they had been arrested and compelled to attend under provisions of a city ordinance, and the presence of the majority of the members of each branch was necessary to constitute a quorum.

A creditor who, after his debtor has made a fraudulent and voluntary conveyance of his real estate, but before any other creditor files a bill in equity to set aside such conveyance, obtains a judgment in a court of law against such debtor, is held, in Foley v. Ruley (W. Va. [55 L. R. A. 916]), to have a lien, by virtue of his judgment, upon the real estate so conveyed, from the date of the judgment, superior and prior to that of the creditor assailing the deed.

In the habeas corpus proceeding, Lloyd v. Sheriff, at Steubenville, Circuit Judge Cook sustained the Beal local option law (95 O. L. 87). The law was attacked as being a law of a general nature and lacking uniform operation, and, therefore, in conflict with article 2, section 26 of the Constitution;

also, upon the ground, among others, of invalidity in making no provision for the selection of a jury within the district. The case will undoubtedly be reported in full.- Ohio Law Bulletin.

Alexander T. Lindholm, of Stillwater, is the owner of an interesting old relic, dating back to 1553, which he has mounted on a piece of oak and framed, and has hung it in a bank building in St. Paul. It is a verdict rendered by a jury of twelve We have never enforced so strictly our rules high officials in Norway, at Oslo Courthouse, where with regard to admission to the bar as to exclude Christiania now stands, in 1553, and decided the counsel from other States from being admitted by legal ownership of a large estate. At the bottom courtesy to argue to a particular case, but the chief of this novel verdict hang twelve strips of sheep- justice announced at the opening of the Court of skin, to which are attached twelve pieces of bees- Errors, that the attention of the court had been wax about the shape and size of a small gold watch. called to the fact that in the courts of New York These were called seals in the olden days when and Brooklyn their rules, which are the same as this verdict was rendered, and each one contains ours, have been construed so strictly as to refuse

ended with "A client comes to you and states the above case. What would you advise him to do?" The best answer handed in was: "I would advise him to come around at 10 o'clock the next morning. In the meantime I would look it up.”— N. Y. 1 îmes.

Former Justice of the Supreme Court Daly and ex-Assistant District Attorney Francis L. Wellman, counsel for the Metropolitan Street Railway Company, during an interruption of a case in which they were engaged on opposite sides were discussing the odd names of litigants in different suits.

"Take the famous case of Bridges v. Shallcross, reported in the Sixth West Virginia Reports, for instance," said Mr. Wellman.

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That case was most ordinary," said ex-Justice Daly. "compared with the truly remarkable case reported in the Arkansas law reports a few years

ago.

tried for stealing five hogs belonging to a Mr. Pig. "In that case a man by the name of Driver was One of the witnesses was named Hamm, the prosecuting attorney's name was Chew, and the counsel

this courtesy to lawyers from New Jersey. The complex state of facts was given, and the question chief justice said that the court had brought the matter to the attention of the judges in New York and had suggested that the same construction should be given to the rules in both States, and had intimated that unless the courts of New York should adopt our construction, it would be necessary for us to adopt theirs. He said that no reply had been received, although months had elapsed, and that the court had determined, for the protection of our own bar, to announce that, so long as the rules of New York were so construed in Greater New York as to exclude New Jersey counsel from arguing causes there, counsel from New York and Brooklyn would not be permitted to appear in our courts, and that the ruling should include the Court of Errors, the Supreme Court and the Court of Chancery. This ruling is strictly protective and retaliatory, and is expressly limited to the counsel from courts which refuse the courtesy of admission to our counsel and to the time during which such courtesy is refused. If there is any advantage in the continuance of such refusal, it is on the side of the New Jersey bar, for New York lawyers have been in the habit of poaching upon our preserves much more freely than we have in theirs. A similar ruling might well be made in the United States courts in this district, with respect to the appearance of New York lawyers as solicitors and attorneys of record. We admit them as a matter of course, if they have been admitted as counselors of the Supreme Court of the United States, but in New York they have a rule, adopted in 1825, that none but attorneys of the Supreme Court of New York shall be admitted to practice as attorneys in that circuit, and no one who is not a resident of New York can be admitted to the bar of that State, and the United States judges refuse to relax the rule in favor of New Jersey lawyers, even though admitted to practice in the Supreme Court of the United States. The result is that New York lawyers file bills in our Circuit Courts every week, while lawyers of New Jersey must retain solicitors in New York, if by chance they wish to obtain an injunction in a patent case or seek any relief in the federal courts in New York.-N. J. Law Journal.

Bumorous Side of the Law.

Lawyer I see that case of yours is on. drawn yet?

Jury

Lawyer Skinner Yes, and it's a splendid one.
Lawyer Brief- Above the average in intelligence,

eh?

for the defense were Miles & Miles.

"The oddness of the names occasioned much merriment in the court, which was brought to a

climax when one of the counsel propounded the following question for the judge:

"If Driver drove Pig's hogs for Miles & Miles would Hamm be fit to Chew?'

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The court reserved decision."- N. Y. Times.

A conductor on a Broadway car had refused to take a transfer the other day on the ground that it was too long after the hour punched. The passenger was politely told that under the rules he could not accept the transfer, and that he would have to pay

his fare or leave the car.

"I'll not pay and I'll not leave the car," said the passenger savagely.

"I'll pay for you then," said the conductor, ringing up the fare. "I'd rather lose five cents than wrangle with a passenger."

This would doubless have closed the incident had not the irate passenger seen Abe Hummel sitting opposite him. To him the rate one appealed to know if he was right or wrong in refusing to pay his fare.

"Do you wish my legal advice?" asked Mr. Hummel, with a show of gravity?" "I do."

"I never give legal advice without a fee." "Well, here's a hive dollar bill," said the passenger, peeling off a bill from a big roll and handing it to

Lawyer Skinner - No; way below it.- Philadel- Mr. Hummel, who promptly accepted it. phia Press.

That the next best thing to knowing the law is knowing where to find it was illustrated once when Judge Simeon E. Baldwin, of the Yale Law School, in an examination on corporations, asked his class a question which was extremely difficult. A certain

"My advice is "Is that all?" "No," replied Mr. Hummel. Then, calling the conductor and handing him the bill, he remarked: "It is certainly worth that much money to find and reward a gentlemanly conductor."- Phila. Times.

pay your fare or get off the car."

The Albany Law Journal. precedents slavishly, but has always thought

A Monthly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, N. Y. Contributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law questions, addresses solicited from members of the bar and those interested in legal

on legal topics, or discussions on questions of timely interest, are

proceedings.

and reasoned for himself. His opinions, which run through the last forty-five volumes of the Massachusetts Reports, are models of fine literary style, logical, well reasoned and often sparkling with wit. We regard the appointment as in every respect ideal. Justice Holmes will grace as well as strengthen a

[All communications intended for the Editor should be addressed bench already noted for its ability.

simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions or other business matters should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

Justice Horace Gray, who leaves the Su

Subscription price, Three Dollars per annum, in advance. Single preme Court bench because of illness and the

number, Twenty-five Cents.

ALBANY, N. Y., SEPTEMBER, 1902.

Current Topics.

infirmities of age, like his successor is a native of Boston, where he was born in 1828. Graduating from Harvard in 1845, at the age of sixteen, and later from the Harvard Law School, he was admitted to the bar in 1851. The announcement from Washington that Three years later he was appointed reporter the President had appointed Oliver Wendell of the decisions of the highest court in MassaHolmes, Jr., chief justice of the Supreme chusetts, the Supreme Judicial, and remained Judicial Court of Massachusetts, to be an asso- in this position for seven years. Three years ciate justice of the United States Supreme later he was appointed an associate justice of Court to fill the vacancy caused by the retire- the court, of which he became chief justice ment of Justice Horace Gray, was not entirely in 1873, gaining a reputation of the first rank a surprise, for it had been known in Wash- as a jurist and in certain departments of jurisington for a long time that the President had prudence. Justice Gray has always been conhad Justice Holmes picked out for the vacancy. Of course, the nomination must be confirmed by the Senate, and before that is done it is not likely that Justice Holmes will resign his seat on the Massachusetts bench, but it is regarded as certain that there will be no failure to confirm so excellent a choice. Justice Holmes has been a member of the highest court in the Bay State for a score of years, and since 1898 its chief. Previous to his elevation to the bench he had been a practicing attorney of distinction in Boston, a soldier, scholar, legal writer and scientist. He was born in Boston on March 8, 1841, the son of the distinguished author, scientist and philosopher, Oliver Wendell Holmes, the famous "Autocrat of the Breakfast Table.” Justice Holmes's reputation as a jurist is as wide as the boundaries of the country. Possessed of strong powers of analysis, his studies have been unremitting and varied, and he is in the broadest sense a scholar. Few men will go to the highest court in the land better equipped than Justice Holmes. He has never adopted the easy course of following rules and

VOL. 64.- No. 9.

spicuously independent in his views, holding to what he believed right against all opposition. His specialty was will cases, although he participated in the decision of many of the important issues which came before the court. Justice Gray was with the majority of the court in the decision of the Income Tax cases and the Insular cases. Another important cause of recent date was that growing out of the Spanish-American war, in which he decided against the right of the government to seize certain fishing smacks, the property of Cubans, which the United States authorities believed were giving aid and assistance to the enemy. His service to the country has been long, faithful and exceedingly valuable.

Another interesting negligence case was recently before the courts of this State. From a statement of the facts, it appears that James Kelly, while standing, early one evening near the middle of one of the streets of the Borough of Queens, waiting for a trolley car, was knocked down and badly injured by a runaway horse and wagon. There was no driver

to inform persons who are so far distant as ninety-five feet from the crossing, seated in a wagon, the horse attached to which is standing quietly in a place of absolute safety, that a train is about to run over the crossing, lest upon its failure to do so the horse may become frightened by the noise of the train and run away. If such warning must be given under such circumstances, then it must be given to all persons, however distant, and whether upon a highway which crosses the railroad or not, provided only they are near enough to hear the bell or whistle, and if in such case it is omitted, and a horse is frightened by the noise of the train and runs away, and the driver is injured, the company is liable." Justice Smith dissented, saying that the fright of the horse and the consequent injury was the result of the approach of the train, and that approach was made without the warning which the law requires.

on the wagon, and Albert Adelmann, the when a train approaches a crossing," says Jusowner of the runaway, who was sued by the in- tice Fursman, for the court, "is to warn jured man, contended, on his appeal to the persons who are about to cross of the danger Second Appellate Division from a judgment of doing so. The company is not required. against him, that no negligence on his part could be inferred from the accident, happening the way it did. The Court of Appeals, however, decides that the rule is otherwise, and cites a case where damages were allowed a plaintiff who was injured by an unattended runaway horse and wagon while crossing a city street. In another case which is referred to by Justice Bartlett, in giving the court's opinion, it was said: "It is negligence to allow horses to be in the public street unattended; and where they are so found the natural inference is that it was permitted, and it is not incumbent upon the party claiming damage to prove the negative of such permission. The burden is upon the party seeking to avoid the results arising from such a state of facts to show that he has used all proper means to prevent the same and that he was without fault. "It was also contended that the plaintiff was guilty of contributory negligence in being in the street. Justice Bartlett says it was entirely proper for Kelly to go out into the street to see if a car was coming, as he said he did, and it was not negligence as a matter of law for him to fail to see the runaway horse in the twilight.

The New York Supreme Court, Third Appellate Division, has decided that it is not negligence on the part of a railroad in frightening a horse ninety-five feet away. It appears that while Walter L. Lampman was sitting in his wagon, ninety-five feet from a New York Central Railroad crossing, an approaching train frightened his horse so that it ran towards the crossing and was struck by the train. Mr. Lampman was badly injured and sued the road for damages, claiming that it was negligent because the train gave no warning of its approach by ringing a bell or blowing a whistle. A judgment of the Supreme Court, holding that the railroad company owed no duty to the plaintiff under the circumstances, has been affirmed by the Third Appellate Division. "The purpose and object of blowing a whistle or ringing a bell

A case of decided interest to brokers and others interested in share transactions is that

of George A. Treadwell v. Senator William A. Clark. The facts briefly stated are these: Professor Treadwell brought suit some years ago to recover 100 shares of United Verde Copper Co. stock, which belonged to him and which Senator Clark had purchased. Professor Treadwell had pledged these shares in London in 1888 for a debt. The man with whom they were pledged, or his agent, left London and unlawfully took away the stock to Arizona; sold it to another man, and that man sold it to Senator Clark. Senator Clark had knowledge of the fact that the stock had been pledged and that the debt was unpaid. He nevertheless retained the stock. The stock in 1888 was worth $50 to $100. When the suit was tried in 1900 it was worth about $30,000 to $35,000. The case was tried before Judge McLean in the Supreme Court, New York county, and Professor Treadwell was defeated, the court holding that too long a time had elapsed, and that any remedy Professor Treadwell had should have been prose

cuted at law for damages. Professor Tread-lightful and inspiring intellectual exercises to be either a general or a particular aspect, is invariably met in its perusal, a consideration of the jury, in a matter of interest.

well promptly appealed, and at the May term, 1902, the Appellate Court consisting of Judges O'Brien, Ingraham, McLaughlin, Hatch and. Laughlin, reversed the judgment and ordered a new trial. The opinion was written by Judge O'Brien, who thoroughly reviewed the facts. He held that Professor Treadwell was entitled to equitable relief, especially as Senator Clark had notice of his rights, and further held that the statute of limitation was no bar. The court said that the pledgee of the stock had no right to take it away from England, and inasmuch as there were numerous parties, the Court of Equity had power to adjudge all of their rights, especially as the action was one to redeem a pledge and to repay a debt, and to get the stock which had a special value. Then, too, inasmuch as the company had become dissolved, it was necessary to have equity intervene to adjudge Professor Treadwell's rights in the assets of the dissolved company. The opinion makes the distinction between promissory notes, where good title may be acquired, although they were wrongfully negotiated, and shares of stock which are in no sense negotiable securities.

In nothing, in no one way, are the workings and the subtle influences which this body exerts so plainly perceptible as in the evolution of our system

of evidence. To an extent, judges sitting in a court of equity are governed by the same rules of evidence which are followed by the common law judges in the conduct of a case, and yet, the laxity, speaking in a comparative sense, which actually exists on the part of the former in the reception of evidence, is a significant indication of the potent factor the jury has been in the past, and will continue to be in the future, in the formation, expansion and contraction of our law of evidence. I style the jury a potent factor in this regard; in reality it has been the shaping force that has controlled the manner and extent of the growth of our rules of evidence. The distincforums mentioned is based on a reason both logical and convincing. The equity judge can safely be less stringent in his rulings on questions of evidence, because he can depend upon his own powers of perwhen he is forming his conclusion, discard entirely ception and discrimination and will, ultimately, or give such weight to each piece of evidence as in its nature requires that treatment. Could a law judge be just as lax and depend upon a jury doing the same?

tion that has been drawn between judges of the

Can he know or control the influences

of a character akin to sympathy and sentiment which experience has shown the jury has a tendency The court holds that Professor Treadwell's to follow. The answering of these questions negarights accrued when Senator Clark refused to tively by the courts of common law, sometimes hurdeliver up the stock in 1893, and that the ten riedly, in busy administration of practical affairs, years' statute of limitation was the only one and again, by courts of varying individual temperament and views, has left the law of evidence, as it to be considered. In fact the court said prob- stands at present, a well working and practical sysably the statute of limitation did not commence tem on the whole, though illogical in many particuto run until the action itself was commenced lars. Care for the jury is an untrained body, has in 1899. By reason of this decision, it would appear that when the new trial takes place next fall, Senator Clark will have to deliver up the 100 shares of stock and account for all dividends which he has received upon them for the last nine years.

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been the constant watch-word of the common law tribunals, not uttered in a disparaging sense, but in analytical mind is not to be expected of each of recognition of the evident fact that a close and twelve men, drawn from all walks of life, and not especially trained for the position they are called upon the fill.

Now, while the presence of the jury and the consequent cause and method of the growth of the adjective law we are considering, has as indelibly impressed its stamp upon the system of evidence at the common law, as causation can ever be traced into effect, yet in one particular, in a study of the broad rule excluding hearsay evidence, is its imprint strikingly apparent (1). Relevancy affords no per

(1) Greenleaf, in his Treatise on Evidence, vol. 1, sec. 98, says: "The first degree of moral evidence, and that which is most satisfactory to the mind, is

afforded by our own senses; this being direct evidence of the highest nature. Where this cannot be had, as is generally the case in the proof of facts

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