Page images
PDF
EPUB

we are clearly of opinion that the plaintiff has no claim to equitable relief. Wood v. Sutcliffe, 2 Sim. (N. S.) 166; 21 L. J. (N. S.) Ch. 253. Gaunt v. Fynney, L. R., 8 Ch. 8. Perkins v. City of Lawrence. Opinion by Holmes, J.

[Decided Jan., 1885.]

EVI

MUNICIPAL CORPORATION-ICY SIDEWALK — DENCE AS TO PRIOR CONDITION.-In au action for personal injuries occasioned by falling upon a defective sidewalk the court may, in its discretion, reject evidence of the condition of the sidewalk as to ice a week before the accident happened, so far as offered to prove the condition at the time of the accident, even if under special circumstances, it would have been warranting in admitting it. Berrenberg v. Boston, 137 Mass. The witness did not undertake to speak to the continuance of the same defect down to the moment of the accident from daily observation, and although the plaintiff's counsel stated that he expected to prove by this and other witnesses that the defect had existed in substantially the same way for eight or ten days, yet in view of the plaintiff's own testimony, that the day before the accident snow fell to the depth of four or five inches, followed by rain and then by a thaw, we must take it that the intended proof was by way of inference from other testimony like that offered, which the court very properly considered too remote. The plaintiff argues that the evidence was admissible to prove notice. What we have said applies to this argument also, for the notice to be proved must be notice of the same defect. Furthermore the defense was not put on want of notice of the condition of the sidewalk, such as it was, but on a denial that the condition was defective. Woodstock v. City of Worcester. Opinion by Holmes, J. [Decided Jan., 1885.]

NEGOTIABLE INSTRUMENT ILLEGAL CONSIDERATION-PARI DELICTO-COMPOSITION.-The first count was upon a promissory note for $217.50, made by the plaintiff to the defendant; the second was for a like amount, upon an account annexed for goods sold and delivered by the plaintiff to the defendant before the making of the note. The plaintiff does not contend that he is entitled to recover upon the note on which his first count is founded. The note was given in consideration, and upon the secret agreement, that the plaintiff should execute a deed of composition entered into between the defendant and his creditors, which purported to treat all the creditors equally. The decisions are numerous and uniform that such a note is void. Harvey v. Hunt, 119 Mass. 279, and cases cited. But he contends that he is entitled to recover the balance of his account for which the note was given, in the same manner as if he had not executed the composition deed. In other words, his claim is that the law will regard the rights of the parties as if the composition deed and the corrupt agreement by which it was accompanied had never been made. We do not understand this to be the law. If two persons make an illegal contract, being in pari delicto, so long as it remains executory, the law will not aid either party to enforce it; but so far as it is executed, the law will not lend its aid to either party to relieve him from the consequences of the illegal contract, or to rescind it. Myers v. Meinrath, 101 Mass. 366; Horton v. Buffinton, 105 id. 399; Cranson v. Goss, 107 id. 439. In the case at bar the plaintiff executed the composition deed and received the amount provided for therein in full satisfaction and payment of his account. This operated as an extinguishment of his debt. The agreement with the defendant that he would pay the full amount of the debt in the future was illegal, and avoided the composition deed as to other creditors.

[merged small][merged small][merged small][ocr errors]

TOWN-ONE OF FOUR OFFICERS CANNOT BIND TOWN— ALL MUST ACT.-A township having four supervisors was for the convenience of such supervisors divided into four districts, over each of which one supervisor had charge. The supervisor in one of said districts engaged and contracted with a party to plow the road, and in answer to the party's objection, that his plow was too light, said: "I'll insure you it won't hurt it." The plow being broken while employed in the work, and suit being brought against the township to recover damages, held, that the alleged contract was not a ministerial act which could be entered into by one supervisor, so as to bind the town ship, but that in order to create such liability it should have been entered into by all the supervisors. Held therefore that the township was not liable. One supervisor cannot levy a tax to pay the debts contracted, nor the expenses incurred in the township. Cooper v. Lampeter Township, 8 Watts, 125. As a general rule, it may be declared one cannot bind the township by a contract, the propriety of which requires deliberation and the exercise of judgment. Union Township v. Gibboney, 13 Norr. 534. He may bind it in matters purely ministerial. It is in the line of ministerial duty to open and repair a road. He can therefore employ laborers for that purpose. It was held in Dull v. Ridgway, 9 Barr, 272, that one might give a valid due bill, which showed on its face that it was for work done thereon. The right of the laborer rested rather on the consideration mentioned thereiu than on the due bill itself. The township was not thereby deprived of any valid defense. The law has wisely intrusted to the supervisors as a body the trausaction of all the public business imposed on them, which calls for the exercise of judgment and careful deliberation. The conclusion at which we have arrived does not conflict with Commonwealth v. Supervisors of Colley Township, 5 Casey, 121, in which it was held that the supervisors might enter into a valid arrangement that each should take charge of a certain portion of the township, and direct the working out of road taxes therein. Nor is the present case like Hopewell Township v. Putt, 2 Week. Notes, 46, in which a person was permitted to recover for money advanced to pay for work actually done in constructing the road. The attempt now is not to recover for work done, not for money advanced to pay for work done, but to pay damages not contemplated by the board of supervisors and not implied under any authority given by them. The alleged contract was therefore in excess of the power of one supervisor, and the township is not bound thereby. It cannot be said that such a contract is a ministerial act. Somerset v. Parson. Opinion by Mercur, J. [See 20 Eng. Rep. 522.] [Decided Oct. 6, 1884.]

SUBROGATION-JUDGMENT-NOTE-LIEN.-Where one

of two debtors on a joint judgment-note, which has been duly entered up, pays, under execution, the amount thereof, taking an assignment of record of the judg

ment to his use, he is entitled to be subrogated to the creditor's rights against the estate of his deceased coobligor, to the extent that he has paid his co-obligor's proportion of the debt. In McCormick v. Irwin, 11 Casey, lil, it was said by Mr. Justice Strong: "The doctrine (subrogation) does not depend upon privity, nor is it confined to cases of strict suretyship," and in Cottrell's Appeal, 11 Harr. 294, by Justice Woodward: "Subrogation is founded on principles of equity and benevolence, and may be decreed when no contract or privity of any kind exists between the parties. Whenever one not a mere volunteer discharges the debt of another he is entitled to all the remedies which the oreditor possessed against the debtor." And in Mosier's Appeal, 6 P. F.S. 76, where a junior judgment creditor, believing the land would be sacrificed, after the exeoution plaintiffs had refused to assign their judgments to him on payment, paid the executions to the sheriff, and satisfaction was entered; no other lieus having intervened, he was subrogated to the rights of the execution plaintiffs, and the satisfaction cancelled. While the ruling of these cases is perhaps broad enough to control the present one, we are not obliged to say so, as we have direct authority upon the point. In Gearhart v. Jordan, 1 Jones, 325, it was held that "the rule embraces purchases in common of an estate bound by a joint lien, as between themselves, the purpart of each is liable to contribute only its proportion of the common burden, and beyond this is to be regarded simply the surety of the remaining purparts. In this respect they are to be treated as the several estates of joint debtors, one being surety of the other; and if the purpart of one is called upon to pay more than its due proportion, the tenant or his lien creditors, upon the principle settled in Fleming v. Beaver, 2 Rawle, 128; Croft v. Moore, 9 Watts, 451; and Neff v. Miller, 8 Barr, 347, is entitled to stand in the place of the satisfied creditor to the extent of the excess which ought to have been paid out of the other shares." Gearhart v. Jordan was recognized in the late case of Watson's Appeal, 9 Norr. 426, where is was said by Mercur, J.: "As between two mortgagors of land held by them as tenants in common and third persons, each mortgagor is liable for the whole sum secured by the mortgage: but as between themselves each is liable for one-half only. As to the other half, each is surety for the other." Ackerman's Appeal. Opinion by Paxson, J.

[Decided April 14, 1884.]

EXECUTOR AND ADMINISTRATOR-PURCHASE OF INTEREST OF DECEASED IN PARTNERSHIP-VOIDABLE RATIFICATION - ESTOPPEL — MARRIED WOMAN-ADVANCEMENT-INTEREST ON.-(1) The purchase of the undivided interest of a deceased partner by the executor of his estate, in his own behalf, is viewed with more suspicion; in such case the estate stands altogether unprotected; it is exposed to the greed or the executor, with none to guard against it. The executor appears both as seller and buyer, and an indefeasible title cannot thus be acquired. Chronister v. Bushey, 7 W. & S. 153; Campbell v. McLain, 51 Penn. St. 200. The rule extends to all having a fiduciary relation to the property, and the fairness and honesty of the transaction do not vary it. This principle is not founded on the assumption of actual fraud; it is a rule of public policy. Drysdale's Appeal, 2 Harr. 536; Chorpenning's Appeal, 32 Peun. St. 315. Where the transaction is accompanied by actual fraud it is absolute void, and is incapable of subsequent ratification; but a purchase by a trustee at his own sale, bona fide and for a full price, but a legal fraud; it is voidable only, and may be confirmed by the parties in interest upon full knowledge of all the circumstances after a deliberate examination. What may be subsequently ratified may of course be previously authorized, and an act done by such previous authority needs no subsequent ratification. (2) It is certainly true, as shown in along line of cases, that a contract, void under the disability of coverture, cannot be made good by estoppel; neither a fraudulent denial of coverture, payment of purchase-money nor silent acquiescenco in the making of improvements, nor all of these together, can by way of estoppel give validity to a contract void upon this ground. Glidden v. Strupler, 2 P. F. S. 400; Bispham Eq. 293. The above principle applied in the present case where certain married women executed, without the joinder of their husbands, an instrument which virtually ratified a purchase by their father's executor of decedent's interest in a partnership. In such case the married women were held estopped from subsequently objecting to said purchase. (3) A testator by his will directed that the amounts due him by his sons-in-law should be taken as advancements by him to their several wives. Held, that no interest could be charged on the indebtedness of the sons-inlaw to the testator. (4) Where a testator, after providing for certain annuities, leaves the residue of his estate to his widow during her life, she is entitled to interest which has accrued upon a debt due the estate between the date of testator's death and the date of the collection of the debt. Grim's Appeal. Opinion by Clark, J.

[Decided Oct. 6, 1884.]

EQUITY-JOINT PURCHASE OF PROPERTY-REFUSAL OF SOME OF PURCHASERS TO PAY THEIR SHARE OF EXPENSES-EFFECT OF.-Several parties, who were owners of bonds of a railroad company about to be sold under the mortgage, entered into an agreement to purchase the property and not to claim their share of the pro- CORPORATION-STOCKHOLDER-LIABILITY OF, HOW ceeds of the sale, but to take in lieu thereof bonds, to ENFORCED.-A stockholder of a manufacturing corpo. be issued under a company to be subsequently organ- ration, against whom judgment is recovered for the ized. Nothing was said in the agreement as to which debts of the corporation, which judgment he pays, is of the parties should purchase the property but one of not entitled to contribution against the other stockthem, a corporation, undertook to do so, but the prop- holders except in the particular manner specified in erty was bid above their limit. Subsequently the pur- the acts. Corporation stockholders who have already chaser at the sale transferred the title to said corpora- contributed their proportions to the capital stock are tion for advances made by them aud for prior indebt- not at the common law or in equity liable for the cor. edness to them. Said corporation began to reorgan- porate debts; statutes which impose this liability ize a company, and requested the other parties to join must therefore be strictly construed. This rule of law in the expenses, which was refused. Held, that even is well settled. Mean's Appeal, 4 Norr. 78. The right should this purchase by the corporation inure to the of contribution among stockholders also exists by reabenefit of the other bondholders, the latter were deson only of the obligation imposed by the statute. If barred by their refusal to share in the expenses from it were not for the statute there would exist no perclaiming any interest in the purchase. Yeager's Ap-sonal responsibility on the part of the holder of the peal, 4 Out. 88. Lennig's Appeal. Opinion by Pax-stock, either to the corporate creditors or to each other son, J. for the corporate debts. The right of the plaintiffs to [Decided April 14, 1884.] recover in this case therefore depends upon the con

struction of the act of April 7, 1849, and its supplements of April 20, 1853 (Pamp. Laws, 637), and 27 March, 1854 (Pamp. Laws, 215). Hoard v. Wilcox, 11 Wright, 51; Mansfield Iron Works v. Willcox, 2 P. F. S. 378; Patterson v. Lane, 11 Casey, 275; Brinham v. Wellersburg Coal Co., 11 Wright, 43. In the case of Youghiogeny Shaft Co. v. Evans, 22 P. F. S. 334, the case of Briuham v. Wellersburg Coal Co., supra, and Hoard v. Wilcox, supra, are cited with approval, and Agnew, J., there says: "The liability of the stockholders is secondary, and the proceeding to enforce it is statutory, not at common law; it was therefore held in several decisions that in such case the proceeding is wholly governed by the statute, and the rights and liabilities of the parties must be ascertained by it." O'Reilly v. Bard. Opinion by Clark, J. [Decided Oct. 6, 1884.]

KANSAS SUPREME COURT ABSTRACT.*

PARTNERSHIP-PROPERTY OF, PURCHASED BY PARTNER-EXEMPTION.-One partner may acquire title to partnership property by purchase from the copartnership, and if the purchase is not made with the intent to hinder, delay or defraud the creditors of the copartnership, and the property purchased is such as is exempt from levy and sale on execution under the statutes of the State, may hold it as against creditors of the copartnership. Burton v. Baum. Opinion by Hurd, J.

CONTEMPT-WHAT CONSTITUTES-HABEAS CORPUS. --To constitute a direct contempt of court there must be some disobedience to its order, judgment or process, or some open and intended disrespect to the court or its officers in the presence of the court, or such conduct in or near the court as to interrupt or interfere with its proceedings or with the administration of justice. To constitute a constructive contempt of court some act must be done, not in the presence of the court or judge, that tends to obstruct the administration of justice, or bring the court or judge or administration of justice into disrespect. D. executed his recognizance to appear in the District Court at a certain term and submit to a trial on a criminal charge pending against him in such court. He did not appear at the term of the court at which he was recognized, but absented himself from the county where the court was held. Proceedings were taken against him for contempt, and he was convicted and imprisoned. Held, that the facts stated in the charge against him, on which he was convicted, do not constitute a contempt for which he can be punished by fine or imprisonment. The judgment rendered was not warranted by law, and the court was without jurisdiction to render it, and the imprisonment under it is illegal, and the petitioner is entitled by proceedings in habeas corpus to be discharged from imprisonment. Matter of Dill. Opinion by Hurd, J.

MECHANICS' LIEN-LEASEHOLD ESTATE-EXTENT OF LIEN.-A mechanics' lien, or lien for materials and labor, may attach to a leasehold estate. We think the word "owner" in the statute as it now exists is comprehensive enough to include an owner of a leasehold estate as well as the owner of a greater estate. In the case of Chouteau v. Thompson, 2 Ohio St. 114, 123, the Supreme Court of Ohio, in construing a similar statute, uses the following words, to wit: "The word 'owner' in the first section of the act is not limited in its meaning to an owner of the fee, but includes also an owner of a leasehold estate. If the ownership is in fee, the lien is upon the fee; if it is of a less estate, the lien is upon such smaller estate. To hold that an owner in fee only is meant would be directly subversive of the policy of the act, and in a great degree ren

*Appearing in 32 Kansas Reports.

der it useless." A leasehold estate may include buildings, fixtures and machinery placed upon the real estate by the tenant. Such a lien may attach to the leasehold estate, including the buildings, fixtures and machinery placed upon the real estate by the tenant, although the tenant may have the right and privilege of removing such buildings, fixtures and machinery from the leased premises. Hathaway v. Davis. Opinion by Valentine, J.

CORRESPONDENCE.

PREFERENCES IN THE COURT OF APPEALS. Editor of the Albany Law Journal:

The attention of the bar is being called to the necessity of relieving in some mode the Court of Appeals; and many different views and suggestions have been presented. There is one matter however, while it will not tend to lessen the labors of the court, attention should be called to; that is, the great and growing injustice caused by the statutes creating preferences as a matter of right. While criminal cases should be preferred, there is no reason why all other cases should not be heard in their order, unless the court should deem it proper to advance such cases if in its judgment public or private interests justify it. The first two hundred cases on the present calendar are preferred under the statutes, and it may be safely asserted that in not ten per cent of them is there any reason for urgency, or that making them take their turn with other causes would produce any hardship. In upward of one-half of the other causes the returns were filed during 1883, and none of them will probably be reached before the June session, about two years from the time the return is filed, and probably in most of them an early hearing is as much deserved or necessary as in an equal number of preferred causes. Making of a calendar before the existing one is called through, operates to further postpone the hearing of causes on the general calendar. If the present calendar should remain until the causes thereon are all called, and that should be the rule hereafter adopted, it would materially al ter the limitation; there would not be the yearly push. ing back of causes on the general calendar to make way for cases where the appeals are taken long after other cases. Should not this matter be called to the attention of the court?

ANTI-PREFERRED.

[merged small][ocr errors]

AN INTERESTING INQUIRY. Editor of the Albany Law Journal:

I have been trying to compute the interest on a note from Oct. 25, also Oct. 29, also Oct. 31, 1884, to March 19, 1885. The question I want settled is: How long a time has elapsed on which the interest must be computed? I want the correct legal method of computing the time, but I cannot find any thing upon the subject. I write this to ask if you will indicate in your journal where I may go for authorities, even if you cannot answer my query yourself. I can obtain four different results for each note. What is the correct or legal method? An early reply will greatly oblige NEW YORK, March 30, 1885.

INQUIRER.

[ocr errors]

The Albany
Albany Law Journal.

ALBANY, APRIL 18, 1885.

CURRENT TOPICS.

HE Central Law Journal seems to have some

con

its views concerning the morals of the legal profession, and especially with regard to the "traffic in litigation." The Journal once sneered at our old-fashioned notions about the " tingent fee business." Possibly its change of views is attributable to a recent change of editors. Such a change sometimes works a difference of opinion. Recently alluding to the conduct of the Pacific Coast Bar Association in a certain case, the Journal said: "The better members of the bar have been guilty of too many questionable practices to proceed with alacrity toward purging their own ranks, and when they do proceed they find it an expensive and ungrateful task." This having been criticized by a correspondent, the Journal justified it as follows: "The language above quoted was deliberately written. It embodies a profound conviction, the result of many years acquaintance with the morals and practices of the legal profession. There are of course many honorable and highminded men in that profession. But the public distrust of the profession is increasing every day, and it is not an ignorant distrust, the result of low prejudice, or the opinions of that class of people whose misfortunes or crimes bring them in contact with the lowest class of lawyers. The best members of the legal profession in Missouri have, since the State existed, trafficked in litigation — bought it and sold it as though it were merchandise, and they are still doing it. We ask our learned correspondent if it is not so in Alabama. A barrister could not remain a member of any of the English Inns of Court who would do this. It is notorious that professional morals in the United States are very lax, and that lawyers in good standing can everywhere be found who have done things that would disbar them in England. This is an unpleasant thing to say. It is especially an unpleasant thing for a lawyer to say who loves his profession, and desires to promote its honor and extend its good name. A man does not start on a career of moral reform until he acquires a profound conviction of his own unworthiness. The same law holds good in respect of any number of men or any class of men. No real reformation will begin in the ranks of the legal profession until that profession as a body begins to share in some measure in the popular conviction of its own unworthiness. As long as the members of the profession are content to rest in the idea that all its practices are honorable, no real movement toward reformation will commence." And still more recently the Journal thus responds to another critic: "We agree that the lawyers as a class are as good as other men; but as their calling is a proVOL. 31-No. 16.

fession and not a trade, and as it concerns the administration of justice, they ought to be better than other men. We believe that the lawyers of Missouri are, as a class, as good as those of Alabama, and we believe that many of them in good standing in both States have been, and are, in the habit of prosecuting actions of ejectment and damage suits upon agreements to receive an aliquot part of the land or money recovered as a compensation for their services. This makes them speculators in lawsuits, degrades them from the honorable position of counsellors and advocates into that of secret parties, and tempts them into practices which are incompatible with a faithful demeanor toward the courts. We may err in this conclusion as to Alabama, and we do not speak of the east, with which we are not much acquainted; but we have reason to believe that this practice is more or less prevalent throughout the entire west and south. We have not yet seen or heard of any attempt on the part of any bar association to rebuke or correct it." In the main we agree with these views. It is refreshing to see this expression in so influential a journal, and it must have weight, coming from one of the first legal authors of our time, and an honored judge. In connection with this, we call attention to a leading article in another column, in which it is shown that the attorney in this State, under the law of 1879, has a lien on the client's cause of action, not to be affected by any settlement between the parties. This probably applies only to the attorney. It ought to be extended to the counsel. This would do away with the stock pretext for the necessity of the contingent fee business." But what with "trafficking in litigation" and resisting the demand of the people for simple laws and cheap justice, the lawyers in the Legislature and out of it, or a good many of them, seem determined to ruin the profession.

66

29.66

If the spirit of agnosticism continues to spread as it is now doing it will soon become necessary to modify our laws concerning judicial oaths, or a large and highly respectable part of the community will be disqualified from testifying. Mr. Louis Claude Whiton discoursed on this topic in 29 ALB. LAW JOUR. 344. Recently in Massachusetts a bill, the effect of which was to allow "infidels," 'atheists" and "agnostics" to testify in the courts of that State, was defeated in its Legislature. According to newspaper reports the vote in the Senate stood 22 against the bill to 10 in its favor. The Central Law Journal says: "Some of the most pure, honest, upright and distinguished men in Massachusetts are absolutely denied the right to protect by their testimony their liberty, their property and their lives in the courts of justice by the infamous rule which that vote perpetuated. But when we think of the fate of the bill in the Massachusetts Senate, just spoken of, we feel like saying, 'poor, old, narrow-contracted, hide-bound, bigoted, middle-aged, ante-deluvian, crustacean, superstitious, puritanical, praise-God-bare-bones, hew-Agag-hip-and-thigh, zeal-of-the-land-busy, I

*

**

[ocr errors]

|

Speaking of agnostics — at a meeting of the Nineteenth Century Club in New York, at which the subject of discussion was, "Moral Evil, its Sources and Remedies," Mr. D. G. Thompson, a wellknown New York lawyer, author of a work on Psychology, read an elaborate essay, in which he undertook to show that the great source of moral evil is poverty, and that the remedy is to divide up property more equally. He was combated by Father McGlynn, Catholic, and Rev. Mr. Williams, Unitarian. The weak point of Mr. Thompson's argument is in not recognizing the terrible prevalence of sin among the rich. One suggestion made by him struck us forcibly that laws ought to recognize and provide for satisfying while regulating the innate passions of men, and we then thought of the extreme folly, on which we have often commented, denying remarriage to parties divorced for their own infidelity. But what particularly strikes us just now is that Mr. Thompson, with all his culture and learning, and his unquestioned good character, might not be a competent witness in Massachusetts, against such a fellow as Sullivan, the prize-fighter, because while Mr. Thompson does not deny, and hopes for the existence of a God and a future state of reward and punishment for earthly deeds, he "does not know." In the discussion by the New York club Father McGlynn declared himself an ardent disciple of Henry George in respect to land tenure, which will give joy to Mr. Clark, whose work on "" Man's Birthright" we recently found a little fault with, however much it may disagree with the practice of the Father's church.

'ability; " but possibly he is afraid that the Code would interfere with the sale of the ponderous work on damages, originally written by another and very distinguished Sedgwick, and recently edited by the contemporary Sedgwick. But let us take courage, for "King Arthur" does not "rule this goodly land." Then The Nation says Mr. G. L. Rives has contributed to the same discussion a pamphlet on "Torts under the Code," in which he declares that the provisions "are in a remarkable degree incomplete, inaccurate and misleading.' We do not know what warrant Mr. Rives has for setting up as an authority. It is our misfortune never to have heard of him as a jurist or legal writer, or in any other way; but to oppose the Code is a good way for a young or old lawyer to become known, if not distinguished. The Nation observes: "Codification, if we are to have it, ought to be the work of the best legal minds. This 'Civil Code' is radically bad and disgraceful. Mr. Sedgwick deserves hearty thanks for his exposure of it." That puff ought to sell a good many copies of Mr. Sedgwick's great ancestor's great work on Damages, but we fear it will not, in California, at least. Now the question is, who is the attorney who gives the Post and Nation their legal opinions, and what axe he has to grind. We infer that any man who is so virulent as to pronounce the Code "disgraceful" has an axe to grind by defeating it. All these gentlemen would better confess that they are opposed to any and all codification.

am-better-than-thou, Massachusetts!'” This is rather rough, but we are not sure that it is not deserved.

[ocr errors]
[ocr errors]

There was a field-day in the lower house of our Legislature last week on the Code, in which Messrs. Ives, Baker and others distinguished themselves by their advocacy of the Code, while several others, whose names we suppress out of charity, distinguished themselves, Erostratus-fashion, by their opposition. The measure commanded a support of sixty-three votes against thirty-five. This result will encourage both sides, we suppose. Now we want to know what, if any thing, the opponents of the Code propose to give us. This matter is more important than capitols and parks. Are we to have any amelioration of our laws? And if so, when and what?

[ocr errors]

NOTES OF CASES.

IN

[N Ulrich v. New York Cent., etc., R. Co., New York City Common Pleas, Daily Reg., April 7, 1885, it was held that one riding on a railroad on a free pass exempting the railroad company from liability for negligence, may still recover if he was riding in a drawing-room car for hire. The court, Van Hoesen, J., said: "The plaintiff was using this free ticket undoubtedly, but he was also using another ticket, which he purchased and paid for. If he had been traveling on the free pass alone, the stipulations that it contains would have been a bar to his recovery. The language of the stipulation means that if the person using the pass accepts free passage he shall relinquish his right to compensation for injuries, and the law of this State holds that a free passage is itself a full consideration for a contract that will discharge a carrier of passengers from its common-law liability. The pass entitled him to ride in one of the common cars of the In all the Code-literature there is nothing quite company, but the plaintiff wished accommodations so amusing as the comments of the Evening Post of a better kind, and therefore he applied for transand The Nation. These inform us that at the direc-portation in one of the drawing-room cars that tion of the New York Bar Association, Mr. Arthur | form a part of the defendants' trains. He was acG. Sedgwick has published a review of the Code cepted as a passenger in the drawing-room car provisions in fifty-four sections on damages, and an- called the Empire, and paid one dollar for transnounce that "of only three sections is Mr. Sedg-portation in that car to New York. If the free wick able to say unqualifiedly that they are cor- pass gave him the right to travel on the train it rect." This speaks poorly for Mr. Sedgwick's gave him no right to travel in that car, and it is

« PreviousContinue »