The Albany Law Journal.

ALBANY, MARCH 1, 1884.

CURRENT TOPICS.

statutes, now presented to the Legislature: "This bill covers, in its way, much the same department of jurisprudence which Mr. Field's Civil Code covers in quite a different way. The aim of the Civil Code is to state the rules of law, rather in the form of principles; and while avoiding minutiae of detail, to state all the important general rules, which the courts ought to recognize and respect, in dealing with the subject in hand. This method naturally results in comparatively short sections, each enunciating a general doctrine, and the whole aiming to form a systematic outline of the entire law on the subject, without minute regulation or details of application. The revision bill, on the other hand, aims at a method perhaps more in consonance with the views expressed by the opponents of codification. It does not attempt to reduce to written form the doctrines of the courts, but embodies all the existing statutes on the subject in hand, with such modifications as appear to the draftsman to be necessary to bring them into harmony with each other, and with a limited number of modifications originating in the judgment of the draftsman or suggested by reported cases as being desirable to improve the statute, and with quite a number of additions intended to carry into further application the specific regulations of detail, such as are already contained in many of our special statutes. Many pages of the revision therefore present long sections furnishing minute regulations as to matters of detail incidental to the administration of the law, such as are apparently rather avoided by the Civil Code. The one bill proposes a systematic and complete formulation of general principles, and this brings into the statute law very much which has not been heretofore regulated by it at all. The other leaves unregulated what has not been regulated heretofore, but proposes to regulate in much further detail what is already the subject of regulation. We should like to know which bill, on the whole, would be preferred by those whose opinions are represented in Mr. Carter's pamphlet." Mr. Throop's bill approximates in size to the Civil Code, but contains less than a thousand sections. Mr. Carter ought, to be consistent, to be more hostile to this than to the Civil Code. But we shall see.

In a work by a distinguished English legal writer there is a table, prepared it is said by "a very eminent American jurist," of the relative value and authority outside their respective States of the American Reported Decisions. They are divided into four classes, A. B. C. and D. A stands for VOL. 29 No. 9.

very high and D for very low. B and C are 'middling." Under A are placed all the Federal Reports both Supreme and Circuit, all the Reports of Massachusetts and Pennsylvania, and all the Reports of New York, except Anthon. Under "D" (a sort of index expurgatorius, for the English bar, we suppose,) no fewer than nineteen reporters have the misfortune (in several cases quite deserved) procession, Bibb, Hardin, A. K. & J. J. Marshall, Monroe, Peck, Martin & Yerger, Humphrey, Cooke and Yerger all appearing. Ohio appears twice (Wright and Hammond), and Alabama (Porter), North Carolina (Martin), Connecticut (Kirby), Maryland (Harris & McHenry), Indiana (Blackford), Virginia (Va. Cas.), and New York (Anthon), each once. All the rest of the Reports and Reporters are rated “B” and “ C,” fair and middling.

More than an ordinary book notice is deserved by Mr. Austin Abbott's Annual Digest of New York Statutes and Reports of 1882-3. This is an extensively annotated digest. The author says in the preface: "An annual digest ought to be much more than a compilation of the head notes of the year's reports. It appears to me that it may be made the instrument of gathering and concentrating upon each subject all the light which the cases of the period can shed for the reader; and to do this completely it must include not only new points in judgment, but also what has been done by way of confirming, explaining, limiting or overruling the doctrines of previous cases. In addition to this it has seemed to me that a digest might fairly be made to represent in a condensed form-photographed down,' as it were - all that is valuable in the entire body of judicial discussion of the period, by indicating intelligibly, in connection with each decision, the authorities which the courts during the current year have deemed worthy of recognition as precedents in the present state of the law. This volume is the first attempt to reduce the growing mass of annual decisions to a form in which they will afford this service," i. e., "turn the otherwise unmanageable mass of reported decisions into an Accordingly,

inexhaustible mine of authorities."

* *

on every page are notes, frequently quite extensive, stating what authorities were cited in the particular case, and to what point, and what was said of them; and information is frequently given as to other like. In these notes other cognate decisions are also sources of knowledge, such as law journals and the pointed out and described and commented on. The cross-references are singularly abundant and detailed. There is a table of constitutions, statutes and rules cited; and a table of cases digested and cited, briefly stating the points of decision, the two classes of cases being distinguished by different type. We believe we pronounced Mr. Abbott's last volume before this the best digest we had ever seen, but we must now transfer that praise to this. immense mass of current law is compressed within 650 pages, which shows that there is no padding.

This

We do not know of another guide-book and directory to recent decisions so judicious and useful as this, and we believe that it can never be surpassed, either in plan or execution, unless by Mr. Abbott himself.

Mr. W. I. Babb has introduced in the Iowa Legislature a joint resolution requesting the governor to invite the several States and Territories to send each two representatives to attend a convention at Des Moines, on the first Wednesday of May, 1885, to consider the subject of uniform laws in relation to divorce, mercantile paper, and convey ancing. The preamble deprecates any constitutional amendment in the premises. The evils of the present divorce system, or rather want of system, are rather luridly set forth as follows: Whereas, The great and underlying evil of the whole subject grows out of the diverse systems of procedure and causes of divorce in the different States and Territories, enabling parties who for any trivial cause may desire a separation from those with whom they have vowed to live until death do part,' to resort to the divorce courts of distant States, and by testimony of at least doubtful character procure a decree of divorce, without even the actual knowledge of the other party, a system, or rather want of system, which puts it in the power of the pettiest State to make itself a nuisance to all its neighbors, a spot for the breeding of infectious social disease which unfortunately cannot be stayed by the imaginary lines which marks its political boundaries, but which must affect the whole sisterhood of States a system which enables the procurement of a divorce which is recognized as valid in one State and invalid in another; a system, which should the parties re-marry another person, makes them criminals in one State and innocent in another; a system which permits the sentence of illegitimacy to be pronounced against the innocent offspring in one State and declares them legitimate in another; a system which seriously affects the inheritance and succession of all property in such cases depending upon the conflicting decisions as to the validity or invalidity of such decree; a system which cannot be otherwise than wholly demoralizing in its results and tendencies." Probably this is the best way to go to work, and perhaps the attempt is well enough, but we have very faint hope that any thing will ever be accomplished by joint action toward remedying the mischief. The divorce laws of some States show such an utter lack of conscience that we have no faith in the power of furnishing any substitute by innoculation.

The Tribune's fishing expedition for opinions as to codification must be disappointing to it in one respect, however agreeable in another. Of twelve | hundred lawyers consulted, 640 favor codification and 569 oppose it. This is the disappointment. But only 364 approve Mr. Field's code, while 745 oppose it. This is probably agreeable to the Tribune, allowing its computation to be correct. We are assured, however, that of the 640 in favor of codifica

tion only 75 expressedly oppose Mr. Field's code, and that the Tribune makes out its majority by classing all those who omitted to answer that question, in the negative. Those who expressed an opinion on this point were almost equally divided. The 364 have probably read Mr. Field's code, and the 745 probably have not. If "lions could be painters "if we should send out for statistics, we could probably reverse these figures. After all these "straws" amount to very little on either side. Another thing must be borne in mind, the question at issue is not one of pleasing the lawyers, but of doing justice to the public. We hope the day is far distant when systems of laws shall be enacted or not, according to the dictation and interest of the lawyers.

There are now eight judges in our Court of Appeals' Chamber in gowns. The seven judges of the court put on gowns on re-convening on Tuesday morning. The change of dress is scarcely noticable, but looks well on scrutiny. Just as many lawyers are present anxious to be heard as usual. But now we expect that the next breeze that blows from the west will bring to our ears the clash of resounding quills of legal editors who see in this change of garb a shaking of the pillars of the State.

The eighth gown is worn by Palmer's statue of Chancellor Livingston. This bronze statue, the noblest in-doors portrait statue in the United States, has been removed from its former position in one of the corridors, and placed between the south windows of the court-room. It is a duplicate of that in the capitol at Washington, which puts to shame those staring white abortions by which it is surrounded. This statue furnishes a reason why the man thus looks so judges should wear robes much better in statuary. The State ought to buy Mr. Palmer's statue. A bill once passed both houses, for its purchase, but was vetoed, on the ground, we believe, that the capitol should first be paid for. It would be better to cut off some of the uscless, extravagant and tasteless outlay on this building, and buy a few real works of art. This State, we believe, has never spent a dollar for a statue, bust, or painting of a single one of its great men. It would be well to begin with this superb figure of one of the most useful and influential citizens that our State has ever had, and who did more for the law and the State's national prosperity than any other,

The great case of Belt v. Lawes is very unquiet. Since the judges granted a new trial- no two of them agreeing on the reason several of the jury have published the considerations on which the verdict was founded. One juryman recants his verdict, and declares that if he had to try the case again he would find for the defendant. All this is very indecent and very silly. Fortunately the jurors in the Cesnola-Feuardent case can hardly make such fools of themselves.

NOTES OF CASES.

N Cleveland v. Shoeman, Ohio Supreme Court

was held that a National bank may lend money on a note secured by pledge of a warehouse receipt. The court said: "A warehouse receipt, like a bill of lading, is a symbol of the property designated in it, and stands in the place of the property it represents. The question therefore arises, whether the bank transcended its power in taking the warehouse receipt as collateral security for the note of Lester. The section of the statute under consideration contains several distinct and independent grants of power- neither grant being a limitation on any other and describes the kind of banking in which National banking associations are authorized to engage. To render these grants effective, such associations are authorized to exercise such incidental powers as shall be necessary to carry on the kind of banking permitted. A national bank therefore empowered to carry on the business of banking 'by loaning money on personal security,' may also exerLise all powers incidental thereto. Vested with such authority, we do not think, that in making a loan on the personal obligation of the borrower with a warehouse receipt as collateral security thereto, the bank exceeds its statutory powers. It is not to be limited, in taking security for discounts and loans, to the personal undertaking of the borrower, or to the security afforded by the names of indorsers or personal sureties, but may take a pledge of bonds, choses in action, stock of a corporation, bills of lading, and other personal chattels, The language 'personal security' would seem to refer to other personal security than is mentioned in the first grant of power in section 5136-authorizing the business of banking 'by discounting negotiable promissory notes, etc.' Dillon, J., in Pittsburgh Car Works v. State National Bank of Keokuk (Thompson's National Bank Cases, 315), says, 'The words 'loans on personal security' in the banking act are used in contra-distinction to real estate security;' and in that case it was held, that a National bank might take personal chattelse. g. a locomotive, as security for discounts and loans. And while section 5136, if not in terms clearly by implication prohibits a loan on real estate, yet the Supreme Court of the United States in National Bank v. Matthews, 8 Otto, 621, not narrowing the application of the words 'personal security' held, that where a National bank loaned money, and as collateral security took the assignment of a note secured by a mortgage of lands with a power of sale thereto annexed, the bank was entitled, upon non-payment of the loan at maturity, to enforce the collection of the note by a sale of the lands. Without commenting upon the numerous authorities which have been brought to our notice, we are of the opinion, that the court below did not err in refusing to charge the jury, that a National bank could not lawfully take personal property as security for a loan of money; and in taking the warehouse receipt from Lester, as

collateral security for the loan made to him, the bank did not transcend its powers."

The Kansas Supreme Court seem to think that a counsellor should be like Cæsar's wife, not only pure but unsuspected. In Farlin v. Sook, to appear in 30 Kans. 401, the court said: "This case has been once to this court, and the opinion will be found in 26 Kans. 397. At that time we felt called upon to animadvert upon the conduct of counsel for plaintiff in error. We did so reluctantly, but because under the circumstances we felt it our duty so to do. The learned counsel feels hurt by our criticism, and in connection with the present presentation of the case, calls our attention again to the matter, and earnestly insists that he was wronged by such criticism. Coupled with his own statement are presented the statements and suggestions of other counsel from that district, some of whom were familiar with the facts as they really existed. The writer of this opinion was not on the bench at the time that case was argued, and his information concerning what then took place is derived solely from the representations of his associates and others. We have carefully considered the suggestions made by counsel and others, coupled with the facts as they then presented themselves to the court, and upon them desire to make these comments. First, we refer to the claim of counsel as now presented; and in order that there shall be no mistake, we quote the language of his statement: First. I do not think your honors ought to have investigated the quality of my moral or professional conduct upon a motion to dismiss a petition in error. The attorney for defendant in error said, by his motion, that as a matter of law such unprofessional conduct with which he charged me was sufficient cause for the dismissal of the case of my client. It seemed to me then, as a matter of correct practice, that I was called upon to say no more than, 'Admitting everything you say about me to be true, that is no reason that the petition in error should be dismissed;' and your honors agreed with me.' We must most respectfully but firmly dissent from the ideas presented in this claim. It is true, that this court sits mainly as a court of review and to correct the errors in the proceedings of trial courts; but beyond that it has a duty to discharge to the people of this State, and to the members of the bar who practice before it. All gentlemen admitted to practice in this court are officers of the court, and it is not only the privilege, but it is also the duty, of this court to see that they so conduct themselves as to justify the confidence of the community. We all know that certain general rules of law and practice are established, conformity to which is essential to the due administration of law and to the good order of society, and yet that often parties, keeping themselves within the limits of those rules and thus safe from legal condemnation, take advantage of the ignorance and inexperience of others, and accomplish results, which however justified by considerations

of public policy, in the individual instance work injustice and wrong. Indeed, this lies at the foundation of many of the harsh criticisms upon our profession, that its members, while keeping within the letter of the law, violate its spirit and do that which really works injustice and hardship. Now it is unquestionably the duty of this court, as of all other courts, notwithstanding the individual hardship, to enforce all established rules of statute, common law, and practice; but it does not follow from this that while we uphold that which is done in accordance with those rules, we must either commend or pass unnoticed the conduct of counsel or party, which, kept within the letter of the law, offends the sense of justice, or transgresses the bounds of professional or gentlemanly conduct. It is of course a delicate matter to criticise or condemn the action of client or counsel, but we should be unworthy of the trust reposed in us if at any proper time we failed to express our clear condemnation of any conduct which offends the rules of gentlemanly or professional intercourse. We would not willingly wound, we would not unnecessarily offend; but whenever in any case coming before us there appears any trespass upon the obligations of gentlemanly or professional intercourse, we should be false to our oath and recreant to our duty if we failed unhesitatingly to condemn, or in extreme cases to disbar. Premising this, we may say that from the facts now presented it seems that the burden of our criticism was provoked by the failure of counsel to recognize this fact and tender full explanation of his conduct. It seems as though then and now, he thought the duty of this court was limited to a discussion of the legal rights of the parties, and the legal effect of the action of counsel. He placed himself then in the position of saying, 'I admit the moral taint of my conduct, but it is legally defensible, and therefore it was the duty of this court to uphold the conduct and say nothing as to the moral character.' He evidently acted upon this theory, and presenting no explanation or defense, simply said: 'Conceding it all to be true, what difference does it make?' As we have already said, we conceive it to be our duty to go beyond the mere consideration of the legal result, and to criticise and condemn, to commend and approve, according to the moral character of the act. We did so at the time that opinion was filed, and we have no disposition to qualify or limit or withdraw the criticism then placed upon the conduct of counsel as then disclosed. But we take pleasure in saying, that from the representations of fact as now made by the gentleman and other parties, it appears that while not then presented, there were other facts which justify or at least palliate his conduct. * * * As all these acts are now presented, they certainly do away with the burden of our criticism and condemnation. * * k We gladly make this explanation, and place it upon the records of this court. We would not willingly do the slightest injustice to any counsel, or leave any stigma upon his professional character. As hereto

fore said, we think counsel made a grave mistake. When the case was then before us, he tendered no satisfactory denial or explanation of the charge, but simply said, 'If it be true, what difference does it make?' While we agreed with him that it did not avoid the case made, we felt compelled to criticise and condemn his conduct. Now he comes forward with a statement of himself and others, showing facts which explain his conduct and place it in a very different light; and so we place the explanation side by side with the criticism, and close by saying that the conduct, as then charged and unexplained, deserved the criticism then placed; as now explained by the staternent of himself and others, it places the matter in a very different light, and shows that he did not in fact act so as to deserve the criticism placed upon him.”

In Quinn v. Shields, Supreme Court of Iowa, December, 1883, 17 Rep. 239, it was held that the fact that a witness to a will is a corporator of a charitable institution and a distributee upon the dissolution thereof, will not defeat a bequest thereto. The court said: "The fourth article of the foregoing instrument declares that the purposes of the association are to enable the incorporators to establish and manage hospitals, schools, asylums, and other institutions for the relief, education, and care of the poor, the needy, the distressed, the orphans, and the ignorant.' These objects are all essentially charitable, and are never pursued when under the care of religious sects, whether Catholic or Protestant, with the view of pecuniary profit. The distribution of dividends to corporators or others, arising from the earnings or profits of such institutions, is an unheard of thing. It clearly appears that the incorporators of the association in question can receive no dividends or profits therefrom. The witness to the will therefore had no pecuniary interest based upon the right or expectation of receiving dividends or profits. But it is urged that upon the dissolution of the corporation its assets will be divided among the corporators, and for that reason the witness has an interest in the property bequeathed by the will. For the purposes of the case let the position be admitted, though we do not so hold, and to say the best of the proposition, it is extremely doubtful. But such interest is uncertain and contingent. It depends upon whether the witness will survive the dissolution of the corporation; whether it will, when dissolved, have any assets to distribute; or whether it may not by reincorporations continue to hold the funds indefinitely. The interest, to disqualify the witness to a will, must be present, certain, and vested. See Hawkins v. Hawkins, 54 Iowa, 443. In that case it is held that a wife has no such interest in a legacy to her husband as will disqualify her to witness the will. Yet surely the interest of the corporator signing the will in this case as a witness is not less remote, uncertain, and contingent than the interest of a wife in a bequest to her husband.”