The Albany Law Journal. A ALBANY, MAY 31, 1884. CURRENT TOPICS. GOOD deal of regret is expressed on account of the failure of Congress to enact a bankrupt act. So far as we can judge, the larger and better part of the business community are in favor of such a law. There was a great deal of fault found with the old law, but it arose from defects and wrongs in the administration rather than in the general scheme of the law. A uniform system of insolvency for the whole country certainly has its advantages. Not the least of these is the prevention of unfair preferences. It seems to us that a uniform system of insolvency laws is as useful, and much more practicable than a uniform system of marriage and divorce laws. Then if the system is good for one period, why not for all time? It may be more necessary at one time than another, possibly, but if the system is just and right at one pe-. riod, it must be just and right at all times. England has a permanent system of bankruptcy, and it is said to work well. We hear no fault found with it. The business community contract with reference to it, and know exactly what to expect when they give credit. Much more necessary to our country than to England is such a law, on account of the diverse and conflicting laws of the various States. A citizen of one State giving credit to a citizen of another does not know what his remedies are, and sometimes the debtor does not know what his risks areas in the matter of imprisonment for debt, for example. If Congress could be persuaded to pay a little heed to the real needs of this country in this respect it would be a boon to the community. As we understand, our Legislature have not abolished imprisonment for debt, but have limited the term of imprisonment to two years. This is simply laughable. If imprisonment for debt is right, why should the term be so limited? If imprisonment is designed as a penalty or punishment, why should it be administered by civil process, and not relegated to the jurisdiction of criminal courts? The entire idea of imprisonment for debt on civil process is puerile. It does not prevent men from trying to get credit, and it does not influence men to give credit. Nobody ever thinks of it one way or the other in trade. To be sure, in most cases, the debtor gets free, or out on the jail limits, after a short incarceration, but this simply makes the thing more ridiculous. If the debtor does not choose to ask release, he can stay in jail and compel the community to support him, and get rid of his obligation to support himself and his family. If he were out, and about his business, the creditor and the community would have the possible benefit VOL. 29-No. 22. of his labor. If creditors want the luxury of imprisoning their debtors on civil process, they should be made to pay for their support. If their debtors have committed any crime, then the creditors may reasonably ask for criminal punishment, and the community may reasonably be called on to pay the expense of the punishment. But we do not see that these matters of mere commercial dealCaveat ing call for such rigorous measures. venditor would be a good maxim. Not that it would make any great difference in practice, for there would be just as great competition to sell goods on credit as ever, and just as little vigilance. Merchants would take their chances just as readily as they do now. The spirit of commercial greed is a dangerous and indomitable spirit. We are by no means certain that Ward and Fish are the worst rascals in Wall street. Are not the men who gave them their opportunities just about as much to blame? There is very little reason in asking to have a man punished for false representations that he will pay one hundred per cent. If men who make such representations should be shut up in prison, those who believe them should be shut up in idiot and insane asylums, and if they do not believe them, they ought to consider themselves fortunate to escape the greater damnation. We would gladly see Wall street and all that therein is sunk in its neighboring Hell-gate. It is never of any benefit to the community, frequently of the greatest detriment. There used to be laws against stock gambling, but they were repealed in the interest of the gamblers. We make a great fuss about lotteries and gambling saloons, but Wall street is as much worse as it is possible to conceive. Nearly every dollar made there is at the expense of some one else who has nothing to show for it; the country is kept in an uproar, and the citizens are encouraged in the neglect of honest end productive labor. Why not re-enact and enforce the laws against stock-gambling? The best kind of "put for these stock-gamblers would be to "put" them in prison, and thus the community would stand some chance of getting an honest and productive day's work out of them now and then. The dangers of stock-gambling are encroaching on legitimate branches of commerce, and the time is not far distant when there will be "exchanges" in nearly every article of trade, and the noise of the “ticker" will suppress the voice of conscience all over the land. It is probably Utopian to hope for any law or the enforcement of any law against this What can be expected of legisladangerous craze. tors who cannot ride from the city of New York to this city without playing cards for money? A novel question was suggested in a recent telegraph case in England by the lord chief justice, who is reported to have told the jury that "the question whether a person has a property in a message or letter transmitted along an electric line is it with one from America, which does not show any superiority in the manner of advocates in the States. Interruption was, however, in this American court still less justifiable, because its advocates are only allowed an hour each to state their case in. Counsel being often interrupted in a difficult case at last stopped, and facing the bench said: 'I have told your honors that this is a puzzling case, and I am afraid it will be made even more so if your honors put more puzzling questions than the facts themselves."" The London Law Journal says the word ejaculated by the "noble lord" was "nonsense," and that while Mr. Benjamin might have overlooked the word "monstrous," he could not pardon the other expression. But how snobbish it is to talk of the "generosity" of the "noble lord!" Pray where was the "generosity?" The "noble lord" had acted like a cad, and simply did his duty in seeking a reconciliation. The Times article on Mr. Benjamin is very entertaining. It surprises us in stating his professional income at so small a sum as £15,000 a year for two or three years, at the new. *** If it were necessary to decide the case on The London Times says: "The late Mr. Benjamin, Q. C., is recorded to have once come into collision with a court, and once only, and the story may now be told because the end of it reflects honor on both concerned. He objected, and very naturally, to the interruptions of judges, who often make it extremely difficult to maintain any connected argument. A very learned lord having more than once interposed, met a proposition of Mr. Benjamin's with the ejaculation, 'monstrous!' Mr. Benjamin tied up his papers, bowed, and retired from the House of Lords. The junior proceeded with the argument. The noble lord, with his usual generosity, publicly sent a conciliatory message to Mr. Benjamin, and Mr. Horace Davey, who was second counsel, was heard in reply, although the practice of the House of Lords was thus infringed upon, two counsel having already been heard on that side. The difference was afterward entirely composed. It happened that when it was fresh, Mr. Evarts, the American lawyer; was in England, was entertained by Mr. Benjamin at the Continental hotel, and heard the story. He immediately capped IN NOTES OF CASES. 56, a young, vigorous, healthy, active man in [N Cumberland Valley R. Co. v. Maugans, 61 Md. a the full possession of all his physical and mental faculties, having a valise containing clothing in his right hand, and a basket of provisions on his left arm, attempted in broad daylight to leave a railway train while it was moving slowly, the distance from the lower step of the car to the platform being only eighteen inches, and in doing so was seriously injured. In an action of damages against the railroad company it was held that he was not necessarily negligent. The court said: "Accidents occur, and injuries are inflicted under an almost infinite variety of circumstances, and it is quite impossible for the courts to fix the standard of duty and conduct by a general and inflexible rule applicable to all cases so that a departure from it can be pronounced negligence in law. The rule that requires a party before he crosses a railroad track to stop, look and listen for approaching trains, which has been generally adopted by the courts, is the only one that approaches universality of application in reference to a particular class of accidents. But there is no such general accord of judicial opinion and precedent in reference to attempts to leave a a car while it is in motion. The cases cited in the briefs of counsel on both sides show very clearly that the weight of authority is against the proposition that it is always, as matter of law, negligence and want of ordinary care for a person to attempt to get off from a car when it is in motion. This proposition was pressed upon the Court of Appeals of New York in the case of Morrison v. Erie Railway Co., 56 N. Y. 302, but Folger, J., in delivering the opinion of the court in that case, said: Were I disposed to accede to it upon principle, which I am not, I should feel myself precluded by prior decisions of this court, and influenced to a contrary conclusion by those of other courts. The rule established, and as I think the true one, is that all the circumstances of each case must be considered in determining whether in that case there was contributory negligence or want of ordinary care, and that it is not sound to select one prominent and important fact which may occur in many cases, and to say that being present there must, as matter of law, have been contributory negligence. The circumstances vary infinitely, and always affect, and more or less control each other. Each must be duly weighed, and relatively considered before the weight to be given to it is known.'" Counsel for appellant cited Jewell's case, 6 Am. and Eng. R. R. Cases, 379; Nichols' case, 106 Mass. 465; Lucas' case, 6 Gray, 70; Aspell's case, 23 Penn. St. 149; Lewis' case, 38 Md. 598; S. C., 17 Am. Rep. 521; Nelson's case, 68 Mo. 594; Com. v. B. & M. R. Co., 129 Mass. 500; S. C., 37 Am. Rep. 382, and note, 384; Gavett's case, 16 Gray, 502; Morrison v. Erie R. Co., 56 N. Y. 302; Burrows v. Erie R. Co., 63 id. 558. Counsel for appellee said: "In 12 Moak's English Reports, 306, in the notes to the case of Robson v. North Eastern Railway Co., L. R., 10 Q. B., 271, the learned annotator says: 'It is not per se negligence for a passenger to alight when a train of cars is moving slowly,' and cites therefor many authorities, the following amongst the number: Johnson v. West Chester & Phil. R. Co., 70 Penn. St. 357; Penn. R. Co. v. Kilgore, 32 id. 202; Doss v. R. Co., 59 Mo. 27; S. C., 21 Am. Rep. 371; Filer v. N. Y. Cent. R. Co., 49 N. Y. 47; Lambeth v. North Carolina, etc., 66 N. C. 494; S. C., 8 Am. Rep. 508; R. Co. v. Badeley, 54 Ill. 20; Curtis v. Detroit, etc., 27 Wis. 158; see also Swigert v. Han. & St. Jo. R. Co., 75 Mo. 475; Straus v. Kansas City, id. 185." See also Central R. & Bank Co., v. Lefcher, 69 Ala. 106; S. C., 44 Am. Rep. 505, and note. 505; 23 Alb. Law Jour. 124. In Ames v. State of Kansas, decided in the United States Supreme Court, April 21, 1884, the prominent question was whether a suit brought by a State to try the right of a corporation and its directors to exercise corporate powers and franchises within the territorial jurisdiction of the State, can be removed under the act of March 3, 1875. This question is answered in the affirmative, in an opinion by the chief justice. The brief submitted in this cause by Mr. Clarence A. Seward for the State is of exceptional learning and interest. It makes two main points: 1. The original Federal jurisdiction in cases in which a State is party is exclusively in the Supreme Court. 2. If by the act of 1875 Congress has lawfully divided such jurisdiction with the Circuit Courts, then the Supreme Court has no appellate jurisdiction over the decisions of the Circuits. The first point is sought to be sustained by the brief generally. The second point is founded upon Osborn v. United States Bank, 9 Wheat. 820, in which the court said: "In those cases in which original jurisdiction is given to the Supreme Court the judicial power of the United States cannot be exercised in its appellate form." The chief justice bases his opinion in great degree upon the analogous doctrine respecting jurisdiction as to consuls, as laid down in several Federal decisions, and sums up in the following paragraph: "In view of the practical construction put on this provision of the Constitution by Congress at the very moment of the organization of the government, and of the significant fact that from 1789 until now no court of the United States has ever in its actual adjudications determined to the contrary, we are unable to say that it is not within the power of Congress to grant to the inferior courts of the United States jurisdiction in cases where the Supreme Court has been vested by the Constitution with original jurisdiction. It rests with the legislative power of the government to say to what extent such grants shall be made, and it may safely be assumed that nothing will ever be done to encroach upon the high privilege of those for whose protection the constitutional provision was intended. At any rate, we are unwilling to say that the power to make the grant does not exist." We should have been glad to see a more robust grappling with this very important constitutional question. In Pointon v. Hill, 50 L. T. Rep. 268, colliers on a strike, living with their families at Silverdale, drew a wagon through the streets of Burslem inscribed, "the children's bread wagon." One of them went into a shop and asked the shopkeeper for assistance for the miners, and then went into a private house and asked for bread for the children, and got a cabbage. The men were not disorderly, and their demeanor was not improper, but it was stated that this mode of going about was of constant occurrence, and caused annoyance to householders. Held, that they were not "idle and disorderly persons," within the meaning of the act, providing that "every person wandering abroad or placing himself or herself in any public place, street, highway, court or passage, to beg or gather alms, or, etc., shall be deemed an idle and disorderly person." Cave, J., said: "This means persons of a certain character and course of life, and it seems to me that the proper conclusion to be drawn from these words is that the act was directed against a certain class of persons of a peculiar habit and mode of life, namely, those persons who make it their habit and mode of life to wander about and put themselves in streets and highways, there to beg and gather alms, and such persons come within the statute. But if any particular person, for any specific purpose, and not as a regular mode of gaining a living, or for the general object of maintaining himself, but for some particular object, not in itself unlawful, went from house to house to solicit subscriptions, that would not be within the meaning of the statute. Persons, on what is called of reform" in New York may be crab-like, and we may all live to see the jury system restored to its pristine simplicity in the Empire State; the jurors being drawn from the vicinage, and constituting the witnesses in the case as well. But the general drift will be in the direction of enlisting intelligence in the jury service. The forming and expressing of an opinion concerning the guilt or innocence of a prisoner may not remain in and of itself a cause for challenge, and perhaps some of the States will repeal the ridiculous statutes making jurors It is doubtful however if the road to substantial reform lies in this direction, or if the changes suggested would accomplish their purpose. It is not only juries in criminal cases which imperfectly discharge their duties, but the average of intelligence and capability is not high in the jury boxes of the civil courts. There is a very obvious reason for this in almost the universal disinclination of the better classes of citizens to serve on juries. In large cities, and in fact everywhere in this country, the strife of competition is active. It is necessary for a man having a business in charge to devote all of his time to it; to be constantly in readiness for the swift developments of commercial life. A few may be so fortunate as to have clerks to whom the management of their affairs might be confided with safety, but ordinarily the presence of the owner of the business is necessary to its successful conduct. Hospital Saturday, placed themselves at the corners of public streets to solicit subscriptions for hospitals, and it had never occurred to any one that the persons who did so, not seeking any thing for their own advantage, and not doing so as a regular habit and mode of life, but for a specific and charitable object, were within the purview of the act. In the case before us the case finds that the appellants were working men, having their homes and families, but who in consequence of some disagree-judges of the law as well as of the fact in criminal cases. ments with their masters, were, as it is said, out on strike. There was nothing unlawful in that, and we know that unfortunately there are many such disputes between employers and their workmen. Whether the workmen were right or wrong in this instance, we have no means of judging, nor is it ma terial to know. But it seems to me that these men were not infringing the act when they went about in an orderly way for the purpose of representing their case to the public, and trying to induce the public to assist them on that particular occasion, and with reference to the position of their families at that time, while they themselves were on strike. There would be a difficulty in distinguishing this case from a case of a poor man who had, say, lost his cow, his sole means of support, and went about the country, with the approval of his neighbors, who had perhaps signed papers in his favor, which he took from house to house, soliciting assistance to enable him to buy another cow. In one sense he may be said to go round to ask for alms, but not in the sense that is meant to be dealt with in this act. When a man placed himself in the public streets to ask for alms, not for any particular object, this would be evidence from which it might be inferred that he did so as a mode of getting a living, and that might be an offense within the act. But it is clear that if, as in this case, on some particular occasion, men who are ordinarily hard-working and industrious, went about from house to house to ask assistance for some specific object, which was not intended to provide them with the ordinary means of living, this was not what was aimed at in the act. This was what was done in the present case, and therefore I have come to the conclusion that the case did not come within the act, and that the conviction ought to be quashed." THIS THE JURY SYSTEM. HIS winter, when the Legislatures of the various States are in session at their respective places of assembly, we shall undoubtedly be furnished food for reflection and discussion in the form of amendments to and alterations of existing jury laws. What these alterations and amendments will be it is of course impossible to foresee, but it is more than likely that the reform in most instances will be limited to those features of the laws which are at present claiming the attention and receiving the denunciations of the secular press. New York may be an exception. Judging by the recent action of the Senate, alluded to in No. 744 of the JOURNAL, tending toward the exemption of bankers from jury duty, the progress of "the star-eyed goddess The same reasons, a little altered in form, perhaps, force the same results in small places and in the agricultural districts. The consequence is that every sort of subterfuge is resorted to for the purpose of escaping the distasteful and oftentimes financially oppressive duty. Substitutes are offered, and in most instances accepted; physicians' certificates are procured as often without foundation as with; excuses are fabricated with but slight regard for the sanctity of an oath; and lawyers are frequently offered very substantial fees for the release of an unwilling "good man and true." This in the civil courts, and when only obscure business en gages the attention of the other tribunals. In great criminal cases it is safe to say that out of a venire of two hundred or more every man who is fairly qualified to discharge the duties of a juror as they are now recognized, and who does not wish to serve, will escape serving. Conscientious scruples against capital punishment, prejudices for or against the accused, rock-rooted opinions about the case which no amount of evidence could remove, spring up in the minds of those summoned almost in the twinkling of an eye. I have been told by prominent business men here that after being summoned as jurors in a murder case they have purposely disqualified themselves. If they knew nothing about the case before they sought information, and drew from it an opinion which they immediately expressed. When Jere Dunn was tried in Chicago a knot of business men who had been summoned on a special venire to serve as jurors stood in the court room busiily talking over the details of the tragedy, and every one of them, when he got into the box, swore that he had formed and expressed an opinion about the case; that he would not say that evidence would remove that opinion, or that he could sit as an impartial juror in the case. As long as the law will not sanction a trial before a confessedly prejudiced juror, the prevailing disinclination to serve will frustrate the provisions of the most skillfully drawn statute which could be smuggled through a Legislature. And the fact that this jury duty sits uneasily upon the shoulders of the people and is irksome to them, is a loud demand for some radical change in the statutory law. In truth the jury system is a relic of by-gone days. It is like an old sword or armor, a rusty heirloom which recalls the simplicity and primitive institutions of our ancestors, but which has long survived its usefulness. The jury system preserves those principles which in the early history of this country compelled every citizen to work on the public roads a given number of days in the year, and which commanded him to bring his flint-lock to "general muster" on the days when the train bands were assembled. They carry us back, if not to a "state of nature," at least to the primordial aspects of society. The argument is familiar, and within its proper limits irrefragible. Every member of a society is indebted to it for his protection, and therefore he is obligated to pay a proportionate share of its common burdens. But that does not mean that every member of the society must perform an aliquot share of each of its manifold duties. It is the duty of a government to insure its people in the enjoyment of their inalienable rights, and to that end courts are established, places of confinement maintained, legislatures empowered, offices provided for the registry of titles, and innumerable facilities afforded for the regulation and conduct of the common affairs of all the people. It is impossible that the public employments which we term offices should be handed around from man to man like apples at a donation party. A State may be compared to a large family in well-to-do circumstances. There numerous things are necessary to be done for the happiness of and prosperity of the family, but the household duties are not parcelled out among the parents and children. Servants are employed, whose business it is to look after the several departments of the household. And so society must have its servants, skilled in the particular line of their employment, and more or less fitted for the services they are called upon to perform. We as a nation, and in the affairs of our State and municipal governments, need many servants for infinitely diversified employments. On what basis shall they be selected? The obvious answer is with reference to their qualifications to properly and intelligently perform the duties required of them. Jurors in their brief hour of power are intrusted with duties not less responsible than those of the judge himself. If the administration of law is more important than the law itself, then jurors enjoy a more exalted station in the list of public servants than legislators. It is at least as important that justice should be done between man and man as it is that the records should be properly kept, the streets of a city frequently swept, or the office of constable respectably filled. And yet if the manner of selecting jurors were held to apply to the selection of all servants of the public; if the salary and tenure of office were uniform in all cases, what indescribable confusion and turmoil would be introduced into governmental affairs. Fancy drawing congressmen, judges, members of the Legislature, clerks of court, mayors of cities and the like out of a box into which every tenth name on the poll list was placed, each one drawn to serve not more than two weeks in any one year, and to receive for his services the princely sum of $1.50 per day besides mileage. Such a system might have furnished good jurors long ago, when jury trials were few and far between. So would this system have supplied satisfactory officers in the early dawn of a nation's history-among the very first settlers on the shores of this country, perhaps. But we have progressed beyond the civilization of those days. "The courts of the king are always open." The "fountain of justice" flows unceasingly now, and the jury, instead of being an occasional incident of a session of court, is now a perpetual institution, for which work will be provided faster than it cau be disposed of. All other public employments have been confided to deputies and representatives. All the rest of the goverumental work is done by the servants of the public. But like some New England housewife, who will not permit any of her servants to sweep the parlors, we, the people, retain the jury duty in our own keeping. What rational basis is there for this distinction? If we compelled our bankers, merchants and farmers to do police and militia duty as we seek to enforce their serving on juries, it will be conceded that we would have deplorably inefficient policemen and soldiers. Does not this illustration show one reason at least for the unsatisfactory condition of the jury service? Or are the duties of jurymen so simple, are the problems submitted to them for solution so free from difficulty that for the purpose of serving on a jury every voter who understands the English language shall be presumed capable? The answer is in every man's mouth. The universal dissatisfaction with the jury service establishes its inefficiency beyond a reasonable doubt. To establish the office of juror and fill it in some reasonable way for a sufficiently extended period to afford a promise of intelligent service would, in my judgment, be a most substantial and satisfactory reform. But there is another serious defect in the system, to which I beg leave to call attention. Under laws now in force the verdict of a jury is very similar in many respects to the decision of a judge who gives no reasons. It may be right, but the course of the argument being unrevealed, the conclusion oftentimes loses half its weight. It is probably for this reason as much as for any other that so many verdicts are set aside as contrary to the evidence. In any case, not the simplest, it is impossible to say with certainty what facts have been found by the jury. In cases of fraudulent transfers of property, in criminal cases, and in all causes where the evidence is conflicting, the verdict of the jury affords only a theoretical clue to the facts. It is clearly contrary to the elementary principles of the system for courts to interfere with verdicts on the ground that the evidence does not establish the facts necessary to the conclusion. But we have enlarged the functions and powers of the jury. They not only find the facts, but under the instructions of the court, one-half of which they generally do not understand, and the other half of which they are apt to forget, they pronounce a conclusion of both fact and law. This is a perversion of the proper powers of a jury, and entirely beyond the abilities of the average panel. We frequently read of criminals found guilty of the most atrocious crimes receiving most inadequate punishment at the hands of juries, and in civil cases the most astonishing conclusions are frequently drawn by juries from their premise of guilty. These things furnish some justification for, if they do not render indispensable the corrective power assumed by courts over the verdicts of juries. But the evil itself should be cured, and this can easily be done. The jury should simply find the facts. They should pronounce no judgment or conclusion upon the facts, but they should furnish the court with a certificate of the facts found, something like in form to a complaint or petition under the codes, with perhaps a little more attention to detail than is required in some of the States. The law itself is certain, and the facts being definitely and finally ascertained in some intelligible way, a judgment could be pronounced upon them with confidence. This reform would require some little education on the part of the jurors, and I am afraid that no rightminded legislator would ever vote to deprive his unlettered and ignorant constituents of the blessed privi |