Party," "Evolution and the Present Age," "John and the granting of a new trial, where the counsel for Milton," "The Death of John Tyndall," "Koschei the accused objects to such remarks and moves the the Deathless," "The Makings of a New England court to declare a mistrial. Town," "Reminiscences of Huxley," "The Fall of French Power in America,” and “ Connecticut and the Federal Constitution." In the absence of anything to show ill-will or malice, it is held, in Cherry v. Des Moines Leader (Ia. [54 L. R. A., 855]), that a verdict must be The Macmillan company contradicts the state- directed for defendant in an action for the publicaments recently made in regard to Charles Major's tion in a newspaper of an article ridiculing, in "Dorothy Vernon of Haddon Hall." There has exaggerated and uncomplimentary terms, a public been much curiosity to know what induced Mr. | entertainment which is not only childish, but ridicuMajor to change his publishers after the Bowen- lous in the extreme. Merrill Company had done so much for his When Knighthood Was in Flower." It was said that the Macmillan Company guaranteed a royalty on 100,000 copies, and it was added that in regard to the size of the royalty, that people put it all the way "from twelve and a half to twenty-five per cent., but Mr. Major's friends say he was guaranteed $5,000." The Macmillans say that not one of these statements is correct. Legal Notes. 66 The fact that all places where intoxicating liquors are sold are declared by statute to be nuisances is held, in State v. Stark (Kan. [54 L. R. A., 910]), not to justify their abatement by any person or persons without process of law. An action by a father to recover damages for the seduction of his daughter is held, in Hutcherson v. Durden (Ga. [54 L. R. A., 811]), to be barred by the Statute of Limitations unless brought within two years from the time the right of action accrued. Libelous words in a pleading, which are entirely foreign to the issues, and not pertinent to the subject of the controversy, are held, in Grant v. Hayne (La. [54 L. R. A., 930]), not to be within the rule protecting averments in judicial proceedings as privileged. A foreman of water supply of a railroad, whose duty requires him to be carried from place to place along the road, is held, in Louisville & N. R. Co. v. Stuber (C. C. A. 6th C. [54 L. R. A., 696]), when riding on a detached engine to a place where machinery needs repairing, to be a fellow servant of the engineer. An assault and battery inflicted by a station agent and another upon a third person is held, in Lynch v. Florida Cent. & P. R. Co. (Ga. [54 L. R. A., 810]), not to render the railroad company liable for damages, when it appears that the difficulty arose out of a personal quarrel and that the agent was acting upon his individual responsibility. Remarks of the solicitor-general in a criminal proceeding calculated to prejudice the jury, and not authorized by the evidence or any fair deduction therefrom, are held, in Ivey v. State (Ga. [54 L. R. A., 959]), to require the reversal of the judgment The retirement of Justice Gray and the appointment of Judge Holmes to the bench of the Supreme Court, will cause a rearrangement of the positions occupied by the members of the court when it meets in October. The associate justices are seated according to seniority, alternately on the right and left of the chief justice. Following this custom, when the court convenes, the present associate justices will move up one seat with the exception of Justice Harlan, who, as senior member of the court, occupies the first seat to the right of Chief Justice Fuller, Judge Holmes will occupy the seat to the extreme left of the chief justice. As now constituted, the court will sit in the following order: To the right of the chief justice: Justices Harlan, Brown, White and McKenna. To the left of the chief justice: Justices Brewer, Shiras, Peckham and Holmes. A tentative program for the International Congress of Lawyers and Jurists at the World's Fair to be held in St. Louis, 1903 or 1904, includes among its proposed lectures the most eminent expounders of the law in every nation of the first grade. The congress will be held during the month of October. The first order of business will be the organization by the election of the presiding officer, a secretary and the making of a provision for the permanent preservation of the labors of the congress. Speakers and the subjects assigned to them present this remarkable array: Sir Richard Webster. Lord Chief Justice of England, on "The AngloSaxon System of Law; Its Present Condition and Administration; " Melville W. Fuller, chief justice of the United States, 'The Anglo-Saxon System of Law, and Its Administration in the United States;" and in the following order these speakers and subjects: The procureur d'Etat, on "The Civil Law;" Its Progress and Its Present Condition as Modified by the Code Napoleon; " James Bryce, M. P., "The Adequateness of the Civil Law to Meet Modern Social Conditions by the A Massachusetts jury reported that it would be impossible for them to reach an agreement. The court was displeased, and lectured them for their failure to agree. "Why, your honor," exclaimed the new juryman, "how in the world do you expect the members of the jury to agree when the lawyers in the case can't agree themselves?" A case was being tried in a county court. A horse Origin, Development and Present Status;" by the you could have managed it in an hour or so," he chief law officer of Austria, "The Austrian Law;' said. "Well, no doubt I could," retorted the motorby the chief law officer of Germany, "The German ist, but the other day you fined me for fast driving.” Law;" by the chief law officer of Switzerland, “The Law of Switzerland;" by the chief law officer of Sweden, "The Existing Systems of Law in Norway, Sweden and Denmark;" by Wu-Ting-Fang, The Chinese Law;" by Marquis Ito, "The Law of Japan;" by Attorney-General Sir Richard Hart, "The System and Administration of Law in India Under British Control;" by Honorable William H. Taft, civil governor of the Philippine Islands, “A General View of Systems of Laws in Oriental Countries; Their Differences in Theory from the Systems of Western Europe, with Suggestions as to Their Possible Harmonization; " by the attorney-general of Canada, “Anglo-Saxon Jurisprudence as Modified fense. At the trial the defendant's counsel exin Canada; by the attorney-general of Australia, "Anglo-Saxon Jurisprudence as Modified in Aus-pended his energy in trying to confuse and frighten tralia;" by Joseph H. Choate, ambassador to Great the opposing witnesses, especially a farmer whose Britain, "International Law; Its Inherent Defects testimony was particularly damaging. The lawyer Means Looking Toward some Method of En-kept up a fire of questions, asking many foolish forcement;" by Sir F. Pollock, Bart., "Systems of ones, and repeating himself again and again in the Ancient Law;" by James C. Carter, of New York, hope of decoying the witness into a contradiction. "Universal System of Law Applicable to all Civilized Nations, the Possibility of Its Development, and First Steps To Be Taken in That Direction." Bumorous Side of the Law. had been stolen from a field, and the evidence all pointed to a certain doubtful character of the neighborhood as the culprit. Though his guilt seemed clear he had found a lawyer to undertake his de "You say," the lawyer went on, "that you can swear to having seen the man drive a horse past your farm on the day in question?" "I can," replied the witness wearily, for he had already answered the question a dozen times. "What time was this?" "I told you it was about the middle of the forenoon." "But I don't want any 'abouts' or 'middles.' I want you to tell the jury exactly the time." 'Why," said the farmer, "I don't always carry a gold watch with me when I'm digging potatoes." But you have a clock in the house, haven't One of the best known of our Circuit Court judges had an enemy, a lawyer who had once been his unsuccessful opponent in politics, in one of the towns on his round, and was generally subjected to some affront when he reached there, says an exchange. The lawyer took so little pains to conceal his con-you?" tempt that one of the judge's friends was moved to ask: "Why don't you squelch B- -? He neds it." The judge laid knife and fork across his plate, folded his hands, and, seemingly apropos of nothing at all, said: "Up in my home town there's a widow with an ugly yaller dog that, whenever there is moonlight, sits on her stoop and howls until the town can't sleep, and generally keeps it up till daylight." He then resumed his dinner. The friend looked at him in amazement for a moment, and then inquired: "Well, what of it?" "Yes." "Well, what time was it by that? "Why, by that clock it was just nineteen minutes past ten." You were in the field all the morning," went on the lawyer, smiling suggestively. "Well," said the judge, slowly, "the moon keeps a right on." "I was." "How far from the house is this field?" 46 About half a mile." "You swear, do you, that by the clock in your house it was just nineteen minutes past ten?" "I do." The lawyer paused and looked triumphantly at the jury. At last he had entrapped the witness into contradictory statement that would greatly weaken his evidence. The farmer leisurely picked up his hat and started to leave the witness stand. Then, turning slowly, he added: "I ought, perhaps, to say that too much reliance should not be placed on that clock, as it got out of gear about six months ago, and it has been nineteen minutes past ten ever since."— Cincinnati Commercial Tribune. The Albany Law Journal. the salutary plan of renominating_faithful A Monthly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, NY. judges who were eligible under the Constitution for re-election, by both of the great political parties; never before has there been Contributions, items of news about courts, judges and lawyers' a failure to nominate and re-elect unanimously queries or comments, criticisms on various law questions, addresses on legal topics, or discussions on questions of timely interest, are solicited from members of the bar and those interested in legal proceedings. [All communications intended for the Editor should be addressed 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.] Subscription price, Three Dollars per annum, in advance. Single number, Twenty-five Cents. ALBANY, N. Y., OCTOBER, 1902. Current Topics. The New York Evening Post of recent date published the following editorial note apropos of the nominations for the vacancy in the Court of Appeals bench: In making a nomination for judge of the Court of Appeals the Republican State Convention took a backward step. Precedent and sound principle alike demand the renomination of a judge in actual service, regardless of his political attachments, if he has performed his duties satisfactorily to an enlightened bar and public. The importance of the office, the danger of political encroachments on the independence of the judiciary, the integrity of free institutions, should enforce the observance of this rule. John Clinton Gray, whose term is expiring has been a judge of ability, industry and unblemished character. Judge Werner, who has been nominated as his successor, is probably his equal in these particulars, but that fact does not excuse a violation of the sound rule referred to. The plea offered for violating the rule is that Judge Werner was also on the bench of the Court of Appeals by Governor Roosevelt's appointment. Quite true, but he was not Occupying Judge Gray's seat. If Judge Gray is to be displaced, it is immaterial whether his successor is on the bench or off the bench. The rule once violated becomes a nullity, and if its violation is sanctioned by the electors, the next nominating convention will regard it as abolished. We trust that the people of the State, in the coming election, will put the seal of disapproval on this change of policy. This, in our opinion, accurately voices the opinion of the great majority of residents of the State whose judgment is not warped by self-interest or political considerations. The action taken by Republican State Convention at Saratoga constitutes the first instance in the history of our highest court of a violation of VOL. 64.- No. 10. a retiring judge who was in a position to accept another term. Chief Judge Charles Andrews, a Republican, was twice re-elected unanimously. Judges Rapallo and Earl, Democrats, were each re-elected unanimously. It will not be denied, probably, even by the partisans, that no man was ever more worthy of re-election than Judge John Clinton Gray, the nominee of the Democratic party. And yet he was denied what was granted to every one of his predecessors on the Court of Appeals bench. Why? Because of the determination of the partisans to take advantage of a supposed opportunity to make the court still more strongly Republican than it is at present. It is their intention, with the help of the voters of the State, to make the court stand five to two Republican, instead of as now, four to three a much safer majority, for the conservative party and business sentiment of the people of the State is that the court should always stand four to three one way or the other. We believe the principle of honoring a worthy, faithful member of the judiciary, especially if he happen to be a member of the highest court, by a re-election, ought to find its practical application in the choice of a judge quite as much as in the selection of a candidate for governor. Judge Gray has served with distinguished ability and great faithfulness for the term of fourteen years; he is in the prime of his powers and usefulness to the State. He should have been nominated by both parties, thus making his continuance on the bench beyond peradventure, and he would have been if the Republican party's representatives, under the boss's orders, had not determined to inject more politics into the court. All this is entirely apart from the merits of the Republican candidate, who is a faithful and able jurist and an ornament to the bench. It is true that he has been serving for nearly two years as an "extra" member of the court, under appointment of Governor Roosevelt, but in view of his probable continuance in that capacity for an indefinite period, he might well have mercial relations of foreigners, of foreign waited until the next vacancy. companies or corporations who may reside, With a view of keeping this great court as carry on business or conduct their affairs or far removed as possible from the con- whose interests may remain or be represented taminating touch of politics and politicians, in Japan; a general review will also be prewe can only urge all conservative and thought-sented of the rights and immunities of ful citizens who have at heart the best welfare foreigners with reference to both the civil and of the State and the continued purity of one the commercial codes. It will thus be seen of its highest co-ordinate branches, to rebuke that the address will be of practical as well as this piece of impertinent partisanship by vot- academic interest. Dr. Masujima graduated ing to retain Judge Gray in the place he has in English law at the University of Tokio, so well and faithfully filled. and was afterward called to the bar at the Middle Temple, London, in the year 1883. He was one of the chief promoters, and the first president of the English Law School at Tokio, established in 1885. He has recently been appointed the legal adviser of the British legation in Tokio, which in itself is sufficient evidence of his high standing at the bar. We bespeak for the distinguished Japanese jurist a hearty welcome to the capital of the Empire State. Governor Odell's appointment of William A. Keener, of New York city, ex-Dean of Columbia Law School, as justice of the Supreme Court, to fill the vacancy caused by the death of Justice Miles Beach of the First Department, is in all respects admirable. Prof. Keener was born in Augusta, Ga., March 10, 1856. He is a graduate of Emory College, Oxford, Ga., class of '74. In the early nineties he was called by the trustees of Columbia University to become dean of the The legal profession of the State, more parColumbia Law School. In this position, ticularly that of western New York, were which he held until August, 1901, he became much interested in the nomination of the widely known as a lecturer on "Equity" and Hon. John Cunneen, of Buffalo, by the Demthe "Law of Corporations." He is the author ocratic State convention for the office of atof "Quasi Contracts" and editor of "Cases torney-general. We refer particularly to this on Contracts" and "Cases on Corporations." nomination because the nominee is an excelJustice Keener will bring to his duties on the lent example of the so-called "self-made bench a mind thoroughly trained in the law, man," which means a man who is not born a wide knowledge of its various important with a silver spoon in his mouth, but who branches and a judicial temperament that makes his way alone, unaided and against cannot fail to make him an ideal judge. Governor Odell is to be congratulated upon many obstacles. Mr. Cunneen's rise to very humhaving made so excellent a selection. professional eminence from a ble beginning ought to prove an inspiration to every struggling young man in The annual meeting of the New York State this broad land of vast opportunties. WithBar Association for 1903, will be held in out means - in fact, with borrowed money · Albany on January 20th and 21st next. In Mr. Cunneen came to this country from accordance with his plan to secure for the Ennis, Ireland, where he was born in meeting an eminent lawyer of national or international repute, to deliver the annual 1848. The family, ruined by the famaddress, Secretary Frederick E. Wadhams has ine, consisted of seven boys. The hopelessobtained from Dr. R. Masujima, of Tokio, ness of the outlook determined young Cunhis promise to come to Albany on the occasion neen to try his fortunes in America, so, with referred to. Dr. Masujima has chosen for his the loan of $40 from a kind friend, he came subject, "The Present Position of Japanese to America. For a time he worked in OrLaw and Jurisprudence." In the essay the leans county on a farm, the compensation learned doctor will treat of the civil and com- being $4.00 a month. Later he learned the machinist's trade, and also did carpenter neen will have the proud consciousness of having carved his own way to his present vantage ground of social standing and pro The constant intermeddling by the politicians with the courts is again shown in the nomination of Attorney-General Davies for the Supreme Court bench. He was selected in the face of the almost unanimous sentiment of the district in favor of another, and as we believe far worthier aspirant. That Mr. Davies is a very weak candidate is pretty certain to be demonstrated when the votes are canvassed, and the fact that there is every probability of the nomination of an independent candidate work anything to make an honest living. All the time he was quenching his thirst for knowledge, employing his nights in reading fessional success. law, and teaching school in winter. Abraham Lincoln's life was a constant inspiration to the determined young student. It is not surprising, therefore, that such a man, whom no obstacles could deter, and who was afraid of no sort of honorable work, should be admitted to the bar. This event occurred in January, 1874, and it was the goal which young Cunneen had been striving for for years. Clients did not at first come with embarrassing rapidity, and the young lawyer, while making the best of his opportunities, in the district is not calculated to add to the brought others to himself by becoming interested in politics. He was elected clerk of the board of supervisors of Orleans county, a position he held for seven years. He became chairman of the Democratic general committee of Orleans, and was recognized as a the rights and interests of the people. leader of ability, wisdom and excellent judg ment. equanimity of the political managers. Here will be another excellent opportunity for the voters of the State to register their disapproval of the methods whereby politics is being injected into the judiciary regardless of CHARITABLE AND RELIGIOUS TRUSTS. that those charities which are entities, which are For many years he has been in the front rank of the legal profession, having No part of the law of trusts has received more served as counsel in many of the great law judicial construction and explanation than that of suits in the western section of the State dur- charitable and religious beneficiaries. A fundaing the past decade. As a consulting lawyer, mental rule of equity jurisdiction has laid it down he enjoys high distinction. In January, 1890, definite and distinct, where there can be no question Mr. Cunneen became a member of the firm of as to the existence of cestuis que trustent, will be Tabor, Sheehan, Cunneen & Coatsworth, but enforced by law. While the courts agree on this principle, they differ in applying the same, and it is is now practicing alone. He is lecturer on well-nigh impossible to reconcile innumerable conequity jurisprudence in the Buffalo Law flicting decisions which are the results of particular School and is a trustee of the Buffalo Law statutes, rules of construction, diverse interests or of simple public policy. In the present paper, the discussion will be confined to a number of decisions illustrative of the principle that in the case of a religious trust, persons, whose convictions differ from those which determine the object of the trust, ought not to be appointed or retained as trustees by the courts. Library. This hasty sketch is sufficiently long to show that such a man as John Cunneen could only be kept down by hard, unyielding environment; in his unfortunate native Ireland, such an environment was to be found; but transplanted to this country, his It is necessary, at the outset, to distinguish begenius took root, grew, flourished and flow-tween charities with a single object and those with several objects. In the former instance no ered into a noble, useful life, one that in turn difficulty is presented. For, if the charity is an will serve as a bright example to the younger eleemosynary, no question as to the religious views men of the present generation, who "have it of the trustees arises; on the other hand, an ecclesiin them" to command success by hard work astical charity of necessity imports the agreement of and constant endeavor. Whether or not the the trustees with the religious views of the founder. In the latter case, a more difficult problem must be people of this great State shall choose him to solved. There may be a preponderance of religious the high office of attorney-general, Mr. Cun-objects or of charitable ones. In this case, the |