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1. Keane, 41 L. T. Rep. (N. S.) 335; L. Rep., 11 Ch. Div. which we are justly proud and which you indirectly 333; and Labouchere v. Earl of Wharncliffe, 41 L. T. question, I take the liberty of explaining. The case Rep. (N. S.) 638. Ch. Div., Feb. 6, 1880. Russell v. in the 45th Coun. unfortunately has not reversed the Russell. Opinion by Jessel, M. R., 42 L. T. Rep. (N. principle established in the previous volume. It is still S.) 112.
the law under which we live here, that the ipse dixit,
“not satisfactory," is amply sufficient to absolve any CORRESPONDENCE.
contracting party, in that class of cases, from all pecu
piary obligation. A coat, for instance, ordered to be DEMURRERS.
made out of blue cloth, may, by the use of this magic To the Editor of the Albany Law Journal :
talisman, with impunity be thrown in the tailor's face, I do not think your correspondent, X, is quite accu
and the author of all evil be left to pay for it. The rate on the subject of demurrers. Before the old
reasons which underlie the purchaser's dissatisfaction Code, the action of a court upon a demurrer was a
and which prompt such vigorous assertion thereof may judgment. 1 Burr. Prac. 208, 249. Although it was a
never be known. Courts and juries cannot pry into judgment, still the court often allowed a party to with this secret. It may be that since being measured, the draw the demurrer and plead, etc., on payment of purchaser has undergone a mental, not to mention a costs. This judgment was interlocutory, if damages physical change, and now prefers a coat of a delicate were assessed; final, if not. And on this judgment, a
pea-green as well as one of ampler dimensions. Perjudgment record or judgment roll was made up. Id. haps when ordering the coat in question, he was labor
ing under the misapprehension that a blue coat, if The old Code also spoke of a judgment as an issue artistically constructed, would have all the effect of any of law, section 278. But in section 349, sub. 2, it spoke other colored coat. Perhaps, too, at the time, he had of an order, sustaining or overruling a demurrer. I
extravagant notions as to the possibilities of coats in think that is the first introduction into law terms of
general, and innocently supposed that that garment the word "order," as applied to the action of a court
alone would suffice for a full suit - as to-day doth the upon an issue of law.
untutored savage of the plains - and on awakening Mr. Throup's Code has restored the former phrase- from his illusion, exclaims, not less truthfully than ology by speaking of a judgment upon a demurrer. modestly, “non satis est.” Any or all of these good $ 1021. Now it is not quite accurate to speak of an
reasons - and to him, what better? — he may keep order for a judgment. An order is the adjudication of locked forever within his unsatiated breast, and no the court upon a motion. A judgment is the adjudi- process of the common law can force him to divulge cation upon a trial, or on a failure to answer, etc. instance, if il motion to change the place of trial be
But to give the explanation. The case in the 45th made, and the court orally grants it, the entry in the
Conn. did not touch on any of these interesting points. clerk's records of that adjudication is an order. If a It did not appear by the record there whether the facts demurrer to a complaint is argued and the court
on the second trial were the same as those on the first orally declares that the demurrer is not well taken,
or not. No presumption existed that they were the the entry in the clerk's records of that adjudication is
On the contrary, the court enforced the prea judgment for the plaintiff. Very often clerks make sumption that sufficient facts must have appeared in only memoranda in their minutes, waiting until the
evidence to sustain the judgment below – there having successful attorney drafts the proper order or judg- been no separate finding of fact on the second trial ment as it may be. But the true name of the entry is and the only point discussed and passed upon was not thereby changed.
whether the finding of facts on the first trial was still According to your correspondent's idea, when there existing as res adjudicata, or was destroyed by the is an adjudication on a demurrer, there should be first,
order for the new trial. The court took the latter the oral or written announcement of the opinion of
T. C. I. the court; second, an order entered in the records of the court; third, a judgment entered in the same
NOTES. records; and, fourth, a judgment roll thereon. And some attorneys practice in this manner, so that the
E have received the first number of a new law judgment roll contains apparently two adjudications magazine, the Kentucky Lau Reporter, a monthly, by the court; one denominated an order, the other a published at Frankfort, under the editorial charge of judgment.
Messrs. J. C. and Frank L. Wells. This number makes Your correspondent says that the clerk enters up a very respectable showing, containing among other judgment. But a judgment on a demurrer is the adju- things an article on Rights of Purchasers at Execudication of the court. The clerk's business is simply tion Sales, and the case of Vanmeter v. Estill, concernclerical; to record what the court does. And what ing fraudulent sales, with a note. We welcome the the court does is to adjudge, that on the demurrer, the new-comer, although, like the father of a large and plaintiff or the defendant recover.
rapidly increasing family, we cannot avoid some I am pleased to hear that your correspondent cannot anxious conjectures as to the support of the last armake judges or opponents understand that his course rival. Kentucky, however, needs a representative law is the one to be pursued. My own observation bas magazine, and we trust that its bar will take care of been that too many lawyers pursue it.
A. the promising publication.
The June number of the American Law Register
contains, among other matter, an article on Riparian The statement in your JOURNAL of June 12th, in an
and other rights in non-navigable water, by Arthur interesting article on “Contracts to Satisfaction," to
Biddle; the.case of Sturges v. Bridgman, on easement, the effect that a Connecticut court, in the 45th Conn.,
with a note by Edmund H. Bennett; the case of Zaleski v. Clark, had sustained a judgment for plaint-rata" in a will, with a note by C. H. Wood; and the
Rosenberg v. Franli, concerning the meaning of "pro iff, after having reversed a similar judgment on precisely the same testimony, is scarcely accurate.
case of Knaggs v. Green, concerning avoidance of an
And as the article referred to suggests that the counsel in
infant's contract, with a note by Marshall D. Ewell.
The subject of the prize essay of the New York that case may “perhaps inform us” how so happy yet State Bar Association for 1880 is the following: "What inconceivable a result was effected by legal processes, National legislation, if any, should be had to regulate in the interest of that stability in our decisions of commercial intercourse between the States ? "
The Albany Law Journal.
In collatisfaction, and then doctrine of Clove this
several towns and wards of this State to assess the same as land to the value thereof, so far as any of
their lines extend through their respective assessALBANY, JULY 10, 1880.
ment districts. I have given the question which
you have presented careful consideration, for the CURRENT TOPICS.
reason, that as far as I have been able to discover,
no decision upon the precise question before us has N connection with our recent article on Contracts been made by any of the courts of this State, and
the question therefore is a new one. I am greatly trary right to be dissatisfied, the case of Lesser v. aided, however, in reaching this conclusion by the Sherwood, lately tried at the New York Circuit of opinion of the Court of Appeals in People ex rel., the Supreme Court, has some significance. Lesser, etc., v. Cassity, 46 N. Y. 46, which holds in this lana dentist, sued Sherwood for the price agreed upon guage: • The term “lands' as used in the statute in for a set of teeth he had manufactured for him. relation to assessment and taxation (1 R. S. 360, S8 Upon the trial he proved the manufacture, almost 1, 2), includes such an interest in real estate as will complete, of the teeth, according to his contract. protect the erection, or affixing, and possession of All that was necessary to finish the job was the buildings and fixtures thereon, though unaccompresence of the defendant in the plaintiff's office for panied by the fee, and such interest with the buildthe purpose of fitting the teeth properly in the ings and fixtures may be assessed to the owner mouth. Defendant repeatedly promised to call, but thereof.' See, also, 74 N. Y. 365, and 52 Barb. 105. invariably failed to do so. The court dismissed the It is also held in People ex rel. New York Elevated complaint. The General Term reversed the judg- Railway Company v. Commissioners of Taxes, dement upon appeal. Judge Barrett, in his opinion, cided by General Term, First Department, and reconcurred in by Davis, P. J., says plaintiff "did all ported in 19 Hun, 460, that 'foundations for piers that he was bound to do or could do, and the de- or columns placed in a public street by an elevated fendant was liable for such proper damages as re
railroad by legislative authority, whether standing sulted from the breach.” If, however, the contract alone or with columus and the superstructure thereon had been that Lesser should take his chances of are properly taxable as real estate.' If the piers Sherwood's attending to have the teeth fitted, we and columns of an elevated railway, as in the last suppose the holding would have been the reverse. case cited, and the stringers, ties and rails of a horse A somewhat analogous case is Moore v. Robinson, 92 railroad, as decided in the case of People v. Cassity, Ill. 491. A person having been indicted for an al- supra, are ‘land' and taxable as such, though in leged offense, his brother paid to an attorney-at-law neither case did the company own the fee of the a sum of money, and also gave him his promissory land upon which these structures stood, it would note for a further sum, upon the agreement that the seem that telegraph posts, piers and abutments and attorney should defend the person so indicted, and
lines are also land and taxable as such. It would procure his acquittal and discharge at a certain speci- seem also from the case of People v. Cassity, supra, fied term of the court in which the indictment was and People v. Barker, 48 N. Y. 70, and indeed from pending, and if the accused should not be released the statute itself, that in all cases the premises are at the time mentioned, the attorney was to return
to be assessed in the name of, and to the company the money and the note. The accused failed to ap- owning the line and not in any case as 'non-resipear at the term specified to answer to the indictment, so the attorney, without any fault on his part,
The recent decision of the Indiana Supreme was unable to proceed with the trial or to procure Court, holding that the constitutional amendments the discharge of the accused. Held, that the con
voted upon at the election last April in that State tingency upon which the attorney was to be entitled
were not adopted by a legal majority, involves a to retain the money and to collect the note, not having occurred, he was liable to an action for the
very interesting question, namely, what constitutes
"a majority of the said electors of the State.” The money, and could not recover upon the note; but
amendments in question were voted upon at town was entitled to compensation quantum meruit for his elections, and although they received a majority of services, and could retain such amount out of the
the votes cast upon the particular questions, they money he had received.
did not receive a majority of all the votes cast at
the same time for town officers. The majority of The opinion of Attorney-General Ward upon the the court held that they must at least receive a manovel question whether telegraph poles are to be jority of all the votes cast at the same election. assessed as real estate will probably find general | This view is supported by decisions of the Missouri acceptance. The learned attorney-general says: and Minnesota Supreme Courts, but is opposed by a “It is entirely clear to my mind that these telegraph | decision of the Supreme Court of Wisconsin. We structures are “articles erected upon and affixed to shall soon take occasion to review these decisions the land,' so as to create an interest therein, and are, with the care which the question deserves. to the extent of the value thereof, land of the telegraph company erecting them, and as such liable to In view of this conflict of judicial opinion, the taxation. And it is the duty of the assessors of the l ambiguity of the language in question, the charac
VOL. 22.-- No. 2.
ter of the amendments themselves, and the legisla- as venial in Texas. But if this wretch were really tive action in respect to them, we cannot see any insane, then society ought to shut him up, just as warrant for the accusation, now current in some they would shut up, if they would not kill, a dog newspapers, that this is a “political decision.” The which had once run mad. At least he should be Boston Journal says: “The amendments affected shut up until it should be satisfactorily established by the decision of the court are seven in number:
that his madness had permanently passed away. the first is designed to guard against repeaters and Texas owes some such measure of precaution to political colonizers by requiring a local residence of travellers if not to its own citizens. We have desixty and thirty days before voting; the second rived a high opinion of the criminal jurisprudence strikes out the old provision against negro suffrage; of Texas from our perusal of its criminal reports, the third changes the date of all general elections and we hope that the profession will interest themfrom October to the first Tuesday after the first selves in procuring the passage and enforcement of Monday in November; the fourth strikes out the laws similar to our own, for the restraint of insane word 'white' as a qualifying term applied to citi- criminals. zens; the fifth authorizes the Legislature to grade the salaries of public officers in proportion to the
NOTES OF CASES. population which each is required to serve; the sixth authorizes the establishing by law of courts below the grade of the present superior court; and
IN Robertson v. Berry, 50 Md. 591, it is held that the seventh forbids any municipal corporation to incur an indebtedness greater than two per cent of
his work, or in the application of his name to the its assessed valuation. This provision applies also
work, or in the particular marks which designate to towns, counties and the State itself. These it, a species of property similar to that which a amendments were not the occasion of a strict party
trader has in his trade-mark, and may, like a trader, division. Democratic as well as Republican execu
claim the protection of a court of equity against tives had recommended them, and in the Legisla- such a use or imitation of the name, marks or desigture they were supported by the entire Republican nation, as is likely, in the opinion of the court, to be membership, and by some of the abler and more
a cause of damage to him in respect of that propcandid Democrats. They were first passed by a Re
erty. This doctrine, in cases where the facts are publican Legislature in 1877, and again by a Demo
sufficient to sustain it, has been held applicable to cratic Legislature in 1879, and were then submitted
such periodical publications as newspapers, magato the people last April and adopted by the follow
zines and almanacs. To entitle a complainant to ing votes:
relief he must clearly show a property right in himAgainst.
self, and a fraudulent or colorable imitation by the No. 1.. 169,479 | No. 1.
152,363 defendant. A property right may be acquired in No. 2. 177,542 | No. 2.
139,002 the devices, emblems and title-pages of an almanac No. 3. 174,400 No. 3,
by adoption and user. The injunction restrained No. 4.. 176,320 No. 4.
the publication of “T. G. Robertson's Hagerstown No. 5. 181,887 No. 5.
136,177 No. 6.
Almanack,” in imitation of “J. Gruber's Hagers175,612 No. 6.
141,296 No. 7. 176,931 | No. 7.
town Town and County Almanack.” We are in
debted to the Solicitors' Journal for the following The majorities in favor of these amendments
exhaustive summary of the cases on this point: In ranged from 17,116 for the provision against repeat- Hogg v. Kirby, 8 Ves. 215, the proprietor of “The ing and colonization, to 49,982 for the provision re- Wonderful Magazine" succeeded in stopping the stricting indebtedness. The vote was duly an
publication of “The Wonderful Magazine, New nounced by Gov. Williams, and the adoption of the
Series, Improved.” In Edmonds v. Benbow, Seton, amendments was proclaimed by him in due form."
3d ed., 905, the proprietor of “The Real John Nor do we see any evidence of corruption in the
Bull” was held to be entitled to an injunction to fact that the court delivered their long opinion the
restrain the publication of another paper as “ The next day after the submission.
Old Real John Bull.” In In re Edinburgh Corre
spondent Newspaper, Ct. of Sess. Cas., 1 ser., I, new In connection with the recent acquittal of Currie, ed., 407 n., the same name was prevented from bethe Texan murderer, we commend to our Texas pro- | ing used. In Constable & Co. v. Brewster, Ct. of fessional friends the perusal of Mr. Hopkins' arti- Sess. Cas., 1 ser., III, 215, new ed. 152, it was decles, ante, p. 6, on the Treatment of Insane Crim-cided that “The Edinburgh Philosophical Journal” inals. We cannot understand Currie's acquittal. was interfered with by the publication of a “New From the report of the evidence which we saw, Series of the Edinburgh Philosophical Journal.” there could be no serious pretense of his insanity. So in Chappell v. Sheard, 3 W. R. 646; 2 K. & J. His act was that of a reckless, drunken, God-defy-117; and Chappell v. Davidson, 2 K. & J. 123, where ing desperado, but he was no more insane than Bu- the plaintiff's song was entitled “Minnie," and those ford, who killed Judge Elliott, nor indeed half as of the respective defendants “Minnie Dale" and much so. Texas juries of late have seemed dis- “Minnie, Dear Minnie.” So, again, where the purposed to do justice and to take care of the com- chaser of “ The Britannia” newspaper incorporated munity. Perhaps the killing of an actor is regarded l it with the “John Bull,” under the name of “The
John Bull and Britannia," and the former publisher Upon the question of damages in actions for of “The Britannia” began to publish “ The True wrongfully mining and carrying away coal, to which Britannia;” Prowett v. Mortimer, 4 W. R. 419; 2 we have recently alluded, 21 Alb. L. J. 442, and Jur. (N. S.) 414. In Clement v. Maddick, 1 Giff. 98, ante, 2, we note the case of Illinois, etc., R. R. Co. v. the plaintiff's newspaper was called “Bell's Life in Ogle, 92 III. 353. The parties seem the same as in London," and the defendants' “The Penny Bell's the case in 82 Ill. 627; S. C., 25 Am. Rep. 342. In Life and Sporting News.” The “London Daily the latter case the element of innocent mistake in Journal was too near to the “London Journal; the mining entered, and was held to make no differIngram v. Stif, 5 Jur. (N. S.) 947. So “ The United In the present case, however, the court say, States Police Gazette" to " The National Police Ga- “it is moreover evident that this trespass was not zette,” commonly known as “ The Police Gazette;" | the result of mere mistake, but was knowingly and Matsell v. Flanagan, 2 Abb. Pr. (N. S.) 459. So willfully done," and the court hold, as in the former "The Bedfordshire Express and General Advertiser case, “the measure of damages to be the value of for the County" to “The Bedfordshire Express and the coal at the mouth of the pit, less the cost of General Advertiser for the Counties of Cambridge, carrying it there from the place where was dug, Hertfordshire, Huntingdonshire, and Middlesex;" allowing the defendant nothing for digging.” But Chance v. Sheppard, V. C. M., July 30, 1869. In upon this theory, we would ask, why allow the Clowes v. Hogg, W. N., 1870, p. 268; 1871, p. 40, wrong-doer any thing for the carriage of the coal to the former proprietor of “London Society” began the mouth of the pit; or if that is allowed for, why to publish “English Society," and was restrained. must we not allow for the digging? The rule seems Again, in Mack v. Petter, 20 W. R. 964; L. R., 14 inconsistent with its own theory. Eq. 431, the plaintiff's book was called “The Birthday Scripture Text Book," and the defendant's
In Davis v. Dudley, 70 Me. 236, it was held that a “ The Children's Birthday Text Book.” In Corns minor's deed of land not appearing upon its face to v. Griffiths, W. N., 1873, p. 93, the plaintiff's paper be prejudicial to him, is not void but voidable. To was called “ The Iron Trade Circular (Rylands'),” avoid it or ratify it, there must be some act on the and the defendant's “The Iron Trade Circular (Ed- part of the minor, after becoming of age, indicative ited by Samuel Griffiths).” In Metzler v. Wood, 26 of that intention. Mere delay on the part of the W. R. 577; L. R., 8 Ch. D. 606, the plaintiff's book minor is not sufficient evidence; but delay coupled was called “Henry's Royal Modern Tutor for the with the neglect of the minor, after becoming of Pianoforte," and the defendant's "Henry's New and age, and having knowledge that the other party is Revised Edition of Jousses Royal Standard Piano- | intending to, and does make valuable improvements, forte; ” and lastly, in Weldon v. Dicks, the tale was to make known his intention to avoid his deed in in each case styled “Trial and Triumph.” In all season to prevent such expenditure, is a sufficient the above cases the infringement was restrained. ratification. The court said: “As the deed is voidIn the following cases the remedy sought was re- able at the election of the minor, it follows that fused: In Spottiswoode v. Clarke, 2 Ph. 184, the ques- until that election is in some way made manifest tion was between “The Pictorial Almanack" and there is neither a ratification nor an avoidance. “Old Moore's Pictorial Almanack;” in Snowden v. Without the one or the other the deed must still reNoah, Hopk. 347, between “The National Advo- main in force but as a defeasible instrument. This cate” and “The New York National Advocate;"
manifestation must be shown by some positive and in Bell v. Locke, 8 Paige, 75, between “The Demo
clear act, intended for that purpose. What that cratic Republican New Era” and “The New Era;" act shall be, or what is sufficient for that purpose, in Stephens v. De Couto, 30 N. Y. Sup. Ct. 343, be
must necessarily depend upon the circumstances of tween “La Cronica” and “El Cronista.” “Punch" each case. It therefore follows that mere delay was the property of the plaintiffs in Bradbury v. within the time allowed by the statute of limitaBeeton, 18 W. R. 33, and “Punch and Judy” of tions, uncoupled with any acts expressive of an inthe defendant; in Tallcot v. Moore, 13 N. Y. Sup.
tent to confirm, would not be sufficient for that purCt. 106, the plaintiff's book was “The Little Red
pose; and this may now be considered as well-setBook, New Series, 1875," and the defendant's "The
tled law; though some decisions may be found Red and White Book;” and The American Grocer holding that unless the deed is repudiated within a Publishing Association v. Grocer Publishing Company, reasonable time, ratification will result. 3 Wash. 51 How. Pr. 402, was a similar case. Ledger v. Ray, R. Prop. (3d ed.) 226; Boody v. McKenney, 23 Me. Ct. of App., May 3, 1877, was a somewhat peculiar 523-4; Jackson v. Carpenter, 11 Johns. 539; Tucker case, as the question was not confined to the two
v. Moreland, 10 Pet. 75–6. While mere acquiescence titles, “The Era” and “Touchstone,” or “ The
for any length of time within the statute of limitaNew Era," but Touchstone was also the name of a
tions is no proof of intention to ratify, when well-known writer in the plaintiff's paper. And coupled with acts or even omissions when duty reagain in Kelly v. Byles, 46 L. T. (N. S.) 623, the quires action, it may become not only pertinent, but plaintiff's compilation was called “The Post Office satisfactory proof of such intention.” “In this Directory of the West Riding of Yorkshirė,” and
case the land was sold late in the fall. The grantor the defendant's, “The Post Office Bradford Direct
became of age in the spring following. The inferory.” See, also, 21 Alb. L. J. 446.
ence is that nearly or quite all the improvements
were made at a time when the duties and responsi- | supported by a staff stuck into the ground, and kept
Va. Cas. 515. A bed-room kept locked so that none
cessible to all, by night and day, who wish to in“PUBLIC PLACE” AND “PUBLIC HOUSE” | dulge in gaming. Smith v. State, 52 Ala. 384.
The house of a keeper of a toll-bridge, consisting N some recent writing on Legal Definitions
of two rooms, in one of which is the office for the
" public house.” More extended research has shown
persons were privileged to go to settle for tolls, is a us that there has been a good deal of discussion as public house. Arnoll v. State, 29 Ala. 16. So is to what constitutes a "public place” or a “public the office of a justice of the peace. Burnett v. house,” within the statutes against gaming, affrays State, 30 id. 19. So where a house has but two and indecent exposure.
rooms, front and back, the front used as a magisThe English statute provides that “no house, trate's office, the back by partners of a dissolved office, room, or other place shall be opened, kept or firm for ling their accounts, with an opening beused for betting purposes.” In Eastwood v. Miller,
tween, the back room is a public place. Id. 19. So L. R., 9 Q. B. 440; S. C., 9 Eng. (Moak) 429, the the back room of a country store, used as a bedappellant was the occupant of inclosed grounds, into room by one of the proprietors who is unmarried. which persons were admitted on payment of a fec, Huffman v. State, 30 Ala. 532. So of a room back and where a pigeon-shooting match for ten pounds of a broker's office, used and occupied in like mana side, and a foot-race took place, persons betting Wilson v. State, 31 id. 371. So of a barber's on the match and the race. Counsel contended shop on the first story, the gaming being carried on that the grounds were not a “place,” because not in a room in the second story, accessible only by an covered by a roof. But we court did not take that exterior flight of stairs, and used by the barber in view. It might as well be sun that the betters daguerrean experiments or a depository for were not persons unless they had their iats on. A broken apparatus and chemicals. Moore v. State, case was cited where one was convicted, under this 30 id. 550. And so of a saddler's shop including statute, of keeping a gaming-table under a tree in it hack room situated and accessible in like manner. Hyde Park. In Bores v. Fenwick, L. R., 9 C. P. 339; | Bentley 5. State, 32 id. 596. 8. C., 9 Eng (Moak) 374, one was indicted, under A privy, beionging to a country school-house, is the same statute, of standing at a race-course, on a not, during vacation, a public place within the statstool, under an umbrella, seven or eight feet high, ute of gaming McDaniel v. State, 35 Ala. 390.