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reign of Henry I, the plaintiff recovered the body of a

OBITUARY. deceased person carried away by force of the defendant, and Placita A .glo-Normania is cited.

EDWARD G. RYAN. The purpose of the author was to give the lawyer's

THIEF JUSTICE EDWARD G. RYAN, of the Wisside of the subject of the courts and the conduct of causes during the Anglo-Norman period; to treat of it 80 as to be of service to the student of general consti- Madison, Oct. 19th. He was born at Newcastle, county tutional history, and also the student of the growth of Meath, Ireland, in 1810, came to this country, and was

admitted to the bar in New York in 1836, and imme. a special system of law, by showing the technical processes of the law at that time, and how causes were

diately thereafter went West. For many years Mr. actually conducted through their different stages, and Ryan has occupied a prominent place in the affairs of to elucidate the English procedure as a great branch of

the North-west. He founded the Chicago Tribune as remedial law, developed and developing. The book

a Democratic paper about thirty-eight years ago, and treats of the constitution, kind, jurisdiction and by his vigor and ability soon placed it in the lead of methods of courts which then existed; the Witenage-Western journals. Ho soon wearied of editorial work, mot or “ Assembly of The Wise Men," with legisla

however, and went to Milwaukee, where he engaged tive and judicial functions; the Ecclesiastical Court,

in the practice of the law, early taking the foremost with its jurisdiction, large at first, afterward parrowed

rank at the bar of that city. He was an orator of raro and limited; the King's Court, its new processes and

power, commanding in presence, forcible, logical, and, claims to large jurisdiction, and the final establish

where his feelings were enlisted, terribly vindictive. ment of its supreme and almost universal authority;

In 1856 he achieved a national distinction by the manthe Exchequer, how and when it originated, its first

ner in which he conducted the prosecution in the imcharacter and subsequent limit; the County Court, its peachment trial of Judge Levi Hubbell before the senancient existence and continuance through the Nor

ate of Wisconsin. When the civil war broke out, he man period; the Burghmot or Hustings Court; the

issued the famous “Ryan address," a document reHundred or Wapentake Court; the Manorial Court;

markable for its fierce denunciation of the policy of the Forest Court; of the Writ Process, and how the

the administration of President Lincoln. In 1874, a writs were gradually developed in England; Distraint;

vacancy having occurred on the Supreme Bench, the Summons; the Issue Term; the Trial Term; the Fi

bar of the State united in nominating him to the place, nal Judgment. There is also an appendix of Cartæ et

and he was elected without opposition. He was rePlacita, records of litigations in Normandy from the

elected for a full term two years afterward. He was a time of William the Conqueror to that of Henry II.

forcible and elegant writer, as the extracts from his Upon the several topics there is a mass of minute and

address to the law class of Madison University, rewell-arranged information of highest interest.

cently published in this JOURNAL, will bear witness. We have not the space to go more into detail. The

NOTES. book is a systematic and philosophical essay, and will increase the stock of general information upon the subject of which it treats, making easily accessible AS

Swo anticipated, the Supreme Court of South what but for the loving labor of the author was hidden Carolina have sustained the claim of Gov. Simpin books and treatises at the hand of but few,

son to the office of Chief Justice, holding that the elec

tion of Chief Justice Willard to that post was not for CORRESPONDENCE.

a full term, but only to fill the vacancy which made

the election necessary.- A clerical friend of ours, RESPONSIBILITY FOR COUNSEL FEES.

speaking of our article on Escape, ante, p. 164, says it

was St. Paul and not St. Peter who assured the jailer Editor of the Albany Law Journal:

we are all here," and suggests that as we are Would some of your readers be good enough to ac

near Troy we would better join that lawyers' Bible quaint me with the practice of American lawyers in a

class. He also says that lawyers are famous for miscase like the following: A lawyer in New York sends to a confrère, say in Chicago, a claim for collection. quoting Scripture. We notice, however, that one of

our legal contemporaries, in copying the article, was Suit is entered and judgment obtained. To whom

well enough informed to correct our error. Perhaps would the Chicago attorney look for his costs; the

he had recently been attending such a class. New York lawyer or the latter's client? It is, of course, understood that there is no express agreement. In Lenoir v. Ritchie, the Supreme Court of Canada Yours truly,

M. the highest tribunal in the Dominion - decided that MONTREAL, Oct 18, 1880.

the governments of the different Provinces bad not the

power to appoint Queen's counsel. The decision was LEGAL NOTICES IN SUNDAY NEWSPAPERS.

rendered in such a way as to leave the question still Editor of the Albany Law Journal :

involved in considerable doubt, and although some Is a constructive service of legal process good by leading barristers whose commissions as Queen's counpublication in a Sunday paper?

sel were derived from Provincial governments doffed CLEVELAND, Oct. 18, 1880.

their silk gowns and again put on the stuff, there were

many eminent lawyers who persisted in maintaining RELEASE OF DOWER,

the validity of the Provincial appointments. Matters Editor of the Albany Law Journal :

have been in this state for some time, but at last the Your correspondent “F. L. M." may find the fol

government of the Dominion has passed an order, in lowing cases useful: Stevens v. Owen, 25 Me. 94; Wales council, nominating a number of Queen's counv. Coffin, 13 Allen, 213; Melvin v. Proprietors, 16 Pick.

sel. Most of these had already acquired the title 137; Greenough v. Turner, 11 Gray, 332; Burge v.

from Provincial authority, but it is considered that Smith, 27 N. H. 338; Allen v. Reynolds, 4 Jones & Spen.

the effect of the order will be to settle the vexed ques298; McFarland v. Febiger, 7 Ohio, 194; Witter v. Bis

tion once for all. The Provincial governments were 13 Ark. 423; Deutzel v. Waldie, 30 Cal. 149; Prather

very loose in their appointments, many of which, it is V. McDowell, 8 Bush, 46, and Laughlin v. Fream, 14 w. said, were really bad — the qualifications generally Va. 322. Yours truly,

being political services rather than professional emia

J. H. S. nence. The action of the Dominion government will TRENTON, N. J., Oct. 21, 1880.

thus materially enhance the value of the title.

that «



The Albany Law Journal.



was error.


may be that the Legislature, by saying that she should not be compelled to testify or give evidence

against him, intended to prevent upon a cross-examiALBANY, NOVEMBER 6, 1880.

nation an inquiry into any other matters not in

quired of upon the direct examination, and which CURRENT TOPICS.

might be very damaging to the husband, and so vice

Whether this be the correct solution or not, THE Albany Oyer and Terminer, Justice Osborn

is quite immaterial. It is enough that no positive presiding, have quashed the indictment of

enactment can be found making it proper to call Briggs for the murder of Woods, for the reason

husband or wife as a witness against the other. that the prisoner's wife was allowed to testify for

The following authorities (if indeed authorities are the people against her husband before the grand necessary on this point) go to substantiate this reajury. The same testimony was permitted on the soning: 22 Alb. L. J. 81; State v. Houston, 50 Iowa, preliminary examination before the magistrate, and

512; Dill v. State, 1 Tex. App 8; Hubbell v. at the time we expressed our opinion that this

Grant, 39 Mich. 641; State v. Donovan, 41 Iowa, See ante, 81. The court now take the

587.” The extraordinary measure of quashing an same view. The statute under which this testimony indictment, because of incompetent testimony bewas introduced is as follows: “In all criminal trials fore the grand jury, is resorted to, in this case, and examinations before trial a husband or wife may

because, as the court say, that testimony is clearly be examined on behalf of the other, but upon no

of the greatest substance, and it is not clear that the such trial shall a husband or wife be compelled to

bill could have been found without it. testify against the other.” The court say, by Justice Osborn: “Does this section confer the right Our revised statutes require that ballots at public claimed by the prosecution ? It seems to me clearly elections shall be “indorsed " in a prescribed mannot. The only innovation which this section makes

The Legislature last winter also prescribed upon the common law or the statutes as they form- that they should have a certain “caption.” Deputy erly existed was to give a right to a husband or Attorney-General Ruggles has given an opinion that wife to be examined as a witness on behalf of the a ballot with the required "caption" printed on the other in a criminal trial or examination. Suppose face of it, will be “indorsed ” as required by the this were all of the section, would it be contended revised statutes if it is folded so as to leave the for a moment that either could be called as against "caption" outside, the rest of the face of the balthe other? Of course not. Now, the other words lot being folded inward. We cannot agree with the are of a negative character. They certainly create deputy attorney-general. The indorsement and the no new right or privilege as to the husband or wife caption are distinct things, provided for by differbeing witnesses that did not exist before.” “The ent enactments, and they must both be distinctly only construction that can be given to these words and separately observed. The caption is something to warrant the position taken by the prosecution additional to the indorsement. A caption is a headwould be, that because the Legislature said they ing; an indorsement is a backing. A heading cancould not be compelled to testify against the other, not at the same time be a backing. The ballot may the inference is they might do so, if such testimony possibly have an indorsement when folded in the was voluntarily given. But it would be most dan- manner pointed out by the deputy attorney-general, gerous to allow any such interpretation or construc- sufficient to warrant its admission to the ballot-box, tion of the section. Such an innovation upon the but how will it be when unfolded by the counters ? common law would require a positive, affirmative That is the more important occasion, and then it provision or enactment of the Legislature. She will prove to have no indorsement. A promissory could not be called as a witness in behalf of her

note payable to the order of the maker would not husband until the Legislature so enacted. She cer- be “indorsed” by him by his turning his signature tainly cannot be called to give evidence against him over on the back of the note. These are matters of until the authority is expressly given. It may be substance, not of mere form. The deputy attorneythat the latter part of the section amounts to noth- general however admits that the ballot would not ing. Certainly no one claimed before its enactment

be hurt by printing the required indorsement on the that husband or wife by any law that ever existed outside, and this clearly being so, we cannot concould be compelled to testify against each other. ceive why any risk should be run. Wylie v. People, 53 N. Y. 225. But it may have been placed there (and I think this the more probable reason for the employment of the language) to It is to be hoped that the judges will universally prevent a husband or wife after being called as a adopt the habit of citing the State reports by the witness for the other, or on behalf of the other, as title of the report and not by the name of the rethe language is, from being compelled on cross-ex- porter. In our own State the Court of Appeals amination to testify to facts injurious to the party reports are uniformly cited as the “New York,' exin whose behalf he or she was called. For instance, cept those of “Comstock” and “Selden,” which a wife might be called as a witness on behalf of seem to form an exception. Why they should be the husband to prove some one isolated fact. It I excepted we do not know, unless through a senti

Vol. 22.- No. 19.


mental veneration for those particular reporters, only women who dare speak on this question." Mr. honored judges of our State in former times. In Jamieson : “ Then in their acquaintance they must referring to the United States Supreme Court re- have been unfortunate." Dr. Drysdale, of London, ports, confusion is made by citing them, now, for thought the existing marriage law in England, at example, as “ Wallace" or Otto,"

” and again by any rate, exceedingly unfair to women, particularly the proper title and number. The greatest confu- in the matter of the custody of children. sion arises in the case of the Pennsylvania State reports, which the Pennsylvania judges always cite by the reporter's name, and all other judges by the In the discussions upon divorce the ladies also proper title and number. In most of the States joined. Mr. J. Campbell Smith, advocate, attribtheir own reports are now usually cited, both by uted the increase in cases of divorce to the increased bench and bar, by the State name and number. facilities for obtaining divorce, and not to increased The reasons for the course preferred are obvious. immorality. His experience of the divorce courts In the first place, it is right to call a thing by its showed that for one bad wife there were three bad name, and not by the name of its maker. Second, husbands; but when a man had a bad wife she was citing reports by the reporters' names frequently thrice as bad as the worst husband. He thought confuses in the case of the same name in different there should be other grounds of divorce than adulStates. Finally, the number indicates at a glance tery or desertion. Miss Downing, of London, conwhether the case is old or recent.

sidered drunkenness a good cause for divorce; saying, if she had to choose, she would rather live with

an unfaithful husband than a drunken one. Mrs. At the recent Social Science Congress, in Edin- M'Laren objected to divorce altogether, and considburgh, ladies took an active part in the discussion ered a judicial separation might always meet the upon the law as affecting women's rights of prop- necessities of the case. Miss Burton thought there erty and over their children. Mrs. Elmly said, with hardly was a married couple who, at some time of regard to the suggestion that the wife's income their life, did not wish they had not been married. should be made cqually liable with that of the hus- | With greater facilities they would just increase diband for the household expenditure, there were

Miss Elmly differed from the other ladies points in the existing law that gave a very great ad- who had spoken, and pleaded not only for divorce vantage to the husband, and it was only just and as it existed, but for the assimilation of the laws of expedient that, before the wife was equally liable England to those of Scotland. In England a woman for the household expenditure, these points should could not obtain divorce on equal terms with her be rectified. In the first place, the wife was only a husband. Mrs. Wolstenholme Elmly considered servant who received no wages, and yet she had to that the law had placed the woman simply in the perform an immense amount of domestic labor; and, position of being the property of her husband. Mr. in the next place, the husband had the sole legal Mangus Rendall, of Leith, held that marriage should custody of the children. Miss Lydia E. Becker did not be made too popular. It was too popular alnot believe the satisfactory amendment of this law ready; and women looked too much to it for a setpossible, so long as unmarried women, who had prop- tlement in life. Miss Burton said the men had eduerty that might be affected by the marriage laws, cated the women up to let them take part in meetwere altogether deprived of any voice in the makings such as the present; and they must take the ing of the desired alterations. She believed there consequences. Certainly Miss Downing is neither were many unmarried women who hesitated to con

squeamish nor mealy-mouthed, and Miss Burton has tract matrimony through their unwillingness to come a vast amount of knowledge of the marriage state under those objectionable laws. Mr. R. Campbell, for a single woman. advocate, said the manner in which this difficult matter had been treated seemed to him to make it all the more difficult. He took exception to the The only result of the election on last Tuesday extreme and sentimental views which had been ex- which we need to chronicle is the election of Judge pressed. He submitted that the law as it stood was Folger to the office of Chief Judge of the Court of markedly in favor of women, and remarked that if Appeals of this State. The people have made an these proposed changes were adopted the question unexceptionable choice. The same would have would arise was marriage to be a life-long con- been true if Judge Rapallo had been elected. The tract ? Mrs. Duncan M'Laren protested against the result is probably quite indifferent to the gentlemen custody of children being regarded as a minor mat- in question, and we do not believe it will make a ter. It was a matter of life and death to women particle of difference in the administration of final whose children were being subjected to the cruelties, justice in this State. Chief Judge Folger will simbrutality, and abominations of husbands. Mr. An- ply continue to preside and to sit at Judge Rapallo's drew Jamieson, advocate, said the law of Scotland lest instead of his right, and to receive $500 addi. had on the whole worked very well. He expressed tional salary for these arduous duties; while the some curiosity as to what sort of husbands those court will continue to pursue its calm, dignified and ladies who had spoken had known. Mrs. Duncan impartial course, undisturbed and uninfluenced by M'Laren: “ Those who have good husbands are the politics and unsuspected by partisans.


said: “Conceding that the acts and declarations of

Mrs. Innis were sufficient to establish a waiver, in IN N People v. Freshorn, Supreme Court of California, case she had been feme sole, yet it is an unquestioned

1 Ky. L. Rep. 224, it was held that where an fact that during th whol time she was under coaccomplice called as a witness by the State volun- verture. The question then is, were they sufficient tarily testifies in chief on a particular subject, he

to transfer the title of a married woman in real may be cross-examined on that subject, even though estate and estop her from asserting it? It is a sethe claims to be privileged from answering, on the tled rule of law that a married woman has no caground that his answers may criminate him in other pacity to contract for the sale of her real estate, nor matters. The prisoner had testified that he was to convey it, otherwise than in the precise statutory present at and a party to the alleged larceny, and mode conferring the power. Hepsel v. Gefser, 2 was then asked by defendant's counsel, “ state the Grant, 84; Rumfet v. Clemens, 10 Wright, 455; general plan which you and the defendant entered Gliddon v. Stempler, 2 P. F. Smith, 400; Dunham v. into for stealing these cattle ?” This he was ex- Wright, 3 id. 167; Graham v. Long, 15 id. 383; cused from answering, and this was held error. Brown v. Bennet, 25 id. 420. The title which she The court said: “The witness should not have been did transfer according to the requirements of the permitted to separate the actual taking of the prop-statute, on the 11th of November, 1877, had reerty from the plan of the parties to the taking. His verted to her. It became hers as absolutely and recital of the alleged plan or agreement might have unconditionally as if she had not executed that tended to show that the connection of defendant agreement. Her title then could not be sold withwith the actual taking was innocent — as that he out an instrument in writing duly executed and acsupposed the cattle to be the property of the wit- knowledged by herself and her husband. Without ness, and was employed by him — or might have led those the instrument as to her was void and passed to such expansion of the narrative by witness as no title at law or in equity. Gliddon v. Stempler, would leave him open to contradiction, or to im- supra; Dunham v. Wright, supra. The fact that peachment by reason of the improbabilities of his she may have received a part or the whole of the story. Defendant was entitled to a full history of purchase-money in consideration of her agreement, all that tended to explain the nature and degree of or induced the purchaser to make valuable improvehis complicity with the acts of the witness. The ments thereon, is insufficient to pass her title to real scheme of the parties and the acts following were estate where the form of transfer prescribed by the part of one transaction; and when a witness volun- statute has not been observed. To hold otherwise tarily testifies in chief on a particular subject, he would operate as a repeal of the statute which desigmay be cross-examined on that subject, even though nates the only mode in which a married woman can his answers may criminate or disgrace him. Toron convey her real estate. Rumfet v. Clemens, supra; v. Gaylord, 28 Conn. 309. If the witness had been

Gliddon v.

Stempler, supra; Thorndale v. Morson, 1 compelled to give his version of the agreement, it Casey, 326; Richards v. McClelland, 5 id. 385; Pelwould have aided the jury in determining how far let v. Fritz's Executors, 9'id. 118. The doctrine of his testimony was credible. He had already tes- estoppel cannot be invoked to enforce the agreetified that there were other parties to the criminal ment of Mrs. Innis for the sale of her land when agreement, but it was neither his moral duty nor her agreement was otherwise void. Legal incapaclegal privilege to protect them at the expense of the ity cannot be removed, even by fraudulent repredefendant on trial. If when he had given his ver- sentation, so as to create an estoppel in the act to sion of the plan he had stated there were no other which the incapacity relates. Hence it was held in parties to it than defendant and himself, he would Keen v. Coleman, 3 Wright, 299, that a married

ive shown that this or his former statement was woman who falsely and fraudulently represented untrue; if he named other parties, they might have that she was single when she executed a judgment been called to disprove the accusation, and thus bond, thereby obtaining the consideration therefor, discredit the whole of his testimony. It is enough, was not estopped from setting up her coverture as a however, to say that he had already admitted that defense to a recovery on the bond.” We also refer the conspiracy contemplated and provided for the to Shivers v. Simmons, 54 Miss. 520; S. C., 28 Am. commission of the particular overt act charged in Rep. 372, and note, 374. the indictment. If a witness discloses a part of a transaction with which he was criminally concerned, without claiming his privilege, he must disclose the

In State ex rel. American Union Telegraph Co whole. 10 Fost. 540."

Bell Telephone Company of Missouri, Judge Thayer, of the St. Louis Circuit Court, has delivered an in

teresting decision. There was an application for Our remarks on the effect of a wife's joinder in mandamus to compel the defendant to connect the her husband's deed of land, in answer to a corre- plaintiff's office with its wires, and give it the use spondent, ante, p. 319, are confirmed by Innis v. of telephonic facilities. The defendant contended Pendleton, Pennsylvania Supreme Court, October 4, that it could not be compelled to do so, because by 1880, 11 Pitts. L. J. 73, where it is held that estop- the terms of its license from the patentee of the inpel cannot be invoked to enforce a wife's agreement, vention it was forbidden to connect with any teleotherwise void, for the sale of her land. The court | graph office or permit any telegraph company to




become one of its subscribers. The court observed: | opinion of a surgeon or physician is necessarily “Bearing in mind that the respondent serves the formed in part on the statements of his patient, depublic as a common carrier of messages, not by keep- scribing his condition and symptoms, and the causes ing offices and agents of its own to which the entire which have led to the injury or disease under which public may resort, but by applying instruments to he appears to be suffering. This opinion is clearly private residences and offices, and thereby enabling competent, as coming from an expert. But it is its subscribers to communicate directly with each obvious that it would be unreasonable, if not abother, and it becomes evident that this clause of the surd, to receive the opinion in evidence, and at the contract, if enforced as a valid provision, would same time to shut out the reasons and grounds on compel the respondent to discriminate against a which it was founded. Such a course of practice class of individuals or corporations engaged in a would take from the consideration of court and particular calling, to the extent of denying them jury the means of determining whether the judgany telephonic facilities whatsoever. In other ment was sound, and his opinion well founded and words, a corporation created under the laws of this satisfactory.

The party producing the State, and endowed with large privileges, among witness, and who relies on his opinion, should be others with the right to appropriate private prop- allowed the privilege of showing that his testimony, erty (presumptively on the theory that such a cor- as an expert, is the result of duc inquiry and invesporation is a public servant), is compelled by the tigation into the condition and symptoms of the natural operation of this provision of the contract, patient, past and present.

The existence to withhold facilities for the transaction of business of many bodily sensations and ailments which go from one class of citizens which it accords to others. to make up the symptoms of disease or injury can In my judgment, this clause of the contract is inde- be known only to the person who experiences them. fensible when called in question by any person or It is the statement and description of these which corporation injuriously affected thereby. In so far enter into and form part of the facts on which the as the contract between the respondent and the opinion of an expert as to the conditions of health patentee compels the former to discriminate against or disease is founded." And at p. 326 he says: “It one class of its would-be customers, and to deny is suggested, in behalf of the defendant, that the them the same privileges and service which it ac- statements in the present case were made by the cords to'others, the contract is invalid. It is not plaintiff after the commencement of the action. But possible to admit the principle that a railroad, tele- we do not think that for this reason only they ought graph or telephone company may avoid the perform to have been rejected. It was a circumstance which ance of any part of the paramount duty they owe may have detracted from the weight of the evidence to the entire public, by contract obligations which of the opinion of the physician, so far as it was they may enter into, even with the patentee of an founded on these statements. But as the statements invention. If the principle were conceded, it is were made to a medical man, for the purpose of requite obvious that such corporations might readily ceiving advice, they were competent and admissi. avoid the performance of any public duty that be- ble.” came inconvenient or burdensome. It would become The principal case is supported by Matteson v. N. possible to discriminate at pleasure both against Y. Cent. R. R. Co., 35 N. Y. 487. The injury ocindividuals or classes." “If the relator, owing to

curred on the 7th of July, and consisted in concusthe peculiar nature of its business as a telegraph sion of the spine. Declarations made by the injured company, shall attempt to make such use of the person in the following October, after suit brought, telephone as the respondent seems to anticipate, the to physicians while they were examining her to asquestion as to the legality of such use can only be certain her condition, were held admissible in her tried and determined when the emergency arises, behalf. The court said: “Iler complaints and repand in some appropriate form of proceeding.” resentations of pain and suffering, together with

her appearance and conduct, necessarily formed the

basis of their judgment.' “This is the case, notDECLARATIONS OF INJURED PARTY TO withstanding the examinations referred to were SURGEON AS TO CAUSE OF INJURY, made by the physicians after the suit was comCONDITION AND SYMPTOMS.

menced, and with a view as to their testifying

therein as to the result of their examinations. It N Quaife v. Chicago and Northwestern Railway Co., | does not appear that the patient knew that such was

48 Wis. 513, it was held that in an action of their object, and if she did know it the jury were damages for personal injuries by negligence, the to judge whether her representations were false or plaintiff having at the defendant's request sub- her testimony collusive." So in Brown v. N. Y. mitted to a physical examination by surgeons, testi- Cent. R. R. Co., 32 id. 597, testimony that the inmony that judging from the examination, including jured party complained “all the time since the what she said at the time, and her indications of injury," was held admissible. To the same effect suffering, the injury complained of existed, was ad- Caldwell v. Murphy, 11 id. 416, where the commissible, although the witness swore he could dis- plaints were made during ten or eleven days after cover no external evidence of it.

the injury, and in Werely v. Persons, 28 id. 344, This is based on Barber v. Merriam, 11 Allen, where they were made during two or three weeks 322-324, where Chief Justice Bigelow says: “The after the injury. In Aveson v. Kincaid, 6 East, 188,


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