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Wright v. West......
THE ALBANY LAW
A WEEKLY RECORD OF THE LAW AND THE LAWYERS.
The Albany Law Journal.
word. Such a newspaper is a publication adapted to the general reader. Now, in the absence of some
controlling consideration to the contrary, the statute ALBANY, JULY 3, 1880.
is to be taken to have used the word newspaper in this its ordinary sense, or
as Gen. St., ch. 4, § 1,
expresses it, according to the common and apCURRENT TOPICS.
proved usage of the language; ' and when the object of the publication of a summons is considered,
the UST as the warm weather and vacation are com
reasonableness of such a construction of the word ing on, when materials for current topics be
newspaper as requires the publication to be made come scarce, it is a great relief to be judicially where it will be likely to meet the eye of the geninformed that "a law weekly is not a newspaper.' cral reader, is quite apparent. For these reasons, This was held in Beecher v. Stevens, 25 Minn, 146,
we are of opinion that the Northwestern Reporter,' under a statute requiring publication of summons
though it may properly enough be denominated a in a newspaper, in regard to our much esteemed
legal newspaper,' is not a newspaper within the contemporary the Northwestern Reporter. The court
meaning of the statute above cited.” observed: “This is a twelve-page weekly publication, somewhat different in size and shape from an ordinary newspaper, though the difference is not The London Law Times seems to think that the legal such as to render it improper to denominate it a profession are growing rich too fast. That journal renewspaper, provided its usual contents are, in gen- cently remarked: “It is seldom that an English eral character, like the usual contents of newspapers. judge, upon the bench, condemns the excessive costs It purports to be and is devoted specially to the of litigation, and of legal proceedings generally, in interests of the legal profession.' Its usual con- this country. We would that it were done more often, tents are the general laws of this State, published hardly less in the interest of the profession, than shortly after their passage, the decisions' of the on public grounds. We hope that the strong, but Supreme Court of this State, the decisions of the becoming language in which Lord Justice James reSupreme Court of Wisconsin, and occasional decis- cently condemned the enormous cost of litigation, ions of other courts, a court directory, cards of at- will not be lost upon our profession, and especially torneys and counsellors-at-law, a list of transfers of upon those members of it upon whom the respoasireal estate in Ramsey county, advertisements and bilities of a seat in Parliament are now resting. Is notices of law books, about a page of miscellaneous it wise, we ask, for lawyers to try the experiment of advertisements, and legal anecdotes. Except as leaving laymen, both in and out of Parliament, to above, it does not publish, nor assume to publish, cut down the cost of legal proceedings ? Is it not what is understood by the current news, or news of the duty of the legal profession itself to take up this the day. Newspapers are of so many varieties that question and apply the necessary remedies, some of it would be next to impossible to give any brief which are already at hand ? Any sufficient, and definition which would include and describe all therefore substantial, alterations in legal procedure, kinds of newspapers.
We are not called upon to must necessarily affect large numbers of members of incur the risk of giving any such definition at this the profession; in some cases adversely, and in othtime. It will be sufficient for all the purposes of ers to their advantage. Among the sources which this case to say, that in the ordinary understanding give rise to costs, the incurring of which might of the word, a newspaper is a publication which often be avoided, the following may be mentioned: usually contains, among other things, what is called Pleadings, which practice the Judicature Acts have the general news, the current news, or the news of to all intents and purposes preserved; the central, the day; and nothing which does not usually con- instead of the local administration of justice; the tain such news, and is intended for general circula- interests and privileges of the bar; the system by tion, is a newspaper, in the ordinary sense of the which solicitors are remunerated; the practice of the
VOL. 22.-- No. 1.
judges in granting new trials; the unnecessarily If that construction is right, it would prevent the
In Dinsmore v. Nashville, etc., Railroad Co., post, fable of the goose that laid the golden egg. Is
the court give the following interesting information there any lawyer whose services are worth $250 a
as to the magnitude of the express carrying busiday? We ask for information, for we know some
ness in this country: “The express business, which lawyers who get that amount.
had its inception as herein previously stated, now
extends all over the States; is carried on by numerThe case of Goldstraw v. Duckworth, in the
ous organizations, which meet the requirements of Queen's Bench Division, March 23, 1880 (42 L. T.
the several localities in which they do business; and [N. S. ] 440), will be of interest to residents in cities occupies every railroad line in the country available and towns who wish to put out oriel windows. A
for the purpose. They have an invested capital of statute provided that “no projection of any kind
over $30,000,000, and the Adams and Southern Exshall be made in front of any building over or upon
press Companies have in daily use and occupation the pavement of any street,” with exceptions for 21,216 miles of railroad; employ 4,297 persons; shop fronts, doorways, cornices and pilasters, under make 911 daily trips, over 64,560 miles, aggrecertain conditions. The sections immediately pre: gating 19, 884,420 miles of travel annually. And ceding prohibited the discharge of water, steam
for the transportation of their freights they pay and smoke upon the footways or into the street, and
the railroad companies over $2,000,000 per year. provided for covering openings in or into the foot- It is further alleged, as showing the extent and ways. It was held that the words "over or” only magnitude of the express business, that these included such projections as would be an obstruc- companies carried for the government $1,200,tion to foot passengers, and did not include projec-000,000 in 1878, and 601,000,000 in 1879, and tions all the way up a house. On the hearing of
for private parties, in the last-named year, the the information it was proved that the projection
sum of $1,050,000,000; and that the complained of was an oriel window of stonework,
Adams Express Company alone receives and diswhich measured from the bottom to the top 11 ft., burses, in New York city, 14,000 packages daily, and projected over the foot-path 2 ft. 6 in., and that employing therefor, in connection with their genthe distance between the lowest part of the window
eral business, 918 horses, with the necessary numand the foot-path was 14 to 15 feet, and that such
ber of wagons." Mr. Schouler says (Bailments, oriel window was not in the nature of a shop front,316): “The American pioneer in that business is doorway, cornice or pilaster, and also that the land said to have journeyed in person, by steamboat and over which the window projected was to the extent
rail car, between New York and Boston, with all of 2 ft. 6 in. part of the public highway, being, in
his customers' , valuables contained in a hand fact, the foot pavement of the street. It was, how
satchel." ever, proved to the magistrate that the window was not any nuisance or obstruction, except only so far
NOTES OF CASES. as any such projection necessarily interferes with the access of light and air to the street, and with the regularity of the line of buildings in the street, 21 A. L. J. 442, we call attention to the case just and that it did not interfere with the free use of reported, of Franklin Coal Co. v. McMillan, 49 Md. the foot-path. The court said: “It is contended 549, holding the contrary doctrine, namely, that the that the words 'over or’ upon the pavement apply measure of damages in an action for waste for minto any projection in any building, however high. I ing coal, where the mining is innocently done under
an erroneous impression of title, is the value of the ejecting the express carriers, monopolize the business, coal before separation from its bed, without allow- dictate oppressive rates, while affording less safety, ance for the expense of severing. This is the same celerity and convenience to customers as a substidoctrine held in Barton Coal Co, v. Cox, 39 Md. 1; tute for the expeditious, reliable and necessary servS. C., 17 Am. Rep. 525; and Illinois, etc., R. and ices of expressmen. The country would be dependCoal Co. v. Ogle, 82 III. 627; S. C., 25 Am. Rep. ent upon an illegal assumption of authority by 342; but cannot be considered the prevalent doc- railroads, an assumption in some respects in contratrine. The court in the principal case said: “We vention of public policy, because it would enlarge have examined all the cases which have been cited their power and influence for controlling the busiin the argument, and have discovered no sufficient ness of the country, which, to say the least, is reason for departing from the decision so recently already sufficiently formidable. But it is enough made by this court; nor have we seen any good rea- to say that railroads were not created to do an exson to doubt that the rule then announced is upon press business, are not suited to such service, posthe whole a sound and salutary one, which, while it sess no legal capacity to engage in it, cannot be reawards no more than a just compensation to the quired to undertake and perform it, and I may add, party injured, will, as said by Baron Parke, “tend ought not to be permitted to engage in these to prevent trespasses of this kind.' We think no branches of the express business, ultra vires their real distinction can be drawn between this case and corporate powers, if they would; and as they are that of the Barton Coal Company. There this court not legally bound to render express facilities to the held the rule applicable, though the defendant was country themselves, can they, by excluding the exnot a willful trespasser, but .dug the coal without pressmen, deprive the public altogether of this knowing that it was trespassing upon the property necessary facility ? Or else extort such concessions of the plaintiffs, but believing it was its own coal.' as the petty resentment or cupidity of their manIt is said that in that case there was no dispute or agers might prompt them to exact? We think not. question about boundaries, and that it was negligence On the contrary, if the express business, as we have in the defendant to go beyond its own lines. But hereinbefore asserted, has become a convenience to the trespass was committed under ground, where the general public, we think it the duty of all railthe lines were not easily ascertained. Trespasses on road companies, through their managers, and in the the land of another, if not willful, always imply exercise of the trusts confided to them for the pubsome degree of negligence. In this case the de- lic good, to make proper provision for everybody fendant's excuse is, that it claimed to be the owner wishing to carry express matter over their respective of the land. But it has been shown by the proof roads, as, in doing so, they would be accommodatand by the verdict that its claim was not well ing the public, and fulfilling to that extent, the obfounded. As said in Maye v. Tappan, 23 Cal. 306: jects and purposes of their creation.” No authoriWhere a party has the means of ascertaining the ties are cited, and so far as we know, the question dividing line, he is guilty of negligence in not ascertaining its location. In this respect, therefore, this case is not to be distinguished from that of the Bar
In Sawyer v. Gerrich, 70 Me. 254, the plaintiff's ton Coal Company. Considering that case as decis
mare was served by the defendant's stallion for the ive of the present, we have not thought it necessary
purpose of raising a colt, whereupon the plaintiff to make further reference to the authorities, or to agreed in writing to pay the defendant twenty doldiscuss the proposition there decided over again.”
lars twelve months after date if his mare proved Robinson, J., dissented in a learned and able opin- with foal, “colt holden for payment.” Held, that ion.
the written agreement created a contract-lien in the
nature of a mortgage. The court said: “It would In Dinsmore v. Nashville, etc., Railroad Co., U. S. seem that if the defendant had sent his mare to the Circuit Court, District of Kentucky, May, 1880, 10 plaintiff for the purpose of raising a colt from the Cent. L. J. 468, it was held that a common carrier latter's stallion, the defendant would have had, at is as much bound to carry for another common car- common law, a lien upon her for the use of his rier as it is for others. Therefore, & railroad com- horse, so long as he retained possession of the mare. pany cannot refuse to carry for an express company, Scarfe v. Morgan, 4 M. & W. 270; and perhaps upon nor to extend to its messengers and agents the facili- | the foal since parius sequitur ventrem, 2 Bl. Com. 390; ties requisite to the prosecution of the express busi- Allen v. Dinsmore, 55 Me. 113.” It is well settled
The court said: "If express carriers were that the owner of personal property having a potenejected from the railroads, the latter could not be tial existence may sell it. Grantham v. Hawley, compelled to supply their places, and, consequently, Hob. 132; 2 Kent's Com. 468 and note g, 492 note the country would be without such facilities unless 1, c. ; Farrar v. Smith, 64 Me. 77. And within this the railroad companies would exceed their corporate principle, the owner of a mare may, during gestaobligations and voluntarily undertake to do what | tion, sell her future offspring, which will vest in the they are not legally required to do, and to do many vendee when parturition takes place. McCarthy v. things which under their charters they have no right | Blevins, 5 Yerg. 195." “Our opinion is that the to do. As they are under no legal obligations to contract was in the nature of a mortgage; and the render such accommodations to the public, and could case not distinguishable in principle from Oakes v. not be compelled to render them, they could, after | Moore, 24 Me. 214, 220." See Moore v. Byrum, 10
IN O nconcurred.).
S. C. 452; S. C., 30 Am. Rep. 58, and note, 63, pose a declaration had been made by the deceased, holding that a mortgage of a crop to be planted is on the previous day, of an intention to go to her valid. This is held not only inter partes but as husband on that particular evening; such declaraagainst creditors. See note, supra. Farrar v. Smith, tion, being unaccompanied by any act, would rest cited in the principal case, was the case of a sale of wholly in assertion, and would be clearly without manure to be made.
the rule referred to; yet the proof would be essen
tially of the same character, and subject to no DECLARATIONS AS RES GESTE IN
greater objections than the evidence we are consid
ering. I am of opinion, therefore, that the case CRIMINAL CASES.
was not within the rule admitting a declaration acIII.
companying an act, on the ground of its being a
part of the res gesta." "A majority of the judges N
intestate had contracted to go to California and In Carroll v. State, 3 Humph. 315, the declarations take charge of defendant's steamboat. In an action of the deceased while on a journey with the prison the contract, it was held that his statement on oner, and in State v. Vincent, 24 Iowa, 570, his deleaving San Francisco, that he was going up the clarations as to the object of a contemplated journey river to Sacramento to go on board the boat, was which he afterward took, were received in evidence. admissible, as part of the res gesto, in proof that he In neither case was there any thing in the declaraso went. The court simply said, “it was manifestly tions tending to fasten any criminal intent on the a part of the res gestee."
prisoner. In State v. Dula, Phillips, 211, the deceased was In Cheek v. State, 35 Ind. 492, a witness was al. met a few miles from the place where she was mur- lowed to testify to the following declaration by the dered, going on horseback in that direction. It was deceased concerning the prisoner just before his held that her declarations then and there that she death: “Doc, I am glad you have come; there are was going to that place to meet the prisoner were two ruffians going up the road, and they have inadmissible in evidence. The court said these de- threatened to take my life; they have gone to my clarations may have been true or may have been house, and I want you to go back with me.". The false, but were not verified by the tests which the court said: "Was it res gesta? We think not. law of evidence requires, namely, the sanction of an Bouvier says: "When it is necessary, in the course oath, and an opportunity for cross-examination. of a cause, to inquire into the nature of a particular
In People v. Williams, 3 Abb. Ct. App. Dec. 596, on act, or the intention of the person who did the act, an indictment for poisoning, it was held that evi- | proof of what the person said at the time of doing dence that the deceased, on going out of the house it is admissible evidence as a part of the res gesta, just before she was poisoned, said she was going to for the purpose of showing its true character.' We meet the prisoner, is not admissible as tending to think the books may be searched without success, prove their meeting, even in connection with her to find a case where the statements of a murdered illness on her return, and her attributing it to what man, made before he came in sight or hearing of he had given her to drink. The court, Denio, J., his slayer, can be given in evidence against the acsaid: “To render the declaration competent, the cused on his trial.” Of this case Mr. Bishop says act with which it is connected should be pertinent (2 Crim. Proc., § 625, n. 2): “This may be putting to the issue; for where the act is in its own nature it strong; but in substance the statement is doubtirrelevant, and when the declaration is per se incom- less correct as applied to such a case." petent, the union of the two will not render the de- The case of State v. Dickinson, 41 Wis. 299, is claration admissible. The material fact here was very much like the Hayden case in its circumstances, that the prisoner and the deceased were together on but the decision steers a middle course. This was Saturday night. Even this was not a principal fact, a criminal action for procuring the death of a pregbut only a circumstance to show that the prisoner nant woman by abortion. It was claimed that the had an opportunity to commit the offense. That death occurred on Saturday. The witness, Mary the deceased left the house in Duane street at a par- Erickson, was permitted to testify as to conversaticular time was of no materiality unless it was also tions had by her with the deceased on the previous shown that during her absence she met the defend- Wednesday and Friday, in which the deceased ant. The act itself was indifferent to the issue, stated that she understood or had found out that whatever the intention with which it was done. If she was in a family way; that she had been to see the deceased met the prisoner, and thus afforded an the defendant about it; had been or was going to opportunity of committing the offense, it is immate- defendant to get medicine and syringe; that she had rial whether she expected or intended to meet him made an arrangement or bargain with defendant to or not; and so of course if she failed to meet him, have an operation performed upon her; was to give he could not properly be prejudiced by the circum- $25, and was to return to defendant's on Saturday stance that she went out with a design to go to him. afternoon for the purpose of having instruments The evidence was not offered to qualify an act con- used to get rid of the child. The prosecution nected with the issue, but to induce the jury to offered this evidence to show that the deceased had infer another act not otherwise shown to exist, that at that time the intention of having an abortion of his being in company with the deceased. Sup-produced. In his charge the judge so restricted the