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plaint for stealing at the same time and house the property of B, a different person. Rice v. Coolidge, p. 393. One not a party to a former action may maintain tort against a person also not a party thereto for suborning witnesses to testify falsely in that action whereby his character is defamed. Levi v. Brooks, p. 501. A master directing a servant to remove furniture from the house of another is liable for a willful assault committed by the servant in the execution of the order and not for the private purpose of the servant. All we need say of the volume is that it is in every respect equal to its predecessors. Any thing more it is needless to say.

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Judgment affirmed, with costs - Coleman v. Crump; Peck v. N. Y. C. & H. R. R. R. Co.; Porter v. Kingsbury; Chittenango Cotton Co. v. Stewart; Kasson v. Kellogg Bridge Co.; Delemater v. Fonda, Johnstown and Gloversville R. R. Co.; Comstock v. Drohan; Beebe v. Pyle; Spalding v. Rosa; Stout v. Woodward; Eisenlord v. Snyder.- Order granting new trial affirmed, and judgment absolute for plaintiff on stipu

lation, with costs - Campbell v. Smith.- Order affirmed, without costs to either party in this court Buel v. Southwick.- Motion to dismiss appeal denied, with $10 costs- Littauer v. Goldman.- -Motion for reargument denied, with $10 costs- Hebbard v. Haughian.— Order granting new trial reversed and judgment on report of referee affirmed, with costs Lanigan v. New York Gas-Light Co.- -Judgment reversed and new trial 'granted, costs to abide event Ross v. Hurd; Stowell v. Otis. Judgment of General Term reversed and judgment of Special Term affirmed, with leave to defendant to answer on payment of costs, within twenty days after filing remittitur-Boyle v. City of Brooklyn.

THE

NOTES.

HE Illinois State Bar Association has issued a neat pamphlet containing its constitution and its officers and committees, and a brief statement of the proceedings had at the organization of the association on the 4th of January last. We understand the association to be in a very flourishing condition. The proceedings of the convention called for the purpose of organizing the New York State Bar Association, together with its constitution and by-laws, the rules of the executive committee, its act of incorporation and the names of its members elect, have been printed in an attractive form for circulation among the profession of the State, a very large number of whom are included in the list of members elect.

"If you will kill this horse for me I will give you $5." "All right," said C, and C took the horse away with him. C, however, did not kill the horse, but doctored him and restored him to health. A, much to his surprise, one day saw C driving a fine animal, which A unmistakably recognized as his formerly sick horse. A demanded the horse from C; C refused to give him up, and A brought suit against C to recover possession of the horse. The jury decided that C was entitled to the horse. Of course there was an appeal taken.

The Virginia Law Journal has discovered an ancient order of court wherein a lawyer was punished for the crime of verbose pleading. We judge the law under which this order was allowed has become absolute. This is the order: "Forasmuch as it now appeared to this court by a report made by the now Lord Keeper, being then Master of the Rolls, upon consideration had of the plaintiff's replication according to an order of the 7th of May, that the said replication doth amount to six score sheets of paper, and yet all the matter thereof which is pertinent, might have been well contrived in sixteen sheets of paper, wherefore the plaintiff was appointed to be examined to find out who drew the same Replication, and by whose advice it was done, to the end that the offender might, for

example's sake, not only be punished, but also be fined

to her Majesty for that offense; and that the defendant might have his charges sustained thereby; and for that it now appeared to his Lordship, by the confession of Richard Mylward, alias Alexander, the plaintiff's son, that said Richard himself did both draw, devise and engross the same replication, and because his Lordship is of opinion that such an abuse is not in any sort to be tolerated-proceeding of a malicious purpose to increase the defendant's charge, and being fraught with much impertinent matter not fit for the court. It is, therefore, ordered, that the Warden of the Fleet shall take the said Richard Mylward, alias Alexander, into his custody, and shall bring him into Westminster Hall on Saturday next, about 10 of the clock in the forenoon, and then and there shall cut a hole in the midst of the same engrossed replication which is delivered unto him for that purpose, and put the said Richard's head through the same hole, and so let the same replication hang about his shoulders with the written side outward, and then, the same so hanging, shall lead the said Richard bareheaded and barefaced round about Westminster Hall, whilst the courts are sitting, and shall show him at the Bar of every of the three courts within the Hall, and then shall take him back again to the Fleet and keep him prisoner until he shall have paid 10l. to her Majesty for a fiue, and 20 nobles to the defendant for his cost in respect of the aforesaid abuse, which fine and costs are now adjudged and imposed upon him by this court for the abuse aforesaid." Sir J. Puckering, Lord Keeper, 10th February, 1596.

Chief-Justice Waite is to occupy, during the coming season, the house, in Washington, in which the late Edwin L. Stanton lived. Col. Thomas Scott has leased Mr. Chase's old home on the corner of Sixth and E streets.It is once in a while recalled that Mr. William Cullen Bryant practiced law for a short time, and was so disgusted by a defeat in one suit through a technicality, in words, that he abandoned the profes

Los Angelos has had a novel lawsuit. It came before a justice's court, and was to this effect: A had a sick horse which was in great suffering, and which he thought was sure to die. So he took the horse to B, a livery stable keeper, and said: "I will give you $5 to kill this horse for me." "All right," said B. So A paid the $5, left the horse in charge of B and went away. Bcould not, however, summon sufficient nerve to kill the poor animal, so, in his turn, B said to C:sion immediately, forever.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, OCTOBER 13, 1877.

CURRENT TOPICS.

THAT the business coming before the courts of

last resort in the more populous States is more than can be properly disposed of, has long been evident, and numerous plans have been devised to meet the difficulty. Occasionally a co-ordinate court or commission has been organized to clear off arrears, and enable the regular tribunal to take a fresh start with new cases only to attend to. This has, however, afforded only temporary relief, and has been attended with the disadvantage of bringing uncertainty into the enunciations of law, the two final arbiters being liable to differ. This latter circumstance has prevented the permanent establishment of a double final court. Yet the popular sentiment applies in a way somewhat different from what it was intended to be applied, the maxim interest reipublicæ ut sit finis litium, and demands that the highest appellate court shall dispose of all the business brought before it promptly, and shall give the reasons for its conclusion in almost every instance. The judges try to meet this demand in the only manner they are able, and that is by working themselves beyond their strength. The result is that they break down early, being compelled to retire either entirely or partly from the labors connected with their positions, within comparatively a few years after assuming them. Some men of strong physical powers may sustain the severe strain to which the judges are subjected, up to the period in life beyond which the Constitution of this State does not allow any one to hold the judicial office, but these instances are few. And the worst feature of the whole matter is, that there is, and can be no change in the condition of things for the better, at least as long as judicial work is done according to the system now or heretofore in vogue. The crowd of suitors about the courts is daily becoming greater, the judges are working harder and failing earlier. There must be some remedy for all this, but no satisfactory and permanent one has yet been suggested.

The judges might, however, be relieved very much by the use of certain aids which, though not heretofore adopted here, are practicable and proper. The greater part of the labor connected with the determination of a case consists in (1) the collocation of the authorities bearing upon the isVOL. 16.- No. 15.

sues involved in it, and (2) the writing out of the results of such collocation. In other words, looking up cases, and writing opinions, constitute a considerable part of the judicial work. Now the case law bearing upon the points argued in any cause could be looked up and arranged by any good lawyer, so that all the judge or court would have to do would be to apply the same. This could be done in an opinion delivered orally, and written down by a stenographer. A practice something like this we understand prevails, to some extent, in England. The magistrates have clerks who prepare the argued cases for decision, and the opinion, when one is given, is delivered viva voce. Such a plan might at first work awkwardly, but we are confident that once fairly tried, there would be no return to the one now in vogue. Not only would the judges be relieved of much drudgery, but they could dispose of business much more rapidly, and thus more nearly accomplish the duties which are imposed upon them. It is at least worth while to make a trial of the system suggested. That now in use certainly is not

the proper one.

The Court of Appeals, on the 10th inst., took a recess until the 12th of next month. The session just closed has been a comparatively brief one, having been less than a month in duration. About ninety cases were decided. Many of these were previously argued and considered, but as the court has given four days in each week to the hearing of arguments in cases pending, the aggregate of the business transacted was quite large. The next session, however, will show a much larger record. The provision not allowing an appeal in actions where the amount involved is less than five hundred dollars, is showing its effect in reducing the calendar to a manageable size. If the limit could be increased to one thousand dollars, it is probable that the judges could at present dispose of all the business brought before them without overworking themselves as they are now doing.

We have received a number of communications relative to the new rules regulating admission to the bar. Most of these are from young men who have been anticipating an early entrance into the profession, but who must now wait some years before they attain to the dignity of attorney, and some more before reaching that of counselor. The burden of these epistles usually is that the rules bear more harshly upon those who are obliged to earn their own living, and, therefore, cannot spend three years' time in a clerkship where the remuneration is very small. They thus make the legal profession accessible to those only who are possessed of means. very sorry for these young men, but for all that the rules are proper. Their object is not to benefit or to injure any individuals or class among those seek

We are

ing admission to the bar, but it is to protect the community from such harm as would result from incompetence, ignorance and dishonesty among the profession. It is very seldom that a man is fitted to commence the practice of the law with less than three years' training, and if there is occasionally an exception to this rule, it furnishes no reason for the abrogation of a regulation based upon the general fact. As to the advantage given to those blessed with a competence over others by the new rules, it is a result that cannot be avoided. The advantage, however, has its compensation, and we should not be surprised if under the new system, as under the old, those starting in the profession possessed only of a determined spirit and a sound body, would distance those of more fortunate surroundings in the race for honor and position.

In an article upon the Court of Star Chamber, in the current number of the American Law Review, from the pen of the late Emory Washburn, some very pertinent reasons are given for the retention of the mode of trial by jury. There have been advanced from time to time many very plausible arguments for the abolition of the time-honored system of the common law and the adoption of some more expedient way, and these arguments have in some States resulted in the abrogation of the grand inquest. The abolition of the jury, it is intimated, would tend to influence in an improper way the character and the conduct of the judiciary, for it is said "the same men who as judges of the common law while surrounded by the checks and limitations which usage and tradition had gathered within the precincts of their courts, had conducted themselves in a manner to escape censure or odium, removed thence into the murky and corrupted air of the Star Chamber, were the first to violate the fundamental principles of the common law, and were ready to go the farthest in discarding its salutary and time

At the recent Antwerp Conference one of the more interesting discussions was upon the subject of the execution of judgments and orders of foreign courts. Two papers were read, one by Dr. Tristram and the other by Mr. Alexander. The first-named gentle-honored rules." That a removal of the jury would man reviewed the doctrines enunciated by the leading authorities, and suggested certain propositions as the basis upon which an uniform international code of law regulating the subject might be readily and satisfactorily passed. The other paper sketched the existing practice of several nations, and stated principles which, according to leading modern writers, ought to govern. As stated by a member of the Conference, the practical conclusions at which the papers arrived were similar; that universal justice requires and ought to regulate the recognition in each country of the judgments of foreign courts.

The law is supposed to give an adequate remedy for every wrong, but there seems to be an exception to this rule when the wrong affects a member of the bar. This is evident from the result of a motion for temporary injunction made in New York last week in an action brought by George the Count Johannes, an attorney and counselor in the Supreme Court of this State, against one Sothern, a play actor, to restrain the defendant from performing in a character which it was alleged was a burlesque representation of plaintiff. The motion was ably argued but the court, after one or two adjournments against the wishes of the plaintiff, cruelly denied the same upon the technical grounds that the moving party had produced no authorities to warrant the issuing of an injunction in such a case and no evidence that the statements alleged by him in his complaint were true. We suppose the plaintiff will not rest satisfied with the decision made, but will appeal to the General Term, where the rights and privileges due to titled rank and professional position are more thoroughly appreciated.

have a similar effect upon the judges of our courts there is little doubt. Juries are liable to err, but they do it in most instances in the safe direction. Some times strict justice is in its results the height of injustice. The courts, however, dislike to look at results but are governed wholly by principle and precedent. The juryman, on the other hand, weighs the probable effect of his decision and in a case not free from doubt endeavors to reach a conclusion that will bring the happiest end. In other words, he considers the equities of the case more than the courts. We trust the day is far distant when the jury will be shorn of any of its power.

The block of business in the English courts is such that steps have been taken by prominent practitioners to establish tribunals of arbitration, wherein those willing to do so can have their differences adjusted. The proposed tribunals will be constituted of two, three or five lay referees, taken from the lists of special jurors, to exercise the functions of a jury, associated with a legal referee of special repute, to exercise the functions of a judge. The trials are to be conducted according to the procedure and practice at nisi prius, and the sittings are to be upon three days of the week, and to be continued without intermission through the year. The plan appears to be a good one, but will probably accomplish very little, for the reason that only such controversies as may be transferred to official referees can be brought before it, except by consent of parties. Now in almost every litigation there is one party, usually the defendant, who does not wish progress to be made. The object of his defense is to obtain delay, and not an adjudication of his

rights. Such a party will not consent to any dispo- 1 Johns. & Hen. 243; Johnston v. Renton, L. R., 9 sition of the case that will lead to an early trial. | Eq. 181; Taylor v. E. I. P. R'y, 4 DeG. & J. 559; Consequently cases transferred to the new tribunal Denny v. Lyon, 38 Penn. St. 98. In such a case by consent will be comparatively few, and as to where the relief given to the plaintiff does not reother cases it furnishes no advantage over the quire or involve the decision of any question bemethod of trial by referee, except that a sort of tween co-defendants, the court, unless by consent, jury is provided to pass upon the facts. We imagine does not and cannot decide such a question, so as to the success attending the movement will be about bind the co-defendants as against each other, but equal to that with which the experiment of courts leaves it to be settled in a proper suit between them. of arbitration has met with in this State. Cotton v. Eastern Counties R'y Co., Johnston v. Renton, above cited; Cottingham v. Shrewsbury, 3 Hare, 627; Fletcher v. Green, 33 Beav. 343; Sewall v. Boston Water Power Co., 4 Allen, 277, 283; Carlton v. Jackson, 121 Mass. 591, 597.

The Washington correspondent of the New York Tribune states that the choice for Supreme Court Justice to fill the vacancy caused by the resignation of Judge Davis, has fallen upon John M. Harlan of Kentucky, the former partner of ex-Secretary Bristow. While the name of the appointee has not been mentioned prominently in connection with the office, it is conceded on all sides that he is in every way an excellent selection.

IN

NOTES OF CASES.

The case of College Street Meth. Episcopal Church v. Kendall, 121 Mass. 528, was an action to recover the amount of a subscription made by the defendant's testator toward the erection of an edifice for religious worship. It appeared that at a meeting of the members of the congregation of the church named as plaintiff, at which testator was present, the question of erecting the building was discussed the case of Pratt v. Taunton Copper Co., reand a subscription was opened to see how much cently decided by the Supreme Judicial Court of could be obtained for the purpose, and the secreMassachusetts, plaintiff was the owner of shares of tary of the meeting wrote down in their presence, stock in the defendant company, for which she had and with their knowledge, the names of those exa certificate. This certificate was taken from her pressing a willingness to give with the amounts house without her knowledge, and together with a named by them. Testator's name was put down for forged power of attorney in her name to the com$500, and he afterward orally admitted and ratipany, authorizing it to transfer the same, was defied the subscription. The edifice was built and livered to a stock broker, who procured a new ceroccupied for the use of the congregation mentioned. tificate which was sold to an innocent purchaser, to It did not appear, however, that the erection of the whom the company issued another certificate. Plain-building was upon the faith of testator's promise or tiff brought a bill in equity against the company and the purchaser, praying that the latter be compelled to surrender his certificate, and the former to issue a new certificate for the shares of stock held by her. The court held that the plaintiff could not be deprived of her stock without her consent or negligence on her part, and that the power of attorney in her name being forged, she might maintain the bill to compel the company to issue a certificate to her for her shares, and to pay her the dividends thereon. This holding is supported by the cases of Ashby v. Blackwell, 2 Eden, 299; S. C., Ambl. 503; Sloman v. Bank of England, 14 Sim. 475; Midland Railway v. Taylor, 8 H. L. C. 751; Pollock v. Nat. Bank, 7 N. Y. 274; Sewall v. Boston Water Power Co., 4 Allen, 277; Brown v. Howard Ins. Co., 42 Md. 384; S. C., 20 Am. Rep. 90. But it was held that she was not entitled to a decree against the innocent purchaser. See Salisbury Mills v. Townsend, 109 Mass. 115; Lowry v. Commercial Bank, Taney, 310; Bush v. Laurier, 11 Wall. 369; In re B. & 8. F. R'y, L. R., 3 Q. B. 584. If he had claimed under a transfer which he knew, or was bound to know to be forged or invalid, a different case would have been presented. Cotton v. Eastern Counties Railway Co.,

that the plaintiff or its trustees incurred or assumed
any obligation in reliance upon such promise. The
court held that the defendant was not liable, saying
that the subscription was a gratuitous promise de-
pending wholly upon the good will which prompted
it and could not be enforced at law. See in support
of this conclusion, Exchange Bank of St. Louis v.
Rice, 107 Mass. 37; 9 Am. Rep. 1; Fisher v. Ellis, 3
Pick. 322; Bryant v. Goodnow, 5 id. 228; Amherst
Academy v. Cowles, 6 id. 427; Williams College v.
Danford, 12 id. 541; Thompson v. Page, 1 Metc. 565;
Ives v. Sterling, 6 id. 310; Walkins v. Eames, 9 Cush.
537; Myrick v. French, 16 id. 196; Athol Music Hall
Co. v. Cary, 116 Mass. 471. In Hanson Trustees v.
Stetson, 5 Pick. 506, in which the subscription was
to increase a ministerial fund, the court found it a
fact agreed, "that in consequence of the accumula-
tion of the fund by these means, the great purpose,
namely, the settlement of a minister, has been ef-
fected,"
," which constituted a consideration.
suggestion in Bryant v. Goodnow, supra, substan-
tially repeated in Ives v. Sterling, and Walkins v.
Eames, supra, that "it is a sufficient consideration
that others were led to subscribe by the very sub-
scription of the defendant," is said in the principal
case to be but obiter dictum, and inconsistent with
elementary principles.

The

INTEREST UPON INTEREST.

THERE is a wide-spread impression among laymen that to receive interest upon interest is a violation of the laws against usury. It prevents the creditor from receiving compensation for his debtor's delay even when it is tendered, which the law permits him to take and retain, although it will not assist him to recover it from an unwilling hand.

To compound the interest piles up the debt with fearful rapidity, but on the other hand there appears to be no reason why the debtor should not suffer the usual penalty for his default, and be compelled to recompense his creditor for the damage the law assumes in similar cases that he has suffered.

The common law was averse to interest of any kind, simple or compound, and the prejudice against compound interest has survived to our own times, although the aversion is now justified on the broad ground of public policy.

In this State interest upon interest is only allowed under special circumstances, but the moral justice of the demand is acknowledged and the creditor's title is perfect when he has received the money.

In the case at least of instruments to secure the payment of a debt after a long lapse of time, and providing that it shall bear interest payable at fixed times, it would seem that in the event of any such installment of interest remaining unpaid interest upon it should be recoverable.

As Judge Monell said in one case: "The moment interest becomes due it is a debt." Moreover the debtor is bound to seek his creditor and pay it. Williams v. Hance, 9 Paige, 211. Why should not interest be allowed upon failure to pay this debt as well as upon any other? Such an allowance of interest certainly would not conflict with the usury laws. They forbid "any greater sum or greater value for the loan or forbearance of any money, goods or things in action" to be taken, than seven dollars upon one hundred dollars for one year. This would hardly seem to forbid an award of interest as damages in such a case. It would not be a payment for the loan of the original sum, but a penalty for the debtor's delay in making payment of a distinct and separate debt.

That it cannot be recovered when voluntarily paid shows yet more distinctly that taking interest upon interest is not forbidden by the usury laws. Then again it can be recovered if a demand has been made of it. This certainly precludes the idea of usury. In several cases it has been clearly stated that it is not because it is usurious that interest upon interest is not allowed, but that it is frowned upon because it is opposed to the policy of our law as tending to injury and oppression.

It seems too to be still under the ban of that mediaeval prejudice which prohibited all taking of interest and stigmatized it in the English statute

(XXI James I, ch. 17), permitting it among sinful men as unlawful in point of religion and morals.

But whatever the analogy that pleads for interest upon interest in certain cases, the current of decisions has been too strong against it in this State to permit the courts to grant it except under excep

tional circumstances.

In Townsend v. Corning, 1 Barb. 627, Gridley, J., in the course of his opinion upon the validity of a note given partly for interest upon interest, says: "Yet I will assume, as the law of this case, that a reservation in a new security of compound interest that had accrued upon a sum previously due, against the will of the debtor, and as a condition of forbearance upon the new security, affects the security with usury and makes it void." He then says it becomes a question of fact whether it was extorted as a price for forbearance and against the will of the debtor, and there being no evidence to show either of these usurious ingredients, decides that the security is valid.

As appears from the foregoing his assumption of law was not necessary to the decision of the case, for there was no evidence of objection by the defendant. But whatever its necessity the assumption has foundation in either the statute or common law of the State.

In Kellogg v. Hickok, 1 Wend. 521, it had been decided that if parties accounted together concerning the amount due and by the consent of the debtor included compound interest, the new security for the amount including it was not usurious. Although the conclusion arrived at was correct it was reached upon false grounds, for it was assumed, as in the former case, that interest upon interest included in a security might make it usurious and void, while, as we have said before, it is never on the ground of usury that compound interest is not permitted to be taken, but because it is regarded as unjust and oppressive.

The learned judges seem to have had in their minds the relief that equity gives to any contract forced upon a party by duress and oppression, not meaning that compound interest could avoid an instrument, but that if by an unconscientious misuse of his debtor's necessities the creditor exacts compound interest, a court of equity could relieve him as they would from any other contract he might be brought into by such means. Thornhill v. Evans, 2 Atk. 330. Finally this assumption has not been adopted in subsequent decisions, for we never again find the question of forbearance and willingness raised, while it has been expressly decided that a demand of interest is sufficient to turn it into principal which from thenceforth draws interest.

The cases of Crippen v. Hermance, and Williams v. Hance, in 7 and 9 Paige, are sometimes cited to sustain the proposition assumed by Judge Gridley. The most cursory examination will show that in

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