The Albany Law Journal.

IN

peals are taken in about one out of every fifty de

Journal. cisions. The average of reversals will not exceed

ALBANY, MAY 19, 1888.

CURRENT TOPICS.

N the May number of The Forum is an article by Judge Barrett entitled "Miscarriages of Justice," which is generally a very sensible, temperate and timely utterance. The first cause of miscarriage noticed is the delay of the law. The writer recommends the consolidation of the three highest courts in the city of New York- the Supreme, Superior and Common Pleas "into one great tribunal with an appellate branch of five judges, sitting throughout the legal year." The special advantage of this would be to "release four of the present appellate judges for the duties of nisi prius and equity." There is every thing in favor of this recommendation. The present system is extremely unwise and without a single reason in its favor a remnant of old days and a memorial of the growth of the city. In respect to relief of the Court of Appeals, the judge disapproves a commission and the limiting of appeals, and prefers two chambers and a division of the calendar. To this we should prefer one chamber and an alternation of the judges so as to afford a constant session. The judge gives a good deal of attention to the inconvenience of the rule in the city to postpone a trial on account of the engagement of counsel in another court. It seems that at the judge's suggestion a proposal was once made to abrogate the rule, but it met with little favor. Much can be said against the rule, but it would seem that the injustice of abolishing it would overbalance the benefit. The judge comes to the rescue of the judges, which they hardly needed, but his analysis of the matter of reversals is worth reproducing. He says: "Some day, for instance, the court in banc hands down a list of one hundred decisions, in which we find forty reversals. At once the thoughtless critic cries out that the judges of first instance are wrong about as frequently as they are right. He fails to recognize the fact that these hundred cases represent, in all probability, five hundred actual trials, four hundred of which were conducted with such accuracy that the defeated party did not venture to appeal. The fair statement would be that there were forty reversals out of five hundred trials, or one in twelve. An analysis of these forty reversals would prove that the great majority were nisi prius appeals, where the judge below had little opportunity for reflection or deliberation. Reversals in equity cases, where opinions are written below, are infrequent, while the percentage in motions is infinitesimal. A judge at chambers has a monthly

calendar of some seven hundred motions. He hears and decides at least one-half of these, say, at a low estimate, three hundred. Subsequent scrutiny of the appellate calendars will bring to light possibly half a dozen of these motions, indicating that apVOL. 37 No. 20.

two out of the six, or one out of every one hundred
and fifty disposed of. The same rule applies to
the second appeal. Probably not more than one
case out of every three disposed of by the General
Term goes to the Court of Appeals, while the per-
centage of reversals, after the deliberation of three
judges, is naturally less than on the first appeal.
There will always be reversals in close or evenly
balanced cases until the human mind is trained to
act automatically, or until appellate courts are abol-
ished. Indeed, the percentage of reversals on the
occasional appeals by writ of error which the Fed-
eral system permits to the Supreme Court of the
United States from our Court of Appeals is quite as
large as the percentages below. In all human prob-
ability it would again be as large upon a further
appeal to a still higher tribunal, could such be
called into being." The judge continues: "The
most fruitful source of miscarriages of justice is
certainly weakness of judicial rule." By this he
seems to mean rule of the jury. In this he thinks
"there is a middle course between the heavy hand
of English authority and the criminal Utopia of
Illinois," where the trial judge is prohibited in
criminal cases not only from commenting on the
facts, but even from charging colloquially upon the
law. In regard to juries the writer says: "The
time is coming when the principle of unanimity
will have to be modified. The demand for such a
change will be greater as the juries improve and as
the difficulty in securing conscientious unanimity is
found to increase. The presiding justice of this
department lately made what seems to me a happy
suggestion on this head. He advocated a consti-
tutional amendment making a vote of nine jurors,
when approved by the court, equivalent to unanim-
ity. That would prevent disagreements in all but
the most evenly balanced cases, while the require-
ment of judicial approval would operate upon the
contending parties - the majority and the minority
in the jury room - as a wholesome check and bal-
ance." This recommendation is right, in our judg-
ment, except as to the approval of the court.
requirement would vest a dangerous authority in
the judges, and give them a power which they have
never had in this country. It would be better to
make a rule for all cases - say a verdict by nine in
all cases except felonies. The judge is rather mild
on the subject of judge-made law, but he says:
"miscarriages, resulting from uncertainty, are more
frequent in the casus omissus and doubtful con-
struction of a code than in judicial conclusions
drawn from the general principles of the common
law." What then? Abolish all statutes? This
will hardly work in an age when the current is
overwhelmingly toward turning the common law
into statutes, as in England and in some parts of
this country.

That

A long established law-book publishing enterprise is discontinued, and another takes its place.

tion of men engaged in buying horses, and the defendant, knowing this, allowed the plaintiff to exchange without communicating the defect, he was guilty of a fraudulent concealment, and must answer for it.' This case was followed, and the principal reasserted, in Barron v. Alexander, 27 Mo. 530. Hill v. Balls, 2 Hurl. & N. 299, seems to teach a different doctrine; but the cases in this court, supported as they are, must be taken as the established law of this State."

In Porter v. Day, Wisconsin Supreme Court, March 27, 1888, it was held that trotting or racing horses for a premium or award is not illegal either at common law or under the statutes of Wisconsin, and the winner of such a race may maintain an action to recover the amount of the premium. The court said: "That the mere trotting or racing of horses, when done in a proper manner and not in the public streets or highways, is not an illegal act at common law is well settled by the authorities, and it is equally well settled that betting on the result of a horse-race was not illegal at common law. See the following authorities: Da Costa v. Jones, Cowp. 729; Good v. Elliott, 3 T. R. 693; McAllester v. Haden, 2 Camp. 438; Blaxton v. Pye, 2 Wils. 309; Gibbons v. Gouveneur, 1 Denio, 170; Van Valkenburgh v. Torrey, 7 Cow. 252; Bunn v. Riker, 4 Johns. 426; Campbell v. Richardson, 10 id. 406. By the statutes of this State trotting or racing horses is not declared illegal. It is only 'betting and waging upon a horse or other race' which is declared to be illegal. See sections 4532, 4536, 4538, Rev. Stat. 1878. The only question on the first point made is whether competing for a reward, purse or stake offered by a third party, to one whose horse shall win in a trotting or running race, is illegal. It seems to us this question must be answered in the negative. As stated above, the mere racing or trotting of horses, when conducted in a proper

diseased, nor that any had died. Texas fever is a disease not easily detected except by those acquainted with it. Held, a fraudulent concealment by plaintiff of a latent defect, and that the doctrine of caveat emptor did not apply. The court said: "Caveat emptor is the general rule of the common law. If defects in the property sold are patent, and might be discovered by the exercise of ordinary attention, and the buyer has an opportunity to inspect the property, the law does not require the vendor to point out defects. But there are cases where it becomes the duty of the seller to point out and disclose latent defects. Parsons says the rule seems to be that a concealment or misrepresentation as to extrinsic facts which affect the market value of the things sold, is not fraudulent, while the same concealment of defects in the articles themselves would be fraudulent. 2 Pars. Cont. (6th ed.) 775. When an article is sold for a particular purpose, the suppression of a fact by the vendor, which fact makes the article unfit for the purposes for which it was sold, is a deceit; and as a general rule a material latent defect must be disclosed when the article is offered for sale, or the sale will be avoided. 1 Whart. Cont., § 248. The sale of animals which the seller knows, but the purchaser does not, have a contagious disease, should be regarded as a fraud when the fact of the disease is not disclosed. Cooley Torts, 481. Kerr says: 'Defects however which are latent, or circumstances materially affecting the subject-matter of a sale, of which the purchaser has no means, or at least has no equal means of knowledge, must, if known to the seller, be disclosed.' Kerr Fraud (edition by Bump), 101. In Cardwell v. McClel land, 3 Sneed, 150, the action was for fraud in the sale of an unsound horse. The court had instructed that if the buyer relies upon his own judgment and observations, and the seller makes no representations that are untrue, or says nothing, the buyer takes the property at his own risk. This instruction was held to be erroneous, the court say-place and in a proper manner, is not an illegal act. ing, if the seller knows of a latent defect in the property that could not be discovered by a man of ordinary observation, he is bound to disclose it. In Jeffrey v. Bigelow, 13 Wend. 518, the defendants, through their agent, sold a flock of sheep to the plaintiff. Soon after the sale a disease known as the 'scab' made its appearance among the sheep. It was in substance said, had the defendants made the sale in person, and known the sheep were diseased, it would have been their duty to have informed the purchaser, and the defendants were held liable for the deceit. In the case of McAdams v. Cates, 24 Mo. 223, the plaintiff made an exchange or swap for a filly, unsound from the loss of her teeth. The court, after a careful review of the authorities as they then stood, announced this conclusion: 'If the defect complained of in the present case was unknown to the plaintiff, and of such a character that he would not have made the exchange had he known of it, and was a latent defect such as would have ordinarily escaped the observa

Offering a reward or premium to the successful competitor in such a race or trot is therefore just as lawful as the offering a reward for competing in any other lawful business. If the mere offering a premium or reward to the competitors in a lawful transaction is a violation of the laws against gaming and betting, then all the premiums offered by our State and county agricultural societies would be a violation of that law. The fact that the parties competing for the reward or premium offered are required to pay something in the way of an entrance fee before they are allowed to compete does not make the transaction a betting or gaming transaction. All competitors for premiums in these societies are required to pay an entrance fee, and these entrance fees go to make up in part the premiums offered to the competitors. It is only when it is shown that the offering a reward or premium to the competitors is a mere subterfuge for betting and gaming on a horse-race or any uncertain event, that it comes under the law prohibiting betting and

the business will be considered as that of the husband and not of the wife, and the proceeds will not be protected for her as against his creditors; that the fruits of the wife's labor and skill, under such circumstances, are not her separate property within the terms or intention of the act for the better securing the property of married women. In Peterson v. Mulford, 36 N. J. Law, 481, it was decided that a husband may permit a wife to labor for herself and to appropriate to her own use the avails of her labor, and may give to her or allow her to appropriate to her own use the proceeds of her own labor when received by her; and that such permission or gift is good against the creditors of the husband if such proceeds have not actually been reduced into his possession. As opposed to the New Jersey decisions are the following, among numerous others: Coleman v. Burr, 93 N. Y. 17; S. C., 43 Am. Rep. 160; Hinman v. Parkis, 33 Conn. 188; Elliott v. Bently, 17 Wis. 591; Laing v. Cunningham, 17 Iowa, 513; McMurtry v. Webster, 48 Ill. 124; Johnson v. Johnson, 4 Har. (Del.) 171; Apple v. Ganong, 47 Miss. 189; Simmons v. Kincaid, 5 Sneed, 450; Pinkston v. McLemore, 31 Ala. 308; Merriwether v. Smith, 44 Ga. 541; Campbell v. Bowles, 30 Grat. 652. It is strange that our Legislature did not make some provision whereby a wife might, with the consent of her husband, be entitled to her earn

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for business.' If she is not sufficiently protected in her rights, and encouraged to put forth all her energies in times of trial for the protection, support and education of her children, when he who has vowed to do all these things fails through affliction or folly, then the Legislature must afford the remedy-the courts dare not do so; for by so doing they would burst through that barrier the respect to which gives them all their power and influence." Contra, Mason v. Dunbar, 43 Mich. 407; S. C., 38 Am. Rep. 201.

PARTNERSHIP-AUTHORITY OF PARTNER

-DISSOLUTION.

VIRGINIA SUPREME COURT OF APPEALS, FEB. 9, 1888.

WOODSON v. WOOD.

P. and W. dissolved partnership, and by the notice of disso-
lution either partner was authorized to use the firm name
in liquidation. P. afterward took from a debtor of the
firm, in settlement, a negotiable note, payable to "P. and
W. in liquidation," which he afterward transferred to
plaintiff by like indorsement, "P. & W. in liquidation."
Held, that an instruction to the jury that it devolved upon
defendant W., who denied his liability, to show that it
was not used for partnership purposes, otherwise they
must find for plaintiff, was error, as it improperly throws
the burden of proof on defendant.

RROR to Circuit Court, Prince Edward county;
Henry E. Blair, judge.

Richard Wood brought this action against C. R. Palmore, John R. Palmore, and B. B. Woodson, partners and members of the firm of Palmores & Woodson, as indorsers in the firm name, on a negotiable note. Judgment for plaintiff, from which defendant, Woodson, brings error.

J. P. Fitzgerald, J. O. Reynolds and Samuel T. Coleman, for plaintiff in error.

P. W. McKinney, for defendant in error.

LACY, J. This is a writ of error to a judgment of the Circuit Court of Prince Edward county, rendered at the March Term, 1885. The case is as follows: The mercantile firm of Palmores & Woodson, doing business at Ca Ira, in Cumberland county, on the 14th of October, 1871, was dissolved by mutual consent, and notices thereof published in The New Commonwealth, a newspaper published in Farmville, a town in the vicinity, as follows:

ings, produced by her extra exertions after she had E discharged all her ordinary household duties. Many good women toil early and late to support the sick or disabled husband and her children, oftentimes by her needle, by teaching music, or in school, and it seems very hard indeed, after she has in this way accumulated something with which she wishes to purchase a piano or sewing machine, necessary to assist her in performing the extraordinary duties thrust upon her of supporting the family when their natural supporter is either unable, or from sheer worthlessness refuses, to discharge the obligation to support his family, and when she has bought and paid for the piano or sewing machine from her own hard earnings, to have an old creditor of her husband snatch it from her, and thus it might be visit suffering on her and her helpless children. But hard as this case, and thousands like it are, no relief can be afforded except by the Legislature. It is not for the courts to correct such hardships in the common law. Courts, as it is, are often charged with legislating of producing 'judge-made law.' The learned counsel for the appellant wax eloquent in their brief when they say that the opinion of men in reference to the capacity of women to engage in and manage ordinary business affairs have undergone a great change within the last half century. They were prone to regard them very much as do the Turks, who believe that women have no souls, and restrict them to the seclusion of the harem, with its candies and coffee, cigarettes, intrigue and insipidity. The christian woman, at least in modern times, gets a different training and attains a higher standard, and with a little experience shows a good capacity

"NOTICE.-The business heretofore existing under the firm and style of Palmores & Woodson is this day dissolved by mutual consent. Either of the partners is authorized to use the name of the firm in liquida

"PALMORES & WOODSON. "CA IRA, Cumberland, October 11, 1871. "Dr. C. R. Palmore and John R. Palmore, Jr., will continue the business at Ca Ira under the firm and style of C. R. Palmore & Brother. "Octo19-2w."

Subsequently, on the 18th day of April, 1872, George William Palmore, a brother of C. R. and J. R. Palmore, made his note, payable to "Palmores & Woodson in liquidation," for $711.60 at ninety days, payable at the Commercial Savings Bank, at Farmville, Virginia, which note was indorsed by the Palmores, "Palmores & Woodson in liquidation," and negotiated. In April, 1876, the defendant in error, Richard Wood, instituted suit on this note, claiming to be the owner