The Albany Law Journal.

ALBANY, APRIL 19, 1890.

CURRENT TOPICS.

IT T is customary for editors to charge their mistakes to the printer, but we cannot well charge the printer with the fault in saying, in our last paragraph on codification of the common law, that "No general attempt has ever been made and put in operation." An exception must have dropped out of our mind, for of course the successful examples of California, Georgia and Dakota are very well known to ourselves as well as to everybody else.

We generally find ourselves in agreement with Mr. Austin Abbott, but we cannot applaud his scheme for preventing one juror from effecting a disagreement. His plan is that "the presiding judge may, and if either party request it, must inquire how many of the jurors are agreed; and if all but one are agreed, he shall take their verdict and request the dissenting juror to state the ground of his dissent, which statement, if made, shall be entered on the record, with the verdict of the majority, and the jurors shall then be discharged. And if no ground sufficient to sustain a verdict the other way has thus been stated and recorded, the verdict of the majority shall, upon motion of either party, stand as the verdict in the cause, and the proceedings thereon shall be the same as if the jurors had been all agreed." As the Central Law Journal says, This practically puts it into the power of the trial judge to declare the verdict upon the recommendation of eleven jurors." We do not approve the idea of compelling any juror to disclose his views, and deem it a great deal better to adopt the rule of a verdict by nine or eight. We fully agree with the Central, that the one obstinate juror in the Cronin case was entitled to his opinion, and that the verdict was a just one, although the result of a compromise brought about by his dissent. We see no reason why, in that case or in any other, a juror should be compelled to disclose his views or subjected to abuse or criticism for his conscientious opinion. But all the schemes for jury trial are reasonable in comparison with that recent one which reduces the number necessary to pronounce a verdict in proportion to the number of hours consumed in the deliberation. That is to say, the longer they disagree, the fewer, down to eight, may pronounce the verdict. The only sensible and simple way is to enact that a fixed number, say nine or perhaps eight, may pronounce the verdict in any case.

But

we would restrict this to civil cases and to cases of misdemeanors, we think. Certainly we should require a unanimous verdict in capital cases and in those involving imprisonment for more than five years. VOL. 41 No. 16.

It is sad to learn of the death of Judge John H. Stewart, of New Jersey, at the age of forty-six. He was a graduate of Union College. He was thrice county judge. He was Chancery reporter from 1879, and the eighteen volumes bearing his name are the best example of recent reporting to be found in this country. His numerous, exhaustive and learned notes appended to the cases are monuments of his industry and valuable aids to the profession. His Digest of the New Jersey Reports was also well done. The New Jersey Law Journal says: "The news of his death was heard with sorrow by the bar throughout the State. He had many warm friends and was personally known very generally by the bar,

but in addition to that there was the universal feel

ing in the interest of the man who had for fourteen years, term after term, furnished us with the reports of the decisions in Equity, generously adding to them references, the results of his own industrious reading, and who had gathered up and put in order and made ready to our hands all the decisions of all the courts from the beginning."

The April number of the Green Bag has a capital portrait of Mr. A. C. Freeman, the well-known legal author and reporter, with a biographical sketch. Also a remarkably interesting compilation from the reports of "Animadversion of Counsel by the Court," by our acute old friend, Frank W. Hackett, of Washington. This number will also be of peculiar interest to Albanians and to graduates of the Albany Law School, on account of a historical sketch of that school, with portraits of Ira Harris, Amos Dean, Amasa J. Parker, Isaac Edwards, Horace E. Smith, George W. Kirchwey, William L. Learned, Matthew Hale, Nathaniel C. Moak and Hiram E. Sickels. Judge Learned contributes a paper on a "Curious Version of Justinian's Institutes, in Latin verse, published two centuries ago. The "Facetiæ " are excellent.

'An angel's wing would droop if long at rest,

And God himself, inactive, were no longer blest.' The infamy and degradation consist in its being involuntary. The distinction is the difference between liberty and slavery." This entire passage is an excerpt from the judge's opinion, and it is a fine passage, except that " progress in" is superfluous. But when Mr. Fuller, the reporter, puts it into the syllabus he anticipates the effect which the judge intended and fondly expected, and we don't know that he is not guilty of contempt of court. If Mr. Fuller, of the Green Bag, were to do a thing of this

sort as reporter, we should feel inclined to judge him leniently, for his is a catholic taste in poetry, and we might attribute his lapse to absent-mindedness. But no such excuse may be urged for Mr. Reporter Fuller, and he really must stop it, or there will be an uprising, headed by the editor of the New York Law Journal. Mr. Fuller's offense is mitigated by his omission of the poetry from the index.

Mr. Clark Bell sends us two groups of excellent portraits, one of the judges of the Supreme Court of Connecticut, comprising Chief Justice Andrews and Judges Torrance, Loomis, Carpenter and Seymour, and the other of the twelve legal members of the Saturday Night Club, both being memorials of a recent entertainment bestowed by said club upon said court. In the latter Mr. Clark Bell himself appears, with Messrs. Depew, Brice, Elkins, Roger Foster and others. Mr. Depew's likeness is of course a speaking one. The pictures, although small, are among the very best we have ever seen.

In 1869 Mrs. Myra Bradwell passed the examination to which applicants for admission to the bar of Illinois were then subjected, but the Supreme Court denied her adinission on the ground, that being a married woman, she would not be bound by her contracts with her clients. On a subsequent application by her the court adhered to its former decision and reasoning, but seemed by its opinion to extend the exclusion to unmarried women as well. The Chicago Legal News of April 5 says: "Although the Legislature in 1872, acting upon the suggestion of the Supreme Court of Illinois, in the opinion of the court delivered by Judge Lawrence, passed a statute providing for the admission of women upon the same terms as men, Mrs. Bradwell having once complied with all the rules and regulations of the court for the admission of attorneys, declined to make any further application or again ask for admission. We are pleased to say that last week, upon the original record, every member of the Supreme Court of Illinois cordially acquiesced in granting, on the court's own motion, a license as an attorney and counsellor at law to Mrs. Bradwell." This is a very graceful - we will not say compliment, but act of justice, and well deserved. "The world do move."

Judge Arnoux sends us a copy of his brief, filed by permission of the Second Division of the Court of Appeals, in Abendroth v. New York Elevated Ry. Co., now pending there, on the subject of the Dutch claim of sovereignty in New York, involved in a demand of damages by a lot-owner in the city of New York for the occupation of a street by the railway. The brief is as entertaining as a novel. We have read it with a great deal of pleasure and instruction. To prove that we have read it, we venture to call the author's attention to his misquotation of Shakespeare at page 20, where we should read baseless fabric of a vision " instead of

"dream." The judge is always adroit, and we never knew him more so than at page 43, where, in quoting from Mr. O'Conor, he says he "expressed himself guardedly " in declaring that "This colony was first settled by Holland, and was consequently governed de facto at the time of its settlement by the civil law," and adds, "The italics are his." Of course, for they are Latin. The judge concludes: "The city of New York has had the most romantic legal history of any place on earth. Its title was acquired by England by original discovery; the grant to Cabot reverted to the crown by his death; the grant to Raleigh escheated on judgment in attainder; the grant to Virginia was cancelled by quo warranto proceedings; the grant to New England was voluntarily surrendered; the title of the Dutch in 1673 was acquired by conquest in 1674; and the grant to James passed to the crown on his accession to the throne. There was one other possible transmission which did not take place, England never bought it. Hers by original right, hers it continued to be until 1673, and her laws governed it (except for a few months in 1673 and 1674) until it was wrested from her by successful revolution in 1776, when the United States became a nation."

IN

NOTES OF CASES.

N Simmons v. McConnell's Adm'r, Supreme Court of Appeals of Virginia, February 13, 1890, an action by a husband for the killing of his wife, it was held that evidence that after marriage there was a marked change for the better in the husband's habits, and in his pecuniary affairs, is admissible on the question of damages. The court said: "The jury could properly take into consideration all the circumstances which give character to the transaction. 2 Wait Act. & Def. 468, § 5. In Matthews v. Warner's Adm'r, 29 Gratt. 570, this court held that the jury was not tied down to mere pecuniary loss, but could give such damages as seemed to them to be fair and just. In Railroad Co. v. Wightman's Adm'r, 29 Gratt. 431, Judge Staples says: 'The statute is regarded by the courts as remedial in its character — as affording compensation for injuries unknown to the common law and is to be liberally construed to promote the objects the Legisla ture manifestly had in view. And therefore it is the courts look to the relationship and dependent condition of the parties, the capacity and ability of the deceased, mental and physical and indeed all the surrounding circumstances and situation of the family to enable the jury properly to estimate the loss sustained, and to fix the measure of the damages. In Railroad Co. v. Noell's Adm'r, 32 Gratt. 394, this court reaffirms and emphasizes the case of Matthews v. Warner's Adm'r, and holds that the loss of the care, attention and society' of the son, the 'solace and comfort' afforded to his mother, and her sorrow, suffering and mental anguish' occasioned by his death, might all properly be considered by the jury in estimating such damages as

seemed to them fair and just. If the character and conduct of the wife be such that her death will cause but little 'sorrow, suffering and mental anguish' to the husband, then the fair and just proportion of the damages to be awarded by the jury will be measured accordingly. If on the contrary, the wife be loving, tender and dutiful to her husband, thrifty, industrious, economical and prudent as the evidence in this case proved Mrs. McConnell to be then her price is far above rubies;' and the loss of such a wife, of such an helpmeet, of such influence, of such a blessed and potent ministry and companionship, is a proper element of damages to be considered by the jury in fixing the solatium to be awarded to the husband for tearing her from his heart and home. Even in those States where the jury is tied down to consider and allow only pecuniary damages, such evidence has been adjudged to be proper. In Tilley v. Railroad Co., 29 N. Y. 252, it was held in an action by a father, as administrator of his wife, who had been killed by the negligence of the defendant, that it was not error for the court to charge the jury, that in estimating the pecuniary injury, they might take into consideration the nurture, and the physical, moral and intellectual training, which the wife and mother gave to the children. See Shear. & R. Neg., note, p. 667. And if under the narrow and illiberal statute which confined the jury to the consideration of merely pecuniary damages, such evidence is inadmissible, surely under our statute, liberally construed, as this court has said it must be, the fact that the plaintiff, McConnell, was benefited morally and pecuniarily by his married condition, is admissible evidence to show a loss of damage to him by the negligent killing of the faithful, prayerful, industrious and thrifty wife of his bosom."

In St. Louis Type Foundry v. International LiveStock Journal Printing and Publishing Company, Supreme Court of Texas, October 29, 1889, it was held that a statute reserving to persons not constituents of a family, as exempt from attachment, all tools, apparatus and books belonging to any trade or profession, applies to property owned and held in partnership, as well as to property owned in severalty. The court said: "We are not aware of any case in our State in which the question has been decided, and in the other States the decisions are conflicting. * * * The leading cases which announce the doctrine that the statute does not include partnership property are Pond v. Kimball, 101 Mass. 105, and Guptil v. McFee, 9 Kans. 30. These cases appear to be based upon statutes exempting tools, implements, etc., not to exceed in value a certain sum. In the Massachusetts case, tools, etc., are not to exceed $100 in value; and in the Kansas case, 'stock in trade, not exceeding $400 in value.' One of the prominent reasons assigned in the opinions in these cases was that the statute limiting the exemption as to tools, etc., to $100, and that limiting the stock in trade to $400, did not apply to property owned by partners, because of the difficulty of determining, in case of numerous partners, whether each should

เ

have the right to claim as exempt $100 worth of materials or $400 stock in trade, or was the whole firm to be considered as one debtor only? No such reason would apply with us, as all the tools apparatus and books belonging to any trade or profession,' are exempt without reference to their number or value. The cases holding the contrary, and we believe the better doctrine, proceed upon the theory that the law should be liberally construed. It is almost unnecessary to say that that mode of construction has always obtained with respect to exemption laws in our State. Where a person owns property exempt under the statute, as for example, the property involved in this proceeding, he ought not to forfeit this valuable right, because he forms a partnership, and unites the property with that of another person equally exempt. If in this case either Whitmore or Kibbee had owned individually this property it would have been exempt from execution, attachment, etc. The fact, that while so owing it a partnership is formed, would furnish no good reason for so changing the law as to make that property subject to attachment which prior to the partnership was exempt in the hands of the individual. If each owned one-half of the property it would be exempt, and because both own the whole by reason of the formation of the partnership, affords no reason why the same property should not continue to be exempt. Stewart v. Brown, 37 N. Y. 350, and cases cited in section 221, Freeman on Executions. One of the principal purposes of the statute is to protect whatever interest or title would be subject to seizure under execution or attachment. The partnership interest is liable to the levy of such writs, and is therefore entitled to the protection which the statute affords." See note, 27 Am. Rep. 246.

In Hill v. Kimball, Supreme Court of Texas, February 14, 1890, it was held that a petition which alleges that the tenant's wife was enceinte, and that knowing that fact, and that excitement was likely to injure a woman in that condition, the landlord violently assaulted two negroes on the tenant's premises, and in his wife's presence, whereby she sustained a fright which eventually produced a miscarriage, and otherwise injured her health, states a cause of action. The court said: "We have found no exact precedent for such an action, but that is no sufficient reason why an action should not be sustained. That a physical personal injury may be produced through a strong emotion of the mind there can be no doubt. The fact that it is more difficult to produce such an injury through the operation of the mind than by direct physical means affords no sufficient ground for refusing compensation, in an action at law, when the injury is intentionally or negligently inflicted. It may be more difficult to prove the connection between the alleged cause and the injury, but if it be proved, and the injury be the proximate result of the cause, we cannot say that a recovery should not be had. Probably an action will not lie when there is no injury except the suffering of the fright itself, but such is not the present case, Here, according to the alle

gations in the petition, the defendant has produced a bodily injury by means of that emotion, and it is for that injury that the recovery is sought. If in his assault upon the negroes he had discharged a missile at one of them, and it had missed its aim, and had struck Mrs. Hill, and produced a miscarriage, there is no doubt that he would be liable to an action; and it seems to us he should be equally held liable for the same result, produced by the same conduct, except that in the one case the means of the injury is a material substance, and in the other a mental emotion. Of course since there is no intent to injure Mrs. Hill alleged, it will be a question for the jury to determine whether his conduct, so far as she was concerned, was negligent or not; that is to say, whether under the circumstances, and with the lights before him, a reasonably prudent man would have anticipated the danger to her or not.

We have been cited by counsel for appellee to the case of Renner v. Canfield, 36 Minn. 90. In that case the defendant shot a dog near the residence of the plaintiff, and thereby frightened his wife, and caused a miscarriage. The court say, in effect, that the charge to the jury was erroneous, because the jury could, and would probably infer from it that the defendant was liable in the action if the killing of the dog was unlawful; and for this error the judgment was reversed. In the opinion the court say: If the acts of defendant amounted to any tort which, in any possible view of the case, could be held to be the proximate cause of the injuries complained of, the gist of it must be negligence in shooting in such proximity to a human residence as might naturally and reasonably be anticipated to be liable to injure the inmates by fright or otherwise. We are by no means prepared to say that upon the evidence a verdict for plaintiff could be sustained even upon that ground. But it is enough here to say that the case was not submitted to the jury upon any such theory.' It is evident that the court did not decide that no action would lie even under the peculiar facts of that case. Besides it appeared in that case that the defendant was not aware of the proximity of the plaintiff's wife at the time he discharged the gun. We think the petition in this case discloses a cause of action." See Com. v. Taylor, 5 Binn. 277; Phillips v. Dickerson, 85 Ill. 11; S. C., 28 Am. Rep. 607; Browne's Humorous Phases of the Law, "Nuisance."

In Streissguth v. National German-American Bank, Supreme Court of Minnesota, February 24, 1890, it was held that a bank with which a customer has left for collection his draft upon a party residing at a distant point is liable for the failure and default of a correspondent to whom it forwarded the draft for collection. The court said: "It must be admitted that there is apparently a great conflict of precedents upon this precise question, and it is possible, that as contended by the appellant, the weight of the authorities, numerically speaking, is with the proposition that when, under such circumstances, a bank has exercised ordinary care and prudence in

the selection of a correspondent to whom it transmits a draft, bill or note for collection, and remittance of the proceeds, its liability terminates, because, as it is necessary and customary, and in the usual course of business, for banks to collect through correspondents, of which necessity, custom and course of business the owners and holders of paper have full notice and knowledge, it must be held that they have assented to and authorized the work of collection through others. The question involves a rule of general application and of commercial law. As it concerns trade between different and distant places, and in the absence of a statute or contract or usage which has obtained the force of law, is not to be determined according to the views or interests of any particular persons, classes or localities, it should be decided according to those principles which govern and best promote the general welfare of the entire commercial community, and in accordance with the general principles which apply to all who contract to perform a service. When the appellant received the draft for collection it entered into a contract, by implication, to perform such duties as were necessary for the protection of its customer. It agreed to collect the paper itself, not to procure the services of another to make the collection. The plaintiffs had no voice in the selection of appellant's agent or correspondent, and it is difficult to see why banks and banking-houses should be excepted from the operation of a cardinal and well-established principle of law that every person is liable for the acts of such agents as may be appointed or designated by him to transact such business as he has undertaken to perform for others. The appellant, having undertaken the collection of the paper, stands in the attitude of an independent contractor who, having unrestrained liberty so to do, has designated a subagent, and is therefore answerable for his neglect, failure or default. It is true that in the adjudicated cases cited by the appellant strong arguments are found, and cogent reasons stated, in support of its position; but we are of the opinion that the conclusion we have reached is the sounder one upon principle. It is also sustained by the Supreme Court of the United States, and the courts of last resort of several of the States, including that of the great commercial center, New York. It is also the rule in England. Exchange Nat. Bank v. Third Nat. Bank, 112 U. S. 276; Allen v. Bank, 22 Wend. 215; Ayrault v. Bank, 47 N. Y. 570; Simpson v. Waldby, 63 Mich. 439; Titus v. Bank, 35 N. J. Law, 588; Reeves v. Bank, 8 Ohio St. 465; Tyson v. Bank, 6 Blackf. 225; Express Co. v. Haire, 21 Ind. 4; Mackersy v. Ramsays, 9 Clark & F. 818; Van Wart v. Woolley, 3 Barn. & See notes, 35 Am. Rep. 695; 41 id. 114.

C. 439."