The Albany Law Journal.

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ALBANY, JUNE 9, 1883.

CURRENT TOPICS.

E had fondly hoped that we might be allowed to pass a week without saying any thing about the “jury question," or as we should call it, the "jury-no-question; " but the literature of the topic accumulates. Messrs. Soule and Bugbee, of Boston, send us an exquisite reprint of a tract, entitled: "The Englishman's Right; a dialogue between a barrister-at-law and a juryman; plainly setting forth, I, the antiquity, II, the excellent designed use, III, the office, and just privileges, of juries, by the law of England. By Sir John Hawles Knight, Solicitor-general to the late King William, London, printed M, DCC, LXXI. Boston, reprinted by Edes and Gill, in Queenstreet, M, DCC, LXXII,” edited by Mr. Daniel Rollins. The Knight says, "Though judges are likely to be more able than jurymen, yet jurymen are likely to be more honest than judges," and "less danger will arise from the mistakes of jurymen than from the corruption of judges." We also have received "Trial by Jury," a reprint of an article prepared by Frederick W. Whitridge, for the "Cyclopædia of Political Science, Political Economy, and of the Political History of the United States, edited by John J. Lalor." This is an excellent history and estimate of the jury system. Speaking of the adverse criticisms the author says: "Most of these propositions, also, are characterized by a certain petulance, and obviously proceed not from a view of the whole system, but from the observation of its operation in a particular instance or in a particular locality." suggests however the amendment of the laws for drawing juries; the vesting of judges with a wider discrection in excusing jurors on the ground of personal inconvenience; the establishment of courts of arbitration in cities; allowing three-fourths or two-thirds of the jury to pronounce a verdict; allowing committed persons to be put on trial without indictment; and the abolition of coroners' juries. The author in conclusion gives the following views of two of the greatest living jurists: "It is however beyond question that the very great preponderance of the best opinion is decidedly in favor of the maintenance of the jury substantially as it now exists, and it is impossible to rise from a survey of the whole system without being impressed with the soundness of the conclusions of Mr. Justice Miller, of the United States Supreme Court, who, in an address before the New York State Bar Association in 1878, remarked, 'It is probably wise that no man shall be convicted of an infamous crime until twelve fairminded men are convinced of his guilt. I am also forced to admit however that even in civil cases my experience as a judge has been much more favorable to jury trials than it was as a practitioner. And I am bound to say that an intelligent and unprejudiced VOL. 27-No. 23.

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jury, when such can be obtained, who are instructed in the law with clearness and precision, are rarely mistaken in regard to facts which they are called upon to find.' Nor would it be possible to conclude such a survey without full concurrence in the admirable language of Lord Coleridge, who, in charging the grand jury at Exeter, said in words which are as applicable and as true in America as they were in England, 'I think it unwise, in a complicated state of society like ours, to look at things in themselves alone, and without considering what bearing they have upon the whole machinery of society. The interest of a great number of persons in the discharge of justice, the education to a certain extent which the jury system affords to a large number of persons in our community, is a matter that is far too much lost sight of; and I should think, for my own part, that if it were true that in particular cases a better result might have been arrived at by the single judgment of a judge, than by the united judgment of a judge and jury-if that were so, upon which I -I should say express no opinion for the moment that the advantage was ill purchased by the separation of the general mass of the people from any share in the administration of our courts of justice. I believe that much of the satisfaction which I hope and trust does exist with our administration of justice as a whole, and with all its faults for like every other human institution, it has its faults-may to a great extent be traced to the large infusion of what I may call the popular element, and the popular element in the administration of our system of justice is the jury.'"

The modern monotony of actions of damages against railway companies is broken up by a recent case in Maryland, where it was held that the owner of stock is liable in damages for an injury to a railway train resulting from a collision with the stock trespassing upon the railway. The court cite precedents from Connecticut, Missouri and Pennsylvania, but none of them are very recent. So it seems that circumstances do alter cases, and that if the bull succeeds in butting the locomotive off the bridge, the bull's owner must respond.

An interesting contribution to legal literature has been made by Mr. William L. Snyder, of New York, in "Great Opinions by Great Judges," a companion volume to "Great Speeches by Great Lawyers." It is a very happy project, although difficult of execution, to give in a single volume adequate examples of the great judicial opinions. The judges selected here are Coke, Holt, Hardwicke, Mansfield, Blackstone, Ellsworth, Redesdale, Parsons, Kent, Brackenridge, Marshall, Stowell, Brougham, Ruffin, Taney, Gibson, Campbell, Story, Nisbet, Shaw, Curtis, Black, Blackburn, Chase, Sharswood, Agnew, Cooley, Waite, Bleckley, Stephen. Perhaps none of them ought to have been omitted, but we should have included Walworth and Jessel, the latter certainly one of the greatest of judges. The limits of the volume have probably excluded not only these but

a number of other deserving names, such as Denio and Comstock of our own State, and others in other States which will readily occur to the reader; but Mr. Snyder promises another volume if this shall be well received. The selections of opinions are generally excellent; the topics are large and important, and the treatment is usually commensurate. The editor has given preliminary analyses of the opinions, and introductory notes of very considerable value and interest, partly biographical and critical, but mainly historical of the cases in question. He also furnishes a general introduction which is not among the least attractions of the book. The criticisms of the editor are uniformly discriminating and judicious, and his histories of the various cases show extensive research, and the power of clear statement. We suspect that this volume will afford a revelation to many of our profession, for it will make them acquainted with some judges of whom they have known only by reputation, and introduce them to a few of whom they have scarcely heard but who are none the less worth knowing.

The exorbitant length to which modern trials have frequently been drawn is illustrated in the discussion in the libel case of Belt v. Lawes, in London, on the motion for a new trial. The libel accused the plaintiff of putting forth works of sculpture made by his subordinates, as his own work. The evidence covered 1,500 pages, and the charge was voluminous. The court tried hard to get rid of hearing the evidence read, but in vain. At last accounts it looked as if this would occupy six or seven days. We hope it will conclude in time to let the Lord Chief Justice take his promised journey to our State. The court were also threatened with the busts produced on the trial.

"The Lord Chief Justice protested against being drawn into any thing like a judgment on works of art. During one portion of his life he had been a great deal among artists, and the result in his mind was that he was absolutely incapable of judging of works of art; and yet he knew perfectly well that if they were brought before him he should be judging them, which he would much rather not do." We are afraid his lordship will not appreciate our new Capitol when he sees it. The matter of the busts was at last settled by the court's insisting that the busts should not be brought in before the court sent for them. We would suggest to his lordship to bring the busts over here with him, and sell them to the Metropolitan Museum of Art, in New York, which is an eager customer for all that sort of thing, and would gladly add them to the famous Cyprian collection of mugs" so kindly furnished it by

Gen. Cesnola.

sary opinion is tediously spun out. But these are exceptions, and are confined to a very few States, and those the newest, where jurisprudence must be established by opinions in the absence of codifica tion or reference to old decisions of that locality. Our Federal Supreme Court occasionally errs in this respect, as when a learned justice, recently dissenting, remarked that he would "briefly state the grounds of his dissent," and then went on for seventeen of the official pages, equal, we suppose, to thirty or more of the report pages. But after all, the time of the community is not wasted so much by the judges as by the lawyers. Prolix arguments and voluminous records are a greater abuse. The judges, too, feel bound to notice every point raised by counsel, knowing that otherwise they are open to the charge of not having considered the argument. The greater sin of the lawyers in this regard is thus pointed out by the Daily Register: "It does not lie in the mouth of the Bar to criticise the verbosity of opinions, for they are greater offenders than the Bench in this respect. * * * As to the bar we must acknowledge, even speaking in the character of an attorney, that appeal books are often stuffed with more prolix, irrelevant and tedious matter than ever incumbered an opinion; and the judges who are compelled to wade through such records to prepare to write an opinion would be more or less than human did they not often catch the infection of diffuseness and echo a slight share of the redundancy, the tautology, the pleonasms, the repetitions, the circumlocution, the dilatation, the amplifications, the reiterations, the digressions, and all the ingenious long-windedness so natural to the bar. Our native resources of wordiness have been wonderfully enhanced by the easy and profitable reproduction of easy but unprofitable prolixity which the system of stenographic notes has introduced. Nor are we as counsel able to deny that the briefs commonly presented set the same bad example. To one clear, compressed, pithy, forcible argument, presented to the court, deserving the name of brief, are a score of long spun dilatations on the law, better described as elongations of law and fact, than as briefs." Did any one ever hear of an attorney complaining of too long an opinion in his particular case? - unless indeed it went against him. The tedious opinions are always in other men's cases, never in our own. Just so men are seldom doubtful of their own salvation, but are always more or less anxious about their neighbors.

allowed to testify against the objection of the defendant. By some infirmity of the vocal organs he was bereft of the power of speech. He could not explain any proposition, but only assent or dissent in answer to a direct question by a nod or shake of the head. And when asked who owned the goods, he would touch his person to indicate that he was the owner. The defendant claimed that as he was deprived of the substantial benefit of a crossexamination of plaintiff, he ought not to be admitted as a witness; and if admitted to testify, his inability to explain the transaction and its incidents in crossexamination should be weighed by the jury, as affecting the credit of the witness. The court declined so to instruct the jury. The witness was dumb; and at common law would not be probably admitted to testify. Modern education has done much to give this unfortunate class of persons the capacity to convey ideas,-in many cases with marvellous facility and exactness, by signs and symbols, and such persons are now proper and legal witnesses. The plaintiff was uneducated in the use of signs, and his capacity to convey his ideas very circumscribed and limited. But the tendency of modern times is to allow all persons that have knowledge of matters in litigation, and capacity to throw light upon them, whether interested or otherwise, Jews, Turks, and infidels, and allow the jury to consider their relation to the case, and condition, as affecting their credit. We think the plaintiff was a legal witness; but the court should have complied with defendant's request and called the attention of the jury to the plaintiff's peculiar disability, as affecting the weight of his testimony."

In Blaen Avon Coal Co. v. McCulloh, 59 Md. 403, the Maryland Court of Appeals reiterate their rule of damages in trespass against an innocent trespasser for mining and carrying away coal, namely, the value of the coal immediately upon severance, without any allowance for digging. The court said: "The general rule in actions of trespass for mining and carrying away coal, as laid down by this court in the case of Barton Coal Company v. Cox, 39 Md. 1; S. C., 17 Am. Rep. 525, and re-announced in Franklin Coal Company v. McMillan, 49 Md. 549; S. C., 33 Am. Rep. 280, is that the plaintiff is entitled, independently of circumstances of aggravation, to recover the value of the coal immediately upon its conversion into a chattel by severance from the freehold, without abatement of the cost of sever

ance.

In the former case the prayer of the plaintiff on this point, which was excepted to below and sustained on the appeal, applied the substance of the rule in these words: 'Such sum per ton as the jury may find the said coal so mined was worth when first severed from its native bed, and before it was put upon the mine cars, without deducting the expense of severing said coal from its native bed.' The rule was adopted by the Court of Appeals after a full consideration of the leading English cases on this subject. Martin v. Porter, 5 M. & W. 351; Morgan

v. Powell, 3 Ad. & El., N. S. 281; Wood v. Morewood, id. 440, and Wild v. Holt, 9 M. & W. 672. Among the cases that may be cited in which other courts of this country have reviewed these English authorities, and applied the same rule of compensation, are Bennett v Thompson, 13 Ired. 146; Moodey v. Whitney, 38 Me. 174; Maye v. Tappan, 23 Cal. 306; and McLean Co. Coal Co. v. Long, 81 Ill. 359, followed in McLean Co. Coal Co. v. Lennon, 91 id. 561; S. C., 33 Am. Rep. 64 (1879). The first two relate to trespass in cutting down timber trees, and state the measure of damages to be the value of the timber when it is first cut down and becomes a chattel. The last three cases grew out of trespasses in mining, and announce the same principle. In the Illinois cases, however, as in the case of Martin v. Porter and Morgan v. Powell, while the amount to be recovered is fixed by the worth of the coal when first dug, the mode of reaching this value is through the price of the coal after it arrived at the pit's mouth, and allowing a deduction for the cost of conveying it thither from the place where it was mined. This is said to be because it could have no value as a salable article without being taken from the pits, and that was the earliest moment at which the plaintiff could have re-possessed himself of the coal. But as Lord Denman, in Morgan v. Powell, says, 'Instances may easily be supposed where particular circumstances would vary this mode of calculating the damage.' As the fact to be arrived at is the worth of the coal just after its severance and before the removal is begun, it does not vary the rule of compensation whether its value at that time is ascertained by what it would sell for when brought to the surface, and then deducting the mere cost of bringing it there, or by estimating its worth before it was removed, where, as in the present case, it has been actually taken from the pit and sold. In the case that may be supposed, of coal being dug on land that has no opening of its own, and not removed, it would have but little if any value greater than when in its native bed, to the owner who had no means of removing it himself; and his recovery would, practically at least, be estimated by what damage was done to his coal-bed by such digging. But in the present case, the particular coal in question having been actually carried away and sold, the computation of its value when just separated and prior to removal, would be an easy process. It does not seem material in a case like this, whether the value of the coal at the mine's mouth be first ascertained and then an allowance be made for the bare expense incurred in its simple conveyance thither, or witnesses be asked to estimate directly its value just prior to its removal. The rule of compensation is practically observed in either case. The former method is not deemed inconsistent with the rule in the Illinois cases, as the court in the first named, whilst stating, 'plaintiff could recover as damages, the value of the coal at the mouth of the shaft, less the cost of conveying from the place where it was dug,' expressly adds: This is in effect saying he can recover the value of the coal when it first became

a chattel, by being severed from the mass and under their (defendants') control." The court is greatly in the minority in this holding, it having been rejected by the House of Lords and the Supreme Court of the United States, and the greater part of the State Courts, which allow for the digging as well as for transportation, etc. See Tilden v. Johnson, 52 Vt. 628; S. C., 36 Am. Rep. 769, and note, 770; Bolles Wooden Ware Co. v. United States, ante, 88.

An interesting question of confidential communications between attorney and client arose in Snow v. Gould, 74 Me. 540. A client wrote to his counsel to commence a suit for divorce at an early day, so that his wife could have time to think the matter over, and perhaps consent to a private separation, and thereby avoid as much public scandal as possible. He also orally instructed his counsel to withdraw the libel, if a jury trial could not be avoided. In the trial of a suit between the counsel and client to determine the amount of compensation which the counsel should receive for services in obtaining a divorce, the counsel was allowed to put the written and oral instructions in evidence, to show the nature of the engagement and the services performed. Held, that the same should not have been excluded as confidential communications. The court said: "All that a client says to his attorney is not to be rejected as privileged communication. The privilege does not extend to extraneous or impertinent communications. It does not reach cases where the matter is not of a private nature. Nor where the attorney was directed to plead the facts to which he is called to testify.' And privileged communications may lose their privileged character by the lapse of time. That which may be private at one time may not be private at an after-time. Directions to an attorney to make a certain contract are a confidential communication before, but not after, the contract is made. A solicitor cannot be compelled to disclose the contents of an answer in equity before it is filed, but be afterward. There are numerous examples of these principles in the books. Bouv. Dic. Con. Com.; 1 Greenl. Ev., § 244; Neal v. Patten, 47 Ga. 73; Nave v. Baird, 12 Ind. 318. See, as bearing significantly upon this case, Rochester City Bank v. Suydam, 5 How. Pr. 254. It will be seen that this was mostly of the nature of instructions, and instructions that have been executed. No fact in the case is exposed. No secret is let loose. There is nothing in all of it that at this day can be prejudicial to the plaintiff. Such a letter might come decorously from any petitioner for divorce. It would not have been an improper paper to exhibit before the court. The oral evidence should be regarded as a private matter before divorce, but has no importance after the divorce. In the case under consideration, it was competent for the defendant to show the nature of his engagement and of the services performed We do not see that the evidence exceeded these bounds." See note 36 Am. Rep. 631.

may

COMMON WORDS AND PHRASES.

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REQUIRE-MAY-The phrase, "if either party

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requires it, the judge may," etc., was construed by the Kentucky Court of Appeals, in Johnson v. Clem, April, 11, 1883. The court said: "The word, 'require' does not address itself to a discretion; it asserts a right; it demands. This is its ordinary use. Webster defines its meaning as follows: 1. To demand; to ask, as of right and by authority; 2. To claim; to render necessary, as a duty, or any thing indispensable, as the law of God requires strict obedience;' 3. To ask as a favor, to request; in this sense (he says) it is rarely used; 4. To call to account for (demand); 5. To make necessary, to need, to demand; 6. To avenge; to take satisfaction for.' He defines Request: To ask, to solicit, to express desire for.' These two words, derived from a common source, have come to be used in senses radically different one is the language of petition;

the other, of command. If the word implies that the party may demand, as his right, to have the separation, a very familiar rule of law converts the word may into must. May, in a statute, means must whenever third persons or the public have a right to have that done which is authorized by such permissive language. Potter's Dwarris, 220 note: 'If a party requires, the court may,' is as strong as 'upon request, the court shall.'”

OBVIOUS DANGER. Walking on a railway track unnecessarily is an exposure to obvious and unnecessary danger," with the meaning of an accident insurance policy. Tuttle v. Travelers' Ins. Co., Massachusetts Supreme Court.

LOTTERY.-In Taylor v. Swellem, the appellant was an auctioneer at Grimsby, Eng., who travelled about the country and in different towns set up a tent and carried on business as a "Cheap Jack." At Darling ton he sold 1 lb. packets of tea for 2s. 6d. each, and each packet contained a coupon which entitled the purchaser to receive some other articles, among these being a tea-caddy, a bread-board, five stones of flour, a butcher's knife, and so on. The magistrates con victed him of having held a lottery, he appealed, and the conviction was affirmed.

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SEAMAN. In Grace v. Cawthorne, a recent English case, it was held that an engineer on a steamship is seaman," within the Employers' Liability Act. INSOLVENCY. -- Mere want of property is not "in solvency." Bowerson's Appeal, Pennsylvania Supreme Court, October 2, 1882. It was there agreed that a widow having no separate property was debarred from being administratrix, by reason of " insolvency." The court said: "This is a misapprehension of the meaning of insolvency. It is not the mere absence of property liable to seizure on execution. It is the owing of debts in excess of the value of his tangible property. If he owes no debt he is not insolvent although he may have no such property. A young mechanic or laborer out of debt, just starting for himself, with no property but his knowledge, brawny arm, and energetic will, is not insolvent.