THE ALBANY LAW JOURNAL: A WEEKLY RECORD OF THE LAW AND THE LAWYERS. The Albany Law Journal. ALBANY, JANUARY 3, 1885. CURRENT TOPICS. E recently called attention to the very great importance of the Panama canal question, including the Clayton-Bulwer treaty and Professor Lawrence's presentation of the British arguments. The matter was hardly in print before the news of the Nicaraguan treaty reached us. The news however confirms all we then said to the effect that public discussion would soon be directed to this subject, and to the rules of international law, claimed to be relevant to the American canals. The London Times and the Pall Mall Gazette have already protested, as we learn by cable to the New York Times, against any violation of the Clayton-Bulwer treaty, while the St. James Gazette says that the powers whose representatives are now assembled at Berlin are directly interested in the Nicaraguan treaty. It may be that this treaty is only a counterblast of the administration against Mr. Blaine's pretensions to the exclusive advocacy of our national policy, but if it is what we presume it is, a genuine assertion of the paramount rights of the United States in continental questions, no good American will admit, without considerable reflection, the claims of the British to a joint control of the contemplated canal. There never was a time in our history when a knowledge of international law was so important to our leading men as now, and there never was a nation in history to which international law afforded so many important illustrations as to this country, with its peculiar inter-State relations. The time is not far distant when our States will have to meet in convention in order to adopt some common plan of codification, or our commercial intercourse will be as much fettered as were the States of Prussia in the days of Frederick the Great, our central government being powerless, under the Federal Constitution, to meddle with private law. Had New York State adopted the Civil Code, Japan and China would both have adopted it instead of the French Codes which now VOL. 31 No. 1. Europeanize instead of Americanize them. Truly the code question is a far-reaching and all-important one to this country, and to this State as the foremost State in population and material resources. Judge Cooley's paper in the December number of the North American Review seems to invite discussion and notice, for it is from the pen of one of our most distinguished juridical writers and it touches a grave problem in the science of politics. When Judge Cooley departs from the arena of municipal law, in the constitutional branch of which he is certainly an acknowledged master, and discusses the relations of labor and capital to the law, he no longer speaks ex cathedra, and all of us are at liberty to differ from either his reasonings or his conclusions. It is a most noticeable fact that in this essay Judge Cooley discusses certain great elements of the law without precise regard to the value of several technical terms, the import of which is settled beyond controversy. This disregard is however rather the fault of his school than that of this writer: All those who consider themselves disciples of the Blackstonian school of common law persist in adopting Blackstone's errors, and in confusing public opinion, popular standards and other ethical views with custom as a source of law. That judiciarymade law should be dictated by public opinion everyone will concede to be a dangerous sentiment for a popular government. That well marked custom should, on the other hand, be regularly converted into law, at certain epochs, is a recognized phase of the development of any body of law. But that popular opinion should be mistaken for custom is a confusion of the two divergent conceptions and is fraught with great peril to the liberty of a republic. Yet many common lawyers seem to resent being forced to rigorous speech. Like the enemies of Socrates they prefer the loose flowing language of indefinite associations to precise valuations of words. The importance of precise reference to custom as a source of law is apparent in the North American article to which we now allude, and for this reason it deserves a more emphatic refutation than we are able to give it in so short a space. Judge Cooley thinks that the common law is still in formative process, and that popular legislation, as he calis public opinion, is all-powerful in determining the decisions of the courts on moral questions of public interest. He cites the Chicago Warehouse cases and several others as evidence, and frankly avows that the courts of judicature have even reversed their former judgments at the instance of public dictation. This seems to us a very mischievous doctrine, calculated to destroy the entire authority of our courts. Yet it is very prevalent, and this is one reason why we prefer to relegate law-making to the legislature proper. Let the courts adhere to their true functions, the application and interpretation of law. Let the legislature, on the other hand, enter upon an era of better legislation, consulting more frequently those who are versed in the science of legislation. Judge Cooley's article shows plainly the necessity of a new departure unless our courts are to usurp the functions of the legislature and deal out to us popular sentiments, thinly disguised, instead of the law that fixed and immutable law which alone should proceed from courts of justice. It is now become a question whether we shali have law from the legislature or law from the courts made as Judge Cooley says it is. In a recent discussion in the New York MedicoLegal Society, on Madness and Crime, Mr. Austin Abbott, speaking of "emotional insanity," very wisely said: "I believe that those qualities of selfrestraint which mark the highest notch of civilized character have come largely through the existence and administration of the penal sanctions of law, against men who but for those penal sanctions would have had much less capacity of distinguishing between right and wrong, and no power to restrain the impulses of nature. If this be so, the way to increase immensely the mischiefs of uncontrollable impulse in the community is to put an end to punishment for acts committed under uncontrollable impulse, and the way to increase those faculties by which we control impulse is to maintain the punishment which the law inflicts for criminal acts, irrespective of the attempt to prove such impulses as a justification or excuse. It may well be that the time will come when penal justice will be put on a better footing, but the refusal of the law to recognize such justification or excuse is made in view of the present state of public opinion, in view of the present imperfect adaptation of tribunals of justice to the investigation of uncontrollable impulse, and we ought to add, in view of the present condition of society. I do not think that medical men appreciate generally the power which the existence of the law and its penal sanctions exercises on the lawless in aiding the control of what would otherwise be uncontrollable impulse. Those who are familiar with the administration of criminal law, those who are charged with its administration, those who have the responsibility of maintaining public peace and order, will not, I think, deem it an exaggerated statement to say that in all probability if those salient assistants to self-control, which came from the existence of the penal law, were taken away, New York would be a ruin in a week, from what would, without those sanctions, be called the uncontrollable impulses of reckless, lawless and criminal classes." account. In the case of Graff v. Kennedy, Judge Brown, at special term of the Supreme Court of this State, has recently held that husband and wife may form a valid copartnership with reference to the wife's separate estate. It is said that this question has never been passed upon by a general term or the Court of Appeals of this State, but that Judge Westbrook at special term has held the contrary. Judge Brown says: "I am unable to see the distinction between a contract which a married woman enters into with her husband, under which he manages her separate estate or business as her agent, and a contract of partnership, which is nothing more than a mutual agency by each in reference to the common business of both." 'By this section the Legislature intended to confer upon married women the power to do three things: first, to hargain, sell, assign and transfer their separate personal property; second, to carry on any trade or business; third, to labor on their sole and separate The first two a married woman had no power to do under the common law; the last she could do, but the wages for her labor belonged to her husband. To confer upon her the power to carry on a trade or business was to give her a right, that prior to the passage of this act, she had not enjoyed. To declare that she might labor and perform services would have conferred no new right upon her, but to declare the wages of her labor to be free from the control of her husband was to confer upon her a new and substantial right, and to accomplish this the Legislature declared that she might perform labor and services upon her sole and separate account.'" In Bitter v. Rathman, 61 N. Y. 512, the commission of appeals held that a married woman could contract a valid partnership with third persons, although she held her interest in the firm upon a secret trust for her husband, and that she could maintain an action for dissolution to protect her apparent rights, and that she was liable as a partner to the creditors of the ostensible firm. The court say: "If the wife has the capacity to contract with the husband with reference to her separate estate, there is no limit put upon the power in the statute. The courts of this State have decided that she has such power, and I am unable to see by what principle it may be upheld by one class of contracts and denied as to others." And in Scott v. Conway, 58 N. Y. 619, it was held that a married woman, apparently carrying on a separate business, cannot interpose as a defense against creditors that she had a dormant partner, namely, her husband. This was by a divided court. By chapter 381, Laws of 1884, it was provided that a married woman may contract as if unmarried, but "this act shall not affect nor apply to any contract that shall be made between husband and wife." Probably the prohibition extends only to property not belonging to the wife. But the matter is vague. IN NOTES OF CASES. the defendant has got at least some letters which ought to have been treated as the letters of the plaintiffs, and to have been sent on to them. Instead of doing that the defendant has opened them, and not until some time afterward has he given them to the plaintiffs, or offered to them the money intended for them which was in the letters. There is also a case where money was paid to the defendant for the hire of a sewing machine of the plaintiffs, and the machine was returned, and he did not for some considerable time send the money or the sewing machine to the plaintiffs. The defendant having so acted, the case is in my opinion one in which it is the duty of the court to interfere, and to see that he does not, by reason of his having been employed in the plaintiffs' house of business, obtain letters which are intended for them, and really belong to them, but which have come, under his directions given to the postmaster, to his own private address." Bowen, L. J., said: "There is a wrong done which is actionable if it has been committed, and which naturally would, if repeated or persisted in, affect injuriously the property or trade of the plaintiff company. It has been held since the Judicature Act that a plaintiff is entitled to the protection of the court against a wrong of that sort which is contained in a written document; that is to say, the court will restrain the publication of a libel which is immediately calculated to injure the property and trade of the person against whom it is directed. Then can there be any distinction in principle between a slander which is contained in a written document and a slander which is not? In the cases of Thorley's Cattle Food Company v. Massam, and Thomas v. Williams, the court interfered to restrain the slander which was placed upon paper, so that clearly in the case of such written slander as is naturally attended with injury to property and business, the court has jurisdiction to interfere, and it appears to me that the same principle must apply to spoken slander. Then I come to the next question, about the notice to the postmaster. The defendant changes his address from the plaintiff company's office to a private residence, and sends to the postmaster a notice that all letters addressed to him at the plaintiffs' office are to follow him to his own residence. Now, a man has a right, when he changes his address, to tell the postmaster to send his own letters after him; but it is obvious that he has no right to tell the postmaster to send somebody else's letters after him. The question here is whether the defendant has not done some thing more than tell the postmaster to send his own letters after him his letters relating to his own private business; and I think he has, because letters addressed to an agent at the office of his principal are frequently addressed to him as a servant, though there may of course be among them private letters which belong in law to him. There may be signs which would show whether the letters belong to the servant or to his master - for instance, words written on the envelope. But the servant has no right, merely because letters are addressed to him, to say that they are his own if there is nothing on the N Hermann Loog v. Bean, 51 L. T. Rep. (N. S.) 442, where a defendant, formerly in the employ of the plaintiffs, had been making statements to the plaintiffs' customers injurious to their business, and trying to interfere with their customers making payments to them, and had notified the post-office to send any letters addressed to him there to another address, held, that he should be enjoined from such statements and interference, and to withdraw such notice, the plaintiffs undertaking not to open any letter adressed to the defendant except at certain fixed times, with liberty to the defendant to be present. Cotton, L. J., said: "The court has of late granted injunction in cases of libel, and why should it not also do so in cases of slander? It is clear that slanderous statements, such as were made to old customers in this case, must have a tendency materially to injure the plaintiffs' business; they are slanders therefore spoken against their trade. It is not necessary therefore in my opinion to show that loss has actually been incurred in consequence of them. If they are calculated to do injury to the trade, the plaintiffs may clearly come to the court. There is no doubt more difficulty in granting an injunction as regards spoken words than as regards written statements, because it is difficult to ascer tain exactly what is said. But when the defendant is proved to have made certain definite statements such as are mentioned in the order, in my opinion an injunction is properly granted to prevent his repeating them. Then the second part of the injunction, which is in part mandatory, restrains the defendant from giving instructions to the postmaster as to his letters, and orders him to withdraw a notice that he has already given to the postmaster. Objection is taken to that on the ground that it is a mandatory injunction, and that the defendant had a right to give directions to the postmaster to send his letters to bis actual address. I need hardly say any thing about the mandatory injunction being granted. This court, when it sees that a wrong is committed, has a right at once to put an end to it, and has no hesitation in doing so by a mandatory injunction if it is necessary for the purpose. Then as to the merits, undoubtedly a man when he changes his address has a right to give directions to a postmaster to send on to him his letters, but that assumes that they are his letters; and what we find here, is that the defendant was formerly residing at the plaintiffs' office as a servant of the plaintiffs, and a very large proportion of the letters addressed to him were undoubtedly letters relating to the business of the company, though of course there might be some letters which would be marked 'private.' By means of his notice to the postmaster envelopes to show that they are his own, and not his employer's letters. Therefore his notice to the postmaster is clearly too large, because all the letters which are addressed to him at his place of business do not belong to him." Fry, L. J., said: “1 conceive that the court has plainly jurisdiction to grant injunctions against slander, as well as against libel. At the same time I am not unconscious of the inconvenience which would result from trying actions for slander on motions to commit. I think that requires careful consideration in any case in which the court is asked to grant an injunction against slander. Then with regard to the notice to the postmaster. It seeme to me, for the reasons given by Bowen, L. J., that the notice was too large, and I come to that conclusion from the very simple fact that it has induced the postmaster to send to the defendant letters which belong to the plaintiffs. Then the question as to who is to open letters is undoubtedly one of considerable difficulty, for this reason, that the court is averse from interfering with a legal right except so far as is absolutely necessary, and in the present case the court would not desire to interfere with the legal right in the letters. But that right cannot be ascertained until they are opened; they must be opened by somebody, and therefore the court has to determine who is to open them. There are many reasons which induce me to think that the plaintiffs are the proper persons to open them. In the first place, the letters are addressed to their place of business; and in the next place, there appears to be a presumption prima facie that most of the letters addressed to the defendant coming there are letters which are addressed to the defendant on their business; and lastly, the defendant has certainly behaved, with regard to some of the letters, and with regard to his other relations to his former employers, in a manner which is not creditable to him, and which, as between him and the plaintiffs, renders it more expedient that the opening should be done by them in his presence than by him in their presence." On the latter point, see Myers v. Kalamazoo Buggy Co., 30 Alb. Law JOUR. ing a good presentiment of the necessary tableaux. A good actress, moved by a proper spirit toward her manager, ought to have been ready and willing to do all in her power to contribute to the promotion of that success upon which both so much depend. So far the case has been considered upon the law applicable to contracts of hiring, without regard to the terms of the special contract in this case, which provided, that if upon fair trial, the defendant felt satisfied that the plaintiff was incompetent to perform the duties for which the defendant had contracted, in good faith, the latter might annul the contract on two weeks' notice. This clause made the defendant the sole judge of the competency of the plaintiff. In the case of Nelson v. Von Bonnhorst, 29 Penn. St. 352, it was held that a contract 'to pay whenever in my opinion my circumstances will enable me to do so,' imposes no legal obligation which can be enforced by action, although the court and jury should find that the party was of sufficient ability to pay the debt, as by the terms of the contract the debtor is made the sole judge of that fact, Under the contract in this case, the only question for the jury to determine was the good faith of the defendant, and therefore the jury were instructed that if the defendant was satisfied in good faith that the plaintiff was incompetent, the defendant had a right to dismiss the plaintiff, and in that case the verdict should be for the defendant, although the jury were of opinion that the plaintiff was competent to perform her parts. The defendant was not liable for error in her judgment, if in good faith she exercised her judgment and acted upon it. Having the power to give judgment, she is not liable for error if she did not act maliciously, although she may have exercised her power arbitrarily. Downing v. McFadden, 18 Penn. St. 334. No one is liable for a mistake in the exercise of a discretion conferred upon him. Moore v. School Directors of Clearfield, 59 Penn. St. 232. The defendant testified that she was satisfied that the plaintiff was incompetent, and discharged her for that season, as well as others; and she very properly introduced evidence showing that she has a basis for her judgment as evidence of her good faith, and for the purpose of showing that she did not set up her judgment as an afterthought and subterfuge to avoid the consequences of her action, and she made so strong a presentment that it is not free from doubt whether the jury ought not to have been directed to render a verdict for the defendant." As to contracts to satisfaction, see Gibson v. Cranage, 39 Mich. 49; S. C., 33 Am. Rep. 351, and note, 353; Wood Reaping and Mowing Machine Co., 50 Mich, 565; In Cassidy v. Janauschek, Pennsylvania Common Pleas, December 13, 1884, it was held that a contract of hiring which provides that an actress may be discharged if the manager is satisfied in good faith that the actress is incompetent, makes the manager the sole judge of the competency of the actress, and if the manager discharged the actress for that reason, he is not liable for error of judgment exercised in good faith, although the jury. C., 45 Am. Rep. 57; Werner v. Bergman, 28 should believe that the actress was competent. The particular reason for discharge was the plaintiff's refusal to go on the stage in disguise as a member of the mob in the tragedy of Marie Antoinette (she probably objected to wearing a mob cap.) The court said: "In a business which depends so much apon the effect produced upon the audience, as that NE of the most important branches of the jurisof play acting, it seems reasonable that all the prudence of this country is that which relates players should be subject to a call to assist in mak- to inter-State extradition, The authors of the Kans. 60; S. C., 42 Am. Rep. 152, note, 153. ONE INTER-STATE EXTRADITION. I. |