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The Albany Law Journal.

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 E recently called attention to the very great and notice, for it is from the pen of one of our most

importance of the Panama canal question, in- distinguished juridical writers and it touches a cluding the Clayton-Bulwer treaty and Professor grave problem in the science of politics. When Lawrence's presentation of the British arguments. Judge Cooley departs from the arena of municipal The matter was hardly in print before the news of law, in the constitutional branch of which he is the Nicaraguan treaty reached us. The news how- certainly an acknowledged master, and discusses ever confirms all we then said to the effect that pub- the relations of labor and capital to the law, he no lic discussion would soon be directed to this subject, longer speaks ex cathedra, and all of us are at liberty and to the rules of international law, claimed to be to differ from either his reasonings or his conclurelevant to the American canals. The London Times sions. It is a most noticeable fact that in this essay and the Pall Mall Gazette have already protested, / Judge Cooley discusses certain great elements of the as we learn by cable to the New York Times, against law without precise regard to the value of several any violation of the Clayton-Bulwer treaty, while technical terms, the import of which is settled bethe St. James Gazette says that the powers whose yond controversy. This disregard is however rather representatives are now assembled at Berlin are di- the fault of his school than that of this writer: All rectly interested in the Nicaraguan treaty. It may those who consider themselves disciples of the be that this treaty is only a counterblast of the ad- Blackstonian school of common law persist in adoptministration against Mr. Blaine's pretensions to the ing Blackstone's errors, and in confusing public exclusive advocacy of our national policy, but if it opinion, popular standards and other ethical views is what we presume it is, a genuine assertion of the with custom as a source of law. That judiciaryparamount rights of the United States in contin- made law should be dictated by public opinion ental questions, no good American will admit, with- everyone will concede to be a dangerous sentiment out considerable reflection, the claims of the British for a popular government. That well marked custo a joint control of the contemplated canal. There tom should, on the other hand, be regularly connever was a time in our history when a knowledge verted into law, at certain epochs, is a recognized of international law was so important to our leading phase of the development of any body of law. But men as now, and there never was a nation in history that popular opinion should be mistaken for custom to which international law afforded so many impor- is a confusion of the two divergent conceptions and tant illustrations as to this country, with its peculiaris fraught with great peril to the liberty of a repubinter-State relations. The time is not far distant lic. Yet many common lawyers seem to resent when our States will have to meet in convention in being forced to rigorous speech. Like the enemies order to adopt some common plan of codification, of Socrates they prefer the loose flowing language or our commercial intercourse will be as much of indefinite associations to precise valuations of lettered as were the States of Prussia in the days of words. The importance of precise reference to cusFrederick the Great, our central government being tom as a source of law is apparent in the North powerless, under the Federal Constitution, to med- American article to which we now allude, and for dle with private law. Had New York State adopted this reason it deserves a more emphatic refutation the Civil Code, Japan and China would both have than we are able to give it in so short a space. adopted it instead of the French Codes which now Judge Cooley thinks that the common law is still in

Vol. 31 - No. 1.

formative process, and that popular legislation, as probability if those salient assistants to self-control, he calls public opinion, is all-powerful in determin- which came from the existence of the penal law, ing the decisions of the courts on moral questions of were taken away, New York would be a ruin in a public interest. He cites the Chicago Warehouse week, from what would, without those sanctions, cases and several others as evidence, and frankly be called the uncontrollable impulses of reckless, avows that the courts of judicature have even re- lawless and criminal classes.” versed their former judgments at the instance of public dictation. This seems to us a very mischievous

In the case of Graff v. Kennedy, Judge Brown, doctrine, calculated to destroy the entire authority

at special term of the Supreme Court of this State, of our courts. Yet it is very prevalent, and this is

has recently held that husband and wife may form one reason why we prefer to relegate law-making to

a valid copartnership with reference to the wife's the legislature proper. Let the courts adhere to

separate estate. It is said that this question has their true functions, the application and interpreta

never been passed upon by a general term or the tion of law. Let the legislature, on the other hand,

Court of Appeals of this State, but that Judge enter upon an era of better legislation, consulting | Westbrook at special term has held the contrary. more frequently those who are versed in the science Judge Brown says: “I am unable to see the disof legislation. Judge Cooley's article shows plainly tinction between a contract which a married woman the necessity of a new departure unless our courts

enters into with her husband, under which he manare to usurp the functions of the legislature and deal out to us popular sentiments, thinly disguised, and a contract of partnership, which is nothing

ages her separate estate or business as her agent, instead of the law – that fixed and immutable law which alone should proceed from courts of justice.

more than a mutual agency by each in reference to

the common business of both.” "By this section the It is now become a question whether we shalı have

Legislature intended to confer


married law from the legislature or law from the courts

women the power to do three things: first, to barmade as Judge Cooley says it is.

gain, sell, assign and transfer their separate per

sonal property; second, to carry on any trade or In a recent discussion in the New York Medicobusiness; third, to labor on their sole and separate Legal Society, on Madness and Crime, Mr. Austin account. The first two a married woman had no Abbott, speaking of “emotional insanity,” very power to do under the common law; the last she wisely said: “I believe that those qualities of self- could do, but the wages for her labor belonged to restraint which mark the highest notch of civilized her husband. To confer upon her the power to character have come largely through the existence carry on a trade or business was to give her a right, and administration of the penal sanctions of law, that prior to the passage of this act, she had not against men who but for those penal sanctions enjoyed. To declare that she might labor and would have had much less capacity of distinguish- perform services would have conferred no new right ing between right and wrong, and no power to re

upon her, but to declare the wages of her labor to strain the impulses of nature. If this be so,

the be free from the control of her husband was to way to increase immensely the mischiefs of uncon- confer upon her a new and substantial right, and trollable impulse in the community is to put an end to accomplish this the Legislature declared that to punishment for acts committed under uncon- she might perform labor and services upon her trollable impulse, and the way to increase those sole and separate account.'” In Bitter v. Rathman, faculties by which we control impulse is to main- 61 N. Y. 512, the commission of appeals held that tain the punishment which the law inflicts for crim- a married woman could contract a valid partnership inal acts, irrespective of the attempt to prove such with third persons, although she held her interest impulses as a justification or excuse.

It may well in the firm upon a secret trust for her husband, and be that the time will come when penal justice will that she could maintain an action for dissolution to be put on a better footing, but the refusal of the protect her apparent rights, and that she was liable law to recognize such justification or excuse is as a partner to the creditors of the ostensible firm. made in view of the present state of public opinion, The court say: “If the wife has the capacity to in view of the present imperfect adaptation of tri- contract with the husband with reference to her bunals of justice to the investigation of uncontrol separate estate, there is no limit put upon the power lable impulse, and we ought to add, in view of the in the statute. The courts of this State have decided present condition of society. I do not think that that she has such power, and I am unable to see by medical men appreciate generally the power which what principle it may be upheld by one class of the existence of the law and its penal sanctions ex- contracts and denied as to others." And in Scott v. ercises on the lawless in aiding the control of what Conway, 58 N. Y. 619, it was held that a married would otherwise be uncontrollable impulse. Those woman, apparently carrying on a separate business, who are familiar with the administration of crim- cannot interpose as a defense against creditors that inal law, those who are charged with its adminis- she had a dormant partner, namely, her husband. tration, those who have the responsibility of main- This was by a divided court. By chapter 381, Laws taining public peace and order, will not, I think, of 1884, it was provided that a married woman may deem it an exaggerated statement to say that in all contract as if unmarried, but “this act shall not

affect nor apply to any contract that shall be made the defendant bas got at least some letters which between husband and wife.” Probably the prohibi- ought to have been treated as the letters of the tion extends only to property not belonging to the plaintiffs, and to have been sent on to them. Instead wife. But the matter is vague.

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 NOTES OF CASES.

for them which was in the letters. There is also a

case where money was paid to the defendant for the N Hermann Loog v. Bean, 51 L. T. Rep. (N. S.) hire of a sewing machine of the plaintiffs, and the

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of the plaintiffs, had been making statements to the siderable time send the money or the sewing machine plaintiffs' customers injurious to their business, and to the plaintiffs. The defendant having so acted, trying to interfere with their customers making the case is in my opinion one in which it is the duty payments to them, and had notified the post-office of the court to interfere, and to see that he does not, to send any letters addressed to him there to another by reason of his having been employed in the plaintaddress, held, that he should be enjoined from such iffs' house of business, obtain letters which are instatements and interference, and to withdraw such tended for them, and really belong to them, but potice, the plaintiffs undertaking not to open any which have come, under his directions given to the letter adressed to the defendant except at certain postmaster, to his own private address.” Bowen, L. fixed times, with liberty to the defendant to be pres. J., said: “There is a wrong done which is actionent. Cotton, L. J., said: “The court has of late able if it has been committed, and which naturally granted injunction in cases of libel, and why should would, if repeated or persisted in, affect injuriously it not also do so in cases of slander? It is clear that the property or trade of the plaintiff company. It slanderous statements, such as were made to old has been held since the Judicature Act that a plaintcustomers in this case, must have a tendency mateiff is entitled to the protection of the court against rially to injure the plaintiffs' business; they are a wrong of that sort which is contained in a written slanders therefore spoken against their trade. It is document; that is to say, the court will restrain the not necessary therefore in my opinion to show that publication of a libel which is immediately calculoss has actually been incurred in consequence of lated to injure the property and trade of the person them. If they are calculated to do injury to the against whom it is directed. Then can there be any trade, the plaintiffs may clearly come to the court. distinction in principle between a slander which is There is no doubt more difficulty in granting an in-contained in a written document and a slander which junction as regards spoken words than as regards is not? In the cases of Thorley's Cattle Food Company written statements, because it is difficult to ascer. v. Massam, and Thomas v. Williams, the court intain exactly what is said. But when the defendant terfered to restrain the slander which was placed is proved to have made certain definite statements upon paper, so that clearly in the case of such writsuch as are mentioned in the order, in my opinion ten slander as is naturally attended with injury to an injunction is properly granted to prevent his re- property and business, the court has jurisdiction to peating them. Then the second part of the injunc- interfere, and it appears to me that the same princition, which is in part mandatory, restrains the ple must apply to spoken slander. Then I come to defendant from giving instructions to the postmaster the next question, about the notice to the postas to his letters, and orders him to withdraw a notice master. The defendant changes his address from that he has already given to the postmaster. Objec- the plaintiff company's office to a private residence, tion is taken to that on the ground that it is a man- and sends to the postmaster a notice that all letters datory injunction, and that the defendant had a

addressed to him at the plaintiffs' office are to follow right to give directions to the postmaster to send him to his own residence. Now, a man has a right, his letters to his actual address. I need hardly say when he changes his address, to tell the postmaster any thing about the mandatory injunction being to send his own letters after him; but it is obvious granted. This court, when it sees that a wrong is that he has no right to tell the postmaster to send committed, has a right at once to put an end to it, somebody else's letters after him. The question and has no hesitation in doing so by a mandatory here is whether the defendant has not done some injunction if it is necessary for the purpose. Then thing more than tell the postmaster to send his own as to the merits, undoubtedly a man when he changes letters after him — his letters relating to his own his address has a right to give directions to a post- private business; and I think he has, because letters master to send on to him his letters, but that as- addressed to an agent at the office of his principal sumes that they are his letters; and what we find are frequently addressed to him as a servant, though here, is that the defendant was formerly residing at there may of course be among them private letters the plaintiffs' office as a servant of the plaintiffs, which belong in law to him. There may be signs and a very large proportion of the letters addressed which would show whether the letters belong to the to him were undoubtedly letters relating to the servant or to his master – for instance, words writbusiness of the company, though of course there ten on the envelope. But the servant has no right, might be some letters which would be marked merely because letters are addressed to him, to say * private. By means of his notice to the postmaster that they are his own if there is nothing on the

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envelopes to show that they are his own, and not his ing a good presentment of the necessary tableaux.

1 азтег employer's letters. Therefore his notice to the A good actress, moved by a proper spirit toward postmaster is clearly too large, because all the let- her

manager, ought to have been ready and willing opreh ters which are addressed to him at his place of bus- to do all in her power to contribute to the iness do not belong to him." Fry, L. J., said: “1 of that success upon which both so much depend. conceive that the court has plainly jurisdiction to So far the case has been considered upon the law grant injunctions against slander, as well as against applicable to contracts of biring, without regard to libel. At the same time I am not unconscious of the terms of the special contract in this case, which stression the inconvenience which would result from trying provided, that if upon fair trial

, the defendant felt suite actions for slander on motions to commit. I think

Soad o satisfied that the plaintiff was incompetent to perthat requires careful consideration in any case in form the duties for which the defendant had conwhich the court is asked to grant an injunction tracted, in good faith, the latter might annul the ze the against slander. Then with regard to the notice

The firs contract on two weeks' notice. This clause made to the postmaster. It seeme to me, for the reasons the defendant the sole judge of the competency of time given by Bowen, L. J., that the notice was too large, the plaintiff. In the case of Nelson v. Von Bonnhorst, and I come to that conclusion from the very simple 29 Penn. St. 352, it was held that a contract 'to

be fact that it has induced the postmaster to send to pay whenever in my opinion my circumstances will 0 Fri the defendant letters which belong to the plaintiffs.enable me to do so,' imposes no legal obligation et lez Then the question as to who is to open letters is un- which can be enforced by action, although the court wiring a doubtedly one of considerable difficulty, for this and jury should find that the party was of sufficient design reason, that the court is averse from interfering with ability to pay the debt, as by the terms of the con

gon, a legal right except so far as is absolutely necessary, tract the debtor is made the sole judge of that fact. and in the present case the court would not desire Under the contract in this case, the only question to interfere with the legal right in the letters. But for the jury to determine was the good faith of the that right cannot be ascertained until they are defendant, and therefore the jury were instructed Rep

. 345 opened; they must be opened by somebody, and that if the defendant was satisfied in good faith that therefore the court has to determine who is to open the plaintiff was incompetent, the defendant had a them. There are many reasons which induce me to right to dismiss the plaintiff, and in that case the think that the plaintiffs are the proper persons to verdict should be for the defendant, although the

sredl open them. In the first place, the letters are ad- jury were of opinion that the plaintiff was compe

its dressed to their place of business; and in the next tent to perform her parts. The defendant was not place, there appears to be a presumption prima facie liable for error in her judgment, if in good faith she that most of the letters addressed to the defendant exercised her judgment and acted upon it. Having coming there are letters which are addressed to the the power to give judgment, she is not liable for defendant on their business; and lastly, the defend- error if she did not act maliciously, although she ant has certainly behaved, with regard to some of may have exercised her power arbitrarily. Dowoning the letters, and with igard to his other relations to v. McFadilen, 18 Penn. St. 334. No one is liable his former employers, m a manner which is not cred- for a mistake in the exercise of a discretion conferred itable to him, and which, as between him and the upon him. Moore v. School Directors of Clearfield, 59 plaintiffs, renders it more expedient that the open

Penn. St. 232. The defendant testified that she was ing should be done by them in his presence than by satisfied that the plaintiff was incompetent, and dishim in their presence.” On the latter point, see charged her for that season, as well as others; and Myers v. Kalamazoo Buggy Co., 30 Alb. Law Jour. she very properly introduced evidence showing that

she has a basis for her judgment as evidence of her In Cassidy v. Janauschek, Pennsylvania Common good faith, and for the purpose of showing that she Pleas, December 13, 1884, it was held that a con

did uot set up her judgment as an afterthought and

subterfuge to avoid the consequences of her action, tract of hiring which provides that an actress may

and she made so strong a presentment that it is not be discharged if the manager is satisfied in good

free from doubt whether the jury ought not to have faith that the actress is incompetent, makes the

been directed to render a verdict for the defendant." manager the sole judge of the competency of the

As to contracts to satisfaction, see Gibson v. Cranage, actress, and if the manager discharged the actress

39 Mich. 49; S. C., 33 Am. Rep. 351, and note, 353; for that reason, he is not liable for error of judgment exercised in good faith, although the jury S. C., 45 Am. Rep. 57; Werner v. Bergman, 28

Wood Reaping and Mowing Machine Co., 50 Mich. 565; should believe that the actress was competent. The

Kans. 60; S. C., 42 Am. Rep. 152, note, 153. 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

INTER-STATE EXTRADITION. probably objected to wearing a mob cap.) The

I. court said: “In a business which depends so much upon 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

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