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A WEEKLY RECORD OF THE LAW AND THE LAWYER:

The Albany Law Journal.

professor of American Constitutional History; He bert Tuttle, professor of English Constitution History, and Brainard G. Smith, associate pr

fessor of Elocution and Oratory. Special lectur ALBANY, JANUARY 7, 1893.

are delivered by Hon. Daniel H. Chamberlai

Judge Alfred C. Coxe, Judge Irving G. Vann ar CURRENT TOPICS.

Messrs. Albert H. Walker, John Ordronaux an

Hon. Goodwin Brown. This is a distinguishe
A
NCIENT Ithaca was the residence of the wisest array of talents. Mr. Chamberlain lectures on con

of the Greeks, and in modern days and in this stitutional law, Judge Coxe on admiralty, M State a town of that name has been selected for the Walker on patents, Mr. Ordronaux on medical ju site of one of the greatest cducational institutions risprudence, Judge Vann on insurance and Mr of our country – Cornell University. A recent

Brown on extradition. These gentlemen are recog visit to that university was much enjoyed by the nized experts on these respective subjects. Mi writer, who found much to admire and commend,

Collin is one of the commissioners of statutory ro especially in the foundation and administration of the vision in this State and Mr. Brown is now on thi law school. This school is only five years old, but State lunacy commission. The resident lecturer has two hundred scholars at present (including two

are men of exceptional acquirements and tact, ani women), and is housed in a new and superb stone spend all their time in earnest and judicious work building expressly and conveniently designed for Cornell University is a favored place for the stud its purposes, directly opposite the magnificent of law. library building bestowed on the university by Mr. Sage, the father of our townsman, Dean Sage. One Our distinguished citizen, Gen. Curtis, has mad, large room in this building is preparing for the ac- an excellent speech in Congress in support of: commodation of the Moak library, so generously measure for the abolition of the punishment o given tr th: university by the widow and daughter death for the violation of any provision of the Fed of the late Judge Boardman, the first dean of the eral statutes. In looking over the list of offense: law school and a most devoted friend to it. The now punishable capitally under the Federal laws, ir school library now numbers some twenty thousand addition to murder, piracy and treason, we find volumes. The university buildings are beautifully rape, destruction of a vessel at sea by the owner, situated on high ground overlooking thc lake and laying violent hands on a commander by a seaman, commanding a pleasant view for many miles. Con- and arson of a vessel of war or a dwelling-house sidering the fine apartments allotted to the law pro- within a fort. These are unusual and unreasonable fessors in the new building, and their pleasant cot- severities. It appears that capital punishment has tage residences in the neighborin“ grounds, the been abolished for many years in five of the most life of these gentlemen may be regarded as almost orderly States of the Union. Gen. Curtis says: an ideal one. Thc audience of two hundred stu

“In every country in Europe tho abolition of the dents was extremely attentive and appreciative, and death penalty and the substitution of milder penalties quite devoid of that horse-play and grotesque for the punishment of crime has been followed by a smartness which too often characterize thc inspirca diminution of such offenses and increased convictions and prematurely wise college youth. The school is the several states in this country, which has been go

in proper cases. The revision of the criminal laws of now under the general charge of Judge Finch, ofing on during the last century, has been followed by the Court of Appeals, who delivers, among other like results as to homicides as well as minor crimes. subjects, an admirable course of lectures on the Michigan led in 1847 szitli total abolition. In 1818 her statute of frauds. The associate dean is Mr. Harry life convicts constituted 2.71 per cent of her prison B. Hatchins. The other resident professors are

population. In 1884, as shown in the official reports, Messrs. Charles A. Collin, Charles E. Hughes and prison population. Rhode Island abolished the death

life convicts bad decreased to 43-100 of 1 per cent of her William A. Finch, together with Moses Coit Tyler, i penalty in 1852, aud Wisconsin in 1853. Iowa abolished

Vol. 47 – No. 1.

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it in 1872, when her homicidal crimes averaged 1 in almost every honest and respectable woman will de-
800,000 of her population; after six years under this mand a public marriage, and generally with the
beneficent law ber homicidal crimes averaged only 1 in
1,200,000 of her population. Then, in a general revision

sanction of the church; and women of a different of her criminal laws, she gave to juries the right to kind seldom concern themselves with any form of afix the death penalty or imprisonment for life for marriage whatever. No doubt the doctrine of the murder; and since then she has bad but two execu. common-law marriage has sometimes been the tions, but bomicides bave increased faster than her vehicle of fraud and imposition, and doubtless on populationi, 80 tbat the wisdom of repealing her excel

the other hand it has sometimes served to defeat lent law of 1872 is not apparent. Maine had for many years practical abolition of the death pennlty, although the base purpose of the seducer. It would undoubtits provision was retained in her laws, which required edly be better for the common interests of society a year to elapse between couriction and execution, and to demand, as the conference of commissions on then to be ordered by the governor. The provision uniformity of legislation has recommended, the exePor execution was not mandatory, and few executions cution of a written contract of marriage where were ordered. In 1870 her Legislature abolished capital punishment. In 1883, moved to action by the mad people do not choose to celebrate their marriage by dened passion of a life convict, who killed a keeper in the medium of priest or magistrate. prison, her Legislature restored the death penalty by a barely constitutional rote in each house. In 1887 her Let no one suppose that we have read much of Legislature again abolished the penalty of death with the proceedings in the Briggs' heresy trial. They a two-thirds vote in one house and a three-fourths vote

arc as unimportant, or at all events as uninteresting in the other.''

as the history of the Saxon heptarchy's wars, which In Texas, and possibly in some other States, as we believe have been compared to the fights of well as Iowa, the jury have power to define tlie

crows and kites. It may however be remarked that punishment, and in a number of States, we believe, Lawyer McCook has probably found Minister Briggs capital punishment can be inflicted only after a cer

a tough nut to crack. We infer so from the mintain prolonged period and upon the warrant of the ister's characterization of the lawyer's argument, governor. This latter provision saved the life of which is as follows: Baldwin, in Kansas, a few years ago, who was finally

“Mr. McCook gave you an argument of more than pardoned, on the ground that there was not suf

two hours, which was forceful, plausible and specious, ficient evidence upon which to convict him ! Gen- but which for the most part soared in the regions of eral Curtis is right. It is as illogical for society to

abstract thought, far above and beyond what the kill a citizen for killing another as it would be for prosecution, to use the language of an eminent mem

ber of the court, “were put up to do." I listened to a father to say to his little son: “It is wrong for the argument with the closest attention. Its subtle you to strike anybody, and if you strike anybody I / analyses of hypothetical premises, its simple-minded will strike you."

substitution of infereuces from the language of the de

fendant for that language itself, its delicate balancing In a recent divorce case in the Court of Common upon imaginary lines stretched from speculative piers, Pleas of the city of New York Judge Pryor re

the cool assumption of its logio and the condensed heat

of its rhetoric, all remind us of the intellectual promarked: “An infant child is issue of this marriage,

cesses of a scholastic theologian rather than of a law. and we cannot tolerate that its character shall be

rer or a man of affairs. This argument will receive the sullied and its career clouded by a judicial convic- attention it deserves." tion of the father, on such evidence, of infidelity to

The programme for the annual meeting of the the most sacred of obligations. Since the common-law marriage' so-called -- another name for issue, is both extensive and varied, as well as relates

New York State Bar Association, published in this concubinage is obtrusively prevalent in the com

to both the intellectual and physical entertainment munity, and our calendars are crowded with appli- of its members. The delivery of addresses in the cations for divorce, it behooves us not to relax the evening instead of in the afternoon, as heretofore, will stringency of the rules which, in the interest of doubtless bring out a very considerable audience, and good morals and social security, have been pre- the holding of the business meeting during the day scribed by law for the safeguard of the sanctity and

preceding the reception by the governor, will tend stability of the marriage relation." Every lawyer will sympathize with this excellent judge's It would now appear that at least one of the subjects

to bring together a large number of its members. anxiety to preserve the marriage relation from

for discussion will be disposed of, viz., the date for easy or trivial dissolution, but many

will not

holding the Constitutional Convention. There agree with him that the • common-law marriage

to have been a unanimity of sentiment so-called is obtrusively prevalent in the commu

throughout the State in favor of the postponement nity.” On the contrary, we believe it to be very of the election of delegates until November, and the rare; sometimes in the interest of an honest claim. Legislature has acted wisely in at once amending ant, and occasionally painfully brought to light by the law in that respect. the attempt of some adventuress – too frequently in the hands of unscrupulous or careless lawyers – to Occasionally we see something in the Sun that fasten her claim as a wife upon the estate of a man isn't true. The Sun says: "Judges of the higher to whom she was only mistress. The truth is that I courts of this city assiduously frequent the Manhat

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THE ALBANY LAW JOURNAL.

pg areraged 1 in almost every honest and respectable woman will deyears under this mand a public marriage, and generally with the Treraged only 1 in in general revision

sanction of the church; and women of a diferent ries the right to kind seldom concern themselves with any form of ment for life for marriage whatever. No doubt the doctrine of the

but two execu. common-law marriage has sometimes been the I faster than her vehicle of fraud and imposition, and doubtless on pealing her excel- the other hand it has sometimes served to defeat ine had for many

the base
penalty, although purpose of the seducer. It would undoubt-
8, which required edly be better for the common interests of society
nd execution, and to demand, as the conference of commissions on
· The provision

uniformity of legislation has recommended, the exe-
d few executions

cution of a written contract of marriage where re abolished capi

6

*

ition by the mad- people do not choose to celebrate their marriage by killed a keeper in the medium of priest or magistrate. eath penalış by a use. In 1887 her Let no one suppose that we have read much of y of death with the proceedings in the Briggs' heresy trial. They hree-fourths vote

are as unimportant, or at all events as uninteresting

as the history of the Saxon heptarchy's wars, which other States, as we believe have been compared to the fights of er to define the

crows and kites. It may however be remarked that ates, we believe, Lawyer McCook has probably found Minister Briggs only after a cer

a tough nut to crack. We infer so from the mine warrant of the ister's characterization of the lawyer's argument, aved the life of

which is as follows: , who was finally

"Mr. McCook gave you an argument of more than 're was not suf- two hours, which was forceful, plausible and vict him! Gen. but which for the most part soared in the regions of

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wrong

specious, al for society to abstract thought, far above and beyond what the

it would be for prosecution, to use the language of an eminent memIt is for

ber of the court, "were put up to do." I listened to

the argument with the closest attention. Its subtle strike anybody I analyses of hypothetical premises, its simple-minded

substitution of inferences from the language of tbe de.

fendant for that language itself, its delicate balancing purt of Common upou imaginary lines stretched from speculative piers, ludge Pryor re

the cool assumption of its logic and the condensed beat of this marriage,

of its rhetoric, all remind us of the intellectual pro

cesses of a scholastic theologian ratber than of a lar. aracter shall be

rer or a man of affairs. This argument will receivetbe judicial convic- attention it deserves.” -, of infidelity to

The programme for the annual meeting of the Since the com

New York State Bar Association, published in this other name for

issue, is both extensive and varied, as well as relates lent in the com

to both the intellectual and physical entertainment ded with appli- of its members. The delivery of addresses in the not to relax the

evening instead of in the afternoon, as heretofore, will the interest of

doubtless bring out a very considerable audience, and have been pre. the bolding of the business meeting during the

tan Club and the rooms of the Bar Association, the guishing elements of a charitable,' as compare former for pleasure, the latter for study. The judges with an ordinary, trust, consists in the generalit are ex-officio entitled to the use of the law library of indefiniteness and even uncertainty which is pe the Bar Association, the best in the United States mitted in describing the objects and purposes after the Congress library, and on holidays, alas ! beneficiaries. But Mr. Pomeroy (2 Eq. Jur even on Sunday, the judges delve there for law. § 1029) says: With regard to the extent to whic There is no quieter or more satisfactory working * charitable trusts' have been adopted, and the ji place in town than the Bar Association's rooms, and risdiction over them exercised, in the variou it is a distinguished company that gathers there." States, there is the utmost conflict of judicial deci The Bar Association is not the best after the Con- ion. It seems possible however to arrange the di gress library. It is not so large as, and certainly ferent States according to three general types no better in quality than, the State library. But which shall represent, with reasonable accuracy an why should judges prefer the Manhattan Club ? certainty, the existing condition of law upon th We do hope it is not on account of its celebrated subject in this country.

He places Sout cocktails, of which we have often heard but which Carolina in the second class. This class include we have never imbibed.

the larger portion of the States in which charitabl trusts exist under a somewhat modified and re

stricted form. There is not a little divergence i NOTES OF CASES

the views maintained by the courts of the variou

States composing this class. In a few of them th. IN Brennan v. Winkler, Supreme Court of South statute of Elizabeth is held to be in force (uot i

this State), or one similar to it has been enacted trust “for the education of young men for the In a majority of them the doctrine of charitable priesthood, or to educate individual orphan boys or trusts, as a part of the ordinary jurisdiction and orphan girls,” is void for uncertainty, and that functions of equity, has been accepted in a modifieć parol testimony to show that testatrix prepared hier and limited form. Such trust: are upheld when the own will, that she had been reared as a Catholic, property is given to a person sufficiently certain and by the use of the words “priesthood” proba- and for an object sufficiently definite.

With regard bly meant that of the Catholic Church, was prop- to this element of certainty in the trustee and the erly excluded. The court said: “The rule certainly objects there is much diversity of opinion. The is that the intention of a testator must be disclosed

doctrine of cy pres is generally rejected, etc. As to by the will itself, with possibly two exceptions: In this element of certainty or uncertainty, so far as I the cases of a latent ambiguity, and of explaining have been able to discover, one of the main tests the particular language used in the instrument. We

seems to be this, viz., that the court will not deare unable to see that either of these exceptions are clare the trust, unless it sufficiently appears that the applicable here. We can conceive of no parol testi- donor designed to establish a charity, and the purmony admissible in this case, unless it may possibly pose is indicated with sufficient clearness to enable be such as is allowed by the fifth rule of Mr.

the court, by means of its settled doctrines, to carry Wigram, which permits extrinsic parol evidence

the design into effect. If the trust claimed here as to the circumstances of the testatrix and her

were established, could the court, according to its family and affairs, for the purpose of enabling the established doctrines, carry the design into efcourt to identify the person or thing intended by fect? The power of using the money for the eduthe testatrix;' that is to say, to enable the judge to cation of young men for the priesthood, whether of put himself, as near as possible, in the place and

the Roman Catholic or other priesthood, is absosituation of the testatrix when she wrote her will.

lutely unlimited by country or latitude. From the It may be that such proof might possibly have nature of the trust claimed it would not be under shown that she prepared her own will; that she had the administration of the court at all. See Pritchard been reared under the protection and teachings of V. Thomson, 95 N. Y. 76; Holland v.. Icock, 108 the Roman Catholic Church; that she was a mem- id. 312; Nichols v. Allen, 130 Mass. 211; Fosdick ber of that church, and by the use of the word v. Town of Hempstead, 125 N. Y. 581; McCreary v. priesthood' probably meant that of the Roman

Burns, 17 S. C. 50." Catholic Church. But if so, we do not think that such testimony could have had the least effect in In Society of the Most Precious Blood v. Moll, Suproducing a different interpretation of the will from

preme Court of Minnesota, November 12, 1892, it that reached by the circuit judge. *

* If the was held that a devise of real estate describing the trust claimed to be declared by the testatrix had devisees only as “those members of the “Society of been a private trust there could have been no doubt the Most Precious Blood' who are under my control, whatever as to its being invalid; but it is insisted and subject to my authority, at the time of my death,” that it is a public charitable,' as distinguished is void because not pointing out with sufficient from a private, trust, and as such, although pre- certainty the persons who are to take. The court catory, and somewhat indefinite, it will be sus- said: “Lat the time of executing the will and of the tained and administered by our courts. It is true death and of the entry of said decree, and until the that under the English practice one of the distin- subsequent adoption of the articles of incorporation,

*

the sanctity and
Every law.

preceding the reception by the governor, will tend scellent judge's it would now appear that at least one of the subjects

to bring together a large number of its members relation from

for discussion will be disposed of, viz., the date for mans will not holding the Constitutional Convention

. There 21-law marriage

seems to have been a unanimity of sentiment in the commu

throughout the State in favor of the postponement • it to be very of the election of delegates until November, and the n honest claim

Legislature has acted wisely in at once amending ght to light by the law in that respect. no frequently in i lawyers -- to Occasionally we see something in the Sun that state of a man isn't true. The Sun says: "Judges of the higher e truth is that I courts of this city assiduously frequent the Vanhat

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the Society of the Most Precious Blood appears to mischief to the person or the property or to the have been a merely voluntary association, and there is good name, was oi sufficient importance to destroy nothing in the will to indicate that the devisor con- the threatened party's freedom, the law would not templated its incorporation. Of the decree of the enforce any contract which he might be induced by probate court it is cnouglı to say that if the devisees such means to make.' 1 Pars. Cont. *393-395; 1 are not sufficiently designated in the will to enable Chit. Cont. 269-273; Silliman v. U. S., 101 U. S. any person to take and hold under it, the same de 465. The first part of the foregoing quotation is a fect exists in the decree. The designation of those fair statement of the more rigid rule, the latter of who are to take under the aecree is just as indefinite the more lenient rule, in respect to duress. Deand uncertain as the designation in the will. We fendant's answer is insufficient under either rule. do not see any thing in the will showing an inten- | In most, if not all, of the reported cases, where a tion that the title should pass to the persons ap- party has been relieved from liability on a contract pointed executors, who are also called 'trustees,' or on the ground that the same was obtained from him that it should vest in any one except those whom by duress, or threats amounting to duress, it will be the devisor attempts to point out by the descrip found that the duress or threats were not only untion, the members, both brothers and sisters, of lawsul, but that the contract thus obtained was esthe Society of the Most Precious Blood, who are sentially injust toward the party seeking relief from under my control and subject to my authority at the it. Adama i. Schiffer, 11 Colo. 30–33; 17 Pac. Rep. time of my death. It is unnecessary to enter on a 21; White v. Beylman, 34 Penn. St. 142; Collins v. consideration of the doctrines of uses and trusts and Westbury, .. Bay, 211; Crawford v. Cato, 22 Ga. 594; of charitable uses, for, before a court can be called vync v. Glenn, 41 Mich. 112; Scholey v. Mumford, on to decide whether a trust or use is valid, there 60 N. Y. 498. In thi case the answer avers that must be an effectual conveyance or devise, and to defendant anc. his partner were threatened with such there must be a certain grantee or devisee com- suit by plaintiffs rinless defendant should execute petent to take and hold the real estate named or de- the note. But it also appears that their debt to scribed with sufficient certainty. This court has plaintiffs was much greater than the amount of the held that a conveyance to a voluntary association in note demanded; hence it was lawful for plaintiffs the name adopted by it would pass no title (As- to sue if they could not otherwise obtain a satisfacsociation v. Scholler, 10 Minn. 331; Gil. 260); that tory settlement. The property of defendant's firm a conveyance to a partnership in its firm name was also threatened with attachment. Presumably passes to it no title (Morrison v. Mendenhall, 18 it was liable to attachment; at least the answer Minn. 232; Gil. 212; Tidd v. Rines, 26 Minn, 201; does not negative such liability. It is alleged that Gille v. Hunt, 35 id. 357); though in the last case plaintiffs promised to give credit to defendant's firm. it is suggested that where the firm name contains | The answer shows that plaintiffs did give such the name of one of the partners the title may vest credit. The answer does not however show the exin that partner; and it also concedes that where the tent of the credit promised, either as to time or person is indicated by a title or office, and there is amount; hence no legal or reasonable ground apbut one such, it is sufficient. There is no such element pears for defendant's belief that plaintiffs would of certainty here. The intended devisees are no give all the credit his firm desired. The answer way described than as those members of a certain avers that defendant feared that his business would society, who are under the control and subject to be ruined, his property sacrificed and his business the authority of the devisor at the time of his death, reputation and standing injured, if he should be without specifying who those members are, or how sued by plaintiffs, and that thus be would be subthey are to be ascertained and identif ed. Title to jected to great pecuniary loss and mental anxiety. real estate cannot be permitted to pass by an instru- All these things are but the common ordinary inciment in which the persons who are to take are indi- dents resulting from over-indebtedness on the part cated in so indefinite and uncertain a manner. The of those engaged in mercantile and other business will was ineffectual to pass the property."

pursuits. It is not unlawful for a creditor to de.

mand and secure from bis debtor a promissory note In McClair v. Wilson, Supreme Court of Colorado, for a bona fide debt, under threat of suit if such note November 7, 1892, it was held that a creditor may be not given; and a debtor cannot avoid the paydemand and secure from his debtor a promissory ment of a note merely on the ground that the same note for a bona fule debt, under threat of suit, and a was obtained by means of such a threat. Jackson v. debtor cannot avoid the payment of a note merely Allen, 4 Colo. 263; Prichard v. Sharp, 51 Mich. 432; on the ground that the same was obtained by Peckham v. Hendren, 76 Ind. 47.” means of such a threat. The court said: “The general rule on this subject is stated by a standard

CRIMINAL LAW-MURDER-VENUE-SEPAauthor as follows: Duress by threats does not exist

RATION OF JURY. wherever a party has entered into a contract under the influence of a threat, but only where such a MARYLAND COURT OF APPEALS, NOV. 17, 1892. threat excites a fear of some grievous wrong; as of

STOUT V. STATE. death, or great bodily injury, or unlawful imprison. The Code, article 27, section 278, provides that “if any person ment. But where the threat, whether of

be feloniously stricken or poisoned in one county, and die

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