Imagens das páginas
PDF
ePub

ant and his property. Cal. Sup. Ct., April 25, 1887. Sullivan v. Royer. Opinion by Foote. C.

RAILROAD CROSSING-YARD — INJUNCTION.- (1) Where property has been taken for one public use, by a corporation, it cannot be taken by another corporation for another use, except by express grant or by necessary implication. (2) The running of its tracks by one railroad company through the yard of another company and across some of the tracks and switches is not a 66 crossing," within the meaning of the statute. (3) A railroad company, although another route was open to it, for economy ran its proposed line for tracks through the yard of another company in operation. cutting through the coal yard, the repair yard, and a portion of the coal chute. Held, a proper case for a preliminary injunction. Penn. Sup. Ct., Oct. 4, 1886, Appeal of Pittsburg Junction R. Co. Opinion by Gordon, J. Trunkey and Clark, JJ., dissenting.

NEW BOOKS AND NEW EDITIONS.

SHARSWOOD'S LEADING CASES.

The third volume of "Leading Cases in the Law of Real Property decided in the American courts, with notes by George Sharswood and Henry Budd," is at hand, from the house of M. Murphy of Philadelphia. It contains the subjects of joint tenancy, coparcenary, tenancy in common, estates by entireties, merger, devises and dedications to charities- mortmain, title by descent, escheat, inviolability of legislative grants. It includes among others the great cases of Vidal v. Girard's Ex'rs., and Fletcher v. Peck. The work is the only one of the kind in this country, and is valuable not only on account of the intrinsic importauce of the subject but for the learning of the annotations. The notes in the present volume have been made by Mr. Budd. Occasionally they might well have been fuller, as for example, on the question of the effect of the married women's acts on tenancy by entireties, in which we find no reference to the decisions in New Hampshire, Iowa, and especially the case of Pray v. Stebbins, 141 Mass. 219; S. C., 55 Am. Rep. 462. The matter in the notes is divided and arranged in a very intelligent and logical manner.

[blocks in formation]

Appeal dismissed with costs-Frank M. Jenkins, respondent, v. John L. Putnam, appellant. Opinion by Earl, J.; all concurring except Rapallo,J., who votes for affirmance.- Judgment affirmed with costs-Caleb E. Whitaker, appellant, v. John M. Masterson aud others, respondents. Opinion by Earl, J.; all concur. -Judgment affirmed with costs-Rebecca B. Martin, respondent, v. William F. Garrison, appellant.

Judgment reversed, new trial granted, costs to abide event-Daniel Vail, respondent, v. Long Island Railroad Co., appellant. Opinion by Andrews, J.; all Concur.-Judgment of the Supreme Court reversed aud that of Monroe Sessions affirmed; proceedings to be remitted to that court, with directions to enforce its judgment of conviction by recommitting the de

fendant to the Auburn State prison to serve the unexpired term of his original sentence of fifteen years People, appellants, v. Joseph Elliot, respondent. Opinion by Earl, J.; all concurring. Elliot was charged and convicted of forgery, second degree, in presenting for cashing by a Rochester bank of a forged draft. The principal evidence was given by an accomplice, and the Supreme Court held that it was not sufficiently corroborated under section 399 of the Criminal Code. Elliot and the accomplice formed a plan in New York city to swindle some country bank. He forged a $3,900 draft ou the National Bank of the Republic of New York in the name of La Banque du Peuple, Montreal, and they went to Rochester, where the accomplice took the draft to the Flour City National Bank, August 14, 1886, and deposited it. The next day he drew on it $2,500, of which he gave $2,000 to Elliot. Both were arrested, and the accomplice turned State's evidence, mainly on which Elliot was convicted. The General Term reversed the conviction on the sole ground of non-corroboration. The Court of Appeals reverses the Supreme Court decision, and hold that the evidence given on the trial, that Elliot and the accomplice witness were old acquaintances in New York; that they were seen together at the time of the swindle and for several days prior in Rochester and Charlotte; that Elliot registered in Rochester under the false name of "J. W. Massey, Jersey City," and that he had previously, on November 13, 1878, been convicted in New York of forgery, and had served four years therefor in Sing Sing, was sufficient corroborative proof to satisfy both the Criminal Code and the trial jury.—Judgment affirmed with costs-David A. Scott and another, respondents, v. Augustus L. Case and another, appellants.-Judgment affirmedPeople, respondent, v. Hanford West, appellant. Opinion by Andrews, J.; all concurring. The appeal was by an Erie county milk vendor from a conviction for selling watered milk. West declared the dairy law unconstitutional in depriving him of his rights, liberties and privileges.-Judgment affirmed with costsJohn Robinson, respondent, v. Otto Huber, appellant.

-

-Judgment and order affirmed on opinion given in Rielly v. Delaware & Hudson Canal Company (102 N. Y. 383), with costs-Josephine Myers, respondent, v. Geo. S. Riley, appellant. All concur.- -Return of remittitur requested, and when returned to be amended in accordance with plaintiff's motion · Witthaus v. Schack. Motion for reargument denied-Anderson V. Continental Insurance Company. Memorandum per Curiam; all concurring. Motion to dismiss granted with costs-Baldwin v. Rood.- -Motion to dismiss granted-Hyatt v. Dusenbery. Memorandum per Curium.-Motion to strike appeal from calendar granted-Willis v. Bellamy.

NOTES.

The ALBANY LAW JOURNAL, which has a happy knack of touching amusingly on the humor which here and there shines through the dry and sombre monochrome of the law reports, has a collection of droll head notes, and he outdoes the reporter by suggesting a few useful ones on a similar pattern. He might add one to his collection-one we remember to have seen in the Practice Reports of the late Mr. Howard. The case was decided in an inferior court, and not in accordance with the reporter's sense of propriety or opinion of the law, we do not know which; and the first head-note he prefixed to it read as follows: "This little case shows what a Justice of the Peace can do.” N. Y. Daily Register.

The Albany Law Journal.

THE

ALBANY, JULY 9, 1887.

CURRENT TOPICS.

HE conviction of Jacob Sharp is the most important in this country since that of Tweed. Both men belonged to the most dangerous criminal classes men of ability, influence and wealth, and of unscrupulousness and audacity. Both seemed to have no moral sense, and believed the entire community made up of just such as themselves. Sharp is amazed at his conviction, stupefied, cannot understand how it comes about that a gentleman and a man of fortune and power should be sent to prison, put into striped clothes, have his hair cropped, and be set at hard mechanical work, just because he did what was very common and commonly winked at, although to be sure it was forbidden by law. We have no sympathy with him. He knew better, and he defied the law, tried his strength, was worsted, and there he is, where he ought to be. It is a wholesome moral lesson, not to say a sublime spectacle, to see a municipal community rising in rebellion against its impudent, shameless, corrupt rulers, and putting them at honest work for the people whom they have abused and defrauded. We heartily wish that the same public opinion, effectuated by similar official ability and devotion, had brought about a similar result in a flagrant and notorious case of bribery at the capitol a few years ago. Instead of that the newspapers laughed at the charge, and it was swept into the district attorney's waste basket. Great praise is due to District Attorney Martine and his efficient assistants for their perseverance in most discouraging circumstances, and for the signal success which their honest and intelligent efforts have achieved. It is refreshing to see such proofs of faithful and conscientious public service, and they should receive not only cordial praise but imitation in other places. We hope that this good work of enforcing the law will not stop here. The enforcement of laws should not resemble a convulsion of nature- an eruption of a volcano, an earthquake, a tidal wave, a cyclone; should not result from a spasm of long-suffering and outraged virtue which gradually comes to a head like a boil; but should be constant, steady and a matter of course. There is something ludicrous in the idea of a community submitting to notorious infractions of the law for a course of years, "nursing its wrath to keep it warm," like Tam O'Shanter's wife, and once in ten years coming down on the offenders with a swoop, and then relapsing into slothful submission for another decade. We should now like to see the continued enforcement of the saloon laws on Sunday, and to have the gambling-shops at which even judges and lawyers of high degree play-shut up and kept shut. We should also like to see that contemptible VOL. 36 No. 2.

pool law enforced for what it is worth. Why not?

[ocr errors]

Vacation opens breezily in legal matters. The Supreme Court of the United States has been overruled! By the Court of Appeals of Texas. It would seem that justice of the peace, DogberryStofer, of Kentucky, has escaped, run away to Texas, got elected to the Court of Appeals, and essayed a more daring flight than the overruling of the highest court of a State. The Court of Appeals of Texas, be it known, is a court of appellate criminal jurisdiction alone, and although of great antiquity - twelve years and a respectable authority in regard to murders, rapes, mule-stealing and such matters, has not been regarded as an oracle of constitutional law. But now, in Ex parte Asher, it overrules the Federal Supreme Court in Robbins v. Taxing District, and holds that a State tax upon drummers from other States is valid. The court is good enough to say that “In cases clearly involving the constitutionality and validity of State laws with reference to the Federal Constitution, the decisions of the Supreme Court of the United States clearly, certainly and unequivocally expressed upon the questions involved, are binding upon the courts of the States." But the court continue: "Such decisions, no more than the decisions of State courts, are or should be binding upon the latter, if in themselves unwarranted, assumptions of constitutional authority innovations of Federal power, where such power does not and never was intended to apply and operate and moreover where said decisions are directly in conflict with well-adjudicated cases of the same court, which are not overruled, and which in addition to their equal authority are based upon fundamental and eternal principles of reason, justice and right." "The doctrine announced in the Robbins case, and which is here relied on, stands without support in previous adjudications of the court in which it was laid down, and this too without overruling previous decisions of the same court in diametrical opposition to it. The Robbins case decided by a divided court is in direct conflict with a number of cases decided by the same court, and in which there was no division of opinion on the question. Under such circumstances we do not feel bound by the Robbins decision, and not believing it to be the law of the land, we will not consider it of binding force upon us." Thus does the little bantam feather-weight essay to knock out the great slugger! Thus does the adolescent ram, with budding horns, gallantly butt the great patriarch of the flock! How astonished those misguided justices at Block Island and other cooling places will feel when they get this news! Sic semper tyrannis, and the "lone star," forever! So far we had written in our first natural impulse of sympathy with the gallantry and pluck of the weaker party. But now there comes over us a sudden sickening suspicion that the Court of Appeals of Texas has been making a goose of itself. Now

we do not mean to intimate that the Supreme❘ them Sundays for the courts, as well as the public

offices, but it was not done, and the courts remain unrestricted and unlimited by this law." We believe it was held that the old law had no application

to courts.

(Fact all but the last stanza.)

The editor turned his revolving chair,
Revolving a neat paragraph,

When out by the stairway he met a broad stare
And heard a bucolical laugh.

Court is right. Nor would we insinuate that it is wrong. But it occurs to us that the law which it has laid down in the Robbins case, and reiterated, is the law of the land, which all good citizens are bound to obey, and especially which all State courts are bound to bow to, however stiffly and THE EDITOR HAS THE CONCEIT TAKEN OUT OF HIM. reluctantly. The Supreme Court may be wrong, but who can overrule it in its interpretation of the Federal Constitution? The Texas P. J. says the decision is inconsistent with previous ones of the same court. Does he intend to be understood that the Supreme Court may not overrule its own decisions? This action of the Texas court is pert, foolish, unseemly, not to say ridiculous. Let the little court devote itself to demonstrating that a verdict of "guilly" is good, but one of "guity" is bad. Let the little court pull in its little horns, and take the law from its superiors, obediently if not contentedly. Else it will some day find some justice of the peace defying its own awful authority, and then it will know how sharper than a serpent's tooth it is to have a rebellious inferior.

"Are you Irving Browne?" the visitor said;
"I am he," said the editor bland,

And graciously bent his ambrosial head,
And extended his inky right hand.
"Your name I have honored for many a year,"
The rustic replied, as he " "shook;
"And having some business that brought me up here,
I was cur'ous to see how you'd look."

The editor felt an unusual flame,
Approaching a blush, and reflected,
"Here's a sensible man, and this is true fame,
But to hear it I never expected."

And then a research of his pockets began,
In quest of a possible quarter,

But concluded to go to the near "Delavan,"
And treat to free lunch and cold water.
"In the place where I live," that countryman said,
"There's a lawyer whose name's Irving Brown,
And I didn't suppose, till your sign I read,

There was one of that name in this town."

The editor rose with a choleric air,

And entreated that rustic full sore,
And used some expressions which I do not dare
To repeat, as he bolted the door.

Justice Dykman, of the New York Supreme Court, has deemed it necessary to consider the question whether the Saturday half-holiday act prohibits the holding of courts after noon on that day, and he concludes that it does not. He points out that "no law in this State has ever interdicted the holding of any court on a holiday," and that this law does not profess to apply to courts, and embraces only the subjects of protesting negotiable paper and closing public offices of the State and counties. He observes: "Holidays are periods of relaxation and The tenth annual meeting of the American Bar amusement and exemption from labor, and it was Association will be held at Saratoga Springs, on the object of the law under view to enlarge their Wednesday, Thursday and Friday, August 17, 18 number and provide for their enjoyment. That and 19, 1887. The exercises will be as follows: end was obtained by considering the designated Wednesday morning. The president's address, by holiday as Sunday for all purposes of business in Thomas J. Semmes, of Louisiana; nomination and the public offices, and authorizing the protest of election of members; election of the general coundishonored paper the day before. The closure cil; reports of the secretary and treasurer; discusof the banks and public offices was thus secured, sion and action on report made in 1886, by the comand that released a large number of persons. Yet mittee on jurisprudence and law reform, on securing holidays have never been made non-juridical days, uniformity in the mode of settling estates of deceand there is no reason why they should be. It is of dents leaving property in several States. Wednesgreat importance to have the courts open for suit- day evening. A paper by Henry Jackson, of ors at all times, and no intention should be imputed Georgia, on "Indemnity the Essence of Insurance; to the legislature for their closure without unequivo- Evil Consequences of Legislation Qualifying this cal language expressing such a design. The legis- Principle; "discussion upon the subject of the lature has declared this to be an act to designate the paper read; discussion and action on the report holidays to be observed in the acceptance and pay- made in 1886, by the committee on judicial adminment of bills of exchange, bank checks, and prom-istration, as to indeterminate sentences for convicted issory notes and relating to the closing of public criminals. Thursday morning. The annual adoffices, and no design is expressed either in the title dress, by Henry Hitchcock, of Missouri; reports of or the text to embrace any other subject in this leg-standing committees; reports of special committees; islation. If the legislature entertained the purposes of abridging the days or limiting the times in which courts could be held in this State, it would have employed plain and unequivocal language for the accomplishment of that end. It would have been easy to restrain the courts upon holidays and make

-

[ocr errors]

discussion of the reports, and action on report made in 1886, by the committee on jurisprudence and law reform, in regard to the use of the whipping-post as a punishment for crime. Thursday evening.- A paper by J. K. Edsall, of Illinois, on "The Granger Cases and the Police Power;" dis

[ocr errors]

cussion on the subject of the paper read; discussion and action on report made in 1886, by the committee on jurisprudence and law reform, in regard to the appointment in all legislative bodies of a joint standing committee for the revision of bills, and as to the proper procedure in matters of special and local legislation. Friday morning. - Nomination of officers; unfinished business; miscellaneous business; election of officers.

We are informed by lawyers of this State that Banks & Brother are offering to furnish them New York Reports at $1.50 per volume, express paid. The contract price to which they are entitled is only 98 cents over the counter, and $1.10 delivered by mail or express. These prices however are cash.

NOTES OF CASES.

'N State v. Kane, Rhode Island Supreme Court,

that

amendment providing "the manufacture and sale of intoxicating liquors to be used as a beverage shall be prohibited, does give the right to manufacture and sell intoxicating liquors to be used otherwise than as a beverage. The court said:

"The purpose of the amendment is not simply to prohibit the sale of intoxicating liquors as a beverage, but to prevent it. Any act therefore designed to carry the amendment into effect should be framed with a view of prevention. Now it seems clear to us that an act which should only prohibit selling or keeping for sale for a beverage, leaving everybody free to sell for all other purposes, would be less effectual for prevention than an act which should confine the right to sell to a few persons, selling under strict regulations, and prohibited everybody else altogether from selling; for if all persons are permitted to sell for other purposes, we may be sure, from our experience of human nature, that many will use the permission as a blind, and will sell for a beverage under the guise of selling for other purposes, and it will be exceedingly difficult to prove the deception. This consideration has always had its influence in prohibitory legislation. The aim of such legislation has uniformly been to prevent selling for use as a beverage, and not to prevent it for other purposes, and yet so far as we are informed, prohibitory laws have always been framed so as to allow only a few to sell for other purposes, and to prohibit everybody else from selling at all. For this reason alone therefore we might well decide that the act under which the defendant is complained of is not obnoxious to the objection interposed by him. We think it is not open to the objection for still another reason. The defendant's argument rests upon the legal maxim, expressio unius est exclusio alterius, which literally translated signifies, the expression of one is the exclusion of the other. The maxim is often applied in construing written instruments, particularly grants,

to narrow their scope to what is expressed in them, by the exclusion of what, but for the expression, would be implied. Thus if a lot, with no access to it save over the grantor's land, be conveyed with the express grant of a particular way, any way which might otherwise be implied will be excluded. This is not the manner in which the defendant seeks to have the maxim applied. His aim is to raise rather than to rebut an implication. Indeed the amendment is not a grant. The first clause is in effect a prohibition. It prohibits the manufacture and sale of intoxicating liquors for use as a beverage, and the defendant contends that it thereby impliedly licenses their manufacture and sale for other purposes. He seeks to reverse the maxim, and apply it as if it read, the exclusion of one is the expression of another, or the prohibition of one is the permission of another, instead of the expression of one is the exclusion of another.' Perhaps a prohibition to do a thing for one purpose may imply a permission to do it for other purposes in some circumstances, but generally such an implication is not warranted by any usage of the lannothing in the first clause of the fifth amendment guage with which we are acquainted. We can see

which warrants such an implication. The second clause is a command to the general assembly to provide by law for carrying the first clause into ef

fect. Of course if the general assembly had previously had no power to legislate on the subject, the command would confer by implication the power required for its own execution. But the general assembly had power before the amendment not only to prohibit the sale of intoxicating liquors as a beverage, but also to restrict and regulate their sale for other purposes. The two powers, if they then should an express command to exercise the may be called two, are not inconsistent. Why one be tantamount to abrogation of the other? We see no reason why it should.”

In Baines v. Geary, 57 L. T. Rep. (N. S.) 567, T. G. agreed to enter the employment of C. B., a dairyman, as milk carrier at weekly wages, the serIvice to be determinable at two weeks' notice on either side. And T. G. undertook that he would not "either during such service or after being discharged or quitting such service, serve or cause to be served for his own benefit, or that of any other person or persons, either directly or indirectly, or cause to be interfered with in any way any of the customers served or belonging at any time to the said C. B., his successors or assigns." Afterward T. G. set up in business as a dairyman on his own account, and solicited and obtained the custom of some persons whom he had served as carrier for C. B. Held, that a covenant in restraint of trade is divisible in point of time, and will be enforced so far as it is reasonably necessary for the protection of the covenantee; that the present covenant would be reasonable so far as it prevented T. G. from serving any person who had been a customer of C.

66

came clients of the plaintiff afterward, while the defendant continued his articled clerk. As the judgment of the court was very short, I must refer to the arguments of counsel. Mr. Bramwell for the defendant, who had demurred, contended that such a covenant almost puts it in the power of the plaintiff to exclude the defendant from all business whatever, and it is much more extensive than can be required for the protection of the plaintiff; there is no limitation as to time or space. Here he would have been fully secured against the loss of business from the opportunities which he gave the defendant by a covenant, that the defendant should not be concerned for any one who had been the plaintiff's

B. during T. G.'s employment by him, and to that extent must be enforced. The court, North J., said: "It is argued, that unless the covenant in the case before me is limited to persons who were customers of the plaintiff Baines at the time when it was entered into, or at any rate, who became such during the period of the defendant's employment, it would be too extensive, and that a covenant, the terms of which are too extensive, must fail altogether. The terms of the covenant in this case are, no doubt, wider than those of the covenant in Rannie v. Irvine, 7 Man. & Gr. 869. But it is quite clear that a covenant in restraint of trade is good if it does not go further than is necessary for the reasonable protection of the person who im-client before, or at the time of the defendant's beposes it. There is nothing illegal in such a covenant, but it is considered unreasonable if it imposes a larger restraint than is necessary for the protection of the covenantee. The courts have however seen their way to treat such a covenant as divisible, and to enforce it to the extent to which it is reasonable while declining to enforce that part of it which is unreasonable. There are many reported cases in which covenants in restraint of trade have been held to be divisible as regards space. Price v. Green, 16 M. & W. 346." 'No case however was cited to me in which a covenant of this kind has been held to be divisible in regard to time. I postponed judgment in order that I might see if any such case has been reported, and I found the case of Nicholls v. Stretton, 3 L. T. Rep. O. S. 117; 7 Beav. 42. In that case the defendant, on being articled to the plaintiff, a solicitor, covenanted that he would not during the five years of his articles, nor at any time after the expiration of the term, either directly or indirectly, interfere or intermeddle with or be concerned as attorney, agent, or otherwise, for any person who had already been, or who should from time to time thereafter become, or be the client or correspondent in business of or with the plaintiff, or any partner or partners, he might admit to a share or shares with him, or any person or sersons to whom he might sell or assign the whole or any part of his business or profession of attorney, solicitor, or conveyancer. Lord Langdale, M. R., held that the covenant was not too extensive, and granted an interlocutory injunction to restrain the defendant from interfering or intermeddling with, or being concerned as an attorney agent, or otherwise, for any client or correspondent of the plaintiff, or of the plaintiff and his partners, in the plaintiff's business of an attorney, solicitor, or conveyancer. A note to the report states that an appeal was presented from the decision, and a case was directed to a court of law. Either the case, or an action for damages for breach of the covenant, came before the Court of Queen's Bench in Nicholls v. Stretton, 10 Q. B. 346. In that action two sets of breaches of the covenant were relied on by the plaintiff. The first was in respect of persons who had been clients of the plaintiff before and at the time of the defendant's entering into the covenant; the second was in respect of persons who be

[ocr errors]

ing with him. * * * But it will be argued that the covenant is good for a part, and that the good part may be severed from the bad. Now first, the contract is a whole, and every covenant on the one side is in consideration of every covenant on the other; and if any part be void the whole is void.' He went on to argue that there could be no distinction on the ground that the contract was under seal. Mr. Cowling, for the plaintiff, argued, that ‘even without separating the parts of the covenant there is no more protection than the particular profession requires, the defendant being restricted only as to persons, and not as to place or time.' In the course of his argument Lord Denman, C. J. said: 'The body of customers here may alter from time to time. Could you enforce a covenant prohibiting a man from dealing with such persons as you might name from time to time?' Mr. Cowling then contended that the covenant is at least good so far as it concerns the clients, who carried on business with the plaintiff at the time of making the indenture or during the continuance of the articles; and the breaches are confined to these. It is true that when any covenant, whether under seal or not, is in part illegal, the whole contract fails. But that is different from the present case, where the contract is, not to do any thing illegal, but only to abstain from certain acts, some of which a party cannot bind himself not to do but may still legally abstain from doing. In such a case the law will enforce such restrictions as the party can bind himself to.' Mr. Bramwell replied and the court took time to consider their judgment. Lord Denman, C. J. delivered the judgment of the court thus: "This case must be decided in favor of the plaintiff in conformity with Price v. Green in the Exchequer Chamber.' 16 M. & W. 346. That decision is precisely in point, and it shows that though the terms of the covenant are large enough to include all the persons who might be clients of the plaintiff at any time, still it was separable and was at any rate good as regarded those persons who had been clients of the plaintiff during the time in which the plaintiff was serving his articles with, him, and that the court considered that, as regards persons who became clients of the plaintiff after the defendant had quitted his employment, the covenant would have been bad. That exactly applies to the present case.

« AnteriorContinuar »