Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση
[merged small][ocr errors]

times." In the other case, Cockburn was leading counsel for the woman Macdougal, the associate of Burke and Hare in their hideous crimes. Well aware of the tremendous weight of prejudice against which he had to fight, he made a very impressive appeal to the jury to discard from their minds all that they had heard of the case and to devote their attention solely to the evidence given. The appeal was successfully made; the woman got off on a verdict of not proven. In connection with this case it was stated in a book by a Quaker, dealing with the principles of morality, that Cockburn, in addressing the jury, whispered to his colleagues, "Infernal hag!""the gudgeons swallow it" and this was, of course, severely animadverted upon as a piece of professional fraud. The astounding statement has merely to be stated to be refuted. Regarding it, Cockburn said: "It is utterly untrue. No one could be more honestly convinced of anything than I was, and am, that there was not sufficient legal evidence to warrant a conviction of Helen Macdougal. Therefore no such expressions or sentiment could be uttered. At any rate, none such, and none of that tendency, were uttered."

In 1830 Cockburn became solicitor-general, and remained in that post till 1834. He never entered Parliament, but he was kept busy in connection with the important questions which then engaged the attention of the Legislature. The Scotch Reform bill was drafted by him, and on the cognate question of burgh reform he also did much to put an end to the maladministration of Scotch municipal affairs which had so long been rampant.

In 1834 he became a judge, with the title of Lord Cockburn. Among the notable judgments to which be was a party were the Auchterarder case, the action against the soi-disant Earl of Stirling, in which the claims of the pseudo-Earl were very forcibly demolished, and the Glasgow Cotton Spinner's case, where he clearly and emphatically laid down the law on the question of trade conspiracies. In these, as indeed in all the cases which came before him, his judgments were characterized by great

clearness and force. He was considered not to be so strong in his law as some of his colleagues, but he had frequently the satisfaction of finding his judgments, after being reversed in the Inner House, restored in the House of Lords.

[ocr errors][merged small]

gie us plenty o' their law, but deevilish little joostice." In the same volume he also records an amusing retort of a juryman to a medical witness A woman was being tried for the murder of her child. It appeared that the child had been found with its throat crammed full of pieces of coal, and with the marks of a thumb and two fingers on the neck. All these, says Cockburn, had little effect on the medical gentlemen called for the defense, who stated that these marks, however they might startle the ignorant, were of little consequence in the eyes of a medical man; he had himself seen

hundreds of children born with similar marks on

the neck. "Ay, but Doctor," remarked a country juryman, "did ye ever see ony o' them born wi’ coals i' their mooth?" The whole book, like his "Memorials," is full of good things, and can be read with pleasure over and over again. Cockburn, however, was not a mere chronicler of the good things uttered by other people; he had a genuine He had been detained one vein of humor himself.

day in court much beyond the usual hour by the dull prosing of a dry advocate. A friend meeting the judge afterwards, said that Mr. was certainly "Tedious!" exclaimed inclined to be tedious. Cockburn, "he not only exhausts time, but encoaches on eternity!"'

He sat on the bench till within a week or two of his death, which occurred on the 26th April, 1854, at his country seat of Bonaly, a charming house nestling at the northern base of the Pentlands. Carlyle wrote of him as "a bright, cheery-voiced, hazel-eyed man; a Scotch dialect with plenty of good logic in it, and of practical sagacity. A gentleman, I should say, and perfectly in the Scotch type, perhaps the very last of that peculiar species." He was a thoroughly excellent man, and one of whom his country was justly proud.

..

[ocr errors]

His writings, besides several contributions, chiefly on legal subjects, to the Edinburgh Review, consisted of his Memorials of His Own Time;" • The Life of Jeffrey," which, though a fine tribute to the memory of his friend, is hardly so interesting as the "Memorials;" his "Circuit Journeys," "Journal," " and "Sedition Trials." The "Memorials was a good deal criticised in the Law Review on their appearance, but their accuracy was maintained with much force in an interesting article in the Edinburgh Review.

ད་

One other characteristic of his deserves mentionthat was his continued protest against the acts of vandalism, under the guise of "improvements," which were always being perpetrated in his beloved

Edinburgh. His efforts did much to preserve the

natural beauty of the northern metropolis, and after his death a society, called after him the "Cockburn Society," was founded, and still exists, for the purpose of continuing his labors in this direction. -Law Times.

[merged small][merged small][ocr errors][merged small]
[ocr errors]

PROOFS OF LOSS

INSURANCE WAIVER.-An insurance adjuster, by telling assured that as to her household furniture everything was satisfactory, but that he wanted to get bills as far as possible of her

store goods, and that as soon as she notified him about getting things ready he would meet her, did not waive conditions in the policy requiring assured to make and keep an inventory of her stock, and in case of fire to furnish certain proofs of loss, where, long before the expiration of the time for filing proofs, assured was notified that the company would insist on the performance of the terms of the policy, and she sued on the policy several months before the time for filing the proofs had expired. (Allen v. Milwaukee Mechanics' Ins. Co. [Mich.], 64 N. W. Rep. 15.)

NATIONAL BANKS

[ocr errors]

INSOLVENCY DISSOLUTION.

The appointment of a receiver for an insolvent national bank, under Act Cong. June 30, 1876, § 1, which authorizes the comptroller, when satisfied of the insolvency of a banking association, to appoint a receiver, "who shall proceed to close up such association, and enforce the personal liability of the shareholders," does not dissolve the corporation. (Chemical Nat. Bank of Chicago v. Hartford Deposit Co. [Ill.], 41 N. E. Rep. 225.)

PLEADING-REVIEW ON APPEAL.

It is error to render a judgment for the plaintiff upon a petition

which does not state a cause of action in his favor. The error, being apparent from the record and inherent in the judgment, may be taken advantage of on appeal, without exceptions or motion for new trial in the District Court. (Oakland Home Ins. Co. v. Allen, [Kans.], 40 Pac. Rep. 928.

RAILROAD COMPANIES-STOCKHOLDERS' BILL FOR RECEIVER.-Where a stockholders' bill asks for the

appointment of a railroad receiver, not with a view to enforcing any lien or debt, but merely to secure a better management of the property until arrangements can be made for discharging its debts, the mere filing of the bill and service of process do not draw the property of the company into the possession of the court, so as to prevent the company, prior to the appointment of a receiver, from surrendering steel rails lying along its right of way, but not yet attached to its road, to the creditor from whom they were purchased, as part of a larger lot, in partial extinguishment of debt for the purchase price. (Illinois Steel Co. v. Putnam, U. S. C. of App., 68 Fed. Rep. 515.)

New Books and New Editions.

AMERICAN STATE REPORTS, VOL. XLIII. This last volume of the reports is published with its usual good arrangement and excellent index and continues the series of this practical and valuable work. It may not be superfluous to say that the selection of cases excellently made by the editor gives a series of reports of all the States of the most important and valuable decisions. This volume contains parts of the following reports: Arkansas 59, California 104, Florida 34, Houst 9, Illnois 152, Indiana 136, Iowa 87, Michigan 100, Minnesota 55, Mississippi 122, Montana 14, Nebraska 41, New York 144, Pennsylvania Statutes 163, Washington 9 and Wisconsin 88. Published by Bancroft, Whitney & Co., San Francisco, Cal.

HISTORY OF THE AUSTRALIAN COLONIES. The history of the Australasian Colonies by Edward Jenks, M. A., Professor of Law in University College, Liverpool, and formerly dean in the faculty of law in Milbourne.

This is a most interesting and excellent history touching on many new and interesting bits of events of Australia and the surrounding islands and gives, perhaps, a clearer idea of the founding of the different colonies of Australia, New Zealand and the other governments than any previous work. The first few chapters deal with the founding of the colonies of New Zealand, New South Waies, Western Australia, South Australia and their developments. The subsequent chapters are of practical value to the lawyer and deal with the responsible government and modern constitutions. This is followed by chapters on internal explorations of Australia; the Maori wars in New Zealand and present day questions, including an exposition of politics and the federation question and the Tongan question. Price $1.60. Published by MacMillan & Co., 66 5th avenue, New York city.

[graphic]
[merged small][ocr errors][ocr errors]
[blocks in formation]

The editorial from the American Lawyer, which we quote below, makes an exceedingly vigorous protest against any action not based upon a careful study of the subject by men who are specially interested in it, and who have already devoted attention to it.

Morton in matters relative to affairs with which he is familiar. How far his judgment may have been at fault in this case remains to be determined by results. If Messrs. Lincoln, Johnson and Northrup shall develop a thorough acquaintance with the methods of practice in vogue in other States and in England, and so extensive a knowledge of both the theory on which the present practice is based and the practical results attained, and shall add to this, capacity as draftsmen of a procedure act demanded in modern legislation of this importance, they will be abundantly justified in undertaking the work left incomplete by David Dudley Field, and the selection of Governor

Morton will indicate that he was discreet and sagacious in his action.

In view, however, of the agitation on this question, it would doubtless be wise for the commissioners to refrain from the preparation of a revision until they have given the profession the report required by the statute to be

This criticism arises out of the appointment distributed by December first relative to an of the present Commissioners of Statutory Re-examination of the codes of other States and vision to perform the work, and an apprehension of England, and their views as to the basis of that instead of making a careful, painstaking and scholarly examination of the matter, they will be disposed to put before the profession a piece of work lacking careful consideration, and which will not be the mature product of thorough inquiry into and complete mastery of the subject of Legal Procedure.

We entirely agree with the article in its criticism of a careless, imperfect and hasty revision. It is a task requiring the attention of the best minds and the most careful consideration. Neither time nor pains should be spared in such a revision, nor is the item of expense to the State a controlling one. The profession can afford to wait for good work, and the State can, if necessary, well afford a fair compensation to the persons engaged in it.

The question for decision by the bar is, practically, can the Commissioners of Statutory Revision perform this work in the manner required, with reference to their other duties in revising the General Laws and drafting bills for members of the Legislature, and are they best fitted for it of all the lawyers in the State by reason of experience, skill and knowledge.

We have the highest respect for Governor
VOL. 52 No. 14.

a proposed revision. If this report indicates the degree of research and investigation, as well as the thorough knowledge of the subject required for the work, they will doubtless receive the approval of the bar in proceeding further; otherwise the preparation of a revision. by them will be a serious embarrassment to the cause of law reform. Are these gentlemen men possessed of such general culture, broad attainments, scholarly instincts, natural ability and legal education, united with facility of expression, as to qualify them for the task, and are they sufficiently well known to enjoy the confidence of the bar of the State? However this may be answered, we are clear now as always that it would be better that no report should ever be made than that after the adoption of the work or after its rejection, this important question should remain unsettled and the Code still continue to be called the driftwood of legal procedure, muddled with many topics and statutes which have no relation whatever to the main subject. The article which we have referred to, and which seems to take issue with the wisdom of the appointments made by Governor Morton, is as follows:

[graphic]
[blocks in formation]

First"The Governor shall appoint three members of the bar of this State, who shall examine the Code of Procedure of this State and the codes of procedures and practice acts in force in other States and countries, and the rules of court adopted in connection therewith, and report thereon to the next Legislature in what respect the civil procedure in the courts of this State can be revised, condensed and simplified."

Second-That the expenses and disbursements incurred in the performance of the work shall be paid by the State, but no compensation is allowed to the commissioners.

[ocr errors]

Third That the necessary printing in connection with the work shall be done by the State Printer, and copies of the report distributed to the judges and members of the bar by December 1, 1895.

ent effort on the part of the lawyers of the State, proper provision is made by this bill for the revision of the complicated and intricate Code of Procedure which has been in operation since 1877. Up to this point, the associations of the members of the bar, and the individual lawyers who interested themselves in the matter, seemed to have performed their duty well and faithfully. With the passage of the bill, however, these eminent lawyers seem to have regarded their work as accomplished, and to have made no effort to provide for the manner in which it should be carried on and completed. The bar associations and their members, as well as the members of the bar generally throughout the State, have been guilty of gross laches in this respect, since we are confident it was never contemplated in the bill that this work should be placed in the hands of the Commissioners of Statutory Revision, who have been designated by Governor Morton to discharge the duties imposed by the act.

In the first place, it was not at all necessary that the Legislature should have acted upon the matter at all, or passed a bill providing for the appointment of lawyers to perform this work, if it were to be delegated to the Commissioners of Statutory Revision. That body is already in existence, duly organized, salaried for the purpose of performing certain work provided by statute, and a mere reference of this matter to them would have accomplished all the pur

They

This bill is the outcome of an agitation on this subject, commenced by the New York State Bar Association some two or three years since, and carried on by this journal and other periodicals, as well as by articles and memorandum presented to the State Bar Association from time to time by J. Newton Fiero, chairman of its Committee on Law Reform, and by Austin Abbott, also a member of that commit-poses of the bill. tee, and of the Committee on Amendment of the Law, of the Association of the Bar of the City of New York, and by reports of committees of bar association from time to time. The Bar Associations of Rochester, Brooklyn and Syracuse united with the State Association and the Association of the City of New York in recommending and urging the passage of the bill, it having been approved by the State Bar Association at its annual meeting and a committee appointed charged with the duty of pre-plete the system as a consistent whole. To senting it to the Legislature. The leading lawyers of the State, including Elihu Root, William B. Hornblower, Wheeler H. Peckham, and others of note, took an active interest in the matter, and strongly favored the passage of the bill. The bar and the public are to be congratulated that although, after long and persist

Again, the Commissioners of Statutory Revision were appointed for the express purpose of revising the general laws of the State. have been engaged upon that work for some five or six years, and it is not yet accomplished. The result is that the statutes are in a state of confusion which is disgraceful to the State, and the only remedy is prompt action by way of a revision of those that remain, so that they may be incorporated in the general laws and com

place upon this body the duty of revising the practice of the State is to bring about the state of affairs precisely similar to that which existed when the commission which manufactured the present Code left the work for which it was appointed, and which was that of the revision of statutes, and embarked upon the labor of

[ocr errors]

tinkering with practice and procedure. The result is too well known to need to be recalled. The work of statutory revision was not performed at all, while the work of revision of the Code of Procedure was performed in such a manner as that it might very much better have been left undone.

Finally, the bill calls for an examination of the procedure of this State, and the practice acts and procedure in other States and countries, as well as the rules of court which are adopted in connection with these regulations, involving C not only a very large amount of labor, but very much of experience, and requiring the services of men who have made a study of the special matter in hand, and have devoted some time and attention to questions of procedure and the rules of the adjective law, or the law relating to procedure, as well as a thorough acquaintance with the substantive law, or what is ordinarily called the municipal law.

[ocr errors]

The work to be done requires lawyers, not only well versed in the law, but thoroughly ac= quainted with matters of practice and apt as draftsmen, with a facility for absorbing and using what is best in the rules and practice in I other jurisdictions. We make no reflection upon the three members of the Commission on Statutory Revision in questioning whether they have any special adaptability or experience to qualify them for this class of work. We confess to very great disappointment in not finding named as commissioners for the purpose of revision of the Code the names of men well known to the profession as those who have made a study of this matter, and have special adaptation to the work in band. Of such men there is no lack throughout the length and breadth of the State. Judge David Rumsey is the author of three volumes upon practice, which indicate that he has made the method of procedure in the State a matter of careful investigation. Edwin Bayles, in his works devoted to practice under the Code, has shown an acquaintance with Code methods and Code remedies which would eminently qualify him for the work. The authors of the annotated Code, both Bliss and Stover, from the character of the work done by them, must be deemed eminently fit for an examination of questions of this character. In addition to these authors,

and to the two lawyers previously named, who were active in the movement in favor of Code revision, and who have treated the subject in works on Practice and Pleading, the names of men like Adelbert Moot of Buffalo, Robert F. Wilkinson of Poughkeepsie, John J. Linson of Kingston, Charles A. Collin of Ithaca, and numerous others who have been heartily interested in the movement and active in pressing it forward at once, suggest themselves as thoroughly familiar with and competent for the performance of the work.

We presume that Governor Morton consulted some members of the bar in the matter of his appointment, but his advisers certainly failed in their duty if they neglected to suggest to him the names of proper persons to take up this difficult and troublesome question. If the Governor neglected to take the advice of the bar on the subject, he has taken upon himself as a layman a very grave and unnecessary responsibility in making appointments of so such grave importance to the lawyers of the State without taking the utmost pains to ascertain the requirements for the position, and acting in accordance with the views of the profession.

A revision of the Code, such as was made by the Throop Commission, which went into operation in 1877 and 1880, would be not only a misfortune, but if adopted by the Legislature but little short of a calamity. That commission was appointed for an entirely different purpose, and composed of men with no special fitness by education, study or experience for the work; and, after the lapse of fifteen years, we find the Code drafted by them so great a failure that the profession almost unanimously prefer all the troubles and ills to flow from a revision rather than to continue under such a procedure. If, on the other hand, a revision should be recommended and fail of adoption because not prepared so as to fully blend the practical and scientific side of the practice, it would put back the work of revision in procedure very many years, and the result of the agitation and labor on the subject for three years past would be entirely lost. We cannot, therefore, regard the action of Governor Morton in this matter other than unfortunate; and while giving the Executive credit for the best possible motives, feel that he was illy advised; and that if the advice

« ΠροηγούμενηΣυνέχεια »