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struck so as to render him unconscious for hours, reasonable proof of unconsciousness ought to preclude the inference of deliberation, so as to make a declaration made immediately after return to consciousness admissible. And so, if there is great agitation of mind, not amounting to unconsciousness,
presumptively absorbing the mind's attention, that time ought not necessarily to count as an interval, especially if there be no person to whom a declaration might be made.
The hearsay rule has been called an English made rule and Mr. Chamberlayne in his work on Modern Law of Evidence argues that it is hedged about with so very many exceptions that another, such as is declared by the Louisiana court, cannot greatly weigh. It seems to us to have been very wisely extended in such a case as was before the court.
But we started out to speak of a matter that the court does not discuss at all, that is to say, whether the acts of cruel treatment not done by the wife directly, but caused by her, as alleged, to be done by others, and during a time when the couple were living apart, were really offenses against the marriage relation.
It is more easy to understand that an act, say, like adultery, could be thus considered than that an assault and battery could be. If a husband and wife are living apart and one beats or causes the other to be beaten, what, practically, has the marriage relation-a mere incidental circumstance—to do with the matter? It may cause the beaten party suffering or humiliation, but this interferes in no different way with his status than if he or she were unmarried. It does not even afford a presumption, that, if he were living with his wife, or a wife with a husband, that the beating would take place at all. Does not the one who voluntarily remains separated, estop himself from injecting the marriage relation into the affair at all?
These things are to be looked at in a practical as well as a legal way, and practically a decree for divorce does not protect the beaten party against a recurrence of the cruel treatment. But, if they are living together, such a decree is awarded to protect an innocent party, and is supposed to have this very effect, or it could not be justified. Courts do not award decrees merely to give one a right to remarry. They do not play with the marriage relation in any such way.
DIVORCE-ACTS COMMITTED DURING SEPARATION AS GROUNDS FOR.-In Rose v. Rose, 156 N. W. 664, decided by Minnesota Supreme Court, the ground for divorce was that defendant caused, while the couple were and had been living apart for several years, a gang of men to assault and severely beat up her husband, this assault and beating occurring in another state, where both parties then lived. Afterwards plaintiff moved to Minnesota, but where defendant continued to live does not appear.
It was urged that the acts did not constitute ground for divorce in the State of California, where committed, but no stress is laid upon the fact that they took place some years after the parties had ceased to live together.
The court ruled, that, there being jurisdiction of the marriage status, wheresoever acts against that status are committed, their significance is to be considered under the law of that jurisdiction. Let us suppose this to be true, and in thus conceding according to the weight of authority, we must admit the existence of a curious principle of law, that is to say, acts that had no effect on the marriage relation at the time they were committed come to have an effect by the voluntary removal of one of the parties to another jurisdiction. Laws are said not to operate retrospectively, but do they not in such a case as this? The laws of Minnesota had their be. ginning so far as the husband in the above
STREET RAILWAYS - MEASURE
OF DAMAGES WHERE PASSENGER IS ROBBED. -In Bepp v. Indianapolis C. & S. Traction Co., 111 N. E. 614, there was appeal from the sustaining of a demurrer to a petition for recovery by a passenger on a street car for money taken from him by robbery in the presence of the conductor, the money taken amounting to $290.
The court refers to the rule laid down in 6 Cyc. 661, which speaks of a carrier's duty as to personal effects retained in a passenger's possession, being to exercise reasonable care to protect them from loss or injury, but saying this rule does not extend to large sums of money or other property of exceptional value retained by the passenger without the knowledge of the carrier. It declares this statement is to be qualified by making the carrier liable personal convenience, pleasure and comfort as are reasonably suitable to the passenger's station in life, the journey he is taking and possible accidents, sickness and sojournings on the way, for which a reasonably prudent man would provide.
There is no distinction as to street car passengers from others, and the court in reversing the lower court, said it thinks that there are “sound reasons for denying in the case at bar appellant's contention that a recovery in full for his loss of property may be predicated on the failure of appellee's conductor to protect him from personal violence."
If the position taken by the court in its preliminary argumentation is correct, the judgment ought to have been affirmed because on a five cent fare to ride to one's home or down. town, there ought not to be any question of expenses for a journey and very little need for money for contingencies. The judgment sustaining the demurrer ought to have been affirmed, because of the maxim de minimis non curat lex. Had jewelry or an overcoat have been taken the question would be different, and besides these articles might be supposed to be in full view of the carrier.
ducted through collectors and through the mails?
Second-Assuming that the answer to the question is in the negative, is it unprofessional or censurable or champertous for the attorney conducting said agency, to recommend to his clients, friends of his, attorneys, who would institute actions for the recovery of claims in the event said claims cannot be collected by him through his mercantile agency:
(a) If the attorney conducting the mercantile agency should be compensated for his recommendations, whether by a division of the fees or be compensated in some other form and not out of the fees, it being clearly understood that the attorneys who institute actions are to be paid, not by the agency, but by the clients?
(b) If there be no division of fees between them, nor any other compensation given for the recommendation of the actions to be instituted?
Third-Is it, in the opinion of your Committee, champertous, for an attorney personally to engage solicitors to solicit for collections, claims upon which suit is to be insti. tuted by the attorney, where the solicitor is not paid a part of the fees received by the attorney, but is paid a weekly salary for general services rendered to the attorney, inclusive of services as a solicitor, and where said salary is paid to the solicitor, irrespective of whether he obtains any claims for the attorney upon which suit is to be instituted or not?
ANSWER No. 81. In the opinion of the Committee, it is improper for a lawyer to engage in professional employment under an assumed name; the making of collections by a lawyer is professional employment; and the employment of solicitors by a lawyer to procure claims for collection, whether with or without litigation, is improper, regardless of the method of compensating the solicitors; if the objectionable features of solicitation and anonymity be removed, it is not improper for a lawyer to undertake the making of collections, with or without litigation, or to conduct a mercantile agency or to recommend another lawyer for employment by his clients; but all division of compensation between lawyers should be based upon the sharing of professional responsibility or service, and a division of fees merely because of the recommendation of another is not proper. (The Committee directs attention to its previous Answers to Questions No. 42, 47 and 98, and to Canons 27 and 28 of the American Bar Association.)
RECENT DECISIONS BY THE NEW YORK
COUNTY LAWYERS' ASSOCIATION
QUESTION No. 81. Name-lawyer doing business of collections under assumed name-disapproved.
Solicitation-lawyer's employment of solicitors for procuring employment to make collections, though without litigation-disapproved.
Fees-recommending other lawyers and receiving compensation for the recommendation by division of fees or otherwise--disapproved.
Relation to Other Lawyers-recommending other lawyers and receiving compensation for the recommendation by division of fees or otherwise-disapproved.
First-Is it unprofessional or censurable for an attorney to record with the County Clerk of New York County a certificate showing that he is doing business under an assumed name
a mercantile agency, with the object of doing a collection business, which business shall consist of employing solicitors to solicit claims for collection, without any intention to institute a law suit for the recovery of the claims; said collection business being con
RIGHTS OF LIFE TENANT AND RE- ulations must be observed ; if they do not,
VAINDERMAN IN DIVIDENDS- the shareholders can do as they like, so THE ENGLISH RULE.
long as they do not misapply their capital
and cheat their creditors." In a recent editorial we referred to the This contractual force of a company's English rule on this subject and then re- regulations also materially helps to settle marked that, according to it, "the interests whether receipts from it are to be regarded life tenants or remaindermen might have in as capital or income.
When a company a trust fund would not seem to depend so has power to apportion its profits by dismuch on the intent of a trustor as upon tributing so much as income or dividend the discretion of directors of a corpora- and adding so much to its capital, everyone tion.” We then also discussed the three becoming a member of the company “either lines of opinion prevailing in the American originally or by purchase of shares” is courts on the matter. We now propose bound by his contract to accept as income to examine more fully the English rule as or dividend so much as the company dedeveloped in comparatively recent de- clares to fall under that denomination. cisions by the courts of that country; and That guiding principle was laid down, and to give a brief resume of the principles on will be found explained at length, in Lord which accounting as between capital and Hatherley's judgment In Re Barton's Trust income should-according to these decis- (1868) 5 Eq. 244. Illustrations of the rule ions—be made, in respect of the earnings are frequent among the decided cases. of invested funds. To begin with, no Thus, even where a company declaring a stereotyped definition of the terms capital bonus has power to add to its capital and and income can be given, for, as the rules pays a bonus out of accumulated profits, set out below themselves sufficiently show such a bonus is to be regarded as income they are variously intercepted, according even though the fund from which it has to the nature of the business and the views been paid may have been used as floating of the persons interested. Thus, while a capital, if the fund has not been formally company may be prevented from dissipat-added to capital. On the other hand, ing its capital to the injury of creditors, where the company has not power to add there is no restraint on the shareholders to to its capital, and a bonus is paid out of observe strict accounting principles with re- a fund formed out of undivided profits gard to, say, a "wasting" asset. If the and applied to capital purposes the bonus requisite majority of the shareholders de- is to be treated as capital. The distincclare the gross profits as dividend, a con- tion between the two cases is to be found scientious objector who may wish part of in the inference to be drawn as to the inthem put to capital can only attain his tention of the company. In the first case, wish by persuading the rest of the share- the absence of any reference to the comholders to adopt his policy. “There is noth-pany's power of adding to capital raised ing in the Companies Acts," said Lord Jus- a presumption that no addition to it was tice Lindley in Lee (1889) 41 CH. D. 1, "to intended; whereas, in the latter instance, show what is to go to capital account, or the application to capital having in fact what is to go to revenue account. We taken place, that was, in the absence of know perfectly well that business men often express powers, deemed equivalent to an differ in opinion about such things. Such indication of the company's intention to matters are left to the shareholders. They thenceforth treat that portion of its acmay or may not have a sinking fund or a cumulated profits as capital. deterioration fund, and the articles of as- The results of the foregoing cases may sociation may or may not contain regula- be comprehended in the convenient gentions on these matters. It they do the reg- eral statement, that everything is divisible as income till it is capitalized; but when! The question as to the constitutionalthe company ceases to exist owing to ity of the law may be dismissed with the liquidation supervening, the rule is not ap- observation that, while over thirty states plicable. In re Armitage (1893), 3 Ch.
have adopted it, the courts of only four 337, the company in question, which had not
or five have found it to be offensive to power to add to its capital, returned in liquidation the paid up capital and some- either state or federal constitution. The thing more, the surplus being attributable to Connecticut and Michigan Acts have an accumulation of profits not declared as
been approved by the Supreme Court of dividends. The surplus was held to be
the United States.1 capital and to go to the remainderman, for though it had not been capitalized, neither
Section One regulates the "sale or dishad it been declared as dividend or bonus, posal" of a stock of merchandise. Section or dealt with by the company in any way. Three excepts sales by administrators, And that decision was also based on this
trustees in bankruptcy, public officers further ground, that as, in the event of the shares having been sold at a profit by the
acting under judicial process, etc. What executors themselves, the tenant-for-life transfers, then, are within the statute ? could not claim the profit, neither could he This question has given rise to no little claim a profit made on realization through discussion. liquidation. DONALD MACKAY.
A chattel mortgage, giving the mort
gagor the right to remain in possession, Glasgow, Scotland.
has several times been held to be not
within the law. There seems to be no THE BULK SALES LAW.
dissent from this.?
The question as to whether a sale by a
partner of his interest to his co-partner The sentiment prompting the enactment
requires the observance of the Bulk Sales of that class of legislation known as Bulk
Law has arisen several times. The courts Sales Laws was first generally responded of Georgia and Indiana hold that in those to in 1903. If uniformity were desired. ,
transactions the requirements of the law that object has not been attained, and ju
need not be met. It was held in Tennesdicial interpretation is even less uniform.
see, however, that the sale of an interest The situation is such that any attempt to
for the purpose of taking the vendee in classify the various decisions and compare
as a partner was within the statute,' and the acts construed with the language of our
Georgia once held that a sale of a half own would extend this paper beyond the interest followed in a few weeks by a length permissible or proper on this occa
sale of the remaining interest to the same sion. Reference, therefore, will be had only
person was a sale within the meaning of to the comparatively few cases which would
the law.5 seem to be of value in construing the Kan
It has been held that a voluntary assas Act.
signment (not statutory) to a trustee for Nor is it desired that specific reference the benefit of creditors, and a sale by him to those respects in which the law fails to afford protection to creditors, or wherein (1) Lemieux v. Young, 29 Sup. Ct. Rep. 174; our law is less stringent than those of oth
Kidd V. Musselman
30 Sun. Ct. Rep. 606.
in bulk does not necessitate a compliance dence only, and shifts the burden to him with the Act. A contrary conclusion who claims the transaction to be bona was reached in Oklahoma, and in Texas fide. Such legislation so construed would it was said that such a transfer which seem to add very little to previously expreferred certain creditors was within isting law, as under the statute of Elizathe statute.8
beth a sale in bulk was a badge of fraud. It has been twice held that a transfer
A large number of states, however,
have declared such sales to be "void” or to a creditor in acquittance of a debt, if
"fraudulent and void," or "conclusively the value of the property did not exceed the obligation, is not such a sale as is at presumed to be fraudulent and void.” In tempted to be regulated, even though it
one or two instances these expressions
have been held insufficient to warrant might constitute a preference under the bankruptcy law, but the contrary has
the setting aside of a sale if it were in
fact made in good faith, but it would seem been held in three states, 10
that the weight of authority and the betThe phrase "stock of merchandise"
ter reasoning maintain the view that eviseems to require and has received but
dence of good faith will not be admitted little construction. It seems clear, how- in support of such a transaction.
The ever, that it does not include either raw
omission from our law of the word material, or the finished product of a "fraudulent" may be significant in determanufacturer who is accustomed to sell mining the remedies available to the in large quantities, even to the extent of
creditor. at times disposing of all stock on hand.11
A variety of situations have called for The Act provides that unless its re- discussion as to what is intended by quirements are met the sale shall be "creditors." It would appear that he "void" as against the creditors of the
need not be one who has sold goods conseller. In this respect it differs from
stituting a part of the stock at the time many of the measures adopted by other
of transfer, or at any time,12 or that he states. A variety of expressions have been
be a mercantile creditor. 13 An obligee made use of by different legislatures and in an appeal bond, though liability was assemblies. "Presumed fraudulent," not determined at the time of the sale, "Presumed void," and "Presumed fraud
has been held to be a creditor and entitled ulent and void” seem to be the favorites.
to notice.14 Creditors as against whom Such language has generally, but not the sale is void must be the same credalways, been held to create merely a re- itors to whom notice must be given, and buttable presumption capable of being in determining who are within that classiovercome by evidence of good faith in fication it has been held that where a fact. It is said to prescribe a rule of evi- merchant operated a drug store as a
separate institution, and across the street (6) Blanks v. Sargent, 141 Pac. (Wash.) 468;
from his other mercantile establishment, Stovall v. Shepherd, 73 S, E. (Ga.) 761. (7) Humphrey v. Coquillard, 132 Pac. (Okla.), its sale in bulk required notice to all of his
creditors.15 It was held in Washington that (8) Terrell v. Young, 152 S. W. (Tex.) 671.
(9) Sampson v. Brandon, 56 S. E. (Ga.) 488; upon a sale of a stock owned by a partnerJaques v. Carstarphen, 62 S. E. (Ga.) 82; Gallus
ship, the individual creditors of the memv. Elmer, 78 N. E. (Mass.) 772.
(10) Peterson y. Doak, 86 Pac. (Wash.) 663; Baumeister V. Fink, 135 Ill. App. 511; Schu- (12) Galbraith v. Bank, 130 Pac. (Okla.) 541. macker v. Riddle, 52 Pa. Super. Ct. 6.
(13) Rabolsky v. Levenson, 108 N. E. (Mass.) (11) Stone Co. v. Lewis, 85 Atl, (Conn.) 534; 1050; Eklund v. Hopkins, 78 Pac. (Wash.) 787; Hart v. Brierly, 76 N. E. (Mass.) 286; Cooney v. Bank v. Van Allsburg, 131 N. W. (Mich.) 101. Sweat, 66 S. E. (Ga.) 257; Lee v. Gillen, 134 N. W. (14) Hanna v. Hurley, 127 N. W. (Mich.) 710. (Neb.) 278.
(15) Young v. Lemieux, 65 Atl. (Conn.) 436.