was so. After consultation with the other judges, the lord president said that the application would be considered by the whole Court of Session, and judgment was therefore postponed. The question has been asked how an indictment should properly be concluded where the offense was committed before the death of our late lamented queen, but the bill is not presented till after that event. The indictment ought, of course, to commence 'The jurors for our lord the king," but the offense cannot be said to have been committed against the peace of our lord the king, his crown and dignity," for he was not king when it was committed. It is submitted, therefore, that the correct conclusion should be, “against the peace of our late lady the queen, her crown and dignity." The question is of no very great importance, for any defect in this formal part would, of course, nowadays be amended if necessary. At one time, however, this matter was of great importance. In the case of Rex v. Lookup (3 Burr, 1901) in 1762, early in the reign of George III, the prisoner was indicted for perjury committed on a named date in the reign of George II, but the indictment concluded “against the peace of our lord the king." The judges were unanimous in their opinions that the indictment was bad for not laying the offense to have been committed "against the peace of our late lord the king," and the conviction was quashed, and the prisoner discharged after being sentenced to the pillory and transportation. Rex v. Scott (R. & R. 415) was a case of the reverse mistake. The offense was committed just after the accession of George IV. The indictment, however, concluded "against the peace of our late lord the king." Probably the draftsman had been drawing indictments for offenses committed just before the death of George III, and that this was a slip. In this case the judges refused to interfere with the conviction on the ground that the word "late" was mere surplusage. One of them, however, Holroyd, J., gave the extraordinary reason for his judgment that "the word late is not inapplicable to the present king." As when thus used the word is clearly equivalent to deceased, it is not easy to follow the learned judge's meaning. Solicitors' Journal. -- THE HUMOROUS SIDE OF THE LAW. An Iowa congressman tells a story about Judge Tuthill, who presided in the Eighth Judicial District of Iowa some years ago, and was something of a humorist. In Cedar county the case of Dillon versus Crandall was called on appeal from the decision of a justice of the peace. Counsel having stated in court that both the plaintiff and the defendant had died since the suit was begun, the Judge remarked that the clerk might pass the case as it probably would be tried before another tribunal. After court had adjourned the following lines were found on a sheet of legal cap on the desk of the judge: This appeal case was brought over to our Cedar District Court, And passed over by the judge's awardin' That as death had claimed the right, it was fitting that the fight Should be on the other side of Jordan. If the counsel who were feed in the trial to proceed, Had received enough pay for their boardin', To finish up their task they should change of venue ask, And take it to the other side of Jordan. When the beaten and beat and the lawyers all meet They can then try their action accordin' To the higher law in force, for better or for worse, In the courts on the other side of Jordan. The proceedings had prior to the judgment of the 'Squire, Which plaintiff was desirous of avoidin', 66 How A gentleman who had a suit in chancery was called upon by his counsel to put in his answer, for fear of incurring a contempt. "Well," says the client, "why is not my answer put in then?' should I draw your answer," saith the lawyer," withHang your out knowing what you can swear?" scruples," says the client again; "pray do your part of a lawyer, and draw me a sufficient answer; and let me alone to do the part of a gentleman, and swear it." 66 In the trial of a divorce suit before Judge Gibson, of the Kansas City Circuit Court some months ago a witness who was being examined insisted that and being "full." The witness said that the plaintthere was a difference between being very drunk iff and defendant and himself had become “full” on a pint of whiskey. Col. John O'Grady, the wit of the Kansas City bar, was examining the witness. "Now, Mr. Smith," said he, "you look like a man of pretty fair capacity; do you mean to tell this could get drunk on a pint of whiskey?" court that you alone, not to mention the two others, "I didn't say we were drunk, Mr. O'Grady," replied the witness in an injured tone. “I said we were full." "Well, isn't that a distinction without a difference?" Sir?" "I say, what's the difference?" asked Mr. O'Grady, losing patience. "Why, Mr. O'Grady! There's all the difference in the world. When a man's drunk he don't know anything. He's he's drunk, and that's all there is to it. But when he's only full, he feels good; he feels the influence, an' he laughs when there ain't no laugh comin', an' — well, he's full; you know how it is, Mr. O'Grady." "Oh, do I?" was the remark of counsel, as he hastened to another subject.— St. Louis Republic. The Albany Law Journal. before the Appellate Court of Cook county, A Monthly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, N. Y. Illinois. About a year ago, it seems, one John Anderson, of Chicago, brought suit against a street railway company for damages in conseContributions, items of news about courts, judges and lawyers' quence of injuries which he claimed to have received by being knocked from his wagon by solicited from members of the bar and those interested in legal a car belonging to the defendant corporation. queries or comments, criticisms on various law questions, addresses on legal topics, or discussions on questions of timely interest, are proceedings. The retirement of Attorney-General John W. Griggs from the cabinet of President McKinley, which occurred with the close of last month, deprives the country of the services of an exceptionally able and efficient officer. Mr. Griggs served during a peculiarly momentous period in our history, and it was his duty to prepare and argue the case of the government in the litigation growing out of the new relations with acquired territory which came to us as a result of the war with Spain. The manner in which he conducted and argued these cases stamped him as a most profound lawyer and powerful advocate. Throughout the four years of the first term of President McKinley he has shown ideal qualities for the great office which he now relinquishes. Like several others, notably Speaker Reed, Attorney-General Griggs for years made large pecuniary sacrifices to serve his country; but now, like them, when he can be spared, he insists upon retirement to private life and the practice of his profession in which his abilities undoubtedly will command very much larger emoluments than he has received as a government officer. As a result of the trial the plaintiff received a verdict for $7,500. The defendant's counsel appealed from this finding on the ground that Judge Stein, before whom the case was tried, fell asleep and remained oblivious to the proceedings in the court-room for several minutes at an important stage of the proceedings. The Appellate Court dismissed the appeal, holding that the mere circumstance of the trial judge having slept four or five minutes during the hearing of the case did not constitute reversible error. The opinion continues: If the judge was asleep, as certified, counsel must have known it, and knowing it, should have suspended the examination of the witness then testifying until the judge awoke, or should have awakened him by calling his attention in a voice sufficiently loud to acquaint him of the fact that the trial was progressing. Counsel did neither, but proceeded with the examination, and after the judge awoke failed to call his attention to the fact that testimony had been given while he was asleep, or to object in any way. It does not appear that testimony was taken while the judge was asleep, or that there is any objection to it, or that it was in the least pre judicial to either party. A notable case with respect to governmental function as a defense in admirality, is that of Workman v. City of New York (21 Sup. Court Dec., 1900). In that case the Supreme Court refused to apply the general rule which exempts municipal corporations from liability for the negligence of their servants while acting in a governmental capacity. A fire boat, the property of the city of New York, while responding to a call, negligently collided with the vessel of the plaintiff, which was moored at a dock, and an action in personam was brought in admiralty against the city for damages. A recovery was had in the District Court, which was reversed by the Circuit Court of Appeals, and the latter judgment was reversed by the Supreme Court, four judges,- Gray, Brewer, Shiras and Peckham Justice, of course, never sleeps, but her ministers, being merely human, and, therefore, full of humanity's frailties, perforce must do so. But may one of these ministers indulge in "forty winks" while litigation is in progress before him? That is a different and much more important question which was recently dissenting. The majority opinion holds that the cases cited and relied upon by the defendant corporation are not authorities in a Court of Admiralty, and that in the maritime law municipal corporations are not protected against liability in the performance of governmental functions. The court, by Justice White says: The maritime law affords no justification for this contention, and no example is found in such law where one who is subject to suit and amenable to process is allowed to escape liability for the commission of a maritime tort, upon the theory relied upon.' After a full review of the authorities, the court arrives at the conclusion that "the public nature of the service upon which a vessel is engaged affords no immunity from liability in a court of admiralty,”-in other words, that the theory of sovereign attributes of a city does not obtain in the maritime law. The fact that no less than four of the justices dissented from the dissenting opinion, shows how difficult was the question why the rule which is so universally accepted among State courts should not be equally applicable in courts of admiralty. We publish elsewhere in this issue a very interesting paper by Hon. James McCabe, of the Omaha bar, on the subject of conveyances in fraud of creditors, discussing certain features of 13 Eliz. c. 5, ignored by the courts of some of our States. Mr. McCabe says: Despite the explicit language of the statute that, as to the creditor, nothing passes by the fraudulent grant, it has been held by the Supreme Court of Iowa for more than forty years that only the legal title passed, but that did so effectually pass that nothing save a bill in equity could affect it; and, by some unaccountable extension of this doctrine, it was ruled that the unfortunate judgment-creditor was without lien and could not redeem from tax or execution sale; and this in a State where, by statute, judgments are liens upon equitable, as well as legal, estates. Nebraska, following Iowa, but intensifying the zeal for the fraudulent participants, holds that where a fraudulent grantor absconds the State, the fraudulent grantee going into possession, an attachment writ levied on the realty seizes nothing because (1) the legal title rests in the grantee; (2) the equitable title is still in the grantor; (3) a legal writ can seize an equitable interest only when the holder of that interest is in possession. It has been repeatedly ruled that equity is without jurisdiction before judgment and execution at law and as personal service cannot be had on the defendant, his property is exempt from process. The strange part of the transaction is that no one seems to know why this result is not the law, while generally conceded to be outrageous. In Michigan it has been ruled that one doing exactly as the statute authorizes, i. e., suing out execution and selling the fraudulently-conveyed realty, has been guilty of such oppression as to close against him the doors of a court of equity should he seek to quiet his title as against the fraudulent grantee. These are but samples. Other very interesting and important questions are presented by the different constructions of this statute. For instance, the statute declares that conveyances in fraud of creditors are parties they are good. But it is an elementary rule as to them void, implying that as between the that the courts will aid no man to recover the fruit of his iniquity. Did the statute suspend that rule as to the parties participating in a fraudulent conveyance? Can the fraudulent grantor enforce, through the aid of a court of justice, the executory contract thus tainted? In some jurisdictions, including Massachusetts, he can; in others, he cannot. It occurred to me that a review of these questions might be interesting and profitable. The New York Court of Appeals, in People ex rel. Rodgers, recently decided, finds the so-called Prevailing Rate of Wages Law unconstitutional, thereby furnishing a very important precedent for the upholding of liberty of contract. In effect, the Court of Appeals restates and reaffirmes its position that the right to engage in a lawful business or trade, and to make contracts in furtherance thereof, is within the general provisions of liberty secured and guaranteed by the Constitutions. In the prevailing opinion, Judge O'Brien makes the following collation of authorities from the courts of other States, which are in substantial accord with that of People ex rel. Rodgers: The following are a few of the laws thus considered and condemned, and it will be seen that they were all in line with the enactment in question: An act forbidding employers from withholding wages from employes engaged in weaving for imperfections in the work (Com. v. Perry, 155 Mass. 117). An act to secure operators in coal mines and certain manufactories the payment of their wages at regular intervals and in lawful money (Godcharles v. Wigeman, 113 Pa. 431; State v. Goodwill, 33 W. Va. 179; State v. Fire Creek Co., id. 188). An act relating to the payment of wages to miners employed upon the basis of the quantity of coal mined (Ramsey v. People, 142 Ill. 380). An act to provide for payment of wages in money and prohibit the system of truck Hudson River Railroad Company at Troy, and caused it to be checked from that place to the city of New York. The trunk was then in good order and filled with ladies' clothing, jewelry, etc. The plaintiff took passage upon the same train that carried stores, and to prevent deductions from wages except for money advanced (Frorer v. People, 141 Ill. 171). An act to provide for weekly payment of wages by corporations (147 Ill. 66). An act declaring it unlawful for persons engaged in mining to pay wages otherwise than in money (State v. Loomis, 115 Mo. | her trunk, which arrived at the city of New York 307). A city ordinance enacting that laborers should receive not less than $1.50 per day and that the day should not exceed eight hours (Bramly v. Norton, 5 Ohio, N. P. R. 183). The case last cited is not distinguishable from the one at bar. Indeed, it involves the very question, and, while it is not a decision of the highest court of the State, it is based upon the authority and the doctrines of the other cases cited and upon reasoning that seems to be unanswerable. The case at bar differs from these cases cited from the highest courts of other States only in the circumstance that here the Legislature has made use of municipal corporations to accomplish the purposes which were condemned in these cases. But it must be obvious that what the legislature cannot do directly it cannot do indirectly. It cannot make use of its powers over municipal corporations to subvert rights of liberty and property guaranteed by the Constitution. The Court of Appeals has also declared invalid the law requiring stone used in public works to be "dressed" within this State, thus following the principle laid down in the prevailing rate of wages case, so far as concerns conflict with the Constitution of the State, but with the additional finding that it also violates the Constitution of the United States, in so far as it operates as a regulation of interstate commerce. That it has that effect to the extent that it interferes with the purchase and sale of cut stone for use in public edifices, hardly admits of doubt. Both of the laws now declared unconstitutional, are flagrant instances of class legislation, against which the highest court of the State does well to set its face firmly. 1 1 in the evening between 8 and 9 o'clock. On the way, after dark, at a point "nearer New York than Poughkeepsie,” a messenger of the defendant came through the train soliciting baggage. The plaintiff gave him her check, paid him forty cents, and told him to send her trunk to No. 222 East Seventyfirst street. He gave her a paper, with some printing on it, such as she had received on similar occasions before, but which she did not read, and she never knew what they contained. It was "folded up." and she put it in her pocket without trying to read it. He did not tell her, and she did not know what its contents were. In fact, it was a receipt purporting to limit the company's liability for the trunk and contents, "for the reason of negligence or otherwise," to an amount not exceeding $100. The check was never returned to the plaintiff, but, without any explanation, the trunk was delivered by the defendant at No. 222 East Seventy-first street about noon on Tuesday, September seventeenth. It then had a yellow label of the defendant pasted upon it, but was covered with dirt, the lock was broken, the straps were hanging out, some of the compartments and all of the contents were gone, except a hat frame, from which the lace had been stripped. On the trial, the jury rendered a verdict for $900 in favor of the plaintiff, and the judgment on that verdict was affirmed by the Appellate Division, one of the justices dissenting. The case was then careleven years and a half after the cause of action, the ried up to the Court of Appeals, in which, nearly judgment appealed from has been unanimously affirmed, with costs. In the final opinion, delivered by Judge Vann, and concurred in by Parker, Haight, Martin, Landon and Cullen (all the judges who sat in the hearing), it is held, in substance: its agent through a train to solicit baggage of pas(1.) That a baggage express company that sends sengers for delivery at their homes, undertakes, upon receiving a passenger's trunk check, to present it at the depot to which the trunk is checked, demand its delivery and, if not complied with, return the check to the owner of the trunk. (2.) That if the agent, in accordance with a cus An important adjudication with reference. to the liability of express companies for the tom known to his company, surrenders the check to to the liability of express companies for the the railroad company upon the train before arriving loss of baggage was made by the New York at the depot and the contents of the trunk are Court of Appeals in the case of Hannah subsequently stolen, the baggage company is reSpringer v. Robert E. Westcott, as president of the Westcott Express Company. The facts of the case, as brought out upon the trial, were these: On Saturday, September 14, 1889, the plaintiff delivered a trunk to the New York Central and sponsible to the owner for the loss. From the time of delivery of the check the railroad company be comes the bailee of the express company. (3.) That upon the trial of an action to recover for such a loss, when it appears that at the time of receiving the plaintiff's check the agent of the express company delivered to him a folded paper containing a printed condition, limiting its liability in case of loss to $100, a charge to the jury upon that subject, in substance, that if they find from the evidence that the plaintiff knew the character of the paper, or accepted it with notice that it contained a special contract and neglected to acquaint himself with it, the limitation of $100 applies; but if they find the plaintiff did not know the paper was proffered as a contract, and received it not knowing its contents, but merely as a receipt and to be able to trace the property, then the limitation does not apply, is a sufficient statement of the defendant's rights with respect thereto. THE FEDERAL CONSTITUTION, ITS ORIGIN, [First Paper.] BY JOHN FREEMAN BAKER. "This government, the offspring of your own choice, unindeliberation; completely free in its principles; in the distribution fluenced and unawed; a topted upon full investigation and mature of its powers, uniting security with energy, and containing within itself a provision for its own amendments, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty."- Washington, in his Farewell Address. "We have called, by different names, brethren of the same prin ciple. We are all republicans, we are all federalists. If there be its republican form let them stand, undisturbed, as monuments of the safety with which error of opinion may be tolerated, where any among us who would wish to dissolve this Union or to change reason is left free to combat it."-Jefferson. The memorable words of the author of the Declaration of Independence, in his inaugural address as president of the United States, which we have quoted above, contain a sentiment of wide application. They were uttered at a time when party spirit ran high and much political hostility prevailed, consequent on a heated presidential election in which an equal number of electoral votes was cast for Burr, which threw the election of president in the house of representatives, with results so well I. Origin and adoption of the Constitution. In order to more clearly understand the character With the beginning of the new year special paper was substituted for the ancient parchment for grants and engrossments at the probate registry in Great Britain, which again goes to prove that "the world do move." We are told that Sir Francis Jeune, who authorized the innovation, after communicating with the Incorporated Law Society, estimates that the change will effect a saving of $40,000 a year. This in itself is an object, even in wealthy Great Britain, but aside from that, the use of paper will do away with the many annoying features which accompany the use of awkward and clumsy parchments. As is al-known. most always the case, however, neither the public nor the press is unanimous for the innovation. Replying to the statement that the paper to be used "would be found as durable as parchment and for all practical purposes equally tough," the Solicitor's Journal says: "We shall certainly be curious to see this wonderful material, which must be essentially world, and so effectually had the tyranny and the different from any paper ever hitherto pro-antiquity of habit established itself over the mind, duced. We venture to predict that, after a that no beginning could be made in Asia, Africa or few years' trial, the complaints of tattered en- Europe to reform the political condition of grossments and disannexed probate pieces will mankind. become so general that the new rules will have to be rescinded." We venture to predict, on the other hand, that our contemporary will find itself mistaken, and that a material has been or will be found that will answer every purpose of parchment without its many disadvantages. A curious innovation on long-established practice is about to be tried in Montana, where an act has been passed that requires the judge to charge the jury before the counsel sum up. Lawyers generally will watch this strange experiment with much interest. of our representative government, it may be interesting to take a retrospective, though brief, glance into the origin and ground work, so to speak, of the system. When the far-sighted patriots of the revolutionary period struck the blow for independence, by enunciating the immortal declaration, so deeply rooted were all the governments of the old the globe; to reason was considered treason; the slavery of fear had made men afraid to think, and the war on conscience had made cowards of all. But the revolutionary fathers drank deep of the spirit of the reformers who figured in the wars against Charles I and tyranny, and in the crisis of 1688, and made the political tenets and writings of Freedom, in all its phases, had been hunted round Sidney, Locke, Milton, Gordon and Trenchard their text and guide in developing and evolving the grand principles and ideas of liberty upon which they sought to found the government. They strove to uproot and overthrow the principle of the divine right of kings; to engraft in the hearts of mankind the inalienable right of freedom of thought and freedom of action. And readily may we conjecture |