The Albany Law Journal.

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ALBANY, JULY 7, 1883.

CURRENT TOPICS.

OTHING is sacred from attack in the nineteenth

century. Even the Statute of Frauds is threatened. A bill to amend it has passed to a second reading in the House of Commons, and seems likely to become a law. The provisions are substantially as follows: Where, by the Statute of Frauds or any statutory amendment thereof "any contract ought to be in writing, or signed or sealed by any person," any party to an action "against whom the absence of such writing or signature is relied on " may "interrogate in writing or by word of mouth any other party to such action as to such contract, and require him to answer upon oath whether the same was made, and what were the terms thereof." If it appears, "either by such answer or otherwise by admission of such party," that "there was a contract otherwise sufficient in law," such contract so stated or admitted is to be "deemed a good contract, and capable of being enforced in law between the said parties, notwithstanding the same was not in writing, or signed or sealed, as required by law"- with a saving for the right to refuse to answer criminating questions. Clause 2 provides for answers by officers of corporations, trustees in bankruptcy, and liquidators of companies; and clause 3 provides that "in this act the word 'action' includes any proceeding in bankruptcy, or in the liquidation of any company, or in the administration of any estate." The Law Times calls this a "bold little measure,” and a 66 remarkably revolutionary project," and observes: "The preambie to the bill sets forth that it is desirable to prevent justice being defeated by technicalities,' but it is, perhaps, even more important to prevent injustice from being accomplished by means of perjury. The Statute of Frauds was, as the preamble thereto recites, enacted for prevention of many fraudulent practices, which are commonly endeavored to be upheld by perjury and subornation;' and we think the curious little bill before us, if passed into law, would result in increasing perjuries to an alarming VOL. 28 No. 1.

extent, and dangerously confusing and disturbing the law of contract."

In the summing-up in Regina v. Foote, which has been so much criticised, Lord Coleridge observed: "The moment juries or judges go beyond their functions, and take upon themselves to lay down the law or find the facts, not according to the law as it is, but according to the law as they think it ought to be, then the certainty of the law is at an end; there is nothing to rely upon; we are left to the infinite variety and uncertainty of human opinion; to caprice which may at any moment influence the best of us; to feelings and prejudices, perhaps excellent in themselves, but which may distort or disturb our judgment, and distract our minds from the single simple operation of ascertaining whether the facts proved bring the case within the law as we are bound to take it. And further: "There is a case reported by Lord Chief Baron Gilbert, Rex v. Bedford, from which it appears that a man was actually convicted of a seditious libel for discussing gravely and civilly, and as the report of the case in Bacon's 'Abridgment,' tit, 'Libel,' says, 'without any reflection whatever upon any part of the then existing government,' the respective advantages of an hereditary or elective monarchy. I need hardly say that if such a case arose now no judge would follow that authority, no jury would convict, the whole proceeding would be denounced, and rightly de nounced, as altogether monstrous." On which the Law Times remarks: "If a judge did not follow the case referred to, or any other case not overruled by a higher court or the Legislature, would he not, in the words of the previous passage, 'take upon himself to lay down the law, not according to the law as it is, but according to the law as he thinks it ought to be?' Is it open to the judge to denounce any authority as monstrous?' and apart from the question of the certainty of the law, is it not better that a law which the judge believes to be a bad law should be administered in all its 'monstrosity,' so that the Legislature may know what the law is, rather than that the judge should attempt imperfectly to amend the law on the bench? It is one thing to recognise the historical fact that judges have, from time to time, yielded to the temptation of changing or developing' the law, as the

euphemism is, and quite another to set up such judicial weakness as a virtue to be imitated." | Probably his Lordship's observations on judge-made law do not go quite on all fours. Indeed, the example he gives of "monstrous" law is hardly more "monstrous" than the doctrine of "the greater the truth, the greater the libel," but the administration of that abominable doctrine led to an amelioration of it. The best way of reforming bad laws is to render them abhorrent by enforcement, and thus compel corrective legislation.

After all, the deceased wife's sister's bill has been defeated on the third reading in the House of Lords, by a majority of five. The bigoted and prurient priests who have for two generations defeated the will of the Commons of England in this matter seem to have better staying powers than their opponents. A good dinner, or the theatre, or something less legitimate may draw away the members of the royal family and the other members of the upper house who approve the bill, from attendance in the house, but the good churchman will starve and watch to carry his narrow views, and make his opponents uncomfortable. It remains to be seen how much longer these foolish creatures will be suffered to have their ridiculous way. We are glad we do not live in a country where a man who wears a cocked hat and a black silk apron can stop our marrying our deceased wife's sister. There is no such thing as reasoning with a man who imagines himself directly descended from the Apostles, and even ridicule is wasted on one who arrays himself like a servant in livery. Evidently what the House of Lords needs is a few more hard-headed lawyers.

The last week was one of surprises. Not only was the defeat of the deceased wife's sister's bill announced, but the Richmond editors did actually have a fight. In spite of Mr. Elam's advantage in having the larger target to shoot at, Mr. Beirne escaped, and shot his antagonist through the thigh. Elam will need the services of the surgical readjusters. Beirne has now vindicated his memory on the subject of the "caps," and it is recorded that when he took leave of his suffering antagonist he politely raised his hat. Both editors have been well advertised in their own State and well laughed at outside of it. We really hope that Elam will be spared, but if he dies, we hope the polite Beirne may be hanged. Of course, both editors are now disqualified from holding office.

An exceedingly dreadful charge has been made by a newspaper writer against a judge- but no particular judge of the Mississippi Supreme Court, to-wit: that he had applied to some railroad official for a pass for himself and family to come north on a visit. The three eminent gentlemen, to one or another of whom this charge might apply, have deemed it worth while severally to deny the same in writing. We confess we were rather glad to see the charge made, for it seemed to imply that the Mississippi judges are not in the habit of carrying a

pocket book full of railway passes. We should be glad to see these eminent gentlemen here at the next meeting of our State Bar Association, and to present them to Lord Chief Justice Coleridge, and we hope that the railroad officials will take the hint, and send them what they are doubtless to modest to ask for, and without which it is not easy for judges with large families and small salaries to take such a long and expensive journey. The advice of the "old man "in Longfellow's ballad, "try not the pass ❞— is understood to have no application to this juncture.

At last we are "challenged." Under the heading of "Unjust Criticisms," the Texas Law Review says: "We have, up to this time, refrained from noticing the unjust criticisms of the Central Law Journal upon our Court of Appeals in regard to the verdict in the Wooldridge case, holding that a verdict reading 'fist' degree is insufficient, but as the well known ALBANY LAW JOURNAL has given an expression of its view, we wish to ask, has either of the editors, or correspondents, examined the authorities cited in the opinion to ascertain whether it is well sustained or not? If they had, they would exhibit less of their painful ignorance in this particular. For instance, the learned editor of the ALBANY LAW JOURNAL says: 'We guess if the verdict had been written 'fussed' the court would not have disturbed it.' No doubt, if there was evidence of such ignorance of spelling on the part of the jury, as of law on the part of these periodicals, the court would consider it; but does it not appear to the ALBANY LAW JOURNAL that the principle of idem sonans would there apply? And again, the ALBANY LAW JOURNAL says, in Indiana 'Erwin' is held good for Irvin.' To this we have only to say, that under our statutes and the laws governing in criminal cases, such a holding would have been a perversion of the plainest principles of the law. We suggest to the learned editors that they carefully read over the opinion and examine the authorities cited before they show any more of their unpardonable ignorance. The evident malice with which the Chicago Law Journal interlopes (sic) a slur against our Court of Appeals regarding the verdict in the Wooldridge case is, to say the least, unprofessional and non-journalistic. Should our Northern contemporaries attack the opinion by showing that it is not sustained by ample and able authorities, we are willing to cross swords with them. But their unprofessional slurs will not be noticed further. Will any of them accept our challenge?" After what we have lately said about Messrs. Beirne and Elam we cannot consistently accept a challenge, nor cross swords" even at the safe distance of

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Galveston from Albany. But we may be allowed to say that we are not in the habit of criticising opinions without examining the authorities cited. In respect to the opinion in question we think we have shown that it is not only at war with principle, and contrary to the weight of opinion elsewhere, but inconsistent with some decisions of the very court which pronounces it. But how warlike these southern editors are! When they mean only quills and ink, they talk of "swords" and "challenges."