The Albany Α' Albany Law Journal. ALBANY, APRIL 17, 1886. CURRENT TOPICS. TTENTION is called to a communication in another column by Mr. Levi on Marriage Licenses. The subject was introduced by Mr. Levi to the New York City Bar Association in January, and a committee reported in favor of a judicious license law, particularly as to minors and fraudulent marriages, but disapproved any law declaring marriages without license invalid. This is substantially what we have recommended. Mr. Levi read letters from nine New York city judges in answer to the following questions: 1. Whether an enactment of this character would be desirable, and (2) if it would, whether marriages performed contrary to and in violation of the act should be declared invalid. Presiding Justice Davis answered in the negative. He believed that true public policy requires that marriage should be made easy, and divorce next to impossible. Justice Barrett's opinion was "in favor of some 'general marriage license law' (with due record of the application therefor, and in the case of minors, the filing of the consent of parents or guardians) as a pre-requisite to the civil or religious ceremonial. I would also require a distinct ceremonial, civil or religious. All marriages entered into otherwise than the strict conformity to the act should be utterly void, and treated by the law as mere concubinage." Justice Brady thought that a judicious license law might be productive of much good, with danger of some evil; but he was decidely of the opinion that marriage without license should not be declared invalid "unless the provision is surrounded by saving clauses, that bad results may not follow." He would also approve a law providing for divorce for two years' willful desertion, and four years' abandonment. Justice Daniels did not think the production of a license should be made requisite to establish the legitimacy of children. Judge Beach approved a license law which should not provide for the invalidity of a no-license marriage, but should provide for penalties for failure to comply with the law. Judge Van Vorst approved the Pennsylvania statute, and wrote: "I see no reason why such a law should not be upheld." Judge Freedman could not "see the expediency of passing such a law at the present time. long as under existing laws a citizen or resident of this State, divorced for adultery, and forbidden to marry again, can go into a neighboring State with intent to evade the prohibition referred to, take a new partner there, and immediately come back here to live, and afterward can even compel the courts of this State to grant him a divorce in case the new partner should prove unfaithful, it is hardly worth while to make it more difficult for honest people to marry." Chief Justice McAdam, of the City Court, VOL. 33-No. 16. * * * As thought it much better to leave the law as it is. But if the act proposed was to be submitted to the Legislature he suggested that a penalty of $250 be imposed on those violating its terms, with a provision against invalidating those marriages contracted without license. "This may save innocent offspring from being declared illegitimate for want of a county clerk's certificate in the form of a license attached to the marriage ceremony preliminary to their birth." Judge Van Hoesen would make a marriage without a license utterly void; would punish a resident of this State who went outside of the State limits to evade its marriage laws, and would declare the marriage invalid; would abolish common-law marriage, and would permit a woman who had lived with a man as his wife for three years "to file a bill in equity to compel him to marry her." He would also require the officer performing the ceremony to publish it to the community. In regard to Mr. Levi's present communication we will say that in our opinion he does not censure too strongly the carelessness and indifference of clergymen in celebrating marriages of young persons. It is really high time that Congress should take hold of the subject of the Federal courts, and devise some plan to relieve the calendars from the accumulations, and relieve the judges from overwork. It is absurd to keep these courts on the footing of the early days of the republic, and make no allowance for the enormous increase of population and litigation. As to the United States Supreme Court, while we have never been in favor of the Davis bill, yet as it seems to be strongly favored in influential quarters, and is the only scheme that seems to have any organization, and stand any considerable chance of passing, we should prefer to see it adopted rather than have the present state of things continue much longer. The adoption of the plan would perhaps relieve the circuits as well as the Supreme Court, and the circuit and district judges are not only overworked, but inadequately paid. The recent sudden death of Judge Baxter is attributed to overwork, and Judges Withey and Brown are out of health. Judges from other circuits are frequently necessarily called on to assist in the southern circuit of this State. And yet the accumulation continues undecreased, and the judges are wearing themselves out for a pitiful compensation. The geographical extent of some of the western circuits is vast; Judge Baxter's circuit, for example, extended from Tennessee to Michigan, and further west it is still worse. This involves considerable waste of time and labor in travel, and is a source of great inconvenience and vexation to suitors. Congress should thoroughly revise the Federal judicial system, and make it somewhat commensurate with the demands of the present population of fifty millions, and a territory extending from ocean to ocean, and from the lakes to the Gulf. Discussions about currency and tariffs are important, no doubt, but in these, and the much less important and often discreditable bickerings about official patronage, the Federal judicial system should not be lost sight of. The Supreme Court is the most important and conservative branch of the government, and its efficiency should be maintained, and also that of the lower courts, which are more and more frequented every year. In answer to some comments of the American Law Review we protest that we are not opposed to bar associations, but we think that with rare exceptions the profession do not care for them. We wish they were popular, that their meetings were largely attended, and that their recommendations might have influence. One hundred lawyers cannot influentially represent the seventy thousand of those of the United States; twenty-five cannot speak for eleven thousand of this State, although we admit that three hundred may speak after a fashion for the five or six thousand in New York city. The American Bar Association ought to call together an attendance of five hundred; the New York State Bar Associotion ought to convene three or four hundred; and both ought to discuss great and live questions, such as codification, the jury system, and the mar law. We presume that lawyers have grown tired of travelling a long distance to hear a few dry technical essays read, however learned and useful for the lawyer's office. At the last meetings there was evinced a disposition to take hold of the important issues of the day. It may safely be predicted that the next meeting of the National Association will be the largest and most interesting ever held. It has been our aim to urge these associations to a higher usefulness, and if we have referred to them "in terms of general disparagement" it has been because we have believed that they needed the "faithful wounds of a friend," and in this we have no doubt the great majority of the profession will agree with us. The proceedings of the third annual meeting of the Kansas Bar Association are published in a pamphlet, and are interesting. The address by the president, Chief Justice Horton, is on the proposed constitutional amendment providing for an increase of the number of the Supreme Court judges to seven, and for the increase of the salary to $5,000. We have already commented on this address. Papers were also read as follows: George R. Peck, "Codification;" T. F. Garver, "Our Jury System;" L. B. Kellogg, "The Supreme Court;" W. D. Webb, Atchison, "The Integrity of the Legal Profession;" D. J. Brewer, "Libel." Judge Brewer's paper is especially novel and strong. He rates the newspapers soundly, and says "the most conspicuous examples in the press of to-day of criticism, without libel, are the legal periodicals." He suggests that on every verdict for the plaintiff in an action for libel it should be the duty of the court to add a penalty of $500 or $1,000. He recommends counsel to desist from slander in conducting cases in court; Mr. Peck is strongly in favor of codification; Mr. Garver objects to exacting unanimity in verdicts; and Mr. Webb gave the profes sion a good deal of that very useless article, good advice. Our English cousins are terribly stirred by a crazy man's throwing a petition into her majesty's curriage, and are discussing whether it was an assault. The Law Journal very wisely remarks that this depends "on the question whether the man used the packet as a missile, or whether it was only a rude mode of presenting a petition." The penalties for throwing any thing at the queen with intent to alarm her majesty are very severe, including whipping. The probability is that the poor man had been rebuffed so often in trying to present his petition in the proper quarters that he resorted to this more effectual and direct mode. We really hope they will not whip him. It would be much better to whip some of the lazy and supercilious officials whose duty it was to receive his petition. NOTES OF CASES. fried the defendant to pasture cattle on his IN Gibbs v. Coykendall, 39 Hun, 141, the plaintiff farm, and they there fell sick and died of Texan fever, which they contracted from the dejections of Texan cattle previously pastured there. The plaintiff did not know of the previous pasturing, and the defendant did not know of this danger of contracting the disease. Held, that the defendant was not liable. The court, Haight, J., said: "Counsel for the plaintiff requested the court to charge the jury 'that if the jury believed that Texan cattle had been pastured in the lot, and that Texan fever could be communicated to native cattle pasturing in the lot where Texan cattle had been pastured, that the plaintiff's cattle died of Texan fever communicated to them from the noxious emanations of the Texan cattle pastured before they went into the pasture, then the plaintiff was entitled to recover; that the defendant was bound to furnish a healthy and safe pasture so far as poisonous substances in the field were concerned.' Plaintiff's counsel also requested the court to charge that the effect of the introduction of Texan cattle was a matter of public notoriety; that it had been known since 1868, and had been the subject of public discussion; that commissioners had been appointed by the United States government to investigate it, and that the defendant was bound to know of the effect of pasturing Texan cattle where native cattle were to be pastured from the publicity that had been given to it, and that it was his duty to notify the plaintiff that Texan cattle had been pastured on the lot when the bargain for pasturing was made.' Both of these requests were refused, and the exceptions taken on such refusal present the only questions which we are called upon to determine upon this appeal. The questions thus presented are somewhat novel, and yet we think they may be prop to do more with a view of avoiding injury to cattle trespassing upon its tracks. It is impossible to conjecture why the engineer should have purposely and maliciously done this injury to the plaintiff's property. The evidence was not sufficient to sustain the conclusion reached by the jury that the en question should not have been submitted to their consideration. The most that can be said in criticising his action is that his conduct was heedless and morally wrong. Nicholson v. Erie R. Co., 41 N. Y. 525. The precise question has been passed upon in the courts of other States, and the same conclusions were reached on a state of facts similar to those before us. Maynard v. Boston and Maine R. Co., 115 Mass. 458; S. C., 15 Am. Rep. 119; Darling v. Boston and Albany R. Co., 121 Mass. 118. The jury should have been instructed to render a verdict for the defendant. Mc Canless v. C. and N. W. R. Co., 45 Wis. 365; Price v. New Jersey, R. & T. R. Co., 31 N. J. L. 230; Indianapolis P. & C. R. Co. v. Candle, 60 Ind. 112." Chic. & Alton R. Co. v. Kellam, 92 Ill. 245; S. C., 34 Am. Rep. 128, seems to the contrary. See also Cincinnati, etc., R. Co. v. Smith, 22 Ohio St., 227; S. C., 10 Am. Rep. 729, and note, 732. erly disposed of upon well recognized principles. An agister of cattle is a bailee for hire, and as such is bound to use ordinary diligence properly to care for and protect the cattle placed in his charge, and is responsible for loss occasioned by his negligence. He is bound to furnish a pasture secure against the ordinary accidents incident to the cattle to be pas-gineer acted wantonly and maliciously, and the tured. The field must be properly fenced, and be free from dangerous places or obstacles. A failure in these respects will render him liable for damages occasioned thereby. But he is not an insurer of the property, and unless he is guilty of negligence he would not be liable for injuries that may be suffered through other causes, and over which he has no control. He is bound to use ordinary care, that care which an ordinarily prudent person would exercise over his own property of like character. *** Claflin v. Meyer, 75 N. Y. 260; S. C., 31 Am. Rep. 467. Again, it is claimed that he ought to have known of the deleterious influence that such cattle would create. It is true that like trouble had been occasioned in several of the western States, and to some extent in this State, that it had been the subject of investigation by the government, and in some of the States laws had been passed prohibiting the pasturing of Texan cattle. But the liability of native cattle to contract the disease from Texan cattle was but little known or understood in this State. It was not a matter of such public notoriety among our farmers as would justify the court in charging, as a matter of law, that the defendant was bound to have known it. We are consequently of the opinion that the court did not err in refusing to charge as requested." In Herdic v. Roessler, 39 Hun, 198, it was held that a State Legislature may require notes given for a patent right to disclose that fact, and may destroy their negotiability. The court, Barker, J., said: "Any State law which impairs the right of the inventor to sell or assign his patent is forbidden by the Federal Constitution, which is, in this respect, the paramount law. Do the provisions of our statute invade any of the rights thus secured to the patentee? This question is now for the first time presented for adjudication in the courts of this State. The act does not prohibit the sale of a patent right, or of an interest therein, nor does it impose any conditions whatever to be observed by the patentee or his assignee in making such sale and transfer. The provisions of the act relate wholly to the property of the owner of the patent, which is the product or fruit of the sale. The note or other instrument containing a promise to pay money, which the purchaser of an interest in a patent right may give in payment of the right transferred to him, becomes in the hands of the pat In Boyle v. New York, etc., R. Co., 39 Hun, 171, it was held that as to cattle trespassing on a railroad train, the engineer, having sounded the whistle to alarm them, is not bound to reduce the speed of the train, and the company is not liable. The court, Barker, J., said: "The defendant was under no legal obligation to reduce the speed of the train, and there is no evidence that the speed was accelerated after the engineer knew that the horses were on the tracks. The defendant was engaged in operating its road in the usual and customary way, as it had a clear and lawful right to do. The defendant had the unqualified right to use its property in any way and manner it was pleased to do, up to the point of doing an intentional injury to the prop-entee a separate item of property, distinct and erty of another. There was no obstacle to prevent the horses escaping from the tracks to a place of safety any moment, and at any time after they were discovered by the engineer up to the instant they were struck and killed on the bridge. The usual and ordinary means adopted to drive cattle from the tracks is the noise of the train and the sounding of the whistle or bell, and such signals are generally sufficient for that purpose without checking the speed of the train. Bemis v. Conn. R. Co., 42 Vt. 381; S. C., 1 Am. Rep. 339. We are not aware of any rule of law that requires a railroad company By plainly distinguishable from the patent itself. * * exercise of such a power on the part of any State the exclusive right to the use of the discovery for the period prescribed by Congress might be destroyed, and the protection intended to be secured by the constitutional provision lost. But as soon as the patentee transfers to another all his interest in the letters-patent, the money, property or chose in action which he may receive therefor is the property of the patentee, and may be taxed like other property within the jurisdiction of the State. These views and principles were asserted in Patterson v. Kentucky, 97 U. S. 501. *The courts of Pennsylvania have held that their own statute was constitutional, and that none of its provisions interfered with the just rights of the holder of a valid patent who sells it, or any interest in it, by a fair agreement, and that the provision, that the maker may show against the holder of such note that it was obtained by fraudulent misrepresentation, did not impair any right of the patentee secured by the several acts of Congress on that subject. Haskell v. Jones, 86 Penn. St. 175; Hunter v. Hunninger, 98 id. 373; Todd v. Wick, 36 Ohio St. 370." Woolen v. Banker, 17 ALB. LAW JOUR. 72, disapproved. The contrary was held in Cranson v. Smith, 37 Mich. 309; S. C., 26 Am. Rep. 314; Helm v. First Nat. Bk., 43 Ind. 167; S. C., 13 Am. Rep. 395; Crittenden v. White, 23 Minn. 24; S. C., 23 Am. Rep. 667; Hollida v. Hunt, 70 Ill. 109; S. C., 22 Am. Rep. 63. In Matter of Gould & Co., West. Pub. Co., and Lawyers' Co-Op. Pub. Co., the Supreme Court of Connecticut have held that the State having a contract with a publishing house for the publication of volumes 49 to 54 of the reports of its Supreme Court of Errors, and provided that a copyright of each volume should be taken out in the name of the secretary of State, for the benefit of the State, the official reporter will not be compelled, by order of the court, to deliver to any applicant who offers to pay the legal fees copies of the judicial decisions of the court, when the same are desired for publication before the publication thereof in the official reports, or the advance sheets thereof. The court said: "For the information of the public the State of Connecticut publishes reports of cases argued and determined in the Supreme Court of Errors. The volume is prepared for publication by the official reporter, and contains the opinions written by the judges, together with head-notes to all cases, foot-notes to some of them, statements of facts, a table of cases, and an index to subjects, the work of the reporter. The judges and the reporter are paid by the State, and the product of their mental labor is the property of the State, and the State, as it might lawfully do, has taken to itself the copyright. The statute requires the comptroller to supervise the publication of the volumes, taking a copyright for the benefit of the State. Under this, that officer for a valuable consideration granted to Banks & Bros., who agree to print and sell the re ports at a fixed price, the protection of the copyright for a limited period. During three or four years the State, with knowledge, has acquiesced in the terms of this contract, and accepted the resulting benefits. If therefore we should now direct the reporter to furnish copies of opinions to the petitioners, that they may sell them to the public in advance for their own profit, we should in effect advise the State to a breach of contract. It is for the State to say when and in what manner it will publish these volumes, and the taking of the copyright in no sense offends the rule that judicial proceedings shall be public. The courts and their records are open to all. The reasons given by the Supreme Court of Errors for its determination in a given cause constitute no part of the record therein. The judgment stands independently of these. Moreover, these are accessible to all who desire to use them in the enforcement of their rights." VENDOR AND PURCHASER-SPECIFIC PERFORMANCE STIPULATION FOR FORMAL CONTRACT OF PURCHASE. CHANCERY DIVISION, JANUARY 12, 1886. HAWKESWORTH V. CHAFFEY.* By a written memorandum, signed by both the plaintiff and the defendant, the defendant agreed to buy, and the plaintiff to sell, certain land at a price named, "subject to a formal contract being prepared and signed by both parties as approved by their solicitors." No other contract was ever entered into by the parties, and the defendant refused to complete the purchase. Held, that there was no agreement of which specific perform. ance could be enforced against the defendant. THE head-note sufficiently states the case. Graham Hastings, Q. C., and Charles Browne, for plaintiff. W. Pearson, Q. C., and Creed, for defendant. KAY, J. I think it is the best course to go direct to the original authorities upon this subject, and not to first case I shall refer to is Fowle v. Freeman, 9 Ves. pick out dicta of individual judges in other cases. The 351. That was a case where the vendor wrote to the purchaser a letter in which he said that he would accept the purchaser's offer, provided that he would agree with the tenant as to the terms upon which he should quit, and that the vendor would come upon the spot with his attorney to draw up the agreement properly any day after that which the purchaser should appoint. The parties subsequently met, and the vendor signed a paper in which he agreed to sell to the purchaser his property for a sum named upon certain conditions, which were stated, and in the same paper the vendor subjoined a letter to his solicitor desiring him to prepare a proper agreement for him, and the purchaser to sign, and to deliver to the bearer an abstract of his title deed. It was held that the vendor was bound by the agreement, as he had bound himself so far, that the terms stated should be the terms of the bargain, and the solicitor could not introduce the least variation at his direction. I pass over the intermediate cases, and go to Chinnock v. The Marchioness of Ely, which was a case where the vendor's 54 L. T. Rep. (N. S.) 72. Hatherly in that case said: "If it is stated in so many plain and express terms (and in Chinnock v. The Marchioness of Ely that was the ground on which the case proceeded) that one of the very terms of the agreement itself was that it should not be concluded by the agent employed in the first place to enter into the negotiation, and that it should not be a concluded agreement until a solicitor intervened and drew a formal agreement; if you find that to be a term of the agreement itself, well and good; if not, the agreement stands. Both parties may desire that it shall be put into a formal shape by the solicitor, who in that case will not be able to vary the agreement either on one side or the other, but only to put into a more formal and professional shape the agreement which had been completely formed with unity of purpose and with reference to the sale and purchase by the two parties to the contract." Then there was another case, Lewis v. Brass, 37 L. T. Rep. (N. S.) 738; 3 Q. B. Div. 667, before the Court of Appeal, in which Cotton, L. J., said: "I think that the rule of construction laid down in Crossley v. Maycock is correct, and that the acceptance of an offer, accompanied by the expression of a wish for a more formal instrument, is sufficient to en solicitor merely gave a conditional acceptance of the terms proposed by the intending purchaser, subject to a draft contract being agreed to. Fowle v. Freeman was referred to by Lord Westbury in his judgment in that case, and he said: "I entirely accept the doctrine contended for by the plaintiff's counsel, and for which they cited the cases of Fowle v. Freeman, Kennedy v. Lee, 3 Mer. 441, and Thomas v. Deering, 1 Keen, 729, which establish that if there had been a final agreement, and the terms of it are evidenced in a manner to satisfy the statute of frauds, the agreement shall be binding, although the parties may have declared that the writing is to serve only as instructions for a formal agreement, or although it may be an express term that a formal agreement shall be prepared and signed by the parties." Now, if that were read by itself, without reference to the case of Fowle v. Freeman, the dictum would seem to go further than the decision in that case, but when we look at the case we see that there had been an agreement signed which complied with the statute of frauds, and there was appended to it a mere direction by the vendor to his own solicitor as to the preparation of the agreement. And further on in his judgment Lord Westbury said: "But if to a proposal or offer an assent be given sub-able a court of justice to hold that a final agreement ject to a provision as to a contract, then the stipulation as to the contract is a term of the assent, and there is no agreement independent of that stipulation." Then there is the case of Crossley v. Maycock, in which the vendors of land wrote accepting the offer of an intending purchaser, and continued "and now hand you two copies of conditions of sale," and inclosed a formal agreement with conditions of a special character. The late master of the rolls said: "The principle which governs these cases is plain. If there is a simple acceptance of an offer to purchase, accompanied by a statement that the acceptor desires that the arrangement should be put into some more for mal terms, the mere reference to such a proposal will not prevent the court from enforcing the final agreement so arrived at. But if the agreement is made subject to certain conditions then specified, or to be specified by the party making it, or by his solicitors, then until those conditions are accepted there is no final agreement such as the court will enforce." And in that case he held that the acceptance was only conditional, and that there was no agreement which the court would enforce. Then comes a case which I can scarcely distinguish from the present one. That is Winn v. Bull. It is true that the case is one as to a lease, but the decision does not rest upon that, though the late master of the rolls said in his judgment that the case of a lease is stronger than that of a purchase. There the defendant agreed with the plaintiff to take a lease of a house, "subject to the preparation and approval of a formal contract," and it was held that there was no binding contract, specific performance of which could be enforced against the defendant. The master of the rolls referred to Chinnock v. The Marchioness of Ely, and said: "It comes therefore to this, that when you have a proposal or agreement made in writing, expressed to be subject to a formal contract being prepared, it means what it says; it is subject to and is dependent upon a formal contract being prepared." Then there is the further case of Rossiter v. Miller in the House of Lords, which was a decision that a certain correspondence amounted to an agreement to purchase, though one of the printed conditions of the sale was that the purchaser would be required to sign a contract embodying the foregoing conditions, * * * and for the completion of the purchase at the expiration of not exceeding two months from the date of the contract," and which contract was never sigued by the purchaser. Lord 66 has been arrived at." That was the case of a tender by a builder for certain works, and the letter of acceptance by the plaintiff which was relied was as follows: "I am instructed by my client, Mr. John Lewis, to accept your tender of 4,1931. for works as above referred to. The contract will be prepared by Messrs. Underwood and Coleman, Mr. Lewis' solicitors, and I have no doubt it will be ready for signature in the course of a few days." That case is, in my opinion, as like Foule v. Freeman as it is possible for any two cases to be. There is another recent case, May v. Thompson, 47 L. T. Rep. (N. S.) 295; 20 Ch. Div. 705, in which this subject is discussed, but I need not go into it at length, as it is not materially different from the cases that I have already referred to. Then reference has been made to Bonnewell v. Jenkins, in which the vendor's agents wrote saying that they were instructed to accept a purchaser's offer for a leasehold property, and that they had "asked Mr. Jenkins' solicitor to prepare contract," and it was held that a complete contract was made, notwithstanding the reference to a future contract. That then being the state of the authorities, the facts here are these: [His lordship then stated the facts, observing that the document which the parties had signed was on the face of it very informal. He continued:] It is clear from this document that it was intended that something more should be done than putting the terms of the memorandum into formal words, as one of the terms was that the contract was to be approved by the solicitors of both parties. That is different from the case where the solicitor of one of the parties is to put into formal terms what has been agreed upon between them. The approval of the solicitors of both parties was required, which shows that there were to be matters of negotiation between the solicitors, and only subject to a formal contract being approved of by them and signed by both parties was there to be any contract at all. Then looking at the correspondence which took place between the solicitors of the parties when the vendor's solicitor sent a draft contract to the purchaser's solicitor, and he retained it on account of the purchase-money being more than the purchaser said he intended to give, the vendor's solicitor ultimately acceding to the request that the vendor should take a less sum, what does this mean? Clearly it appears to me that it must mean that the vendor's solicitor was of opinion that no definite contract as to the price had been arrived at, but that what the vendor offered was |