The Albany Law Journal.

ALBANY, FEBRUARY 1, 1890.

CURRENT TOPICS.

nature outside his home. Adopt Mr. Phelps' recommendation, and such a man is encouraged to keep on in his evil course in matrimony, or being freed from it, to satisfy his lust outside matrimony. In those instances, common, according to Mr. Phelps, where the man wants a divorce in order to marry another, his recommendation would make the wife's situation even more humiliating and intoler

N a recent article in the Forum Mr. E. J. Phelps able. In such cases she herself might often in her

reaches the conclusion the best despair and disgust be driven to

of the evils of divorce is the prohibition of a second marriage during the life of the parties. He says: The question is not whether divorce laws should exist, but whether they shall permit the divorced parties to re-marry. Here, it, is believed, will be found the mainspring of the whole mischief. If that right were taken away, nine-tenths, perhaps ninety-nine-hundredths, of the divorce cases that now crowd the calendars of the courts and pollute the columns of the newspapers would at once disappear. In the vast majority of instances the desire on the part of one or the other, or both, to re-marry is the foundation of the whole proceeding." To the argument that if divorced persons are compelled to remain single they are liable to fall into immorality, he answers, that "with regard to American women, it would surely be a cruel injustice to say that an unmarried life has any such tendency. All experience is directly to the contrary," and that at all events with regard to men as well as women, "this consideration is far more than out-re-marriage of the guilty divorced party. In this weighed by the enormous inducements to immorality that the present facilities for divorce hold out to the married. It is notorious that the desire to be rid of a relation that has ceased to be pleasant, leads many a man, and not a few women, to conduct either intended to bring about that result or recklessly entered upon in the feeling that if it takes place it will not be unwelcome." It seems to us that the simpler way to avoid the evils of divorces would be not to grant them. That is to say, not to grant them for any of the numerous trifling and insufficient causes for which they are now granted in most jurisdictions. But where divorce is granted for the one cause which all agree is sufficient, it seems to us far safer to allow both parties to remarry. Mr. Phelps' assertion about American women is doubtless well founded, but for every woman freed from the bond of marriage there is a man let loose to prowl upon the community. According to Mr. Phelps' argument, it would be perfectly safe to allow the innocent divorced wife to re-marry; indeed it would be cruel to deny her that right for no fault of her own, and the innocent women form the vast majority. As to the men, it is simply a question of the best means of suppressing immorality. Mr. Phelps seems to think that it would be better for society to deny to adulterous men the privilege of forming a second legitimate association. It does To us it seems that this argument would simply encourage adultery. If a marriage has ceased to be agreeable to a man, he will generally seek to gratify the strongest passion of his VOL. 41 No. 5

see no good in keeping together two persons, one of whom is unfaithful to the other; and having parted them, we see no good in compelling them to stand in continual temptation and debarred from a possible new life of decency. To forbid re-marriage to the innocent party is tyranny; to forbid it to the guilty party is like prohibiting one convicted of stealing bread from ever buying it again. Society will find its safety in this matter in prevention rather than in punishment, and prevention exists in reducing the grounds of divorce to one. As to the position of the Church in this matter, we have no respect for it. In the first place, the Church is not consistent, for it does not agree on the propriety of divorce. In the second place, it is absurd in its position about marriage, when a few ecclesiastics in the House of Lords are able effectually to deny to Englishmen the right of marriage with a deceased wife's sister. In the third place, Scripture itself seems uncertain and inconsistent in respect to the

not seem so to us.

evident predicament men must try to get along without the candle-light of the priests, and it is no great loss, for they have always been the most fool1sh advisers in worldly matters. Some good would be done if clergymen would perform their statutory duties. We venture to say that there are not six in this city, for example, who do it in regard to registration of marriages. More care might well be exercised by most of them to ascertain whether it is lawful or discreet for proposing parties to marry. A greater degree of vigilance on the part of the police authorities in suppressing notorious bawdy-houses would not be amiss. And declaring adultery a crime would at least show the spirit of the community in this matter. To return to our text-we prefer the views of Mr. Snyder in his work entitled, "The Geography of Divorce," when he advocates the privilege of free re-marriage to divorced parties.

When the State Bar Association got over Mr. Ingersoll and the "banquet" there were only forty or fifty left to attend to business next day. Several matters of interest were brought up. Mr. Matthew Hale was elected president, the new (and sensible) rule of the association prohibiting re-elections, but Judge Arnoux was made permanent chairman of the Centenary Celebration Committee and retained on all the other committees to which he belonged ex-officio. No better choice than Mr. Hale could have been made. Mr. Fiero's paper on the relief of the Supreme Court was interesting, and his recommendation to convene a constitutional commission

members, almost as many as there were ten years ago.

We had concluded to say nothing about a very unpleasant incident which occurred at the general exercises of the association on Tuesday, but, there seems to be such a general misapprehension, and the matter has been so commented on by the newspapers, that unsolicited we venture to express our opinion. We refer to the loud and sharp rebuke administered by Mr. Ingersoll to two gentlemen for whispering on the stage behind him, while he was shouting in front. We do not believe the whisper

stand how it should have made Mr. Ingersoll nervous, he being not wholly unaccustomed to addressing tumultuous and unsympathizing audiences. At all events, he could easily have produced order by a request in a low voice, or even by stopping and saying nothing. Instead, he bluntly and brusquely called the persons to order, without observing even the forms of a courteous request. The audience rewarded him for this boorish action by twice as much applause as they bestowed for any thought he uttered. That no discourtesy was intended is evident from the fact that the persons in question were consulting, at the president's request, concerning a motion of thanks for the speaker's address. The incident afforded us a painful commentary on Mr. | Ingersoll's striking utterance, a few minutes earlier, that the State should prescribe no punishment that a gentleman could not inflict. We learn that Mr. Ingersoll, in private, expressed his regret for his loss of temper, but something more than that is due to himself, and to the gentlemen who were the sufferers from his want of consideration.

is probably as good as any thing that could be suggested, but we do not agree with him that we need any more Supreme Court judges if the force of the Court of Appeals should be permanently increased. A resolution was adopted, without any discussion or reflection, approving the joint resolution now pending in the Legislature for the permanent addition of eight judges to the Court of Appeals. We shall comment on this bill when we shall have examined it. Mr. Tracy Becker introduced a resolution recommending action toward a uniform system of marriage and divorce, which was adopted. The prize of $250 for the best essay on the "Rights of Minority Stockholders" was awarded to Mr. Ed-ing disturbed the audience, and we cannot underward Dexter Hawkins. A pretty lively debate arose on Mr. Stedman's resolution recommending the adoption of the Civil Code and the Code of Evidence. The association several years ago committed itself to codification, but now it was called upon to commit itself to Mr. Field's Codes. Mr. Moak and Mr. J. Bleecker Miller, the latter holding a power of attorney from the City Bar Association, as secretary, to oppose Mr. Field and all his works, were the principal speakers against the resolution. Mr. Moak called the Code a "chestnut" and Mr. Field its grandfather, which was a little mixed rhetorically. He admitted that the resolution would pass, but he too modestly conceded that it would have no weight. Mr. J. Bleecker Miller waved the wand of the City Bar Association, and commanded the meeting to desist, and told a harrowing tale of his personal experience in searching a title in one of the north-western Territories that has a similar Code, and warned the meeting not to do this thing. But in vain. In spite of Mr. Moak's customary suave and seductive appeals, and Mr. J. Bleecker Miller's gray-beard experience and Cassandra prophecies, the meeting passed the resolution loudly on a call for the previous question, nem. con., so far as we heard, save Mr. J. Bleecker Miller, who shook the fragment of his blade and went down with colors flying. Mr. J. Bleecker Miller has certain merits, but persuasive advocacy is not one of them, and we magnanimously advise the City Bar Association that if they expect to suppress this revolutionary young man Field and his chaotic measures they would better bottle up Mr. J. Bleecker Miller. The result on this point shows the change of professional opinion about the Code. A few years ago such a resolution would not have stood a ghost of a chance. Even its proposer was an anti-codifier until recently. Mr. Field stated that "a law company advertises that it has 225,000 decisions of the courts, arranged in packets, and it will sell any lawyer authorities on any side of any subject, and on both sides." Perhaps this had some influence in inducing the meeting to ask for the adoption of the Codes, which are a simple declaration of the law as it now is fixed by judicial decisions. Mr. Egbert Whitaker illustrated the absurdity of the old rules of pleading by an amusing account of Van Leuven v. Lyke, 1 N. Y. 515. The treasurer's report proved satisfactory, as usual — about $5,500 in the coffers, and 495 paying

There are two points at which the State Library might be made more useful. First, it should be kept open in the evening, at least during the sittings of the Legislature and the Court of Appeals. Many lawyers and many legislators desire to consult it at these times. Except during the sittings of the Legislature, it is now open only until five o'clock in the afternoon, and during these sittings the same is true, except that on Tuesday, Wednesday and Thursday it is open until six o'clock in the afternoon. This renders it practically useless to the Legislature. It would be a great convenience to the lawyers attending court to have it open evenings. The expense would be trifling. In the second place, it would be well to have the library so lighted that men past middle age can see to find

now.

books and read and write at all hours. It is not so The alcoves are so dark at three o'clock of a winter day that it is very difficult to find a book, and the lights are not turned on until four o'clock. Even then the lights in the reading-rooms are so few and high that they are of little more use than the stars. A little care and expense would correct this matter. To many of the Legislature bricks are more important than books, but there are lawyers enough there to have these deficiencies supplied. It

is well to have the Capitol completed, but let it first be made useful and convenient so far as it has gone.

The anxiety of the newspapers about the "degradation of the stage" is extremely amusing. So would be expostulations by the pot to the kettle in regard to cleanliness.

NOTES OF CASES.

The carriage was completed according to the contract or order, and the defendant refused to accept it. The action was for the value of the carriage, of non-acceptance. In that case Mr. Justice Cassoand for storing it for the defendant, on the ground day reviewed very fully the authorities on the ques

tion, which were conceded to be somewhat in conflict. It was held that it was not a sale of the carriage, but a contract for work and labor, and that therefore the verbal contract was not within the $50 statute of frauds. The complaint in this

[N Central Lith, and Eng. Co. v. Moore, Supreme action was not for the price of the goods, as sold to

IN Court of Wisconsin, December 3, 1999, u urit

the defendant, but the ground of the action is that 'the defendant has never ordered the same shipped, nor taken or paid for the same, or any part thereof;' in effect, that the defendant had refused to accept the same. The case therefore falls directly within the authorities above cited. * *k * The work was subject to the order or acceptance of the defendant, and he ought to have accepted it, and paid for it, before the fire, and it was merely left with the plaintiff by the defendant's default and at his risk. The plaintiff merely held the work as bailee, and subject to the lien of the consideration to be paid."

ten contract for the manufacture of engravings and lithographs for theatrical purposes, and suited to the special use only of the party for whom they are manufactured, is not governed by the law of sales, as it is a contract for "work and labor." The court said: "There is another principle of liability in such a case, and that is that the defendant was liable for not accepting and taking away the goods manufactured after the time he was required by the contracts to do so, as in Ganson v. Madigan, 15 Wis. 144. The defendant had ordered a reaping machine of the manufacturer of a certain kind. The machine was what the defendant had ordered, and the plaintiff In Coskery v. Nagle, Supreme Court of Georgia, set it apart for the defendant, so as to be capable of November 18, 1889, at a depot, plaintiff was diidentification. It was held that the plaintiff could rected to an omnibus to carry him to defendant's have sold the machine to satisfy his lien upon it, hotel, by a porter who cried out the name of the and recover the balance of the purchase-price, or hotel and wore it on his cap. Plaintiff delivered could have held it subject to the defendant's order, the check for his baggage to the porter, who said and recover the whole price. In Mixer v. Howarth, 21 that it would come right along in another wagon. Pick. 207, where it is an agreement with a work- In plaintiff's presence the porter then gave the check man to put materials together and construct an ar- to another man, who, plaintiff testified, he“ did not ticle for the employer at an agreed price, it was know was any other than an attaché of the hotel." held that it was not a sale until actual delivery and Plaintiff recognized the porter as the same one who acceptance, and the remedy was for not accepting on a former occasion had performed similar services it on the agreement. To the same effect are for him, but did not know that the wagon which Spencer v. Cone, 1 Metc. 283; Goddard v. Binney, brought the baggage was run by another person 115 Mass. 450. In Atkinson v. Bell, 8 Barn. & C. than the hotel proprietor, and when he paid his 277, the defendant ordered certain frames, with al- fare on the former occasion, supposed it was to the terations made on them, of the patentees, and when hotel. The omnibus and wagon were the usual ready for delivery refused to accept them. It was mode of conveyance from the depot to the hotel by held that the plaintiff might recover for his not ac- agreement of the owner thereof with the hotel procepting them. To the same effect is Lee v. Griffin, prietor, and one of the omnibuses bore the hotel's 1 Best & S. 272, where a person ordered a set of ar- name. The baggage was lost after it had been detificial or false teeth made to fit his mouth. It was livered by the railroad company to the holder of held that the plaintiff might have recovered from the check. Held, that the hotel proprietor was liathe defendant for his not accepting them, if the ble therefor. The court said: "An English case contract had been in writing; and Mead v. Case, 33 which seems in point is the following (Bather v. Barb. 202, was to the same effect, where blocks of Day, 8 Law T. [N. S.] 205 [1863]): The plaintiff marble were directed to be finished, polished and arrived at the defendant's inn with a mare and gig, lettered with inscriptions as a monument. But which were taken to a stable yard some distance finally, on this general question, this court recently from the inn, where it was customary to take horses decided that a transaction or contract not by any and vehicles of guests. One Rowles, who acted as means so clearly not so, was not a sale, but for work hostler for the guests, kept this stable, and was an and labor. In Meincke v. Falk, 55 Wis. 427, the ar- independent livery stable keeper, doing business ticle to be manufactured was a family carriage, with the public generally, besides the guests of the specially ordered, of a particular model. The plain- iun. He received no wages from the inn, and tiff's skill, labor and workmanship were the special did not reside there. While the plaintiff was inducement in giving the order, and without such temporarily away from the inn, but while the order the plaintiff would not have manufactured it, horse was still in the stable, the stable-keeper negand it was not kept as a part of his general stock.ligently injured the horse. The plaintiff sued the