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food and wine, they made a bold attack on the ex refutation in the Meyer case. Thus, it was quesperts for the prosecution, tried to get up a personal tioned whether there could be “tolerance” to antialtercation between them and their own experts, and mony; whether the doses found in the tea, water, to thus weaken the scientific value of the evidence. etc., if partaken would not have produced immediThey then made all sorts of insinuations as to how ate death; whether when elimination began it would the poison could have gotten into the specimens, not proceed regularly until none remained in the and practically charged nearly every witness for the system. Indeed, one of the medical witnesses for prosecution with collusion in a scheme to defame Vosburgh went into an elaborate arithmetical calcuthe Rev. Mr. Vosburgh.

lation regarding the elimination and the amount of But in no one line of procedure were the prison- antimony that might exist in Mrs. Vosburgh's body. er's counsel more effective than in that of becloud The record of the chemical analysis in the Meyer ing the minds and exhausting the jury by the mass case has just been published in the journal of the of medical testimony they forced into the case. American Chemical Society, being a paper read by Physician after physician was questioned and cross me at the May meeting of the New York section, questioned by each side regarding the woman's Very considerable quantities of antimony and arsymptoms, condition, recovery, etc., as well as on senic were found in the alimentary canal. the general pathology and symptomology of chronic timouy extracted and weighed would in the form antimonial poisoning and "rheumatoid gout,” of tartar emetic bave weighed 6.64 grains. The which the defense claimed was the cause of Mrs. arsenic extracted and weighed, if calculated to arVosburgh's illness.

senious oxide, would have weighed 5.02 grains. Only two of the many physicians who appeared While drawing conclusions of a scientific characas witnesses had ever of their own experience had ter from the testimony presented in murder trials an opportunity to observe cases of chronic anti- bas grave disadvantages, many of the most vital monial poisoning.

facts to the forming of opinions being wholly wantThe rarity of chronic antimonial poisoning was ing, yet we feel warranted in the belief from the reequally revealed in the Meyer case, wbere no physi-sults of the analysis of Brandt's kidneys that at or cian could be found who could testify from his own about the time of his death only small quantities of observations of the symptoms developed in persons antimony would have been found in the urine, suffering from the effects of antimony partaken dur- probably a greater amount of arsenic. This would ing a considerable period.

show that the elimination was defective, notwithThe records of about sixty cases were collected standing the large quantity of antimony existing in by the writer, at the direction of the district attor

the body. ney in the Vosburgh case, and a resumé of symp Such a state of things would fully accord with toms compiled therefrom. While the defense tried | what authors on these topics state in regard to exto belittle this testimony, the disclosure on the part periments on elimination of poison, and with the of the other physicians of lack of experience in records of actual cases of poisoning. chronic cases made his deductions fully as compe The finding of arsenic along with antimony in tent as theirs. It was necessary to bring the symp Brandt's body introduces another element that adds tomology of chronic antimonial poisoning before to the unique character of the case. Diligent the jury in some way, and this seemed about the search at the time of the trial and since has failed only way.

to bring to light a case where these two poisons Very little can be said concerniug the lines along were used as toxic agents. Arsenic has been dewhich Meyer was defended. The opening address tected where antimony was the cause of death, but by counsel in the first trial substantially admitted a it existed as an impurity in the antimony. Not so conspiracy, of wbich Brandt was a party; they de- in this case. The testimony of Muller is borne out nied, however, that the body exhumed was that of by the distribution of the two poisons as shown by either Brandt or Baum, and at any rate that any the analysis of the various organs. toxicologist could ascertain that the antimony and

Brandt, like Mrs. Vosburgh, was slow to die. arsevic found had not been introduced after death. Having been reduced almost to the point of death, At the first trial only a few witnesses were exam

the coup de grace came through the administration ined regarding these issues. A more extended case of arsenic. Taylor, in a monograph on poisoning was developed along the same lines at the second | by tartarized antimony, cites similar cases, where trial. Meyer was not asked to take the stand, for the deceptive symptoms produced by tartar emetics obvious reasons.

paved the way for a demise effected through a secMany of the arguments brought forward by the ond poison to remain unsuspected by the attending defense in the Vosburgh trial meet with complete physicians.

SPECIAL LAWS. —

EXEMPTION FROM GARNISIIMENT.

Abstracts of Receut Decisions. INSURANCE-INSURABLE INTEREST-ESTOPPEL.

Where plaintiff, who sold land on which was a ATTORNEY— AUTHORITY.— Where the record fails building covered by an insurance policy, took back to show that an attorney had no express authority

a judgment for part of the price, and under the adto enter a consent decree, by which a definite fee

vice of the secretary of the insurance company, who was given him, the objection that an attorney can

knew the circumstances, delivered the deed to the not have implied authority to consent to such de- purchaser without transferring the policy, and paid cree cannot be urged. (Schmidt v. Oregon Gold

the assessments under the policy for three years, up Mining Co. [Oreg. 1, 40 Pac. Rep. 1014,)

to the time of a loss, the company is estopped from

asserting that the policy was void for want of an CHAMPERTY. – Upon the trial of a suit for in- insurance interest in plaintiff. (Light v. Countryfringement of a patent, it appeared that the suit was

men's Mutual Fire Ins. Co. of Lebanon County brought by an assignee, to whom the patent had | [Penn.), 32 Atl. Rep. 439.) been assigned, fourteen years after its issue, and

MUNICIPAL CORPORATIONS-CONTROL OF STREETS when it was known to have been infringed, under an agreement that such assignee should prosecute

---CITANGE OF GRADE.:-A city has the supreme consuits against infringers, at his own expense, and di- trol over the streets, pavements, etc., and detervide the recoveries with the patentee: Tield, that mines, in the exercise of its functions, everything such agreement constituted champerty, and that the in connection with their grading, paving, and conbill should be dismissed. (Kieper v. Miller {l'. s. dition according to its best judgment; and where C. C., Penn.], 68 Fed. Rep. 627.)

it chooses to grade its streets so as to leave only a

two inch depth of gutter, instead of six, it may do CONSTITUTIONAL LAW

An act by which the general assembly attempts to exempt (McHale v. Easton & B. Transit Co. [Penn.), 32

so without being subject to any control of the courts. counties from the operation of general laws on ac

Atl. Rep. 461.) count of trivial differences in population is not of uniform operation throughout the State. (State v.

RECEIVERS Bargus (Ohio), 41 N. E. Rep. 245.)

Though a receiver appointed by a court of equity is

by statute exempt from garnishment in his own CORPORATIONS RECEIVER'S CERTIFICATES. A

State the federal courts of another State will not recourt of equity has no power, without the consent

fuse to entertain garnishment against him on a petiof all lien creditors to authorize the receiver of an

tion properly presented by citizens within the insolvent private corporation, whose business is not

jurisdiction, when no objection to the jurisdiction affected with any public interest, to issue certificates which will be a paramount lien upon its property, New York v. Chattanooga, R. & C. R. Co. U. S. C.

on other grounds exists. (Central Trust Co. of for the purpose of carrying on its business, unless it

C. [Tenn.), 68 Fed. Rep. 685.) be necessary to do so in order to preserve the

TRADE-MARK

COMPETITION -SIMOLAexistence of the property or franchise. (Fidelity

When a defendant has been enInsurance, Trust & Safe Deposit Co. v. Roanoke Iron Co., U. S. C. C. (Va.], 68 Fed. Rep. 623.)

joined from using a label almost identical with that

of complainant, he will also be enjoined from reDECEIT

CORPORATE sorting to another label, differing in detail from STOCK.—Where one, by fraudulent representations, complainant’s, but so like it in general appearance induces another to purchase corporate stock as an as to deceive consumers, if not trade experts. investment, the loss which the purchaser suffers by (Cuervo v. Owl Cigar Co., U. S. C. C. [N. 1.], 68 retaining the stock under the belief that the repre. Fed. Rep. 541. sentations are true is chargeable against the wrongdoer, such loss being presumptively within his contemplation at the time of committing the fraud.

New Books and New Editions. (Dully v. Smith, [N. J.], 32 Atl. Rep. 371.) EMINENT DOMAIN— CONSTRUCTION OF RAILROAD.

Law of Naturalization in the United States of – In an action against a railroad company for dam- America and of other countries. By Prentiss Webster, ages from the construction of its road across town author of “The Law of Citizenship in the Cnited lots, the jarring, smoke, noise and dust of passing States." trains incident to the ordinary operations of the The value of such a work, not alone in its appliroad and the proximity of the road to buildings on

cation to this country, but also as a comparison of the property, are properly considered by the jury the laws of different States which can be used as a in estimating the damages. (Comstock v. Clear- guide in framing new and better laws, cannot be field & M. Ry. Co. (Pa.], 32 Alt. Rep. 431.)

over-estimated. Our form of government tends to

UNFAIR

TION OF LABELS.

FRAUDULENT

SALE

OT

e and new

give the utmost freedom to those who desire to live when we review the fifth. No work on this subject here and to become a part of the State, and the best has received such general favor from the practising developement of the country demands that not only lawyer, and it is generally recognized as an authorshould immigration be properly restricted, but that ity on this subject. The present work has none of naturalization should also be kept within well-de. the appearance of an earlier edition which has fined and proper limitations. Moreover the benefits simply been added to, but is a complete of naturalization in this country to a person who is work and one which will again receive the favorable temporarily abroad is recognized and commented approbation of the bar. It is published by Little, upon, and the value of this work is proportionate Brown & Co., Boston, Mass. to all these considerations. The book is not divided into chapters, but begins with a general discussion The Law Relating to Electricity. By Simon G. on the importance of naturalization and then gives Crosswell, formerly of the law department of the definitions with citations showing a reference for Thomson-Houston Electric Co. and the General each. Quite a little attention is given to the dis- Electric Co., and author of a treatise relating to tinction between aliens who may and who may not executors and administrators, and “A Collection become citizens. The statutes of the different of Patent Cases." nations on this subject are then given in order and As is most properly stated by the author, the the application of the American statutes to each rapid development and application of electricity to follows. All the kindred subjects are grouped with various commercial uses has produced a correspondgood taste and propriety through the work, which ing growth of statutes and adjudged cases until also contains parts of the constitutions of different there has been formed a considerable branch of law Republics and States on this subject, and con devoted wholly to those subjects. This idea is cludes with forms for use under our statutes. The well known, as is apparent from the publication of general index is comprehensive of the entire work a series of reports devoted wholly to the subject of and is carefully arranged and prepared, and the electricity. The increased application of electricity whole book is much more practical and exhaustive to commercial purposes has been more rapid than than any former work. Published by Little, the practical development of laws on this subject, Brown & Co., Boston, Mass.

and we have noted with great interest the eagerness

of members of the bar to obtain works on this inA treatise on the construction of the Statute of teresting and useful subject. This text-book, thereFrauds as in force in England and the United States. fore, which we are reviewing comes in good season Fifth edition, by James A. Bailey, Jr., with the co to meet the apparent desire of the members of the operation of the author, Causten Browne.

legal profession and will- undoubtedly be received The desirability of the fifth edition of this work with the measure of success which its value merits. is evident when we comprehend that over 1,900 Not only will the book be of service to those who cases have been added to the text-book since the are practicing law, but its worth will be consider. last edition, while the entire text has been carefully able to the layman who desires to obtain a comprerevised to conform to many of the decisions which hensive view of the general principles applicable to have thus been made. The number of cases cited electricity. The work is divided into thirty-three in this work is tremendous, the table of cases alone chapters, the most important of which are, Infilling over sixty pages. The work is divided into corporation, Contracts as Affected by Franchise, twenty chapters, among which are chapters on For- Prohibition of Discrimination, The Duties of malities, for Conveying Estates and Land, Loans Re- Telegraph Companies as to Transmission and Decovered by Statute, Wills Excepted from the Statute, livery, Duties as to Telegrams and Other Matter, Assignment and Surrender, Conveyance by Approba- Nature of the Liability of Telegraph Company as to tion of Law, Trusts Implied by Law, Express Trusts, Negligence, Special Agreement, Limitation of Time Verbal Contracts — how far valid, Contracts in Part for the Presentation of Claim, Measure of Damages, Within Statute, Guarantees, Agreements not to be Telegraphic and Telephonic Communications as performed within a year, Sales of Goods, Acceptance Evidence, Contracts by Telegram and Other Matand Receipt, Earnest and Part Payment, The Form ters, Telephone and Electric Light Operation, Elecof the Memorandum, The Contents of the Memoran- | tric Railway Operation, and Taxation. This last dum, Verbal Contracts Enforced in Equity and chapter is one which will be of valuable service and Pleading

interest to counsels for corporations. The work The reviews on the first four editions of this work contains not only a table of cases cited, but also a have, without exception, spoken of its high value as table of contents and of statutes arranged accorda text-book and we can but echo the statements ing to different States. which have been made about the first four editions Published by Little, Brown & Co., Boston, Mass.

A

a case.

for review, pursuant to subdivision 8 of section The Albany Law Journal.

485 and sections 517 and 528 of the Code of

Criminal Procedure.
ALBANY, OCTOBER 12, 1895.

There has been imposed by the sections of

the Criminal Code above mentioned a very Current Lopics.

arduous duty upon this court. We act not [All communications intended for the Editor should be ad-only in the capacity of an ordinary appellant dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other

tribunal reviewing errors of law pointed out business matters, should be addressed to The Albany Law by exceptions duly taken, but if satisfied that JOURNAL COMPANY.)

the verdict is against the weight of evidence or CASE which has attracted much attention

throughout the State has been finally de- that justice requires a new trial, it is the duty cided by the Court of Appeals, and is the case

of the court to grant it, whether any exception of the People v. Shea, which grew out of a mur

shall have been taken or not in the court below. der at the municipal election in the city of Troy, The duty imposed upon us is that of reading N. Y., a year and a half ago. The defendant the whole evidence in the case of every convicwas indicted for murder in the first degree and tion of murder in the first degree. The Code was convicted as charged in the indictment at provides (subdivision 8 of section 485) that the an extraordinary term of the Oyer and Termi- case and exceptions shall consist, among other ner, over which Governor Flower appointed things, of a copy of the stenographer's minutes Mr. Justice Pardon C. Williams, of Watertown, of the trial, the result of which provision is, to preside. Assistant District Attorney Fagan that a large mass of evidence frequently upon and Hon. George Raines, who was appointed points not really disputed or disputable, is reto assist, appeared for the People, while the de. turned, all of which must be perused before fendant had as his attorneys John T. Norton,

this court can properly come to a conclusion in Esq., of Troy, and Galen R. IIitt, Esq., of Al

It seems to us that a practice might bany. The opinion of the Court of Appeals be provided by the Legislature which, while reaffirming the judgment of the trial court is writ- taining all that is now sought for in an appeal ten by Judge Peckham, and aside from the

to this court, would yet restrain within some well-known literary ability of Judge Peckham, reasonable limits the printing of a vast mass of which is displayed in the opinion, it is worthy prolonged examinations and cross-examination of comment in other respects as involving many filled with repetitions and immaterial matter, new and novel points, which at least have not

and set forth by question and answer. been decided in this State.

It appears that The case now before us is an apt illustration previous to the trial circulars were distributed of the vice of this kind of practice. Ten thouto the grand jurors reminding them of the great sand folios, embracing 2,000 printed pages of importance of their duties and stating some of evidence, compose the record, exclusive of their powers as evidenced by citations from the some 300 pages of examinations of jurors, no statutes and offering further to advise them, if question in regard to whom was raised or they would call at the headquarters of the com- argued in this court. Taking all this mass of mittee of safety, of the way by which each grand evidence and printing it by question and juror could do effective work. It was estab- answer, with its innumerable and everlasting lished that the methods of the committee were repetition of the same thing stated in the same not for political or sectarian effect, as it was way, does no good to any one, and at the same composed of people of all religions and of dif- time makes the reading a burden which ought ferent political beliefs. Judge Peckham, in not to be imposed upon the court. The evi. discussing this point, says:

dence should, as it seems to us, be placed in The defendant having been convicted of the the record and the case settled by the trial judge, crime of murder in the first degree at an extra as in other cases, and not more than the mateordinary term of a court of Oyer and Term- rial evidence ought to be returned, and, except iner, held in the city of Troy, has by appeal in special cases, the evidence should be in narbrought the record of his triai before this court | rative form.

VOL. 52 - No. 15.

Notwithstanding this great mass of evidence to prevent its violation by others, but the intent returned, as the present law provides, the whole with which an act is performed is the important record has been examined and deliberated upon fact which characterizes and gives point and with that degree of care and attention which force to the act itself. We think the action of the interests at stake would naturally call for the deceased and his friends cannot properly

Continuing, Judge Peckham discusses the be said to have led to this catastrophe. merits of the case and the facts, which are too In discussing the objections of the defendant numerous to mention here, and states that the to the admission of evidence in regard to repeatCourt cannot listen, with complacency, to the ing Judge Peckham says: arming of citizens of the State for the purpose

The counsel for the defendant challenge the of going through the forms of holding an elec- correctness of the rulings of the trial court in tion, and to be ready to protect themselves in admitting evidence of the repeating in the prescase of an attack. It is an appeal to the force ence and under the supervision and direction of arms instead of to the protection of the law, of defendant at the different polls as stated in and such an appeal is one which the courts can

the point last discussed. Proper exceptions not be expected to look upon with the least

were taken to the decisions of the court in that patience or tolerance. Still, when the whole regard, and the question has been argued before case is surveyed, the criticism comes in bad us at great length. The objection taken is that form from the defendant, and there is nothing

the evidence was immaterial and had no proper in the evidence which justifies him or mitigates or legitimate bearing upon the issues joined for the character of his act.

trial, and that it simply tended to show the deJudge Peckham then distinguishes between fendant guilty of some other separate and difacts done in furtherance of an unlawful pur

ferent crime from that for which he was indicted pose and in violation of the criminal law, and and then on trial and to greatly prejudice him other acts which are done by private citizens

in his defense. The impropriety of giving eviin order to obstruct the accomplishment of that

dence showing that the accused had been guilty purpose. On this subject he says:

of other crimes, merely for the purpose of

thereby inferring his guilt of the crime for Up to the time the defendant and his companions appeared, it is not pretended that the which he is on trial, may be said to have been

assumed and constantly maintained by the least disorder had prevailed at the polling place,

English courts ever since the common law has italthough it may be assumed that there were men

self been in existence. Two antagonistic belonging to all parties there present. The

methods for judicial investigating of crime, and trouble commenced upon the arrival of the de

the conduct of criminal trials have existed for fendant and friends, and the fighting was pre

many years.

One of these methods favors this cipitated by them. While condemning in

kind of evidence, in order that the tribunal unmeasured terms, the general practice of car- which is engaged in the trial of the accused rying weapons, we can in this case admit that

may have the benefit of the light to be derived the deceased or his companions ought to be de- from a record of the whole past life of the acfended as violators of the public peace, because cused, his tendencies, his nature, his associates, of their conduct on this occasion, Court can

his practices, and in fact, all the facts which go not and must not recognize the claim of right to make up the life of a human being. This is to take the law into their own hands by citi- the method which is pursued in France, and it zens under any circumstances, but at the same is claimed that entire justice is more apt to be time they can see the difference and make the done where such a course is pursued than where proper distinction between acts done in fur- it is omitted. The common law of England, therance of an unlawful purpose and in viola- | however, has adopted another and, so far as tion of the criminal law, and those acts which the accused is concerned, a much more merciare done by private citizens in order to obstruct ful doctrine. By that law the criminal is prethe accomplishment of that purpose and to pre- sumed innocent until his guilt is made to appear vent such violation. The citizen must not him- beyond a reasonable doubt to a jury of twelve self be guilty of a violation of law in his efforts In order to prove his guilt it is not per

men.

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