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alone to a practical printer (like the writer), is almost | pany, appellant, v. Michael Coleman and others, com. worth the price of the volume. For sale in Albany by | missioners, etc., of New York, respondents.-Order Banks & Bros.
affirmed with costs-David L. Reed, respondent, F. Alfaretta Reed and others, respondents, and Abraham
Beruheimer, appellant. -Order affirmed with costs 5TH AMERICAN PROBATE LAW.
- Mary A. Livingston, appellant, v. Clara 0. L. Tucker This volume maintains the excellent character of
and others, respondents. Judgment in the first the series. The cases are judiciously selected, and
named case affirmed, with modification reducing the there are some useful notes by the editor, Charles
interest to six per cent from January 1, 1880, with Fisk Beach, Jr. The publisher's work is very hand
costs. In the second case, judgment for the defendsomely done by Baker, Voorhis & Co., of New York.
auts is reversed, new trial granted, costs to abide
event-Francis L. Haight, respondent, v. Board of DERBY'S LIEN LAW.
Supervisors of Saratoga county, appellants, and WilThe Mechanics' Lien Law of the State of New York (passed
| liam V. Clark, appellant, v. Same, respondents.
No one who will take the trouble to compare the edition. New York: Baker, Voorhis & Co., 1887.
work done by Jefferson with that of other framers of This hand-book of one hundred and thirty pages statutes of a general nature, cau fail to rise from such must serve a very convenient purpose. The arrange comparison with the conviction that he was a master ment is logical aud appeals quickly to the eye. The workman of the highest order. Great achievements notes run over the decisions of other States as well as in codification have been made from time to time, those of our owu. The book would be well worth the from the days of Justinian to the present-I had trifle that it costs, if only for a single case.
nearly said to the days of David Dudley Field. The Code Napoleon has stood the test of nearly three quar
ters of a century, and throughout the world is recogWARNER'S LAW OF EVIDENCE.
nized as yindicating the emperor's boast, “I shall go Law of Evidence under the Code of Civil Procedure of the
Procedure of the down to posterity with the Code in my hand.” Many State of New York, with Forms. By Henry E. Warner, of the great English statutes have dealt with special Albany: W. C. Little & Co. Pp. xlviii, 426.
subjects in a masterly way. Much work of the same This manual gives the sections of the code relating quality has been done in the United States, especially to evidence, and under each places the appropriate in the earlier Congresses, in not a little of which the decisions. It seems to be exhaustive. The matter hand of Mr. Madison may be regarded as visible. But concerning section 8:29 alone covers sixty pages. The | however admirable the style in which such work bas table of cases cited covers thirty-four rather spacious been done elsewhere or in other times, I believe, that pages. The statements are concise and clear. The beyond all cavil, the Virginia Statute of Descents is index is remarkably good, and covers eighty pages. | the only important statute in the history of human We skip the Forms --- we always do -- we are opposed society which in a century of experience has given to forms. The typography is well adapted to quick | rise to but one single controversy as to the meaning reference, and the book appears every way convenient and effect of any of its provisions. In all the essen: for the hasty needs of the practitioner.
tials of excellence it is unique. Exhaustive, precise, perspicuous, simple, comprehensive, it is the only
known specimen of human legislation which came COURT OF APPEALS DECISIONS.
from the hand of its author simply perfect. I say “ perfect,” for while one question, over sixty years ago,
was raised as to its effect, the decision determined TAE following decisions were handed down Tuesday,
that the case was not cusus omissus, but that it was 1 Dec. 13, 1887 :
ruled by the principles embodied in the act.-From Judgment reversed, new trial granted, costs to abide Thomas Jefferson as a Legislator,” by R. G. H. Kean, event-Elizabeth Bickford, respondent, v. Henry | in Virginia Law Journal, December, 1887. Menier and others, appellants. --Judgments affirmed with costs -Emily Rockfellow, appellant, v. Samuel
One law journal of the current week displays on its H. Miller and others, respondents, and Edgar B.
first page the announcement of a new and compressed Barks appellant, v. Same.-Judgment of General
edition of the “New York Reports," that is to say, & Term reversed and that of Special Term affirmed with
new edition of the New York Court of Appeals, and costs-Anu McGregor, appellant, v. Board of Educa
another law journal displays on its first page of the tion of New York, respondent. Judgment affirmed
contemporaneous number au advertisement of that with costs. The court holds that the city is the proper
lemonade-like drink, knowu as acid phosphate, recparty to sue its treasurer for failing to pay to the
ommended for mental exbaustion, thus suggesting the county treasurer the State and county taxes, and
idea that weariness need not be an excuse, por disaffirms the judgment against him--City of Pough
suade us from undertaking to look through again keepsie, respondent, y. Abraham Wiltsie, appellaut.
these 100 volumes in their reduced bulk of twenty or Judgment affirmed with costs—Matthew White,
thirty, with fresh annotations. New York Daily Reg. appellant, v. Michael Kuntz and others, respondents.
ister. Judgment affirmed with costs-Herman Fuchs, "The types," observes a southern Illinois paper, respondent, V. Theodore E. Koerner, appellant. apologetically, “made us allude last week to our esJudgment affirmed with costs-George A. Porter and
teemed townsman, Mr. Polhemus, as a 'villainous others, respondents, v. Richard Pem Smith and others,
lounger.' We wrote versatile lawyer.' The error appellants. Orders affirmed with costs-Eliza Dela was overlooked by our proof-reader, a gentleman refield, respondent, v. Francis C. Barlow, executor, etc., cently from Texas, who assures us, in extenuation of and others, appellants. --Order affirmed with costs the oversight, that the two terms mean pretty much -People, ex rel. Knickerbooker Life Insurance Com the same thing where he came from."
The Albany Law Journal.
| district attorney moved for sentence on a general verdict of guilty on some thirty counts in the same indictment, the granting of which would
have resulted in imprisonment for life, and for ALBANY, DECEMBER 24, 1887.
three lives, if the prisoner had had so many. The
judge however denied the motion, although under CURRENT TOPICS.
the law, as administered in the State courts of Ohio,
such a motion must have prevailed. But as the IF John Selden had lived till the 10th instant he
law is held differently in other States, Kentucky,
for example, the judge declined to make a ruling I would have been three hundred and three
which would result in confusion, and sentenced years old. But possibly he would not have had a
Harper to the extent of the law under one count. society named for him. He is probably little
| We have lately reperused the opinions of Judges known to our lawyers, and more by his “Table |
Allen and Rapallo on this point in the Tweed case, Talk" than by his learned law writings or his pa
| 60 N. Y. 559, and we can see no escape from their triotic and independent service to his country. We spoke of the foundation of the “Selden Soci
reasoning upon the injustice and impolicy of cumu
lative sentences. Any other doctrine would result ety" in England some time ago. Its object is to
| in this State in empowering magistrates and courts encourage the study and advance the knowledge of
of special sessions, authorized only to sentence to the history of English law - a most laudable ob
terins of imprisonment not exceeding one year, to ject. It is now about to justify its foundation by issuing its first publication — a volume of Thirteenth
send a defendant to prison, in effect, for the term
of his natural life upon one indictment. Whatever Century Pleas of the Crown from the Eyre Rolls,
the common law now existing in England may be, edited with a translation by Mr. Maitland of Cam
Judge Allen demonstrated that up to 1775, the bridge University. These cases are expected to throw an instructive light upon the genesis of our
period of its adoption in this State, it was decidedly
opposed to cumulative sentences. Both the judges petty jury, and illustrate the working of the or
point out the distinguishing fact that in England deals of fire and water, and show how a substitute for the ordeals was gradually found in trial by jury.
the term of imprisonment for misdemeanors is dis
cretionary. It seems a monstrous anomaly to hold The annual subscription is one guinea, and twenty
| that while six or seven different felonies, punishaguineas constitute one a life member. In the coun
ble in the aggregate with sixty or seventy years' cil of the society are the chief justice of the United
imprisonment, may not be joined in one indictStates, the minister of the United States, Mr. Jus- | tice Gray, Judge Holmes of the Massachusetts
ment, yet misdemeanors punishable to the same
extent, may be joined, and cumulatively punSupreme Court, and Judge Taft of the Vermont |
ished. We know this decision has been severely Supreme Court. Professor James B. Thayer, Cam
criticised, and not generally acquiesced in in other bridge, Mass., is the honorary secretary for America,
States, but there has never been and can never be but all information may be had from and subscrip
any refutation of its principles, tions may be paid to Alexander Tison, 45 William street, New York city, who is the local secretary for New York. This society should meet with The State department at Washington has lately hearty encouragement and snpport in America, emitted some important iganes
emitted some important issues. A second edition whose legal institutions are derived from England, of Doctor Wharton's valuable International Digest and with the origin, history and purpose of which is published with important additions, particularly our lawyers are not generally familiar. We espec-interesting among which are the history of the late ially recommend it to members of our city and fishery question, and that of the treaty of 1782-3, State bar associations, who naturally may be ex- derived from the Franklin papers. The “Report pected to take an interest in our laws beyond the on Extra-Territorial Crime and the Cutting Case," bare knowledge necessary to make a living by by Mr. John B. Moore, third assistant secretary of them. In one sense ours is the most learned of State, is an extremely important and interesting professions, but in another the least learned; it has document. Cutting, it will be remembered, was a probably the most diversified general information, citizen of Texas, imprisoned by the Mexican govbut it has the least learning of its own institutions ernment for an alleged libel published in Texas on and history. This society, founded and sustained a citizen of Mexico. His release was demanded by by the most learned and eminent lawyers of Eng- our government. He was released, not in compli land, will prove a source of enlightenment and a | ance with that demand, but because the person limeans of professional culture. We therefore hope belled withdrew or failed to prosecute his charge. that the lawyers of our State will give a cordial | Mr. Moore demonstrates the correctness of the view welcome and a prompt encouragement to this liberal of our government in this remarkably learned, vigenterprise.
orous and well written paper.
The much-vexed question of cumulative sentences was revived on the late trial of Harper in the We get, from Gibson's Lar Notes, an amusing United States Circuit Court at Cincinnati. The addition to our “Animal Kingdom in Court.” A
Voi 36 - No. 26.
man had a right of pasturage on Liston common, of the defendant that it is not a matter between inand put on two cows to graze. Another man had dividuals, but concerns the due administration of a like right, and he put on two calves. The calves justice, that a witness should be allowed to speak, grazed the cows, i. e., sucked them to such an ex | according to his belief, the truth without regard to tent that the cows yielded only a pint instead of consequences, and should be encouraged to do this seven or eight quarts. The cow man sued and re- | by the consciousness that his utterances are abso covered damages. This seems good law. Gibson's lutely privileged, leaving him only liable to indictalso cites a decision that a horse is not a “mineral," | ment for perjury, if he speaks other than the truth. i. e., that it is negligence in a railway company to That witnesses should not be hampered, while on carry a horse on a “ mineral train.”
the stand, with fears of a suit for damages. Mr. Townshend, in his work on Slander and Libel (3d
ed.) says (p. 387): This is the view in the courts To get ahead of Col. Ingersoll in a strife of wit
of England and some of the States,' and the author one must get up very early in the morning; indeed,
lends the weight of his own opinion thereto. While sit up all night. We recently heard a notable
plausible, it is in our opinion unsound. The act of argument between him and ex-judge Noah Davis
testifying as a witness must be either in the exer. on the question whether innkeepers in the city of
| cise of a right or the performance of a duty, and in New York have a right under the statute to furnish
either case the act must be performed in good wine, etc., to their guests at table on Sunday. A faith. If he avails himself of his position as a witgood deal turned on the meaning of “entertain
ness to maliciously answer, with a knowledge that ment.” Judge Davis asked if counsel supposed
such answer is not pertinent or relevant, the law that the entertainment" of strangers recommended
withdraws the protection it would otherwise bave by St. Paul in the New Testament, “because thereby
afforded him. Where the defendant, a witness, some have entertained angels unawares,” included
was asked if a certain person was attended by a strong drink. Col. Ingersoll replied that he didn't
physician, his answer was, 'not as I know of; I know about that, but he did know that when St.
| understood he had a quack; I would not call him a Paul came in sight of “Three Taverns” on his
physician.' In an action brought for these words it way to Rome, he “thanked God and took courage.”
was held proper to charge the jury that if they beWould the Colonel intimate that it was “Dutch
lieved “from all the circumstances proved, from the courage?”
questions put, from the manner of answering, and
from the answers themselves, that the defendant tesWe propose to have Mr. L. B. Prince, reporter
tified in good faith, or in the belief that his answers of the Supreme Court of Colorado, indicted for
were pertinent or relevant, then the law protected false pretenses and sending a dynamite bomb. The
| him; but if the defendant was actuated by mere missile in question is concealed in a comely little
| malice, and used the words for the mere purpose of book, entitled “Mountain Trails and Parks in Colo
defaming the plaintiff, then the law withdrew the rado.” Here, sandwiched between some pleasant
protection it would otherwise have afforded bim.' essays on scenery and angling and out-door life,
White v. Carroll, 42 N. Y. 161; S. C., 1 Am. Rep. illustrated by pretty pictures, is a deadly diatribe,
| 503; Smith v. Howard, 28 Iowa, 51; Barnes v. Mephilippic and rhapsody against codification, entitled
Crate, 32 Me. 442. It follows, of course, that the “ Circa ardua Legis." We admire the daring of the
witness is not liable if the answers are pertinent offender, and forgive him the crime on account of
and responsive; or as it is expressed in some of the the extenuating circumstances. We advise our
cases, the relevancy of the words complained of to readers to buy the very readable little book, but
the matter at issue is the test of the privilege. In before reading it, to eradicate the aforesaid bomb.
Odgers Sland. & Libel, 191, a much later work Aside from that they will find entertainment and
than Mr. Townshend's, it is said: “A witness in instruction conveyed in a striking, original and
the box is absolutely privileged in answering all breczy manner. We only hope that when the
questions asked him by counsel on either side, and author describes the fellow in favor of codification
even if he volunteers an observation, a practice as “a light-complexioned, bald-headed man in
much to be discouraged, still if it has reference to glasses, who was flabby about the eyes and beard- the matter in issue or fairly arises out of any quesless,” he doesn't mean us. If he does we shall ask,
| tion asked him by counsel, though only going to as Falstaff did of another Prince, “call you that
his credit, such observation will also be privileged. backing of your friends?”
But a remark made by a witness in the box, wholly irrelevant to the matter of inquiry, uncalled for by
any question of counsel, and introduced by the witNOTES OF CASES.
ness maliciously for his own purposes, would not
be privileged, and would also probably be a conIN Shodden v. McElwee, Tennessee Supreme Court, tempt of court.” Such seems to be the rule also in 1 Nov. 1, 1887, it was held that where a witness Wisconsin and Massachusetts. Calkins v. Sumner, voluntarily, maliciously and irresponsively interjects | 13 Wis. 193; McLaughlin v. Corley, 127 Mass. 316. defamatory matter into his answers, he is liable for While we have no reported cases in our State slander. The court said: “It is insisted on behalf with reference to the privilege of a witness, there are adjudications concerning judicial proceedings, 40, Judge Green, delivering the opinion of the and the privilege afforded thereunder, which are in court in reversing the judgment of the court below, harmony with the conclusions here reached. In said: "Whether the words that were spoken were Lea v. White, 4 Sneed, 111, the words complained used in the legitimate defense of himself, or were of were used in a return to a habeas corpus imput- employed maliciously as a means of abuse and slaning insolvency and inability to support two free der of McNees, should have been left to the jury.' colored children, under covenant of indenture; This was a case where the prosecutor was told by that said children were cruelly neglected and mal- the magistrates, who had just adjudged the proof treated, and that there was reason to believe that insufficient to convict the defendant of perjury, that the petitioner would sell them into slavery. This they would have to tax him with the costs; the court said: “There are many occasions upon which prosecutor replied that he did not see how they the legal presumption of malice, from the fact that could do that, 'as the defendant had sworn falsely, the words are defamatory, does not arise; the com- and he had proved it.' It was for the use of this lanmunications are, on account of the occasion on guage, under these circumstances, that the suit was which they are made, prima facie, or as the books brought, with the result above stated. We recoghave it, "conditionally privileged ; that is, they do nize fully the importance, to a due administration not amount to defamation until it appears that the of justice, of upholding the privilege accorded parcommunication had its origin in actual malice in ties to write and speak freely in judicial proceedfact.' In such cases it will be incumbent on the ings, but in so doing we must not lose sight of the plaintiff to show, in addition to the injurious pub- fact that it concerns the peace of society; that the lication, a malice in fact, and that the occasion was good name and repute of the citizen shall not be seized upon as a mere pretext. It is perhaps need exposed to the malice of individuals who, under less to add that where the matter alleged is perti the supposed protection of an absolute privilege, nent to the issue, or fairly supposed to be so, al- make use of the witness box to volunteer defamathough not in the strictest sense relevant, the tory matter in utterances not pertinent. To hold pleader is absolutely privileged, although he may such persons responsible in damages cannot fairly have also entertained sentiments of malice to the be said to hamper the administration of justice. adverse party. The point in this case further held | The privilege of a witness is great, and will be prothat 'the question whether there be or be not rea- | tected in all proper cases, but it must not be mis. sonable or probable cause, may be for the jury or taken for unbridled license." not according to the particular circumstances of the case. The pertinency of the matter to the oc- In Stickrod v. Commonwealth, Kentucky Court of casion is that which is meant by probable cause. Appeals, Nov. 10, 1887, the particular whisky for In that case it was held that whether the matter the sale of which defendant was indicted was manthere complained of could reasonably have been ufactured by him at his distillery before the act thought by the defendant necessary to his defense prohibiting its sale was passed. Held, no defense. was properly a question for the court, and that it The court said: “In the language of Chief Justice was within the class of absolutely privileged com- | Shaw in Commonwealth v. Alger, 7 Cush. 84: 'All munications, and therefore not actionable. In property is held subject to those general regulations Buohs v. Backer, 6 Heisk. 404-407, the doctrine of which are necessary to the common good and genLea v. White is reaffirmed. It was a case where eral welfare. Rights of property, like all other Buohs was sued in libel by a young girl, of whom social and conventional rights, are subject to such he had written, in a petition to the county court, as reasonable limitations in their enjoyment as shall next friend for certain minors, for the removal of prevent them from being injurious, and to such their guardian, that said guardian has had in his reasonable restraints and regulations established by family a girl, who is now probably over sixteen law as the Legislature, under the governing and years of age, who came to live with him at about controlling power vested in them by the Constituthe age of thirteen, and has remained in his family tion, may think necessary and expedient. This is ever since; her reputation is ruined, and she is | very different from the right of eminent domain now an example of shame and prostitution.' The — the right of the government to take and approplea was that the words had been used in judicial priate private property whenever the public exiproceedings in good faith and without malice. The gency requires it, which can be done only on conditrial judge had charged the jury that as the plain-| tion of providing a reasonable compensation theretiff was no party to the suit, the communication for.' Upon the principle that every one is bound could not be privileged, and there was verdict and to so use his own as not to in jure others is based judgment for $5,000. The cause was reversed in the police power of the State to restrain, punish for, this court for error in said charge, and in not and abate nuisances. And as of necessity the charging, as requested, that express or actual mal- power is vested in the Legislature to determine and ice must be shown on the part of the petitioner in provide by law against what shall be deemed hurtthat cause. The well known distinction between ful to individuals or to society, and therefore a absolutely privileged communications and those nuisance, whether it be committed by selling liquor only conditionally so, is well stated in the case just by retail or otherwise, the courts are not authorized referred to. Again, in Davis v. McNees, 8 Humph. to intervene, except where the power is exercised arbitrarily, and in clear violation of the Constitu- | the bar, the fault of legal training, or a sore in the tion. As said in the case just referred to, 'it is body politic and in the methods by which the much easier to perceive and realize the existence judges are nominated and chosen! and source of this power than to mark its bounda Originally the judges of New York were commisries, or provide limits to its exercise.' No question sioned by the crown governor under the great seal of the right of property, nor of impairing the oblic of the Province, and at first they held office during gation of contracts, in the meaning of the Consti- pleasure of the crown. Crown Governor Clinton tution, as argued by counsel, arises in the passage deviated from this practice and appointed Judge or enforcement of what is called a prohibitory De Lancey quam diu bene re gesserit, or during good liquor law,' for each person affected by it has ac behavior – an innovation which gave rise to quesquired whatever property in liquor he may have, tion as to the power of the governor (6 Col. Docs. whether purchased or manufactured by him, and 792). The innovation was however succeeded by a holds it subject to such regulations and restrictions return to the former tenure, and until the foundaas to the sale of it by retail, to be used as a bever tion of the State government the judges held office age, as the Legislature may consider it necessary during pleasure of the crown. After independence for the health, peace and good order of society to the judges were appointed by the council of apadopt. It is therefore manifest that the reason for pointment to hold office until sixty years of age, or such legislation, so far from tolerating, forbids dis- until impeachment. This was a vindication of the crimination between those who may acquire liquor anti-revolutionary contention, that the judicial tepbefore and those who do so subsequent to its enact- | ure should be independent of political dictation. ment. There is a wholesome statute prohibiting Under the amended Constitution of 1821 the the sale of spirituous, vinous or malt liquor to a governor received the power to appoint the judges, minor, and another prohibiting such sale to a with the advice and consent of the Senate. Under known inebriate. Although no one would question the Constitution of 1846 the judiciary became the power of the Legislature to make those statutes | elective. upon their passage applicable to all persons alike, Under all these systems there have been occaand to the sale of liquor without regard to the time sional protests against the manner of selecting the of its manufacture, still the argument could have judges, but there can be no difference of opinion in been made by a person having it on hand at the re- regard to the fact that since 1846 in the great citspective dates of them, that he had a vested right ies we have had far less able judges than in any to use and sell it, just as it is argued in behalf of ap- prior period. Yet it would be premature to say pellant. In a prosecution for a violation of either that this result is wholly due to the elective system, of those statutes the defendant might have con
for in those of the judicial districts, farther removed tended that while the Legislature had the power to from the great cities, the judges continue to be reprohibit a manufacturer of liquor selling to a minor spectable and honored citizens as well as fairly able or inebriate what should be thereafter made by | lawyers. him, he might with impunity sell to them that al Without entering into a consideration of the perready owned by him. The argument in this case is haps debatable propriety of electing judges by popthat while those who manufacture liquor after the ular vote, where, as Lecky says, “no special weight passage of the act cannot lawfully sell in Fleming is accorded to either property or intelligence, and county in quantity less than ten gallons, all persons
| the ignorant and vicious are the ultimate source of may sell that previously manufactured by them by 1 power,” yet we may fairly say that it would be prethe quart for an indefinite length of time, depending mature to ascribe the poor character of the judiciupon the supply on hand, or the ability of the Com
ary in the great cities to the elective system. monwealth in any given case to prove the new and The amazing good sense and respectability, the not the old liquor was sold. It seems to us that the conservatism and hopeful aspirations of the vast power of the Legislature to prohibit the sale by re- majority of the electors in this country, make it tail being conceded, the fact that the whisky sold
| doubtful, as yet, whether indeed the poor quality by appellant was manufactured by him before the of the judiciary in the cities is solely attributable passage of the act cannot avail him as a defense in to the present system of electing the judges. this case.” To the same effect, State v. Mugler, 29
When we reflect that universal suffrage is abKans. 252; S. C., 44 Am. Rep. 634; State v. Bur. stractly right, and that as has been well said by a goyne, 7 Lea, 173; S. C., 40 Am. Rep. 60.
distinguished writer, it is the lever by which capital is moved to educate labor” and ameliorate its
condition, we confess to a hesitation in arguing THE ELECTIVE JUDICIARY IN THE GREAT
against the power of the masses to choose their own CITIES.
judges, unless we can determine definitely that
the masses are responsible for the quality of our THE marvelous spectacle of the greatest commer- judges in the great cities, and as already indicated, I mercial city in the western world without a | this conclusion is premature. single great judge in itself invites criticism, and | All we can decide at present is that the masses demands consideration.
do not select the best judges in the great cities. If What is the reason? Is it paucity of intellect at they were offered good judicial candidates the re