The Albany Law Journal.

ALBANY, MARCH 24, 1883.

CURRENT TOPICS.

HE Senate of this State hesitate to pass the Assembly. Without discussing it as a moral or economic problem, the legal question involved should make its rejection an assured fact. The present bill provides that all sworn officers of the law during week days shall be powerless to arrest any person violating the law in open sight of such officer, but on the contrary such arrest can only be made on warrants sworn out before some magistrate. Nothing in this respect can be more absurd than the distinction between Sunday and the week days. If an arrest can be made on the first day of the week, why, in the name of common sense, cannot a similar arrest be made on the second day of the week? But this legislation is all wrong in principle, for it overturns the very foundations of criminal law existing from time immemorial. Any person may make an arrest, subject to an action for false imprisonment, and every officer of the law is bound to arrest where a crime or misdemeanor is committed in his presence. The practical result of such legislation would be to give immunity to transgressors of the excise law. The police have "beats" which they cannot leave. The criminal magistrates are very few compared with those "beats." So that complaints for violation of the excise law would virtually cease, and free rum have unlimited sway as a legal result.

portant foreign laws." The recent report of the committee to the minister, published in the "Journal Officiel," shows that the library contains about 14,000 volumes at the present time, embracing numerous works on international law, comparative jurisprudence, and the history of law in the different countries. A regular system of exchanges has been established with foreign governments. Collections of pal English Colonies, Mexico, and the States of the North-American Union have been obtained. To the latter have been added the reports of the several States. The laws of the South American countries Brazil, Chili, Peru, the Argentine Republic, will be obtained shortly. Of translations, the German Commercial Code has been published. The German Code of Criminal Procedure will soon follow. The Russian Procedure Act, the Dutch Criminal Code, and a collection of charters and constitutions of the American States are in press. Among works in preparation is a translation of the Criminal Code and the Code of Criminal Procedure of the State of New York (1882). All this is done by the French government to serve the comparative study of jurisprudence, and to enable its courts to inform themselves as to the law of foreign countries in cases where such inquiry may become necessary.

It is said that the attempts to produce the Passion Play in the city of New York have been abandoned. The mayor has refused to sanction the exhibition, and the theatrical people are not quite prepared. to produce it and run the risk of the consequences. It may seem at first blush rather illiberal to prohibit an exhibition which cannot be pronounced immoral, and which was originally, and is yet in some countries, regarded as a religious observance. But there can be no doubt that the exhibition would be abhorrent to In reply to the question of the Alabama Law a vast majority of christian people, and even to Journal in our last number, as to the work of the very many who, if not avowedly religious, are lovSupreme Court of that State in comparison with ers of decency and order. The mayor is right in other courts, we may say that we are informed that refusing his sanction. The exhibition would be atthe Supreme Court of this State, in the Fourth Ju-tended by the worst class of the community - the dicial Department, in the two years, 1878-9, desame class who daily shock the ears of decent peocided 909 cases, and wrote opinions in at least five-ple on the streets by cursing in the name of the besixths of them, and in 1880-1 the same court decided 916 cases, and wrote opinions in at least threefourths of them. The court was composed of three judges neither of them had a secretary- and only one of them had a stenographer, and he for a few weeks only, in 1881. By the census of 1880 the population of the department exceeded that of the State of Alabama by more than 200,000.

ing in whom they do not believe, and whom they profess to despise. It would be reported with horrible illustrations in the "Police Gazette." Even in Germany, where the exhibition has been so long kept up, and where it is in some measure redeemed by the religious associations and traditions attending it, it has been a shocking thing to see, as foreigners have sometimes seen, the actors of the parts of our Savior and Judas, drinking beer together at The French Minister of Justice, Dufaure, by an a public garden. It would hardly be thought deorder of 27th of March, 1876, established in Paris a cent to produce on the stage a representation of the "Committee on Foreign Legislation," which has assassination and death of Lincoln or of Garfield, been at work since that time. Its object was two- or to represent the execution of John Brown. How fold: "It should first establish a library, which is much less should the tragedy of the Redeemer be to contain the laws, legislative reports, and most made so common and so inevitably grotesque! The important works on jurisprudence of all countries; mayor of some other city has recently refused to libesides, it should cause to be translated and pub-cense the acting of a play representing the life, exlished, by direction of the minister, the most im- ploits and death of Jesse James, and this we think VOL. 27-No. 12.

is also right and decent, although we admit the prohibition is much more questionable than that of the Passion Play.

An apparently important bill is introduced in our State Senate by Mr. Nelson, proposing that a majority vote of all the voters of the State shall be necessary to enact a constitutional amendment. Theoretically there seems to be no objection to the bill, but practically it may not be of much avail. There have probably been very few — perhaps not any constitutional changes which have received the vote of a majority of all the voters of the State, and yet there has probably not been one which is to be regretted. The bill now proposed would simply compel voters to declare themselves, and possibly this is right when a change of fundamental law is to be effected. We see no force in the argument of its opponents that this measure may and probably will be adopted, if adopted at all, by less than a majority of the voters of the State. In short we regard the measure as of fanciful and specious, rather than of substantial and vital importance.

better for the people of Georgia or of Texas to have questions of law adjudicated for them at New Or leans than at the Federal capital, by a secondrate tribunal, than by the Supreme Court of the United States." And upon the sectional influence of the scheme it says: "The scheme of the friends of the pending measure is to organize nine groups of States, that are to maintain quasi Supreme Courts for their own inspection and interests, having their own system of jurisprudence. This is as dangerous as it is a radical departure from the scheme of the founders of the government. Only once in the history of this country-over eighty years ago—was it ever proposed that inferior courts, under the Constitution, should have jurisdiction beyond the limits of the States."

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The Pacific Coast Law Journal publishes an essay by Mr. F. P. Deemig, on "The judiciary as a department of Government," from which we extract the following statistics as to the manner of election, the tenure of office, etc., of the judges in this country: "Of all the States formed since 1790, Louisiana, Florida and Mississippi, in Constitutions ratified since the war of the rebellion, alone give to the Governor and the Senate the power to appoint the Supreme Judges. Of the original thirteen States, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, South Carolina and Virginia-still concede a similar prerogative to their Executive and Legislature. Therefore, except in ten States-five New England and five Southern the judges are directly chosen by the people. That any of the States, at this day, should vest the selection of its judges in the co-ordinate branches of Government, is explainable by reason of the conservatism of the New England States, many of which retain their original Constitutions with but slight amendments, and of the natural preference of the Southern States, in their Constitutions adopted since the war, to confide this important function to the Legislature than to the body of voters largely composed of emancipated slaves. In Virginia, by the Constitution of 1850, Mississippi, Constitution 1852, and Louisiana, Constitution 1832, the office of judge had been declared elective. * * * The tenure of the judge's office during good behavior is being abandoned. In two of the new States only has this life-tenure been introduced-in Maine in the Constitution of 1820, and in Florida in that of 1868; and in but three of the original Constitutions has it been retained Delaware, Massachusetts and New Hampshire. In Maine and New Hampshire these lifetenures cease on the incumbents reaching seventy years of age. The biennial legislative appointment in Vermont, and the similar annual selection of

The objections to the Davis bill for the relief of the Federal Supreme Court are thus pointedly stated in the minority report of the judiciary committee of the house of representatives: "Probably the most serious objection to this proposed innovation in our judicial systen is the disorganizing effect which it must have upon the unity and homogeneity of our people. It has been found necessary to carry on a great war to maintain that unity, and yet it is now deliberately proposed to disintegrate the Union in a more insidious and more dangerous manner by removing that greatest of all our bonds of union, the Supreme Court, from the actions and the affections of the people and converting it into a creature of the great corporations, and by the establishment of nine other Supreme Courts to intercept and waylay the ordinary suitor and cut him off from the tribunal to which the founders of the Constitution have taught him to look for justice and the authoritative exposition of the law under which he lives, and with reference to which he is expected to ordain his actions. Nine different courts of appeal, with power of final adjudication, and no connecting link between them, must necessarily give rise to inconsistent decisions; and the same Federal law will be differently expoun ded in different parts of the country. At a time when the public demand is for uniformity in the law and homogeneity in judicial decision, for unity of sentiment and equal rights and equal justice to all, the interjection into our Federal law of a measure which can scarcely fail to contravene these desired results, would seem to be most undesirable." Upon the geographical question the report says: "The peo-judges in Rhode Island, have operated almost in ple, as such, do not resort to appellate tribunals; and this bill will not bring the administration of justice home to them. What greater advantage or convenience is it to the citizen of Minnesota or Nebraska to have to go to St. Louis instead of Washington for his law? Is it more convenient or

giving life-tenures, but the power to determine the office is retained to be used if needed. While, as it is perceived, there is a prevailing dislike to commission the judges for life, yet there is no harmony in the tenure of office prescribed, it varying from one year in Rhode Island to fourteen years in New York.

In other particulars - the fixity of salary, singleness of office, and liability to impeachment - newlyadopted Constitutions follow their early models, Thirteen of the States now give the power to the Legislature, on a two-thirds vote of all its members, to remove a judge: Kansas, Constitution 1859; Louisiana, 1868; Ohio, 1851; Oregon, 1857; Tennessee, 1870; West Virginia, 1872; Wisconsin, 1848; California, 1879; Virginia, 1870; South Carolina, 1868; Massachusetts, 1780; North Carolina, 1876; while Maryland, 1867, North Carolina and South Carolina give a like prerogative to the Legislature where a judge is incapacitated by reason of mental or physical infirmity or continued sickness."

IN

NOTES OF CASES.

and benefit, as it could not have been the intention of the Legislature to give a distant relative, whose only right to maintain an action would be the authority conferred by the person seduced, substantial damages where no real injury was sustained. Where the law empowers a person to confer upon another authority to commence and maintain an action for an injury which the latter has not sustained, such action will be for the use and benefit of the person really injured, as the one entitled thereto. The cause of action in such a case, or the claim which the injured person may have, is not assigned to the person who brings the action; the statute does not require this; it only requires that authority be conferred upon the person to bring the action and in no other respect is the relation of the parties changed. The question however at once arises, if such is the construction to be given this legislation, why did not the Legislature in clear and unmistakable terms give the person seduced, if of full age, the right to bring the action in her own name? The answer to this may, we think, be found in the condition of the law at that date, as the law stood at the time this statute was passed and up to 1861 the plaintiff in an action was not ordinarily a competent witness, and it may well have been supposed that to have given her the right to bring the action in her own name would have defeated the very object in view." See, ante, 142.

N Watson v. Watson, to appear in 49th Michigan Reports, it was held that inasmuch as it had been enacted that in an action for seduction it is not necessary to allege or prove loss of service; and that if the female seduced be a minor the action may be brought by her father, mother or guardian, and if of full age, by her father or any other relative authorized by her to bring the same; and that nothing in these provisions shall prevent any person entitled to her services from maintaining an action for the loss thereof, the female herself may maintain an action of damages for her own seduction. The court observed: "These several provisions point unmistakably and clearly to the conclusion that the design In Karrow v. Continental Ins. Co., Wisconsin and intention was to give the person seduced the Supreme Court, Feb. 20, 1883, 15 N. W. Rep. it right to recover damages for the injury she had sus- was held that where there is nothing in the policy to tained and thus do away with the unjust rule that the contrary, a fire insurance company is not relieved prevailed at common law. The female if of full age from liability because the property was burned by may authorize her father or any other relative to the assured while in a state of insanity. The court bring the action, and in such a case their authority said: "The learned counsel contends, that while an must be alleged and proven, and although on the insane person cannot be guilty of a crime, nor liable trial it should clearly and conclusively appear for a tort wherein the intent is a necessary ingredient, that there was no loss of service, and if a distant yet that a lunatic has always been held liable for relative were plaintiff there could be no injury to other torts resulting in damage. In support of this, parental feelings, and but little shame or mortifica- counsel cite several cases, and argues from them that tion, yet the action would be maintained and the if a lunatic burns the buildings of A., he is liable to right to recover substantial damages be clear. In a A. for the amount of the actual damages sustained; case so brought there would be no damages for loss and that since this is so, it must follow that a lunatic of service, but for the suffering, the shame, the cannot burn his own buildings upon which he has mortification and the expense, which not the nomi- previously obtained an insurance, and then turn nal plaintiff, but the person seduced had suffered, around and recover of the insurer the damages he that would form the basis of the recovery. If the has sustained by reason of his own act. The arguparent or any other person had a claim for damages ment is plausible, and deserves very careful confor loss of service, he might maintain an action sideration, especially in the absence of any direct therefor nothwithstanding the recovery by the authority upon the question involved." The court person seduced in the name of her relative. It has then show that the liability for civil torts "is been well argued by counsel in the brief submitted, solely upon the ground that where a loss must that unless the person seduced may, under this fall upon one of two persons equally innocent, it legislation, bring the action in her own name, cases must be borne by the one who caused it." They then may arise where no action can be brought or main-proceed: "This brings us to the question, whether tained. If the person is of full age, and the father he can recover if he happens to set fire to the buildis not living, and her relatives are dead, or beyonding without any intent or degign to injure any one. reach, or refuse to bring the action, she would have no remedy. The action which she authorizes to be brought under this legislation must be for her use

In the absence of fraud or design, there can be no question but that a fire insurance company is not relieved from liability on its policy by reason of loss