THE ALBANY LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

The General Term of the Fifth Department have denied an application to remove Police Justice King for misconduct in office, consisting, as alleged, of violent language, partiality, passion and prejudice. If the opinion is correctly reported in one of the daily newspapers the court have, to say the least, some very lenient ideas concerning the demeanor which may be tolerated on the bench. They are represented as saying: "The cases coming before this magistrate are mostly of a petty and vexatious character, arising among a low and abandoned class

Mr. Austin Abbott, although one of the best patronized of the law-writers, is one of the very few who always give more than their money's worth, and to whom the profession is always under obligation. His latest book, "Trial Brief in Criminal Cases," in the preparation of which he was assisted by Mr. William C. Beecher, late assistant districtattorney of New York, published by Diossy & Co., shows his distinguishing excellencies. It is a manual of the greatest convenience to the criminal-law practitioner or judge, furnishing under every title apt and ample reference to leading authorities, and deriving from them succinct statements of principles. It will prove an indispensable vade mecum to the bench and bar in such cases.

of society." "The words were uttered from the bench, but it was the bench only of a police justice, who after years of association in that capacity with the criminal classes had acquired violent and extravagant modes of expression, for the manifest reason that that was the only language which his auditors understood. * * * The words are clearly slanderous; they were not uttered in the discharge of his official duties, and he was consequently amenable to the persons traduced to respond in a civil action, and to criminal indictment also. We do not think that the words are sufficient to justify us in the removal of the officer. * * * If we should remove for this offense, the order would necessarily allege that the removal was made for slanderous words spoken by the police justice concerning public officers, and not for any official act." By this argument the court excuse "rash and intemperate language not only against the county judge of Erie county but against the mayor of the city of Buffalo, declaring that they should be impeached and removed from office, * * the result of spite and malice cherished by King toward the officials named, * * * was unjust in the extreme and maliciously false," and characterize it simply as an offense "against good taste fense" is extracted from Brown's "Life of Choate." and judicial dignity." It would seem that if In connection with this it would have been approbody ought to be dignified and moderate in lan-priate to refer to Fain v. Commonwealth, 78 Ky. 183; guage it is a police magistrate, who should set a S. C., 39 Am. Rep. 213, in which that defense was set up. good example to the low class brought before him, and that he should not exhibit the same bad temper which in many cases is at the bottom of the offenses which he is called on to punish. It must

any

be borne in mind too that the removal of such a

Mr. James M. Kerr has edited Richard Harris' what should be done by counsel, solicitor and cliwell-known book, entitled "Before and at Trial: ent," and at least one-third of the present edition the Columbia Law Times and the American Law consists in Mr. Kerr's own writings reprinted from Journal. The chapter on "Somnambulism as a De

There is a great deal of interest in the chapters on "Fabricated Evidence," "Circumstantial Evidence" and "Mistaken Identity," added by Mr. Kerr, but his style does not compare favorably with Mr. Harris', We are rather tired of David Mr. Kerr had wished to follow the "Golden Rule Paul Brown's "Golden Rules," and think that if

he would have omitted them. Unless Mr. Kerr heard him say it, we should be inclined to doubt that it was Tom Corwin who invented the saying that if there was any thing that Providence could has been attributed to nearly every profane lawyer not foretell it was the verdict of a petit jury. It in the country.

The book is very handsomely printed, and is sold by Williamson Law Book Co., Rochester, N. Y. Not the least glaring fault of

the book is that it has no index.

petty functionary is not to be restricted by the larger views properly applicable in the case of a court of record. The decision of the court in this case amounts to this: That a police magistrate may be a malicious, public slanderer, and a criminal lawbreaker, and the public cannot help themselves. Are the public so helpless as this? If so, it presents a demoralizing spectacle. Is it possible that a police magistrate's demeanor and language on the bench are not part of his "official conduct?" The mere fact that the individuals aggrieved have their private remedy against him does not determine that question in the negative, and so of the mere fact that they are not necessary to the discharge of his official duty. Official conduct, in the sense in ques- The Green Bag for June has a large portrait and tion, means conduct in public while on the bench a memoir of William Henry Rawle; an article of and acting as a magistrate. This is not a mere matter sixteen pages on the Yale Law School, with eight of deportment, taste or dignity, like smoking or put-portraits; the "Petroleum Ointment Case," in verse, ting one's legs upon the desk. It is a question whether the Supreme Court are bound to tolerate in the person of a police justice, in a city of a quarter of a million (or less), a man who habitually utters malicious slanders of public authorities while on the bench and acting as a magistrate, and is liable to indictment therefor. If the people are enslaved to such demoralizing conduct on the part of one of their own petty official creatures, it is high time that some remedy were given by statute or Constitution.

by Irving Browne; the D'Anglade Case, by the editor, and a variety of other matter, original and selected. We think Mr. Fuller has turned the Randolph anecdote wrong-side-to. As we have always heard it was Randolph who said "I never turn out for a fool," and the other man who said "I do." This was much more characteristic of Randolph, who was better at attack than repartce. From the Scientific American is taken a recommendation to execute criminals by coal gas, which is worth consideration.

But why not chloroform?

IN

NOTES OF CASES.

with the devices specifically named in the section. That they are so, even when used with chips to play a game of poker, we are not advised by any evidence in the record, or by any knowledge derived from other sources. That they are not seems to appear from the nature of the particular devices, so far as we have been able to learn it from adjudicated cases in courts of States the manners and social customs of whose people most nearly resemble our own. Nuckolds v. Commonwealth, 32 Gratt. 884; Commonwealth v. Wyatt, 6 Rand. (Va.) 694; Ritte v. Commonwealth, 18 B. Mon. 35; State v. Hawkins, 15 Ark. 259; Stith v. State, 13 id. 680. The construction contended for is condemned by the rule of ejusdem generis.”

'N State v. Gilmore, Missouri Supreme Court, May 20, 1889, it was held that playing-cards and poker-chips are not a "gambling device" within the meaning of a statute which specifies "any table or gambling device commonly called 'A, B, C,' 'faro bank,' 'E. O.,' 'roulette,' 'equality,' 'keno,' or any kind of gambling device adapted for playing any game of chance for money or property." Bruce, J., said: "The prohibition of section 1547 does not apply to games, but to devices, and is limited to devices adapted, devised and designed for the purpose of playing a game of chance. The chairs upon which the players sit, the ordinary table upon which they shuffle, deal and throw the cards and chips, nickels, pennies or what not, for which they play in an ordinary game of cards, are adjuncts, conveniences and incentives to a game of chance, but neither one of these, nor all combined, is a device for playing such game. The pack of cards is the device adapted, devised and designed for playing the game of chance --the thing with which the game is played. It is the device that is prohibited. It matters not whether the game played is poker, euchre, whist, seven-up, or what the name of the game may be, or whether the stake played for is a dollar, a dime, a nickel, or an ivory chip representing the value of either, or no value. The question then resolves itself into this: Is an ordinary pack of playing-cards a gambling device within the meaning of section 1547, supra? Ining to indemnify the insured, must have under his prosecutions under the sections of the statute in previous revisions corresponding with 1548 and 1549, it has been held in several cases that playingcards are a gambling device within the meaning of such sections. State v. Purdom, 3 Mo. 115; State v. Ellis, 4 id. 474; Eubanks v. State, 5 id. 450; State v. Bates, 10 id. 109; State v. Herryford, 19 id. 377; State v. Scaggs, 33 id. 92. But we have failed to find a case prosecuted under the law contained in section 1547, which has been on the statute book, in terms substantially the same as in the present revision, since 1825, in which it has been held that such cards were a gambling device within the meaning of that section; and it having never been so expressly ruled, we do not feel constrained in this case, in which we are called upon to pass upon this question directly, to follow conclusions that might be drawn from dicta in some of those cases in which this section was only indirectly considered, unless an independent examination of the statute will warrant it. The application of a few familiar principles of interpretation ought to determine the question. Certain gambling devices are specifically named in the section under consideration. Cards are not of the number. Following those specifically named are the general words or any kind of gambling device adapted,' etc., under the rule that where general words follow particular ones they must be construed as applicable to things of the same general class. Cards are not included in this general designation, unless they are ejusdem generis

In Niagara Fire Ins. Co. v. Elliott, Virginia Supreme Court of Appeals, June 1, 1889, defendant insured plaintiffs "on carriages, buggies, hacks and harnesses, their own or sold, until removed, contained in " a certain building "occupied as a livery and sales stable." Held, that the words "contained in" were used to designate the usual place of deposit of the property when not in use, or while being prepared for use; and that the policy covered the property while at a repair-shop, several hundred yards from the stable, for the purpose of being repaired. The court said: "Now bearing in mind the observations of Lord Mansfield in Pelly v. Royal Exchange Assurance, 1 Burr. 341, that the insurer, in estimating the price at which he is will

consideration the nature of the business, and the usual course and manner of conducting it; and every thing done in the usual course must have been foreseen and in contemplation at the time he engaged, and that he takes the risk upon the supposition that what is usual or necessary will be done. Should the words 'contained in,' upon which the plaintiff in error rests its contention, be construed to restrict the liability of the company to the use of the property at the place specified, or should those words, when used with respect to property of the kind destroyed, be construed as merely designating the accustomed place of deposit of the property when not in use or being used for some purpose incidental to its use? Where merchandise kept in stock, or carriages kept in a carriagemaker's establishment for sale, are insured, there is nothing in the nature of the property to indicate that it will be removed before it is sold, and hence the insurer may be supposed to have underwritten the policy upon the idea that the property would be entitled to whatever protection the character of the building and its situation might afford, and that it should be exempt from the risks incident to temporary removals, or to the use of the property at other than the specified place of location. But where the property is of such a kind that it must be kept in constant use, and therefore of necessity be often in need of repairs, no room for such an inference can exist; and in such a case we are constrained by every principle applicable to