-

costs-Cyrus Cleveland and others, appellants, v. City of Yonkers, respondent.-Order affirmed on opinion of General Term-Henry S. Waugh, respondent, v. Charles O. Bailey and others, on appeal of Noah B. Shute, purchaser.- Appeal dismissed with costsWilliam Palen, receiver, respondent, v. Henry Bangs and others, appellants.—Order affirmed on opinion of General Term with costs-William Kramer, appellant, v. Gustav Amberg, respondent.--Order affirmed with costs-James Carson Brevoort, respondent, v. Elizabeth Brevoort and others, appellants.-Appeal dismissed with costs-C. B. Keogh and others v. Thomas Mulvey and others, appellants, and Stephen A. Main, respondeut.――Order affirmed with costsIn re opening of Morrison avenue, appeal of Richard Salter.- -Order affirmed with costs-In re majority of trustees of S. E. Silver Mining Company.-Appeal

dismissed with costs (no opinion)--Jobu Keenan, appellaut, v. John O'Brien and another, respondents.Judgment and conviction of murder in the first degree affirmed in each case-People, respondents, v. Ferdinaud Carolin, James Nolan, John Lewis and Charles Giblin, appellants.-Motion to dismiss appeal granted without costs-Pride v. I., D. & W. R. R. Co.

Ordered: That the cases on the present calendar of this court heretofore reserved to the Court of Appeals be and they hereby are assigned to the Second Division of the Court of Appeals.

Ordered: That the court take a recess from this date to Monday, the 7th day of October, 1889, at 10 o'clock, A. M., of that day, at the Capitol, in the city of Albany.

It is further ordered that a calendar of appeals pending in this court, and not on any calendar of the court, be made for a session of this court, to be held in the Capitol, in the city of Albany, on the 7th day of October, 1889, on which the clerk will place only those cases in which the returus, with notices of argument with proof of admission of service, shall have filed in

the clerk's office, at Albany, on or before the 20th day of September, 1889.

SECOND. DIVISION.

trial

has handled it.' Now, when I take the cover from the can, out leaps a bull-frog. Surely, the frog is stronger evidence than the man!'

It is stated that a Montreal judge has severely reprimanded a lawyer who appeared in court wearing a gown over a tweed suit. The lawyer said he did not see what difference it made whether his suit was tweed or broadcloth so long as he behaved himself; and he doubted whether any judge had a right to peer under his gown to see what kind of clothes he wore. The judge however was inexorable, and declared that a tweed suit must not be worn with a gown. However, as the summer advances, it may become the turn of the bar to rebuke the bench for similar breaches, etc., of etiquette. And if a precedent be required, an old one, the newer on that account to many readers, may be found in The Barrister, published in the year 1792.

Quoth our author: "A late worthy baron of the Exchequer, who clothed an excellent head, and honest heart, rather too negligently, met with no ill-timed sarcasm from a learned serjeant, who had made the court wait one morning on the circuit. On his taking his place, the baron, who sat as judge, observed rather sharply: "Baron-Brother, you are late, the court has knew not that your lordship intended sitting so early. waited considerably. Serjeant-I beg their pardon; I the instant I heard your trumpets I dressed myself. Baron-You was a long while about it! Serjeant-I think, my lord (looking at his watch), not twenty minutes. Baron-Twenty minutes! I was ready in five after I left my bed. Serjeant-In that respect, my dog Shock distances your lordship hollow; he only shakes his coat, and fancies himself sufficiently dressed for any company."

In the St. Paul's reredos case the four inhabitant of the diocese of London have succeeded in their application for a mandamus commanding the bishop of London to take proceedings under the Public Wor

ship Regulation Act. As Mr. Justice Manisty said,

the question before the court was not the legality or illegality of the reredos, but simply whether the Publie Worship Regulation Act conferred on the bishops power to practically decide that ornaments in a church are legal by a refusal to take proceedings in respect of them. The bishop of London based his refusal to take proceedings on the case as to the reredos in Exeter cathedral. Phillpotts v. Boyd, 32 L. T. Rep. (N. S.) 73; L. R., 6 P. C. 435. The reredos, as is well known, is a

Judgment reversed, new trial granted, costs to abide event-Maurice Coleman, respondent, v. Second Avenue Railroad Company, appellant.-Judgment affirmed with costs-Eugene K. Woolevers, respondent, v. Utica, Ithaca and Elmira Railroad Company, appellant. Judgment affirmed with costs-Rensselaer B. Winchell, appellant, v. Archibald Scott and others, respondents.

Ordered: That this court take a recess from this date until Monday, the 7th day of October, 1889, at 10 o'clock, A. M., of that day, at the Capitol, in the city of Albany, then to continue the call of the present calendar.

represents the Ascension. Lord Hatherly, in delivering the judgment of the Privy Council, said: "It is been or is likely to be paid to any figures forming part not suggested that any superstitious reverence has of the reredos, and their lordships are unable to discover any thing which distinguishes this representation from the numerous sculptural and painted representations of portions of sacred history to be found in many of our cathedrals and parish churches, and which have been proved by long experience to be capable of remaining there without giving occasion to any idolatrous or superstitious practices." The St. Paul's reredos contains a sculptured representation of the Crucifixion and of the Virgin and Child. ΟΙ course the decision in the Exeter case does not necessarily imply, as the bishop of London seems to have assumed, the legality of the figures in the St. Paul's reredos. It was not denied that under the Public Worship Regulation Act some discretion is vested in the bishops, and as Mr. Baron Pollock pointed out in his judgment, if the bishop of London did not exceed the discretion so conferred on him, a writ of mandamus could not lie against him, for "a discretion which is capable of review is not known to the law."Law Times.

of the world, thinks drinking does not lead to crime, but attributes most crime to the influence of gambling and loose women. He does not believe much in religious influences nor "missions," and confirms Mr. Byrnes' stories about the missionaries abandoning and even denouncing the "star-actors who get tired of denouncing themselves. He agrees that the hardness of society has much to do with the matter, and believes that society is full of men who would be criminal if they had "a safe opportunity." Mr. Ridgeway thinks "many criminals have been reformed;" that society is unjust to the discharged convict; thinks long imprisonment does not reform but is necessary; does not believe in "prison conversions." Mr. Duffy thinks that convicts can be reformed "once in a great while; they are born bad;" believes in whipping; and is especially strenuous for more speedy punishment. Mr. Bass blames society, and gives instances of reformation. Mrs. Conger blames "the gin-mill on the corner;" says that "religious influence must be associated with bread and butter." She also makes this remarkable statement: "I do not believe in solitary confinement, and I do not think our prisons have any reformatory influence. When a boy begins going to the House of Refuge he keeps on going. You cannot blame the public for not trusting criminals more than they do. The people do frown upon them, and you and I know that we would not want to take a criminal in our house unless we watched him pretty well." Thus we have given an abstract of these opinions, but after all an inadequate account of them. They constitute a very characteristic body of opinion from persons well qualified to judge. We shall not assume to pronounce an opinion on a subject in regard to which we have no special knowledge, and which gives rise to such difference among those intimately acquainted with it. But we may be allowed to say that we believe that rum-drinking is at the bottom of nine-tenths of the hereditary tendency to crime and of the criminal conduct of the world. In short, that the suppression or diminution of crime would most surely be attained by striking at the root of intemperance.

in our opinion, a proof of the tenderness of human judgment that this law cannot be enforced. It does not tend to diminish suicides, for those who set about it always mean to succeed. If it has any effect whatever, it is to make suicidal attempts effectual. It perhaps does not do any hurt, but we cannot see that it does any good.

The deadness of the laws against prize-fighting is freshly testified to by the recent "event" in the South. Governors and attorney-generals and sheriffs of several States seemed powerless to arrest the impudent conquering march of a pair of worthless loafers and bruisers, and their equally worthless abettors, adherents and backers. Why is this? Simply because public opinion, even among the better classes, is not conclusively against prize-fighting. There is a secret admiration, even among women, for the brute courage, strength and endurance of the fighting athlete. "Kilrain receives the kind attention of the ladies" of the house whose proprietor owned and furnished the battle-ground. The shy Boston damsel (probably with smoked glasses on her nose) slides into Paul Gary's plaster-statuary shop in Province Court - with a proper hardened chaperone, of course and surveys the full length nude statue of the big exponent of Boston physical culture. Some years ago a lawyer in Troy met another lawyer of that city-a refined gentleman, an accomplished literary scholar, a wit and a poet with a copy of the Police Gazette in his hand. "What!" exclaimed the first, "do you read that paper?" "Certainly," was the reply, "what gentleman doesn't?" A good deal of truth in that. There is no type in our printing-house large enough to express the surprise, and none small enough to measure the contempt, with which we regard ourselves for eagerly perusing the accounts of the great "mill" in the World, Sun and other sporting journals. Even the dignified and moral Tribune gives it a column, and we should not be surprised if the Mail and Express reported it. Probably the editorial column of that issue will be headed with "Fight the good fight," or some other scriptural quotation suited to the church militant. But we must say, in our defense, that we were in hope that these bullies had

dead-letter law, namely, the law punishing attempts at suicide. We have never heard of a single instance of an enforcement of this provision of the Penal Code of this State. Public opinion seems to be in the way. People generally seem to think and we do not know that they are far wrong that suicide argues either insanity or a mind so distracted by misfortune, disease or unhappiness, as to make the offender an object rather of pity than of punishment. No one in a healthy state of mind and body ever voluntarily “left the warm precincts of the cheerful day.' Some of the wisest and best

ancient modern times have taken their

tacles are prize-fights, which nourish and draw out the tiger spirit even in refined gentlemen. More than twenty men have been killed in prize-fights in this century, and no one ever punished for it. Probably so vile an assemblage was never before convened in the United States, unless it may be that which annually hangs around our legislative halls in this State, and partly gets into them. But we must not revile the South for inviting and patronizing such affairs, when right here in Albany we cannot suppress or punish them.

NOTES OF CASES.

has two daughters by a former marriage, who keep house for him. It is also true that the appellee is a good woman. There is not one word of proof to the contrary. But she is a dress-maker by trade, and pursues that business, having under her charge most of the time quite a number of employees. She occupies a house of four stories, renting the rooms on the third and fourth floors, and reserving for herself the first and second floors. Being thus actively engaged in business she cannot devote to both of her boys as much time and attention as she would be able to give them if she were differently situated. Particularly is this the case with Arthur, who as the older of the two, will not be as much under her notice as his younger and more afflicted brother. Unquestionably no other person can feel for a boy, or show to him the love and affection which he receives from his mother. But the rule is that the right of the father is superior to that of every other person, and can only be made to yield when it is manifestly inconsistent with the health and welfare of the child.' 3 Smith Lead. Cas. 375. We cannot say that it will be 'manifestly inconsistent with the health and welfare of the child' Arthur that he shall be reared in his father's home, and under the care of his father and his older sisters."

ΟΝ

DEAD-LETTER LAWS.

[From the American Law Review.]

N New Year's day every well-ordered man forms a goodly number of excellent resolutions for the ensuing year. Lest he should forget them, he generally sets them down in writing in his diary. He determines to turn over a new leaf" in certain particulars, but the result usually is that he finds the old leaf so pleasant that he keeps on reading it, and forgets to turn over. Somewhat so it is with our Legislatures when they convene on the first day of the year. Conscious that they have left undone the things that they ought to have done, and done the things that they ought not to have done, and that there is no health in them, and to gain credit with their constituents at least for good intentions, our law-makers proceed to pass, or at all events to introduce, a certain number of good laws. As a testator frequently puts a number of pious ejaculations and phrases at the beginning of his will to condone the bitterness, meaness and revengefulness of his dispositions, so the legislators prelude their sessions by a chant, as of cherubim and seraphim, announcing their excellent intentions, but later they devote themselves to business that pays, either in vulgar cash or honorable preferment. Among the good intentions with which hell is paved, is this sort of legislation and legislative pretenses and professions.

It is in a measure due to this that our statute books are encumbered with so many dead-letter laws. Not altogether, for many of these laws are ancient-so ancient that the times have moved away from them, and they have lost their sanction and become obsolete in practice, although still preserving their theoretical and moral validity. Laws fall into disuse from indifference or from hostility. It is natural that a law abhorrent to the public moral sense should fall into disuse, or rather should never be capable of execution. The fugitive-slave law was a prominent example. I have seen the most eminent and respectable citizens of a community, without distinction of political party,

forcibly rescuing a negro slave from the clutches of this law. Indeed, I myself take pride in recalling, among my earliest professional recollections, having been a party to obtaining a writ of habeas corpus from our State court to a United States marshal-not worth the paper it was written on, in a legal sense, of course, but quite sufficient to get the negro into the hands of the sheriff, from whom he was rescued in short order by a "mob of gentlemen," and put on his way to Canada-one of the only respectable class of our citizens who have been much given to emigrating thither in late years. That was the only kind of mob I have ever been able to justify, and it was justifiable only by reference to the "higher law," which innately exists in the heart of every man who loves humanity, mercy and equality.

So also laws opposed to the common appetites and passions of a very large part of society become incapable of enforcement and thus dead-letter. It is always difficult to execute sumptuary laws, and it is impossible to execute a law so unpleasing to half the community as a prohibitory liquor law. The public do not feel on this matter as they felt toward slavery. No man in the free States desired slavery, because he could not make any money out of it; therefore every man could afford to take high moral ground. But in the prohibition States, half the community want rum and are determined to have it. Even the "mob of gentlemeu who fought to free the slave will have their wine and their occasional ingenious mixed drinks, which have earned for our country such an enviable foreign fame. And where high and low, in such great numbers, agree in disliking a law, that law cannot be euforced. Therefore in my judgment it is better to levy tribute on the thirsty ones to help pay the public expenses of society than to keep a dead statute on the books for the sake of a formal salving of the common conscience.

A very familiar example of a dead-letter law, directed to an offense against divine injunction, is the law against public cursing and swearing. This law is broken every day by little boys, too young to understand what they are saying, and by mature men, too callous to be conscious of what they are saying, frequently to the extent of shocking the passers in the street. I know even judges who break this law often enough to impoverish them if it were enforced. But no one thinks of enforcing it. The construction of the law by the courts is even designed to prevent its enforcement. For example, it was held in North Carolina not to be a nuisance to curse and swear so loud at a tavern as to break up a singing school near by. State v. Baldwin, 1 Dev. & Bat. 195. This indicates such stolidity that I should not have been surprised at a different result if the people at the tavern had complained of being disturbed by the singing. So in the same State the law is not so unreasonable as to deem it a nuisance publicly to curse and swear for two hours. State v. Jones, 9 Ired. 38. But then again, five minutes was held too long. State v. Chrisp, 85 N. C. 528. And it is generally held not within the law to utter a single profane oath. There must be what Falstaff calls damnable iteration." The law allows locus penitentia. Now swearing is almost as common as breathing; it "is neither brave, polite nor wise"which is good morals if bad grammar-and yet who minds it? Not the most religious man in the community. Not even the clergyman, who perhaps recalls how near to swearing the Psalmist often went. A vigorous enforcement of the law for a week would pay off the national debt at a dollar an oath. This is a deadletter law. It would be more respectable to abolish it than to preserve it in its "innocuous desuetude.' This law was abolished in our State in 1880, upon the adoption of the Penal Code.