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the word, is thus detined: - Een morgen lands (een. THEY Howing decisions were handed down Tues
the jury have the right to take into consideration the all cases where a free old is involved, etc. In 100 ml. fact that he is interested in the result of his prosecu- | 11, and id. 218, aud in 103 id. 180, it was held that a tion, as well as bis demeanor and conduct upon the freehold is involved in all cases where real estate is witness stand and during the trial; and the jury are claimed under a deed purporting to pass the title also to take into consideration the fact, if such is the which is sought to be avoided by an adverse claimant. fact, that he has been contradicted by other witnesses. In 105 Ill. 218, these cases in most sweeping language And the court further instructs the jury, that if, after are all overruled without referring to the cases at all. considering all the evidence in this case, they find that But what's more, the force of the argument, in this the accused have willfully testified falsely to any fact last case overruling these three cases, is directly repumaterial to the issue in this case, they have the right diated and denied by a decision of the court written to entirely disregard his testimony, excepting in so by another judge in 108 Ill. 650, and this without nofar as his testimony is corroborated by other credible ticing the case. And yet again in this first case, 100 evidence.” Held, that there was no substantial ob- Ill. 11, can be found expressions in the opinion, on an. jection to the instruction. (2) Whatever may be the other point, that are wholly irreconcilable with the rule in other States with respect to the right of a jury construction given to a statutory provision in 86 II. to convict upon the uncorroborated testimony of an 313. The fault is not in the judges; they are all accomplice, it is well settled that the right exists here, learned and able men; not in the want of a code, but and convictions ou such testimony will not be dis- in the “ assignment system.” turbed by this court on that ground alone. Collins v.
J. C. COURTNEY. People, 98 III. 584; Friedberg v. People, 102 id. 160.
METROPOLIS, Ill., June 10, 1885.
"INSTRUCTIONS AS TO DOMICIL."
N the “instructions" from the Department of CORRESPONDENCE.
State, given in our last issue, the words “in such
cases,” in $ 131, four lines from its end, should be “ MORGEN."
stricken out. Editor of the Albany Law Journal:
The last paragraph in Exhibit C. should be placed In 29 Alb. L. J. 15, of last April appears a communi
within inverted commas. cation from a correspondent asking for a definition of the word “ morgen as used iu descriptions of land in
COURT OF APPEALS DECISIONS. certain old deeds. Iu W. Sewel's Dutch Dictionary, Amsterdam, 1749,
day, June 16, 1885 : bestek van 120 voeden in t' vierkaut), about two acres of
Judgment of General Term and Sessious reversedground." The clause in brackets is thus translated: “A pre- Appeal dismissed with costs—In re application of New
People, respondents, v. Morris Marx, appellant.-cinct of 120 rods in the square."
York, Lake Erie & Western R. Co. for appointment HOWARD VAN BUREN.
of commissioners.- -Judgment reversed, new trial NYACK, June 8, 1885.
granted, costs to abide event-William Kirkland, ap
pellaut, v. Samuel Kille, respondent. Judgwent af. A REASON FOR INCONSISTENT DECISIONS. firmed-People, respondents, v. Joseph Bork, appel
lant.-Judgment affirmed, with costs-Casper WagEditor of the Albany Law Journal : In the last number of the Journal, in commenting R. Co. - Judgment affirmed with costs-Eliza Bai
ner, respondent, v. New York, Lake Erie & Western on the breezy book” of Gilbert, of Ottawa, I11., you ley, administratrix, etc., respoudent, v. Boston, Hoo seem to attribute the inconsistencies of the Supreme
sac Tumel & Western R. Co., appellant. ---Appeal Court of Illinois to what you call “the crying need of
dismissed with costs-People ex rel. Albany Bridge a code.” May not this be due to the vicious system
Co., respondents, v. William J. Weayer and others, adopted by the court of assigning cases to single judges to write the opinions, without any previous de
assessors, etc., appellants. — Appeals dismissed with termination by the court as to what those opinions Rasback, respondent; and Same, appellant, v. Benj.
costs-James H. Woodford, appellant, v. David H. should be when written?
Under this system the judges themselves must feel that the decisions of the
F. Chapman and others, respondents. --Appeal dis
missed with costs-Frederick Robinson, appellant, v. court are in fact the individual opinions only of the
Peter Helferick, respondent. — Judgment affirmed particular judges writing them, and not the solemn determinations of the court. Most of the inconsisten- O'Conner and others, respondents.
with costs-James Carrigan, appellant, v. Thomas H. cies seemingly occur by one judge expressing his opinion as the opinion of the court, without even noticing a contrary opinion expressed by some one of the other
NOTES. judges in a previous decision. The last opinion is perhaps hastily read in consultation. The tired judges “Proceedings on the foot of a judgment." These of sit listening, with thoughts perhaps far away. No no. course are the last proceedings.—Mr. Fred. Geller, tice is taken of the former decision. The doctrine of of this city, carried off the prize at Columbia Law stare decisis is not discussed. Nothing striking the School, for the best essay on the Force of Judgments of ear of the sometimes impatient and often-tired judges other States. His essay is said to be an excellent proas being exceptional, the opinion is courteously acqui- duction, and is printed in full in the Columbia Jurist. esced in and adopted; hence the inconsistencies. A -Here is another unrestrained Beecher. Mr. J. A. code would hardly remedy this evil, for this contra- Beecher, of Newark, N. J., writes The Nation, thanks riety sometimes occurs concerning the construction it for denouncing Judge Van Brunt, and demanding given to a plain statutory provision. For instance: that he be impeached for the protection of lawyersThe Statute of Illinois provides that appeals may be so he says, although we cannot see what the judge has taken direct from the Circuit to the Supreme Court in done against the lawyers.
The Albany Law Journal.
spectators did not want to be hit.
At this juncture the judge “ leaped ?) into the
(Why “arena” we can't conceive, unless for the sand in ALBANY, JUNE 27, 1885.
the "spittoons.") But the judge "waltzed in,"
and a third attorney, in sympathy with the county CURRENT TOPICS.
attorney, hit him under the ear.
This was no way
to gain the ear of the court. For a moment the AN N association has just been formed in this city judge was dazed,” but instantly recovered, and it
for the “enforcement of law and order.” It proved." cold days ” for the lawyer, for the judge is without distinction of sect or party, and its ef
immediately laid down the law and the lawyer, and forts are to be restricted to the attempt to shut up the wallopped the latter heartily — " threw him out of grog-shops on Sunday. Nothing can well be said court," so to speak. Then the judge grabbed one against any attempt to enforce the laws, especially of the two principals, and two jurymen at his comin a matter so essential to the prosperity of society mand captured the other. He fined the principals as this. Of course the grog-shops will complain, fifty dollars cach, and then adjourned court
, as all not content with their license to debauch their
hands were bleeding profusely. It is feared a weak fellow creatures and deal death and damna
tragedy ” will ensue. We shouldn't wonder. tion around the land on the other six days of the
But we are wagering all our worldly possessions on week. Of course it will be dificult to carry out Judge Beekman, especially as he did not deem it this law. The grog-sellers will laugh at the at
necessary to fine his own particular combatant. He tempt. Certain politicians of the baser sort, whose
is a man after our own heart, and his method is advancement depends on the suffrages of those
sure to reduce "the law's delays.” We are glad it who sell and drink the stuff in question, will be in
was only a murder trial that was thus interrupted. different or even hostile. But these people will
If it had an indictment for carrying concealed find out, we hope, that the aroused conscience of a
weapons, the principals would have felt foolish at
the consciousness that each had a community is irresistible. Politicians found that
weepon” humpout at the last election of governor in this state. ing out his hip-pocket. We hope our brethren will They will find it out again on a smaller scale in
lay aside these "guns
" when we come down to this city. Our local laws shall not be disregarded
visit Judge Beekman, as we propose to do at our
earliest convenience. We will warrant that he and defied. Our Sunday shall not be made the worst day of the week, sacred to wife-beating, de
doesn't carry any knives or pistols, nor any bauchery, disorder, and all crime. The newspapers
"knuckles," save those which nature has gifted
him withal. treat the movement very gingerly, but we believe
Oh, that Ben Butler or Bob Ingersoll
would tackle him!
It is gratifying to see a dead-letter law enforced. officers will not enforce them, we will see about
The conviction of Buddens iek, for putting up getting some who will. Let the law-breakers stand paper-houses, and thereby crushing sundry fellowfrom under !
beings to death, is a wholesome example. The
matter of making buildings safe against falling and If any lawyer, “ with whom time lags withal,” fire has been too long notoriously neglected. Budwill first read, as an
eye-opener,” the article of densiek seems to have carried things with a high Mr. Hopkins, ante, 284, and then take the latest hand, and it is well to begin with him. It may
seem hard to him and to some others that a man edition of the statute (seventh), which of course is the best, and note the changes effected by the Leg
who did not intend any wrong should suffer. But islature of 1885, he will find that chapter 489
this man is just as culpable as one who points a pisof the Laws of 1879, which ought to have been
tol, supposed to be unloaded, at another, and it insured a place therein, has been entirely omitted.
goes off and kills or hurts. All this fooling with That any thing could have escaped the codifier who
human life, whether by practical joking, or by the so greatly simplified the Code of Procedure, and
selfish greed of careless builders or grog-sellers,
must stop. whose capacity is so well known in legal circles, fills
At all events, the laws must be enone with wonder and amazement, and we are led
forced. The district-attorney's office in New York to exclaim, “who is sufficient for these things,
deserves credit for this prompt conviction. It will when they escape Mr. Throop.
prove an effectual lesson.
There was a “lively scene
in Texas court But while we are in favor of enforcing the laws, room, A gentleman was on trial for murder.
we are not in favor of a brutal enforcement. It is attorneys had been working hard all day in trying bad enough for a man to beat his wife. It is still to get a jury, and were nervous. One said some- worse for the State to beat him for doing it, or for thing that “riled” the county attorney, and they any thing else. The sheriff whipped a man brucame to blows. The court room was quickly emptied, tally and publish the
Seithe Wine,” Seito aylancoezende, for both men
were “undoubtedly armed,” and the
VOL. 31 - No. 26.
remedy; it makes him revengeful; he will always not worse explicitly to inculcate or practice a posiache to kill that sheriff, and we do not wonder. It tive crime than to sell news or tales of crime? tends to make a brute of the oficer inflicting it. Their religious pretense or belief does not help the A self-respecting man ought to decline to dirty his Mormons any more than it would the Thugs. hands with it. In old times they used to keep butchers off juries in England, from the popular notion that they were blood-thirsty; a mistaken no
NOTES OF CASES. tion probably. But we do believe that the custom of requiring a public officer to whip his fellow.
IN Davies v. Gallagher, Pennsylvania Common beings till they bleed and faint, and sometimes
Pleas, December, 1885, 16 Week. Notes Cas. come near dying, is very reprehensible. If we must | 147, it was held that the warden of a penitentiary beat criminals, let us have a machine for doing it, I cannot be made a garnishee in respect to money belike a carpet-beater.
longing to a prisoner. The court, Thayer, P. J.,
said: “The warden is the chief executive officer of Our excellent contemporary, The Independent, the penitentiary, and the duties and responsibilities late spoke of a new penal law in Tennessee, forbid- imposed upon him by act are very onerous. ding the teaching of polygamy, or emigrating for He is required to reside in the penitentiary, to the purpose of practicing it. Certain Mormon el visit every cell and apartment, and to see every ders arrested under the law propose to test its con- prisoner at least once a day. There are now more stitutionality, and The Independent observes: “We than one thousand such prisoners. He must keep have no sympathy with Mormonism, as a doctrine, a journal, in which are to be entered all receptions, believing it to be a gross, religious imposture, cun- aischarges, deaths, pardons and escapes of prisonningly palmed off upon ignorant persons by an artfulers, and all complaints made and punishments inpriesthood; and we hold in utter abomination the flicted, the visits of the inspectors and physician, practice of polygamy, and have urged the govern- and all other occurrences that concern the state of ment of the United States to prosecute and punish the prison. He is to appoint and dismiss all the it as a crime in all places in which it las jurisdic- underkeepers and servants, to report to the inspecttion for this purpose. And yet at the same time, ors all infractions of the rules and inflict all puinwe find it impossible to accept the Tennessee plan ishments. His duties are in short so exacting, and as just and right for dealing with those who are require such constant attention, that he is probibmerely teachers of polygamous doctrines. It seems ited by law from absenting himself from the penito us a plain and palpable violation of the funda- tentiary for a single night without permission in mental principles of this country in respect to the writing from two of the inspectors. His necessary right of free discussion. We would just as soon
and imperative duties demand and fill up his wbole pass a law making it a penal ollense for any person time. That such a public officer should be harto preach the doctrines of atheism, or induce other assed with attachments against his prisoners, in persons to accept these doctrines, or to preach any which he is made garnishee, is clearly against pubsystem of generally acknowledged error.
The lic policy and contrary to law. Considerations of right of free discussion may have its incidental public policy and convenience require that money evils; but when this right is not so exerciseid as to in the hands of such officers shall not be stopped invade private rights, as in the case of slander, the whilst in custodia legis. If the warden should be better way — indeed the only safe way — is to leave obliged to answer such attachments his attention free discussion to supply the necessary cure for would necessarily be diverted from his legitimate these evils. This is better than the Tennessee law.” | duties, to the great detriment of the prison manThis we think fails to discriminate between the agement, for he would be compelled to appear in proper inculcation of religious opinions and of the court, employ counsel, answer interrogatories, colpractice of a recognized crime.
Atheism is not a lect evidence, and to devote the time which is recrime; bigamy is, in every civilized community, quired to be given to his duties to watching the and as such, the inculcation of it is a proper matter progress and conducting the proceedings of law of police regulation. In the next column The In-suits. He belongs to that class of public officers dependent says:
“ On the first of June an excellent which is exempt from the process of attachment law, passed at the last session of the Connecticut against funds in their official custody, like the treasLegislature, took effect throughout that State. urer of a board of school directors (Bulkley v. It provides for the imposition of a fine of fifty dol. Eckert, 3 Barr. 368); the prothonotary of a court lars or less, or imprisonment for three months or (Ros8 v. Clarke, 1 Dal. 354); a justice of the peace less, or both, on persons selling or keeping for sale Corbyn v. Bollman, 4 W. & S. 342); a sheriff (Bentpublications devoted to criminal news or stories of ley v. Clegg, 1 Clarke, 62); a constable (Crossen v. crime. It is said that the law has already had the McAllister, 1 id. 257); State and county treasurers effect of purifying the news stands. Connecticut and officers of municipal bodies (City of Erie v. has set an example that the other States should Knapp, 5 Casey, 174). The performance of public hasten to follow." This we think is right. But duties by officers of this class is sufllciently diftiThe san The Illinois provide us discriminate? Is it | cult and onerous without complicating them with taken direct from the Circuit to the Suprem
law suits between other persons in regard to funds improper way of getting upon the train. But we in their official custody. Besides, the warden holds think that he could not assert them until he had the personal property of the prisoners in his charge passed the danger which met him at the threshold, upon an official trust created by law. It is to be and had put himself in the proper place for the “preserved by the warden, and to be restored to carriage of passengers. It is no answer to say that the prisoner on his discharge.' It is in custodia he was prevented from doing so by the defendant's legis. It cannot be seized by a creditor or diverted fault. There was no evidence that the deceased to any other purpose. The warden's duty is to was compelled to remain on the step of the platkeep it for the prisoner, and he cannot lawfully rid form. But even if the jury would have been war. himself of the trust except by delivering the prop- ranted in finding that there was such a crowd that erty to the prisoner when he is discharged." the deceased naturally stopped where he was, al
though not strictly compelled to do so, and that In Merrill v. Eastern Railroad Co., Supreme Court
the crowding was due to the defendant's fault, still of Massachusetts, the plaintiff's intestate was rid
there was no fault as toward the deceased, because ing upon one of the engines of the defendant. the defendant was not bound to provide for the The train having stopped at a station he got off contingency of people getting upon the train after
it had started." the engine, and after the train had started ran and jumped upon the step of one of the passenger cars. Owing to the crowded condition of the car and In Anheuser-Busch Brewing Association v. Piza, platform he was unable to get into the car, and re- United States Circuit Court for the Southern Dismained on the step. When the train had gone trict of New York, it was held that the plaintiff, of about half a mile, he fell off the car and was killed. St. Louis, making and exporting beer under the Held, that he was not a passenger, and the company name of “ St. Louis” beer, might restrain the dewas not liable for his death. The court, Holmes, fendant, of New York, from the use of that name J., said: “If we should assume that the deceased to his injury. Wallace, J., said: The defendant had acquired the rights of a passenger, and that alleges that purchasers of beer at Panama and the defendant failed to make proper provision for the other places in question in South America do carrying passengers, or that the train was not discriminate between the complainant's article loaded by the unfitness of the defendant's servants, and other beer made in the United States, but buy still we should have some difficulty in saying that it simply because they suppose St. Louis lager beer the overloading was the cause of the death, not- is beer produced in the United States as distinwithstanding Commonwealth v. Boston & Lowell | guished from German and English beer. Railroad, 134 Mass. 211. For if the place which be true, but if it is, it does not seem conclusive the deceased took was unfit and dangerous its un- against the right of the complainant to the injuncfitness and danger already existed, and were mani- tion which he seeks. As the goods of the parties fest before he took it. If there was a crowd on the go to the same markets it can happen that the complatform the deceased saw it. And certainly the plainant will lose sales, and the defendants will get argument would be strong that he, rather than the customers in consequence of the defendant's acts. defendant, was the cause of his being where he Although the complainant cannot have an excluwas, and of his exposure to the danger incident to sive property in the words 'St. Louis 'as a tradethat place. But we do not pass upon this point, mark, or an exclusive right to designate its beer by because we cannot assume that the deceased had the name 'St. Louis Lager Beer,' yet as its beer has acquired the rights of a passenger. He did not do always been made at that city, its use of that desso when he got upon the engine, a place to which ignation upon its labels is entirely legitimate, and he was not invited, and which every one knows is if the defendant is diverting complainant's trade not intended for passengers, and where in this case by any practices designed to mislead its customers, he would have escaped paying fare, as it was inac- whether these acts consist in simulating its labels cessible to the conductor. Then, supposing that or representing in any other way his products as his start upon the engine did not give a character those of the complainant, the latter is entitled to to his subsequent relation to the defendant, and protection. It is no answer for the defendant, that the deceased was in the same position as if he when the complainant asks for protection, to say had attempted to get on at East Salisbury for the that it has no exclusive right to designate its profirst time, it is clear that when he attempted to get duct in the manner, although this might very propupon the moving train after it had started, he was erly be asserted by a competitor selling beer made outside of any implied invitation on the defendant's at St. Louis, or who by reason of any circumstances part, and did not at once acquire the rights of a might be entitled to represent his product as origipassenger in the hands of a carrier. We may ad nating there. Canal Co. v. Clark, 13 Wall. 332." mit that if he had reached a place of safety, and Citing Neroman v. Alvord, 51 N. Y. 189; S. C., 10 seated himself inside the car, the bailment of his | Am. Rep. 588; and the cases of “Glenfield Starch,” person to the defendant would have been accom- Wotherspoon v. Currie, L. R., 5 H. L. 508, 513; plished; and that he would not have been pre- "Anatolia Liquorice," M’ Andrew v. Bassett, 10 Jur, vented from asserting such rights because of his (N. S.) 492 ; " Seixo Wine,” Seixo v. Provezende,
L. R., 1 Ch. App. 192. “It is unnecessary for present | v. Chicago, 4 Wall. 657.
Such an excavapurposes to consider whether the complainant has | tion in a street, unless protected to guard persons a valid trade-mark, or can have a technical trade and animals using the street from falling into it, mark in the name St. Louis; it is sufficient that it was necessarily dangerous. The city was under the was lawful for the complainant to use that name to statutory obligation at the time of the accident to designate its property; that by doing so it has ac- keep its streets open, in repair, and free from nuiquired a trade which is valuable to it, and that the sance, and it could not cast this duty upon a condefendant's acts are fraudulent, and create a dis- | tractor, so as to relieve itself from liability to one honest competition detrimental to the complaint.” who should receive an injury. It is primarily lia
ble for an injury resulting from such a dangerous In Pritchard v. Hamilton, in the Supreme Court of | to assume the risk of such damage it may have a
place in a street. If it has required the contractor the Second District, Judge Bartlett has recently de remedy against him. But the public in the use of cided a rather novel question. The action was brought the streets may rely upon the legal obligation of to recover five months' rent of a dwelling-house in the city to keep them free from dangerous places, Fort Greene Place, leased by plaintiff to defendant
or if such places ecome necessary to be made in for one year, the lease being signed by both parties.
the course of an improvement or work necessary or The defendant's only defense was that after the ex
proper for the city to do, that it shall so guard ecution and delivery of the lease the plaintiff had them that no injury shall result in the ordinary use without his consent affixed seals to the signatures. of the street." Judge Bartlett decides that the addition of the seals was immaterial, and says: “Upon the author
TRIAL BY JURY, AS IT IS AND AS IT SHOULD BE. ity of Green v. Elwell, 13 W. Dig. 236, I think the plaintiff is entitled to judgment under the stipula
ПНЕ tion herein. Independently of authority however,
of some of the defects and inadequacies of that I aim of the opinion that the addition of a seal even system of trial, is deserviug of much more attention on by the plaintiff, where it adds nothing to the effi- the part of the legal profession and of the law-makers cacy or enforceability of the contract sued upon for than it is accustomed to receive. That this mode of the purposes of that suit, should be deemed imma- trial, in both civil and criminal causes, cannot be too
highly valued nor too firmly adhered to, goes without terial.”
saying; yet considered in its practical aspect it is
hardly what we would wish it to be, and is capable of In Circleville v. Neuding, 41 Ohio St, 465, where vast improvement. It unquestionably falls sbort of a city contracted for the construction of a cistern the results which should flow it, because of the uneighteen feet wide and twenty feet deep in a street,
wisdom of many of the rules by which it is goverued, and before it was completed a horse fell into it and and the manner in which some of those rules are ap
plied in our courts. was killed, for want of a sufficient guard around it,
That no man should be deprived of life, liberty or held, that the city was liable, although it did not property, or have any of his vested rights abridged, reserve or exercise any control or direction over the except by the impartial judgment of his peers, is a manner of doing the work, except to see that it proposition to which almost universal assent is given. was done according to specifications, which were a
It can safely be said that no lawyer of experience, and
no experienced layman for that matter, can seriously part of the contract. The court said: “The rela
advocate the abolition of trial by jury. The idea, it is tion between the city and Barndt was clearly that true, has occasiovally been voiced, but the speaker bas of employer and independent contractor, and the been generally found to be either a man wbo kuew rule is generally that for injuries occurring in the better and was not siucere in his utterances, or an im
becile who knew not what he was talking about. There progress of work carried on by parties in that rela
can be but one sound aud healthy opinion on the subtion, the contractor alone is liable. But this lia
ject. From the time of Magna Charta trial by jury has bility is limited to those injuries which are collat- been wisely regarded as the supremest blessing seeral to the work to be performed, and which arise cured to mankind in their civil and social life. In our from the negligence or wrongful act of the con- own country the natural rights of life, liberty and the tractor of his agents or servants. Where however
pursuit of happiness, together with the civil right of
trial by jury, compose the creed of the citizen. And the work to be performed is necessarily dangerous,
the opinion is growing in this country that this mode or the obligation rests upon the employer to keep of trial should not be confined to the narrow spbere in the subject of the work in a safe condition the rule which it is now applied, but that it should be ex. has no application. This distinction has been taken teuded so as to cover every case where questions of in this State in a number of cases. Carman v.
fact are involved in an action in the courts of equity
as well as the courts of law. Railrond Co., 4 Ohio St. 399; Tiffin v. Mc Cormack,
It is believed that thereby the ends of justice would 34 id 638; Hughes v. Railway Co., 39 id. 461, and be surer of attainment in our courts. It is believed elsewhere, in McCafferty v. Railroad Co., 61 N. Y. that a petit jury, intelligently and properly drawn 178; S. C., 19 Am. Rep. 267; Prentiss v. Boston, from the body of the people, are calculated to arrive 112 Mass. 43; Baltimore v. O'Donnell, 53 Md. 110; at a more impartial and correct conclusion on given S. C., 36 Am. Rep. 395; Logansport v. Dick, 70 Ind. / questions of faot between litigants than any individ
ual judge, however learned and experienced he may 65; S. C., 36 Am. Rep. 166; Crawfordsville v.
be, and however desirous of doing right. It is the opin. Smith, 79 id. 308; S. C., 41 Am. Rep. 612; Robbins ion of many members of the profession, who have given