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But do what we might, some pert blockhead would Judgment affirmed with costs-Smith v. The State. claim
- Judgment of General Term and that entered on He never could equal his ancestor's fame!
the report of the referee reversed, new trial granted, And at the fool's whisper his proud heart would costs to abide the event-Jacob P. Finley et al., appelsob,
lants, v. Edwin Tracy, respondent.--Order affirmed Yet conceal with grim hauteur each agonized throb. and judgment absolute ordered against the plaiutiff
on the stipulation with costs, Robert S. Hayward, apBut in the meantime he had taken his seat,
pellant, v. Fred. A. Conkling, respondent. Appeal Where too long I have left him, perhaps, to com. dismissed with costs—Charles G. Hill, respondent, v. plete
Wm. H. Van Schoonhoven et al., appellants. -Order This imperfect sketch - when the judge did im- affirmed with costs—Catherine W.Prentiss, respondent, pose
v. Charles M. Cornell et al., appellants. Appeal disOrder and silence, he haughtily rose!
missed with costs-John R. Duff, respondent, v. Wm. So gudden the transfiguration, no trace
J. Hutchinson et al.-Appeal dismissed with costsOf recent indulgence appeared in his face.
People v. Knickerbocker Life. Ins. Co.; claim of Borda. Every eye was upon him; so still was the stop Order affirmed with costs-People v. Globe Mut. Life Of hilarity's ball you might hear a pin drop. his. Co.; claim of Oeslerte.- --Order affirmed with
costs, People ex rel. Ernest Drevet, respondent, v. New “In this throng of jesters, if any there be
York Fire Commissioners, appelants.- -Order affirmed Faultless, let him cast the first stone at me!"
with costs-Remington Paper Co., appellant, v. Anna
M. Dougherty et al.- Order affirmed with costs; in He paused, and the stately head, solemn and slow,
two cases- - Attorney-General v. Continental Life Ins. Stooped for the missile none ventured to throw;
Co.-Order of General Term reversed and that of
Special Term affirmed with costs-In re Petition of
Hearn to vacate assessment. --Order affirmed with
Jolly, appellant.- Appeal dismissed with costsHimself worthy of man's noblest aim,
Philip Weeks, respondent, v. Wm. H. Clark, et al., And to leave at God's bidding an uusullied name
appellants. --Appeal dismissed with costs-Nelson C. To those who come after, revered, and enshrined
Reed et al., respondents, v. Equitable Life Ins. Co., apTo Time's latest sands, in the love of his kind,
pellauts.—Order affirmed with costs— Toronto Gene'Tis he you subjected to insult just now!”
ral Trust Co., respondents, v, Chicago, B. & Q. R. Co. He dashed with his white hand the bead from his
et al., appellants. --Appeal dismissed with costsbrow,
Northampton Nat. Bank, respondent, v. Lucien H. O’er the hushed bar a scornful, defiant glance Niles, appellant. Order affirmed with costs-Mary threw,
F. Rogers v. Sarah James et al. -Order reversed and
appeal to General Term dismissed with costs—In re
American Tool Co., appellant, v. George J. Smith, re-
spondent.-Order affirmed with costs-Horatio G.
Onderdonk, respondent, v. Wm. Conselyea et al., appel4 MYER'S FEDERAL DECISIONS.
lants.- Order affirmed with costs-Kate Moebus, This volume contains the titles Bonds-By-Laws appellant, v. Henry Harmon, respondent. -Order of The subject of Bonds is supervised by Mr. John w: Special and General Terms reversed, and motion to Daniel, the well-known author of the best treatise on change place of trial to Albany county granted, with Negotiable Instruments, and covers 926 pages. The costs of appeal in the Supreme Court and in this court table of cases reported and digested covers 10 pages; and $10 costs of motion-David D. Acker et al., rethat of cases cited, 14 pages; and the index 39 pages. spondents, v. Charles E. Leland and another, appelCertainly so far the work is amply fulfilling the pub- lants.--Appeal dismissed with costs—In re Petition lisher's promises, and our confidence in its practi- of Prescott H. Butler, administrator, etc. -Appeal discability increases with every issue.
missed with costs-Alex. T. Arthur, appellant, v. Sol.
Thomas Kelly, respondent, v. Emeline W. Kerr, indi-
vidually, etc., et al., appellants. -Order affirmed with An Essay on Professional Ethics. By Hon. George Shars
costs-In re Bank of Sing Sing, appellant, v. Horace wood, LL. D. Fifth edition. Philadelphia, T. & J. W.
Baker, respondent. -- Judgment of General Term and Johnson & Co., 1884. Pp. 214.
proceedings of commissioners removing relator reWe are glad to see that a new edition of this admir versed, with costs in the court and in the Supreme able and celebrated production is required. So much Court-People ex rel. Edward A. Damahout, appellant, grave, pure, and mild wisdom is not contained in
v. New York Fire Commissioners, respondents. Judgequal compass in any other words ever addressed to
ment affirmed with costs-John Logan, respondent, our profession. It will constitute an invaluable legacy to us and a lasting monument to its revered
v. Ogdensburgh and Lake Champlain R. Co., appellant. author. The volume is prefaced by an excellent me
-Motion to amend remittitur granted and judgment morial of the late chief justice.
ordered as specified in memorandum-Herman Veeder
titur denied-People v. Joseph Bork. COURT OF APPEALS DECISIONS.
Ordered: That this court take a recess from this
date to Monday, October 6, 1884, at ten o'clock A. M., 'HE following decisions were handed down Fri- at the Capitol, in the city of Albany, then to proceed day, June 27, 1884:
with the call of the present calendar.
The Albany Law Journal.
Tua. promised pamphlet on “ Codification in the
continuous sitting of thirty-seven working days the Court of Appeal cannot try appeals as fast as new
ones are set down, and the labor of five judges of ALBANY, JULY 12, 1884.
first instance can only reduce the arrears by two mat
ters apiece, and this at a time when the slackness of CURRENT TOPICS.
new business is the subject of universal complaint.
Much as we deprecate the unnecessary increase of AT
the judicature, it now seems inevitable." (Sic). State of New York,” which we predicted would make Mr. Carter sorry, has been published. It is The Massachusetts Supreme Court in the Cowley by Mr. Robert Ludlow Fowler, who needs no intro- case have made a decision that will be a surprise to duction to our readers, for his “Organization of the the bar and to the public. This was an action of Supreme Court of Judicature of the State of New libel, against the Boston Herald, for publishing a York,” and his “Observations on the Particular petition for the disbarment of the plaintiff, before Jurisprudence of the State of New York,” published hearing. At the trial the action was dismissed, on in this journal, are familiar to them all, and to all the ground that the publication was privileged, but legal scholars in this country. Mr. Fowler is a the Supreme Court have reversed this. They obstudent of the greatest patience and exhaustiveness serve: “It is desirable that the trial of causes should of research, and he writes in a style of singular ele- take place under the public eye, not because the gance, exactness and clearness, disfigured by none controversies of one citizen with another are of pubof the affectation of abstruseness which character- lic concern, but because it is of the highest moment izes too many of our modern law-writers who treat that those who administer justice should always act of the scientific or philosophic side of the subject. under the sense of public responsibility, and that He possesses a sufficient amount of vigor, too, when every citizen should be able to satisfy himself with vigor is necessary, and yet he is never offensively his own eyes as to the mode in which a public duty personal. He justly deprecates the personalities | is performed. If these are not the only grounds into which the argument on Codification has fallen, upon which fair reports of judicial proceedings are in newspaper and legislative discussion. We have privileged, all will agree that they are not the least read Mr. Fowler's pamphlet with great pleasure and important ones. And it is clear that they have no instruction. It seems to us quite conclusive. It is application whatever to the contents of preliminary evident that the author knows what he is talking written statements of a claim or charge. They do about, and if he leaves the impression that Mr. Car- not constitute a proceeding in open court. Knowlter did not always exactly know what he was talking edge of them throws no light upon the administraabout, we must charitably assume that as all things tion of justice. Both form and contents depend are not to all men, it is too much to expect that one wholly on the will of a private individual, who may man can at once be a leader of the bar in these not be even an officer of the court. It would be times and a profound civil law scholar. We heart- carrying privilege further than we feel prepared to ily wish that we could find room for some adequate carry it, to say that by the easy means of entitling extracts from this admirable essay, but really it and filing it in a cause a sufficient foundation might deserves a consecutive reading by every lawyer who | be laid for scattering any libel broadcast with imhas any care for any thing beyond bills of costs. punity, and we waive consideration of the tendency We cannot however deny ourselves the pleasure of of a publication like the present to create prejudice, quoting a few words in answer to Mr. Carter's argu
and interfere with a fair trial.” This sounds to us ment that Codes savor of despositism. Mr. Fowler like good sense.
It will teach the newspapers not says: “In this State where the people make the to be too "previous.” laws, the people alone codify them, and they are not likely to be frightened by shadows into remaining buried under a mountain of laws, statute and
Mr. John D. Lawson has prepared the third and non-statute a very Pelion on Ossa
concluding volume of his “ Leading Cases Simpliunder other circumstances and conditions a people fied,” devoted to criminal cases. This is perhaps the with a despot had a code.” We can safely assure
most interesting volume of the series, and fully esour readers that this essay is the most accurate and
tablishes the author's claim to be admitted into the condensed statement of the origin, growth, char
select “circle” of American humorous law reportacteristics and capabilities of Codification that has
ers, hitherto consisting of Mr. Rogers and ourbeen written in English, and that there is not a dry ought not to be admitted by reason of his cloquent
selves. (We have some doubt whether Mr. Wallace or obscure paragraph in it.
head-notes.) It is probably supposed that we care
fully read every law book through before we review We have had England cited to us all our days as it, but this is a mistake. We do not read every law a country where fewer judges than we have in this book clear through, but we read enough to get hold State keep up with the business of the courts. But of the plot and see how it turns out. We have now it seems that the business is getting the upper however substantially read this volume ot Mr. Lawhand of the judges. The Law Times says; “in a son's through, and any lawyer taking it up will find
VOL. 30-No. 2.
" For a
it hard to lay it down. It is not only beautifully well that this is so. In a country where changes of clear and concise in its statement of the cases, to opinion and policies are so frequent it is well to have say nothing of its lambent humor, but it is furnished one conservative department. For much of the unwith most excellent notes. In short, as a serious certainty of the law judges are not justly censurable. and useful handy treatise on criminal law it has no The law is not an exact science, and neither legis. rival. We commend it to all our brethern for vaca- lation nor judges can make it so. Science is truth tion, as not only palatable but nutritious. Especi- | ascertained — in law you can never feel certain you ally do we commend Mr. Lawson's “Assize Sermon have reached that point." to the Judges of Appeal," appended as a note to the Chicago newspaper contempt case of People v. Wil80n, 64 III. 195. Would that all clergymen had as
NOTES OF CASES. much sense as our learned and reverend brother! The book is published by F. H. Thomas & Co., St.
N Norton v. Knapp, Iowa Supreme Court, June Louis.
10, 1884, 19 N. W. Rep. 867, it was held that
the words “kiss my foot," with the drawee's signaWhen we published Mr. Parmenter's verses last
ture written on the face of a bill presented for acweek we expected to be overwhelmed with letters ceptance, do not constitute an acceptance. The of inquiry as to the originals of the complaisant court said: “The rule we understand to be, if the judge and the inebriate attorney, and we even an
drawee does any thing with or to the bill, or writes ticipated receiving some remonstrances from bench thereon any thing which does not clearly negative aud bar on the score of the evident “personality" an intention to accept, then he can or will be of the verses.
So we wrote Mr. Parmenter, asking charged as an acceptor. The question then is what who the attorney was. To which he replied that it
construction should be placed on the words 'kiss is a fancy sketch, and exhorts us not to be dis- my foot,' written on the bill and signed by him ? tressed for ourselves, as he has never heard of our They cannot be rejected as surplusage. Such lanbeing intoxicated!
guage is not ordinarily used in business circles or
polite society. But by their use the defendant In a very excellent after-dinner speech in Arkan- meant either to accept or refuse to accept the bill. sas recently, Judge Caldwell, of the United States It cannot be he meant the former, therefore it must Court, thus spoke of the common law:
be the latter. It seems quite clear to us that the dethousand years judges have been talking about the fendant intended, by the use of the contemptuous common law and affecting to decide cases according and vulgar words above stated, to give emphasis to to that law. What the common law is, who made his intention not to accept or have any thing to it, and where it is to be found, not one of them can
do with the bill or with the plaintiff. We undertell you. They tell you the United States has no stand the words, in common parlance, to mean and common law of its own and that the States have express contempt for the person to whom the words none, but that the English common law is our in- are addressed, and when used as a reply to a reheritance. I am sorry we fall heir to any such quest, they imply, and are understood to mean, myth. You all recollect Mrs. Gamp, Sarah Gamp, decided, unqualified and contemptuous refusal to Dickens' celebrated professional nurse. During a comply with such request. In such sense they were long life she was constantly quoting the opinions of undoubtedly used when the defendant was reMrs. Harris, a purely imaginary person, in order to quested to accept the bill. The question asked upon give more weight to her own. When we come to this point must be answered in the negative." the common law the judges are all Sarah Gamps and the common law is Mrs. Harris. Notwithstanding In Merchants' Bank v. Schulenberg, Michigan Suthat the common law is the invisible and intangible preme Court, June 11, 1884, 19 N. W. Rep. 741, it thing I have described, it is the most difficult law was held that when a defendant has given notice to get rid of in the world. You can repeal one stat- of a set-off, and claims a balance, the plaintiff canute by another, but it takes three statutes to repeal not discontinue without consent of the defendant. a rule' of the common law. This results from the Sherwood, J., said: “The right of the plaintiff at maxim that a statute contrary to the common law common law to voluntarily submit to a non-suit, or shall be strictly construed, which is interpreted by to discontinue bis suit at any time before the jury the judges to mean, shall be construed to have no have rendered their verdict is well supported by effect. This maxim is applied by the judges until the authorities, and has always been the practice in the Legislature has re-enacted the statute in different this State when no set-off has been pleaded. 3 Chit. forms about three times.
Law like every
Pr. 910; 1 Burrill Pr. 241; Wooster v. Burr, 2 thing else is amenable to the law of evolution. It Wend, 295; Circuit Rule 26; 1 Greenl. Pr. 447, 279; must grow, expand and develop to meet the altered Slocomb v. Thatcher, 20 Mich. 52. I think that conditions of society. Judges and lawyers, as a when the set-off is purely defensive, and no affirmaclass, are extremely conservative. They are slow tive action is required on the part of the court or to adopt new methods of procedure, or change rules | jury, the right of the plaintiff to become non-suited of decision, although it may be obvious that jus at his pleasure, before verdict or judgment, should tice would thereby be promoted. It is probably be in the discretion of the court; which discretion
should not be exercised against the right, except in the plaintiff to discontinue, which is all that is neccases where the rights of the defendant might be essary to sustain this judgment." prejudiced. Under the statute however, authorizing a judgment to be rendered in case of set-off for
COMMON WORDS AND PHRASES. any balance found due the defendant upon the trial, the rule is and should be different. In such COLESTATION.- Adultery on the part of the a case really two suits are pending before the court wife, resulting in the birth of a child, is not to be tried at the same time. In the one the plaint-molestation” of the husband within the meaning iff has the affirmative of the issue, and in the other of a covenant in a deed of separation. Fearon v. the defendant has the affirmative. It is only after Earl of Aylesford, 12 Q. B. Div. 539. Denman, the trial, when the extent of each party's claim has J., said: “Molestation must be, as it seems to me, been ascertained, that the liquidation of the smaller by some act. The fact of having a child is not an claim occurs by way of set-off, or can be made by act done by the woman herself in the sense of the court or jury. The statute requires the defend- being a voluntary act. If the act of adultery is not ant to bring forward his claim for adjudication at per se an act of molestation, how can it become an the time the plaintiff brings his suit, and thereby act because it is followed by the birth of a child?" determines the time when the defendant shall have But it was left to the jury to say whether holding his claim adjudicated, at the peril of doing so at out the child as the son and heir of the defendant his own expense. In all other respects the case molestation," stands as though two separate suits were brought To.-This sometimes means “ toward." In Moran to determine the rights of the parties, and I fail to v. Lezotte, Michigan Supreme Court, June 11, 1884, see why both cases should not be governed by the the court said: “The difficulty here is in harmonizsame rules, and receive the same treatment at the ing the part of the description which extends the hands of the court. Simple justice requires this, tract conveyed to the rear of the said Gazette Tromand I can see no reason why the equitable rules bley land,' with the part which specifies the quanupon which the whole doctrine of set-off is based tity. If the rear line of the tract is to be the rear should not be carried out in the practice in these boundary of the parcel conveyed, this is impossicases. Adopting this rule the plaintiff would have ble. The question then is whether effect can be no more right to discontinue the defendant's suit given to every part of the description without makthan the latter would that of the former; and such, ing the rear line of the tract the rear line of the I think, should be the law. These views find sup- parcel conveyed. And the solution of this question port in the following authorities, which I think must depend upon the meaning to be imputed to should govern this case: Thomas v. Hill, 3 Tex. 269, the words to the rear,' as here made use of. The 270; Bradford v. Hamilton, 7 id. 55, 58, 59; Fran- word 'to,' as commonly made use of, conveys to cix v. Edwards, 77 N. C. 271, 275; Riley v. Carter, the mind the idea of movement toward and actually 3 Humph. (Teon.) 230; Rees v. Van Patten, 13 How. reaching a specified point or object, and the meanPr. 258; Cockle v. Underwood, 3 Duer, 676; Van ing is not satistied unless the point or object is acAlen v. Schermerhorn, 14 How. Pr. 287.” Cooley, tually attained. But this use is not universal; the C. J., and Champlin, J., dissented, Cooley, J., ob- word is sometimes employed in a sense that emserving: “The Texas cases are not in point, as they braces a part of this idea only, or simply as a word are decided under the civil law, which does not of direction, as we say to the north or to the south, prevail in this State. Egery v, Power, 5 Tex. 501; when we mean in those directions merely; or as in Walcott v. Hendrick, 6 id. 406; Bradford v. Hamilton, the army an officer might command a wounded 7 id. 55. The case of Francis v. Eduards, 77 N. C. man, or any impediments, to be taken to the rear. 271, was decided upon a construction of the code In many cases the word has a meaning nearly of that State, and therefore has no bearing. In synonymous with “toward,' and if in the Bonay Riley v. Carter, 3 Humph. 230, the defendant had deed it has been used in that sense all the parts of obtained judgment for his set-off in justice's court, the description can be perfectly harmonized." and the plaintiff removed the case to the Circuit Drop. This word received construction in IVinne Court by certiorari, and then, in that court, was v. Viagara Fire Ins. Co., 91 N. Y. 185. The gengiven leave to dismiss his suit. This was palpable eral agent at a certain place sent the company a error, and the court so held; but we discover no statement of policies to expire in a certain month, analogy between that case and this. The defend- which was called the “expiration sheet.” Oppoant had his judgment, and unless error was shown site the plaintiff's policy the company wrote “drop," had a right to retain it. The three New York cases and returned the sheet to the agent. He construed of Cockle v. Underwood, 3 Duer, 676; Rees v. Van the word to mean “decrease," and issued a new Patten, 13 How. Pr. 258; and Van Alen v. Schermer- policy for a less sum. The company was held liahorn, 14 id. 287, are not in point, because decided ble on this, on the ground that the word was amunder the State code; but so far as they can be con- biguous, and the principal was bound by its agent's sidered as having a bearing, they are against the de- adoption of one of its meanings. So "drop" does fendant instead of for him, for they all recognize not necessarily mean "let go of” or “ discontiune," the power of the court in its discretion to permit but may mean “lower," " reduce,” « diminish.”
Show, INDICATE. — In Coyle v. Commonwealth, Not exceeding in quantity or quality or value what Pennsylvania Supreme Court, January, 1884, the the plaintiff was in the habit of ordinarily providcourt said: “It is true, perhaps, that what is ing for himself and his family at that time, and merely indicated by certain facts may not be shown keeping on hand for his and their reasonable wants, by them. Although the words 'show' and `indi- in view of their means and habits in life, they were cate' are sometimes interchangeable in popular use, to be regarded as 'wearing apparel in actual use of they are not always so. The present ordinary use a person arriving in the United States, even though of the words discioses a difference in signification, they had not been actually worn. If a person residand that difference is, perhaps, more recognizable ing in the United States should purchase wearing when these terms are applied to the law or to medio apparel here, in a condition ready for immediate cal science. "To show' is to make apparent or wear without further manufacture, intended for his clear by evidence, to prove, whilst an 'indication' own use or wear, suitable for the immediately apmay be merely a symptom, that which points to or proaching season of the year, and not exceeding in gives direction to the mind.”
quantity, quality or value the limit above menPRESENCE. In People v. Bartz, Michigan Su- tioned, no one would hesitate to say that such preme Court, April 23, 1884, the court said: “Was wearing apparel was in actual use' by such person, the offense committed in the presence of the officer? even though some of it might not have been actuIf it was, he was authorized to make the arrest ally put on or applied to its proper or personal use. without a warrant. I think it was committed in The word 'actual' in the lexicon has as a meaning his presence. The distance was the width of the 'real,' as opposed to 'nominal,' as well as the mean
He was in sight of the person discharging ing of 'present.' 'In use’ is defined to be “in emthe pistol, and did not lose sight of him while pur- ployment;'out of use’ to be ‘not in employment;' suing to make the arrest. Had the shooting occur- 'to make use of, to put to use,' to be 'to employ, red in the day-time no such question would be to derive service from.' These definitions aid in raised. A person's presence does not depend upon showing that it is too narrow a construction of the whether he can be distinctly seen or discerned by words “in actual use,' as applied to this case, to another. An assemblage of persons in a room say that they require that the wearing apparel lighted with gas do not cease to be present when should have been actually worn. It is manifest the gas is turned off and they are left in total dark- that by the words 'in actual use,' Congress did not ness. The presence of the officer in this case was intend that those words should be limited to wearso apparent to respondent that he deemed it pru- ing apparel on the person at the time. They must dent to absent himself as soon as he discharged | have a more extended meaning. The test of havthe revolver. The court instructed the jury, as ing worn the article, as a criterion whether it is 'in matter of law, that when a pistol is fired off in that actual use,' is arbitrary, and without support in the way the testimony tended to show this was so. statute. An article of wearing apparel bought for The officer could see the flash of the pistol and use, and appropriated and set apart to be used by hear the shot, and the person who fired the shot being placed in with, and as a part of, what is could bave been in sight, if it had been light, so he called a person's wardrobe is in common parlance, could have seen him. It was sufficiently in his in use, in actual use, in present use, in real use, as presence in the meaning of the law.”
well before it is worn as while it is being worn or ACTUAL USE.- In Astor v. Merritt, United States afterward. The test of wearing must therefore be Supreme Court, April, 1884, the court thus con- rejected. What test shall be adopted? We are strued the words “wearing apparel in actual use." | aided by the other language of the statute in say
' It is contended here for the defendant that un- ing that the articles must be “personal effects,' and worn wearing apparel, purchased for an approach- must not be 'merchandise,' and must not be · for ing season, cannot be exempt from duty, as 'in sale.' These words of limitation, on the one hand, actual use,' before that season has arrived, while serve to indicate that on the other, if the articles, wearing apparel proper for the season of arrival | being wearing apparel of the arriving passenger, from abroad may, unless there is a want of good are fairly personal effects of his, and not merchanfaith, he considered as . in actual use,' whether it dise, and not for sale, a construction of the words has been already used or not. We are of opinion 'in actual use’ is to be sought for which will carry that the court should have given a different con- out the spirit and intent of the entire provision of struction from that which it gave to the statute, as the statute, and while it comports with the ordiapplicable to the facts of this case. If the articles nary habits of passengers and travellers, will not in question were: 1. Wearing apparel owned by the open the door for fraud. Such a construction we plaintiff, and in a condition to be worn at once believe that one to be which we have laid down for without further manufacture. 2. Brought with a case like the present. As regards citizens of the him as a passenger, and intended for the use or United States returning from abroad, and foreignwear of himself or his family who accompanied him ers visiting this country, it cannot be supposed that as passengers, and not for sale, or purchased or Congress intended they should have worn all the imported for other persons, or to be given away. wearing apparel they bring, or else pay duty on it, 3. Suitable for the season of the year which was or that they shall not bring with them, free of duty, immediately approaching at the time of arrival. 4. I wearing apparel not worn, bought in good faith