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was an inducing cause to the contract; that is to say,

nant northern States. A formula to which it is to be that it was material, and that it produced in his mind presumed States will sooner or later couform, is oue

erroneous belief influencing his conduct. The contained in the revised Code of Italy on this subject. plaintiff brought an action to recover the damages The child of a citizen is a citizen; the child of an alien which he had sustained in consequence of an alleged is an alien." misrepresentation in the prospectus of a company. It It must be conceded that the language of the fourwas admitted that the statement was material, and teenth amendment, which was under construction in that it was not true in one sense; but the words were the case of Look Tin Sing, is very broad. And the deambiguous, and were capable of being understood in cision of the court was in favor of the liberty of the a sense in which they were true. The plaintiff's evi- individual; and was no doubt influenced by considera. dence was that he understood the words “in their tions involved in the case which can be readily underpatural sense.Held (affirming the judgment of the stood. court below), that the plaintiff had not discharged the Citizenship, or national character, is nowadays deburden of proof which lay upon him, and tbat the ac- pendent upon choice rather that upon status ; and the tion could not be maintained. Per Lord Blackburn: claim of the individual in cases of conflict is generally The motive of a person who makes a statement which controlling. But this right to elect (droit d'option) in he knows to be false, with the intention of inducing the cases of children of alieus is universally admitted another person to act upon it, is immaterial. H. L., only when the individual attains majority, or is other. Feb, 18, 1884. Smith v. Chadwick. Opinions by Sel. wise emancipated. borne, Chanc., Blackburn, Watson and Bramwell, JJ.

Yours very truly, (50 L. T. Rep. [N. S.] 997.)




Editor of the Albany Law Journal :

TLECTION seemed to disagree with our printers. Attentivo readers of the opinion of Mr. Justice

We were made to credit an opinion to the West Field (U. S. Cir. Ct., Ninth Circuit) in the matter of

Court Reporter" instead of the “West Coast ReLook Tin Sing, reported in the last number of the

porter,” and there were so many errors in the poem JOURNAL, will not fail to remember that his honor published last week that we are led to give a corrected limits the words “subject to the jurisdiction' in the

edition of it below: first section of the fourteenth amendment, to except

"AFFIRMED." from citizenship only children born in the United States of persons engaged in the diplomatic service of

Addison Brown of Lefort,

Suing a neighbor for pelf, foreign governments, such as ministers and ambassa.

Bringing his case into court, dors, whose residence, by a fiction of public law, is re

Determined to try it himself. garded as part of their own country.” But in the Slaughter House case, 16 Wall. 36, Mr. Justice Miller

Little his knowledge of law, delivering the opinion, the court say: “The phrase,

But great his belief in the same. subject to its jurisdiction,' was intended to exclude

Said his sometime attorney (De Graw from its operation children of ministers, consuls and

Was the legal gentleman's name), citizens or subjects of foreign States born within the

"The action (at least) will not lie, United States." (The italics are mine.) If the first section of the fourteenth amendment is

(For he owed his old client a grudge),

And the only thing he will try to receive the construction placed upon it by the United States Circuit Court, in apparent contraven

Is the patience of jury and judge." tion of an express exception of the Supreme Court, it

The plaintiff opened his case: must result that this section of the fourteenth amend

" Here is a French adage,” he said, ment carries us back to the principle of the English

“I cannot refer to the place, common law, that all persons born within the domin

But the same I am sure you have read, ions of the crown, with hardly an exception, are to all intents and purposes British subjects.

Which holds out a man who appears As has been pointed out elsewhere (5 Am. Law Rev.

For himself on his own brains reliant, 369), the fourteenth amendment is less carefully

Regardless of jibes and of jeers, worded than the Civil Rights Bill (April 9, 1866). The

Has always a fool for a client." latter only declared those persons to be citizens who

He said that he did not agree were born within the United States, “and not sub

With this sentiment, plainly untrue, ject to any foreign power.“ It is to be further observed that there is an incon

And thought himself perfectly “free

To assert that neither do you." sistency and irregularity in the Constitution and laws of the United States in respect to citizenship, as is mavifest by comparing the first section of the four

“Opinion by the full Bench teenth amendment with provisions of the act of Feb.

For the county and town of Lefort; ruary 10, 1855. The former makes citizenship (or na

No one dissenting, the French tivnal character) of children of aliens dependent upon

Adage affirmed by the court." place of birth; the latter derives it, in case of children of citizens, from parentage. The former would per- Lord Bramwell, it is said, spoke of a heraldic espert petuate the doctrine of feudalism under which jus soli

as a “silly old man who did not understand his silly prevailed. The latter recognizes the principle of jus old trade." St. Paul counselled to "eschew vain genesanguinis, now almost universally accepted by domi.


The Albany Law Journal.



parrow a

The presidential election may

, fairly said to be

tion of the Republican candidate by a few hundreds, and propose to have them indicted under

the Penal Code for disseminating false and forged ALBANY, NOVEMBER 29, 1884.

This is one of the best jokes of the season, and is enough to make any lawyer's sides sore with

laughter. It would indeed be hard on the newsCURRENT TOPICS.

papers if they were liable to indictment for mis

taken opinions on estimates, or for errors in footing HE

up columns of figures, especially on finished, now that the official count in this margin as one thousand in twelve hundred thouState is known, and the lawyers can go back to

sand. As the public have now lost all interest in business. A lawyer has been elected president, the personal abuse of the rival candidates they can which is an indication that the profession have not hardly be expected to care much for this newsquite lost their hold upon political honors. The

paper abuse of rival journals. We suspect that it year of the presidential election is always one of

would be time and labor wasted to try to get a uncertainty and depression in business, and the

newspaper man indicted for disseminating false or next succeeding year is frequently not much better, forged election returns under any circumstances

. and our profession feel this quite as sensibly as the

If any of the stock gamblers have been bitten by business world. There is comparatively little law depending upon such estimates it has served them business in the year of the presidential election, right. We would rejoice to see them all cleaned and the lawyers are running after office for them

selves, or others, or both. These elections come
too frequently for the good of the country. Either A

spasm of morality has passed over the city of in county, State or Federal politics there is some New York. The authorities, after winking for political turmoil nearly all the time. It would be

years at brutal prize-fights under the guise of boxmuch better, it seems to us, if the presidential term ing-matches, have made a determined effort to were six years instead of four, and if the guberna- "knock them out.” In the case of the cultured torial term were twice as long, or half as long Bostonian, Mr. Sullivan, the issue has been raised, again as it is. Our canvasses are constantly becom- and the authorities seem disposed to handle these ing more corrupt, more virulent, more tainted by bet- gentry without gloves. This latter-day repentance ting, more unscrupulous in every way. As the legal is refreshing. We hope it will bring forth meet profession are notoriously addicted to politics it works. It is a humiliating fact that this ruffian, must follow that they are peculiarly subject to all drunkard and bully, Sullivan, has repeatedly made these unhappy influences, and prone to all these

more money in ten or fifteen minutes by the pracundesirable practices. It is perhaps fitting that tice of his brutal “ profession,” than many a sober, the lawyer should be frequently represented in poli- | industrious and honest lawyer of the best talents tics, although we feel bound to say that he is not can make in a year. For ourselves, we speak in all always well represented, but there is a craze among soberness when we say that we regard the excited lawyers for political campaigning that unfits them curiosity and interest with which many respectable for their business, and takes their business away people flock to these contests as indicative of the from them. It is to be feared that much of the same tiger spirit, hardly quelled by civilization, vituperation and slander of the campaigns is at- which instigates lynchings, and as resembling the tributable to the license of the bar, which is re- cruel delight of the ancient Romans in the bloody garded by those who are guilty of it in a merely sports of the amphitheatre. We propose this test Pickwickian sense, but which degrades them more to determine whether boxing-matches are proper than it hurts its object. For ourselves we are sin- scientific exhibitions, Let Captain Williams carry cerely glad that the election is over, and on Thurs- a club stuffed like the gloves, and when the fight day last, Thanksgiving day, we gave especial thanks gets too liot let him club both combatants, and for the fact that it is over, and that there will not knock them botli out, if possible. If Captain Wilbe another for four years.

liams could also take his club to some of the party

editors who have been making the press reek with There are however some amusing phases of these irrelevant scandal and filth for the last six months, contests. The presidential election this year has

we would stand by him.
developed a new one in our State, binging on a
point of law. Our State has cast, we suppose,

Mr. Edwin Young, of this city, has read an exsomething like twelve hundred thousand votes, and cellent paper, before the Academy of Political the successful candidate has received a plurality of Science, of New York, on The Jury in Modern something like one thousand only. Of course it Corporate Life, which is now published. Mr. Young was quite uncertain for several days, and perhaps approves of the jury in theory, but finds that there even until the official count was known, who had are grave defects in administration, arising from the received a plurality, or how much it was. But the following causes: Disqualifications and exemptions ; Democratic newspapers have been reviling certain excuses by the court; improper selection by the of the Republican newspapers for claiming the elec- county officers; public and political apathy; impo

Vol. 30 - No. 22.

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tency of the oath from decay of religious belief. On by the learned, is to weaken the faith of the unthese points Mr. Young speaks concisely but with learned, and with it the conscience and value of the great cogency. Mr. Young is a railroad lawyer, but oath.” We seriously wish that our legislature this we feel bound to say that no one would discover it winter would do away with most of the present exfrom the tone of his paper, and we heartily concur cuses from jury duty. with his opinions. On the point of public and political apathy he observes: “If the immediate cause of the decay of the jury is the neglect of duty by

NOTES OF CASES. public officials, it is with ill grace that they are censured by a community guilty of the same act. IN Moore v. Monroe, Iowa Supreme Court, Sept. If good men won't serve, it is next to impossible, 18, 1884, it was held that an injunction will under our principles and administrative system, to not issue to restrain the reading of the Bible or the compel them to do so; and, although this is all the singing of religious songs in the public schools, unmore reason why public officials should exert them- less attendance on such exercises is compulsory. selves to enforce the duty, so far as they are able, The court said: “ The record shows that the teachstill, we can hope for but little permanent relief, ers of the school are accustomed to occupy a few until the spirit of the community is moved to a minutes each morning in reading selections from spontaneous acquiescence. We have come to regard the Bible, in repeating the Lord's prayer, and sing. our private business interests as paramount to all ing religious songs; that the plaintiff has two other considerations; to look upon the State as for children in the school, but that they are not required no other purpose than to subserve such private in- to be present during the time thus occupied. The terests, and to regard the saving of time, by the record shows, further, that the plaintiff objected escape of performance of public duties, as so much to these exercises and requested that they be disclear gain, to personal interests, in the competition continued; but that the teachers refused to disconof life. It is this fatal error, which destroyed Rome, tinue them, and that the directors refused to take and which is the most dangerous enemy to a Demo- any action in the matter. The plaintiff concedes cratic republic. * * * The real value and efficiency that under a statute, section 1764 of the Code, if of such institutions, depend upon the manner in constitutional, neither the school directors nor the which they are administered. The character of such courts have power to exclude the Bible from the administration depends upon the character, not of public schools. The provision of the statute is in the whole people of the community, nor of the these words: The Bible shall not be excluded whole of the ruling majority, but of that particular from any school or institution in this State, nor portion of them who participate in the exercise of shall any pupil be required to read it contrary to the their political rights. And the character of this wishes of his parent or guardian.' Under this secpolitical body will directly depend upon whether | tion it is a matter of individual option with school the best citizens of the community will or will not teachers as to whether they will use the Bible in so participate. We cannot hope for reform, there- school or not, such option being restricted only by fore, until we realize that admitting that the chief the provision that no pupil shall be required to read object of the State is the protection of personal it contrary to the wishes of his parent or guardian. interests, such personal interests are not best sub- It was doubtless thought by the legislature that an served by exclusive devotion to one's own business; attempt on the part of school boards to exclude, but that on the contrary, such personal interests are by official action, the Bible from schools would redaily suffering, in a thousand ways, from the abuse sult in unseemly controversies, to be decided ultiof power of public officials, deranging the business mately at the polls, and that such controversies interests of the community, and feasting upon the would naturally disturb the harmony of school disprofits of individual industry.” On the point of tricts, and impair the efficiency of schools. Whether the impotency of the oath, he says: “ This is the provision is a wise one, it is unnecessary for us largely due to the decay of religious belief, with to express any opinion. It is the law of the State, which the importance of an oath is directly asso

0- unless unconstitutional. The plaintiff insists howciated, among the lower classes. The mystery of a ever that it is unconstitutional. The provision of myth is of great value in staying the passions of the the Constitution which it is said to conflict with is multitude, even in this enlightened age. Queen article 1, section 3, Bill of Rights. The provision Victoria rules the masses of England with quite as is in these words: “The general assembly shall make firm a hand as that with which the House of Com- no law respecting an establishment of religion, or mong rules the queen. To a man of intelligence and prohibiting the free exercise thereof; nor shall any culture, the significance and value of an oath is

person be compelled to attend any place of worship, based upon far higher principles than belief in the

pay tithes, taxes, or other rates for building or redogmas of religion, but to a man of the class to pairing places of worship, or the maintenance of which our juries have been reduced, there is no sig. any minister or ministry. The plaintiff's position nificance but the hope of reward and fear of pun- is, that by the use of the school-house as a place for ishment, as inculcated by his religion. The effect reading the Bible, repeating the Lord's prayer

, and of the exposition of the fallacies of religious dogmas, singing religious songs, it is made a place of worship; and so his children are compelled to attend a very exhaustive, and I was satisfied on the question place of worship, and he, as a tax payer, is com- of fact at that time; and a further examination of pelled to pay taxes for building and repairing a the case has only confirmed my opinion that the place of worship. We can conceive that exercises complainant has made out the piracy, and that like those described might be adopted with other Nunky'not only copied gags, jokes and catch byviews than those of worship, and possibly they are words, so called, from “The Private Secretary,' but in the case at bar; but it is hardly to be presumed also copied sentences, paragraphs, incidents and that this is wholly so. For the purposes of the situations. Without going into the particulars, I opinion it may be conceded that the teachers do am satisfied on the question of fact, that the comnot intend to wholly exclude the idea of worship. plainant has made out his case. The defendant inIt would follow from such concession that the troduces two legal objections. The first objection school-house is, in some sense, for the time being, is, that the complainant has not shown that Hawtry made a place of worship. But it seems to us that was the author of "The Private Secretary.' The if we should hold that it is made a place of worship, testimony of the complainant on this point is his within the meaning of the Constitution, we should affidavit, the affidavit of Mr. French, and the asput a very strained construction upon it. The ob- signment of Mr. Hawtry to French of this play. ject of the provision, we think, is not to prevent The assignment is not sworn to, but only acknowlthe casual use of a public building as a place for edged. The affidavits of himself and Mr. French offering prayer, or doing other acts of religious set forth in substance that they were informed by worship, but to prevent the enactment of a law Mr. Hawtry that he wrote “The Private Secretary.' whereby any person can be compelled to pay taxes Mr. French swears that Hawtry is the author. They for building or repairing any place designed to be also say that Hawtry was recognized as the author used distinctively as a place of worship. The object, of “The Private Secretary' in England. Therefore we think, was to prevent an improper burden. It we have in the affirmative, proof of every thing exis, perhaps, not to be denied that the principle, car- cept the affidavit of Mr. Hawtry himself. We have ried out to its extreme logical results, might be his assignment, which is acknowledged. Now, it sufficient to sustain the appellant's position; yet we is well known that in motions of this character, cannot think that the people of Iowa, in adopting where great injury is liable to occur, it is diffithe Constitution, had such extreme view in cult to get testimony from persons residing in formind. The burden of taxation by reason of the eign countries. But it does seem to me that the casual use of a public building for worship, or even affidavits of Mr. Palmer and Mr. French, in consuch stated use as that shown in the case at bar, is nection with the assignment of Hawtry to French, not appreciably greater. We do not think, indeed, do make a prima facie case for the complainant, that the plaintiff's real objection grows out of the which is not overcome by any other testimony on matter of taxation. We infer from his arguments the part of the defendant. The second legal obthat his real objection is that the religious exercises jection which the defendant raises is that Hawtry are made a part of the educational system into has lost his common law rights of protection in this which his children must be drawn or made to ap- country, by reason of the fact of the play of 'The pear singular, and perhaps be subjected to some Private Secretary' having been presented in Enginconvenience. But so long as the plaintiff's chil- land, coupled with the fact that a presentation in dren are not required to be in attendance at the England is publication, and that such publication exercises, we cannot regard the objection as one of goes to destroy the common law rights of protecgreat weight. Besides, if we regarded it as of tion ; but I would ask the defendant, what has greater weight than we do, we should have to say | Mr. Hawtry done to forfeit his common-law rights that we do not find any thing in the Constitution in America ? Has he done any thing either in Engor law upon which the plaintiff can properly ground land or this country which destroys his common his application for relief. Possibly the plaintiff is law rights, according to American law? The fact a propagandist, and regards himself charged with a that there has been a presentation of the play in mission to destroy the influence of the Bible. England or America does not forfeit the commonWhether this be so or not, it is sufficient to say that law protection which this country affords him ; the courts are charged with no such mission.” whatever may be the fact of the presentation of

this play in England, what we want to look after is On the 18th instant, in the United States Circuit simply what the American law is; and has he by Court, at Boston, in a suit to restrain the defendant any act worked a forfeiture of his common law from representing the play entitled “Nunky," at rights? We find that the presentation of the play, the Boston Museum, a motion for a preliminary in- whether in England or this country, is not by junction was granted, Judge Colt pronouncing American law publication, and therefore, Hawtry an oral opinion substantially as follows: “The bill or his assignees are entitled to the protection of sets out that ‘Nunky' is a piracy upon “The Private American law. Whatever contract Hawtry made Secretary.' The first question for the court to de- with the English public cannot interfere with his cide is the question of fact as to whether there is rights here; and is no forfeiture of his rights of such a piracy. The argument at the hearing was protection in this country. These are the two legal

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questions which the defendant argues against this this respect. Its breach must be the foundation motion, but I must say that to my mind, they are of every action seeking to charge the company with clearly untenable."

the loss of articles the passenger has taken with him

upon the car. In the case at bar the defendant was In Pullman Palace Car Co. v. Gaylord, Kentucky beld liable without regard to the faithfulness of its Superior Court, Oct. 29, 1881, 6 Ky. Law Rep. servants. If they exercised proper care by keeping 279, it was held that in the absence of proof of neg- a reasonable watch over the plaintiff's property, ligence a sleeping car company is not liable for a there was no breach of any undertaking on the part diamond pin stolen from the berth of a passenger. of the company, and hence no liability." The court, citing Clark v. Burns, 118 Mass. 275; S. C., 19 Am. Rep. 456,

and Steamboat Crystal Palace v. Vanderpoel, 16 B. Monr. 302, said: “It

CIVIL DAMAGE ACT - EXEMPLARY DAMAGES. would be difficult to give any valid reason why a

NEW YORK SUPREME COURT, GENERAL TERM, FOURTH sleeping car company should be held to any more

DEPARTMENT, OCTOBER, 1884. rigid liability in such cases than a steamboat company. It could no more be said that a sleeping car

RAWLINS V. VIDVARD. was an 'inn on wheels' than that a steamboat was

In an action brought under the Civil Damage Act against the
an inn on water. They both provide sleeping apart owner of a building leased for hotel purposes, and where
ments for

pay for the privilege, and

liquors are to be sold, the measure of the recovery is limare expected to occupy them. Sleep is as essential

ited to the actual damages sustained. to the health and comfort of the traveller in the

Exemplary damages canuot be recovered in the absence of

aggravating circumstances; they are given only as a punone case as in the other. The servants of the steam

ishment of a wrongdoer, and not as compensation to an boat company certainly have the implied custody of injured party. the passenger's wearing apparel to as great an extent as the servants of the sleeping car company. against him upon a verdict rendered at the Oneida The resemblance of a steamboat to an inn is even Circuit in January, 1882, and from an order denying a greater than that of the sleeping car, since it is cus

motion for a new trial.

This action was brought under the statute to suptomary for the former to provide meals for its pas

press intemperance, pauperism and crime, known as sengers. If, then, the rigid liability of innkeepers

the “ Civil Damage Act." is not to be extended to the owners of steamboats, On the 27th of September, 1880, the defendant owned common justice demands that it be not applied to certain premises in the town of Whitestown, county of the owners of sleeping cars. And we find this rule

Oneida, known as the “Yorkville House," which he

had leased to one Nellie M. Briggs, knowing that she has been followed so far as the responsibilities of

intended to use them for the purpose of keeping a hothe latter have been the subject of judicial inquiry.

tel in which intoxicating liquors should be sold. While these adjudications are not placed upon the The plaintiff claimed, and the evidence in her beball same ground, their conclusions are substantially the tended to show, that on the day last named her husWe cannot concur in some of the reasons

band, Martin J. Rawlins, became intoxicated; that assigned in the various opinions, but we think their

such intoxication was caused wholly or in part by

liquors sold to him by Mrs. Briggs or her agent, and decisions are, in the main, correct.”. The court also

that he was thereby rendered incapable of taking care remarked upon Plum v. Puliman Sleeping Car Co., 3 of himself, and fell from the loft of a barn situated on Cent. Law Jour. 592; Palmeter v. Wagner, 11 Alb. Law said premises, broke his arm, and sustained other inJour. 149; Welsh v. Pullman Palace Car Co., 16 Abb. juries. Pr. (N. S.) 252; Pullman Palace Car Co. v. Smith, 73

The defendant claimed, and the evidence in hisfbe

half tended to show, that on the occasion in question III. 360; S. C., 24 Am. Rep. 258; Woodruff S. & P.

no liquors had been furnished to said Rawlins by Mrs. C. Co. v. Diehl, 84 Ind. 474 ; S. C., 43 Am. Rep. Briggs, or at said hotel, and that he became intoxica102, and concluded as follows: “ While therefore ted on what he drank elsewhere. the stringent liability of an innkeeper, which the It was not disputed that the plaintiff was dependent distinguished Chief Justice Coleridge has said does

on her husband's labor for support, and that he was prenot stand on mere reason, but 'on custom, grow

vented by these injuries from working from the date of

the accident until January 20, 1881. He was a laboring ing out of a state of society no longer existing,' is

man, without any property, and earned from $1.20 to not to be applied to the owners of sleeping cars, it $1.35 per day. His family consisted of the plaintiff, does not follow that they assume no duties or liatil- two children, aged respectively four and ten years, and ities. These cars are in themselves an invitation to himself. He was not in the habit of drinking to exthe travelling public to enter and protect themselves

cess, but did occasionally, or as stated by the witnesses,

once or twice a year. He testified that he drank one against the weariness of a long journey by disrobing glass or beer at another hotel early on the day in ques: and sleeping. The passenger in buying and the tion, and before he drank at the Yorkville House, and company in selling the ticket contemplates that this would not swear that he did not drink two. privilege will be improved. The company accept

The jury found a verdict for the plaintiff for $150. ing compensation under these circumstances impli- S. J. Barrows, for appellant. edly undertakes to keep a reasonable watch over the L. E. Goodier, for respondent. passenger and his property. The faithful perform

VANN, J. Upon the trial of this action the court ance of this undertaking is the limit of its duty in

charged the jury that the plaintiff, if her case was

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