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court decline to hear the case, on the ground that This section is unrepealed, unless some statute has neither infants nor their guardian can submit a case been passed which has escaped my notice. And under section 372 of the code. Opinion by Learned. although it was originally in full harmony with secCases heard before James and Parker:

tions 30 and 79, and does not now fully harmonize with Eliza A. Page, adm'x, etc, v. David G. Starr et al., the amendment of 1867, yet the result would seem to me New trial granted, with costs to abide the event. to be that section 29 continues in full force, and that in

Barnard Mullen, Jr., by guardian, etc. v. Henry all cases the wife's property is assets in his hands for Stevens-Judgment reversed and new trial granted, the payment of her creditors. with costs to abide the event.

If he takes letters, makes an inventory, then only Cases heard before Miller and James :

to the amount of property. If he does not take letLawrence A. Mattice v. John Manchester-New trial ters the creditors can call on him for payment in full, granted, with costs to abide the event.

as he is by the act presumed to have property enough to pay. So far it is harmonious with the amended law, provided the change in section 79 does not take away

his liability where he fails to administer. It is believed CORRESPONDENCE.

it does not. Then the only question left is on the last DISTRIBUTION OF WIFE'S ESTATE.

clause, in case of his death; that is, whether assets

remaining unadministered go to his executors or adEditor of the Albany Law Journal:

ministrators as part of his personal estate. Although Having the question of the rights of a husband in

it would seem as if the section as to distribution was to the personal property of his deceased wife before me

apply under the law of 1867, yet the provision as to the frequently, my attention was strongly turned to the

property of married women leaving descendants modidecision of Barnes v. Underwood, in the fourth depart- fies or makes a special provision for that case, and the ment, decided in March, 1871.

subdivision as to leaving a widow cannot apply to marIn order to give correct advice I have endeavored to ried women. ascertain what the statute law now is.

Is it reasonable to suppose the legislature intended, There is no doubt that, up to the act of 1867, the

where a woman had children or grandchildren (often husband, on the death of his wife, succeeded to her

by a former husband), the husband should have onepersonal property.

third, and if she left only cousins or nieces or grand In 1867 the law was modified as to those rights, and

nephews, the husband should take nothing? by $ 11 of chap. 782, p. 1929, the section 79 of the R. S.,

If the statute admits of no other construction, then, chap. 6, title 3, part II, was entirely changed. Origin

as absurd as the result would be, what is written is ally that section entirely excluded the provisions of written. the general law of distribution from the estates of

Surely the rights of a husband who had lived forty married women.

years with a wife would seem to commend themselves By the amendment this section includes the estates

to law-makers as strongly as distant cousins. of married women dying, leaving descendants them With deference, I do regard Barnes v. Underwood as surviving; and provides that the husband of such

giving a construction not contemplated by the legisdeceased married woman shall take the same share of lature. The tendency heretofore has been to hold, that her estate as the widow takes of the personal estate of

all the statutes as to married women and their propher husband, which would be one-third. Section 30 is

erty should be considered as changing the old law only then repealed. Section 30 gave the personal property to the extent clearly expressed. of a married woman to her husband. If they had only On the reason of the thing, it may be difficult to modified that section it would likely have better

obtain likeness of opinion or decision ; but giving full accomplished the object they had in view.

effect to section 29 leads, in my judgment, to making In your issue of September 9, 1871, J. G. Collins refers

the personal property of married women that of the to the decision of the case I refer to, and asks, “Should

husband, except in the case of their leaving descendnot the act of 1867 have repealed both the thirtieth ants them surviving. and thirty-first sections referred to, to have the effect

This is thus briefly suggested by one who desires to the court seems to have given to it?

give correct advice. · I think he meant the twenty-ninth section. That is

HENRY BREWSTER, not repealed, and by the general rule that we interpret

New York City. statutes, that they alter the law no further than the will to do so is clearly expressed, this continues in full

ELMIRA, N. Y., Sept. 11, 1871. force.

Mr. ISAAC GRANT THOMPSON, 2 R. S. 75, $ 29, reads: “A husband, as such, if otherwise competent according to law, shall be solely entitled

Managing Editor Albany Law Journal: to administration on the estate of his wife, and shall Dear Sir — In your issue of last week, under the give bonds as other persons, but shall be liable as heading “Legal News,” page 116, I find the following administrator for the debts of his wife only to the utterly false and libelous item: ectent of the assets received by him. If he shall not “Governor Geary, of Pennsylvania, has removed take out letters of administration on her estate, he Assistant Attorney-General McClure for his complicity shall be presumed to have assets in his hands sufficient in irregularities in connection with the collection of to satisfy her debts, and shall be liable therefor; and if certain war claims." he shall die, leaving any assets of his wife unadminis I happen to have been pretty well acquainted with tered, THEY shall pass to his executors or administra the circumstances of the expose of the Evans' frauds, tors, as part of his personal estate, but shall be liable which are the irregularities referred to in the item for her debts to her creditors in preference to the quoted. So far from being in complicity with them, creditors of the husband.”

Mr. McClure was the very person who first brought the


matter to the light, and it was for the very reason that authority. These rights they hold and exercise indehe pursued his investigations too energetically that he pendent of any contract with any passenger or other was removed by Governor Geary, who appointed Evans. citizen, and these obligations they owe to the governAnd, moreover, as this is the first time I have seen the ment and the people individually and collectively, also matter mentioned in a newspaper without giving Mr. independent of any contract with any passenger or McClure the sole credit of exposing the frauds, I con other citizen. sider the item in the LAW JOURNAL as culpably inex Now, in view of these general characteristics of railcusable; the result of an almost criminal carelessness, road companies, and of the well-known dangers which which deserves severest punishment. The evil can be attend this mode of traveling, and, in view of the only partially remedied by giving a more prominent right and interest, as well as the duty, of government position in the next issue of your paper to a correction to protect and preserve the life of its citizens, and to of the item mentioned, and a statement of the facts as the general truth that life is inalienable — no one hayI have given them, or as you may find most worthy of ing any right to set his life up at the hazard of a die, or belief upon such investigation as you choose to give the to give or take a license to trifle with it-and in view matter.

of that higher duty which all men, under all circumIf such a correction is not made, you will most cer stances, everywhere owe to take and use all possible tainly hear from us again in a different form.

care and precaution to preserve human life, it is maniYours very truly,

fest that an agreement between the passenger and the

CHAS. A. COLLIN. carrier by which the passenger assumes, or the carrier We give the above for what it is worth; although, evades, the consequence of the neglect of all possible

skill, care and precaution for the preservation of in so doing, we are not sure that we are not doing a

human life, is against public policy and utterly yoid. greater injury to Mr. McClure than we did in the item

And it is equally plain, that such contracts, whether referred to, supposing it to have been “utterly false covering the negligence of the proprietor or limited to and libelous.” So far as we are concerned, we shall that of his servants, are equally within both the princibe pleased to “hear from ” Mr. Collin at any time and

ple and the policy of the rule, and are equally void.

To say that the carrier may not limit his liability for in any manner, letters excepted. — Ed. L. J.

his own neglect, but may for that of his servants, is inconsistent. The affirmative embraces and nullifies

the negative proposition, and destroys the whole force BILITY FOR NEGLIGENCE.

of the sentence. Practically, not one accident in a

thousand is traceable to any act or omission of any of Editor Law Journal:

the executive officers of the company; they are almost Sir - In 4th ALBANY LAW JOURNAL, page 69, under invariably chargeable, directly, to some act or omission the above heading, you give, on page 70, the following of some servant; hence, to excuse the company for all summary of the present state of the case:

damage, etc., from the negligence of the servants, would “It appears, therefore, that thus far the court of practically cover the whole case. But the theory is appeals has stood about in this wise: Gould and Allen, fallacious in all its bearings, the company, so far at JJ., that carriers of passengers could limit their lia least as the passenger is concerned, is composed of its bility for their own and their servants' negligence abso officers, agents, employees and other servants, and all lutely; Denio, Davis and Selden, JJ., that they could the acts and all the omissions of any of these are the limit their liability as to free passengers; Smith, J. (E. acts and omissions of the company; and the company D.), that they could limit their liability for the negli can make no valid contract to limit its liability for the gence of their servants; Sutherland and Wright, JJ., neglect of the one, more than the other, of these sevethat they could not so limit their liability in any ral component parts of its body corporate. event."

The two best, most learned, and only reliable opinNow, upon this rather unsatisfactory condition of ions on this subject are to be found in 24 N. Y.; first, the case, I would like, with your permission, to make the dissenting opinion by Sutherland, J., in Wells v. a suggestion. The subject is an important one in these The N. Y. C. R. R. Co., commencing on page 186, and days when railroads are multiplying upon us by thou- second, the leading opinion by Wright, J., in Smith v. sands all over the country, and will bear almost any The same, on page 223. These opinions are direct and amount of investigation that promises to lead to a cor full to the point, and are replete with sound logic and rect and reliable solution of this vexed question. reliable legal reasoning, and well worth careful study

Suppose we begin in this way, viz.: Railroad com by any one who is desirous of obtaining a reliable solupanies are volunteer associations of persons incorpo tion of this vexed question. rated under the laws of the State, with a long list of

C. D. LAWTON. franchises, privileges and immunities, above common men. They procure and accept their charters of incorporation for the express purpose of becoming common

GENERAL TERMS. carriers of both passengers aud freight, and they are common carriers of both passengers and freight, with 1st Monday in November, first department, New all the common-law rights and obligations incident to York. the business, with sundry additional rights and corres 20 Tuesday in November, third department, Scheponding obligations to the people, growing out of their nectady. acceptance of their chartered rights. These rights are 3d Tuesday in November, fourth department, Syraconferred and guaranteed to them by law, and these obligations growing out of, and indissolubly connected 20 Monday in December, second department, Brookwith, these rights are imposed by the same law and lyn.


The Albany Law Journal.


be very proper in the case of a special officer, as he would not be apt to be recognized as one having the

proper authority to make arrests, and his warrant ALBANY, SEPTEMBER 30, 1871.

would settle the matter; but the case is widely dif

ferent with a general officer. In a note to McKalley's MANNER OF MAKING AN ARREST.

Case, 5 Coke, 11, it is said: “the party must have

some notification of the officer's business, or killing There is no doubt that the law, both in this country will not be murder; but, if he be a known public and in England, is, that a known public officer, acting officer, the law will imply notice.” Undoubtedly, wearwithin his district or jurisdiction, is not bound to ing the accustomed badge of office would be sufficient show his warrant, even though it be demanded. in the case of a fresh incumbent, and, if he were 3 Hawk. P. C. b. 2, ch. 13, § 28; 2 Hale's P. C. 116; elected by the people, that ought to be a sufficient The State v. Caldwell, 2 Tyler (Vt.), 214; The notice. Bish. on Cr. Proc., vol. 1, $ 648. State v. Curtis, 1 Hayward (N. C.), 471; Arnold v. Every one is bound to know the character of an Steves, 10 Wend. 514 Where the officer is not officer who is acting within his proper jurisdiction, a general officer, but one appointed for a special and every citizen is bound to submit peaceably to such purpose, the doctrine seems everywhere to be, that officer until he can dersand and investigate the cause he must show his authority or his warrant before of his arrest. State v. Townsend, 5 Harrington (Del.), making the arrest. Bish. on Cr. Proc., vol. 1, § 618; | 487. 3 Hawk. P. C. ch. 2, § 28; in Frost v. Thomas, 24 A dictum of Lord Kenyon, C. J., in a case (Iall v. Wend. 418, and The State v. Kirby, 2 Iredell, 201, it Roche, 8 Durnford and East, 187) which came before is said, a special deputy is bound to show his warrant, the court of king's bench, in 1790, is regarded by or the arrest is illegal.

Bishop, in his Criminal Procedure, vol. 1, § 648, as Mr. Bennet, in his Leading Criminal Cases, vol. 1, | being an important point in relation to showing a p. 227, seems to doubt the position, that a general warrant on arrest. officer need not exhibit his warrant when demanded. Lord Kenyon said: “If it be established as law by He says: “But it may be fairly questioned, whether the cases cited, that it is not necessary to show the the authorities above referred to mean more than that warrant to the party arrested who demands to see it, a general officer is not bound to show the warrant of | I will not shake those authorities; but I cannot forhis appointment, for it is difficult to see why a general bear observing, that, if it be so established, it is a officer is not as much bound as any special officer to most dangerous doctrine, because it may affect the show the precept authorizing him to arrest a person, party criminally, in case of any resistance; and, if if the same be demanded, whereas, there may be homicide ensue, the legality of the warrant enters good reason for holding, that a public officer is not materially into the inerits of the question. I do not bound to exhibit his own commission or appoint-think that a person is to take it for granted, that ment;" and he refers to 1 East. Pleas of the Crown, / another who says he has a warrant against him, with379, where a similar view is taken.

out producing it, speaks truth. It is very important We think Mr. Bennet is mistaken as to the tenor that in all cases where an arrest is made, by virtue of of at least a portion of those decisions. For instance, a warrant, the warrant, if demanded, at least should Arnold v. Steves, 10 Wend. 514 That was a case be produced.” where the arrest was made by a constable; and all constables were elected directly by the people, and and fail to see the reason for some positions there not appointed, and, therefore, there was no warrant assumed, for, at the time it was made, it had been the of appointment, and none could have been intended. law for a long time, that an officer could arrest with

This case was commented upon by Justice Bronson out warrant for a felony, after it had been committed, in a subsequent case (Bellows v. Shannon, 2 IIill, 92), upon reasonable grounds of suspicion, and such is the and fully sanctioned in the following language : “It law now, in both England and the United States. seems, however, to be settled, that a regular officer, If an officer has authority to make arrests without acting within his proper district, is not bound to show warrant in such cases, why should he be obliged to his warrant for the arrest, though it be demanded." show it when demanded, when acting in his district, And, in The State v. Caldwell, 2 Tyler (Vt.), 214, because he has it in his possession, in order to make there is no good reason to believe that a warrant of the arrest lawsul ? appointment was intended, instead of the warrant of Certainly, it has not been considered dangerous arrest; at least, the reporter did not so understand it | doctrine that an officer could arrest for felony without when he wrote the marginal note to that case, for he a warrant, nor do we see, in case of resistance to an speaks of the precept of arrest.

arrest for felony, why the fact that the officer does We understand that the great object of showing a not show his warrant should affect him criminally warrant is to inform the party that the officer has while acting in his proper district or jurisdiction, inasauthority to make the arrest, which certainly would much as, with or without warrant, he has the same

ut le hare given this dictum a brief examination,

authority to make the arrest. It is true, if homicide reasons we have given above, and for the additional should ensue in any case of resistance when a warrant reason that the authority which the learned justice is necessary to clothe the officer with proper authority, gives for it (1 Chitty Cr. Law, 51) does not reach to the legality of such warrant would become a material that extent. Chitty refers to the doctrine of Lord question, but how could the fact of refusing to show Kenyon, using his language, and adding to it the it when demanded affect its legality ?

words quoted above, “that he may have no excuse If it was legal in the officer's pocket it could not for resistance," does not state it as settled law, but on be made illegal by showing it when demanded; be the contrary, in the commencement of the same sides, who is to be the judge of its legality ? certainly, paragraph, says: “It is laid down that bailiffs or conthe party arrested should not be, for he would not be stables, if they be sworn, and commonly known to be likely to be impartial, and the officer would not put a officers, and act within their own precincts, need not very high estimate on his judgment. But, to have show their warrant to the parties whom they come any logical force, the showing of the warrant when to apprehend, notwithstanding they demand the demanded must be for the purpose of enabling the sight of it.” party to form some judgment as to the authority of Wherever the question has squarely arisen in the the officer to act in the matter; yet, we are here sup

United States courts, as far as we have examined, it posing the officer to be acting within his district or has been decided as we have indicated. It should jurisdiction, and, therefore, his official character pre be understood, however, that the officer is bound to sumed to be known to every one. Therefore, the explain to his prisoner the cause of his arrest or the officer should not be obliged to show his warrant for nature of his warrant. The explanation must follow the purpose of giving information as to his authority the arrest. They cannot occur at the same instant of to make arrests, in general, and if it be demanded for time. They are obviously successive steps. the purpose of ascertaining for what the arrest is Judge Bronson said, in Bellows v. Shannon, above made in that particular case, then the substance of cited: “All the books agree that the officer is bound the warrant can be stated and no injustice done to to give the substance of the warrant or process, to the prisoner.

the end that the party may know for what cause he We think, moreover, with all due deference to is arrested, and take the proper legal measures to disLord Kenyon's great ability and learning as a judge, charge himself. This is, however, when the party that when a known general officer, acting in his own submits to the arrest, and not when he makes resistdistrict, says he has a warrant against another, he ance before the officer has time to give the informashould be believed, and is a general officer states tion. Although the officer is not bound to exhibit what is false, and makes the arrest without legal the warrant, especially when there may be reason to authority, he can be sued for false imprisonment, as apprehend that it will be lost or destroyed, yet, I in other cases, when he exceeds his authority. cannot doubt that it is his duty to inform the party,

But, if he intended his reasoning to apply exclu where such is the fact, he has a warrant, or to sively to cases where the oslicer must have a warrant make known in some other way that he comes in in order to justify an arrest, as in misdemeanors, then his character as an officer to execute legal process, it seems to be more appropriate, for although we and not leave the party to suppose he is assailed maintain that a general officer is not bound to show by a wrong-doer. The contrary doctrine would be his warrant in any case, even though it be demanded, likely to lead to violence and bloodshed. I do not when acting within his jurisdiction, as a matter of say that the officer is bound to declare the particulars strict legal obligation, yet we do not deny that in of his authority before he makes the arrest, or that it many cases it may be prudent to produce the warrant may not sometimes be proper to lay hands on a party if demanded, so as to leave the prisoner no excuse before a word is spoken; but either before or at the for resistance. 1 Chitty Cr. Law, 51.

moment of the arrest the officer ought to say enough In Commonwealth v. Cooley, 6 Gray, 356, Merrick, to show the party that he is not dealing with a tresJ., says: “The accused is required to submit to the passer, but with a minister of justice." These rules arrest, to yield himself immediately and peaceably are so clear, and at the same time so just, that they into the custody of the officer, who can have no form a safe guide to any officer who follows them in opportunity, until he has brought his prisoner into the execution of a warrant. close custody, to make him acquainted with the But when the resistance begins at the moment of cause of his arrest, and the nature, substance and attempted arrest, no explanation, it seems, is necescontents of the warrant under which it is made, and sary.

And even where one is not known generally that the officer is to state the nature and substance of as an officer, he need not show his warrant, though it the process which gives him the authority, and if it be demanded by the party when he immediately is demanded of him to produce and exhibit it to his resists, and by his own wrongful act prevents. the offiprisoner for his perusal that he may have no excuse for cer from doing his duty. Commonwealth v. Field, 13 resistance." We of course cannot concur in this last Mass. 322. An arrest might be defeated by the cereremark, that the warrant must be exhibited for the mony of producing and explaining a paper before the

arrest is made. State v. Townsend, 5 Harr. (Del.) bringing his action. Both the federal and State 487.

courts were open to him, and by selecting the State The governing principle which enters into the ques court it was insisted that he had waived his right of tion here discussed, and in fact in all questions of a demanding the judgment of the federal court. The kindred character, is that perfect submission to a court said: “It is a principle well settled that a known public officer is first required, because it is party may waive a constitutional or statutory propresumed that a party will suffer no wrong by so vision made for his benefit. And the plaintiff, by doing, and that he will have ample opportunity to voluntarily submitting his cause to the State court izvestigate the cause of his arrest after his submission, and asking the exercise of its jurisdiction, has not only so far as the officer is immediately concerned, waived the right to invoke the jurisdiction of but as to other parties in a court of justice. The same the federal court. The jurisdiction of the federal authority which directs an officer to execute should courts in the case would have been founded entirely at least inquire into the manner of arrest when atten upon the character of the parties, and not upon the tion is called to it by a prisoner.

nature of the cause. None of those reasons, thereThe officer is not only a responsible and known fore, exist, which are generally relied on where that person, he is moreover under legal liabilities by reason jurisdiction is founded upon the nature of the cause, of his office, and is immediately controlled by the to show the necessity for a supervisory control, on the courts of justice.

part of the federal tribunals, over the decisions of the On the other hand, if one not known to be an officer State courts. Nor does the case stand upon the same attempts to arrest a person, the latter is put at once ground as where a citizen of one State is sued in the upon his apprehensions, and is instinctively impelled courts of another State. For, in the latter case, there to resist the indignity. 1 Bish. Cr. Pro., $ 649. is reason for saying, that, unless congress could au

It is imprudent in an officer to allow a prisoner to thorize the removal, the judicial power of the United take a warrant into his hand to peruse, and if the States might be eluded, at the pleasure of the plainlatter refuse to return it, he may use “just so much tist, and the non-resident defendant be deprived of violence as is necessary to retake it and no more." that security which the constitution intended in aid Rex v. Milton, Moody & M. 107. In no case is an of his rights. But no such reasons can be urged in officer required to part with the possession of his war favor of the act under consideration; because, assum rant whether acting within or without his jurisdictioning that the State and federal courts had cognizance for that is his justification. 1 East. P. C. 319.

of the matter in controversy between these parties, the plaintifi' has made his election of the State tri

bunal. He was well aware, at the outset, that he TRANSFER OF CAUSES TO UNITED STATES might institute his suit in either forum, and having COURTS.

made his choice of the State court to decide the conThe supreme court of Wisconsin has recently made troversy, let him abide its decision. What earthly a decision in the case of Whiton v. The Chicago & ground is there for saying that the federal governNorth-western Railway Co., 25 Wis. 424, that is worthy ment may interfere, under such circumstances, and of attention by reason of the importance of the divest the State court of a jurisdiction alreacty question involved. By the act of congress of March attached at the instance of the plaintiff? There is 2, 1867 (14 U. S. Stat, at Large, 558), it was provided no principle better settled, than that, where two or that where a suit was pending then or thereafter in more tribunals have concurrent jurisdiction over the any State court, between a citizen of the State in subject-matter and the parties, the court that first which the suit was brought and a citizen of another acquires it can hold fast on the case to the exclusion State, and the matter in controversy exceeded five of the concurrent court. And, although this principle hundred dollars, such citizen of another State, whether has been departed from, under our complex system of plaintiff or defendant, might cause such suit to be government, in the case of a non-resident sued in a removed to the circuit court of the United States. State court, or where the nature of the controversy In the case cited the plaintiff, a non-resident of Wis gave the federal courts final jurisdiction, yet this consin, had brought suit in the courts of that State, furnishes no reason for disregarding the principle but afterward, for reason or caprice, undertook to where the non-resident plaintill has seen fit to invoke remove it to the United States circuit court. The the jurisdiction of the State court. In that case let validity of the act, in so far as it permitted a plaintiff him abiile the consequences of the election thus rolto transfer the cause, was directly presented and untarily made, like any citizen of the State. For cerfairly met by the court. It held the act, in this tainly all the purposes of the constitution of the extent, to be invalid, and the holding seems to be United States will be answered by the creation of well supported by the arguments brought to bear, as federal courts, into which any party, plaintiff or dewell as by the common sense of the matter. The fendant, concerned in a case of federal cognizance, plaintiff, being a citizen of another State, had the may carry it for adjudication." And when the nonright, in the first instance, to elect the former for resident plaintif, having the option, has appealed to

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