« AnteriorContinuar »
ing the offense; that it had been found as a fact This does not require the exclusion of the fee of the that the object of the defendants was, not the detec- strip from the graut, but only an easement; and upon tion and suppressiou of crime, but the promotion of the principle that a grantor's deed is to be taken most tbeir owu corrupt gain; that the defendants sought to strougly against himself, no such exclusion of the fee extort "hush money” for suppressing the evidence of is to be implied. Our construction of the deed then is guilt. The court also said that those who induced a that it passed to the grantee of the fee of the whole of violation of the law for the purpose of compounding the five-acre tract. Peck v. Smith, 1 Conn. 103; Richthe offense and making gain by defeating public jus
ardson v. Palmer, 38 N. H. 212; Tuttle v. Walker, 46 tice were guilty of a gross wrong. In this case it is Me. 286; Kuhn v. Farnsworth, 69 id. 404; Hays v. Aspot averred that the defendants offered to settle or kew, 5 Jones, 63; Cincinnati v. Newell's Heirs, 7 Ohio compound tbe offenses, nor that they obtained any part St. 37. Miun. Sup. Ct., July 9, 1886. Elliot v. Small. of the informer's share of the penalties, nor even that Opinion by Berry, J. the suits agaiust the saloon keepers were prosecuted
GIFT CORPORATE STOCK AGREEMENT AGAINST to judgment; in that reference it is simply alleged that the defendants, and others acting with them, had
PUBLIC POLICY.-In an action for breach of contract caused writs of summons to be issued by the aldermen
for non-delivery of corporate stock, the defendant for the penalty of $50 in each case. Th decision of
may show as matter of defense that the contract sued the question presented in Hazen v. Commonwealth
upon was part and parcel of a prior secret agreement does not warrant a ruling that this indictment can be
between the plaintiff and the company, whereby the sustained, nor has any authority for such a conclusion
plaintiff was to subscribe for a large amount of the been found. The motion to quash must be sustained.
stock for the purpose of inducing others to subscribe, Penn. Sup. Ct., March 1, 1886. Commonweallh v. Kos
and that for so doing he was to receive, in addition to tenbauder. Opinion per Curiam.
his subscription, the amount of stock in question as a
gift from the company. Mass. Sup. Jud. Ct., July 3, DEED-RESERVATION.—A warranty deed granted 1886. Nickerson v. English. Opinion by Field, J. and conveyed a parallelogram of land, nine chains and ninety-six links long, by five chains and two links
INSURANCE-EVIDENCE-CIVIL ACTION CRIMINAL wide, "containing five acres, * reserving from
PROSECUTION.-A., who held a policy of insurance suid grant a strip thirty-three feet in width, on the
upon a building, upou its destruction by fire endeavsouth side of said tract for a public street. Held, that
ored to collect the amount of the insurance from the the fee of the thirty-three feet strip passed to the
insuring company by action; one ground of defense grantee. It is difficult to see why, when he had
was that A, had fired the structure. On the trial the adopted the plan of describing the property by its
Common Pleas instructed the jury that the testimony width in chains and links, the grantor should have
to establish the fact of incendiarism ought to be as specified a width greater than the actual width of the
strong as that required to convict in a criminal court
of arson. premises which he intended to convey, or why he
Held, error. The doctrine that a reasonashould have embraced in the specified width thirty
ble doubt of guilt is to workian acquittal does not apthree feet more tha: he intended to convey simply for
ply in civil issues; in these the result should follow the purpose of taking it out again. The obvious and
the preponderance of evidence, even though the result natural construction is that he meant to convey all
imputes a crime. Whart. Ev., § 1246. In reference to that be described as a five-acre tract-nine chains
the rule thus stated text-books and adjudications difninety-six links long by five chains two links wide.
fer, and it would be difficult to ascertain on which side This being the apparent intention of the grantor in his
is the greater number. Many of them, for and against, descriptions of the five-acre tract, how is it affected by
are cited by Dr. Wharton, and we are content to refer the so-called " reservation?” Certainly that does not
to them, without a profitless review, or a reiteration operate to except from the tract the fee of the thirty
of reasons leading to the conclusions adopted. three feet strip on the south side, for this would be in
civil issue the life or liberty of the person whose act is consistent with the intention mentioned (if not repug.
sought to be proved is not involved, proof of the act is nant, and therefore void), but to reserve an easement
only pertinent because it is to sustain or defeat a claim of right of way for a public street in and over the
for damages or respecting the right of things. Where strip. As it did not accept the fee, and the strip had
the act imputes a crime the inculpatory eridence never been used as a street, and no street had ever
must be sufficient to overcome the exculpatory evibeen laid out or opened upon it at the time of the
dence and the presumption of innocence; otherwise grant, the so-called “reservation” was not, strictly
there is no preponderance to establish the fact. That speaking, an exception of any thing; for an exception
presumption is due every man in every court, and is of a part of the thing granted, and of something in
when it is alleged that he has done a dishonest or crimesse at the time of the grant. A “reservation” is de
inal act, the presumption weighs in his favor. In the fined to be something newly created or reserved out of
civil issue he is not on trial. The judgment is not evithe thing granted, that was not in esse before; as
dence that he is guilty of crime. The act affirmed is for instance, an easement. Hurd v. Curtis, 7 Metc.
an incident, a fact, to be proved like other pertinent
facts. 94; Winthrop v. Fairbanks, 41 Me. 312; Boone Real
For instance, in this case, had the insured Prop., $ 303. So that although the terms “exception''
changed the tenancy or occupancy of the premises, and "reservation
without notice to the assurer, proof of the act would are often used indiscriminately, and the difference between them is in particular cases
have been competent, and the fact established by presometimes obscure and uncertain (Bowen v. Conner, 6
ponderance of evidence. If a man by deceit fraudu
lently obtains insurance on a building, by like eviCush. 132, and cases supra; Roberts v. Robertson, 53
dence, his act may be established to avoid the policy; Vt. 690), the so-called “reserving” of the thirty-three
if he burus the insured building the same rule of evifeet strip in this case "for a public street” would be a
dence ought to apply when it is proposed to prove the "reservation" proper (if any thing) as distinguished from an "exception " properly so called. Aud right
act for like purpose. Penn. Sup. Ct., March 1, 1886.
Somerset Mutual Fire Ins. Co. v. Usaw. Opinion by here, and upon this point, it is important to observe
Trunkey, J. that the strip is reserved "for a public street.” If the grantor intended to except the fee of the strip from MALICIOUS PROSECUTION-WARRANT-WHO LIABLE the grant, his intention was not expressed. The strip WHEN ERRONEOUSLY ISSUED.-If the offense charged is “reserved ” for a public street, and for nothing else. is of a public nature, and a justice, through error of
judgment, issues a warrant when uone should issue, without the order of a court or judge, resort cannot be or an erroneous warrant in substance or form, the er- had to this remedy." Jeffery v. Wooley, 5 Halst. 123; ror is his alone; but if the object in view is the pro- Boyd v. King, 7 Vroom, 134. With regard to bail, Mr. tection or enforcement of a statutory private rigbt, | Petersdorff says: “The general rule adopted by all the and a warrant is procured where none is authorized, courts is consistent and uniform, that where the cause and an arrest made, the individual procuring it and all of action arises from a debt or money demand, or others participating are held responsible. To hold the where it sounds in damages, but the damages are caprosecutor responsible, who simply discharges a pub-pable of being ascertained with certainty, by mere arlic duty in making information of a supposed offense, ithmetical computation, the defendant may be bolden would not only be grossly unjust to him, but would to bail as of course; but on the other hand, where also be highly injurious to the public interests. What the cause of action consists merely in a right to rereason or excuse can be suggested for holding him re- cover some damages, but those damages are general, sponsib e for the justice's mistake? He has nothing indefinite and undetermined, or incapable of being reto do with issuing the writ--no authority or influence duced by calculation to a proper degree of certainty, respecting it. It is the justice's duty to pass upon the without the intervention of a jury, the defendant canfacts, and determine whether a warrant shall issue. not be holden to bail as of course." Petersd. Bail, 16; His functions are judicial. This is all so plain that no 10 Law Lib. “In particular, in an action of corenaut, question could be raised respecting it but for the loose the defendant cannot be held to bail as of course, unand inconsiderate expressions to be found in a few less the covenant be for the payment of a sum cerreported cases. No instance was cited by the learned tain." Jeffery v. Wooley, ubi supra. Thus far the decounsel in which a prosecutor was ever held responsi- cisions in New Jersey carry us. When we look to the ble for an honest statement of facts,where be supposed decisions in other States, we find most of them to be a public offense had been committed. There is a class inapplicable, because they rest upon rules inconsistent of cases in which individuals who institute proceed- with those already established here. But the cases of ings for arrest (where such proceedings are not autho- Fisher v. Consequa, 2 Wash. C. C. 382; Clark's Exec. rized by law)may be held responsible. In these cases v. Wilson, 3 id. 560; Wilson v. Wilson, 8 Gill, 193; however the individuals are not prosecutors in the or- Warwick v. Chase, 23 Md. 154, seem to proceed on the dinary and proper sense of the term. No offense lines which our own courts have laid down, and hence against the public (no crime) is charged. The object are useful as illustratious of the rule. In Fisher v. in view is the protection or enforcement of a private | Consequa the defendant had bound himself to put ou right, as where a creditor is allowed to proceed by ar- board ship at Capton a cargo of tea, of the very first rest under the peculiar circumstances described it a quality for the Amsterdam market, and if they did not statute authorizing the warrant. Here (and if simi- prove of such quality at the sales in Amsterdam to lar cases) a special jurisdiction is conferred; and in a make good all deficiencies. At the sales in Amsterwarrant is procured where none is authorized, and an dam the teas proved to be of inferior quality, and arrest made, the individual procuring it and all others worth $4,500 less than teas of the first quality. The participating are held responsible. The failure to dis- court held that attachment would lie for the deficiency. tinguish this class of cases, where individuals are pro- In Wilson v. Wilson the defendant sold flour to the ceeding on their own account, for their own benefit, plaintiff and guaranteed that it should pass with the from public prosecutions for crime, wbere the prose- inspector as superfine, and that if it did not, they cutor represents, not himself, but the public, has led would make such allowance as was customary at the to the confusion and inconsiderate remarks occasion- place of inspection for the difference between flour of ally found in the books. The cases of Maher v. Ash- the grade certified by the inspector and superfine mead, 30 Penn. St. 344; Curry v. Pringle, 11 Johns. 444; flour. The flour was certified to be of an infeGold v. Bissell, 1 Wend. 210; Rogers v. Mulliner, 6 id. rior grade, and the difference in value, according to the 597; Vredep burgh v. Hendricks, 17 Barb. 179, belong custom, was fifty cents a barrel. The court held that to this class. Baird v. Householder, 32 Penn. St. 168; the difference could be sued for by attachment. In and Kramer v. Lott, 50 id. 495, cited by the plaintiff, both of these cases the standard for measuring the decide nothing more than that the form of action damages was fixed by the contract, the damages being there adopted was wrong. The question of liability in the difference in value of two articles, the value of another form was not discussed nor considered, and which was already determined either by the sale of the incautious observations dropped respecting it are the articles themselves, or by the market price of other of no value. The subject is so fully considered in Von articles of like value. Damages so ascertained or by Latham v. Libby, 38 Barb. 339; Stewart v. Hawley, 21 calculation ascertainable could properly be sworn to by Wend. 552; and West v. Smallwood, 3 Mees. & W. 418, the plaintiff. In Clark's Exrs. v. Wilson the plaintiff that nothing further need be added. Cir. Ct., E. D. attached for damages arising out of a breach of the dePenn., June 29, 1886. Teal v. Fissel. Opinion by fendant's covenant in a charter-party to employ a vesButler, J.
sel for a designated voyage at £670 per month. The MINE-LEASE-COVENANT TO PAY ROYALTY.-The plaintiff swore that the voyage would have consumed defendaut had possession of a mine under a lease, in twenty-four months, and rated his damages accordwhich he covenanted to pay $2 a ton royalty for all ore ingly. The court held that the length of the voyage mined and removed, and to mine and remove 10,000 tons was conjectural, and hence the damages were so unper annum. Held, that attachment would not lie for the certain that they could not with propriety be averred damage accruing on breach of the covenant to mine and in an affidavit, but must be ascertained by a jury, and remove the stipulated quantity. The general rule es- that the attachment was illegally used. In Warwick v. tablished in this State is that “an attachment will not Chase the claim was for damages occasioned by delay, lie for unliquidated damages, and can be used only in selling a cargo of flour at Rio, and by failure to inwhen the demand is for a sum certain."
vest the proceeds in a cargo of coffee for return to RichGriffen, 9 Vroom, 462, 467. “An attachment will lie mond. The court held that as the damages depended where the cause of action is founded upon contract, mainly on the price of coffee in Richmond at the time and is of such a nature that the plaintiff would for- when the return cargo would have arrived, and that merly have been' entitled to hold the defendant to time was not fixed, the damages were too uncertain bail upon filing an affidavit of the cause of action. for attachment. It was declared "the general rule When the cause of action arises ex delicto, or is of such is that unliquidated damages resulting from the violaa nature that bail could not have been' required tion of a contract cannot be recovered by attachment
unless the contract affords a certain measure or stand- Ill. 475; Beach v. Church, 96 id. 179; Phipps v. Jones, ard for ascertaining the amount of the damages ; 20 Penn. St. 260; Helfenstein's Estate, 77 id. 331; Cot
* * * the standard should be a subject-matter of tage Street Church v. Kendall, 121 Mass. 5:28. The rule the contract,
* the standard must be shown is otherwise when subscribers agree together to make by the contract, without the aid of terend from up a specified sum, and where the withdrawal of one extrinsio facts or circumstances. N. J. Sup. Ct., Aug. increases the amount to be paid by the others. In 26, 1886. Hecksher v. Trotter. Opinion by Dixon. J. such case, as between the subscribers, there is a muNEGLIGENCE-HIGHWAY-UNPROTECTED
tual liability, and the co-subscribers may maintain an
action against one who refuses to pay. George v. the accident occurred was a single track, eleven or
Harris, 4 N. H. 533; Curry v. Rogers, 1 Fost. 247; 1 twelve feet wide. Upon the west side the ground sloped
Whart. Cont. 719. Cal. Sup. Ct., July 14, 1886. Grand gradually from the travelled track, but on the east
Lodge of the Independent Order of Good Templars of side there was a steep bank extending along the road the State of California v. Farnham. Opinion by Belwithin a foot of the wheel track; and there was no
cher, C. C. fence or railing upon that side. The accident occurred
WATERS AND WATER-COURSES–OYSTERS—"IMPROVEin the night-time, and was caused by the slipping of the buggy in which the plaintiff was riding, upon tne
MENTS.”—The bedding of oysters is not an “i rovebank on the easterly side, while her husband, who
ment" within the contemplation of the Acts of 1862, was driving, was attempting to turn out for a coach
ch. 129, which vests in the owner of land bounding on coming from the opposite direction, and in endeavor
navigable water the exclusive right to make improveing to right the buggy he ran against the coach, and
ments upon all the soil of the water in front of his the plaintiff was thrown out and injured. Held, that
land, subject only to the restriction of not interfering the questions as to the dangerous condition of the
with navigation. The subject-matter of the right deroad and the negligence of the plaintiff's husband
clared by the first of these sections to be in the ripashould be left to the jury. In such a case, if the plain
rian proprietor is “all accretions to said land." It
seems obvious the rights does not attach until the actiff and her husband were using due care as travellers
cretions to the land are formed and become visible. upon the highway, and were by a defect in it exposed
Until new land is made or emerges there can be no acto imminent danger to life and limb, and as a reason
cretion to or increase of the land of which it shall conable precaution to avoid this danger the husband turned the horse to the left, whereby the buggy was
stitute a part. The very term imports an addition brought into collision with the hack, which otherwise
of what possesses the characteristics of land. So long
then as the water covers the soil adjacent to the land, would not have happened, and thus the plaintiff suffered injury, the defect in the highway may be con
it is not within the contemplation of the act, but residered as the sole cause of the injury. Mass. Sup. possibility of accretion being made or formed there
mains under the control of the State, subject to the Jud. Ct., July 3, 1886. Flagg v. Town of Hudson.
from. The improvements, which under section 38, the STATUTE OF LIMITATIONS--ACKNOWLEDGMENT TO
proprietor of land bounding on navigable waters is STRANGER.–The unqualified acknowledgment of a entitled to make into the same, and which with the present subsisting indebtedness, whether made to the otber accretions provided for, shall pass to the succesplaintiff or to his agent, or to a stranger, is sufficient sive owners of the land to which they are attached as to remove the bar of the statute of limitations. Since incident to their respective estates, are plainly, we the decision in the leading case of Oliver v. Grey, 1 think, such structures as are subservient to the land, Har. & Gill, 204, this is no longer an open question in and wbich, used in connection with the land, enbance this State. In that case it was expressly decided that its value, or enlarge its commercial or agricultural fathe unqualified acknowledgment of a subsisting in- cilities, or other utility, to an extent tbe land alone debtedness was sufficient whetber such acknowledg- would be incapable of, and in this way "improve" it. ment was made to the plaintiff or to a stranger. It They are to be made "into" the water-a term inconhas been held, we are aware, in some States, that the sistent with entire separation from the land. acknowledgment must be made to the party or his Wharves, piers and landings are examples of such imagent. The decisions in these cases proceed on the provements. Farming and commercial interests are principle that the debt is extinguished by operation of promoted by the privilege, and to encourage the dethe statute, and the action is brought on the new velopment of these was the main object of conferring promise, and it is necessary therefore that the ac- it. Wheu such improvemets are made they become knowledgment should be made to the contracting par- incident to the estate, as not inherently identical in ties. The debt however is not in this State extin- nature with land, but from being joined to it, and conguished by the operation of the statute-it affects only tributing to its uses and value legally identified with the remedy. The suit is brought on the original it, as a fixture or a right of way or other appurtenance cause of action, and the new promise is offered in evi- that passes with land. The mere planting or depositdence to remove the bar of the statute. So it may be ing of oysters in the water implies no essential union considered as settled law in this State that the ac- or relation between the main land and the soil under knowledgment, whether made to the party or to his the water contiguous, and therefore does not effect agent, or to a stranger, is sufficient. Md. Sup. Ct., an improvement of the foruder implied in something June 22, 1886. Stewart v. Garrett. Opinion by Robin- erected or constructed attached to the shore, and to
gether with the land, furnishing conveniences and faSUBSCRIPTION-EFFECT OF-ACCEPTANCE-CONTRI- cilities that enlarge the advantages of the latter. BUTION.-A promise to pay a subscription to a chari- Until therefore “improvements" are made to the land table object is a mere offer, which may be revoked at in the sense we have described, the mere right to conany time before it is accepted by the promisee; and struct them, although still subsisting, is not incompati. an acceptance can only be shown by some act on the ble with licensing of the soil covered by water for uses part of the promises whereby some legal liability is not subversive of such right, or irreconcilable there. incurred or money is expended on the faith of with, and which must yield to the paramount right of the promise.
If the promisor dies before his making improvements when actually exercised. Then offer is accepted it is thereby revoked, and cannot and to the extent actually occupied by the improveafterward, by any acts showing acceptance, be made ments when actually occupied by the improvements, good as against his estate. Pratt v. Trustees, etc.,
93 do the improvements, and the ground they necessa
rily occupy, become "incident to the estate." Мd. 240; Churchill v. Lady Speake, Vern. 251; Hone's Ct. App., June 14, 1886. Hess v. Muir. Opinion by Ex’rs v. Van Schaick, 20 Wend. 564; Millard's Appeal, Ritchie, J.
87 Penn. St. 457: Fox v. Fox, 19 Eq. Cas. 286; Rouse's
Vt. Sup. Ct., Aug. 18, 1886. WILL-LEGACY--TRUST-VESTED INTEREST.-A. be- Estate, 9 Hare, 649.
Weatherhead v. Stoddard. Opinion by Rowell, J. queathed the whole of his estate in trust, and directed the trustees to pay such portions of the income as might be necessary for the support and education of his daughter, and when she should be eighteen, or if she married before arriving at that age, to pay the
CORRESPONDENCE. whole of the estate to her, or such portions of it as in their judgment would seem most beneficial. In case
A MERE MATTER OF TASTE. the daughter should die before eighteen, he disposed of his estate by various bequests over. The daughter
Editor of the Albany Law Journal : was never married, and died at twenty-three. The I wish to call the attention of your readers to two trustees had never paid over the estate to her, acting decisions given by Mr. Justice Pratt of the second dein withholding the same, according to their best judg-partment in cases where the conditions of the conment, and she had never demanded it. Held, that the tracts are similar. estate vested in the daughter when she was eighteen In Brussford v. Jelrichs, 24 Week. Dig. 233, Pratt, at least. The proposition is deducible from the au- J., says: “Where a marine artist is employed to thorities, especialls fron the more recent English au- paint a portrait of a yacht, it does not follow as a malthorities, that no estate will be held contingent unless ter of law, that inasmuch as the employment involves a very decided terms of contingency are used in the matter of taste, the employer is the sole arbiter as to the will, or it is necessary to hold the same contingent in question whether the contract was performed; " and order to carry out the other provisions or implications in Cross v. Belknap, 24 Week. Dig. 256, Pratt, J., says: of the will. 2 Redf. Wills, 627. If the testator bad “When a person contracts to perform certain work to stopped with directing the trustees to pay over the the satisfaction of the other party to the contract, and estate to his daughter on arriving at eighteen or mar- the subject involved is a matter of taste, like the paintrying, it is clear on all the authorities that the legacy | ing of a portrait, the person for whom the work is to would have vested in the happening of either of those be done is the sole arbiter." events, if not before, and so it comes to this: whether Is it possible, considering that both decisions were the discretionary clause makes any difference. We given in the month of May, this year, and are separthink it does not, both on the construction of the will ated in the reports by only twenty-three pages, that a and on authority. When a mau sits down to dispose judge should be so varium et mutabile ? of his property by will, it is fair to presume that he
Respectfully yours, does not intend to die intestate, nor to become intes
CHARLES F. BRANDT. tate after death, and so courts lean against intestacy. NEW YORK, Sept. 20, 1886. Now here the testator made no bequest over exceptin the siugle event of the daughter's dying before eight
If then she did not take a vested interest at least at eighteen, the testator became intestate at her
A PATRIOTIC DEED. death, and his estate is left to be distributed by law; for it would be absurd to read this will as giving be
Editor of the Albany Law Journal: quests over in case his daughter died after eighteen, as Iu looking up a Bar Harbor title the other day I she did. Then again the very fact tbat he made no came across a deed which I claim to be the most padisposition over in case she died after eighteen is a cir- triotic on record. You may like to publish portions cumstance of no little weight to show that he intended of it. An old sea captain gives his native place a lot of his estate to vest in her at all events on her becoming land on which to build a school house, and uses the eighteen. 2 Redf. Wills, 606. In England a gift over following language, whether emanating from him or in one event is generally regarded as favoring vesting the attorney who drafted the deed I do not know: in all other events, on tbe ground that the gift over, After the usual beginning he says: “In considerbeing made to depend upon particular events, the pre- ation of my love for the place of my nativity and my sumption is that in every other event the estate was respect for the early friends and neighbors of my intended to remain in the first taker. But we think, father and mother, and the pleasant associations conas said by Judge Redfield, that this form of argument nected with the spot where I commenced receiving is more forcible when there is no disposition over, the advantages of a common school education, the refor then it may well be said that the testator intended ceipt whereof I do hereby ackuowledge," etc. Then the estate to vest in the last donee wamed. The trus- directly after the witness clause, “enjoining upon the tees were the brothers and a brother-in-law of the tes- children who may be educated in this house to love tator. He made them bis executors, and reposing their country and their country's flag, as I have done confidence in them, was willing to leave it to them as that glorious constellation which I have seen waving trustees to say when and to what extent his daughter, in houor in many climes, and with the hope that every after becoming eighteen or marrying, should be per- child that may here assemble may be as happy as I am mitted to come into the actual possession and enjoy in this free gift, have hereunto set my hand," eto. ment of his estate; but we do not think he intended And finally in a spirit of true piety he adds, after to leave it to them to say whether she should ever the acknowledgment: “There being no house in the have it at all or not in interest. Ile had willed “in vicinity of this school-house suitable for religious wortrust for her," and the discretionary clause-treating ship, and desiring to be a witness to the truth of the it as valid, and as to wbich see Gray Perp., $ 120-was Bible, I bereby consent that in this school-house there inserted for her supposed benefit, and more by way niay be services to the true and living God; but it is to of giving directions to the trustees as to the time and
be used for no other than the two purposes specified." manner of payment than as importing condition or Then another signature and seal. contingency. And this idea of a trust is important,
Yours very truly, and well uigh decisive of the case. Oddie v. Brown,
JOAN A. PETERS, 2d. 4 De Gex & J. 179; Saunders v. Vaudier, 1 (raig & P. ELLSWORTH, ME., Sept. 17, 1886.
The Albany Law Journal.
should weigh; the question for every lawyer to settle for himself is, who will make the better judge?
Aug. * Powell...
ALBANY, OCTOBER 9, 1886.
“Leviticus XVIII, and Marriage between Af
fines,” is the title of a pamphlet of twenty pages, CURRENT TOPICS.
by Mr. John B. Gale, of Troy, N. Y. This is de
signed as a supplement, reinforcement and condenHE
sation of the author's former tractentitled “Afsupposed they would result, in the triumph of finity no bar to Marriage,” on which we commented wire-pulling partisanship, and the degradation of at the time of its publication. This subject is kept the judicial office to serve the low aims of party continually alive by the annual discussion in the managers. Both parties are equally to blame for British Parliament as to marriage with a deceased this inglorious spectacle. The difficulty is that wife's sister. In Great Britain marriage is prohibeach thinks it can elect its own nominee, and thus ited between twenty classes of persons related only help the party in other points. We have said our by marriage, while in this country eighteen States, say about Judge Peckham, and after this we shall including New York, prohibit no such marriages, have nothing or little more to say. The writer and in pone except Georgia is marriage unlawful highly regards him as a personal friend, and cer- with either brother's or nephew's widow, or sister tainly nothing can be said against his character or niece of deceased wife. Mr. Gale justifies his nor in depreciation of his abilities, except that they publication as follows: “If our permissive State consist in the forensic vigor and the convincing laws really oppose Divine law we need to know it, power of the advocate rather than in the deep legal and to reform them; or if instead, the restrictive learning, the reflective habit, and the capacity of ones have no Divine warrant, and rest only on civil expression in writing of the judge. He very much polity, we should know that, and reconsider them. resembles his father in personal and mental quali- And as to the restrictive ecclesiastical laws if they ties, although he is probably an abler lawyer, and are not scriptural they are defenseless, and should we have observed that his father's opinions are very be blotted out as setting up traditions of men for seldom quoted. The father was and the son is just the word of God, and as working egregious wrong a little too fond of his own off-hand expressions to by subjecting parties to these Christian marriages be the most patient and safest kind of a judge. to unjust criticism, and to the shameful attacks Still a superb common-sense is the endowment of upon them which advocates of the restriction so both, as it was of the late chief judge, Church often resort to. For these reasons alone a better endowment not too prevalent on our bench, nor on public understanding of this neglected subject beany other, and which we have sometimes missed since comes desirable. But they are not all, for the the death of the late chief. As for Judge Daniels, growing demands for uniform marriage and divorce the Republican nominee, he would have been a laws throughout the States, and for Federal supprescapital candidate for both parties, but he early de- sion of polygamy in Utah, give it new and national clined in a most decided manner. We are glad importance; and especially so when it is considhe has reconsidered this unfortunate decision. He ered that such Federal action, and indeed all maris & nominee in every way suitable. He is in no riage laws, must face the fact that if the Levitical sense a partisan or politician; he has had a very laws in question command restrictions upon affinigreat experience as an appellate judge; although a tous marriages they as certainly, and for like rearesident of Buffalo he may be considered a fair rep- son (or unreason), sanction polygamy, and give rank resentative of the first district, where he has sat for to that infamy as a Divine institution for all nations so many years; his learning is ample, his industry and ages.” Mr. Gale now, in the form and dimenis untiring, his patience is proved and unfailing;
proved and unfailing; sions of a lawyer's brief, conclusively demonstrates his integrity never has been questioned; and not the unsoundness of the ecclesiastical deduction that the least, he did not seek the office. Office seems marriage with a deceased wife's sister is forbidden to run after Buffalonians of late. It is a pity that by the Bible. We quite agree with Mr. Gale that he will be able to remain on the bench only about the phrases "uncover the nakedness of” and “lie eight years. Judge Daniels ought to command carnally with " did not mean marriage; that “ laws every Republican vote, and will probably draw against lewdness with the wives of kin by no means some moderate democrats, and is perhaps as strong forbade marriage with their widows;
" and that a candidate as the party could put up. On the "all who consider that laws must be construed by other hand, Judge Peckham has some enemies and their subject will escape the imbecility of reading opponents in his own party — which is nothing laws against lewdness with others' wives as laws against him – and has never sought to conciliate against marrying their widows." As Mr. Gale is an the members of the other party which is very | Episcopalian this tract may be an influential protest much in his favor. He is not a “popular ” man against the silly doctrine, to the inculcation of which for which we do not blame him; but he is a parti- some of the clergy of that church seem to devote san, for which we do not admire him. He was much of their time and talents, mainly because “it's born to fortune and a liberal education, and Judge English, you know.” If that clergy would take a Daniels is a self-made man, but neither of these facts / little pains to preach against the common vice of
VOL. 34- No. 15.