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the jury have the right to take into consideration the fact that he is interested in the result of his prosecution, as well as his demeanor and conduct upon the witness stand and during the trial; and the jury are also to take into consideration the fact, if such is the fact, that he has been contradicted by other witnesses. And the court further instructs the jury, that if, after considering all the evidence in this case, they find that the accused have willfully testified falsely to any fact material to the issue in this case, they have the right to entirely disregard his testimony, excepting in so far as his testimony is corroborated by other credible evidence." Held, that there was no substantial objection to the instruction. (2) Whatever may be the rule in other States with respect to the right of a jury to convict upon the uncorroborated testimony of an accomplice, it is well settled that the right exists here, and convictions on such testimony will not be disturbed by this court on that ground alone. Collins v. People, 98 Ill. 584; Friedberg v. People, 102 id. 160. Sup. Ct. of Illinois. Rider v. People. Opinion by Mulkey, J. (110 Ill. .) [ (2) See 9 Hun, 113; 63 N.

Y. 143; 85 Penn. St. 739; 1 Am. Crim. Law Rep. 34.ED.]

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A REASON FOR INCONSISTENT DECISIONS. Editor of the Albany Law Journal:

In the last number of the JOURNAL, in commenting on the "breezy book" of Gilbert, of Ottawa, Ill., you seem to attribute the inconsistencies of the Supreme Court of Illinois to what you call "the crying need of a code." May not this be due to the vicious system adopted by the court of assigning cases to single judges to write the opinions, without any previous determination by the court as to what those opinions should be when written? Under this system the judges themselves must feel that the decisions of the court are in fact the individual opinions only of the particular judges writing them, and not the solemn determinations of the court. Most of the inconsistencies seemingly occur by one judge expressing his opinion as the opinion of the court, without even noticing a contrary opinion expressed by some one of the other judges in a previous decision. The last opinion is perhaps hastily read in consultation. The tired judges sit listening, with thoughts perhaps far away. No notice is taken of the former decision. The doctrine of stare decisis is not discussed. Nothing striking the ear of the sometimes impatient and often-tired judges as being exceptional, the opinion is courteously acquiesced in and adopted; hence the inconsistencies. A code would hardly remedy this evil, for this contrariety sometimes occurs concerning the construction given to a plain statutory provision. For instance: The Statute of Illinois provides that appeals may be taken direct from the Circuit to the Supreme Court in

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all cases where a freehold is involved, etc. In 100 Ill. 11, and id. 218, aud in 103 id. 180, it was held that a freehold is involved in all cases where real estate is claimed under a deed purporting to pass the title which is sought to be avoided by an adverse claimant. In 105 Ill. 218, these cases in most sweeping language are all overruled without referring to the cases at all. But what's more, the force of the argument, in this last case overruling these three cases, is directly repudiated and denied by a decision of the court written by another judge in 108 Ill. 650, and this without noticing the case. And yet again in this first case, 100 Ill. 11, can be found expressions in the opinion, on another point, that are wholly irreconcilable with the construction given to a statutory provision in 86 Ill. 313. The fault is not in the judges; they are all learned and able men; not in the want of a code, but in the "assignment system." J. C. COURTNEY.

METROPOLIS, Ill., June 10, 1885.

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THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, June 16, 1885:

Judgment of General Term and Sessious reversedPeople, respondents, v. Morris Marx, appellant.Appeal dismissed with costs-In re application of New York, Lake Erie & Western R. Co. for appointment of commissioners.-Judgment reversed, new trial granted, costs to abide event-William Kirkland, appellant, v. Samuel Kille, respondent.-Judgment affirmed-People, respondents, v. Joseph Bork, appellant.-Judgment affirmed, with costs-Casper Wagner, respondent, v. New York, Lake Erie & Western R. Co. Judgment affirmed with costs-Eliza Bai

ley, administratrix, etc., respondent, v. Boston, Hoosac Tunnel & Western R. Co., appellant.-Appeal dismissed with costs-People ex rel. Albany Bridge Co., respondents, v. William J. Weaver and others, assessors, etc., appellants.- -Appeals dismissed with costs-James H. Woodford, appellant, v. David H. Rasback, respondent; and Same, appellant, v. Benj. F. Chapman and others, respondents.-Appeal dismissed with costs-Frederick Robinson, appellant, v. Peter Helferick, respondent.- Judgment affirmed with costs-James Carrigan, appellant, v. Thomas H. O'Conner and others, respondents.

NOTES.

"Proceedings on the foot of a judgment." These of course are the last proceedings. Mr. Fred. Geller, of this city, carried off the prize at Columbia Law School, for the best essay on the Force of Judgments of other States. His essay is said to be an excellent production, and is printed in full in the Columbia Jurist.

-Here is another unrestrained Beecher. Mr. J. A. Beecher, of Newark, N. J., writes The Nation, thanks it for denouncing Judge Van Brunt, and demanding that he be impeached for the protection of lawyersso he says, although we cannot see what the judge has done against the lawyers.

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THE ALBANY LAW JOURNAL.

The Albany Law Journal.

ALBANY, JUNE 27, 1885.

CURRENT TOPICS.

N association has just been formed in this city

is without distinction of sect or party, and its efforts are to be restricted to the attempt to shut up the grog-shops on Sunday. Nothing can well be said against any attempt to enforce the laws, especially in a matter so essential to the prosperity of society as this. Of course the grog-shops will complain, not content with their license to debauch their weak fellow creatures and deal death and damnation around the land on the other six days of the week. Of course it will be difficult to carry out this law. The grog-sellers will laugh at the attempt. Certain politicians of the baser sort, whose advancement depends on the suffrages of those who sell and drink the stuff in question, will be indifferent or even hostile. But these people will find out, we hope, that the aroused conscience of a community is irresistible. Politicians found that out at the last election of governor in this State. They will find it out again on a smaller scale in this city. Our local laws shall not be disregarded and defied. Our Sunday shall not be made the worst day of the week, sacred to wife-beating, debauchery, disorder, and all crime. The newspapers treat the movement very gingerly, but we believe that they will find out that it is going to be popular, and then of course they will come in. Let our laws be enforced, say we, and if our present public officers will not enforce them, we will see about getting some who will. Let the law-breakers stand from under !

If any lawyer, "with whom time lags withal," will first read, as an "eye-opener," the article of Mr. Hopkins, ante, 284, and then take the latest edition of the statute (seventh), which of course is the best, and note the changes effected by the Legislature of 1885, he will find that chapter 489 of the Laws of 1879, which ought to have been insured a place therein, has been entirely omitted. That any thing could have escaped the codifier who so greatly simplified the Code of Procedure, and whose capacity is so well known in legal circles, fills one with wonder and amazement, and we are led to exclaim, "who is sufficient for these things,' when they escape Mr. Throop.

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spectators did not want to be hit.

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At this juncture

the judge "leaped" into the "arena." (Why we can't conceive, unless for the sand in the "spittoons.") But the judge "waltzed in," and a third attorney, in sympathy with the county attorney, hit him under the ear. This was no way to gain the ear of the court. For a moment the judge was "dazed," but instantly recovered, and it "+ for judge immediately laid down the law and the lawyer, and wallopped the latter heartily-"threw him out of court," so to speak. Then the judge grabbed one of the two principals, and two jurymen at his command captured the other. He fined the principals fifty dollars each, and then adjourned court, as all hands were bleeding profusely. It is feared a "tragedy " will ensue.

We shouldn't wonder.

But we are wagering all our worldly possessions on Judge Beekman, especially as he did not deem it necessary to fine his own particular combatant. He is a man after our own heart, and his method is sure to reduce "the law's delays." We are glad it was only a murder trial that was thus interrupted. If it had an indictment for carrying concealed weapons, the principals would have felt foolish at the consciousness that each had a "weepon" humping out his hip-pocket. We hope our brethren will lay aside these "guns' " when we come down to visit Judge Beekman, as we propose to do at our earliest convenience. We will warrant that he doesn't carry any knives or pistols, nor any "knuckles," save those which nature has gifted him withal. Oh, that Ben Butler or Bob Ingersoll would tackle him!

It is gratifying to see a dead-letter law enforced. The conviction of Buddens iek, for putting up paper-houses, and thereby crushing sundry fellowbeings to death, is a wholesome example. The matter of making buildings safe against falling and fire has been too long notoriously neglected. Buddensiek seems to have carried things with a high hand, and it is well to begin with him. It may

seem hard to him and to some others that a man who did not intend any wrong should suffer. But this man is just as culpable as one who points a pistol, supposed to be unloaded, at another, and it goes off and kills or hurts. All this fooling with human life, whether by practical joking, or by the selfish greed of careless builders or grog-sellers, must stop. At all events, the laws must be enforced. The district-attorney's office in New York deserves credit for this prompt conviction. It will prove an effectual lesson.

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remedy; it makes him revengeful; he will always ache to kill that sheriff, and we do not wonder. It tends to make a brute of the officer inflicting it. A self-respecting man ought to decline to dirty his hands with it. In old times they used to keep butchers off juries in England, from the popular notion that they were blood-thirsty; a mistaken notion probably. But we do believe that the custom of requiring a public officer to whip his fellowbeings till they bleed and faint, and sometimes come near dying, is very reprehensible. If we must beat criminals, let us have a machine for doing it, like a carpet-beater.

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[N Davies v. Gallagher, Pennsylvania Common Pleas, December, 1885, 16 Week. Notes Cas. 147, it was held that the warden of a penitentiary cannot be made a garnishee in respect to money belonging to a prisoner. The court. Thayer, P. J., said: "The warden is the chief executive officer of the penitentiary, and the duties and responsibilities

Our excellent contemporary, The Independent, late spoke of a new penal law in Tennessee, forbid-imposed upon him by the act are very onerous. ding the teaching of polygamy, or emigrating for the purpose of practicing it. Certain Mormon elders arrested under the law propose to test its constitutionality, and The Independent observes: "We have no sympathy with Mormonism, as a doctrine, believing it to be a gross, religious imposture, cunningly palmed off upon ignorant persons by an artful priesthood; and we hold in utter abomination the practice of polygamy, and have urged the government of the United States to prosecute and punish it as a crime in all places in which it has jurisdiction for this purpose. And yet at the same time, we find it impossible to accept the Tennessee plan as just and right for dealing with those who are merely teachers of polygamous doctrines.

It seems

He is required to reside in the penitentiary, to visit every cell and apartment, and to see every prisoner at least once a day. There are now more than one thousand such prisoners. He must keep a journal, in which are to be entered all receptions, discharges, deaths, pardons and escapes of prisoners, and all complaints made and punishments inflicted, the visits of the inspectors and physician, and all other occurrences that concern the state of the prison. He is to appoint and dismiss all the underkeepers and servants, to report to the inspectors all infractions of the rules and inflict all punishments. His duties are in short so exacting, and require such constant attention, that he is prohibited by law from absenting himself from the penitentiary for a single night without permission in writing from two of the inspectors. His necessary and imperative duties demand and fill up his whole time. That such a public officer should be harassed with attachments against his prisoners, in which he is made garnishee, is clearly against public policy and contrary to law. Considerations of public policy and convenience require that money in the hands of such officers shall not be stopped whilst in custodia legis. If the warden should be obliged to answer such attachments his attention would necessarily be diverted from his legitimate duties, to the great detriment of the prison management, for he would be compelled to appear in court, employ counsel, answer interrogatories, collect evidence, and to devote the time which is recrime; bigamy is, in every civilized community, quired to be given to his duties to watching the and as such, the inculcation of it is a proper matter progress and conducting the proceedings of law of police regulation. In the next column The In-suits. He belongs to that class of public officers dependent says: "On the first of June an excellent law, passed at the last session of the Connecticut Legislature, took effect throughout that State. It provides for the imposition of a fine of fifty dollars or less, or imprisonment for three months or less, or both, on persons selling or keeping for sale | publications devoted to criminal news or stories of crime. It is said that the law has already had the effect of purifying the news stands. Connecticut has set an example that the other States should hasten to follow." This we think is right. But The san The Illinois provideus discriminate? Is it taken direct from the Circuit to the Suprem

to us a plain and palpable violation of the fundamental principles of this country in respect to the right of free discussion. We would just as soon pass a law making it a penal offense for any person to preach the doctrines of atheism, or induce other persons to accept these doctrines, or to preach any system of generally acknowledged error. The right of free discussion may have its incidental evils; but when this right is not so exercised as to invade private rights, as in the case of slander, the better way indeed the only safe way is to leave free discussion to supply the necessary cure for these evils. This is better than the Tennessee law." This we think fails to discriminate between the proper inculcation of religious opinions and of the practice of a recognized crime.

Atheism is not a

which is exempt from the process of attachment against funds in their official custody, like the treasurer of a board of school directors (Bulkley v. Eckert, 3 Barr. 368); the prothonotary of a court (Ross v. Clarke, 1 Dal. 354); a justice of the peace Corbyn v. Bollman, 4 W. & S. 342); a sheriff (Bentley v. Clegg, 1 Clarke, 62); a constable (Crossen v. McAllister, 1 id. 257); State and county treasurers and officers of municipal bodies (City of Erie v. Knapp, 5 Casey, 174). The performance of public duties by officers of this class is sufficiently difficult and onerous without complicating them with

law suits between other persons in regard to funds in their official custody. Besides, the warden holds the personal property of the prisoners in his charge upon an official trust created by law. It is to be 'preserved by the warden, and to be restored to the prisoner on his discharge.' It is in custodia legis. It cannot be seized by a creditor or diverted to any other purpose. The warden's duty is to keep it for the prisoner, and he cannot lawfully rid himself of the trust except by delivering the property to the prisoner when he is discharged."

In Merrill v. Eastern Railroad Co., Supreme Court of Massachusetts, the plaintiff's intestate was riding upon one of the engines of the defendant. The train having stopped at a station he got off the engine, and after the train had started ran and jumped upon the step of one of the passenger cars. Owing to the crowded condition of the car and platform he was unable to get into the car, and remained on the step. When the train had gone about half a mile, he fell off the car and was killed. Held, that he was not a passenger, and the company was not liable for his death. The court, Holmes, J., said: "If we should assume that the deceased had acquired the rights of a passenger, and that the defendant failed to make proper provision for carrying passengers, or that the train was overloaded by the unfitness of the defendant's servants, still we should have some difficulty in saying that the overloading was the cause of the death, notwithstanding Commonwealth v. Boston & Lowell Railroad, 134 Mass. 211. For if the place which the deceased took was unfit and dangerous its unfitness and danger already existed, and were manifest before he took it. If there was a crowd on the platform the deceased saw it. And certainly the argument would be strong that he, rather than the defendant, was the cause of his being where he❘ was, and of his exposure to the danger incident to that place. But we do not pass upon this point, because we cannot assume that the deceased had

acquired the rights of a passenger. He did not do so when he got upon the engine, a place to which he was not invited, and which every one knows is not intended for passengers, and where in this case he would have escaped paying fare, as it was inaccessible to the conductor. Then, supposing that his start upon the engine did not give a character to his subsequent relation to the defendant, and that the deceased was in the same position as if he had attempted to get on at East Salisbury for the first time, it is clear that when he attempted to get upon the moving train after it had started, he was outside of any implied invitation on the defendant's part, and did not at once acquire the rights of a passenger in the hands of a carrier. We may admit that if he had reached a place of safety, and seated himself inside the car, the bailment of his person to the defendant would have been accomplished; and that he would not have been prevented from asserting such rights because of his

improper way of getting upon the train. But we think that he could not assert them until he had passed the danger which met him at the threshold, and had put himself in the proper place for the carriage of passengers. It is no answer to say that he was prevented from doing so by the defendant's fault. There was no evidence that the deceased was compelled to remain on the step of the platform. But even if the jury would have been warranted in finding that there was such a crowd that the deceased naturally stopped where he was, although not strictly compelled to do so, and that the crowding was due to the defendant's fault, still there was no fault as toward the deceased, because the defendant was not bound to provide for the contingency of people getting upon the train after

it had started."

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In Anheuser-Busch Brewing Association v. Piza, United States Circuit Court for the Southern District of New York, it was held that the plaintiff, of St. Louis, making and exporting beer under the name of "St. Louis " beer, might restrain the defendant, of New York, from the use of that name to his injury. Wallace, J., said: The defendant 'alleges that purchasers of beer at Panama and the other places in question in South America do not discriminate between the complainant's article and other beer made in the United States, but buy it simply because they suppose St. Louis lager beer is beer produced in the United States as distinguished from German and English beer. This may be true, but if it is, it does not seem conclusive against the right of the complainant to the injunction which he seeks. As the goods of the parties go to the same markets it can happen that the complainant will lose sales, and the defendants will get customers in consequence of the defendant's acts. Although the complainant cannot have an exclusive property in the words 'St. Louis' as a trademark, or an exclusive right to designate its beer by the name 'St. Louis Lager Beer,' yet as its beer has always been made at that city, its use of that designation upon its labels is entirely legitimate, and if the defendant is diverting complainant's trade by any practices designed to mislead its customers, whether these acts consist in simulating its labels or representing in any other way his products as those of the complainant, the latter is entitled to protection. It is no answer for the defendant, when the complainant asks for protection, to say that it has no exclusive right to designate its product in the manner, although this might very properly be asserted by a competitor selling beer made at St. Louis, or who by reason of any circumstances might be entitled to represent his product as originating there. Canal Co. v. Clark, 13 Wall. 332." Citing Newman v. Alvord, 51 N. Y. 189; S. C., 10 Am. Rep. 588; and the cases of "Glenfield Starch," Wotherspoon v. Currie, L. R., 5 H. L. 508, 513; "Anatolia Liquorice," M'Andrew v. Bassett, 10 Jur. (N. S.) 492; "Seixo Wine," Seixo v. Provezende,

L. R., 1 Ch. App. 192. "It is unnecessary for present purposes to consider whether the complainant has a valid trade-mark, or can have a technical trademark in the name St. Louis; it is sufficient that it was lawful for the complainant to use that name to designate its property; that by doing so it has acquired a trade which is valuable to it, and that the defendant's acts are fraudulent, and create a dishonest competition detrimental to the complaint."

In Pritchard v. Hamilton, in the Supreme Court of the Second District, Judge Bartlett has recently decided a rather novel question. The action was brought to recover five months' rent of a dwelling-house in Fort Greene Place, leased by plaintiff to defendant for one year, the lease being signed by both parties. The defendant's only defense was that after the execution and delivery of the lease the plaintiff had without his consent affixed seals to the signatures. Judge Bartlett decides that the addition of the seals was immaterial, and says: "Upon the authority of Green v. Elwell, 13 W. Dig. 236, I think the plaintiff is entitled to judgment under the stipulation herein. Independently of authority however, I am of the opinion that the addition of a seal even by the plaintiff, where it adds nothing to the efficacy or enforceability of the contract sued upon for the purposes of that suit, should be deemed immaterial."

In Circleville v. Neuding, 41 Ohio St. 465, where a city contracted for the construction of a cistern eighteen feet wide and twenty feet deep in a street, and before it was completed a horse fell into it and was killed, for want of a sufficient guard around it, held, that the city was liable, although it did not reserve or exercise any control or direction over the manner of doing the work, except to see that it was done according to specifications, which were a part of the contract. The court said: "The relation between the city and Barndt was clearly that of employer and independent contractor, and the rule is generally that for injuries occurring in the progress of work carried on by parties in that relation, the contractor alone is liable. But this liability is limited to those injuries which are collateral to the work to be performed, and which arise from the negligence or wrongful act of the contractor of his agents or servants. Where however the work to be performed is necessarily dangerous, or the obligation rests upon the employer to keep the subject of the work in a safe condition the rule has no application. This distinction has been taken in this State in a number of cases. Carman v. Railroad Co., 4 Ohio St. 399; Tiffin v. Mc Cormack, 34 id 638; Hughes v. Railway Co., 39 id. 461, and elsewhere, in Mc Cafferty v. Railroad Co., 61 N. Y. 178; S. C., 19 Am. Rep. 267; Prentiss v. Boston, 112 Mass. 43; Baltimore v. O'Donnell, 53 Md. 110; S. C., 36 Am. Rep. 395; Logansport v. Dick, 70 Ind. 65; S. C., 36 Am. Rep. 166; Crawfordsville v. Smith, 79 id. 308; S. C., 41 Am. Rep. 612; Robbins

v. Chicago, 4 Wall. 657. * * * Such an excavation in a street, unless protected to guard persons and animals using the street from falling into it, was necessarily dangerous. The city was under the statutory obligation at the time of the accident to keep its streets open, in repair, and free from nuisance, and it could not cast this duty upon a contractor, so as to relieve itself from liability to one who should receive an injury. It is primarily liable for an injury resulting from such a dangerous place in a street. If it has required the contractor to assume the risk of such damage it may have a remedy against him. But the public in the use of the streets may rely upon the legal obligation of the city to keep them free from dangerous places, or if such places become necessary to be made in the course of an improvement or work necessary or proper for the city to do, that it shall so guard them that no injury shall result in the ordinary use of the street."

TRIAL BY JURY, AS IT IS AND AS IT SHOULD BE.

THE subject of trial by jury, it seem to me, in view THE

of some of the defects and inadequacies of that system of trial, is deserving of much more attention on the part of the legal profession and of the law-makers than it is accustomed to receive. That this mode of trial, in both civil and criminal causes, cannot be too highly valued nor too firmly adhered to, goes without saying; yet considered in its practical aspect it is hardly what we would wish it to be, and is capable of vast improvement. It unquestionably falls short of the results which should flow it, because of the unwisdom of many of the rules by which it is governed, and the manner in which some of those rules are applied in our courts.

That no man should be deprived of life, liberty or property, or have any of his vested rights abridged, except by the impartial judgment of his peers, is a proposition to which almost universal assent is given. It can safely be said that no lawyer of experience, and no experienced layman for that matter, can seriously advocate the abolition of trial by jury. The idea, it is true, has occasionally been voiced, but the speaker has been generally found to be either a man who knew better and was not sincere in his utterances, or an im becile who knew not what he was talking about. There can be but one sound and healthy opinion on the subject. From the time of Magna Charta trial by jury has been wisely regarded as the supremest blessing secured to mankind in their civil and social life. In our own country the natural rights of life, liberty and the pursuit of happiness, together with the civil right of trial by jury, compose the creed of the citizen. And the opinion is growing in this country that this mode of trial should not be confined to the narrow sphere in which it is now applied, but that it should be extended so as to cover every case where questions of fact are involved in an action in the courts of equity as well as the courts of law.

It is believed that thereby the ends of justice would be surer of attainment in our courts. It is believed that a petit jury, intelligently and properly drawn from the body of the people, are calculated to arrive at a more impartial and correct conclusion on given questions of fact between litigants than any individual judge, however learned and experienced he may be, and however desirous of doing right. It is the opin ion of many members of the profession, who have given

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