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overcomes the free action of the mind at the time of way in Massachusetts. He may at any time cast off making the will; but the pressure may have been the woman, and if she contests the case in court his brought to bear previously, and if it remained so as to testimony that there has been no marriage would outcoerce the mind of the testator at the time the will weigh the inferential evidence of their mode of life; was executed, it cannot be upheld. Undoubtedly the or, a man cohabits with a woman in Massachusetts, inferences and conclusions to be drawn from the evi- and then they remove to New York to live. The same dence, when a charge of uuduo influence is in a case conduct, which in Massachusetts renders the actors liawhere the will is made by a husband or wife in favor ble to fine and imprisonment, becomes legal and repu. of the other, may be quito different from what it table in New York. would be when applied to cases between guardian and It needs no argument to show that such uncertainward, or other persons standing in fiduciary relations ties in the family relations must be demoralizing in the to each, or between a testator and a person occupying extreme. Which State has the better law might be a no fiduciary or blood relation. Manifestly to estab-debatable question. The higher moral standard would lish undue influence in persons occupying the relation seem to bo the New York law; but it has the inherent of husband and wife, the facts and circumstances defect of establishing a legal fiction, making certain shown must not only be consistent with the hypothesis facts which naturally would only be prima facie eviof tbe will having been obtained by undue influence, dence of a marriage, conclusive evidence. It is always but it must be shown that they are inconsistent with a matter of regret when the birth of another member a contrary hypothesis. Aud the facts and circum- in the family of legal fictions is announced. stances must be such that when all the evidence is This case is only one of many cases which rise daily considered, the jury can see that the acts which under the marriage and divorce laws of the various constituted the undue influence were such States. No subject really demands more serious attenamounted to coercion or fraud. Boyse v. Rossborough, tion from the public, particularly the legislative por6 H. L. Cas. 247. Shephardson v. Potter. Opinion by tion of the State governments. None demands more Champlin, J. [See 2 Am. Rep. 491; 8 d. 238; 25 id. 303; skillful treatment, and none seems less likely, in the 27 Eng. Rep. 417; 32 id, 331.-Ed.]
political and financial crises of the present day, to re[Decided March, 1884. ]
ceive the attention it deserves.
SIMON G. CROSWELL. BOSTON, June 11, 1884.
Editor of the Albany Law Journal:
The following extract is from the New York Times May I ask a few lines of space to call attention to a
of the 11th inst., a journal that assumes to discuss legal rather peculiar point arising this week in a divorce questions in the most authoritative manner: case? My excuse for troubling you must be the impor- “Mr. Charles Bradlaugh may be excused for baving tance of the subject.
lost his temper upon learning from the secretary of The case is the libel of Adeline J. Miller for a div- the treasury that the commutation of the pensions of orce from Amos Miller, in the Supreme Judicial Court
the Duke of Marlborough and William Penn had been of Massachusetts. The ground of defense was that the completed, the secretary having expressed a willingparties were never married. It was in evidence that ness to hear Bradlaugh in opposition to the commutathey became acquainted in Boston and then removed to
tion. The same amiability was once shown by a police New York, where they lived together fifteen years.
magistrate of New York to a lawyer arguing a writ of The man then left the woman and married another.
habeas corpus, who interrupted himself by calling the There was evidence that the man had registered him. judge's attention to the fact that his client had left self and the woman as man and wife in a hotel in New
the court room. “Oh,” said the learned jurist, “that's York. The decision was reserved.
all right. I sent him back to jail before you began; By the law of New York if a man is proved to have
but go on, sir, go on; it's very interesting.' recognized a woman as his wife it is conclusive evi
Could any thing more ludicrous be imagined in legal dence of a marriage; in Massachusetts it is only prima practice than the argument of a writ of habeas corpus facie, and liable to rebuttal. This state of facts and
before a police magistrate ? law suggests these points. An initial difficulty will
W. J. G. meet the court in deciding this case. Questions of May 12, 1884. evidence are regulated by the law of the forum. This seems to be a question as to the effect of certain evidence, and was so treated in the Breadulbane case, L. R., 1 H. of L.; S. C., App. 182. But if this case is gov
THE CODE IN OTHER STATES. erned by the Massachusetts rule, there is no evidence of an actual marriage, and no such claim by the par
Editor of the Albany Law Journal : ties. We should then have the interesting spectacle of Will you do me the kindness to answer the following a couple married to each other while they stay in New in the columns of your journal: York, and possibly in other States, but not in Massa- 1. What western States practice under a code? chusetts and a large number of States.
2. Are there not some which have adopted the New Suppose however the marriage is held valid; the re- York code? If so, which; and if not, in which States sult is hardly satisfactory. A supposed case or two will is the practice approximately similar to the New York show this.
practice ? A. lives in New York with a woman to whom he has
Yours respectfully, never been formally married. He registers at a hotel
J. L. D.
ELMIRA, June 10, 1854. as Mr. A. and wife. He is as much married to her as if by a bishop and three priests. B. lives in the same [See ante, p. 261. -ED. ALB. LAW JOUR.]
THE. Tolowing decisions were handed down Tues
enriched his life. His fiue attainments in the classics,
in scientific and literary studies, were a high incentive MR. JUSTICE SWAYNE.
to those who had the privilege of seeing what a pleas
ure and unfailing resource they were to him. Editor of the Albany Law Journal :
The blessings he had conferred on others returned Will you allow one who enjoyed some degree of the to cheer and enrich his own declining days, and he had, friendship of a distinguished jurist, the Mr. Jus- in largest measure, tice Swayne, to speak a word of heartfelt eulogy?
“That which should accompany old age, The life and jndicial career of Judge Swayne present
As honor, love, obedience, troops of friends." many points of interest and value for all who honor
Surrounded by his family, his friends, his books, our profession and admire high motives and unspotted
with all his facultius clear, suddenly, and with “no character in our public men. He was, for one thing, a
slow gradations of decay," he met his earthly end, and noble example of the power of industry and strict de
“as near as human frailty permits to fill the votion to the duties of his profession. Starting in life
measure of a hopeful euthanasy." In pace, In pace. in business pursuits, be turned to the study of the law,
D. H. CHAMBERLAIN. and without academical training he not only mastered
NEW YORK, June 17, 1884. the common learning of his profession, but became versed in a familiar knowledge of the more recondite learning of the law as well as in its literature.
Two qualities contributed to this result: unremitting industry, and a mind which thirsted for all knowledge. His early career at the bar was attended
COURT OF APPEALS DECISIONS. by many circumstances which did not tend to scholarly ways and attainments. Ohio at that time was a
HE comparatively new State and community. The eager, narrowing influences of a new civilization surrounded
, June 17, him. The necessities of professional labor for the sup
Judgment affirmed with costs- People ex rel. Gusture port of a family always pressed upon him. But noth
Augusteen et al., appellants, v. Bernard Kenney et al., ing could turn him aside from the indulgence of his
respondents. — Judgment reversed, uew trial ordered, love of literature and learning.
costs to abide the event-Charles F. Strohm, an infant, With it all too he never shrank from a full share of respondent, v. N. Y., L. E. & W. R. Co., appellant. interest and work in public or political affairs. Never
- Judgment affirmed with costs--Edward Newcomb, a politician in any modern sense of the word, he was
receiver, etc., respondent, v. Charles Almy, appellant. always a patriot, holding and promoting his views
-Judgment affirmed with costs-Edward J. Woolsey, of political duty with unswerving courage and fidel
appellant, v. John R. Morris, et al., respondents. — ity.
Judgment affirmed with costs – People, respondents, When therefore by natural and fit gradations of ex
v. Robert A. Gunn et al., appellants. — Judgment of perience and eminence, he rose to a seat, in 1862, on
General Term reversed, and that of Special Term and the bench of the Supreme Court of the United States
order of dismissal by the commissioners affirmed-Peo. as the successor of Judge McLean, he was at once re
ple ex rel. James Masterson, respondent, v. Board of cognized as an accomplished jurist, a ripe scholar and
Fire Commissioners of New York, appellauts.-Judg. a patriotic citizen. He was President Lincoln's first
ments affirmed with costs- Edward S. Stokes v. Joseph appointee to that high court.
Stickney et al.(two cases).- -Order affirmed with costs From that time till January, 1881, when he
-Frank C. Bott, respondeut, v. Mary Kehoe, appellaut. voluntarily closed his judicial career by retirement,
Appeals dismissed with costs—Cassius H. Read, appelJudge Swayne illustrated all the qualities which per
lant, v. Peter A. Lozier et al., respondents (two cases). tain to judicial greatuess, both on the Supreme
Order affirmed with costs-Oscar C. Ferris v. EdBench and on Circuit, patience in hearing argument,
ward C. Coggeshall et al.- -Orders affirmed with costs which, as has been well said, was proof against dull
Attorney-General v. Continental L. Ins. Co.; Same v. ness," patience of equal degree in the examination of
North America L. Ins. Co.--Judgment affirmed with all questions submitted to his judgment, affluent
costs-- Lyman H. Granger, appellant, v. Henry H. learning and ripe wisdom in his decisions, firmness in
Craig et al., respondents. — Appeal dismissed with the administration of the law, absolute and unques
costs-James C. Jewitt et al., appellants, v. William C. tioned impartiality, and an integrity of mind and
Piekergill, respondent.- -Appeal retiring trustees discharacter which was beyond suspicion. Twenty years
missed; judgment as regards other parties affirmed of such ample, high, rounded usefulness rarely fall to
without costs to either party in this court-In re Hezethe lot of any man.
kiah Allen, trustee, etc.—Judgment affirmed with His most marked quality on the bench, I should say,
costs-Patrick Riley, appellant, v. Mayor, etc., of Nero was after all his adherence to certain notions, alas!
York, respondents.-Judgment affirmed with costs old fashioned, of honesty and uprightness. Whoever
Benjamin M. Shutrell, appellant, v. Mayor, etc., of Nero reads his opinions, thickly scattered through the re
York, repondents. ports from 1st Black to 103d United States, will find him always standing true to the doctrine of the judicial enforcement of contracts, as well as to the enforcement of all the great constitutional securities of life, liberty, and property.
NOTES. But Judge Swayne's personal character and private virtues were not less conspicuous than his public as- Mr. H. B. Bult, of 706 Broadway, New York, has pects. He had enjoyed the widest acquaintance with published an excellent etching of Daniel Webster after eminent men in all walks of life. He was fond of anec. a portrait by Ames. It is eighteen by fourteen inches dote and reminiscence and was a most delightful in size, and on the whole seems to us the best extant raconteur. The basis of his social charm was a rare likeness of the great man, and the price, $2.50, puts it serenity of temper and sunny kindness of heart. within reach of most lawyers. We wish Mr. Bult
To bis last days, his love of literature solaced and would issue a similar portrait of Choate.
The Albany Law
we should go back to the old rule in criminal Journal.
causes, and keep the jury under constant surveillance from first to last. The advantages of such a change
of practice are obvious. A great part of the disALBANY, JUNE 28, 1884.
comfort of jury service is removed, and men whose
business or family cares press so heavily on them CURRENT TOPICS.
when they are not sure of an hour in the twenty
four at home, would find it quite possible to serve HREE of the seven articles in the North Ameri
with equal mind if the public would leave to them
the usual rest from labor. But the main argument can Review for July are on well-worn but im
for the change is that in this way a result is reached portant legal topics, and the writers present but
not by the pressure of any physical discomfort, nor little new or striking. Judge Robert C. Pitman by anxieties for others, but as the result of calm dediscusses the topic of juries and jurymen. He ad
liberation. And if a night could be spent away vocates the retention of the jury system, declaring
from the heated disputation of the jury-room, it that most of the objectors are disappointed litigants, journalists, doctrinaires, and men of large juror would, as the result, perhaps, of what Dr.
would not infrequently happen that a dissentient . material of the jury, and he would dispense with Carpenter calls ‘unconscious cerebration,' see things unanimity in civil cases. The one new thing that
in a clearer light on the morrow.” We are by no he suggests is the better treatment of the jury. On
means certain that this is not a good suggestion. this point he says: “I cannot but feel that the more
Why should we treat our jurymen as if they were
criminals or at least suspicious characters from the they are treated as gentlemen, the better will they
moment of submission ? respond to the call upon them to act as such. I particularly object to the uncomfortable and unsanitary arrangements of most of our jury-rooms. This constitutes to many persons of delicate health
Justice Noah Davis discusses the subject of maror refined tastes the most serious objection to jury riage and divorce. He bewails the conflicting laws service; while to those in good health, and who are
of this country and recommends a constitutional
What is new in less fastidious, it is still an annoying discomfort, provision for a uniform system. which disturbs the considerate and calm judgment this paper is confined to the following suggestions so important in reaching impartial and accurate
for amendment of the law of procedure: “First. So verdicts. In this suggestion of better accommoda
that no judgment could be entered until it appeared tions for jurors, I am sure that I shall carry the as
clearly that the suit had been actually pending at sent of all reasonable men. I cannot expect the
least six months after service of the process. This same concurrence in my next suggestion, which is
not only to prevent frauds, but to give the parties a that in civil causes the presiding judge shall be per- breathing 'spell for possible reconciliation, and to mitted, in his discretion, to allow a jury to separate Second. In all cases the defendant should have the
prevent immediate and shameful remarriages. at night during their deliberations, and resume the right to insist that the alleged paramour be brought case the next morning. The practice of the law be
in and made a party to the action, so that an unjust gets conservative tendencies, and I fear the weight accusation could be met and confuted by both of of opinion or the bar and bench may be against the accused who are interested in maintaining innothis innovation. I feel satisfied however that the
Third, and above all, inasmuch as society is change would be productive only of good results ; deeply interested in all such actions, the State and it is surely in the same direction as changes shoulă be made a party so that it shall be able to already made. The only objection that
prevent the wrongs that are inflicted upon the pubcan be made against this indulgence to the jury in
children and innocent persons; and civil causes while considering their verdict is the
no judgment should be allowed until it appears that supposed danger of approach in some way by interested parties. This danger can be but slight. To served with process and has had opportunity to ap
some lawful representative of the State has been the credit of human nature, as well as to the credit
pear and resist the divorce. This mode of conservof human sagacity, attempts to influence jurors are
ing the rights of society ought to be carefully seof the rarest occurrence. To be successful there cured, and over the question of the cost of securing must be concurrent depravity in two persons; and
such protection the courts should have adequate while failure is ignominious and dangerous, success power. Now it often occurs that by such actions is hardly so. The summary power of courts to helpless children are bastardized or made homeless punish, as for a contempt, the slightest interference and thrown upon the public for support by the dewith a jury induces a wholesome fear of such ac- struction of family relations, with no one to speak tion. Besides, if it is contemplated, there are ample a word in their behalf or for the public.” We beopportunities for it during the progress of the trial lieve the first two recommendations are valuable. when juries are always allowed to go home at the The practice of the second is now followed in Engadjournment, instead of postponing the attempt land. Of the materiality of the third we have some until it may chance to be too late. To be consistent, I doubt, but it is perhaps not objectionable.
Vol. 29 - No. 26.
Mr. Charles T. Congdon writes on “Private Ver- of our State is now insured the continued service of geance,” very soundly and sensibly, deprecating these two experienced and admirable magistrates. what is a disgrace to our laws, namely, the uniform Any other result would have been strongly deprecavindication of a man for killing another who has ted by the bar and the people. committed no legal crime, for the gratification of private revenge. He incidentally touches upon
Attention is called to the learned and conclusive lynch law and riots. Mr. Congdon does not say opinion of Justice Learned, in the McDonald conany thing new, but he puts the subject in a striking tempt case, given in full in other columns. The way, which may be illustrated by the following ex
decision of Justice Westbrook, constrained by pretract: The looseness, the uncertainty, the reck
cedent rather than approved by his judgment, is lessness, the possible misapprehension of this form
now reversed. An appeal has been taken to the of vengeance, apart from higher considerations, is
Court of Appeals, and the case is likely to become its condemnation. To this we must add its radical
a leading one. inequity. The assassin proceeds, it must be admitted, upon a perfectly just idea. There is no
The American Law Review says: “ The opposition possession of such value to a man as his life, and
to Field's Code takes a form so senseless that it there is good reason why we should pray to be de
resembles a species of insanity. It is said that some livered from sudden death. Capital punishment, members were so idiotic as to oppose the bill merely which we often regard as necessary for the sake of on account of its name that of a code — at the example, may or may not be best defended logic
same time voting in favor of Throop's bill because it ally from that point of view; but it rests upon was called a statute." something higher - upon the intrinsically precious character of life itself. The Mosaic code, so often quoted in defense of the gallows, was based upon
The Bankers' Magazine for April reprints from this. Those who shed man's blood must give their
our columns Mr. Lawson's article on Presumptions own as the only adequate reparation. This alone arising from the usual course of business, crediting was right. This alone could satisfy the demands of it to John D. Parsons, of St. Louis. It is a great justice. This alone could be pleasing in the sight pity that Mr. John D. Parsons, who is one of the of the All-Just. Strangely mixed up with wrath publishers of this journal, is not a St. Louis lawyer, for the loss of honor, with a feeling of having been for he would undoubtedly receive a large accession cheated at cards, with disappointment at the adverse
of business in consequence of this puff. termination of a lawsuit, with anger at the application of opprobrious epithets, at the loss of a wife,
We have studied, observed and practiced the at the ruin of a daughter, is this recognition even
en business of reporting legal decisions a good deal, by the least cultivated mind, of the value of life. and have always been interested in observing the To take it from an enemy is the only revenge worth
different methods of the reporters. A point in rehaving. In that way, and in that only, can the porting that we think is not always understood and fierce feud be adjusted. It may scem paradoxical, scientifically wrought out is the office of the "catchbut we are obliged to confess that in this feeling of
line.” This should merely indicate the subject, and the value of life, entertained by those who would should not state the decision, for if it does it renders most recklessly and rashly destroy it, we find the the head-note superfluous or is itself superfluous. highest hope of a mitigation, if not an abolition, of To illustrate this by an example from the forththe evil which we have been discussing. By a parity coming volume of Hun's Reports. Mr. Hun, the of reasoning, those who think that the unlawful reporter of the Supreme Court of this State, is one taking of life is the highest revenge which is within of the best reporters and we frequently give notes of their power, may all the more certainly be brought the cases from the advance sheets of his reports. to a sense of their own error when they find that But in his forthcoming volume we find the followsociety agrees with them in their estimate, and willing head-note: “The complaint in this action expect them upon the gallows to abide by it. With stated that the plaintiff on September 29, 1880, was every homicide unpunished life grows cheaper and
a common seaman on a steamer owned by the cheaper, so far as facility of vengeance is concerned, defendants which was then in charge of the captain and yet more and more important as murder be- and mate; that the plaintiff and another sailor were comes safer and safer. The business of our tribunals directed by the mate to pay out a hawser, which is to raise it in the estimate of mankind."
could not safely be done by one man; that while engaged in this work the mate directed the sailor
assisting the plaintiff to leave the hawser and go to Our Democratic State Convention has followed another part of the steamer; that although the the excellent example set by the Republicans, and plaintiff protested and told the mate that it was imnominated Judges Andrews and Rapallo for the possible for him to manage the hawser alone, and Court of Appeals. This exhibition on both sides is that it would endanger his life to try to do so, the gratifying and encouraging, and demonstrates that mate persisted in ordering his companion to leave the popular election of judges may be made inde him; that thereafter, in despite of the plaintiff's pendent of party considerations. The highest court exertions, his leg became entangled in the hawser and was torn off; that the accident would not have peace was designed to be included in the article. happened if the fellow-servant had not been taken the limitation would reach the term and end it by away, and that it was caused wholly by the negli- its own force. The words are sufficiently compregent and wrongful acts of the defendants' officers. hensive to cover justices of the peace. The reason Held, that as it appeared that the plaintiff's injuries of the prohibition applies to all judicial officers, and were occasioned by the negligence of a fellow- the terms used have been passed upon by the courts servant, the mate, the defendants were not liable for before the Constitution was adopted, and were held the damages sustained.” This is preceded by the to cover justices of the peace. By 2 Revised Statutes, following “catch-line:” “Negligence — the owner 275, it was provided that ‘no judge of any court can of a ship is not liable for injuries occasioned to a sit as such in any case to which he is a party, or in sailor through the negligence of the mate.” Now which he is interested, or in which he would be exit is not a very important criticism, bnt the whole cluded from being a juror, by reason of consandecision is perfectly stated in the catch-line," and guinity or affinity to either of the parties.' This the head-note simply reiterates it a little more fully. section was held to cover justices of the peace. We believe that it is enough to say these things Edwards v. Russell, 21 Wend. 63; Foot v. Morgan, 1 once, concisely, and to refer the seeker to the Hill, 654; Place v. Butternuts Woolen, etc., Mfg. Co., opinion for the details and the reasons. This criticism 28 Barb. 503. The rule at common law was otheris recommended more to other reporters whom we wise. Pierce v. Sheldon, 13 Johns. 191; Eggleston v. know of, and who are much more apt to offend Smiley, 17 id. 133." Pratt, J., dissented. herein than Mr. Hun is.
In Sturtevant v. Havens, Nebraska Supreme Court, NOTES OF CASES.
May 29, 1884, 19 N. W. Rep. 617, the father of an
infant, eight months old, in the custody of its In People v. Mann, to appear in 32 Hun, 441, it is mother's parents, the mother being dead, applied held that a justice of the peace cannot hold office for its custody. He was twenty-three years old after the age of seventy years. This affirms the and was found to be a proper person in every decision at Special Term, reported ante, 113. respect to have charge of the child, and the same The court by Barnard, P. J., observed : “By section was true of the grandparents. The application was 13 of article 6 of the Constitution of New York, it is denied, the court observing: “From a careful provided : “But no person shall hold the office of examination of the authorities at our command, we justice or judge of any court longer than and until think the prevailing rule in this country may be and including the last day of December next after briefly stated to be that in controversies similar to he shall be seventy years of age.' The question pre- this, especially where the infant is of the tender age sented is whether this provision includes the class of of the one contended for, the court will consider only justices of the peace of the State. There is no real the best interest of the child and make such order authority upon the question. The article of the for its custody as will be for its welfare, without Constitution in question seems to refer only to judges any reference to the wishes of the parties. Applying of the Court of Appeals and to justices of the this rule to this case, we are forced to the conclusion Supreme Court. At least those judges only are that the conclusions of law, as stated by the District named in it. It has been decided however that the Court, are not sustained by the findings of fact, and prohibition as to age did not apply to county judges, that the judgment of the court should have been in although not named in the article (People ex rel. favor of the plaintiffs in error. It is, no doubt, true Joyce v. Brundage, 78 N. Y. 403), and that it did that the defendant in error is greatly attached to this not apply to county judges who were in office at the child, and the facts, as found by the court, show adoption of the Constitution. People ex rel. Davis that he is in every respect a suitable person to have v. Gardner, 45 N. Y. 812; S. C., 59 Barb. 198. It its care and custody. But, when we consider his was held in Dohring v. People, that justices of the age and want of experience, we are driven to the peace were not within the proviso of the Constitu- conclusion that personally he could not care for tion limiting the tenure of the judicial office to the wants of a child so young and helpless. True, seventy years of age. 2 N. Y. Sup. Ct. (T. & C.) he has means, and has employed a suitable nurse, 458. This case was affirmed in the Court of Appeals, yet as far as we are informed, this nurse is a stranger but without touching the point under consideration. to the child, and of course does not feel that personal People v. Dohring, 59 N. Y. 374. In this case a interest in its welfare that would be felt by a near justice of the peace sat upon a criminal trial, but relative. The grand parents have had the custody being a de facto officer the judgment would be up of the child since its birth, are greatly attached to held or that ground. Nelson v. People, 23 N. it, have ample means to provide for its wants, and Y, 296. The words of the Constitution are broad have the judgment and experience so essentially enough to cover justices of the peace, but neither necessary to convince any one that it is better for the Constitution or the law under it has called for a the child to remain where it is until such time as its certificate of age from these officers, while it does age and condition will justify the father in assuming so from judges of courts of record. The prohibition its custody.” We call that an outrageous decision, is not weakened by this omission if a justice of the and we do not believe it is law. We believe such