overcomes the free action of the mind at the time of making the will; but the pressure may have been brought to bear previously, and if it remained so as to coerce the mind of the testator at the time the will was executed, it cannot be upheld. Undoubtedly the inferences and conclusions to be drawn from the evidence, when a charge of undue influence is in a case where the will is made by a husband or wife in favor of the other, may be quite different from what it would be when applied to cases between guardian and ward, or other persons standing iu fiduciary relations to each, or between a testator and a person occupying no fiduciary or blood relation. Manifestly to establish undue influence in persons occupying the relation of husband and wife, the facts and circumstances shown must not only be consistent with the hypothesis of the will having been obtained by undue influence, but it must be shown that they are inconsistent with a contrary hypothesis. And the facts and circumstances must be such that when all the evidence is considered, the jury can see that the acts which constituted the undue influence were such as amounted to coercion or fraud. Boyse v. Rossborough, 6 H. L. Cas. 247. Shephardson v. Potter. Opinion by Champlin, J. [See 2 Am. Rep. 491; 8 d. 238; 25 id. 303; 27 Eng. Rep. 417; 32 id. 331.-ED.] [Decided March, 1884.] way in Massachusetts. He may at any time cast off the woman, and if she contests the case in court his testimony that there has been no marriage would outweigh the inferential evidence of their mode of life; or, a man cohabits with a woman in Massachusetts, and then they remove to New York to live. The same conduct, which in Massachusetts renders the actors liable to fine and imprisonment, becomes legal and repu table in New York. It needs no argument to show that such uncertainties in the family relations must be demoralizing in the extreme. Which State has the better law might be a debatable question. The higher moral standard would seem to be the New York law; but it has the inherent defect of establishing a legal fiction, making certain facts which naturally would only be prima facie evidence of a marriage, conclusive evidence. It is always a matter of regret when the birth of another member in the family of legal fictions is announced. This case is only one of many cases which rise daily under the marriage and divorce laws of the various States. No subject really demands more serious attention from the public, particularly the legislative portion of the State governments. None demands more skillful treatment, and none seems less likely, in the political and financial crises of the present day, to receive the attention it deserves. BOSTON, June 11, 1884. SIMON G. Croswell. CORRESPONDENCE. CONFLICT OF DIVORCE LAWS. Editor of the Albany Law Journal: May I ask a few lines of space to call attention to a rather peculiar point arising this week in a divorce case? My excuse for troubling you must be the impor tance of the subject. The case is the libel of Adeline J. Miller for a divorce from Amos Miller, in the Supreme Judicial Court of Massachusetts. The ground of defense was that the parties were never married. It was in evidence that they became acquainted in Boston and then removed to New York, where they lived together fifteen years. The man then left the woman and married another. There was evidence that the man had registered himself and the woman as man and wife in a hotel in New York. The decision was reserved. By the law of New York if a man is proved to have recognized a woman as his wife it is conclusive evidence of a marriage; in Massachusetts it is only prima facie, and liable to rebuttal. This state of facts and law suggests these points. An initial difficulty will meet the court in deciding this case. Questions of 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 Breadalbane case, L. R., 1 H. of L.; S. C., App. 182. But if this case is governed by the Massachusetts rule, there is no evidence of an actual marriage, and no such claim by the parties. We should then have the interesting spectacle of a couple married to each other while they stay in New York, and possibly in other States, but not in Massachusetts and a large number of States. Suppose however the marriage is held valid; the result is hardly satisfactory. A supposed case or two will show this. A. lives in New York with a woman to whom he has never been formally married. He registers at a hotel 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 NEWSPAPER LAW. Editor of the Albany Law Journal: The following extract is from the New York Times of the 11th inst., a journal that assumes to discuss legal questions in the most authoritative manner: "Mr. Charles Bradlaugh may be excused for having lost his temper upon learning from the secretary of the treasury that the commutation of the pensions of the Duke of Marlborough and William Penn had been completed, the secretary having expressed a willingness to hear Bradlaugh in opposition to the commutation. The same amiability was once shown by a police magistrate of New York to a lawyer arguing a writ of habeas corpus, who interrupted himself by calling the judge's attention to the fact that his client had left the court room. "Oh," said the learned jurist, "that's all right. I sent him back to jail before you began; but go on, sir, go on; it's very interesting.' Could any thing more ludicrous be imagined in legal practice than the argument of a writ of habeas corpus before a 66 police magistrate?" MR. JUSTICE SWAYNE. Editor of the Albany Law Journal: Will you allow one who enjoyed some degree of the friendship of a distinguished jurist, the late Mr. Justice Swayne, to speak a word of heartfelt eulogy? The life and judicial career of Judge Swayne present many points of interest and value for all who honor our profession and admire high motives and unspotted character in our public men. He was, for one thing, a noble example of the power of industry and strict devotion to the duties of his profession. Starting in life in business pursuits, he turned to the study of the law, and without academical training he not only mastered 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 by many circumstances which did not tend to scholarly ways and attainments. Ohio at that time was a comparatively new State and community. The eager, narrowing influences of a new civilization surrounded him. The necessities of professional labor for the support of a family always pressed upon him. But nothing could turn him aside from the indulgence of his love of literature and learning. With it all too he never shrank from a full share of interest and work in public or political affairs. Never a politician in any modern sense of the word, he was always a patriot, holding and promoting his views of political duty with unswerving courage and fidelity. When therefore by natural and fit gradations of experience and eminence, he rose to a seat, in 1862, on the bench of the Supreme Court of the United States as the successor of Judge McLean, he was at once recognized as an accomplished jurist, a ripe scholar and a patriotic citizen. He was President Lincoln's first appointee to that high court. From that time til January, 1881, when he voluntarily closed his judicial career by retirement, Judge Swayne illustrated all the qualities which pertain to judicial greatuess, both on the Supreme Bench and on Circuit, patience in hearing argument, which, as has been well said, was "proof against dullness," patience of equal degree in the examination of all questions submitted to his judgment, affluent learning and ripe wisdom in his decisions, firmness in the administration of the law, absolute and unquestioned impartiality, and an integrity of mind and character which was beyond suspicion. Twenty years of such ample, high, rounded usefulness rarely fall to the lot of any man. His most marked quality on the bench, I should say, was after all his adherence to certain notions, alas! old fashioned, of honesty and uprightness. Whoever reads his opinions, thickly scattered through the reports 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. But Judge Swayne's personal character and private virtues were not less conspicuous than his public aspects. He had enjoyed the widest acquaintance with eminent men in all walks of life. He was fond of anecdote and reminiscence and was a most delightful raconteur. The basis of his social charm was a rare serenity of temper and sunny kindness of heart. To his last days, his love of literature solaced and enriched his life. His fine attainments in the classics, in scientific and literary studies, were a high incentive to those who had the privilege of seeing what a pleasure and unfailing resource they were to him. The blessings he had conferred on others returned to cheer and enrich his own declining days, and he had, in largest measure, "That which should accompany old age, As honor, love, obedience, troops of friends." Surrounded by his family, his friends, his books, with all his faculties clear, suddenly, and with "no slow gradations of decay," he met his earthly end, and came "as near as human frailty permits to fill the measure of a hopeful euthanasy.' In pace, In pace. D. H. CHAMBERLAIN. Judgment affirmed with costs-People ex rel. Gustave Augusteen et al., appellants, v. Bernard Kenney et al.. respondents.- -Judgment reversed,new trial ordered, costs to abide the event-Charles F. Strohm, an infant, respondent, v. N. Y., L. E. & W. R. Co., appellant. -Judgment affirmed with costs--Edward Newcomb, receiver, etc., respondent, v. Charles Almy, appellant. -Judgment affirmed with costs-Edward J. Woolsey, appellant, v. John R. Morris, et al., respondents.Judgment affirmed with costs - People, respondents, v. Robert A. Gunn et al., appellants. Judgment of General Term reversed, and that of Special Term and order of dismissal by the commissiouers affirmed-People ex rel. James Masterson, respondent, v. Board of Fire Commissioners of New York, appellants.—Judgments affirmed with costs-Edward S. Stokes v. Joseph Stickney et al.(two cases).-Order affirmed with costs -Frank C. Bott, respondent, v. Mary Kehoe, appellaut. Appeals dismissed with costs-Cassius H. Read, appellant, v. Peter A. Lozier et al., respondents (two cases). -Order affirmed with costs-Oscar C. Ferris v. Edward C. Coggeshall et al.- -Orders affirmed with costs Attorney-General v. Continental L. Ins. Co.; Same v. North America L. Ins. Co.--Judgment affirmed with costs-Lyman H. Granger, appellant, v. Henry H. Craig et al., respondents. Appeal dismissed with costs-James C. Jewitt et al., appellants, v. William C. Piekergill, respondent.- -Appeal retiring trustees dismissed; judgment as regards other parties affirmed without costs to either party in this court-In re Hezekiah Allen, trustee, etc. -Judgment affirmed with costs-Patrick Riley, appellant, v. Mayor, etc., of New York, respondents.-Judgment affirmed with costs Benjamin M. Shutrell, appellant, v. Mayor, etc., of New York, repondents. NOTES. Mr. H. B. Bult, of 706 Broad way, New York, has published an excellent etching of Daniel Webster after a portrait by Ames. It is eighteen by fourteen inches in size, and on the whole seems to us the best extant likeness of the great man, and the price, $2.50, puts it within reach of most lawyers. We wish Mr. Bult would issue a similar portrait of Choate. The Albany Law Journal. ALBANY, JUNE 28, 1884. CURRENT TOPICS. HREE of the seven articles in the North Ameri THR can Review for July are on well-worn but important legal topics, and the writers present but little new or striking. Judge Robert C. Pitman discusses the topic of juries and jurymen. He advocates the retention of the jury system, declaring that most of the objectors are disappointed litigants, journalists, doctrinaires, and men of large business interests. He would however reform the material of the jury, and he would dispense with unanimity in civil cases. The one new thing that he suggests is the better treatment of the jury. On this point he says. "I cannot but feel that the more they are treated as gentlemen, the better will they 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 or refined tastes the most serious objection to jury service; while to those in good health, and who are less fastidious, it is still an annoying discomfort, which disturbs the considerate and calm judgment so important in reaching impartial and accurate verdicts. In this suggestion of better accommodations for jurors, I am sure that I shall carry the assent of all reasonable men. I cannot expect the same concurrence in my next suggestion, which is that in civil causes the presiding judge shall be permitted, in his discretion, to allow a jury to separate at night during their deliberations, and resume the case the next morning. The practice of the law begets conservative tendencies, and I fear the weight of opinion or the bar and bench may be against this innovation. I feel satisfied however that the * * * change would be productive only of good results; and it is surely in the same direction as changes already made. The only objection that can be made against this indulgence to the jury in civil causes while considering their verdict is the supposed danger of approach in some way by interested parties. This danger can be but slight. To the credit of human nature, as well as to the credit of human sagacity, attempts to influence jurors are of the rarest occurrence. To be successful there must be concurrent depravity in two persons; and while failure is ignominious and dangerous, success is hardly so. The summary power of courts to punish, as for a contempt, the slightest interference with a jury induces a wholesome fear of such action. Besides, if it is contemplated, there are ample opportunities for it during the progress of the trial when juries are always allowed to go home at the adjournment, instead of postponing the attempt until it may chance to be too late. To be consistent, VOL. 29-No. 26. we should go back to the old rule in criminal 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 discomfort of jury service is removed, and men whose business or family cares press so heavily on them when they are not sure of an hour in the twentyfour at home, would find it quite possible to serve with equal mind if the public would leave to them the usual rest from labor. But the main argument for the change is that in this way a result is reached not by the pressure of any physical discomfort, nor by anxieties for others, but as the result of calm deliberation. And if a night could be spent away from the heated disputation of the jury-room, it would not infrequently happen that a dissentient juror would, as the result, perhaps, of what Dr. Carpenter calls 'unconscious cerebration,' see things in a clearer light on the morrow." We are by no means certain that this is not a good suggestion. Why should we treat our jurymen as if they were criminals or at least suspicious characters from the moment of submission? Justice Noah Davis discusses the subject of marriage and divorce.. He bewails the conflicting laws of this country and recommends a constitutional provision for a uniform system. What is new in this paper is confined to the following suggestions for amendment of the law of procedure: "First. So that no judgment could be entered until it appeared clearly that the suit had been actually pending at least six months after service of the process. This not only to prevent frauds, but to give the parties a prevent immediate and shameful remarriages. breathing 'spell for possible reconciliation, and to Second. In all cases the defendant should have the right to insist that the alleged paramour be brought in and made a party to the action, so that an unjust accusation could be met and confuted by both of the accused who are interested in maintaining innocence. Third, and above all, inasmuch as society is deeply interested in all such actions, the State should be made a party so that it shall be able to prevent the wrongs that are inflicted upon the public, and upon children and innocent persons; and no judgment should be allowed until it appears that some lawful representative of the State has been served with process and has had opportunity to appear and resist the divorce. This mode of conserving the rights of society ought to be carefully secured, and over the question of the cost of securing such protection the courts should have adequate power. Now it often occurs that by such actions helpless children are bastardized or made homeless and thrown upon the public for support by the destruction of family relations, with no one to speak a word in their behalf or for the public." We believe the first two recommendations are valuable. The practice of the second is now followed in England. Of the materiality of the third we have some doubt, but it is perhaps not objectionable. of our State is now insured the continued service of these two experienced and admirable magistrates. Any other result would have been strongly deprecated by the bar and the people. Attention is called to the learned and conclusive The opinion of Justice Learned, in the McDonald contempt case, given in full in other columns. decision of Justice Westbrook, constrained by precedent rather than approved by his judgment, is now reversed. An appeal has been taken to the Court of Appeals, and the case is likely to become a leading one. The American Law Review says: "The opposition to Field's Code takes a form so senseless that it resembles a species of insanity. It is said that some members were so idiotic as to oppose the bill merely on account of its name that of a code at the same time voting in favor of Throop's bill because it was called a statute." The Bankers' Magazine for April reprints from our columns Mr. Lawson's article on Presumptions arising from the usual course of business, crediting it to John D. Parsons, of St. Louis. It is a great pity that Mr. John D. Parsons, who is one of the publishers of this journal, is not a St. Louis lawyer, for he would undoubtedly receive a large accession of business in consequence of this puff. Mr. Charles T. Congdon writes on "Private Vengeance," very soundly and sensibly, deprecating what is a disgrace to our laws, namely, the uniform vindication of a man for killing another who has committed no legal crime, for the gratification of private revenge. He incidentally touches upon lynch law and riots. Mr. Congdon does not say any thing new, but he puts the subject in a striking way, which may be illustrated by the following extract: "The looseness, the uncertainty, the recklessness, the possible misapprehension of this form of vengeance, apart from higher considerations, is its condemnation. To this we must add its radical inequity. The assassin proceeds, it must be admitted, upon a perfectly just idea. There is no possession of such value to a man as his life, and there is good reason why we should pray to be delivered from sudden death. Capital punishment, which we often regard as necessary for the sake of example, may or may not be best defended logically from that point of view; but it rests upon something higher-upon the intrinsically precious character of life itself. The Mosaic code, so often quoted in defense of the gallows, was based upon this. Those who shed man's blood must give their own as the only adequate reparation. This alone was right. This alone could satisfy the demands of justice. This alone could be pleasing in the sight of the All-Just. Strangely mixed up with wrath for the loss of honor, with a feeling of having been cheated at cards, with disappointment at the adverse termination of a lawsuit, with anger at the application of opprobrious epithets, at the loss of a wife, at the ruin of a daughter, is this recognition even by the least cultivated mind, of the value of life. To take it from an enemy is the only revenge worth having. In that way, and in that only, can the fierce feud be adjusted. It may seem paradoxical, but we are obliged to confess that in this feeling of the value of life, entertained by those who would most recklessly and rashly destroy it, we find the highest hope of a mitigation, if not an abolition, of the evil which we have been discussing. By a parity of reasoning, those who think that the unlawful taking of life is the highest revenge which is within their power, may all the more certainly be brought to a sense of their own error when they find that society 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 every homicide unpunished life grows cheaper and cheaper, so far as facility of vengeance is concerned, and yet more and more important as murder becomes safer and safer. The business of our tribunals is to raise it in the estimate of mankind." Our Democratic State Convention has followed the excellent example set by the Republicans, and nominated Judges Andrews and Rapallo for the Court of Appeals. This exhibition on both sides is gratifying and encouraging, and demonstrates that the popular election of judges may be made independent of party considerations. The highest court We have studied, observed and practiced the business of reporting legal decisions a good deal, and have always been interested in observing the different methods of the reporters. A point in reporting that we think is not always understood and scientifically wrought out is the office of the "catchline." This should merely indicate the subject, and should not state the decision, for if it does it renders the head-note superfluous or is itself superfluous. To illustrate this by an example from the forthcoming volume of Hun's Reports. Mr. Hun, the reporter of the Supreme Court of this State, is one of the best reporters and we frequently give notes of the cases from the advance sheets of his reports. But in his forthcoming volume we find the follow on stated that the plaintiff on September 29, 1880, was a common seaman a steamer owned by the defendants which was then in charge of the captain and mate; that the plaintiff and another sailor were directed by the mate to pay out a hawser, which 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 another part of the steamer; that although the plaintiff protested and told the mate that it was impossible for him to manage the hawser alone, and that it would endanger his life to try to do so, the mate persisted in ordering his companion to leave him; that thereafter, in despite of the plaintiff's exertions, his leg became entangled in the hawser and was torn off; that the accident would not have happened if the fellow-servant had not been taken away, and that it was caused wholly by the negligent and wrongful acts of the defendants' officers. Held, that as it appeared that the plaintiff's injuries were occasioned by the negligence of a fellowservant, the mate, the defendants were not liable for the damages sustained." This is preceded by the following "catch-line: ""Negligence - the owner of a ship is not liable for injuries occasioned to a sailor through the negligence of the mate." Now it is not a very important criticism, bnt the whole decision is perfectly stated in the "catch-line," and the head-note simply reiterates it a little more fully. We believe that it is enough to say these things once, concisely, and to refer the seeker to the opinion for the details and the reasons. This criticism is recommended more to other reporters whom we know of, and who are much more apt to offend herein than Mr. Hun is. NOTES OF CASES. In People v. Mann, to appear in 32 Hun, 441, it is held that a justice of the peace cannot hold office after the age of seventy years. This affirms the decision at Special Term, reported ante, 113. The court by Barnard, P. J., observed: "By section 13 of article 6 of the Constitution of New York, it is provided: 'But no person shall hold the office of justice or judge of any court longer than and until and including the last day of December next after he shall be seventy years of age.' The question presented is whether this provision includes the class of justices of the peace of the State. There is no real authority upon the question. The article of the Constitution in question seems to refer only to judges of the Court of Appeals and to justices of the Supreme Court. At least those judges only are named in it. It has been decided however that the prohibition as to age did not apply to county judges, although not named in the article (People ex rel. Joyce v. Brundage, 78 N. Y. 403), and that it did not apply to county judges who were in office at the adoption of the Constitution. People ex rel. Davis v. Gardner, 45 N. Y. 812; S. C., 59 Barb. 198. It was held in Dohring v. People, that justices of the peace were not within the proviso of the Constitution limiting the tenure of the judicial office to seventy years of age. 2 N. Y. Sup. Ct. (T. & C.) 458. This case was affirmed in the Court of Appeals, but without touching the point under consideration. People v. Dohring, 59 N. Y. 374. In this case a justice of the peace sat upon a criminal trial, but being a de facto officer the judgment would be upheld on that ground. Nelson v. People, 23 N. Y. 296. The words of the Constitution are broad enough to cover justices of the peace, but neither the Constitution or the law under it has called for a certificate of age from these officers, while it does so from judges of courts of record. The prohibition is not weakened by this omission if a justice of the The reason peace was designed to be included in the article. The limitation would reach the term and end it by its own force. The words are sufficiently comprehensive to cover justices of the peace. of the prohibition applies to all judicial officers, and the terms used have been passed upon by the courts before the Constitution was adopted, and were held to cover justices of the peace. By 2 Revised Statutes, 275, it was provided that no judge of any court can sit as such in any case to which he is a party, or in which he is interested, or in which he would be excluded from being a juror, by reason of consanguinity or affinity to either of the parties.' This section was held to cover justices of the peace. Edwards v. Russell, 21 Wend. 63; Foot v. Morgan, 1 Hill, 654; Place v. Butternuts Woolen, etc., Mfg. Co., 28 Barb. 503. The rule at common law was otherwise. Pierce v. Sheldon, 13 Johns. 191; Eggleston v. Smiley, 17 id. 133." Pratt, J., dissented. In Sturtevant v. Havens, Nebraska Supreme Court, May 29, 1884, 19 N. W. Rep. 617, the father of an infant, eight months old, in the custody of its mother's parents, the mother being dead, applied for its custody. He was twenty-three years old and was found to be a proper person in every respect to have charge of the child, and the same was true of the grandparents. The application was denied, the court observing: "From a careful examination of the authorities at our command, we think the prevailing rule in this country may be briefly stated to be that in controversies similar to this, especially where the infant is of the tender age of the one contended for, the court will consider only the best interest of the child and make such order for its custody as will be for its welfare, without any reference to the wishes of the parties. Applying this rule to this case, we are forced to the conclusion that the conclusions of law, as stated by the District Court, are not sustained by the findings of fact, and that the judgment of the court should have been in favor of the plaintiffs in error. It is, no doubt, true that the defendant in error is greatly attached to this child, and the facts, as found by the court, show that he is in every respect a suitable person to have its care and custody. But, when we consider his age and want of experience, we are driven to the conclusion that personally he could not care for the wants of a child so young and helpless. True, he has means, and has employed a suitable nurse, yet as far as we are informed, this nurse is a stranger to the child, and of course does not feel that personal interest in its welfare that would be felt by a near relative. The grandparents have had the custody of the child since its birth, are greatly attached to it, have ample means to provide for its wants, and have the judgment and experience so essentially necessary to convince any one that it is better for the child to remain where it is until such time as its age and condition will justify the father in assuming its custody." We call that an outrageous decision, and we do not believe it is law. We believe such |