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indecent character, shall be non-mailable matter, and This was the language of the judiciary article of the shall not be conveyed in the mails, nor delivered from Constitution when adopted. It is clean cut and comang post-office, nor by any letter-carrier, and that any prehensive, and applies to all justices who shall be person who shall knowingly deposit, care cause to be de- elected after the adoption of the judiciary article, posited, for mailing or delivery, any thing therein de- when so framed. And thus it stood in 1882, when an clared to be non-mailable matter, shall be subject to amendment was adopted and became a part of the fine or imprisonment, or both. The indictment al- Constitution, providing for the election of the twelve leged that the defendant did unlawfully and know- new justices. ingly deposit in a post-office, for mailing and delivery The amendment of 1882 does not propose to alter, or (paming the time), a certain obscene, lewd, and lasciv- change, or repeal any part of the judiciary article then ious writing, purporting to be a letter, and inclosed in in existence, but leaves it intact, and it still so rea letter-envelope, addressed to a female person at mains. another post-office (the post-offices and persons being The amendment simply added a section as sectiou 28: named), the said writing being so obscene it could not The section so added, after its adoption became a part be set forth in the indictment. Held, that the writing of the Constitution, stands the same as if it had described in the indictment was within the terms of always been a part of the Constitution. the statute, and was non-mailable matter. U. S. Cir. This section (28) provides for the election of twelve Ct., S. D. Illinois, July, 1883. United States v. Gay- additional justices at the fall election of 1883, and the lord. Opinion by Drummond, J. (17 F. R. 435.) last paragraph of the section reads as fellows- “The
justices so elected shall be invested with their offices on WARRANT-PROTECTS OFFICER THOUGH INFORMAL
the first Monday of June next after their election.” ONE KILLING OFFICER SERVING COMMITS MURDER.GA
It does not undertake to name or fix any official justice's warrant for larceny, which describes the of
term, either the beginning or the ending. It does not fense with sufficient precision to apprize the accused
undertake to define what these newly elected justices of the charge, is good, though defective in form, and
shall do between the time of their election and the will protect the officer who executes it. A regular
first Monday in June, or what they shall not do. It officer is bound to obey a warrant directed to him, it
is only by virtue of the provisions of the thirteenth it is for an offense within the jurisdiction of the justice
section that they have any terms at all. It will only (either to bind over or try the party); and a special be by virtue of section 13, that their terms will ever officer is equally protected by the law when he exe
have an end. cutes such warrant, though not bound to obey it, nor
Suppose the last quoted clause of section 28 ha sworn as a regular officer. In State v. Boyd, 17 Ga.
been omitted; can it be doubted that the official term, 194, when it was claimed that the killing of an officer
both beginning and ending, would have been regulated in the executivn of an imperfect warrant was murder,
by section 13? the court sustained the claim saying: “It would be
We are all well aware of the principle that somemonstrous to lay down a different rule. It would put
times prevails, that in the assertion of an affirmative, in jeopardy the life of every officer in the land. It
a negative is implied, and vice versa. It is only by innever could be intended that they should determine,
voking this principle that any argument can be mainat their peril, the strict legal sufficiency of every pre- tained to the effect that the newly elected justices may cept placed in their hands." See also 2 Hale, 111;
not exercise the functions of their offices before the King v. Wilkes, 2 Wil. 151; and Rex v. McCulley, 9
first Monday in June. Because the new section states Coke Rep. 117, where it was resolved by all the judges, that they “shall then be invested with their offices," met in conference upon the record of conviction in
therefore it is fairly implied that they are not so inthat case, that if there be error in awarding process, vested before. But section 13 tells us plainly that the or in the mistake of one process for another, and an
official term shall commence on the first day of Januofficer be slain in the execution thereof, the offender
ary after their election. shall not have the advantage of such error, but that
These men are therefore justices, de jure, from and the resisting the officer, as he comes in the King's
after January 1st, and from that day are prohibited name, is murder." In Rex v. Croker, 2 Chitty, 138,
from practicing as lawyers in the State courts. It the defendant was committed for embezzling bank
may be that they are suspended from exercising the notes; the warrant did not state that the act was done
functions of their offices until June following. Whether "feloniously,” and it was therefore claimed that the
the law-makers intended by this to give the newly defendant was entitled to his discharge. But the
elected justices five months' time to rid themselves of court said, a commitment need not have the precision
their private law practice, or otherwise prepare themof an indictment. The commitment states general selves to give up their entire time to the public duties, evidence, and though not formally sufficient to find
or whether to give them so much time to brush up him guilty, yet it is sufficient if the corpus delicti be their law education, and better fit themselves for tho shown to us to warrant the conviction. North Caro- bench; whether these or other considerations prelina Supreme Court, February Term, 1883. State of
vailed, is quite immaterial; suffice it to say, they did North Carolina v. Jones. Opinion by Ashe, J. (88 N. leave the Constitution in just such shape, that, although C. 671.)
the official term commenced January 1st, these newly
elected officials do not become empowered to do the CORRESPONDENCE.
business of a judge until after a probation of five
months. Unless section 13 is allowed to regulate the THE NEW SUPREME COURT JUSTICES—WHEN DOES
term, then there will be no end to their terms, and the THEIR TERM COMMENCE?
new justices will be in for life. Section 13 does either
regulate the term, or it does not. If it is effectual to Editor of the Albany Law Journal :
that end, it must have full scope, not eliminated in Article 6 of the Constitution provides (sec. 13): in any particular. If it can be allowed to tix the end Justices of the Supreme Court shall be chosen by the of the term, it has like effect to fix the beginning. It electors of the respective judicial districts.
does both, or it does nothing; and if it fails to regu. "The official terms of said justices, who shall be late the matter, then the new justices are in for elected after the adoption of this article shall be four- life. teen years from and including the first day of January It does not follow that because the term commences next after their election."
on the first day of January, that they are invested with the duties of their offices during the "interregnum" 4. No further tithes or other taxes to be paid into between January 1st and June 1st. There is no legal the church upon pain of forfeiture of estate. inconsistency in a law giving a person an official term, In attacking the title to real property of Mormons with a provision suspending the power to exercise the the government will do much to sever the only real duties of the office for a time, just that thing has been tie which has been so far efficient in making the hierardoue here. The men elected at the fall election are chy under president Taylor successful, and bas kept to-day justices of the Supreme Court, are thus now the Mormon people a unit. There are we say 100,000 rendered incompetent to practice law, or act as re- Mormons in Utah, 15,000 of these only are polygamists, feree, and on the first Monday in June next will be only about 7 per cent, are probably, if left to themauthorized to hold courts, and discharge judicial func- selves, in favor of polygamy. Then again there are a tions. Aside from all other Considerations there is a large number of so-called “ apostates " who were once manifest impropriety in these men continuing in the Mormons in good standing, and also a new sect which lawyer's arena. Everybody knows they are soon to has recently risen in the church which is decidedly opbe on the bench invested with judicial functions. It posed to polygamy. These divisions and sects of the is embarrassing to the lawyer himself, and he will feel church indicate that there are a great many Mormons restrained from giving full swing to his duty as an who would be willing to bring polygamy to an end, if advocate and practitioner. It is embarrassing to his they could be allowed a separate community of propadversary, who knowing that he is soon to confront erty. Their surprising material success has really been him on the bench, will naturally feel a degree of timid- the great factor which has kept up their belief in their ity in making fight against him. Especially will this church. They have almost no spiritual faith. Their be the case, with young and inexperienced lawyers, sermons consist of matter landatory of their material who may sometimes fear the imaginary powers of success, or attacks on Gentile social evils. The old the coming judge, and feel restrained in his presence faith in Smith and his silly prophesies, revelations and as au advocate.
inspirations has apparently died out in all except The fitness of things will at once exclude from the Heleu Near Whitney and the very ignorant. If they practice the man who already stands recorded as a ceased to be successful materially, their whole estabjudge and so soou expected to dispense justice with a lishment sold out under the hammer-there would be mind freed from all prejudices and animosities.
an end of the whole social question. Presideat Arthur D is right in his recommendations to this Congress,
" that it is profitless to attack it with any but the THE MORMON QUESTION.
stoutest weapons which constitutional legislation can Editor of the Albany Law Journal :
make." Having very recently returned from a visit to Salt
NEW YORK, Jan. 9, 1884.
J. S. Wood. Lake city, and having had opportunities while there of conversing with quite a number of the “saints,"
COURT OF APPEALS DECISIONS. permit me to add my contribution to the general discussion which is now going on on the Mormon ques
HE following decisions were handed down Tuestion. Since my return to the east I have had occasion day, January 22, 1884. to notice various "remedies" advanced for the sup- Judgment affirmed, with costs-Evan McIntyre, repression of polygamy, many of which seem very amus- spondent, v. William E. Strong, appellant; John Sege ing. I recall one advanced in the editorial columns of ilkin, by guardian, respondents, v. Otto Meyer, appelthe Post to the effect that there shall be an embargo lant.-- Order affirmed with costs--Henry Danenbaum, laid upon women coming into Utah territory. I can- et al., respondent, v. Lehman H. Mandelbaum, appelnot believe this is a serious proposition. If it were, lant. — Judgment affirmed--People, etc., appellant, v. how little the writer knows of feminine determination Thomas McKeon, respondent; People, etc., respondents, to do the thing especially forbidden! Utah would be v. George Smith, appellant; People, etc., respondents, over-run with spiusters in a month! Other plaus have v. Edward Courtney, appellant. --Motion to restore been directed to a system of penalties, political or premises, etc. Motion granted and remittitur amenotherwise, which have most of them the fatal defect ded so as to read “restitution ordered to be enforced of depending upon the jury system to determine the by the court below''-Wm. R. Seward and others, v. facts. Now a jury of Mormons, bound by the sacred Henry F. Huntington and others. -Motion for reoaths of their order, is incapable of deciding facts re- argument denied, with costs-Reese v. Reese; Hostey lating to polygamy, and a jury of Gentiles in Utah was v. City of Buffalo; In re Clover, assignee, etc., v. Ellnever known. Again, the marriages of the saiuts in worth, claimant.-- Motion to revive suit granted--Bradthe Eudowment house are recorded in secret archives, ley v. Manning and ors.--Motion to modify remititur. which cannot be produced on trial, for there are al- Remittitur recalled and so amended that it will read: ways plenty to make oath either of no marriage what- “Without prejudice to any application the defendant ever, or of no record, hence there can be no foundation may be advised to make for relief to the courts below" laid to obtain requisite judicial orders requiring pro- - Wright, receiver, v. Nostrand and others. -Motion duction of the marriage record.
to reserve cause. Motion granted and argument If the policy of “suppression' is, after careful de- stayed until the April Term, unless the case pending bate in Congress determined upon, then the only plan in the United States Supreme Court is sooner decided in my opinion, which would be effective would be: --Ellis v. Phænix National Bank. -Motion to dis
1. A resumption of the control of the territory by miss appeal. Denied with $10 costs--Smith v. Risley. the general government, as suggested by president People ex rel. Argentine v. Kenay and others. —Mo
Denied with costs Arthur in his message.
tion to put cause on calendar. Granted--People v. 2. Martial law. Trial of civil suits as well as crimi.
City Bank of Rochester.-Motion to dismiss appeal. nal by military tribunals.
Granted with costs--Greenwood, executor, v. Marcin, 3. A general probibitory act by which the real executor.-Motion to dismiss appeal. Granted, disproperty of the church, and of individual Mormons is missing the appeal from the order, without costs, and directly or indirectly attacked, e. g., permit any per
also dismissing appeal from the judgment, unless
within twenty days the appellant furnishes an amended 800 upon producing proof on trial of polygamous mar
and perfected undertaking and pays $10 costs of the riages, in the "church” to have a good title to the real
motion-Harris v. Healey and others. --Motion to property of any polygamist, or one-half the property compel filing corrected return. Denied with $10 costs of such person found guilty.
-Kilmer v. N. Y. C. & H. R. R. Co.
of dress," etc. A correspondent of our own, in worshiped. If you could see it in June, I am sure another column, also opposes the gowns. In short, it would wake up your enthusiasm. Even with its no other article of apparel since the famous “ bloody naked boughs it seems to thank me for saving its shirt” has made so much turmoil.
life. I thank God I am able to protect a spot so
dear to me. I do not believe it is all sentiment, but There is a great deal of demagoguism about the if it is, I treasure it sacredly.' This incident has opposition to gowns. We hear not a word against suggested the following lines, which are inscribed military and naval uniforms. Unquestionably many to Judge Ingalls by his friend: a one of these newspaper writers is proud to be on An elm stoud on my father's line, some holiday general's staff, and to disport himself
A mark of his ancestral bounds,
His care in youth, his pride in prime, uneasily and insecurely at general training on the
In age the glory of his grounds. back of an untamed grocery-wagon horse for the de
He watched its growth as year by year lectation of his favorite girl. Many of the lawyers
It spread new beauties in the sky, who start at gowns are Knights Templar," or sons
And oft I've seen the starting tear
of joy light up his aged eye, of something or another, and fond of big hats, and
When summer's robe of lustrous hue aprons, and scarfs, and bloodless swords, and of
Draped all its lithe and graceful limbs, intricate and wonderful drilling and parading in And southern breezes, sighing through, public. Many of the Masons, we are credibly in
Dropped music set to nature's hymns. formed, wear the most gorgeous gowns on certain
Thick foliage caught the sunbeam's rays occasions. But for the judges to wear gowns is
As I, in play or dreaming sweet,
Through frequent bours of childhood's days, “anti-democratic,” forsooth! Let us hear no more of
Pressed the green carpet at its feet. this nonsense about aping foreign fashions, and the Or, if the winds let through the beams, danger of gowns being an opening wedge to wigs;
To dance upon the sward with me,
clamorous joy I chased the gleams, and if the judges wish to put on gowns let them do
Elusive as the sparks at sea. so in peace, and let us console ourselves with reflec
Long years have fled, and I am left tions on a whole great people who once wore gowns
To guard alone the dear old place, — togata gens.
Of naught of beauty yet bereft,
Save many a loved but absent face.
Abroad the ancient elm has spread There has been a good deal of silly and sensa
Its roots and boughs with Armer stand tional talk in the newspapers recently about im
Till half its stately trunk and head peaching certain of our judges for appointing
Invade and hold a stranger's land, favorites as referees. It is now rumored that just For whom no memories of the past
Its store of sacred joys recall, as soon as the New York City Bar Association and
Nor filial loves around it cast the corps of marine insurance adjusters get done
Affection's arm to stay its fall. with their hopeless struggle against general codifica
And he hath said, 'The tree must die.' tion, they will take measures to have certain of the
Its doom the old elm seemed to know. New York city judges impeached for practices
In Autumn's gales I heard a cry
A sough of grief foreboding woe. unusual and unbecoming to the bench. It is darkly
Fear not, old tree, thou shalt not die! hinted that the first blow will be aimed at Judge
Gold is but dross 'twixt thee and me, Barrett for having uttered a stage-play — to be sure, Love unalloyed hath power to buy it did not run very long, but that was the fault of
A ransomed right to cherish thee. the public and not of the judge. And then Judge
'Tis done. Dear elm, thou'rt mine again,
Thy roots and boughs and stem are free Davis' case will be taken up. This able magistrate
To lift their crown toward sun and rain, and versatile gentleman has been uttering poetry in
And birds shall nest and sing in thee. a magazine! What are we coming to? - gowns and Through all thy summers yet to come, stage-plays and poetry on the part of our judges!
And when the last day sets for me,
Still tenderer hands shall keep the home, The poetry however is good — much better than
And gentler love stand guard o'er thee. some of his honor's judicial dicta. Inasmuch as
My words of cheer the old tree hears, the occasion of the verses is also quasi-judicial, we
With drooping boughs it strives to bless, reproduce them, with the preliminary explanation, And raindrops softly fall like tears, from the Manhattan magazine: “Judge Charles R.
Fragrant with speechless thankfuloess." Ingalls of Troy is the owner of the paternal home - Now this is as it should be, and presents the judge stead of his family at Greenwich, Washington in a much more admirable and amiable light than county, N. Y. Near one of the lines of the property when he is fining counsel for contempt, or abusing stands a noble old elm, which has grown so large the Court of Appeals' Judges, or denouncing Mr. that its trunk extends into the adjoining lot. A Hewitt. Long may he live to write poetry. person who had lately purchased that lot was about to cut down the tree, and to save it from destruction The Saturday Review, speaking of the proposal to the judge paid many time its value for a strip of limit the right of action for breach of promise of land next the homestead, and wide enough to pro- marriage to actual pecuniary loss, says: “This is tect the elm. In writing of this to a friend, be
says: in substantial agreement with the law of most * It is so beautiful a tree that it might well be European countries. It represents the French law,
except that in France an action lies where the master and servant was created. Hence there as woman has been seduced, to which there is the here, it had to be determined whether at the time obvious objection that it puts a premium upon of the injury the vehicle was being used within the immorality. In Italy there is no right of action scope of the bailment or employment, for as it is there unless the promise is in writing, and then only ex- said, if the employment of the vehicle by the driver, penses incurred can be recovered. In Austria and at the time the mischief was done, was wrongful in in Holland only the actual damage sustained is the sense that it was beyond the scope of the bailrecoverable. In Germany where, as everybody ment, then the master would not be liable. So in knows, there is a formal ceremony of betrothal, one- this case, if the driver had taken the wagon on an fifth of the dower may be reclaimed.” The Revier independent journey of his own, altogether out of bowever does not approve the proposed change. It the scope of the purposes for which it was intrusted says we “ cannot legislate exclusively for refined to him, and an injury had then occurred, the defendand well-bred people.” That is true; but we do ant would probably not have been liable. But such not see why we should award damages for sensibili- was not the fact. The trip in which the servant was ties which do not exist.
using the wagon was within the scope of the purposes for which it was intrusted to him.” See Stone
v. Hills, 45 Conn. 44; S. C., 29 Am. Rep. 635, and NOTES OF CASES.
note, p. 640; 21 Alb. Law Jour. 164. 'N Mullvehill v. Bates, Minnesota Supreme Court,
In De Lashmutt v. Sellwood, 10 Oreg. 319, it was of an express wagon employed a servant to drive it, held that any mark commonly understood, and and intrusted it to him, generally, to be used at his ordinarily employed in business transactions, to discretion, in doing such business as he, the servant, denote the division of figures, obviously representing could secure in the way of employment for the wagon.
money, into dollars and cents, is sufficient for that While thus employed, the servant having delivered purpose, in judicial records, or other official docua trunk, on his return got “ a load of poles for him
ments. Of this character are the lines and spaces self,” and while taking them home negligently in the ruled money columns of regular books of drove over and injured the plaintiff's child. Held, account, or official records similarly prepared. The that the master was liable. The court said: “Coun
court said: “The objection that it does not appear sel for appellant, in his able and ingenious argument,
from the docket entry what the figures, in the column cites in support of his position a number of cases, of headed, “amount of judgment,' stand for, presents which Mitchell v. Crassmeller, 13 C. B. 237, is a a question by no means new in this court. In the sample, in which it is held that where the driver of case of French v. Rogers, disposed of at the last term, the master's vehicle turns wholly aside from the we held, in effect, that any mark commonly undermaster's employment and engages in an independent stood, and ordinarily employed in business transacjourney, wholly foreign to his employment, and fortions to devote the division of figures, obviously a purpose exclusively his own, the master is not representing money, into dollars and cents, would liable for his acts. We have had occasion recently,
suffice for that purpose, in entries of this character. in Marrier v. St. P., M. & M. Ry. Co., to consider
Such we deemed the mark ordinarily used in setting and indorse the doctrine of these cases. But this down sums of money on paper, to denote the amount class of cases is clearly distinguishable from the represented by the two figures on the right as cents, present. There the servant had specific orders as
and that represented by the figures on the left as to the mode of dealing with the vehicle, and was
dollars; and the same effect in our judgment must obliged to attend to the specific errand on which he
be allowed to the lines and spaces in the ruled was sent, and then return to his master. If under money columns, in regular account books, or official these circumstances he employed the vehicle on
records similarly prepared. General usage and some purpose wholly independent of his orders, of
common understanding have given such marks and course he was not within the scope of his employ- lines, when so employed, a signification by which ment, and the master is not liable. But here the
not individuals only, but courts as well, are enabled wagon was intrusted, generally, to the driver, to be
to determine what, and what amount figures so used entirely at his discretion. This distinction is placed were intended to represent, with as much very clearly stated by Cockburn, C. J., in Venables
ease and almost as much certainty as though the v. Smith, 2 Q. B. Div. 679, a case very analogous to
dollar mark itself, or written words even had been It is true that in that case, but for a
used to express the same meaning. To the doctrine statute, the relation between the owner of the cab
of that case we still adhere, and deem it decisive of and the driver would have been that of a bailor and
this point in the case before us." bailee, and not of master and servant. The statute created the relation of master and servant
In Knapp v. Thomas, to appear in 39 Ohio St., it tion which in the present case confessedly existed. is held that an unconditional pardon is irrevocable But as is expressly stated in the case referred to it and unimpeachable, although obtained by fraud. was only with regard to the employment of the cab The court say, by Okey, J.: " But it is said that icithin the scope of the bailment that the relation of this full, unconditional pardon, by force of which