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THE ALBANY LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

The Albany Law Journal.

ALBANY, JULY 2, 1887.

CURRENT TOPICS.

VACATION is upon us, or will be as soon as Mr.

Sharp's trial is finished. The time of currants approaches but not for current topics. The Legislature has adjourned, and is not making any foolish laws. The governor is behaving himself pretty well. All things tend to mollify us and cause us to relax that attention on which the welfare of this city and country so greatly depend. Our mayor has vetoed that dog-tax ordinance, and we shall no longer need to keep a sleepless eye upon him. (By the way, the Georgia Supreme Court have recently decided that no action lies for negligently killing a dog.) Now we advise all our brethren to "take it easy" for two months. They will live longer and be happier for so doing. Fish, hunt, loaf, såil, travel, attend base-ball games, in short, do any thing rather than business. It is related that a very distinguished lawyer of the city of New York, having heard that another had made one hundred thousand dollars in the year, stayed at home and worked all summer in order to equal or exceed that amount. He did not need it, and the other man is since dead from overwork. If we had made eighty thousand dollars no consideration would induce us to stay at home and work through the hot weather. To swing in a hammock under a tree and read a novel is the height of mid-summer happiness. We admit that we read novels. We do it because the greatest men have read them, and we want to resemble them in one point at least, and so adopt the easiest. Chief Justice Marshall and Lord Campbell read novels. Francis Jeffrey acknowledged that he cried over Little Nell. Thackeray says: "Novels are sweets. All people with healthy literary appetites love them - almost all women a vast number of clever, hard-headed men. Judges, bishops, chancellors, mathematicians, are notorious novel-readers; as well as young boys and sweet girls, and their kind, tender mothers. Who has not read about Eldon, and how VOL. 36-No. 1.

he cried over novels every night when he was not at whist?" Napoleon, the greatest man of modern times, was a greedy novel-reader. Mr. Lang says: "He himself was one of the most voracious readers of novels that ever lived. He was always asking for the newest of the new, and unfortunately even the new romances of his period were hopelessly bad. Barbier, his librarian, had orders to send parcels of fresh fiction to his majesty wherever he might happen to be, and great loads of novels followed Napoleon to Germany, Spain, Italy, Russia. The conqueror was very hard to please. He read in his travelling carriage, and after skimming a few pages would throw a volume that bored him out of the window into the highway. He might have been tracked by his trail of romances, as was Hcp-o'-MyThumb in the fairy tale, by the white stones he dropped behind him. Poor Barbier, who ministered to a passion for novels that demanded twenty volumes a day, was at his wit's end. He tried to foist on the emperor the romances of the year before last; but these Napoleon had generally read, and he refused, with imperial scorn, to look at them again." Poor man! he had not Dickens, and Thackeray, and Bulwer, and Eliot, and Cooper, and Poe, and Hawthorne, and innumerable lesser lights, to minister unto him. How he would have relished Victor Hugo's account of Waterloo in Les Miserables, and what short work he would have made of Howell and James! Then there are other things only a little less interesting than novels, such as history, speeches and biography. The most blessed hour of the day to us is when we go to bed, reach out to a book case hard by, and take up at random a volume of Burke, Erskine, Webster or Campbell's lives it makes no difference which - and open it it makes no difference where- and think no more of this present troublous world for the good book and the sound sleep that follows. A great many lawyers play cards some, we fear, for money. The Supreme Court justices disport themselves sedately at whist at Block Island. For him who cannot have three Supreme Court justices to play with, solitaire is a good substitute. There are eighty different games of solitaire. One is named after Napoleon, who played it at St. Helena. Solitaire has one advantage over whist you are never

-

tempted to swear at your partner. We approve also of fishing—in the pages of Walton's Angler. Think of the god-like Daniel pulling up a fine fish to the exclamation of "Venerable men!" Or of Cleveland pulling up any number without saying a word. We know of lawyers who amuse themselves on stock farms, but these are affluent gentlemen. Still it must be a pleasure to look into the honest eyes and smell the sweet breath of oxen and cows-beings quite as intelligent and much sweeter of savor, we dare say, than twelve jurors culled out of twentyone hundred on account of their superior stupidity. The average horse too is much more desirable for society than the man who buys pools. The greatest pleasure and profit of vacation we have modestly reserved for last mention. Our readers can have their ALBANY LAW JOURNAL forwarded to them, and we know two great judges who read it as soon as it comes, before everything else. We only wish we could make it as interesting as a novel. We try hard, at all events.

We learn that the marriage-license bill still lies in the governor's hands, and that the clergy are besetting him to approve it. We hope he will not feel inclined to gratify them in this particular as a compensation for disappointing them in regard to the Crosby high-license bill, and thus be wrong in both.

- let us say

Of course the clergy want ceremonial marriages. Such a system increases their importance and influence, and brings them fees, but we do them the justice to believe that the latter inducement is not the main one. Why should we be compelled to pay tribute to a clergyman or a magistrate for his unnecessary sanction to a civil contract? Why should Governor Hill be compelled to do so? Let him bring the matter home to himself. Suppose he should determine, like the chief magistrate of the nation, to marry, as a popular measureas a measure of political necessity-how absurd it would be to enact that he must send Colonel Rice down to the city hall for a license, necessitating the disclosure of his excellency's age and other details of no interest to anybody but his excellency! Seriously, we approve the scheme of providing for the public record of marriages, under penalty if necessary. We are rather inclined to think that minors should not marry without consent of parents or guardians - they are too young to marry at all events. But to declare that a common-law marriage shall be void is going too far, and will lead to mischief. It would undoubtedly be evaded in many instances by skipping over the border into states less punctilious, and then we should expect to see our clergy having "calls" to those states. After all, what is the need of this bill? Is there any thing the matter with our marriage and divorce laws? Not at all; we have an excellent system in spite of Prof. Bennetteasy marriage, hard divorce—just as it ought to be. Most people will in the future, as in the past, seek the sanction of religion on their marriages, and will willingly pay clergymen's fees. Just so it is natural and usual to put many pious

words at the beginning of a will, but they are not essential. The sanction of priest or magistrate to a marriage contract is no more necessary than to a testament. These are mere matters of will or agreement. The contracting of a wife is no more solemn or important, and no more concerns the public, for example, than the disinherison of a child. If our present laws were enforced we should have a sufficient registry of marriages, but they are to a considerable extent a dead-letter. The governor thinks our present excise laws are sufficient if enforced; let him apply the same reasoning here, and let well enough alone. So far we had written when we learned that the governor had let the bill die. But we will let it stand for future occasions,

Mr. Proctor in another column gives an interesting comparative view of Judges Church and Grover. The latter was one of the ablest and most peculiar of our judges. His demeanor on the bench presented a glaring and by no means pleasant contrast to that of the chief judge. The latter was the personification of patience, attention and courtesy. The former was impatient and was always too much disposed to rule the court, and to assume that he

knew more of the case in hand than either of the counsel. Sometimes he did, apparently. He had a dreadful habit of sitting up at night and reading the records for the next day's argument, and then "circus." there was frequently a "I guess you'd "- he called better skip down to the seventh point,' it "pint;"-"I don't think there's much in that point;" "you'll find the testimony on page 469;" and the like, were frequent expressions from his lips, and all the time he was looking around satırically or impatiently, as much as to say, "Good Lord; what fools these lawyers be!" A stranger would have thought that he was the chief judge, in which impression "Mart" would cordially have agreed with him. It is rumored that the mild chief occasionally rebelled and remonstrated, but it did not seem to do much good. Sometimes he was evidently as much amused as the rest of the court and the bar were. We once heard "Mart" say to a counsellor who had cited a long list of cases to one point, "the court can't look at all these cases, you know. You'd better point out three or four that you set the most store by and well try to look at 'em." Occasionally counsel would give him as good as he sent. We once heard an instance of this. Counsel in replying to a point made on the argument and not printed in the brief, said: "I say, as his honor, Judge Grover, frequently observes, I don't think there's much in that pint.'" Grover was visibly annoyed, and the rest of the judges could hardly conceal their merriment. But the joke was on the facetious counsel when the court beat him on that very "pint." We cannot agree with Mr. Proctor that the opinions of the chief are among the "most learned." Substitute "weighty and sensible" and we are with him.

Ν

NOTES OF CASES.

IN People v. West, 44 Hun, 163, it was held that a

statute providing that "no person or persons shall sell, supply or bring to be manufactured to any butter or cheese manufactory, any milk diluted with water, or any unclean, impure, unhealthy, adulterated or unwholesome milk," is constitutional and valid. The court said: "The defendant's counsel contends that the statutes violate the constitutional provision that no person shall be deprived of his property or liberty without due process of law, and are therefore void. One object of the statutes referred to is to protect the public health. Although that purpose is not specified in the title of the earlier act, it appears very clearly from many of its provisions, and it is specified in the title to the act of 1885, which is declared to be in aid of the former act, and which re-enacts most of its provisions, in hæc verba, including the section under which the indictment is framed. To that end, the Legislature has power to prevent, by reasonable enactments, the sale, or the putting on the market of articles of food which are deleterious to public health, by reason of impurity, adulteration, or any unwholesome quality or condition. It is for the Legislature, and not for the courts, to decide whether the impure or adulterated article, the sale of which is prohibited, is or is not injurious to the public health. People v. Cipperly, 37 Hun, 319; dissenting opinion of Learned, P. J. (p. 327), adopted by the Court of Appeals, 101 N. Y. 634; Powell v. Commonwealth, Sup. Ct. of Penn., 26 Am. L. Reg. 83 and note. The dilution of milk with water is an adulteration. One of the definitions of the term 'adulterate,' given by Worcester, is to corrupt by some foreign mixture, or by intermixing what is less valuable.' And section 13 of the act of 1884 clearly implies that the law-makers regarded milk diluted with water as adulterated Likewise, section 16 of the act of 1885. Another object intended to be accomplished by the statutes referred to, as is indicated by the title of each of them, is 'to prevent deception in sales of dairy products.' Both the objects of the statutes are had in view by the provisions prohibiting the selling or furnishing of milk adulterated by dilution with water, to a cheese or butter factory, to be manufactured into cheese or butter. The difficulty of detecting the deception in the manufactured article undoubtedly led to the enactment. The case is not analagous to that of In re Jacobs, 98 N. Y. 98; S. C., 50 Am. Rep. 636, cited by the defendant's counsel, where a statute passed ostensibly for the public health, was declared unconstitutional on the ground that it had no relation to the subject. In Commonwealth v. Waite, 11 Allen, 264, where a similar enactment to the one in hand was upheld, the court said: 'It is notorious that the sale of milk adulterated with water is extensively practiced with a fraudulent intent. It is for the Legislature to judge what reasonable laws ought to be enacted to protect the people against this fraud, and to adapt the protection to the nature of

the case.' Similar statutes prohibiting the sale of milk reduced below a certain standard on account of the presence of water were held constitutional in Commonwealth v. Evans, 132 Mass. 11, and State v. Smyth, 14 R. I. 100; and see People v. Cipperly, supra, and People v. Schaeffer, 41 Hun, 24."

In Barholt v. Wright, Ohio Supreme Court, May 10, 1887, it was held that in a suit for an assault and battery, the fact that the parties fought by agreement may be shown in mitigation of damages, but is no bar to the action. The court said: "It would seem at first blush contrary to certain general principles of remedial justice to allow a plaintiff to recover damages for an injury inflicted on him by a defendant in a combat of his own seeking; or where, as in this case, the fight occurred by an agreement between the parties to fight. Thus in cases for damages resulting from the clearest negligence on the part of the defendant, a recovery is denied the plaintiff, if it appear that his own fault in any way contributed to the injury of which he complains. And a maxim, as old as the law, volenti non fit injuria, forbids a recovery by a plaintiff where it appears that the ground of his complaint had been induced by that to which he had assented; for in judgment of law, that to which a party assents is not deemed an injury. Broom Leg. Max, 268. But as often as the question has been presented it has been decided that a recovery may be had by a plaintiff for injuries inflicted by the defendant in a mutual combat, as well as in a combat where the plaintiff was the first assailant, and the injuries resulted from the use of excessive and unnecessary force by the defendant in repelling the assault. These apparent anomalies rest upon the importance which the law attaches to the public peace as well as to the life and person of the citizen. From considerations of this kind it no more regards an agreement by which one man may have assented to be beaten, than it does an agreement to part with his liberty and become the slave of another. the fact that the injuries were received in a combat in which the parties had engaged by mutual agreement, may be shown in mitigation of damages. 2 Greenl. Ev., § 85; Logan v. Austin, 1 Stew. 476. This, however, is the full extent to which the cases have gone. We will notice a few of them. In Boulter v. Clark, an early case, an offer was made, under the general issue, to show that the plaintiff and the defendant fought by consent. The offer was denied; the Chief Baron saying, the fight being unlawful, the consent of the plaintiff to fight, if proved, would be no bar to his action.' Buller Nisi Prius, 16. A number of earlier cases were cited, and among them that of Mathew v. Ollerton, Comb. 218, where it is said that if a man license another to beat him, such license is void, because it is against the peace.' It will be found upon examination that this case was not for an assault and battery; it was on an award that had been made by the plaintiff on a submission to himself.

But

The re

mark, however, made in the reasoning of the court, is evidence of the common understanding of the law at that early day. In Stephen's Nisi Prius, vol. 1, 211, it is said: 'If two men engage in a boxing match, an action can be sustained by either of them against the other, if an assault be made; because the act of boxing is unlawful, and the consent of the parties to fight cannot excuse the injury.' So in Bell v. Hansley, 3 Jones (N. C.), 131, it was held that one may recover in an action for assault and battery, although he agreed to fight with his adversary; for such agreement to break the peace being void, the maxim volenti non fit injuria does not apply.' The following cases are to the same effect: Stout v. Wren, 1 Hawks, 420; Adams v. Waggoner, 33 Ind. 531; Shay v. Thompson, 59 Wis. 540; S. C., 48 Am. Rep. 539; Logan v. Austin, 1 Stew. 476. And so it was held in Commonwealth v. Collberg, 119 Mass. 350; S. C., 20 Am. Rep. 328, that where two persons go out to fight with their fists, by consent, and do fight with each other, each is guilty of an assault, although there is no anger or mutual illwill." Shay v. Thompson, 59 Wis. 540; S. C., 48 Am. Rep. 538, agrees with the principal case. A boxingmatch may be a breach of the peace. State v. Burnham, 56 Vt. 445; S. C., 46 Am. Rep. 801.

CHIEF JUDGE CHURCH AND JUDGE MARTIN GROVER.

FEW

EW of the statesmen and jurists whose names have passed into history were more fortunate in attaining and retaining the confidence of the people than Sanford E. Church. His sympathies were always with the people, and he never lost their respect. He was therefore one of the best judges of popular sentiment of his times and skillful manager of men. Chief Judge Church was not distinguished by any showy attributes. If his mental qualities were not marked by breadth and brilliance, they were characterized by concentration and strength. He was strong in poise and practicability; strong in his simplicity and in his integrity. He was clear in his convictions, modest, but firm and conscientious in supporting

them.

Though distinguished for directness and ingenuousness, he was not without well-considered, effective policy as a political leader; hence he was a skillful organizer, confident in pushing to the front the measures of his party. Like most politicians he sometimes adopted unfortunate policies, and was occasionally entangled in the plots and counterplots of the mere mercenary adherents of his party. He was exposed to the bitter attacks of censorious political opponents, and "found dark sides in his brilliant success as a party leader."

As a lawyer, Judge Church's abilities were of a high order. He possessed extensive knowledge of the law, a just estimate of fundamental principles, close acquaintance with precedent, and accuracy in applying them. He conducted his investigations with indefatigable industry and clear discrimination. He was eloquent, but his eloquence was unaffected, and yet his auditors listened with serious, fixed attention; they were interested and convinced by the facility and strength of his argument rather than by its rhetorical beauty. In conducting an argument before the court in banc he went through

the laborious process of comparing precedent with precedent, eliminating what was in material, as correctly as a demonstration in Euclid. His was the "Aim at strength; never stop to weave a garland to hang around a favorite point or period."

maxim of Chief Justice Marshall when at the bar,

Judge Church was a Democrat, not merely professedly, but "in substance and in grain," according to the Jefferson standard of Democracy, and the school of Silas Wright. His partisanship was strong, but it was always subservient to the best interests of the people, and he never opposed useful and needed measures to advance the interest of the party. In this he also strongly resembled Silas Wright. Like Wright, he was accessible, familiar and communicative, a patron of learning and of literary men, an adviser and promoter of merit among the younger members of the bar.

As a parliamentary speaker Judge Church was forcible; at times ardent and animated; but his ardor was rather the earnest vehemence of strong reason than the glow of enthusiasm. Without ever indulging in personalities in the most exciting debates, or under the irritation of censorious attacks, he never lost his self command, but exerted a dignified severity in his replies, as discomfiting as the most withering investive. But such was his urbanity and candor that he was always a favorite of his brethren of the bar and of

the legislature. His address to the Senate as lieutenantgovernor, on the organization of that body, January 7, 1851, was eminently characteristic. The reader remembers its beauty in thought, and expression, its modesty, its brevity, and the admiration it commanded.

One of Chief Judge Church's happiest efforts was in presenting the Post Graduate Prize of the New York State Bar Association, to Walter R. How, the successful competitor for it. In the course of his address, referring to the association, he said: “It wil! tend to produce cordiality of feeling among the members, and between the profession and the bench. It will repress evil practices and elevate the standard of education and conduct. *** I have always thought there was no excuse for a lawyer being dishonest. His profession and education are founded upon the immutable principles of right and justice. When he violates them he sins against light and knowledge, and should be held to a rigid accountability.'

Perhaps of all the leaders of the Democratic party in the State and Nation, no one stood nearer the presidential chair than Chief Judge Church at the time of

his death.

Sanford E. Church was elected chief judge of the Court of Appeals in May, 1870. He was then called directly from a large and extensive practice at the bar, and from the leadership of one of the great political parties, to preside over the court of last resort of the State of New York. How perfect was his abnegation of politics, how impartially, how learnedly he discharged the duties of his great office is seen in the reports of the cases adjudicated in the Court of Appeals.

At the same election in which Church was made chief judge, another western New York jurist, distinguished as a politician, legislator and lawyer, was elected an associate judge of the Court of Appeals. This was Martin Grover. His duties in that court were not new to him. As a justice of the Supreme Court, under the provisions of the Constitution of 1846, he had occupied a seat on the bench of the Court of Appeals several years. A stronger - we had almost said a more violent-politician, a more successful contestant at the bar, never received judicial honors. But the change from politics to the duties of a judge was as complete in Grover as it

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