« EelmineJätka »
but on the contrary, it was declared that marriages Marriage is not alone a private matter. The Statecontracted otherwise than as required by the act society at large--has an important and direct interest should not be affected or invalidated thereby.
in it. I challenge you to show me a single instance in I introduced this subject into the New York City our time of a government or community, that having Bar Association early in 1886, but the bill was not re. once imposed restrictions upon marriage, ever reported to the association till March or April last, and pealed its laws upon the subject and went back again before it reached Albany another bill to the same ef
to easy marriage." fect (but in my judgment not so desirable) was intro
J. C. LEVI. duced in the Senate, and the bill as finally adopted, I
NEW YORK, July 6, 1887. believe, was a sort of a compromise measure between the Senate bill and the Bar Association bill (which latter was introduced in the assembly).
TENANCY BY ENTIRETIES. A large inajority of the judges in this department Editor of the Albany Law Journal : bare expressed themselves in favor of a measure of
Where a husband and wife become owners of real this sort, and the clergy, you admit, think there is a
estate by joint deed to them, without any specification necessity for it; but it seems that the governor therein of their individual interests, they become tenthought more of the remonstrances of the county
ants by entireties thereof, and on the death of one the clerks and the “fun "made of it by the ALBANY LAW
entire realty vests in the survivor. Though every JOURNAL, and declined to sign the act, without how
one is presumed to know the law, this is a law that ever, so far as I can learn, expressing his reasons there- outside of the profession is but little understood, and for in writing.
is in fact construed by analogy and common sense My original idea was that the proposed licenses differently, and as conveying separate descendible should be issued by judges exclusively, and not by interests. The result is sometimes injustice, or at least clerks. As the power to naturalize and make citizens
a variance from what was intended or would be dewas reposed by law in judicial, and not ministerial,
sired, as sometimes such deeds are taken to save the officers, so likewise should the power to issue these
expense of separate instruments. licenses. Marriage is a much more important step,
The law is probably based upon the common-law and one fraught with far greater and much more seri- idea or theory that the husband and wife are one, and ous consequences than the mere assumption of civio
would seem to require modification or change by statrights and duties.
ute, as that theory has already been thus changed in Clerks moreover are more easily reacbed by im
some other respects. And the drift of present publio proper influences than judicial officers. The Bar As- opinion bears toward complete legal if not political sociation bill provided for judges as well as clerks.
equality between the sexes and husband and wife. The governor's objection was that the clerks were op
Mingled with this theory seems to be too great a posed to it. It may therefore be assumed that had the
distinction between personal and real property, now clerks been left out of the bill it would have been less
that one is so readily convertible into the other. As objectionable to bis Excellency, and hereiu I agree
for instance, in the case of a married woman dying with bim.
without any last will and testament, and without My idea was that the license should be procured
leaving any descendants, but leaving a large personal ten days before the marriage, aud a notification
estate, when the husband takes it all absolutely thereof should be mailed on the same day to the
(Barnes v. Underwood, 47 N. Y. 351, while if her esfaiber, or if dead, to the mother, of every minor con
tate had been real property, he would get no:bing, or cerned, and that while every kind of marriage should
but inadequately in comparison. be expressly legalized, violations and omissions of the
Need again of the surgery of statute. Or does the requirements of the act should be made misdemeanors, with very heavy penalties, but in these respects I legal mind, enamored of its Diana, cherish so-called
blemisbes as positive beauties? was substantially overruled.
Very respectfully, I can bardly think you are serious when you ob
J. B. DALEY. serve, “Is there arıy thing the matter with our mar
PRATTSVILLE, July 5, 1887. riage and divorce laws ? Not at all; we have an excellent system-easy marriage, hard divorce." Seems to me there's considerable the matter. * Easy marriages" means in too many instances repentance too
NEW BOOKS AND NEW EDITIONS. late, and sorrow and misery. “Easy marriages meins frequent divorce." Like Hamlet's play, it is
LLOYD ON DIVORCE. “a mouse trap." The ratio of divorces to marriage is
A Treatise on the Law of Divorce, with the causes for which constantly inoreasing. Fully ball the divorces granted
divorces will be granted in all the States and Territories, to-day I bonestly believe are improperly granted. By
the time of residence required in each; and a brief digest this, I mean that while the courts are vigilant, yet that in five cases out of ten the judges are deceived
of the leading decisions by the Appellate Courts. Conand imposed upon by fraud, perjury and collusion
taining also a careful compilation of the latest divorce and for this result our system of “ Easy marriage" is
statistics. By A. Parlett Lloyd, of the Baltimore Bar. to some extent directly responsible.
Boston and New York : Houghton, Mifflin & Co., 1886. A Swedish chancellor ove observed that “if you now
1 vol. 12 mo. pp. xxiv, 323. a large crop of oaths you will reap a plentiful harvest
This book is hardly entitled to be called a treatise." of perjuries." Jf marriages are made very easy, di
It is more in the nature of a summary. In this view vorces will be very numerous. Marriage should not
it is a good statement of the law. The particular be made easy, except perhaps in sparsely settled and
statement of the statutes and decisions in each State primitive communities. Marriage should be sur
may prove convenient for special reference, but is not rounded with just so many restrictions, and no more,
convenient for general purposes. This defect however as will compel at least proper deliberation. That mod is in a measure compensated by chapters giving a generate restrictions upon marriage bave any proper rela
eral view. The statistical portion is especially interlion to vioe or immorality is an exploded theory, and esting. The forms are insufficient and misleading for will not bear the test of investigation.
general use. For sale by Edwin Ellis, Albany.
than at first seemed reasonable. It is sometimes
The Albany Law Journal. called natural equity, inherent justice
, the police
power of the State, the pursuit of happiness, the
general welfare duty of the legislator and the judge.', ALBANY, JULY 23, 1887.
And he concludes: “In all the enactments, agreements or deeds of men, those alone are worthy
of survival which can maintain their consonance CURRENT TOPICS.
and harmony with those sublime affirmations, the published proceedings of the Bar Associa- which, whether of Semitic or later origin, rein January last, is a valuable paper by Chief Justice lasting sense of justice tempered by a mercy whose
softest flame springs forth from the altar of supreme Horton on the death penalty. In that State, the cap
love. Individual loss or gain, property acquired ital penalty can not be inflicted until a year from conviction, and then only in the discretion of the Gov- under the forms of law and occupations, entrenched
behind years of legislative sanction and encourageernor. This provision is severely condemned by the Chief Justice. He says the practical effect is that ment, do not for a moment interrupt the majestic
march of this royal principle. Its power to sweep “no execution of capital sentences will ever take place in Kansas until the statute is changed." He says, of its constant care and solicitude was never more
away whatever may attack or stand before the object with a great deal of force: “Many are indignant clear and potent than it is to-day. Courts are conthat the worst punishment the State inflicts upon stantly referring to its dictates as overturning what the cruel murderer is to provide him a comfortable
are claimed to be vested rights. The great Dartmouth home with good food, warm clothing, skillful medical attention if he be sick, and entire relief College case, so long the citadel of corporate life and from all anxiety concerning provision for his old defiance, of late has been beaten upon so fiercely and
incessantly by this universal guardian of public age.” He also observes: “I do not think the experience of the State, since the suspension of the policy, that it may well be laid aside in that vast
tomb of cases called 'overruled,' 'limited' or 'deexecution of capital sentences, justifies the belief that it would be beneficial to society to have capital nied.? Nothing of value is left to that once wide punishment unconditionally abolished. On January tects corporations as it does individuals against
and strange decision, and the higher law now pro1 of the present year there were fifty-one murderers injustice, and on the other hand makes them amenin the penitentiary of the State under sentence of able as it does individuals to the universal principle death, and more of the same class are on the way of equity.” to that institution. During the last few years more fiendish and brutal murders have been committed in Kansas than ever before since its admission as a In the same pamphlet, Mr. Charles Hayden disState." "I think that society already spares the courses entertainingly on the judicial administralives of too many of its vicious members, and the tion of justice, in which he acknowledges and more frequent infliction of the death penalty, rather laments the uncertainty of the laws, and concludes than its abolition, is demanded by the highest con
that codification is coming, but that it cannot fursiderations of public welfare and the public safety. nish an exact and certain rule for every possible While the Legislature has virtually abolished hang
There is also a paper on the “Relations of ing as a legal penalty, the practice of hanging atro- Lawyers to Society and their Clients," by Mr. Frank cious murderers without legal formalities has
Doster, and one on “Judge and People," by Mr. steadily increased. The opponents of capital pun
Henry C. Sluss. The latter gentleman rakes out ishment seem satisfied with what they consider the
that “chestnut” argument against codification progress of legislation in this respect, and yet mur
derived from the statute of frauds, and says “It derers are executed almost each month by lynch
would be a nice problem in mathematics to deterlaw. Thus public lynchings, with all their demor- mine what would be the result if all other alleged alizing and brutalizing influences, have been sub- legal principles were codified and corked and ferstituted for legal penalties."
mentation begun. * Every man is bound by the general thought of the hour in which he
lives, and this only is the judge authorized to proThe same pamphlet contains an exceedingly well
The judge is of the people, the instruwritten and able paper by Mr. Solon 0. Thacher, on
ment and the recipient of their sympathy, their the “Higher Law." He says: “If we seek for the virtue and their strength; and if he be skilled in verbal home of this superior law of Burke, this rule the discernment of truth, and keep abreast of the of justice of Cicero, the grand charter of the race of people in intelligence, in the sympathetic underOtis, this · liberty of pursuit of Mr. Justice Brad- standing of their sentiment, their needs, their aims ley, 'the new evangel of liberty to the people of aud their progress, and over all be blessed with a Mr. Justice Field, or the public welfare principle' liberal mind and a broad humanity, he will be thorwhich is not the subject of legislative barter, sale oughly furnished for every test of judicial adminisor grant, as defined by Mr. Justice Miller, speaking tration.” This is certainly a novel estimate of the for himself and the court, we find more difficulty I necessary endowment of a judge.
VOL. 36 -- No. 4.
At the suggestion of the governor of New York, ample, they have statutes against using abusive, ina circular signed by him and by the governors of sulting or obscene language in the presence of Massachusetts, Vermont, Connecticut, and Penn
In Weaver v. State, 79 Ala. 279, the desylvania, has been addressed to the governors of j fendant, whose wife had left him, went to the house all the other States and Territories, inviting a con- in which her daughters by a former marriage lived, ference of representatives of the States and Terri- searching for her, and on leaving was told by one tories, at the Murray Hill Hotel, in the city of New of them not to come there again; to which he reYork, on the 23d of August, to consider the ques- plied, “I'll go where I damn please, and it don't tion of adopting a uniform system of rules and prac- make a damn bit of difference where it is;" held, tice in the inter-State extradition of fugitives from that these words were insulting. justice. The circular states, and we have no doubt, correctly, that criminals often escape and that vexatious delays and expense often occur by reason of An inquiry comes to us, from a Canadian law the want of mutuality in extradition regulations. student, whether Canadian lawyers have a greater The wisdom of such a system is apparent without knowledge of law than American?" This is a deep argument, and the end is easily attainable by com- and delicate inquiry. It reminds us of a good pact between the various State departments without clergyman - Dr. B., of Troy – who on Sunday anlegislative action. The business of extradition in nounced a Sunday school picnic on the next Wedthis State is enormous, amounting to nearly one nesday, if fair, and if not, on the first fair day therewarrant every day. In 1881 an act was passed by after. Wednesday was cloudy, and a little boy, the Legislature amending the Code of Criminal rushing breathlessly through the streets, being Procedure in respect to such proceedings, and a asked where he was going, replied, “To see Dr. very minute and careful system of rules of practice | B., to find out if it's going to rain.” It occurs to was adopted and has been in force since 1885. To us that on certain subjects the Canadians must be adopt some such uniform practice would undoubt- the better lawyers; in regard, for example, to conedly be useful in simplifying, cheapening and ex- troversies concerning the chief commercial products peditng the business, and would effect justice in of that country, such as ice, codfish, beaver, seals this very important department. It is stated that those with legs), blubber, train oil, shingles, etc. Dr. Spear and Prof. Dwight will be present at the So as to certain forms of conveyances — sledges, for conference.
instance. But we have very little acquaintance
with Canadian lawyers. Our only acquaintance There is an injurious tradition that women talk among them is our only rival in the art of trying to too much. We doubt that they talk any more than find some fun in the law, Mr. R. V. Rogers, Jr., of
Take lawyers' wives, for example; they cer- Kingston. We suppose there are plenty of good tainly do not talk so much as their husbands, and lawyers there as here. But comparisons are odorous. very seldom talk what they know to be nonsense, We suspect that if we put it to a vote, each country like their husbands. One would suppose that men would stand up for its own. According to our cuswould encourage women in listening, but such is tom in the few instances when we are in any doubt, not the theory of the law. Just now in Philadel- we took advice on this momentous question. We phia the grand jury have found an indictment asked Mr. Moak his opinion, and while the learned against a woman for listening too much — eaves- gentleman was rather non-committal (for him), he dropping, they call it. The following is the indict- did say that the ablest lawyer he ever knew was a ment: “ That Louisa Ehrline on the 21st of June, Canadian the late James Bethune, of Toronto. 1886, and on each and every day thence continually until the day of the finding of this indictment was and is a common eaves-dropper, and on each and
Judge Barrett is reported as saying that he will all of said days and times did listen about the try no more “boodle " cases, because he has achouses and under the windows and eaves of the quired a decided opinion against the prisoners. houses of the citizens then and there dwelling,
This is fairer than Judge Noah Davis' conduct, who, hearing tattle and repeating the same in the hearing
on a similar intimation from counsel in the Tweed of other persons, to the common nuisances of the
case, lectured them roundly and fined them for citizens of this Commonwealth and against the contempt. Judge Gresham recently kept his tempeace and dignity of the Commonwealth of Penn- per on a similar suggestion. But judges differ. sylvania.” We believe it was in Pennsylvania possibly it was New Jersey — that they used to duck women for scolding. Well, after all it is true that
NOTES OF CASES. sin came into the world through Eve's listening – probably that is what suggested the name of the 'N State v. Yopp, North Carolina Supreme Court, common-law offense — and it may be well to make May 30, 1887, it was held that a statute foran example of over-curious Louisas. In some other bidding every person to use upon a certain turnpike communities they are sedulous to protect women road a “bicycle,
without the express against being compelled to listen to certain kinds permission of the superintendent of said roa d," etc., of talk. In the gallant south — Alabama, for ex- does not deprive the owners of bicycles of the use
of their property “without due process of law,” in other like vehicles, embraced by the prohibitory violation of the fifteenth amendment of the Con- clause of the statute in question, it is his plain stitution of the United States. The court said: duty to allow them to do so at such times. The “ There is no reason why the owner of a particular authority is not bis. He is simply made the agent kind of vehicle, which because of its peculiar form of the law for a lawful purpose, and he is amenaor appearance, or from the unusual manner of its ble as such for any prostitution of the power so use, frightens horses, or otherwise imperils passen- vested in him. And the creation of the discretion gers over the road, or their property properly there, implies that there may be occasions or times or seashall not be forbidden to use such vehicle on the sons when bicycles may be used on the road. It road. He has no right to use it to the prejudice or not infrequently happens that statutes require parinjury of others who are lawfully exercising their ticular things to be done, or not to be done, that rights in the use of it. If it be said, when shall must be made to depend upon the judgment and one person be restrained in doing as he will with discretion of a designated agent or commissioner or his own property — from going, for example, on officer, and the discretion in such cases is not arbithe highway with his own vehicle, of whatever trary; it is lawful, and must be lawfully exercised.” kind? — the answer is, whenever in the ordinary lawful course of things in that connection he would, by the use of his property — his vehicle, in the case In Webber V. Barry, Michigan Supreme Court, suggested — interfere materially in any respect with June 9, 1887, defendant led a body of men upon another in the ordinary, lawful use of his property the premises of plaintiff, who was running a sawor rights. * The purpose of this statutory mill, while plaintiff and his men were at work, to provision is not to destroy the defendant's property, find out whether plaintiff's men were satisfied with his bicycle, or to deprive him of the use of it in a the number of hours they were working, or whether way not injurious to others, but to prevent him they wanted to join the movement for ten hours. from using it on a particular road, that mentioned, Held, that the defendant was a trespasser from the at a particular time or season, when it would, by moment he entered the premises of plaintiff, and reason of its peculiar shape and the unusual man- that he would be held responsible for acts of vioner of using it as a means of locomotion, prove in- lence committed by his men at the mill, though he jurious to others, particularly women and children told them not to commit any violence, halted them constantly passing and repassing in great numbers two hundred feet from the mill, and did what he over the particular road mentioned, in carriages could, after they had violated his instructions, to and other ordinary vehicles drawn by horses. The prevent further injury. The court said: “I am evidence tended strongly to show that the use of fully satisfied that the defendant Barry had no the bicycle on the road materially interferred with right to lead a gang or mob of men upon the premthe exercise of the rights and safety of others in ises of defendant, to interfere in any manner or to the lawful use of their carriages and horses in pass- consult with the men who were in the employ of ing over the road. In repeated instances the plaintiff. If he did so he must be held responsible horses became frightened at them, and carriages for their acts of violence, notwithstanding that he were thrown into ditches along the side of the halted them two hundred feet from the mill, and road. It was not uncommon for horses to become told them to remain there until he came back. The frightened at them and become unruly, if the evi- trouble with Barry's case is that he had no business dence is to be believed. The statute did not deprive himself upon the premises of plaintiff for the purthe defendant of the use of his property. He pose that he admits he was there. It was none of might have gone another way. He might have his business whether the men working for plaintiff gone at an opportune time, with the express per- were satisfied to work eleven or eleven and a half mission of the superintendent of the road. In any hours per day or not. The real animus of his visit case, he had no right to go, using his bicycle, at was, as can plainly be seen, to induce the employees the peril of other people, he giving rise to such of plaintiff to join the men already gathered in a peril. The statute did not therefore in any just strike for ten hours. Whatever right he may have sense destroy his property as contended, or de- bad to influence these men to quit work, unless the prive him of the proper and reasonable use of it, ten-hour demand was acceded to by their employer, nor was such its purpose. Its purpose was lawful, while they were not at work, he certainly had no and in our judgment it does not provide an unrea- right to enter upon the premises of such employer sonable police regulation; certainly not one so un- to influence these men while they were at work. reasonable as to warrant us in declaring it void. He had no license, by custom or otherwise, to enter
The discretion vested in the superintend- upon the premises of plaintiff, or into the mill, for ent is not arbitrary. He is made the agent of the any such purpose, and he was a trespasser the very law as well as superintendent, and he is bound to moment he did so. He also well knew the characexercise the discretion vested in him honestly, ter and intent of the crowd he took with him. He fairly, reasonably, and without prejudice or par- was its acknowledged leader, and in taking them tiality, for the just purpose of effectuating the in- where he had no right to take them he became retention of the statute. If there be times or seasons sponsible for their acts, whether done by his conor occasions when persons wish to use bicycles or sent or against his protests. It cannot be said that
Barry, according to his own testimony, was there tion. The jury had before it the evidence as to for any lawful purpose. No man has a right to en- what the age of the prosecutrix was, and we hardly ter upon the premises of another for the purpose of think that we should be justified in reversing upon inducing persons in the employ of that other to such grounds. As however the case is to be releave their employment to the injury of the em- manded for another trial, we feel called upon to say ployer, for the purpose of getting higher wages or that the use of the words in question is not, we working less hours for the same pay, or for any think, without objection. While they could hardly other reason. The man who so enters is a trespas- be regarded as sufficient to mislead the jury in regard
No matter if by the custom of this free coun- to the prosecutrix's age, they might be understood as try, license is impliedly given to all persons to en- evincing a feeling on the part of the court against ter our private grounds or places of business, that the defendant. The court used the words in a license is nevertheless considered revoked the mo.
The case was certainly not one of ment the person so entering interferes unlawfully a girl yielding to the embraces of a man, nor on with our rights or our property. He then becomes the other hand, was it a case, as the defendant a trespasser ab nitio. Much less can he lead a claims, of a woman yielding to the embraces of a crowd of two hundred men upon my premises, and boy. There does not appear to have been any then excuse himself for their wrong-doing because thing in the respective ages of the parties to justify he told them not to injure my property, when the any allusion to the subject.” Women seldom comavowed purpose of their entrance was to interfere plain of being called girls. Perhaps the judge rebetween the men in my employ and myself. A membered that Dame Quickly resented being called crowd of this size is liable at any moment to be
The dictionary says a “girl” is “a come a mob, and an excited mob can seldom be
young woman," and it has recently been judicially controlled by ony one. Even their leaders become decided in England that a “young woman" is a powerless ofttimes to prevent not only the destruc- female under thirty. tion of property but the shedding of blood. Mr. Barry must suffer the consequences of his ill-advised and unlawful entrance with this body of men upon CONSTITUTIONAL LAW-EMINENT DOMAIN the premises of plaintiff, who has a right to be pro- -STREET-ELEVATED RAILROADS. tected in his property, and to be recompensed for the damages he has suffered. It does not help the
KENTUCKY COURT OF APPEALS. laborer to countenance such acts as these. The un
MAY 21, 1887. lawful interference with the rights of others, and
BULTON V. SHORT-ROUTE RY. TRANSFER Co.* the destruction of property, cannot aid any one. The law cannot be taken in our own hands to rem
The Legislature has the constitutional right to authorize the
construction of a steam railroad along a public street in a edy our wrongs by inflicting wrongs upon others.
city, and it is immaterial whether the fee in the street is He who goes outside the law to obtain his rights, owned by the city or by the abutting lot-owners. The whether fancied or real, will find in the end that latter have no claim for compensation against the railthe law he has spurned or violated will yet, and in road, unless it is so constructed or operated as to deprive justice, compel him to respect it, by taking from
them of the reasonable use of the street. Any injury to
the rights of air, light and support must be redressed in him what he has gained in disregard of it, and
an action for nuisance. forcing him to recompense those he has illegally damaged by his conduct." Sherwood, J., dissent- APPEAL from Louisville Law and Equity Court. ing. This reminds us of the celebrated balloon
A. Barnett and T. W. Bullitt, for appellant. and garden-sauce case of Guille v. Swan, 19 Johns. 381.
Temple Badley and Woolley & Buckner, for appellee.
HOIT, J. The charter of the Short-Route Railway In State v. Richards, Iowa Supreme Court, June
Transfer Company, granted by the Legislature in
1873, provides : 15, 1887, an action for seduction, the court said:
"Sec. 2. Said corporation is hereby granted the exclu“The court, in its instructions to the jury spoke of sive privilege to build, construct, maintain and operthe prosecuting witness as 'the girl.' It is stated ate a railway trausfer company, by steam or animal by the defendant's counsel that the court used power, for the transportation of passengers and freight these words nineteen times. We have not verified
by the oar-load or otherwise, including that portion the statement by count, but observe that the words
of the city of Louisville north of Main street, from
the east side of First street to the west side of Fourwere used frequently. The evidence shows that
teenth street, for a period of ninety-nine years, dating the prosecuting witness, at the time of the alleged from January 1, 1873. seduction, was twenty-four years old. The defend- "Sec. 3. Said corporation shall have the right, by ant claims that she was in no proper sense a girl,
and with the consent of the General Council of the and that the court improperly designed to suggest
city of Louisville, to the use of or right of way to
such streets and alleys, and such portion of the city's an explanation of what was contended by the de
wharf within the limits named in the second section fendant to be incredible, that a chaste woman of this act, as the interests of said corporation may should yield to a man's embraces on a promise of require, and in such manner and under such reasonmarriage, without previous courtship, and within
able restrictions and conditions as may be agreed about five minutes from the time of first solicita.
* 12 S. W. Rep. 332.