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Wagner v. Drake
THE ALBANY LAW JOURNAL:
A WEEKLY RECORD OF THE LAW AND THE LAWYERS.
The Albany Law
VACATION is upon us, or will be as soon as Mr.
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 ALBANY, JULY 2, 1887.
of novels that ever lived. He was always asking
for the newest of the new, and unfortunately even CURRENT TOPICS.
the new romances of his period were hopelessly bad. Barbier, his librarian, had orders to send par
cels of fresh fiction to his majesty wherever he Sharp's trial is finished. The time of currants
might happen to be, and great loads of novels approaches but not for current topics. The Legis- followed Napoleon to Germany, Spain, Italy, Russia. lature has adjourned, and is not making any foolish
The conqueror was very hard to please. He read laws. The governor is behaving himself pretty well. in his travelling carriage, and after skimming a few All things tend to mollify us and cause us to relax
pages would throw a volume that bored him out of that attention on which the welfare of this city and the window into the highway. He might have been country so greatly depend. Our mayor has vetoed tracked by his trail of romances, as was Hop-o'-Mythat dog-tax ordinance, and we shall no longer neec Thumb in the fairy tale, by the white stones he to keep a sleepless eye upon him. (By the way, the dropped behind him. Poor Barbier, who ministered Georgia Supreme Court have recently decided that
to a passion for novels that demanded twenty volno action lies for negligently killing a dog.) Now umes a day, was at his wit's end. He tried to foist we advise all our brethren to “take it easy" for on the emperor the romances of the year before two months. They will live longer and be happier last; but these Napoleon had generally read, and for so doing. Fish, hunt, loaf, såil, travel, attend he refused, with imperial scorn, to look at them base-ball games, in short, do any thing rather than
agam." Poor man! he had not Dickens, and business. It is related that a very distinguished Thackeray, and Bulwer, and Eliot, and Cooper, lawyer of the city of New York, having heard that
and Poe, and Hawthorne, and innumerable lesser another had made one hundred thousand dollars in
lights, to minister unto him. How he would have the year, stayed at home and worked all summer in
relished Victor Hugo's account of Waterloo in Les order to equal or exceed that amount. He did not
Miserables, and what short work he would have made need it, and the other man is since dead from over- of Howell and James! Then there are other things work. If we had made eighty thousand dollars no
only a little less interesting than novels, such as consideration would induce us to stay at home and history, speeches and biography. The most blessed work through the hot weather. To swing in a hour of the day to us is when we go to bed, reach hammock under a tree and read a novel is the height out to a book case hard by, and take up at random of mid-summer happiness. We admit that we read a volume of Burke, Erskine, Webster or Campbell's novels. We do it because the greatest men have lives - it makes no difference which – and open it read them, and we want to resemble them in one
it makes no difference where - and think no point at lcast, and so adopt the easiest. Chief Justice Marshall and Lord Campbell read novels.
more of this present troublous world for the good
book and the sound sleep that follows. A great Francis Jeffrey ackpowledged that he cried over
many lawyers play cards - some, we fear, for
money. Little Nell. Thackeray says: “Novels are sweets.
The Supreme Court justices disport themselves All people with healthy literary appetites love them
sedately at whist at Block Island. For him who almost all women a vast number of clever,
cannot have three Supreme Court justices to play hard-headed men. Judges, bishops, chancellors,
with, solitaire is a good substitute. There are eighty mathematicians, are notorious novel-readers; as well
different games of solitaire. One is named after as young boys and sweet girls, and their kind, tender
Napoleon, who played it at St. Helena. Solitaire mothers. Who has not read about Eldon, and how
has one advantage over whist you are Vol. 36 - No. 1,
tempted to swear at your partner. We approve
also words at the beginning of a will, but they are not of fishiug in the pages of Walton's Angler. Think essential. The sanction of priest or magistrate to a of the god-like Daniel pulling up a fine fish to the marriage contract is no more necessary than to a exclamation of “Venerable men!” Or of Cleveland testament. These are mere matters of will or agreepulling up any number without saying a word. ment. The contracting of a wife is no more solemn We know of lawyers who amuse themselves on stock or important, and no more concerns the public, for farms, but these are affluent gentlemen. Still it example, than the disinherison of a child. If our must be a pleasure to look into the honest eyes and present laws were enforced we should have a suffismell the sweet breath of oxen and cows — beings cient registry of marriages, but they are to a conquite as intelligent and much sweeter of savor, we siderable extent a dead-letter. The governor thinks dare say, than twelve jurors culled out of twenty- our present excise laws are sufficient if enforced; one hundred on account of their superior stupidity. let him apply the same reasoning here, and let well The average horse too is much more desirable for enough alone.- So far we had written when we society than the man who buys pools. The greatest learned that the governor had let the bill die. But pleasure and profit of vacation we have modestly re- we will let it stand for future occasions, served 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
Mr. Proctor in another column gives an interesting comes, before everything else. We only wish we could make it as interesting as a novel. We try the latter was one of the ablest and most peculiar
comparative view of Judges Church and Grover. hard, at all events.
of our judges. His demeanor on the bench preWe learn that the marriage-license bill still lies in
sented a glaring and by no means pleasant contrast the governor's hands, and that the clergy are be
to that of the chief judge. The latter was the setting him to approve it. We hope he will not
personification of patience, attention and courtesy. feel inclined to gratify them in this particular as a
The former was impatient and was always too much compensation for disappointing them in regard to disposed to rule the court, and to assume that he the Crosby high-license bill, and thus be wrong in
knew more of the case in hand than either of the both. Of course the clergy want ceremonial mar.
counsel. Sometimes he did, apparently. He had a riages. Such a system increases their importance dreadful habit of sitting up at night and reading and influence, and brings them fees, but we do them
the records for the next day's argument, and then the justice to believe that the latter inducement is there was frequently a circus.” “I guess you'd not the main one. Why should we be compelled better skip down to the seventh point," — he called to pay tribute to a clergyman or a magistrate for his it pint;”—“I don't think there's much in that unnecessary sanction to a civil contract ? Why point; " " you'll find the testimony on page 469;" should Governor Hill be compelled to do so? Let
and the like, were frequent expressions from bis him bring the matter home to himself. Suppose he lips, and all the time he was looking around satır. should determine, like the chief magistrate of the ically or impatiently, as much as to say, “Good nation, to marry, as a popular measure
Lord; what fools these lawyers be!” A stranger as a measure of political necessity — how absurd it would have thought that he was the chief judge, in would be to enact that he must send Colonel Rice which impression “Mart” would cordially have down to the city hall for a license, necessitating the agreed with him. It is rumored that the mild chief disclosure of his excellency's age and other details occasionally rebelled and remonstrated, but it did not of no interest to anybody but his excellency! Ser
seem to do much good. Sometimes he was evidently iously, we approve the scheme of providing for the
as much am used as the rest of the court and the public record of marriages, under penalty if neces
We once heard “Mart” say to a counsary. We are rather inclined to think that minors sellor who had cited a long list of cases to one point, should not marry without consent of parents or
" the court can't look at all these cases, you know. guardians — they are too young to marry at all You'd better point out three or four that you set events. But to declare that a common-law marriage the most store by and well try to look at 'em." shall be void is going too far, and will lead to mis. Occasionally counsel would give him as good as he chief. It would undoubtedly be evaded in many
sent. We once heard an instance of this. Counsel instances by skipping over the border into states in replying to a point made on the argument and less punctilious, and then we should expect to see
not printed in the brief, said: “I say, as his honor, our clergy having “calls” to those states. After Judge Grover, frequently observes, 'I don't think all, what is the need of this bill? Is there any thing there's much in that pint.'” Grover was visibly the matter with our marriage and divorce laws ? annoyed, and the rest of the judges could hardly Not at all; we have an excellent system in spite of
conceal their merriment. But the joke was on the Prof. Bennett — easy marriage, hard divorce - just facetious counsel when the court beat him on that as it ought to be. Most people will in the future, very "pint.” We cannot agree with Mr. Proctor as in the past, seek the sanction of religion on their that the opinions of the chief are among the “most marriages, and will willingly pay clergymen's fees.
learned.” Substitute “weighty and sensible" and Just so it is natural and usual to put many pious
we are with him.
let us say
NOTES OF CASES.
the case.' Similar statutes prohibiting the sale of
milk reduced below a certain standard on account N People 163, it a
of the presence of water were held constitutional " sell, supply or bring to be manufactured to any
v. Smyth, 14 R. I. 100; and see People v. Cipperly, butter or cheese manufactory, any milk diluted with
supra, and People v. Schaeffer, 41 Hun, 24.” water, or any unclean, impure, unhealthy, adulterated or unwholesome milk,” is constitutional and valid. The court said: “The defendant's counsel In Barholt v. Wright, Ohio Supreme Court, May contends that the statutes violate the constitutional 10, 1887, it was held that in a suit for an assault and provision that no person shall be deprived of his battery, the fact that the parties fought by agreeproperty or liberty without due process of law, and ment
may be shown in mitigation of damages, but are therefore void. One object of the statutes re- is no bar to the action. The court said: “It would ferred to is to protect the public health. Although seem at first blush contrary to certain general printhat purpose is not specified in the title of the earlier ciples of remedial justice to allow a plaintiff to react, it appears very clearly from many of its pro- cover damages for an injury inflicted on him by a visions, and it is specified in the title to the act of defendant in a combat of his own seeking; or 1885, which is declared to be in aid of the former where, as in this case, the fight occurred by an act, and which re-enacts most of its provisions, in agreement between the parties to fight. Thus in hæc verba, including the section under which the cases for damages resulting from the clearest negliindictment is framed. To that end, the Legislature gence on the part of the defendant, a' recovery is has power to prevent, by reasonable enactments, the denied the plaintiff, if it appear that his own fault sale, or the putting on the market of articles of in any way contributed to the injury of which he food which are deleterious to public health, by rea- complains. And a maxim, as old as the law, volenti son of impurity, adulteration, or any unwholesome non fit injuria, forbids a recovery by a plaintiff quality or condition. It is for the Legislature, and where it appears that the ground of his complaint not for the courts, to decide whether the impure or had been induced by that to which he had assented; adulterated article, the sale of which is prohibited, for in judgment of law, that to which a party is or is not injurious to the public health. People assents is not deemed an injury. Broom Leg. Max, v. Cipperly, 37 Hun, 319; dissenting opinion of 268. But as often as the question has been preLearned, P. J. (p. 327), adopted by the Court of sented it has been decided that a recovery may be Appeals, 101 N. Y. 634; Powell v. Commonwealth, had by a plaintiff for injuries inflicted by the deSup. Ct. of Penn., 26 Am. L. Reg. 83 and note. fendant in a mutual combat, as well as in a combat The dilution of milk with water is an adulteration. where the plaintiff was the first assailant, and the One of the definitions of the term 'adulterate,' injuries resulted from the use of excessive and ungiven by Worcester, is 'to corrupt by some foreign necessary force by the defendant in repelling the mixture, or by intermixing what is less valuable.' assault. These apparent anomalies rest upon the And section 13 of the act of 1884 clearly implies importance which the law attaches to the public that the law-makers regarded milk diluted with peace as well as to the life and person of the citizen. water as adulterated Likewise, section 16 of the From considerations of this kind it no more regards act of 1885. Another object intended to be accom- an agreement by which one man may have assented plished by the statutes referred to, as is indicated to be beaten, than it does an agreement to part with by the title of each of them, is 'to prevent decep his liberty and become the slave of another. But tion in sales of dairy products.' Both the objects the fact that the injuries were received in a combat of the statutes are had in view by the provisions in which the parties had engaged by mutual agreeprohibiting the selling or furnishing of milk adul- ment, may be shown in mitigation of damages. 2 terated by dilution with water, to a cheese or butter Greenl. Ev., § 85; Logan v. Austin, 1 Stew. 476. factory, to be manufactured into chcese or butter. This, however, is the full extent to which the cases The difficulty of detecting the deception in the
We will notice a few of them. In manufactured article undoubtedly led to the enact-Boulter v. Clark, an early case, an offer was made, ment. The case is not analagous to that of In re under the general issue, to show that the plaintiff Jacobs, 98 N. Y. 98; S. C., 50 Am. Rep. 636, cited and the defendant fought by consent. The offer by the defendant's counsel, where a statute passed was denied; the Chief Baron saying, “the fight ostensibly for the public health, was declared un- being unlawful, the consent of the plaintiff to fight, constitutional on the ground that it had no relation if proved, would be no bar to his action.' Buller to the subject. In Commonwealth v. Waite, 11 Allen, Nisi Prius, 16. A number of earlier cases were 264, where a similar enactment to the one in band cited, and among them that of Mathew v. Ollerton, was upheld, the court said: 'It is notorious that Comb. 218, where it is said that if a man license the sale of milk adulterated with water is exten- another to beat him, such license is void, because sively practiced with a fraudulent intent. It is for it is against the peace.' It will be found upon exthe Legislature to judge what reasonable laws ought amination that this case was not for an assault and to be enacted to protect the people against this battery; it was on an award that had been made by fraud, and to adapt the protection to the nature of the plaintiff on a submission to himself. The re
mark, however, made in the reasoning of the court, the laborious process of comparing precedent with is evidence of the common understanding of the precedent, eliminating what was ir material, as corlaw at that early day. In Stephen's Nisi Prius, vol. rectly as a demonstration in Euclid. His was the
maxim of Chief Justice Marshall when at the bar, 1, 211, it is said: 'If two men engage in a boxing Aim at strengti; never stop to weave a garland to match, an action can be sustained by either of them hang around a favorite point or period." against the other, if an assault be made; because Judge Church was a Democrat, not merely professthe act of boxing is unlawful, and the consent of edly, but “iu substance and in grain,” according
to the Jefferson standard of Democracy, and the school the parties to fight cannot excuse the injury.' So
of Silas Wright. His partisanship was strong, but it in Bell v. Hansley, 3 Jones (N. C.), 131, it was held
was always su bservieut to the best interests of the that one may recover in an action for assault and people, and he nevor opposed useful and needed measbattery, although he agreed to fight with his adver- ures to advance the interest of the party. In this sary; for such agreement to break the peace being be also strongly resembled Silas Wright. Like Wright, void, the maxim volenti non fit injuria does not
be was accessible, familiar and communicative, a pa
tron of learning and of literary men, an adviser and apply.' The following cases are to the same effect: promoter of merit among the younger members of the Stout v. Wren, 1 Hawks, 420; Adams v. Waggoner, bar. 33 Ind. 531; Shay v. Thompson, 59 Wis. 540; S. C., As a parliamentary speaker Judge Church was forci. 48 Am. Rep. 539; Logan v. Austin, 1 Stew. 476.
ble; at times ardent and animated; but his ardor was And so it was held in Commonwealth v. Collberg, 119
rather the earnest vehemence of strong reason than
the glow of enthusiasm. Without ever indulging in Mass. 350; S. C., 20 Am. Rep. 328, that where two personalities in the most exciting debates, or under persons go out to fight with their fists, by consent, the irritation of censorious attacks, he never lost his and do fight with each other, each is guilty of an self.command, but exerted a dignified severity in his assault, although there is no anger or mutual ill-replies, as discomfiting as the most withering invent. will." Shay v. Thompson, 59 Wis. 540; S. C., 48 Am. ive. But such was his urbanity and candor that he
was always a favorite of his brethren of the bar aud nt Rep. 538, agrees with the principal case. A bo xing- the legislature. His address to the Senate as lieutenantmatch may be a breach of the peace. State v, Burn
governor, on the organization of that body, January ham, 56 Vt. 445; 8. C., 46 Am. Rep. 801.
7, 1851, was eminently characteristic. The rea.er remembers its beauty in thought, and expression, its
modesty, its brevity, and the admiration it comCHIEF JUDGE CHURCH AND JUDGE MAR
manded. TIN GROVER.
One of Chief Judge Church's happiest efi'orts was in presenting the Post Graduate Prize of the New
York State Bar Association, to Walter R. How, the FEW EW of the statesmen and jurists whose names have successful competitor for it. In the course of his
passed into history were more fortunate in attain- address, referring to the association, he said: “ ' It wil! ing and retaining the confidence of the people than
tend to produce cordiality of feeling among the memSanford E. Church. His sympathies were always bers, and between the profession and the bench. It with the people, and he never lost their respect. will repress evil practices and elerate the standard of He was therefore one of the best judges of popular education and conduct. * * * I have always thought sentiment of his times and skillful manager of men.
there was no excuse for a lawyer being dishonest. His Chief Judge Church was not distinguished by any profession and education are founded upon the imshowy attributes. If his mental qualities were not mutable principles of right and justice. When he viomarked by breadth avd brilliance, they were charac- lates them he sins against light and knowledge, and terized by concentration and strength. He was strong should be held to a rigid accountability.” in poise aud practicability; strong in his simplicity Perhaps of all the leaders of the Democratio party and in his integrity. He was clear in his convictions, in the State and Nation, no one stood nearer the presimodest, but firm and conscientious in supporting dential chair thau Chief Judge Church at the time of them.
his death. Though distinguished for directness and ingenu- Sanford E. Churoh was elected chief judge of the ousness, he was not without well-considered, effective Court of Appeals in May, 1870. He was then called policy as a political leader; hence he was a skillful directly from a large and extensive practice at the bar, organizer, confident in pushing to the front the meas
and from the leadership of one of the great political ures of his party. Like most politicians he sometimes parties, to preside over the court of last resort of the adopted unfortunato policies, and was occasionally State of New York. How perfect was his abnegation entangled in the plots and counterplots of the mere
of politics, how impartially, how learnedly he dismercenary adherents of his party. He was exposed charged the duties of his great office is seen in the to the bitter attacks of censorious political opponents, reports of the cases adjudicated in the Court of Apand “found dark sides in his brilliant success as a
peals. party leader."
At the same election in which Church was made As a lawyer, Judge Church's abilities were of chief judge, another western New York jurist, disa high order.
He possessed extensive knowledge tinguished as a politician, legislator and lawyer, was of the law, a just estimate of fundamental prin- elected an associnte judge of the Court of Appeals. ciples, close acquaintance with precedent, and ac- This was Martin Grover. His duties in that court curacy in applying them. He conducted his investiga- were not new to him. As a justice of the Supreme tions with indefatigable industry and clear discrimi- Court, under the provisions of the Constitution of nation. He was eloquent, but his eloquence was un- 1846, ne had occupied a seat on the bench of the Court affected, and yet his auditors listened with serious, of Appeals several years. A strouger - we had almost fixed attention; they were interested and convinced said a more violent - politician, a more successby the facility and strength of his argument ratherful contestant at the bar, never received judicial than by its rhetorical beauty. In conducting an honors. But the change from politics to the duargument before the court in banc he went through ties of a judge was as complete in Grover as it