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plaintiff on the witness stand. They are would have, in our judgment, the least ground these :

of complaint that an action, confessedly meant “1. The persons concerned in getting up the to do honor to the memory of a noble woman, proposed statue were not friends of the plain- was proposed by those who in her lifetime had tiff's deceased aunt, and, as plaintiff alleged, not the honor of her personal acquaintance or did not know her.

friendship, but whose proposed action was nev2. They were proceeding with their plan ertheless the outgrowth of admiration of her without consulting with the plaintiff or other character as a friend and benefactor of the sex immediate members of the Schuyler-Hamilton of which she was herself so great an ornament. family, and without their consent to the mak- “ The second ground of objection, we think, ing of any statute.

is equally untenable. The fourth ground may 3. The circulars issued by or in behalf of properly be considered as a part of it. It is the defendants contained a statement that Mrs. true that these defendants have assumed to Schuyler was the founder of or the first woman take the preliminary steps leading to the makin the enterprise for securing the home of ing of the proposed statue without having conWashington, and that this statement was inac- sulted with or obtained the consent of the curate, because a prominent woman in South plaintiff. The whole of the plaintiff's claim of Carolina was in fact such founder and justly the right of privacy in this case rests upon the entitled to the honor arising therefrom. This lack of this consent. mistake, it was asserted, has caused adverse “It is stated that Mrs. Schuyler was not in comment in the newspapers as to the attitude any sense a public character during her life, of the family of plaintiff in permitting such a and consequently had not surrendered to any claim to be made when they must have known extent whatever her own right of privacy. it was without foundation.

It is not a question of what right of privacy 4. It was disagreeable to the plaintiff, be Mrs. Schuyler had in her lifetime. The plaintiff cause the making of such a statute would have does not represent that right. Whatever right been disagreeable and obnoxious to his aunt or privacy Mrs. Schuyler had died with her. were she living. She had, as plaintiff said, a Death deprives us all of rights in the legal great dislike to have her name brought into pub- sense of that term, and when Mrs. Schuyler lic notoriety of any kind, as she was a singu- died her own individual right to privacy, larly sensitive woman and of a very retiring na- whatever it may have been, expired at the same ture, anxious to keep her name from the public time. prints or newspapers.

“A woman like Mrs. Schuyler may very well 5. That plaintiff's aunt had not been person in her lifetime have been most strongly adverse ally acquainted with Susan B. Anthony, and he to any public notice, even if it were of a most was quite sure she had not sympathized with flattering nature, regarding her own works or or approved the position taken by Miss An- position. She may have been (and the evithony upon the question of the proper sphere dence tends most strongly to show that she was) of woman and her treatment by the law, and it of so modest and retiring a nature that any was disagreeable and annoying to have the publicity, during her life, would have been to memory of Mrs. Schuyler joined with princi- her most extremely disagreeable and obnoxious. ples of which she did not approve.

All these feelings died with her. “After taking all the objections into careful

“ It is therefore impossible to credit the existconsideration, we cannot say that we are in the ence of any real mental injury or distress to a least degree impressed with their force. The surviving relative grounded upon the idea that first ground of objection, even if well founded the action proposed in honor of his ancestor in fact, is not of the slightest importance. would have been disagreeable to that ancestor Whether the defendants were friends or not of during his life. Mrs. Schuyler in her lifetime does not seem to “We cannot assent to the proposition that us to have any legitimate effect upon the ques- one situated as the plaintif in this case can tion. No surviving relative, male or female, properly enjoin such action as the defendants

1

women.

propose on the ground that as mere matter of ing toward the placing the statues of these two fact his feeling would be thereby injured. We ladies together as representatives of the same hold that in this class of cases there must, in ideas, or as in any way, even the remotest, uniaddition, be some reasonable and plausible ted in the same works, or in inculcating the ground for the existence of this mental distress same principles in regard to the rights of and injury.

“It must not be the creation of mere caprice “The fact, if it be a fact, that Mrs. Schuyler nor of pure fancy, nor the result of a super- did not sympathize with what is termed the sensitive and morbid mental organization, dwell- Woman's Rights' movement is of no importing with undue emphasis upon the exclusive ance here. The proposed placing of the two and sacred character of this right of privacy. statues would, if carried out, have had no tenSuch a class of mind might regard the right as dency to show that Mrs. Schuyler did so syminterfered with and violated by the least refer- pathize. Many of us may, and probably do, ence even of a complimentary nature to some totally disagree with these advanced views of illustrious ancestor without first speaking for Miss Anthony in regard to the proper sphere of and obtaining the consent of his descendants. woman, and yet it is impossible to deny to her

“Feelings that are thus easily and unnaturally the possession of many of the ennobling qualiinjured and distressed under such circumstances ties which tend to the making of great lives. are much too sensitive to be recognized by any “While not assuming to decide what this purely earthly tribunal.

right of privacy is in all cases, we are quite “A shy, sensitive, retiring woman might clear that such right would not be violated by naturally be extremely reluctant to have her the proposed action of the defendants. The praises sounded, or even appropriate honors plaintiff's cause of action is, we think, wholly accorded her while living, and the same woman fanciful. The defendant's contemplated action might, upon good grounds, believe with entire is not such as might be regarded by reasonable complacency and satisfaction that after her and healthy minds as in the slightest degree disdeath a proposition would be made and carried tressing or tending in the least to any injury to out by her admirers to do honor to her memory

those feelings of respect and tenderness for the by the erection of a statue or some other memory of the dead which most of us possess, memorial

and which ought to be considered as a proper “We think that so long as the purpose is to subject of recognition and protection by civildo honor to the memory of one who is deceased, ized courts. and such purpose is to be carried out in an ap- “Upon the whole, we are of the opinion that propriate and orderly manner by reputable in the plaintiff has made a mistake in his choice of dividuals and for worthy ends, the consent of this case as an appropriate one in which to ask the descendants of such deceased person is not for the enforcement of the right of privacy. necessary, and they have no right to prevent, The judgment must be reversed as to the for their own personal gratification, any action parties appealing and the complaint dismissed of the nature described.

to them, with costs." “The third ground of objection is based upon a claim made in the circulars issued by de

RAILROAD COMPANY fendants that Mrs. Schuyler was the founder of GAGES. -A claim for damages for personal injuries, the Mount Vernon Association, while in truth caused by the negligence of a street railway company she was connected with it only as a vice regent five months before the appointment of a receiver in from this State. If corrected, all ground of mortgage foreclosure proceedings, is not entitled to complaint of that nature would disappear.

priority of payment over the mortgage debt out of

the earnings accruing during the receivership. “ The fifth ground is an equally vague and

Such a claim is not based upon any considerations shadowy one. Whether Mrs. Schuyler sympa- inuring to the benefit of the mortgage security, or thized with the work or the views of Miss An- tending to keep the road a going concern.—(St. thony, we must say, seems to us utterly foreign Louis Trust Co. v Riley [U. S. C. C. of App.), 70 to the subject. There was no proposition look Fed. Rep. 32.)

-STREET RAILWAYS -MORT

REPORT OF COMMISSIONERS TO REVISE of various laws relating to the subject. The pracTHE CODE.

tice in the State, except as modified by statute or (Continued from Dec. 21, 1895.)

rule of court, is under the common law. The PRACTICE IN OTHER STATES.

Superior Court is empowered by rules to make alWe are commanded by the act authorizing our terations in the manner of pleading, of entering appointment to examine the Code of Procedure and transcribing pleadings, judgments, and other of this State, and also the codes and practice proceedings in actions at law, and in relation to the acts of other States and countries. A comparative , payment of costs. study of procedure in other States would, doubtless, Florida has no separate code of civil procedure. be profitable in attempting to revise or reconstruct The second part of the Revised Statutes (1892), enthe civil procedure of this State, and we shall try titled “Of Civil Courts, Their organization and to make such an examination as the law requires Proceedings Therein,” containing 340 sections, is before submitting & scheme of revision. But the

practically a code of civil procedure. early date at which this report is required prevents

Georgia has no separate code of civil procedure. any extended study of other systems of procedure. Part 3 of the Code of Georgia (1882), entitled “The We deem it proper, however, to submit at this time Code of Practice," containing 310 sections, is praca statement showing briefly which States have codes tically a complete code of civil procedure. of procedure, and in which of them procedure is

Idaho has no separate code of civil procedure. governed by general practice acts, rules of the Part 3 of the Revised Statutes (1887), entitled courts, or the common law. The following table - Code of Civil Procedure,” with 2,350 sections, shows the broad field spread out before us by the embraces a practically complete scheme of civil prostatute, and which we are directed to explore:

cedure. Alabama has no separate code of civil procedure.

Illinois has no separate code of civil procedure. Part 3 of the Code of Alabama, entitled “Proceed- Chapter 110 of the Re sed Statutes (1885), is enings in Civil Actions," containing 1, 125 sections,

titled “Practice," but cannot be considered a comcoustitutes a complete scheme of civil procedure, he plete code of civil procedure, as it is only a compiginning with actions and parties, and ending with lation of various statutes, modifying or superseding appeals and fees.

the common law practice, which otherwise prevails. Arizona has no separate code of civil procedure.

Indiana has no separate code of civil procedure. The titles of the Revised Statutes are arranged Chapters 2 and 3 of the Revised Statutes (1894), alphabetically, and many of them relate to civil entitled “ Civil Procedure” and “ Courts,"containprocedure.

ing 1,392 sections, constitute a complete code of Arkansas: Chapter 119 of the Revised Statutes civil procedure. The Appellate and Supreme Courts (1884), entitled “Pleadings and Practice,” contains

are empowered to make rules in relation to proceed407 sections, and is in the nature of a code of civilings where not specially provided for by law. procedure. The chapters of the statutes, however,

Iowa has no separate code of civil procedure. Part are arranged alphabetically, and many other chap- | 3 of the Annotated Code (1888), entitled “Code of ters relate to civil procedure.

Civil Practice," containing 1,415 sections, is practiCalifornia has a code of civil procedure contain-cally a complete code of civil procedure. The judges ing 2,104 sections. This State has adopted the en

of the District Court are empowered to adopt rules tire code system, including a civil code, a code of

as to filings of pleadings or motions, other than as civil procedure, a penal code, a code of criminal provided by the Code, and generally to adopt such procedure, and a political code.

rules as they may deem expedient, not inconsistent Colorado has a code of civil procedure, contain- with the Code. ing 445 sections.

Kansas has a code of civil procedure (L. 1863, ch. Connecticut has no separate code of civil pro- 80), consisting of 732 sections. This code is also the cedure. The practice act (L. 1879, Ch. 83) is the code of Oklahoma. basis of the civil procedure. Many chapters of the Kentucky: The Civil Code contains 767 sections, Revised Statutes, however, relate to matters gener- and covers civil procedure. The Court of Appeals ally included in a code of civil procedure, includ- is empowered to make rules in relation to arguments, ing service of process, place of trial, parties and etc., before it. appearances, pleadings and set-off, practice, evi- Louisiana has a code of practice, containing 1,161 dence, trials, costs, new trials, appeals and execu- sections, and it is a complete scheme of civil protions.

cedure. The Code of Practice was originally enDelaware has no separate code of civil procedure. acted in 1825. The State of Louisiana has also a Title 16 of the Revised Laws is entitled “Of Civil civil code, being a compilation of the substantive Actions in General,” but it is merely a compilation | civil law.

Maine has no separate code of civil procedure. These codes are substantially the same as the codes Practice, except as modified by statute, is under the in California. common law, Various parts of the Revised Stat- Nebraska: Part 3 of the Consolidated Statutes utes (1883), however, relate to matters generally (1891) is entitled “The Codes of Civil and Criminal included in a code of civil procedure; such as com- Procedure.” The code of civil procedure contains mencement of civil actions, attachments, arres, the 1,039 sections. The Supreme Court is empowered limitation of personal actions, proceedings in courts, to make rules not inconsistent with the provisions executions and bail.

of the code. Maryland has no separate code of civil procedure. Nevada has no separate code of civil procedure. The practice in the State, except as modified by Chapter 20 of the General Statutes (1885), being the statute, is under the common law. Various articles General Practice Act of 1869, containing 970 secof the Public General Laws (1888), relate to matters tions, is a complete scheme of civil procedure. usually included in a code of civil procedure, such The Supreme Court is empowered to adopt rules of "pleadings, practice and process at law;" “Ap- practice not inconsistent with law. peals," "Attachments," etc., arranged alphabeti- New Hampshire bas no separate code of civil cally.

procedure. Several chapters of the Public Statutes Massachussetts has no separate code of civil | (1891) relate to civil procedures, such

as "of procedure. Part 3 of the Public Statutes (1882), is actions, process, service of process," "of proceedentitled “Of courts and judicial officers and pro- ings in courts,” etc. The common law practice is ceedings in civil actions," and is practically a com- in vogue except as modified by statute. The plete scheme of civil procedure. The Revised Supreme Court is empowered by statute to establish Statutes enacted that “the courts shall respectively, rules of practice not inconsistent with law ; and the from time to time, make and promulgate uniform practice is largely governed by the rules of the codes rules, for regulating the practice and con- | Supreme Court. (Published in 56 New Hampshire ducting the business of such courts in cases not ex- Reports.) pressly provided for by law."

New Jersey has no separate code of civil proMichigan has no separate code of civil procedure. cedure. The Revised Statutes of New Jersey (1887) The Annotated Statutes (1882), titles 29 to 38 in-contain many provisions in relation to practice, but, clusive, containing 2,685 sections, practically consti- except as modified by statute, the common law tutes a code of civil procedure. The judges of the practice prevails. Supreme Court are empowered to modify and amend New Mexico has no separate code of civil prothe practice in cases not provided for by statute. cedure. The compiled laws (1884). title 33, en

Minnesota has no separate code of civil procedure; titled “Civil Procedure,” contains 624 sections, but but the General Statutes (1891), chapters 61 to 85, it is not a complete scheme of civil procedure, the include practically all the subjects ordinarilly em- first section providing that the common law shall braced in a code of civil procedure, and contain be the rule of practice and decision. 1,595 sections. Chapter 85 is entitled “ The Pro- New York has a code of civil procedure. bate Code," and was enacted in 1889. The judges North Carolina has a code of civil procedure conof the district courts and the Courts of Common stituting chapter 10 of the code of 1883. It is a Pleas are empowered to adopt uniform rules of complete code of civil practice, containing 505 secpractice in civil actions, not inconsistent with law. tions. The Supreme Court is empowered to adopt

Mississippi has no separate code of civil pro- rules of practice not inconsistent with law. The cedure. The chapters of the Annotated Code are practice is largely goverved by the rules of the arranged alphabetically, and many of them relate to Supreme and Superior Courts. matters generally embraced in a code of civil pro- North Dakota, in 1895, adopted a complete code cedure. The Supreme Court may establish rules in system, consisting of a political code, civil code, relation to practice, not inconsistent with law. code of civil procedure, probate code, justices'

Missouri has no separate code of civil procedure, code, penal code, and code of criminal procedure. but chapter 33 of the Revised Statutes (1889), is Ohio has a code of civil procedure, constituting a entitled “Code of Civil Procedure," and contains chapter of the Revised Statutes, and containing 311 sections.

1,746 sections. The probate practice is not conMontana has a code of civil procedure, consist- tained in the Code. The Supreme Court is eming of 3,484 sections, which was adopted February powered to make rules not inconsistent with law. 14, 1895. Montana has also adopted a political Oklahoma territory adopted the Kansas Code in code, a civil code, and a penal code, all of which its entirety August 14, 1893. were adopted in February, 1895. The criminal Oregon has no separate code of civil procedure, procedure constitutes Part 2 of the penal code. I but the acts relating to practice have been arranged as a code in the publication of the Annotated Laws procedure. The criminal procedure is included in (1887), and constitute a complete scheme of civil 208 sections. The Supreme Court is authorized to procedure, in 1,199 sections.

adopt rules of practice not inconsistent with law. Pennsylvania has no separate code of civil proce- West Virginia has no separate code of civil produre. The common law generaliy prevails, and has cedure. The Code of West Virginia (1891) contains been modified by statute perhaps as little as in any many chapters relating to procedure in the courts, State of the Union. Many acts, however, relate to but except as modified by statute, the common law matters usually embraced in a code.

practice prevails. Rhode Island has no separate code of civil pro- Wisconsin has no separate code of civil procedure. cedure, The Judiciary Act of 1893 regulates the Part 3 of the Annotated Statutes (1891) is entitled practice in the courts to a great extent, but is not a " Courts and Judicial Officers and Actions and complete scheme of civil procedure. The common Proceedings in Civil Matters," and contains 1,942 law practice still prevails, except as modified by sections. It is practically a complete scheme of statute.

civil procedure. The Supreme Court is empowered South Carolina has a code of civil procedure, con- to make rules of practice in the Supreme Court, the taining 453 sections. The justices of the supreme Surrogate Courts, County Courts, and other courts court are empowered to make rules of practice not of inferior jurisdiction. inconsistent with the code of procedure.

Wyoming: Title 38 of the Revised Statutes (1887) South Dakota: The code of civil procedure of is entitled “Civil Procednre.” It contains 813 the territory of Dakota became the law of South sections and is practically a complete code of civil Dakota upon its admission as a State. This code procedure, with the exception of the practice of the contains 1,598 sections. It is distinct from the probate courts, which constitutes title 37 of the probate and justices' codes, which, together, con- Revised Statutes, and contains 367 sections. tain 438 sections.

The District of Columbia has no separate code of Tennessee has no separate code of civil procedure. civil procedure. The practice in the District Part 3 of the Code of Tennessee (1894) is entitled largely under the common law. Both the courts of “ The Redress of Civil Injuries,” containing 1,998 law and equity are empowered to adopt rules of sections, and is a complete scheme of civil proce- practice, and the proceedings are largely governed dure, with the exception of probate practice, which by the rules so adopted. Chapter 55 of the Comis contained in another chapter of the code. piled Laws of 1994, entitled “ Pleading and Prac

Texas has no separate code of civil procedure. tice,” contains 80 sections relating to this subject. The chapters of the Revised Statutes (1887) are United States: Chapter 18 of title 13 of the Rearranged alphabetically and many of them relate to vised Statutes relates to civil and criminal procivil procedure. The Supreme Court is empowered cedure and contains 132 sections, of which 98 to make rules of practice for the government of concern civil procedure. By section 914, it is itself and other courts of the State.

provided that “the practice, pleadings and forms Utah: Part 10 of the Compiled Laws (1888) is and modes of proceeding in civil causes, other than “ The Code of Civil Procedure.” Part 11 of the equity and admiralty causes, in the circuit and Compiled Laws relates to procedure in probate district courts, shall conform, as near as may be, to courts. The two parts together contain 1,380 the practice, pleadings, and modes of proceedings sections.

existing at the time in like causes in the courts of Vermont has no separate code of civil procedure. record of the State within which such circuit or Part 1 of title 11 of the Revised Laws (1888) is en- district courts are held, any rule of court to the titled “Courts and Judicial Proceedings,” and con

contrary notwithstanding." tains 918 sections. Many other chapters of the Re- All writs and processes issuing from the federal vised Laws also relate to matters of practice usually courts must be under the seal of the court from included in a code. The Supreme Court is author- which they issue and must be signed by the clerk, ized to make necessary rules of practice in such and if issued from the Supreme Court or a circuit court.

court bear test of the chief justice, or if from a Virginia has no separate code of civil procedure. district court, of the judge thereof. Title 48 of the Code of Virginia (1887) is entitled The Supreme Court, by section 917, is given

' Proceedings in Civil Actions,” and contains 290 power to regulate the practice of circuit and dissections. Many other titles of the code, however, tricts courts in suits in equity or admiralty. By relate to matters usually included in a code of civil section 918, the several circuit and district courts procedure. The practice is under the common law, are authorized to make rules regulating their own except as modified by statute.

practice, if not inconsistent with any law of the Washington has a code of procedure consistirg of United States, or any rule prescribed by the Su1,712 sectious. It includes criminal as well as civil | preme Court. Section 914, adopting the practice

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