court decline to hear the case, on the ground that neither infants nor their guardian can submit a case under section 372 of the code. Opinion by Learned. Cases heard before James and Parker:

Eliza A. Page, adm'x, etc, v. David G. Starr et al.New trial granted, with costs to abide the event.

Barnard Mullen, Jr., by guardian, etc. v. Henry Stevens-Judgment reversed and new trial granted, with costs to abide the event.

Cases heard before Miller and James: Lawrence A. Mattice v. John Manchester-New trial granted, with costs to abide the event.

CORRESPONDENCE.

DISTRIBUTION OF WIFE'S ESTATE.

Editor of the Albany Law Journal:

Having the question of the rights of a husband in the personal property of his deceased wife before me frequently, my attention was strongly turned to the decision of Barnes v. Underwood, in the fourth department, decided in March, 1871.

In order to give correct advice I have endeavored to ascertain what the statute law now is.

There is no doubt that, up to the act of 1867, the husband, on the death of his wife, succeeded to her personal property.

In 1867 the law was modified as to those rights, and by § 11 of chap. 782, p. 1929, the section 79 of the R. S., chap. 6, title 3, part II, was entirely changed. Originally that section entirely excluded the provisions of the general law of distribution from the estates of married women.

By the amendment this section includes the estates of married women dying, leaving descendants them surviving; and provides that the husband of such deceased married woman shall take the same share of her estate as the widow takes of the personal estate of her husband, which would be one-third. Section 30 is then repealed. Section 30 gave the personal property of a married woman to her husband. If they had only modified that section it would likely have better accomplished the object they had in view.

In your issue of September 9, 1871, J. G. Collins refers to the decision of the case I refer to, and asks, "Should not the act of 1867 have repealed both the thirtieth and thirty-first sections referred to, to have the effect the court seems to have given to it?"

I think he meant the twenty-ninth section. That is not repealed, and by the general rule that we interpret statutes, that they alter the law no further than the will to do so is clearly expressed, this continues in full force.

2 R. S. 75, § 29, reads: "A husband, as such, if otherwise competent according to law, shall be solely entitled to administration on the estate of his wife, and shall give bonds as other persons, but shall be liable as administrator for the debts of his wife only to the extent of the assets received by him. If he shall not take out letters of administration on her estate, he shall be presumed to have assets in his hands sufficient to satisfy her debts, and shall be liable therefor; and if he shall die, leaving any assets of his wife unadministered, THEY shall pass to his executors or administrators, as part of HIS personal estate, but shall be liable for her debts to her creditors in preference to the creditors of the husband."

This section is unrepealed, unless some statute has been passed which has escaped my notice. And although it was originally in full harmony with sections 30 and 79, and does not now fully harmonize with the amendment of 1867, yet the result would seem to me to be that section 29 continues in full force, and that in all cases the wife's property is assets in his hands for the payment of her creditors.

If he takes letters, makes an inventory, then only to the amount of property. If he does not take letters the creditors can call on him for payment in full, as he is by the act presumed to have property enough to pay. So far it is harmonious with the amended law, provided the change in section 79 does not take away his liability where he fails to administer. It is believed it does not. Then the only question left is on the last clause, in case of his death; that is, whether assets remaining unadministered go to his executors or administrators as part of his personal estate. Although it would seem as if the section as to distribution was to apply under the law of 1867, yet the provision as to the property of married women leaving descendants modifies or makes a special provision for that case, and the subdivision as to leaving a widow cannot apply to married women.

Is it reasonable to suppose the legislature intended, where a woman had children or grandchildren (often by a former husband), the husband should have onethird, and if she left only cousins or nieces or grand nephews, the husband should take nothing?

If the statute admits of no other construction, then, as absurd as the result would be, what is written is written.

Surely the rights of a husband who had lived forty years with a wife would seem to commend themselves to law-makers as strongly as distant cousins.

With deference, I do regard Barnes v. Underwood as giving a construction not contemplated by the legislature. The tendency heretofore has been to hold, that all the statutes as to married women and their property should be considered as changing the old law only to the extent clearly expressed.

On the reason of the thing, it may be difficult to obtain likeness of opinion or decision; but giving full effect to section 29 leads, in my judgment, to making the personal property of married women that of the husband, except in the case of their leaving descendants them surviving.

This is thus briefly suggested by one who desires to give correct advice.

HENRY BREWSTER,

New York City.

ELMIRA, N. Y., Sept. 11, 1871.

Mr. ISAAC GRANT THOMPSON,

Managing Editor Albany Law Journal: Dear Sir-In your issue of last week, under the heading "Legal News," page 116, I find the following utterly false and libelous item:

"Governor Geary, of Pennsylvania, has removed Assistant Attorney-General McClure for his complicity in irregularities in connection with the collection of certain war claims."

I happen to have been pretty well acquainted with the circumstances of the expose of the Evans' frauds, which are the irregularities referred to in the item quoted. So far from being in complicity with them, Mr. McClure was the very person who first brought the

The Albany Law Journal.

ALBANY, SEPTEMBER 30, 1871.

MANNER OF MAKING AN ARREST.

SHOWING WARRANT.

be very proper in the case of a special officer, as he would not be apt to be recognized as one having the proper authority to make arrests, and his warrant would settle the matter; but the case is widely different with a general officer. In a note to McKalley's Case, 5 Coke, 11, it is said: "the party must have some notification of the officer's business, or killing will not be murder; but, if he be a known public officer, the law will imply notice." Undoubtedly, wearing the accustomed badge of office would be sufficient in the case of a fresh incumbent, and, if he were elected by the people, that ought to be a sufficient notice. Bish. on Cr. Proc., vol. 1, § 648.

Mr. Bennet, in his Leading Criminal Cases, vol. 1, p. 227, seems to doubt the position, that a general officer need not exhibit his warrant when demanded. He says: "But it may be fairly questioned, whether the authorities above referred to mean more than that a general officer is not bound to show the warrant of his appointment, for it is difficult to see why a general officer is not as much bound as any special officer to show the precept authorizing him to arrest a person, if the same be demanded, whereas, there may be good reason for holding, that a public officer is not bound to exhibit his own commission or appointment;" and he refers to 1 East. Pleas of the Crown, 379, where a similar view is taken.

We think Mr. Bennet is mistaken as to the tenor of at least a portion of those decisions. For instance, Arnold v. Steves, 10 Wend. 514 That was a case where the arrest was made by a constable; and all constables were elected directly by the people, and not appointed, and, therefore, there was no warrant of appointment, and none could have been intended. This case was commented upon by Justice Bronson in a subsequent case (Bellows v. Shannon, 2 Hill, 92), and fully sanctioned in the following language: "It seems, however, to be settled, that a regular officer, acting within his proper district, is not bound to show his warrant for the arrest, though it be demanded." And, in The State v. Caldwell, 2 Tyler (Vt.), 214, there is no good reason to believe that a warrant of appointment was intended, instead of the warrant of arrest; at least, the reporter did not so understand it when he wrote the marginal note to that case, for he speaks of the precept of arrest.

We understand that the great object of showing a warrant is to inform the party that the officer has authority to make the arrest, which certainly would

A dictum of Lord Kenyon, C. J., in a case (Hall v. Roche, 8 Durnford and East, 187) which came before the court of king's bench, in 1790, is regarded by Bishop, in his Criminal Procedure, vol. 1, § 648, as being an important point in relation to showing a

warrant on arrest.

Lord Kenyon said: "If it be established as law by the cases cited, that it is not necessary to show the warrant to the party arrested who demands to see it, I will not shake those authorities; but I cannot forbear observing, that, if it be so established, it is a most dangerous doctrine, because it may affect the party criminally, in case of any resistance; and, if homicide ensue, the legality of the warrant enters materially into the merits of the question. I do not think that a person is to take it for granted, that another who says he has a warrant against him, without producing it, speaks truth. It is very important that in all cases where an arrest is made, by virtue of a warrant, the warrant, if demanded, at least should be produced."

We have given this dictum a brief examination, and fail to see the reason for some positions there assumed, for, at the time it was made, it had been the law for a long time, that an officer could arrest without warrant for a felony, after it had been committed, upon reasonable grounds of suspicion, and such is the law now, in both England and the United States. If an officer has authority to make arrests without warrant in such cases, why should he be obliged to show it when demanded, when acting in his district, because he has it in his possession, in order to make the arrest lawful?

Certainly, it has not been considered dangerous doctrine that an officer could arrest for felony without a warrant, nor do we see, in case of resistance to an arrest for felony, why the fact that the officer does not show his warrant should affect him criminally while acting in his proper district or jurisdiction, inasmuch as, with or without warrant, he has the same

authority to make the arrest. It is true, if homicide should ensue in any case of resistance when a warrant is necessary to clothe the officer with proper authority, the legality of such warrant would become a material question, but how could the fact of refusing to show it when demanded affect its legality?

If it was legal in the officer's pocket it could not be made illegal by showing it when demanded; besides, who is to be the judge of its legality? certainly, the party arrested should not be, for he would not be likely to be impartial, and the officer would not put a very high estimate on his judgment. But, to have any logical force, the showing of the warrant when demanded must be for the purpose of enabling the party to form some judgment as to the authority of the officer to act in the matter; yet, we are here supposing the officer to be acting within his district or jurisdiction, and, therefore, his official character presumed to be known to every one. Therefore, the officer should not be obliged to show his warrant for the purpose of giving information as to his authority to make arrests, in general, and if it be demanded for the purpose of ascertaining for what the arrest is made in that particular case, then the substance of the warrant can be stated and no injustice done to the prisoner.

We think, moreover, with all due deference to Lord Kenyon's great ability and learning as a judge, that when a known general officer, acting in his own district, says he has a warrant against another, he should be believed, and if a general officer states what is false, and makes the arrest without legal authority, he can be sued for false imprisonment, as in other cases, when he exceeds his authority.

But, if he intended his reasoning to apply exclusively to cases where the officer must have a warrant in order to justify an arrest, as in misdemeanors, then it seems to be more appropriate, for although we maintain that a general officer is not bound to show his warrant in any case, even though it be demanded, when acting within his jurisdiction, as a matter of strict legal obligation, yet we do not deny that in many cases it may be prudent to produce the warrant if demanded, so as to leave the prisoner no excuse for resistance. 1 Chitty Cr. Law, 51.

In Commonwealth v. Cooley, 6 Gray, 356, Merrick, J., says: "The accused is required to submit to the arrest, to yield himself immediately and peaceably into the custody of the officer, who can have no opportunity, until he has brought his prisoner into close custody, to make him acquainted with the cause of his arrest, and the nature, substance and contents of the warrant under which it is made, and that the officer is to state the nature and substance of the process which gives him the authority, and if it is demanded of him to produce and exhibit it to his prisoner for his perusal that he may have no excuse for resistance." We of course cannot concur in this last remark, that the warrant must be exhibited for the

reasons we have given above, and for the additional reason that the authority which the learned justice gives for it (1 Chitty Cr. Law, 51) does not reach to that extent. Chitty refers to the doctrine of Lord Kenyon, using his language, and adding to it the words quoted above, "that he may have no excuse for resistance," does not state it as settled law, but on the contrary, in the commencement of the same paragraph, says: "It is laid down that bailiffs or constables, if they be sworn, and commonly known to be officers, and act within their own precincts, need not show their warrant to the parties whom they come to apprehend, notwithstanding they demand the sight of it."

Wherever the question has squarely arisen in the United States courts, as far as we have examined, it has been decided as we have indicated. It should be understood, however, that the officer is bound to explain to his prisoner the cause of his arrest or the nature of his warrant. The explanation must follow the arrest. They cannot occur at the same instant of time. They are obviously successive steps.

Judge Bronson said, in Bellows v. Shannon, above cited: "All the books agree that the officer is bound to give the substance of the warrant or process, to the end that the party may know for what cause he is arrested, and take the proper legal measures to discharge himself. This is, however, when the party submits to the arrest, and not when he makes resistance before the officer has time to give the information. Although the officer is not bound to exhibit the warrant, especially when there may be reason to apprehend that it will be lost or destroyed, yet, I cannot doubt that it is his duty to inform the party, where such is the fact, he has a warrant, or to make known in some other way that he comes in his character as an officer to execute legal process, and not leave the party to suppose he is assailed by a wrong-doer. The contrary doctrine would be likely to lead to violence and bloodshed. I do not say that the officer is bound to declare the particulars of his authority before he makes the arrest, or that it may not sometimes be proper to lay hands on a party before a word is spoken; but either before or at the moment of the arrest the officer ought to say enough to show the party that he is not dealing with a trespasser, but with a minister of justice." These rules are so clear, and at the same time so just, that they form a safe guide to any officer who follows them in the execution of a warrant.

487.

The governing principle which enters into the question here discussed, and in fact in all questions of a kindred character, is that perfect submission to a known public officer is first required, because it is presumed that a party will suffer no wrong by so doing, and that he will have ample opportunity to investigate the cause of his arrest after his submission, not only so far as the officer is immediately concerned, but as to other parties in a court of justice. The same authority which directs an officer to execute should at least inquire into the manner of arrest when attention is called to it by a prisoner.

The officer is not only a responsible and known person, he is moreover under legal liabilities by reason of his office, and is immediately controlled by the courts of justice.

On the other hand, if one not known to be an officer attempts to arrest a person, the latter is put at once upon his apprehensions, and is instinctively impelled to resist the indignity. 1 Bish. Cr. Pro., § 649.

It is imprudent in an officer to allow a prisoner to take a warrant into his hand to peruse, and if the latter refuse to return it, he may use "just so much violence as is necessary to retake it and no more." Rex v. Milton, Moody & M. 107. In no case is an officer required to part with the possession of his warrant whether acting within or without his jurisdiction for that is his justification. 1 East. P. C. 319.

courts were open to him, and by selecting the State court it was insisted that he had waived his right of demanding the judgment of the federal court. The court said: "It is a principle well settled that a party may waive a constitutional or statutory provision made for his benefit. And the plaintiff, by voluntarily submitting his cause to the State court and asking the exercise of its jurisdiction, has waived the right to invoke the jurisdiction of the federal court. The jurisdiction of the federal courts in the case would have been founded entirely upon the character of the parties, and not upon the nature of the cause. None of those reasons, therefore, exist, which are generally relied on where that jurisdiction is founded upon the nature of the cause, to show the necessity for a supervisory control, on the part of the federal tribunals, over the decisions of the State courts. Nor does the case stand upon the same ground as where a citizen of one State is sued in the courts of another State. For, in the latter case, there is reason for saying, that, unless congress could authorize the removal, the judicial power of the United States might be eluded, at the pleasure of the plaintiff, and the non-resident defendant be deprived of that security which the constitution intended in aid of his rights. But no such reasons can be urged in favor of the act under consideration; because, assuming that the State and federal courts had cognizance of the matter in controversy between these parties, the plaintiff has made his election of the State tribunal. He was well aware, at the outset, that he

COURTS.

The supreme court of Wisconsin has recently made a decision in the case of Whiton v. The Chicago & North-western Railway Co., 25 Wis. 424, that is worthy of attention by reason of the importance of the question involved. By the act of congress of March 2, 1867 (14 U. S. Stat. at Large, 558), it was provided that where a suit was pending then or thereafter in any State court, between a citizen of the State in which the suit was brought and a citizen of another State, and the matter in controversy exceeded five hundred dollars, such citizen of another State, whether plaintiff or defendant, might cause such suit to be removed to the circuit court of the United States. In the case cited the plaintiff, a non-resident of Wisconsin, had brought suit in the courts of that State, but afterward, for reason or caprice, undertook to remove it to the United States circuit court. validity of the act, in so far as it permitted a plaintiff to transfer the cause, was directly presented and fairly met by the court. It held the act, in this extent, to be invalid, and the holding seems to be well supported by the arguments brought to bear, as well as by the common sense of the matter. The plaintiff, being a citizen of another State, had the right, in the first instance, to elect the former for

The

made his choice of the State court to decide the controversy, let him abide its decision. What earthly ground is there for saying that the federal government may interfere, under such circumstances, and divest the State court of a jurisdiction already attached at the instance of the plaintiff? There is no principle better settled, than that, where two or more tribunals have concurrent jurisdiction over the subject-matter and the parties, the court that first acquires it can hold fast on the case to the exclusion of the concurrent court. And, although this principle has been departed from, under our complex system of government, in the case of a non-resident sued in a State court, or where the nature of the controversy gave the federal courts final jurisdiction, yet this furnishes no reason for disregarding the principle where the non-resident plaintiff has seen fit to invoke the jurisdiction of the State court. In that case let him abide the consequences of the election thus voluntarily made, like any citizen of the State. For certainly "all the purposes of the constitution of the United States will be answered by the creation of federal courts, into which any party, plaintiff or defendant, concerned in a case of federal cognizance, may carry it for adjudication." And when the nonresident plaintiff, having the option, has appealed to