« AnteriorContinuar »
Bions, calculated on the corpus of the estate in each ca- | want of her signature. We have held, and I think pacity. N. J. Ct. of Errors & Appeals, Nov., 1886. Pit- | rightly, that where a wife has once had her bome with ney v. Everson. Opinion by Beasley, C. J.
her husband in his dwelling, he cannot deprive her ot GUARDIAN AND WARD-SETTLEMENT-FALSE REP
that vested right by driving her out. But here the RESENTATION BY WARD AS TO AGE-LIABILITY OF
home interest never vested. The law was made to GUARDIAN.-An infant ward, falsely representing him
protect actual homes, and pot mere possibilities-still self to be of age, made a settlement with his guardian,
less to change by theory into a home that which is taking for his share certain building lots at a valua
actually the reverse. In the present instance the section. He executed a discharge to his guardian. No
ond wife was made so in good faith, and had some advantage was taken of the infant in such settlement,
natural equities in the premises which would not and by it the guardian was induced to surrender a cer.
probably have been legally recognized without the contain security he had taken for his own protection in
veyance. But if the case had been worse, and the managing the estate. Held, that the ward can not now
house occupied by the husband in a life of sbame and disregard in a court of equity his discharge, and call
indecency, it would, I think, be a very singular rule upon the estate of the deceased guardians to account.
of law which would protect it as a homestead, and This case does not present an instance where a guardian
treat it as a home, and especially the home of the abhas settled with his infant ward without giving him the
sent wife. The occupancy is one which she actually full amount of what is due to him. In such case the
repudiated, and which, in the absence of any show. guardian would be equitably called upon to acoount
ing, she would be presumed to repudiate, and she for the balance, unless some exceptionable feature
could not decently do otherwise. But to hold it to marked the transaction. But here the result of the
have been her home in the eye of the law when she settlement was to discharge Blinn from all liability to
purposely and very properly deteriniped to reside Hayes as surety for Randall's conduct. It stripped
elsewhere, is not, I think, to carry out the great and Hayes of all right to proceed against Blinn subse
worthy purposes of the homestead laws. It must be quently. There is nothing to show that Hayes could
remembered, not only that the character of any propnot have made in money the amount due from Blinn
erty as a homestead depends on intention, but that it to him. But Parker was in haste. He wished to pos
may be entirely destroyed by a removal of residence. gess his property. Had he waited till he was of age,
There is notbing in the law to prevent such removal the suit agaiust Blinn might have been determined.
at any time, and after it the property stands, like any But by the untrue assertion of his age he drove Hayes
other property, liable to sale or any other disposal by to prenature action, and the result was that Parker
the owner at his pleasure. Under our laws the sale by chose to accept the benefit of Bliun's contract with
a husband whose wife is a non-resident carries the Hayes in the shape of a settlement already mentioned.
property free from any right of dower. Actual nonSo far as regards the settlement itself, there is no evi.
residence in such case, in spite of the marital relation, dence of any unfairness on the part of any one. The
outs off any control over the sale of a complete title. real property seems to have been fairly valued. There
There is as much reason for the confinement of the was no concealment of the condition of the assets of
homestead law. Marital rights are mutual. The State of the estate; and although no itemized account had
Michigan, had Hitchcock never married respondent, been rendered from Hayes to Parker, yet they all acted
could not have aided him in compelling his wife to as if they knew the condition of affairs, and I have no
join him, or exercised any control whatever over the doubt they all substantially did know it. In view of
persons or conduct of the absent children. It might the manner in which Hayes assumed this trust, of the
divorce the parties for the wife's desertion, but it could manner in which he was compelled, in a degree, to de
not regulate their family relations while pot divorced. pend upon others in the management of the assets,
Until divorced, if the first wife could, in the present aud regarding the age and appearance of his ward. instance, prevent the sale of the house, she could just and the undiscoverable deception practiced by him
as well do 80 while actually doing all she could to upon Hayes, and the fact that the settlement was
make a family home impossible. Her merits in the fairly made, and that by its operation Hayes is de
one case, or demerits in the other, would not count at prived of all remedy over against his burety, I think it !
all in the decision. The law would be grossly tyrapwould be inequitable to permit Parker to disregard his
nical if it tied the husband's hands in the one case at executed discharge of Hayes, ond now call upon his
least, and it cannot be possible that such conseestate to account. N. J. Ct. of Errors & Appeala, June
quences could have been designed by the ConstituTerm, 1886. Hayes v. Parker. Opinion by Reid, J.
tion. It was designed to protect those wbo had subDixon and Whittaker, JJ., dissent.
jected themselves to its laws, and noted in reliance on
them, but not to treat as bomes what are not homes, HOMESTEAD-RIGHTS OF NON-RESIDENT WIFE-IL
or give powers to non-residents which could not, unLEGAL SECOND MARRIAGE IN ANOTHER STATE.-If a
der any circumstances, be of any use to them personhusband, living with his wife and children in another
ally. Mich. Sup. Ct., Jan. 20, 1887. Stanton v. HitckState, leaves them, and comes to Michigan, where he
cock. Opinion by Campbell, C. J. illegally marries another woman, and lives with her there as his wife until his death, the legal wife never LANDLORD AND TENANT-FORFEITURE-RE-ENTRY coming to Michigan, the latter acquires no homestead --CONDITION BROKEN-WAIVER.- A lease provided rights in property acquired by the busband in Michi that in case of a failure to pay rent, taxes or royalty, gan, and occupied by bim as a homestead. It appears that the lessor might, “without any previous notice expressly that it was the actual and continued home whatever,'' re-enter, repossess and retain, and again of his second wife and family, and that all the domeg. enjoy the demised premises; and that such re-entry tic arraugements and purposes were with this in view. and possession may be made by “entering upon a part The first wife never contemplated it as her and her of the premises in the name of the whole," and that husband's joint home, and would no doubt have repu “ from and after such re-entry made, this lease, and diated any such idea. After this marriage the first every part thereof, shall cease, and be null and void.” wife had no purpose of living with him at all. She | Held, that the lessor had the right, and it was his duty never looked upon or used or sought it as a home, and in the first instance to resort to the mode of re-entry never got the homestead rights of a surviving widow agreed upon, and if prevented in so doing, it was his in it. The only right now set up is the right to have privilege to adopt any other lawful mode, and take the disposition of it made by the husband avoided for the statutory or any other appropriate legal proceedings, to obtain possession. He was not however pre erly constructed highway, evidence that plaintiff vented from taking possession under the terms of the knew the nature and location of the road, and that lease. If there was no provision in the contract as to some hazard was incurred in attempting to pass over the mode of making known the election of a forfeit, it it, does not conclusively show that it was negligent would bave to be done in accordance with the recog for him to make the attempt. (1) It is not a univer. nized rules of the common law as modified by the sal rule that the defendant is excused from liability statute. We think the record shows the possession of merely because the plaintiff, knowing of the danger the lessor rightfully and not forcibly taken. “The caused by defendant's negligence voluntarily incurs party entitled to the possession of property has the that danger. If the defendant has 80 acted as right to take it in any manner that does not involve a to induce the plaintiff, acting with reasonable breach of the statute to take away that right.” Hyatt prudence, to incur the danger, or if plaivtiff by V. Wood, 4 Johns. 150; Jackson v. Farmer, 9 Wend. defendant's negligence is placed in a situation 203; Low v. Elwell, 121 Mass. 315; Mussey v. Scott, 32 of peril, to escape which he voluntarily incurs Vt. 82; Sterling v. Warden, 51 N. H. 217; Stearns v. another danger, the defendant is liable, although the Sampson, 59 Me. 568; Kellam v. Janson, 17 Penn. St. plaintiff may not in the emergency have pursued the 467; Overdeer v. Lewis, 1 Watts & 8. 90; Page v. De course which ordinary prudence would have dictated. Puy, 40 Ill. 506; Latimer v. Woodward, 2 Doug. The danger in this instance consisted in the liability (Mich.) 369; Harrington v. Scott, 1 Mich. 17; Seitz v. | of driving off the embankment, because it was more Miles, 16 id. 456; Hoffman v. Harrington, 22 id. 52; | or less obscure by the water flowing over it. If Sopher Fariner v. Huuter, 45 id. 337. The mere receipt of negligently incurred this danger, that is to say, if he rent due before forfeiture, after the lease had been was not acting as a reasonable man would do under forfeited, will not be a waiver of the forfeiture. Jack the circumstances, the plaintiff cannot recover. It son v. Allen, 3 Cow. 120; Stuyvesant v. Davis, 9 Paige, | should be remembered that the risk of driving off the 427; Bleecker v. Smith, 13 Wend. 533. And certainly | embankment, when obscured by the overflow of water the mere payment of rent or royalty, unless fully was no greater than the risk of driving off in a dark paid, would not waive the forfeiture, as it would be a night. In one case the vision is obscured by water, continuing cause of forfeiture. Tayl. Landl. & Teu. and in the other by darkness; and it would hardly be 500; Alexander v. Hodges, 41 Mich. 691; Doe v. Wood claimed that it would be negligence per se to attempt bridge, 9 Barn. & C. 376; Doe V. Allen, 3 Taunt. 78; to drive over this portion of the highway in a dark Doe v. Jones, 5 Exch. 498. Mich. Sup. Ct., Jan. 13, night. Whether it would be negligence in a particu1887. Pendill v. Union Mining Co. Opiuiou by Sher lar instance would depend upon all the facts and cirwood, J.
cumstances, which should be submitted to the jury. LIBEL-CHARGE OF OVERBIDDING.–This court has
Fox v. Glastenbury, 29 Conn. 204, disapproved. The defined a libel as being a false and malicious publica
correct principle in cases of this kind is laid down in tion of a person, which exposes him to pub
Kelly v. Fond du Lac, 31 Wis. 179, 187, as follows: lic ridicule, batred or contempt, or hinders vir
“The fact that a traveller sees an obstruction or other tuous men from associating with him. This pub.
defect, and knows its dangerous character, is not conlication is by a retail seller concerning wholesale
clusive proof that he was negligent in attempting to sellers of liquor. It charges that the plaintiff, moved
pass it. A person, who in the lawful use of a highway to anger because the defendant ceased to be a pur
meets with an obstacle or other cause of insufficiency, chaser from him and his partuer, overbid him in the
may yet proceed if it is consistent with reasonable care matter of a lease, and compelled his removal. The
80 to do; and this is generally a question for the jury, sting of the publication is that this act was born of a
depending upon the nature of the obstruction or indesire on the part of the plaintiff ratber to get the de
sufficiency, and all the circumstances surrounding the fendant out of, than to get himself into, a particular
party.” The principle here stated was recognized in place of business. But to overbid is permissible in
Bronson v. Town of Southbury, 37 Conn. 199. See also law-permissible even when the motive is to supplant
Mahoney v. Metropolitan R. Co., 104 Mass. 73; Thomas
v. W. U. Tel. Co., 100 Mass. 157; Horton v. Ipswitch, another in the possession of an advantageous location and an established run of custom. Of course these
12 Cush. 488; Hubbard v. Concord, 35 N. H. 52. If the acts fall far short of the requirements of the golden
danger is known, and can be easily avoided, & peril rule, as do many others in the heat of competition of
voluntarily and uvnecessarily assumed may constitrade. The publication is a hostile comment upon
tute such contributory negiigence as would preclude a the manner in which the plaintiff used, within the
recovery. City of Erie v. Magill, 101 Penn. St. 616; pale of the law, the power inseparable from the pos
Schaefler v. Sandusky, 33 Ohio St. 246; Wilson v.
Charlestown, 8 Allen, 137; City of Centralia v. Krouse, session of money. It is a declaration, that in his eager
64 III. 19; Parkhill v. Brighton, 61 Iowa, 103; Cook v. ness to accumulate be disregards the interests of
Jobuson, 58 Mich. 437. The cases cited above were others. The public will read the circular, and disapprove of the plaintiff's methods in business, but it does
mostly cases of defective sidewalks, where the danger
could easily have been avoided, and no risk incurred. pot impute to him any act wbich will expose
In the case before us the record does not disclose any him to their hatred or contempt, or will cause them to separate themselves from him
other way which the plaintiffs bailee could have taken
in the sense or to the degree required by the law of libel. In
to avoid the danger of crossiug upon the embankment. the absence of special damage he has no cause of ac
(2) There was no error in excluding testimony to prove tion. Conn. Sup. Ct. of Errors. Donaghue v. Gapy.
that Sopher's wife was in ill health, and his anxiety to
reach home. It could not be considered as an element Opinion by Pardee, J.
of proof to exclude him from incurring risks which he MUNICIPAL CORPORATIONS-POWER TO PARK AND
might not otherwise have taken, or measuring the SOD CENTER OF STREET.-Under the general power to
care wbich a prudent man would have exercised unimprove streets, the city council have a discretionary
der the circumstances. Emergencies may sometimes power to god and park the center of a street where it
be given in evidence, and will justify what otherwise is not needed for travel. III. Sup. Ct., Jan. 25, 1887.
would be considered a rash and indefensible act; such Murphy v. City of Peoria. Opinion by Craig, J.
as those of an engineer of a train of cars standing at NEGLIGENCE-CONTRIBUTORY-KNOWLEDGE OF DE his post in the endeavor to save the lives of the pagFECT IN HIGHWAY.-In an action against & township sengers or others when a collision in imminent, of a for damages resulting from a dangerous and improp- person rushing iu front of an engine to save the life of a child, of a person placing himself in a position of requests are grossly burdened with totally immaterial danger to save the life of another. Eckert v. Long | matters. Assuming an affirmative finding, is the fact Island R. Co., 43 N. Y. 502; Linneban v. Sampson, 126 | found because the court deemed it material or because Mass. 506; Cottrill v. Chicago, etc., R. Co., 47 Wis. 634; counsel deemed it material or desirable, and therefore Pennsylvania Co. v. Roney, 89 Ind. 453. But mere ill. compelled the court to act upon it in order that he ness in a family, which does not hinder a person from
might argue the force and effect thereof on appeal? the prosecution of his ordinary business, or prevent Before the present section 1023 was adopted no find. him from leaving home to perform the ordinary du- | ing aliunde the decision was conclusive on the parties ties of a constable, as was this case, cannot be consid in another suit, unless necessary to sustain the point ered as a circumstance attending the transaction decided by the decision and judgment. Quincey v. which the jury would be authorized to consider in de White, 63 N. Y. 370; S. C., 5 Daly, 44, 327. See also 53 termining whether he acted as a prudent man would N. Y. 504. in attempting to cross or in crossing the stream in But what about Bissell v. Kellogy, 60 Barb. 617; afquestion. Hyde v. Jamaica, 27 Vt. 443, 464. Mich. firmed, 65 N. Y. 432, where it was held that a fiuding Sup. Ct., Jan. 20, 1887. Harris v. Clinton Township. by a judge on the settlement of a case on appeal of the Opinion by Champlin, J.
fact of usury when it was not covered by his formal findings in the first instance, i. e., his decision, was
held res adjudicata when the same point arose in a CORRESPONDENCE.
later suit? The first case is reported at 39 N.Y. 28, Kel. logg v. Adams. Is this opinion of Judge Talcott on res
adjudicata to be sustained per force of this outside findFINDINGS AS RES A DJUDICATA.
ing as an estoppel per se? Or is it merely evidence Editor of the Albany Law Journal:
that the question of usury was a point necessarily inFindings by referees and by the court on trials with volved and actually litigated and decided as an inoiout a jury, on special requests, when not incorporated dent of the decision and judgment, which were silent in the formal decision — are they res adjudicata in a respecting it. So that it is the decision and judgment subsequent suit between the same parties where they after all, and not this outside finding, wbich was res were material to the issues raised by the pieadings in adjudicata? In other words, was this outside finding the first suit, but neither necessary nor material to evideuce conclusive by proving, just as other evidence support the final conclusion attested by the judgment? | migbt properly be received, tending to show that the
I bave been greatly puzzled over this question, and question of usury was litigated and decided, or is it, suggest to the profession that unless this matter of per se, res adjudicata? practice has been formally settled, it may be well Perhaps a distinction may be taken between such a there should be some legislation on the subject.
finding under tbe practice as it then existed, and that The following suggestions would seem to bear on under the present Code ($ 1023), the court or referee the point: Section 1023 of the Code provides that a on the settlement of a case might make “further findparty may submit to the trial judge or referee proposi- ings" to sustain his former judgment, while he is now tions of law and fact which he deems established by bound to pass one way or the other on every proposi- . the evidence; and it is made the duty of the judge or tion submitted. referee to pass on them, indicating his actiou in the Are these special findings any part of the judgmentmargin against each respectively. A refusal to pass roll, if they are on file, when it is made up? Do they on a request one way or the other may doubtless be | in any way involve the merits or necessarily affect the remedied by requirement to that effect by the court, judgment? $ 1237. I think they are not usually atcertainly at General Term on special application. It tached to the roll. But ought they to be attached? If may well be doubted, under rule 32, if the judge or yea, why not attach the opinion too, if that is on file? referee, on his own motion, or even on special applica- | But are these findings necessarily “on file" at all? tion to him, after his decision, could thus pass on a re They may be handed back to the attorney by the quest. Gormerly v. McGlynn, 84 N. Y. 284; Bame v. judge or referee. What if he doee jiot file them? And Neus, 2 Civ. Pro. Rep. 185. The act of refusing, as what if he does file them? In the latter case the clerk well as the affirmative act of finding, after decision, might attach them, and then they would appear in the on a request not theretofore passed on, might, accord | roll, not per force of any judicial act, but solely being to circumstances, be construed as a finding nega cause the attorney filed thein. Here they would be tively. Hence perhaps the only method of reaching res adjudicata, if at all, by the act of the attorney, and such a point would be through application at the Gen not because of the action of tbe court. eral Term to compel action on the request, according And again: Suppose they never were filed at all, aud to the practice before the present Code; for until the the case went po further, i. e., that there was no aprequest is acted on in some way, the case is not in peal. Have these special fiudings any force to conreadiness to be heard on appeal, i. e., the aggrieved clude the parties in another suit when they slumber party cannot be heard, even upon the materiality of in the attorney's pigeou-holes? In other words, is it the proposition. Goettling v. Beihler, 6 Civ. Pro. Rep. possible for a judge, by filing them, to give them a 324; Jones v. Cowing, 82 N. Y. 449. Very possibly the force and effect, which they would not have if they General Term might refuse to require action on the had been handed to the attorney and kept by him? In proposition, and that would perbaps evable the ag other words, have they any force or effect at all, exgrieved party to take the point directly to the Court cept as a mere matter of practice on appeal? of Appeals. But as to this, quere.
I do not wish to put conundrums to my brethren. Again: Is there necessarily involved in a finding on except so far as they may tend to our common goud, such special request any judicial action that it is per But I hope that somebody has been able to bring order se material either to the issue ou the pleadings or to out of this confusion. the point decided by final legal conclusions ? On the Once more, and this is a pure conundrum, more esone hand, it may be said that the court is bound to especially for Mr. T., and I think I may add, his heirs, find the fact or hold the legal proposition if well executors, administrators, successors and assigns, ipfounded in the evidence, whether it be material or cluding the court and the bar, as privies in this unjmmaterial, because the Code ($ 1023) is mandatory on fortuuate estate: How do tbese provisions of section the point. Goettling v. Beihler, supra.
1023 teud, as he says iu his note, to simplify practice? Uudoubtedly this is the wiser practice, unless the
Ct., Feb. 23, 1887. “Wood” and “Woods" are not; Editor of the Albany Law Journal:
Neiderbuck v. State, 21 Tex. Ct. App. 320. I received to-day (March 3) No. 1 of vol. 4 of the DE MINIMIS. Omission of “to” before “kill and New York State Reporter. It is dated as of March. | murder," fatal to indictment. Jones v. State, 21 Tex. 15, and contains solely cases in the Supreme Court | Ct. App. 349. But neglecting to cross the "t" in arising in the First and Fourth Departments with a
guilty will not vitiate a verdict. Partain v. State, Tex. single case from the Third Department. In 176 pages Ct. App., Oct. 27, 1886. 49 cases are reported. Of these I find that twenty-nine The Rev. Mr. Powell, of Herkimer, the spiritual adcases have already been reported in full in 41 Hun, viser of the late Mrs. Druse, says he thinks "the devil which appeared six weeks ago or January, 15; one case will have those reporters." We quite agree with him, reported in abstract in 41 Hun, here appears in full but we thought the gentleman-Mr. Powell we mean Eighteen cases reported in Hun, only by title and re -was a Universalist, who did not believe in that sort sults, are here reported in full. But nineteen cases to | of thing. Perbaps his acquaintauce with Mrs. Druse be found in full in Hun, have not yet been reported in has worked a change is his belief. the New York State Reporter.
“The reception room," said the chief clerk of a large These figures may suggest sume reflections to lawyers | law firm to a Tribune reporter, “has many queer peonow groaning under the multiplication of Reports audple in it at times. There are a set of cranks of the Reporters.
most annoying kind, who make the rounds of the leading law firms in the city. They are born litigants. Some of them have money; but most of them have
none. Whenever a man comes into an office for the NEW BOOKS AND NEW EDITIONS
first time and unrolls an old map or any other docu.
ment, with the yellow tint of age on it, the guns are at FRY'S QUESTIONS AND ANSWERS.
once trained on him. Mistakes are sometimes made. This work, by George Gardiner Fry, is a sort of legal It does not always do to size up a man from appear“pony," desigued, we should infer, to assist young ances. My resiguation was asked once because I sat men in passing examination for the bar. It purports to down hard on a client who could sign his check for a contain about 1,000 questions actually propounded to million, but looked like a tramp. That's one serious law students on such examinations, with answers. Gen- drawback; millionaires do not always look like it. The erally the answers seem to be right, but not always, as people who own half the city and can prove it, and for example: “Adultery is generally the only ground those who are interested in inventions and patents are for total (sic) divorce." It generally is not. After the hardest to get rid of. If they can get hold with an stating that generally a marriage may be formed with eyelid they will never let go. They have plausible out a ceremony, the author says: “In the State of stories all, and insist on seeing the head of the firm. Maryland however the marriage contract must be sol. Sometimes they do get an audience, and as long as emnized by a priest,” Maryland is not alone in this. they pass they outer gate, he thinks they are all right, On the whole, this is a good pony. Published by S. and takes an interest in the business. One smart fel. K. Strouse & Co., New York.
low got us to bring a suit for damages against a wellknown business man. Our client bad documentary
proof that made a splendid case, and would have stood BLACK'S CONSTITUTIONAL PROHIBITIONS.
in any court, but when the case came to trial, it was This essay, by Mr. Henry Campbell Black, of Wil shown that the people and facts were drawn from his liamsport. Penn. is confined to the subiects of the ob- own imagination, and the case was thrown out of ligation of contracts, and retroactive and ex post facto
court. It was the tbird time he had fooled a lawyer, laws, and gives a very good treatment, in some three but as he paid for his fun, no hearts were broken. The hundred pages, of this important branch of constitu women clients of this kind are the most troublesome. tional law. Some thirteen hundred cases are cited. They iusist on seeing the bead of the firm without Published by Little, Brown & Co.
telling their business to any one else. To tell them a little lie about his being out is no good, for they will
sit the whole day if necessary to test the statement. COURT OF APPEALS DECISIONS.
There are three or four women who have money, and
spend their time going the rounds of the prominent THE following decisions were handed down Tues
lawyers, trying to enlist them in some imaginary suit. 1 day, March 15, 1887:
They will put up a retaiver if asked to, but woe be to
the man who takes it. A trip to Europe is the only Judgment reversed, new trial granted, costs to abide
means of escape. They will bring a suit on the slightevent-Davis Sewing Machine Company, respondent,
est pretense, but usually there is no ground for comv. William J. Best, receiver, appellant.- Judgment
plaint. Tho desire to litigate seems to be overpowermodified in accordance with views set out in the opin
ing. One of the women visits the courts regularly, ion, and as so modified affirmed with costs of this ap
has picked up a good knowledge of law, aud can ask peal, to be paid out of the estate-Mary Jane Ward,
questions that would make the oldest practitioner executrix, V. De Witt Clinton Ward, executor.
scratch his head. Nearly all these peculiar people are Judgment affirmed with costs. The recovery by the
eccentric or mentally unsound, and most of them State in the courts below was $42,159.75 for taxes, pen
really believe they have been injured and are entitled alties, extra allowances and costs-People, respond
to redress. At one time there were several fine-lookents, v. Horn Silver Mining Company, appellant.
ing women who sought to get an audience with firstMotion for reargument denied with conte-Lahr, re
class lawyers, as well as business men, for blackmail. spondent, v. Metropolitan Elevated Railroad Com
ing purposes, and it is a rule in some offices that pany, appellant, aud Wagner, respondent, v. Same, ap
strange women are never seen by any member of the pellaut.
firm except when witnesses are present. It is a pecu
liar thing that women clients who have legitimate NOTES.
business in court form a violent antipathy against any
one who is opposed to them, and do not hesitate to IDEM SONANS. “Celestia” and “Celeste;" queg- make known their inteuse hatred by word and mantion for the jury; Com. v. Warren, Mass. Sup. Jud. ner."
The Albany Law Journal.
Mr. Ernest J. Miller, of this city, read a paper last week before the Albany Institute on “ The Hollapder and the Puritan," in which he exalted the
former at the expense of the latter. Mr. Miller is a ALBANY, MARCH 26, 1887.
good writer and an excellent historical scholar, but
we regret that he does not rise superior to the parCURRENT TOPICS.
row-minded prejudice against the Puritans. They
were a bigoted set, no doubt, and the Hollanders THERE was a hearing on the Civil Code before
who settled New York were a kind, easy-going, tolT the Senate judiciary committee last week, in
erant body, much superior to the Puritans in freewhich Mr. Moak appeared for the opposition, and
dom from superstition and in religious tolerance.
(The Dutch could persecute, however; witness their Mr. Field, Mr. Wm. W. Cook, of New York, author of the recent work on “Stock and Stockholders,"
treatment of DeWitt and Barneveld.) But their reand the editor of this journal spoke for the bill.
spective environments should be considered. The Mr. Cook's remarks will be found in another col
Albany Hollanders, intent on trade and gain, made
friends with the Indian, and got rich in selling him umn. The New York City Bar Association had sent out a circular begging people to work and vote
whiskey for furs. The Puritan fleeing for his life against the Code. This precious document states
and his religion, very much in earnest in spiritual that “a canvass of the members of the Senate from
matters, saw a red fiend behind every tree in the this city shows that they will vote in accordance
forest, and the devil under every pleasure. He with the expressed wish of their constituents and
wrested a precarious living from a scanty soil, while leading members of the city bar.” Which must
the Hollander grew fat on the rich bottom-lands of mean that some of them will vote for the bill. Also,
the Hudson. Mr. Miller raises the old cry of “witchthat “the responsibility for the success or defeat of
craft.” The Puritans in that matter were no better the Code rests with the bar of this city.” Signed,
and no worse than their English contemporaries and Theo. Dwight and J. Bleecker Miller. Arcades
the general civilized world. Witchcraft was perseambo! There's cheek for you! Mr. Moak in his
cuted all over Europe. Sir Matthew Hale hanged address had the courage to say that in his opinion witches. Sir Thomas Browne fervently believed in it was “a New York city fight between those who
witchcraft. The wisest man who ever lived in were friends of Mr. Field and those who didn't like
England - Francis Bacon - did not deny his belief him.” He hit the nail on the head so far as the op
in it. But “by their fruits ye shall know them.” position is concerned. Many of them - not all — Who made the deeper and more lasting impression do not care so much for the public interest as they on the civilization of the new world, the Hollander do to gratify their envy and spleen against the sur
or the Puritan? Where shall we look for the most viving codifier. Some one sends us a communica | enlightened, most virtuous and most influential tion to the Rochester Democrat and Chronicle, by Commonwealth of all history — to New York or to Mr. B. F. Maxson, in which that gentleman uses Massachusetts? If we go west do we find any Dutch almost a column to display how little he knows States? When we go thither and find a State of about the Code. He argues that “if the great body the greatest general intelligence, the best free school of the lawyers throughout the State are adverse to system, not a dollar of public debt, and hardly a the adoption of the proposed Code,” as he believes pauper, we find Massachusetts transplanted to Iowa. they are, then it ought to be defeated. In other Looking to our own vicinity — were the Nantucket words the laws ought to be made to please the law whalers who settled Hudson, or the Yankees who yers who make their living by expounding them. founded Troy, inferior to the Dutch who planted Twenty of the thirty-four lawyers in the Assembly Albany? For years we have worshipped in a meetthink otherwise. Then he advises Mr. Field to ing-house on the spire of which revolves a vane in publish " his work, taking his chances in the mar the similitude of a gilded cod-fish, supported by a ket with others for a suitable return for his labors." gilded pumpkin, emblems of Massachusetts and He seems not to know that Mr. Field never has had Connecticut, whose people established that church. and never would take a penny for the labor of al Have those people and other New Englanders been most forty years, and that it is of no pecuniary in less influential in the affairs of this city than the terest to him whether the Code passes or not; he is highly respectable Dutch descendants of the origsimply doing his duty under the mandate of the inal founders? Out of that barren New England Constitution. But it has been reserved for Mr. soil, and that narrow New England culture, and that Maxson to invent the most ingenious of all argu- bigoted New England sectarianism, sprang statements against codification: “It opens the doors to craft and religion and law and letters that have ilspeculation to publishers and book mongers!” And | luminated and ruled this whole land. Out of that finally: “ The law is well enough as it is. Leave it unpromising beginning arose the spirit that fought alone, and if need be, it will purify itself, grow as on Bunker Hill, and founded great universities; libthe harvests grow”- that's so) — “yielding its erated the slave, the liberal creed of a Channing, the abundance to the wants and conditions of man majestic eloquence of a Webster, the potent persuakind.” And Brother Maxson and the other lawyers sion of a Choate, the unique genius of a Hawthorne. will reap the golden crops.
We Dutch – we ourselves are half Dutch — are well Vol. 35 — No. 13.