been polled in the right place, and that they were not was not the fault of the voters, but of the officers in the distribution. In our judgment Judge Peckham completely answers the claim of the ma| jority when he says:

"It seems to me plain that official ballots were furnished the various election districts in question here, and that they did not cease to be such official ballots because of the mistake described. The argument for the respondent is that these ballots were not properly indorsed,' and hence should not be received or

counted within section 29. That section does not, in my judgment, embrace such a case. The ballot was 'properly indorsed' when printed, for it had on it nothing but the words and figures provided for by statute. It had been printed at the public expense by the proper public officer, or under his direction, and had been sent out for distribution according to the provisions of the statute, and had been brought to the polls by or under the direction of the town clerks respectively. Hence when they were thus delivered, they still bore the characteristics of the official ballot, official ballots are thus provided no unofficial ballot can be cast, and if cast shall not be counted. These official ballots did not become unofficial by this acci dent."

valid, must be no more extensive than is reasonably necessary for the protection of the vendee in the enjoyment of the business purchased. But in the present case there is no purchase or sale of any business, nor any other analogous circumstance giving to one party a just right to be protected against competition from the other. All of the members of the association are engaged in the same business within the same territory, and the object of the association is purely and simply to silence and stifle all competition as between its members. No equitable reason for such restraint exists, the only reason put forward being that, under the influence of competition as it existed prior to the organization of the association, prices for stenographic work had been reduced too far, and the association was organized for the purpose of putting an end to all competition, at least as between those who could be induced to become members. True, the restraint is not so far-reaching as it would have been if all the stenographers in the city had joined the association, but, so far as it goes, it is of precisely the same character, produces the same results and is subject to the same legal objection. It may also be observed that by the constitution of the association This argument is hardly met by Judge Gray's any reputable stenographer, regularly engaged in avowal that he considers it "quite unsound,” — for law-reporting in Cook county, is eligible to member- that is about all there is of his allusion to it. Nor ship, and if all or a major part of the stenographers by Judge O'Brien's remark that "it will scarcely be in said county engaged in that business are not al- claimed," for that is the substance of his notice ready members, it is because the association has not of it. Still less by Chief Judge Ruger's oracular yet fully accomplished the purposes of its organiza-"a most unjust and mischievous construction,”tion. We can see no legal difference between the restraint upon competition which it now exercises and that which it will exercise when it is in a position to dictate terms to all who are engaged in the business, and to all who may wish to obtain the services of law stenographic reporters."

A

were

THE ONONDAGA ELECTION CASE.

and were such ballots. The statute means that when

for that is as much of an argument as he deigns to advance on the point. Indeed, it is hard to place the chief judge on this branch of the case, for he devotes most of his energy to showing that the ballots were not "unofficial," within the phraseology of the statute the contrary of which was never claimed. Then if they were not "official," what were they?

On the second question whether these were "marked ballots," of course all will agree that the statute contemplates a mark for the purpose of identification of the voter. The majority of the court agree that this wrong delivery and transposition of the ballots amounted to a means of such identification. On this point Judge Peckham seems to us conclusive when he observes: "The only possible ground for giving any importance to the mistake in the distribution of ballots which oc

CAREFUL perusal of the opinions of the Court of Appeals in People, ex rel. Nichols, v. Board of Canvassers of Onondaga County, ante, p. 113, leads me to think that the majority of the court proceeded on too narrow a view of the election law. The main question was whether the ballots in question "official ballots" and "properly indorsed," and whether an innocent mistake in the indorsement vitiated them. It is contended by the major-curred here is, that as a result of the mistake, every ity of the court that the ballots in question were not "official," because they were indorsed by the county clerk with a wrong number of the election district at which they were polled. As Judge Andrews explains: "For example, in the case of the town of Camillus, the ballots indorsed 'First District Poll' were marked on the outside of the package, 'Second District Poll,' and those prepared for the second election district were wrongly marked on the outside of the package, 'First District Poll.'" But this was not an error in the preparation of the ballots, but merely an error in their distribution. The ballots would have been perfectly valid if they had

voter who voted one of these ballots was known, and he was known by reason of this distinguishing mark on his ballot. Those who voted these ballot might very well have had the opportunity of placing pasters inside them, and have in fact voted in a way opposite to that in which the outside of their ballots indicated, and in this way the mark on the ballot would not necessarily show the way in which the elector voted." It certainly would be a violent and unjustifiable assumption that the ballots in question were "straight" and did not contain pasters. This point was susceptible of proof, but it was not made to appear, and certainly the burden

was not on the voters to show that they did not sarily fail, since it is settled that a peremptory manviolate the law.

But the statute provides for dealing with "marked ballots." As Judge Peckham explains it: "Under section 31 an inspector of election or watcher, during the canvass or immediately thereafter, may declare his belief that any ballot has been written upon or marked in any way, with the intent that it may be identified, and then the inspectors are to write their names on it, and it must be attached to the original certificate, and go to the county canvassers, where a means is provided for ascertaining the facts judicially. But the ballots are in the meantime counted." That is to say, the statute says they shall be counted. The ballots in question were not so treated, and that seems to be an end to the claim that they were void or voidable as marked ballots. As Judge Andrews says: "But they were in fact received and deposited. If these bailots could have been treated by the inspectors as marked ballots, they were not so treated, and that subject, under the arrangements of the statute, has passed beyond the power of the courts to review."

damus cannot issue in the first instance where a material fact is put in issue, but in that case the moving party will be put to his alternative writ, so that the other party may have an opportunity to try the issue presented."

Judge Gray says: "It was argued, and may be conceded, that the occurrence was the result of some mistake," etc. So Judge O'Brien says, "there is nothing in the record to show that the ballots were intentionally, or by any preconcerted arrangement, diverted from the election district for which they were prepared, and sent to districts for which they were not prepared or intended." Therefore the charge of fraud was clearly out of the case. But Chief Judge Ruger lugged it into the case, while admitting that it was immaterial, as follows: "It is strenuously urged by the appellant's counsel that these transpositions were inadvertently made. This contention is obviously immaterial, but I think there is little in the circumstances to render such a claim either plausible or probable.

* * * That

a crime was committed by some one having in bal-charge the distribution of the ballots for the several towns referred to cannot be the subject of reasonable doubt." His contention is based on the argument that the delivery of the ballots required great care, and great care was not observed! It seems very small evidence of a fraudulent intent that wrong deliveries were made in nine of the two hun

Moreover it seems that the objection that the lots were void because marked was practically out of the case, for by the provisions of the statute marked ballots are to be declared void only when the marked ballots were fraudulently and intentionally voted, and this is a question of fact, and was not open to debate on this hearing. As Judge O'Brien says: "It is also provided that a ballot, deposited by a voter in the ballot-box, upon which or upon any paster affixed thereto, a writing or mark of any kind has been placed by the voter, or by any other person to his knowledge, with the intent that

such ballot shall afterward be identified as the one

voted by him, shall be void and of no effect." This view seems to me conclusive of the contention of marked ballots so far as the voters were concerned. This was the view held by Judge Barnard in regard to the ballots in Dutchess county, marked by the printer's "quads " accidentally sticking up.

dred election districts. He also emphasizes the fact that the mistakes were only in the case of Republican ballots. But why should a Republican county clerk seek to disfranchise Republicans or run a strong risk of doing so? Would he not rather have sought, if his action were intentional, to mix up the Democratic ballots and thus disfranchise the Democrats? Chief Judge Ruger's answer is a singular exhibition of the workings of the human intellect when the particular brain is warped, perhaps unconsciously, by a natural and irresistible inclination, to favor the interests of the political party to which its possessor belongs, and of which he has been an ardent manager. Here it is:

There is nothing in the opinion of Judge Gray or of Judge O'Brien that is immaterial to the point in issue or objectionable in spirit. This is more than can be said of the opinion of Chief Judge Ruger. That opinion is conceived more in the spirit of a demagogue than of a dignified chief of the highest court of a great State. Let me pro-republican vote in Onondaga county. ceed to verify this censure. It appears that on the argument it was admitted that the transposition by the officials of the ballots was inadvertent and not fraudulent or intentional. Judge Andrews says:

"But let us look further at the motives which may the parties charged with the duty of handling these reasonably be supposed to have actuated the minds of ballots by their unlawful manipulation. It appears from the votes cast that Mr. Nichols received a large The court can

"The moving papers contain, it is true, some general allegations that this misplacing of the ballots was designed and done with a fraudulent intent. This is denied in the opposing affidavits, and there is nothing in the circumstances to justify a suspicion that the ballots were intentionally misplaced. But it is sufficient to say that by the express written stipulation of the parties the charge of fraud or collusion in the moving affidavits is waived. If this issue had been insisted upon, and the fact was material, the peremptory writ could not be upheld, and the proceeding would neces

take judicial notice of the facts appearing in the public records of the State. They show that Onondaga is

a republican county, and for a long series of years has given a plurality of votes for that party, varying from

At this

two to four thousand votes at each election.
election however it gave a considerable plurality to the
democratic candidate. It is therefore obvious that
for some weeks preceding the election there must have
defection from that party, and consequent accessions
been evidence of a popular current which threatened a
of strength to the ranks of its opponent. *What more
efficient agency could have been adopted to arrest such
a movement than the publication of the fact that every
person who deserted from his party in such an emer-

*This is decidedly the most immodest assumption of "judicial knowledge" to be found in our books.

gency would be watched and exposed to the various
consequences which inevitably follow those who throw
off their fealty to party obligations, and incur the hos-
tility of their former political associates.
Not only
were the voters exposed to these influences, but the
fact that their ballots were improperly indorsed ex-
posed them to the approaches of vicious and corrupt
partisans, who might, either by bribery or intimida-
tion, seek to influence their conduct. It is evident
that if such practices are permitted under the law, the
purpose of the act to shield the voter from obnoxious
supervision and observation while exercising the right
of elective franchise is practically defeated."

indorsements made upon their ballots, and refrain from using such ballots. It is elementary that every citizen is presumed to know the law. This is the settled theory of the law. How then can it be supposed that these voters were either in law or fact unconscious of the character of the ballot they were using? It was known before the polls opened at each of these districts that the republican ballots were improperly indorsed, and this was presumably the subject of public discussion around the polls. Yet these voters deliberately determined (for they are not permitted to vote without deliberation) to use them, notwithstanding their nonconformity with the law. The inspectors of election were required under serious penalties to examine the indorsement upon each ballot as it was voted, and to determine as to its conformity with the law, and the voter was also required to see that no mark on his ballot revealed the character of its contents. How then can it be consistently asserted that any ballot was deposited in ignorance, either by the voter or the inspectors, or the fact that it was improperly indorsed?"

I have italicized a few choice phrases in this gation of fact and every presumption of law in it, is precious excerpt. As I understand it, every allefounded on pure assumption, and is in direct contradiction of the record, except that it is true that in one district of Elbridge the mistake became known about midway of the election. With this mistake was known to anybody at any poll, much exception, there was not a particle of proof that the less was talked about. How can the chief judge say that the mistake "was known at each of these dis

tricts before the poll

opened," when there is no

This seems to us one of the most fantastic notions that ever found lodgment in the human brain. The idea of punishing a republican voter for his anticipated casting of a democratic ballot by making him lose the benefit of a republican ballot which he has cast in good faith, is one that I should think could hardly have been invented outside the realm of dreams. In addition the questions naturally arise, how could bribers know who were to cast these wrongly-distributed ballots; or if they did know, what purpose could "bribery or intimidation" naturally have except to procure the casting of good democratic votes; and what was the need of bribery or intimidation" when it was already arranged that the Republican voters were unconsciously to waste their votes by means of this trap set for them by the republican county clerk? But whatever may have been the intention of the county clerk, "the proofs leave no doubt," says Judge Andrews, "that these ballots were used by the inspectors and the voters in good faith, in ig-proof of it in the record, and the law provides that the packages of ballots shall be kept sealed up till norance of any imperfection." This brings me in the moment of opening the polls, and there is no conclusion to speak briefly of the remarks of the majority of the judges on the apparent injustice of proof in the record nor any pretense or claim by counsel that this provision was violated? The disfranchising twelve hundred and fifty-two voters strong probability is that not one voter in a hunby reason of a technical blunder of an official. dred knew the requirement of the law that he Judges Gray and O'Brien seem to lament the necesshould examine the indorsement, or would have sity, but deem that under the letter of the law it is thought of looking at the indorsement if he had known the requirement, and that not even the chief judge himself ever looked at the indorsement. I dare say the chief judge himself did not know the requirement. It may also safely be said that not one voter in a hundred even knew the number of his election district! It is heartless enough to say "served them right," when speaking of pure carelessness, but to charge upon the innocent victims of an official blunder that they knew all about it and voted the doubtful tickets with their eyes open, is a gratuitous insult. If this exhibition of head and heart is the best legacy that Chief Judge Ruger could leave to his county neighbors and the other citizens of his State, I should have preferred, for his own fame, that he had kept silent.

unavoidable. Chief Judge Ruger, on the other hand, seems to be quite indifferent to it, and says it was the voters' own fault-they ought to have

seen the mistake and had it corrected. This is his language:

"Those voters are termed innocent, well-meaning and apparently unconscious instruments in the proceedings which resulted in placing in the ballotboxes of Onondaga county upward of twelve hudred illegal votes. Why they are thought to be entitled to these descriptive appellations I am unable to understand. The law expressly forbids every voter from revealing to any one in the polling place the name of any candidate for whom he intends to vote, or to show his ballot, after it has been prepared, in such manner as to reveal its contents, and in case of a violation of these provisions, he is deemed guilty of a misdemeanor. Section 35, Laws 1890, amended 1891. Can a voter who deposits a ballot revealing plainly and conspicuously the names of the candidates for whom he intends to vote claim to be innocent of a violation of these requirements? These voters most certainly cannot be said to be ignorant of the provisions of the law under which they are exercising their franchise, for the law itself requires that they shall inform themselves of its requirements respecting the form and character of the

A

IRVING BROWNE.

SEALS AND ACKNOWLEDGMENTS.

SEAL is an impression upon wax, wafer of other tenacious substance that will receive an impression and adhere to the paper. A scrawl is not a

seal. (a) One seal will answer for two or more persons if intended to be used for the seal of all.(b) What instruments must, may, or for certain purposes should be, executed under seal or acknowledged, is often a perplexing question for novices. The following table attempts to answer in a graphic manner questions:

Acknowl-
edgment?
Yes(d)
No(e)
No(h e)
No(ek w)
Yes(lh w)
Yes(mh)
No(e)
Yes(hw)
Yes(n w)
No(e)
No(ph w
Yes(s)
No(u w)
JAMES MCCALL.

Lease of land for more than 3 years, No(x)

Mortgage, real estate..

Mortgage, chattel....

Power of attorney.

Undertaking.

Will....

Yes(1)

No

Yes(o)
No(r)
No(t)

MARRIAGE-DIVORCE-ALIMONY-LIABIL

ITY FOR DEBTS OF WIFE.

NEW YORK COURT OF APPEALS, JAN. 20, 1892.

ROMAINE V. CHAUNCEY.

Alimony for the support and maintenance of the wife and children of the husband, and the payment of the wife's counsel's fees in obtaining a divorce, in the absence of statutory authority, cannot be subjected to the payment of a debt contracted by the wife prior to the date of the decree.

George V. N. Baldwin, for appellant.

Cowen Dickerson, Nicoll & Brown and Noel Gale, for respondent.

FINCH, J. This case presents an interesting question which we are called upon for the first time to de. cide. There are no direct and conclusive precedents to be followed, no explicit and specific statutes coming with an appropriate direction, but only a broad general rule on the one side and a just and strong necessity for an exception to it on the other. The question is whether alimony awarded to an innocent wife by a

(a) Warren v. Lynch, 5 Johns. 239.

(b) Van Alstyne v. Van Slyck, 10 Barb. 383.

(c) Dawson v. Colis, 16 Johns. 54.

(d) Rev. Stat. (8th ed.), p. 2470, § 4, p. 2475, § 38. (e) But advisable, § 937, Code Civ. Proc.

(2 Pars. Cont. (7th ed.) 643.

(g) Board of Education v. Fonda, 77 N. Y. 350.

(h) Must be, to entitle it to be recorded. Rev. Stat. (8th ed.), p. 2470. § 4.

(i) Worral v. Munn, 5 N. Y. 243.

(k) See Rev. Stat. (8th ed.), p. 2479, § 39.

(D) Rev. Stat. (8th ed.), p 2451, § 137.

(m) Rev. Stat. (8th ed.), p. 2474, § 28. If with a bond, seal advisable.

(n) Rev. Stat. (8th ed.), p. 2470, §§ 3, 4.

(0) To execute sealed instruments; otherwise, No, see (i). (p) But see Rev. Stat. (8th ed.), p. 2479, § 39.

(r) 1 Abb. New Prac. 462; McLain v. Simongton, 37 Ohio St. 434.

(8) § 811, Code Civ. Proc.

(t) In re Diez, 50 N. Y. 88.

(u) But see Rev. Stat. (8th ed.), p. 2547, 8 40, as to other formalities.

(w) Rev. Stat. (8th ed ), p. 2469, §1, p. 2475, §§ 38, 39. If not recorded, void as against subsequent purchasers in good faith for a valuable consideration.

(x) Stoddard v. Whiting, 46 N. Y. 633; O'Brien v. Smith, 13 N. Y. Supp. 408.

court of equity as incidental to a decree of divorce in her favor can be appropriated by her creditor to the discharge of a debt contracted by her and actually subsisting prior to the date of the decree. The question was different in Stevenson v. Stevenson, 34 Hun, 157, cited as a pertinent authority, for in that case the decree of divorce was granted in 1855, and the creditor's judgments obtained in 1880. A debt contracted by the wife after the decree, presumably for her support, and with natural reliance upon the alimony by the creditor as the means of payment, stands upon a very different footing from a debt of the wife contracted prior to or during the marriage, and before its judicial dissolution. In the latter case two new elements enter into the question, one, the imposition of an unfounded duty on the husband, and the other a perversion of the decree from its definite and intended purpose and from that authorized by the law. Alimony, as we all understand, is an allowance for support and maintenance, having no other purpose and provided for no other object. Like the alimentum of the civil law, from which the word was evidently derived, it respects a provision for food, clothing and a habitation, or the necessary support of the wife after the marriage bond has been severed, and since what is thus necessary has more or less of relation to the condition, habit of life and social position of the individual, it is graded in the judgment of a court of equity somewhat by regard for these circumstances, but never loses its distinctive character. If sometimes, as the appellant claims, regard is had to the brutal and inhuman conduct of the husband (Burr v. Burr, 10 Paige, 20), it serves only to make the court less considerate of his situation and more liberal in its view of the necessities of the wife. Thus the prevailing rule in this country is said to be that, where the wife has sufficient means to support herself in the rank of life to which she belongs, no alimony will be allowed (1 Am. & Eng. Enc. Law, 485), and where the parties are living apart under an agreement of separation, by the terms of which the husband has provided adequate means of support, no temporary alimony will be given (Collins v. Collins, 80 N. Y. 1), and when awarded it is not so much in the nature of a payment of a debt as in that of the performance of a duty. During the marriage the husband owes to the wife the duty of support and maintenance, although owing her no debt in the legal sense of the word; but under the modern statutes he does not owe to her the duty of paying her debts contracted before the marriage or thereafter, if they are solely hers and not at all his. The divorce, with its incidental allowance of alimony, simply continues his duty beyond the decree, and compels him to perform it, but does not change its nature. The divorce and consequent separation are wholly his own fault, and do not relieve him from the continued performance of the marital obligation of support. The form and measure of the duty are indeed changed, but its substance remains unchanged. The allowance becomes a debt only in the sense that the general duty over which the husband had a discretionary control has been changed into a specific duty, over which not he but the court presides. The authorities therefore cited to the effect that alimony is not strictly a debt due to the wife, but rather a general duty of support made specific and measured by the court, seem to me to be well founded. Wallingsford v. Wallingsford, 6 Har. & J. 485; Daniels v. Lindley, 44 Iowa, 567; Burr v. Burr, 7 Hill, 207; Gunther v. Jucobs, 44 Wis. 354; Crain v. Cavana, 62 Barb. 109; Jordan v. Westerman, 62 Mich. 170. And so

it follows that as, during the marriage, the husband while bound to support the wife was not bound to pay her pre-existing or separate debts, so after the divorce he must continue the support, but is not required to pay out of his means furnished for that purpose the