Mo

Motion to amend remittitur granted without costs In re will of Edward D. Hesdra, deceased.— tion to extend time granted, limit of extension to be determined on the argument - Hudson River Telephone Company, respondent, v. Watervliet Turnpike and Railroad Company, appellant.- Motion to put on calendar and prefer. Motion granted and case put on calendar for first Tuesday of the next term-Hiram Gilmore, respondent, v. City of Utica and others, appellants. Motion to dismiss. Appeal dismissed with costs-In re will of Winfred Austin, deceased. --Motion to open default. Order of April 1, 1890, which dismissed the appeal for failure to file a return, vacated, with $10 costs, and the court below requested to return the remittitur to this court--Frank B. Hodgkins, respondent, v. Sarah F. Mead, appellant.-Motion to amend record. Ordered that the respondent have leave to file with the clerk, and that he insert in the record herein the appellant's stipulation for judgment absolute in the event of an affirmance by this court of the judgment of the General Term appealed from. Also ordered that judgment absolute be entered under such stipulation in this action in favor of the defendant and against the plaintiff, with costs of the action-Mary A. P. Tucker, appellant, v. Cornelia Gilman, respondent. - Motion to revive and continue. Motion granted -- Henry R. Pierson, receiver, etc., v. Justine M. Cronk, administrator.-Motion to put on calendar granted-Ellen Hogan, executrix, appellant, v. John H. Riker and others, respondents.Motion to advance granted Sherman S. Rogers, respondent, v. Common Council of City of Buffalo, appellants. -Motion for judgment. Appeal dismissed without costs and the case remitted to the General Term to be heard on the amended record-Johu Peterson, appellant, v. John Swan, respondent. Motion for leave to file fundertaking. Granted without costs -Wm. F. Lett, appellant, v. Guardian Fire Insurance Company, respondent.

SECOND DIVISION.

Motion for reargument denied with $10 costs - Vincent Barker, appellant, v. Neils Poulson and another, respondents.- -Motion for reargument denied with $10 costs-Joseph Smith, respondent, v. New York Central and Hudson River Railroad Company, appellant. Judgment reversed, new trial granted, costs to abide event-Jane McKenzie and another, executors, respondents, v. Charles Harrison and another, appellants.- ——Order affirmed and judgment absolute rendered against appellant with costs — Garret M. Clute, appellant, v. New York Central and Hudson River Railroad Company, respondent.- Judgment

reversed, new trial granted, costs to the appellant, unless within thirty days the plaintiff stipulates to modify the judgment by deducting therefrom $104.50, that being the amount of the costs of General Term, and the further sum of $1,000, with interest thereon from July 1, 1882, to the date of entry of the judg ment, together with any other sum paid by Gruennold to Baker, whether for principal or interest, prior to July 20, 1883, for which he was not credited by the trial court, in which event the judgment as modified is affirmed with costs of this court to the appellant Lewis B. Crane, respondent, v. George Gruennold, appellant.Judgment affirmed with costs - Elizabeth Porter, respondent, v. Metropolitan Elevated Railway Company, appellant.— Judgment affirmed with costs-Thomas Brickell, appellant, v. New York Central and Hudson River Railroad Company, respondent. Judgment affirmed with costs - Henry Hale, respondent, v. Brooklyn Life Insurance Company, appellant.

CORRESPONDENCE.

MR. MACKLIN EXPLAINS. Editor of the Albany Law Journal:

I have no special desire to continue the discussion as to any mode of relief to the Court of Appeals or to trouble you with any further communications.

In your criticism however of my communication sent March 22, last, in the issue of April 5 inst., you do me the injustice of intimating that if I had been a reader of the JOURNAL I would not have used the language I did. I assure you that I have read it since it was first published. It was for this reason that I felt in common with many members of the bar in this city, astonishment that the leading law journal of this country whose opinions are in most instances concurred in, should publish "in an editorial," in its issue of March 15, discussing the best mode of affording relief to the Court of Appeals, what might be considered its opinion of the courts of this city, that they are creatures of a political organization. It was thought that your remarks might be so construed and believed to be true. Hence my calling your attention to them. I did not and do not wish to pose as a self-constituted defender of any court. I only wish to add in conclusion that it was hardly fair to criticise a communica tion which you declined to publish.

I trust that you will give this letter a place in your columus.

NEW YORK, April 15, 1890.

Yours, etc.,

JOHN J. MACKLIN.

NEW BOOKS AND NEW EDITIONS.

24 ABBOTT'S NEW CASES. NOS. 1 AND 2. New cases selected and annotated for their immediate usefulness in Practice, Pleading, Evidence and Conveyanc ing. By Austin Abbott, author of Trial Evidence, Trial Briefs, etc.

We have had frequent occasion to speak in praise of this most valuable series. They are indispensable to the New York practitioner, giving as they do not only valuable and exhaustive notes, but in addition thereto a digest of all points of law and practice contained in the statutes and reports of New York issued during the period covered by the volumes. The present number contains notes on Employee's Separate Rights; Times and Incidence of Taxation; Power of Court after Appeal, and Liabilities for Injury to Person.

The Albany Law Journal.

ALBANY, MAY 3, 1890.

CURRENT TOPICS

OW that Assembly

it: "An exceedingly subtle point has been touched on here. In the marriage service of the Church of England it is well known that one of the covenants into which the bridegroom enters with his bride is as follows: With all my worldly goods I thee endow, in the name of the Father, and of the Son, and of the Holy Ghost, Amen,' Mr. Moon contends, that as by virtue of this marriage covenant the wife becomes one with the

staver of any corrupt intent in the Flack divorce business, it would be well if the newspapers would drop the matter. Whether the committee are right or wrong, impeachment is probably out of the question after such a report, and the sooner the judge is allowed to resume his functions without embarrassment or imputation, the better for the cause of justice. He has apparently made a clean breast of it, and frankly owned to his negligence. He has said "I didn't know," "I didn't think" and "I

forgot." Well, judges are not to be impeached for mere mistakes, for not knowing, or not thinking, or

sent.

her becoming his partner, puts into the partnership 'all his worldly goods' for their mutual benefit, and as in so doing he declares to his bride that the act is an endowment for her, he has no power afterward to dispose of the property without his partner's conThe question, it appears, was submitted to the archbishops and an eminent Q. C. The former pleaded that the Church had perfect justification for her instruction, but the latter characterized the clause as a blasphemous lie. Which of these is right? Either the Church of England, knowing as

she does that she has not the support of the law for what she states in the endowment clause of the mar.

ments would be in constant session. Much less is a reputable judge to be impeached for a single negligence of this description. We blame the judge principally for taking judicial notice in the first place of what was none of his business of the fact that Judge Monell, whose name appeared in the papers as attorney for the wife, was general counsel for the sheriff. This was no affair of his. But having assumed to exercise that unnecessary degree of vigilance, he should not have relaxed it. That, we think, was the source of his trouble. Before this accusation he was of the best repute. It would be extremely unjust to subject such a man to the degradation of impeachment for a single act of mere carelessness or forgetfulness, after such a substantial acquittal of corrupt motive, in deference to the demands of some newspaper writers who know

and care nothing about the matter except to keep up the sensation. As the matter now stands, Judge Bookstaver can continue to discharge the duties of his office usefully, and without suspicion of wrong, at least among the more reflective and sober classes, but if an impeachment is had, although it should result in acquittal, his reputation would be more in danger of injury. A twenty-year-old boy, fresh from college, or "fresh" without ever having been to college, writing for a newspaper, can make as much mischief as a small boy shouting a false alarm of fire in a crowded theater. Some newspapers, whose opinion is worthy of consideration, take ground for impeachment, but to them we would say that if all the evidence has been disclosed, there is no real basis for impeachment, and the attempt would be futile and injurious.

It would seem that Mr. G. Washington Moon has been testing to its utmost the capacity of our English brethren to understand a joke. He has uttered a novel, entitled "With All My Worldly Goods I Thee Endow." The Law Journal thus gravely explains VOL. 41- No. 18.

words which lay her open to the serious charge of willfully taking the name of God in vain, and teaching the husband to begin his married life by lying to his bride; or the law should recognize the binding nature of the endowment clause, as much as she recognizes the binding nature of the rest of the marriage contract; for failing this, the validity of the Church of England marriages may gravely be called in question, because it is an axiom in law that a contract which is not binding in every clause is not binding in any clause. Therefore if the endowment clause be declared void, the whole is void, and the marriage ceremony, as performed in the Established Church, is a delusion and a snare by which every woman who professedly has been 'married' according to its forms, has really been entrapped into concubinage, for she is no wife, and therefore her children are illegitimate, and nine-tenths of the titles and inherited estates in England are not in the possession of their rightful owners. Those who are interested in the point will, in the novel, find it fully argued and commented on in the counsel's speeches, the judgments (two- the Divisional Courts and Court of Appeal), and generally in the case of Askwyth v. Askwyth. It seems to us the author's contention cannot be very well upheld, and that it will require some clearer indication of hardship resulting from the present forms to induce any change." This is simply delicious. Our friends will allow us to suggest that if the sapient Moon's argument is sound, and the verb "endow" indicates the conferring of any absolute title, it must indicate that the husband strips himself of all his worldly goods and bestows them all on the wife. The phrase does not point to any partnership in the goods. Besides, if Mr. Moon is going to be literal, he must concede that the phrase is confined to personal property-"goods" does not include lands. If it means any thing, or was intended to mean any thing which is doubtful it probably means that

the husband grants "dower" in his goods. We really wish Mr. Moon would not scare people so, and give such desperate pulls at the theory of the British Constitution and of marriage. He is the audacious fellow, we believe, who once jeered at Dean Alford's English. He is a bad, dangerous fellow, and ought to be put down. His very name is incendiary. In short, we should make him sing, parodying the song of Mr. J. Wellington Wells in "The Sorcerer: "

"My name is G. Washington Moon,
I've arrived here a little too soon."

The American Law Review is to be credited with a new "feature" in legal journalism - a new mouth, so to speak. It has revived the swearing parson of the time of Fielding. A new contributor, the Rev. W. H. Bailey, makes his début in its pages. It is noteworthy that he is none of your puritanic precisians; he has no narrow prejudice against the stage nor against the introduction of familiar references to that place of abode which a merciful Providence is reported by some to have prepared for the devil and his angels and those bad human beings from the beginning predestined, forcordained and elected thereunto. He disports himself in a dramatic dialogue between an absent-minded judge and a coarse-mouthed sheriff, without much point, but with a number of h-3. At first we were inclined to be a little envious of our contemporary on account of this novel acquisition, but on reflection we are content to give the Review a monopoly of him. But we venture to suggest to the reverend contributor that it would be more decorous in him to drop his h- -s or the "Rev."

Judge Benedict, in the Brooklyn Union, criticises the bill now pending in Congress for the reorganization of the Federal courts. He asks, in the first place, what becomes of the present Circuit Courts, observing that the debate has proceeded on the theory that they are abolished, and continuing:

And yet it is entirely clear that this bill does not abolish the five Circuit Courts of our five districts. There is not a word to that effect in the bill; and moreover while the bill does provide for the transferring from the Circuit Courts to the several District Courts of all cases of original jurisdiction, it makes no provision at all for the appeal cases which are now pending in the Circuit Courts. Either therefore all the cases now pending on appeal in our five Circuit Courts are left in the air, or the courts are still left in existence.

"It is certainly not too much to say that such a result proves careless legislation. Such a vital question as whether the fifty-eight Circuit Courts of the various districts are to be abolished or not ought to have been determined by language clear and unmistakable.

But aside from the question of the present Circuit Courts, the mode in which this bill sets up its new Circuit Court evinces similar carelessness. By this bill this new Circuit Court which is (inferentially) set up, is to be an appellate court only. It would have therefore little use for original process. But it would have need of process by which to enforce its final

judgments and decrees. It would have need of process to enforce the presence of witnesses in all admir alty cases at least, for in them new evidence is admissible on appeal. And it would need process by which to enforce its interlocutory orders, as for instance, in cases of contempt or in patent causes, where there might be a violation of an injunction after a cause was appealed to the Circuit Court.

"Now the only provision in the bill as to process is the following: Process shall run and shall be entered in the same manner as process of the Circuit Court as now organized, when applicable.'

"Here again the difference between one Circuit Court in the circuit and a Circuit Court of each district has been lost sight of. Now the Circuit Court of the district issues its process which runs through the district and is executed by the marshal of the district, who is the executive officer of the court. But suppose an appeal brought from the District Court of the district of Vermont to this new Circuit Court in the cir cuit, on which the Circuit Court, sitting in New York, renders a judgment. How could that judgment be enforced against the Vermont debtor? There is no process of the Circuit Court for the districts of New York, as now organized, by which that debtor could be reached. And while the framers of the bill seem to have had some vague idea of the difficulty in this direction, by their use of the words 'when applicable,' they have made no provision whatever for the cases when the process of the Circuit Court as now organized is not applicable.

As it is now, the Circuit Court being a court of the

district, the final process of that court runs through the district. When the Circuit Court is a court in the circuit, is its final process to run through the circuit? Or is it intended to have it run only in the district in which the cause was begun? Nothing is said on the point and it does not seem to have been considered."

"So too with reference to the lien of judgments. Now the judgment of a Circuit Court of the district is a lien on real estate in the district and by statute throughout the State. Any one buying land in this district can go to the office of the clerk of the Circuit Court of this district and find out whether any judg ment is a lien on it. But how is it under the new system? Is it intended that the judgments of the Circuit Court shall be liens on real estate throughout the cir cuit? It that case no one could buy land in Vermont or Connecticut without sending to New York to have a search made for judgments of the Circuit Court. Or is it intended that the judgments shall be liens only in the district where the suit was begun? But why ask such questions? The whole matter has been entirely overlooked."

These are certainly very serious considerations, and it would be well enough to have the bill subjected to a revision by a competent commission.

"The Trial of Jesus, From a Lawyer's View," by C. H. Blackburn, a pamphlet published by Robert Clark & Co., of Cincinnati, is an interesting expos ure of the illegality and irregularity of the proceedings of the most important trial in all history. Mr. Blackburn demonstrates his proposition. The trial of our Saviour was little better than assassination or lynching. The same opinion was substantially expressed in an elaborate article in 36 ALBANY LAW JOURNAL, 384, and by Dr. Battle, of North Caroina, in a recent pamphlet on trials described in the New Testament,

here, a woman may, simply upon suspicion that she may commit an act which at most would only amount to a misdemeanor, be assaulted and imprisoned, if the officer had good reason to believe, and does believe, that she is plying her vocation in such a manner that it will result in an offense. No more dangerous doctrine could be laid down. It is a doctrine which, if upheld, would place even the most respectable lady in the land under the surveil

IN

NOTES OF CASES.

N Pinkerton v. Verberg, Supreme Court of Michigan, December 28, 1889, it was held that the fact that a woman has the reputation of being a street-walker, and that the officer knows of her reputation, and believes her to be plying her vocation, does not justify his arresting her without a warrant while she is walking along the street doing nothing to indicate such a purpose. The court said: "If persons can be restrained of their liberty and assaulted and imprisoned under such circumstances, without complaint or warrant, then there is no limit to the power of a police officer. Personal liberty, which is guaranteed to every citizen under our Constitution and laws, consists of the right of locomo

tion to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places; and while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens, there they will be protected under the law, not only in their persons, but in their safe conduct. The Constitution and the laws are framed for the public good, and the protection of all citizens, from the highest to the lowest; and no one may be restrained of his liberty unless he has transgressed some law. Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees. These are rights which existed long before our Constitution, and we have taken just pride in their maintenance, making them a part of the fundamental law of the land. Whatever the charter and ordinances of the city of Kalamazoo may provide, no police officer or other conservator of the peace can constitutionally be clothed with such power as was attempted to be exercised here. No disorderly conduct, no breach of the peace committed in the presence of the officer, no suspicion of felony- and yet, under the charge of the court which counsel seek to maintain

rest and imprison upon mere suspicion of an offense, however insignificant; and if carried to the extent contained in the charge of the Circuit judge, it would not matter how undeserved the bad character or reputation of such person might be. If idle gossip is once set afloat, reflecting upon the character and reputation of the most virtuous woman, and that gossip once comes to the ears of the police officer, he may act upon it, and be led to believe that the woman is upon the street intending to ply her vocation as a street-walker or common prostitute, and at once, without the formality of complaint or warrant, place her under arrest and convey her to jail. The law has more regard for the liberty of the citizen, and there is a more decent and orderly manner of enforcing the law for the public good. The officer had no right to arrest the plaintiff, without warrant, upon mere suspicion that she was upon the street for the purpose of plying her vocation as a common prostitute, even under the provisions of the city ordinance. Our statute gives no such right, and at the common law no such right existed. Suspicion that a party has on a former occasion committed a misdemeanor is no justification for giving him in charge of a constable without a justice's warrant; and there is no distinction in this respect between one kind of misdemeanor and another. 1 Archb. Crim. Pr. & Pl. 103, note 1; 2 Hale P. C. 89. An arrest for misdemeanor, without a warrant, by one who does not see the offense committed, is illegal. In People v. Pratt, 22 Hun, 300, it was held that an officer had no authority to arrest, without warrant, a common prostitute, unless disorderly conduct is committed in his presence. It is true that an officer, as a conservator of the peace, may arrest street-walkers or common prostitutes who are on the street plying their vocation, but a mere suspicion that they are doing so, where there is no act indicating that the party is there for that purpose, will not justify the arrest without warrant. In Sarah Way's Case, 41 Mich. 304, Mr. Justice Campbell, speaking upon the subject of arrest without warrant, says: 'It must not be forgotten that there can be no arrest without due process of law. An arrest without warrant has never been lawful, except in those cases where the public security requires it, and this has only been recognized in felony and in breaches of the peace committed in presence of the officer. Quinn v. Heisel, 40 Mich. 576, and Drennan v. People, 10 id. 169."

In Terre Haute & 1. R. Co. v. Clem, Supreme Court of Indiana, March 19, 1890, in an action against a