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ondary punishment that could be devised would be equally deterrent; and Lord S. G. Osborne believed that where murders proceed from strong provocation, "no fear of death, not even if the rack should precede it, would have power to deter." Mr. Davis made the very important statement, that in his opinion, warders would be in danger in watching over criminals under penal servitude for life if capital punishment were abolished.-London Law Journal.

In the early common law, before the meliorating effect of any equitable element was infused into it, there were many forms of action concerning landmany more than were necessary, as remedies are now understood. Landed estates were the chief property at that time, and what little there was of personal property was but little cared for. There were then but four forms of personal action; two in contract, and two in tort. The former were debt and covenant. Every lawyer, who has not forgotten his rules of pleading, will readily understand how inadequate, even under liberal interpretation, these two forms of action were to meet all the varying questions that arise ex contractu. So there were but two forms of action in tort-trespass and detinue. And pleading was then so hampered with verbosity and technicality, that it was exceedingly difficult to frame a good declaration, or to find a case that came up to the technical requirements of any one of these four actions. Strict conformity with technical rules was required, for technicality was then substance. The client frequently found himself in the remediless condition of the would-be prosecutor of the western border. Some petty thief had stolen his turkey. He suspected that one of his neighbors was the thief, and believed if he could obtain a search warrant, he could reclaim his turkey and punish the offender. To the justice he went. Now, the justice was fresh in office, having recently been inducted into it, and a book of forms constituted his library. The facts were laid before the justice, and he was asked to issue the search warrant. He consulted his form book long, patiently and diligently. He found authority and a form for a warrant to search for a stolen hand-saw, but as for a stolen turkey, it was not in the book. So he gravely informed the prosecutor that there was no law authorizing a warrant to search for a stolen turkey; but he proposed to do the next best thing for him. He would and did issue awarrant authorizing search for a stolen hand-saw, informing the prosecutor, if in searching for the handsaw he found his turkey, he might take and retain it. "For," said he gravely, "although the law has failed to provide a suitable remedy for you, it is clearly the law that no man can acquire a right to another's turkey by stealing it. Thou shalt not steal is the language of the good book itself." But the justice, with all his blunders, was governed by a broader sense of right than the common-law judges of England formerly Before them, not to be able to present a case fully up to the requirements of one of the four forms of action, with all the technical exactness then deemed essential, was to be turned out of court with no redress whatever. From address of Chief Justice Stone before Alabama Bar Association.

were.

NEW BOOKS AND NEW EDITIONS.

BEACH'S LAW OF RAILWAYS.

These two pony volumes, issued by the BancroftWhitney Company, of San Francisco, are prepared by Mr. Charles F. Beach, Jr., well known as a legal author and journalist, and exceedingly well fitted for this branch of legal writing. The two little, compact, well-printed volumes show a large amount of unpre

this extremely useful series. We recommend them to all practitioners who have to do with railroad companies, pro or con, as a convenient and accurate guide. It is pleasing to see a man of Mr. Beach's talents addicting himself to one branch of the law until he be comes of himself a very considerable authority on the subject.

THE COMPLETE DIGEST.

This is the second part for 1889-July to December. We have spoken in commendation of the first part, and see reason to emphasize that opinion of the fullness, exactness and methodical arrangement of the work. From the examination which we have been able to give, it appears to us about as good a digest as can be made. It is admirably printed by the Digest Publishing Company of New York. It comes to us with the complete digest for 1888, which consists in Little, Brown & Company's United States Digest, new series, volume 19, covering the gap between 1887 and the first part of the present series, and forming the last publication of the Boston work, which is merged in The Complete Digest. Inasmuch as in our state of legal sin there must needs be digests, we recommend this work to the profession as a very complete monument of the folly of our system.

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Order affirmed with costs-Wm. L. Ford, respondent, v. Binghamton Hydraulic Power Co., appellant. Award atfirmed with costs-Charles Hyatt, appellant, v. People, etc., respondent. -Order affirmed with costs-In re N. Y. C. & H. R. R. Co. respondent, to acquire lands of the Charlotte Iron Works, appellant. -Judgment affirmed with costs-People, respondent, v. D. & H. Canal Co., appellant.-Judgment affirmed with costs-Wm. S. Fox, respondent, v. Village of Fort Edward, appellant. Order of General Term reversing the judgment of the trial court affirmed aud judgment absolute directed for the plaintiff with costs-George W. Zink, respondent, v. Anna McManus, and another, appellants. - Judgment affirmed with costs-In re Petition of Hubert O. Thompson, commissioner, etc., claim of Henry C. Meyer.-Judgment affirmed with costs-Bank of Buffalo, appellant, v. John Thompson and others, respondents.-Judgment affirmed with costs-Samuel W. Lewis, appellant, v. Charles G. Wilson, president, etc., respondent.Judgment affirmed with costs-John Nightingale and another, appellants, v. Moses L. Eiseman and another, respondents. - Judgment affirmed-People, respondents, v. Joseph Chapleau, appellant.-Judgment reversed, new trial granted - People, respondents, v. Charles McElwaine, appellant.

SECOND DIVISION.

Judgment reversed, new trial granted, costs to abide event--Meridan National Bank, appellant, v. Peter W. Gallaudet, respondent. - Order affirmed and judgment absolute rendered against the appellant with costs-Sophia M. Shepard, appellant, v. Josephine Gassner and others. - Judgment affirmed with costsMarion L. Todd, respondent, v. Annie C. Haeger, appellant. - Order affirmed and judgment absolute rendered against the appellant with costs-John S. Marsh, appellant, v. Walter M. Hand and another, impleaded, respondents. - Judgment affirmed with costs-John F'. Wickens, respondent, v. Thomas Foster, appellant. -Judgment affirmed with costs-Hallon Eldridge,

tending labor, and constitute an important addition to I appellant, v. City of Binghamton, respondent.

The Albany Law Journal.

THE

ALBANY, MAY 10, 1890.

CURRENT TOPICS.

THE great legal excitement of last week in this State was the granting of the writ of habeas corpus in Kemmler's case, and the stay of his execution for two months. This action is discussed very fully and dispassionately in another part of this number of this journal, by Mr. Matthew Hale, who was one of the commissioners who recommended the substitution of electricity for hanging. A reading of Mr. Hale's paper confirms the opinion which we had previously formed, that there is no Federal question in the case, and that the writ must be dismissed on the hearing. There is no question except that of the nature of the punishment, and in this particular the Federal Constitution applies, and could only apply, to punishments under Federal laws. The ingenious Mr. Cockran has evolved a grotesque argument that the sheriff has an "authority coupled with an interest" in executing convicts sentenced to capital punishment, which may not constitutionally be taken away from him and delegated to others, which is too contemptible for logical contemplation, and only fit to guy a reporter. It is very safe to predict that the constitutional question will never be argued in the Supreme Court of the United States. The matter of discretion in the granting or refusing of the writ is the only one susceptible of argument. Here we can conceive that Judge Wallace was put in a very unpleasant predicament, between hearing or refusing to hear argument on the point of Federal juris diction. Unlike our State judges, he incurred no fine for refusing the writ, but still there was the awful responsibility of deciding the point off-hand at the expense of human life. We think the judge did right in granting the writ, in spite of the mysterious and culpable neglect of the attorneys in delaying the application until the prisoner was on the very point of death. But it seems to us he was wrong in postponing the hearing for two months. He should have made the writ returnable forthwith, so that a decision could have been rendered within the week, and if against the application, as it seems to us it must have been, no delay of the execution of the sentence would have occurred. We regard this conflict of jurisdiction as quite serious, very unnecessary, and a dangerous precedent. It is a very serious result that a single judge of the inferior Federal court should have power ex parte to postpone the execution of a State sentence, ratified by the highest court of the State, for two months, or even for two days, and nothing but the gravest apprehension of illegality and injustice could excuse such action. If this precedent is to stand, we shall hereafter have this new phase of delay intro

of counsel can invent a question or suggest a doubt, and we shall have the unseemly spectacle of one Federal judge setting at naught the edict of eleven State judges. It is understood that Judge Wallace himself regretted the delay, but regarded it as inevitable in view of his other judicial engagements. This is not a valid reason. No other engagement of his could possibly be of such vital importance to the people of this State or to the prisoner, and he should have made time to hear and decide the matter in two days. We hope that we shall not be called upon to record the success of this desperate and unfounded scheme for delay, not in the interest of justice, we are convinced, but of trade and rival inventors and manufacturers.

The bad influence of this proceeding is already apparent in the hasty action of the Legislature in the abolition of the penalty of death almost without debate. Not that the result is disagreeable to us, or that we should have anticipated much enlightenment or entertainment from the elaboration of the subject by Mr. Hitt, or that eminent philanthropist and humanitarian, Mr. Hamilton Fish. Still a debate would have shown a certain amount of the deliberations demanded by such a grave proposal. To be sure, it is not a new idea in this State. Capital punishment was once abolished here, except that it might be executed after the lapse of a year at hard labor in prison, upon the warrant of the governor. But this was pronounced unconstitutional on account of the addition of the year's labor, and the next year, if we recollect right, the old law was reinstated, the murderer, Mrs. Hartung, meanwhile escaping the penalty of death on account of the frame of the new law. We have no disposition to join with the newspapers and attribute corrupt motives or raise suspicions as to the integrity of the Legislature. It is idle to talk in this way of such men as Gen. Curtis and Senators Saxton and Robertson, for example. The result undoubtedly came about from a disgust felt at the outrageous course pursued by counsel in Kemmler's case, in which there never was a shadow of doubt nor a decent pretense for debate, but in which, as nearly everybody believes, some powerful citizens or corporations have undertaken to defeat the laws of this State lest their business should be hurt. We should like to see capital punishment abolished, but we do not care to have our wish granted so rashly and from such apparent motives. Probably no healthy Christian would like instantly to be taken at his word when he prays to be removed from this vale of sin and woe and established in a better state. He would like at least to make sundry preparations to accommodate himself to the change, and even then he would like to put off the return day of the summons as long, for example, as Judge Wallace postponed the return day of this writ in Kemmler's case. If the Legislature, after due examination, debate and deliberation, should conclude to abolish capital punishment, we should be glad to see the experiment tried, but even then we

duced in every capital case in which the ingenuity | think it should be accompanied by some precau

VOL. 41-No. 19.

tions and limitations in the matter of pardon, which might require a constitutional amendment. The present action of our Legislature will not be influential in other States, and if it should prevail, will be apt to be regarded elsewhere with disfavor.

Since the foregoing was written, a very full debate on the subject has been held before the Senate Judiciary Committee, in which participated clergymen, Friends and lawyers, and in which nearly every voice was in favor of the measure. It seems moreover that it is thought in the attorney-general's office that the Legislature have the right to restrict the governor's power to pardon, without a constitutional amendment, and a bill is in preparation prohibiting the pardon of murderers, except in cases of new evidence showing innocence, and only on the recommendation of the courts for such reason. But the committee concluded to postpone action indefinitely, and thus the original bill is defeated for the present.

In the current number of the Popular Science Monthly Dr. William A. Hammond has a paper on

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Sumptuary Laws and their Social Influence," which was originally read before the New York Society for Medical Jurisprudence, in which, as is usual in this writer's papers, there is a good deal of plausibility and vigor, and a good deal of extravagance and inaccuracy, The fundamental error pervading the whole paper is that laws regulating the manufacture and sale of intoxicating drinks are "sumptuary" in the ordinary sense of the term. They are not; they are police laws, aimed not at the physical health of the citizen, but at their ultimate influence in generating public evils, such as vice, idleness, ignorance, insanity, poverty and crime. The Doctor says intemperance is a sin, but not a crime. It

is not useful to spend time over this distinction,

but it is undeniable that if the use of alcoholic beverages naturally produces crime, measures may properly be taken by the State to suppress it. The Doctor's views must be received with the allowance

of one who evidently likes to drink his wine and we dare say likes to smoke his cigar, and not only this, but who believes that some people are "benefited by the moderate use" of alcohol, and need it to "supply a positive want of the system." He has a tenderness for the " poor man." We do not believe

that any human being is benefited by even the moderate habitual use of alcohol. But the Doctor begs the whole question in the following words which we have italicised: "States exceed their legitimate powers when they undertake to prevent a person doing that which is beneficial to him, and which does

These are the severest instance of laws aimed at mere personal conduct, and yet we dare say he would have nothing to say against them, as he probably does not personally care to "play policy." He gets an immense income by professing to tell what ails people; why should he not tolerate the "poor man" in taking his chance to get a little money in a way which does no harm to any one else, and supplies a positive need of his treasury? He says: "In the States of Maine, Vermont and Rhode Island I know from my own personal experience, that notwithstanding the stringent liquor laws that exist, it is just as easy for a person to get any kind of liquor he wants as it is in the city of New York." This is not correct, as the Doctor himself tells us in the next paragraph, in which he describes how he was obliged, at dinner at a hotel in Rhode Island, in order to get a bottle of wine, to write a medical prescription for it. He will hardly pretend that this is necessary in the city of New York. The Doctor shows his childlike ignorance of law by describing how easy it is to evade the "anti-treating" law of Iowa. The mode he invents is a patent evasion which would not delude a court a moment. He argues against the cigarette law of this State by asking: "How is the vendor to know in many cases whether the applicant for cigarettes is over sixteen or not? And is there any difficulty for any minor to get a companion who is undoubtedly over sixteen, or some one else, to buy cigarettes for him?" In answer to the first inquiry, we say the vendor takes his risk, just as a man committing a rape on a young child takes his risk of her being under ten years of age, and he takes his risk, even although the youth may lie about his age. As to the second inquiry, the possibility of evasion is no objection to the enactment of a statute. The Doctor observes that a man has a natural right to commit suicide. Possibly, but certainly he has no moral, social or legal right to do so. The Doctor also says: "As I have said, why stop at making drunkenness a crime when there are other vices far more immoral and more destructive to the character of the perpetrator? Why not enact a law against lying? *** But lying in the abstract remains unnoticed by the penal statutes, though a more degrading vice in the eyes of all civilized mankind than mere drunkenness." Now this is a matter of taste, but we think that a sober liar is less dangerous to society than a truthful drunkard. Then again, drunkenness tends to lying. We have thus given a glimpse of the Doctor's views. We do not find it impossible to agree with him about the futility of a statute against mere private drunkenness, or the anti-treating law, or the easy evasion of the cigarette law, but on the whole, the tone of his article is disagreeable to our

no harm to any one else." Granted, good Doctor, opinions of morals, and foolish according to our

perceptions of logic, and we hope his views are peculiar to himself.

but the vice in your argument is in assuming the benefit and denying the harm. Would the Doctor, for example, approve of mild doses of opium habitually, and disapprove our laws against opium? Alcohol is no more habitually necessary, and is infiThe Central Law Journal observes: "Both the nitely more harmful than opium. How would the majority and minority opinions of the United States Doctor get along with our laws against lotteries? | Supreme Court in the Neagle case seem to be

strangely misconstrued. All the judges of that court held that Neagle was, under the evidence, entitled to an acquittal and discharge after killing Terry to protect Judge Field. The only difference of opin-ment-house, or as occupied by a tenant, it may

his residence, and moves out of it, leaving no person in the occupation thereof, it thereby becomes vacant or unoccupied. But if he insure it as a tene

fairly be presumed, nothing appearing to the contrary, that the parties to the contract of insurance

ion was as to whether the Federal or the State courts had jurisdiction to acquit him. Chief Justice Fuller and Justice Lamar, in a dissenting opinion, took ❘ contemplated that the tenant was liable to leave the

the ground that Neagle's authority to kill Terry, and his official obligation to do so, were just such as the sheriff of the county or any bystander might have acted on if present, and that therefore he was to be tried for it just as the bystander or sheriff would have been tried by the State courts, and just as Terry would have been tried if he had killed a judge of the Supreme Court anywhere, except in some spot under the exclusive jurisdiction of the United States. All the judges agreed that the United States courts had no jurisdiction or authority over the crime of murder committed in a State, even when a United States judge was the victim, But the majority of the court held, that although the Federal courts could not have tried and punished Terry for murdering Field, or Neagle for murdering Terry, if it was murder, yet they had authority to acquit Terry if they found he was acting necessarily and properly in accordance with his duty as an officer of the United States." At first this sounds very plausible, but it seems to us it does not eradicate the difficulty. The question is still left was the act murder? To determine the question of jurisdiction, this must first be determined, and the real question is, has the Federal court the exclusive right to pass upon this preliminary inquiry? Here is the point of divergence, and we have the impression that the question lies deeper than the Central

finds it.

IN

NOTES OF CASES.

N Hotchkiss v. Phenix Ins. Co. of Brooklyn, Supreme Court of Wisconsin, March 18, 1890, a policy of insurance was conditioned to be void if the house became “vacant or unoccupied." When the tenant left the house the agent who issued the policy orally informed the insured that the insurance would be good for thirty days, and that the house would be considered as occupied from the fact that his goods remained in it. It was stipulated in the policy that the agent had no authority to change any of its conditions by parol. Held, that the insurer was bound by this declaration of its agent. The court said: "There is no claim here that the agent waived any condition of the policy, but only that he construed certain words contained in it in a certain way. The term 'vacant or unoccupied' has no definite signification, applicable alike to all cases. If it had, the plaintiff would be bound by such signification. Under certain circumstances, premises may be vacant or unoccupied, when under other circumstances premises in like situation may not be so, within the meaning of that term in insurance policies. Thus, if one insures his dwelling-house, described in the policy as occupied by himself as

premises, and that more or less time might elapse before the owner could procure another tenant to occupy them, and hence that the parties did not understand that the house should be considered vacant, and the policy forfeited or suspended, according to its terms, immediately upon the tenant's leaving it. This distinction is made in some of the cases in Lockwood v. Assurance Co., 47 Conn. 553, 561; Whitney v. Insurance Co., 9 Hun, 39; 1 Wood Ins., § 91, pp. 208-210, and cases cited. In this case, the insured house was 'to be occupied by the assured or tenant as a dwelling.' It was in fact occupied by a tenant when the policy was issued, of which the company had notice. It being doubtful what the term 'vacant or unoccupied' means in such a case, and the policy in suit failing to define it, the plaintiff had the right to know whether the insurance company regarded her house as vacant or unoccupied immediately upon her tenant's leaving it, to the end that, if the company did so regard it, she might take the necessary steps to keep good the insurance. This being a foreign insurance company, and presumably having no general officer in this State, there was no one but the agent of the company at Omro to whom she could conveniently and directly apply for the desired information. She promptly applied to him, and he assured her, as the jury must have found, that notwithstanding the removal of the tenant, her policy, just as it was, would remain valid for thirty days. That is to say, he assured her, in substance and legal effect, that the removal of the tenant did not render the premises 'vacant or unoccupied, within the meaning of that term in the policy as understood by the company. We think she applied to the right person for the desired information, and that the company is bound by the construction which in its behalf the agent put upon the policy. The policy contained a stipulation that the agent of the company had no authority to change any of its conditions or restrictions by parol. But it is obvious that this stipulation is not involved in the determination of this case, for the agent did not assume to change any such condition or restriction."

In Deposit Bank of Georgetown v. Fayette National Bank, Court of Appeals of Kentucky, March 8, 1890, it was held that where forged checks on a bank, purporting to be drawn in the name of one of its principal depositors, and running through a period of five months before the forgery is discovered, are accepted and paid by the drawee to other banks, which accepted and paid them in good faith, after inquiry of the drawee as to the depositor's account, the drawee bank must stand the loss. The court said: "The rule laid down by Lord Mansfield is that, if the banker or drawee makes a payment or gives credit upon the strength of a forged signature, the loss must be his, as between himself and the holder. He has not known what he is bound to know.' Price v. Neal, 3 Burr, 1355. This doctrine of commercial law has been followed and recognized by nearly all the courts of the country, and as said by Mr. Justice Story in the case of Bank of U. S. v. Bank of Georgia, 10 Wheat. 333, delivered in 1825, has never been departed from, and in the earlier cases on the subject, able jurists, in alluding to this rule, regarded it as essential as a rule of justice, and right between business men. Mr. Morse, in his work on Banking, has collated the authorities, and presented what he terms the modern doctrine on this subject; but after a careful examination of the authorities referred to, it will be found that the decided weight of authority is with Lord Mansfield, and the rule laid down in Price v. Neal is criticised only as being too sweeping in its character. Nor is it just to say that the rule adopted requiring the bank to know the signature of its depositor is without an exception; for it is undoubtedly true that the neglect or knowledge of intervening parties who come into the possession of the check, and receive the money on it from the bank where it is payable, will in some instances be of such a character as to enable the bank to recover back the money. This doctrine is recognized by Mr. Daniel in his work on Negotiable Instruments; and while doubting the justice of the rule recognized by nearly all the authorities, under which the bank is required to know the signature of its depositor, he proceeds to say that when one knows that it is a forgery, or takes it 'under circumstances of suspicion, without proper precaution, or whose conduct has been such as to mislead the bank,' the money may be recovered back. Vol. 2, p. 669. The case of National Bank v. Bangs, 106 Mass. 441, and Ellis v. Trust Co., 4 Ohio St. 628, are exceptions to the rule, but all recognize the doctrine that where the parties are equally innocent the drawee paying the money must suffer the loss. The two cases- one found in 22 Neb. 769, First Nat. Bank v. State Bank, and the other of People's Bank v. Franklin Bank, 12 S. W. Rep. 716 go further in discarding the rule than any cases to which our attention has been called; but in those cases the banks upon which the checks were drawn were permitted to recover upon the ground that the banks paying the checks had neglected to make the proper inquiry as to the identity of the holder, who was a stranger, and that this was such a want of precaution as deprived the bank advancing the money of any superior equity as against the bank upon which the checks were drawn. The court expressly says in the Nebraska case that the loss may therefore be traced directly to the negligence of the plaintiff in error. Whether the facts of those cases justified the conclusion reached it is not necessary to inquire, as after a careful review of all the authorities it is found that the general doctrine fixing the liability on the drawee in such cases is fully sustained. In Espy v. Bank, 18 Wall. 604, the money was paid on a raised check, neither party being in fault. It was held that the money could be recovered back as

***

having been paid without consideration. The principle involved in the case being considered was not discussed in that case, nor could it have been well applied, as the bank paying the money could not be presumed to have had knowledge of the fraud practiced by the holder in raising the amount of the check that had been given by its regular depositor. We find no court as rigid in adhering to the rule that a bank is bound to know the signature of its depositor on this kind of paper as the Supreme Court of the United States. In Levy v. Bank, 1 Binn. 27, a forged check drawn on a bank, and accepted and carried to the credit of the holder when the fraud was discovered, in a few hours after, and it was held that the bank was the loser. And the Supreme Court, in the case of Bank of U. S. v. Bank of Georgia, when discussing the doctrine that the acceptor is presumed to know the drawer's handwriting, said: 'After some research, we have not been able to find a single case in which the general doctrine thus asserted has been shaken, or even doubted; and the diligence of the counsel for the defendants on the present occasion has not been more successful than our own.' While it rests upon one signing his own name, or that of a bank affixing its signature, to notes to pass as current money, to know that the signature is genuine, it also rests on a bank, where checks are drawn upon it in the name of its customer, to know his signature; and instead of the party to whom the money is paid being required to show negligence in the bank paying the money, it devolves on the drawee to show negligence in the indorser or holder, who in good faith has received the money, before the drawee can escape liability. When the parties are equally innocent the drawee is the loser. There is no precedent in this court on the question. Still we are not inclined to follow the views of text-writers, in the face of so many adjudications on the subject, and with no case presented that goes further than to modify the rule in cases where bad faith or negligence is to be attributed to the holder or indorsee when taking the check. Besides it appears from the finding of facts in this case that Burgess, the real depositor, and whose name has been forged, lived near Georgetown, in which the appellant is located, and was one of its largest depositors. These checks were continued to be paid during a period of nearly five months before the forgery was discov ered - a fact, it seems to us, that should be decisive of this case; and while the appellant, by its officers, was acting all the while in the best of faith, believing that the signature of Burgess was genuine, the length of time these checks were being received for collection, and paid without question, by the appellant, must necessarily fix the responsibility where it was placed by the court below."

THE KEMMLER CASE.

THE Kemmler case in its present aspect is naturally exciting a good deal of attention among the people, and particularly among lawyers. Kemmler was

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