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Horse v.

opposite to the banner.
A rope led from one cor See also Sherm. and Redf. Neg., 388;

Richner of the bottom to an awning post on the side- mond, 41 V't. 435; Winship v. Enfield, 42 N. II. 199; walk, and one running from the other corner of the Dimock v. Sutfield, 30 Conn. 129; Bennett v. Lovell, bottom was fastened to the sill of a window of a 18 Alb. Law. Jour. 303; Harris v. Mobbs, id. 382. house. The jury found that the banner was an ob- | We are unable to discover any sensible reason for ject likely to frighten horses ordinarily gentle and holding that an object permanently suspended diwell trained. The banner had been up a consider- rectly over the travelled part of a highway, although able time. In an action by the plaintiff to recover fastened to supports outside of the limits of the damages sustained by being thrown from his buggy same, is not an obstruction to travel, if it naturally while his horse, which had been frightened by the tends to frighten horses of ordinary gentleness. banner while passing under it, was running away,

Such an object drives travel from the street over held, that the defendant was liable. The court said: which it is suspended, because discreet persons will “The argument presented by the defendant is this: avoid the risk and danger incident to an attempt Thát it is not the duty of a municipal corporation to

to pass under the same. It endangers travel and remove objects suspended over the street, fastened

makes it perilous to all travellers riding in conveyto supports wholly outside of the street, if they are

ances drawn by horses. Such an object placed in a elevated so high as not to actually obstruct the use

place so conspicuous as this banner was, within the of the road-bed or sidewalk. In this State the pro- plain sight of borses, is to be distinguished from position, as stated, has never been approved by any objects which are suspended over sidewalks and reported decision, nor have I been able to find any

fastened to the face of a building, like a sign or a rule or authority which supports the argument. I

bracket fastened in the face of a builling, on which think the doctrine contended for was repudiated in

traders display their goods, or a slow-case standing Hume v. Mayor, 74 N. Y. 264. In that case the erec

in front of a store. In many of the cases cited the tion complained of as an obstruction to the street argument is rejected that a road-bed can only be was an awning made of a permanent roofing of

rendered defective by something in or upon the road boards over the entire sidewalk, resting against the

itself, as being narrow and unre:asonable. See Vorbuilding and supported on the outer line by wooden ristoun v. Joyer, 67 Pem. St. 365; Grore v. City of posts standing in the ground, near the curl)-stone, Fort Wayne, 45 Ind. 429; S. C., 15 Am. Rep. 262.” and was used wholly for private purposes. This was held to be an unauthorized obstruction, or an In Pilgreen v. Stute, 71 Ala. 368, it was held that encroachment upon the street, and the city was held when goods are forwarded through an express comliable to a person injured by its fall, for the reason pany, by instructions of the purchaser, marked “C. that it was the duty of the city to remove it after | 0. D.," the carrier is the agent of the purchaser to notice of its erection. In the opinion of the court, receive the goods from the seller, and the agent of no point was made of the circumstance that a part the seller to collect the price from the purchaser; of the structure was supported by a post standing and the sale is complete when the goods are delivin the street. The court'referred to several Massa-ered to the carrier. The court said: “Upon all chusetts cases, with approval, where hanging objects sales of specific goods in the possession of the venwere supported by fastenings in the face of the dor, the contract is complete when the buyer and buildings which were standing on the line of the seller agree; the property in the goods then passes street, which were held to be unlawful obstructions. to the buyer, and the risk of loss by accident, or The cases to which I refer are, Pedrick v. Builey, 12 from any other cause than the fault or negligence Gray, 161; Day v. Inhabitants of Wilford, 5 Allen, of the seller, is cast upon the buyer as an incident 98. The court, in commenting on these cases, said of ownership, though actual possession may not pass, they are precisely in point upon the question and he may not be entitled to it until he pays the whether such a structure, if in a dangerous position price, or perforins some other like stipulation. 1 or condition, is a defect in the street, which a mun Pars. Cont. (6th ed.) 525. An illustration given in icipal corporation, in pursuance of its general duty, some of the books is, 'if a man sells his horse for is bound to remove or repair. It has been repeat-money, though he may keep him until he is paid, edly held that it is the duty of a municipal corpora. yet the property of the horse is in the bargainor or tion to remove objects deposited upon the streets, buyer.' When buyer and seller are distant from the natural effect of which is to occasion accidents, each other, the delivery of the goods to a carfrightening horses of ordinary gentleness, although rier by the seller, in accordance with the specific rethe objects were placed wholly outside of the quest of the purchaser, is a delivery to the purtraveled part of the road-bed. In Eggleston V. Colchaser. 1 Pars. Cont. (6 ed.) 532; Benj. Sales (3rd umbia Turnpike Co., 18 Fun, 146, the court re Am. ed.), § 181. Applying these settled rules of marked: The more common causes of injury and the law of sales of personal property to the facts, the liability are structural defects or means to repair the transaction cannot be located at Columbiana. All road-bed; but a road may be also rendered unsafe, the dealings between the buyer and the seller were with consequent liabilities therefor, by unsightly at Calera. There the offer of the buyer was received, objects placed or permitted to remain upon it, which accepted and acted upon, and there every act was are calculated to frighten animals employed thercon. done, which it was intended the seller should do.



The general property in the thing sold there passed Common Pleas would order the release of the said to the buyer, by the delivery to the carrier of his prisoner. The court said: “The questions involved own appointment, though he could not entitle him in the determination of this case are new. self to possession until he paid the price to the car

The question is therefore one of comity between rier. The carrier was his agent to receive the thing the State of New York and the State of Pennsylsold at Calera, and was the agent of the seller to vania. Every sovereign State is independent of receive the price.' It would have been a neglect of every other in the exercise of its judicial power, and duty, as a collecting agent, renderlng the express

one of the purposes of this judicial power is to puncomyany liable to the seller, if there had been a de-ish all offenses against the municipal laws of the livery of the whiskey without payment of the price; State, by whomsoever committed, within its terriand if possession had been wrongfully obtained, it tory. This independence and sovereignty of the may be, the seller could have reclaimed it. The several States exists as truly as does the independgeneral property however passed to the buyer by ence and sovereignty of the United States from that the delivery to the express company at Calera; the of a foreign State or sovereignty, subject only to risk of loss then passed to him; though there may the powers expressly conferred by the States upon have remained in the seller a special property, the general government. It follows from this that and though the buyer could not, without the pay there is no rightful authority or power on the part ment of the price, entitle himself to the absolute of one State to invade the territory of another State property and to the actual possession. “In law,' as for any purpose whatsoever, except it be given by is observed by Mr. Benjamin, 'a thing may in some

the Constitution of the United States. And the cases be said to have in a certain sense two owners, power to extradite fugitives from justice from one one of whom has the general, and the other a spec- State to another is expressly given by the 4th arial property in it.' Benj. Sales, § 1. And this oc ticle, section 2, Constitution of the United States, curs in sales of personal property, when the bargain and the mode regulated by the act of Congress of is struck, and the payment of the price is intended the 12th of February, 1793. But the facts in this to be simultaneous with the delivery of possession. case show that the prisoner was not brought into The seller has a lien on the property for the price, our jurisdiction in pursuance of the mode thus reguand the right of possession until it is paid. A sale, Inted by law. That the manner of his arrest and the which will be in violation of the statute under whichi means employed to bring him out of the State of the conviction was had, must, within the designated New York and within the State of Pennsylvania locality, pass the title; a sale mace in a different constitutes the crime of kidnapping at common law locality, where the liquor is set apart and delivered will not be denied; that it was in express violation to the purchaser, or to a carrier for him, passing of the statutes of the State of New York, punishing title, is not within its words or spirit. Garbrucht v. the crime of kidnapping (vidle Penal Code of Commonwealth, 96 Penn. St. 149; S. C., 42 Am. Rep. New York, sec. 211), will not be disputed; that it 550." This is contrary to Buker v. Bourcicault, 1 would be so held and construed by the courts of Daly, 23. The Supreme Court of Vermont stand that State under the stațute cannot be doubted, equally divided on the question. We believe the since the decision in the case of ladden v. People, Alabama doctrine to be wrong.

25 N. Y. 373. If the power to surrender the pris

oner was vested in the executive of the State and he In Vorton's case, Pennsylvania Common Pleas, refused to deliver him, no legal power exists any. Dec. 1884, 16 W. N. C. 395, a citizen of New York

where to compel him to do so, even if he were a committed a criminal offense in Pennsylvania, and fugitive from justice. Commonwealth v. Dennison, fled into the State of New York, whence he was by should refuse to release the prisoner upon the de

24 Hlow. 66. And the same we claim is true if we artifice and force brought back into Pennsylvania, mand of the executive department of the State of and arrested, and after hearing upon habeas corpus New York. No power but that of force and war was remanded by the Court of Common Pleas to the custody of the sherif"; thereupon the governor of could compel his release. This therefore brings us New York formally requested the governor of Penn- to face the importance of the question, shall this sylvania, if consistent with his ideas of justice and prisoner who stands indicted for violation of law executive power, to cause the release of the prisoner; within our jurisdiction be set at large, only from and the governor of Pennsylvania, in a communica- considerations of utility and mutual convenience of tion to the president judge of the said Court of the States of New York and Pennsylvania, ex comitate Common Pleas, disclaiming executive power to

ob reciprocam utilitatem. We are not wliolly withorder such discharge, and recognizing the power of out precedent however. In Dow's case, 6 Harris. 37, said Court of Common Pleas to act in the premises, Chief Justice Gibson, a greater judge than whom requested the said president judge to cause the re

never lived, said, 'IIach the prisoner's release been lease of the prisoner. IIcli, that in the exercise of demanded by the executive of Michigan, we would the undoubted power and discretion of the Court of have been bound to set him at large.' It was not Common Pleas, and in the exercise of that comity, shown nor alleged in that case that any law of which does now and ought always to exist between Michigan had been violated. Indeed it is a quesadjoining State in this government, the Court of tion whether the prisoner, Dow, as within the ter


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ritorial jurisdiction of the State of Michigan when taken. But in this case the statutes of the State of New York have been violated, aside from the invasion of her territory. Shall it be said then that a court sitting to administer and vindicate the law in this case shall close its eyes to the violation of the law by which the prisoner is brought within its jurisdiction? That the end to be accomplished justifies the means employed cannot and ought not to become a maxim of legal jurisprudence. To deny this demand for the release of the prisoner, would be to encourage the violation of that comity which does now and ought always to exist between adjoining States in this government. It would be, in our judgment, a precedent full of evil consequences to the citizen in his right to be secure in his liberty. When one violates the law and flees from justice, the Constitution of the United States and the act of Congress thereunder afford a complete remedy for his arrest and return. That occasionally the remedy may be too slow and the guilty escape, can not avail in this case and overcome what to us, upon careful consideration, seems a pluin duty.”


Warwick had not attained an equal distinction of infamy in public estimation, but there was, if our reading of the facts be correct, little to choose between them. Both were emphatically about town,” and passed the greater part of their waking hours at the card table, in the bagnio, or running amuck through the streets of London with the notorious and dreadled Mohocks. Amongst their chosen associates was one ('oote, an admirable specimen of the “led captain," familiar to the reader of the novels of that day; a genus represeated amongst ourselves by the toady and tufthunter. Coote was Lord Warwick's particular parasite, and as we have said, it was for his death that these two worthy noblemen found themselves arraigned. On March 28, 1699, the lords filed in stately procession into Westminster IIall, duly attended ly clerks, masters in chancery, sergeant-atarms, ushers and the common law judges; the lord chancellor, Somers, Vacanlay: great favorite (who was also lori high steward for the nonce), following in solitary dignity in the rear. 111 standing uncovered the royal commission wils read, and after a long perusal of oslicial records in barbarous Latin the Earl of Warwick was brought to the bar. The lord high steward shortly addressed him, informing him that he stood indicted by the grand jury of Middlesex, and that whilst he could not, as the law then stood, have the assistance of counsel upon matters of fact, no evidence would be received against him but such as was warranted by law, no weight would be laidl upon the evidence but such as was ngrecable to justice, and that he might assuredly promise himself throughout the whole trial to find all the candor and compassion consistent with impartiality: · Beyond that nothing is to be expected; their lordships (:in never so far forget themselves as to depart from what is right, and to draw the guilt of blood upon their own heads; but if your lordship is innocent you are safe.” The indictment was then read in English, and the prisoner plealed not guilty, electing to be tried in the usual formula – " by God and by his peers.”

For the Crown, Sergeant Wright opened the pleadings, and the attorney-general (Sir T. Trevor) stated the evidence brielly and clearly. The first witness Wily Samuel Cawthorne, the “ crawer," or in modern parlance, bar-tender, of the Greyhound Tavern in the Strand. lle proved that on the night of Saturday, October 29, 1698, Warwick and Mohun were in company at the tavern with four officers, Captains Coote, French, Dockwral and James. Coming down stairs about midnight they called for sedan-chairs to go home. Witness went to fetch chairmen, and on his return to the house heard swords clashing. Entering the bar-room he found the revellers divided into equal parties on each side of the bar, Warwick, Johun and Coote forming one faction, anıl the other three opposing them. He heard ('oote say, with a vigorous expletive, that he would laugh when he pleased, and frown when he pleased," but on witness' entry the


THE MURDER OF CAPTAIN COOTE. FAMOUS AMOUS cases usually derive their celebrity

either from the importance of the issue or the intricacy and mystery of the facts, but there is a third class in which the interest arises from the sudden and powerful side-light they throw upon life and manners in by-gone times. Of such is the trial which we have now to sketch. Thackeray, with the instinct of a great master, has not failed to avail himself of its strong colors in “ Esmond," to our thinking the most perfect of his works, and no part of that exquisite tale is more striking than the chapter in which he describes the duel between Castlewood and lohun. Although taking the principal incidents from our present trial, he has used the novelist's license to mix them with circumstances drawn from the subsequent encounter between Mohun and the Duke of Ilamilton; a license which is, of course, not open to us in our more humble capacity of chroniclers of facts.

In the spring of 1699 the Ilouse of Lords bled in solemn conclave to try two members of their august body, the Earl of Warwick and Lori Mohun, for the murder of Captain Coote. Molun was the most notorious "hard case" of an age prolific in rakish scoundrels. Once before he had ippeared at the same bar on a similar charge. Whilst attempting with a worthy associate to abduct the famous actress, Mrs. Bracegirdle, her protector, Captain Mountford, had been run through the body, but as Mohun had not actually dealt the fatal blow, his peers, by a vote of sixty-nine to fourteen, acquitted him of the crime, and he was restored to a society of which he was the pest.

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swords were put up. Coote, violently excited, was should be admitted to the house, and that he hot for fighting, but Warwick and Mohun threat- should be denied all inquirers, but in about half an ened to send for a file of musketeers. They ulti hour James and Dockwra arriving, Warwick bimmately persuaded him to get into a chair, and each self let them in. As to the swords it peared of them also taking chairs the three started off to- pretty clear that Warwick's was the only one gether. The other three quickly followed, Dock-bloody, and also that it was the only broad sword, wra exclaiming “they did not care a farthing for though it must not be forgotten that nothing was them, they would fight them at any time.” Caw seen of Mohun after the affray, nor was his sword thorne gave his evidence in a most confused and ever accounted for. contradictory manner, and got roughly handled on The surgeon who examined Coote's body after all sides, especially by the lord high steward. death deposed to finding two wounds, one on the

The next proof was that of the chairmen, the breast about one-half inch wide and five inches first being Browne, who carried Coote. He de- deep, and the other under the ribs, made from beposed that Coote gave orders to be taken to Leices. hind, and about one inch wide and six inches deep, ter Square. Warwick and Mohun protested and but though much pressed, he would not say that begged him to go home with them, and “leave it the difference in breadth denoted that the latter alone till the morning,” but he would not hear wound had been made by a broad sword. them. On their way Mohun stopped the chairs, Some minor evidence closed the case for the and again resumed his endeavors to pacify Coote, crown, and Warwick opened his defense. He albut whilst they were talking the chairs of the leged the fatal quarrel to have arisen from an unother three passed by, and Coote instantly ordered provoked insult given by Coote to French, and his bearers to take up and hurry to the square, charged the death on the latter. He referred to threatening to run them through if they went no the trial of French, James and Dockwra at the old faster. Arrived at the square Mohun paid the fares, Bailey, when they were convicted of manslaughter and the three comrades entered the enclosure. only, and dwelt with somewhat suspicious emphasis Honest Browne filled and lighted his pipe, and was upon his long friendship with the deceased, and just ready to wend his peaccable way homeward the many favors he had conferred upon him, when he heard a cry for chairs. With much ado amongst others lending him a hundred guineas togetting his cumbrous vehicle over the railings, and ward buying an ensign's place in the guards. His making for the spot whence the cries proceeded (it evidence consisted merely of witnesses to prove being a very dark night and impossible to see) he this intimacy, such as that he used constantly to found two men holding up Coote in their arms, and pay Coote's reckoning, and once settled the tailor's crying out My dear Coote! My dear Coote!” | bill when that irate tradesman lid arrested the galCoote was covered with blood. They endeavored | lant captain. From such an expensive intimacy he to put him in the chair, promising Browne £100 to might be well content to be delivered, but it does make amends for his ruined sedan, but Coote not seem to have occurred to the prisoner that the would not be put in, and in the course of their evidence could be looked at from this point of view. struggles the chair was broken. Then the watch When however Warwick proposed to call Captain was called, who strictly following Dogberry's French a battle royal arose amongst the lawyers. time-hallowed advice, “would not come near, for | The objection of the crown was that a man conthey said it was out of their watch ;” “so," con victed of felony, and not pardoned, was incompetinues Browne, “I staid about half an hour with

tent to testify, and that his having the benefit of my chair broken, and afterward I was laid hold clergy did not remove this disability. The point upon, both I and my partner, and we were kept till was most elaborately and learnedly argued by Sir next night eleven o'clock, and that is all the satis-Thomas Poroys for the prisoner, and by the attorfaction I have had for my chair and everything." ney-general for the crown, and the peers calling for Of one thing Browne was very certain, viz.: that the advice of the judges the lord chief justice, Warwick was not one of those holding Coote up. Treby, delivered a long opinion, going into the Amongst the other chairmen we need only notice whole subject of benefit of clergy, and concluding the evidence of Applegate, who, after carrying against the competency of the witness.

Another Mohun to the square, heard the second call of point then arose, Warwick submitting that he being chairs, and took up Captain French, desperately on Coote's side in the affray could not be held guilty wounded. Him they carried to the bagnio in Long in an equal degree with those who were his oppoAcre, Warwick following in another chair. When nents, but this was too flimsy, and soon fell through. they got to the bagnio French was so weak with

Ultimately the prisoner submitted his whole deloss of blood that he fell to the ground.

fence without further comment, and the solicitorNext came Pomfret, the servant at the bagnio, general (Sir John Hawley) rose to reply. His voice who let Warwick and French in. Ile deposed that was too weak to be heard by the more distant Warwick's sword, which he still held in his hand, peers, and there were calls for some one else to sum was covered with blood, wbilst French's sword was up, especially for Mr. Cowper (whose acquaintance clean. The surgeon was called up to dress French's we made in our last sketch). Mr. Solicitor however wounds, and Warwick gave strict orders that none did not suffer himself to be sat upon, and acquitted

himself of his task very sufficiently. After suic Warwick or Mohun, both glad of a convenient opcinctly reviewing the evidence he referred to the portunity to rid themselves of an expensive and nature of the wounds and the state of the prison- turbulent hanger-on. For further information er's sword, and threw cold water upon the David upon

the whole matter our eaders may consult and Jonathan business, observing that the prisoner Swift's Letters to Stella, Burnet, Hamilton, the appeared much more concerned for Captain French, State Trials, in short every contemporary work of who, as he now alleged, had killed his friend, than history or memoirs. for that friend whom he had abandoned dying on the field. Upon the law he insisted that no satisfuctory eviilence having been given by whose hand

PRESUMPTION OF MARRIAGE. the fatal blow had been struck, Warwick, being

II. present and participating in the fighting, must in

A jury would have been warranted under the circur an equal share of the guilt of murder.

cumstances of the case to have inferred an actual marAt the close of the solicitor-general's specch the riage, and the court below had sufficient ground to lords retired to their house. After two hours' de draw that conclusion; and as they have drawn it, and liberation they returned to the hall and gave their

their decision being a substitute for a verdict, we will

not disturb it. Now it is apparent that the court verdict, each peer rising in order of precedence,

found a marriage in fact where in all probabilities from the prisne baron upwards, and uncovered, no legal marriage existed. The chances are that the with his right hand upon his breast, pronouncing parties considered that on the death of Guest their his judgment thus: “Not guilty of murcler, but marriage becamo valid by their subsequent recogniguilty of manslaughter, upon my honor." The lord tion of it as valil. That this would not constitute

them husband and wife is clear on principle, and has high steward then demanded of the prisoner what

the sanction of the United States ('ircuit ('ourt for he had to say why judgment of death should not the Eastern ('ircuit of Missouri. Ilolabird v. Allantic be pronounced against him according to law, upon Ins. Co., 12 Am. Law Reg. (N. S.) 566; S. (., 2 Dill. which Warwick claimed the benefit of his peerage,

('. ('. 167. In this case Judge Treat, in charging the according to the statute of Edward VI.

This was

jury, said:

“The attention of the jury is directed to the difallowed him, and with a gentle reprimand from the

ference between a mere attempted recognition of a lord high steward, who reminded him that he could

past void marriage and a subsequent expression of munot have the benefit of peerage twice, Warwick tual and then present consent to be husband and was discharged, and the house adjourned.

wife.” The cases of Rose v. Clark and Jackson v.Clow Next day Mohun was put upon his trial, but the

are very similar in their facts, and in each case an ac

tual marriage was found and the finding sustained on proceedings being a mere recapitulation of the case

appeal. The case of llynes v. J1cDermott, recently against Warwick need no detailed mention. We (1883) decided by tbe New York ('ourt of Appeals is only notice that the very fact of his disappearan even a stronger authority in support of the proposiimmediately after the duel, so suspicious in itself, tion that the marriage may be inferred from cohabiturned out in his favor, for there being no evidence

tation against the probabilities of the case.

The acto prove that he entered the square and shared in

tion was ejectment. The plaintiffs claimed to be the

widow and legitimate children of one William R. the tight, he escaped any condemnation whatever, Hynes, and their right to recover the real property being unanimously found not guilty either of mur depended upon their substantiating that claim. The der or manslaughter. Thus the greatest scoundrel vame of the widow before alleged marriage with unhung in Englanıl escape.l scot-free.

Hynes was Saunders. The facts of the case are very Upon his acquittal he made a short speech, prom

clearly stated in the opinion of the court.

pears," says the court, “that Mrs. Saunders in May, ising the lords that he would make it the business

1871, had left the Langham hotel and was living in of the future part of his life to avoid all things that lodgings at 169 Clereland street, London. It was might bring him into such a position again. Ile proved that on the night of Derby day, in that month, kept this promise with such fidelity that a few years

Mr. Ilynes visited her, and desired to remain with her, after he forced the Duke of Ilamilton, a compara

and she refused to consent without marriage and

complained that he had not kept a promise of martively respectable man, into a duel, and falling riage. Ile said he did not believe in the marriage mortally wounded, retained sufficient malice in the ceremony or the mumbling of priests. Ile thereupon, moment of death to shorten his sword and drive it in the presence of witnesses, took a ring from bis through his noble opponent's heart. Thus the devil / pocket and gave it to her, saying that if she would got his own after all.*

wear the ring and be true to him he would consider Upon the principal case; whilst the verdict of the

her his wife as much as if they had been married in

church. She accepted the ring on these conditions, lords was only what might be expected from a mis

and he remained there that night, and from that time cellaneous body of men in those times, and such as

until his death, openly lived and cohabited with her. would to-day be rendered in similar circumstances At the time of this occurreuce Mrs. Saunders was by a Kentucky jury, our own hypothesis of Coote's pregnant of the eldest child, William Ross, born in death is that he was stabbed from behind either by

the following December." He was one of the plaint

iffs and was adjudged to be legitimate.) The court NOTE-It is fair to stato that there is another account

continues: “This evidence seems conclusively to esof Hamilton's death which attributes it to Mohun's second,

tablish the commencemeut of an illicit intercourse beMacartney, who, seeing his principal killed, came up and tween Mr. IIynes and Mrs. Saunders, prior to May, stabbed Hamilton as he stood over the dead body. We 1871, and also that the cohabitation did not commence have given the one which appears to us best authenticated. with a marriage valid by the Euglish law."


" It ap

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