THE

COURT OF APPEALS DECISIONS.

'HE following decisions were handed down Fri
day, May 9, 1890:

FIRST DIVISION.

Order affirmed with costs-In re John O'Byrne; In re judicial settlement of George W. Berger, etc., trustee; People v. E. Remington & Sons (In re proof of claim of Oneida National Bank); People v. E. Remington & Sons (In re Thomas Ringwood et al.); People, ex rel. Myron Allen, v. James J. Martin et al., Police Commissioners; People, ex rel. Frederick Heffernan, appellant, v. John McClave et al., commissioners; Saratoga Gas and Electric Co., respondent, v. Rowland N. Hazard; Walter Weston et al., respondent, v. James R. Watts; People, ex rel. Dilworth Choate, appellant, v. George C. Barrett, justice, etc.; In re application of Niagara Falls Railway Company to acquire title to real estate, etc.; People, ex rel. John Parr, appellant, v. Margaret S. Parr.-Judgment of General Term re versed with costs in that court and in this and judg ment of Special Term affirmed-Robert M. Clare, surviving partner, appellant, v. Samuel Lockwood et al. -Judgment affirmed with costs-Mutual Life Insurance Company of New York, respondent, v. Edwin B. Woods; Edwin M. Millard, appellant, v. New York Harbor Towboat Company; State Bank of Camden, N. J., respondent, v. George H. Richardson; John Franklin, respondent, v. Forty-second street and Grand Street Ferry Railroad Company; New York Smelting and Refining Company, appellant, v. George Lieb; Orlando B. Hastings et al., appellants, v. Giles Lithographic Company; Wellington Porter, appellant, v. Union Blue Stone Company, etc.; Ellen Horgan, executrix, appellant, v. Samuel Riker et al.dismissed with costs-United States Life Insurance Company of New York, appellant, v. George W. Poillon et al.Judgment reversed and defendant discharged-People, respondent, v. William Henry Hazen. The court then adjourned to meet June 2 at Saratoga Springs.

Appeal

NEW BOOKS AND NEW EDITIONS.

WEBB ON RECORD OF TITLE.

This volume, written by Britain R. Webb, and published by the Gilbert Book Company of St. Louis, covers both real and personal property, and gives the statutory provisions of the several States, and forms of acknowledgment. It expands the treatment of an important branch of the law, and assuming its accuracy it must be a valuable assistant.

FLINT ON TRUSTS AND TRUSTEES.

This is a number of the “pony series," compiled by James H. Flint, and published by Bancroft-Whitney Company of San Francisco. It states the substance of a great number of cases, English and American, very succinctly and intelligently. A vast amount of labor has been bestowed here on a very important subject, and it cannot safely be ignored.

RUMSEY'S PRACTICE.

This work, in three large and handsome volumes, published by Banks & Brothers of this city, and written by Justice William Rumsey of the Supreme Court, professes to cover the subject of practice in actions and special proceedings in the courts of record in this State under the Code of Civil Procedure. It is the latest work on practice and the only complete work on practice under our code. This fact alone would give it special importance. It appears to be a well-arranged, comprehensive and practical digest of the decisions. It has all necessary tables and an index of one hundred and fifty pages. It cannot fail to be very useful.

NOTES.

UR estimable neighbor, the Albany Times, seemed

in a figurative mood the other evening, when it reported Judge Arnoux as having assured the Senate judiciary committee that there were once seven hundred capital offenses in England. The same issue stated that Hanlan rowed a mile in 1% minutes. Figures can lie, it seems.

Among the new copartnerships that came into exist ence on May 1 is the law firm of Cowen, Dickerson, Cowen, Edward N. Dickerson, De Lancey Nicoll and Nicoll & Brown, which has been formed by Esek ted with Matthew Hale in the practice of law at AlEdwin H. Brown. Mr. Cowen, who has been associabany, has been concerned in all the great litigations in the northern part of the State, and for the last seven Appeals than any other lawyer.--New York Times. or eight years has argued more cases in the Court of

Counsellor Choate has stood well in this community for a number of years, but he seems to have tiptoed on the highest round of the ladder of rhetoric if a description of his quiet and extremely interesting argument before the McCalla court-martial is correctly photo graphed in this sentence from a morning contemporary: "In a masterly argument, replete with well-rounded periods and occasional outbursts of elements, Lawyer Ch ate closed the case yesterday!"- New York Press. That writer must have had Mr. Dana in his mind.

day, Wednesday, Thursday or Saturday, between ten 13 Lincoln's Inn Fields will repay a visit any Tues

and five; for it is there that Sir John Soane's collection of pictures, statuary and curiosities is housed for the benefit of the public pursuant to 3 Geo. IV, chap. 4. The pictures include two early Turners, the celebrated "Rake's Progress of Hogarth (bought by Sir John at Garrick's sale), and Reynolds' "Snake in the Grass," and there is no need of a catalogue. Sir John, it will be remembered, was the architect of the buildings used as courts of common law from 1820 until the opening of the royal courts of justice. He was a very independent man, and was dismissed from a post at academicians, but sadly failed to appreciate independ the Royal Academy for criticising contemporary ence in others, as is shown by his having cut off his son with a shilling for criticising his works. A portrait of that poor young man, looking amiability itself, can be seen at the museum. He died a pensioner on the civil list. There are also many portraits of Sir John himself by Lawrence and others. The museum is, we believe, rarely visited except by Americans.- London Law Journal.

COMMISSION TO REVISE ARTICLE SIXTH
OF THE CONSTITUTION.

THE New York State Bar Association bill, providing

for a Constitutional Commission to revise the Sixth Article of the present State Constitution relative to the Judiciary and the Courts having become a law, arrangements will be made to furnish members of the Association with a report of the proceedings of the Commission as they take place, during the session of that body.

proceedings of the Commission, to be published by the After the adjournment a volume containing all the Association, will be sent to each member.

L. B. PROCTOR,

Secretary.

The Albany Law Journal.

ALBANY, MAY 24, 1890.

CURRENT TOPICS.

pending controversy between Mr. Dana, of

The Sun, and Mr. Cleveland, a lawyer of the

city of New York, would have no interest for us were it not for the fact that it illustrates very forcibly what the community might expect if the newspaper people should succeed in their attempts, in this and other States, at larger license for libel. It constitutes one of the most dangerous phases and one of the most disgusting examples of that modern personal journalism which is a stigma upon our country, and in the long run will incite to violence

66

fault is wholly in the reporter and in the modern practice of journalism and "interviewing." Personal quarrels between citizens, no matter how distinguished the actors, are not proper items of news, although it must be conceded that they do sell the newspapers. It is not a profitable or edifying spectacle to see an ex-president of the United States and a distinguished scholar and editor making faces at one another and calling one another names, like fish-wives, school-boys or clowns in a circus. It has a tendency to make the community believe that what each says of the other may be true, and this is disheartening and demoralizing. So we have no admiration for Mr. Crawford, the truthful reporter, impertinent intermeddler and mischievous talebearer. He was engaged in dirty business, and if in washing its hands of him the World had altogether purified itself we should rejoice. But we fear it will continue to be a scandal-loving World, and that the Sun will continue to be eclipsed by

the hated shadow of the Fat Man.

Mr. Hitt exaggerated when he declared in the Assembly that the only persons in favor of the infliction of capital punishment are the prosecuting attorneys and the clergymen. Taking these classes as types, there is much truth however in his declaration. Ministers of public justice and ministers of spiritual consolation may stand as representatives of those who are brought into closest contact with the criminal classes and of the religious part of the community, and it is probably true that a majority of these are in favor of capital punishment. But Mr. Hitt omitted to mention a very large and influential class who are almost unanimously of the same opinion, namely, the newspaper people. They want to report executions because no issue of a newspaper sells so largely as one containing an account of the choking to death of a human being at the hands of justice, unless perhaps one containing an account of a prize-fight. It is because newspaper reports of executions under the new law are forbidden, and not from motives of humanity, that the newspapers rail so loudly against the law. Meanwhile the only pretext on which capital punishment can be justified, its pretended deterrent effect, is significantly illustrated by the fact that for about a week or ten days past there has been a murder nearly every day in this State. One or two came off while clergymen were urging this argument to the Senate Judiciary Committee. We call attention on this point to the following table of murders and executions in this country during the last six years, which we find in a recent newspaper:

and homicide. Even now we should tremble for the consequences if Mr. Cleveland should run against Mr. Dana. The editor is unlike Julius Cæsar in one respect, at least - he distrusts fat men; he seems to prefer "the lean and hungry Cassius." He first exhibited this animosity toward General Hancock, a citizen who was fully as useful and honorable to the republic as the editor of the Sun, by sneering at him as a good man who weighs two hundred and fifty pounds." Now he comes down on Mr. Cleveland, and circulates the rumor that he is growing stout at the rate of twenty-five pounds a month. One would suppose that he would be grateful to Mr. Cleveland for having advertised his Cyclopædia so extensively and effectively by quotations from it in his speeches on his magisterial progress in the West and South, How much Mr. Cleveland weighs, or is likely to weigh, is of very small interest to society, and is not a legitimate topic of journalism. But a newspaper reporter sees in the situation an opportunity for a sensation, goes to Mr. Cleveland, tells him what Mr. Dana has published-which it seems he otherwise might never have heard - and thereupon Mr. Cleveland very naturally and excusably waxes angry, and very natrally but inexcusably waxes profane and abusive of Mr. Dana. So far there is no public harm done, but at this point the reporter indefensibly prints, not only what Mr. Cleveland authorized him to publish, but much of the other matter. Thereupon Mr. Dana very naturally gets angry and very inexcusably makes other comments on Mr. Cleveland's personal appearance a very gross, vulgar and outrageous personal attack, we must say, and a disgrace to Mr. Dana and his journal. The reporter's ungrateful principal, the World, "bounces" the reporter, having reaped the advantage of the sensation, and seeking to earn a little reputation for decency and fairness. Now the reporter is posing as a martyr, and the other newspapers are upholding his conduct, apparently quite insensible to the fact, that even if he told the truth in his report, he acted like a cad in telling it, and his newspaper was guilty of If this is correct, it shows the shallowness of the a gross and wanton libel in publishing it. The pretense about the deterrent effect, and also the VOL. 41 No. 21.

1884..
1885.
1886.

1887..

1888..
1889.

Totals..

Legal LynchMurders, executions. ings.

3,577

103

219

1,808

108

181

1,499

83

133

2,335

79

123

night on three different occasions, and fired their guns at his gate-post, sang obscene songs, and applied vile epithets to him in the hearing of his wife and five daughters; that his wife became pale and trembled with fear, and his little girl cried in a frenzy of excitement; that they threw a missile against his house; that he fired first to frighten them away, and that the second shot, which took effect, was fired at the crowd, but not until he was satisfied they intended to shoot him, as they were loading their guns. Plaintiff's son was in the crowd, armed with a revolver. Held, that the refusal to leave the question of justification to the jury was error. The court said: "On this evidence, we think the jury might well have found that the defendant was justified in doing as he did. This may have been called a 'charivari,' | but it was to all intents and purposes a riot, participated in by a very large number of desperate and evil-minded persons armed with guns. It was persistent in molesting the defendant's home and family, night after night, and late at night, with increasing disturbance and threats of shooting and personal violence, interspersed with obscenity and ribald songs, in the hearing of the defendant's wife and his five young daughters. They may not have, yet, committed any personal violence upon the defendant or his family. But the effect of fear and fright might have been as serious and as harmful. The defendant might have reasonably apprehended that, at any moment, they would resort to personal violence, perhaps of the most shocking character. Who can fix limits to the conduct, excesses and depredations of such a riotous crowd of bad men? How long should the defendant bear, without resistance, the repetitions of this riot, night after night? What shall he do? He is alone, and unable to cope with such a desperate and armed body of rioters. When may he arm

6

zen to interfere for the suppression of nots, so if a riot can only be apparently suppressed by the taking of life, taking of life, even by a private citizen, will, under such circumstances, be excusable.' 1 Whart. Crim. Law, § 499; Pond v. People, 8 Mich. 150. Citizens may of their own authority lawfully endeavor to suppress the riot, and for that purpose even arm themselves; and whatever is honestly done by them, in the execution of that object, will be supported and justified by the common law.' 2 Whart. Crim. Law, § 1555, and note 1. 'It was the defendant's right to have had the question of his justification submitted to the jury.' State v. Adams (Iowa), 43 N. W. Rep. 194. That case was also of a similar riot, and life was taken. When one has used a certain degree of force in order to protect his property, it is not matter of law for the court, but matter of fact for the jury, to decide whether that degree of force was necessary, and therefore justifiable.' State v. Clements, 32 Me. 279. Many other cases of similar import may be found in the very able brief of the defendant's counsel. This case is of very grave importance, and the law should be well understood in respect to such riotous outrages upon peaceful and unoffending citizens, and their families and property, at midnight, and as to what they may do in their defense. It is time that such riots, and all riots, should cease within this State. There is nothing more dangerous and menacing to the peace and good order of society and destructive of all private rights. They ought not at least to be encouraged by any fine-spun and hair-splitting theory or dogmatical judgment, made applicable to all cases alike, as to just what the beleaguered and outraged private citizen may not do to defend himself, his family and property, against them.”

In Hines v. Commonwealth, Court of Appeals of Kentucky, March 20, 1890, it was held that where a

and sworn to by the declarant, but the accused procures the rejection of the writing, he cannot object to oral testimony detailing what the deceased then said, provided it be shown that the statements were made under conditions rendering them admissible as a dying declaration. The court said: "The authorities are not altogether in harmony, whether, if a dying declaration, when made, be reduced to writing, parol evidence may be given as to the declaration, although the writing be within the power of production by the party offering the oral evidence. Wharton says however: 'If the declaration of the deceased, at the time of his making it, be reduced into writing, the written document must be given in evidence, and no parol testimony respect

himself and defend his family and his prop-dying declaration was made and reduced to writing erty from such continued outrages and assault? They had threatened to shoot him. Who can say that his life was not in danger? As a father, he was charged with the protection of that which was dearer than life. What devilish insane idea might strike such a lawless horde of miscreants no one could tell. Such a riot is pregnant with manifold dangers. It must be suppressed either by the constituted authorities or by armed personal resistance. Even a homicide is justifiable when committed by any person while resisting any attempt to commit any felony upon him, or upon his dwelling-house, or in the lawful defense of his person, or of his wife and children, when there shall be reasonable ground to apprehend a design to do some great personal injury, and there shall be reasonable cause for believing its contents can be admitted. And if a declaing that there is imminent danger of such design being accomplished. Sec. 4366, R. S. 'The defendant was justifiable in acting for his defense, according to the circumstances as they appeared to him.' Patten v. People, 18 Mich. 333. In that case it was a similar riot, and the mother was injured by fright. Riots are often productive of the most serious crimes, and as it is the duty of a private citi

ration, in articulo mortis, be taken down in writing, and signed by the party making it, the judge will neither receive a copy of the paper in evidence, nor will he receive parol evidence of the declaration.' 1 Whart. Crim. Law, § 679. Russell says: 'If the statement of the deceased was committed to writing, and signed by him at the time it was made, it has been held essential that the writing should be