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The Albany Law Journal.


ALBANY, JUNE 19, 1875.


HE Court of Appeals on Tuesday reversed the judgment in the Tweed case, and ordered a discharge of the prisoner. Very elaborate and wellconsidered opinions were prepared by Judges Allen and Rapallo, in which all the other judges concur. The case came up on proceedings by habeas corpus against Liscomb, the warden of the New York penitentiary and the court considered in the first place its jurisdiction under the writ, in view of the provision in the habeas corpus act that persons shall not have the benefit of the writ who are detained by virtue of the final judgment or decree of any competent tribunal. The court held that it had the power to determine whether the judgment emanated from a court of competent jurisdiction, and whether the court had the legal and constitutional right to give such judgment, adding, per Allen, J., that "if the record shows that the judgment is not merely erroneous, but such as could not, under any circumstances, or upon any state of facts, have been pronounced, the case is not within the exceptions of the statute." Upon the question of the legality of the sentence, the court was unusually emphatic. Judge Allen says: "I have referred to the several cases cited from our own reports, and no warrant can be found in any of them, or in any remark, casual or otherwise, by any judge, for cumulative punishment upon a conviction of several offenses charged in a single indictment, the aggregate punishment exceeding that prescribed by law for the grade of offenses charged." The sentence is pronounced to be in open and palpable violation of a positive statute," and the indictment is spoken of as "an anomaly," and as "probably without precedent." In closing, Judge Allen says: "From some expressions of judges and the remarks of text-writers, there was some color for the idea that several distinct offenses could be tried at the same time, but there was no real or true warrant in this State for several and distinct judgments upon a single indictment in the law, and for that reason the prisoner should have been discharged upon the expiration of the imprisonment for one year, and the payment of a fine of two hundred and fifty dollars."


VOL. 11.- No. 25.

Very few lawyers will be surprised at the result of the Tweed case - not so much because of the clearness of the legal questions involved, as because of the intemperate conduct of the judge who presided at the trial. That Judge Davis should have particularly desired the total eclipse of Tweed was natural enough, having but recently been lifted into the judicial office by an anti-Tweed wave, and being himself a politician and a partisan; but we have got so accustomed to at least an assumption of impartiality on the part of our judges that the total absence of it at the trial created a very general impression that, in his zeal to secure a public good, Judge Davis had quite overstepped the limits of the law, as well as of judicial propriety. That he did overstep the law, the Court of Appeals now declare in very positive and unmistakable terms; that he was actuated by motives that should never stir the judicial bosom is very clearly intimated by the court, and a rebuke is administered to him at the close of Judge Allen's opinion, which is the more severe because so well deserved. Judge Allen speaks thus: "I would not be thought to differ with the trial court in respect to the character of the offense, or of the inadequacy of the statutory punishment upon a single conviction. The remedy was by several indictments, if the offenses were distinct. But courts can only administer the laws as they find them, and it is far better that the most guilty should escape than that the law should be judicially disregarded or violated. A greater public wrong would be committed, one more lasting in its injurious effects, and dangerous to civil liberty and the sacredness of the law, by punishing a man against and without law, but under color of law and a judicial proceeding, than can result from the escape of the greatest offender, or the commission of the highest individual crime against law. Neither the cause of justice or of true reform can be advanced by illegal and void acts, or doubtful experiments by courts of justice, in any form, or to any extent."

Attorney-General Pierrepont informed a Tribune reporter, the other day, that the work of overhauling his department was progressing satisfactorily, but that he experienced serious difficulty in getting trustworthy information regarding the men who hold office in the far-off districts, there being a strong tendency to give false information - the friends of the officers to keep them in, and their enemies to get them out. As an illustration of how the business had been managed heretofore, he stated that the bills for the fees of witnesses in one of the south-western districts, recently received at the department, amounted to about $28,000 in twelve days' time. It is quite obvious that, aside from the question of ability, Mr. Williams was kept in office much too long. He not only had used the department

funds for landaus and horses, but he had suffered the whole service in his department to become honeycombed with fraud. The order of the present attorney-general, which we have heretofore published, fixing the responsibility for the witnesses subpoenaed upon the district attorney, will cause a great many "friends" of the marshals who have, in the past, been in the habit of attending the United States courts, to stay at home.

rience in this State, where we have “an independent" examining body, no particular good is likely to result from Lord Selborne's bill, stripped of the feature looking to a teaching body. The Lord Chancellor opposes that feature because "it would paralyze all the efforts at teaching made by the Inns of Court and the Incorporated Law Society "—a result which one can contemplate from this distance without consternation.

A Tribune reporter called on Judge Davis in order to learn his opinion of the decision of the Court of Appeals. Judge Davis said that "he did not wish to cast any reflections on the Court of Appeals, but while he felt in courtesy bound to respect its judgment, he was fully convinced of the soundness and integrity of his own. In fact, he was convinced that the Court of Appeals, probably with the best intentions, had fallen into a grievous error of judgment,


and one that would shock the moral sense of the community at large. He was utterly unable to understand how the judges arrived at such a decision, and greatly surprised that the judgment was unaniHe could not comprehend it through any legal or logical method of reasoning." Judge Davis also expressed his belief that all the judges of the Supreme Court of New York, with probably two or three exceptions, will agree that Tweed's sentence was legal and fair, and that all the legal journals and respectable newspapers in this country will uphold his decision from every point of view, both legal and moral. There would be something rather pathetic in all this showing, as it so plainly does, how the decision cut him—were it not so fatuous and unbecoming. There is, however, nothing unusual in the fact that he is "utterly unable to understand how the judges arrived at such a decision."

The English legal periodicals express considerable dissatisfaction at Lord Selborne's apparent willingness to yield the point, that the proposed school of law should be a teaching as well as an examining body, and regard it as a surrender of one of the most important objects at which reformers of legal education have aimed. At a recent meeting of the Legal Education Association, Lord Selborne explained at some length the reasons which led him to the conclusion that, even if the School of Law Bill should cease to be a bill for the establishment of a school of law, it would nevertheless be desirable to preserve it. He thinks there will be a substantial gain in having an independent examining body, and that the excission of the provisions relating to the establishment of a teaching staff will not be fatal to a measure containing similar provisions being carried hereafter. If we may judge by our expe


Upon the appearance of the proprietors of the Galveston News in court, Judge Morrill proceeded to read an opinion to the effect that to call the court a phenomenal tribunal wrapped in the awful sanctity of judicial ignorance" was an "obstruction of justice;" that he had issued process to the proprietors "as polite as legal etiquette admitted;" that the proprietors, having most solemnly disclaimed any intent on their part to obstruct justice, and no act being criminal whose intent is not, the laws of the United States were not thereby violated; and that "the publishers have unrestricted liberty to apply any epithets to the judge of the court without being in contempt for so doing." Perhaps as a sort of retaliation, the judge said, in the course of his opinion, that "the Galveston News is the New York Herald of this State." Judge Ballinger, the counsel for the proprietors of the News, said that he did not suppose the court would determine whether the case came within its jurisdiction, or whether the article was an offense under the law, or a contempt of court without first hearing counsel, and he protested against the assumption of the court, and proceeded to argue at length the legal question, showing very clearly, as we conceive, that, under the statute of the United States relating to contempts, the court, in such a case, has absolutely no power; but the judge responded that he had only sent a "polite and courteous request to the publishers of the News,” and that it would be time enough to discuss the effect of the law when the rights or liberty of any one had been interfered with, On the whole, Judge Morrill has gotten very handsomely out of what promised at first to be a disagreeable affair.

The New York Times has grown hopeless about forensic eloquence, and ventures the prediction that "the art of addressing juries is passing away from our lawyers." However it may be with the art, the habit is not passing away-the "gift of gab," as it is sometimes irreverently called, has never been more prevalent than during the last year or two. The Attorney-General spoke some twenty odd days in the Tichborne case, and the counsel in the Brooklyn trial have, all told, consumed over three weeks, with (at this writing) an indefinite prospect of continuance. If there is any thing like it in the

history of forensic eloquence, we are not aware of it. Burke's speech on the trial of Warren Hastings in which he reviewed the affairs of an empire for a period of thirteen years, and in a trial occupying one hundred and forty-seven days — was but four days long. Judged solely from the artistic standpoint, a speech of even that length, even from such an orator as was Burke, must, of necessity, be a failure, and his speech in the Hastings trial is, to a certain extent, so regarded, and is never classed among his best efforts. The Brooklyn orators are not greater men than Burke, and there is a bare possibility that they may have "talked out" sometime before they became aware of it. As mere samples of forensic eloquence, it is to be regretted that their speeches were not confined to a single session. The three gentlemen who have spoken are perhaps the three most eloquent lawyers in the country. Mr. Evarts has long enjoyed a national reputation; Mr. Porter was for years the leading jury lawyer at the Albany bar—in his day the strongest in forensic eloquence of any bar in the countryand divided with Mr. Beach the forensic honors of northern New York. Especially from the latter gentleman might we have expected a speech that would have revived even the desponding heart of the Times, for while his speeches are often extremely rhetorical, and the art in them too apparent, yet, in splendor of diction, in ingenuity of argument, in propriety and richness of imagery, and in grace of delivery, Mr. Beach is facile princeps. But though these speeches will never be ranked with such classic models as Erskine's speech in behalf of Stockdale, or Macintosh's speech in behalf of Peltier, they may be quite as well adapted to the business in hand, and may possibly answer quite as well Blair's definition of "eloquence"-"the art of speaking in such a manner as to attain the end for which we speak."


N French v. Hay, the Supreme Court of the United States sums up briefly the points necessary to give them jurisdiction on appeal from a State court. The following is all of the important part of the opinion: "We are not required to re-examine❘ the judgment of a State court, simply because a federal question may have been decided. To give us jurisdiction it must appear that such a question 'was necessarily involved in the decision.' Armstrong v. Treas. Athens Co., 16 Pet. 282. The old rule, established by early cases, restricted our inquiries as to the existence and decision of the question to the face of the record.' Previous to the act of 1867 (Rev. Stat., § 709), it was uniformly held, except as to the State of Louisiana, where a peculiar practice prevails, that we would not look into the opinions of the courts to ascertain what had

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been decided. Gibson v. Choteau, 8 Wall. 317; Rector v. Ashley, 6 id. 142; Williams v. Norris, 12 Wheat. 117; Railroad Co. v. Marshall, 12 How. 165; Cousin v. Blanc, 19 id. 202. Since that act, however, in Murdock v. Memphis, 20 Wall. 633. we intimated that we might, under some circumstances, examine those opinions, when properly authenticated, as far as might be useful for the purpose of ascertaining that fact, but at the same time were careful to say that, after all, the record of the case, its pleadings, bills of exceptions, judgments, evidence, in short, its record, whether it be a case in law or equity, must be the chief foundation of inquiry; and while we are not prepared to fix any absolute limit to the sources of inquiry under the new act, we feel quite sure it was not intended to open the scope of it to any loose range of investigation.' We are not now called upon to fix this limit. It is sufficient for all the purposes of this case to hold as we do, that if the record shows upon its face that a federal question was not necessarily involved, and does not show that one was raised, we will not go outside of it, to the opinion or elsewhere, to ascertain whether one was in fact decided."


In Brown v. Collins, 53 N. H. 442, it was decided, that a person whose horse, frightened by a locomotive, became uncontrollable, ran away, went upon the land of another and broke a post there, is not liable for the damage if it was not caused by any fault on his part. In the course of an elaborate opinion, Doe, J., reviews, at some length, the doctrine of Rylands v. Fletcher, which we spoke of in a recent number, and dissents from it in strong He says, among other things, "every thing that a man can bring on his land is capable of escaping-against his will and without his fault, with or without assistance in some form, solid, liquid or gaseous, changed or unchanged by the transforming processes of nature or art- and of doing damage after its escape. Moreover, if there is a legal principle that makes a man liable for the natural consequences of the escape of things which he brings on his land, the application of such a principle cannot be limited to these things; it must be applied to all his acts that disturb the original order of creation. This is going back a long way for a standard of legal rights and adopting an arbitrary test of responsibility that confounds all degrees of danger, pays no heed to the essential elements of a direct fault, puts a clog upon natural and reasonably necessary uses of matter, and tends to embarrass and obstruct much of the work which it seems to be man's duty carefully to do." This may be all well enough in its way, but the doctrine of Rylands v. Fletcher has obviously very little to do with such a case as the learned judge had in hand.

* * *



No. III.

you want the best fun in the world you must "go west." The people begin to grow funny before we reach the Mississippi, but it is on the Pacific slope that we find the richest vein of American humor. Brett Harte, Mark Twain and John Phoenix were household names in California before they were heard of in the old States. So we never take up a western law report without expecting to find something calculated to pucker the gravest mouth, and we are seldom disappointed. Now Mr. Black, the State reporter of Indiana, is not professedly a humorous author, we believe; but in the fortyfourth volume of the Indiana Reports we find a very amusing case, giving a vivid idea of the etiquette of western courts, for which we are much obliged to him. The case referred to is Musselman v. Musselman, page 106. The case is evidently erroneously entitled, for as it is an action of divorce brought by a husband against his wife, we take it for granted it should be Musselman v. Musselicoman. The masculine Musselman appeared in person in the court below, and judging from his fate we should deduce a strong confirmation of the old adage about the man who is his own lawyer. At all events Mrs. Musselman or Musselwoman displayed more muscle than her husband, and quite knocked him out of time. It does not appear that Mr. Musselman is a lawyer. We infer that he is not, for there are some indications in the evidence that he was not regarded as altogether sound in his wits. Justice to our profession requires us to say that, according to our experience, very few lawyers go crazy. They are much more apt to drive other people mad. We might point to Messrs. Porter, Evarts and Beach as proofs of this assertion at the present moment. But if lawyers ever do become lunatic, it must be with them as Festus said of St. Paul, "much learning hath made them mad." But to return to our Musselmen. The plaintiff, feeling aggrieved by the result of the trial, took the opinion of the appellate court. He assigned at least twenty-one reasons for a new trial. We glean so much from the remark of the court, that "the third, fourth, fifth, sixth, thirteenth and twenty-first reasons for a new trial will not be considered until after the others have been disposed of." The fourteenth and fifteenth assignments of error pertain to alleged misconduct of the plaintiff's son-in-law, Mr. Rufus Magee; first, in his being allowed to say to the plaintiff "that's a lie," in answer to a proper question; and second, in being permitted, unrestrained, "to swear that plaintiff was then and there insane, and to assault the plaintiff with a heavy stone ink bottle, by which plaintiff was prevented from having a fair trial." The court get around this by saying that the record does not sustain the allegations of the assignments

of error as to the charge of falsehood and the propulsion of the ink bottle, and remark that "such things might occur, during the progress of a trial, without the fault of the court." We don't know

about that. We think it would at least be prudent for the court to have the ink bottles fastened down, knowing, as they ought, the volatile character of the article and the irascible nature of suitors. Of course it would be too much to ask to have the law books all chained down, and they would furnish an equally convenient, if less dangerous, weapon. Dr. Johnson once threw a huge volume at a certain unsavory animal, and law books have always formed a natural weapon for irate counselors. The evidence as to the charge of insanity was as follows:

"Q. You may state what your feelings are toward your father-in-law ?

A. Well, Mr. Musselman, that is a hard question

to answer.

Q. I should think it would be.

A. If you behaved yourself, and acted toward your family as you ought to, my feelings would be very kind.

Q. I am not asking that; I call on the court to at least give me the benefit of the rules.

The Court (to witness). The real question is, not whether you have any cause for your feelings, but what your feelings are?

feelings are more of pity and charity; when I think A. Well, when I think Musselman is insane, my he is not, I have no kind feelings toward him.

Q. That is so indefinite, I will now ask you whether you think I am insane or otherwise? A. I think you are insane.

Q. At the present time?

A. Yes, at this very moment.

Q. You then do think I am insane at the present time?

A. Yes, sir."

In respect to this matter the court held that the plaintiff must not complain of these answers to his own persistent questions. He was seeking information and he got it. The plaintiff can console himself by the example of King Lear, who had two unnatural sons-in-law, and went mad.

The next matter is more serious. "The court erred in smoking, and permitting Hon. D. D. Pratt and other attorneys to smoke in open court and during the trial of said cause, by which the plaintiff was prevented from having a fair trial." The court say that this "does not deserve much consideration," because it does not appear that the plaintiff objected to smoking in court, or that it had any injurious effect upon him—i. e., we suppose, made him so sick as to throw up his case. One of the most brilliant wits of the New York city bar remarks to us upon this, that he does not think a Musselman ought to object to smoking. Perhaps the plaintiff's sensitiveness sprang from not being asked himself to take a cigar. Smoking in open court seems a rather odd practice, but after all it would be a singular ground for a new trial, One of the most distinguished of our own judges, now

deceased, told us that he once privately rebuked a young lawyer for persistently sucking a lemon in his court, and added that he had afterward learned that the said lemon was charged with whisky! All these things are mere matters of taste.

Again, the plaintiff charged that "the court erred in sleeping, or sitting with his eyes closed, in open court, during the reading of the written evidence," etc. To this the court answer, that they cannot assume that the judge was asleep. They say: "If he had reason to suppose that the judge was indulging in a gentle doze after dinner, he should have suspended his reading or awakened the judge," and "we might reasonably conclude that the judge but imitated the example of many of the profoundest thinkers and most distinguished judges, and closed his eyes that he might hear the more accurately, and more fully comprehend what he heard." We quite agree with the learned court. The plaintiff had no just ground for complaint. If the judge did shut his eyes, he kept his court open. He might, probably, have better subserved his personal comfort and escaped censure, by keeping his eyes open and shutting his ears. Has not Mr. Musselman heard that Homer sometimes nods, and is not Justice herself depicted blindfold ? We suggest to him, if he is again annoyed by a similar circumstance, to move an adjournment and treat the judge to an “eyeopener."

On the whole, we await the appearance of the Forty-fifth Indiana Reports with great impatience.



HE case of Cox v. New York Central and Hudson River Railroad Co., 6 N. Y. Sup. Ct. 405, is a very important one in several particulars. The facts of the case were substantially as follows: One Peck purchased at Norwich, Chenango county, tickets for himself, his wife and his daughter, for Albany via Utica, over the road of the defendants. On arriving at Utica, the train on defendants' road consisted of drawing-room cars, with one ordinary passenger car in the rear. The plaintiff was making his way to the rear car, but it was so filled with passengers that it afforded no accommodation for his party, and the conductor telling him that there were a few seats forward, and motioning him to that part of the train, they went forward and took seats in a drawing-room car. After they had ridden about twenty-five miles, and while the condition of the rear car remained the same, Peck was required, by the conductor of the drawing-room car, to pay for the privilege of riding in it. He refused to comply with the demand, or to remove to the rear car, and in consequence was violently ejected from the train, and his family followed him. Another train came

along in about two hours, and the party rode on that to their destination, on the same tickets. There was evidence that the plaintiff was injured in his person by the ejection, and that he suffered from the effects at the time of the trial. There was also evidence that after the plaintiff was removed from the car, and just as he reached the ground, turning around to see if his wife and daughter were following, he was again violently handled by the defendants' servants. The permanent injury consisted in the straining and crooking of one of his fingers, and the temporary injury consisted in being confined to his bed for two weeks. There were two trials. On the first trial the verdict was for the plaintiff for $8,000, which was by consent reduced to $5,000, the amount demanded in the complaint. This was set aside by the general term as excessive, Judge Daniels delivering the opinion. Subsequently the plaintiff pressed the cause for a second trial, but the trial was postponed, on the defendants' application, on the defendants' stipulating that if the plaintiff should die the action should not be deemed to abate. The plaintiff afterward died, the action was revived by his executor, a second trial was had and a verdict was rendered for the plaintiff for $4,000. On appeal the general term held, first, that the ejection was wrongful; but, second, that the damages are excessive, and, consequently the judgment must be set aside; and thirdly, that the action had abated by the death of Peck, and the stipulation of the defendants could not revive it, and therefore no new trial should be ordered and no costs allowed.


It seems to have been conceded by Judge Daniels and Judge Boardman, who delivered the opinions on the respective appeals, that the decedent was wrongfully ejected from the train. Judge Boardman "So long as the defendant furnished a sufficient number of trains, with a sufficient number of proper cars, to accommodate the traveling public on the line and route of its road, it had the right to run extra or special trains with special or drawingroom cars, charging for seats or rooms therein, and to exclude from such cars all persons refusing to pay extra for seats therein. But every such train should, in some way, be so marked, designated or guarded, as that no passenger could get upon it without notice of its special character. In this case it was not so guarded." So far, then, this case seems to be an adjudication that if a passenger is permitted to enter upon a train, and cannot find a seat in the ordinary cars, he may lawfully enter a drawing-room car and ride therein without extra charge.

In the second place, as to the damages. If the views of these two general terms are sound, why not abolish the jury at once, and let the general term pronounce on the question of damages? In respect to the first verdict Judge Daniels remarks, that it "warrants the conclusion that prejudice, partiality, excitement or bias controlled their action;"

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