The Albany Law Journal.

T

ALBANY, JUNE 28, 1884.

CURRENT TOPICS.

THREE of the seven articles in the North American Review for July are on well-worn but important legal topics, and the writers present but little new or striking. Judge Robert C. Pitman discusses the topic of juries and jurymen. He advocates the retention of the jury system, declaring that most of the objectors are disappointed litigants, journalists, doctrinaires, and men of large

business interests. He would however reform the

material of the jury, and he would dispense with unanimity in civil cases. The one new thing that

he suggests is the better treatment of the jury. On this point he says. "I cannot but feel that the more they are treated as gentlemen, the better will they respond to the call upon them to act as such. I particularly object to the uncomfortable and unsanitary arrangements of most of our jury-rooms. This constitutes to many persons of delicate health or refined tastes the most serious objection to jury service; while to those in good health, and who are less fastidious, it is still an annoying discomfort, which disturbs the considerate and calm judgment so important in reaching impartial and accurate verdicts. In this suggestion of better accommodations for jurors, I am sure that I shall carry the assent of all reasonable men. I cannot expect the same concurrence in my next suggestion, which is that in civil causes the presiding judge shall be permitted, in his discretion, to allow a jury to separate at night during their deliberations, and resume the case the next morning. The practice of the law begets conservative tendencies, and I fear the weight of opinion or the bar and bench may be against

this innovation. I feel satisfied however that the

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change would be productive only of good results; and it is surely in the same direction as changes already made. *The only objection that can be made against this indulgence to the jury in civil causes while considering their verdict is the supposed danger of approach in some way by interested parties. This danger can be but slight. To the credit of human nature, as well as to the credit of human sagacity, attempts to influence jurors are of the rarest occurrence. To be successful there must be concurrent depravity in two persons; and while failure is ignominious and dangerous, success is hardly so. The summary power of courts to punish, as for a contempt, the slightest interference with a jury induces a wholesome fear of such action. Besides, if it is contemplated, there are ample opportunities for it during the progress of the trial when juries are always allowed to go home at the adjournment, instead of postponing the attempt until it may chance to be too late. To be consistent, VOL. 29-No. 26.

we should go back to the old rule in criminal causes, and keep the jury under constant surveillance from first to last. The advantages of such a change of practice are obvious. A great part of the discomfort of jury service is removed, and men whose business or family cares press so heavily on them when they are not sure of an hour in the twentyfour at home, would find it quite possible to serve with equal mind if the public would leave to them the usual rest from labor. But the main argument for the change is that in this way a result is reached not by the pressure of any physical discomfort, nor by anxieties for others, but as the result of calm deliberation. And if a night could be spent away from the heated disputation of the jury-room, it juror would, as the result, perhaps, of what Dr. would not infrequently happen that a dissentient Carpenter calls unconscious cerebration,' see things in a clearer light on the morrow." We are by no means certain that this is not a good suggestion. Why should we treat our jurymen as if they were criminals or at least suspicious characters from the moment of submission?

cence.

Justice Noah Davis discusses the subject of marriage and. divorce. He bewails the conflicting laws of this country and recommends a constitutional provision for a uniform system. What is new in this paper is confined to the following suggestions for amendment of the law of procedure: "First. So that no judgment could be entered until it appeared clearly that the suit had been actually pending at least six months after service of the process. This not only to prevent frauds, but to give the parties a breathing spell for possible reconciliation, and to Second. In all cases the defendant should have the prevent immediate and shameful remarriages. right to insist that the alleged paramour be brought in and made a party to the action, so that an unjust accusation could be met and confuted by both of the accused who are interested in maintaining innoThird, and above all, inasmuch as society is deeply interested in all such actions, the State should be made a party so that it shall be able to prevent the wrongs that are inflicted upon the public, and upon children and innocent persons; and no judgment should be allowed until it appears that some lawful representative of the State has been served with process and has had opportunity to appear and resist the divorce. This mode of conserving the rights of society ought to be carefully secured, and over the question of the cost of securing such protection the courts should have adequate power. Now it often occurs that by such actions helpless children are bastardized or made homeless and thrown upon the public for support by the destruction of family relations, with no one to speak a word in their behalf or for the public." We believe the first two recommendations are valuable. The practice of the second is now followed in England. Of the materiality of the third we have some doubt, but it is perhaps not objectionable.

Mr. Charles T. Congdon writes on "Private Vengeance," very soundly and sensibly, deprecating what is a disgrace to our laws, namely, the uniform vindication of a man for killing another who has committed no legal crime, for the gratification. of private revenge. He incidentally touches upon lynch law and riots. Mr. Congdon does not say any thing new, but he puts the subject in a striking way, which may be illustrated by the following extract: "The looseness, the uncertainty, the recklessness, the possible misapprehension of this form of vengeance, apart from higher considerations, is its condemnation. To this we must add its radical inequity. The assassin proceeds, it must be admitted, upon a perfectly just idea. There is no possession of such value to a man as his life, and there is good reason why we should pray to be delivered from sudden death. Capital punishment, which we often regard as necessary for the sake of example, may or may not be best defended logically from that point of view; but it rests upon something higher-upon the intrinsically precious character of life itself. The Mosaic code, so often quoted in defense of the gallows, was based upon this. Those who shed man's blood must give their own as the only adequate reparation. This alone was right. This alone could satisfy the demands of justice. This alone could be pleasing in the sight of the All-Just. Strangely mixed up with wrath for the loss of honor, with a feeling of having been cheated at cards, with disappointment at the adverse termination of a lawsuit, with anger at the application of opprobrious epithets, at the loss of a wife, at the ruin of a daughter, is this recognition even by the least cultivated mind, of the value of life. To take it from an enemy is the only revenge worth having. In that way, and in that only, can the fierce feud be adjusted. It may seem paradoxical, but we are obliged to confess that in this feeling of the value of life, entertained by those who would most recklessly and rashly destroy it, we find the highest hope of a mitigation, if not an abolition, of the evil which we have been discussing. By a parity of reasoning, those who think that the unlawful taking of life is the highest revenge which is within their power, may all the more certainly be brought to a sense of their own error when they find that society agrees with them in their estimate, and will expect them upon the gallows to abide by it. With every homicide unpunished life grows cheaper and cheaper, so far as facility of vengeance is concerned, and yet more and more important as murder becomes safer and safer. The business of our tribunals is to raise it in the estimate of mankind."

Our Democratic State Convention has followed the excellent example set by the Republicans, and nominated Judges Andrews and Rapallo for the Court of Appeals. This exhibition on both sides is gratifying and encouraging, and demonstrates that the popular election of judges may be made independent of party considerations. The highest court

We have studied, observed and practiced the business of reporting legal decisions a good deal, and have always been interested in observing the different methods of the reporters. A point in reporting that we think is not always understood and scientifically wrought out is the office of the "catchline." This should merely indicate the subject, and should not state the decision, for if it does it renders the head-note superfluous or is itself superfluous. To illustrate this by an example from the forthcoming volume of Hun's Reports. Mr. Hun, the reporter of the Supreme Court of this State, is one of the best reporters and we frequently give notes of the cases from the advance sheets of his reports. But in his forthcoming volume we find the following head-note: "The complaint in this action stated that the plaintiff on September 29, 1880, was a common seaman on a steamer owned by the defendants which was then in charge of the captain and mate; that the plaintiff and another sailor were directed by the mate to pay out a hawser, which could not safely be done by one man; that while engaged in this work the mate directed the sailor assisting the plaintiff to leave the hawser and go to another part of the steamer; that although the plaintiff protested and told the mate that it was impossible for him to manage the hawser alone, and that it would endanger his life to try to do so, the mate persisted in ordering his companion to leave him; that thereafter, in despite of the plaintiff's exertions, his leg became entangled in the hawser

herein than Mr. Hun is.

NOTES OF CASES.

In People v. Mann, to appear in 32 Hun, 441, it is held that a justice of the peace cannot hold office after the age of seventy years. This affirms the decision at Special Term, reported ante, 113. The court by Barnard, P. J., observed: "By section 13 of article 6 of the Constitution of New York, it is provided: 'But no person shall hold the office of justice or judge of any court longer than and until and including the last day of December next after he shall be seventy years of age.' The question presented is whether this provision includes the class of justices of the peace of the State. There is no real authority upon the question. The article of the Constitution in question seems to refer only to judges of the Court of Appeals and to justices of the Supreme Court. At least those judges only are named in it. It has been decided however that the prohibition as to age did not apply to county judges, although not named in the article (People ex rel. Joyce v. Brundage, 78 N. Y. 403), and that it did not apply to county judges who were in office at the adoption of the Constitution. People ex rel. Davis v. Gardner, 45 N. Y. 812; S. C., 59 Barb. 198. It was held in Dohring v. People, that justices of the peace were not within the proviso of the Constitution limiting the tenure of the judicial office to seventy years of age. 2 N. Y. Sup. Ct. (T. & C.) 458. This case was affirmed in the Court of Appeals, but without touching the point under consideration. People v. Dohring, 59 N. Y. 374. In this case a justice of the peace sat upon a criminal trial, but being a de facto officer the judgment would be upheld on that ground. Nelson v. People, 23 N. Y. 296. The words of the Constitution are broad enough to cover justices of the peace, but neither the Constitution or the law under it has called for a certificate of age from these officers, while it does so from judges of courts of record. The prohibition is not weakened by this omission if a justice of the

of the prohibition applies to all judicial officers, and the terms used have been passed upon by the courts before the Constitution was adopted, and were held to cover justices of the peace. By 2 Revised Statutes, 275, it was provided that 'no judge of any court can sit as such in any case to which he is a party, or in which he is interested, or in which he would be excluded from being a juror, by reason of consanguinity or affinity to either of the parties.' This section was held to cover justices of the peace. Edwards v. Russell, 21 Wend. 63; Foot v. Morgan, 1 Hill, 654; Place v. Butternuts Woolen, etc., Mfg. Co., 28 Barb. 503. The rule at common law was otherwise. Pierce v. Sheldon, 13 Johns. 191; Eggleston v. Smiley, 17 id. 133." Pratt, J., dissented.

In Sturtevant v. Havens, Nebraska Supreme Court, May 29, 1884, 19 N. W. Rep. 617, the father of an infant, eight months old, in the custody of its mother's parents, the mother being dead, applied for its custody. He was twenty-three years old and was found to be a proper person in every respect to have charge of the child, and the same was true of the grandparents. The application was denied, the court observing: "From a careful examination of the authorities at our command, we think the prevailing rule in this country may be briefly stated to be that in controversies similar to this, especially where the infant is of the tender age of the one contended for, the court will consider only the best interest of the child and make such order for its custody as will be for its welfare, without any reference to the wishes of the parties. Applying this rule to this case, we are forced to the conclusion that the conclusions of law, as stated by the District Court, are not sustained by the findings of fact, and that the judgment of the court should have been in favor of the plaintiffs in error. It is, no doubt, true that the defendant in error is greatly attached to this child, and the facts, as found by the court, show that he is in every respect a suitable person to have its care and custody. But, when we consider his age and want of experience, we are driven to the conclusion that personally he could not care for the wants of a child so young and helpless. True, he has means, and has employed a suitable nurse, yet as far as we are informed, this nurse is a stranger to the child, and of course does not feel that personal interest in its welfare that would be felt by a near relative. The grand parents have had the custody of the child since its birth, are greatly attached to it, have ample means to provide for its wauts, and have the judgment and experience so essentially necessary to convince any one that it is better for the child to remain where it is until such time as its age and condition will justify the father in assuming its custody." We call that an outrageous decision, and we do not believe it is law. We believe such

decisions inevitably breed strifes and hatred between parties, and endanger the well-being of the child. About all that grandparents are good for is to pamper and spoil their grandchildren. We think our courts are leaning altogether too much against the natural rights of parents of late.

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In Commonwealth v. Bruce, Philadelphia Quarter Sessions, June 13, 1884, 41 Leg. Int. 242, it was held that on an indictment for producing a fatal miscarriage, the dying declarations of the woman are competent against the prisoner. The court said: "The general rule uniformly affirmed by every tribunal for a long time is, that evidence of this description is only admissible when the death of the deceased is the subject of the charge, and the circumstances of the death, the subject of the dying declarations.' It is clear and definite, and cannot be misunderstood, but uncertainty may arise as to its application. It may therefore be profitable to examine the cases in which it was applied or refused, together with the bills of indictment and the statutes upon which they were found. We may thus find valuable assistance in its application. * ** From an analysis of the cases cited it will appear1. That declarations in extremis were admitted in all cases civil and criminal. 2. That this continued to be the practice in England until 1836. Stobart v. Dryden, 1 M. & W. 615. 3. That in this country this doctrine was, in 1806, overruled by Chancellor Kent. Jackson v. Vredenbergh, 1 Johns. 159. In North Carolina in 1855. Barfield v. Britt, 2 Jones. In our State in 1870. Fredonia v. R. Co., 7 Phila. 203. 4. In England, in criminal cases, its application was restricted in 1822 to those cases alone where the death of the party was the subject of the inquiry.' Rex v. Hutchinson. In 1824 the rule assumed its present form. 'That dying declarations are admissible only where the death is the subject of the charge, and the circumstances of the death the subject of the declaration.' King v. Mead. 5. In this country, in North Carolina, in 1855, 'dying declarations were restricted to the act of killing, and the circumstances immediately attending the act and forming a part of the res gesta.' State v. Shelton, 2 Jones, 360. In New York, in 1870, it was confined to the immediate transactions which led to the death. Hackett v. People, 54 Barb. 370. In 1874 the rule was restricted to indictments for homicide. People v. Davis. In the case in Wisconsin (Cookman v. State), the indictment was for malicious stabbing, and the declaration did not refer to the cause of death. In State v. Bohan, 15 Kans. 407, in 1875, the rule was held not to apply to the declaration of a person wounded by the defendant at the time he killed the person named in the indictment. In Commonwealth v. Reed, 5 Phila. 528, the defendant was on trial for fornication. Dying declarations were held to be inadmissible. In Commonwealth v. Gumpert, 6 Luz. Leg. Reg. 187, the defendant was indicted for procuring a miscarriage which resulted in the death of the woman. Her dying declarations

were admitted. In an unreported case of like character (Commonwealth v. Buchanan) such evidence was admitted by Judge Yerkes. Subsequently a new trial was granted upon other grounds. The only cases which seem to be in conflict with our practice are Rex v. Hutchinson; Reg. v. Hinds, 8 Cox C. C. 300; People v. Davis, 56 N. Y. 96, and State v. Harper, 35 Ohio, 78; S. C., 35 Am. Rep. 596. It will be observed however that in the English cases it does not appear that the deaths of the deceased resulted from the means used to procure the abortions. Nor does it appear that the deaths were averred in the bills of indictment. On the contrary, it does appear that the defendants were indicted for using means to procure an abortion. It is not at all probable that they would have been indicted in this manner if the deaths had resulted

from the means used. In that event the crime would have been murder. It is submitted that the act of Assembly in defining in terms this crime did not change its common-law character, which is homicide. Nor could they do so by giving it another name, or by calling it a misdemeanor, as they have done in

Ohio."

In Wolf v. Wolf, 38 N. J. Eq. (11 Stew.) 128, it was held by the Chancellor that the imprisonment of a husband for a murderous assault on his wife did not constitute "willful, continuous and obstinate desertion," warranting divorce. The court said "he was not able to return to her." Judge Stewart supplies a note to the case, citing among other cases, Townsend v. Townsend, L. R., 3 P. & D. 129, and Sharman v. Sharman, 18 Tex. 521, directly in point and in harmony with the principal case.

THE PRESUMPTION OF DEATH-IV.

RULE XIII. That at some time within that period he has encountered a "specific peril," which includes not the ordinary dangers of travel or navigation, (1) (a) but some unusual or extraordinary danger.(b)

ILLUSTRATIONS. (A.)

1. A died in 1797. In 1791, J. sailed from New York to Europe, and was not subsequently heard from. The question was whether J. survived A. The judge instructed the jury that taking into consideration the hazards of the sea, they might presume that J. died within seven years from the time he sailed from New York. Held error.(2)

2. In September, 1828, S. sailed as one of the crew of a schooner from Portsmouth, N. H., to the South seas on a sealing voyage. Oue letter was received from him dated April, 1829, but neither S. nor the vessel were ever heard of again. There is no presumption that S. was not alive in September, 1831.(3)

(1) Eagle's case, 3 Abb. (Pr.) 220 (1856). "The ordinary perils of navigation are undoubtedly general and not special perils." Lancaster v. Washington Life Ins. Co., 62 Mo. 127 (1876); Lewis v. Mobley, 4 Dev. & B. (L.) 323; 34 Am. Dec. 379 (1839); Miller v. Beates, 3 S. & P. 490; 8 Am. Dec. 658 (1817).

(2) Barr v. Sim, 4 Wheat. 150; 33 Am Dec. 50 (1838). (3) Smith v. Knowlton, 11 N. H. 192 (1840).

3. C. sailed from Boston in 1826 for the West Indies, since which time he was not heard of. He left money

in the hands of M., who in April, 1828, loaned it to J. J. pleaded that C. was dead at the time the loan was made. Held, that this could not be presumed from his sailing on the voyage and being unheard of.(4)

4. S. left the Sandwich Islands in a bark for Manda, May 2, 1855. The bark and those on board were not subsequently seen or heard of. There was no presumption in September, 1856, that S. was dead. (5) In case 1 it was said: "The circumstance relied on is the departure of the individual by sea; but the perils of the sea are general not specific; and they are not present but contingent. They are such as may or may not occur; but to accelerate the presumption from time, or more properly to turn it from an artificial into a natural one, it is necessary to bring the person within the range of a particular and an immediate danger-not such as is contingently incident, in some degree, to every mode of conveyance. A natural presumption arises only from a violent probability, because it is a conclusion drawn by experience from the usual current of things; but no violent probability of death arises from a peril, which though possible, is remote. All the examples put by the judge himself are those of special perils which bear directly on the person with greater or less probability of its destruction in proportion to their urgency; and such was the nature of the probability in Watson v. King. Now there is no mode of conveyance which has not its perils; and if the mere departure of a person not heard of during the period of legal presumption, were enough to warrant a natural presumption of his death within a more contracted one, the legal presumption, stripped of its deficiency to dispose of the uncertainty, it was introduced to remedy, would be deprived of the greater part of its value. We are of opinion therefore that though the exceptions to other parts of the charge are not legitimate subjects of revision here, the direction that there was evidence from which the jury might infer the death to have been at a time short of the period of legal presumption was erroneous."

In case 2 the court said, that they were not aware of any authority upon which the dangers of a sealing voyage would authorize the court to draw a conclusion of death, at the expiration of two years, as to a party who had embarked on such a voyage.

(B.)

1. J. was the captain of a schooner named The Edmondson, which sailed September 4, 1854, for a port in South America. Neither vessel nor crew were subsequently heard of. A violent storm prevailed along the coast in that year. The question arose whether J. was alive in September, 1857. The presumption was that he was dead. (6)

2. M. left New York for Asia in 1840. In 1841 he resided in a town in Asia which was visited by an epidemic. He was not heard of subsequently to 1840. His death may be presumed to have occurred prior to 1847.(7)

3. A. passenger on a vessel, in a weak state of health, disappeared from the vessel while in the middle of the lake on a cold night. The presumption was that he had either by accident or design fallen into the lake and been drowned. (8)

In case 1 it was said: "The rule that the presump

(4) Newman v. Jenkins, 10 Pick. 515 (1830). (5) Ashbury v. Saunders, 8 Cal. 62 (1857).

(6) Gibbes v. Vincent, 11 Pick. (L.) 323 (1858); Learned v. Cooley, 43 Miss. 709 (1870); and see Re Norris, 1 Sw. & Tr. 6 (1858); Watson v. King, 1 Stark. 121 (1815).

(7) See Eagle's case, 3 Abb. (Pr.) 218 (1836).

(8) Lancaster v. Washington Life Ins. Co., 62 Mo. 127 (1876).

tion of the continuance of life ceases when the person has been absent and has not been heard of for a pe riod of seven years, it is argued, is a legal presumption and cannot aid the defense, because the period limited to sustain it has not expired. If the presumption of death arising from the lapse of time be a legal intendment then the inference is certain, and as a rule of law would be obligatory on the jury; but such a presumption is rebuttable-presumptio legis tantum, and may be disproved, either by direct or circumstantial evidence, the effect of which the jury and not the court must determine. It is not however from the presumption arising alone from the length of time since Johnson has been heard of that his death is inferred, but from the prevalence of a violent storm on the track of his vessel about the time he sailed, and that neither the Edmonson, he nor his crew have since been heard of. The conclusion of his death is inferred from a cause adequate to produce it, coupled with the fact that we have no tidings of him since."

RULE XIV. That his habits, character, domestic relations(a) or necessities(b) would have made it certain that if alive within that period he would have returned to or communicated with his residence, home or domicil.

ILLUSTRATIONS. (A.)

1. A. left home for a city in an adjoining State on business, arrived there in safety, and was seen by an acquaintance on the street about three P. M. of the day he arrived. He was never subsequently seen or heard of. It was shown that his character, habits and domestic relations were unblemished and undisturbed. Held, that the presumption would arise that his absence was caused by death. (9)

In case 1 it was said: "Any facts or circumstances relating to the character, habits, affections, attachments, prosperity and objects in life which usually contro! the conduct of men and are the motives of their actions, are competent evidence from which may be inferred the death of one absent or unheard from, whatever has been the duration of such absence. A rule excluding such evidence would ignore the motives which prompt human actions and forbid inquiry into them in order to explain the conduct of men. The true doctrine may be readily illustrated, thus: An honored and upright citizen who through a long life has enjoyed the fullest confidence of all who knew him-prosperous in business and successful in the accumulation of wealth; rich in the affection of wife and children and attached to their society; contented in the enjoyment of his possessions, fond of the associations of his friends, and having that love of country which all good men possess-with no habits or affections contrary to these traits of character-journeys from his home to a distant city, and is never afterward heard of. Must seven years pass, or must it be shown that he was last seen or heard of in peril before his death can be presumed? No greater wrong could be done to the character of the man than to account for his absence, even after the lapse of a few short months. upon the ground of a wanton abandonment of family and friends. He could have lived a good and useful life to but little purpose if those who knew him could even entertain such a suspicion. The reasons that the evidence above mentioned raise a presumption of death

(9) Tisdale v. Connecticut Mutual Ins. Co., 26 Ia. 170 (1868); 28 id. 12 (1870); Garden v. Garden, 2 Houst. (Del.) 574 (1863). In 1856, M. disappeared from home. In an action brought in 1864, it was proved that M. had not since been heard of. It was also proved that M. before his disappearance had declared his intention of committing suicide. Held, that the presumption was proper that his death occurred about the time of his disappearance. (23)