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THE ALBANY
ALBANY LAW
LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

The Albany

Albany Law Journal.

A

ALBANY, JANUARY 7, 1882.

CURRENT TOPICS.

LAWYER, just returned from Washington, writes to us reprehending our recent remarks on Mr. Justice Hunt. He also embraces the opportunity to eulogize Mr. Justice Matthews, and defend his appointment. This last topic is no longer of any public interest or importance. We have not written a word of objection against him since his confirmation. Our correspondent finds the text for his dis

course in the accusation that we were uncivil in speaking of him as "Mr. Matthews." A more careful reading of our paragraph will show our correspondent that we did not speak of him with that style, but that the offensive phrase was quoted and purported to be quoted from the Times. This is a matter of small importance to the public, and we allude to it now only to point the fallibility of critics, for on the following pages of his letter our correspondent himself twice speaks of Mr. Justice Matthews as plain "Matthews"! Of Mr. Justice Hunt as "Hunt"! And even of the chief justice, as "Waite"! And this in a communication designed for the public eyes! The physician himself seems a little "under the weather."

In regard to Mr. Justice Hunt's late judicial action, adversely commented on by the Times, our correspondent writes: "It was not a question that was heard in open court. It was merely an application by an appellant to be permitted to substitute for certain bonds it had deposited in court as security, certain other bonds of the same kind and amount, but of different numbers. It was a motion to which there could be no reasonable objection, but Justice Matthews could not pass upon it, because he had been of counsel. Justice Hunt, though physically weak since January, 1879, has ample mental power to do any simple single judicial act. He was perfectly competent to sit with his brethren when in the consultation room they took up and decided that motion. He has indeed performed more imVOL. 25.-No. 1

portant judicial work since his illness began." This explanation of course takes off the edge of the Times' criticism, but it emphasizes the vice of Mr. Justice Hunt's position - not only unfair to the public, but easily liable to injurious misconstruction.

We

Our correspondent thinks "it is idle to denounce" Mr. Justice Hunt. "He is not to blame for having had a severe stroke of paralysis." "What authority have you to call upon him" to resign? "His name is on the roll of our highest judges. To follow him in his last sickness with denunciation simply because he can't work and can't afford to resign, is, cruel and is silly." The italics are ours. conceive that we have the same right to call upon Mr. Hunt to resign that any other citizen has to call upon any other public servant to resign, when he has notoriously ceased to be able to do his work and is only waiting for the lapse of time to entitle him to a pension. If the Justice's public services, his sickness, and the state of his private fortune should recommend him to congressional favor-as we assume they would - he would unquestionably receive it. If he and his friends have any doubt of it, what right have they to extort what they are conscious they could not get by favor? Although, as our correspondent says, Congress has not provided for vacating the judicial office when the incumbent ceases to perform its duties, the omission is probably due to the improbability of any such contingency as the present. At all events, Congress has pretty plainly indicated its intention on two points: First, that the salary is for judicial services, and not for private sickness or misfortune; second, that the pension, by right, is for ten years of judicial service, and not for seven years of judicial service and three years of failure to discharge the duties, whether compulsory or voluntary. We have not lost sight of the sympathy due the Justice's misfortunes. The public would not neglect or forget him. His error consists in drawing a salary which he does not earn, and in seeking to obtain by force adverse possession of the pension which he distrusts the public inclination to bestow.

In connection with our article on Obstruction of Sidewalks, 24 Alb. L. J. 464, should be noted the

recent case of Reg. v. Lewis, in the Queen's Bench Division, Nov. 18, 1881. This was a prosecution by the mayor and corporation of Manchester for nuisance. The nuisance consisted in the placing in the windows of a shop "photographs of statesmen and other eminent persons, as Mr. Gladstone and the late Lord Beaconsfield and bishops, sometimes in ludicrous attitudes or positions, with mirrors, colored lamps, and other similar devices," attracting large crowds, most of them idlers, some of them bad characters, so that the street was obstructed and persons had their pockets picked. The defendants were fined forty shillings each, and required to give bonds not to repeat the offense. The case is quite similar to that of the King against Carlile, the notorious bookseller. The Daily Telegraph says of the Manchester case: "What but the wonders of the shop-windows makes the great difference between the ordinary person brought up in the country and his fellow of the town?" - and goes on to remark: "As a rule, one has as much book-learning as the other, but in the case of the latter the mind has been furnished by constant though unconscious gazing at the countless marvels of science and art every day and all day long spread gratuitously for his enlightenment and delectation. The cities of the world pour their tribute at his feet. Gold and gems and rich stuffs, pictures and furniture, curios from China and Japan, knicknacks from Paris, shawls from India, silks from Lyons, pipes from Austria and Turkey, all the choicest works of foreign industry invite him to a study of men and manners, of geography and ethnography, of languages and literature, and whatever is best worth knowing. How shall the bookseller, the print-publisher, the goldsmith, the tailor, the haberdasher, and all and sundry the providers of necessaries and luxuries, find a market for their wares if every attractive shop-window be pitched upon as an offense against society? Take the book-stalls alone, and consider what good they do in spreading education among the masses. Every poor scholar who pores over a twopenny book-box assists, it must be confessed, in forming an obstruction. Yet how often may not a dog's-eared copy of 'Law's Serious Call' have led a worldly-minded but impecunious student to the contemplation of human responsibilities? How often may not a fugitive volume of poetry have led the way up Parnassus to some previously 'mute inglorious Milton,' possessed of a latent spark of genius together with limited means? Surely it is not so grave an illegality as lawyers would have us believe for an enterprising tradesman to make his shopwindow attractive to the passers-by. Nor is the offense, such as it is, of sufficiently frequent occurrence that the police, in the exercise of their power to move the people on, might not be left to deal with it." "A mirror exposed in a shop-window does invariably attract the attention of foot-passengers, and it is said that specimens of the fairer portion of humanity have been seen to stop before the fascinating object, lost in admiration of its beautiful but fugitive reflections. On the other hand, 'colored lamps and other similar devices' are not

so generally seductive." "Even in London, assumed to be the center of culture and refinement, retailers of photographic likenesses seem to lack the sense of congruity, and are thus led into the error of placing portraits of poets side by side with those of popular æsthetes, and presentments of eminent divines in close juxtaposition with ladies of the ballet. We cannot, however, make the less to include the greater. Bad taste is not an offense at law, and we should be sorry to see the mass of shopkeepers rendered responsible for the indiscretion of a limited few who may seek to attract custom by displays of questionable propriety."

The English courts having cleared the sidewalks, have had their attention directed to two other novel and curious questions, namely: what is the "mouth of the Thames," and whether a tame mouse in a cage is the subject of larceny. We get nothing as yet very definite on these debates, but shall undoubtedly hear more of them anon. It would not surprise us if the mouse case went up to the House of Lords. At present we understand that this animal is not the subject of larceny. The London Law Journal, speaking of "such small deer," says: "They do not, like their enemy the cat, serve a domestic purpose; nor, like the oyster, are they good for food. Therefore, says the law, they may be stolen by all who can lay hands on them. The race, doubtless, do not object to this rule so long as they are free to rely on their own nimbleness for safety; but there seems a want of reciprocity in the situation, that when they submit to cages and are tamed, they should be denied the protection of civilization. The only consolation is, that they share the disability with nobler animals. If the burglars of North London were to turn their attention to the Zoological Gardens, they would find nine-tenths of the inhabitants unprotected by the criminal law. The subject would seem worthy of a Parliament of beasts convened in the Regent's Park, unless there are philanthropists with sympathies wide enough to

embrace it."

The Governor has nominated Mr. William Henry Arnoux, of the firm of Arnoux, Ritch & Woodford, of the city of New York, to the vacancy on the bench of the Superior Court of that city, occasioned by the resignation of Judge Spier. Mr. Arnoux is in the prime of life, and has for some years held a leading position as an advocate in that city. He is a lawyer of excellent abilities, ready and various learning, and an aptitude for the investigation and discussion of legal questions as well as those of fact. His name has been associated with many of the leading cases in this State during the last decade, notably the Lange false imprisonment case, the Rollwagen will case, and the Brooklyn bridge case. His character is the purest and his address the most engaging. He has found time in the midst of a busy professional life to read and write on general legal topics, as our columns have occasionally borne witness, and with far more than the ordinary acquirements of the advocate he unites a considerable

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