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nor prejudicial to the defendants. Lachman v. Barnett. at maturity, and no previous statement of intention Opinion by Leonard, J.
not to pay at maturity, or other arrangement between [Decided Feb. 26, 1884.]
the maker and holder, cau excuse the non-presenta-
been settled by the Supreme Court of Massachusetts
in Lee Bauk v. Spencer, 6 Meto. 309. That was a suit
at the bank. It was not presented to the bank for INTOXICATING LIQUORS IRREGULAR SALE.
payment at maturity, because the promisor had forWhere druggist who has permit from
mally called on the bolders and informed them that it the probate judge of his county to sell intoxicating would be useless to present the note at the bank, as he liquors for medical, scientific and mechanical pur
could not pay it. But said Shaw, C. J., "however poses, is prosecuted upon information in the District
this might affect the rights of the promisor, we think Court for selling intoxicating liquors for other than
it did not alter the conditional obligation of the inmedical, scientific or mecbavical purposes, and no
dorsers, and make them responsible without any preother offense is charged against him, he cannot be con
sentment whatever." So in Pierce v. Whitney, 29 Me. victed for the offense of selling intoxicating liquors for
188, it was held that the fact that the maker of a note medical, scientific and mechanical purposes in an ir
had addressed a letter to the holder informing him regular manner. Sup. Ct. Kans., Jan., 1884. State v.
that he would not be able to pay it at maturity, and White. Opinion by Valentine, J. (31 Kans. 342.)
requesting an extension, would be no excuse for nonAPPEAL--A FUGITIVE NOT ENTITLED TO BE HEARD. presentation of the note at its maturity to the maker. -(1) Where the offense charged is a felony, and the Sup. Ct., Cal., Jan., 1884. Appelgarth v. Aybott. Opindefendant remains a fugitive from justice, he has no iou by McKee, J. (2 Pac. R. 43.) right to be heard upon any appeal in his behalf in this court. (2) Moreover the orders of the lower court forfeiting the bail money on the non-appearance of the defendant (though his counsel was present and wished
CORRESPONDENCE. to demur to the indictment), and refusing to hear a motion to discharge the forfeiture, the defendant still being at large, are not appealable, and can only be re
MR. THROOP TO MR. STERNE. viewed on an appeal from a final judgment. Sup. Ct. Utah, Feb., 1884. People v. Tremayne. Opinion by Editor of the Albany Law Journal: Emerson, J. (3 Pac Rep. 85.) [See 17 Am. Rep. 315; In the article by Simon Sterne, Esq., published in 3 T. & C. 734, 739; 115 Mas8. 133; 10 Bush, 526; 15 La. the last number of the ALBANY LAW JOURNAL, entiAnn. 495; 20 Gratt. 716, 722.- ED.]
tled, “On the Prevention of Defective and Slipsbod BASTARDY-EVIDENCE-NON-ACCESS-PRESUMPTION.
Legislation," I find the following statement relating --The law is well settled that the wife, on the question
to the Code of Civil Procedure: of legitimacy of her children, is incompetent to give
“At last the first seven chapters were passed. It was evidence of the non-access of her husband during the
then discovered that the repealing clause threatened a time in which they must have been begotten. This general jail delivery, and that section had to be rule is founded on the very highest grounds of public
amended subsequently before the Code could be per
mitted to take effect." policy, decency, and morality. The presumption of the law is in such a case that the husband had access
Gentlemen who are criticising others for “defective to the wife, and this presumption must be overcome
and slipshod legislation " should be very careful not by the clearest evidence that it was impossible for him,
to make “defective and slipshod” statements of fact, by reason of impotency or imbecility, or eutire absence
as Mr. Sterne has done in this instance. The installfroin the place where the wife was during such time,
ment of the Code of Civil Procedure which passed in to have had access to the wife, or to be the father of
1876 contained the first thirteen chapters. No attempt the child. Testimony of the wife even tending to
was ever made to pass the first seven chapters sepashow such fact, or of any fact from which such non
rately; nor were they ever separately reported to the access could be inferred, or of any collateral fact con
Legislature; but when a draft of them was completed nected with this main fact, is to be most scrupulously priuted copies thereof were sent by the commissioners kept out of the case; and such non-access and illegiti.
to members of the bar for their suggestions; and after macy must be clearly proved by other testimony. The receiving such suggestions the commissioners revised, King v. Inhabitants, etc., 5 Ad. & Ell. 180; Dennison
amended and reprinted those chapters with the other v. Page, 29 Penn. St. 420; People v. Overseers of the
six, and reported the thirteen chapters to the LegislaPoor, 15 Barb. 286; Com. v. Shepard, 6 Bin. 283; State
ture, nearly two years after the drafts of them had v. Pattaway, 3 Hawks (N. C.), 625; Cope v. Cope, 1
been thus sent out. Nor did the Code of Civil ProceMoody & R. 269. Sup. Ct. Wis., May 15, 1884.
dure contain any “repealing clause " whatever, either State. Opinion by Orton, J. (19 N. W. Rep. 445.) in the installment enacted in 1876 or in the installment [See 22 Eng. Rep. 286; 30 id. 562; 31 Minn. 319.
enacted in 1880. Nor did the General Repealing Act ED.]
of 1877 (L. 1877, ch. 417)—if Mr. Sterne means that act
(as far as I ever heard) to threaten, or could possibly
be thought by any sensible person to threaten "a gen
eral jail delivery ;' nor was it, por were the thirteen NOTARY-PROTEST OF-EVIDENCE TO CONTRADICT- chapters of the Code amended with the expectation or
DISCHARGE.--(1) The for the purpose of preventing any “jail delivery," gen. protest of a notary is only primu facie evidence of the eral, special, particular or partial. facts contained in it, and evidence to contradict and
Respectfully yours, overcome its recitals is admissible. (2) To bind the
MONTGOMERY H. THROOP. indorsers on a note, it must be presented to the maker
ALPANY, September 22, 1884.
The hot recognize international copyright, but does
can and English law. In the particular case of the The Albany Law Law Journal.
*Chatterbox' series the result is certainly some
thing similar in effect to what would follow if a ALBANY, OCTOBER 11, 1884.
system of international copyright prevailed. Though any American may reprint the books, prob
ably he would find no market for them except as OURRENT TOPICS.
the Chatterbox' series, and thus the series may anomalous condition of the law which does incidentally be protected from reproduction in
America, except by the assignee of the English recognize the doctrine of trade mark as to aliens, judgment is good law it is only one more anomaly
publisher." And the Athenæum says: “If this has recently been illustrated in a suit, of which we
in a very anomalous state of affairs — that the find the following account in the Solicitors' Journal :
American law should thus defend the reputations of "The English publisher of a set of juvenile books
our books while it will not reserve to us the profits called the Chatterbox' series has succeeded in a
on their sale." suit against a Boston firm who reproduced the series. The suit was in fact brought by the person Whatever doubts the judges of Canada have about in America to whom the English publisher had as- the propriety of beating drums in the streets, the signed the exclusive right to use the name of the magistrates of Truro, England, have none about *Chatterbox' series in America, but the question concertinas when complained of. The offending upon which the case turned was whether the En- musicians were members of the Salvation Army, glish publisher could prevent the use of the name and it was in evidence that they had on previous in America. It was quite clear, of course, that any
occasions marched through the streets playing body in America could reprint the matter of the musical instruments, tambourines and triangles, and series; the point was whether the Boston house did had been complained of. The proceeding was not represent their goods to be those of the English under a local ordinance, which appears in the folpublisher. The judge held, on the evidence, that lowing remarks of Stephen, J., in delivering the by calling their reprint the Chatterbox series,' opinion of the Queen's Bench Division on affirming they were holding out to the world that their work the conviction: “Now, if we look at this by-law, was his. The English publisher 'had the exclusive the part I am now considering, and which is all we right to put his own work as his own upon the have to deal with, is: “Every person who shall market of the world. Not the right to prevent the sound or play upon any musical instrument, or sing copying and putting the work upon the markets, or make any noise whatsoever, in any street or near but the right to be free from untrue representa
any house within the said borough, after having tions that this other work was his when put upon been required by any householder resident in such the markets.' This principle is very familiar to street or house, or by any police constable, to desist English lawyers in cases with regard to trade- from making such sounds or noises, either on acnames; and in this country, as in America, there is count of the illness of any inmate of such house, nothing to prevent an alien friend from asserting or for any reasonable cause.' Now what is there his right. It has been urged in America that the unreasonable in that? I have not the words of the decision in question gives the English inventor of London Act before me, but it is exactly like a wellthe 'Chatterbox' series what amounts to a copy
known provision in some of the metropolitan acts, right in the form of the books, and that the case is which in substance enables any householder who an illustration of the injustice to which the absence does not like barrel organs to order them to go of international copyright leads. * The laws of the away out of his hearing. We have heard about United States,' it is said, 'which patriotically fos- the common law of England, and the liberty of the ter the pillage of Tennyson, or Macaulay, or Dick subject, which are always suspected words. It is ens, can yet protect the inventor of a 'Chatterbox' like talking Latin. When one talks of the liberty series.' With the spirit of this remark English au- of the subject and the common law of England, thors and publishers will doubtless agree. But the one always suspects it cannot be true.
The liberty case does not really touch the question of copy- of the subject always consists in doing something right. The evidence showed that the Boston pub- a man is not forbidden to do, and why it is unrealishers, by using the name Chatterbox,' were rep- sonable and void that he should be forbidden to resenting their wares as those of the English play a musical instrument in the public streets of maker, and an American trader has no right to do Truro, I cannot see. It is a thing which nobody that in the case of books any more than in that of would visit with severity; but on the other hand it other kinds of goods. An American may make is an extreme annoyance to have a man playing unand sell reprints of Murray's handbooks, or imita- der your window with a concertina for a couple of tions of Holloway's pills, but he must not represent hours, and having a number of people to listen to that they are the articles made by Murray or Hollo- it and to sing. That may be a great nuisance. It way. The ground upon which the principle is put is for the magistrates to say whether it is or not. If is that there is no right to deceive the public into a I saw, or if there was the least reason to think, that belief that the goods sold by one man are those of that by-law was strained unjustly, and distorted another. The principle is common to both Ameri- from its natural meaning; if I thought that merely
Vol. 30 - No. 15.
because these people did not like the Salvation The case of the yacht Mignonette raises the quesArmy and their meetings, they tried to strain that tion whether one of two survivors of a shipwreck by-law to prevent their doing what they prima may lawfully kill and eat the other in order to save facie have a right to do, my view of the case would himself from starvation. The Law Journal rebe altogether different; but as far as I can judge, marks: “The story of the yacht Mignonette raises it appears from the whole of the proceedings there no legal question about which there can be any real was fair reason to think that the playing of this doubt. English law does not recognize necessity musical instrument in this place was an annoyance as an excuse for crime. Hunger is no defense to a to some of the persons who heard them, and the charge of larceny, still less is it a defense to a charge man who was summoned and fined was fined for of murder. There is authority in the books for saying that reason.
On the one hand he has every right that if two drowning men grasp a plank which will to be protected in conducting religious worship in only support one, it is not homicide for one to push whatever harmless way he thinks fit; but on the the other off. This is looked upon as a sort of act of other hand he must obey the law, and if the law of self-defense, and is as far as the law goes in admita particular borough is that he is not to play a musi-. ting the plea of necessity. Ordinarily, necessity in cal instrument in the streets if people object, English law means compulsion by threats of life or then he must not play it there, or he must play it limb." And the Solicitors' Journal observes: where people will not object, and I daresay there Blackstone
“There is one species of homiare many places where he could play it without
cide se defendendo where the party is equally innogetting into trouble.” What a luxury it must be cent as he who occasions the death, and yet this to live in a place where a householder can induce homicide is equally excusable from the great unian organ-grinder to "move on" without paying versal principle of self-preservation which prompts tribute!
every man to save his own life preferable to that of But the magistrates of Rugby were not so cer
another, where one of them must inevitably perish. tain whether mushrooms are "cultivated plants,"
As among others, in the case mentioned by Lord when salt has been sown with them to encourage
Bacon, where two persons being shipwrecked and their growth. At common law larceny does not lie
getting on the same plank, but finding it not able for taking things savoring of the realty, but the to save them both, one of them thrust the other Criminal Law Consolidation Act makes it a sum
from it, whereby he is drowned. He who thus premary offense to “destroy or damage with intent to
serves his own life at the expense of another man's steal any plant growing in any garden, orchard,
is excusable through unavoidable necessity and the. pleasure-ground, nursery-ground, hothonse, green
principle of self-defense, since both remaining on house or conservatory,” and also to “destroy or
the same plank is a mutual, though an innocent damage with intent to steal any cultivated root or
attempt upon, and endangering each other's life.' plant used for the food of man or beast, and grow
The analogy between the case of two drowning in any land." The defendant was complained of
men struggling for the support of a small plank, for taking mushrooms from a field. The London
and that of two or more men in a boat in no imme. Laro Journal says: “The case clearly did not come
diate peril otherwise than from starvation, is somewithin the first offense, because the mushrooms
what imperfect, since the survival of either of them were growing in a field and not in a garden; but
could scarcely be described as even an innocent atthe question was whether mushrooms growing in
tempt upon and endangering each other's life.""
We think the field, and cultivated to the extent of salt being
the difference between the two thrown down for their benefit are 'cultivated
cases is very narrow, almost imperceptible. It is plants’ within the meaning of the section. The
plain that in a struggle to get possession of the magistrates decided that they were not, and it
plank either would be justified in beating the other would be hard to say that they are wrong. Mush
off, even at the expense of life; but when two are rooms are clearly not 'cultivated plants' as a class,
once on a plank that can support only one, one has as and merely throwing a little salt or a little manure
much right to it as the other, and if one thrusts the on a field will not alter their character in the eye
other off to save his own life, how does that differ of the criminal law. If this were so, it might be
from his killing and eating him to save his own criminal to pick blackberries, because the owner
Strictly speaking, are not both murder! took care of the bramble bushes in clipping the
Should they not wait for the "survival of the fithedge. The mode of cultivating mushrooms from
test?” We concede that “hunger is no defense to spat is well known, and makes them apparent to
a charge of murder," but we do not see that danger the eye as cultivated plants, and in this form alone to one's own life is any defense to a charge of takwould mushrooms in the fields seem to come within ing the life of another. But where is the jury that the statute. The case, which is reserved for the would convict on such a charge? Men are not opinion of the High Court, may however throw morally responsible in such circumstances -- they some light on the nature and properties of a are unreasoning brutes, maniacs, reduced to a state somewhat mysterious growth." The case will
of nature, and absolved from the obligations of eventually be worthy of embalıment in our Com- society. At least, so it will seem to the average mon Words and Phrases."
NOTES OF CASES.
C. B. 544; Somerville v. Ilawkins, 10 id. 583; Od
gers on Libel and Slauder, by Bigelow, 202, 218, IN Rae v. Mayor, etc., 51 Mich. 526, it was held 225; Klinck v. Colby, 46 N. Y. 433. The communithat where the charter of a city requires the
cation had its origin in the confidential relation excommon council to take measures for the preserva- | isting between the parties, and emanated from one tion of the public health, a nurse employed by the
whom the defendant, under the circumstances, had council to take care of small-pox patients is entitled the right to believe. Privileged communications to compensation from the city, although the pa- comprehend all statements made bona fide in the tient himself is of sufficient ability to pay for the performance of a duty, or with a fair and reasonaservice, and a statute makes the cost of services so ble purpose of protecting the interest of the person rendered an individual liability. The court said: making them. The communication made by the “The duty to guard the public health and prevent defendant comes within the protection of this rule. the spread of contagion was imperative, and the What the defendant said was in performance of a power of the common council was commensurate duty he owed, not only to the guest, but to the with the duty. Neither the power nor the obliga- good reputation and management of the hotel untion could be lessened by the failure to designate a
der his charge. Numerous illustrations of the rule sub-agency."
“In providing that what is will be found in the authorities above cited, and done shall be at the charge of individuals, it is not the recent case of Billings v. Fairbanks (Sup. Ct. of intended to exempt the public from immediate lia- Mass., Dec., 1883) shows that it controls the dispobility. It would be impossible under such a regu
sition of this case. The communication being lation to effectuate the general object. Individu- privileged, the legal inference of malice is repelled, als would not be willing to provide necessaries, and and the onus of proving its existence, beyond the serve as nurses and assistants at the instance of the
mere falsity of the charge, was in consequence public if compelled to collect their pay of the pa
thrown upon the plaintiff, Levis v. Chapman, 16 tients or their relatives. The public is first and
N. Y. 373. There being no affirmative proof of acimmediately responsible, and the intent of the stat- tual malice it follows that the complaint must be ute is to enable the public to obtain reimbursement dismissed.” from those who ought to sustain the expense.
The plaintiff hired herself to the city.
In Pomeroy v. State, 94 Ind. 96, the accused, a
She trusted the city and no one else. The occasion was a public patient believed to be suffering from a disease of
physician, while examining the person of a female one. It was an emergency to which the duty and
There authority of the common council attached under
the womb, had carnal connection with her. the power of police, and the right and duty to act
was no evidence of consent upon her part, obtained depended in no manner on the pecuniary ability of by fraud or otherwise. Held that the accused was the persons who were sick or infected. The great tends to show that the appellant, as a physician, in
guilty of rape. The court said: “The evidence object was to stay the contagion, and the proper formed Rebecca and her mother that the former and humane care of the individuals was a righteous incident. The question is not affected by any of losing her mind. If the jury believed, as they
was suffering from a terrible womb disease, and was the other provisions. We are satisfied that the might well have done under the evidence, that the council was fully authorized to employ the plaintiff, and that the city is liable.” To the same effect, appellant, as a physician, obtained possession and
control of Rebecca's person, under her mother's Labrie v. Manchester, 59 N. H. 120; S. C., 47 Am.
command, for the purpose of making a further exRep. 179; 29 ALB. LAW JOUR. 43.
amination of her alleged disease of the woml), and
not for the purpose of sexual intercourse, and that In Keane v. Sprague, New York City Court, the she never in fact gave her consent, through fraud court, by McAdam, J., held as follows: “ The de- or otherwise, to the sexual connection, then, it fendant, the manager of the St. James IIotel, was seems to us, that the case in hand falls fairly within informed by a guest that the plaintiff, a domestic the doctrine declared in Queen v. Flatery, 2 Q. B. employed in the hotel, had stolen a diamond pin D. 410, decided in 1877, and that the appellant from his room, whereupon the defendant sent for was lawfully convicted of the crime of rape. In the plaintiff and told her what the guest had said, the case cited, as in this, the defendant professed and in the presence of the chambermaid charged to give medical and surgical advice for money. the plaintiff with the offense. For this the plaint. The prosecutrix, a girl of nineteen, like the proseiff sues the defendant, and the question arises cutrix in this case, was 'subject to fits,' and she whether, under the circumstances stated, the com- and her mother consulted the defendant in regard munication, apparently slanderous per se, was privi- to her case, and informed him of her condition. leged. I hold that it was. The relation of master The defendant, as in this case, made an examinaand servant existed, in legal effect, between the tion of the person of the prosecutrix, and advised parties, and the occasion, in law, repels all idea of that a surgical operation be performed, and under malice, and justified the defendant in repeating the the pretense of performing it, bad carnal conneccharge which his guest made. See Townshend on tion with her. It was held by the court that the Libel and Slander, $$ 209, 244; Manly v. Witt, 18 prisoner was guilty of rape. Kelly, C. B., said:
It is plain that the girl only submitted to the de- error, because it did not recognize force as an es-
SOME CHARACTERISTICS OF CHARLES thing contemplated, either by the girl or her
JAMES FOLGER, mother, was the operation which had been advised; sexual connection was never thought of by either of them. And after she was in the room alone
N looking over my letters from Judge Folger it with the prisoner, what the case expressly states is
would that the girl made but feeble resistance, believing be of great interest to the legal profession and to that she was being treated medically, and that the public, as illustrative of his mental characteriswhat was taking place was a surgical operation.
tics and habits, and his opinions, and would display In other words, she submitted to a surgical opera
him in a familiar and pleasant light to those who tion, and nothing else. It is said however, that did not intimately know him. For example, I having regard to the age of the prosecutrix, she
know it is generally supposed that he died of must have known the nature of sexual connection. political disappointment. This is a natural inferI know of no ground in law for such a proposition.
ence, perhaps, but it is a mistaken one, I believe. And even if she had such knowledge she might He was too strong for that, and he was a very sick suppose that penetration was being effected with man long before he went to Washington. How he the hand or with an instrument. The case is there really felt about his defeat in 1882 is shown in the fore not within the authority of those cases which following, of November 15, 1882, in answer to have been decided, decisions which I regret, that mine remarking that election day had proved a where a man by fraud induces a woman to submit
“cold day for the Republican party:" "You seem to sexual connection, it is not rape.' In the same
to think that Mr. Cleveland's election is one of the case, Mellor, J., also said: 'It is said that submis
“frozen facts' that we have heard of lately. Sevsion is equivalent to consent, and that here there eral of the anonymous letters I received during the was submission. But submission to what? Not to canvass promised to 'make it hot' for me. Whence carnal connection. The case is exactly within the this inconsistency? For I fancy the writers hug words of Wilde, C. J., in Reg. v. Case, 1 Den. C. C.,
themselves with the notion that they kept their at page 582: «She consented to one thing, he did promise. Considering the tone and action of the another materially different, on which she had been Republicans, “lukewarm 'might be the better word. prevented by his fraud, from exercising her judg. But cold, or hot, or tepid, it has passed, and I am ment.' In People v. Crosswell, 13 Mich. 427, after content if the people are.” The next day he wrote: citing some de sions both in England and in this “Your having forsworn politics may have saved country, to the effect that if the woman's consent you from some evil things; it ought not to debar is obtained by fraud the crime of rape is not com- you from some good things; so I send you this. I mitted, Cooley, J., said: “But there are some cases have a note by mail, anonymous, as follows: 'Acin this country to the contrary, and they seem to cept the best wishes and appreciation, in this day us to stand upon much the better reason, and to be of your defeat, from a political opponent. more in accordance with the general rules of
Multis ille bonis flebilis occidit, criminal law. People v. Medcalf, 1 Whart. C. C.
Nulli flebilior quam mihi.' 378, and note 381; State v. Shepherd, 7 Conn. 54.
'Consulque non unius andi
Sed quoties bonus atque fidus.' And in England where a medical practitioner had knowledge of the person or a weak-minded pa- The first couplet is from the ode of Horace, adtient, on pretense of medical treatment, the offense dressed to Virgil on the death of Quinctilius Varus was held to be rape. Reg. v. Stanton, 1 C. & K. 415. (Lib. 1, ode xxiv). My friend has substituted mihi The outrage upon the woman, and the injury to
for tibi, and omitted Virgili. He (perhaps you will society, is just as great in these cases as if actual
think) would have been as apt in quotation if he force had been employed, and we have been unable
had written to me the last two lines of the ode: to satisfy ourselves that the act can be said to be
Durum, sed levius fit patientia any less against the will of the woman, when her
Quicquid corrigere est nefas!' consent is obtained by fraud, than when it is ex- (It is hard; but borne with patience, even that torted by threats or force.'” But in Don Moran v. which cannot be remedied, becomes more toleraPeople, 25 Mich. 356; S. C., 12 Am. Rep. 283, the ble.) Where my Democratic mourner gets his jury having been instructed that they might con- other couplet, I have not yet found.” I am invict if they found that the defendant procured the clined to believe that he was more annoyed at his woman to have connection with him by fraudulent inability to ascertain the authorship of that couplet representations, which she believed, that it was a than by his defeat. necessary part of his medical treatment of her, and He did not love politics, and he heartily despised to save the necessity of a dangerous operation, held, the insincerity and faithlessness of politicians. I