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was an inducing cause to the contract; that is to say, that it was material, and that it produced in his mind erroneous belief influencing his conduct. The plaintiff brought an action to recover the damages which he had sustained in consequence of an alleged misrepresentation in the prospectus of a company. It was admitted that the statement was material, and that it was not true in one sense; but the words were ambiguous, and were capable of being understood in a sense in which they were true. The plaintiff's evidence was that he understood the words "in their natural sense." Held (affirming the judgment of the court below), that the plaintiff had not discharged the burden of proof which lay upon him, and that the action could not be maintained. Per Lord Blackburn: The motive of a person who makes a statement which he knows to be false, with the intention of inducing another person to act upon it, is immaterial. H. L., Feb, 18, 1884. Smith v. Chadwick. Opinions by Sel. borne, Chanc., Blackburn, Watson and Bramwell, JJ. (50 L. T. Rep. [N. S.] 997.)
CITIZENSHIP OF CHILDREN OF ALIENS BORN IN THE UNITED STATES.
Editor of the Albany Law Journal:
Attentive readers of the opinion of Mr. Justice Field (U. S. Cir. Ct., Ninth Circuit) in the matter of Look Tin Sing, reported in the last number of the JOURNAL, will not fail to remember that his honor limits the words "subject to the jurisdiction' in the first section of the fourteenth amendment, to except from citizenship only children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country." But in the Slaughter House case, 16 Wall. 36, Mr. Justice Miller delivering the opinion, the court say: "The phrase, 'subject to its jurisdiction,' was intended to exclude from its operation children of ministers, consuls and citizens or subjects of foreign States born within the United States." (The italics are mine.)
If the first section of the fourteenth amendment is to receive the construction placed upon it by the United States Circuit Court, in apparent contravention of an express exception of the Supreme Court, it must result that this section of the fourteenth amendment carries us back to the principle of the English common law, that all persons born within the dominions of the crown, with hardly an exception, are to all intents and purposes British subjects.
As has been pointed out elsewhere (5 Am. Law Rev. 369), the fourteenth amendment is less carefully worded than the Civil Rights Bill (April 9, 1866). The latter only declared those persons to be citizens who were born within the United States, "and not subject to any foreign power."
It is to be further observed that there is an inconsistency and irregularity in the Constitution and laws of the United States in respect to citizenship, as is manifest by comparing the first section of the fourteenth amendment with provisions of the act of Feb. ruary 10, 1855. The former makes citizenship (or national character) of children of aliens dependent upon place of birth; the latter derives it, in case of children of citizens, from parentage. The former would perpetuate the doctrine of feudalism under which jus soli prevailed. The latter recognizes the principle of jus sanguinis, now almost universally accepted by domi
Lord Bramwell, it is said, spoke of a heraldic expert as a "silly old man who did not understand his silly old trade." St. Paul counselled to "eschew vain genealogies."
The Albany Law Journal.
ALBANY, NOVEMBER 29, 1884.
presidential election may fairly said to be finished, now that the official count in this State is known, and the lawyers can go back to business. A lawyer has been elected president, which is an indication that the profession have not quite lost their hold upon political honors. The year of the presidential election is always one of uncertainty and depression in business, and the next succeeding year is frequently not much better, and our profession feel this quite as sensibly as the business world. There is comparatively little law
business in the year of the presidential election, and the lawyers are running after office for them selves, or others, or both. These elections come too frequently for the good of the country. Either in county, State or Federal politics there is some political turmoil nearly all the time. It would be much better, it seems to us, if the presidential term were six years instead of four, and if the gubernatorial term were twice as long, or half as long again as it is. Our canvasses are constantly becoming more corrupt, more virulent, more tainted by betting, more unscrupulous in every way. As the legal profession are notoriously addicted to politics it must follow that they are peculiarly subject to all these unhappy influences, and prone to all these undesirable practices. It is perhaps fitting that the lawyer should be frequently represented in politics, although we feel bound to say that he is not always well represented, but there is a craze among lawyers for political campaigning that unfits them for their business, and takes their business away from them. It is to be feared that much of the vituperation and slander of the campaigns is attributable to the license of the bar, which is regarded by those who are guilty of it in a merely Pickwickian sense, but which degrades them more than it hurts its object. For ourselves we are sincerely glad that the election is over, and on Thursday last, Thanksgiving day, we gave especial thanks for the fact that it is over, and that there will not be another for four years.
There are however some amusing phases of these contests. The presidential election this year has developed a new one in our State, hinging on a point of law. Our State has cast, we suppose, something like twelve hundred thousand votes, and the successful candidate has received a plurality of something like one thousand only. Of course it was quite uncertain for several days, and perhaps even until the official count was known, who had received a plurality, or how much it was. But the Democratic newspapers have been reviling certain of the Republican newspapers for claiming the elecVOL. 30 No. 22.
tion of the Republican candidate by a few hundreds, and propose to have them indicted under the Penal Code for disseminating false and forged news. This is one of the best jokes of the season, and is enough to make any lawyer's sides sore with laughter. It would indeed be hard on the newspapers if they were liable to indictment for mistaken opinions on estimates, or for errors in footing up columns of figures, especially on so narrow a margin as one thousand in twelve hundred thousand. As the public have now lost all interest in the personal abuse of the rival candidates they can hardly be expected to care much for this newspaper abuse of rival journals. We suspect that it would be time and labor wasted to try to get a newspaper man indicted for disseminating false or forged election returns under any circumstances. If any of the stock gamblers have been bitten by depending upon such estimates it has served them right. We would rejoice to see them all cleaned
A spasm of morality has passed over the city of New York. The authorities, after winking for years at brutal prize-fights under the guise of boxing-matches, have made a determined effort to "knock them out." In the case of the cultured Bostonian, Mr. Sullivan, the issue has been raised, and the authorities seem disposed to handle these gentry without gloves. This latter-day repentance is refreshing. We hope it will bring forth meet works. It is a humiliating fact that this ruffian, drunkard and bully, Sullivan, has repeatedly made more money in ten or fifteen minutes by the practice of his brutal "profession," than many a sober, industrious and honest lawyer of the best talents can make in a year. For ourselves, we speak in all soberness when we say that we regard the excited curiosity and interest with which many respectable people flock to these contests as indicative of the same tiger spirit, hardly quelled by civilization, which instigates lynchings, and as resembling the cruel delight of the ancient Romans in the bloody sports of the amphitheatre. We propose this test to determine whether boxing-matches are proper scientific exhibitions. Let Captain Williams carry a club stuffed like the gloves, and when the fight gets too hot let him club both combatants, and knock them both out, if possible. If Captain Williams could also take his club to some of the party editors who have been making the press reek with irrelevant scandal and filth for the last six months, we would stand by him.
Mr. Edwin Young, of this city, has read an excellent paper, before the Academy of Political Science, of New York, on The Jury in Modern Corporate Life, which is now published. Mr. Young approves of the jury in theory, but finds that there are grave defects in administration, arising from the following causes: Disqualifications and exemptions; excuses by the court; improper selection by the county officers; public and political apathy; impo
tency of the oath from decay of religious belief. these points Mr. Young speaks concisely but with great cogency. Mr. Young is a railroad lawyer, but we feel bound to say that no one would discover it from the tone of his paper, and we heartily concur with his opinions. On the point of public and political apathy he observes: "If the immediate cause of the decay of the jury is the neglect of duty by public officials, it is with ill grace that they are censured by a community guilty of the same act. If good men won't serve, it is next to impossible, under our principles and administrative system, to compel them to do so; and, although this is all the more reason why public officials should exert themselves to enforce the duty, so far as they are able, still, we can hope for but little permanent relief, until the spirit of the community is moved to a spontaneous acquiescence. We have come to regard our private business interests as paramount to all other considerations; to look upon the State as for no other purpose than to subserve such private interests, and to regard the saving of time, by the escape of performance of public duties, as so much clear gain, to personal interests, in the competition of life. It is this fatal error. which destroyed Rome, and which is the most dangerous enemy to a Democratic republic. * ** The real value and efficiency of such institutions, depend upon the manner in which they are administered. The character of such administration depends upon the character, not of the whole people of the community, nor of the whole of the ruling majority, but of that particular portion of them who participate in the exercise of their political rights. And the character of this political body will directly depend upon whether the best citizens of the community will or will not so participate. We cannot hope for reform, therefore, until we realize that admitting that the chief object of the State is the protection of personal interests, such personal interests are not best subserved by exclusive devotion to one's own business; but that on the contrary, such personal interests are daily suffering, in a thousand ways, from the abuse of power of public officials, deranging the business interests of the community, and feasting upon the profits of individual industry." On the point of the impotency of the oath, he says: "This is largely due to the decay of religious belief, with which the importance of an oath is directly associated, among the lower classes. The mystery of a myth is of great value in staying the passions of the multitude, even in this enlightened age. Queen Victoria rules the masses of England with quite as firm a hand as that with which the House of Commons rules the queen. To a man of intelligence and culture, the significance and value of an oath is based upon far higher principles than belief in the dogmas of religion, but to a man of the class to which our juries have been reduced, there is no significance but the hope of reward and fear of punishment, as inculcated by his religion. The effect of the exposition of the fallacies of religious dogmas,
by the learned, is to weaken the faith of the unlearned, and with it the conscience and value of the oath." We seriously wish that our legislature this winter would do away with most of the present excuses from jury duty.
NOTES OF CASES.
N Moore v. Monroe, Iowa Supreme Court, Sept. 18, 1884, it was held that an injunction will not issue to restrain the reading of the Bible or the singing of religious songs in the public schools, unless attendance on such exercises is compulsory. The court said: "The record shows that the teachers of the school are accustomed to occupy a few minutes each morning in reading selections from the Bible, in repeating the Lord's prayer, and singing religious songs; that the plaintiff has two children in the school, but that they are not required to be present during the time thus occupied. The record shows, further, that the plaintiff objected to these exercises and requested that they be discontinued; but that the teachers refused to discontinue them, and that the directors refused to take any action in the matter. The plaintiff concedes that under a statute, section 1764 of the Code, if constitutional, neither the school directors nor the courts have power to exclude the Bible from the public schools. The provision of the statute is in these words: The Bible shall not be excluded from any school or institution in this State, nor shall any pupil be required to read it contrary to the wishes of his parent or guardian.' Under this section it is a matter of individual option with school teachers as to whether they will use the Bible in school or not, such option being restricted only by the provision that no pupil shall be required to read it contrary to the wishes of his parent or guardian. It was doubtless thought by the legislature that an attempt on the part of school boards to exclude, by official action, the Bible from schools would result in unseemly controversies, to be decided ultimately at the polls, and that such controversies would naturally disturb the harmony of school districts, and impair the efficiency of schools. Whether the provision is a wise one, it is unnecessary for us to express any opinion. It is the law of the State, unless unconstitutional. The plaintiff insists however that it is unconstitutional. The provision of the Constitution which it is said to conflict with is article 1, section 3, Bill of Rights. The provision is in these words: "The general assembly shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship, or the maintenance of any minister or ministry.' The plaintiff's position is, that by the use of the school-house as a place for reading the Bible, repeating the Lord's prayer, and singing religious songs, it is made a place of wor
ship; and so his children are compelled to attend a
very exhaustive, and I was satisfied on the question of fact at that time; and a further examination of the case has only confirmed my opinion that the complainant has made out the piracy, and that 'Nunky' not only copied gags, jokes and catch bywords, so called, from 'The Private Secretary,' but also copied sentences, paragraphs, incidents and situations. Without going into the particulars, I am satisfied on the question of fact, that the complainant has made out his case. The defendant introduces two legal objections. The first objection is, that the complainant has not shown that Hawtry was the author of The Private Secretary.' The testimony of the complainant on this point is his affidavit, the affidavit of Mr. French, and the assignment of Mr. Hawtry to French of this play. The assignment is not sworn to, but only acknowledged. The affidavits of himself and Mr. French set forth in substance that they were informed by Mr. Hawtry that he wrote 'The Private Secretary.' Mr. French swears that Hawtry is the author. They also say that Hawtry was recognized as the author of 'The Private Secretary' in England. Therefore we have in the affirmative, proof of every thing except the affidavit of Mr. Hawtry himself. We have his assignment, which is acknowledged. Now, it is well known that in motions of this character, where great injury is liable to occur, it is difficult to get testimony from persons residing in foreign countries. But it does seem to me that the affidavits of Mr. Palmer and Mr. French, in connection with the assignment of Hawtry to French, do make a prima facie case for the complainant, which is not overcome by any other testimony on the part of the defendant. The second legal objection which the defendant raises is that Hawtry has lost his common law rights of protection in this ap-country, by reason of the fact of the play of 'The Private Secretary' having been presented in England, coupled with the fact that a presentation in England is publication, and that such publication goes to destroy the common law rights of protection; but I would ask the defendant, what has Mr. Hawtry done to forfeit his common-law rights in America? Has he done any thing either in England or this country which destroys his common law rights, according to American law? The fact that there has been a presentation of the play in England or America does not forfeit the commonlaw protection which this country affords him ; whatever may be the fact of the presentation of this play in England, what we want to look after is simply what the American law is; and has he by any act worked a forfeiture of his common law rights? We find that the presentation of the play, whether in England or this country, is not by American law publication, and therefore, Hawtry or his assignees are entitled to the protection of American law. Whatever contract Hawtry made with the English public cannot interfere with his rights here; and is no forfeiture of his rights of protection in this country. These are the two legal
On the 18th instant, in the United States Circuit Court, at Boston, in a suit to restrain the defendant from representing the play entitled "Nunky," at the Boston Museum, a motion for a preliminary injunction was granted, Judge Colt pronouncing an oral opinion substantially as follows: "The bill sets out that 'Nunky' is a piracy upon 'The Private Secretary.' The first question for the court to decide is the question of fact as to whether there is such a piracy. The argument at the hearing was
questions which the defendant argues against this motion, but I must say that to my mind, they are clearly untenable."
In Pullman Palace Car Co. v. Gaylord, Kentucky Superior Court, Oct. 29, 1884, 6 Ky. Law Rep. 279, it was held that in the absence of proof of negligence a sleeping car company is not liable for a diamond pin stolen from the berth of a passenger. The court, citing Clark v. Burns, 118 Mass. 275; S. C., 19 Am. Rep. 456, and Steamboat Crystal Palace v. Vanderpoel, 16 B. Monr. 302, said: "It would be 'difficult to give any valid reason why a sleeping car company should be held to any more rigid liability in such cases than a steamboat company. It could no more be said that a sleeping car was an 'inn on wheels' than that a steamboat was an inn on water. They both provide sleeping apart ments for passengers, who pay for the privilege, and are expected to occupy them. Sleep is as essential to the health and comfort of the traveller in the one case as in the other. The servants of the steamboat company certainly have the implied custody of the passenger's wearing apparel to as great an extent as the servants of the sleeping car company. The resemblance of a steamboat to an inn is even greater than that of the sleeping car, since it is customary for the former to provide meals for its passengers. If, then, the rigid liability of innkeepers is not to be extended to the owners of steamboats, common justice demands that it be not applied to the owners of sleeping cars. And we find this rule has been followed so far as the responsibilities of the latter have been the subject of judicial inquiry. While these adjudications are not placed upon the same ground, their conclusions are substantially the same. We cannot concur in some of the reasons assigned in the various opinions, but we think their decisions are, in the main, correct." The court also remarked upon Plum v. Puliman Sleeping Car Co., 3 Cent. Law Jour. 592; Palmeter v. Wagner, 11 Alb. Law Jour. 149; Welsh v. Pullman Palace Car Co., 16 Abb. Pr. (N. S.) 252; Pullman Palace Car Co. v. Smith, 73 Ill. 360; S. C., 24 Am. Rep. 258; Woodruff S. & P. C. Co. v. Diehl, 84 Ind. 474; S. C., 43 Am. Rep. 102, and concluded as follows: "While therefore the stringent liability of an innkeeper, which the distinguished Chief Justice Coleridge has said does not stand on mere reason, but 'on custom, growing out of a state of society no longer existing,' is not to be applied to the owners of sleeping cars, it does not follow that they assume no duties or liabilities. These cars are in themselves an invitation to the travelling public to enter and protect themselves against the weariness of a long journey by disrobing and sleeping. The passenger in buying and the company in selling the ticket contemplates that this privilege will be improved. The company accepting compensation under these circumstances impliedly undertakes to keep a reasonable watch over the passenger and his property. The faithful perform ance of this undertaking is the limit of its duty in
this respect. Its breach must be the foundation of every action seeking to charge the company with the loss of articles the passenger has taken with him upon the car. In the case at bar the defendant was held liable without regard to the faithfulness of its servants. If they exercised proper care by keeping a reasonable watch over the plaintiff's property, there was no breach of any undertaking on the part of the company, and hence no liability."
CIVIL DAMAGE ACT — EXEMPLARY DAMAGES. NEW YORK SUPREME COURT, GENERAL TERM, FOURTH DEPARTMENT, OCTOBER, 1884.
RAWLINS V. VIDVARD.
In an action brought under the Civil Damage Act against the owner of a building leased for hotel purposes, and where liquors are to be sold, the measure of the recovery is limited to the actual damages sustained. Exemplary damages cannot be recovered in the absence of
aggravating circumstances; they are given only as a punishment of a wrongdoer, and not as compensation to an injured party.
PPEAL by defendant from a judgment entered against him upon a verdict rendered at the Oneida Circuit in January, 1882, and from an order denying a motion for a new trial.
This action was brought under the statute to suppress intemperance, pauperism and crime, known as the "Civil Damage Act."
On the 27th of September, 1880, the defendant owned certain premises in the town of Whitestown, county of Oneida, known as the "Yorkville House," which he had leased to one Nellie M. Briggs, knowing that she intended to use them for the purpose of keeping a hotel in which intoxicating liquors should be sold.
The plaintiff claimed, and the evidence in her behalf tended to show, that on the day last named her husband, Martin J. Rawlins, became intoxicated; that such intoxication was caused wholly or in part by liquors sold to him by Mrs. Briggs or her agent, and that he was thereby rendered incapable of taking care of himself, and fell from the loft of a barn situated on said premises, broke his arm, and sustained other injuries.
The defendant claimed, and the evidence in his behalf tended to show, that on the occasion in question no liquors had been furnished to said Rawlins by Mrs. Briggs, or at said hotel, and that he became intoxica.
ted on what he drank elsewhere.
It was not disputed that the plaintiff was dependent on her husband's labor for support, and that he was prevented by these injuries from working from the date of the accident until January 20, 1881. He was a laboring man, without any property, and earned from $1.20 to $1.35 per day. His family consisted of the plaintiff, two children, aged respectively four and ten years, and himself. He was not in the habit of drinking to excess, but did occasionally, or as stated by the witnesses, once or twice a year. He testified that he drank one glass of beer at another hotel early on the day in question, and before he drank at the Yorkville House, and would not swear that he did not drink two.
The jury found a verdict for the plaintiff for $150.
VANN, J. Upon the trial of this action the court charged the jury that the plaintiff, if her case was