« SebelumnyaLanjutkan »
tlement, and for the purpose of inducing the company R. R. R. Co., 14 Wend. 51; Hay v. Cohoes Co., 3 Barb. to make the same, that he had a perfect title; that the 42; Underwood v. Newport Lyceum, 5 B. Mour. 130; company, relying upon such false assertion of title, Humes v. Mayor of Knoxville, 1 Humph. 403; Hazen was, in fact, induced to make the settlement alleged to v. Boston & Maine R. Co., 2 Gray, 574; Illinois Central have been made; and that it would not have made R. Co. v. Reedy, 17 III. 580; Baylor v. Balt. & Ohio R. such settlement if such false representations had not Co., 9 W. Va. 270. See, also, South-eastern Railway been made, See Mutual Fire Ins. Co. v. Sturges, 13 v. European & Amer. Tel. Co., 24 Eng. L. & Eq. 513; Gray, 177-180; Ins. [Co. v. Matthews, 102 Mass. 221. Queen v. Great North of Eng. Railway, L. R., 2 Q. B. Wisconsin Sup. Ct., March 30, 1880. Stache v. St. Paul 151; Maund v.Moumouthshire Canal Co.,4 Man.& G.452. Fire and Marine Ins. Co. Opinion by Taylor, J. They are liable for the acts of their agents, though will
fully or maliciously done. For libel: where the agent
of a railway company telegraphed along its line that a CRIMINAL LAW.
banker had stopped payments. Whitfield v. South
East. R. Co., referred to in 21 How. 212, where a report BIGAMY --PRESUMPTION OF DEATH FROM ABSENCE. was made to stockholders by directors. Philadelphia, - In prosecutions for bigamy, where absence for a etc., R. Co. v. Quigley, 21 How. 202. See, also, Maynumber of years of the wife or husband of the in-nard v. Firemen's Fund Ins. Co., 34 Cal. 48. In Nadicted party is relied on as a defense, held, that no tional Exch. Co. of Glasgow v. Drew, 2 Macq. H. of artificial rule as to presumption is allowed to obtain in L. Cas. 103, a corporation was held liable for a fraudusuch cases, and the jury must draw their own infer- lent misrepresentation of its affairs in a report, whereby ences from the facts, without any anticipation by the & party was induced to purchase its stock. And in law. After much controversy in the earlier cases, as to Goodspeed v. East Haddam Bank, 22 Conn. 630, it was whether the presumption of innocence should out- held that an action for a malicious prosecution could weigh the presumption of a continuance of human be sustained against a corporation. In Atlantic & life for the period of seven years, it seems now to be Great Western R. Co. v. Dunn, 13 Ohio St. 162, and in generally conceded, that on principle, the one should | Pittsburg, F. W. & C. R. Co. v. Sbiper, id. 157, it was be considered as neutralizing the other, though in a decided that a corporation might be subjected to exgeneral way, the law prefers the presumption of inno- emplary or punitive damages for tortious acts of its
1 Bish. Mar. & Div., $ 453; Bishop's Stat. Crs., agents or servants done within the scope of their au$ 611; 1 Greenleaf on Ev., $ 41; R. v. Harborne, 2 A. & thority; and in Moore v. Fitchburg R. Co., 4 Gray, E. 540; Coper v. Thurmond, 1 Kelly, 538; Newman v. 465, that a corporation might be sued for an act of its Jenkins, 10 Pick. 515; State v. Moore, 11 Ired. 160. And servant while acting within his authority, which such seems to be the tendency of former decisions amounted to an assault and battery. It may now be in our State. Yates v. Houston, 3 Tex. 433; Lockhart regarded as settled, not only that a corporation may v. White, 18 id. 110. In Regina v. Lumley, L. R., 1 be sued in tort, but that it may be indicted for a failCr. Cas. Res. 196, it was said: “In an indictment for ure to perform certain public duties which the law or bigamy, it is incumbent on the prosecution to prove its charter imposed upon it. See Freeholders v. to the satisfaction of the jury that the husband or Strader, 3 Harr. 108; Regina v. Birmingham & Glo. R. wife, as the case may be, was alive at the date of the
Co., 9 Car. & P. 469; Susquehanna & Balt. Turnp. Co. second marriage. That is purely a question of fact. v.People, 15 Wend. 267; Commonwealth v. Proprietors The existence of the party at an antecedent period of Newburyport Bridge, 9 Pick. (Mass.) 142; Regina v. may or may not afford a reasonable inference that he Great North. Ry. (0., 9 Ad. & El. (N. S.) 319; State v. (or she) was living at the subsequent date. If, for ex- Vt. Ceut. R. Co., 27 Vt. 108; Commonwealth v. Proample, it were proved that he was in good health on prietors N. B. Bridge, Gray, 339.
West Virginia the day preceding the second marriage the inference Sup. Ct. of Appeals, June Term, 1879. State v. Baltiwould be strong, almost irresistible, that he was living more & Ohio Railroad Co. Opinion by Green, P. J on the latter day, and the jary would, in all probability, find that he was so. If, on the other hand, it were proved that he was in a dying condition, and nothing
RECENT ENGLISH DECISIONS. further was proved, they would probably decline to draw that inference. Thus the question is entirely CARRIER OF PASSENGERS — DUTY TO FURNISH SAFE with the jury. The law makes no presumption either
MEANS OF ALIGHTING.- Plaintiff took a return ticket way." Texas Ct. of Appeals, Jan. 24, 1880. Hull v.
at Richmond station on the S. company's line, over State of Texas. Opinion by Clark, J.
which defendants had running powers. On his return CORPORATION - MAY BE INDICTED FOR SABBATH journey plaintiff travelled in defendant's train, manBREAKING. – A corporation may be indicted for aged by defendants' servants. In alighting at Rich“Sabbath breaking" under the Code of West Vir- mond station he was injured owing to the carriage, ginia, which provides that “If a person on a Sabbath which was built to suit the stations on defendants' own day be found laboring at any trade or calling, or em
line, being too high above the platform. Held (affirmploy his minor children, apprentices, or servants in ing the judgment of the Common Pleas Division), that labor, or other business, except in household or other defendauts were bound to provide reasonably safe work of necessity or charity, he shall be fined not less
means of alighting, and that there was evidence to than five dollars for each offense." The modern au
justify a verdict for plaintiff. Great West. R. Co. v. thorities agree that corporations are liable for torts
Blake, 7 H. & N. 991 ; Thomas v. Rhymney R. Co., L. committed by their agents in the discharge of the busi- R., 5 Q. B. 226; S. C., 6 id. 266, Marshall v. York, etc., ness of their employment and within the proper range
R. Co., 11 C. B. 655; Austiu v. Great. West. R. Co., L. of such employment; and that too, whether the tort
R., 2 Q. B. 442; Dalyell v. Tyrer, 28 L. J.52, Reynolds be one the responsibility for which is to be enforced
v. North-East. R. Co., Roscoe's N. P. 596, (14th ed). by an action on the case, or by trespass. See Yarborough
Ct. of Appeal, March, 1880. Foulkes v. Metropolitan v. Bank of England, 16 East, 6; Rex v. Mayor of Strat
District Railway Co. Opinion by Bramwell, Bagford, 14 id. 348; Regina v. Birmingham, etc., Co., 3 Ad. gallay and Thesiger, L. JJ., 42 L. T. Rep. (N. S.) 345. & E. (N. S.) 223; Maund v. Monmouthshire Canal Co., 4 LEASE - COVENANT
OF PREMISES Man. & G. 452; Chestnut Hill & Spring H. Turnp. Co. v. WAIVER BY ACCEPTING RENT. - The defendants held Rutler, 4 Serg.& R.16; Whiteman v. Wilmington & Susq. certain premises of the plaintiffs for a term of years R. Co., 2 Harr. (Del.)514; Bloodgood v. Mohawk & Hud. | under a lease whereby the lessees covenanted not to
permit or suffer, at any time during the said term, to invited to compete for this prize. Its founders, by be used, exercised, or carried on upon the premises, or limiting the privilege of contending for it to lawyers any part thereof, any art, trade, profession, or busi- of five or more years' standing, appeal to the experiness whatsoever, without the license or consent inenced portion of the profession, to renew the emulawriting of the lessor, first obtained for that purpose. tions of scholastic life, under the conviction that this The lease contained a power of re-entry upon breach of would be one of the methods of increasing devotion covenant. The lessees had, by consent, made some al- to the science of law among lawyers, and an acquaintterations in the premises, and part of the new building ance with its principles among the people. was occupied by two of the defendants as plumbers, The Coinmittee hope that the response to this inviand they carried on their business there in a shop tation will be such as to secure those ends. suited for the purpose. There was no written license John I. GILBERT, Chairman, Malone, 4th Dist., or consent of the lessor for this business, but two LEWIS L. DELAFIELD, N. Y. City, 1st Dist., quarters' rent was paid as usual by the lessees after JOSHUA M. VAN COTT, Brooklyn, 2d Dist., the business commenced, with the lessor's knowledge DENNIS B. KEELER, Syracuse, 5th Dist., of this use of the premises. There was no evidence of ELLIOTT DANFORTH, Bainbridge, 6th Dist., the nature of the plumber's tenancy, but within a year GEO, H. HUMPHREY, Rochester, 7th Dist., of its commencement the plaintiffs took proceedings GEO. WADSWORTH, Buffalo, 8th Dist., to recover the land on the ground of a forfeiture by a
Committee on Prizes. continuing breach of the covenant. Held, that it could not be presumed that a plumber's business would be commenced upon a less tenancy than a year of the
NEW BOOKS AND NEW EDITIONS. shop in which it was to be carried on; and that the plaintiff's waiver of the breach by receipt of rent was
ABBOTT'S TRIAL EVIDENCE. sufficient under the circumstances to render these pro- Trial Evidence. The Rules of Evidence applicable on the ceedings ineffectual. Q. B. D., March 8, 1880. Griffin v. trial of Civil Actions (including both causes of action Tompkins. Opinion by Lush and Manisty, JJ., and and defenses) at common law, in equity, and under the Cockburn, C. J., 42 L. T. Rep. (N. S.) 359.
Codes of Procedure By Austin Abbott, of the New
know. It “assumes that the reader is familiar SUBJECT AND REGULATIONS FOR THE POST-GRADUATE
with the general principles of the law of evidence, and PRIZE OF Two HUNDRED AND FIFTY
is concerned with their proper application in actual DOLLARS, FOR 1880.
practice.” In a word, it assumes to instruct the practitioner exactly how to try every kind of case, so far
as the evidence is concerned. It states the appropriate HE Committee on Prizes of the New York State evidence in every class of actions; it describes the
Bar Association announce the following subject mode of proof; it treats of the weight and sufficiency and regulations for the Post-graduate prize of $250 of evidence, of witnesses and documentary evidence, for 1880:
and of the effect of the Codes on the rules of evidence. First. - The Post-graduate prize of $250 for 1880 will | In preparing his case, if the practitioner wants to know be awarded to the writer of the best original thesis, exactly what he must prove and how to prove it, here argument or work upon the following subject: “The is his guide. It is therefore a practical as distinguished propriety of regulating commercial intercourse (espe- from a theoretical work of evidence, and if well execially that relating to railroads) between the States by cuted cannot fail to be the most important and useful National legislation; or, what National legislation (if text-book issued in many years. That the work is ang) should be had to regulate commercial intercourse faithfully performed the reputation of its author is a between the States."
sufficient guaranty. All of Mr. Abbott's previous Second. — The essay must be sent to the Chairman work is characterized by exactness, thoroughness, and of the Committee, at Malone, on or before the fifteenth discrimination, and we have dipped into this large volday of September next, sigued merely with a nom de ume sufficiently to be warranted in saying that it is plume, and accompanied with the real name of the worthy of his reputation. The rules are neatly aud writer in a sealed envelope. Only the envelope con- clearly stated, and every rule is fortified by reference taining the name of the author of the winning essay to authorities. There is an analytical table of conwill be opened; all others will either be destroyed un- tents and also a good index, but no table of cases cited. opened, or returned with the accompanying manu- The book should find a place in the library of every script to the author upon his request. The successful lawyer, and should lie at the right hand of every judge essay will be the property of the Association, and all and referee. Indeed, we cannot see how our profesthe other essays, not requested to be returned, will be sion have so long done without such a work. The filed for preservation in the archives of the Association. typography is very compact but legible enough, and
Third. - The prize will be awarded at the annual the paper is of the best. meeting of the Association in Albany, on Tuesday, the 16th day of November, 1880.
V BRADWELL'S REPORTS. Fourth. - Only those can compete for this prize who are members of the Bar of the State of New York, of Reports of the Decisions of the Appellate Courts of the State
of Illinois. By James B. Bradwell. Volume V Confive or more years' standing, and the prize can only be
taining all the remaining opinions of the first district awarded when there shall be at least five competitors.
up to March 29, 1880, all the remaining opinions of the Fifth. -Every production submitted will be exam- second district up to the June term, 1880; all the reined by each member of the Committee, and the award maining opinions of the third district up to the May of the prize will be made by the Committee upon a term, 1880, and a part of the opinions of the fourth dismajority or plurality vote; or in case of a failure of a trict of the February term, 1880. Chicago : Chicago plurality vote, by the Chairman, from those produc
Legal News Co., 1880. Pp. 692. tions having the highest and equal votes.
We note the following cases: Egan v. City of ChiSixth. -No member of the Committee on Prizes cago, p. 70. — An action may be maintained against a shall in any manner compete for said prize.
city for services rendered, in pursuance of a resolution The members of the legal profession are cordially of its common council, in examining the walls of a
building being erected by the United States govern- Leonard. This case is reported 46 N. Y. 688, in memment upon its own land in the city, with a view of orandum only. The opinion is nowhere reported in ascertaining whether they are safe. Stowell v. Bair, full, and upon application to the clerk of the Court of p. 104. – A mortgage of an unsown crop is invalid. Appeals, and to the reporter of that court, the writer Western Assurance Co. v. Mason, p. 141. - In an action was informed that the opinion was mislaid, and that no on a policy of fire insurance on a summer residence, it copy of it could be furnished. Upon writing, howappearing that during the winter the insured visited ever, to the counsel for the appellants in that case, a it once a week, and her husband went to it two or copy was furnished, which is inclosed. three times a week, frequently taking meals and re
Respectfully yours, etc., maining over night and entertaining friends there, NEW YORK, June 1, 1880.
E. H. L. held, po breach of the condition against vacancy. Chicago & North-western Railroad Co. v. Carroll, p.
[See ante, p. 28.-Ed. A. L. J.] 201. — A railroad company is not absolutely bound under all circumstances to furnish all its passengers with seats. Lawrence v. Mutual Life Insurance Co.
NOTES. of New York, p. 280. — Where one whose life was in
THE American Law gently taking an overdose of laudanum, held, no breach of the condition that the policy should be void in case rities, by Leonard A. Jones; the Judgment non obstante of self-destruction, voluntary or involuntary, sane or veredicto, by William A. Manny; and the case of Hudinsane. Neill v. Spencer, p. 461. – One who has per- dell v. Seitzinger, Ex parte Wood, on notes transferred formed pastoral service for a religious society, without as security for antecedent debts, with a note by Arthur having been elected pastor, cannot recover therefor, Biddle; beside the usual miscellaneous matter. even quantum meruit, against the persons signing the We clip the following advertisement from the New call. Gale v. Rector, p. 481. — It is error to allow medi- | York Daily Register: “Lawyers and law students cal publications to be read to the jury. Morton v. willing to become organizers of a lawyers' temperance Steward, p. 533. – An infant's uote' for necessaries is society in this city, please address 'Temperance,' Daily voidable. Wabash Railroad Co. v. Brown, p. 590. – A Register office. ju:29-1t.”. The undertaking is laudrailway company owes no duty to its employees, either able, but is not “1t,” which we understand to mean at common law or by statute, to keep its track fenced one time,” rather inadequate notice ? against cattle.
Not every lady and gentleman who has this season ! CORRESPONDENCE.
applauded Miss Terry's “Portia" is aware that, about
the date when the “Merchant of Venice" may be supDENIALS UNDER THE CODE.
posed to have exhibited his gaberdine on the Rialto,
there actually existed great female lawyers in the To the Editor of the Albany Law Journal:
neighboring city of Bologna. Prof. Calderini, who In view of some recent decisions at the Special Term,
held the Chair of Jurisprudence in that University it Supreme Court, in this district, and at General Term 1360, and Prof. Novella, who occupied it in 1366, were of the Court of Common Pleas, it might be of interest
not only celebrated for their legal lore and skill, but if to the readers of the JOURNAL to have the opinion of
we may' trust their portraits, exceedingly beautiful the Court of Appeals in Allis v. Leonard printed in
women, with noble Greek profiles, dressed in a style
which Miss Terry might have copied without disadfull. The form of general denial almost universally employed in this district is as follows: " Defendant vantage. If women hereafter should again obtain
entrance into the legal profession, it is not at all imdenies each and every allegation in the complaint contained, not hereinafter specifically admitted or de probable that we may see something more of the keennied."
ness of feminine wits engaged in disentangling the It was held in McEncroe v. Decker, Special Term, the Times Dublin correspondent, have just been
knots of the law. Two ladies in Ireland, according to New York, November, 1879, that this was neither a general nor specific denial, and is a form of denial in
conducting their own most intricate cases in a manner
wbich excited the surprise of the Master of the Rolls, no way provided for by the present system of pleading. 58 How. 250. Subsequently, in Bixby v. Drexel, Gen
who even observed that he was “astonished that the
ladies had been able to put their case ou paper so ineral Term, Court of Common Pleas, April 5, 1880 (9 Reporter, p. 630), it was held that in an answer, a denial
telligently and clearly without legal advice. ' If other of all the allegations of a pleading, except such as are
ladies should follow the example of the Misses Fogarty, thereafter admitted, is not sanctioned by the Code.
what a falling off must ensue in the solicitors' bills ? Both these decisions are based upon, and the opinions They lost their case, it is true, but seemingly could not in them refer to, the cases of The People v. Snyder, 41
have won it under any guidance; and at all events N. Y. 400, and The People v. The Northern Railroad they have escaped that great aggravation of the misery
of defeat in a court of law - the lawyer's costs.-Pall Co., 53 Barb. 98, affirmed 42 N. Y. 217.
Mall Gazette. It is true that in People v. Snyder there is a dictum of Judge Daniels, which sustains the proposition, but it was not necessary to the decision of the case, nor was “American law in the East" is referred to in conthe point raised below.
nection with the recent murder trial at Alexandria. The same proposition is held in The People v. The We should be glad to learn how American law in Egypt Northern Railroad Co., 53 Barb., at General Term, differs from American law in New York, and under and in the Court of Appeals the case is affirmed, what sanction a man can be tried and condemned to 42 N. Y. 227, but not on that point. The affirm- death by a United States Minister, the public proseance, also, is by a divided court (4 to 3), and the cutor being the American judge of the International dissenting opinion of Foster, J., page 240, presents Tribunals who opposed the application of the prisona strong argument in support of the propriety er's counsel that four assessors might sit as a jury. It of the pleading. It does not appear that in either of is certainly a mockery of justice that a person charged the two recent decisions, 58 Howard and 9 Reporter, with murder should be kept in prison for twelve the attention of the court was called to the later de- months, and after that delay be convicted by a dicision of the Court of Appeals, in the case of Allis v. plomatist and by him sentenced to death.-Law Times.
The Albany Law Journal.
In connection with the recent article on Effect of Subsequent Marriage, etc., 21 Alb. L. J. 486, our
attention has been called to the case of Thorp v. ALBANY, JULY 17, 1880.
Thorp, decided in the General Term of the First
Department, holding in harmony with Marshall v. CURRENT TOPICS.
Marshall, and reversing the judgment of the referee,
ex-Recorder James M. Smith. It is said that this T a meeting of members of the bar of the Fourth case will go to the Court of Appeals. The learned Judicial Department, held in Buffalo on the
referee conceded that the case of Williams v. Oates, 18th ult., a committee of fifteen members of the bar 4 N. C. 535, was against his position, and consonant of that department was appointed and charged with the Marshall case. He, however, adduced a with the duty of preparing an amended judiciary dictum in his favor in Haviland v. Haviland, 34 N. article of the Constitution, to be submitted to the Y. 646, 647, and cited Pensford v. Johnson, 2 Blatch. Legislature at its next session ; and requested to 51, as directly in point to the same effect. The invite the aid, counsel and co-operation of the mem- latter, however, seems hardly authoritative, for it bers of the bar of the several judicial districts in was conceded that one party to the marriage, at the State, in preparing said amended article, and in least, was innocent of any intent to evade the law, procuring action upon it in the Legislature. The and the point received no extended consideration. committee are as follows: Eighth District Addi- It is to be hoped that the principal case will settle son G. Rice, Grover Cleveland, David H. Bolles, the interesting question, for the Marshall case seems Myron H. Peck, George C. Greene. Seventh Dis- never to have gone up. trict — William F. Cogswell, James C. Cochrane, Josiah T. Miller, James R. Cox, E. A. Nash. Fifth In the English Court of Appeal judgment has District — John F. Seymour, John C. Churchill, been rendered, denying the application of Thomas Wm. C. Ruger, Irving G. Vann, John D. Kernan. Castro, the “Tichborne claimant” to have the two The committee have resolved to convene at Saratoga sentences passed upon him for perjury made conSprings, on the 11th of August, 1880, for the pur- current instead of consecutive. Lord Justice James pose of taking action in the matter suggested in said that as a man could be tried for several misdethe resolution. What that action will be has not meanors on distinct counts, there was no reason to been discussed or even suggested by the members think he could not be sentenced for them. Lord of the committee, but that some action in that Justice Bramwell concurred. He said he thought direction is necessary, is a fact fully realized, we the American case (Tweed) cited justified the attorbelieve, by the members of the bar, suitors and ney-general in issuing the fiat for the writ of error business men generally, throughout the State. Any in this case, but now that the matter had been disgentleman of the profession wishing to submit cussed it was plain that there was no error in the suggestions upon the subject, but unable to attend, sentence. The Tweed case is reported in 3 Hun, 760, can send his views to any member of the committee and 60 N. Y. 559. The principal opinion below was at any time prior to the meeting, and such sugges- pronounced by Westbrook, J., and contains an elabtions will be considered.
orate examination of authorities and a strong argu
ment upon principle. But we then thought and The Social Science Association have received from still think the opinion of the Court of Appeals unthe president of the Juristic Society of Berlin, a answerable. The present decision of the English communication in reference to the prize of 6,900 court will greatly rejoice Mr. O'Conor's heart, and marks, to be offered in the year 1882, for an essay on he can now sing nunc dimittis ; but we receive every " The Formulæ in the Perpetual Edict of Hadrian, thing from an English court concerning the claimin their Wording and Connection.” The Savigny ant with a grain of suspicion. Foundation is a fuud subscribed in commemoration of the great lawyer, Von Savigny, the interest of The arrogance with which the English press treat which is applied every two years in a prize for an the Tweed decision is rather amusing. The Lonessay on a legal subject, the adjudicators being the don Telegraph speaks of it as a "curious decision” Imperial or Royal Academies of Sciences of Vienna, dragged to light.” And again: “But although Munich and Berlin, in rotation. The competition, the judgment of the court of New York naturally from which only the ordinary home members of the carries with it great weight, it seems to formulate Royal Bavarian Academy are excluded, is confined neither good law nor good sense. No other Amerito no nationality. The essays, which must be writ- can court has adopted it. The principle it embraces ten in Latin, German, English, French or Italian, is unknown to English law and unjustified by must be sent in by the 28th of March, 1882, ad- English precedents. Indeed, it was given in redressed to the Royal Bavarian Academy of Sciences, versal of the decision of other judges, who, for and bearing, instead of the author's name, a motto, aught we know, were men whose opinions were as repeated in a closed envelope containing the author's much entitled to respect as are the opinions of those name. Further particulars may be had on applica- who delivered it.” The Times says: “It proceeds tion at the office of the Social Science Association, on considerations foreign to English criminal law, 1 Adam street, Adelphi, W. C.
and it does not commend itself as intrinsically reaVOL. 22.- No. 3.
sonable.” Even Lord Justice James, in delivering to life, are forbidden, as duelling and prize-fighting. the opinion of the court in the Claimant's case, Others are not, as pedestrian matches and rowing departs from the courtesy and respect of late shown contests, Tanner is professedly not trying to kill by English judges to American decisions. He says: himself; he proposes to live. So if he should die “I have always felt unfeigned respect for the de- his watchers could not be condemned as abettors of cisions of the courts in America upon matters of suicide. He does not come within Mr. Bergh's julaw common to their jurisprudence and ours; but I risdiction, for his act is entirely voluntary, and he confess that I was startled by the mode in which is an adult, presumably capable of eating if he the judges in the case cited dealt with the question. wants to eat. The best way to put a stop to such They seem to have thought it sufficient to say that idiocy is to let other idiots stop running after him. the contrary view to theirs had never been laid down, and that theirs was in accordance with the English common law in 1775, at the era of the In our note on Nash v. Fugate, 21 Alb. L. J. 464, separation from this country, disregarding the dicta
we spoke of the decision as opposed to Guild v. of our judges since then. And they treat the pre
Thomas and People v. Bostwick. We did not intend cedent of the sentence in the Tichborne case as of
to be understood that either of those cases involved no authority, though that was a judgment of several
the exact circumstances of the principal case, judges, and theirs was only the decision of three namely, a scroll at the bottom of a bond with no judges overruling the opinion of three others.” name appended, and the bond delivered to the obThis extract shows with how little care and how ligee by the principal obligor, in violation of a conmuch bias his Lordship has read the opinion of our
dition imposed by one of the signers, that others court. So far from having “thought it sufficient should sign. We meant to say that the principal to say that the contrary view to theirs had never case is opposed to those, in that it holds that the been laid down,” the court exhaustively review all
bond being complete on its face, no such secret the authorities, and discuss the matter upon princi-condition can be shown. The point about the ple, in two opinions of 31 pages, on the point in
scrolls is subsidiary, and is adjudgad merely to question. So far from the judgment having been
show that this bond was complete on its face. pronounced by three judges, it was the unanimous opinion of a court of seven, while that of the
The Supreme Court of Pennsylvania seem to be original Tichborne
of only three, we
experiencing religion.” We called attention, 21 believe, and at nisi prius. After being "shocked"
Alb. L. J. 462, to the remarkable way in which they and “startled” to a great degree, his Lordship dis
had eaten their own words in case of Bishop O'Hara covers that the judgment of the American court
v. Stack; and now we have to chronicle another proceeded upon a view different from that of our
case of the same sort. In Burd Orphan Asylum v. courts, that different offenses should not be prose
School District of Upper Darby, 20 Alb. L. J. 383, cuted in the same indictment." It is sufficient for
they held that an institution for the support and the vindication of the remarks of our court on the
education of the orphan children of a distinct deTichborne case, to say, that it demonstrates that
nomination of Christians was not such a "purely there was no warrant for the Tichborne sentence in the English common law prior to April 19, 1775, within the spirit of the Constitution. Trunkey, J.,
, which is the foundation of our law, and that, as our
delivered the opinion. We did not notice any discourt observe, “the practice of uniting several
sent. But a reargument was granted, and now the counts in an indictment” for felony, “is a departure
court decide substantially the converse. 8 W. N. from the ancient practice.” We are aware that the
C. 446. The exact decision is as follows: prevalent English doctrine has been sanctioned in
* purely public charity' within the meaning of the remarks on the Tweed case by Mr. Bishop, with his
Constitution of Pennsylvania may be one in which customary violence, and by Dr. Wharton, with his
the designated beneficiaries are to be all of one parcustomary calmness. It must be remembered that
ticular religious faith, provided that the persons to our court do not deny the right to try several misdemeanors under one indictment, but only the right The fact that the beneficiaries were to be of a par
be benefited are indefinite within the specified class. to impose a greater agtyregate punishment than is
ticular religious faith did not make the institution permitted for one.
any less a 'purely public charity.' At any rate the
persons of the third class were in legal contemplaA good many have asked us whether something tion beneficiaries upon the same title and with the cannot be done to put a stop to the disgusting ex- same abstract rights as those of the first and second hibition making by Dr. Tanner, in the city of New classes; and therefore the institution must be York, in trying to go without food for forty days, held to be open to the general public.” No referand whether, if he breaks down in the attempt, ence is made to the former decision. Gordon, those who are watching him cannot be punished as Trunkey, and Sterrett, JJ., dissented. We shall accessory to his death. We really do not now think / allude to the opinion elsewhere.
It is our purpose of any way to stop him nor to punish his abettors. here only to note the extreme uncertainty of the law There seems to be no law against a man's making in Pennsylvania where religious institutions are conan ass of himself. Some voluntary risks, dangerous | cerned.