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CONCERNING TWO NORTH CAROLINA DECISIONS. To the Editor of the Albany Law Journal:

SIR-In your review of the 21st American Reports in the 22d number of your valuable JOURNAL, the decision of the court in the case of The State v. Graham, 74 N. C. 646, is severely criticised; and in the last number Mr. J. W. Judd has approved and repeated these strictures. May I not, without offense, respectfully suggest that both of you have either misapprehended the point there decided, or have mistaken the law?

The prisoner was indicted for larceny, and his conviction depended upon identifying him as the person who made certain foot-tracks which were admitted to be those of the thief, made when committing the felony. The officer having the prisoner in charge compelled him to place his foot in the tracks, and was then allowed to give in evidence the result of the comparison. Whether this evidence was competent was the precise question before the court. In delivering the opinion, the judge, speaking for the court, said: "We agree in the opinion that when the prisoner, upon be ing required by the officer to put his foot in the track, did so, the officer might properly testify as to the result of that comparison. It is unnecessary to say whether or not the officer might have compelled the prisoner to put his foot in the tracks if he had persisted in refusing to do so." The point thus decided was the main one, and the decision of which is assailed. Is the decision not correct and fully supported by the weight of authority? Let us see.

Starkie on Evidence, Part IV, p. 50, says: "Where a fact has been ascertained in consequence of an admission improperly obtained, it may still be proved, for the fact cannot have been affected by the influence used; therefore, upon an indictment for receiving stolen goods, where, in consequence of the confession which had been unduly obtained, the stolen property had been found, concealed between the sackings of the prisoner's bed, it was held by the twelve judges, that the fact of the finding of the stolen property in the prisoner's custody was clearly evidence. But in such cases nothing is to be left to the jury but the fact of the prisoner's having directed the witness where to find the goods, and his finding them, but not the acknowledgment."

So Mr. Greenleaf, in his work on Evidence, Vol. I, § 231, says: "The object of all the care, which, as we have now seen, is taken to exclude confessions which were not voluntary, is to exclude testimony not probably true. But where, in consequence of the information ob- | tained from the prisoner, the property stolen, or the instrument of the crime, or the bloody clothes of the person murdered, or any other material fact is discovered, it is competent to show that such discovery was made conformably to the information given by the prisoner. The statement as to his knowledge of the place where the property or other evidence was to be found, being thus confirmed by the fact, is proved to be true and not to have been fabricated in consequence of any inducement." See, also, to the same effect, 1

Phill. on Ev. 411; Archb. Cr. Pl. 131, and note by Waterman.

The same law of evidence is announced by Hawkins, East and Leach, and is based upon innumerable decisions.

Nobody denies the general rule that confessions improperly obtained are inadmissible against the prisoner, but the limitations of that rule, as expressed above, are as well established as the rule itself. The rule thus limited fully covers The State v. Graham.

The reason why extorted confessions are excluded is, that not being voluntary, they may not be true. Hence, if one thus influenced confesses his guilt, the evidence will be excluded because it may not be true; but if, in consequence of a confession improperly induced, a material fact is brought to light, that fact is competent evidence, because it is a fact, independent of the confession, and being natural evidence, extrinsic to the confession, the prisoner has no more right to complain than if a witness had testified to have seen him make the tracks. All that the court decided in Graham's case was, that the evidence was competent. It was for the jury to say what weight and effect it should have, in connection with the other testimony.

A pocketbook is stolen, and it is proposed to search the person accused, and, upon his objecting, his person is searched by force and the pocketbook is found upon him. No one will deny that the fact of so finding the stolen article is competent evidence against him. So if one, charged as the thief, is alleged to have made certain tracks admitted or proved to be those of the thief made in committing the felony, refuses to apply his foot to the track, and is then forced to do it, the result of the comparison is a fact and equally competent as evidence. The principle of the two cases is the same, whatever difference there may be in the conclusiveness of the two species of evidence. The weight and effect of the testimony is for the jury and not the court. I have not seen the Tennessee case, referred to by Mr. Judd, but I think it entirely safe to say, that the decision in The State v. Graham is supported by the weight of authority.

This sort of evidence, though treated under the head of "admissions," or "confessions," in the books, belongs to neither, but, as was said by the court, it is properly called by the civilians "real evidence." In placing his foot in the tracks, the accused neither "admits" or "confesses" any thing. The foot may not fit the track, and that fact would be conclusive in his favor. It may fit, but that would be no admission or confession, for it may be shown that others had feet of the same size, which would weaken the force of the evidence; or that another actually made the track, or that he was elsewhere at the time of the theft, which would entirely destroy the weight of the evidence from "resemblance." In State v. Garrett, 71 N. C. 85 the prisoner was indicted for the murder of a child by burning. At the coroner's inquest, she alleged that the child's clothing caught fire, and that in trying to extinguish it, she, the prisoner, had her hand burnt, which she then had wrapped up. She was forced to strip the covering from her hand, when it appeared to a physician to exhibit no evidence of a burn. The testimony as to the appearance of the hand was held to be competent. It is true that the device of the accused was a fraud, but that could not be discovered until the force had been applied. The result was the evidence, no difference how brought about. If a witness

says he can identify the accused only by a scar on his body, which is concealed by his clothing, doubtless it would be competent for him to testify to having seen the scar on the prisoner, whether he made the inspection by consent, force or fraud. Whether the court, on the trial, could compel the prisoner to strip and thus establish or disprove the fact, as the court remarked in State v. Graham, "it is unnecessary to say." The most remarkable cases of modern times, if not of all times, upon the question of identity, were the recent Tichborne trials. Every species of evidence which human ingenuity could devise, to prove or disprove an identity, was there resorted to, and I think all that is claimed in The State v. Graham was fully admitted or adjudged, and more.

The rules of evidence applicable to questions of "identity," "legitimacy," etc., necessarily allow much latitude in their application. The State v. Graham is an example as to identity, illustrating the principles | of evidence, as laid down by Starkie and Greenleaf, supra, and Warlick v. White, 76 N. C. 175, is an interesting case upon the question of legitimacy."


A word as to The State v. Neely, 74 N. C., which is also severely commented on. That case was decided by a divided court, three to two, and while I do not concur in the correctness of the decision, we must not, in justice, lose sight of the single question decided, nor must we confound the decision with the somewhat heated dicta of the judge, arguendo. The prisoner was indicted for an assault with intent to commit rape, and the single question was whether there was any evidence of the intent. In North Carolina, any legal evidence, however slight, tending to support the charge in the indictment, cannot be withheld from the jury, the weight and effect of it being the independent province of the jury to pass upon. While I do not think there was any evidence of the intent charged, it yet must be admitted that the line between what is no evidence and what is slight evidence of a fact, is so dim and shadowy, that sometimes the coolest and most discriminating judgment of the judge fails to determine the question to the satisfaction of all minds; and accordingly the decisious are not uniform as to the line of demarkation between what is admissible and what is not admissible. Where the question is doubtful, the temperament of the court or its feeling, often, even imperceptibly, determines the question. It might have been so in this case, but the antecedents of the majority of the court making the decision preclude such a supposition. December 26, 1877.



THE necrology of the past year includes the names of an unusual number of lawyers and jurists. Among the more prominent are the names of Emory Washburn, the author and teacher; Chief-Justice Shipley, of Maine; David A. Smalley, for eighteen years United States District Judge of Vermont; Edward Kent, formerly a Justice of the Supreme Court of Maine; Enoch H. Rosekrans, once a Judge of the Supreme Court of New York; Chief-Justice Moses, of South Carolina; Isaac Ames, Judge of Probate of Suffolk county, Mass.; Joseph T. Platt, of the Philadelphia Court of Common Pleas; Chief-Justice Draper, of the Province of Ontario; Judge Rawson, of the Supreme Court of New York, and Professor Tyler. Among the names from England are those of Lord Justice Mellish and Mr. Samuel Warren.

Messrs. A. L. Bancroft & Co., of San Francisco, have initiated an enterprise which, if it shall prove successful, will make the library of the future literally "infinite riches in little room." They propose to publish in about 75 volumes all important cases decided by the various courts of this country prior to 1869, when the "American Reports" began. The editorial control of these reports - which are to be called the "American Decisions"-is to be in the hands of Mr. John Proffatt, who has achieved some reputation as a legal writer, and whose experience will doubtless enable him to discharge the difficult duties of the position with skill and judgment. We heartily wish the enterprise success.

The new judicature act, which changes the system of practice and the organization of the courts, went into effect in Ireland on the 1st inst. The

Oneida County Bar Association met on the 21st

ult. to consider the new Code, but came to no conclusion as to whether it ought to be repealed or retained.Judge Van Hoesen, of New York, thinks $2.000 a year too much for the fees of a committee of a lunatic, whose services consist in spending an hour a month in visiting the lunatic, subscribing for a paper and ordering an occasional suit of ready-made clothes. He so held in Matter of Brinkerhoff, decided on the 26th ult.—A right to a seat in the New York Cotton Exchange was held to be property in the case of Ritterband, receiver, etc., v. Boggett, decided on the 26th ult. in the New York Superior Court, and an assignment of it to a proper person, desiring to purchase it from a receiver of the property of its owner, ordered.

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The appointment of Halbert E. Paine, of Wisconsin, to be Judge of the Court of Claims in place of Judge V. Peck, resigned, is said to be fully determined upon. Mr. Paine was born in Ohio in 1826, and was graduated from the Western Reserve College. He was admitted to the bar in 1848. He served in the Union army during the war, and was breveted a major-general in 1865. He was a member of the Thirty-ninth, Fortieth and Forty-first Congresses.-The man who doesn't squander any money hiring lawyers has turned up in Sonoma county, Cal., where he recently recorded a deed to $15,000 worth of land in which one of the boundaries is described as "being between the wheat and corn now growing on said land."


In the case of Hancock v. Rand, recently decided in New York by Horatio F. Averill, Esq., referee, an interesting question in relation to the law governing innkeepers was involved. General Hancock engaged rooms for himself and family at the St. Cloud Hotel, kept by defendants, at a specified price, which was less than that charged to transient guests. During his occupancy he and his family lost certain articles from their rooms, but there was no gross negligence shown on the part of defendants. The referee held that owing to the special agreement above mentioned General Hancock and his family were not the guests of the defendants, but only boarders, and therefore defendants were not liable for losses sustained. 2 Pars. on Cont. 151, 153; 1 id. 628; Stewart v. McCready, 24 How. Pr. 62; Seward v. Seymour, Anth. Law Stud. 51; Mowers v. Feathers, 6 Lans. 115; Thompson v. Lacey, 3 B. & A. 283; Parkhurst v. Foster, 1 Salk. 387; Dansey v. Rich, 2 Ellis & Bl. 144; King v. Ives, 7 C. & P. 213; Wintermute v. Clark, 5 Sandf. 247; Cromwell v. Stevens, 3 Abb. .(N. S.) 34; Bennett v. Ditson, 5 Term, 273; Manning v. Wells, 9 Thomp. 746.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany
Albany Law Journal.




SOMEWHAT remarkable scene was witnessed in the New York Court of Oyer and Terminer last week. Dr. Lambert, president of the notorious American Popular Life Insurance Company, who had been convicted of swearing to a false report of the condition of the company, was called up for sentence and asked the ordinary question if he had any thing to say why sentence should not be pronounced. He thereupon unrolled a huge parcel of manuscript, and for two hours harangued the court and the people assembled upon various subjects relevant and irrelevant to the inquiry made. He eulogized his counsel, denounced those opposed to him, complimented the court, and of course asserted that he was innocent of the crime of which he had been convicted. How thoroughly he was imbued with the idea of his own rectitude is indicated by this language: "Instead of standing here condemned," said he, "I should be commended by the policy-holders and stockholders and the public, and to-day it should be the pleasant duty of your Honor to invite me to sit at your right hand instead of being called to pass an unpleasant sentence; nor do I doubt that such would be your Honor's own opinion." He, however, intimated that the sixty other insurance presidents with which New York city is blessed had enriched themselves dishonestly, which indicates that he does not believe that insurance business in general is conducted upon principles of integrity. The court, in reference to his remarks, said that it was impossible to determine therefrom whether the prisoner or his jury was on trial. The charges made were answered completely and in detail by the court, and a sentence of five years at hard labor in the State prison imposed. It is somewhat surprising that the prisoner should have been given such latitude, but the importance of the case, the previous high standing of the criminal and the present public feeling against the dishonesty of insurance officials induced Judge Brady to be as forbearing as possible in the matter. We trust, however, that his action will not be taken as a precedent. If it should be, the speech of the prisoner on sentence will become as important an event in the administration of penal justice as the speech at the gallows used to be in the days of public executions, and about as instructive and useful. When

Wainwright, the English murderer, who was convicted a couple of years ago, was about to eulogize his counsel in his remarks previous to receiving sentence, the court checked him, saying that it was neither time nor place for that, and bade him confine himself to the objections he might have to the passing of sentence. The convicted offender is treated with more consideration here than in England, and it is fortunate for the courts that a Dr. Lambert does not often appear before them.

The law of negligence, as developed by the courts, is full of remarkable rules and doctrines, and these rules and doctrines become still more remarkable when they are the blended product of the law of negligence and that of master and servant. The House of Lords has, in the recent decision of Jackson v. Metropolitan Railway, at least unsettled the popular confidence in the justice of some parts of this law. The plaintiff in this case was a passenger on defendant's line, which is the London underground railway. By a by-law of defendant, passengers are not allowed to enter any compartment of a train in which the seats are all occupied. At a station where the train upon which plaintiff was, stopped, an attempt was made by persons to get into the compartment where plaintiff was, which was full. Plaintiff put up his hand to prevent the intrusion. At the same time a porter in the employ of defendant, in preparing the train to start, violently shut to the door of the compartment, which caught and severely injured plaintiff's thumb. In this action for the injury the trial court held that there was evidence of negligence for the jury, who found a verdict for the plaintiff. A rule nisi was obtained, calling upon plaintiff to show cause why this verdict should not be set aside on the ground that there was no evidence of negligence. The Common Pleas Division discharged this rule, and this decision was allowed to stand by the Court of Appeal, which was divided. The House of Lords reversed the judgment of the courts below, holding that there was no negligence in shutting the door, saying that it was necessary that it should be shut by the porter; "and as the train was on the point of passing into a tunnel, he could not shut it otherwise than quickly, or in this sense violently." Lord Cairns, who delivered the judgment of the House of Lords, says that it is impossible to lay down any rule as to negligence in such cases, except "that, from any given state of facts, the judge must say whether negligence can legitimately be inferred, and the jury whether it ought to be inferred." The London papers are not satisfied with the decision of the House of Lords, though the Law Times thinks it sustainable upon the principle that plaintiff, in endeavoring to prevent the intrusion of passengers into his compartment, was a volunteer undertaking to perform the duty of one of defendant's servants, and he could not, as such, recover

for an injury resulting from the negligence of any of such servants. He, however, would not be a volunteer within Wright v. London & N. W. Ry. Co., L. R., 10 Q. B. 252, and we think the decision, if not sustainable upon the ground put by the Lord Chancellor, is not so upon any ground.

mortgage, such recorded mortgage in the hands of such purchaser or of his assigns shall have priority over such unrecorded mortgage, notwithstanding the mortgagee in such recorded mortgage had, at the time of receiving the same, notice of the unrecorded mortgage. Bills to amend the excise law, the act in relation to the assignment of the estates of debtors for the benefit of creditors, and the laws in relation to savings banks, were also introduced. In the Assembly bills were brought forward to repeal the act creating a board of town auditors; to amend the act relating to the Court of Arbitration in New York; to amend section 1088 of the new Code; to repeal the act to establish specie payments in this State after January 1, 1879, and for the better protection of policy-holders of life insurance companies. The excise law was also under consideration in the Assembly, quite an extended debate having been had in relation to the propriety of amending it.

The bill of Senator Davis for the establishment of a Federal Court of Appeals will remedy many of the evils now connected with the administration of justice in the United States courts. The new appellate court will be a very great improvement upon the one that now exists, and will serve for many years at least as an effectual check to the overcrowding of the calendar of the Supreme Court. We think, however, that in one or two respects the bill might be improved. Though an attempt is made to merge the District and Circuit Courts into one by providing that a Circuit Court shall be held at the same time and place as the District, the distinction between the two courts is retained, and there is to remain the present right of appeal in bankruptcy proceedings from the District to the Circuit. Why the courts are not merged for all purposes we cannot understand. There is no provision in the act against a judge sitting in review of his own decissions, an omission which we think is a mistake. The rule which prevails in this State has worked so satisfactorily that we cannot see why it is not worthy of a trial in the Federal courts. The ten-thousand-pass, the holders of such subsequent mortgages as

The bill in relation to the priority of mortgages in the hands of a bona fide assignee, above mentioned, is an attempt to provide a means for evading the operation of what seems to us a very just provision of the recording act. If, however, it is thought proper that priority of record should determine priority between mortgages, why not have the statute say so directly? In case the proposed bill should

dollar limit upon appeal to the Supreme Court in ordinary cases is proper enough, as is the provision giving that court power only to review the questions of law arising in cases carried there. The additional judges provided for are needed. The present number of Circuit and District judges is insufficient for the work of the courts, as they now exist, and under the new system there would be a great increase of business in all Federal courts, except the Supreme. Senator Davis very properly does not attempt to make any change in the law governing procedure. This, indeed, sadly needs amendment, but the profession will be satisfied to wait for reform there if the organization of the courts can be satisfactorily improved during the present session of Congress.

are mentioned would one and all assign them to bona fide holders without notice, so that the provision as to notice, though still remaining in the law, would be a dead letter. It would be better to leave the law as it is, or to make no exception whatever in its operation against subsequent grantees or mortgagees with notice.

In the case of Re Mitchell, ex parte Sherwin, decided by the United States District Court of Massachusetts, appearing in our present issue, a novel question in bankruptcy law is presented. The decision of the court that property belonging to the estate of a bankrupt in the hands of assignees is liable to State taxation, and an assessment made upon the assignees therefor is proper, is so mani

The legislature resumed its sittings on Tuesday festly just, that it seems strange that the register who passed upon the question in the first instance should have thought otherwise.

last. The introduction of bills has already commenced, the new Code, of course, not being forgotten by those desiring change in our statute law. In the Senate bills were presented designed to amend chapter 448 of the Laws of 1876, in relation to the exemption of trial jurors, and to amend chapter 449. explaining and regulating the action of the previous chapter; also a bill providing that whenever any mortgage of land duly recorded shall be assigned to a purchaser for a valuable consideration in good faith, and without notice of a prior unrecorded


N Moore v. Jackson, 2 Abb. New Cas. 211, it is held that the riparian owner cannot appropriate any part of a navigable stream which is a public highway by erections or obstructions of a continuous character. A raft of timber continuously moored was held to be a violation of this rule, and to constitute an illegal encroachment or purpresture.

It is somewhat difficult to determine when a floating object, such as a craft or boat, constitutes a nuisance in a stream. A canal boat permanently stationed in a basin was held to be so in Hart v. Mayor of Albany, 9 Wend. 571. In Hecker v. N. Y. Balance Dock Co., 13 How. Pr. 549, a floating dock in the harbor of New York was held to be a nuisance. See, also, 2 Hawk Pl. Cr., ch. 75, § 11. But, in the same case, before another judge (24 Barb. 225), a floating dock is declared not to be a nuisance in navigable waters. In Gold v. Carter, 9 Humph. 369, the Supreme Court of Tennessee declare that every obstruction or erection in a stream declared navigable by law, which injures the navigation of such stream, is a nuisance. A mere temporary occupation of a part of a highway by persons engaged in building, or in receiving or delivering goods from stores or the like, is allowed from the necessity of the case, but a systematic and continued encroachment on a highway, though for the purpose of carrying on a lawful business, is unjustifiable. In People v. Cunningham, 1 Den. 524, distillers delivered their slops daily in the street to purchasers, and the street was obstructed by carts and teams resorting thither for the slops, and waiting to load. This was decided to be a nuisance. The general principle is settled that any obstruction of a public highway for an unreasonable length of time, however lawful is the business which is sought to be prosecuted, is indictable as a public nuisance, although room might still be left for the accommodation of the public. See Davis v. Mayor of New York. 14 N. Y. 525; Fowler v. Saunders, Cro. James, 446; The King v. Russell, 6 East, 427; Rex v. Carlisle, 6 Carr. & Payne, 636; Rex v. Cross, 3 Camp. 226; Rex r. Jones, id. 230; The King v. Moore, 3 Barn. & Adolph. 184; Commonwealth v. Passmore, 1 S. & R. 219; The King v. Ward, 4 Ad. & El. 384.

In Myers v. Vanderbilt, recently decided by the Supreme Court of Pennsylvania, it is held that under a statute requiring that "every will shall be in writing,” a will, written and signed in lead pencil, is valid. The general rule undoubtedly is, that whenever a statute or usage requires a writing, it must be made on paper or parchment, but it is not essentially necessary that it be in ink. It may be in pencil. This view is sustained by numerous authorities as applied to contracts generally. Chitty on Cont. 72; 2 Pars. on Cont. 290; Joeffry v. Walton, 2 Eng. C. L. 385; Geary v. Physic, 5 B. & C. 234; Merritt v. Clasen, 12 Johns. 102; Draper v. Pattina, 2 Speers, 292; McDowell v. Chambers, 1 Strobh. Eq. 347. The same rule applies to promissory notes. Closson v. Stearns, 4 Vt. 11; Partridge v. Davis, 20 id. 499; Brown v. Butchers and Drov. Bk., 6 Hill, 443. So a book account made in pencil

was held admissible in evidence as a book of original entries. Hill v. Scott, 2 Jones, 169. And in England under a statute requiring a will of lands to be in writing, it has been held that a will written in pencil, instead of ink, would be good. 1 Redf. on Wills, § 17, pl. 2; In re Dyer, 1 Hag. Ecc. 219; Rhymes v. Clarkson, 1 Phil. 1. In Patterson v. English, 21 P. F. Smith, 459, the validity of a will signed with a lead pencil was not decided, but it was referred to, and a strong declaration made against the propriety of writing or signing in that manner. The reason given against it is the facility with which the writing may be altered or effaced. But when the statute is silent upon the subject, it would seem improper to say that the mere fact that a lead pencil was used, would make the will invalid. A writing with a lead pencil is acknowledged as a writing by the authorities, and fulfills the requirement of the statute. See, also, Main v. Ryder, 34

Leg. Int. 372.

The doctrine of ancient lights is generally understood not to be adopted in this country, and it certainly is not as between adjoining owners who are strangers to each other. It was, however, claimed in Shipman v. Beers, 2 Abb. New. Cas. 435, that if both proprietors obtain their title from a common source, the same grantor having conveyed the tenement with the windows to one, and the ground overlooked to another, the windows cannot be obstructed. The court held adversely to the claim, saying that while it had some support in the dicta of Selden, J., in Lampman v. Milks, 21 N. Y. 505, and was favored by Tyler and Washburn in their treatises, the weight of authority in this State is the other way. See Myers v. Gemmel, 10 Barb. 537, where it was held that a landlord might lawfully darken or stop the windows by any erection on the other lot; that such an act was not in derogation of his own grant, and that he could not be restrained by injunction from so doing. And in Palmer v. Wetmore, 2 Sandf. 316, it was held that a landlord who owns a lot adjoining demised premises, has a right to build thereon, although by so doing he obstructs and darkens the windows in the tenement devised, and that such an act is not an eviction. In Doyle v. Lord, 64 N. Y. 439, these cases were approved, and it was held that the grantee of a building and a portion of a lot upon which it stood would take no right to the light and air from the balance of the lot. And in Keats v. Hugo, 115 Mass. 204, it was held that the grant of an easement of light and air is not implied from the grant of a house having windows overlooking land retained by the grantor. See, however, 2 Washb. R. Est. 29, 63; United States v. Appleton, 1 Sumn. 501; Cherry v. Stein, 11 Md. 1. Also Maynard v. Esher, 17 Penn. St. 222; Collier v. Pierce, 7 Gray, 18.

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