IN

NOTES OF CASES.

*

The

N State v. Addy, 43 N. J. 113, on conviction of maintaining a nuisance the court suspended sentence, on payment of costs, so long as the defendant should abate the nuisance. At a subsequent term the court imposed sentence of imprisonment and payment of costs. Held, void. court observed that "the practice of suspending sentence in criminal cases has long been in vogue in this as well as in other States." Citing Com. Dowdican's Bail, 115 Mass. 133. In People v. Morrisette, 20 How. Pr. 118, however it was held that the court had no power to suspend sentence indefinitely, unless some review were pending, on the ground that such suspension amounts to a quasi pardon. But the court in the principal case, admitting the power of suspension, continue: "But this view does not meet the difficulties of the present controvery. Here the complaint is, not that the court suspended sentence, but that after seeming to do so, it proceeded to judgment. * * It in effect required of the defendant that he should pay the costs of prosecution and abate the nuisance, as the condition of his escaping further punishment. Although it did not in terms command these things to be done, yet it presented to the defendant such an alternative in case of his non-compliance, that it was scarcely in human nature for him to refuse obedience. For the court had the right, not only to exact what this order impliedly enjoined, but to fine and imprison besides, and of course the defendant would yield to the lesser penalty rather than provoke a greater. Substantially then this was an order of the court that the defendant abate the nuisance and pay the costs. Now in what way could the court legally require the abatement of the nuisance? Only by its sentence upon the verdict. * * * The present question therefore amounts to this: whether, when the court has exacted of the defendant upon his conviction what it can legally require only by judgment, it can, at a subsequent term, proceed to inflict the remainder of what it might have imposed by its sentence originally? * * * Such a course seems to me not to differ in substance from the passing of two sentences at different terms upon one conviction of a single offense, and I think no case can be found warranting it. To show that a single sentence exhausts the power of the court to punish the offender, after the term has ended or the judgment has gone into operation, reference need only be made to the recent decisions in Ex parte Lange, 18 Wall. 163; Com. v. Foster, 122 Mass. 317; S. C., 19 Am. Rep. 353, and the authorities there cited." Also see State v. Gray, 8 Vroom, 368; Com. v. Mayloy, 37 Penn. St. 291. In Whitney v. State, 6 Lea, 247, on conviction the entry was: "In this case it is considered by the court that the defendant should pay a fine of ten dollars and the costs of the case, but suspends judgment until the next term of the court." The court said: "If it be true that judgment was rendered at the trial term, then it was beyond the power of the

court to change that judgment at the next term, or even at the same term if the judgment be executed. On the other hand, Lange ex parte, 18 Wall. 163.

case.

if there was no judgment, the power of the court to render it at the next term is equally certain. And the court may Greenfield v. State, 7 Baxt. 18. suspend the execution of its judgment in a proper Allen v. State, Mart. & Yerg. 294; Fults v. whether the language of the original entries State, 2 Sneed, 232. The question therefore is, amounts to a rendition of judgment. We are constrained to say that it does, and that only the execution of the judgment was suspended, although the intention of the trial court may have been otherwise."

In Gaines v. State, 7 Lea, 410, it is held that the utterance of the name of God is not necessary to constitute profane swearing, and that a single act of profane swearing is not generally indictable. On the former point the court said: "Any words importing an imprecation of divine vengeance or implying divine condemnation, so used as to constitute a public nuisance, would suffice. Isom v. State, September term, 1880; Holcomb v. Cornish, 8 Conn. 375." On the latter point the court said: "A single utterance of a profane oath, not repeated nor in a loud voice, has been held not to be per se indictable. State v. Powell, 70 N. C. 67. * * * It is possi

ble however to conceive of cases where even a single oath, either by its terms, its tone or manner, might under the peculiar circumstances be held to be a nuisance. But such cases would constitute exceptions to the general rule." In State v. Crisp, 85 N. C. 528, it was held that profane swearing, in a public place, and in the hearing of citizens, continued for five minutes, although only on a single occasion, is an indictable nuisance. The court distinguish State v. Baldwin, 1 Dev. & Bat. 195, where a singing-school was broken up by neighboring cursing, on the ground that "as laid in the indictment, the offense consisted of a single and distinct act of cursing, without any averment that it was continued for any space of time, or that the words were many times repeated." Speaking of the Powell case, the court observed: "The indictment charged that the defendant did publicly and profanely curse and swear and take the name of Almighty God in vain, in the streets of Lumberton, to the common nuisance; and it was held insufficient, because the court could not tell, from reading it, whether the swearing was done in a whisper or in a loud voice; for a moment or an hour; once or repeatedly; or whether heard by few or many.' But the cases disclose what the proof in the cause was, and that the accused had cursed so loudly as to be heard several hundred yards, and from dark until eleven o'clock at night; and that the citizens in their houses and passing and repassing the streets heard and were annoyed by him; and Judge Reade, who delivered the opinion of the court, declares unhesitatingly, that if the allegations of the bill had been co-extensive with the proofs, the defendant might have been properly convicted."

In Rickard v. State, 74 Ind. 275, it is held that the presence of an officer in the jury-room, during their deliberations, although he does not speak to them and no injury is shown to have resulted, is fatal to a conviction. This is founded on extracts from People v. Knapp, 42 Mich. 267; S. C., 36 Am. Rep. 438. See ante, 64.

In Hills v. Goodyear, 4 Lea, 233, it was held that in a civil action involving a charge of forgery by one of the parties, the mere preponderance of the entire evidence, including that of good character, if any, and taken in connection with the legal presumption of innocence, must prevail. Relying on Kane v. Hibernia Ins. Co., 39 N. J. 697; S. C., 23 Am. Rep. 239; Ellis v. Buzzell, 60 Me. 209; S. C., 11 Am. Rep. 204. The court say that the contrary doctrine of the early English case, Thurtell v. Beaumont, 1 Bing. 339, has been adopted only in Illinois and Florida, while it has been repudiated in Vermont, Massachusetts, Kentucky, Missouri, Louisiana, and Wisconsin, and in the Federal courts of the sixth and seventh Circuits. The doctrine of Thurtell v. Beaumont was adopted in Iowa in Barton v. Thompson, 46 Iowa, 30; S. C., 26 Am. Rep. 131; but this was recently overruled in Welch v. Jugenheimer 56 Iowa; ante, 271.

A number of interesting Tennessee cases, recently reported, and which we believe have not been noticed in these columns, may be noted here. A contract to "rent" a sewing-machine, for a certain sum, payable at the expiration of fifteen months, with interest after maturity, the title to the machine until payment to remain in the lessor, and the lessor to have the right of retaking on default of payment, is a sale and is valid. Singer Sewing-Machine Co. v. Cole, 4 Lea, 439. The court disagree with Domestic SewingMachine Co. v. Anderson, 23 Minn. 57. To the same effect, Hine v. Roberts, 48 Conn. 267; ante, 83. On a contract for sale, at a fixed price per acre, of land bounded on the side of a river and following the meanderings of the river, the river being navigable only for flatboats and rafts at high waters, the vendee is bound to pay only for the land extending to low-water mark, and the islands between that and the center of the stream, and not for the land under ordinary water. Holbert v. Edens, 5 Lea, 204.

A son, of age, forged the names of his father and uncle and a third person on a note. Several officers of the bank which discounted it, one of whom was a lawyer, in a private and prolonged interview with the father, who was a farmer and little acquainted with business, informed him of the forgery. He was greatly unnerved by the discovery of his son's crime, and had no opportunity to take legal or friendly counsel. At this interview these officers persuaded him to execute his own note for the forged note, and requested him to keep the transaction secret. The note so executed was for a larger sum than the maker's entire property would have brought at forced sale. Held, that such note must be cancelled in equity.

Coffman v. Lookout

Bank, 5 Lea, 232. The presumption that a boy under fourteen cannot commit rape may be rebutted by proof of the actual commission. Wagoner v. State, 5 Lea, 352. A deed of lands by a father to his daughter's husband is not presumed an advancement to the daughter, and so of money paid by the father as surety for the husband. Rains v. Hays, 6 Lea, 303. A purchaser at a sale, by an assignee in bankruptcy, of land subject to a mortgage, cannot set up usury against the mortgage. Nance v. Gregory, 6 Lea, 343. - - A contract to pay, as commissions to a commission merchant, two per cent in addition to legal interest, for moneys advanced, is usurious. Stark v. Sperry, 6 Lea, 411.- A city cannot by ordinance require cotton merchants to keep, for the inspection of the police, a record of the names of purchasers and the quantities purchased. Long v. Taxing District, 7 Lea, 134. See 24 Alb. L. Jour. 84. A merchant purchased a stock of pistols under a license. privilege was repealed by an act of Legislature after his license had expired but before his stock was exhausted. Offering to sell the balance afterward, held, that he was liable to the penalties of the act. State v. Burgoyne, 7 Lea, 173. A policy of fire insurance on a manufactory, conditioned to be void if the premises should "cease to be operated," is not avoided by a temporary cessation on account of the prevalence of the yellow fever. Poss v. Western Assurance Co., 7 Lea, 704.

The

IMMUNITY OF WITNESS FROM PROCESS. I.

N re Healey, 53 Vt. 694; S. C., 38 Am. Rep. 713;

York, had pending in a Vermont County Court a suit in the name of another person against B., and came into Vermont for the sole purpose of testifying in said suit, and was a material witness, and as such and as party plaintiff in interest was in attendance at the trial. Within twenty minutes after A. left the court-room, B. caused a summons to be served on him in a suit in B.'s favor against A., returnable before a Vermont justice of the peace, for substantially the same claim B. had pleaded in defense to the suit against him by A. Held, that B. was guilty of contempt of court, and an order was made committing him, unless he discontinued said suit brought by him.

The editor of the American Reports has appended the following note:

This topic has been recently considered in New Jersey. In Dungan v. Miller, 8 Vroom, 182, it was held by the Supreme Court that a party to a suit in chancery, who resides in another State and comes into this State to give testimony in his own behalf before a master in chancery, is, while necessarily attending before the master and going to and returning from the place where such examination is held, privileged from the service of a summons in a civil cause, without any subpoena ad testificandum being

served. The court said: 66 'A party to a suit while necessarily going to, staying at, or returning from court, is privileged from the service of a summons or capias in a civil cause. Halsey v. Stewart, 1 South. 366. The place at which the party attends is not material. The privilege extends to attendance before any tribunal or officer before whom proceedings necessary in the trial or hearing of the cause are had, as before an arbitrator appointed by rule of court, a master of chancery, or on the execution of a writ of inquiry. 2 Taylor on Ev., § 1202. "It was insisted that the examination of witnesses on the part of the defendants having been closed, except as to the examination of this defendant, and no other proceedings being had before the master on that day, the privilege of the defendant was not that of a party, but merely as a witness, and that therefore process of subpœna was necessary for his protection.

"In Rogers v. Bullock, 3 N. J. L. 516, it was held on the language of the statute, that subpoena served was necessary to secure the privilege of a witness from arrest during his attendance in court. Elsewhere, it has been decided, and I think on better reason, that on a voluntary attendance in good faith, by a witness without subpoena, the witness is privileged. Walpole v. Alexander, 3 Doug. 45; 1 Greenl. on Ev., § 36. Especially so where the witness resides in another State and is under no legal compulsion to obey the process of courts in this State.

"It would be an idle ceremony for a party to sue out process of subpoena for himself to give testimony in his own behalf. His attendance for that purpose is an attendance as a party in a proceeding connected with the trial of the cause, and as such, he is exempt from service of summons."

Precisely the same was held by the vice-chancellor in Jones v. Knauss, 4 Stew. (31 N. J. Eq.) 211. The court said: "The Supreme Court, in 1809, decided that according to the rule prescribed by our statute (Rev. p. 380, § 15), a witness was not entitled to immunity from arrest while attending court, unless his attendance was in obedience to process of subpoena. Rogers v. Bullock, 3 N. J. L. 517. The witness who claimed immunity in that case was undoubtedly, I think, a citizen of this State, and as such amenable to the process of our courts. If the fact had been otherwise, it was quite too important to have escaped mention by the learned reporter, who was a member of the court which decided the case. I think it may therefore well be doubted whether in a case like the present, where the witness is not bound to obey the process of the courts of this State, and whose attendance cannot be compelled by compulsory means, and if procured at all, must be voluntary, it would be held that attendance in obedience to process is necessary to immunity. An absurd purpose should not be imputed to the Legislature. They certainly did not intend to deprive the suitors of this State of the testimony of witnesses residing in foreign jurisdictions; nor can it be supposed that they intended to send the writs

of our courts into jurisdictions where they would be entitled to no more force than so much blank paper. In my view, it is much more reasonable to conclude they simply meant that process should be used within our own jurisdiction, where it is entitled to command respect and obedience. Much the same view has already been expressed by Mr. Justice Depue, in Dungan v. Miller, 8 Vr. 182.

"But this case presents a much more important question than a question of privilege to the witness. Was not the arrest an invasion of the prerogative of this court? It is the undoubted right of every tribunal intrusted with the determination of questions of fact, to compel the attendance of witnesses, and to hold and control them until the purposes of their attendance are fully accomplished. This power is absolutely indispensable to the discharge of their functions. The witness in this case had not been discharged, and although his exanination had been completed, his further attendance had not been dispensed with. His further examination might have become necessary for the correction of his testimony, or to supply an omission arising from the inadvertence of counsel. Until discharged by the court he was subject to its order, and his arrest withdrew him from the power of the court at a time when it had a right to his presence, and while his actual attendance before the court might have been necessary for the due administration of justice. The fact that the court was not actually in session when the arrest was made, is quite immaterial; the decisive fact is the witness was arrested while he was in attendance before the court, and while he was subject to its power and entitled to its protection. In the interim between the adjournment from one day until the next, the court does not lose its power over those who have attended before it as witnesses and have not been discharged; nor does an adjournment so far withdraw the protection of the court, that in the interval an unscrupulous suitor may punish them by arrest, for giving evidence against him, or prevent them by the same means from giving evidence which he fears may prejudice him. If such obstruction to the course of justice were tolerated, becaused the court was impotent to remove them, its administration would soon be impossible.

"Unless the courts can give immunity from arrest to those who appear before them to testify, and free them, at least while assisting in the administration of justice, from every thing like terror and intimidation, their power is not adequate to the full discharge of the duties with which they are charged. This prerogative was said by Judge Kane to be founded in the necessities of judicial administration, and he held even the service of a summons on a person, who had attended before him, as an invasion of it, and set the writ aside. His judgment was approved by Chief Justice Taney and Justice Grier. Parker v. Hotchkiss, 1 Wall. Jr. 269. Many cases might be cited in support of the power. I refer to those only which are almost precisely ananalogous. Norris v. Beach, 2 Johns. 294; Dixon v. Ely, 4 Edw. Ch. 557; Seaver v. Robinson, 3 Duer, 622.