tion, are unable to meet the ordinary dangers of navigation should not deliberately place themselves in exposed positions. The abandonment of a canal boat which had been moored to a dock, and, as alleged, sunk by the swells of a passing steamer, together with a long delay in reporting the loss to the owners of the steamer, Held to be presumptive evidence of lack of good faith on the part of the owner of the canal boat and to cast suspicion upon the genuineness of the libelant's claim. John W. Ingram, for libelant; W. M. K. Olcott, for claimant. COXE, J.-The rules which the courts have repeatedly laid down for the guidance of large steamers in crowded harbors are hardly applicable to river navigation, where the danger from collision, swells and suction is greatly reduced. First. The testimony of several of the witnesses for the libelant is incredible upon its face. Taken as a whole, it is exaggerated, contradictory and uncertain. The impossibility of determining with accuracy the speed of an approaching boat is so well known and has been so often commented upon by the courts that it is unnecessary to discuss it in detail. It is enough to say that it was a physical impossibility for the New York to maintain, at the point in question, the high rate of speed testified to by some of the libelant's witnesses. Second. The witnesses for the claimant testify that owing to the character of the channel and the low water in the river, the New York was making eight miles an hour until she reached a point about a quarter of a mile south of Horton's dock, when, noting the exposed position of the canal boats, her engines were rung down to dead slow," and she passed at a speed not exceeding six miles an hour, which, the testimony shows, was all that prudent and careful seamanship demanded. A sound boat could not have been injured in such circumstances. It seems to be conceded on all hands that six miles per hour is a prudent rate of speed. Third. The officers and crew of the New York are, to a certain extent, interested witnesses, and the court would be confronted with a more difficult problem, were it not for the fact that they are corroborated by a piece of evidence which is almost a demonstration. The pilot's report book contains a record of each trip made by the steamer during the season of 1897. In it is noted the exact time when each town on the river is reached. Horton's dock lies between Coxsackie and New Baltimore, and on the day in question it took thirty-three minutes to make the distance between these places. The entry was made at the time and when no one on the New York was aware that any damage had been done to the Carroll. The book shows not only that the New York was going at a slow rate of speed The navigation of the Hudson river is open to all craft, and each must exercise due care and caution, having regard to the ordinary conditions which are or should be, familiar to all river pilots and mariners. A steamer has no right to proceed at a rate of speed dangerous to craft rightfully in the river or properly moored along its banks; but, on the other hand, boats, which, from their size, shape or unseaworthy condition, are unable to meet the ordinary dangers of navigation, should not deliberately place themselves in exposed positions. The wisdom of this rule was recognized in all the ancient Codes, and is thus quaintly expressed: "The reason is that some masters, who have old, crazy ships, may willingly lie in other ships' way, that they may be damnified or sunk, and so have more than they were worth for them" (Laws of Wisbuy, art. 26; Laws of Oleron, art. 14). It is as much the duty of a canal boat as of a steam vessel to avoid danger. The obligations are reciprocal. If, therefore, an old and unseaworthy canal boat deliberately and knowingly places herself in a steamer's way, the latter, not knowing of her infirmi-between these places, but also that on every other ties, and proceeding with the caution required by prudent navigation at the given locality, it is manifest that the canal boat alone is responsible for any disaster which may overtake her. The law governing these relations is clearly stated in the following autnorities: The Daniel Drew (13 Blatchf. 523), The Drew (22 Fed. Rep. 852), The Batavia (9 Moore [P. C.], 286), The Massachusetts (10 Ben. 177), The Southfield (19 Fed. Rep. 841). The single charge of negligence against the New York is that she approached and passed the Carroll "at an excessive rate of speed, to wit, about twenty miles an hour, and causing such a swell and commotion in the river that the said canal boat, Thomas Carroll, was thereby crushed and torn to pieces between said dock and said adjacent boat, and sank and became a total loss." The burden is upon the libelant to prove the negligence as charged, and the court is of the opinion that he has failed to sustain the burden. occasion during the month of August she had made the distance in from three to eleven minutes less time. If the libelant's witnesses are correct as to her speed, the log would have indicated only about fifteen minutes instead of thirty-three between the two places. Assuming that the distance between these places is correctly given at three and a half miles, the rate of speed was but a trifle over six and a half miles per hour. But the testimony is undisputed that for some distance above Coxsackie the speed was eight miles, so that it is plain that during a part of the way it must have been considerably less than six miles per hour. Upon no conceivable theory could the New York have been going at a dangerous rate of speed. There is no plausible explanation of the entries, except that the claimant's testimony is true that the steamer slowed down as she approached the boats. Fourth. The Carroll was built in 1878, and was, therefore, nearly twenty years old at the time of the The reasons for this conclusion are as follows: accident. For her own convenience she was towed from an absolutely safe position to Horton's dock, near a narrow channel, and with full knowledge that the New York would pass up the river at some time during the afternoon. The Carroll was loaded with ice, and was placed next the dock, with two other loaded canal boats lying abreast outside of her. No steamer could pass up or down the river without producing some swell and suction, the effect of which would necessarily be to force the outside boats against the Carroll and the Carroll against the dock. The position was one of danger for a sound boat, but for an old boat, with soft and rotten bottom timbers and a heavy load of ice, it was one of peculiar hazard. It is thought that no one can read the testimony showing the unseaworthy character of the Carroll without being convinced that it was a serious fault to place her in a position where she would surely be pounded against the dock by the swells of passing steamers. The court is convinced that the accident is to be attributed to the old and weak condition of the Carroll and not to any fault on the part of the New York. Fifth. The conduct of the libelant casts discredit upon his case. The Carroll was sunk August 7, 1897. The illegality of the arrest is not cured by subsequently charging the prisoner with having been guilty of a misdemeanor at the time of his arrest, in carrying a concealed weapon, and convicting him of that offense. Appeal from a judgment of the Appellate Division, First Department, affirming a judgment entered upon the verdict of a jury. William B. Crowell, for appellant; Robert L. Harrison, for respondent. GRAY, J.- This is an action for false imprisonment, wherein the plaintiff has recovered judgment upon a verdict of $500, which has been affirmed at the Appellate Division. It appears that two police officers, of whom the defendant was one, without a warrant, arrested the plaintiff upon the suspicion that he was engaged in the commission of a felony. According to the plaintiff's evidence it occurred in this wise: On the 8th of November, 1893, he took, in a satchel, some articles of silver and jewelry, which were rightfully in his possession, to a pawn shop and asked for a loan of money. Not obtaining upon them as much as he had asked, he left the No claim was made until the summer of 1899, two shop and with his articles was returning to his home, when the police officers came up behind him and touched him on the shoulder saying: "What have you got in that bag?" The plaintiff turned, saw two men, who were strangers to him, and replied: "None of your business; take your hand off from my shoulder." The defendant then said: “We are officers and you are under arrest." The plaintiff years thereafter. After the accident no effort was made to raise the Carroll, and she was allowed to remain a dangerous derelict until wreckers of the government were sent to destroy her. The presumption is persuasive that the reason she was not raised and repaired was that her owner knew that she was not worth repairing. Is not this conduct entirely inconsistent with the theory that he honestly believed that the New York was responsible for the sinking? As pointed out in the case of the Massachusetts (supra), steamers seldom know, at the time of injuries occasioned by passing swells, and it is the duty of parties damaged to make it known at once. It is obvious that a delay of two years might leave the steamer without any means of refuting such an accusation and wholly at the mercy of the libelant. It is a wise and salutary rule that such conduct as is here shown casts suspicion upon the genuineness or the libelant's claim. It follows that the libel must be dismissed. FALSE IMPRISONMENT. ILLEGALITY OF ARREST FOR FELONY NOT CURED BY SUBSEQUENTLY CHARGING PRISONER WITH MISDEMEANOR AND HIS CONVICTION THEREFOR. NEW YORK COURT OF APPEALS. Decided March 26, 1901. asked, "What for?" It was replied: "Well we want to know what you have got in that bag." The plaintiff asked them to show their authority for arresting him, and offered to take them to his house and to prove to them that the property in the bag belonged to him. The men refused, with abusive language and treatment, handcuffed him, and took him to police headquarters. He was locked up for the night and, on the morning of November ninth, was arraigned by the officers before a magistrate upon the charge of being a "suspicious person." At their request, he was remanded until the following morning of November tenth, when he was rearraigned upon a charge of carrying concealed weapons, in violation of a corporation ordinance. In fact, he had carried a pistol, which was taken from his pocket, and upon this latter charge he was subSequently convicted and punished. There was some conflict in the evidence given by the plaintiff and by the defendant as to the occurrences; but the jury believed the former's version, as their verdict proved. The verdict was rendered upon sufficient evidence, and, necessarily, established the facts that the de HARRY V. SNEAD, Respondent, v. MAURICE BON- fendant had arrested the plaintiff; that the arrest was NOIL, Appellant. An action for false imprisonment will lie against a peace officer for arresting a person for a felony, who is not guilty of the crime, without a warrant, and without reasonable cause for believing that he had committed a felony. for a felony, and not for a misdemeanor, in the violation of a municipal ordinance, and that the defendant did not have reasonable cause for believing that the plaintiff had committed a felony. The affirmance by the Appellate Division of the judgment entered upon this verdict, although by a court divided in opinion, concludes us as to these facts, and the only question of law for our consideration is whether, as established, there had been that illegal detention of the plaintiff's person which made out a case of false imprisonment. I think the judgment should be affirmed, with costs. PARKER, Ch. J.; O'BRIEN, HAIGHT, LANDON, THE LIABILITY OF OWNERS OF TURKISH The procedure in this case was without warrant in the law. It would not do to hold that the illegality of a person's arrest upon an unfounded charge could be cured by a subsequent charge and conviction for another defense. The principle is False imprisonment has been well defined to be a similar to that of the statement in Mandeville v. trespass committed by one man against the person Guernsey (51 Barb. 99), that the law will not perof another by unlawfully arresting him and detain-mit a wrong to be perpetrated for the purpose of ing him without any legal authority (Addison on executing process, or to use process for the purpose Torts, p. 552). Where the detention is illegal the of continuing an imprisonment commenced without action will lie, without regard to the innocence of authority. And in Murphy v. Kron (20 Abb. N. C. the defendant in his intentions. It is an important 259) it was held, by the General Term of the principle of our political institutions that every per- Supreme Court in the Fifth Department, that an son is entitled to immunity from arrest, except by illegal arrest cannot be justified as an arrest for a authority and for cause. A peace officer may, different offense. without a warrant, arrest a person whenever a crime is committed, or attempted, in his presence; when the person arrested has committed a felony, although not in his presence; or where he has reasonable cause for believing the person arrested to have committed a felony (Code Crim. Pro., sec. 177). If the arrest was lacking in these elements of authority to make it, then there has been an unlawful detention of the person arrested, and upon his bringing his action and showing the false imprisonment the burden of justification is upon the defendant (2 Bishop, Crim. Proc., sec. 368). This arrest having been made without a warrant, it was a question of fact upon the evidence for the jury to decide whether there was reason for defendant's belief that a felony had been committed. The verdict established that the defendant did not have reasonable cause for believing that the plaintiff had committed a felony. The situation was, therefore, 'that the plaintiff had been placed under an arrest, without reasonable cause for its having been made; that he was detained in prison for a period of time after his arraignment upon the charge and was subsequently rearraigned and held for trial upon another charge of having committed a misdemeanor. The fact, however, that at the time of the arrest the plaintiff may have been, although unknown to the defendant, guilty of a misdemeanor is no justification for the trespass, as it is contended. In the first place, if the plaintiff was not placed under arrest for a misdemeanor, then he was illegally imprisoned from November ninth to November tenth. During that period he was falsely imprisoned on a charge for which there was, as it has been found, no reasonable cause. In the next place, the illegality of the arrest was not, and could not be, cured by the subsequent charge of having committed a misdemeanor, for which a conviction was eventually had. It is not a matter of technicalities, but of substance. If a person is arrested for a misdemeanor, his admission to bail before conviction is a matter of right, while where the arrest is for felony it is a matter of discretion (Code Crim. Pro., sec. 553). The plaintiff was not only detained in prison upon an unfounded charge, but he was deprived of the right of claiming his immediate admission to bail. At the Westminster County Court, his Honor Judge Lumley Smith, K. C., in the case of Davern v. Tyrrell, decided a point as to the liability of the proprietor of a Turkish bath for the loss of valuables intrusted to his care. Mr. T. H. Parr was counsel for the plaintiff, and Mr. Lane for the defendant. The claim was for ten guineas damages for the loss of a diamond and opal pin at the Savoy Turkish Baths, of which the defendant is proprietor. The plaintiff has visited the baths for ten years, and on March 27, 1900, went there about 8 P. M., and before entering the dressing-room placed his watch and purse and the pin in a drawer, which was locked and handed to one of the attendants on duty in the entrance hall. The plaintiff took the key and placed it in one of his pockets in the dressing-room. The drawers were kept in the entrance hall, and a different key fitted each drawer. This was the practice which had been followed for ten years to the plaintiff's knowledge, and no loss had occurred before. On leaving the baths about 9.30 P. M., he found on unlocking the drawer that the pin had disappeared. The baths are open till 10 P. M., and on this particular night the defendant and all the attendants, with the exception of one boy, had left before 9 P. M. It was contended that the defendant undertook as part of the contract for the bath to keep safely any valuables so deposited with him, and that as such bailee it was his duty to take reasonable care; that if he had done so the drawer could not have been opened, and that this of itself was negligence for which he was liable. It was further contended that there was clear evidence of negligence in leaving only one boy in charge of the premises. The defendant and his servants gave evidence to prove that they had done all that could reasonably be expected of them in watching and Mr. William Redmond's question as to the use of the title defender of the faith on the new coinage and as to the meaning of the word faith in the title is somewhat belated. Had it been asked before the union of England and Ireland the question would have raised a somewhat interesting point of law, but at the present day there is no legal question involved and the answer to the question is really purely historical. It was the practice of the popes from comparatively early times to bestow upon great and favored monarchs titles connected with the Christian faith which became customary and hereditary. The old kings of Sicily bore the title, Christianorum adjutor et defensor;" the chief of the Germanic empire was "defender of the church;" the king of France was the very Christian or most Christian king and firstborn son of the church; the king of Spain, since 1496, has been styled the Catholic king; the king of Poland was the Orthodox king; while, since 1748, the king of Portugal has been the very faithful king, and since 1758 the king of Hungary has been the apostolic king. In such a list the ruler of England could scarcely have been omitted, and in 1521 Pope Leo X bestowed upon King Henry VIII, as a reward for his book against Luther and in defense of pardons, the papacy, and the seven sacraments, the title of "fidei defensor." The bull bidding all Christian people address the king by this phrase bears date quinto idus Octobris, 1521. This bull was confirmed by Pope Clement VII. Certain antiquaries, however, maintain that Leo merely revived a title that had long been held by the English kings, and, though this view is not generally held, it seems true that titles relating to the Christian faith were at times adopted without reference to Rome. However, that may be, Henry's policy in suppressing the monasteries roused the ire of Rome. and the pope formally deprived the king of his title, and, on paper, deposed him from the throne of England. So much for the papal origin of the title. King Edward VII does not claim to hold it by any papal authority. He holds it by the authority of the English parliament. The first statute that conferred the title was 35 Hen. 8. c. 3 (1543-4), which enacted "That all and singular his grace's subjects and resiants, of or within this his realm of England, Ireland, and elsewhere within other his majesty's dominions shall from henceforth accept and take the same his majesty's stile, as it is declared and set forth in manner and form following that is to say, in the Latin tongue by these words, Henricus Octavus Dei Gratia, Anglia, Francia et Hiberniæ Rex, Fidei Defensor, et in terra ecclesiæ Anglicana et Hiberniæ supremum caput; and in the English tongue by these words, Henry the Eighth, by the grace of God, king of England, France and Ireland, defender of the faith, and of the church of England, and also of Ireland, in earth the Supreme head; and that the said stile, declared and set forth by this Act, in manner and form as is above-mentioned, shall be from henceforth by the authority aforesaid, united and annexed for ever to the imperial crown of his highness' realm of England. It shall be high treason to attempt to deprive the king of this stile." This is the parliamentary origin, but it is not to be denied that a point of law might at one time have been raised in relation to this origin. In the edition of the statutes at large published in 1811 it was assumed that the Act of Henry VIII was still in force. The act was virtually repealed as to the treason clause by a statute of Queen Mary, and it was expressly and wholly repealed by statute I & 2 Phil. & M. c. 8, s. 20. This repealing statute was itself repealed by an act in the first year of Queen Elizabeth, and it was assumed and apparently intended that the act creating the title should be revived, for Queen Elizabeth was styled "defendour of the faith." If, however, the act was not revived, as appears to be the better opinion, then the title down to the beginning of the nineteenth century' was merely customary, and was not founded upon an act of parliament. This matter was, however, set right in the year 1800, when the act for the union of England and Ireland was passed (39 & 40 Geo. 3, c. 67). This act by its first article provided "That the royal stile and titles appertaining to the imperial crown of the said United Kingdom and its dependencies, and also the ensigns, armorial flags and banners thereof, shall be such as his majesty, by his royal proclamation under the great seal of the United Kingdom, shall be pleased to appoint." By virtue of this act the king was proclaimed on the 1st of January, 1801, "by the grace of God of the United Kingdom of Great Britain and Ireland king, defender of the faith." The statute (39 Vict. C. 10 (1876), which was passed to enable Queen Victoria to be styled empress of India, and which enabled the crown by royal proclamation under the great seal of the United Kingdom to make such addition to the style and titles then appertaining to the imperial crown of the United Kingdom and its dependencies as to her majesty might seem meet, recited that the queen was, by virtue of the proclamation of the 1st of January, 1801, "Victoria by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith." By virtue of the same proclamation King 66 Edward VII is defender of the faith, and this title could only be taken from him by act of Parliament. But Mr. Redmond desires to know what particular 'faith" is referred to in the title. It will be noticed that the king is defender of the faith and also supreme head in earth of the church of England. The faith is, of course, the Catholic faith which the church of England, as a branch of the Catholic church, teaches, and which is the Stateestablished religion of this country. The fact that another branch of the Catholic church denies the validity of Anglican orders and the fact that other Christian bodies have secured the legal basis of nonconformity have nothing to do with the matter. The king is the defender of the official faith of England, and is the supreme head of the church which holds that faith and which has always regarded itself as Catholic.- Law Times. LEGISLATIVE APPOINTMENT OR EXTENSION OF TERM OF CITY POLICE OFFICERS UNCONSTITUTIONAL. There has been recently a great deal of discussion of projects for State control and regulation of the police systems of cities of this State. We do not propose, in this place, to touch upon the political bearings of the various measures suggested, or express any opinion as to their practical expediency. There has, however, been considerable debate as to the constitutionality of any proposed law of such character. In addition to the decisions in our own State, which have been cited, it may be helpful to examine the recent decision of the Supreme Court of Wisconsin in O'Connor v. City of Fond du Lac (February, 1901 [85 N. W. 327]), because it passes upon a provision of the Wisconsin Constitution to the same effect and almost identical in phraseology with section 2 of article 10 of the Constitution of New York. It appeared that the legislature of Wisconsin, in order for the reconstruction of the police departments of certain cities, including the defendant, provided for the creation of boards of police and fire commissioners, which, apparently, were to constitute local authorities of each city. The legislation, however, contained the following additional clause: Whenever the term of office of any chief of police or chief engineer of a fire department heretofore appointed or elected in any such city shall expire after the act goes into effect, and before the board of police and fire commissioners shall have adopted the necessary rules and regulations, with reference to the appointment of police officers, or when any such officer is holding over at the time the act goes into effect, such officer shall hold his office until his successor shall have been duly appointed in accordance with the rules and regulations of the board. All other members of the police force in any such city at the time the act goes into effect shall hold their respective posi tions for six months from the date when the rules and regulations adopted by the board shall go into effect, and thereafter under certain specified conditions." This feature of direct extension by the legislature of the term of a city police officer was held unconstitutional. The substance of the decision is succinctly expressed in the following extract from the syllabus by the judge who wrote the opinion: "Section 9, article 13, of the Constitution prohibits the legislature from interfering in any way with the question of what person shall hold any office in any city in this State of a character known at the time of the adoption of the Constitution, whether then known by the same name as subsequently or not, and limits all power in that regard to the electors of the particular locality interested, to be exercised directly or by some municipal agency selected directly or indirectly by them. City governments, at the time of the adoption of the Constitution, commonly included a police department, and all offices pertaining thereto, whether now known by the names they bore prior to such adoption or not, must be considered as in the class which the Constitution expressly declares must be filled by election by the electors of the particular localities interested, or by appointment by such authority of such localities as the legislature shall designate. "The idea expressed in the Constitution is not that all officers of towns, cities and villages whose election is not provided for in the Constitution may be elected or appointed in such manner as the legislature may deem best, but that all officers corresponding to town, city and village officers, as regards official duty, that were known at the time of the adoption of the Constitution, shall be elected or appointed by some authority of the particular locality interested, designated by the legislature. "An act of the legislature appointing members of a police force in a city is an unconstitutional interference with local affairs. "An act of the legislature, so far as it expressly, or by its effect, extends the term of office of a member of the police force of a city beyond that for which he was specifically elected or appointed by legitimate municipal authority, so as to keep such officer in place for any period of time, regardless of such authority, is unconstitutional and void." |