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Choate would scarcely go with the jury of Such is not the case. There are many times this generation." This somewhat extreme when nothing can take the place of the perstatement, it seems to us, will not find gen- sonal presentation. Briefs are well enough eral concurrence, however much one recog- in their way, but it very often happens that nizes the general contempt of oratory, as the real point upon which a case turns may such the cheap appeals to sentiment which be overlooked in a brief, while an oral argumove the feelings without convincing the in- ment may serve to bring it home to the court. tellects of those to whom they are addressed. A special emphasis, a striking simile, may This is not the sort of oratory, we confess, throw new light on an intricate problem, and that either judges, juries or public wish to perhaps reverse a judgment in the mind of hear. In the language of a contemporary, the court.” “well-knit arguments and logical collocation and analysis of facts form the basis of true oratory now, as in the past." As the author Our legal contemporaries as well as the of the able review of the trial of Roland B. daily press in England reflect in their Molineux Mr. Frank M. Patterson columns more or less distinctly the fact that published in a recent issue of the ALBANY the country is engaged in a serious war. We Law JOURNAL, pointed out, the address of find in our namesake, the London Law Assistant District Attorney Osborne, while Journal, an expression of regret that certain not to be ranked with the more ornate and judges should have allowed their patriotic highly embellished appeals of well-known feelings to eclipse their judicial dignity. Mr. criminal lawyers in times past, was truly elo- Justice Grantham, it appears, not long ago quent in the sense above referred to. To use interrupted a trial for attempted murder, at Mr. Patterson's words: “If ability to con- the Liverpool Assizes, to announce the relief struct testimony into an intelligible and per- of Kimberley, treated the very gratifying insuasive entirety, if acuteness to perceive pos- telligence as a sufficient reason for passing a sible flaws and by anticipation double-rivet nominal sentence upon a prisoner in another the loose joints, is any evidence of legal case. In the course of an important trial in superiority, Mr. Osborne need have no fear the Probate Court, Sir Francis Jeune inas to his future in the ranks of the great formed the jury that he had received news of criminal advocates of the State.” This is a the relief of Ladysmith. In both courts, we utilitarian age, and even oratory must be are told, the announcements were greeted subordinated to the demand of the public for with loud applause, and that it was some facts rather than figures of speech. At the minutes before judicial business could be prosame time, as already pointed out, imaginaceeded with. The following comment of the tion, analysis, orderly arrangement and acute London Law Journal seems to us timely and observation, which constitute the basis of real worthy of heed and not without its lessons on oratory, are just as important and effective this side of the ocean: “ Members of the as they ever were. In speaking of the re- bench can easily rejoice in the triumphs of mark attributed to Lord Russell, of Kil- our troops without creating these unseemly lowen, to the effect that the value of oratory exhibitions in courts of justice. It is certo the lawyer has been much overrated, Asso- tainly no part of their duty to spread the ciate-Judge Harlan, of the United States rumors that reach them concerning the proSupreme Court, said not long ago to a cor- gress of the war, while it is of the utmost respondent of the New York Evening Post: importance that the attention of juries should "It is a matter of serious regret and concern not be diverted from the questions which to this court that the practice of oral argu- they have to decide. There has lately been ment appears to be falling into disuse. The a marked increase in the tendency of certain idea seems to have become general among judges to comment upon matters that lie outmembers of the bar that we prefer argu- side the scope of their judicial duties. It is ments presented in the form of written briefs. I a tendency which threatens not only the dig

nity but also the authority of the bench, for the New York Court of Appeals decided a judge who concerns himself with questions that the act, chapter 1027, of the Laws of far removed from his official sphere is apt to 1895, requiring railroad corporations to issue impair the confidence of the public in his mileage books, and providing a penalty for judgments on those matters with which he their refusal to do so, is invalid as to corporhas been appointed to deal.”

ations existing at the time of its enactment, because it is violative of the provision of the

Federal Constitution which forbids the takA somewhat peculiar bill which already ing of private property without due process has passed one branch of the legislature and of law. It was further held that such act is seems in a fair way to reach the governor, is not a valid exercise of the police power of the that introduced by Mr. Maher proposing to State, nor of the power of the State to estabamend the lien law relating to the sale of lish maximum prices for the transportation property retaken by a vendor under a con

of persons and property, but is simply an entract of conditional sale. The bill, which in actment in favor of those persons who are our opinion, merits much greater share of able or willing to purchase mileage books. attention than has been given to it, proposes the same court also held, in Purdy v. Erie to add to section 116 of Chapter 418 of the R. R., construing the same act, chapter 1027, Laws of 1897 (providing for the retaking by Laws of 1895, is a valid exercise of legislative the vendor of articles sold on the installment power with respect to companies organized plan, and their retention for thirty days, at and acquiring their property and franchises the end of which time they may be sold if the since the act took effect. The principle is terms of the contract or agreement are not laid down that a statute which is unconstitucomplied with) a provision that,“ unless such tional so far as it purports to operate retroarticles are so sold within thirty days after the spectively, may, nevertheless, be upheld as expiration of such period (the period of thirty to future cases. . days from the retaking by the vendor), the vendee or his successors in interest may recover of the vendor the amount paid on such

The New York Assembly has passed, by articles by such vendee or his successors in

an overwhelming vote, Mr. Weeks' bill to

There interest under the contract for the conditional abolish common-law marriages. sale thereof." This bill, if enacted into law, seems to be no reasonable doubt that it it seems to us, will impose considerable hard will also pass the Senate and receive the ship upon dealers who have sold goods on approval of the Governor. While there the installment plan, in that it allows nothing are, of course, two sides to this as to most whatever for wear and tear or deterioration other questions, it seems reasonably clear of property which, in case of use during ex- that this bill is in the right direction. No tended periods of payment would necessarily one will deny that some common-law maramount to a considerable proportion of the riages turn out happily, but that this sort original value of the property. No doubt of alliance and the loopholes it affords for the present law needs amendment, for the duplicity is a real menance to social order sale by the vendor who has retaken the goods and purity seems equally beyond question. is now merely permissive, not compulsory, The bill, as passed, amends section eleven but if amendment is to be made it should of article two of chapter 272, Laws of 1896 provide a more equitable arrangement than the Domestic relations Law), by permitting is proposed in the bill introduced by solemnization of marriage, in addition to Mr. Maher, which already has passed the the other methods prescribed, as follows: assembly.

“A written contract of marriage, signed by

by both parties, stating the place of resiIn Beardsley, Resp't, v. The N. Y., Lake dence of each of the parties, and the State Erie & Western R. R. and others, Appl'ts, and place of marriage, and acknowledged

in the manner required for the acknowledg- place of business at Des Moines. Defendant ment of a conveyance of real estate.” The Eaton was its medical director, and one Dohaney

was its clerk and bookkeeper. W. T. Botts was following new matter is added to the said

soliciting agent for the association at the town of article, to be known as section nineteen : Higbee, Mo., and plaintiff was its medical exam“No marriage claimed to have been con- iner at that place. The application of one A. P. tracted on or after the ist day of January,

Milnes for insurance was prepared by plaintiff,

signed by the applicant, and turned over to the 1901, within this State, otherwise than in

soliciting agent, Botts, after plaintiff had examthis article provided, shall be valid for any ined Milnes. The application was then forwarded purpose, whatever; provided, however, to the defendant company. After being received that no such marriage shall be deemed or by the association, it was given to the medical adjudged to be invalid, nor shall the validity and passed it to Mr. Dohaney, to prepare and for

director, Eaton, who made some minutes thereon, thereof be in any way affected on account | ward an answer. Dohaney prepared, addressed of any want of authority in any person and mailed the following to Botts, the soliciting solemnizing the same under subdivisions agent: “Des Moines, Iowa, January 11, 1896. W. one, two and three of section two of this T. Botts, Higbee, Mo. – Dear Sir: I write you in

reference to medical examiner at Higbee. I have artice, if consummated with the full belief before me the application of Adolphus P. Milnes. on the part of the persons so married, or This application shows on the face of it to be a either of them, that they were lawfully forgery of his signature, and it is written by Dr. joined in marriage, or an account of any

Nichols instead of the applicant. He has fallen mistake in the date or place of marriage, ing of the applicant by his misspelling the name.

down in his undertaking to imitate the handwritor in the residence of either of the parties, we have returned the application to the doctor, in case of a marriage solemnized under sub- and given him to understand that it must be cordivision four of said section." Under the rected at once; and you are hereby notified that in

the future no more examinations will be accepted law as it will stand, if the amendment pro

when made by Dr. Nichols. We will appoint anposed in this bill is put on the statute other physician at that place, and will notify you books, legal marriage may be performed of the appointment of same. We have no longer by a clergyman or minister of any religion, any confidence in Dr. Nichols, and, as above

stated, we cannot accept any more examinations or by the leader of the Society for Ethical

made by him. Very respectfully yours, Chas. Culture in the City of New York; by a jus- Woodhull Eaton, Medical Director." tice or judge of a court of record, or of a municipal court, or a justice of the peace,

The occasion was undoubtedly privileged, and or by the execution of a contract as above. it was the duty of the court to so instruct the jury.

Appellee says that, conceding the occasion was

privileged, defendant went beyond the privilege, Notes of Cases.

and rendered itself liable. This argument presents

a question that is new to this court, and one on Libel Privileged Communication. In Nich- which the authorities are in apparent conflict. Deols v. Eaton, decided by the Supreme Court of cision of the point involves a consideration of the Iowa, in February, 1900, it was held that a com- reasons underlying the doctrine of privilege. Ormunication by a life insurance company to its dinarily, proof of a defamatory publication, chargsoliciting agent with relation to an alleged forgery ing another with the commission of a crime, by an examining physican of the signature to an makes out a prima facie case of malice in the application for insurance, and informing him that author. But a privileged communication is an another physician would be appointed to make exception to the rule. In such case the presumpexaminations, being upon a subject relating to the tion of malice is rebutted, and the burden of provagency, and in respect to which there is a mutual ing the existence of this element of the action is interest, is a privileged occasion.'

on plaintiff. In other words, actual malice must It was further held that in an action for libel, be shown (White v. Nicholls, 3 How. 286, 11 L. based upon a communication that is privileged, the Ed. 591; Briggs v. Garrett, un Pa. St. 414, 2 Atl. question whether there is such excess of statement 513; Bearce v. Bass, 88 Me. 521, 34 Atl. 411). in the communication as to constitute evidence of Bacon v. Railroad Co. ([Mich.) 33 N. W. 181) is malice is for the jury. The court said in part: an instructive and well-considered case on this

Appellant is a life insurance association incor- point. It is there said: “The meaning in law of a porated under the laws of Iowa, with its principal privileged communication is that it is made on

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such an occasion as rebuts the prima facie infer- law for the judge alone, where there is no dispute ence of malice arising from the publication of as to the circumstances under which it was made. matter prejudicial to the character of plaintiff, and If the judge decides that the occasion was one of throws on him the onus of proving malice in fact, qualified or conditional privilege only, the plaintiff but not of proving it by extrinsic evidence only. must then, if he can, give evidence of actual malice He has still a right to require that the alleged libel

on the part of the defendant. If he does give any itself shall be submitted to the jury, that they may

evidence, which, as we have said, may be gathered judge whether there is any evidence of malice on

from the publication itself, the question of bona the face of it.

The effect, therefore, of fides becomes one of fact for the jury (1 Am. Lead. showing that the communication was made on a

Cas. (5th Ed.) 193; Gray v. Pentland, 4 Serg. & privileged occasion is prima facie to rebut the qual- R. 420; Hart v, Reed, 1 B. Mon. 166; Newell, ity or element of malice, and casts upon the plain-Sland. & L., p. 478). In Hill v. Drainage Co. tiff the necessity of showing malice in fact (that is, ([Sup.), 29 N. Y. Supp. 427) it is said: "In case a that the defendant was actuated by ill-will in what communication is prima facie privileged, the existhe did and said, with a design to causelessly or

ence or non-existence of malice on the part of the wantonly injure the plaintiff); and this malice in defendant is a question of fact; and the plaintiff, fact, resting, as it must, upon the libelous matter before he can recover, must affirmatively establish itself, and the surrounding circumstances tending to the satisfaction of the jury that the publication to prove fact and motive, is a question to be deter- complained of was made through malice. This mined by the jury.”

may be shown from the communication, the cirPlaintiff relies on some expressions found in the cumstances under which it was written, and it may books to the effect that, if the communication ex

be inferred from a variety of facts.

The ceeds the privilege, it destroys the privilege. occasion was privileged. Did the publication go Thus, Mr. Odger, in his work on Slander and beyond the occasion, or, in other words, was Libel (page 197), says:

But it must be remem- more written than the occasion justified? This bered that, although the occasion may be priv- depends upon the terms of the communication, and ileged, it is not every communication made on such the facts outside of it, and was an issue of fact, for occasion that is privileged. “It is not enough to the jury.” (See, also, Comfort v. Young, 100 have an interest or duty in making the communi- Iowa, 627, 69 N. W. 1032; Strode v. Clement cation. The interest or duty must be shown to (Va.], 19 S. E. 177; Klinck v. Colby, 46 N. Y. 427). exist in making the communication complained of' (per Dowse, B., in 6 L. R. Ir., at p. 269). A

THE OLD RULE OF DESCENTS IN NEW communication which goes beyond the occasion

YORK UNDER THE ORIGINAL PATENTS. exceeds the privilege." Again, at page 245, it is said: “So, too, in making a communication which hat the early law of New York is of great is only privileged by reason of its being made to a

practical interest even at the present time is person interested in the subject-matter thereof, the disclosed by the record of many recent cases. But defendant must be careful not to branch out onto

it is only those who give much attention to this extraneous matter with which such person is un

subject that fully realize the extent of its actual concerned. The privilege only extends to that por importance to pending litigations. tion of the communication in respect of which the

The present writer was lately reminded of a parties have a common interest or duty." We have recognized some of the rules here announced the printed record of a pending case. The plaintiff

very obscure point of this ancient law by reading (see State v. Hoskins (Iowa), 80 N. W. 1063). in that case had been compelled to deduce his There the occasion was not privileged, because title to lands under water from the original patmade to persons who were in no manner interested in the publication. The doctrines announced by tion or adverse possession could be made out to

entee of King Charles II, as no title by prescripMr. Odgers, some of which are even stronger than

the lands in question. In the course of this deducwe have quoted, have produced some confusion in the authorities; and we think the better rule is that be held as “ of our Manor of East Greenwich in

tion his counsel claimed that, as the land was to if the occasion is privileged, and the publication is about a matter in which both parties have an in- females, but to all the sons alike, after the custom

our County of Kent,” they did not descend to terest, excess of statement is material only as

of Kent (2 Black. Com. 215, 216); and that primobearing on the question of malice. Indeed, the jury may find the existence of malice from the lan- geniture was excluded as a rule of descents. A guage of the communication itself

, as well as from pedigree made up on this principle seems to have

been introduced in evidence in the case without extrinsic evidence (Hastings v. Lusk, 22 Wend.

challenge or much, if any, discussion. 410-421; Neville v. Ins. Co. (1895), 2 Q. B. 156;

As the present writer, in very good company, Railway Co. v. Behee (Tex. Civ. App.), 21 S. W. had always believed that primogeniture was the 384). Whether the publication is or is not prive universal rule of inheritances in New York prior ileged by reason of the occasion is a question of I to the year 1782, he was very much startled by the



claim of able counsel to the contrary. As the I for Virginia in 1606 and 1609, and of Lord Baltipoint may be up again at no distant day, it may more's charter for Maryland by King Charles I be of interest to the profession to have access to in 1632, which was tenendum ut de Castro nostro some relevant data, most of which was obtained de Windsor, in libero et commune soccagio, per fideliwith very great difficulty, and exists in no printed tatem

et non in capite nec per servitium repository. As this journal circulates in the State militare,” etc. It is also true of the patents by of New York, it seemed to the writer to be the King Charles II to the Duke of York in 1664 and fittest organ for the publication of the very 1674 for New York and adjacent territory, and curious documents in the writer's control, as they for Pennsylvania in 1681.' New York was

to be must be of peculiar interest to lawyers in this holden of us, our heires and successors as of our State.

Manor of East Greenwich in our County of Kent It will be remembered that the original patentee in free and common soccage and not in capite or of New York, the Duke of York, succeeded to the by knights' service." ; crown in 1685, and that his original estate in New The customs of the manor of East Greenwich York then merged in his crown, and thenceforth are very obscure, and for some years the writer of the devolution of the province was secundum jus this paper was unable to procure any information corone; but the tenure of all lands thereafter at all concerning the manor in question. And yet patented by the crown continued to be as of our several eminent real-property lawyers in England Manor of East Greenwich in our County of Kent, conceded long ago that the nature and estates of in free and common socage, and not in capite or the tenants of that manor might influence the by knight-service.” The lands patented before estates in lands to be holden as of that manor. the Duke's accession were distinctly holden on That this supposition was quite correct is demonthis tenure, and so continued to be until the strated by the case mentioned at the outset of this Revised Statutes made all lands allodial.

paper. After repeated efforts in England it was It would be very contrary to all prior practice at last discovered that some evidence upon the in New York if, in respect of any of the old manorial rights might be obtained from Her patents on Long Island and up the Hudson river Majesty's office of Woods and Forests, and upon (the two original oblongs or settlements), the application being there made on the advice of a custom of Kent should down to 1782 be applied very distinguished judge in England it was politely as a rule of descents and not the rule of primo- furnished by the head of that office. As the manor geniture. In 1782 the present rule of partible of East Greenwich had long ceased to exist, the inheritances first took effect. That the tenendum information concerning the customs of that manor clause of the Duke of York's first patent in 1664 was not, however, what could be desired. But did not introduce, and was not intended to intro- there were found in manuscript two documents of duce, gavelkind is shown by several facts: (1) interest upon the tenendum clause of the American The object of the tenendum clause in the royal patents: (1) A report of the surveyor-general, patents for American territory was to give the dated 10th August, 1751, on the manor of East patentee the most liberal tenure then known in Greenwich; (2) a much older memorandum relatEngland, and to prevent a tenure in capite or by ing to the origin of the royal grants to be holden knight-service. (2) The adoption of one of the as of the king's manors. The first of these docuking's manors an exemplar of such tenures ments is as follows: was not for the purpose of introducing a local

REPORT OF THE SURVEYOR-GENERAL IN 1751. custom of a manor, but for the sole purpose of

May it please Your Lordships: evidence that the tenure was not in capite or by

I have made out the following state of his knight-service. (3) There is no proof existent Majesty's Title to the Manor Royal of East Greenthat gavelkind ever prevailed in the royal manor

wich in the County of Kent pursuant to your of East Greenwich, even though that manor was in Kent, where gavelkind prevailed as a rule of Gallway, his Majesty's Surveyor Gen'l, by letter

Lordship's directions Signified to My Lord descents.

from Mr. Scrope, dated the 13th of November If the reader will examine any volume contain

last. ing the original patents from the crown for lands effectually recovering the possession of certain

In order to the ascertaining the right and in America, he will find that with the exception parcels that have been encroached and unjustly of Queen Elizabeth's patent to Sir Walter Raleigh detained from the Crown by the late Sir William in 1584 (which was to be holden by homage), all

Boreman and others, mentioned in the the patents by James I, Charles I and Charles II

nexed Memorial and Complaint of John Roberts, provided that the lands should be holden either as " of our Manor of East Greenwich in our County *Cf. i Story Const. 120. of Kent,” or as of our Castle of Windsor in our See this patent in 2 Doc. re. to Hist. of New County of Berks in free and common socage by York, 295, and in my History of Real Prop. in fealty only, and not in capite or by knight's serv- New York, p. 179; also in Liber I, Patents, Sec'y ice." This is true of the charters by King James of State's office, p. 139.



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