Page images

tion or from a third person. Also, if the additional benefit to be gained by the issue and receipt of

lottery prize, it is immaterial that the aggregate gift value of a large number of stamps is lumped in the obtaining of a single gift-article of very considerable value. The material question involved in all cases of this class is whether an element of lottery or chance is involved. The Supreme Court of Rhode Island in the principal case held that the statute was so broad as to prohibit gift enterprises which were permissible in the building-up of trade. The opinion of the court, however, cites and approves of a large number of cases in which "trading-stamps" enterprises were condemned because they substantially constituted lotteries. N. Y. Law Journal.

Creator, subject only to such restraints as are necessary for the common welfare.' In the terse language of Peckham, J., in People v. Gillson (109" trading-stamps" amounts to a gift and not to a N. Y. 389, 17 N. E. 345), liberty, in its broad sense, as understood in this country, means the right, not only of freedom from servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling an to pursue any lawful trade or avocation.' (See, also, Frorer v. People, 141 Ill. 171, 31 N. E. 395, 16 L. R. A. 492; Allgeyer v. Louisiana, 165 U. S. 589, 590, 17 Sup. Ct. 427; Guthrie, supra, 109). This inalienable right is trenched upon and impaired whenever the legislature prohibits a man from carrying on his business in his own way, provided, always, of course, that the business and the mode of carrying it on are not injurious to the public, and provided, also, that it is not a business which is affected with a public use or interest. Now, it was certainly within the constitutional right of the defendant in this case to sell tobacco it being presumed, of course, that he had obtained the necessary authority to deal in that article; and, as an inducement to people to trade with him, it was also his right to give to each purchaser of a certain quantity of tobacco, either directly or through a third person, some other designated article of value, by way of premium. The statute in question, however, steps in to prevent him from adopting such a course to procure trade, and from it to secure an income and livelihood; and he is thus restrained in the free enjoyment of his facul-action brought for the non-fulfilment of a contract ties to which he is constitutionally entitled, unless such restraint is necessary for the common welfare, in one of the ways heretofore mentioned, and we cannot see that it is. In other words, the statute says that A. shall not sell to B. a barrel of flour, and, in connection with and as a part of the contract of sale, give to B. a coupon which will entitle him to receive from C. a pound of tea, a pitcher, a lamp, a clock, a door mat, or some other specified article of merchandise. If the act had prohibited the giving away of any stamp or device in connection with the sale of an article, which would entitle the holder to receive, either directly from the vendor, or indirectly through another person, some indefinite and undescribed article, the nature and value of which were unknown to the purchaser, there would then be introduced into the prohibited transaction enough of the element of uncertainty and chance to condemn it as being in the nature of a lottery."

Lord Kenyon was conspicuous for economy in every article of his dress. Once, in the case of an

on a large scale for shoes, the question mainly was whether or not they were well and soundly made and with the best materials. A number of witnesses were called, one of whom, being closely questioned, returned contradictory answers, when the chief justice observed, pointing to his own shoes, upon which was a broad silver buckle: "Were the shoes anything like these?" "No, my lord," replied the witness; "they were a great deal better and more genteeler." The court was convulsed with laughter, in which the chief justice heartily joined. Law Times.

Fully realizing that "trading stamps" enterprises naturally tend to develop into actual lotteries, we nevertheless think that the present Rhode Island decision is sound, as was the decision in the Gillson case in New York. If a premium upon a sale of goods is essentially a gift, as distinguished from a prize of chance, it is immaterial whether it proceeds from the vendor in the original transac

Legal Tait and Humor.

Mr. Brougham, when at the bar, opened before Lord Chief Justice Tenterden an action for the amount of a wager laid upon the event of a dog fight, which, through some unwillingness of the dogs or men, had not been brought to an issue. We, my lord," said the advocate, were minded that the dogs should fight." "Then I," replied the judge, "am minded to have no more of it; " and he called another case.

[ocr errors]


Legal Notes.

Justice Field had an ambition to serve longer as a Federal judge than any of his predecessors, and it is commonly supposed that he did. But our own John Jay Jackson has served about six years longer. He was appointed by President Lincoln on August 3d, 1861, and therefore has seen a continuous service of thirty-nine years. Field was appointed by Lincoln in 1863, and his period of service was therefore about thirty-three years. Judge Jackson is now in the seventy-ninth year of his age, and is as chirpy as a young gobbler. - West Virginia Bar.

Hon. N. L. Johnson, of Elyria, one of the best known and oldest members of the Lorain county, Ohio, bar, died recently in that city. He was born at Lenox, Mass., February 23, 1823. He graduated from Williams College, Massachusetts, in 1852, and from Harvard Law School in 1854. He was admitted to the bar the same year, and in 1863 removed to Elyria, where he has since resided, practicing his profession. A short time ago Mr. Johnson became the senior member of a law firm composed of himself, his son, Ben W. Johnson, and Fritz Rudin.

Of the 3,441 students enrolled at the University of Michigan, 38 come from foreign countries. On tario sends 19, Japan 7, Germany 4, Mexico 2, South Africa 2, China 1, Egypt 1, New Brunswick 1, Turkey 1. The present year is a record breaker for attendance at the Michigan State Normal, the number of students enrolled being 1,421. Prof. Dimon H. Roberts, of Winona, Minn., a graduate of Cortland, N. Y., Normal and Amherst College, has been elected superintendent of the training school of the Michigan State Normal. There are 837 students enrolled in the law depart ment at University of Michigan.

Four women graduated in the three years' course and received the degree of bachelor of laws: Miss Clara J. Breese, Miss Agnes A. Graham and Miss May F. Power from the Chicago College of Law, and Miss Nora L. Morton and Miss Ellen Gertrude Roberts from the Kent College of Law. Miss Power was admitted to the Illinois bar October 14, 1899, and Miss Breese and Miss Graham both passed the examination for admission to the bar before the State Board of Law Examiners, May 3, 1900, and expect to receive their license this week from the Supreme Court. Judge Sidney Breese was the grand-uncle of Miss Breese. Miss Breese was awarded the Callaghan & Co. prize, being fifty dollars in law books of their own publications, for attaining the highest proficiency in her studies. What were the young men of her class doing to allow this? Miss Ellen Gertrude Roberts was awarded the T. H. Flood & Co. prize. — Chicago Law Journal.

When the United States Supreme Court adjourned on the 28th ult. for the term it left 304 cases on the docket undisposed of, which is just the number left upon adjournment in May, 1899. During the term 370 new cases were filed, and in exactly that number were arguments heard or briefs submitted during the term. Of the cases argued and submitted thirty-eight go over to the next term without being adjudicated. These include among others the cases involving the anticigarette law of Tennessee and the registration law of South Carolina, two cases testing the effect in one State of divorces granted in another State; an important interstate commerce case from Tennessee, involving the charge of discrimination

against the East Tennessee, Virginia and Georgia Railroad; the case of the Choctaw, Chickasaw and Wichita Indians, involving title to several acres of land in Indian Territory, and the case of Li Sing, a Chinaman, against the United States, presenting a phase of the Chinese exclusion act.

English Notes.

Sir Peter O'Brien has taken, on his elevation to the peerage, the title of Lord O'Brien of Kilfenora, in the county of Clare.

Sir Peter O'Brien, who has been raised to the peerage, was born in 1841, and has been lord chief justice of Ireland since 1889. He has filled many official positions in Ireland, including those of crown prosecutor, solicitor-general, and attorneygeneral. It was when acting as crown prosecutor in cases arising out of the disturbed condition of Ireland that Sir Peter earned his reputation. The difficulty of getting convictions owing to the sympathy of the jurymen with the particualr agrarian crime then rampant led Sir Peter to exercise to its fullest extent his right of challenging jurors in order to secure a fair panel. He was in consequence dubbed by the Nationalists "Peter the Packer."

The existing great seal being worn out, it has been stated in parliament that a new great seal is to be designed and cut at a cost of about £400; and inquiries are being made as to what will become of the present seal when the new one is approved and put into use. Since the time of Elizabeth, though theoretically there might be a keeper of the great seal as distinct from the chancellor, the two offices have never been full at the same time, and since 1760 no lord keeper has been appointed, and the custody of the great seal has always been with the lord chancellor of Great Britain. He is bound always to have it in his custody, and may not take it out of the realm. Wolsey was impeached for disobeying this rule. But it is said that Lord Brougham took it to Scotland with him, which was perfectly legal, and, when there, used it as a frying-pan to make an omelette. Law Journal (London).

[ocr errors]

Mr. Justice Mathew, speaking at the annual meeting of the Romilly Society for the Amendment of the Criminal Law, said he was entirely opposed to the flogging of criminals. Robbery with violence was a most serious offense, and penal servitude was the proper punishment for it. Nothing could be more injudicious than to take a brute, confine him to jail, and have him flogged at intervals. Being of a brutal nature, and subjected to brutal punishment, how could the man do anything else than go wrong and take to evil courses again? If in the case of crimes against morality the

country made up its mind that punishment should be by the lash, its infliction should not be optional. But offenses of this nature varied so much in degree that it would be entirely wrong to order it in the case of, say, a young man who had borne a good character. He therefore deprecated most strongly the use of the lash in any case.


In an obituary notice of the late Sir John Hawkins Ilagarty, ex-Chief Justice of the Province of Ontario, the Canada Law Journal says: was a sound and well-read lawyer with a keen mind, rapidly grasping the salient points of a case, and quick to detect a fallacy. Strongly conservative in his views, he took no pleasure in change or modern freaks, legislative or otherwise, and cared not for the fusion of law and equity, preferring to the last the ways of the common law, in the law and practice of which he was an adept. As is well known he had a cultivated taste in general literature, and it is said of him, what can be said of few others, that he had read all the books in his large and carefully selected library, and to a remarkable extent he remembered what he read. * * * His career was the result of sterling ability and not due to politics or extraneous causes, for he sought no honors, but was on the contrary a modest, retiring man, who always deprecated being thrust into notoriety. His memory will be cherished by the profession as the memory of an able, conscientious, and learned judge ever deserves to be, and he linked us to the best traditions of the bench and bar of old Upper Canada.

The privilege of sanctuary, abolished in this country so long ago as the reign of James I, but surviving in Scotland till comparatively recently, so far as giving protection to insolvent debtors was concerned, still appears to flourish with unabated vigor in Persia, where, indeed, the natives have shown marvelous ingenuity in making so modern an appliance as the telegraph subserve the purposes of a sanctuary, says the Law Times. In that country, says Prof. Jenks in his little book, entitled “A History of Politics," "every one has a right to approach the shah by telegram, if he prepays a reply. The man who apprehends violence goes to the telegraph office, dispatches his appeal, and sits down to await the answer. As things in Persia move with deliberation, this is probably several days in arriving. But as the telegraph office is the shah's property, it is sanctuary; and the suppliant, so long as he remains there, is safe. It is no uncommon thing, therefore, to see a little group of suppliants, fortified with food and drink by their relatives, crouching in the telegraph office, while a corresponding group of avengers of blood waits eagerly outside." Presumably, telegraphic business is not extensive in Persia, else such a condition of things would be likely to prove somewhat embarrassing to the officials!



To the Editor of the Albany Law Journal:

Seeing an excellent article in the last issue of your journal respecting wills, I thought I would send you a portion of the unique will of a certain person who died some years ago in this town. One of the peculiarities is that it is written on nine pages of foolscap, and instead of reading from the front or forward pages to the last it is the latter that you commence to read from, or what is called number one:

"In the name of God amen I * being weakly in body tho sound of mind memory & understanding do make publish and declare this to be my last Will and Testament, hereby revoking any former will or wills codicil or codicils by me at any time made, that is to say, I first do most humbly commit and commend my immortal soul unto Almighty God, resting in the hope that He will of His sovereign mercy and goodness receive it into his affectionate care and possession at the last day. That my body shall be enclosed in a good, stout coffin, the same to be covered with black cloth, having a breast plate upon it and other suitable furniture. That a minister of the Church of England shall preach a service in the house and also officiate at the grave for which services he shall receive his dinner and one pound. That four singers shall sing a few verses in the house and also in proceeding to the grave, for which service they also shall receive a dinner and ten shillings. That four Englishmen are to carry my body to the grave, for which service they also shall receive a dinner and ten shillings each; the funeral to be at ten o'clock A. M., and that my body be buried six feet deep, clear of the coffin, the grave to be in the centre of the enclosure now known as lots 21 & 22 Huron street, West, situate above the hill at the back of the house in which Town I now reside, the space of ground occupied by the grave &c to be twelve yards square, the same to be planted with evergreens &c and be enclosed with a stout fence of cedar posts rails and pickets seven feet in height, the grave posts or stone to be planted and have a suitable inscription upon it. And secondly with regard to my worldly property"

* *

The executors were two Scotchmen and one Englishman; neither of the former got a dinner because they knew nothing of their being executors until they were served with a writ, and then they renounced, the other executor having proceeded to sell the property without even taking out letters probate.

Kincardine, Ont., May 31, 1900.

Yours truly.

J. A. MACPHerson.

The Albany Law Journal.

A Weekly Record of the Law and the Lawyers. Published by


Contributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law questions, addresses on legal topics, or discussions on questions of timely

interest are solicited from members of the bar and those interested in legal proceedings.

[All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

ALBANY, JUNE 23, 1900.

Current Topics.


HE ALBANY LAW JOURNAL has received from the secretary, Mr. Frederick E. Wadhams, a copy of the Annual Report of the New York State Bar Association for the

current year, embracing the proceedings of the Association at the annual meeting in this city in January last, together with reports for the year 1899. It makes a book of more than 500 pages, very attractively printed by The Argus Company, of this city, and containing much that is of value to every member of the legal profession. The volume contains, besides a copy of the act under which the Association was organized and the constitution and by-laws, the addresses and papers presented at the annual meeting and the proceedings in full, as well as the toasts. and responses at the annual banquet held at the Hotel Ten Eyck. The book is embellished with excellent half-tone engravings of the retiring president of the Association, Mr. Walter S. Logan, of New York City, and of Judge Henry B. Brown, of the United States Supreme Court, who delivered the annual address upon the subject, "The Liberty of the Press " A new and excellent feature which Secretary Wadhams has inaugurated with the present volume is a complete compilation by titles of the annual addresses by presidents and by others than presidents from the organization of the Association to date, and also of the titles of all the papers read at VOL. 61 No. 25.

Subscription price, Five Dollars per annum in advance. Single the annual banquet by Mr. Lewis, E. Carr,

number Twenty-Five Cents.

of this city, to the toast on the unique subject, "The Lawyer and the Hod Carrier." It is in that famous after-dinner speaker's best vein, containing not only flashes of wit that kept the table in a roar, but true wisdom and pathos as well.

annual meetings and of the responses to toasts at banquets. These lists, which are to be kept standing and supplemented each year, really constitute a convenient and handy index to the mine of interesting and valuable literature which too often remains buried in the annual reports. The current volume is quite up to any of its predecessors in attractiveness and value, and we congratulate the secretary upon the results he has achieved. One of the best things in the volume is the text of the response made at

At the recent flag-day celebration in Baltimore, Md., one of the poems read was by

Mr. Edwin Higgins, a well-known poet-lawyer of that city, who has been a valued contributor to the columns of the Albany Law JOURNAL. The lines referred to are appended:

Our flag to-day waves on the breeze,
Countless as boughs on the forest trees;
O'er prairies rich with golden grain,
O'er steam and sail, o'er peaceful main,
O'er cities fair with happy throng,
O'er cannon with their thunder song;
It waves on high o'er school and home
As proudly as o'er stately dome.
About its folds doth glory cling.
Like blossoms on the breast of spring;
Its tints, born of the jeweled morn,
When Day treads in the steps of Dawn,
Were woven there by patriot hand
When cries for freedom rent the land;
They bathed its stripes in blood and tears
And rose triumphant o'er their fears.

See! all its stars are priceless gems,
The brightest in Time's diadems;
And as the fleeting years go by
It borrows others from the sky
To set them in its field of blue-
Blest union of the brave and true;
And ne'er shall one bright star go down
While Valor doth brave Justice crown.

It fires the heart of youth and age
With spirit of a deathless page;

It breaks Oppression's iron rod,
Bids all the world have faith in God.
List to its clear prophetic voice:
Dear Freedom is the people's choice.
O Flag! Hope of the waiting world!
Wave till Time hath all banners furled.

peradventure the police officer was liable for
every hour he detained the plaintiff after he
and his associate officer had secured the re-
mand from the magistrate for a reason which
could not have availed them had they then
charged the plaintiff with the misdemeano
The consequence was that Mr. Snead ob-
tained a confirmation of the judgment of
$500 that had been awarded by the jury in
the lower court.

The New York Supreme Court, Appellate Division, First Department, recently rendered a decision of considerable interest with respect to the rights of citizens, particularly with regard to their immunity from arrest by police officers who are acting under no more definite authority or motive than that of suspicion. The case referred to was that of Sneed v Bonnoil. While the plaintiff was emerging from a pawn-shop with a bag filled with jewelry and silverware, two policemen, one of whom was the defendant, arrested him, saying in explanation of their conduct, that they wished to ascertain what he had in the bag. In reply he said that the property, as he could prove, belonged to him. He was, nevertheless, taken to the station-house and locked up. When a search was made of his person it was found that he had a loaded revolver After having him remanded for twenty-four hours in order to find out whether the charge of being a "suspicious person," which is a misdemeanor, could be sustained, the officers decided to change this charge to the carrying of concealed weapons, which is a felony. Although the Appellate Court, to which the case was carried, thought that the circumstances might justify the belief that Mr. Snead was a suspicious person, he could not be held on a charge different from the one for which he had been arrest d "There can be no general right," it said, "to arrest a citizen for an undisclosed offense. The police officer cannot arrest a man for one cause, and when that is exploded, justify for another. Such a doctrine would be an incentive to the loosest practices on the part of police officers, and a dangerous extension of their sufficiently great powers." Again the court said concerning the detention of Mr. Snead without bail: "Thus the officers

utilized the felony charge to detain the plain-in
tiff for at least twenty-four hours beyond the
time he was entitled to his discharge upon
bail upon the misdemeanor charge. Beyond

Notes of Cases.

Municipal Corporations - False Imprisonment Invalid Ordinance. In Masters v. Village of Bowling Green, decided by the U. S. Circuit Court, N. D. Ohio, W. D., in November, 1899, it was held that where a municipality acts in good faith, without malice, in the arrest of one charged with violating an ordinance, it is not liable in damages, although the ordinance is invalid. The court said:

The plaintiff sues the defendant, for that the de-
fendant is a municipality, duly incorporated under
the laws of the State of Ohio, in the United States
of America. Plaintiff says that he is a resident of
the State of Pennsylvania, in the United States of
America; that he is agent for the firm of the Boyd
Ointment Company, having its principal office and
place of business in the city of Kittanning, in the
State of Pennsylvania, in the United States of
America, in which city and State the plaintiff is
also a resident. Plaintiff says that he is engaged
as an agent for said firm, in the business of dis-
tributing circulars, bills, and advertisements of,
and selling and delivering, a certain medicine or
salve known as "Boyd's Ointment," to various
persons in the United States of America. Plain-
tiff says that the authorities of the village of Bowl-
ing Green caused the plaintiff to be arrested and
taken before the Hon. Almer C. Campbell, mayor
of said village aforesaid; that he was arrested on
an affidavit made by one Davenport, and upon a
pretended warrant issued by Mayor Campbell for
his said arrest. Plaintiff says that after his arrest,
and on the 29th day of May, 1899, the said Hon.
Almer R. Campbell, as mayor of the said village
of Bowling Green, as aforesaid, commanded the
said Davenport, as marshal of said village, to cause

this plaintiff to appear before the mayor of said
city, at his office in said city, on the 29th day of
May, 1899, to answer the charge set forth in said
warrant. Plaintiff alleges that the ordinance under
conflict with the constitution and laws of the
which he was arrested is an illegal ordinance, and
United State, and especially the Interstate Com-
merce Act: wherefore he claims damages from the
village authorities.

[ocr errors]
« PreviousContinue »