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The Albany Law Journal.

A Weekly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, N. Y.

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.]

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ALBANY, APRIL 28, 1900.

Current Topics.

It is provided by statute in this State that every last will and testament of real or personal property "shall be subscribed by the testator at the end of the will." In the recent case of Andrews (43 App. Div. 394, and 162 New York, 1) the question, What is the end of a will? arose, and, strange to say, it proved a very perplexing one both to the lawyers and judges. In this case the testatrix wrote the will on three sides of a folded paper, commencing on the first page and continuing on the third page, at the top of which was written "second page," and completing and signing the instrument on a page marked "third page," which in fact was the second page of the sheet. It was held, Mr. Justice Cullen writing the opinion, that the will was not signed at the end, within the meaning of the statute, and accordingly probate was refused. Justice Cullen said:

It is said that if the second leaf be severed from the first, and attached to the foot of the first page, then the will will appear well executed under any of the authorities. We concede this claim; but the answer to it is that in the instrument as offered the connection between the two leaves is at the

side and not at the foot. It is further said that, ganting the sufficiency of our answer to the appellant's argument in this respect, it is unreasonable to make the validity of a will depend on the point of connection between the several pages of the instrument. If this is so, it is but a criticism on the rule that the signature must be found at "the physical end of the will; " but that rule is the law VOL. 61'-No. 17.

of this State. Many instances have been suggested to us on the argument, by counsel, where it would seem impracticable, if not impossible, to apply the rule. It is said that no law requires a will to be written on a single sheet of paper; that it may be written on many detached or separate pieces; that no statute provides how such pieces shall be attached or how separate sheets shall be authenticated. We are asked if, in such a case, after the execution of a will the sheets or pieces of paper should be folded together in the wrong order, and the sheet last in fact and bearing the signatures of the testator and witnesses is by mistake found out of place, whether the will is to be rejected. It is not necessary for us to be able to answer this inquiry. Many cases have occurred to us in which it would seem difficult to apply the "physical end of the will" rule. We have frankly said that these difficulties seem to us so great that, apart from authority, we should not have been inclined to adopt such a rule; but the rule is the law of this State, and we must apply it to cases that fairly fall within its limits, though there may be imagined others to which it could not apply.

The case went to the Court of Appeals, where Justice Cullen's opinion was affirmed. While fully recognizing the importance of strict construction with reference to last wills and testaments, and appreciating, therefore, the point of view of the Court of Appeals, it seems to us unfortunate as well as unjust that the will under consideration should have been refused probate. As a writer in the Harvard Law Review has pointed out, the intention of the testator was plain, and bevond question the signature was at the end of the will, in point of time, although not at the physical end; and where, as in this case, the testatrix specially numbered the pages, it would seem that the only proper end of the instrument was the end so designated by her. The senseless custom or "fad" of continuing from the first page to what used to be considered the third page, which has sprung up within recent years, is responsible for all the trouble in the present case, and while we are inclined to regard the decision here as too narrow, if it shall have an important influence in stopping the objectionable method of writing now referred to, the decision will not have been wholly without salutary effect.

The legal status of the automobile is in process of settlement. Not long ago it was seriously contended, as in the case of the

nosed all over the machine, and at last, apparently satisfied, gave a sigh of relief. The bicycle was

wheeled in front of him for a minute or two and

bicycle, when it first made its appearance, that the automobile had no rights that owners of horses were bound to respect, and that they should be and would be relegated to no one knew where. We observe that Judge Sutherland, of the Monroe County (N. Y.) The trainer, if not the owner, of a horse is to blame when an animal takes fright at every unacCourt, has just handed down a decision to the effect that automobiles and similar vehi-that the horse has not been properly broken, and customed object on the highway. It is a sure sign

then mounted and ridden past him without exciting any alarm. We have seen horses broken to the opening and closing of umbrellas in the same way.

if any one is to be held responsible in such a case it is the owner of the horse.

Should an appeal be taken in the case just passed upon by Judge Sutherland it would be surprising if his decision should not be sustained. It is founded in common sense, and only through such an interpretation of the law could any progress in the means of travel on the highway be made.

cles have a right to travel on the public highways, and cannot be held responsible for damages due to the running away of horses frightened by such vehicles, except in cases where negligence can be shown. "The horse," says Judge Sutherland, "has no paramount or exclusive right to the road, and the mere fact that a horse takes fright at some vehicle run by new and improved methods, and smashes things, does not give the injured party a cause of action." Judge Sutherland also showed that horses may take fright at conveyances that have become obsolete as well as at those which are novel, instancing the possible effect of the appearance of a four-ox team drawing a prairie schooner on the streets of any of our cities. Of course, no one would think of calling the driver of such a conveyance to account in case some horse took it into his foolish head to get frightened at the canvas-covered relic of bygone days. Discussing the decision, which it regards as eminently sound and just, the Rochester Democrat and Chronicle says:

The truth is, ignoring for the moment the right to introduce improvements in locomotion upon our highways, horses which have been properly trained and which have had an opportunity to become acquainted, through the thoughtfulness and care of their owners, with the sights and sounds they are likely to encounter upon the public highways of our day, will not become frightened and run away when they meet such objects as an automobile on the road. A few years ago, when the old high bicycle was first introduced in this city, a spirited horse driven by an intelligent young colored man showed signs of uneasiness at the approach of one of those wheels. The rider dismounted and the driver hailed him with: "Say. mister, will you bring that thing carefully up here and let my horse smell of it?" The request was complied with. The approach was cautious and

not without manifest uneasiness on the part of the animal, but at last the wheel was close enough for the horse to touch it with his nose. Then the process of becoming acquainted began. The horse

The editor of the Birmingham Daily Argus, a Mr. Gray, was recently fined £100 and £25 costs for scandalously attacking in his columns Mr. Justice Darling. The judge, it appears, had aroused the unanimous opposition of the press in Birmingham by threatening its members with the penalties they would incur if they committed the offense of publishing obscene reports of a trial, but Mr. Gray was the only editor who descended to such personal abuse of Mr. Justice Darling as to seem to call for punishment. The London Law Journal does not regard the fine as a severe punishment for the offense, but rather intimates that but for the candor and promptness with which the defendant accepted the responsibility for the attack and the complete apology offered by him, it would have entailed upon him imprisonment for no inconsiderable period. The Journal goes on to say: "The relations between the bench and the press in this country are, happily, so satisfactory that the legal limits of newspaper reports of judicial proceedings and criticisms on judges rarely need to be defined. But they are not at all obscure. Every impartial and accurate report of any proceeding in a court of law is privileged. But to this rule there is the exception that the publication of even a fair and accurate report of an obscene or blasphemous libel, or of evidence otherwise unfit for publication, is punishable as a criminal libel. The law as regards newspaper criticism is

equally plain. The proprietor or editor of a paper has the same liberty of comment as is enjoyed by any other subject of the queen, and no more. He may criticise judges and their decisions and obiter dicta freely so long as he neither says anything of a character calculated to interfere with the administration of justice or makes a scandalous attack on a judge as judge. In either of these cases he is guilty of contempt of court; and, as the privy council had occasion to point out last year in M'Leod v. St. Aubyn, aspersions on the judicial office through the person of an individual judge do not cease to be contempt because they are made without reference to any pending proceedings."

The house of representatives has again passed a proposed amendment to the Federal Constitution requiring the election of United States senators by direct vote of the people. The resolution referred to, which was adopted by a vote of 240 to 15, takes the election of senators away from the legislature in all cases, and directs that the people shall vote for United States senator. It is well to recall the fact at this time that no less than thirty-four States' legislatures have asked Congress to propose and submit to the people such an amendment, and that in sponse to this demand that the lower branch of Congress has repeatedly done so, only to have the matter "held up" in the senate. That body is composed of members who owe their seats to the present system and who are by no means sure of their ability to hold them under a system of popular election. Recent revelations in the Clark case have tended to emphasize the popular distrust of the senate and to render the people more determined than ever to wipe out the crying evil of gubernatorial appointments, after caballing with factions in the legislature to prevent elections. We entirely agree with the Philadelphia Times when it says: "The feeling against the abuses of the present system is strong and growing stronger, and if the senate is too reckless of public opinion the demand for a change will become so imperative as to reach through legislatures to the senate

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In the case of In re Bonner (151 U. S. 258, 14

Sup. Ct. 326, 38 L. Ed. 152), in the course of a

careful and full discussion of the rules applicable to the jurisdiction of courts in criminal cases, Mr. Justice Field in stating rules applicable to all of them, by which the jurisdiction as to a particular judgment of the court in such cases may be determined, among other things says:

"When the jury have rendered their verdict, the court has to pronounce the proper judgment upon such verdict, and the law, in prescribing the punishment, either as to the extent or the mode or the place of it, should be followed. If the court is authorized to impose imprisonment, and it exceeds the time prescribed by law, the judgment is void for the excess. * * A question of some difficulty arises, which has been disposed of in different ways, and that is as to the validity of a judgment which exceeds in its extent the duration of time prescribed by law. With many courts and re-judges - perhaps with the majority-such judg

ment is considered valid to the extent to which

the law allowed it to be entered, and only void for the excess. Following out this argument, it is further claimed that, therefore, the writ of habeas corpus cannot be invoked for the relief of a party until the time has expired to which the judgment should have been limited."

It is true the question here was not directly made in that case. As Mr. Justice Field says, it was only one of speculative interest, for there was no excess of punishment in the sentence in that case. Still the intimation as to the weight of the

authorities, as well as the reasoning of the court. point strongly in the direction of holding the rule to be that a sentence is valid to the extent that it is authorized by law, and void only as to the excess. The question was under consideration in U. S. v. Pridgeon (153 U. S. 48, 14 Sup. Ct. 746. 28 L. Ed. 631). The opinion is by Mr. Justice Jackson, and he says:

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Without undertaking to review the authorities

in this and other courts, we think the principle is

established that, where a court has jurisdiction of the person and of the offense, the imposing of a sentence in excess of what the law permits does

not render the legal or authorized portion of the sentence void, but only leaves such portion of the sentence as may be in excess open to question and attack. In other words, the sound rule is that a sentence is legal so far as it is within the provisions of law and the jurisdiction of the court over person and offense, and only void as to the excess when such excess is separable, and may be dealt with without disturbing the valid portion of the sentence. * Under a writ of habeas corpus the inquiry is addressed, not to errors, but to the question whether the proceedings and the judgment rendered therein are, for any reason, nullities, and, unless it is affirmatively shown that the judgment or sentence under which the petitioner is confined is void, he is not entitled to his discharge. It may often occur that the sentence imposed may be valid in part and void in part, but the void portion of the judgment or sentence should not necessarily, or generally, vitiate the valid portion (Rev. St., sec. 761): The court, or justice, or judge shall proceed in a summary way to determine the facts of the case [in habeas corpus] by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require.' There is no law or justice in giving to a prisoner relief under habeas corpus that is equivalent to an acquittal, when, upon writ of error, he could only have secured relief from that portion of the sentence which was void. In the present case the five-year term of imprisonment, to which Pridgeon was sentenced, cannot properly be held void because of the additional imposition of 'hard labor' during his confinement. Thus, In re Swan (150 U. S. 637, 653, 14 Sup. Ct. 230, 37 L. Ed. 1211), it is stated that, even if it was not within the power of the court to require payment of costs, and its judgment to that extent exceeded its authority, yet he cannot be discharged on habeas corpus until he has performed so much of the judgment, or served out so much of the sentence, as it was within the power of the court to impose."

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Under a writ of habeas corpus the inquiry is, does the judgment exceed the authority of the court and is the prisoner serving under a sentence beyond the power of the court to impose?

It is true that the cases wherein the writ has been denied because a part only of the sentence was within the power of the court to impose, have generally been those in which the judgment was of a clearly separable nature, as for costs and imprisonment, where there was power only to impose the one or the other. We see no reason why the rule should be limited to such cases, and think the true principle to be that, before a prisoner can be discharged upon habeas corpus, it must appear that he is serving by virtue of a judgment which the court had no power to impose. As long as he is serving an imprisonment within the limits of a

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A decree of divorce rendered by the courts of an

other State against a defendant residing here, without personal service or personal appearance on his part, is invalid as against him. But where, in a proceeding subsequently commenced to amend the decree by inserting a provision for alimony, which was claimed to have been inadvertently omitted, the defendant voluntarily appeared by counsel to oppose the amendment, which was allowed, and personal judgment for alimony was rendered against him, such judgment is valid as against the defendant, and an action thereupon may be maintained in the courts of this State.

In

an action to recover upon a final decree of another State, which was rendered with jurisdiction over the person of the defendant, the decree is to be deemed conclusive in so far as it adjudged the defendant to be indebted to the plaintiff in a sum fixed at the date of its rendition.

The provisions of the foreign judgment, however,

providing for the payment of alimony in the future, which, under the laws of the foreign State might be changed according to the varying conditions and circumstances of the defendant, cannot be enforced here. Neither can its provisions directing the appointment of a receiver of the defendant's property and for an injunction.

A demand for alimony in a divorce suit is not an essential part of the cause of action; but is merely incidental to the action and the judgment, and this court will assume that the order amending the original decree by allowing alimony was in accordance with the law of the foreign State.

Appeal from a judgment of the Appellate Division, Second Department, modifying, and as modified affirming, a judgment of the Special Term.

This action was brought upon a final decree of the Court of Chancery of the State of New Jersey, which, as the result of proceedings to recover alimoney, adjudged that the plaintiff is entitled to recover of the defendant the sum of $7,840, and a counsel fee of $1,000; that the defendant pay to

her permanent alimony at the rate of $80 a week from the date of the decree and that he give secu rity for the payment of the several sums directed by the decree to be paid, and, further provided, upon his failure to comply with the decree, that application might be made for sequestration proceedings, for a receivership and for an injunction. The complaint, also, asked to have enforced an order, made subsequently to the final decree, which appointed a receiver and enjoined the defendant from disposing of his property, etc.

The plaintiff and the defendant were married in the State of New Jersey in 1884, and were domiciled there. In 1892 the plaintiff filed her petition in chancery in that State, which alleged, among other things, desertion by her husband and cruel treatment, and prayed that she might be divorced from him and that reasonable alimony might be decreed to be paid to her. The defendant was not served personally, but by publication of process, and did not appear in the action nor answer the petition. Thereafter such proceedings were had in the case that, in 1893, a final decree was made, divorcing the petitioner from the defendant upon the ground of his wilful and continued desertion, but containing no provision with respect to alimony. In 1896 the plaintiff filed a petition, upon affidavits, for the amendment of the decree of divorce, so as to provide for an award of alimony. The grounds of the application were that, though her petition in the divorce proceedings prayed for alimony, through the inadvertence or neglect of her solicitor, the decree was entered without making provision adjudging the payment of alimony, or reserving the consideration thereof for hearing upon a future application. An order was granted by the chancellor, directing the defendant to show cause why the petition should not be granted; which, with the moving papers, was personally served upon the defendant in this State. The defendant appeared in opposition to the application, by J. Herbert Potts, as his solicitor, and without any reservation upon the record as to the appearance. He filed an affidavit, in which he alleged that his residence was in the State of New York; that he "was, by the decree of this court, divorced from the said petitioner from the bond of matrimony, upon her petition, on August 7, 1893, and that since that time he has been married again to another woman, with whom he is now living," etc.; that "the decree for divorce was purposely drawn without providing for, or reserving any alimony," etc.; that he was "financially unable to pay alimony" and "that he is advised by counsel and believes that the said decree having been made without reserving the question of alimony, and this defendant having been absolutely divorced from the said petitioner by said decree, and having since formed new relations and matrimonial obligations, that it would be illegal, inequitable and unjust to now impose upon him the burden of ali

mony, so long after the granting of said absolute decree dissolving his first matrimonial relations absolutely without terms."

After testimony had been taken, pursuant to an order of the chancellor, during the course of which Mr. Potts appeared as defendant's solicitor, and after argument upon the same by the solicitor for the petitioner and the solicitor for the defendant, the chancellor ordered that the decree of divorce theretofore made should be amended by inserting therein that "it is further ordered, adjudged and decreed that the petitioner, Mary W. Lynde, shall have the right to apply to this court at any time hereafter, at the foot of this decree, for reasonable alimony and such other relief in the premises touching alimony as may be equitable and just, and this court reserves the power to make such order or decree as may be necessary to allow and compel the payment of alimony to petitioner by defendant, or to refuse to allow alimony." It appears in the opinion of the chancellor, which is made a part of the record (54 N. J. Eq. 473), that he was satisfied that the omission of the decree to reserve the question as to alimony was due to the inadvertence of the petitioner's counsel, and that, under the rule recognized by the court, it will "amend its enrolled decree when the amendment is necessary to give full expression to its judgment." From the order amending the decree of divorce the defendant appealed to the Court of Errors and Appeals, where the order was affirmed. Thereupon, after reciting the various proceedings relating to the amendment of the decree of divorce, an order of reference was made as to whether alimony should be allowed to the petitioner, and, if so, how much. This order was entered after service of a notice upon the defendant's solicitor and the reference was proceeded with after personal service upon the defendant of a summons to attend. Neither the defendant nor his solicitor appeared upon the reference, although duly notified, and such proceedings were had that the final decree herein sued upon was made, on December 28, 1897, by the chancellor; which, after reciting the proceedings had and the report of the master to whom it had been referred to report as to alimony, and "adjudging that a money judgment should be rendered against the defendant," adjudged and decreed as first hereinabove briefly described. Thereafter, upon proof of the failure of the defendant to comply with the final decree, an order dated February 8, 1898 (referred to in the complaint as of "24th day of March, 1898 "), was made appointing a receiver of the defendant's property in New Jersey and directing the issuance of an injunction, etc. The receiver was unable to obtain possession of any of the defendant's property in New Jersey and the defendant did not comply with the decree in any respect.

The trial court decided that the plaintiff was entitled to judgment against the defendant enforcing

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