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The Albany Law Journal.

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 A Weekly Record of the Law and the Lawyers. Published by may be written on many detached or separate fax ALBANY LAW JOURNAL COMPANY, Albany, N. Y.

Contributions, items of news about courte, judges and lawyers' pieces; that no statute provides how such pieces queries or comments, criticisms on various law questions, shall be attached or how separate sheets shall be addresses on legal topics, or discussions on questions of timely interest are solicited from members of the bar and those inter- authenticated. We are asked if, in such a case, ested in legal proceedings.

after the execution of a will the sheets or pieces of

paper should be folded together in the wrong (All communications intended for the Editor shonld be ad.

order, and the sheet last in fact and bearing the dressed simply to the Editor of The ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other signatures of the testator and witnesses is by misbusiness matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.)

take found out of place, whether the will is to be

rejected. It is not necessary for us to be able to Subscription price, Five Dollars per annum in advance. Single answer this inquiry. Many cases have occurred to Qumber Twonty-Five Conta.

us in which it would seem difficult to apply the

physical end of the will” rule. We have frankly ALBANY, APRIL 28, 1900.

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 Current Topics.

law of this State, and we must apply it to cases that

fairly fall within its limits, though there may be It is provided by statute in this State that imagined others to which it could not apply. every last will and testament of real or per- The case went to the Court of Appeals, sonal property “shall be subscribed by the where Justice Cullen's opinion was affirmed. testator at the end of the will." In the re- While fully recognizing the importance of cent case of Andrews (43 App. Div. 394, and strict construction with reference to last wills 162 New York, 1) the question, What is the and testaments, and appreciating, therefore, end of a will? arose, and, strange to say, it the point of view of the Court of Appeals, it proved a very perplexing one both to the seems to us unfortunate as well as unjust lawyers and judges. In this case the testa- that the will under consideration should have trix wrote the will on three sides of a folded been refused probate. As a writer in the paper, commencing on the first page and Harvard Law Review has pointed out, the continuing on the third page, at the top of intention of the testator was plain, and bewhich was written “second page,” and com- yond question the signature was at the end pleting and signing the instrument on a page of the will, in point of time, although not at marked "third page,” which in fact was the the physical end; and where, as in this case, second page of the sheet. It was held, Mr. the testatrix specially numbered the pages, it Justice Cullen writing the opinion, that the would seem that the only proper end of the will was not signed at the end, within the instrument was the end so designated by her. meaning of the statute, and accordingly pro- The senseless custom or "fad” of continubate was refused. Justice Cullen said:

ing from the first page to what used to be It is said that if the second leaf be severed from considered the third page, which has sprung the first, and attached to the foot of the first page, up within recent years, is responsible for all then the will will appear well executed under any the trouble in the present case, and while we of the authorities. We concede this claim; but the

are inclined to regard the decision here as answer to it is that in the instrument as offered the connection between the two leaves is at the

too narrow, if it shall have an important inside and not at the foot. It is further said that, Auence in stopping the objectionable method ganting the sufficiency of our answer to the appel- of writing now referred to, the decision will lant's argument in this respect, it is unreasonable not have been wholly without salutary effect. 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 legal status of the automobile is in the rule that the signature must be found at “the process of settlement. Not long ago it was physical end of the will; ” but that rule is the law I seriously contended, as in the case of the

VOL. 61'- No. 17.

“ The

bicycle, when it first made its appearance, nosed all over the machine, and at last, apparently that the automobile had no rights that own

satisfied, gave a sigh of relief. The bicycle was ers of horses were bound to respect, and that wheeled in front of him for a minute or two and

then mounted and ridden past him without excitthey should be and would be relegated to

ing any alarm. We have seen horses broken to the no one knew where. We observe that Judge opening and closing of umbrellas in the same way. Sutherland, of the Monroe County (N. Y.) The trainer, if not the owner, of a horse is to Court, has just handed down a decision to

blame when an animal takes fright at every unacthe 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 cles have a right to travel on the public high- if any one is to be held responsible in such a case ways, and cannot be held responsible for it is the owner of the horse. damages due to the running away of horses

Should an appeal be taken in the case just passed frightened by such vehicles, except in cases

upon by Judge Sutherland it would be surprising if

his decision should not be sustained. It is founded where negligence can be shown.

in common sense, and only through such an interhorse," says Judge Sutherland, “has no par- pretation of the law could any progress in the amount or exclusive right to the road, and means of travel on the highway be made. the mere fact that a horse takes fright at some vehicle run by new and improved methods, and smashes things, does not give

The editor of the Birmingham Daily the injured party a cause of action.” Judge Argus, a Mr. Gray, was recently fined £ 100 Sutherland also showed that horses may take and £25 costs for scandalously attacking in fright at conveyances that have become ob- his columns Mr. Justice Darling. The solete as well as at those which are novel. I judge, it appears, had aroused the unanimous instancing the possible effect of the appear- opposition of the press in Birmingham by ance of a four-ox team drawing a prairie threatening its members with the penalties schooner on the streets of any of our cities. they would incur if they committed the Of course, no one would think of calling the offense of publishing obscene reports of a driver of such a conveyance to account in trial, but Mr. Gray was the only editor who case some horse took it into his foolish head descended to such personal abuse of Mr. Justo get frightened at the canvas-covered relic tice Darling as to seem to call for punishof bygone days. Discussing the decision, ment. The London Law Journal does not rewhich it regards as eminently sound and just, gard the fine as a severe punishment for the the Rochester Democrat and Chronicle says: Offense, but rather intimates that but for the

candor and promptness with which the deThe truth is, ignoring for the moment the right fendant accepted the responsibility for the to introduce improvements in locomotion upon attack and the complete apology offered by our highways, horses which have been properly trained and which have had an opportunity to be him, it would have entailed upon him impriscome acquainted, through the thoughtfulness and onment for no inconsiderable period. The care of their owners, with the sights and sounds Journal goes on to say: The relations bethey are likely to encounter upon the public high-tween the bench and the press in this counways of our day, will not become frightened and run away when they meet such objects as an auto- try are, happily, so satisfactory that the legal mobile on the road. A few years ago, when the limits of newspaper reports of judicial proold high bicycle was first introduced in this city. ceedings and criticisms on judges rarely need a spirited horse driven by an intelligent young to be defined. But they are not at all obcolored man showed signs of uneasiness at the approach of one of those wheels. The rider dis

scure. Every impartial and accurate report mounted and the driver hailed him with: "Say, of any proceeding in a court of law is privmister, will you bring that thing carefully up here | ileged. But to this rule there is the excepand let my horse smell of it?” The request was tion that the publication of even a fair and complied with. The approach was cautious and

accurate report of an obscene or blasphenot without manifest uneasiness on the part of the animal, but at last the wheel was close enough for

mous libel, or of evidence otherwise unfit for the horse to touch it with his nose. Then the publication, is punishable as a criminal libel. process of becoming acquainted began. The horse . The law as regards newspaper criticism is equally plain. The proprietor or editor of and compel the abandonment of a system a paper has the same liberty of comment as of election which by its results has become is enjoyed by any other subject of the queen, highly obnoxious to the people.” and no more.

He may criticise judges and their decisions and obiter dicta freely so long

Notes of Cases. as he neither says anything of a character calculated to interfere with the administra

Excessive Sentence. - In De Bara v. United tion of justice or makes a scandalous attack States, decided by the U. S. Circuit Court of Apon a judge as judge. In either of these cases peals, Sixth Circuit, in February, 1900, it was held he is guilty of contempt of court; and, as the that prior to the expiration of that part of a term

of imprisonment that a court could legally imprivy council had occasion to point out last

pose, a prisoner will not be discharged on habeas year in M’Leod v. St. Aubyn, aspersions on

corpus on the ground that the court had imposed the judicial office through the person of an an excessive sentence. The court said in part: individual judge do not cease to be con

In the case of In re Bonner (151 U. S. 258, 14 tempt because they are made without refer- Sup. Ct. 326, 38 L. Ed. 152), in the course of a

careful and full discussion of the rules applicable ence to any pending proceedings."

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 The house of representatives has again judgment of the court in such cases may be deterpassed a proposed amendment to the Federal mined, among other things says: Constitution requiring the election of United

“When the jury have rendered their verdict, the

court has to pronounce the proper judgment upon States senators by direct vote of the people. such verdict, and the law, in prescribing the punThe resolution referred to, which

was ishment, either as to the extent or the mode or the adopted by a vote of 240 to 15, takes the elec- place of it, should be followed. If the court is tion of senators away from the legislature in authorized to impose imprisonment, and it exceeds all cases, and directs that the people shall the time prescribed by law, the judgment is void

for the excess.

A question of some diffivote for United States senator. It is well to culty arises, which has been disposed of in differrecall the fact at this time that no less than ent ways, and that is as to the validity of a judgthirty-four States' legislatures have asked ment which exceeds in its extent the duration of Congress to propose and submit to the time prescribed by law. With many courts and people such an amendment, and that in re-judges - perhaps with the majority — such judg

ment is considered valid to the extent to which sponse to this demand that the lower branch the law allowed it to be entered, and only void for of Congress has repeatedly done so, only to the excess. Following out this argument, it is have the matter "held up” in the senate. further claimed that, therefore, the writ of habeas That body is composed of members who owe

corpus cannot be invoked for the relief of a party

until the time has expired to which the judgment their seats to the present system and who are

should have been limited." by no means sure of their ability to hold them

It is true the question here was not directly under a system of popular election. Recent made in that case. As Mr. Tustice Field says, it revelations in the Clark case have tended to was only one of speculative interest, for there was emphasize the popular distrust of the senate

no excess of punishment in the sentence in that

Still the intimation as to the weight of the and to render the people more determined authorities, as well as the reasoning of the court. than ever to wipe out the crying evil of point strongly in the direction of holding the rule gubernatorial appointments, after caballing to be that a sentence is valid to the extent that it with factions in the legislature to prevent is authorized by law, and void only as to the exelections. We entirely agree with the Phila

The question was under consideration in

U. S. v. Pridgeon (153 U. S. 48, 14 Sup. Ct. 746, delphia Times when it says: “ The feeling 78 L. Ed. 621). The opinion is by Mr. Justice against the abuses of the present system is Jackson, and he says: strong and growing stronger, and if the sen- ' Without undertaking to review the authorities ate is too reckless of public opinion the de

in this and other courts, we think the principle is

established that, where a court has jurisdiction of mand for a change will become so imperative the person and of the offense. the imposing of a as to reach through legislatures to the senate : sentence in excess of what the law permits does






not render the legal or authorized portion of the term which the court might lawfully impose, acting sentence void, but only leaves such portion of the within its power and jurisdiction, he cannot be sentence as may be in excess open to question and discharged on habeas corpus, no matter how irattack. In other words, the sound rule is that a regular or erroneous the judgment may be. sentence is legal so far as it is within the provisions of law and the jurisdiction of the court

FOREIGN JUDGMENT. over person and offense, and only void as to the excess when such excess is separable, and may be

DIVORCE ALIMONY. dealt with without disturbing the valid portion of the sentence. Under a writ of habeas

NEW YORK COURT OF APPEALS. corpus the inquiry is addressed, not to errors, but to the question whether the proceedings and the

Decided April 6, 1900. judgment rendered therein are, for any reason, MARY W. LYNDE, Respondent and Appellant, nullities, and, unless it is affirmatively shown that CHARLES W. LYNDE, Appellant and Respondent. the judgment or sentence under which the peti- | A decree of divorce rendered by the courts of antioner is confined is void, he is not entitled to his

other State against a defendant residing here, discharge. It may often occur that the sentence

without personal service or personal appearimposed may be valid in part and void in part, but

ance on his part, is invalid as against him. the void portion of the judgment or sentence

But where, in a proceeding subsequently co should not necessarily, or generally, vitiate the

menced to amend the decree by inserting a valid portion (Rev. St., sec. 761): "The court, or

provision for alimony, which was claimed to justice, or judge shall proceed in a summary way have been inadvertently omitted, the defendto determine the facts of the case [in habeas cor

ant voluntarily appeared by counsel to oppose pus] by hearing the testimony and arguments, and

the amendment, which was allowed, and perthereupon to dispose of the party as law and justice

sonal judgment for alimony was rendered requirc.' There is no law or justice in giving to a

against him, such judgment is valid as against prisoner relief under habeas corpus that is equiv

the defendant, and an action thereupon may be alent to an acquittal, when, upon writ of error, he

maintained in the courts of this State. could only have secured relief from that portion of In an action to recover upon a final decree of anthe sentence which was void. In the present case

other State, which was rendered with jurisdicthe five-year term of imprisonment, to which

tion over the person of the defendant, the Pridgeon was sentenced, cannot properly be held

decree is to be deemed conclusive in so far void because of the additional imposition of 'hard

as it adjudged the defendant to be indebted to labor' during his confinement. Thus, In re Swan

the plaintiff in a sum fixed at the date of its (150 U. S. 637, 653, 14 Sup. Ct. 230, 37 L. Ed.

rendition. 1211), it is stated that, “even if it was not within

The provisions of the foreign judgment, however, the power of the court to require payment of costs,

providing for the payment of alimony in the and its judgment to that extent exceeded its au

future, which, under the laws of the foreign thority, yet he cannot be discharged on habeas

State might be changed according to the varycorpus until he has performed so much of the

ing conditions and circumstances of the dejudgment, or served out so much of the sentence,

fendant, cannot be enforced here. Neither as it was within the power of the court to im

can its provisions directing the appointment pose.'

of a receiver of the defendant's property and Under a writ of habeas corpus the inquiry is, does

for an injunction. the judgment exceed the authority of the court

A demand for alimony in a divorce suit is not an and is the prisoner serving under a sentence be

essential part of the cause of action; but is yond the power of the court to impose?

merely incidental to the action and the judge It is true that the cases wherein the writ has

ment, and this court will assume that the order been denied because a part only of the sentence amending the original decree by allowing was within the power of the court to impose, have alimony was in accordance with the law of the generally been those in which the judgment was foreign State. of a clearly separable nature, as for costs and im- Appeal from a judgment of the Appellate Diviprisonment, where there was power only to im- sion, Second Department, modifying, and as modipose the one or the other. We see no reason why fied affirming, a judgment of the Special Term. the rule should be limited to such cases, and think

This action was brought upon a final decree of the true principle to be that, before a prisoner can

the Court of Chancery of the State of New Jersey, be discharged upon habeas corpus, it must appear which, as the result of proceedings to recover alithat he is serving by virtue of a judgment which money, adjudged that the plaintiff is entitled to the court had no power to impose. As long as he recover of the defendant the sum of $7,840, and a is serving an imprisonment within the limits of a counsel fee of $1,000; that the defendant pay to her permanent alimony at the rate of $80 a week mony, so long after the granting of said absolute from the date of the decree and that he give secu- decree dissolving his first matrimonial relations rity for the payment of the several sums directed absolutely without terms." by the decree to be paid, and, further provided, After testimony had been taken, pursuant to an upon his failure to comply with the decree, that order of the chancellor, during the course of which application might be made for sequestration pro- Mr. Potts appeared as defendant's solicitor, and ceedings, for a receivership and for an injunction. after argument upon the same by the solicitor for The complaint, also, asked to have enforced an the petitioner and the solicitor for the defendant, order, made subsequently to the final decree, the chancellor ordered that the decree of divorce which appointed a receiver and enjoined the de- theretofore made should be amended by inserting fendant from disposing of his property, etc. therein that “it is further ordered, adjudged and

The plaintiff and the defendant were married in decreed that the petitioner, Mary W. Lynde, shall the State of New Jersey in 1884, and were domi- have the right to apply to this court at any time ciled there. In 1892 the plaintiff filed her petition hereafter, at the foot of this decree, for reasonable in chancery in that State, which alleged, among alimony and such other relief in the premises other things, desertion by her husband and cruel touching alimony as may be equitable and just, treatment, and prayed that she might be divorced and this court reserves the power to make such from him and that reasonable alimony might be order or decree as may be necessary to allow and decreed to be paid to her. The defendant was not compel the payment of alimony to petitioner by served personally, but by publication of process, defendant, or to refuse to allow alimony.” It apand did not appear in the action nor answer the pears in the opinion of the chancellor, which is petition. Thereafter such proceedings were had made a part of the record (54 N. J. Eq. 473), that in the case that, in 1893, a final decree was made, he was satisfied that the omission of the decree to divorcing the petitioner from the defendant upon reserve the question as to alimony was due to the the ground of his wilful and continued desertion, inadvertence of the petitioner's counsel, and that, but containing no provision with respect to ali

under the rule recognized by the court, it will mony. In 1896 the plaintiff filed a petition, upon "amend its enrolled decree when the amendment affidavits, for the amendment of the decree of di- is necessary to give full expression to its judgvorce, so as to provide for an award of alimony. ment.” From the order amending the decree of The grounds of the application were that, though divorce the defendant appealed to the Court of her petition in the divorce proceedings prayed for Errors and Appeals, where the order was affirmed. alimony, through the inadvertence or neglect of Thereupon, after reciting the various proceedings her solicitor, the decree was entered without mak- relating to the amendment of the decree of diing provision adjudging the payment of alimony, vorce, an order of reference was made as to or reserving the consideration thereof for hearing whether alimony should be allowed to the petiupon a future application. An order was granted tioner, and, if so, how much. This order was by the chancellor, directing the defendant to show entered after service of a notice upon the defendcause why the petition should not be granted; ant's solicitor and the reference was proceeded which, with the moving papers, was personally with after personal service upon the defendant of served upon the defendant in this State. The de- a summons to attend. Neither the defendant nor fendant appeared in opposition to the application, his solicitor appeared upon the reference, although by J. Herbert Potts, as his solicitor, and without duly notified, and such proceedings were had that any reservation upon the record as to the appear- the final decree herein sued upon was made, on

He filed an affidavit, in which he alleged December 28, 1897, by the chancellor; which, after that his residence was in the State of New York; reciting the proceedings had and the report of the that he “was, by the decree of this court, divorced master to whom it had been referred to report as from the said petitioner from the bond of matri- to alimony, and “adjudging that a money judgmony, upon her petition, on August 7, 1893, and ment should be rendered against the defendant," that since that time he has been married again to adjudged and decreed as first hereinabove briefly another woman, with whom he is now living," described. Thereafter, upon proof of the failure of etc.; that "the decree for divorce was purposely the defendant to comply with the final decree, an drawn without providing for, or reserving any ali- order dated February 8, 1898 (referred to in the mony,” etc.; that he was “financially unable to complaint as of “ 24th day of March, 1898 "), was pay alimony” and “that he is advised by counsel made appointing a receiver of the defendant's and believes that the said decree having been property in New Jersey and directing the issuance made without reserving the question of alimony, of an injunction, etc. The receiver was unable to and this defendant having been absolutely divorced obtain possession of any of the defendant's propfrom the said petitioner by said decree, and having erty in New Jersey and the defendant did not comsince formed new relations and matrimonial obli- ply with the decree in any respect. gations, that it would be illegal, inequitable and The trial court decided that the plaintiff was enunjust to now impose upon him the burden of ali- | titled to judgment against the defendant enforcing


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