The Project Gutenberg EBook of The New Jersey Law Journal, Volume XLV, No.
2, February, 1922, by Various
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Title: The New Jersey Law Journal, Volume XLV, No. 2, February, 1922
Author: Various
Editor: A. Van Doren Honeyman
Release Date: September 20, 2019 [EBook #59877]
Language: English
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_THE
NEW JERSEY LAW JOURNAL
PUBLISHED MONTHLY_
VOLUME XLV FEBRUARY, 1922 No. 2
_SOME REMINISCENCES, MOSTLY LEGAL_
_BY HON. FREDERIC ADAMS, LOS ANGELES, CAL._
IV. CERTAIN COURTS AND LAWYERS.
Ever since my boyhood the drama of the courtroom has interested me more
than the drama of the theatre. I well remember my introduction to
litigated business. I was a youngster on a visit to Boston when some one
took me to a Court where a patent case was on trial. I was duly
impressed by the imposing personality of the Judge, but my attention was
soon fixed by the witness on the stand, whom I happened to know, for my
father had once introduced me to him. He was Professor James Jay Mapes,
of Newark, New Jersey, a chemist and inventor, one of whose many
activities was the manufacture of fertilizers. I had visited one of his
factories, somewhere between Newark and Elizabeth, and was surprised to
see him at Boston in the rôle of a mechanical expert in a patent case.
As the examination carefully proceeded I concluded, with the rashness of
inexperience, that the examiner was a very dull man, for he seemed so
slow to get an idea. What I then mistook for dullness I now recognize as
professional skill, employed by counsel to unfold to the Court and jury
the details of a complex mechanism. I know now more about that case than
I did then, for, rather to my surprise, I have recently found a report
of it in the first volume of Fisher's "Patent Cases," at page 108. The
time was August, 1851, when I was not quite eleven years old. The
courtroom was that of the Circuit Court of the United States for the
First Circuit. Samuel Colt was plaintiff. The Massachusetts Arms Company
was defendant. The counsel for the plaintiff were E. N. Dickerson, C. L.
Woodbury and G. T. Curtis, and for the defendant R. A. Chapman, G.
Ashmun and Rufus Choate, and the Judge was Mr. Justice Levi Woodbury of
the Supreme Court of the United States, who was then testing the
validity of the patent for the Colt revolver. The charge is reported in
full. The verdict was for the plaintiff.
Judge Woodbury was a New Hampshire man of some note, then in his
sixty-second year, called by Thomas H. Benton "the rock of the New
England Democracy," who had been Senator of the United States from New
Hampshire, and a member of the Cabinets of Jackson and Van Buren, and,
on the nomination of President Polk, had succeeded Judge Story as a
member of the Supreme Court of the United States. The trial of the case
in which I saw him was one of his last official duties, for he died in
the following month. He was succeeded by Benjamin R. Curtis, of Boston,
on the nomination of President Fillmore.
While I was at the Harvard Law School in 1863-4, Richard H. Dana was
United States District Attorney at Boston, and I often saw him at
Cambridge, where he lived. His book, "Two Years Before the Mast," was
and is a favorite of mine. I suppose that I have read it twenty times,
and I hope that the boys of this day read and love it. It is in a class
by itself. There is, I think, not in English, and probably not in any
language, another account of seafaring life written in the forecastle by
one of the crew, who was also a gentleman and a scholar and master of a
charming style. The veracity and spirit of the narrative have made it a
classic both here and in England. In California it is particularly
valued, for Dana was one of the pioneers and had sailed through the
Golden Gate on the "Alert" in the winter of 1835-6, many years before
the Mexican War and the discovery of gold, when San Francisco as yet was
not. When, at the end of the visit, the good ship floated out on the
tide, herds of deer came down to the northerly shore to watch the
unusual sight. Dana left college and went on this voyage to cure an
affection of the eyes. After his return he graduated at Harvard in the
class of 1837 and became a lawyer.
Mr. Dana was qualified by nature and training to become a leading figure
in the public life of this country, and his ambition was that way, but
the cards ran against him. As Goldsmith said of Burke, he was "too nice
for a statesman, too proud for a wit," high-strung and sensitive as a
race-horse, well bred and distinguished in bearing, a clear, graceful
and forcible speaker, an admirable advocate, and an accomplished jurist.
One of his greatest professional efforts and triumphs was his argument
before the Supreme Court of the United States in the Consolidated Prize
Cases, when he had to make it clear to the Court how it was that the
stupendous struggle in which the country was engaged could be a-war with
belligerent rights as between ourselves and other nations, and a local
insurrection as between ourselves and the South.
It may be remembered that, at the centennial anniversary of the battle
of Lexington, Mr. Dana delivered the oration. It begins with the words,
"How mysterious is the touch of fate which gives immortality to a spot
of earth, to a name." It is a noble commemorative address. Concord has
always plumed itself because it had a real fight, while the Lexington
men only stood up to be shot at and did not damage the English. As the
anniversaries were approaching and good-natured rivalry was in the air,
Concord issued a prospectus of some kind, which did not suit Mr. Dana's
fastidious taste, and he said to Judge Hoar, of Concord: "How is it,
Judge, that you folks at Concord have sent out such a shabby,
badly-written paper? It is positively ungrammatical." "O," said the
Judge, "you know, Dana, at Concord we always did murder the King's
English."
While Mr. Dana was United States District Attorney he tried the last
slave-trading case. The vessel was the "Margaret Scott," which was
fitted out, I think, at New Bedford, but did not actually embark on the
voyage. The trial was before Mr. Justice Nathan Clifford, of the Supreme
Court of the United States. I heard Mr. Dana's summing up and the charge
to the jury. Judge Clifford was a tall man of great girth. He stood
throughout his admirable charge, which took him an hour to deliver.
After about half an hour he told the jury that they might be seated.
Governor Hoadley, of Ohio, who was a friend of Judge Swayne of the
United States Supreme Court, once told me this story, which he got from
Judge Swayne. Judge Grier, when on the Bench sat next to Judge Swayne
and, during the latter part of his service, was crippled and dozed a
good deal, and sometimes used to annoy Judge Swayne by speaking to him
in a stage whisper. A prize case was on trial and there was discussion
about belligerent rights, which one of the counsel pronounced
belli_ge_rent. The novelty of the pronunciation roused Judge Grier, who
said to Judge Swayne quite audibly: "Brother Swayne, Brother Swayne,
Judge Clifford is the belli_ge_rent member of this Court."
In 1868, while at Boston, I heard part of the argument in the remarkable
case of Hetty H. Robinson v. Thomas Mandell, Executor and others. The
case was tried before Judge Clifford in the Circuit Court of the United
States. Sidney Bartlett and Benjamin R. Curtis (who was then an ex-Judge
of the Supreme Court of the United States), were leading counsel for the
complainant, and Benjamin F. Thomas, an ex-Judge of the Supreme Court of
Massachusetts, was leading counsel for the respondents. The complainant,
who is better known to us by her married name of Hetty Green, had filed
her bill setting up a special contract between herself and her aunt,
Sylvia Ann Howland, for an exchange of mutual wills, and that neither
should make any other will without notice to the other and a return of
the other's will. Miss Howland had died, leaving a will not in favor of
Hetty, but largely to charity. The respondent, Mandell, was her
executor. The case is reported in 3 Clifford's Circuit Court Reports,
page 169. Judgment was for the respondents, Judge Clifford saying, in
his decision: "In this case there was no competent evidence to show that
there was any agreement as to the making of mutual wills, and there was
nothing on the face of the instruments to warrant any such conclusion."
Mrs. Green, whom I saw for the first time, was in Court with her
husband, a large, dressy man, looking like an English guardsman. Much
testimony had been taken. There was a question of forgery, and enlarged
photographs of signatures were standing about. Judge Curtis spoke for
two days, one day on the facts and one day on the law, a length unusual
for him, for he was generally brief. I heard Mr. Bartlett's opening and
part of Judge Curtis's discussion of the facts. Mr. Bartlett was a great
lawyer, but not, I should say, a very good speaker. His reputation was
for condensation and concentration; for making a direct thrust at the
central point, with small regard for introductory and collateral
matters. Someone, I think a Judge of the Massachusetts Supreme Court,
said that Mr. Bartlett's mental operations on matters of law bore about
the same relation to those of the average lawyer that a book of
logarithms does to a common school arithmetic. He continued in active
practice until about the age of ninety, made a large fortune, and was
famous for his high charges. He was no recluse, but a club man and
citizen of the world.
This was not the first time that I heard Judge Curtis. To follow any
argument of his was an ever fresh delight. I remember as though it were
yesterday the neatness and felicity with which, in the case just
mentioned, he dismissed one of several propositions submitted by his
adversary, saying, with his usual dignity and composure: "I now come to
another of this series, I believe it is the ninth. Like all of them, it
is not pleaded; like most of them, it is not proved; and, like each and
all of them, it would be totally immaterial if it were both pleaded and
proved." And then, in his last sentence, with exquisite tact, he lightly
touched a certain string: "On one side of this case stands the
complainant, with a large fortune; on the other side is a charity; but
this Court observes the divine injunction, 'Thou shalt not respect the
person of the poor, nor honor the person of the mighty, but in
righteousness shalt thou judge thy neighbor!'"
My friend, Mr. Frank E. Bradner, of the Essex Bar, has referred me to
some lines in "The Professor At The Breakfast Table" which speak of
Judge Curtis, who was a classmate of Dr. Holmes:
"There's a boy--we pretend--with a three-decker brain,
That could harness a team with a logical chain;
When he spoke for our manhood in syllabled fire,
We called him 'The Justice,' but now he's 'The Squire'."
He who runs may read. The class of '29 had its twenty-five years
meeting, always a great event, in 1854. Judge Curtis was then on the
Bench and it was probably then that he spoke for the manhood of the
class. He resigned his office in September, 1857, and became a "Squire."
Judge Curtis was a master of the difficult art of Nisi Prius duty. No
one could be more courteous, patient and impartial, better equipped with
law, more accurate as to fact, or clearer in his rulings and
instructions. Any Judge who has spent several of the best years of his
life in learning how easy it is to try badly a case with a jury and how
hard it is to do it well, will be interested to read the passage which I
quote from a private letter written by Judge Curtis to Mr. Webster after
he had been on the Bench for about a month:
"I presume you will agree with me that there is no field for a lawyer
which, for breadth and compass and the requisitions made on all the
faculties, can compare with a trial by jury; and I believe it is as true
of a Judge as of a lawyer that, in the actual application of the law to
the business of men, mingled as it is with all passions and motives and
diversities of mind, temper and condition, in the course of a trial by
jury what is most excellent in him comes out and finds its fitting work,
and whatever faults or weaknesses he has are sensibly felt."
The great event of his judicial career was his dissenting opinion in the
case of Dred Scott v. Sandford, (10 Howard 393, Dec. Term, 1856), in
which he asserted the constitutional power of Congress to prohibit
slavery in the territories. This was the doctrine of Webster and Mason
and of the coming Republican party. Mr. Lincoln, in his debate with
Douglas, carried this dissenting opinion with him. There were nine
Judges, each of whom filed an opinion. Five Judges were from slave
States and were probably themselves slave-holders. Chief Justice Taney
wrote an opinion which is called "Opinion of the Court," but may be more
accurately described as the opinion of Chief Justice Taney and Judge
Wayne, for Judge Wayne, who also filed a separate opinion, was the only
one of the six Judges voting with the Chief Justice who concurred in all
his points, reasonings and conclusions. Even at this day one cannot read
without a shudder the Chief Justice's unflinching declaration as to the
helpless and hopeless status of the negro. Judges McLean and Curtis
filed dissenting opinions.
There are complexities in the record which make it difficult for even a
lawyer to determine just how much of the opinions filed by a majority of
the Court is decision and how much is _dictum_. The Chief Justice
withheld from the files the so-called "Opinion of the Court," and made
additions and alterations to the extent of eighteen pages, in evident
answer to the filed dissenting opinion of Judge Curtis, and instructed
the clerk not to furnish a copy of the "Opinion of the Court" to anyone
without the permission of the Chief Justice before it was published in
Howard's "Reports," so that Judge Curtis, on application to the clerk,
was unable to obtain the amplified opinion. There ensued a
correspondence between Judge Curtis and the Chief Justice in which Judge
Curtis kept his temper admirably and the Chief Justice nearly, if not
quite, lost his, and did so, I think, because he felt that he was in the
wrong.
Judge Curtis, by leaving office in 1857, at the age of forty-seven,
surprised his friends and the country. There were two reasons for it.
The state of the Court was such that he did not feel comfortable in it.
This does not refer to his controversy with the Chief Justice, to whose
memory he afterwards paid a cordial tribute. Indeed, it may be doubted
whether he would have felt much more comfortable as a member of the
Court under the reign of Lincoln than he was under the reign of
Buchanan. He was no party man and did not belong in either camp. His
all-sufficient and avowed reason for resigning was that he could not
live on a salary of $8,000, and felt bound to secure for himself and his
family what Burns calls "the glorious privilege of being independent."
This purpose was amply realized. He went at once and inevitably to the
front rank of the American Bar and remained there for seventeen years,
during which time his professional earnings amounted to about $650,000.
This was not in our day of big business, when members of the Bar, who
are great men of affairs, but not necessarily great lawyers, receive, or
are supposed to receive, rich rewards for services in the organization,
manipulation and combination of colossal corporate interests. The annual
income of Judge Curtis was not much over $38,000, but, like Mercutio's
wound, it was enough, it would serve, and it was fairly earned in the
regular practice of his profession, at his office desk, in the trial of
cases, and in writing opinions on important questions submitted to him
from all parts of the country. He stood so high that his written opinion
would often be accepted by both sides of a controversy as the veritable
voice of the Law itself.
I first saw and heard Judge Curtis at New Haven in 1864, in the trial of
a suit in equity brought in the Circuit Court of the United States for
the Second Circuit by the Lowell Manufacturing Company against the
Hartford Carpet Company for an injunction and accounting. Judge Curtis
led for the complainant, and the special interest of the case was that
he had against him an opponent worthy of his steel, a man five years his
senior, of different race, creed, politics and temperament, Charles
O'Conor, the brilliant leader of the Bar of New York. The two men were
evidently no strangers to one another. Judge Curtis had said at a dinner
party that he regarded Mr. O'Conor's management of the Forest Divorce
Case as the most remarkable exhibition of professional skill ever
witnessed in this country. In the case which I heard at New Haven the
associate counsel were able men, Mr. Edwin W. Stoughton for the
complainant and Mr. George Gifford for the respondent, both prominent
patent lawyers of New York. The Judges were Samuel Nelson of the Supreme
Court of the United States and William D. Shipman of the District Court.
It was pleasant, after the crudities of county practice, to see the
mutual courtesy of the two leaders. I happen to remember a few gracious
words of Judge Curtis: "and such rights, as no one knows better than the
admirable lawyer on the other side, do not lie in covenant, but do lie
in grant." The argument was not fully intelligible to me, for it dealt
largely with considerations arising out of written contracts with which
I was not familiar, but it was entertaining and instructive to watch the
two men. There came on each side a grateful gleam of fun. While Mr.
Stoughton was speaking of the terms of a contract, Judge Curtis, who sat
near him, interjected the words: "and no longer." Mr. O'Conor in his
argument laid hold of this and said: "Why, you might as well say, 'as
long as grass grows and water runs,' 'and no longer'." I recall only one
precedent for such an expression. It comes from a land from which we get
very little law, though it has given us some lawyers. It is a verse of
an old Irish song:
"Then Pat was asked would his love last,
And the chancel echoed with laughter, O,
O yes, said Pat, you may well say that,
To the end of the world and after, O."
Mr. Gifford, in his argument, had referred to a certain United States
statute which, as he said, the Supreme Court had found difficulty in
construing. Mr. Curtis, in his closing argument, said: "That statute
reminds me of a story of a learned divine of this State who once
preached a sermon upon a difficult text in one of St. Paul's Epistles,
and said, finally: 'My brethren, I have now given you the results of my
most careful study and reflection upon this passage of Scripture, but I
feel that, in justice to myself, I ought to say that I very much wish
that the Apostle had not used those words'."
When Mr. O'Conor, who followed his junior, Mr. Gifford, took his seat
after speaking for five hours, the afternoon was getting late, and I
heard Judge Curtis say to Mr. Stoughton: "I have to answer more than
seven hours of solid argument. I cannot do it in two hours, and shall
ask that the case go over until to-morrow." It was so ordered. In the
evening he said to a friend of mine: "Nothing has been said on the other
side which cannot be answered. The question is whether I can do it." He
spoke the next day for two hours and twenty minutes and closed the case.
This litigation resulted in a victory for Mr. O'Conor and his
associates. In July, 1864, Judge Nelson wrote a short opinion dealing
with contractual rights and gave judgment for The Hartford Carpet
Company. (Case No. 8569, 15 Federal Cases, page 1021, 2 Fisher's Patent
Cases, 472).
The Judges and counsel, with the juniors from the Boston and Hartford
offices, dined together every day at the New Haven House, and a
congenial company it was. Mr. O'Conor, when he was at liberty, would put
on the back of his head the silk hat which he always wore and say:
"Who's for a walk?" and go off on a tramp under the elms. He was a
spare, active man, of nervous temperament and great vitality. In New
York he lived at Fort Washington, on the Hudson, and used to rise early,
walk to his club on Fifth Avenue, breakfast there and then go down to
his office.
The keynote of Judge Curtis was serenity, that of Mr. O'Conor was
intensity. Beginning to tread law at the age of sixteen, Mr. O'Conor
fought his way to the lead, an achievement which no one who knows New
York City will be disposed to underrate. In the fine old common law
phrase, he "made war for his clients." He was tremendously combative
within the rules of the game, and absolutely fearless and independent.
His opinions were often extreme and sometimes eccentric. I heard him say
at the New Haven House, in the middle of the War for the Union, to a man
who asked for political advice: "Take the bull by the horns. Every
dollar spent and every life lost in this War is just so much thrown into
the great deep." It was like him to offer his professional services to
Jefferson Davis in his evil day. He prophesied or hoped that "some
future Tacitus" would arise to pronounce the verdict of history on Chief
Justice Taney as _ultimus Romanorum_. There was a noble side to Mr.
O'Conor's nature. With all his law he was an idealist. In accepting some
now-forgotten nomination to the Presidency, he wrote this ringing
sentence: "To spend in one's allotted place a blameless life of honest
effort, and at its end to perish nobly contending in the Thermopylæ of
an honest cause, has always been to me the perfection of a happy
individual destiny." Let this be his epitaph.
It remained for Judge Curtis, a few years later, to perform a
professional duty which made him for the second time a prominent figure
in the law and politics of the country. This was his opening argument
for the defense in the Impeachment Trial of President Johnson. In a
private letter written during that trial, he said: "There is not a
decent pretense that the President has committed an impeachable
offense." Most intelligent persons will now agree with him. His argument
is a masterpiece of luminous reasoning and exposition, and concludes
with this grave warning:
"It must be unnecessary for me to say anything concerning the importance
of this case, not only now, but in the future. It must be apparent to
everyone in any way connected with or concerned in this trial that this
is and will be the most conspicuous instance which ever has been or can
ever be expected to be found of American justice or American injustice,
of the justice which Mr. Burke says is the great standing policy of all
civilized States, or of that injustice which is sure to be discovered
and which makes even the wise man mad, and which, in the fixed and
immutable order of God's providence, is certain to return to plague its
inventors."
* * * * *
A landlord is held to be deprived of his property without due process of
law by a statute giving the tenant the privilege of holding over at
pleasure at expiration of his lease, in Hirsh v. Block, 267 Fed. 614,
annotated in 11 A.L.R. 1238, on the constitutionality of rent laws.
MAXWELL v. PINYUH.
(N. J. Supreme Court, Jan. 20, 1922).
_New Trial--Rules of Supreme Court--Orders of Judges--Relaxation of
Rules._
Case of Louise Sylvester, Plaintiff, against George S. Pinyuh,
Defendant. On motions to vacate certain Rules and Orders.
Mr. Harry R. Cooper for Plaintiff.
Mr. William J. Hanley, Mr. O. J. Pellet and Mr. Harlan Besson for
Defendant.
Heard before Justices TRENCHARD, BERGEN and MINTURN.
PER CURIAM: This is a motion by the defendant to vacate certain rules
heretofore made in the above entitled cause, and a counter motion by the
plaintiff to strike out the restraint imposed upon her in a rule to show
cause granted by Mr. Justice Minturn on the 25th day of October, 1921,
and for permission to perfect her proceeding for a new trial. The facts
are substantially as follows:
In September, 1921, the case (a Supreme Court issue) was tried in the
Monmouth Pleas on an order of reference made by a Justice of the Supreme
Court.
The jury found a verdict for the defendant, and the plaintiff, on the
22d day of September, applied to the trial Judge for a rule to show
cause why a new trial should not be granted, which order was allowed by
the trial Judge and was made returnable before him on the 6th day of
October, 1921.
On the return day of the rule, the attorney for the defendant appeared
before the Judge and objected to his hearing the rule on the ground
that, it being a Supreme Court issue, the rule must be heard by the
Supreme Court. Judge Lawrence reserved decision in the matter, and
thereafter came to the conclusion that the action had become a Common
Pleas case, and that the rule could properly be heard before him, and
fixed October 7th, 1921, for the hearing of same.
In the meantime defendant's attorney procured from Mr. Justice Minturn a
rule to show cause, returnable before the Supreme Court on the first
Tuesday of November, 1921, why judgment should not be entered in favor
of the defendant against the plaintiff on the postea, and why the trial
Judge should not sign the postea, and restraining the plaintiff from
further proceedings until the further order of the Court. A copy of this
rule was served upon Judge Lawrence and he thereupon concluded that the
rule must be heard before the Supreme Court, and he signed the postea.
Plaintiff's attorney was evidently under the impression that, after the
postea had been signed by Judge Lawrence, the object of the rule allowed
by Justice Minturn was served, and that the stay contained therein was
no longer effective and did not restrain him from taking the necessary
proceedings to bring on the argument of the rule before the Supreme
Court. He accordingly obtained from Judge Lawrence (who evidently
entertained the same view) a rule amending the previous rule granted by
him to the extent that the argument should be heard before the Supreme
Court on the first Tuesday of February.
Apparently, because of the uncertainty on the part of plaintiff's
attorney as to whether the rule originally granted by Judge Lawrence,
and the reasons on which plaintiff rested her motion for a new trial,
should be filed in the office of the Clerk of the Supreme Court, or in
the office of the Clerk of the Court of Common Pleas, these papers were
withheld from the files and were not filed within the ten days required
by the rules of this Court. A copy of the reasons and rule were,
however, immediately served on the attorney for the defendant.
Depositions were also taken by the plaintiff under the rule.
On the 15th day of December, 1921, plaintiff's attorney obtained from
Mr. Justice Kalisch a rule permitting plaintiff to file the rule to show
cause allowed on the 22d day of September, as amended by the rule made
by Judge Lawrence on the 30th day of November and the reasons on which
plaintiff based her motion for a new trial, with the same force and
effect as if the same had been filed within the time limited by law,
and, immediately after that rule was granted, filed the rule made by
Judge Lawrence and the plaintiff's reasons in the office of the Clerk of
the Supreme Court. A copy of the depositions which were taken under the
original rule granted by Judge Lawrence were also served on the
defendant's attorney.
No state of the case has yet been prepared and served, but it is stated
to be the plaintiff's intention, should the Court permit her to do so,
to immediately prepare and print her case and bring on the rule for
argument at the February Term of the Supreme Court.
The defendant moves to vacate the rule of September 22d, and the rule of
November 30th, amending it; to vacate the rule allowed by Justice
Kalisch permitting plaintiff to file such rules and the reasons. The
plaintiff moves to vacate the restraint imposed upon her by the rule
allowed by Justice Minturn October 25, 1921, and also moves to be
allowed to perfect her proceedings for a new trial, and to bring on the
same for argument, according to the rules and practice of the Court, at
the February term.
We think the defendant's motion should be denied and the plaintiff's
motions granted.
It is of course apparent, and the plaintiff freely admits, that the
rules to show cause why a new trial should not be granted were irregular
and defective and that they have not been brought on in accordance with
the rules of the Supreme Court; but evidently the sole reason therefor
was the confusion existing, both in the mind of plaintiff's attorney and
that of the trial Judge, as to whether the application for a new trial
should be heard before the trial Judge or before the Supreme Court.
It seems not to be disputed that substantial reasons exist for giving
consideration to plaintiff's application for a new trial. In granting
the rule to show cause why a new trial should not be granted the trial
Judge evidently felt that the plaintiff should be given her day in Court
upon the reasons which were presented to him why the verdict of the jury
should not be set aside. We feel that this Court should not allow the
technical infirmities in the proceeding to deprive the plaintiff of an
opportunity to be heard when, by a suspension or relaxation of its
rules, a possible injustice may be avoided. Rule 217 of the Supreme
Court provides: "The time limited in these rules for the doing of any
act may, for good cause, be extended (either before or after the
expiration of the time), by order of the Court, or a Justice or a Judge
thereof." Rule 218 provides: "These rules shall be considered as general
rules for the government of the Court and the conducting of causes; and
as the design of them is to facilitate business and advance justice,
they may be relaxed or dispensed with by the Court in any case where it
shall be manifest to the Court that a strict adherence to them will work
surprise or injustice."
We therefore deny defendant's motion to vacate the rules heretofore
obtained by the plaintiff to perfect her proceedings for a new trial,
and we grant the plaintiff's motion to vacate the restraint imposed in
the order of Mr. Justice Minturn, and also grant the plaintiff
permission to perfect her proceedings for an application for a new
trial, and also permission to bring the same on for argument at the
February term of this Court, according to the rules of this Court. The
relief thus granted to the plaintiff will be upon terms that she pay the
defendant costs upon these motions; all other costs to abide the event.
STATE v. GROSS.
(N. J. Supreme Court, Jan., 1922).
_City Ordinance Against Disorderly Conduct--The Disorderly Act--Removal
of Persons from Railroad Train._
Case of The State against Jacob Gross, Prosecutor. On certiorari
dismissing conviction.
Mr. Charles W. Broadhurst for the Rule.
Mr. Joseph J. Weinberger for Prosecutor.
Argued before Justice MINTURN by consent.
MINTURN, J:. The prosecutor of this writ was convicted before the
Recorder of the City of Passaic for violating section 72 of an ordinance
of that city which provides as follows: "That any person, who shall in
any place in the city of Passaic, make, aid or assist in making any
improper noise, riot, disturbance or breach of the peace, or shall
behave in a disorderly manner, or make use of obscene or profane
language ... shall each be liable to a penalty of five dollars for every
offense."
The violation complained of was that, while he was a passenger on an
Erie Railroad train, and while the train had stopped at Passaic, he
refused to remove his baggage from between the seats to the baggage
compartment at the request of the conductor, as a result of which the
prosecutor became noisy and boisterous, and the conductor thereupon
caused the removal of the prosecutor and his baggage from the car, and
turned him and it over to a local police officer. He was thereafter
prosecuted as a disorderly person and convicted of that offense.
Various legal grounds are advanced as a basis for vacating the
conviction. One only I deem fatal to its validity.
The ordinance in question was intended to apply to public places within
the city for the purpose of suppressing disorderly conduct therein, and,
while in a limited sense a steam railroad car is a quasi public place as
between the State and the railroad, it cannot be reasonably construed as
furnishing such a public place within the contemplation of the local
legislative body, when they passed this ordinance. A similar contention
was before this Court in State v. Lynch, 23 N. J. L. J. 45, where it was
held that a saloon, although a public house in contemplation of law, is
not a "public place" within the contemplation of the provisions of the
Disorderly Act. The words "public places" in this connection were held
to be "such places as are in general use for travel by all citizens, and
in which all have at all times an equal right of passage and repassage."
Adopting this rule of construction the railroad coach in question was
not a "place" to which the jurisdiction of the city can be said to
extend, and the word "place," therefore, in this connection, must be
held to be equivalent to "public place." That this is so is made
manifest from the context of the section of the ordinance invoked upon
the doctrine of _noscitur a sociis_. Thus, the person charged must not
only be in "a place in the city of Passaic," but he must "make, aid or
assist in making any improper noise, riot, disturbance or breach of the
peace, or shall behave in a disorderly manner or make use of obscene or
profane language."
This enumeration of specific acts of misdemeanor connotes, generally
speaking, the ordinary offense of disorderly conduct, such as is
condemned in our Disorderly Act; and, as has been observed, such
disorderly conduct, to be the subject of public prosecution, must occur
in a "public place," within the jurisdiction of the City Magistrate, and
the environment of the city. A travelling car manifestly is not such a
public place. 32 Cyc. 1249 and cases.
The fact that the prosecutor was noisy in asserting his rights can make
no difference in the result, for we may, from experience, judicially
notice the fact that the inter-urban railroad train presents no suitable
accommodation for one inclined to indulge in either introspection or
somnolence. Therefore, an ordinary conversation in a major key when
indulged, as was the case here, between a conductor, with a book of
railroad rules in his hand emphasizing his duty, and a protesting
commuter with an innocuous bag, the owner of which attempted to
vindicate in Yiddish-English the rights of the American travelling
public, might be the means of provoking an innocent mental diversion for
the benefit of the curious passengers, but could hardly be said to
evolve the serious accusation of disorderly conduct in a public place,
within the meaning of the ordinance. A discussion in an elevated key on
a railway carriage, whether it concern a bag or the suspected contents
of a bag, is not an unusual episode in everyday American railway life;
nor can it be said to be without its compensation and exhilarating
effect upon the general body of passengers, so long as it does not
assume the intolerant form of vulgarity, or obscenity, and thus warrant
the ejection from the train of the malodorous disputant.
The fact, of course, is that the voluminous resonance of a conversation
cannot be utilized as a standard to guage either its criminality or its
literary value, and yet debates in the halls of legislation, in the
Courts of justice, not to speak of fulminations from the pulpit, are
often measured by the volume of vocalization and the density of lung
power behind them.
If precedent were invoked from the classics, we have it in "Sweet
Auburn;" where, in fancy, we hear the
"Loud laugh that spoke the vacant mind;"
and Goldsmith's pen picture has placed the vociferous schoolmaster among
the immortals, whose
"Words of learnèd length and thundering sound
Amazed the gazing rustics ranged around."
All of this, and more, is familiar experience on the railway train, and
thus far has escaped the proscription of the authorities.
In Mullen v. State, 67 L. 450, the prosecutor in asserting his rights at
a schoolmeeting became, in the language of this Court, "quite noisy and
excited." His conception of public duty led him to indulge in what the
complainant called "loud language," and for this he was prosecuted under
the provisions of the Disorderly Act, which prohibits in "public places"
the use of "loud, offensive or indecent language." There was no proof of
the indecency or offensiveness of his speech, and this Court held that
the uttering of "loud" language was not enough to sustain the complaint.
These considerations, without reference to the other objections
presented, lead me to conclude that the judgment of conviction should be
vacated, and such will be the order.
STATE v. CAPRIO.
(Before Hon. Fred G. Stickel, Jr., as Magistrate. Nov. 2, 1921).
_Prohibition Enforcement Act--Search Warrant--Seizure of Liquor Permits
and Certain Liquors._
Case of State against Luigi Caprio. On application to restore property
and liquor taken under search warrant issued under the Prohibition
Enforcement Act. Before Hon. Fred G. Stickel, Jr., a Judge of the Court
of Common Pleas, acting as Magistrate under the Prohibition Enforcement
Act.
Mr. Anthony R. Finelli for application.
Mr. J. Henry Harrison, Prosecutor of the Pleas, opposed.
STICKEL, JR., MAGISTRATE: On October 3rd, 1921, acting as Magistrate
under the Prohibition Enforcement Act, I issued a search warrant
directed to Richard Roe, authorizing a search of the drug store, cellar
and rooms attached at 7 Bloomfield Avenue, Belleville, New Jersey, and a
seizure of the liquor there found, together with all vehicles, fixtures,
containers, utensils, machines, contrivances, or paraphernalia
whatsoever, there found used or intended to be used in the illegal
keeping, manufacture, transportation or sale of liquor. This warrant was
based upon an allegation by Nick Takush that he believed liquor was
unlawfully possessed in such place, and that he based his belief upon
the fact that he had on several occasions purchased whiskey at that
address for beverage purposes, and on the 30th day of September, 1921,
had purchased two gallons of alcohol there for beverage purposes.
Acting under this warrant, the sheriff, through under-sheriff Alfred C.
Walker, returned the body of Luigi Caprio, admittedly the owner of said
7 Bloomfield Avenue and of the drug store, cellar and rooms attached.
The said under-sheriff also filed an inventory showing that he had
seized under said search warrant a two gallon can labeled, "Columbia
Spirits;" a five gallon can labeled "Alcohol;" one bottle labeled
"Columbia Spirits;" some liquor permits; one five gallon can, full,
labeled, "Columbia Spirits;" one bottle labeled "Aromatic Elixir;" one
bottle labeled "Alcohol."
Application is now made under sections 63 and 64 of the Prohibition
Enforcement Act to restore the liquor and property so taken, on the
ground that there was no probable cause for believing the existence of
the grounds on which the search warrant was issued, and on the further
ground that the liquor and chattels taken upon such search warrant are
not the same as referred to in the search warrant.
There is absolutely nothing in the testimony taken before me to support
the contention that there was no probable cause for believing the
existence of the grounds upon which the search warrant was issued, but
there is some merit in the other contention.
The search warrant directs the taking by the sheriff of "liquor found in
and upon the premises aforesaid, together with any and all vehicles,
fixtures, containers, utensils, machines, contrivance, or paraphernalia
whatsoever found, used or intended to be used in the illegal keeping or
sale of liquor." It will be readily seen that the sheriff would only be
justified in his seizure of the liquor permits if they came within the
description "paraphernalia," and clearly the word "paraphernalia" cannot
be interpreted, particularly in the light of the words which precede it
in the search warrant, to cover liquor permits. The testimony also
showed that the five gallon can labeled "Columbia Spirits" was delivered
by a drug concern to Caprio while the sheriff's men were there or about
the time they arrived. Certainly this liquor is not the liquor referred
to in the search warrant, and consequently, not being the liquor
referred to in the search warrant, it must be restored to the person
from whom it was taken.
Therefore an order may be presented, reciting that, so far as the
Prohibition Enforcement Act is concerned, the search warrant issued by
virtue of the authority thereof is not sufficient to justify the sheriff
in retaining the liquor permits and five gallon can labeled "Columbia
Spirits," and that in view of the Prohibition Enforcement Act the said
liquor permits and "Columbia Spirits" be restored to said Caprio.
HARSEL v. FICHTER & ENGELHARDT.
(Essex Common Pleas, Dec. 27, 1921).
_Workmen's Compensation Acts in New Jersey and New York--Applying to
Wrong Tribunal--Election of Tribunal._
Case of Julia Harsel, Petitioner, against William Fichter and John
Engelhardt, copartners trading as Fichter & Engelhardt, Defendants. On
petition for compensation under Workmen's Compensation Act.
Messrs. Kent & Kent for Petitioner.
Messrs. Kalisch & Kalisch (by Mr. Isador Kalisch) for Respondent.
STICKEL, JR., J.: The employers contend that the petition for
compensation in this case should be dismissed because the contract of
employment was made in New York, and because the petitioner elected to
proceed under the compensation law of New York, subsequently petitioning
for compensation under the New Jersey law.
In considering the case, I felt I would be aided if I had before me the
testimony taken in the New York compensation action, and counsel for the
defendant very kindly supplied me therewith.
From such testimony, which I have filed in this case, as well as from
the deposition filed, I am satisfied and find as a fact that the
deceased was hired in New Jersey by Fichter & Engelhardt. It is quite
clear to me that the deceased heard of the New Jersey job of Fichter &
Engelhardt at the Union rooms in New York and that, being attracted
thereby, he, after giving up the New York job, came to the New Jersey
job, was seen by the foreman, Millhouse, and employed on the spot.
Engelhardt appears to be a silent partner of Fichter, according to his
own testimony, and the firm is, in fact, made up as stated in the title
to this cause.
Furthermore, even though the contract of employment had been made in New
York, the accident causing the deceased's death having taken place in
New Jersey, the case falls within the New Jersey Compensation Act, and
this notwithstanding the existence of a New York Compensation Act.
American Radiator Company v. Rogge, 86 N. J. L. 436, aff. 87 N. J. L.
314; 245 U. S. 630; David Heiser v Hay Foundry & Iron Works, 87 N. J. L.
688 (at this time the New York Compensation Act was in force); West
Jersey Trust Company v. Philadelphia & Reading Realty Company, 88 N. J.
L. 102.
As to the question of election, the contention of the employers is
wholly without merit. The petitioner, through attorneys other than those
who now represent her, applied for compensation under the New York
Compensation Act. The Commission held that it had no jurisdiction; that
the case was not within the New York jurisdiction, apparently, from the
testimony taken, because the Commission found that the contract of
employment with petitioner was made in New Jersey and the accident took
place there. Thereupon petitioner applied for compensation in New
Jersey, and an informal award had been made in New Jersey, and a day
fixed to hear the case on the formal petition, before someone in New
York claiming to represent Mrs. Hassel, the petitioner, had applied for
a reopening of the finding of no jurisdiction by the New York
Commission.
Petitioner in that posture of affairs advised the New York Commission of
the New Jersey proceeding, and asked that the New York proceeding be
stayed "pending the trial of her case in New Jersey, and then after and
when we receive compensation over there, as I understand the law in this
State, Mrs. Hassel can still come in and get the deficiency claim from
the Compensation Bureau here," and this request was duly granted.
What acts of petitioner constitute the election which should bar this
New Jersey proceeding? Certainly not the original application for
compensation in New York, for that application was dismissed, and it now
appears erroneously, for lack of jurisdiction, and, under such
circumstances, it is clear that she has not made a final and binding
election such as would preclude her applying to the tribunal in fact
possessing jurisdiction. 15 Cyc., p. 262, and cases cited; 20 Corpus
Juris, p. 37, and cases cited.
If a mistake of a petitioner in applying to the wrong tribunal for
relief would not preclude application to the right tribunal (see 15
Cyc., supra) certainly the erroneous finding of no jurisdiction by the
tribunal applied to could not have a greater and more binding effect
upon the petitioner. And even a correct finding of no jurisdiction would
not preclude application for relief to the tribunal possessing
jurisdiction. 20 Corpus Juris, p. 27.
The only other conduct of petitioner which is relied upon to constitute
an election is her request to the New York Commission after someone
unauthorizedly had applied for a re-opening of the case, and after the
institution of the New Jersey suit to stay the New York proceedings
until the completion of the New Jersey proceeding, so that petitioner
might obtain in New York the difference between the New York
compensation allowance and that of New Jersey, and clearly such conduct,
which is, in effect, an election to proceed in New Jersey on the main
case, cannot be held to constitute an election to proceed in New York.
I, therefore, find that the petitioner is entitled to compensation for
three hundred weeks at the rate of twelve dollars per week, and to one
hundred dollars, the statutory allowance for funeral expenses, and I
will allow counsel for the petitioner a counsel fee for services in this
Court of two hundred and fifty dollars.
A determination of facts should be prepared by counsel for the
petitioner, submitted to counsel for defendant for inspection, and then
transmitted to me for signature.
STATE v. ASH.
(Essex Common Pleas Jan. 6, 1922).
_Driving Automobiles Under Influence of Liquor--Review of Evidence
Below._
Case of State of New Jersey against Joseph A. Ash. On appeal from Third
Criminal Court of Newark.
Mr. John P. Manning for State.
Mr. Andrew Van Blarcom for Defendant.
STICKEL, JR., J.: The defendant-appellant was found guilty in the Third
Criminal Court in the City of Newark, Judge Horace C. Grice presiding,
for driving an automobile while under the influence of liquor, in
violation of Section 1, Chapter 67, of the Laws of 1913, a supplement to
the Disorderly Person Act, and he now appeals to this Court.
The first point urged as a ground for reversal of the conviction is that
"at the close of the case there was a reasonable doubt as to the
applicant's guilt; that the State had not sustained the burden of proof,
and that the weight of the evidence favored the appellant."
It is to be doubted whether this Court has any power to review the
evidence at all, in view of the Laws of 1895, Page 197, section 7, 3
Comp. Stat., p. 3993, providing: "That it shall not be necessary to set
forth in said conviction [convictions in Police Courts of first-class
cities] the whole or any part of the testimony upon which such
convictions is had," but, assuming it possesses such power, it cannot
extend beyond the point of determining whether there was any evidence
before the trial Court to support its finding. See Sec. 39, Laws of
1915, p. 411, Supp. Comp Stat., p. 490; State v. Lynch, 3 N. J. L.
Journal 45; Lyons v. Stratford, 43 N. J. L., 376; Orange v. McGonnell,
71 N. J. L. 418. No power to weigh the evidence rests in this Court,
and, if it did, I would be unwilling to say, after a reading of the
evidence in this case, that the trial Court was wrong in its conclusion
of facts; that it should have disregarded the officer's testimony and
that of Doctor Mitchell, and believe the story of the defendant and his
friend; or even that the Court must have or should have entertained a
reasonable doubt of the defendant's guilt on the whole case. The trial
Court saw the witnesses, had the benefit of the atmosphere of the trial,
witnessed the demeanor of the witnesses on the stand, their manner of
testifying, and, consequently, was in a better position to determine
questions of fact than this Court is, relying, as it must, upon a paper
record.
There was ample evidence, if believed, to support the charge. The police
officer testified that he saw the defendant driving the car, smelled
alcohol on his breath, took him to Doctor Mitchell, the police surgeon,
to whom the defendant admitted that he had been drinking, and who found
him under the influence of liquor, and on the stand the defendant told
of having had two drinks of whiskey.
The point stressed--that the police officer's claimed identification of
the defendant as the driver on South Orange Avenue is so improbable and
impossible as to make his whole story increditable incredible and
unbelievable--presents a question of fact and argument peculiarly the
province of the trial Court, but, in any event, the fair intendment from
his testimony, it seems to me, is that either because of the speed of
the auto in question, or because of the auto chasing the car in
question, with the occupant waving his hand to the officer, he was
attracted to the automobile in question, caught a glimpse of the driver,
turned around, followed the car, ordered it to stop, saw the defendant
while thus endeavoring to bring the car to a stand-still, and then saw
him step out of the car and away from the driver's seat.
The next point urged is that the Court erred in sustaining an objection
to this question addressed to Officer Moffatt by counsel for the
defendant: "How many conferences have you had about this case this
morning with Captain McRell, or Doctor Mitchell?" After this question
was asked the Court said: "Is that material?" "Mr. Manning: I do not see
that this is material. We have a right to prepare our case. I object."
The Court: "Objection sustained. I think you [counsel for the defendant]
probably talked about your case with your client." No objection was made
to the Court's ruling by counsel for the defendant, no exception taken
thereto, and no effort made to point out the materiality or relevancy of
the question, or that it was but the foundation for some legitimate
attack upon the credibility of the witness. In that posture of affairs
the overruling of the question was in the discretion of the Court and
was harmless. State v. Panelli (N. J.) 79 Atl. 1064.
The third and last ground urged for reversal is the action of the Court
in permitting Doctor Mitchell to answer the following question over
objection of counsel for defendant and exception duly taken: "And, in
your opinion, would you say his condition to be such as to prevent his
driving a car?"
Assuming the action of the Court constituted legal error, it could not
prejudice the defendant, for the State was not required to prove that
the defendant was so far under the influence of liquor that he could not
safely drive a car, but merely to prove that he drove the car while
"under the influence of intoxicating liquor." This is clearly pointed
out by Justice Trenchard in State v. Rodgers, 102 Atl. 433 (at p. 435),
where the Justice says: "It will be noticed that it is not essential to
the existence of the statutory offense that the driver of the automobile
should be so intoxicated that he cannot safely drive a car. The
expression 'under the influence of intoxicating liquor,' covers only all
the well known and easily recognized conditions and degrees of
intoxication, but any abnormal mental or physical condition which is the
result of indulging in any degree in intoxicating liquors, and which
tends to deprive him of that clearness of intellect and control of
himself which he would otherwise possess." The State, prior to the
propounding of the said question, had submitted testimony showing or
designed to show that the defendant had driven the car while "under the
influence of intoxicating liquor," and Doctor Mitchell had already
testified that when he examined him he found him under the influence of
intoxicating liquor.
No legal error being shown or appearing in the record, the conviction is
therefore affirmed.
IN RE ESTATE OF ECKERT.
(Essex County Orphans' Court, Aug. 16, 1920).
_Exceptions to Accounting--Depreciation of Securities--Continuing
Investments--New and Unlawful Investments._
In the matter of the Estate of August F. Eckert. On exceptions to
account.
Messrs. Riker & Riker (Mr. Theodore McC. Marsh and Harvey S. Moore),
Proctors for Exceptant.
Mr. Edward R. McGlynn, Proctor for the Executor.
STICKEL, JR., J.: August F. Eckert, of Orange, New Jersey, died on or
about October, 1914, leaving a last will and testament, whereby he
bequeathed his property to his wife, Caroline Eckert, and to his
children Annie M. Eckert and Clara M. Eckert, to be divided equally
between them as soon as the youngest child should arrive at the age of
twenty-one years. He appointed William Scheerer, executor. Both of the
children were of the age of twenty-one years at the time of testator's
death. Scheerer duly qualified as executor, and from 1914 to the present
time he has been in charge of the administration of the estate. After
being cited to account he filed the account here in issue, and Annie M.
Eckert, who has married and is now known as Annie Maxwell, filed
numerous exceptions to the account. All of these exceptions were
disposed of at the hearing except certain exceptions which fell into two
classes, first, those relating to the depreciation on certain issues of
bonds, generally described throughout the hearing as Public Service
securities, and, second, the exceptions based upon the executor's
failure to invest the cash on hand.
I will overrule the exceptions falling within the first class, namely,
those seeking to surcharge the executor for depreciation of securities
invested in by the testator and received by the executor as part of his
estate.
The securities, the subject matter of the exceptions now under
consideration, are investments made by the testator. Consequently,
unless it can be shown that in continuing these investments the executor
failed to exercise reasonable discretion and that there was an absence
of good faith in so continuing them, he cannot be charged with
depreciation of such stock. The burden of proving such lack of good
faith and failure to exercise reasonable discretion is upon the
exceptant.
This burden she has failed to sustain. I am convinced that whatever the
executor did in the management of this estate was done solely with the
best interests of the estate in mind.
When the decedent died his widow and two daughters remained together as
a family and the executor proceeded to administer the estate possessed
of the complete and entire confidence of the beneficiaries of the man
who had had sufficient confidence in him to appoint him his sole
executor.
It was his strict duty, perhaps, to close up the business of decedent,
collect the assets, pay the debts and at the end of the year distribute,
and had he done so he would early have been relieved of his
responsibility. But he wanted to help the family, and so he departed
from his strict duty and permitted the business to be continued for a
time so that the family might benefit from the receipts thereof.
Again, he permitted the informal use and division of some of the debts
collected and personal property left. But it is entirely clear to me
that this was done by common consent of those concerned, including the
exceptant. The three, constituting the family, were treated as an
entity, and these and other departures from the strict line of the
executor's duty were committed because they were for the common good.
In line with this policy of helpfulness on Scheerer's part, and of
confidence and reliance upon the part of the devisees, the executor was
given charge of the lands and permitted to continue the management of
the estate long after it should have been wound up. He became, by tacit
consent and common understanding, the trustee of the family. They wanted
the benefit of his judgment and experience until the real estate could
be sold and the proceeds properly invested. This he gave to them.
This continued during 1915, 1916 and 1917. No question seems to have
arisen as to the propriety of continuing the investments, nor, indeed,
were the executor's acts in any respect challenged during this period.
Then the exceptant left the family and became Mrs. Maxwell, and in 1918
demanded an accounting.
Up to this point no evidence at all of bad faith or unreasonable
exercise of discretion appears.
The result of the demand of the exceptant was the agreement by the
executor and the exceptant, in the office of John P. Manning, her
attorney, upon a settlement which provided for a payment of part of her
share in cash and part in investments of decedent continued by the
executor. The settlement fell through, not apparently because the
securities or settlement were unsatisfactory, but because exceptant
disapproved of the word "heirs" in the release requested of her by the
executor.
At the time, in 1918, the exceptant was willing to take, as her share of
the estate, some of the same investments which she now declares the
executor was negligent in continuing. Thereafter, and up to the filing
of the account, the attorneys of the exceptant and the attorneys of the
executor were in frequent negotiation, endeavoring to settle the
differences of the parties and agree upon a distribution or division.
Certainly, during this period, the executor would not be charged with
bad faith or failure to exercise reasonable discretion in keeping the
subject matter of the negotiations _in statu quo_, ready for immediate
distribution or division in the event of an agreement.
Where, then, is the evidence of lack of good faith and failure to
exercise reasonable discretion? I can find none. Indeed, when it is
realized that two of the beneficiaries are entirely content with the
executor's retention of the securities in question; that that which the
securities in question represent is as valuable to-day as when the
decedent died; that the depreciation is a paper or market one, due to
abnormal conditions general throughout the world; that with the return
of normal conditions these securities are likely to find their old
level, and that the exceptant herself has continued to hold her
individual securities, of the same general type as those here in
question, it is easy to believe that had the distribution of the estate
taken place heretofore, to-day would have seen all parties holding on to
their securities, collecting their accustomed income, hoping for the
return of the conditions which would mean a rise in the market value of
their said securities. The mere fact that the executor did not close up
the estate within a year or two after the decedent's death, but
continued to manage and administer it, including the real estate, with
the consent of beneficiaries, did not increase or change his liability.
He was bound to take the same care of the estate as before, no more, no
less. Perrine v. Vreeland, 6 Stew. 102.
We will now take up the claim that the executor should have invested the
cash on hand instead of keeping it in the bank, and that, having failed
to do so, he must be charged with the difference between the interest he
did get and that which he might have received had he invested it.
This exception is also overruled. It is true that, generally speaking,
it is the duty of an executor to invest funds in his hands; but the
propriety of charging an executor or trustee with interest because he
has failed to invest the funds depends upon other facts than the mere
possession of the funds, and I know of no case holding that where,
pending negotiations for settlement and distribution, an executor left
the funds of the estate in saving banks, he must be charged with the
interest he might have received had he invested the funds of the estate
and perhaps thereby interfered with the immediate liquidation and
settlement of the estate. On the contrary the tendency of the decisions
is to uphold such conduct.
His course prior to the demand in 1918 was acquiesced in by the
exceptant; his actions since then were governed, and necessarily, by the
continually pending negotiations. In any event the uninvested funds at
best scarcely equalled at any time, as far as I can discover, two or
three thousand dollars, sums perhaps not always easy to quickly and
satisfactorily invest.
This leaves for consideration only the act of the executor in investing
five thousand dollars of his _cestui que_ money in Public Service funds.
These were securities in which a trustee had no right to invest. They
are not among those investments which our statute permits trustees to
invest in, and, in establishing the investments, the exceptant has made
out a _prima facie_ case requiring explanation by the executor.
Undoubtedly the executor acted in good faith, but that will not protect
him as in the case of continuing investments made by a decedent. His
explanation, other than that he acted in good faith, appears to be that
the investment was made with the acquiescence of the exceptant; that she
is estopped from questioning the investment.
I doubt that the exceptant had actual knowledge of the investment when
it was made, and the general acquiescence which negatived bad faith in
the executor in continuing the decedent's investment would not suffice
to protect the executor in making an investment of this kind. Nor do I
find that she possessed the knowledge of this transaction that would
permit of the application of the doctrine of estoppel.
As a consequence, unless there are facts which have escaped or have not
been brought to my attention which relieve the executor from the normal
effect of an investment of this kind, he must be charged with the
depreciation of these bonds, unless the beneficiaries agree to accept
the bonds as such.
[NOTE BY EDITOR.--The above case, which has attracted much local
attention, was in part sustained and in part overruled in the
Prerogative Court on Jan. 31, and may go to the Errors and Appeals].
IN RE VREELAND.
(Essex Common Pleas, Jan. 19, 1922).
_Insolvent Debtor_--A preferential payment of a bona fide debt by an
insolvent debtor does not bar his discharge under the Act for the Relief
of Persons Imprisoned on Civil Process.
In the matter of Frank A. Vreeland. Application for discharge as
insolvent debtor.
Mr. Richard H. Cashion for Debtor.
Mr. Frederick J. Ward for objecting Creditor.
FLANNAGAN, J.: On June 29th, 1921, Peter M. Dalton recovered a judgment
in tort against Frank A. Vreeland, in the Orange District Court, in the
sum of $211.80 and costs; execution was issued and returned unsatisfied.
On September 9, 1921, the debtor was taken into custody on a capias ad
satisfaciendum and released on bail on the following day. The debtor now
applies to this Court for a discharge as an insolvent debtor under the
Act for the Relief of Persons Imprisoned on Civil Process, having filed
what he claims is "a just and true account of all his real and personal
estate," as provided by Section 6 of the Act.
It appeared from the testimony of the debtor on the hearing before this
Court that, after entry of said judgment and on July 5, 1921, he
executed to his sister, Laura A. Vreeland, a chattel mortgage, for the
sum of $1,505, being the amount of a pre-existing debt for cash advanced
by her to him between August 30, 1920, and the date of the mortgage (to
wit, July 5, 1921). The debtor has no property of any substantial value
remaining, and, while the value of the property mortgaged is questioned,
it represented substantially all his resources and appears to be by no
means equal in value to the amount of the loan against it, $1,505.
The creditor contends that the debtor, having thus made a preference in
favor of his sister since the entry of the judgment, he is not entitled
to a discharge. This is the only question which is involved in the
present application.
The statute provides (Section 8) that the Court shall "consider and
examine the truth and fairness of the account and inventory," and
(Section 11) that, if the Court is "satisfied that the conduct of the
debtor has been fair, upright and just," it may proceed to grant his
discharge upon compliance by him with the further provisions as to
assignment, etc., set forth in the statute.
Under Section 15 of the Act it is provided that if it shall appear that
the debtors have "concealed or kept back any part of their estate or
property, or made any ... mortgage ... with intent to defraud his
creditor ... then ... said debtors shall be refused ... discharge."
The provision which requires the debtor's conduct to be "fair, upright
and just" is restricted to his conduct in making his account and
inventory, and "in delivering up to his creditors all his estate"
(Meliski v. Sloan, 47 N. J. L. 83; Reford v. Creamer, 30 N. J. L. 253),
and, unless the mortgage to the debtor's sister was with intent to
defraud, it would seem he is entitled to his discharge. Of course, if
the mortgage is fraudulent, he would not be entitled to it. Iliff v.
Banhart, 60 N. J. L. 253; affd. 61 N. J. L. 286.
There is no evidence in the case that the consideration paid for the
mortgage by the debtor's sister was fictitious, or was not bona fide, or
that the mortgage was with any promise or expectation of future benefit
to the debtor, or was otherwise improper. On the contrary the testimony
is that the mortgage was given for money advanced. The only objection to
the discharge which the evidence would justify is that the mortgage was
given when the debtor was in failing circumstances while insolvent and
after the creditor's judgment had been entered.
There is nothing fraudulent or wrong, within the meaning of the Act for
the Relief of Persons Imprisoned on Civil Process in the giving of a
preference knowingly by a person in an insolvent condition.
At common law every man, even when in failing circumstances, has a right
to dispose of his property, to pay one honest creditor in preference to
another one. Garretson v. Brown, 26 N. J. L. 437; affd. 27 N. J. L. 644;
Stillman's Ex. v. Stillman, 21 N. J. Eq. 126. If the debt was honestly
due the debtor had a right to select his favorites. There is nothing in
the Act to change the common law on this subject and hence the debtor
was within his legal rights when he made the preference referred to his
sister.
For these reasons the debtor is entitled to his discharge.
N. Y. AND GREENWOOD LAKE RAILWAY CO., et al. v. ESSEX CO. PARK
COMMISSION.
(N. J. Supreme Court, Dec. 10, 1921).
_Certiorari--Railroad Land Acquired by Park Commission by
Condemnation--Disuse of Land by Railroad._
New York and Greenwood Lake Railway Co., a Corporation, and Erie
Railroad Co., a Corporation, Prosecutors, against Essex County Park
Commission. Application for writ of certiorari before Hon. William S.
Gummere, Chief Justice.
Messrs. Parker, Emery & Van Riper (by Mr. John M. Emery) for
Prosecutors.
Mr. Alonzo Church for Respondent.
GUMMERE, C. J. (orally): As I understand the situation with relation to
the law and the facts, it is this:
The Park Commission, having been created by the Legislature for the
purposes specified in the Act under which it was organized, conceived
the idea of acquiring land to be devoted to the uses of a park up in
Verona, and that was done, of course, under a form of resolution, and I
assume, unless I am corrected, that the land to be embraced in the park
was described, in a general way at least, in the resolution. Having
taken that step they started in to acquire the land to be embraced in
the proposed park, and in carrying out that purpose they approached this
railroad company for the purpose of buying from them, for the purposes
of a park, this particular piece of land, but they were unable to make
any arrangement with the company with relation to its purchase and sale.
I say that from my recollection of the provisions in the petition which
was submitted to me, and the accompanying affidavits.
The railroad company at that time, and that was prior to the first of
November, knew that this Park Commission proposed to acquire a tract of
land, of which this particular piece was an integral part, for the
purposes of public recreation, not only for the citizens of Verona and
neighborhood, not only for the citizens of the county of Essex, but for
all the citizens of the State who desired to enjoy that public benefit.
Now, the Park Commission either had or had not the right to acquire this
land in invitum, that is, against the will of the railroad company and
by the exercise of the power of eminent domain given to them by the
State itself, and so if they had desired to do so (and when I say "they"
I mean the railroad company), they could have ascertained just what the
steps were that had been taken by the Park Commission antecedent to the
negotiations for the purchase of this land. They would have ascertained
that this resolution had been passed and that this particular piece of
land was only a part, perhaps a small part of the whole territory which
was to be acquired and devoted as a unit to park purposes, but they did
not do it. They sat still until they received notice that an application
had been made to the presiding Justice here for the appointment of
commissioners to condemn that piece of land, and a representative of the
railroad company appeared here in response to that notice.
Of course, there was nothing that could be done in that particular phase
of the matter which would operate as a stay, because the Judge in a
matter of that kind sits as a mere legislative agent. But, after the
Court had appointed the commissioners, this railroad company, having
neglected to act promptly in the way that I have already suggested, by
certioraring the resolution, and thereby preventing the expenditure of
comparatively large sums, I suppose, of public moneys, still waited; not
only waited, without attempting to halt the proceedings, but they
actually attended before the condemnation commissioners. Counsel says
with a reservation, or with an expostulation, or a protest, or what not,
but they appeared there for some purpose, and I suppose to see what the
award would be. I don't know whether they offered testimony or not as to
the value of the land. That has not been spoken of.
MR. CHURCH: They did offer testimony.
THE COURT: With the apparent idea, then, that they hold on to their
legal rights with one hand, and, if the award justified them in letting
go, they would let go of their legal rights and take the money.
Now the question is whether in that situation this railroad company is
in a position to ask relief from a Judge of the Supreme Court, the
relief being in the shape of a writ of certiorari; and whether or not
the writ will be awarded is a matter resting in the discretion of the
Court. I am not speaking about the question of laches, but, in
determining whether this writ ought to issue, I must take into
consideration all of the circumstances. It appears that the railroad
company, instead of acting promptly, has stood by supinely and seen the
county of Essex expend a large amount of money for the purpose of
acquiring property, the value of which for public purposes would be
greatly depreciated if they were to be prevented from taking this land
as a part of the scheme to be carried out.
So, I would be inclined to say that, in view of that situation, in the
exercise of a proper discretion, I ought to tell the railroad company
that I cannot see my way clear to allow this writ; that it would be
greatly injurious to the people of Essex county and the people of the
State, even, and would produce that injury, although the people and
their representative, the Park Commission, are in no way responsible for
it.
Then there is another reason why I think this writ ought not to be
allowed.
This railroad company received from the State of New Jersey a grant, by
the terms of which it was permitted to acquire lands for the
construction and operation of a railroad between given points. That
grant was not as a matter of course made to the railroad company for the
purpose of benefitting it, but to provide a means of transportation by
which the public would be served; and it was an implied part of the
contract which was created by the tender of the grant and its
acceptance, that this corporation would, within a reasonable time, not
only acquire the land but build the railroad and carry the people of
this State backward and forward across it for the compensation which the
Legislature permitted the railroad company to charge; and for over half
a century they have violated the implied condition of their agreement.
They have acquired the land. They have not attempted, and so far as I
know never will attempt, to devote this land to the purposes for which
alone they were entitled to acquire it. They are holding it out of the
general property of the State, and by doing so prohibiting its use for
the benefit of the State, or any of its citizens, or anybody else. In
other words, it is not land that is being held by this company for
railroad use. It has never been so used by them, since it was acquired
over a half century ago, and, so far as anybody can tell, it is quite
uncertain whether it ever will be used for the purposes for which its
acquisition was permitted.
Now, in that situation, the State comes along and through its agent, the
Essex County Park Commission (for that Commission is a State agent)
says: 'We need this land for public use. You have had your chance to
devote it to that use; you have consistently declined, by inaction at
least, to so devote it, and now we are going to devote it to the uses
and benefits of the State and of the people of that part of the State
located within the borders of the County of Essex,' and I am inclined to
think that this was the situation contemplated by the Legislature which
induced the reservation in the Act of 1921 that railroad companies
should not be permitted to act as dogs in the manger and hold out land
which they cannot use themselves, never have used, and perhaps never
will use, for the only purpose to which they could devote it under their
charter. And so, I think, for this reason also this application should
be denied.
ABSTRACTS OF RECENT PUBLIC UTILITY DECISIONS.
_In re West Shore & Seashore R. R. Co._--Application to discontinue
maintaining an agent at Forest Grove, as revenues do not warrant expense
of the agency; the place to be put under the supervision of the agent at
Minetola, who would keep the station open, lighted, etc. The Board permitted
the discontinuance, adding that "if future conditions change to the
extent of warranting the re-establishment of an agent, the matter will
be given further consideration." Report dated Nov. 4, 1921. Mr.
George A. Bourgeois for the Company. Mr. Joseph Little and Mr.
Charles H. Lincoln for Protestants.
Another application was made at the same time by the same Company for
the discontinuance of the agent at Buena. The Board said: "While the
reasonableness of the Company's desire to reduce operating expenses is
recognized, the discontinuance of the agent would undoubtedly result in
inconveniencing shippers and receivers of freight and express to an
extent that would not be justified considering the volume of business.
The necessity for the presence of an agent or clerk for a portion of the
day is manifest, and arrangement should be made to have a
representativeat the station from 8 A. M. until 1.30 P. M. daily,
excepting Sundays: also that the station be kept open during the hours
it is at present open for the convenience of passengers. If the Company
will arrange to have a representative at the station for the transaction
of necessary business from 8 A. M. until 1.30 P. M., and keep the
station open covering hours now in effect, the Board will approve such
an arrangement in lieu of agency now effective." Report dated Nov. 4,
1921. Mr. George A. Bourgeois for the Company. Mr. Charles Wray for
Protestants.
_In re Pennsylvania R. R._--Application to discontinue an agent at
Allaire. Permit granted. Report dated Nov. 4, 1921. Mr. W. Holt
Apgar for Petitioner.
_In re City of Newark._--Application for a change in the colorific
standard of gas. The Board was about to investigate the rates charged
for gas by the Public Service Gas Co., when the City of Newark gave
notice of a demand for an increase in the standard. "There was thus,"
said the Board, "injected into the proceeding a question which had to be
decided before the Board's investigation into the rates could proceed,
it being impossible to fix a price for gas until the Board should fix
the standard for gas under Newark's petition. The rule fixing the
standard for gas being applicable to all gas companies in the State,
general notice of hearing was given, and the gas companies were
represented." Testimony was begun in August last, and the general
purport appears in the Report. The Board said: "It does not appear that
the gas supplied by the Public Service Gas Company compares favorably
with that furnished by other companies, which, confronted by the rule
[IX of the standard adopted by the former Utility Board] alone, have
applied it in accordance with its apparent literal significance. The
rule, however, should be free from any misunderstanding as to its
meaning. As the Public Service Gas Company supplies the greater part of
the gas consumed in the State, and to now require it to change its
interpretation of the rule might result in undesirable complications in
the rate proceeding being conducted by the Board without corresponding
advantage to its customers, it is deemed inadvisable to insist upon such
change. In order, however, that there may not be a continued apparent
conflict between the rule as worded and the practice of the Company, the
Board will change the wording of the rule so that there will be no doubt
if gas is supplied with a minimum daily average of 525 B. t. u. it will
be in compliance therewith." Report dated Nov. 4, 1921. Messrs. E. W.
Wakelee, E. A. Armstrong and G. H. Blake for Public Service Gas Company.
Mr. Jerome T. Congleton and Mr. J. G. Wolber for the City of Newark. Mr.
George L. Record for City of Jersey City. Mr. Benjamin Natal for City of
Camden. Mr. William A. Kavanagh for City of Hoboken. Mr. Joseph T. Hague
for City of Elizabeth. Mr. A. O. Miller for City of Passaic. Mr. William
P. Hurley for Town of Nutley. Mr. Welcome W. Bender for Chamber of
Commerce of Elizabeth. Mr. F. R. Cutcheon for Consolidated Gas Company.
Mr. S. J. Franklin for Cumberland County Gas Company. Mr. H. S. Schutt
for Atlantic City Gas Company. Mr. William Wherry, Jr. for New Jersey
Gas Association. Dr. W. G. Hanrahan for Rent Payers' Association of
Essex County and Federation Improvement Associations. Mr. James W.
Howard on his own behalf.
_In re Blackwood Water Co._--Application for increase in rates. The
Board required, first, that changes must be made in the system so as to
provide for continuous operation of the filter plant, additional power to
operate the pumping machinery, etc., six different improvements in all.
Doing this the Company could make certain increases in rates beginning
Jan. 1, 1922. Report dated Nov. 9, 1921. Mr. Lewis Starr for Petitioner.
Mr. Samuel P. Hagerman for Township of Gloucester.
SOME INTERESTING OUT-OF-STATE DECISIONS.
STATE PROHIBITION LAWS AND EIGHTEENTH AMENDMENT.
In the habeas corpus proceeding of Jones v. Hicks, decided by the
Georgia Supreme Court and reported in 104 Southeastern Reporter, 771,
portions of the statement of facts and opinion of the Court by Judge
Gilbert are as follows:
"Jones was arrested under a bench warrant issued by the Judge of the
city court of Macon, based upon an accusation charging him with
violating the prohibition law of this State on January 21, 1920. He
filed a petition for the writ of habeas corpus, based upon the ground
that the Eighteenth Amendment to the Constitution of the United States,
which was ratified on January 16, 1920, and the 'National Prohibition
Act' known as the Volstead Act (41 Stat. 305), superseded and abrogated
all State laws on the subject covered by said Eighteenth Amendment, and
that therefore, at the time this defendant is alleged to have committed
the criminal offense charged in the accusation, there was no valid State
law in existence. The court refused to release the petitioner, and that
judgment is excepted to....
"The second section of the amendment as proposed to the States and
ratified, provides that 'The Congress and the several States shall have
concurrent power to enforce this article by appropriate legislation.'
"Three views as to the proper construction of the second section have
been generally discussed: (1) That concurrent power means joint power;
(2) That the power is given to each, the legislation of either Congress
or the States being of equal force with the other; and (3) that the
power is in each, but that the legislation of Congress, as the supreme
law of the land, will supersede any inconsistent State legislation....
"The Supreme Court of the United States having adversely disposed of the
contention that 'concurrent power' means joint power [State of Rhode
Island v. Palmer, 40 Sup. Ct. 486], there remain two other views to be
considered. Similar, but not identical, questions have been discussed
heretofore by Courts of several States and by the Supreme Court of the
United States. None of these involved construction of delegated powers
to be exercised concurrently. They are cited here for comparison, and
not as controlling....
"The sphere in which the Congress, under the Eighteenth Amendment, may
legislate for the enforcement of prohibition, is limited to the precise
terms stated in the amendment, to wit, 'concurrent enforcement....' From
a consideration of the question as above presented, we reject the view
that the legislation of Congress will supersede and abrogate the laws of
the State which are appropriate for the enforcement of the amendment. We
conclude that the power of Congress and of the State is equal and may be
exercised by the several States for the purpose of enforcement
concurrently within their legitimate constitutional spheres. Ex parte
Guerra (Vt.) 110 Atl. 224, and authorities cited. The first section of
the amendment is in no way affected or qualified by the words
'concurrent power,' found in the second section."
KILLING COWS BY AUTOMOBILE.
An automobilist, driving his car at an excessive rate of speed along an
improved country road in the night-time, struck and killed two cows
being driven along the highway. The animals were walking, one behind the
other, in or near the wheel track on the side of the road on which they
belonged. The machine, after striking the leading animal, skidded and
struck the other cow, killing her instantly and casting her dead body, a
distance of 57 feet. The driver admitted he was going "about" 25 miles
an hour; and the Court comments: "The result of the catastrophe indicate
rather strongly that he underestimated his speed."
The Vermont case of Bombard v. Newton, 111 Atl. 510, is based on this
occurrence, and was instituted by the owner of the animals to recover
damages for their negligent killing. The Court held that the right to
drive an automobile along a public highway is not superior to that to
drive cows along the highway. "The parties," states the opinion, "had
equal and reciprocal rights to the use of the road, and each owed the
other the duty of so exercising his own right as not to interfere with
that of another.
The fact that it was in the night-time affected the rights of the
parties only as it bore upon the amount of vigilance each was bound to
exercise. The fact that the defendant was operating an automobile, an
instrumentality whose capacity for harm is well exemplified by the
results in this case, and the fact that the plaintiff was driving cows,
animals whose viatic vagaries have come to be known of all automobile
drivers, were conditions affecting merely the degree of care required of
the parties respectively."
MISCELLANY
PUBLIC SERVICE LOSES JITNEY SUIT
On Dec. 2 the Court of Errors and Appeals, by a tie vote, 7 to 7,
practically affirmed the decision of Vice-Chancellor Griffin in denying
an injunction to the Public Service Railway Co. to prevent operation of
jitneys on the public highways. The affirmative votes were by Justices
Black, Kalisch, Parker, Swayze and Trenchard, and Judges White and Van
Buskirk; the negative by Chief Justice Gummere, Justices Bergen,
Katzenbach and Minturn, and Judges Williams, Gardner and Heppenheimer.
Justice Minturn wrote an opinion for the negative view.
The essential points relied upon by counsel for the railway company in
support of the application for an injunction against the jitney owners
were that none of the defendants had applied for and obtained consent
for the use of the streets and highways on which they operated, as
required by the Limited Franchise Act of 1906; that none of the
defendants filed with the chief fiscal officer of the city in which they
operate a policy of insurance, as required by the Kates Jitney Act of
1916; that Barnett, though filing a policy of insurance in Newark, filed
only a copy of the policy in Elizabeth; that Banker filed a policy in
New Brunswick, but none in South Amboy; that the Public Service Railway
in the enjoyment of a legal franchise is entitled to an injunction
against the alleged illegal competition on the part of jitneys, and that
the Public Service is entitled to protection of its franchises and
business by injunction under decisions of the New Jersey court.
Merritt Lane, counsel for the jitney owners, questioned the jurisdiction
of the Court of Chancery to grant the injunction, contending that the
rights of the Public Service are not of such a nature as to justify it
in seeking relief in any Court, and argued that the franchise of the
company was not to transport passengers for hire and reward but to lay
and maintain rails in public streets and to operate cars thereon. Mr.
Lane also submitted that to grant the injunction would create a result
manifestly opposed to public policy and would result to the disadvantage
of the public. He submitted that the Company was not in a position
adequately to handle the traffic and that if the jitney were eliminated
hundreds of thousands of persons would be obliged to walk or stand while
riding.
HUNTING BY FOREIGNERS.
The County Clerk of Sussex, Mr. Harvey S. Hopkins, has appropriately
called the attention of municipal clerks in that county to their neglect
of duty under the hunting and fishing license law. Doubtless the same
neglect has resulted in other counties. In sending out the supply of
1922 licenses Mr. Hopkins wrote:
"In every monthly report compiled by this office I can see instances
where resident hunting licenses have been improperly issued to
foreigners who have not yet acquired their final naturalization papers.
This is both unjust and unlawful and sooner or later some issuing clerk
will encounter serious trouble through his laxity in this matter. Unless
you have personal knowledge respecting the applicant, there is but one
safe procedure: Compel him to produce his certificate of final
naturalization. His first papers, or declaration of intention are not
sufficient."
Mr. Hopkins also called the attention of the municipal clerks to the
change in the fish and game laws which no longer exempt women from the
necessity for procuring a license. Formerly women were not required to
have licenses to fish, although they had to get them to hunt. Now they
have to have licenses for both, as per Chapter 112, Laws of 1921.
HONOR TO MR. GASKILL.
Mr. Nelson B. Gaskill, formerly Assistant Attorney-General of New
Jersey, and now a member of the Federal Trade Commission, has been
elected chairman of that body. He is the second Jerseyman to enjoy that
honor, the late J. Franklin Fort, former Governor, having been chairman
several years ago.
Mr. Gaskill is a son of former Judge Joseph H. Gaskill of Burlington
County, was for many years connected with the New Jersey National Guard
and during the late War held the rank of Lieutenant-Colonel in the Judge
Advocate-General's Department. He was appointed to the Federal Trade
Commission by the then President Wilson.
JERSEY LAW SCHOOL ALUMNI.
The New Jersey Law School Alumni Association has completed its
organization. The officers elected are: Judge Clyde D. Souter,
President; John A. Ammerman, first Vice President; Miss Irene Rutherford
O'Crowley, Second Vice President; John A. Matthews, Third Vice
President; Miss Helen Oppenheimer, Secretary; Raymond Foster Davis,
Treasurer.
At the dinner in the Berwick Hotel, Newark, more than 100 lawyers in
this State, all graduated from the school, attended. Richard D. Currier,
President of the law school, told the guests of the advantages gained by
promoting good fellowship in the form of an alumni association.
HUMOR OF THE LAW.
A certain lawyer was asked by an acquaintance how it was that lawyers
contrived to remain on such friendly terms with each other, although
they were famed for their cutting remarks.
The lawyer looked at him with a twinkle in his eye, and remarked:
"Yes, but they're like scissors; they only cut what comes
between."--_Japan Advertiser._
* * * * *
His Honor: "Get the prisoner's name, so we can tell his mother." Rookie:
"He sez his mither knows his name."--_Vaudeville News._
* * * * *
"Prisoner at the bar," said the judge, "will you have trial by judge or
jury?"
"By jury, your honor," said the defendant. "I'll take no chance on you!"
"What!" roared the court. "Do you mean to say that I would--"
"I don't mean t' say nothing," said the prisoner, stoutly, "but I ain't
taking no chances. I done some plumbin' work for you last
winter!"--_Richmond Times-Dispatch._
* * * * *
There recently died in Illinois an aged farmer, reputed to be wealthy.
After his death, however, it was discovered he left nothing. And his
will ran like this:
"In the name of God, amen. There's only one thing I have. I leave the
earth. My relatives have always wanted it. Now they can have it."
* * * * *
Mr. Hardfax: "So your son left us to go into a bank in the city? How did
he acquit himself?"
Mr. Timbertop: "He didn't acquit himself. It took the best lawyer in the
county to get him acquitted."--_Boston Globe._
THE LEGISLATURE.
The 146th session of the New Jersey Legislature opened at Trenton on
January 10. The Senate consisted of 16 Republicans and 5 Democrats; the
Assembly of 45 Republicans and 15 Democrats.
There are two women in the Legislature, Mrs. Catherine Brown, Democrat,
of Hudson county, and Mrs. Margaret B. Laird, Republican, who was
reëlected from Essex county.
Senator William B. Mackay, of Bergen county was elected President of the
Senate; and Assemblyman T. Harry Rowland, of Camden, Speaker of the
House of Assembly.
GOVERNOR'S APPOINTMENTS.
Among the recent appointments by Governor Edwards the following will
prove of special interest to the Bar:
Justice James F. Minturn, of Hoboken, of the Supreme Court, reappointed.
Justice Charles C. Black, of Jersey City, of the Supreme Court,
reappointed.
Judge Walter P. Gardner, Jr., of Jersey City, member of the Court of
Errors and Appeals.
Mr. Samuel M. Shay, of Merchantville, Common Pleas Judge of Camden
county in place of Judge John B. Kates.
Judge William H. Speer, of Jersey City, Circuit Court Judge,
reappointed.
Mr. Willis T. Porch, of Pitman, Prosecutor of the Pleas of Gloucester
county, to succeed Oscar B. Bedrow.
Mr. John O. Bigelow, of Newark, for Prosecutor of the Pleas.
Mr. John Enright, of Freehold, for Commissioner of Education.
SOME STATE NOTES.
On Jan. 5 former Judge Maja Leon Berry, solicitor of the Ocean County
Board of Freeholders, entertained that body, the county officials and
newspaper men at a dinner at the Ocean House. The occasion was the
host's forty-fifth birthday and he has followed this custom of
entertaining the officials for the past twelve years.
Mr. James R. Nugent, of Newark, was nominated on January 16 by the
Governor for Prosecutor of the Pleas of Essex county, but, a week later,
was refused confirmation by the Senate, by a vote of 17 to 3.
Mr. William E. Holmwood, of Newark, has removed his law office to 43
Washington street.
Mr. J. Victor D'Aloia, of Newark, has gone to Europe for a stay of about
two months, so as to visit his parents in Italy.
A testimonial dinner was given to Judge Rulif V. Lawrence, of Freehold,
at the Hotel Belmont at that place, on January 2, and he was presented
with the gift of a gold watch.
The Monmouth Co. Bar Association held its annual meeting at Freehold on
January 3 and reëlected its President, Halstead H. Wainwright, of
Manasquan.
The Union Co. Bar Association held its annual meeting at Elizabeth on
January 3 and elected as its President Mr. Clark McK. Whittemore. It
decided to ask the Legislature to increase the jurisdiction of the
District Courts.
State Senator Thomas Brown, of Perth Amboy, was appointed counsel for
the Public Utilities Commission on January 3, to succeed Mr. L. Edward
Herrmann, although the latter is still retained by the Commission as
special counsel in the prosecution of the Public Service rate case
before the United States Supreme Court. Senator Brown has practiced law
at Perth Amboy since 1907.
OBITUARIES.
MR. GEORGE W. JENKINS.
Mr. George Walker Jenkins, one of the best known lawyers of Morristown
in former years, afterward as active in corporation matters in New York
City, died in Memorial Hospital, New York City, on January 19, 1922. He
had been out of health for some months, but went to the Hospital only a
few days before his death.
Mr. Jenkins was born November 7, 1848, at Catasauqua, Pa., his parents
being George and Hannah (Morgan) Jenkins, who were Welsh people and born
in Wales. After the usual early education he entered Yale College, from
which he was graduated in 1870. He studied law with Messrs. Parker &
Keasbey, in Newark, and was admitted to the New Jersey Bar at the
November Term, 1873, and became counselor at the February Term, 1880. He
began practice at Boonton, but later went to Morristown, where he soon
became one of the most active lawyers of the place. He had ability,
assiduity and exactness in office matters, being so exact in fact that
he became one of the most popular Special Masters of the Court of
Chancery to whom other members of the Bar referred their cases whenever
practicable. Taking early to politics he was soon prominent in the
Republican party, and was elected and served as a Member of the Assembly
during the years 1883, 1884 and 1885. He was also counsel to the Board
of Chosen Freeholders, and at one time served as Journal Clerk of the
New Jersey Senate. In 1886 he ran for State Senator for Morris county,
but was defeated by George T. Werts, who afterward became Governor.
About twenty-five years ago Mr. Jenkins, while not removing from
Morristown, went to New York City, and was engaged from then until
recently, when his health became impaired, in carrying on legal business
connected with various extensive corporation enterprises. He was
Vice-President and director of the Bridgeport (Conn.) Gun Implement Co.
and Remington Arms Co., director of the M. Hartley Co., Treasurer and
director of the Union Metallic Cartridge Co., Trustee of the Washington
Trust Co., etc., in all of which his legal knowledge was used with skill
and real ability. He owned a large and handsome residence in Morristown,
and also the Silver Lake Farms at Green Village. He was a member of the
Morristown Club, Morris County Golf Club and the University, Yale and
Union League Clubs of New York City.
Mr. Jenkins married Miss Helen Hartley, daughter of Marcellus Hartley,
of New York City, who, with one daughter and two grandchildren, survive
him. His eldest daughter, Mrs. Frances Greer, of New York City, died
about two years since; the surviving daughter is Mrs. Winter Mead, of
Sand Beach, Conn. He is also survived by a sister, Mrs. A. L. Dennis, of
Plainfield, and by nieces. The interment was at Boonton.
MR. JAMES A. GORDON.
Mr. James A. Gordon, an active practicing lawyer at Jersey City, died
suddenly at his home, 638 Pavonia avenue, on January 11. Complaining
that he felt ill, Mr. Gordon left his office the day previous, but his
illness gave no indication that death was near.
Mr. Gordon was the son of John A. and Isabella (Leslie) Gordon, and was
born in the city of Bergen (now Jersey City), October 7, 1860. He was
graduated from the Jersey City High School in 1881; read law with Mr.
John Linn and Linn & Babbitt, and was admitted as a New Jersey attorney
at the June Term, 1885, and as counselor at the June Term, 1888. He soon
became one of the ablest of the younger members of the Hudson Bar. His
office was at 586 Newark avenue, Jersey City, at the time of his death.
He was unmarried and made his home with a sister, Miss Isabelle Leslie
Gordon, who, with a brother, William Stewart Gordon, survives him. He
belonged to the Bergen Lodge, F. and A. M., and the Hudson Bar
Association.
MR. ROBERT I. HOPPER.
Mr. Robert Imlay Hopper, of Paterson, long a prominent attorney of that
city, died on January 24th after a few days illness from a general
breakdown.
Mr. Hopper was the son of the late Judge John Hopper and Mary A. (Imlay)
Hopper, of Paterson, and was born in that city May 28, 1845. After a
public school education he entered Rutgers College, being graduated
there in 1866. He studied law with his father and became a New Jersey
attorney at the June Term, 1869, and a counselor three years later. For
many years father and son were associated in practice in Paterson, being
severed only because the father was elevated to the Bench. In 1878 he
was chosen counsel to the Passaic Board of Chosen Freeholders and served
as such for ten years. He was also secretary to the Paterson & Hudson
River Railroad (now part of the Erie R. R.), holding that office at the
time of his death. He was active in the National Guard of New Jersey,
having been Major and Judge Advocate, and was prominent in Masonic
circles and in various clubs. His wife, who was Miss Ida E. Hughes, died
April 24, 1878. One daughter, Ida, survives.
VAN NESS ACT OVERTHROWN.
On February 2 the Court of Errors and Appeals of this State declared the
Van Ness Prohibition Enforcement Act unconstitutional. This decision
reverses the Supreme Court in the three test cases involving the
constitutionality of the Enforcement Act and sets aside the opinion
written in the lower Court by Mr. Justice Minturn, presumably concurred
in by Justices Trenchard and Bergen, who heard the argument below. Had
they sat in the full Court there would have been so close a division
that the Court would have stood, as we see it, almost even.
The news comes to us just as we are going to press, so that the text of
the decisions and dissents is not available. The newspapers state,
however, that four opinions were filed and that results on single
propositions tended to sustain the constitutionality of procedures while
as a whole the Act was overthrown. Says one newspaper:
"On the question of a jury trial, the Justices found that the denial of
it was proper, six votes to five. That the Act was not unconstitutional
in describing as a misdemeanor what the Federal Volstead Act describes
as a crime, the Court agrees six to six, which upholds the Act. On the
two questions of whether the Act was properly described in its title,
and whether the functions put upon the magistrates by it could properly
be exercised, the Court upholds it nine to two. In other words, each one
of these features is in itself constitutional. But there are eight
Justices who disagree with it on one point or another and only four who
found nothing to disagree with. Therefore, we have the curious
phenomenon of a piece of legislation constitutional in each separate
part, but under which, as it stands, it is impossible to secure a
conviction that will be affirmed. In other words, the Act will not stand
as it is."
Chancellor Walker devoted the main part of his opinion to consideration
of the constitutional question involving the right of indictment and
trial by jury, in which he held that the Act was defective. Among other
things he said:
"It is almost superfluous to say that the proceedings under view are
void because there has been no indictment, as that is a mere corollary
to the proposition that they are void because the defendant was denied
the right of trial by jury. No one can be put upon trial before a
traverse jury in New Jersey for a commission of a crime unless upon the
presentment of indictment of a grand jury, except in cases of
impeachment or in cases cognizable by justices of the peace (or certain
military or naval cases)."
Chief Justice Gummere's opinion was concurred in by Justice Swayze and
Judges Gardner, Ackerson and Van Buskirk. It approached the subject from
a different angle than the chancellor, reaching the conclusion that,
with the passage of the Eighteenth Amendment, the State had to surrender
part of its police power to the Federal Government, and therefore was
bound to legislate in conformity with the Volstead Act, which, passed
under authority of the Federal Constitution, becomes the supreme law of
the land.
Justice Kalisch held that the supreme law of the land, embodied in the
Volstead Act, having made certain offenses a crime, it was not within
the power of the State to classify them as petty offenders.
Consideration was given by Judge White to the questions relative to the
right of trial by jury and the alleged erroneous interpretation on the
question of concurrent power. As to the first objection, that relating
to the right of trial by jury, Judge White said he thought the real
underlying historically established test depends upon the character of
the offense involved rather than upon the penalty imposed.
"The offense must be a petty and trivial violation of regulations
established under the police power of the State in order that the
offender may be summarily tried, convicted and punished without
indictment by a grand jury and without trial by a petit jury." It must,
of course, Judge White said, be assumed that the punishment for a petty
and trivial offense will also be comparatively petty and trivial,
otherwise it would violate another provision of the State Constitution
which prohibits cruel and unusual punishment.
Transcriber Notes:
Passages in italics were indicated by _underscores_.
Small caps were replaced with ALL CAPS.
Errors in punctuations and inconsistent hyphenation were not corrected
unless otherwise noted.
On page 38, a single quote was added after "and no longer"
On page 48, "increditable" was replaced with "incredible".
On page 48, "canot" was replaced with "cannot".
On page 52, "execuetd" was replaced with "executed".
On page 58, "nighttime" was replaced with "night-time".
On page 60, a dash was added before "Japan Advertiser".
On page 64, "qustions" was replaced with "questions".
End of the Project Gutenberg EBook of The New Jersey Law Journal, Volume
XLV, No. 2, February, 1922, by Various
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