The Project Gutenberg EBook of The New Jersey Law Journal, Volume XLV, No.
3, March, 1922, by Various
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Title: The New Jersey Law Journal, Volume XLV, No. 3, March, 1922
Author: Various
Editor: A. Van Doren Honeyman
Release Date: September 20, 2019 [EBook #60300]
Language: English
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THE
NEW JERSEY LAW JOURNAL
PUBLISHED MONTHLY
VOLUME XLV MARCH, 1922 No. 3
EDITORIAL NOTES.
HAPPILY IT IS not such a frequent occurrence as may be supposed that the
Judges of our Court of Errors and Appeals split apart so curiously as
they did in determining that the Van Ness Enforcement Act should be
declared unconstitutional. The result only shows that, like the doctors,
Judges cannot all think alike. On the subject of whether whiskey is
useful as a medicine or not our New Jersey doctors, on a canvass, split,
520 to 308, or 490 to 319, according as one interprets the replies. In
the Nation at large it ran 51 per cent. to 49 per cent., a closer
margin. But only half of those who were interrogated by the "Journal of
the American Medical Association" responded; what the rest thought we do
not know. So on the legal questions involved in the Van Ness Act,
counting those Judges who approved the Act as constitutional in the
Supreme Court, the difference between a yea and nay vote appears to have
been only one. On the subject of whether the Act could be sustained
because it took away from defendants the right of trial by jury, which
was the great burden in objections made by defendants themselves, the
Court held what this Journal has held, that the Legislature had the
power to direct that trials might be by magistrates without a jury. It
had done so over and over again in other matters and could do so in
liquor legislation as well. On other points there were various
differences of opinion. However, since the Act as a whole is declared
unconstitutional, on the ground that it does not conform to the Federal
Act, which declares that the illegal possession, sale, etc., of liquors
constitute a crime, instead of disorderliness, the Legislature has
passed new statutes which alter the basis of a conviction from a
disorderly proceeding to a criminal proceeding. There is no hope in this
for bootleggers, except as it permits them to escape by jury
disagreements or "not guilty" verdicts. If no law were enacted the
Federal Courts would be filled with cases, and the results there would
give no hope to criminals. Generally speaking, the upsetting of the Van
Ness Act is unfortunate, because jury trials are expensive as well as
uncertain; trials before Judges as magistrates are more certain and far
less expensive. In the end, however, bootleggers will not win in the
game.
* * * * *
On the question of the legality of "picketing" by strikes the Court of
Errors and Appeals of this State also held quite divergent views, but
sustained the Keuffel & Esser injunction granted by Vice-Chancellor
Buchanan against the International Association of Machinists. The
majority decision of the Court was rendered on Jan. 26th, in an opinion
by Mr. Justice Swayze. His finding was sustained by 9 affirmative and 5
negative votes. Besides Justice Swayze, the members of the Court voting
to affirm were Justices Parker, Bergen, Kalisch and Katzenbach, and
Judges White, Williams, Gardner and Ackerson. Voting to reverse were
Chief Justice Gummere, Justices Trenchard, Minturn and Black and Judge
Van Buskirk. "The object of the appeal avowedly is," said Justice
Swayze, "to secure a decision as to the legality of picketing when
unaccompanied with violence, molestation of others, annoying language or
conduct--in short, what is sometimes called peaceful picketing. Parading
in the neighborhood of complainants with placards indicating that a
strike is in progress is similar in its legal character to picketing."
He then pointed out that the Court is bound in a measure by the recent
decision of the Supreme Court of the United States in the case of the
American Steel Foundries v. The Tri-City Central Trades Council, in
which Chief Justice Taft wrote an opinion upon the rights of strikers,
both at common law and as governed by the Clayton act. Taking the
Federal decision as a foundation, Justice Swayze said it held the
employer had the right to the access of his employés to his place of
business and of egress therefrom, without intimidation or obstruction;
and the employés, recent or expectant, had the right to use peaceable
and lawful means to induce present employés and would-be employés to
join their ranks. He remarked that the legality of any particular
conduct depends on the facts of the particular case and that picketing
may or may not be lawful, as it has or has not an immediate tendency to
intimidate the other party to the controversy. Remarking that picketing
is illegal if it has an immediate tendency to obstruct free passage such
as the streets afford, consistent with the rights of others to enjoy the
same privilege, Justice Swayze continued:
"Thus men may accost one another with a view of influencing action, but
may not resort to persistence, importunity, following and dogging. The
number of pickets may of itself make the picketing unlawful, since it
may amount to intimidation. Everyone knows that threats of bodily harm
may be made by a mere show of force, without violence of language or
breach of the peace, and that mere numbers may intimidate. The real
question is, 'Does the conduct under existing facts amount to
intimidation?' Twenty-five or fifty pickets may, when a single picket
probably would not. If information alone were wanted in the pending
case, all the information necessary for the defendants to enable them to
prosecute their efforts to convert the complainants employés would have
been obtained by a few men. The use of twenty-five or fifty or two
hundred, as in fact used, was clearly unnecessary, and could not have
been intended for any lawful purpose. In view of the testimony as to
what actually went on, the Vice-Chancellor properly held that the
conduct of the defendants was an illegal interference with the
complainants' property rights."
* * * * *
The opinion noted above is, in the whole, a lengthy one. Judge White
concurred in it in a separate opinion. Justice Minturn filed a strong
dissenting view, taking the ground that the Court's conclusion served to
mark another step in the cycle of judicial legislation, which, beginning
with an appropriate effort to curb agitation of a forcible character,
has concluded with an edict which will be construed to put an end to
peaceable and constitutional economic agitation. "Nothing further," he
said, "would seem to be necessary to complete the chaplet of judicial
legislation, unless it be the invocation of the provisions of the
statute of laborers (Edward III.), under the provisions of which the
laborer was effectually conscripted to the service of the master, and to
that end was hounded as a helot, and labeled with the brand of Cain. In
every other walk of life the peaceful activities condemned by these
adjudications are quiescently tolerated, if not approving recognized."
* * * * *
The cash bonus asked--not asked but demanded in formal resolutions--by
various of the associations of the American Legion throughout the
country, and which has given the present Congress and the President more
concern than almost any domestic subject, has not struck a responsive
chord in the popular ear except from the soldiers--a minority of them,
as we believe--who want it. Every business man knows it is not the time
to pension well soldiers of the late war further than the States are
doing it. We have always doubted that the best officers and soldiers of
the country were behind the movement. It is to belittle their patriotism
to believe that they desire to foist billions of taxes, direct or
indirect, upon their country at the present moment.
* * * * *
When Senator Edge told an assembly at Atlantic City recently that the
Senate of the United States, of which he is a member, failed alarmingly
in performing its proper duties in a speedy and efficient manner, he
only stated what public opinion has long held. The mere fact, to which
he did not allude however, that a few men can talk any good project
before that body to death, the Senate rules permitting unlimited debate,
has served again and again to prove the truth of his statements. The
House of Representatives, with its too-many members, is far more
reflective of public sentiment than the Senate, and actually does its
work more expeditiously when a majority of members desire quick action.
A reform in the Senate is of such importance that too much public
attention to its improper methods of carrying on public business cannot
be given. The press of the country should be a unit in demanding a
change in methods and results. The New York "Times" thinks the trouble
is largely due to the fact that there is a dearth of strong men in the
Senate; that there is no great inducement for a strong man to go to the
Senate as a new member, because he is practically "frozen out" of any
good committee assignment for a long period of time. It says of a new
member:
"What will happen to him when he takes his seat in the Senate? He will
get only insignificant committee appointments. He will be expected to be
silent for at least six months. If he undertakes, as a new Senator, to
impress upon the Senate any positive convictions of his own, he will be
'hazed' like a college freshman in the effort to teach him his place. If
there is in the Senate a 'career open to talent,' it is open only after
long waiting. In short, the Senate that now professes an anxiety for the
accession of strong men itself puts formidable obstacles in the way of a
strong man. Its rules, as Senator Wadsworth has just been lamenting,
make it almost impossible to transact business. Its time is mostly taken
up by querulous and ineffective members. Its committees are manned by
the rule of seniority, which too often spells senility. Indeed, about
the only way in which the Senate as it is at present can be said to be a
nursery of political strength is in accordance with the maxim, Suffer
and be strong. A Senator who can survive for a few years the suffering,
mental and moral, which he has to undergo in the Senate, may emerge into
power and influence. But upon the strong man just arrived the Senate
always puts a damper."
Lots of truth in this. Nevertheless, present Senate rules combined with
too much politics and too little statesmanship and business activity are
responsible for a deterioration of the public esteem for our highest
governing body.
* * * * *
Dean Stone of the Columbia University Law School of New York City in a
report to the President of that Institution made recently sounds a
proper warning as to the quality and numbers of young men crowding into
the Bars of many of the States. Among other things he said:
"It may well be doubted whether there is any profession which makes
greater demands than the law on the capacity of its members for
sustained intellectual efforts, their powers of discrimination and their
ability to master detail. Yet, as I have often had occasion to point out
in these reports, increasing numbers of men of mediocre ability and
inadequate preliminary education are being attracted to the law by the
ever-increasing facilities for law study. What, under the conditions of
law study and admission to the Bar of a generation ago, was a task of
magnitude testing the patience, stability, character and intellectual
power of the prospective lawyer to the utmost may now be performed with
relative ease. This is partly attributable to the multiplication of
opportunities for law and study nicely adapted to the peculiar type of
Bar examination prevailing in most of our States, and partly because Law
Schools and Bar examinations too often place the interests of the
individual law student and sometimes their own interests ahead of the
interests of the profession. It is the duty of Law Schools to dissuade
the man of ordinary ability and meagre education from beginning law
study, and, if he will not be dissuaded, to apply to him standards of
proficiency and attainment worthy of the profession to whose membership
he aspires."
* * * * *
The Washington Conference is over and the results are more than
gratifying. Only the blindest obtuseness on the part of the United
States Senate has prevented early ratification of the various treaties
made by it. The great point gained by this Conference is that it brought
Great Britain, France, Japan, China and five other powers face to face
in friendliest attitude, and this is what should happen again when
occasion calls for it. Every country represented is happy over the
result, and to say that America should be is a truism. It marked another
great event in world history.
* * * * *
Some day perhaps, every moving-picture theatre will have this
description of the art it employs on its front curtain, for is it not
the lucid description recently published in a magazine devoted to the
"sublime art" of motion-picture writing? And it will be good for school
boys and girls to interpret: "The photodramatist enters the great cosmic
drama in keeping with the Infinite Plan; he will be, in the expanse of
days to come, a master of new values in art, science, philosophy,
religion. From the fastnesses of the invisible world of Thought,
fulgurous forces of the very essence of Beauty are sweeping into his
consciousness, attracted by the human desire for more complete
expression."
SOME REMINISCENCES, MOSTLY LEGAL.
BY HON. FREDERIC ADAMS, LOS ANGELES, CALIFORNIA.
V. SOME NEW JERSEY COURTS AND LAWYERS.
In the early autumn of 1862, nearly sixty years ago, I became a law
student in the office of Amzi Dodd, in Newark. Mr. Dodd was then at the
best of his mental and physical strength. In his office I came to know,
admire and revere him, and there was begun a cordial friendship between
us which continued unbroken until he passed away in extreme old age. I
think that there was not in New Jersey a sounder legal head than his,
nor a better balanced and more sagacious legal judgment. Nor was this
all. He was profoundly ethical, not obtrusively but sensitively. There
was a voice within to which he always listened, and he rested firmly on
the fundamental morals which are part of the religion of every good man
and underlie the Law itself. Nor was this all, for to the innermost
recesses of his nature he was devoutly, rationally and serenely
Christian.
Mr. Dodd was a Princeton graduate and a contemporary of three remarkable
Rutgers men, Cortlandt Parker, Frederick T. Frelinghuysen and Joseph P.
Bradley, any one of whom would have conferred distinction on any Bar in
the country. Mr. Dodd, though a good and persuasive speaker, had not the
oratorical charm of Mr. Frelinghuysen, nor the forensic power of Mr.
Parker. He and Mr. Bradley had a good deal in common. Both were
scholarly, excellent mathematicians, and had the judicial stamp.
In my first year with Mr. Dodd I had an interesting experience. His
cousin, Chief Justice Edward W. Whelpley, came to Newark to hold the
Essex Circuit, pursuant, I suppose, to some arrangement with Judge
Daniel Haines. He was in the office almost every day, and I lost no
opportunity to attend Court and hear him try cases. He was an impressive
figure, a big man with a heavy voice and a commanding manner. I have
sometimes wondered since whether he was really as powerful a Judge as he
then seemed to me to be, or whether perhaps his dominating personality
threw a kind of spell over me. I remember that his charge would often
efface the impressions made by the arguments of counsel. He seemed to be
in exuberant health and spirits, and to have before him the prospect of
many years of usefulness and distinction. He died on February 22, 1864,
and was succeeded by Mercer Beasley, who held office for thirty-three
years, and wrote his name high on the scroll of New Jersey worthies. I
wonder how many of the Essex Bar now remember seeing Chief Justice
Whelpley at the Essex Circuit. He held the Union Circuit also, and, I
have heard, used to get his dinner in New York on the ground that there
was nothing fit to eat in Union county. He was probably unfortunate in
his choice of a restaurant, or perhaps his requirements were unusual,
for he is said to have spoken unfavorably of our national bird, the
turkey, because a turkey is "too much for one and not enough for two."
Judge Haines left the Bench at the expiration of his term on November
15, 1866, and was succeeded by David A. Depue, who held office as Judge
and Chief Justice and was a strong pillar of society, until November 16,
1901.
A Persian proverb says that a Stone fit for the wall is never left in
the road, and so, as it was according to the evident fitness of things
that Mr. Dodd should become a Judge, that event came to pass when
Chancellor Zabriskie, in 1871, appointed him the first Vice-Chancellor.
In 1875 he resigned his office, and in 1881 was reappointed by
Chancellor Runyon. He became also a specially appointed Judge of the
Court of Errors and Appeals, thus strengthening its equity side. In a
Court many of whose most important issues are in equity, and one of
whose members is the Chancellor, who is precluded from sitting in equity
cases, it is always well that some of the Judges should have, or have
had, the valuable experience of sitting alone in equity, and dealing at
first hand with the rules of equity practice and procedure. This has
been the case with Justice Bergen and Mr. Dodd. No other instances occur
to me.
The highwater mark of Vice Chancellor Dodd's judicial duty was reached
in the memorable case of Pennsylvania R. R. Co. v. National Railway Co.,
23 Equity 441, decided at the February term, 1873. This was before the
General Railroad Law, and there was a strong movement, backed by much
public opinion, and attended by some public excitement and high feeling,
to break the monopoly of the Pennsylvania Railroad Company by uniting
interests and connecting existing roads, so as to secure an independent
through line between New York and Philadelphia. The purpose was
meritorious, for the State needed another through line. The case which
Vice-Chancellor Dodd decided was in form an application to enjoin the
National Railway Company from proceeding with the construction of its
road in New Jersey with intent to use it as part of a through line from
New York to Philadelphia. The argument which, with the reading of
proofs, took two weeks, was upon a rule to show cause why an injunction
should not issue pursuant to the prayer of the bill. Attorney-General
Stockton, Mr. Theodore Cuyler and others were counsel for the
complainant, and Mr. Cortlandt Parker and others represented the
defendants. I went to Trenton to hear the opinion. The reading of it
took about an hour. The gist of the opinion, which was for the
complainant, was this,--not that several links might not form a chain,
but that the defendants' so-called links formed no chain because the
legislative acts which created them indicated no intent that they should
connect. The opinion shows Vice-Chancellor Dodd's strong judicial
qualities; admirable language and style, clear statement, controversial
force, persuasive reasoning and exposition, all, in their combination,
leading up to a high level of jurisprudence. I know of nothing in the
New Jersey books more skillful or nobly ethical than portions of this
opinion. Vice-Chancellor Dodd would not have esteemed it praise to be
told that the case was a test of his nerve, for, though his feelings
were easily wounded, he was far above being moved by clamor, either
before or after a decision. I will not dwell on Vice-Chancellor Dodd's
other opinions. They are numerous and may be consulted in the volumes in
which they are printed, beginning with 22nd Equity.
A strong magnet was drawing Vice-Chancellor Dodd away from the law to a
pursuit attractive to one of his mathematical bent: I mean the
intellectual side of the science and art of life insurance, and it
finally captured him. Perhaps some readers of the New Jersey Law Journal
have been favored, as I have been, by polite letters from one or more
insurance companies, offering options between two or three propositions
about equally unintelligible, and have, perhaps improvidently, solved
the problem by selecting the one which seemed to promise most immediate
cash. To such persons, if any there be, I respectfully commend the
perusal of a valued and interesting book of about four hundred pages
which lies before me, entitled "Reports to the Board of Directors of the
Mutual Benefit Life Insurance Company, made by Amzi Dodd as
Mathematician or President, from October, 1877, to January 21, 1901." I
can say like Hamlet, "I am ill at these numbers," if I may be pardoned
for perverting the meaning of the Prince of Denmark, but I have
sufficient comprehension to see that the same man wrote the opinions and
the reports, and that they are characterized by the same high mental and
moral qualities.
Mr. Dodd was fond of Governor William Pennington and liked to talk about
him. They became acquainted when they met in a cow case at Orange. An
old woman's cow was run down and killed by a Morris & Essex train and
young Dodd sued the railroad. It had not then been judicially determined
in New Jersey whether a cow or the locomotive had the superior right of
way. The case was tried before a Justice of the Peace with a jury. Dodd
was very much on his good behavior and treated the Governor with extreme
courtesy. He had the crowd with him and triumphantly won the verdict.
The next day Governor Pennington called on him, or sent for him,
complimented him on his management of the case, and spoke of his own
friendship with Amzi Dodd, an uncle of young Amzi, who was a capable
Newark lawyer, a careless, unsystematic man of whom I heard Mr.
Cortlandt Parker tell that he carried his papers in his hat, and was
said sometimes to lose both hat and papers together.
One day, Amzi Dodd, the uncle, came into Governor Pennington's office
and said: "Good morning, Governor. Confound these young fellows! They
get all my books away from me. Now there is 'Elmer's Forms.' I own a
copy of it, and it has my name in it, but it is gone. It is a very
useful book. I need it every day. Governor, have you a copy that you can
let me have?"
Governor Pennington, who was a courtly gentleman of the old school and
something of a wag, answered very gravely:
"Mr. Dodd, I agree with you about 'Elmer's Forms.' It is an excellent
office book. I consult it every day and should be sorry to be without
it, but you know, Mr. Dodd, that I am always ready to oblige you, and I
will cheerfully let you have it if you will promise in writing to return
it when I need it." "Certainly," said Mr. Dodd, and dashed off a
serio-comic agreement to return the book when called for. He folded the
document and handed it to the Governor, and the Governor handed him his
own missing book.
I told this to my old Yale friend, William Pennington of Paterson, a
nephew of the Governor, who chuckled and said, "I can see him doing it."
Governor Pennington used often to associate young Dodd with him in the
trial of causes. He had been Governor under the old Constitution and
_ex-officio_ Chancellor, but was not scholarly and relied very much on
his knowledge of the world, tact, and strong common sense. Mr. Dodd once
told me that while the Governor knew very little law, he was a most
dangerous antagonist before a jury. If he had the close he was almost
sure to get the jury with him, and if you had the close he would sit in
front of the jury and smile your speech away.
Mr. Dodd is my authority for this story: Ex-Governor Daniel Haines, the
Justice of the Supreme Court who held the Essex Circuit, was a man of
strict views, and Mr. Cortlandt Parker, the Prosecutor of the Pleas, was
discharging his important duties with a force and efficiency worthy of
national issues and a wider stage, and so, what with the austerity of
the Judge and the zeal of the Prosecutor, the way of the transgressor
was growing hard, and it was getting to be common talk among the
rounders and hangers-on at the courthouse that if a man was indicted he
might as well plead guilty at once and save the county the expense of a
trial. Some malefactor, with more money or spirit than the others, paid
Governor Pennington a good fee and instructed him to fight. The Governor
had been informed of the current gossip, and thought he would see what
he could make out of it. So he told the jury in his most impressive
manner, that a man is taken to be innocent until he is proved to be
guilty; that this is the palladium of our liberties; and that he feared
that this precious, fundamental right was not sufficiently borne in
mind, even in the courthouse of the county of Essex, and that it was too
much assumed that conviction ought to follow indictment. At this point
Judge Haines, with a flushed face and his eyes shining brightly through
his gold-rimmed spectacles, interrupted the Governor, and said that he
had heard the remarks of the distinguished counsel with much surprise
and regret; that they conveyed an imputation upon the Court itself--an
intimation that he was derelict in his duty toward an important class of
suitors, the defendants in criminal cases, and that he desired to know
and now asked counsel to state from what persons he heard these
strictures upon the Court. Governor Pennington, with his usual urbanity,
bowed and said: "It is mainly from the criminals themselves." This
answer occasioned such a sudden revulsion of thought and feeling as to
discompose the Judge and convulse the Bar.
It is now just seventy years since Mr. Dodd went to Trenton to hear and
see Daniel Webster and Rufus Choate in the case of Charles Goodyear
against Horace H. Day, pending in the Circuit Court of the United States
before Judge Grier of the Supreme Court, and a District Judge. There is
probably now no living member of the Bench or Bar of New Jersey who
attended that trial even as a spectator. As to this case I quote briefly
from Mr. Choate's "Commemorative Discourse" on Webster, delivered at
Dartmouth College on July 27, 1852:
"The professional life of Mr. Webster began in the spring of 1805. It
may not be said to have ended until he died; but I do not know that it
happened to him to appear in Court, for the trial of a cause, after his
argument of the Goodyear patent for improvements in the preparation of
India-rubber, in Trenton, in March, 1852. There I saw him and last heard
him. The thirty-four years which had elapsed since, a member of this
College, at home for health, I first saw and heard him in the Supreme
Court of Massachusetts, in the county of Essex, defending Jackman,
accused of the robbery of Goodrich, had in almost all things changed
him. The raven hair, the vigorous, full frame and firm tread, the
eminent but severe beauty of the countenance, not yet sealed with the
middle age of man, the exuberant demonstration of all sorts of power,
which so marked him at first--for these, as once they were, I explored
in vain. Yet how far higher was the interest that attended him now: his
sixty-nine years robed, as it were, with honor and with love, with
associations of great service done to the State, and of great fame
gathered and safe; and then the perfect mastery of the cause in its
legal and scientific principles, and in all its facts; the admirable
clearness and order in which his propositions were advanced
successively; the power, the occasional high ethical tone, the
appropriate eloquence, by which they were made probable and persuasive
to the judicial reason--these announced the leader of the American bar,
with every faculty and every accomplishment, by which he had won that
proud title, wholly unimpaired; the eye not dim nor the natural force
abated."
Mr. Webster represented Goodyear, Mr. Choate represented Day. The
injunction which Goodyear applied for was granted. Day surrendered his
license, transferred his factory and machinery to a representative of
Goodyear, and agreed to retire from the business for the sum of
$350,000, and counsel fees amounting to $21,000 additional, which
amounts were paid. Mr. Webster's retainer was $15,000.
Mr. Dodd liked to talk about this case. Mr. Webster and Mr. Choate each
spoke for two days, or parts of two days. Chancellor Green is said to
have called Mr. Choate's argument the finest that he ever heard in
Court. Lawyers came from all over the State to attend the trial. Mr.
Dodd said that at times Mr. Choate would seem "to go up like a balloon."
One who has heard or even read Choate knows how at times he would seem
to lift himself and his audience on the rushing wings of his magical
oratory.
One of the junior counsel for Day had made some impression by dwelling
on the hardships of operatives if the injunction should be granted. The
day was getting late and Judge Grier suggested to Mr. Webster, who was
to speak next, that the Court adjourn until the next day. Mr. Webster
assented, but said: "There is one thing that I wish to say now. If Mr.
Day's operatives are likely to be distressed, it will be because of his
own default, of his own breach of faith, of his own repudiation of his
own solemn contract, under his own hand and seal," and, as he said it,
his voice deepened and his eyes flashed, and the courtroom rang as with
a peal of mellow thunder. Mr. Dodd came out of Court with ex-Chancellor
Halsted who said: "Well, Amzi, the old lion has given his first growl."
The case is reported in 10 Federal Cases, page 638, Case No. 5569.
In a footnote is this extract from Mr. Webster's argument. It is
interesting, for it shows him at his very best and is not generally
known. His biographer, Mr. G. T. Curtis, speaks of this argument as one
of the most remarkable and interesting of his forensic efforts.
"I believe," said Mr. Webster, "that the man who sits at this table,
Charles Goodyear, is to go down to posterity in the history of the Arts
in this country, in that great class of inventors at the head of which
stands Robert Fulton, in which class stand the names of Whitney and of
Morse, and in which class will stand '_non post long intervallo_' the
humble name of Charles Goodyear. Notwithstanding all the difficulties he
encountered he went on. If there was reproach he bore it. If poverty, he
suffered under it; but he went on, and these people followed him from
step to step, from 1834 to 1839, or until a later period when his
invention was completed, and then they opened their eyes with
astonishment. They then saw that what they had been treating with
ridicule was sublime; that what they had made the subject of reproach
was the exercise of great inventive genius; that what they had laughed
at was the perseverance of a man of talent with great perceptive
faculties, which had brought out a wonder as much to their astonishment
as if another sun had arisen in the hemisphere above. He says of his
cell in the debtors' jail that 'it is as good a lodging as he may expect
this side the grave'; he hopes his friends will come and see him on the
subject of India rubber manufacture; and then he speaks of his family
and of his wife. He had but two objects, his family and his discovery.
In all his distress and in all his trials his wife was willing to
participate in his sufferings, and endure everything, and hope
everything; she was willing to be poor; she was willing to go to prison,
if it was necessary, when he went to prison; she was willing to share
with him everything; and that was his solace. May it please your honors,
there is nothing upon the earth that can compare with the faithful
attachment of a wife; no creature who, for the object of her love, is so
indomitable, so persevering, so ready to suffer and to die. Under the
most depressing circumstances woman's weakness becomes mighty power; her
timidity becomes fearless courage; all her shrinking and sinking passes
away, and her spirit acquires the firmness of marble--adamantine
firmness, when circumstances drive her to put forth all her energies
under the inspiration of her affections. Mr. Goodyear survived all this,
and I am sure he would go through the same suffering ten times again for
the same consolation. He carried on his experiments perseveringly, and
with success, and obtained a patent in 1844 for his great invention."
There is a spirited report of the same case in 2 Wallace Jr., where, at
pages 294 and 295, are some turns of thought and expression very
characteristic of Mr. Webster.
A few months later, on October 24, 1852, Daniel Webster died at
Marshfield.
Years after the Trenton trial Mr. Dodd was in Boston, and was inclined
to call on Mr. Choate, at his office, but at the very door his
diffidence made him withdraw. He should have gone on. An opportunity was
lost. It was said of Mr. Choate that he treated every man with the
courtesy due to a woman, and every woman as though she were a queen. He
bore interruptions cheerfully, almost gladly. Mr. Choate would have been
found working at a standing desk covered with his hieroglyphic notes,
undecipherable except by himself; he would have cordially owned his
visitor's fraternal claim to his attention; and he would have kindled to
the depths of his nature at the memory of his last encounter with his
mighty friend.
* * * * *
That the sale of whisky is prohibited by law is held in Ellis v. Com.
186 Ky. 494, 217 S. W. 368, not to deprive it of its character as goods,
wares, and merchandise, and a thing of value, within the meaning of a
statute providing for punishment of one breaking into a storehouse and
taking therefrom goods, wares, and merchandise or other thing of value.
IN RE B. & B. MOTOR SALES CORPORATION.
(U. S. Dist. Court, Dist. of New Jersey, Jan. 18, 1922).
_Bankruptcy--Sale of Auto Truck--Conditional Agreement and Its
Transfer--Right to Possession of Property--Uniform Conditional Sales
Act_.
In the matter of B. & B. Motor Sales Corporation, bankrupt. On
exceptions to Master's report denying The First People's Trust petition
for certain property held by the Receiver.
Mr. Harry Green for Exceptants, The First People's Trust.
Mr. Barney Larkey for the Receiver.
RELLSTAB, District Judge: The First People's Trust excepts to the
Master's findings that it is not entitled to Apex truck No. 5365, found
in the possession of the B. & B. Motor Sales Corporation (hereinafter
called the bankrupt,) at the time the receiver took charge of the
bankrupt's estate.
The facts are: The bankrupt carried on the business of buying and
selling auto trucks. On July 12, 1920, it agreed in writing with Robert
Jones to sell him the truck in question for $1,955, payable in monthly
installments. In this writing (called a "conditional sale agreement"),
signed by both parties, it was declared, inter alia, that the bankrupt
had that day delivered the truck to the buyer; that the title to the
truck was not to pass to the buyer, but was to "remain vested in and be
the property of the seller or assigns until the purchase price has been
fully paid;" that if Jones failed to pay any of the installments when
due the bankrupt might without demand, notice, or process, take
possession of the truck, whereupon Jones' right therein should terminate
absolutely, and all payments made thereon be restrained by the bankrupt
as liquidated damages and rent. At the same time, Jones executed two
notes to the bankrupt, one for the sum of $1,427.15 (in the conditional
sale agreement recited to be the balance to be paid on the truck),
payable in twelve monthly installments, wherein it was declared that
"upon default in the payment of any installment when due, the whole
amount remaining unpaid shall immediately become due;" the other note
represented the remainder (or some part of it) of the purchase price.
Both the conditional sale agreement and the $1,427.15 note subsequently
were transferred by the bankrupt to the First People's Trust. The
transfer of the agreement is dated July 12, 1920, and recites that it is
simultaneous with the purchase of the note; in terms it sells, assigns
and transfers the bankrupt's right, title and interest in the automobile
in question and also in the conditional sale agreement, and asserts that
the automobile was sold and not consigned to the buyer. The transfer of
the note bears no date, is in the form of an endorsement, guarantees
payment of the note, principal and interest, waives demand and protest,
and is signed by the bankrupt by its President and Secretary, and by the
same persons individually.
Jones had possession of the truck for several months, and, after making
some of the stipulated payments, defaulted in further payments on both
notes. The bankrupt repossessed itself of the truck, and was in
possession thereof at the time the receiver took charge. Neither the
conditional sale agreement nor the assignment was recorded. No rights or
interests of any purchaser or creditor of Jones, the buyer, are involved
in these proceedings, the controversy being exclusively between the
assignee of the conditional sale agreement and the creditors of the
bankrupt (seller).
The Master held that the assignment of the conditional sale agreement
"was to act as a mortgage for the payment of the notes;" and that, as
neither the conditional sale agreement nor the assignment had "been
recorded in accordance with the laws of the State of New Jersey and ...
the B. & B. Motor Sales Corporation had repossessed the truck and had it
in its possession at the time of the appointment of the receiver," the
receiver, and not the First People's Trust, was entitled to it.
First, as to the conditional sale agreement. The New Jersey Uniform
Conditional Sales Act, approved April 15, 1919, effective from July 4,
1919 (N. J. P. L., p. 461), in section 1, defines a seller as "the
person who sells or leases the goods covered by the conditional sale, or
any legal successor in interest of such person." In section 4 it
declares that: "Every provision in a conditional sale reserving property
in the seller after possession of the goods is delivered to the buyer,
shall be valid as to all persons, except as hereinafter otherwise
provided."
The exceptions here referred to are contained in section 5, which
declares that:
"Every provision in a conditional sale reserving property in the seller
shall be void as to any purchaser from or creditor of the buyer, who,
without notice of such provision, purchases the goods or acquires by
attachment or levy a lien upon them, before the contract or a copy
thereof shall be filed as hereinafter provided, unless such contract or
copy is so filed within ten days after the making of the conditional
sale."
From this recital it will be seen that as no purchaser from or creditor
of Jones is questioning the validity of such reservation, as between the
bankrupt and Jones, the reservation to the bankrupt of title and
property in the truck, was valid, notwithstanding the failure to record
the agreement.
Second, as to the assignment of the conditional sale agreement: The New
Jersey Chattel Mortgage Act (Revision of 1892; 1 Comp. Stat. N. J., p.
463) in section 4, declares:
"Every mortgage or conveyance intended to operate as a mortgage of goods
and chattels hereafter made, which shall not be accompanied by an
immediate delivery, and followed by an actual and continued change of
possession of things mortgaged, shall be absolutely void as against the
creditors of the mortgagor, and as against subsequent purchasers and
mortgagees in good faith, unless the mortgage, having annexed thereto an
affidavit or affirmation made and subscribed by the holder of said
mortgage, his agent, or attorney, stating the consideration of said
mortgage and as nearly as possible the amount due and to grow due
thereon, be recorded as directed in the succeeding section of this Act."
To constitute a mortgage the right of redemption must exist, and where
such right is established the form of the conveyance is not controlling.
Wilmerding, Heguet & Co. v. Mitchell, 42 N. J. L. (12 Vr.) 476; Hastings
v. Fithian (E. & A.), 71 N. J. L. (42 Vr.) 311. An assignment of a chose
in action, even if it be a security for the payment of a debt, is not a
chattel mortgage within the meaning of the New Jersey Chattel Mortgage
Act. Bleakley v. Nelson, 56 N. J. E. (11 Dick. Ch.) 674. This Act
applies only "when the goods mortgaged are capable of such open and
visible possession that their holding by a mortgagor, who had given a
secret mortgage, might tempt someone to deal with him as the absolute
owner." Cumberland National Bank v. Baker, 57 N. J. E. (12 Dick. Ch.)
231, 242.
The assignment now under consideration was not given as a security. It
was an absolute transfer of the seller's property and interest in the
conditional sale agreement and the automobile mentioned therein, without
right of redemption. By this assignment The People's Trust became the
"legal successor in interest" referred to in section one of the Uniform
Conditional Sales Act, supra; and the reservation of property contained
in the conditional sale agreement was transferred to it by the
assignment. The assigned agreement recited that the automobile had been
delivered to the buyer, and the assignment expressly recited that it had
been sold to Jones (the buyer); and the assignor at the time of the
assignment was not in a position to retain the automobile, or to deliver
it to the assignee. What the assignor could deliver to The People's
Trust was the conditional sale agreement, and that was done. Had the
transfer been to secure a debt, the delivery of the conditional sale
agreement would savor more of a pledge than a chattel mortgage, but, as
the assignment was absolute and not conditional, it was neither.
Such a transaction is not contemplated by the Chattel Mortgage Act,
which covers transactions where the title, but not possession, is
transferred; but by the Uniform Conditional Sales Act, supra, which
operates upon transactions where the possession, but not the title, is
transferred. The right of The People's Trust to the automobile is fixed
by the assigned conditional sale agreement, and is superior to the
rights of the bankrupt or its creditors--here represented by the
receiver.
As opposed to this view, and in support of the Master's finding, the
case of David Straus Co. v. Commercial Delivery Co. (N. J. Ct. Ch.), 113
Atl. 604, affirmed by the Court of Errors and Appeals, 112 Atl. 417, is
cited by the receiver. That case, made up of facts which existed before
the Uniform Conditional Sales Act went into effect, presents many
features similar to the instant case. However, the differences, and not
the similarities, are controlling. The pertinent facts were: Coincident
with the agreement (called a lease) relating to the delivery and use of
the automobile truck, the lessee (driver) entered into a service
contract with the lessor (Commercial Delivery Company). In that contract
the driver agreed to work the truck under the direction of the lessor
for two years, and in no other way than as directed by it, and to
deliver to the lessor the entire gross monthly earnings. The contract
also provided that out of these moneys the latter was to retain a
certain percentage for its services, pay the wages of the drivers,
storage charges, repairs, etc., and credit the balance to the driver;
and that the truck should at all times be stored in a garage furnished
by the lessor. The lessor assigned to the Morris Plan Company all its
right, title and interest in the lease and the property therein
described, and agreed, "in the event of any resale, release, or
repossession of said property," to pay to the assignee any deficiency
between the net proceeds of such resale and the amount necessary to pay
the unpaid installments. At the time of this assignment the assignee
took a note made jointly by the assignor and the driver for the sum
advanced by the assignee as consideration for the assignment.
Subsequently an equity receiver in insolvency proceedings was appointed
for the lessor, and the receiver found it in possession of the truck.
The Morris Plan Company petitioned that the truck be delivered to it as
the legal owner thereof. The Vice-Chancellor held that the assignor was
a debtor of the assignee; that the assignment was not an absolute sale
of the truck, but collateral security for the payment of the debt; that
while the lease apparently gave the right of possession to the driver
(lessee), the actual possession, by reason of the service contract, was
always in the lessor; that the assignment of the lease was in legal
effect a chattel mortgage; and that not having been recorded it was void
as against the receiver and creditors of the assignor. As already stated
this finding was affirmed by the Court of Errors and Appeals.
In the cited case, as noted, it was held that the possession, as well as
the title, of the truck was in the lessor at the time of the assignment
of the lease or sale agreement; and that the assignment was not an
absolute sale of the agreement, but a security for the payment of the
advances made by the assignee for which payment the assignor was jointly
liable with the driver. In the instant case, the actual, as well as the
right of possession of the truck, was not in the bankrupt, but in a
third person--the buyer--and the assignment was an absolute transfer of
the bankrupt's property in the conditional sale agreement, without right
of redemption. These differences are essential, and distinguish the
cases.
The fact that the truck was taken from the buyer by the bankrupt
subsequent to the latter's assignment of the conditional sale agreement,
gave it not property or right in the truck as against its assignee, The
First People's Trust. Whatever rights such possession gave it as against
the buyer, they were subordinate to the assignee's right of possession
on the buyer's default in the terms of the conditional sale agreement
then held by the assignee. Such default having taken place, the assignee
is entitled to the possession of the truck.
The Master's findings are disapproved, and an order will be made giving
The First People's Trust the possession of the truck in question.
OSBORNE & MARSELLIS CO. v. ESSEX CO.
(Essex Co. Circuit Court, Feb. 3, 1922).
_Compensation for Road Labor Performed Under County Contract--Ultra
Vires Resolution_.
Case of The Osborne & Marsellis Company against County of Essex.
Messrs. Edwin B. and Philip Goodell for Plaintiff.
Mr. Arthur T. Vanderbilt for Defendant.
DUNGAN, J.: This is a suit brought by Osborne & Marsellis Company
against the County of Essex to recover compensation for labor performed
and materials furnished in the improvement of a part of Franklin avenue,
a county road in the county of Essex, prior to the allowance of a writ
of certiorari to review the legality of the contract under which the
work was done, which contract was set aside by the Supreme Court, and
the decision of that Court was affirmed by the Court of Errors and
Appeals. Chamber of Commerce v. County of Essex, 114 Atl. 426.
The case is submitted upon a statement of the case and stipulation of
facts for judgment, without pleadings; the parties agreeing that the
issues be submitted to this Court for decision, without trial by jury,
and that "No appeal will be taken from the judgment entered on his
findings."
From the agreed statement of fact it appears that there was no
irregularity on the part of Osborne & Marsellis in the bid, in the
awarding of the contract, or in the execution of the contract, which was
approved as to form by the county counsel, and a bond was furnished
which was also approved, both in accordance with the resolution of the
Board awarding the contract. It also appears that, after the adoption of
the resolution awarding the contract, the plaintiff commenced the work
and performed work and furnished materials, the value of which, at the
unit prices fixed by the contract, amounted to $18,562.80, all of which
labor and materials were performed and furnished prior to the allowance
of the writ and prior to notice that application would be made for the
writ, "except such work as was necessary to leave the unfinished road in
condition as required by law."
The grounds upon which the contract was set aside appear fully in the
case of Chamber of Commerce v. County of Essex, 114 Atl. 426.
Two defenses to the plaintiff's claim are urged: First, that the
contract was not signed by the director of the Board of Freeholders;
and, second, that the resolution constituted an ultra vires act of the
Board of Freeholders and that there can be no recovery upon quantum
meruit where the act is ultra vires.
1. The resolution of the Board of Freeholders relating to the awarding
of the contract, which included other contracts, is as follows:
"Resolved that the contracts ... be and the same are _hereby awarded_;"
and that "the director and clerk be and they are hereby authorized and
directed to execute contracts with said companies pursuant to this
resolution," the only conditions being that a proper bond be furnished
and that the contract and bond be approved by the county counsel, and
both contract and bond were so approved. The contract, therefore, was
awarded by the resolution itself, and the formal document, approved by
the county counsel, was actually signed by the clerk and the seal of the
county affixed thereto by him, and the failure of the director to sign
was a failure to perform a purely ministerial act, the performance of
which could have been required by proper legal proceedings. Therefore, I
hold that the plaintiff is not prevented from recovering on account of
the failure of the director to sign the contract.
2. The subject of the contract is one which was entirely within the
powers of the Board, and hence it cannot be said that the action of the
Board in awarding the contract to the plaintiff was ultra vires in that
respect. After the adoption of the resolution awarding the contract, and
after the approval of the plaintiff's bond and the form of the contract
by the county counsel, and the affixing thereto of the signature of the
clerk and the seal of the county, the plaintiff commenced the work
contemplated by the contract. Grade stakes were furnished by the County
Engineer's department, and the work which was performed was under the
supervision and direction of an inspector furnished by that department,
and the portion of the road upon which the work was done was completed
and left ready for use and is now actually in use by the public.
This situation, it seems to me, brings this case within the decision of
the Supreme Court in Wentink v. Freeholders of Passaic, 37 Vroom, p. 65,
in which it appeared that a contract to do the mason work of a bridge
was let to Wentink, which contract the Court subsequently declared void
because the firm to whom a contract for the same work had been
originally awarded, but which had failed to furnish a bond, had no
notice that their bid had been rejected. Wentink expended $600 in
attempting to secure materials and in the execution of the contract. The
Court held, that even though the county had derived no benefit from such
expenditure, Wentink might recover the amount expended. The Court said:
"There was no lack of power to make the contract with the plaintiff. The
fatal defect was in an irregular exercise of such power. It would be too
much to hold every contractor for a public body to a scrutiny at his
peril of the corporate proceedings. All that he need look to is the
power to make the ostensible contract."
On the question of damages the Court said: "In the case in hand the
performance of the contract was not prevented by the fault of the
defendant, but by _vis major_. The making of the contract was, however,
induced by such fault, and on its annulment the defendant should answer,
as on a quantum meruit for the work done thereunder," and that, "As to
the measure of the quantum meruit for the work done the contract rate
should govern."
It is admitted that at the contract rate the work which was performed by
the plaintiff would have amounted to $18,562.80. Since this case is
submitted for judgment without pleadings, and since the statement of the
case and the stipulation of facts make no provision for interest, the
judgment of the Court will be in favor of the plaintiff and against the
defendant for that sum.
IN RE ELIZABETH AVENUE ASSESSMENT.
(Union Co. Common Pleas, Jan., 1922).
_Assessment for Repairing Street--Method Employed--Method Suggested_.
In re appeal from assessment for repairing Elizabeth Avenue from Front
street to Seventh street, Elizabeth.
Mr. Alfred S. Brown, Appellant, in person.
Mr. Joseph T. Hague, for City of Elizabeth.
PIERCE, J.: This is an appeal from an assessment for repaving with
granite blocks that portion of Elizabeth avenue, Elizabeth, extending
from a point about 150 feet east of Front street to Seventh street. The
error complained of is inequality as compared with other assessments.
Appellant is the owner of a triangular lot of land lying between
Elizabeth and First avenues, at their intersection at Liberty Square;
the lot is bounded northerly 350 feet on Elizabeth avenue, easterly 31
feet on Liberty Square, southerly about 350 feet on First avenue, and
westerly 133 feet on abutting property; the lot is vacant except for an
old house at the southwest corner fronting on First avenue.
The general method of assessment adopted by the Commissioners was as
follows: From the whole cost of the improvement, $220,330.56, was
deducted $23,127.29, paid by the Public Service Company for repaving its
trolley tracks, leaving $197,203.27, of which one-half was assumed by
the City and the other half assessed upon abutting property, being at
the rate of $8.82 per linear front foot. The Commissioners adopted this
linear front-foot rate as the bases of the assessment, and imposed it
upon all lots one hundred feet deep; short lots were given concessions
assumed by the City, viz., 12-1/2 per cent. off where the lot was 50
feet deep, 18-3/4 per cent. off where the lot was 25 feet deep, and in
that proportion. The Commissioners determined that as to all the lots
the assessment was less than the value of the lot, and less than the
benefit conferred, but gave no consideration as to the relative value of
the lots as between themselves.
In assessing appellant's triangular lot the following method was
adopted: The lot was divided lengthwise by an imaginary line into two
equal parts, one fronting on First avenue and the other on Elizabeth
avenue. The part on First avenue was not assessed. The part on Elizabeth
avenue was assessed at the regular rate of $8.82 for its 350 feet
frontage, a total $3,087.00, less three concessions: a concession of
12-1/2 per cent. ($110.25) was allowed on the westerly 100 feet
averaging fifty odd feet deep; a concession of 20 per cent. ($441.00)
was allowed on the remaining 250 feet averaging thirty odd feet deep;
and a concession of 25 per cent. ($68.35) was allowed for the 31 feet
fronting on Liberty Square. Total concessions, $619.61, leaving
$2,467.40 as the assessment levied. In addition to the concessions the
Commissioners made no assessment against the lot for its frontage on
Liberty Square.
The result reached by the Commissioners was to assess a lot 350 feet in
front on Elizabeth avenue, 15-1/2 feet deep at one end and 66-1/2 at the
other, nearly four-fifths as much as though the entire frontage had been
full lots 100 feet deep. This is unreasonable and I think more than
appellant's entire lot should be assessed.
I think the Commissioners erred in two respects in their method of
assessment:
1. It was improper to divide appellant's lot lengthwise for the purpose
of assessment. The lot was already too shallow for the greater part of
its frontage for ordinary building purposes, and to divide it further
was to leave two narrow strips, one fronting on Elizabeth avenue and the
other on First avenue, neither of any sale value, or practical value for
any purpose.
It was held by the Court of Errors and Appeals in Aldridge v. Essex Road
Board (51 N. J. L. 166) that assessors may not divide a lot for the
purpose of assessment so that, should a sale result to collect the tax,
the property would not bring as much as if sold as part of the original
parcel. The rule was followed in Coward v. North Plainfield (63 N. J. L.
61), where, as in the case at bar, an imaginary line was drawn midway
between two avenues.
2. I think the Commissioners erred also in disregarding the relative
benefit received by lots along the line of the improvement resulting
from location and value of the property. The assessment was strictly a
front-foot assessment with concessions for short lots, but disregarding
the element of location and relative value.
The 4th Ward assessment roll received in evidence shows substantial
variations in the value of properties on Elizabeth avenue, and
inspection of the line of improvement about a mile in length shows
greater traffic and better building and values toward Seventh street
than opposite and below appellant's lot. The intersection of Elizabeth
avenue and High street, a few feet West of Seventh street, is a business
center for that part of the City, and values and traffic are materially
greater in that vicinity than below Third street. It is manifest that
business houses dependent upon traffic for their business are more
benefited by a paving improvement than vacant lots at a distance where
there is less traffic.
It is well settled in New York that the relative value of lots and the
buildings upon them must be considered in determining the benefits
accruing from a paving improvement (Donavan v. Oswego, 39 Misc. 291, and
cases therein cited); and in State v. Rahway (39 N. J. L. 646; affirmed
by the Court of Errors and Appeals in 11 Vr. 615) a greater assessment
upon lots nearer a business center was approved in a grading, curbing
and guttering improvement.
The statute provides that "all assessments ... levied for any local
improvement shall in each case be as near as may be in proportion to the
peculiar benefit, advantage or increase in value which the respective
lots and parcels of land and real estate shall be deemed to receive by
reason of the improvement."
Under the circumstances existing in the case at bar, there being, as I
find, a difference in benefit along the line of the improvement
resulting from location and value, these elements should have been
considered by the Commission and such weight given them as in the
judgment of the Commissioners they should receive.
In reassessing appellant's lot I suggest a different ratio of
concessions for short lots. The concessions adopted by the Commissioners
are one-half the concessions allowed by the Newark, or Hoffman rule, in
valuing short lots in regular assessments. As evidenced by the result
reached in the assessment appealed from, the concessions are inadequate,
and I see no reason why the full concessions established by the Newark
rule should not be adopted.
It is not easy to formulate a rule that will do justice in all cases in
assessing irregular shaped lots, but I think a fair result would be
reached in the case at bar by deducting from the frontage assessment of
$3,087.00 a concession of 25% ($771.00) for the frontage and probable
future paving assessment on First avenue; a further concession at the
rates given by the Newark Rule for that portion of the lot under 100
feet in depth (20%--$441.00), less the added value under the same rule
for that portion over 100 feet in length (7%--$61.74) net $379.26; total
net $1,936.74; less such further concession for less than average
benefit received by appellant's lot as in the judgment of the
Commissioners should be allowed by reason of inferior location, value
and improvements.
As appellant's lot is not assessed for paving Liberty Square, no
concession should be made for frontage on Liberty Square.
For the reasons given, the assessment appealed from should be set aside
as to appellant's lot.
* * * * *
Inexcusable delay in presenting a check for payment is held to discharge
an indorser from liability thereon if the check is not paid, whether
he is in fact injured or not, in the West Virginia case of Nuzum v.
Sheppard, 104 S. E. 587, annotated in 11 A.L.R. 1024.
STATE v. GRUICH.
(Essex Quarter Sessions, Dec. 27, 1921).
_Criminal Abortion--New Trial--Postponing Sentence Days_.
Case of The State against Anne Gruich. On application for new trial.
Mr. Frank Bradner for Petitioner.
Mr. John A. Bernhard, Assistant Prosecutor of the Pleas, for State of
New Jersey.
STICKEL, Jr., J.: Anna Gruich was tried before this Court, Judge Harry
V. Osborne presiding, and, on February 21, 1919, convicted of abortion.
The minutes of the Court at the foot of the entry of the verdict of the
jury contain the words, "Sentence postponed."
On the 23rd day of May, 1919, the said defendant was convicted by a jury
on a second charge of abortion and, on June 5, 1919, sentence of both
convictions was imposed by Judge Osborne, the sentences running
concurrently.
The conviction on the second charge of abortion having been reversed by
the Court of Errors and Appeals at a recent term of that Court and a new
trial ordered, application is now made to this Court to grant a new
trial on the charge of abortion of which the defendant was convicted on
February 21st, 1919.
[Here two broad grounds are urged as warranting such action, the first
ground involving a question of fact; that part of the opinion is not
published. The second ground is that the Court, having postponed
sentence thereafter to in a new term of the Court and without having
noted in the minutes continuances of the day of sentence, imposed
sentence upon the defendant, the contention being the Court then had no
jurisdiction to impose any sentence. The opinion continues.--EDITOR].
And I am equally clear that there is no merit in her contention that the
Court had no jurisdiction to sentence in the April Term upon a
conviction had in the December Term.
The theory of the defendant seems to be that, because the minutes do not
show that the time for sentence was fixed and then postponed from time
to time until the sentence was actually imposed, therefore, no sentence
day was, in fact, fixed, no continuance had, and, when the December Term
expired, the power of the Court to fix a sentence day or impose a
sentence ended.
The sentence file of this Court will show that the assumption of counsel
is unwarranted, and that a day for sentence was fixed and regular
adjournments of that sentence had from time to time until the day upon
which sentence was imposed. But, even though we assume that no sentence
day was fixed and no continuance in fact taken, the position of counsel
in my judgment is unsound.
This case is controlled by the principles laid down in the opinion in
Gehrmann v. Osborn, 79 N. J. Eq. 430; 82 Atl. Rep. 424, and by the
decision in that case, and even though, as counsel for the defendant
suggests, I may not be bound by the decision in that case, the
reasoning, the logic and learning thereof is such that I am wholly
content to be governed thereby in determining this case, and convinced
that the decision in that case represents the law of this State.
There, as in this case, sentence was postponed, and, although more than
two years elapsed before the defendant was actually sentenced, and,
although the original postponement was the practical equivalent of an
indefinite postponement of sentence, the Court upheld a sentence to
State Prison. Here the sentence was imposed but a few months after
conviction, and the postponement was not the equivalent of an indefinite
postponement. And, like in the present case, there were no continuances
of the sentence recorded in the minutes.
"The conclusion which I have, therefore, reached," says Vice-Chancellor
Garrison, "in the Gehrmann case, is that in the State of New Jersey, if
a defendant has pleaded nolle contendere, or guilty, or has been
convicted upon trial, the Court has the power, if the defendant does not
object thereto, and therefore is assumed to assent thereto, to refrain
from pronouncing a judgment or sentence, and may, at a subsequent time,
hale the defendant before it, and impose the punishment in the same
manner that it would have been justified in pronouncing upon the very
day when the case was ripe for sentence."
It will be observed from the opinion that the duty rests upon the
defendant to object to an indefinite postponement of sentence; that his
failure so to do creates a presumption that he assented thereto, and
that his assent or acquiescence to such postponement disenables him to
complain when thereafter the Court imposes sentence, whether within or
without the term in which the conviction is had or plea taken.
Here not only is there no proof of an objection, but on page 23 of the
testimony it appears that the defendant at least acquiesced in the
postponement from time to time of the sentence.
Moreover, just as the research of the learned Vice-Chancellor convinced
him that an indefinite suspension of sentence has been the custom in our
State beyond the memory of those then connected with the administration
or practice of criminal law in this State, so, from my own experience as
a practitioner in and Judge of this Court do I know that for years it
has been the practice to sentence on a given Monday after conviction; to
sentence periodically all persons convicted or who have pleaded; to
enter in the minutes "Sentence postponed" in bail cases and prisoners
"Remanded for sentence" in jail cases and to advise defendant for
counsel, or both, in open Court of the regular sentence day; for the
clerk to make up a sentence list for said day; for the Court to use such
list in sentencing; for the Court to postpone to another day sentences
set down upon such sentence day when it so determined, the clerk noting
the postponement and placing the case on the new sentence list of the
Judge, and for the clerk to take the various sentence lists and file
them as a part of the records of this Court. This practice I find was
followed in this case and probably accounts for the repeated attendance
of the defendant at the courthouse for sentence. The defendant was
convicted on February 21st and the first sentence day of Judge Osborne
thereafter was February 24th, 1919. The defendant's name appears upon
this list for sentence and a notation is made that the sentence was
postponed to March 10th; the sentence list of March 10th shows a
postponement to March 24th; that of March 24th a postponement to April
14th; that of April 14th a postponement to May 5th; that of May 5th a
postponement to May 26th; that of May 26th to June 5th, and on June 5th
sentence was imposed. If there is any question about this and the case
is to be appealed, I would suggest that the Prosecutor submit as part of
the record on this rule evidence of the practice of this Court in
sentencing, together with the sentence lists of Judge Osborne covering
the period in question.
The rule obtained in this case is discharged and the application of the
defendant for a new trial denied.
IN RE WILL OF MARION.
(Essex Co. Orphans' Court, Jan. 12, 1922).
_Probate of Will--Signing Will "for Sake of Peace"--Burden of Undue
Influence--Facts Considered_.
In the matter of the probate of a certain paper writing purporting to be
the last will and testament of Elizabeth Marion, deceased. On caveat.
Mr. Edwin B. Goodell and Mr. Philip Goodell for Proponent.
Mr. Paul M. Fischer for Caveator.
STICKEL, Jr., J: I was satisfied at the conclusion of the hearings in
this matter that the paper writing purporting to be the will of the
decedent had been properly executed, and I was also satisfied that she
was capable of making a will; in other words, that she had testamentary
capacity; but I had some doubt whether the decedent had not consented to
the making of the document in question and signed the same for the sake
of peace. Being thus in doubt I asked counsel to submit briefs on that
point alone, and counsel for the proponent have submitted a brief.
Counsel for the caveator has not submitted a brief, and, as I understand
it, does not intend to submit one.
The decedent was a woman between fifty and sixty years old. She had
several children, two or three sons and two daughters, as I recall it,
and one of the daughters, Mrs. Appleton, resided, together with her
three children, with the decedent, and had done so for sometime prior to
the execution of the document in question. The decedent and her husband
had lived apart for some years, and the whereabouts of the husband of
Mrs. Appleton were unknown, so that both the decedent and the daughter
daily went out to work.
The decedent had never made a will. She was not on unfriendly relations
with her children, although there is some suggestion that she disagreed
with all of them at different times. So far as the testimony shows, she
had not indicated definitely to anyone at any time prior to the making
of the document in question what she intended to do with her estate.
She executed the papers purporting to be her will between five and six
o'clock, P. M., on the 21st day of December, 1920. She died about one A.
M., the succeeding day. She received the last rites at eleven o'clock in
the morning of the day she made the will. At three o'clock in the
afternoon, two or three hours before she made her will, she inquired of
her daughter where certain insurance papers were, and, being told that
they were in possession of the daughter and that the insurance had been
paid, she seemed relieved and said she did not want any trouble over her
affairs. The daughter then asked her whether she had a will and received
a reply in the negative. The daughter, Mrs. Appleton, followed this with
an inquiry whether the decedent wanted to have things fixed up, and the
decedent did not answer her. The daughter, nevertheless, thinking, as
she said, that the employer and friend of her mother, Mrs. Hill, had a
will, called up Mrs. Hill and, apparently, either told Mrs. Hill that
the decedent wanted a lawyer to make a will, or that she had no will and
was dying, for, in any event, Mrs. Hill, shortly after the telephone
call, came to the decedent's house with Mr. Edwin B. Goodell, a lawyer
of Montclair, to prepare a will for the decedent. The decedent was not
asked whether she wanted to make a will prior to this time, and did not
in anyway, so far as the testimony shows, request the attendance of Mr.
Goodell or anyone else to make a will. When Mr. Goodell acquainted the
decedent with the reason for his attendance, she said she did not want
to make a will "tonight," or words to that effect; indicating, as Mr.
Goodell put it, that she would prefer not to make a will that night.
At that time there were in the room with the decedent, who was in bed,
very sick, a Mrs. Fischer, Mrs. Wickham, who was holding her up or
propping her up in bed, Mrs. Appleton, the daughter, Mrs. Hill and Mr.
Goodell. In an adjoining room was a son of the decedent with his child
or children.
Someone of the persons in the room--the testimony does not agree as to
who it was, and it may be that it was more than one--urged and
encouraged the decedent to make a will after her remark that she did not
want to make one that night. Mr. Goodell says he did not, although he
felt that the decedent wanted to make a will, and that if she did not
make it that night she would never make it, because he thought she would
die before morning. In any event, a short time after she said that she
did not want to make a will that night, Mr. Goodell inquired of her what
she wanted to do with her property, and someone in the room, he thinks
it was Mrs. Wickham--but Mrs. Wickham says it was not, although all seem
to agree that it was not Mrs. Appleton--suggested that she wanted to
leave her house, the one in which she was then living with her daughter
and grandchildren, to the three grandchildren. The decedent assented to
this. But Mr. Goodell took the precaution to ask her directly whether
she wanted her house to go that way and reminded her it would tie up the
sale of the property, because the children were minors. The decedent, in
replying to this, said that was what she wanted to do; she wanted it so
that it could not be "spent." Mrs. Hill and Mr. Goodell agree as to this
testimony, and Mrs. Wickham, the only other person in the room, who was
interrogated on this point, said that she had no recollection one way or
the other. Then Mr. Goodell inquired of the decedent what she wanted to
do with the residue of her estate, and again someone volunteered that
she wanted it to go equally among her children. Whereupon Mr. Goodell,
having interrogated the decedent, she replied that she wanted the
residue to go in that way.
Mr. Goodell's recollection is that the decedent nominated the executor,
herself, although he said it is possible that someone else in the room
suggested it and that the decedent assented thereto.
Thereupon, the will having been read, paragraph by paragraph, the
decedent and the witnesses duly executed it.
The burden of proving undue influence, of course, rests upon the person
or persons charging undue influence, and, as was said in the case of
Schuchhart v. Schuchhart, in the fourth syllabi, 62 Eq. 710, 49 Atl.
485: "When undue influence is claimed to be established by inference
from certain facts proved, and, upon all the facts proved, an equally
justifiable inference may be drawn that the will executed was what
testator would have made under the circumstances, the burden on
contestants is not supported." See also In re Richter's Will, 89 N. J.
Eq. 162.
The inference which the contestants would have the Court draw from the
facts is that the decedent intended to die intestate, so that her
property would go to her children equally, and that her objection to
making a will that night indicated her desire to die intestate, for she
knew that her end was near and believed that if the making of the will
were put off until the next day she would be dead and dead intestate.
This is an inference which may be drawn from the facts, but an equally
justifiable inference is that the decedent had the all-too-common
disinclination to draw a will; that she sought to shirk the
responsibility of deciding what disposition to make of her property, to
avoid making and executing a will; that when brought face to face with
her responsibility she yielded to the advice and suggestions of her
friends, and, although originally preferring not to make the will,
determined to discharge her responsibility and make the will. In no
other way can the statement of the decedent that she wanted to tie up
the house, so the children could not spend it, be reconciled. That
remark indicated that the decedent had aroused herself to the task of
making her will, had overcome her disinclination, determined to perform
the duty of making a will and had considered the question of the
disposition of her property.
It is true that others made the suggestion as to what the decedent
wanted to do with the property, and I am inclined to think that everyone
in the room knew from talking with the decedent that she wanted to leave
her property as she actually did leave it, although there is no direct
testimony on this point, but the remark about preventing the children
from spending the property was the product of the decedent's own mind;
she initiated the remark, and thereby revealed her state of mind, both
as to the matter of making a will at all and as to how she wanted her
property to go. And it is not strange that she wanted the property to go
in this way, for she knew it was her grandchildren's home (and we all
know the wonderful love that grandparents have for grandchildren); she
knew that they could not depend upon a father for support and upbringing
and that their mother was the breadearner. Her own children were grown
up, married, most of them, and so far as the record shows not to need of
assistance. That the devise of the house to the grandchildren is a
natural, normal one, is emphasized by her disposition of the residue of
her estate, for, having taken care of her grandchildren, assured them of
a home during their minority at least, she proceeded to give to her
children everything else that she had; and I am inclined to think she
believed that the residue of the estate would be much larger than it
actually is; that the return she would get from the estate of Timothy
Arnold would be larger than it actually was.
It is undoubtedly true that, except for the presence of the lawyer,
which was brought about by Mrs. Hill and Mrs. Appleton, and except for
the advice and encouragement to make a will and at once by those in the
room to the decedent, she would have died without a will. But, instead
of the presence of the lawyer and the said advice and encouragement
dominating the deceased and destroying her free agency, it seems only to
have served to arouse in her the necessity for making a will, if she
would protect her grandchildren, to re-awaken and revive her apparently
dormant and pre-existing desire to provide a home for her grandchildren,
to do this and to give her the opportunity to carry out such desire or
intention, which opportunity she seized and made the best of, for how
else can her response to Mr. Goodell, that she wanted to tie up the
house so that it could not be "spent," "That is what I want to do," be
accounted for? Certainly acts which produce such a result cannot be said
to be acts of undue influence. Stewart v. Jordon, 50 N. J. Eq. 733-741.
And it is well settled that it is not the exercise of undue influence to
advise, encourage, or urge the making of a will. In re Barber's Will, 49
Atl. 826; In the matter of Seagrist, 1 N. Y. App. Div. 615; 37 N. Y.
Supp. 496; Aff. 153 N. Y. 682; 43 N. E. 1107.
Mr. Goodell, who drew the will, is a reputable and careful lawyer, and I
feel sure that he would not have prepared this will or permitted the
decedent to execute it except he felt it represented her real wishes.
Nor do I think he would have permitted her to have executed this
document if he for one moment conceived that she was making it for the
sake of peace or to be rid of her visitors. That fact must also be
considered in determining the question in hand.
It seems to me, therefore, that the more probable inference to be drawn
from the facts in this case is one which requires the upholding of the
document as the will of the decedent and that the contestants have not
sustained the burden of proving undue influence.
The paper writing purporting to be the will of Elizabeth Marion is
consequently admitted to probate.
WOMEN JURORS.
Does the right of suffrage entitle women to serve as jurors? This
question has been answered in the affirmative in Michigan, where it was
held, in People v. Barltz, 180 N. W. 423, 12 A.L.R. 520, that a
constitutional declaration that every inhabitant of the State, being a
citizen, shall be an elector and entitled to vote, makes women electors
within the meaning of a statute requiring jurors to be drawn from the
electors, and they are therefore entitled to perform jury duty.
This decision seems to stand alone. A contrary conclusion was reached in
Re Grilli, 110 Misc. 45, 179 N. Y. Supp. 795, affirmed on opinion below
in 192 App. Div. 885, 181 N. Y. Supp. 938, which involved the right of
an enfranchised woman to compel the board of assessors and the
commissioner of jurors to complete the county jury lists by including
therein the qualified women voters of the county. The Court said: "The
only claim made by the petitioner in connection with her application is
that jury service is incidental to and a part of suffrage, and since, by
the recent amendment of the State Constitution, women are qualified to
vote, they must be made jurors. The fallacy of this contention is found
in an examination of the history of the jury system since the adoption
of the first Constitution in the State of New York. While citizenship
has always been a qualification of jury service, every voter has not
been included within the jury lists. The various laws with reference to
jurors show that men who were entitled to vote have been excluded from
jury service."
In Illinois, the fact that women are legal voters for the election of
statutory officers, and certain other purposes, is held not to make them
eligible for jury service in criminal cases, in People v. Krause, 196
Ill. App. 140, and People v. Goehringer, 196 Ill. App. 475.
In Virginia, according to 6 Va. L. Reg. N. S. 780, Judge Gardner, in
instructing jury commissioners, distinguished between the right to vote
and the duty to render jury service, by stating that the former is a
constitutional right conferred, while the latter is a legislative duty
imposed. He concluded that women cannot lawfully serve as jurors under
the Virginia statute, which limits that duty to "male citizens over
twenty-one years of age," until the legislature so modifies the statute
as to make it applicable to "all male and female citizens twenty-one
years old."
The Court, in the Wyoming case of McKinney v. State, 3 Wyo. 719, 30 Pac.
293, 16 L.R.A. 710, seems to have been of the opinion that a
constitutional provision that "the rights of citizens of the state of
Wyoming to vote and to hold office shall not be abridged or denied on
account of sex," and that "both male and female citizens of this State
shall equally enjoy all civil, political, and religious rights and
privileges," did not require that women voters be allowed to serve as
jurors.
The Supreme Judicial Court of Massachusetts, in Re Opinion of Justices,
130 N. E. 685, answered questions submitted by the House of
Representatives by holding that, under the Constitution of the United
States and the Constitution and laws of Massachusetts, women are not
liable to jury duty. The State statute subjects to jury service persons
"qualified to vote for representatives to the General Court." These
words, while broad enough to include women, are held not to do so, when
interpreted in connection with the history of the times and the entire
system of which the statute forms a part. It was determined, however,
that the General Court had constitutional power to enact legislation
making women liable to jury duty.--_Case and Comment_.
MISCELLANY
NEW CHANCERY RULE.
The Chancery Rules have been supplemented by the addition of a new rule
numbered 165a, promulgated January 6, 1922, as follows:
165a. All pleadings, proofs and other papers presented to, and all
orders and decrees signed by the Chancellor or a Vice-Chancellor or
Advisory Master at the State House in Trenton, shall be forthwith filed
with the clerk; and all such which shall be so presented and signed at
chambers or elsewhere shall be marked filed by the Chancellor or
Vice-Chancellor or Advisory Master (which need only be over the initials
of his name and office, and may be done by his official stenographer or
sergeant-at-arms at his direction), and all such papers shall be
retained by the Chancellor or Vice-Chancellor or Advisory Master and
delivered or forwarded by him, or at his direction, to the clerk with
all convenient speed.
SUPPLEMENTARY PROCEEDINGS.
Attention has been called to the Bar of Bergen county by Mr. Justice
Parker to a laxity of practice in relation to supplementary proceedings
in cases of judgment and execution, and, as the matter should interest
the Bar of the State generally we give, herewith, what has been spread
before the Bergen attorneys:
"1. Originally an attorney or agent could not make the affidavit.
Westfall v. Dunning, 50 N. J. L. 459. This was changed by statute. P. L.
1890, p. 185. But it should appear as one of the direct statements in
the affidavit that the attorney is the attorney, i. e., "J. S., being
duly sworn, says that he is the attorney herein for A. B. the
plaintiff," and not merely, "J. S., attorney for the plaintiff, being
duly sworn," which is a mere appositive and not a definite statement.
"2. Such affidavits frequently say: "that he has read the foregoing
petition, and that the statements thereof so far as they relate to his
own acts are true, and so far as they relate to the acts of others he
believes them to be true." This, it would seem, is not a compliance with
Section 24 of the Executions Act. Such an affidavit in Chancery was
considered in Barr v. Voorhees, 55 Eq. 561, and held sufficient for an
order for discovery, but not for an injunctive order. But it is to be
noted that this was under Section 90 of the Chancery Act of 1875 (Rev.
121; G. S. 1895, p. 389) which reads "that he believes the contents
thereof are true," whereas, Section 24 of the Executions Act requires
the creditor or his agent to verify the petition, in which he shall
state the amount due on the execution, the return by the officer, _and
his belief_ that the creditor has assets, etc. The belief is, therefore,
restricted to the debtor's assets and does not apply to the recovery of
the judgment or the issue or return of execution. As to these facts, the
late Chief Justice Depue said he doubted the sufficiency (at law) of
such an allegation. 10 N. J. L. J. 223-4; Frankel v. Miner, 10 N. J. L.
J. 341.
"There is no difficulty about an attorney deposing from personal
knowledge that a judgment was entered, and execution issued and
returned, as these things are matters of record; and as Chief Justice
Beasley said in Westfall v. Dunning, 50 N. J. L. 461 already cited: "It
is obvious that such a statement could be safely made by anyone who was
possessed of the loosest information," etc. He was there speaking of
verifying the belief of the _creditor_; under the present act the belief
of the attorney may do as well, but the criticism seems applicable to
the other allegations also.
"The printed forms in Jeffery and on some of the law blanks are open to
criticism in the above respects, and debtors should not be hauled before
Commissioners for examination unless the statute is complied with."
ACCIDENT TO MRS. EMERY.
Mrs. John R. Emery, widow of the late Vice-Chancellor Emery, while
traveling with friends in Algiers, met with an automobile accident about
Feb. 12th. The automobile turned over on the edge of a mine shaft, and
it is stated she sustained a fracture of both arms. She went abroad Oct.
8th.
DEATH OF NEWARK'S MAYOR.
Mayor Alexander Archibald, of Newark, died on Feb. 11th, after an
operation for a pressure on the brain nerves. He is said to have been
the first Mayor of Newark to die while in office. He was born in
Edinburgh, Scotland, December 13, 1869; was three years of age when his
parents came to America. He was a silverware manufacturer in Newark. He
was elected to the Council of Newark in 1910; became City Clerk in 1914,
and in 1917 was elected City Commissioner and became Mayor. He was a
Democrat and was talked of as a candidate for Governor. His funeral was
large and observed generally throughout the city.
HUMOR OF THE LAW.
A Memphis lawyer entered his condemned client's cell: "Well," he said,
"good news at last!"
"A reprieve?" exclaimed the prisoner eagerly.
"No, but your uncle has died leaving you $5,000 and you can go to your
fate with the satisfying feeling that the noble efforts of your lawyer
in your behalf will not go unrewarded."
GOVERNOR'S APPOINTMENTS.
Adam O. Robbins, of Flemington, Common Pleas Judge of Hunterdon county
in place of George K. Large.
Henry E. Newman, of Lakewood, Common Pleas Judge of Ocean county in
place of William H. Jeffrey.
Marshall Miller, of Bloomsbury, Prosecutor of the Pleas for Hunterdon
county in place of Harry J. Able.
Wilfred H. Jayne, Jr., Prosecutor of the Pleas for Ocean county in place
of Richard C. Plumer.
Mahlon Margerum, member of the State Board of Taxes and Assessment.
J. Harry Foley, Secretary to Governor Edwards, State Superintendent of
Weights and Measures.
Joseph A. Delaney, of Paterson, Common Pleas Judge in place of William
W. Watson.
Joseph F. Autenreith, of Jersey City, in place of President John J.
Treacy, resigned, on Public Utilities Commission.
Austin H. Swackhamer, of Woodbury, Judge of Gloucester Common Pleas, in
place of Francis B. Davis.
BOOK RECEIVED.
THE NATURE OF THE JUDICIAL PROCESS.
By Benjamin N. Cardozo,
New Haven: Yale University
Press, 1821.
This book is especially welcome just now, after reading Judge Cardozo's
article in the December number of the "Harvard Law Review," entitled "A
Ministry of Justice," which shows that his study of the nature of the
judicial process has led him to seek for practical means to correct the
errors that have crept into the law in the application of legal
principles. This article in the "Harvard Law Review" is in itself the
result of his study during his long experience on the Bench of the
problem he deals with in these lectures on the nature of the judicial
process. The book consists of four lectures delivered in the William L.
Storrs' lecture series in the Law School of Yale University, 1921. The
titles of the lectures suggest the scope of his inquiry. They include:
The Method of Philosophy; The Methods of History, Tradition and
Sociology; the Judge as a Legislator; Adherence to Precedent; The
Subconscious Element in the Judicial Process.
"Any Judge," he says, "one might suppose, would find it easy to describe
the process which he had followed a thousand times and more. Nothing
could be farther from the truth." In telling of the study of precedents
in arriving at the rule of law to be applied to the decision of cases,
he takes up, first, in the introduction, the method of philosophy and
inquiries, in what proportions different sources of information shall be
allowed to contribute to the result. If a precedent is applicable, when
shall he refuse to follow it, and if no precedent is applicable, how
does he reach the rule that will make a precedent for the future? "If,"
he says, "I am seeking logical consistency, the symmetry of the legal
structure, how far shall I seek it? At what point shall the quest be
halted by some discrepant custom, by some consideration of the social
welfare; by my own or the common standards of justice or morals?" And
again, he says: "The first thing he does is to compare the case before
him with the precedents, whether stored in his mind or hidden in the
books. I do not mean that the precedents are ultimate sources of the
law, supplying the sole equipment for the legal armory, the sole tools,
to borrow Maitland's phrase, 'in the legal smithy.' Back of precedents
are the basic juridical conceptions which are the postulates of judicial
reasoning, and farther back are the habits of life, the institutions of
society, in which those conceptions had their origin, and which, by a
process of interaction, they have modified in turn."
In the lecture on the methods of History, Tradition and Sociology, he
shows how the method of Philosophy comes in competition with other
tendencies which find their outlets in other methods. The tendency of a
principle to expand itself to the limit of its logic may be counteracted
by the tendency to confine itself within the limits of its history.
"Very often," he says, quoting Justice Holmes, "the effect of history is
to make the path of logic clear. History, in illuminating the past,
illuminates the present, illuminates the future."
The law of real property supplies the readiest example of a field where
there can be no progress without history, and where "a page of history,"
to quote Holmes again, "is worth a volume of logic."
He refers to leading examples of cases in which history has moulded the
rules established by precedents and customs, and how the Law Merchant
has not been moulded into a code, but has been expanded and enlarged to
meet the wants of trade, and how the course of dealing to be followed is
defined by the customs, or, more properly speaking, the usages of a
particular trade, or market, or profession, and the natural and
spontaneous evolutions of habit fix the limitation of right and wrong.
The law of real estate is taken merely as an example. Maitland, Holmes,
Pollock and Pound, and many others, have pointed out the historical
origins and development in the forms of action, the law of pleading, the
law of contract, and the law of torts. The historic influences are
strong in some departments of the law, and in others larger and
fundamental conceptions tend to control the judicial mind, and there is
a tendency to harmony of the law of different countries.
From History and Philosophy and custom he passes to the power of Social
Justice, which he says is the force that in our day is becoming the
greatest of the directive forces of the law. It is by the way of history
and tradition that he comes to the method of Sociology. It is by the
common law method of applying old principles to new conditions that
Courts have been able to preserve the continuity of the law in changing
conditions.
Among the leading cases cited is the Bakeries case, Lochner v. New York,
198 U. S. 45, wherein Judge Cardozo suggested that in this decision the
dissenting opinion of Justice Holmes was the beginning of a new point of
view in the dealing with the social welfare, which, he said, has since
written itself into law. Justice Holmes made the remark, "The Fourteenth
Amendment does not enact Herbert Spencer's Social Status," and Judge
Cardozo cites later cases in the Supreme Court to the effect that "A
constitution is not intended to embody a particular economic theory,
whether of paternalism ... or of _laissez faire_." It was by careful
research of the effect of long hours of work for women that the change
of opinion was brought about.
There is a short and very interesting lecture on precedents that are of
doubtful value questioning what ought to be done with them. He quotes
President Roosevelt's message to Congress, December 8, 1908, in which he
says: "The chief lawmakers in our country may be, and often are, the
Judges, because they are the final seal of authority.... The decisions
of the Courts on economic and social questions depend upon their
economic and social philosophy; and, for the peaceful progress of our
people during the Twentieth century, we shall owe most to those Judges
who hold a Twentieth century economic and social philosophy and not a
long and out-grown philosophy which was itself the product of primitive
economic conditions." This aroused at the time, he says, a storm of
criticism and betrayed ignorance of the nature of the judicial process,
but the author said he had no quarrel with the doctrine that Judges
ought to be in sympathy with the spirit of their times. Yet this does
carry us very far upon our road to the truth. The spirit of the age, as
it is revealed to each of us, is only too often only the spirit of the
group in which the accidents of birth, or education, or fellowship have
given us a place. No effort or revolution of mind will overthrow utterly
and at all times the empire of these unconscious loyalties.
The relation of the law to the economic and social progress is of great
importance at this time, and it is well for us to have the help of this
thoughtful and suggestive discussion by an experienced and conscientious
Judge.
E. Q. K.
OBITUARIES.
MR. THOMAS W. RANDALL.
Mr. Thomas William Randall, long prominent as a lawyer in Paterson, died
at his residence at Upper Preakness, a few miles from that city, on Feb.
9, 1922, after a long illness. Up until a few days of his death he
expected to live at least through the coming Summer, but the final end
came with little warning.
Mr. Randall was born at Slough, in Buckinghamshire, England, about
twenty miles from London, near the historic Windsor Castle and famous
Stoke Pogis church, on June 24, 1853, and is a descendant of some of the
most substantial and oldest families in that locality. He arrived in the
United States, with his parents, on June 8, 1866, sailing from London,
and resided first in Franklin township, Bergen county, and later at
Hawthorne, in Passaic county, until he entered upon the study of his
profession. He first studied law in the office of Judge Hopper, in
Paterson, and afterwards with Messrs. Pennington & DeWitt, of Newark,
and also attended the Columbia Law School in New York. He was admitted
to the New Jersey Bar at the June Term of the Supreme Court in 1877,
and, after spending some time abroad, came to Paterson and entered upon
the practice of law, in which he was actively engaged ever after until
his last illness. He became a counselor at the February Term, 1889.
Mr. Randall took no active part in politics, and never held a political
office; he had no liking for mere partisanship. His practice was large
in the Orphans' Court and in Chancery proceedings, as he settled many
estates. He was a Special Master of the Court of Chancery and as such
many matters of reference were heard by him, and always with promptness
and efficiency. He was also a Supreme Court Commissioner. He was counsel
for many of the old Passaic families and for various corporations. In
the great Paterson fire he lost every thing in his office except what
was in his safe. He was an extensive reader of good books and had an
excellent memory, a refined taste and the best of habits. He had none of
the common vices of the day.
For many years Mr. Randall was a member of the Second Presbyterian
Church. He served there on the Board of Trustees and was also a member
of the Session. Mr. Randall served the Second Church in a legal capacity
without cost to the congregation and was always glad to give legal
advice to the poor in need of it. He also served for many years on the
Board of Trustees of the New Jersey Presbytery and was known by every
clergyman in that Presbyterian body. He was seldom absent at a stated
meeting.
Mr. Randall was also the recognized friend of the Young Men's Christian
Association and his services in legal transactions were also at the
disposal of the Board of Managers. He was counsel for the Young Women's
Christian Association and served as a member of the Investment
Committee, with other prominent men of the city.
When in 1886 the people of the People's Park District appealed to the
late Dr. Charles D. Shaw and the elders of the Second Presbyterian
Church for the establishment of a Sunday School in that district of the
city, Mr. Randall was one of the most interested members of the Session
in the movement to that end. Through the aid extended on behalf of the
plan the Sunday School was opened a few weeks after the request was
considered, and Mr. Randall became the superintendent. He frequently
referred to that service as one of the happy experiences of his life.
Later the school movement grew into the establishment of the Madison
Avenue Presbyterian Church, now one of the most thriving congregations
in the city, under the pastorate of the Rev. Franklin J. Miller. Mr.
Randall frequently visited the People's Park church and school to note
the progress of the work he had a prominent part in starting. He was
also interested in the St. Augustine Presbyterian Church, and in
establishing headquarters for the colored men on Governor street.
Mr. Randall was a Christian citizen and was concerned in the welfare of
Paterson. He was a member of the Passaic County Bar Association, a
director of the Paterson Building and Loan Association, and was
identified with the old Board of Trade. When the centennial celebration
of Paterson was held in 1892 he was one of the hundred prominent men of
the city selected to plan for that big event.
For several years before his death Mr. Randall was a member of the
Church of the Redeemer.
Mr. Randall was specially fond of his native England, and made various
journeys to that county. The Editor of this Journal has special cause to
know of his interest in travel and fine qualities as a traveler, having
been in his company abroad in 1898, 1903, 1907 and 1910, in some of
which occasions he extended his trip to France, Switzerland, Italy,
Germany and Holland; also to Ireland and Scotland. In 1910 he saw the
Passion Play. He was also a frequent visitor to Lake Mohonk. From its
beginning he was a patron and valued friend of this Journal, frequently
sending to it copies of legal articles from English newspapers and
occasionally contributing to its pages. The article we shall publish in
our next issue, entitled "A Letter to Portia," was received from him
only a few days before his death, as were some notes concerning the
death of his friend, Mr. Robert Hopper, also of the Paterson Bar.
In 1879 Mr. Randall married Miss Jennie S. Perry, a well known and
highly esteemed teacher in the Paterson Public Schools, and at one time
principal of School Number Two. Mrs. Randall died in 1912. There
survives one son, Edmund Brown Randall, who is now the Judge of the
Paterson District Court. A brother of Thomas W., Mr. Richard Randall,
also a member of the Paterson Bar, died Oct. 16, 1913.
COL. E. LIVINGSTON PRICE.
Colonel Edward Livingston Price, for 56 years past a member of the Essex
County Bar, died at his home, 112 Bruen street, Newark, on February 4,
from a heart attack, after an illness of about one year.
Colonel Price was born in New York City Dec. 20, 1844, being a brother
to former Governor Rodman M. Price, and a son of Francis and Maria
Louisa (Hart) Price of New York City. He received his education at Dr.
Cattell's Edgehill School, Princeton; Dr. Woodhull's School, Freehold,
and Dr. John F. Pingry's School, then in Newark and now in Elizabeth. He
would have gone to college had it not been for the outbreak of the Civil
War. He entered the Union Army in April, 1861, when he was sixteen, as
Second Lieutenant of Company E, 74th Regiment, New York Volunteers,
having been unable to get a commission in New Jersey. Shortly afterward
he was promoted to First Lieutenant. In this capacity he served from
July, 1861, to April, 1862, when Major General Hooker placed him on his
personal staff as Ordinance officer of the Third Army Corps, "Hooker's
Division." As Ordinance officer he served at the siege of Yorktown, Va.,
and during the whole of the peninsular campaign. In August, 1862, he
became Major of his old Regiment, the 74th New York, which he commanded
through Pope's campaign in Virginia, in the battles of Bristow Station,
Second Manassas and Chantilly. His promotion to the Colonelcy of the
145th New York Volunteers took place on February 18, 1863. He served
with this Regiment until January, 1864, taking part in the battles of
Chancellorsville and Gettysburg.
At the end of the War he studied law with the late U. S. Justice Joseph
Bradley, and was admitted as a New Jersey attorney at the June Term,
1866, but did not become counselor until February, 1879. He also became
admitted to the various United States Courts. He became, in Newark, an
active lawyer not only but a strong political speaker and manager, and
was long chairman of the Essex County Democratic Committee and, for a
time, of the State Democratic Committee. His ability as an organizer and
his forcefulness as a speaker made him a powerful factor in moulding
sentiment in party conventions. His tall figure and military bearing
added their effect. In the latter years of his political activity he was
familiarly referred to as the "Old War Horse of the Democracy." As a
lawyer he ranked high in municipal practice. He was counsel for the city
of Newark and various outlying townships and for many of the Boards in
Newark.
In 1865, before he became of age, he accepted a nomination for Assembly
from Essex county and was sworn into office just after he rounded his
twenty-first year. He was re-elected in 1867. As a legislator he applied
his active intelligence to a study of the needs of his constituents and
of the State in general and was the author of many laws now on the
statute books. In later life Colonel Price bought a farm near
Branchville, Sussex county, and spent much of his time there.
On June 1, 1864, Colonel Price married Emma, daughter of William and
Mary Ann Marriott of Newark. On April 27, 1887, he was married again,
the second wife being Frederica Theresa, daughter of Edward C. and Eva
Elizabeth Eberhardt of Newark. His surviving children are a son, Frank
M. Price, who lives at the Price home, and two daughters, Mrs. Frances
Maria Josephine Spear, wife of Edwin M. Spear of Trenton, and Mrs.
Marion White, a widow, also of Trenton. Edward Livingston Price, the
eldest son, died three years ago. The eldest daughter, Marie Louise
Jones, died in Kansas City, Mo.
MR. CHARLES J. ROE.
Mr. Charles J. Roe, of the Jersey City Bar, died in Faith Hospital, St.
Petersburg, Florida, on Feb. 10th. For some time past he had not been in
good health, and he went South the latter end of January to seek
improvement. Soon after his arrival there he became worse and entered
the hospital where he died. In Jersey City he had recently made his
home, for himself and wife, in the Fairmount Hotel on the Boulevard.
Mr. Roe was the son of Charles Roe and Elizabeth Ann (Coult) Roe, and
was born in Sussex county, Sept. 11, 1850. His father was the surrogate
of that county for three terms (1863-'78) and then opened a drug store
in Newton. The son obtained his preparatory education at Chester
Institute and Newton Collegiate Institute; then entered Princeton
College and was graduated therefrom in 1870, in the same class as Chief
Justice Gummere and ex-Judge George M. Shipman of Belvidere. He then
studied law with the late Levi Shepherd of Newton, and became an
attorney at the June Term, 1873, and a counselor three years later. He
practiced very successfully in Newton until 1894, a portion of the time
having a law partner, Mr. Frank Shepherd; at the last named date, he
removed to Jersey City. Recently he has had, as a law partner, J.
Haviland Tompkins, the firm being Roe & Tompkins. Mr. Roe was an
Advisory Master of the Court of Chancery and Supreme Court Commissioner.
His practice was a general one, but he somewhat specialized in Chancery
work. He was recognized as an able attorney, of scholarly instincts,
being learned not only in his profession but in the arts and sciences.
He knew some foreign languages and had traveled extensively in Europe as
well as in this country.
Mr. Roe married Margaret, daughter of James F. and Sarah (Northrup)
Martin, and is survived by his wife, and his sister, Mrs. John R. Hardin
of Newark.
Transcriber Notes:
Passages in italics were indicated by _underscores_.
Small caps were replaced with ALL CAPS.
Throughout the dialogues, there were words used to mimic accents of the
speakers. Those words were retained as-is.
Errors in punctuations and inconsistent hyphenation were not corrected
unless otherwise noted.
On page 67, "complaintants" was replaced with "complainants".
On page 74, "breaking a storehouse" was replaced with "breaking into a
storehouse".
On page 76, "B & B" was replaced with "B. & B.".
On page 78, a period was deleted after "ESSEX".
On page 88, "37 N. Y. Supp, 496" was replaced with "37 N. Y. Supp. 496".
On page 90, "haled" was replaced with "hauled".
On page 94, "Christain" was replaced with "Christian".
On page 94, "Assocaition" was replaced with "Association".
End of the Project Gutenberg EBook of The New Jersey Law Journal, Volume
XLV, No. 3, March, 1922, by Various
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