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diff --git a/59877-0.txt b/59877-0.txt new file mode 100644 index 0000000..5150921 --- /dev/null +++ b/59877-0.txt @@ -0,0 +1,1953 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 59877 *** + + + + + + + + + + _THE + NEW JERSEY LAW JOURNAL + PUBLISHED MONTHLY_ + + + VOLUME XLV FEBRUARY, 1922 No. 2 + + + _SOME REMINISCENCES, MOSTLY LEGAL_ + + _BY HON. FREDERIC ADAMS, LOS ANGELES, CAL._ + + IV. CERTAIN COURTS AND LAWYERS. + +Ever since my boyhood the drama of the courtroom has interested me more +than the drama of the theatre. I well remember my introduction to +litigated business. I was a youngster on a visit to Boston when some one +took me to a Court where a patent case was on trial. I was duly +impressed by the imposing personality of the Judge, but my attention was +soon fixed by the witness on the stand, whom I happened to know, for my +father had once introduced me to him. He was Professor James Jay Mapes, +of Newark, New Jersey, a chemist and inventor, one of whose many +activities was the manufacture of fertilizers. I had visited one of his +factories, somewhere between Newark and Elizabeth, and was surprised to +see him at Boston in the rôle of a mechanical expert in a patent case. +As the examination carefully proceeded I concluded, with the rashness of +inexperience, that the examiner was a very dull man, for he seemed so +slow to get an idea. What I then mistook for dullness I now recognize as +professional skill, employed by counsel to unfold to the Court and jury +the details of a complex mechanism. I know now more about that case than +I did then, for, rather to my surprise, I have recently found a report +of it in the first volume of Fisher's "Patent Cases," at page 108. The +time was August, 1851, when I was not quite eleven years old. The +courtroom was that of the Circuit Court of the United States for the +First Circuit. Samuel Colt was plaintiff. The Massachusetts Arms Company +was defendant. The counsel for the plaintiff were E. N. Dickerson, C. L. +Woodbury and G. T. Curtis, and for the defendant R. A. Chapman, G. +Ashmun and Rufus Choate, and the Judge was Mr. Justice Levi Woodbury of +the Supreme Court of the United States, who was then testing the +validity of the patent for the Colt revolver. The charge is reported in +full. The verdict was for the plaintiff. + +Judge Woodbury was a New Hampshire man of some note, then in his +sixty-second year, called by Thomas H. Benton "the rock of the New +England Democracy," who had been Senator of the United States from New +Hampshire, and a member of the Cabinets of Jackson and Van Buren, and, +on the nomination of President Polk, had succeeded Judge Story as a +member of the Supreme Court of the United States. The trial of the case +in which I saw him was one of his last official duties, for he died in +the following month. He was succeeded by Benjamin R. Curtis, of Boston, +on the nomination of President Fillmore. + +While I was at the Harvard Law School in 1863-4, Richard H. Dana was +United States District Attorney at Boston, and I often saw him at +Cambridge, where he lived. His book, "Two Years Before the Mast," was +and is a favorite of mine. I suppose that I have read it twenty times, +and I hope that the boys of this day read and love it. It is in a class +by itself. There is, I think, not in English, and probably not in any +language, another account of seafaring life written in the forecastle by +one of the crew, who was also a gentleman and a scholar and master of a +charming style. The veracity and spirit of the narrative have made it a +classic both here and in England. In California it is particularly +valued, for Dana was one of the pioneers and had sailed through the +Golden Gate on the "Alert" in the winter of 1835-6, many years before +the Mexican War and the discovery of gold, when San Francisco as yet was +not. When, at the end of the visit, the good ship floated out on the +tide, herds of deer came down to the northerly shore to watch the +unusual sight. Dana left college and went on this voyage to cure an +affection of the eyes. After his return he graduated at Harvard in the +class of 1837 and became a lawyer. + +Mr. Dana was qualified by nature and training to become a leading figure +in the public life of this country, and his ambition was that way, but +the cards ran against him. As Goldsmith said of Burke, he was "too nice +for a statesman, too proud for a wit," high-strung and sensitive as a +race-horse, well bred and distinguished in bearing, a clear, graceful +and forcible speaker, an admirable advocate, and an accomplished jurist. +One of his greatest professional efforts and triumphs was his argument +before the Supreme Court of the United States in the Consolidated Prize +Cases, when he had to make it clear to the Court how it was that the +stupendous struggle in which the country was engaged could be a-war with +belligerent rights as between ourselves and other nations, and a local +insurrection as between ourselves and the South. + +It may be remembered that, at the centennial anniversary of the battle +of Lexington, Mr. Dana delivered the oration. It begins with the words, +"How mysterious is the touch of fate which gives immortality to a spot +of earth, to a name." It is a noble commemorative address. Concord has +always plumed itself because it had a real fight, while the Lexington +men only stood up to be shot at and did not damage the English. As the +anniversaries were approaching and good-natured rivalry was in the air, +Concord issued a prospectus of some kind, which did not suit Mr. Dana's +fastidious taste, and he said to Judge Hoar, of Concord: "How is it, +Judge, that you folks at Concord have sent out such a shabby, +badly-written paper? It is positively ungrammatical." "O," said the +Judge, "you know, Dana, at Concord we always did murder the King's +English." + +While Mr. Dana was United States District Attorney he tried the last +slave-trading case. The vessel was the "Margaret Scott," which was +fitted out, I think, at New Bedford, but did not actually embark on the +voyage. The trial was before Mr. Justice Nathan Clifford, of the Supreme +Court of the United States. I heard Mr. Dana's summing up and the charge +to the jury. Judge Clifford was a tall man of great girth. He stood +throughout his admirable charge, which took him an hour to deliver. +After about half an hour he told the jury that they might be seated. + +Governor Hoadley, of Ohio, who was a friend of Judge Swayne of the +United States Supreme Court, once told me this story, which he got from +Judge Swayne. Judge Grier, when on the Bench sat next to Judge Swayne +and, during the latter part of his service, was crippled and dozed a +good deal, and sometimes used to annoy Judge Swayne by speaking to him +in a stage whisper. A prize case was on trial and there was discussion +about belligerent rights, which one of the counsel pronounced +belli_ge_rent. The novelty of the pronunciation roused Judge Grier, who +said to Judge Swayne quite audibly: "Brother Swayne, Brother Swayne, +Judge Clifford is the belli_ge_rent member of this Court." + +In 1868, while at Boston, I heard part of the argument in the remarkable +case of Hetty H. Robinson v. Thomas Mandell, Executor and others. The +case was tried before Judge Clifford in the Circuit Court of the United +States. Sidney Bartlett and Benjamin R. Curtis (who was then an ex-Judge +of the Supreme Court of the United States), were leading counsel for the +complainant, and Benjamin F. Thomas, an ex-Judge of the Supreme Court of +Massachusetts, was leading counsel for the respondents. The complainant, +who is better known to us by her married name of Hetty Green, had filed +her bill setting up a special contract between herself and her aunt, +Sylvia Ann Howland, for an exchange of mutual wills, and that neither +should make any other will without notice to the other and a return of +the other's will. Miss Howland had died, leaving a will not in favor of +Hetty, but largely to charity. The respondent, Mandell, was her +executor. The case is reported in 3 Clifford's Circuit Court Reports, +page 169. Judgment was for the respondents, Judge Clifford saying, in +his decision: "In this case there was no competent evidence to show that +there was any agreement as to the making of mutual wills, and there was +nothing on the face of the instruments to warrant any such conclusion." + +Mrs. Green, whom I saw for the first time, was in Court with her +husband, a large, dressy man, looking like an English guardsman. Much +testimony had been taken. There was a question of forgery, and enlarged +photographs of signatures were standing about. Judge Curtis spoke for +two days, one day on the facts and one day on the law, a length unusual +for him, for he was generally brief. I heard Mr. Bartlett's opening and +part of Judge Curtis's discussion of the facts. Mr. Bartlett was a great +lawyer, but not, I should say, a very good speaker. His reputation was +for condensation and concentration; for making a direct thrust at the +central point, with small regard for introductory and collateral +matters. Someone, I think a Judge of the Massachusetts Supreme Court, +said that Mr. Bartlett's mental operations on matters of law bore about +the same relation to those of the average lawyer that a book of +logarithms does to a common school arithmetic. He continued in active +practice until about the age of ninety, made a large fortune, and was +famous for his high charges. He was no recluse, but a club man and +citizen of the world. + +This was not the first time that I heard Judge Curtis. To follow any +argument of his was an ever fresh delight. I remember as though it were +yesterday the neatness and felicity with which, in the case just +mentioned, he dismissed one of several propositions submitted by his +adversary, saying, with his usual dignity and composure: "I now come to +another of this series, I believe it is the ninth. Like all of them, it +is not pleaded; like most of them, it is not proved; and, like each and +all of them, it would be totally immaterial if it were both pleaded and +proved." And then, in his last sentence, with exquisite tact, he lightly +touched a certain string: "On one side of this case stands the +complainant, with a large fortune; on the other side is a charity; but +this Court observes the divine injunction, 'Thou shalt not respect the +person of the poor, nor honor the person of the mighty, but in +righteousness shalt thou judge thy neighbor!'" + +My friend, Mr. Frank E. Bradner, of the Essex Bar, has referred me to +some lines in "The Professor At The Breakfast Table" which speak of +Judge Curtis, who was a classmate of Dr. Holmes: + + "There's a boy--we pretend--with a three-decker brain, + That could harness a team with a logical chain; + When he spoke for our manhood in syllabled fire, + We called him 'The Justice,' but now he's 'The Squire'." + +He who runs may read. The class of '29 had its twenty-five years +meeting, always a great event, in 1854. Judge Curtis was then on the +Bench and it was probably then that he spoke for the manhood of the +class. He resigned his office in September, 1857, and became a "Squire." + +Judge Curtis was a master of the difficult art of Nisi Prius duty. No +one could be more courteous, patient and impartial, better equipped with +law, more accurate as to fact, or clearer in his rulings and +instructions. Any Judge who has spent several of the best years of his +life in learning how easy it is to try badly a case with a jury and how +hard it is to do it well, will be interested to read the passage which I +quote from a private letter written by Judge Curtis to Mr. Webster after +he had been on the Bench for about a month: + +"I presume you will agree with me that there is no field for a lawyer +which, for breadth and compass and the requisitions made on all the +faculties, can compare with a trial by jury; and I believe it is as true +of a Judge as of a lawyer that, in the actual application of the law to +the business of men, mingled as it is with all passions and motives and +diversities of mind, temper and condition, in the course of a trial by +jury what is most excellent in him comes out and finds its fitting work, +and whatever faults or weaknesses he has are sensibly felt." + +The great event of his judicial career was his dissenting opinion in the +case of Dred Scott v. Sandford, (10 Howard 393, Dec. Term, 1856), in +which he asserted the constitutional power of Congress to prohibit +slavery in the territories. This was the doctrine of Webster and Mason +and of the coming Republican party. Mr. Lincoln, in his debate with +Douglas, carried this dissenting opinion with him. There were nine +Judges, each of whom filed an opinion. Five Judges were from slave +States and were probably themselves slave-holders. Chief Justice Taney +wrote an opinion which is called "Opinion of the Court," but may be more +accurately described as the opinion of Chief Justice Taney and Judge +Wayne, for Judge Wayne, who also filed a separate opinion, was the only +one of the six Judges voting with the Chief Justice who concurred in all +his points, reasonings and conclusions. Even at this day one cannot read +without a shudder the Chief Justice's unflinching declaration as to the +helpless and hopeless status of the negro. Judges McLean and Curtis +filed dissenting opinions. + +There are complexities in the record which make it difficult for even a +lawyer to determine just how much of the opinions filed by a majority of +the Court is decision and how much is _dictum_. The Chief Justice +withheld from the files the so-called "Opinion of the Court," and made +additions and alterations to the extent of eighteen pages, in evident +answer to the filed dissenting opinion of Judge Curtis, and instructed +the clerk not to furnish a copy of the "Opinion of the Court" to anyone +without the permission of the Chief Justice before it was published in +Howard's "Reports," so that Judge Curtis, on application to the clerk, +was unable to obtain the amplified opinion. There ensued a +correspondence between Judge Curtis and the Chief Justice in which Judge +Curtis kept his temper admirably and the Chief Justice nearly, if not +quite, lost his, and did so, I think, because he felt that he was in the +wrong. + +Judge Curtis, by leaving office in 1857, at the age of forty-seven, +surprised his friends and the country. There were two reasons for it. +The state of the Court was such that he did not feel comfortable in it. +This does not refer to his controversy with the Chief Justice, to whose +memory he afterwards paid a cordial tribute. Indeed, it may be doubted +whether he would have felt much more comfortable as a member of the +Court under the reign of Lincoln than he was under the reign of +Buchanan. He was no party man and did not belong in either camp. His +all-sufficient and avowed reason for resigning was that he could not +live on a salary of $8,000, and felt bound to secure for himself and his +family what Burns calls "the glorious privilege of being independent." +This purpose was amply realized. He went at once and inevitably to the +front rank of the American Bar and remained there for seventeen years, +during which time his professional earnings amounted to about $650,000. +This was not in our day of big business, when members of the Bar, who +are great men of affairs, but not necessarily great lawyers, receive, or +are supposed to receive, rich rewards for services in the organization, +manipulation and combination of colossal corporate interests. The annual +income of Judge Curtis was not much over $38,000, but, like Mercutio's +wound, it was enough, it would serve, and it was fairly earned in the +regular practice of his profession, at his office desk, in the trial of +cases, and in writing opinions on important questions submitted to him +from all parts of the country. He stood so high that his written opinion +would often be accepted by both sides of a controversy as the veritable +voice of the Law itself. + +I first saw and heard Judge Curtis at New Haven in 1864, in the trial of +a suit in equity brought in the Circuit Court of the United States for +the Second Circuit by the Lowell Manufacturing Company against the +Hartford Carpet Company for an injunction and accounting. Judge Curtis +led for the complainant, and the special interest of the case was that +he had against him an opponent worthy of his steel, a man five years his +senior, of different race, creed, politics and temperament, Charles +O'Conor, the brilliant leader of the Bar of New York. The two men were +evidently no strangers to one another. Judge Curtis had said at a dinner +party that he regarded Mr. O'Conor's management of the Forest Divorce +Case as the most remarkable exhibition of professional skill ever +witnessed in this country. In the case which I heard at New Haven the +associate counsel were able men, Mr. Edwin W. Stoughton for the +complainant and Mr. George Gifford for the respondent, both prominent +patent lawyers of New York. The Judges were Samuel Nelson of the Supreme +Court of the United States and William D. Shipman of the District Court. + +It was pleasant, after the crudities of county practice, to see the +mutual courtesy of the two leaders. I happen to remember a few gracious +words of Judge Curtis: "and such rights, as no one knows better than the +admirable lawyer on the other side, do not lie in covenant, but do lie +in grant." The argument was not fully intelligible to me, for it dealt +largely with considerations arising out of written contracts with which +I was not familiar, but it was entertaining and instructive to watch the +two men. There came on each side a grateful gleam of fun. While Mr. +Stoughton was speaking of the terms of a contract, Judge Curtis, who sat +near him, interjected the words: "and no longer." Mr. O'Conor in his +argument laid hold of this and said: "Why, you might as well say, 'as +long as grass grows and water runs,' 'and no longer'." I recall only one +precedent for such an expression. It comes from a land from which we get +very little law, though it has given us some lawyers. It is a verse of +an old Irish song: + + "Then Pat was asked would his love last, + And the chancel echoed with laughter, O, + O yes, said Pat, you may well say that, + To the end of the world and after, O." + +Mr. Gifford, in his argument, had referred to a certain United States +statute which, as he said, the Supreme Court had found difficulty in +construing. Mr. Curtis, in his closing argument, said: "That statute +reminds me of a story of a learned divine of this State who once +preached a sermon upon a difficult text in one of St. Paul's Epistles, +and said, finally: 'My brethren, I have now given you the results of my +most careful study and reflection upon this passage of Scripture, but I +feel that, in justice to myself, I ought to say that I very much wish +that the Apostle had not used those words'." + +When Mr. O'Conor, who followed his junior, Mr. Gifford, took his seat +after speaking for five hours, the afternoon was getting late, and I +heard Judge Curtis say to Mr. Stoughton: "I have to answer more than +seven hours of solid argument. I cannot do it in two hours, and shall +ask that the case go over until to-morrow." It was so ordered. In the +evening he said to a friend of mine: "Nothing has been said on the other +side which cannot be answered. The question is whether I can do it." He +spoke the next day for two hours and twenty minutes and closed the case. + +This litigation resulted in a victory for Mr. O'Conor and his +associates. In July, 1864, Judge Nelson wrote a short opinion dealing +with contractual rights and gave judgment for The Hartford Carpet +Company. (Case No. 8569, 15 Federal Cases, page 1021, 2 Fisher's Patent +Cases, 472). + +The Judges and counsel, with the juniors from the Boston and Hartford +offices, dined together every day at the New Haven House, and a +congenial company it was. Mr. O'Conor, when he was at liberty, would put +on the back of his head the silk hat which he always wore and say: +"Who's for a walk?" and go off on a tramp under the elms. He was a +spare, active man, of nervous temperament and great vitality. In New +York he lived at Fort Washington, on the Hudson, and used to rise early, +walk to his club on Fifth Avenue, breakfast there and then go down to +his office. + +The keynote of Judge Curtis was serenity, that of Mr. O'Conor was +intensity. Beginning to tread law at the age of sixteen, Mr. O'Conor +fought his way to the lead, an achievement which no one who knows New +York City will be disposed to underrate. In the fine old common law +phrase, he "made war for his clients." He was tremendously combative +within the rules of the game, and absolutely fearless and independent. +His opinions were often extreme and sometimes eccentric. I heard him say +at the New Haven House, in the middle of the War for the Union, to a man +who asked for political advice: "Take the bull by the horns. Every +dollar spent and every life lost in this War is just so much thrown into +the great deep." It was like him to offer his professional services to +Jefferson Davis in his evil day. He prophesied or hoped that "some +future Tacitus" would arise to pronounce the verdict of history on Chief +Justice Taney as _ultimus Romanorum_. There was a noble side to Mr. +O'Conor's nature. With all his law he was an idealist. In accepting some +now-forgotten nomination to the Presidency, he wrote this ringing +sentence: "To spend in one's allotted place a blameless life of honest +effort, and at its end to perish nobly contending in the Thermopylæ of +an honest cause, has always been to me the perfection of a happy +individual destiny." Let this be his epitaph. + +It remained for Judge Curtis, a few years later, to perform a +professional duty which made him for the second time a prominent figure +in the law and politics of the country. This was his opening argument +for the defense in the Impeachment Trial of President Johnson. In a +private letter written during that trial, he said: "There is not a +decent pretense that the President has committed an impeachable +offense." Most intelligent persons will now agree with him. His argument +is a masterpiece of luminous reasoning and exposition, and concludes +with this grave warning: + +"It must be unnecessary for me to say anything concerning the importance +of this case, not only now, but in the future. It must be apparent to +everyone in any way connected with or concerned in this trial that this +is and will be the most conspicuous instance which ever has been or can +ever be expected to be found of American justice or American injustice, +of the justice which Mr. Burke says is the great standing policy of all +civilized States, or of that injustice which is sure to be discovered +and which makes even the wise man mad, and which, in the fixed and +immutable order of God's providence, is certain to return to plague its +inventors." + + * * * * * + +A landlord is held to be deprived of his property without due process of +law by a statute giving the tenant the privilege of holding over at +pleasure at expiration of his lease, in Hirsh v. Block, 267 Fed. 614, +annotated in 11 A.L.R. 1238, on the constitutionality of rent laws. + + + MAXWELL v. PINYUH. + + (N. J. Supreme Court, Jan. 20, 1922). + + _New Trial--Rules of Supreme Court--Orders of Judges--Relaxation of + Rules._ + +Case of Louise Sylvester, Plaintiff, against George S. Pinyuh, +Defendant. On motions to vacate certain Rules and Orders. + +Mr. Harry R. Cooper for Plaintiff. + +Mr. William J. Hanley, Mr. O. J. Pellet and Mr. Harlan Besson for +Defendant. + +Heard before Justices TRENCHARD, BERGEN and MINTURN. + +PER CURIAM: This is a motion by the defendant to vacate certain rules +heretofore made in the above entitled cause, and a counter motion by the +plaintiff to strike out the restraint imposed upon her in a rule to show +cause granted by Mr. Justice Minturn on the 25th day of October, 1921, +and for permission to perfect her proceeding for a new trial. The facts +are substantially as follows: + +In September, 1921, the case (a Supreme Court issue) was tried in the +Monmouth Pleas on an order of reference made by a Justice of the Supreme +Court. + +The jury found a verdict for the defendant, and the plaintiff, on the +22d day of September, applied to the trial Judge for a rule to show +cause why a new trial should not be granted, which order was allowed by +the trial Judge and was made returnable before him on the 6th day of +October, 1921. + +On the return day of the rule, the attorney for the defendant appeared +before the Judge and objected to his hearing the rule on the ground +that, it being a Supreme Court issue, the rule must be heard by the +Supreme Court. Judge Lawrence reserved decision in the matter, and +thereafter came to the conclusion that the action had become a Common +Pleas case, and that the rule could properly be heard before him, and +fixed October 7th, 1921, for the hearing of same. + +In the meantime defendant's attorney procured from Mr. Justice Minturn a +rule to show cause, returnable before the Supreme Court on the first +Tuesday of November, 1921, why judgment should not be entered in favor +of the defendant against the plaintiff on the postea, and why the trial +Judge should not sign the postea, and restraining the plaintiff from +further proceedings until the further order of the Court. A copy of this +rule was served upon Judge Lawrence and he thereupon concluded that the +rule must be heard before the Supreme Court, and he signed the postea. + +Plaintiff's attorney was evidently under the impression that, after the +postea had been signed by Judge Lawrence, the object of the rule allowed +by Justice Minturn was served, and that the stay contained therein was +no longer effective and did not restrain him from taking the necessary +proceedings to bring on the argument of the rule before the Supreme +Court. He accordingly obtained from Judge Lawrence (who evidently +entertained the same view) a rule amending the previous rule granted by +him to the extent that the argument should be heard before the Supreme +Court on the first Tuesday of February. + +Apparently, because of the uncertainty on the part of plaintiff's +attorney as to whether the rule originally granted by Judge Lawrence, +and the reasons on which plaintiff rested her motion for a new trial, +should be filed in the office of the Clerk of the Supreme Court, or in +the office of the Clerk of the Court of Common Pleas, these papers were +withheld from the files and were not filed within the ten days required +by the rules of this Court. A copy of the reasons and rule were, +however, immediately served on the attorney for the defendant. +Depositions were also taken by the plaintiff under the rule. + +On the 15th day of December, 1921, plaintiff's attorney obtained from +Mr. Justice Kalisch a rule permitting plaintiff to file the rule to show +cause allowed on the 22d day of September, as amended by the rule made +by Judge Lawrence on the 30th day of November and the reasons on which +plaintiff based her motion for a new trial, with the same force and +effect as if the same had been filed within the time limited by law, +and, immediately after that rule was granted, filed the rule made by +Judge Lawrence and the plaintiff's reasons in the office of the Clerk of +the Supreme Court. A copy of the depositions which were taken under the +original rule granted by Judge Lawrence were also served on the +defendant's attorney. + +No state of the case has yet been prepared and served, but it is stated +to be the plaintiff's intention, should the Court permit her to do so, +to immediately prepare and print her case and bring on the rule for +argument at the February Term of the Supreme Court. + +The defendant moves to vacate the rule of September 22d, and the rule of +November 30th, amending it; to vacate the rule allowed by Justice +Kalisch permitting plaintiff to file such rules and the reasons. The +plaintiff moves to vacate the restraint imposed upon her by the rule +allowed by Justice Minturn October 25, 1921, and also moves to be +allowed to perfect her proceedings for a new trial, and to bring on the +same for argument, according to the rules and practice of the Court, at +the February term. + +We think the defendant's motion should be denied and the plaintiff's +motions granted. + +It is of course apparent, and the plaintiff freely admits, that the +rules to show cause why a new trial should not be granted were irregular +and defective and that they have not been brought on in accordance with +the rules of the Supreme Court; but evidently the sole reason therefor +was the confusion existing, both in the mind of plaintiff's attorney and +that of the trial Judge, as to whether the application for a new trial +should be heard before the trial Judge or before the Supreme Court. + +It seems not to be disputed that substantial reasons exist for giving +consideration to plaintiff's application for a new trial. In granting +the rule to show cause why a new trial should not be granted the trial +Judge evidently felt that the plaintiff should be given her day in Court +upon the reasons which were presented to him why the verdict of the jury +should not be set aside. We feel that this Court should not allow the +technical infirmities in the proceeding to deprive the plaintiff of an +opportunity to be heard when, by a suspension or relaxation of its +rules, a possible injustice may be avoided. Rule 217 of the Supreme +Court provides: "The time limited in these rules for the doing of any +act may, for good cause, be extended (either before or after the +expiration of the time), by order of the Court, or a Justice or a Judge +thereof." Rule 218 provides: "These rules shall be considered as general +rules for the government of the Court and the conducting of causes; and +as the design of them is to facilitate business and advance justice, +they may be relaxed or dispensed with by the Court in any case where it +shall be manifest to the Court that a strict adherence to them will work +surprise or injustice." + +We therefore deny defendant's motion to vacate the rules heretofore +obtained by the plaintiff to perfect her proceedings for a new trial, +and we grant the plaintiff's motion to vacate the restraint imposed in +the order of Mr. Justice Minturn, and also grant the plaintiff +permission to perfect her proceedings for an application for a new +trial, and also permission to bring the same on for argument at the +February term of this Court, according to the rules of this Court. The +relief thus granted to the plaintiff will be upon terms that she pay the +defendant costs upon these motions; all other costs to abide the event. + + + STATE v. GROSS. + + (N. J. Supreme Court, Jan., 1922). + +_City Ordinance Against Disorderly Conduct--The Disorderly Act--Removal + of Persons from Railroad Train._ + +Case of The State against Jacob Gross, Prosecutor. On certiorari +dismissing conviction. + +Mr. Charles W. Broadhurst for the Rule. + +Mr. Joseph J. Weinberger for Prosecutor. + +Argued before Justice MINTURN by consent. + +MINTURN, J:. The prosecutor of this writ was convicted before the +Recorder of the City of Passaic for violating section 72 of an ordinance +of that city which provides as follows: "That any person, who shall in +any place in the city of Passaic, make, aid or assist in making any +improper noise, riot, disturbance or breach of the peace, or shall +behave in a disorderly manner, or make use of obscene or profane +language ... shall each be liable to a penalty of five dollars for every +offense." + +The violation complained of was that, while he was a passenger on an +Erie Railroad train, and while the train had stopped at Passaic, he +refused to remove his baggage from between the seats to the baggage +compartment at the request of the conductor, as a result of which the +prosecutor became noisy and boisterous, and the conductor thereupon +caused the removal of the prosecutor and his baggage from the car, and +turned him and it over to a local police officer. He was thereafter +prosecuted as a disorderly person and convicted of that offense. + +Various legal grounds are advanced as a basis for vacating the +conviction. One only I deem fatal to its validity. + +The ordinance in question was intended to apply to public places within +the city for the purpose of suppressing disorderly conduct therein, and, +while in a limited sense a steam railroad car is a quasi public place as +between the State and the railroad, it cannot be reasonably construed as +furnishing such a public place within the contemplation of the local +legislative body, when they passed this ordinance. A similar contention +was before this Court in State v. Lynch, 23 N. J. L. J. 45, where it was +held that a saloon, although a public house in contemplation of law, is +not a "public place" within the contemplation of the provisions of the +Disorderly Act. The words "public places" in this connection were held +to be "such places as are in general use for travel by all citizens, and +in which all have at all times an equal right of passage and repassage." +Adopting this rule of construction the railroad coach in question was +not a "place" to which the jurisdiction of the city can be said to +extend, and the word "place," therefore, in this connection, must be +held to be equivalent to "public place." That this is so is made +manifest from the context of the section of the ordinance invoked upon +the doctrine of _noscitur a sociis_. Thus, the person charged must not +only be in "a place in the city of Passaic," but he must "make, aid or +assist in making any improper noise, riot, disturbance or breach of the +peace, or shall behave in a disorderly manner or make use of obscene or +profane language." + +This enumeration of specific acts of misdemeanor connotes, generally +speaking, the ordinary offense of disorderly conduct, such as is +condemned in our Disorderly Act; and, as has been observed, such +disorderly conduct, to be the subject of public prosecution, must occur +in a "public place," within the jurisdiction of the City Magistrate, and +the environment of the city. A travelling car manifestly is not such a +public place. 32 Cyc. 1249 and cases. + +The fact that the prosecutor was noisy in asserting his rights can make +no difference in the result, for we may, from experience, judicially +notice the fact that the inter-urban railroad train presents no suitable +accommodation for one inclined to indulge in either introspection or +somnolence. Therefore, an ordinary conversation in a major key when +indulged, as was the case here, between a conductor, with a book of +railroad rules in his hand emphasizing his duty, and a protesting +commuter with an innocuous bag, the owner of which attempted to +vindicate in Yiddish-English the rights of the American travelling +public, might be the means of provoking an innocent mental diversion for +the benefit of the curious passengers, but could hardly be said to +evolve the serious accusation of disorderly conduct in a public place, +within the meaning of the ordinance. A discussion in an elevated key on +a railway carriage, whether it concern a bag or the suspected contents +of a bag, is not an unusual episode in everyday American railway life; +nor can it be said to be without its compensation and exhilarating +effect upon the general body of passengers, so long as it does not +assume the intolerant form of vulgarity, or obscenity, and thus warrant +the ejection from the train of the malodorous disputant. + +The fact, of course, is that the voluminous resonance of a conversation +cannot be utilized as a standard to guage either its criminality or its +literary value, and yet debates in the halls of legislation, in the +Courts of justice, not to speak of fulminations from the pulpit, are +often measured by the volume of vocalization and the density of lung +power behind them. + +If precedent were invoked from the classics, we have it in "Sweet +Auburn;" where, in fancy, we hear the + + "Loud laugh that spoke the vacant mind;" + +and Goldsmith's pen picture has placed the vociferous schoolmaster among +the immortals, whose + + "Words of learnèd length and thundering sound + Amazed the gazing rustics ranged around." + +All of this, and more, is familiar experience on the railway train, and +thus far has escaped the proscription of the authorities. + +In Mullen v. State, 67 L. 450, the prosecutor in asserting his rights at +a schoolmeeting became, in the language of this Court, "quite noisy and +excited." His conception of public duty led him to indulge in what the +complainant called "loud language," and for this he was prosecuted under +the provisions of the Disorderly Act, which prohibits in "public places" +the use of "loud, offensive or indecent language." There was no proof of +the indecency or offensiveness of his speech, and this Court held that +the uttering of "loud" language was not enough to sustain the complaint. + +These considerations, without reference to the other objections +presented, lead me to conclude that the judgment of conviction should be +vacated, and such will be the order. + + + STATE v. CAPRIO. + + (Before Hon. Fred G. Stickel, Jr., as Magistrate. Nov. 2, 1921). + +_Prohibition Enforcement Act--Search Warrant--Seizure of Liquor Permits + and Certain Liquors._ + +Case of State against Luigi Caprio. On application to restore property +and liquor taken under search warrant issued under the Prohibition +Enforcement Act. Before Hon. Fred G. Stickel, Jr., a Judge of the Court +of Common Pleas, acting as Magistrate under the Prohibition Enforcement +Act. + +Mr. Anthony R. Finelli for application. + +Mr. J. Henry Harrison, Prosecutor of the Pleas, opposed. + +STICKEL, JR., MAGISTRATE: On October 3rd, 1921, acting as Magistrate +under the Prohibition Enforcement Act, I issued a search warrant +directed to Richard Roe, authorizing a search of the drug store, cellar +and rooms attached at 7 Bloomfield Avenue, Belleville, New Jersey, and a +seizure of the liquor there found, together with all vehicles, fixtures, +containers, utensils, machines, contrivances, or paraphernalia +whatsoever, there found used or intended to be used in the illegal +keeping, manufacture, transportation or sale of liquor. This warrant was +based upon an allegation by Nick Takush that he believed liquor was +unlawfully possessed in such place, and that he based his belief upon +the fact that he had on several occasions purchased whiskey at that +address for beverage purposes, and on the 30th day of September, 1921, +had purchased two gallons of alcohol there for beverage purposes. + +Acting under this warrant, the sheriff, through under-sheriff Alfred C. +Walker, returned the body of Luigi Caprio, admittedly the owner of said +7 Bloomfield Avenue and of the drug store, cellar and rooms attached. +The said under-sheriff also filed an inventory showing that he had +seized under said search warrant a two gallon can labeled, "Columbia +Spirits;" a five gallon can labeled "Alcohol;" one bottle labeled +"Columbia Spirits;" some liquor permits; one five gallon can, full, +labeled, "Columbia Spirits;" one bottle labeled "Aromatic Elixir;" one +bottle labeled "Alcohol." + +Application is now made under sections 63 and 64 of the Prohibition +Enforcement Act to restore the liquor and property so taken, on the +ground that there was no probable cause for believing the existence of +the grounds on which the search warrant was issued, and on the further +ground that the liquor and chattels taken upon such search warrant are +not the same as referred to in the search warrant. + +There is absolutely nothing in the testimony taken before me to support +the contention that there was no probable cause for believing the +existence of the grounds upon which the search warrant was issued, but +there is some merit in the other contention. + +The search warrant directs the taking by the sheriff of "liquor found in +and upon the premises aforesaid, together with any and all vehicles, +fixtures, containers, utensils, machines, contrivance, or paraphernalia +whatsoever found, used or intended to be used in the illegal keeping or +sale of liquor." It will be readily seen that the sheriff would only be +justified in his seizure of the liquor permits if they came within the +description "paraphernalia," and clearly the word "paraphernalia" cannot +be interpreted, particularly in the light of the words which precede it +in the search warrant, to cover liquor permits. The testimony also +showed that the five gallon can labeled "Columbia Spirits" was delivered +by a drug concern to Caprio while the sheriff's men were there or about +the time they arrived. Certainly this liquor is not the liquor referred +to in the search warrant, and consequently, not being the liquor +referred to in the search warrant, it must be restored to the person +from whom it was taken. + +Therefore an order may be presented, reciting that, so far as the +Prohibition Enforcement Act is concerned, the search warrant issued by +virtue of the authority thereof is not sufficient to justify the sheriff +in retaining the liquor permits and five gallon can labeled "Columbia +Spirits," and that in view of the Prohibition Enforcement Act the said +liquor permits and "Columbia Spirits" be restored to said Caprio. + + + HARSEL v. FICHTER & ENGELHARDT. + + (Essex Common Pleas, Dec. 27, 1921). + + _Workmen's Compensation Acts in New Jersey and New York--Applying to + Wrong Tribunal--Election of Tribunal._ + +Case of Julia Harsel, Petitioner, against William Fichter and John +Engelhardt, copartners trading as Fichter & Engelhardt, Defendants. On +petition for compensation under Workmen's Compensation Act. + +Messrs. Kent & Kent for Petitioner. + +Messrs. Kalisch & Kalisch (by Mr. Isador Kalisch) for Respondent. + +STICKEL, JR., J.: The employers contend that the petition for +compensation in this case should be dismissed because the contract of +employment was made in New York, and because the petitioner elected to +proceed under the compensation law of New York, subsequently petitioning +for compensation under the New Jersey law. + +In considering the case, I felt I would be aided if I had before me the +testimony taken in the New York compensation action, and counsel for the +defendant very kindly supplied me therewith. + +From such testimony, which I have filed in this case, as well as from +the deposition filed, I am satisfied and find as a fact that the +deceased was hired in New Jersey by Fichter & Engelhardt. It is quite +clear to me that the deceased heard of the New Jersey job of Fichter & +Engelhardt at the Union rooms in New York and that, being attracted +thereby, he, after giving up the New York job, came to the New Jersey +job, was seen by the foreman, Millhouse, and employed on the spot. +Engelhardt appears to be a silent partner of Fichter, according to his +own testimony, and the firm is, in fact, made up as stated in the title +to this cause. + +Furthermore, even though the contract of employment had been made in New +York, the accident causing the deceased's death having taken place in +New Jersey, the case falls within the New Jersey Compensation Act, and +this notwithstanding the existence of a New York Compensation Act. +American Radiator Company v. Rogge, 86 N. J. L. 436, aff. 87 N. J. L. +314; 245 U. S. 630; David Heiser v Hay Foundry & Iron Works, 87 N. J. L. +688 (at this time the New York Compensation Act was in force); West +Jersey Trust Company v. Philadelphia & Reading Realty Company, 88 N. J. +L. 102. + +As to the question of election, the contention of the employers is +wholly without merit. The petitioner, through attorneys other than those +who now represent her, applied for compensation under the New York +Compensation Act. The Commission held that it had no jurisdiction; that +the case was not within the New York jurisdiction, apparently, from the +testimony taken, because the Commission found that the contract of +employment with petitioner was made in New Jersey and the accident took +place there. Thereupon petitioner applied for compensation in New +Jersey, and an informal award had been made in New Jersey, and a day +fixed to hear the case on the formal petition, before someone in New +York claiming to represent Mrs. Hassel, the petitioner, had applied for +a reopening of the finding of no jurisdiction by the New York +Commission. + +Petitioner in that posture of affairs advised the New York Commission of +the New Jersey proceeding, and asked that the New York proceeding be +stayed "pending the trial of her case in New Jersey, and then after and +when we receive compensation over there, as I understand the law in this +State, Mrs. Hassel can still come in and get the deficiency claim from +the Compensation Bureau here," and this request was duly granted. + +What acts of petitioner constitute the election which should bar this +New Jersey proceeding? Certainly not the original application for +compensation in New York, for that application was dismissed, and it now +appears erroneously, for lack of jurisdiction, and, under such +circumstances, it is clear that she has not made a final and binding +election such as would preclude her applying to the tribunal in fact +possessing jurisdiction. 15 Cyc., p. 262, and cases cited; 20 Corpus +Juris, p. 37, and cases cited. + +If a mistake of a petitioner in applying to the wrong tribunal for +relief would not preclude application to the right tribunal (see 15 +Cyc., supra) certainly the erroneous finding of no jurisdiction by the +tribunal applied to could not have a greater and more binding effect +upon the petitioner. And even a correct finding of no jurisdiction would +not preclude application for relief to the tribunal possessing +jurisdiction. 20 Corpus Juris, p. 27. + +The only other conduct of petitioner which is relied upon to constitute +an election is her request to the New York Commission after someone +unauthorizedly had applied for a re-opening of the case, and after the +institution of the New Jersey suit to stay the New York proceedings +until the completion of the New Jersey proceeding, so that petitioner +might obtain in New York the difference between the New York +compensation allowance and that of New Jersey, and clearly such conduct, +which is, in effect, an election to proceed in New Jersey on the main +case, cannot be held to constitute an election to proceed in New York. + +I, therefore, find that the petitioner is entitled to compensation for +three hundred weeks at the rate of twelve dollars per week, and to one +hundred dollars, the statutory allowance for funeral expenses, and I +will allow counsel for the petitioner a counsel fee for services in this +Court of two hundred and fifty dollars. + +A determination of facts should be prepared by counsel for the +petitioner, submitted to counsel for defendant for inspection, and then +transmitted to me for signature. + + + STATE v. ASH. + + (Essex Common Pleas Jan. 6, 1922). + + _Driving Automobiles Under Influence of Liquor--Review of Evidence + Below._ + +Case of State of New Jersey against Joseph A. Ash. On appeal from Third +Criminal Court of Newark. + +Mr. John P. Manning for State. + +Mr. Andrew Van Blarcom for Defendant. + +STICKEL, JR., J.: The defendant-appellant was found guilty in the Third +Criminal Court in the City of Newark, Judge Horace C. Grice presiding, +for driving an automobile while under the influence of liquor, in +violation of Section 1, Chapter 67, of the Laws of 1913, a supplement to +the Disorderly Person Act, and he now appeals to this Court. + +The first point urged as a ground for reversal of the conviction is that +"at the close of the case there was a reasonable doubt as to the +applicant's guilt; that the State had not sustained the burden of proof, +and that the weight of the evidence favored the appellant." + +It is to be doubted whether this Court has any power to review the +evidence at all, in view of the Laws of 1895, Page 197, section 7, 3 +Comp. Stat., p. 3993, providing: "That it shall not be necessary to set +forth in said conviction [convictions in Police Courts of first-class +cities] the whole or any part of the testimony upon which such +convictions is had," but, assuming it possesses such power, it cannot +extend beyond the point of determining whether there was any evidence +before the trial Court to support its finding. See Sec. 39, Laws of +1915, p. 411, Supp. Comp Stat., p. 490; State v. Lynch, 3 N. J. L. +Journal 45; Lyons v. Stratford, 43 N. J. L., 376; Orange v. McGonnell, +71 N. J. L. 418. No power to weigh the evidence rests in this Court, +and, if it did, I would be unwilling to say, after a reading of the +evidence in this case, that the trial Court was wrong in its conclusion +of facts; that it should have disregarded the officer's testimony and +that of Doctor Mitchell, and believe the story of the defendant and his +friend; or even that the Court must have or should have entertained a +reasonable doubt of the defendant's guilt on the whole case. The trial +Court saw the witnesses, had the benefit of the atmosphere of the trial, +witnessed the demeanor of the witnesses on the stand, their manner of +testifying, and, consequently, was in a better position to determine +questions of fact than this Court is, relying, as it must, upon a paper +record. + +There was ample evidence, if believed, to support the charge. The police +officer testified that he saw the defendant driving the car, smelled +alcohol on his breath, took him to Doctor Mitchell, the police surgeon, +to whom the defendant admitted that he had been drinking, and who found +him under the influence of liquor, and on the stand the defendant told +of having had two drinks of whiskey. + +The point stressed--that the police officer's claimed identification of +the defendant as the driver on South Orange Avenue is so improbable and +impossible as to make his whole story increditable incredible and +unbelievable--presents a question of fact and argument peculiarly the +province of the trial Court, but, in any event, the fair intendment from +his testimony, it seems to me, is that either because of the speed of +the auto in question, or because of the auto chasing the car in +question, with the occupant waving his hand to the officer, he was +attracted to the automobile in question, caught a glimpse of the driver, +turned around, followed the car, ordered it to stop, saw the defendant +while thus endeavoring to bring the car to a stand-still, and then saw +him step out of the car and away from the driver's seat. + +The next point urged is that the Court erred in sustaining an objection +to this question addressed to Officer Moffatt by counsel for the +defendant: "How many conferences have you had about this case this +morning with Captain McRell, or Doctor Mitchell?" After this question +was asked the Court said: "Is that material?" "Mr. Manning: I do not see +that this is material. We have a right to prepare our case. I object." +The Court: "Objection sustained. I think you [counsel for the defendant] +probably talked about your case with your client." No objection was made +to the Court's ruling by counsel for the defendant, no exception taken +thereto, and no effort made to point out the materiality or relevancy of +the question, or that it was but the foundation for some legitimate +attack upon the credibility of the witness. In that posture of affairs +the overruling of the question was in the discretion of the Court and +was harmless. State v. Panelli (N. J.) 79 Atl. 1064. + +The third and last ground urged for reversal is the action of the Court +in permitting Doctor Mitchell to answer the following question over +objection of counsel for defendant and exception duly taken: "And, in +your opinion, would you say his condition to be such as to prevent his +driving a car?" + +Assuming the action of the Court constituted legal error, it could not +prejudice the defendant, for the State was not required to prove that +the defendant was so far under the influence of liquor that he could not +safely drive a car, but merely to prove that he drove the car while +"under the influence of intoxicating liquor." This is clearly pointed +out by Justice Trenchard in State v. Rodgers, 102 Atl. 433 (at p. 435), +where the Justice says: "It will be noticed that it is not essential to +the existence of the statutory offense that the driver of the automobile +should be so intoxicated that he cannot safely drive a car. The +expression 'under the influence of intoxicating liquor,' covers only all +the well known and easily recognized conditions and degrees of +intoxication, but any abnormal mental or physical condition which is the +result of indulging in any degree in intoxicating liquors, and which +tends to deprive him of that clearness of intellect and control of +himself which he would otherwise possess." The State, prior to the +propounding of the said question, had submitted testimony showing or +designed to show that the defendant had driven the car while "under the +influence of intoxicating liquor," and Doctor Mitchell had already +testified that when he examined him he found him under the influence of +intoxicating liquor. + +No legal error being shown or appearing in the record, the conviction is +therefore affirmed. + + + IN RE ESTATE OF ECKERT. + + (Essex County Orphans' Court, Aug. 16, 1920). + + _Exceptions to Accounting--Depreciation of Securities--Continuing + Investments--New and Unlawful Investments._ + +In the matter of the Estate of August F. Eckert. On exceptions to +account. + +Messrs. Riker & Riker (Mr. Theodore McC. Marsh and Harvey S. Moore), +Proctors for Exceptant. + +Mr. Edward R. McGlynn, Proctor for the Executor. + +STICKEL, JR., J.: August F. Eckert, of Orange, New Jersey, died on or +about October, 1914, leaving a last will and testament, whereby he +bequeathed his property to his wife, Caroline Eckert, and to his +children Annie M. Eckert and Clara M. Eckert, to be divided equally +between them as soon as the youngest child should arrive at the age of +twenty-one years. He appointed William Scheerer, executor. Both of the +children were of the age of twenty-one years at the time of testator's +death. Scheerer duly qualified as executor, and from 1914 to the present +time he has been in charge of the administration of the estate. After +being cited to account he filed the account here in issue, and Annie M. +Eckert, who has married and is now known as Annie Maxwell, filed +numerous exceptions to the account. All of these exceptions were +disposed of at the hearing except certain exceptions which fell into two +classes, first, those relating to the depreciation on certain issues of +bonds, generally described throughout the hearing as Public Service +securities, and, second, the exceptions based upon the executor's +failure to invest the cash on hand. + +I will overrule the exceptions falling within the first class, namely, +those seeking to surcharge the executor for depreciation of securities +invested in by the testator and received by the executor as part of his +estate. + +The securities, the subject matter of the exceptions now under +consideration, are investments made by the testator. Consequently, +unless it can be shown that in continuing these investments the executor +failed to exercise reasonable discretion and that there was an absence +of good faith in so continuing them, he cannot be charged with +depreciation of such stock. The burden of proving such lack of good +faith and failure to exercise reasonable discretion is upon the +exceptant. + +This burden she has failed to sustain. I am convinced that whatever the +executor did in the management of this estate was done solely with the +best interests of the estate in mind. + +When the decedent died his widow and two daughters remained together as +a family and the executor proceeded to administer the estate possessed +of the complete and entire confidence of the beneficiaries of the man +who had had sufficient confidence in him to appoint him his sole +executor. + +It was his strict duty, perhaps, to close up the business of decedent, +collect the assets, pay the debts and at the end of the year distribute, +and had he done so he would early have been relieved of his +responsibility. But he wanted to help the family, and so he departed +from his strict duty and permitted the business to be continued for a +time so that the family might benefit from the receipts thereof. + +Again, he permitted the informal use and division of some of the debts +collected and personal property left. But it is entirely clear to me +that this was done by common consent of those concerned, including the +exceptant. The three, constituting the family, were treated as an +entity, and these and other departures from the strict line of the +executor's duty were committed because they were for the common good. + +In line with this policy of helpfulness on Scheerer's part, and of +confidence and reliance upon the part of the devisees, the executor was +given charge of the lands and permitted to continue the management of +the estate long after it should have been wound up. He became, by tacit +consent and common understanding, the trustee of the family. They wanted +the benefit of his judgment and experience until the real estate could +be sold and the proceeds properly invested. This he gave to them. + +This continued during 1915, 1916 and 1917. No question seems to have +arisen as to the propriety of continuing the investments, nor, indeed, +were the executor's acts in any respect challenged during this period. +Then the exceptant left the family and became Mrs. Maxwell, and in 1918 +demanded an accounting. + +Up to this point no evidence at all of bad faith or unreasonable +exercise of discretion appears. + +The result of the demand of the exceptant was the agreement by the +executor and the exceptant, in the office of John P. Manning, her +attorney, upon a settlement which provided for a payment of part of her +share in cash and part in investments of decedent continued by the +executor. The settlement fell through, not apparently because the +securities or settlement were unsatisfactory, but because exceptant +disapproved of the word "heirs" in the release requested of her by the +executor. + +At the time, in 1918, the exceptant was willing to take, as her share of +the estate, some of the same investments which she now declares the +executor was negligent in continuing. Thereafter, and up to the filing +of the account, the attorneys of the exceptant and the attorneys of the +executor were in frequent negotiation, endeavoring to settle the +differences of the parties and agree upon a distribution or division. +Certainly, during this period, the executor would not be charged with +bad faith or failure to exercise reasonable discretion in keeping the +subject matter of the negotiations _in statu quo_, ready for immediate +distribution or division in the event of an agreement. + +Where, then, is the evidence of lack of good faith and failure to +exercise reasonable discretion? I can find none. Indeed, when it is +realized that two of the beneficiaries are entirely content with the +executor's retention of the securities in question; that that which the +securities in question represent is as valuable to-day as when the +decedent died; that the depreciation is a paper or market one, due to +abnormal conditions general throughout the world; that with the return +of normal conditions these securities are likely to find their old +level, and that the exceptant herself has continued to hold her +individual securities, of the same general type as those here in +question, it is easy to believe that had the distribution of the estate +taken place heretofore, to-day would have seen all parties holding on to +their securities, collecting their accustomed income, hoping for the +return of the conditions which would mean a rise in the market value of +their said securities. The mere fact that the executor did not close up +the estate within a year or two after the decedent's death, but +continued to manage and administer it, including the real estate, with +the consent of beneficiaries, did not increase or change his liability. +He was bound to take the same care of the estate as before, no more, no +less. Perrine v. Vreeland, 6 Stew. 102. + +We will now take up the claim that the executor should have invested the +cash on hand instead of keeping it in the bank, and that, having failed +to do so, he must be charged with the difference between the interest he +did get and that which he might have received had he invested it. + +This exception is also overruled. It is true that, generally speaking, +it is the duty of an executor to invest funds in his hands; but the +propriety of charging an executor or trustee with interest because he +has failed to invest the funds depends upon other facts than the mere +possession of the funds, and I know of no case holding that where, +pending negotiations for settlement and distribution, an executor left +the funds of the estate in saving banks, he must be charged with the +interest he might have received had he invested the funds of the estate +and perhaps thereby interfered with the immediate liquidation and +settlement of the estate. On the contrary the tendency of the decisions +is to uphold such conduct. + +His course prior to the demand in 1918 was acquiesced in by the +exceptant; his actions since then were governed, and necessarily, by the +continually pending negotiations. In any event the uninvested funds at +best scarcely equalled at any time, as far as I can discover, two or +three thousand dollars, sums perhaps not always easy to quickly and +satisfactorily invest. + +This leaves for consideration only the act of the executor in investing +five thousand dollars of his _cestui que_ money in Public Service funds. +These were securities in which a trustee had no right to invest. They +are not among those investments which our statute permits trustees to +invest in, and, in establishing the investments, the exceptant has made +out a _prima facie_ case requiring explanation by the executor. + +Undoubtedly the executor acted in good faith, but that will not protect +him as in the case of continuing investments made by a decedent. His +explanation, other than that he acted in good faith, appears to be that +the investment was made with the acquiescence of the exceptant; that she +is estopped from questioning the investment. + +I doubt that the exceptant had actual knowledge of the investment when +it was made, and the general acquiescence which negatived bad faith in +the executor in continuing the decedent's investment would not suffice +to protect the executor in making an investment of this kind. Nor do I +find that she possessed the knowledge of this transaction that would +permit of the application of the doctrine of estoppel. + +As a consequence, unless there are facts which have escaped or have not +been brought to my attention which relieve the executor from the normal +effect of an investment of this kind, he must be charged with the +depreciation of these bonds, unless the beneficiaries agree to accept +the bonds as such. + +[NOTE BY EDITOR.--The above case, which has attracted much local +attention, was in part sustained and in part overruled in the +Prerogative Court on Jan. 31, and may go to the Errors and Appeals]. + + + IN RE VREELAND. + + (Essex Common Pleas, Jan. 19, 1922). + + _Insolvent Debtor_--A preferential payment of a bona fide debt by an +insolvent debtor does not bar his discharge under the Act for the Relief + of Persons Imprisoned on Civil Process. + +In the matter of Frank A. Vreeland. Application for discharge as +insolvent debtor. + +Mr. Richard H. Cashion for Debtor. + +Mr. Frederick J. Ward for objecting Creditor. + +FLANNAGAN, J.: On June 29th, 1921, Peter M. Dalton recovered a judgment +in tort against Frank A. Vreeland, in the Orange District Court, in the +sum of $211.80 and costs; execution was issued and returned unsatisfied. +On September 9, 1921, the debtor was taken into custody on a capias ad +satisfaciendum and released on bail on the following day. The debtor now +applies to this Court for a discharge as an insolvent debtor under the +Act for the Relief of Persons Imprisoned on Civil Process, having filed +what he claims is "a just and true account of all his real and personal +estate," as provided by Section 6 of the Act. + +It appeared from the testimony of the debtor on the hearing before this +Court that, after entry of said judgment and on July 5, 1921, he +executed to his sister, Laura A. Vreeland, a chattel mortgage, for the +sum of $1,505, being the amount of a pre-existing debt for cash advanced +by her to him between August 30, 1920, and the date of the mortgage (to +wit, July 5, 1921). The debtor has no property of any substantial value +remaining, and, while the value of the property mortgaged is questioned, +it represented substantially all his resources and appears to be by no +means equal in value to the amount of the loan against it, $1,505. + +The creditor contends that the debtor, having thus made a preference in +favor of his sister since the entry of the judgment, he is not entitled +to a discharge. This is the only question which is involved in the +present application. + +The statute provides (Section 8) that the Court shall "consider and +examine the truth and fairness of the account and inventory," and +(Section 11) that, if the Court is "satisfied that the conduct of the +debtor has been fair, upright and just," it may proceed to grant his +discharge upon compliance by him with the further provisions as to +assignment, etc., set forth in the statute. + +Under Section 15 of the Act it is provided that if it shall appear that +the debtors have "concealed or kept back any part of their estate or +property, or made any ... mortgage ... with intent to defraud his +creditor ... then ... said debtors shall be refused ... discharge." + +The provision which requires the debtor's conduct to be "fair, upright +and just" is restricted to his conduct in making his account and +inventory, and "in delivering up to his creditors all his estate" +(Meliski v. Sloan, 47 N. J. L. 83; Reford v. Creamer, 30 N. J. L. 253), +and, unless the mortgage to the debtor's sister was with intent to +defraud, it would seem he is entitled to his discharge. Of course, if +the mortgage is fraudulent, he would not be entitled to it. Iliff v. +Banhart, 60 N. J. L. 253; affd. 61 N. J. L. 286. + +There is no evidence in the case that the consideration paid for the +mortgage by the debtor's sister was fictitious, or was not bona fide, or +that the mortgage was with any promise or expectation of future benefit +to the debtor, or was otherwise improper. On the contrary the testimony +is that the mortgage was given for money advanced. The only objection to +the discharge which the evidence would justify is that the mortgage was +given when the debtor was in failing circumstances while insolvent and +after the creditor's judgment had been entered. + +There is nothing fraudulent or wrong, within the meaning of the Act for +the Relief of Persons Imprisoned on Civil Process in the giving of a +preference knowingly by a person in an insolvent condition. + +At common law every man, even when in failing circumstances, has a right +to dispose of his property, to pay one honest creditor in preference to +another one. Garretson v. Brown, 26 N. J. L. 437; affd. 27 N. J. L. 644; +Stillman's Ex. v. Stillman, 21 N. J. Eq. 126. If the debt was honestly +due the debtor had a right to select his favorites. There is nothing in +the Act to change the common law on this subject and hence the debtor +was within his legal rights when he made the preference referred to his +sister. + +For these reasons the debtor is entitled to his discharge. + + + N. Y. AND GREENWOOD LAKE RAILWAY CO., et al. v. ESSEX CO. PARK + COMMISSION. + + (N. J. Supreme Court, Dec. 10, 1921). + + _Certiorari--Railroad Land Acquired by Park Commission by + Condemnation--Disuse of Land by Railroad._ + +New York and Greenwood Lake Railway Co., a Corporation, and Erie +Railroad Co., a Corporation, Prosecutors, against Essex County Park +Commission. Application for writ of certiorari before Hon. William S. +Gummere, Chief Justice. + +Messrs. Parker, Emery & Van Riper (by Mr. John M. Emery) for +Prosecutors. + +Mr. Alonzo Church for Respondent. + +GUMMERE, C. J. (orally): As I understand the situation with relation to +the law and the facts, it is this: + +The Park Commission, having been created by the Legislature for the +purposes specified in the Act under which it was organized, conceived +the idea of acquiring land to be devoted to the uses of a park up in +Verona, and that was done, of course, under a form of resolution, and I +assume, unless I am corrected, that the land to be embraced in the park +was described, in a general way at least, in the resolution. Having +taken that step they started in to acquire the land to be embraced in +the proposed park, and in carrying out that purpose they approached this +railroad company for the purpose of buying from them, for the purposes +of a park, this particular piece of land, but they were unable to make +any arrangement with the company with relation to its purchase and sale. +I say that from my recollection of the provisions in the petition which +was submitted to me, and the accompanying affidavits. + +The railroad company at that time, and that was prior to the first of +November, knew that this Park Commission proposed to acquire a tract of +land, of which this particular piece was an integral part, for the +purposes of public recreation, not only for the citizens of Verona and +neighborhood, not only for the citizens of the county of Essex, but for +all the citizens of the State who desired to enjoy that public benefit. +Now, the Park Commission either had or had not the right to acquire this +land in invitum, that is, against the will of the railroad company and +by the exercise of the power of eminent domain given to them by the +State itself, and so if they had desired to do so (and when I say "they" +I mean the railroad company), they could have ascertained just what the +steps were that had been taken by the Park Commission antecedent to the +negotiations for the purchase of this land. They would have ascertained +that this resolution had been passed and that this particular piece of +land was only a part, perhaps a small part of the whole territory which +was to be acquired and devoted as a unit to park purposes, but they did +not do it. They sat still until they received notice that an application +had been made to the presiding Justice here for the appointment of +commissioners to condemn that piece of land, and a representative of the +railroad company appeared here in response to that notice. + +Of course, there was nothing that could be done in that particular phase +of the matter which would operate as a stay, because the Judge in a +matter of that kind sits as a mere legislative agent. But, after the +Court had appointed the commissioners, this railroad company, having +neglected to act promptly in the way that I have already suggested, by +certioraring the resolution, and thereby preventing the expenditure of +comparatively large sums, I suppose, of public moneys, still waited; not +only waited, without attempting to halt the proceedings, but they +actually attended before the condemnation commissioners. Counsel says +with a reservation, or with an expostulation, or a protest, or what not, +but they appeared there for some purpose, and I suppose to see what the +award would be. I don't know whether they offered testimony or not as to +the value of the land. That has not been spoken of. + +MR. CHURCH: They did offer testimony. + +THE COURT: With the apparent idea, then, that they hold on to their +legal rights with one hand, and, if the award justified them in letting +go, they would let go of their legal rights and take the money. + +Now the question is whether in that situation this railroad company is +in a position to ask relief from a Judge of the Supreme Court, the +relief being in the shape of a writ of certiorari; and whether or not +the writ will be awarded is a matter resting in the discretion of the +Court. I am not speaking about the question of laches, but, in +determining whether this writ ought to issue, I must take into +consideration all of the circumstances. It appears that the railroad +company, instead of acting promptly, has stood by supinely and seen the +county of Essex expend a large amount of money for the purpose of +acquiring property, the value of which for public purposes would be +greatly depreciated if they were to be prevented from taking this land +as a part of the scheme to be carried out. + +So, I would be inclined to say that, in view of that situation, in the +exercise of a proper discretion, I ought to tell the railroad company +that I cannot see my way clear to allow this writ; that it would be +greatly injurious to the people of Essex county and the people of the +State, even, and would produce that injury, although the people and +their representative, the Park Commission, are in no way responsible for +it. + +Then there is another reason why I think this writ ought not to be +allowed. + +This railroad company received from the State of New Jersey a grant, by +the terms of which it was permitted to acquire lands for the +construction and operation of a railroad between given points. That +grant was not as a matter of course made to the railroad company for the +purpose of benefitting it, but to provide a means of transportation by +which the public would be served; and it was an implied part of the +contract which was created by the tender of the grant and its +acceptance, that this corporation would, within a reasonable time, not +only acquire the land but build the railroad and carry the people of +this State backward and forward across it for the compensation which the +Legislature permitted the railroad company to charge; and for over half +a century they have violated the implied condition of their agreement. +They have acquired the land. They have not attempted, and so far as I +know never will attempt, to devote this land to the purposes for which +alone they were entitled to acquire it. They are holding it out of the +general property of the State, and by doing so prohibiting its use for +the benefit of the State, or any of its citizens, or anybody else. In +other words, it is not land that is being held by this company for +railroad use. It has never been so used by them, since it was acquired +over a half century ago, and, so far as anybody can tell, it is quite +uncertain whether it ever will be used for the purposes for which its +acquisition was permitted. + +Now, in that situation, the State comes along and through its agent, the +Essex County Park Commission (for that Commission is a State agent) +says: 'We need this land for public use. You have had your chance to +devote it to that use; you have consistently declined, by inaction at +least, to so devote it, and now we are going to devote it to the uses +and benefits of the State and of the people of that part of the State +located within the borders of the County of Essex,' and I am inclined to +think that this was the situation contemplated by the Legislature which +induced the reservation in the Act of 1921 that railroad companies +should not be permitted to act as dogs in the manger and hold out land +which they cannot use themselves, never have used, and perhaps never +will use, for the only purpose to which they could devote it under their +charter. And so, I think, for this reason also this application should +be denied. + + + ABSTRACTS OF RECENT PUBLIC UTILITY DECISIONS. + +_In re West Shore & Seashore R. R. Co._--Application to discontinue +maintaining an agent at Forest Grove, as revenues do not warrant expense +of the agency; the place to be put under the supervision of the agent at +Minetola, who would keep the station open, lighted, etc. The Board permitted +the discontinuance, adding that "if future conditions change to the +extent of warranting the re-establishment of an agent, the matter will +be given further consideration." Report dated Nov. 4, 1921. Mr. +George A. Bourgeois for the Company. Mr. Joseph Little and Mr. +Charles H. Lincoln for Protestants. + +Another application was made at the same time by the same Company for +the discontinuance of the agent at Buena. The Board said: "While the +reasonableness of the Company's desire to reduce operating expenses is +recognized, the discontinuance of the agent would undoubtedly result in +inconveniencing shippers and receivers of freight and express to an +extent that would not be justified considering the volume of business. +The necessity for the presence of an agent or clerk for a portion of the +day is manifest, and arrangement should be made to have a +representativeat the station from 8 A. M. until 1.30 P. M. daily, +excepting Sundays: also that the station be kept open during the hours +it is at present open for the convenience of passengers. If the Company +will arrange to have a representative at the station for the transaction +of necessary business from 8 A. M. until 1.30 P. M., and keep the +station open covering hours now in effect, the Board will approve such +an arrangement in lieu of agency now effective." Report dated Nov. 4, +1921. Mr. George A. Bourgeois for the Company. Mr. Charles Wray for +Protestants. + + +_In re Pennsylvania R. R._--Application to discontinue an agent at +Allaire. Permit granted. Report dated Nov. 4, 1921. Mr. W. Holt +Apgar for Petitioner. + + +_In re City of Newark._--Application for a change in the colorific +standard of gas. The Board was about to investigate the rates charged +for gas by the Public Service Gas Co., when the City of Newark gave +notice of a demand for an increase in the standard. "There was thus," +said the Board, "injected into the proceeding a question which had to be +decided before the Board's investigation into the rates could proceed, +it being impossible to fix a price for gas until the Board should fix +the standard for gas under Newark's petition. The rule fixing the +standard for gas being applicable to all gas companies in the State, +general notice of hearing was given, and the gas companies were +represented." Testimony was begun in August last, and the general +purport appears in the Report. The Board said: "It does not appear that +the gas supplied by the Public Service Gas Company compares favorably +with that furnished by other companies, which, confronted by the rule +[IX of the standard adopted by the former Utility Board] alone, have +applied it in accordance with its apparent literal significance. The +rule, however, should be free from any misunderstanding as to its +meaning. As the Public Service Gas Company supplies the greater part of +the gas consumed in the State, and to now require it to change its +interpretation of the rule might result in undesirable complications in +the rate proceeding being conducted by the Board without corresponding +advantage to its customers, it is deemed inadvisable to insist upon such +change. In order, however, that there may not be a continued apparent +conflict between the rule as worded and the practice of the Company, the +Board will change the wording of the rule so that there will be no doubt +if gas is supplied with a minimum daily average of 525 B. t. u. it will +be in compliance therewith." Report dated Nov. 4, 1921. Messrs. E. W. +Wakelee, E. A. Armstrong and G. H. Blake for Public Service Gas Company. +Mr. Jerome T. Congleton and Mr. J. G. Wolber for the City of Newark. Mr. +George L. Record for City of Jersey City. Mr. Benjamin Natal for City of +Camden. Mr. William A. Kavanagh for City of Hoboken. Mr. Joseph T. Hague +for City of Elizabeth. Mr. A. O. Miller for City of Passaic. Mr. William +P. Hurley for Town of Nutley. Mr. Welcome W. Bender for Chamber of +Commerce of Elizabeth. Mr. F. R. Cutcheon for Consolidated Gas Company. +Mr. S. J. Franklin for Cumberland County Gas Company. Mr. H. S. Schutt +for Atlantic City Gas Company. Mr. William Wherry, Jr. for New Jersey +Gas Association. Dr. W. G. Hanrahan for Rent Payers' Association of +Essex County and Federation Improvement Associations. Mr. James W. +Howard on his own behalf. + + +_In re Blackwood Water Co._--Application for increase in rates. The +Board required, first, that changes must be made in the system so as to +provide for continuous operation of the filter plant, additional power to +operate the pumping machinery, etc., six different improvements in all. +Doing this the Company could make certain increases in rates beginning +Jan. 1, 1922. Report dated Nov. 9, 1921. Mr. Lewis Starr for Petitioner. +Mr. Samuel P. Hagerman for Township of Gloucester. + + + SOME INTERESTING OUT-OF-STATE DECISIONS. + + STATE PROHIBITION LAWS AND EIGHTEENTH AMENDMENT. + +In the habeas corpus proceeding of Jones v. Hicks, decided by the +Georgia Supreme Court and reported in 104 Southeastern Reporter, 771, +portions of the statement of facts and opinion of the Court by Judge +Gilbert are as follows: + +"Jones was arrested under a bench warrant issued by the Judge of the +city court of Macon, based upon an accusation charging him with +violating the prohibition law of this State on January 21, 1920. He +filed a petition for the writ of habeas corpus, based upon the ground +that the Eighteenth Amendment to the Constitution of the United States, +which was ratified on January 16, 1920, and the 'National Prohibition +Act' known as the Volstead Act (41 Stat. 305), superseded and abrogated +all State laws on the subject covered by said Eighteenth Amendment, and +that therefore, at the time this defendant is alleged to have committed +the criminal offense charged in the accusation, there was no valid State +law in existence. The court refused to release the petitioner, and that +judgment is excepted to.... + +"The second section of the amendment as proposed to the States and +ratified, provides that 'The Congress and the several States shall have +concurrent power to enforce this article by appropriate legislation.' + +"Three views as to the proper construction of the second section have +been generally discussed: (1) That concurrent power means joint power; +(2) That the power is given to each, the legislation of either Congress +or the States being of equal force with the other; and (3) that the +power is in each, but that the legislation of Congress, as the supreme +law of the land, will supersede any inconsistent State legislation.... + +"The Supreme Court of the United States having adversely disposed of the +contention that 'concurrent power' means joint power [State of Rhode +Island v. Palmer, 40 Sup. Ct. 486], there remain two other views to be +considered. Similar, but not identical, questions have been discussed +heretofore by Courts of several States and by the Supreme Court of the +United States. None of these involved construction of delegated powers +to be exercised concurrently. They are cited here for comparison, and +not as controlling.... + +"The sphere in which the Congress, under the Eighteenth Amendment, may +legislate for the enforcement of prohibition, is limited to the precise +terms stated in the amendment, to wit, 'concurrent enforcement....' From +a consideration of the question as above presented, we reject the view +that the legislation of Congress will supersede and abrogate the laws of +the State which are appropriate for the enforcement of the amendment. We +conclude that the power of Congress and of the State is equal and may be +exercised by the several States for the purpose of enforcement +concurrently within their legitimate constitutional spheres. Ex parte +Guerra (Vt.) 110 Atl. 224, and authorities cited. The first section of +the amendment is in no way affected or qualified by the words +'concurrent power,' found in the second section." + + + KILLING COWS BY AUTOMOBILE. + +An automobilist, driving his car at an excessive rate of speed along an +improved country road in the night-time, struck and killed two cows +being driven along the highway. The animals were walking, one behind the +other, in or near the wheel track on the side of the road on which they +belonged. The machine, after striking the leading animal, skidded and +struck the other cow, killing her instantly and casting her dead body, a +distance of 57 feet. The driver admitted he was going "about" 25 miles +an hour; and the Court comments: "The result of the catastrophe indicate +rather strongly that he underestimated his speed." + +The Vermont case of Bombard v. Newton, 111 Atl. 510, is based on this +occurrence, and was instituted by the owner of the animals to recover +damages for their negligent killing. The Court held that the right to +drive an automobile along a public highway is not superior to that to +drive cows along the highway. "The parties," states the opinion, "had +equal and reciprocal rights to the use of the road, and each owed the +other the duty of so exercising his own right as not to interfere with +that of another. + +The fact that it was in the night-time affected the rights of the +parties only as it bore upon the amount of vigilance each was bound to +exercise. The fact that the defendant was operating an automobile, an +instrumentality whose capacity for harm is well exemplified by the +results in this case, and the fact that the plaintiff was driving cows, +animals whose viatic vagaries have come to be known of all automobile +drivers, were conditions affecting merely the degree of care required of +the parties respectively." + + + MISCELLANY + + + PUBLIC SERVICE LOSES JITNEY SUIT + +On Dec. 2 the Court of Errors and Appeals, by a tie vote, 7 to 7, +practically affirmed the decision of Vice-Chancellor Griffin in denying +an injunction to the Public Service Railway Co. to prevent operation of +jitneys on the public highways. The affirmative votes were by Justices +Black, Kalisch, Parker, Swayze and Trenchard, and Judges White and Van +Buskirk; the negative by Chief Justice Gummere, Justices Bergen, +Katzenbach and Minturn, and Judges Williams, Gardner and Heppenheimer. +Justice Minturn wrote an opinion for the negative view. + +The essential points relied upon by counsel for the railway company in +support of the application for an injunction against the jitney owners +were that none of the defendants had applied for and obtained consent +for the use of the streets and highways on which they operated, as +required by the Limited Franchise Act of 1906; that none of the +defendants filed with the chief fiscal officer of the city in which they +operate a policy of insurance, as required by the Kates Jitney Act of +1916; that Barnett, though filing a policy of insurance in Newark, filed +only a copy of the policy in Elizabeth; that Banker filed a policy in +New Brunswick, but none in South Amboy; that the Public Service Railway +in the enjoyment of a legal franchise is entitled to an injunction +against the alleged illegal competition on the part of jitneys, and that +the Public Service is entitled to protection of its franchises and +business by injunction under decisions of the New Jersey court. + +Merritt Lane, counsel for the jitney owners, questioned the jurisdiction +of the Court of Chancery to grant the injunction, contending that the +rights of the Public Service are not of such a nature as to justify it +in seeking relief in any Court, and argued that the franchise of the +company was not to transport passengers for hire and reward but to lay +and maintain rails in public streets and to operate cars thereon. Mr. +Lane also submitted that to grant the injunction would create a result +manifestly opposed to public policy and would result to the disadvantage +of the public. He submitted that the Company was not in a position +adequately to handle the traffic and that if the jitney were eliminated +hundreds of thousands of persons would be obliged to walk or stand while +riding. + + + HUNTING BY FOREIGNERS. + +The County Clerk of Sussex, Mr. Harvey S. Hopkins, has appropriately +called the attention of municipal clerks in that county to their neglect +of duty under the hunting and fishing license law. Doubtless the same +neglect has resulted in other counties. In sending out the supply of +1922 licenses Mr. Hopkins wrote: + +"In every monthly report compiled by this office I can see instances +where resident hunting licenses have been improperly issued to +foreigners who have not yet acquired their final naturalization papers. +This is both unjust and unlawful and sooner or later some issuing clerk +will encounter serious trouble through his laxity in this matter. Unless +you have personal knowledge respecting the applicant, there is but one +safe procedure: Compel him to produce his certificate of final +naturalization. His first papers, or declaration of intention are not +sufficient." + +Mr. Hopkins also called the attention of the municipal clerks to the +change in the fish and game laws which no longer exempt women from the +necessity for procuring a license. Formerly women were not required to +have licenses to fish, although they had to get them to hunt. Now they +have to have licenses for both, as per Chapter 112, Laws of 1921. + + + HONOR TO MR. GASKILL. + +Mr. Nelson B. Gaskill, formerly Assistant Attorney-General of New +Jersey, and now a member of the Federal Trade Commission, has been +elected chairman of that body. He is the second Jerseyman to enjoy that +honor, the late J. Franklin Fort, former Governor, having been chairman +several years ago. + +Mr. Gaskill is a son of former Judge Joseph H. Gaskill of Burlington +County, was for many years connected with the New Jersey National Guard +and during the late War held the rank of Lieutenant-Colonel in the Judge +Advocate-General's Department. He was appointed to the Federal Trade +Commission by the then President Wilson. + + + JERSEY LAW SCHOOL ALUMNI. + +The New Jersey Law School Alumni Association has completed its +organization. The officers elected are: Judge Clyde D. Souter, +President; John A. Ammerman, first Vice President; Miss Irene Rutherford +O'Crowley, Second Vice President; John A. Matthews, Third Vice +President; Miss Helen Oppenheimer, Secretary; Raymond Foster Davis, +Treasurer. + +At the dinner in the Berwick Hotel, Newark, more than 100 lawyers in +this State, all graduated from the school, attended. Richard D. Currier, +President of the law school, told the guests of the advantages gained by +promoting good fellowship in the form of an alumni association. + + + HUMOR OF THE LAW. + +A certain lawyer was asked by an acquaintance how it was that lawyers +contrived to remain on such friendly terms with each other, although +they were famed for their cutting remarks. + +The lawyer looked at him with a twinkle in his eye, and remarked: + +"Yes, but they're like scissors; they only cut what comes +between."--_Japan Advertiser._ + + * * * * * + +His Honor: "Get the prisoner's name, so we can tell his mother." Rookie: +"He sez his mither knows his name."--_Vaudeville News._ + + * * * * * + +"Prisoner at the bar," said the judge, "will you have trial by judge or +jury?" + +"By jury, your honor," said the defendant. "I'll take no chance on you!" + +"What!" roared the court. "Do you mean to say that I would--" + +"I don't mean t' say nothing," said the prisoner, stoutly, "but I ain't +taking no chances. I done some plumbin' work for you last +winter!"--_Richmond Times-Dispatch._ + + * * * * * + +There recently died in Illinois an aged farmer, reputed to be wealthy. +After his death, however, it was discovered he left nothing. And his +will ran like this: + +"In the name of God, amen. There's only one thing I have. I leave the +earth. My relatives have always wanted it. Now they can have it." + + * * * * * + +Mr. Hardfax: "So your son left us to go into a bank in the city? How did +he acquit himself?" + +Mr. Timbertop: "He didn't acquit himself. It took the best lawyer in the +county to get him acquitted."--_Boston Globe._ + + + THE LEGISLATURE. + +The 146th session of the New Jersey Legislature opened at Trenton on +January 10. The Senate consisted of 16 Republicans and 5 Democrats; the +Assembly of 45 Republicans and 15 Democrats. + +There are two women in the Legislature, Mrs. Catherine Brown, Democrat, +of Hudson county, and Mrs. Margaret B. Laird, Republican, who was +reëlected from Essex county. + +Senator William B. Mackay, of Bergen county was elected President of the +Senate; and Assemblyman T. Harry Rowland, of Camden, Speaker of the +House of Assembly. + + + GOVERNOR'S APPOINTMENTS. + +Among the recent appointments by Governor Edwards the following will +prove of special interest to the Bar: + +Justice James F. Minturn, of Hoboken, of the Supreme Court, reappointed. + +Justice Charles C. Black, of Jersey City, of the Supreme Court, +reappointed. + +Judge Walter P. Gardner, Jr., of Jersey City, member of the Court of +Errors and Appeals. + +Mr. Samuel M. Shay, of Merchantville, Common Pleas Judge of Camden +county in place of Judge John B. Kates. + +Judge William H. Speer, of Jersey City, Circuit Court Judge, +reappointed. + +Mr. Willis T. Porch, of Pitman, Prosecutor of the Pleas of Gloucester +county, to succeed Oscar B. Bedrow. + +Mr. John O. Bigelow, of Newark, for Prosecutor of the Pleas. + +Mr. John Enright, of Freehold, for Commissioner of Education. + + + SOME STATE NOTES. + +On Jan. 5 former Judge Maja Leon Berry, solicitor of the Ocean County +Board of Freeholders, entertained that body, the county officials and +newspaper men at a dinner at the Ocean House. The occasion was the +host's forty-fifth birthday and he has followed this custom of +entertaining the officials for the past twelve years. + +Mr. James R. Nugent, of Newark, was nominated on January 16 by the +Governor for Prosecutor of the Pleas of Essex county, but, a week later, +was refused confirmation by the Senate, by a vote of 17 to 3. + +Mr. William E. Holmwood, of Newark, has removed his law office to 43 +Washington street. + +Mr. J. Victor D'Aloia, of Newark, has gone to Europe for a stay of about +two months, so as to visit his parents in Italy. + +A testimonial dinner was given to Judge Rulif V. Lawrence, of Freehold, +at the Hotel Belmont at that place, on January 2, and he was presented +with the gift of a gold watch. + +The Monmouth Co. Bar Association held its annual meeting at Freehold on +January 3 and reëlected its President, Halstead H. Wainwright, of +Manasquan. + +The Union Co. Bar Association held its annual meeting at Elizabeth on +January 3 and elected as its President Mr. Clark McK. Whittemore. It +decided to ask the Legislature to increase the jurisdiction of the +District Courts. + +State Senator Thomas Brown, of Perth Amboy, was appointed counsel for +the Public Utilities Commission on January 3, to succeed Mr. L. Edward +Herrmann, although the latter is still retained by the Commission as +special counsel in the prosecution of the Public Service rate case +before the United States Supreme Court. Senator Brown has practiced law +at Perth Amboy since 1907. + + + OBITUARIES. + + MR. GEORGE W. JENKINS. + +Mr. George Walker Jenkins, one of the best known lawyers of Morristown +in former years, afterward as active in corporation matters in New York +City, died in Memorial Hospital, New York City, on January 19, 1922. He +had been out of health for some months, but went to the Hospital only a +few days before his death. + +Mr. Jenkins was born November 7, 1848, at Catasauqua, Pa., his parents +being George and Hannah (Morgan) Jenkins, who were Welsh people and born +in Wales. After the usual early education he entered Yale College, from +which he was graduated in 1870. He studied law with Messrs. Parker & +Keasbey, in Newark, and was admitted to the New Jersey Bar at the +November Term, 1873, and became counselor at the February Term, 1880. He +began practice at Boonton, but later went to Morristown, where he soon +became one of the most active lawyers of the place. He had ability, +assiduity and exactness in office matters, being so exact in fact that +he became one of the most popular Special Masters of the Court of +Chancery to whom other members of the Bar referred their cases whenever +practicable. Taking early to politics he was soon prominent in the +Republican party, and was elected and served as a Member of the Assembly +during the years 1883, 1884 and 1885. He was also counsel to the Board +of Chosen Freeholders, and at one time served as Journal Clerk of the +New Jersey Senate. In 1886 he ran for State Senator for Morris county, +but was defeated by George T. Werts, who afterward became Governor. + +About twenty-five years ago Mr. Jenkins, while not removing from +Morristown, went to New York City, and was engaged from then until +recently, when his health became impaired, in carrying on legal business +connected with various extensive corporation enterprises. He was +Vice-President and director of the Bridgeport (Conn.) Gun Implement Co. +and Remington Arms Co., director of the M. Hartley Co., Treasurer and +director of the Union Metallic Cartridge Co., Trustee of the Washington +Trust Co., etc., in all of which his legal knowledge was used with skill +and real ability. He owned a large and handsome residence in Morristown, +and also the Silver Lake Farms at Green Village. He was a member of the +Morristown Club, Morris County Golf Club and the University, Yale and +Union League Clubs of New York City. + +Mr. Jenkins married Miss Helen Hartley, daughter of Marcellus Hartley, +of New York City, who, with one daughter and two grandchildren, survive +him. His eldest daughter, Mrs. Frances Greer, of New York City, died +about two years since; the surviving daughter is Mrs. Winter Mead, of +Sand Beach, Conn. He is also survived by a sister, Mrs. A. L. Dennis, of +Plainfield, and by nieces. The interment was at Boonton. + + MR. JAMES A. GORDON. + +Mr. James A. Gordon, an active practicing lawyer at Jersey City, died +suddenly at his home, 638 Pavonia avenue, on January 11. Complaining +that he felt ill, Mr. Gordon left his office the day previous, but his +illness gave no indication that death was near. + +Mr. Gordon was the son of John A. and Isabella (Leslie) Gordon, and was +born in the city of Bergen (now Jersey City), October 7, 1860. He was +graduated from the Jersey City High School in 1881; read law with Mr. +John Linn and Linn & Babbitt, and was admitted as a New Jersey attorney +at the June Term, 1885, and as counselor at the June Term, 1888. He soon +became one of the ablest of the younger members of the Hudson Bar. His +office was at 586 Newark avenue, Jersey City, at the time of his death. +He was unmarried and made his home with a sister, Miss Isabelle Leslie +Gordon, who, with a brother, William Stewart Gordon, survives him. He +belonged to the Bergen Lodge, F. and A. M., and the Hudson Bar +Association. + + MR. ROBERT I. HOPPER. + +Mr. Robert Imlay Hopper, of Paterson, long a prominent attorney of that +city, died on January 24th after a few days illness from a general +breakdown. + +Mr. Hopper was the son of the late Judge John Hopper and Mary A. (Imlay) +Hopper, of Paterson, and was born in that city May 28, 1845. After a +public school education he entered Rutgers College, being graduated +there in 1866. He studied law with his father and became a New Jersey +attorney at the June Term, 1869, and a counselor three years later. For +many years father and son were associated in practice in Paterson, being +severed only because the father was elevated to the Bench. In 1878 he +was chosen counsel to the Passaic Board of Chosen Freeholders and served +as such for ten years. He was also secretary to the Paterson & Hudson +River Railroad (now part of the Erie R. R.), holding that office at the +time of his death. He was active in the National Guard of New Jersey, +having been Major and Judge Advocate, and was prominent in Masonic +circles and in various clubs. His wife, who was Miss Ida E. Hughes, died +April 24, 1878. One daughter, Ida, survives. + + + VAN NESS ACT OVERTHROWN. + +On February 2 the Court of Errors and Appeals of this State declared the +Van Ness Prohibition Enforcement Act unconstitutional. This decision +reverses the Supreme Court in the three test cases involving the +constitutionality of the Enforcement Act and sets aside the opinion +written in the lower Court by Mr. Justice Minturn, presumably concurred +in by Justices Trenchard and Bergen, who heard the argument below. Had +they sat in the full Court there would have been so close a division +that the Court would have stood, as we see it, almost even. + +The news comes to us just as we are going to press, so that the text of +the decisions and dissents is not available. The newspapers state, +however, that four opinions were filed and that results on single +propositions tended to sustain the constitutionality of procedures while +as a whole the Act was overthrown. Says one newspaper: + +"On the question of a jury trial, the Justices found that the denial of +it was proper, six votes to five. That the Act was not unconstitutional +in describing as a misdemeanor what the Federal Volstead Act describes +as a crime, the Court agrees six to six, which upholds the Act. On the +two questions of whether the Act was properly described in its title, +and whether the functions put upon the magistrates by it could properly +be exercised, the Court upholds it nine to two. In other words, each one +of these features is in itself constitutional. But there are eight +Justices who disagree with it on one point or another and only four who +found nothing to disagree with. Therefore, we have the curious +phenomenon of a piece of legislation constitutional in each separate +part, but under which, as it stands, it is impossible to secure a +conviction that will be affirmed. In other words, the Act will not stand +as it is." + +Chancellor Walker devoted the main part of his opinion to consideration +of the constitutional question involving the right of indictment and +trial by jury, in which he held that the Act was defective. Among other +things he said: + +"It is almost superfluous to say that the proceedings under view are +void because there has been no indictment, as that is a mere corollary +to the proposition that they are void because the defendant was denied +the right of trial by jury. No one can be put upon trial before a +traverse jury in New Jersey for a commission of a crime unless upon the +presentment of indictment of a grand jury, except in cases of +impeachment or in cases cognizable by justices of the peace (or certain +military or naval cases)." + +Chief Justice Gummere's opinion was concurred in by Justice Swayze and +Judges Gardner, Ackerson and Van Buskirk. It approached the subject from +a different angle than the chancellor, reaching the conclusion that, +with the passage of the Eighteenth Amendment, the State had to surrender +part of its police power to the Federal Government, and therefore was +bound to legislate in conformity with the Volstead Act, which, passed +under authority of the Federal Constitution, becomes the supreme law of +the land. + +Justice Kalisch held that the supreme law of the land, embodied in the +Volstead Act, having made certain offenses a crime, it was not within +the power of the State to classify them as petty offenders. + +Consideration was given by Judge White to the questions relative to the +right of trial by jury and the alleged erroneous interpretation on the +question of concurrent power. As to the first objection, that relating +to the right of trial by jury, Judge White said he thought the real +underlying historically established test depends upon the character of +the offense involved rather than upon the penalty imposed. + +"The offense must be a petty and trivial violation of regulations +established under the police power of the State in order that the +offender may be summarily tried, convicted and punished without +indictment by a grand jury and without trial by a petit jury." It must, +of course, Judge White said, be assumed that the punishment for a petty +and trivial offense will also be comparatively petty and trivial, +otherwise it would violate another provision of the State Constitution +which prohibits cruel and unusual punishment. + + Transcriber Notes: + +Passages in italics were indicated by _underscores_. + +Small caps were replaced with ALL CAPS. + +Errors in punctuations and inconsistent hyphenation were not corrected +unless otherwise noted. + +On page 38, a single quote was added after "and no longer" + +On page 48, "increditable" was replaced with "incredible". + +On page 48, "canot" was replaced with "cannot". + +On page 52, "execuetd" was replaced with "executed". + +On page 58, "nighttime" was replaced with "night-time". + +On page 60, a dash was added before "Japan Advertiser". + +On page 64, "qustions" was replaced with "questions". + + + + + +End of the Project Gutenberg EBook of The New Jersey Law Journal, Volume +XLV, No. 2, February, 1922, by Various + +*** END OF THE PROJECT GUTENBERG EBOOK 59877 *** |