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CURIOUS CASES
A Collection of American and English Decisions
Selected for Their Readability
BY
B. A. MILBURN
of the Editorial Staff of Edward Thompson Company
1
THE MICHIE COMPANY, PUBLISHERS
CHARLOTTESVILLE, VA.
1902
COPYRIGHT, 1902,
BY
B. A. MILBURN.
n
w พ
Olga 08.1
DEDICATION.
To all lawyers who do not regard the law as a mere
means of obtaining a livelihood, and who can find in law-
books recreation, amusement, and the mirror held up to
nature, this volume is respectfully dedicated.
171471
1
PREFACE.
While ordinarily a law-book needs no preface (with due
apologies to the thousands who have written prefaces to
their law-books), yet because this book of reports is
unique and unprecedented, a few words by way of explana-
tion may not be improper.
The reports abound with cases which make entertaining
reading—some because of the interesting facts and ques-
tions of law involved in them, and others because of the
breezy and humorous vein of the judges who wrote the
opinions—and every lawyer who has delved deeply into
the reports knows that although a case may be a precedent
on some important question of law, it may nevertheless be
one which may be read for recreation only.
This book is intended to serve the twofold purpose of
furnishing the legal profession with a list of curious and
humorous cases and making such cases readily accessible,
so that he who runs may not only read and study law, but
also escape the dry Saharas which he is ordinarily supposed
to traverse.
Although occasionally, as in Wolff v. State, 6 Tex. App.
195, curious syllabi are encountered, they are
as a rule
unentertaining; hence they are omitted from this volume.
It may be added that there are many cases in the books
which are very interesting, but which are not available for
vi
PREFACE
publication in this collection because they are not of sus-
tained interest from one end to the other. Many of such
cases will be presented to the profession in a few months in
the shape of a digest which will be called “The Office
Boy's Digest.” The opinions here reproduced are given in
full except when excisions are indicated by asterisks.
Appreciation is felt for courtesies that have been
extended to the compiler. Numerous judges-not less than
fifty-upon being advised of the intention to republish such
cases as are here presented, sent kind words of encourage-
ment and suggested cases which otherwise would have been
overlooked. A deht of gratitude is particularly due to the
following judges : Samuel Lumpkin of Georgia ; Ralph P.
Quarles of Idaho; John V. Hadley of Indiana ; H. E.
Deemer of Iowa; William A. Johnston of Kansas; John
Lathrop of Massachusetts ; William T. Pigott of Montana ;
Gerrit A. Forbes and Leslie W. Russell of New York ;
Jacob F. Burket of Ohio; John H. Burford of Oklahoma;
John H. Stiness of Rhode Island ; Ira B. Jones of South
Carolina ; John S. Wilkes of Tennessee ; Henry Brannon
and Henry C. McWhorter of West Virginia ; James G.
Jenkins, Judge of the United States Circuit Court, Seventh
Circuit; William Lochren, Judge of the United States
District Court, District of Minnesota; William W. Mor-
row, Judge of the United States Circuit Court, Ninth
Circuit ; and Don A. Pardee, Judge of the United
States Circuit Court, Fifth Circuit. And thanks are
hereby extended to Edward Thompson Company, pub-
PREFACE
vii
lishers of the American and English Encyclopædia of
Law and the Encyclopædia of Pleading and Practice, who
kindly allowed the use of their fine lay library in prepar-
ing these cases for the printer.
B. A. M.
Northport, Long Island, N. Y.,
July 20, 1902.
TA BLE
OF THE
NAMES OF CASES
REPORTED IN THIS VOLUME.
Babcock v. Montgomery County Mutual Ins. Co...... 238
Whether electricity is fire-Insurance-Destruction of
house by lightning without ignition.
Baker . Jacobs..
348
New trial Treating jurors to cigars Drinking
tobacco.
Baldwin, Bendheim Bros. & Co. v.
22
Beck, State v....
294
Bendheim Bros. & Co, v. Baldwin..
22
Justices of the peace-Knowledge of everything except
law-Instructions to juries.
Bosworth, Hunter v...
380
Bradburn, Mincey v.
320
Bradford v. McKibben...
71
Trespassing dog - Kentucky statute-Dog roaming
around to procreate species.
Bull v. State .
27
Abandonment of unborn child.
Bullen, In re......
58
Citizens' Rapid Transit Co. v. Dew...
310
Street railroad companies–Killing dog while “set-
ting” on track--Measure of damages-Evidence of
pedigree.
X
NAMES OF CASES
City of Shreveport v. Roos ...
73
Bawdy houses-Failure to conduct in decent manner.
Clements, Commonwealth v.
291
Cole v. Drew ...
343
Conversion of grass growing on highway -- Emble-
ments—De minimis non curat lex.
Commissioners of Almshouse v. Whistelo
157
Bastardy-Question whether negro or white man was
father-Prenatal conditions-Laban's
tambs.
Commonwealth v. Clements...
291
Estoppel of party injured by rescuer.
Commonwealth v. Thompson..
79
Homicide committed by quack-Medical jurisprudence
- Treatment of fevers regardless of color-Cure for
“hyps."
Corsetti, De Rivafinoli v..
213
Crawford, State ex rel. Vance v.
68
Cunningham, Turpin v.
279
De Rivafinoli v. Corsetti.
... 213
Breach of contract by opera singer-Specific perform-
ance--Ne exeat-Italian opera before master in chan-
cery.
Dew, Citizens' Rapid Transit Co. v..
310
Dilberto V. Harris ..
39
Barbers-Liability for loss of customer's hat.
Drew, Cole v......
343
Ellis v. Newbrough and Howland..
142
Action for deceit-Sufficiency of complaint-Evidence
-Religious communism.
Ellison v. Georgia Railroad Co....
31
Stare decisis-All about amendments.
Entrehman and Samut, Reg. v.....
2
NAMES OF CASES
xi
Ferguson v. Moore...
307.
Argument of counsel-Right to shed tears while
addressing jury.
Forrester v. State.....
...19
Intoxicating liquor-Sale without license-Evidence-
Ministering priestess of rude shrine.
Georgia Railroad Co., Ellison v...
31
Goddard v. Winchell....
41
Ownership of aerolite-Finding lost property.
Harris, Dilberto v..
39
Hill v. State
341
Good reputation acquired in jail.
Holmes, United States v....
382
Hunter v. Bosworth...
380
Motion for rehearing-Counsel rebuked for scolding
court-Liability of great lawyers to be unsuccessful.
Hunter v. New York, Ontario, and Western Railroad
Company.
257
All about giants--Judicial notice as to height of human
body.
In re Bullen.
58
Right to custody of child-Habeas corpus-Justice
Brewer's sentiments on home life.
In the Matter of Rest.
432
Poem by Justice Bleckley.
Irvine, McKay v....
Jacobs, Baker v.
348
James v. Morgan.
1
The barleycorn case--Consideration for contract.
Jones, State o
94
Kent, State v
289
.. 416
xii
NAMES OF CASES
Kirtley v. Shepherd.
352
Option on Mary Washington's grave-Dedication-
Broker with power to sell cannot buy.
Ladue et al., Overseers of the Poor, etc., Nevin v... 217
Langford, State v.....
297
Lewis, State v...
50
Linkhaw, State v...
275
Lowe, Adm’r, v. Morris et al...
4
Origin and history of seals--Validity of writ of error
without seal.
Marks, Woodbridge v...
.. 266
McDaniel, Terry v
327
McKay v. Irvine.
416
The law of horse racing-Liability where oge horse
fouls another.
基
​McKibben, Bradford v.
71
Mincey v. Bradburn...
320
Disorderly conduct of mule-Ordinance of municipal
corporation-Duties of poundkeeper.
Missouri Pac. R. Co. v. Texas, etc., R. Co....... 427
Whether shepherd dog is “stock."
Moeran v. New York Poultry, Pigeon, and Pet Stock
271
Assoc...
Liability of bailee of pet cat to exhibitor-Defective
coop.
Moffatt v. Pratt...
.. 249
Pleading-Irrelevancy and redundancy-Chapter in
New York politics.
Montgomery County Mutual Ins. Co., Babcock v.... 238
Moore, Ferguson v.
307
NAMES OF CASES
xiii
Hunter v..
Moore v. Mustoe..
372
Resulting trusts-Estoppel to tell truth--Reputation
for veracity-Witness never caught in a lie-Cor-
roboration of preacher.
Morgan, James v...
1
Morris et al., Lowe, Adm'r, v.
4
Mustoe, Moore v
372
Neal, State v..
281
Nevin v. Ladue et al., Overseers of the Poor, etc.. ... 217
Nature, origin, and history of intoxicating liquors.
Newbrough and Howland, Ellis v....
142
New York, Ontario, and Western Railroad Company,
257
New York Poultry, Pigeon, and Pet Stock Assoc.,
Moeran v...
271.
Niobe, The....
.. 423
Collision-Boat in wrong berth in charge of “lone fish-
erman"-Mutual fault.
O'Rourk et al., State v..
110
Pacetti v. State..
29
Keeping gambling house-Sufficiency of evidence.
Peabody v. State....
92
Indictment against common prostitute-Sufficiency of
evidence-Biblical test.
Pollock & Co. et al., Selleck & Brush et al. v..... 89
Pratt, Moffatt v..
.. 249
Reg. v. Entrehman and Samut..
2
Mode of swearing a Chinese witness.
Rest, In the Matter of ....
432
Riley v. Riley .....
264
Divorce Physical incapacity of wife who bears twins.
.
xiv
NAMES OF CASES
73
76
Roos, City of Shreveport v..
Scott v. Watson..
Infants—liability for torts committed in obeying parents.
Selleck & Brush et al. v. Pollock & Co. et al..
Assignments for benefit of creditors-Preferences-
Rule deducible from case of Ananias and Sapphira.
89
Shepherd, Kirtley v
352
Slater, Wiley v..
252
Sorrells, Stringfellow v..
333
State ex rel. Bristol v. Walbridge.
101
Libel by officer of official superiors-Removal from office.
State ex rel. Vance v. Crawford...
68
Judicial temperance lecture—The evils of treating.
State v. Beck..
294
Assault and battery committed by express license.
State v. Jones
94
.
Ignorance of attorney as ground for new trial.
289
State v. Kent....
Propriety of taking jury to church-Sermon on Doubt-
ing Thomas-New trial.
297
State v. Langford ...
Larceny of dog-Burglary of dog house.
)
State v. Lewis..
50
Escape from jail when wrongfully imprisoned-Poeti-
cal report by “Ironquill."
State v. Linkhaw....
:. 275
Singing in church out of time-Disturbing religious
worship.
281
State v. Neal......
Cruelty to animals-Right to kill trespassing chickens.
NAMES OF CASES
XV
110
State v. O'Rourk et al....
Indictment for “sporting” on Sunday-Playing base-
ball.
4
State, Bull v...
27
State, Forrester v....
19
State, Hill v.
341
State, Pacetti v.
29
State, Peabody v.
92
State, Stevens v
24
State, Stokes v.
304
State, Waddel v.
... 17
State, Winnard v.
337
Stevens v. State. ...
24
Larceny of hog-Sufficiency of evidence.
Stokes v. State..
304
Identity of footprints-Requiring prisoner to put foot
in pan of mud.
Stringfellow v. Sorrells..
333
Community property under Texas statute—“Increase"
of separate estate of wife-Growth of mules.
327
Terry v. McDaniel..
Exemptions-Tools of trade-Barber's chair, looking
glass, and map of world.
427
79
Texas, etc., R. Co., Missouri Pac. R. Co. v..
Thompson, Commonwealth v.
Turpin v. Cunningham.
Change of color by mortgaged horse-Sticking qual-
ities of mortgages.
279
382
United States v. Holmes.
Manslaughter-Throwing persons overboard to lighten
leaky boat.
xvi
NAMES OF CASES
17
Waddel v. State......
Vagrancy-Indictment for doing nothing with force
and arms.
101
76
157
Walbridge, State ex rel. Bristol v.
Watson, Scottv..
Whistelo, Commissioners of Almshouse v.
Wiley v. Slater..
Duel between dogs- Canine etiquette-Right of dogs
to fight.
Winchell, Goddard v..
252
41
Winnard v. State..
337
Disturbance of religious worship-Application of hot
drops to dog-Principal and accomplice.
Woodbridge v. Marks....
All about dogs--Canines in prose and poetry.
266
CURIOUS CASES.
JAMES
.
MORGAN.
t
King's Bench, 15 Car. II.
[1 Levinz 111.]
The Barleycorn Case-Consideration for Contract.
Assumpsit to pay for a horse a barleycorn a nail, doub-
ling it every nail; and avers that there were thirty-two
nails in the shoes of the horse, which being doubled every
nail, came to five hundred quarters of barley: And on non
assumpsit pleaded, the cause being tried before Hyde at
Hereford, he directed the jury to give the value of the
horse in damages, being 81. and so they did : And it was
afterwards moved in arrest of judgment for a small fault in
the declaration, which was overruled, and judgment given
for the plaintiff.
2
CURIOUS CASES
Mode of Swearing a Chinese Witness
REG.
V.
ENTREHMAN AND SAMUT.
Central Criminal Court, London, 1842.
(41 E. C. L. 139, 1 C. & M. 248.]
Mode of Swearing a Chinese Witness.
The prisoners were indicted for feloniously assaulting one
Assang on the 16th of December, and cutting and wound-
ing him on his left cheek, with intention to do him some
grievous bodily harm.
The prosecutor Assang was a Chinese, and, not understand-
ing the English language, an interpreter was sworn, and in
reply to a question by GURNEY, B., said that he was
acquainted with the mode of administering an oath to a Chi-
nese witness, and described it in the manner in which it was
afterwards administered, adding that he had frequently seen
it so administered, and believed it to be binding in that form.
The prosecutor was then called, and on getting into the
witness-box immediately knelt down, and a china saucer
having been placed in his band, he struck it against the
brass rail in front of the box and broke it. The crier of
the court who swears the witnesses, then, by direction of
the interpreter, administered the oath in these words, which
were translated by the interpreter into the Chinese language:
CURIOUS CASES
3
Mode of Swearing a Chinese Witness
-You shall tell the truth and the whole truth : the saucer is
cracked, and if you do not tell the truth, your soul will be
cracked like the saucer."
It appeared from the evidence, that a general quarrel
arose between the sailors on board a ship called the Scalesby
Castle, in the course of which the prosecutor was wounded.
C. Phillips addressed the jury for the prisoners, and
they acquitted Samut, and found Entrebman guilty of an
assault.
Sentence—fourteen days' imprisonment.
4
CURIOUS CASES
Origin and History of Seals
JACOB LOWĘ, ADMINISTRATOR, PLAINTIFF IN ERROR,
7).
RHODA.MORRIS AND ANOTHER, DEFENDANTS IN ERROR.
Supreme Court of Georgia, 1853.
(13 Ga, 147.]
Origin and History of Seals-Validity of Writ of Error
Without Seal.
Motion to dismiss writ of error.
S. & R. P. Hall, Poe & Nisbet, for the motion.
Hunter and S. T. Baily, contra.
LUMPKIN, J. Is a writ of error a nullity without a seal ?
My first impression was, that this defect was fatal. Upon
reflection, my final conclusion is, the other way. I am not
entirely satisfied, however, that I am right, for the reason
that my brother NISBET thinks differently. And a lifelong
friendship, with an endeared official intimacy of seven years,
has inspired me with the most unfeigned respect for the head
as well as the heart of my colleague.
He has authority on his side, both ancient and modern,
sacred and profane.
His signet or seal was the pledge of identity and fidelity,
exacted by Tamar of Lord Judah, one of the twelve Princes
of Israel. Moses' Reports, Book Genesis, c. 38, v. 18. See
CURIOUS CASES
5
5
Origin and History of Seals
also, Esther, c. 8, v. 8 and 10. It would seem from this
last case, that even at this early period Monarchs as well as
Courts at this day, could only act through their official seal.
And the reason given is, that the precept issued in the King's
name and sealed with his ring, by his Clerk Mordecai the
Jew, may no man reverse. And this is the strong position
of my learned brother. (M. anciently, as now, I would
remark, was a favorite initial for the name of Court Clerks,
from Mordecai the Jew, even down to Martin, the Gentile.)
Whatever else there may be that is new under the sun, it is
very evident, from this last authority, that mails are not.
For we are told that these letters mandatory of Ahasuerus
were sent by post, on horseback, and riders on mules, camels
and young dromedaries.
So much for the antiquity and importance of seals. It
will be found, upon further investigation, that modern
decisions adhere very strictly to these patriarchal precedents.
Bouvier in his Law Dictionary, defines seal-office in Eng-
lish practice, to be the office at which certain judicial writs
are sealed with the prerogative seal; wand without which,
he adds, “they are of no authority.” 2 volume, 495.
In Lessee of Beal et al. v. King et al. (6 Ohio, 11,) the
Court say, “No principle is more definitely settled, than
that the process of a court having a seal, can only be evi-
denced by its seal, which is the appointed mode of showing
its authority.”
By what is called the Practice Act, in the State of Illinois,
it is provided that the first process in a suit shall be a sum-
6
CURIOUS CASES
Origin and History of Seals
mons issued under the seal of the Court, &c. In Hannum
v. Thompson, (1 Scammon's Rep. 238,) it was held by the
Supreme Court of that State, that the Clerk of the Circuit
Court having omitted to put his seal to the original summons,
the proceeding was void, and that too, after judgment had
been rendered in favor of the plaintiff.
In Hall v. Jones, (9 Pick. 446,) where an original writ,
like the one before us, had the seal of the Common Pleas
instead of that of the Supreme Court, to which it was return-
able, the plaintiff having made use of a blank writ of the
Common Pleas, he moved that the writ should be amended
by affixing the proper seal; but the Court decided that it
could not be done.
It is true, that in Massachusetts their Constitution has
provided, that such process should be under the seal of the
Court from which it issued. But the rules of this Court
under the power conferred upon it by the organic law to
establish them, and especially when authenticated, as in this
instance they have been, by legislative recognition, (see Acts
of 1851-2, p. 214, 215,) are equally binding with the pro-
visions of the Constitution. It is only where they conflict,
that the latter has paramount authority.
In Bailey, Judge of Probate, &c., v. Smith et al. execu-
tors, (3 Fair. 196,) the same doetrine was ruled upon a pre-
cisely similar state of facts, to that adjudicated in the
foregoing case. And the Supreme Court of Maine say,
“upon the whole, we regard the seal matter of substance,
and the process being an original writ, it is not amendable.
CURIOUS CASES
7
Origin and History of Seals
29
We do not abate the process so much for the sake of the
defendant, as because the plaintiff has departed from a sub-
stantial requirement of law, of a public nature, in bringing
his action."
Fearing lest my dissenting brother may not be as indus-
trious in citing cases against himself as I have been for him,
let the foregoing suffice.
Those who are curious to investigate the subject of seals,
will find the best account of them in the writings of Lord
Hale and Baron Gilbert.
The earliest mode of commerce being by barter or
exchange of a cow or sheep for some other commodity, it is
supposed that the image of these and other animals stamped
upon leather or other yielding substance, by wood or metal,
constituted the first currency as well as the first use of seals;
next, the impression was made upon the metals, certain
superscriptions indicating the value of the coin, as a Napo-
leon or a Washington. The latter, without weighing, is
universally taken in the United States, to denote twenty dol-
lars. Next, contracts were attested by seals, either where
chirography was not known, or where the party could not
write his name.
Lord Coke defines a seal to be, wax with an impression,
(3 Inst. 169.) “Sigillum,” says he, sest cera impressa,
quia cera sine impressione non est sigillum.” And this has
been adopted as the Common Law definition of a seal.
Perk. 129, 134. Bro. tit. Faits. 17, 30. 2 Leon. 21.
But it is a curious fact, that there is neither an Act of Par-
8
CURIOUS CASES
Origin and History of Seals
liament nor an adjudged case, up to Lord Coke's day, to bind
the Courts as to what constitutes a seal. His opinion was
probably founded upon the practice of the country in his day.
New York, and most of the States North, have held that
a seal is an impression upon wax, wafer or some other tena-
cious substance, capable of being impressed. 5 John. Rep.
239. 2 Caines' Rep. 262. 21 Pick. Rep. 417. But in
Pennsylvania, New Jersey, and the Southern and Western
States generally, the impression upon wax has been disused
and a circular, oval or square mark, opposite the name of
the signer, is held to have the same effect as a seal, the shape
of it being altogether indifferent. It is usually written with
a pen, sometimes printed. 2 Serg. & Rawle, 503. 1 Dall.
63. 1 Watts, 322. 2 Halst. 272.
The truth is, that this whole subject, like many others, is
founded on the usage of the times, and of the country. A
scroll is just as good as an impression on wax, wafer, or parch-
ment, by metal, engraved with the arms of a prince,
potentate or private person. Both are now utterly worth-
less, and the only wonder is, that all technical distinctions
growing out of the use of seals, such as the Statute of Lim-
itations, plea to the consideration, &c., are not at once uni-
versally abolished. The only reason ever urged at this
day, why a seal should give greater evidence and dignity to
writing is, that it evidences greater deliberation, and there-
fore should impart greater solemnity to instruments. Prac-
tically we know that the art of printing has done away with
this argument. For not only are all official, and most indi-
CURIOUS CASES
9
Origin and History of Seals
vidual deeds, with the seals appended, printed previously,
and filled up at the time of their execution, but even mer-
chants and business men are adopting the same prastice, as
it respects their notes.
Once the seal was everything, and the signature was noth-
ing. Now the very reverse is true : the signature is every-
thing, and the seal nothing. Thanks to the advancing
intelligence of the age! In the days of ignorance, to be able
to read and write, would save a felon's neck. Many of the
educated gentry now, who are too lazy to work, and prefer
to live by their wits, are the fellows upon whom the penal-
ties of the law are visited in their utmost severity.
So long as seals distinguished identity, there was pro-
priety in preserving them. And as a striking illustration
see the signatures and seals to the death warrant of Charles
the First, as late as January, 1648. They are 49 in
number, and no two of them alike. But to recognize the
waving, oval circumflex of a pen, with those mystic letters
to the uninitiated, L. S. imprisoned in its serpentine folds,
as equipotent with the coats of arms taken from the devices
engraven on the shields of knights and noblemen ; shades of
Eustace, Roger de Beaumont, and Geoffry Gifford, what a
desecration! The reason of the usage has ceased ; let the
custom be dispensed with altogether.
In Jones & Temple v. Logwood, (1 Washington's Rep. 56,)
President Pendleton states, that there was a period, when
the impression was made with the eye-tooth, and thinks
there was some utility in the custom, since the tooth's
10
CURIOUS CASES
Origin and History of Seals
impression was the man's own, and presented a test in case
of forgery. But this reason, however applicable in Virginia
in 1791, does not hold true in this epoch of dentistry, when
no man's tooth is his own, but teeth, like almost everything
else, are artificial.
Another learned Judge, adverting to this same fact, traces
to it the phrase, “I will prove it to your teeth, or by your
teeth.” He also supposes that "the cutting of the eye-tooth”
had an allusion to this, whether the eye-tooth being cut at a
certain age, it might denote the being of the age of discre-
tion, so as to be capable of contracting, or whether it related
to the impression of that tooth as a mark, being a tooth of
signal and singular impression.
What magic, I ask, is there in our own seal ? True, the
Clerk has attested this writ of error in his official name, and
by his private seal, and in obedience to it, the Clerk of the
Circuit Court has certified and transmitted to this Court all
the records and papers of file in the Court below, which are
necessary to enable us to hear and determine properly, this
cause, upon its merits. But then we look in vain on this
writ, for the three pillars supporting an arch, with the word
Constitution engraven within the same, emblematic of the
Constitution, supported by the three departments of Govern-
ment; Legislative, Judicial, and Executive. The first
having engraven on its face, Wisdom, the second, Justice,
and the third, Moderation, and then on the right of the execu-
tive column, a man standing with a drawn sword, and
CURIOUS CASES
11
Origin and History of Seals
resembling most strikingly in figure and attitude our most
worthy and excellent Chief Magistrate. But I forbear.
Illi robur et des triplex. He would be a bold Judge
indeed, who would venture to decide an issue of law in the
absence of this speaking device! There is a charm in that
arch—a spell in those pillars—an inspiration in the eye of
that fierce-looking swordsman, which guarantees a faithful
administration of justice, although simply and but very
imperfectly impressed on the foolscap paper on which the
writ of error is printed, instead of wax or some other
tenacious substance.
To whom we are indebted for the change in our seal, I am
not antiquarian enough to state. The old devices, I always
venerated ; the one side the scroll on which was engraved
the Constitution of the State of Georgia and the motto, pro
bono publico. On the other side, an elegant house and other
buildings, fields of corn, and meadows covered with sheep
and cattle ; a river running through the same, with a ship
under full sail and the motto, Deus nobis haec otia fecit.
The Latinity as well as the piety of this seal, commend
themselves to my hearty admiration. They will challenge
a comparison, even on the score of architectural taste too,
with the arch resting on three pillars. But then the capital
defect in the old seal—who does not anticipate me—was
the absence of that cocked-hat swordsman. Without this
addendum, it is difficult to decide that any public document
can impart absolute verity. This, it is, I am sure, that has
exerted such a controlling influence over the judgment of
12
CURIOUS CASES
Origin and History of Seals
my dissenting brother, with his well-known military pro-
pensities.
The Act of 1845 authorizes this Court to establish and
procure a seal. My recollection does not serve me whether
the State Court of Arms was selected as the device. I take
it for granted it was. If so, where, upon any seal attached
to any writ of error or citation returnable to this Court, are
those three potent and cabalistic words : wisdom, justice,
and moderation? Do not these constitute a part of the seal
just as much as the seal does a part of the writ of error?
Is it the seal of this Court without them? If so, how much,
and what portions of it may be omitted and still leave a
good seal? Would it be a seal without the arch, without
the pillars, without the motto? I forbear even to put the
question whether it would be a seal without the military
effigy? without that cocked-hat swordsman? Of course, it
would be a nullity. As well talk of a man without a body!
For myself, I am free to confess, that I despise all forms
having no sense or substance in them. And I can scarcely
suppress a smile, I will not say “grimace irresistible," when
I see so much importance attached to such trifles. I would
cast away at once and forever, all law not founded in some
reason--natural, moral, or political. I scorn to be a “cerf
adscript” to things obsolete, or thoroughly deserving to be
And for the “gladsome lights of jurisprudence" I
would sooner far, go to the reports of Hartly, (Texas,) and
of Pike and English, (Arkansas,) than cross' an ocean, three
thousand miles in width, and then travel up the stream of
לל
So.
CURIOUS CASES
13
Origin and History of Seals
time for three or four centuries, to the ponderous tome of
Siderfin and Keble, Finch and Popham, to search for legal
wisdom. The world is changed. Our own situation greatly
changed. And that Court and that country is behind the
age that stands still while all around is in motion.
I would as soon go back to the age of monkery—to the
good old times when the sanguinary Mary lighted up the
fires of Smithfield, to learn true religion ; or to Henry
VIII. the British Bluebeard, or to his successors, Elizabeth,
the two James's and two Charles's, the good old era of butch-
ery and blood, whose emblems were the pillory, the gibbet
and the axe, to study constitutional liberty, as to search the
records of black-letter for rules to regulate the formularies
to be observed by Courts at this day.
I admit that many old things may be good things—as old
wine, old wives, ay, and an old world too. But the world
is older, and consequently wiser now than it ever was before,
Our English ancestors lived comparatively in the adolescence,
if not the infancy of the world. It is true that Coke, and
Hale, and Holt, caught a glimpse of the latter-day glory,
but died without the sight. The best and wisest men of
their generation were unable to rise above the ignorance
and superstition which pressed like a night-mare upon the
intellect of nations. And yet we, who are
And yet we, who are “making light-
ning run messages, chemistry polish boots and steam deliver
parcels and packages,” are forever going back to the good
old days of witchcraft and astrology, to discover.precedents
for regulating the proceedings of Courts, for upholding
1
14
CURIOUS CASES
Origin and History of Seals
seals and all the tremendous doctrines consequent upon the
distinction between sealed and unsealed papers, when seals
de facto no longer exist! Let the judicial and legislative
axe be laid to the root of the tree; cut it down; why
cumbereth it, any longer, courts and contracts ?
Having treated this subject scripturally and historically,
though very discursively, I propose to add a word or two
upon the physiological aspect of the question. And I
repeat the interrogatory propounded at the beginning of this
opinion, namely, what defect will make a writ of error void?
And I answer the query by proposing another: what defect,
original or supervenient, will reduce man from the genus
horno ?
Will the amputation of the feet and legs disfranchise a
descendant of Adam of his title to manhood! It will not
be denied but that he may lose every limb of the body and
leave nothing but the naked trunk, and yet be a man "for a'
And is the seal, though it be constituted of the arch,
and pillars and swordsman, more essential to the writ of
error, or a pedestal to support it, than legs and feet and
arms are to manhood? Common sense will decide.
By the XXth rule, the writ of error is required to issue
in the name of the Governor of the State, bear test in the
names of the Judges of this Court, be signed by the Clerk
and sealed with the seal of this Court, and be made return-
able to its next succeeding term.
The XXIVth rule prescribes imperatively the form of
the writ, “the following shall be the form of writs of
that.'
CURIOUS CASES
15
Origin and History of Seals
error,” &c.
And yet
» &c. Supreme Court Manual, 33. The provisions
of this latter rule, it would seem, should be no less binding
than those of the former. And any departure from either
would be equally incurable or alike amendable.
we have not hesitated to allow writs of error to be amended
as to dates, names of the parties, and other important par-
ticulars prescribed by the form. 2 Kelly, 408. 4 Geo.
Rep. 403. 5 Ib. 582 ; and that too, before the law as to
amendments was as liberal as it has since been made by subse-
quent Statutes. We have gone upon the ground that
neither the XXth nor the XXIVth rule declared that the
writ should be void unless issued in the form prescribed.
Neither at Common Law nor by any of the Statutes of
Amendments and Jeofails was the writ of error amendable
in England till the Statute of 5 George I. was passed, and
the reason assigned for this exclusion was like much of the
other technical folly to be found everywhere in all the old
English books, to-wit, that amendments were granted for
the support of judgments, but that the principal design
of the writ of error is to reverse them. But by the 13th
chapter of the Act referred to, it is declared, “that all
writs of error, whenever there shall be any variance from
the original record, or other defect, may and shall be
amended by the respective Courts where such writ or writs
of error shall be made returnable." Collins v. Muxworthy,
Cas. Tem. Hard. 194.
We have adopted this Statute. And if we had not, the
Act of our own Assembly, approved 23d Feb. 1850, is
16
CURIOUS CASES
Origin and History of Seals
almost if not altogether as broad and comprehensive as that
of the mother country. Cobb's New Digest, 455. And it
will be found, upon examination, that wherever this Act of
George has been adopted, or similar Statutes have been
passed, the most liberal practice has obtained as to the
amendments of writs of error. Indeed, it is difficult to
prescribe any limit to this remedial procedure. 3 Binn.
626. 2 Watts, 294.
With these desultory remarks, I am content to leave the
law, learning, and logic of the case to my brother WARNER,
to whom it legitimately belongs, and who, I have no doubt,
will do ample justice to the argument, and with whom I
concur in retaining the writ of error.
WARNER, J., concurred; NISBET, J., dissented.
CURIOUS CASES
17
Indictment for Doing Nothing
JACOB WADDEL, PLAINTIFF IN ERROR,
V.
THE STATE OF GEORGIA, DEFENDANT IN ERROR.
Supreme Court of Georgia, 1859.
[27 Ga, 262.]
Vagrancy-Indictment for Doing Nothing with Force and
Arms.
Blandford & Crawford, for plaintiff in error.
Sol. Gen. Oliver, represented by W. D. Elam, contra.
LUMPKIN, J. The defendant, having been convicted of
vagrancy in the county of Marion, applied in the Court
below for a new trial, on the ground that the verdict was
contrary to the evidence. And the motion being refused,
he brings up his case by writ of error, to this court.
I was never more impressed with the folly of sticking to
forms, than when reading the presentment of the grand jury
in this case. Jacob is accused of having with force and
arms, &c., doing what? Knocking some one down? No,
but with force and arms doing nothing ; strolling about in
idleness. He is not indicted for being a know-nothing, but
a do-nothing. The offense itself is somewhat anomalous.
Every other in the code charges the defendant with doing
something. This, for doing nothing.
CC-2
18
CURIOUS CASES
Indictment for Doing Nothing
Is the offense sufficiently sustained by the proof? The
grand jury presented Jacob, and the traverse jury convicted
him upon the testimony, notwithstanding Jacob was seen
ploughing a potato patch, and doing some other small jobs,
within the last two years. His fancy seems to have been
mostly to walk the highways. The case is not a very
strong one, still there was proof enough to warrant a con-
viction. And the jury are peculiarly the judges of the
proof.
So Jacob will have to go to work; and not only to work,
but to hard work. So says the code. We fear this will go
hard with Jacob at first. It will be a great change in his
habits. Might not the law, in this humanitarian age, have
condemned the vagrant the first year to work only; and the
second year to hard work ? . Ought not a portion of the
vagrant's hard earning to be appropriated to his family,
provided he have one ?
I am quite satisfied that a large portion of the population
of our towns could be convicted upon stronger proof than
this. It is time, perhaps, to give them a scare ; to admonish
them of the old adage, that a bird that can sing, and won't
sing, must be made to sing. That able-bodied man must not
cumber the ground, living on the sweat of other men's toil.
“Why stand ye here all the day idle ?" is a question which
the master of the vineyard propounds, and which the penal
code will have answered.
Judgment affirmed.
CURIOUS CASES
19
Sale of Intoxicating Liquor Without License
FORRESTER
v.
THE STATE OF GEORGIA.
Supreme Court of Georgia, 1879.
[63 Ga. 349.]
Intoxicating Liquor-Sale Without License-Evidence
-Ministering Priestess of Rude Shrine.
Forrester was placed on trial for the offense of retailing
without license. He pleaded not guilty, but the jury found
to the contrary. A motion for new trial was made because
the verdict was contrary to evidence and to law. The
motion was overruled and defendant excepted.
C. A. Steed and W. T. Day, for plaintiff in error.
Thomas F. Greer, solicitor-general, for the state.
BLECKLEY, J. A witness for the prosecution testified as
follows:
"I never bought any brandy, whisky or other liquors
from the defendant himself. I have frequently bought
whisky in quantities less than one quart at the defendant's
house and in his presence, but I got the whisky from a
hired woman by the name of Mary who was hired by, and
20
CURIOUS CASES
Sale of Intoxicating Liquor Without License
in the service of, the defendant, and who cooked and did
housework for the defendant and his family. This hired
woman was an old-like woman about forty years of age,
judging from her appearance, and lodged in defendant's
kitchen. I got the whisky in the kitchen each time. I
have also got whisky there on several occasions by the
quart, in the same way as before stated. I bought the
whisky at different times in 1876, 1877 and 1878 ; did all
before the April term, 1878, of this court. When I would
ask the defendant for whisky he would tell me to go to
Mary, and when I would offer him the price of it, he would
tell me to give the money to Mary, which I did on each and
every occasion."
Counsel for defendant asked witness if
the defendant when applied to for whisky did not say that
he had none, but that Mary did have some! to which wit-
ness replied, “No, he never said that, but would say “go to
Mary. All this occurred in the county of Pickens, state
of Georgia."
In the defendant's kitchen, by his servant, in his pres-
ence, and with his co-operation through the responses
“Go to Mary,” and “ Give the money to Mary,” the
traffic was carried on. There is little doubt that the de-
fendant was the deity of this rude shrine, and that Mary
was. only the ministering priestess. But if she was the
divinity and he her attending spirit to warn thirsty devotees
where to drink, and at whose feet to lay their tribute, he is
amenable to the state as the promoter of forbidden libations.
CURIOUS CASES
21
Sale of Intoxicating Liquor Without License
Whether in these usurped rights he was serving Mary or
Mary him may make a difference with the gods and god-
desses, but makes none with men.
Cited' by counsel, 15 Ga., 346; 27 Ib., 422 ; 37 Ib., 607.
Judgment affirmed.
22
CURIOUS CASES
Justices of the Peace-Knowledge of Everything Except Law
BENDHEIM BROTHERS & COMPANY
U.
BALDWIN.
Supreme Court of Georgia, 1884.
[73 Ga. 594.]
Justices of the Peace-Knowledge of Everything Except
Law Instructions to Juries.
Before JUDGE MERSHON.
Pierce County.
Reported in the decision.
Andrew B. Estes, Jr., by Harrison & Peeples, for plain-
tiffs in error.
No appearance for defendant.
BLANDFORD, J. This case was tried in a justice's court
on appeal before a jury, the HONORABLE R. G. RIGGINS,
justice of the peace, presiding. His honor charged the
jury as follows: "Gentlemen, this is a case which has been
tried by me before, and I decided in favor of defendant ;
I further charge you, gentlemen, that if you find that any
settlement has been made, you find for defendant; retire
and make up your verdict.'
The law does not require a justice of the peace to charge
the jury at all; his ignorance of the law, as well as propriety,
CURIOUS CASES
23
Justices of the Peace-Knowledge of Everything Except Law
would seem to demand that he should not, but if he under-
takes to instruct the jury, he must do it correctly and in
accordance with law. A justice of the
A justice of the peace is generally a
man of consequence in his neighborhood; he writes the
wills, draws the deeds and pulls the teeth of the people;
also he performs divers surgical operations on the animals
of his neighbors. Thejustice has played his part on the busy
stage of life from the time of MR. JUSTICE SHALLOW down to
the time of MR. JUSTICE RIGGINS. Who has not seen the
gaping, listening crowd assembled around his honor, the
justice, on tiptoe to catch the words of wisdom as they fell
from his venerated lips ?
“ And still they gazed,
And still the wonder grew,
That one small head
Could carry all he knew."
The instructions given in this case exercised an undue and
unwarrantable influence upon the jury. Such is to be
inferred from the fact that they found for defendant, when
the evidence was overwhelmingly in favor of the plaintiff.
The judge of the superior court should have granted the
writ of certiorari in this case, and it was error to have
refused the same.
Judgment reversed.
24
CURIOUS CASES
Evidence of Larceny of Hog
STEVENS
3.
THE STATE OF GEORGIA.
Supreme Court of Georgia, 1886.
[77 Ga. 310.]
Larceny of Hog-Sufficiency of Evidence.
Before JUDGE JOHN T. CLARKE. Early Superior Court.
Alex. Stevens was indicted for the larceny of a black
sow-hog, which was a pet, the property of D. P. Rowland.
The defendant introduced no evidence. The jury found
him guilty. He moved for a new trial on the ground that
the verdict was contrary to law, evidence and the charge
of the court; and because the court permitted a witness for
the State to testify that the owner was hunting for the hog
as a stolen bog, over objection of defendant. The motion
was overruled, and he excepted.
R. H. Powell, by brief, for plaintiff in error.
J. H. Guerry, solicitor-general, by J. H. Lumpkin, for
the State.
BLECKLEY, C. J. 1. In the house hog bones, in the
garden hog-hair, hog entrails, hog meat, buried in the earth,
CURIOUS CASES
25
Evidence of Larceny of Hog
refusal of the occupant of the premises to permit a search
without legal warrant, his abrupt departure from home
whilst the warrant was being procured, his flight or retreat
to a point more than fifty miles distant, and his continuous
absence, until arrested and brought back for trial, are
strongly suggestive of a suspicious intercourse on his part
with some hog or other. The jury were of opinion that it
was the hog described in the indictment; and as he was a
near neighbor to that hog, and as it disappeared about that
time and its owner went in search of it as a stolen hog, and
as the hair and the meat found buried in the garden looked
like the hair and meat of that hog, it is highly probable that
the jury were not mistaken.
2. Complaint is made that a witness was allowed to tes-
tify that the owner was hunting for the animal was a stolen
hog. And so he was, undoubtedly. He would not want
to look in a dwelling-house or under the ground in a gar-
den for a strayed hog; and such were the places searched.
How the witness ascertained that the owner regarded it as
stolen, whether from acts alone, or from declarations and
acts together, does not appear; but if the prisoner or his
counsel had wanted to learn this, the witness ought to have
been interrogated on the sources of his knowledge. He
testified as if he knew the fact somehow, and if he knew it,
he could state it as explanatory of the mode and purpose
of the search. He was present at the search and assisted in
conducting it on the owner's behalf. Moreover, the pris-
>>
26
CURIOUS CASES
Evidence of Larceny of Hog
oner himself was present, face to face with the owner, when
the investigation began, and when steps were taken to enter
upon the search with due legal authority. He could have
had no doubt that the owner was looking for stolen property.
Any man who inters his pork may expect the late departed
hog to be hunted for as stolen, if it is hunted for at all, on
his premises.
Judgment affirmed.
1 1
CURIOUS CASES
27
Abandonment of Unborn Child
BULL
V.
THE STATE OF GEORGIA.
Supreme Court of Georgia, 1888.
[80 Ga. 704.]
Abandonment of Unborn Child.
Before JUDGE HINES. Emanuel Superior Court.
Williams & Brannen, by brief, for plaintiff in error.
0. H. Rogers, solicitor-general, and Alfred Herrington,
county solicitor, by Harrison & Peeples, for the State.
BLECKLEY, C. J. The statute under which Bull was con-
victed reads as follows : “If any father shall wilfully and
voluntarily abandon his children, leaving them in a depend-
ent and destitute condition, such father shall be guilty of a
misdemeanor,” etc. Code, $ 4373. "Coming events cast
their shadows before," and Bull, seeing that he was soon to
have a child born in lawful wedlock, commenced the act of
abandonment immediately after the celebration of his nup-
tials. Had he not continued the act so as to complete it
after the birth of the child, he would not have committed any
offense, but as he did so continue it, and as the child was
left by him in a dependent and destitute condition, accord-
28
CURIOUS CASES
Abandonment of Unborn Child
ing to the finding of the jury on his trial in the county
court, he brought himself within the purview of the statute
above quoted. All the ingredients of his offense had their
rise and progress within the jurisdiction of this State, and
thus his case is distinguished from that of Jemmerson v.
The State, 80 Ga. 111, decided at last term, in which the
abandonment took place in Alabama, and the wife with the
destitute children followed the faithless father into Georgia.
In the present case, we have a domestic, not a foreign, family
to deal with, and the father cannot beat the law by starting
in the race of abandonment before instead of after the birth
of the child. That a father begins to abandon his child
some months before it is born will not excuse him for per-
sisting in the abandonment and failing to furnish it with the
necessaries of life.
Judgment affirmed.
CURIOUS CASES
29
Keeping Gambling House-Evidence
PACETTI
.
THE STATE OF GEORGIA.
Supreme Court of Georgia, 1888.
[82 Ga. 297.]
Keeping Gambling House-Sufficiency of Evidence.
Before JUDGE VAN EPPS. City Court of Atlanta.
H. P. Wright and R. J. Jordan, by brief, for plaintiff
in error.
F. M. O'Bryan, solicitor, by brief, for the State.
BLECKLEY, C. J. A social, genial gentleman, fond of
company and a glass, by occupation a cigar-maker, who
keeps his sleeping apartment with the doors “blanketed” in
a fit condition for privately gaming therein, and who invites
his friends at night to refresh themselves with beer, but has
in the room, besides barrel and bottles, a table suitable for
gaming, together with eleven packs of cards and two boxes
of “chips,” one containing eighty chips and the other three
hundred, and a memorandum book with names and numbers
entered in it, and whose guests, or some of them, retire hur-
riedly under the bed on being surprised by a visit from the
.
(
30
CURIOUS CASES
Keeping Gambling House-Evidence
police at one o'clock in the morning, may or may not be
guilty of the offense of keeping a gaming-house. A ver-
dict of guilty based on these and other inculpatory facts,
such as the rattle of chips and money, and some expressions
about seven dollars and twelve dollars heard by the police
on approaching the premises, is warranted by the evidence,
and is not contrary to law.
Judgment affirmed.
CURIOUS CASES
31
are Decisis-All About Amendments
ELLISON
V.
GEORGIA RAILROAD COMPANY.
Supreme Court of Georgia, 1891.
[87 Ga. 691.]
Stare Decisis-All About Amendments.
Before JUDGE MARSHALL J. CLARKE.
Fulton Superior
A
Court.
W. M. Bray, E. M. Mitchell and Glenn & Slaton, for
plaintiff.
J. B. Cumming, Hillyer & Brother and Bryan Cum-
ming, for defendant.
BLECKLEY, C. J. 1. Some courts live by correcting the
errors of others and adhering to their own. On these terms
courts of final review hold their existence, or those of them
which are strictly and exclusively courts of review, without
any original jurisdiction, and with no direct function but to
find fault or see that none can be found. With these
exalted tribunals, who live only to judge the judges, the rule
of stare decisis is not only a canon of the public good, but
a law of self-preservation. At the peril of their lives they
must discover error abroad and be discreetly blind to its
32
CURIOUS CASES
Stare Decisis-All About Amendments
commission at home. Were they as ready to correct them-
selves as others, they could no longer speak as absolute ora-
cles of legal truth; the reason for their existence would
disappear, and their destruction would speedily supervene.
Nevertheless, without serious detriment to the public or
peril to themselves, they can and do admit now and then,
with cautious reserve, that they have made a mistake. Their
rigid dogma of infallibility allows of this much relaxation
in favor of truth unwittingly forsaken. Indeed, reversion
to truth in some rare instances is highly necessary to their
permanent well-being. Though it is a temporary degrada-
tion from the type of judicial perfection, it has to be
endured to keep the type itself respectable. Minor errors,
even if quite obvious, or important errors if their existence
be fairly doubtful, may be adhered to and repeated indefi-
nitely ; but the only treatment for a great and glaring error
affecting the current administration of justice in all courts
of original jurisdiction is to correct it. When an error of
this magnitude and which moves in so wide an orbit com-
petes with truth in the struggle for existence, the maxim
for a supreme court, supreme in the majesty of duty as well
as in the majesty of power, is not Stare decisis, but Fiat
justitia ruat ccelum.
2. Scarcely any right of procedure is more important to
suitors or more frequently called into exercise in actual
practice than that of amending their pleadings. Amend-
ment is a resource against waste. In pleading, as in every
CURIOUS CASES
33
Stare Decisis-All About Amendments
other art, the philosophy of amendment, or of bettering the
results of work imperfectly executed, is comprehended in
the frank recognition of two things, both of wbich are made
manifest by actual experience: the first is, that in the prac-
tice of any art, it is generally better to preserve what has
been done, improving it, and taking some benefit from it,
than to throw it away and begin over; the second is, that in
the practice of any art, save by the most finished and
accomplished experts, many errors and mistakes will be
committed; some by reason of ignorance or other incom-
petency, some by reason of haste or carelessness, and
some by reason of inherent difficulty and uncertainty as to
what is exactly the right thing to do, the right manner
of doing it, or the right materials to be used. Carried
out consistently to its rational limits, the principle of
amendment applies to both substance and form, and with
quite as much force to the important as to the less important.
No sensible builder discards what he has done and goes
back to the first block and the first blow, unless he has
utterly failed in his foundation. If he has used too much
material, or not enough, or some of an improper kind, or
has put together bis materials or some of them informally
or unskilfully, he corrects his mistake with the least sacri-
fice possible, and retains everything which he can render
useful in completing the structure which he intended and
endeavored to build. The law has all the wisdom and pru-
dence of all the trades. When practicable, it will conserve
CC-3
34
CURIOUS CASES
Stare Decisis-All About Amendments
its own work, the work of its magistrates and ministers,
and that of suitors in its courts, and their counsel.
Must it first appear that no amendment is necessary,
before any can be received ? If the action cannot be
maintained without it, must the amendment be rejected
for that reason? Who would imagine that the test of a
sufficient declaration and of an amendable declaration
would ever come to be the same, under the liberal law
of amendment embraced in the code? The rule of the code
is that at any stage of the case, every declaration is amend-
able in substance in all respects, provided there is already
in it enough to amend by. The construction we are com-
bating holds this to mean that if a declaration lacks any part
of a cause of action, that is, anything which is necessary to
make up enough substance to resist a general demurrer, it
lacks having enough to amend by, and is not amendable.
It holds, in effect, that a general demurrer is not to be
"spoiled” by putting more substance into a declaration, but
only by taking some out when it has an excess.
empty by one-half if the declaration is too full; but if it is
half empty you can never fill it. Nay, if it lacks anything
whatever of being full, what it wants can never be supplied,
though the means of supply may exist in abundant measure.
Under this singular construction, a declaration too strong
in substance, as, for instance, if it sets forth two causes of
action which cannot be joined because one originated in tort,
the other in contract, may be weakened down; but if it is
too weak already, it cannot be strengthened. A declaration
You may
CURIOUS CASES
35
Stare Decisis--All About Amendments
may take an emetic, but not more food. Curative treat-
ment is restricted to depletion ; all tonics are prohibited.
We are reminded of that tender regard for a demurrer
insinuated from the bench nearly two hundred years ago,
in Fox v. Wilbrahain, 1 Ld. Raym. 668, Lord Holt saying:
66 It would be hard to spoil the defendant's demurrer.
But is not a general demurrer too diabolical to have any
claim upon modern emotion ? Stated in the most partial
terms, its merits would seem to stand thus : “Demurrer is
the only legal devil always present and always ready ; every
logical universe requires one such character ; some destruc-
tive work has to be done, and how can it be done if there
is only resistance, no co-operation, not even sympathy ?"
But the spirit of modern procedure is altogether construc-
tive and conservative, and though it gives the devil his due it
takes care to restrict his dues as much as possible.
The case of Martin v. The Gainesville, J. & 8. Rail-
road, 78 Ga. 307, is overruled ; and so is any and every
other case in so far as the judgment of affirmance or reversal
rests upon the construction herein reviewed and disap-
proved.
There is no actual disruption or dismemberment of the
cause of action by failing to describe it all at first, but the
process which takes place in amending the description may
be conceived of as one of restoration and reconstruction,
much like that conducted by a zoologist when, from a few
bones, or perhaps a single one, he draws or describes the
whole skeleton. There is this difference, however: the
*
36
CURIOUS CASES
Stare Decisis-A11 About Amendments
*
ever.
zoologist undertakes only to find an individual which will
represent the species to which the specimen belongs,
whereas reconstruction by amendment must result in cover-
ing with the declaration as amended the identical individual
case embraced originally in the design of the pleader, and
of which each essential fragment of the restored whole
formed a part.
It has been suggested that an incomplete cause of action
has no life in it, and consequently, that a complete cause is
necessary in order to render the declaration amendable, a
dead thing not being susceptible of any amendment what-
But this begs the question. It assumes, by the use
of a simile, that life or something analogous to it is necessary
to a legal document which is used by the law as mere means
to span the chasm between process and judgment; and it
assumes that there is life in a cause of action when the
whole of it is in the document, but not when less than the
whole is in. The first assumption may be granted, but half
of the second is unwarrantable. A cause of action, if alive
at all, is alive all over ; each fragment is living matter, and
has neither more nor less vitality in consequence of being
put in or left out of the declaration. The pleader does not
slaughter his cause of action by the way he deals with it in
pleading. In point of fact, pleading merely describes it,
and failing to mention some of its parts is only omitting to
tell the whole truth about it. It might as well be said that
a man or an animal is killed by a deficient description. A
cause of action is indestructible by any such means as incom-
CURIOUS CASES
37
Stare Decisis-All About Amendments
plete description. On the contrary, it remains so absolutely
alive that without the least change in itself, a proper sup-
plement to the description will set the whole business right.
Used merely for illustration, figures are often helpful, and
the life simile may be helpfully employed in the present dis-
cussion. Amendment being a resource against waste, and
waste in pleading being, according to common sense and
sound economic principles, no more justifiable than waste
in anything else, no pleading, especially no declaration (that
on which the existence of the whole case depends), should
be cast out as worthless if it can be saved by a fair and rea-
sonable use of the amending power. That power neither
creates nor raises from the dead ; its function is neither
generation nor resurrection, but is rather one of develop-
ment, nutrition and medication. If the legal case which
the pleader intended to make has been so far developed and
differentiated in design that the court can recognize it as
probably fit to become a member of the case family, though
it may still be in the womb and deficient in vigor or not
fully developed in some of the essential parts or organs which
would enable it to live as an independent being, indeed, if it
be little more than a mere germ, the law has quickened it,
and it is within the reach of amendment. Life, in the law
of amendment, means mere quickening, ante-natal life, that
which is sufficient to start with, though it may be much less
than is requisite to support existence against the most feeble
attack if the amending power be not invoked. Altogether
a different and higher measure of life is contemplated in the
38
CURIOUS CASES
Stare Decisis-All About Amendments
*
law as a basis for amending form. In order that form may
be amended, there must be vitality of substance sufficient
to burst from the womb, pass through all the stages of
being until final judgment is rendered, and endure perpetu-
ally in the judgment itself. The reason for this difference
is, that amendment of substance is capable of increasing
vitality and raising it to any required standard of vigor and
durability, whereas by amending form the quantity of life
is not varied, the whole of life being lodged in substance,
none of it in mere form. Amendment of substance aids a
declaration to live and augment its life, and not merely to
exert the vital force which it already possesses.
We have no doubt that the able and learned judge who
presided in this case well knew what duty of the defendant
towards the plaintiff was meant to be asserted ; and had he
been at liberty to follow his own convictions as to the true
law, it is very probable he would have allowed the amend-
ment. This is the second instance in which we have been
constrained to reverse him as a consequence of correcting a
misleading decision of this court.
His willingness to abide
by authority which ought to control him for the time being
is not the least conspicuous of his many judicial virtues.
Judgment reversed ; on crossbill of exceptions, affirmed.
CURIOUS CASES
39
Barbers-Liability for Loss of Customer's Hat
DILBERTO
V.
HARRIS.
Supreme Court of Georgia, 1894.
[95 Ga. 571.]
Barbers-Liability for Loss of Customer's Hat.
Bibb Superior
Certiorari. Before JUDGE BARTLETT.
Court.
Freeman & Griswold, for plaintiff in error.
SIMMONS, J. The proprietor of a barber-shop kept for
public patronage is liable to a customer for the value of his
hat, which was deposited on a hat-rack in the shop and
which, while the customer was being shaved, disappeared
from the shop and was thus lost, such proprietor being,
under these facts, a bailee for hire as to the customer's hat.
Judgment affirmed.
BLECKLEY, C. J., dissenting. It hath never happened
from the earliest times to the present that barbers, who are
an ancient order of small craftsmen serving their custom-
ers for a small fee, and entertaining them the while with
the small gossip of the town or village, have been held
responsible for a mistake made by one customer whereby
40
CURIOUS CASES
Barbers-Liability for Loss of Customer's Hat
he taketh the hat of another from the common rack or
hanging place appointed for all customers to hang their bats,
this rack or place being in the same room in which custom-
ers sit to be shaved. The reason is, that there is no com-
plete bailment of the hat; the barber hath no exclusive
custody thereof, and the fee for shaving is too small to com-
pensate him for keeping a servant to watch it. He himself
could not watch it and at the same time shave the owner.
Moreover, the value of an ordinary gentleman's hat is so
much, in proportion to the fee for shaving, that to make the
barber an insurer against such mistakes of his customers
would be unreasonable. The loss of one hat would absorb
his earnings for a whole day, perhaps for many days. The
barber is a craftsman laboring for wages, not a capitalist
conducting a business of trade or trust.
1
CURIOUS CASES
41
Ownership of Aerolite-Finding Lost Property
John GODDARD, APPELLEE,
V.
H. V. WINCHELL, APPELLANT.
Supreme Court of Iowa, 1892.
[86 Iowa, 71.]
Ownership of Aerolite-Finding Lost Property.
Appeal from Winnebago District Court. Hon. John C.
SHERWIN, Judge.
Action in replevin. The subject of the controversy is an
aerolite. In the district court the cause was tried without
the aid of a jury, and the court gave judgment for the plain-
tiff, from which the defendant appeals. Affirmed.
Charles B. Elliott and C. H. Kelley, for appellant.
Peters & Fisher and W. E. Bradford, for appellee.
GRANGER, J. The district court found the following facts,
with some others, not important on this hearing:
66 First.
That the plaintiff, John Goddard, is, and has been since
about 1857, the owner in fee simple of the north half of sec-
tion number three, in township number ninety-eight, range
number twenty-five, in Winnebago county, Iowa, and was
such owner at the time of the fall of the meteorite herein-
after referred to. Second. That said land was prairie land,
42
CURIOUS CASES
Ownership of Aerolite-Finding Lost Property
t
and that the grass privilege for the year 1890 was leased to
one James Elickson. Third. That on the second day of
May, 1890, an aerolite passed over northern and northwest-
ern Iowa, and the aerolite, or fragment of the same, in
question in this action, weighing, when replevied, and when
produced in court on the trial of this cause, about sixty-six
pounds, fell onto the plaintiff's land, described above, and
buried itself in the ground to a depth of three feet, and
became imbedded therein at a point about twenty rods from
the section line on the north. Fourth. That the day after
the aerolite in question fell it was dug out of the ground with
4 spade by one Peter Hoagland, in the presence of the tenant,
Elickson; that said Hoagland took it to his house, and
claimed to own same, for the reason that he had found same
and dug it up. Fifth. That on May 5, 1890, Hoagland
sold the aerolite in suit to the defendant, H. V. Winchell,
for one hundred and five dollars, and the same was at once
taken possession of by the said defendant, and that the pos-
session was held by him until same was taken under the writ
of replevin herein ; that the defendant knew at the time of
his purchase that it was an aerolite, and that it fell on the
prairie south of Hoagland's land.
Tenth. I find
the value of said aerolite to be one hundred and one dollars
($101) as verbally stipulated in open court by the parties to
this action; that the same weighs about sixty-six pounds, is
of a black smoky color on the outside, showing the effects of
heat, and of a lighter and darkish gray color on the inside ;
that it is an aerolite, and fell from the heavens on the second
*
*
CURIOUS CASES
43
Ownership of Aerolite-Finding Lost Property
66
of May, 1890 ; that a member of Hoagland's family saw the
aerolite fall, and directed him to it."
As conclusions of law, the district court found that the
aerolite became a part of the soil on which it fell ; that the
plaintiff was the owner thereof; and that the act of Hoag-
land in removing it was wrongful. It is insisted by the
appellant that the conclusions of law are erroneous; that
the enlightened demands of the time in which we live call
for, if not a modification, a liberal construction of the ancient
rule, that whatever is affixed to the soil belongs to the
soil," or, the more modern statement of the rule, that
a permanent annexation to the soil, of a thing in itself
personal, makes it a part of the realty.” In behalf of the
appellant is invoked a rule alike ancient and of undoubted
merit--that of "title by occupancy”—and we are cited to
the language of Blackstone, as follows : "Occupancy is the
taking possession of those things which before belonged
to nobody;
" and "whatever movables are found upon
the surface of the earth, or in the sea, and are unclaimed
by any owner, are supposed to be abandoned by the last
proprietor, and as such are returned into the common stock
and mass of things, and therefore they belong, as in a state
of nature, to the first occupant or finder.'
In determining
which of these rules is to govern in this case, it will be
well for us to keep in mind the controlling facts giving rise
to the different rules, and note wherein, if at all, the facts
of this case should distinguish it. The rule sought to be
avoided has alone reference to what becomes a part of the
44
CURIOUS CASES
Ownership of Aerolite-Finding Lost Property
>>
soil, and hence belongs to the owner thereof, because attached
or added thereto. It has no reference whatever to an inde-
pendent acquisition of title, that is, to an acquisition of
property existing independent of other property. The
rule invoked has reference only to property of this independ-
ent character, for it speaks of movables “found upon the
surface of the earth or in the sea." The term "movables"
must not be construed to mean that which can be moved,
for, if so, it would include much known to be realty ; but it
means such things as are not naturally parts of earth or sea,
but are on the one or in the other. Animals exist on the
earth and in the sea, but they are not, in a proper sense,
parts of either. If we look to the natural formation of the
earth and sea, it is not difficult to understand what is meant
by 6 movables,” within the spirit of the rule cited. To
take from the earth what nature has placed there in its
proper fornuation, whether at the creation or through the
natural processes, of the acquisition and depletion of its
particular parts, as we witness it in our daily observations,
whether it be the soil proper or some natural deposit, as of
mineral or vegetable matter, is to take a part of the earth,
and not movables.
If, from what we have said, we have in mind the facts
giving rise to the rules cited we may well look to the facts
of this case to properly distinguish it. The subject of the
dispute is an aerolite, of about sixty-six pounds' weight,
that "fell from the heavens" on the land of the plaintiff,
and was found three feet below the surface. It came to its
و
CURIOUS CASES
45
Ownership of Aerolite-Finding Lost Property
position in the earth through natural causes. It was one
of nature's deposits, with nothing in its material composi-
tion to make it foreign or unnatural to the soil. It was not
a movable thing “ on the earth.” It was in the earth, and
in a very significant sense immovable; that is, it was only
movable as parts of earth are made movable by the hand
of man.
Except for the peculiar manner in which it came,
its relation to the soil would be beyond dispute. It was in
its substance, as we understand, a stone. It was not of a
character to be thought of as “unclaimed by any owner, ”
and, because unclaimed, “supposed to be abandoned by the
last proprietor," as should be the case under the rule invoked
by the appellant. In fact, it has none of the characteristics
of the property contemplated by such a rule.
We may properly note some of the particular claims of
the appellant. His argument deals with the rules of the
common law for acquiring real property, as by escheat,
occupancy, prescription, forfeiture, and alienation, which
it is claimed were all the methods known, barring inherit-
We need not question the correctness of the state-
ment, assuming that it has reference to original acquisition,
as distinct from acquisitions to soil already owned, by
accretion or natural causes. The general rules of the law,
by which the owners of riparian ( titles are made to lose or
gain by the doctrine of accretions, are quite familiar.
These rules are not, however, of exclusive application to
such owners. Through the action of the elements, wind
and water, the soil of one man is taken and deposited in the
ance.
46
CURIOUS CASES
Ownership of Aerolite-Finding Lost Property
field of another; and thus all over the country, we may
say, changes are constantly going on. By these natural
causes the owners of the soil are giving and taking as the
wisdom of the controlling forces shall determine. By these
operations one may be affected with a substantial gain, and
another by a similar loss. These gains are of accretion,
and the deposit becomes the property of the owner of
the soil on which it is made.
A scientist of note has said that from six to seven hun-
dred of these stones fall to our earth annually. If they are,
as indicated in argument, departures from other planets,
and if among the planets of the solar system there is this
interchange, bearing evidence of their material composition,
upon what principle of reason or authority can we say that
a deposit thus made shall not be of that class of property
that it would be if originally of this planet and in the same
situation? If these exchanges have been going on through
the countless ages of our planetary system, who shall at-
tempt to determine what part of the rocks and formations
of especial value to the scientist, resting in and upon the
earth, are of meteoric acquisition, and a part of that class
of property designated in argument as “ Unowned things, '
to be the property of the fortunate finder instead of the
owner of the soil, if the rule contended for is to obtain ?
It is not easy to understand why stones or balls of metallic
iron, deposited as this was, should be governed by a differ-
ent rule than obtains from the deposit of boulders, stones,
and drift upon our prairies by glacier action ; and who
CURIOUS CASES
47
Ownership of Aerolite-Finding Lost Property
We
would contend that these deposits from floating bodies of
ice belong, not to the owner of the soil, but to the finder.
Their origin or source may be less mysterious, but they,
too, are “telltale messengers" from far-off lands, and have
value for historic and scientific investigation.
It is said that the aerolite is without adaptation to the soil,
and only valuable for scientific purposes. Nothing in the
facts of the case will warrant us in saying that it was not as
well adapted for use by the owner of the soil as any stone,
or, as the appellant is pleased to denominate it, “ball of
metallic iron.” That it may be of greater value for scien-
tific or other purposes may be admitted, but that fact has
little weight in determining who should be its owner.
cannot say that the owner of the soil is not as interested in,
and would not as readily contribute to, the great cause of
scientific advancement, as the finder, by chance or other-
wise, of these silent messengers. This aerolite is of the
value of one hundred and one dollars, and this fact, if no
other, would remove it from uses where other and much less
valuable materials would answer an equally good purpose,
and place it in the sphere of its greater usefulness.
The rule is cited, with cases forits support, that the finder
of lost articles, even where they are found on the property,
in the building, or with the personal effects of third persons,
is the owner thereof against all the world, except the true
The correctness of the rule may be conceded, but its
application to the case at bar is very doubtful. The subject
owner.
48
CURIOUS CASES
Ownership of Aerolite-Finding Lost Property
of this controversy was never lost or abandoned. Whence
it came is not known, but, under the natural law of its
gove
ernment, it became a part of this earth, and, we think,
should be treated as such. It is said by the appellant that
this case is unique, that no exact precedent can be found,
and that the conclusion must be based largely upon new con-
siderations. No similar question has, to our knowledge,
been determined in a court of last resort. In 15 American
and English Encyclopædia of Law, page 388, is the follow-
ing language: “An aerolite is the property of the owner
of the fee upon which it falls. Hence a pedestrian on the
highway, who is first to discover such a stone, is not the
owner of it; the highway being a mere easement for travel.'
It cites the case of Maas v. Amana Society, 16 Alb. Law J.,
76, and 13 Irish Law Times, 381, each of which periodicals
contains an editorial notice of such a case having been
decided in Illinois, but no reported case is to be found.
Anderson's Law Dictionary states the same rule of law,
with the same references, under the subject of “ Accretions."
In 20 Alb. Law J., 299, is a letter to the editor from a cor-
respondent calling attention to a case determined in France,
where an aerolite found by a peasant was held not to be the
property of the “proprietor of the field,” but that of the
finder. These references are entitled, of course, to slight,
if any, consideration, the information as to them being too
meager to indicate the trend of legal thought.
Our conclusions are announced with some doubts as to
CURIOUS CASES
49
Ownership of Aerolite-Finding Lost Property
their correctness, but they arise not so much from the appli-
cation of known rules of law to proper facts as from the
absence of defined rules for these particular cases. The inter-
est manifested has induced us to give the case careful thought.
Our conclusions seems to us nearest analogous to the gener-
ally accepted rules of law bearing on kindred questions,
and to subserve the ends of substantial justice. The ques-
tion we have discussed is controlling in the case, and we
need not consider others.
The judgment of the district court is affirmed.
CC—4
50
CURIOUS CASES
Escape from Jail When Wrongfully Imprisoned
THE STATE OF KANSAS
V.
GEORGE LEWIS.
Supreme Court of Kansas, 1877.
[19 Kan. 260.]
Escape from Jail When Wrongfully Imprisoned-Poetical
Report, by “Ironquill.”
Appeal from Atchison District Court.
Smith & Solomon and W. D. Gilbert, for appellant.
VALENTINE, J. This was a criminal prosecution for an
alleged violation of section 183 of the act relating to crimes
and punishments. (Gen. Stat. 357.) Said section reads as
follows:
-- Sec. 183. If any person, lawfully imprisoned or de-
tained in any county jail or other place of imprisonment, or
in the custody of any officer, upon any criminal charge, be-
fore conviction for the violation of any penal statute, shall
break such prison or custody and escape therefrom, he shall
upon conviction be punished by confinement and hard labor
for a term not exceeding two years, or in a county jail not
less than six months.
The facts of the case, so far as it is necessary to state
them, are as follows: The defendant was imprisoned in the
CURIOUS CASES
51
Escape from Jail When Wrongfully Imprisoned
county jail of Atchison county, in the custody of the jailor
of said county, upon the criminal charge of burglary in the
second degree, as defined by section 68 of the act relating to
crimes and punishments, (Gen. Stat. 330,) awaiting a trial
upon such charge ; and while so imprisoned as aforesaid he
broke said jail and said custody, and escaped therefrom.
Afterward a warrant was duly issued by a justice of the
peace of said county for his arrest upon the charge of break-
ing said jail and custody as aforesaid. Upon such warrant
be was duly arrested by the sheriff of said county and a po-
liceman of the city of Atchison, and was hand-cuffed and
taken before said justice for a preliminary examination,
whereupon, without said hand-cuffs being removed, and in
the presence of said sheriff and said policeman, and said jus-
tice and the county attorney of said county, he waived a
preliminary examination, and was returned to said jail.
Afterward he was tried upon the charge of burglary, and
was acquitted. The county attorney thereupon filed an in-
formation in the district court of said county against the de-
fendant, duly charging him with the offense of breaking said
jail and custody, and escaping, as aforesaid ; upon which
information the defendant was duly arraigned and pleaded
successively as follows : 1st. A plea in abatement, that he
was hand-cuffed, and in the custody of said sheriff and said
policeman, when he waived said preliminary examination,
and therefore that said waiver was a nullity, and that there-
fore the county attorney had no power to file said infor-
mation. 2d. A plea in bar, that he had been tried and
52
CURIOUS CASES
Escape from Jail When Wrongfully Imprisoned
acquitted on the charge of burglary, and that therefore he
could not be tried or convicted upon the charge of breaking
said jail. 3d. The general plea of “not guilty.”
The county attorney demurred to the first two pleas, and
the court below sustained both of the demurrers, and we
think correctly. There was no pretense that any means
were used with the intent that such means would cause the
defendant to waive said preliminary examination ; no pre-
tense that defendant had any cause to fear that justice would
not be done him, except the mere presence of said officers,
and that he was hand-cuffed ; no pretense that any wrong was
done him, except merely the receiving of said waiver while
the defendant was hand-cuffed ; and no pretense that any of
these things worked any prejudice to the defendant's sub-
stantial rights on the final trial of the case in the district
court upon its merits. We cannot therefore reverse the
judgment of the district court rendered upon the verdict of
an impartial jury, after a fair trial has been had on the
merits of the case in that court, merely because the defend-
ant waived a preliminary examination before an examining
magistrate while he was hand-cuffed.
The defendant also claims that as he was acquitted on the
charge of burglary, therefore that he did not commit the
offense of escaping from said jail “ before conviction” upon
said charge of burglary. We think otherwise. His offense,
of escaping from said jail, comes, as we think, within the
letter and spirit of the statutes prohibiting escapes. He
escaped from imprisonment for an alleged burglary, and
CURIOUS CASES
53
1
Escape from Jail When Wrongfully Imprisoned
had never been convicted of such burglary. His offense
therefore comes within the exact letter of the statute, and
of that section of the statute under which he was prose-
cuted. He escaped or before conviction." His offense also
comes within the spirit of the statute. The spirit of the
statute, as gathered from sections 167 to 187 of the crimes
act, (Gen. Stat. 354 to 358,) is to punish for all escapes
from lawful custody. Some of said sections provide for
punishing for escapes made from custody in criminal
cases ; some for escapes made in civil
cases ; some
where convictions have already been bad in criminal
cases ; and some 66 before conviction” in criminal cases.
And taking said sections altogether, and construing said
section 183 as we construe it, they provide for punishing
for escapes from lawful custody in all cases.
If said sec-
tion 183 is to be construed as the defendant claims that it
should be construed, then it would be improper in any case
to try a defendant for an escape until after a trial and
conviction upon the original charge; for if he should by
any means procure an acquittal upon the original charge, or
a dismissal of the case, or a nolle pros. to be entered
therein, then he would not have been guilty of committing
any offense by making such escape. When a party is in
legal custody, and commits an escape, we do not think that
it depends upon some future contingency as to whether
such escape is an offense or not.
As to permitting a witness's name to be indorsed on a
criminal information at the time of the trial, and permitting
54
CURIOUS CASES
Escape from Jail When Wrongfully Imprisoned
such witness to testify in the case, see The State v. Dickson,
6 Kan. 209, 219.
We do not think the court below committed any substan-
tial error in this case, and therefore its judgment will be
affirmed. *
All the justices concurring.
* Reporter's Note.—The peculiar features of the forego-
ing case of The State v. Lewis seem to justify the inserting
here of the “poetical report” thereof written by Eugene F.
Ware, Esq., attorney at law, of Fort Scott, and which he
published in the "Fort Scott Daily Monitor,” of 10th
March, 1878. Mr. Ware's “report” is as follows:
IN THE SUPREME COURT, STATE OF KANSAS.
George Lewis, Appellant, ads. The State of Kansas, Appellee.
(Appeal from Atchison County.)
SYLLABUS :
9
Law-Paw; Guilt-Wilt. When upon thy frame the law-places
its majestic paw-tho' in innocence or guilt—thou art then required
to wilt.
Statement of Case, by Reporter.
This defendant, while at large,
Was arrested on a charge
Of burglarious intent,
And direct to jail he went.
But he somehow felt misused,
And through prison walls he oozed,
And in some unheard of shape
He effected his escape.
Mark you, now : Again the law
On defendant placed its paw,
CURIOUS CASES
55
Escape from Jail When Wrongfully Imprisoned
Like a hand of iron mail,
And resocked him into jail-
Which said jail, while so corraled,
He by sockage-tenure held.
Then the court met, and they tried
Lewis up and down each side,
On the good old fashioned plan;
But the jury cleared the man.
1
Now, you think that this strange case
Ends at just about this place.
Nay, not so. Again the law
On defendant placed its paw-
This time takes him round the cape
For effecting an escape;
He, unable to give bail,
Goes reluctantly to jail.
Lewis, tried for this last act,
Makes a special plea of fact:
Wrongly did they me arrest,
“As my trial did attest,
“ And while rightfully at large,
“ Taken on a wrongful charge.
“ I took back from them what they
“ From me wrongly took away.”
>>
When this special plea was heard,
Thereupon The State demurred.
The defendant then was pained
When the court was heard to say
In a cold impassive way-
“ The demurrer is sustained.'
.
Back to jail did Lewis go,
But as liberty was dear,
He appeals, and now is here
To reverse the judge below.
The opinion will contain
All the statements that remain.
5 6
CURIOUS CASES
Escape from Jail When Wrongfully Imprisoned
Argument and brief of Appellant.
As a matter, sir, of fact,
Who was injured by our act,
Any property, or man ?-
Point it out, sir, if you can.
Can you seize us when at large
On a baseless trumped-up charge,
And if we escape, then say
It is crime to get away-
When we rightfully regained
What was wrongfully obtained ?
Please-the-court-sir, what is crime?
What is right, and what is wrong?
Is our freedom but a song-
Or the subject of a rhyme ?
Argument and brief of Attorney for The State.
When The State, that is to say,
We, take liberty away-
When the padlock and the hasp
Leaves one helpless in our grasp,
It's unlawful then that he
Even dreams of liberty-
Wicked dreams that may in time
Grow and ripen into crime-
Crime of dark and damning shape;
Then, if he perchance escape,
Evermore remorse will roll
O'er his shattered, sin-sick soul.
Please-the-court-sir, how can we
Manage people who get free ?
Reply of Appellant.
Please-the-court-sir, if it's sin,
Where does turpitude begin ?
CURIOUS CASES
57
Escape from Jail When Wrongfully Imprisoned
Opinion of the Court. Per Curiam.
We-don't-make-law. We are bound
To interpret it as found.
The defendant broke away ;
When arrested he should stay.
5
This appeal can't be maintained,
For the record does not show
Error in the court below,
And we nothing can infer.
Let the judgment be sustained-
All the justices concur.
(Note by the Reporter.)
• Of the sheriff-rise and sing,
“ Glory to our earthly king !"
(E. F. W.),
58
CURIOUS CASES
Right to Custody of Child
In re PETITION OF JOSEPH A. BULLEN, FOR A WRIT OF
Habeas Corpus.
Supreme Court of Kansas, 1882.
[28 Kan. 557.]
Right to Custody of Child-Habeas Corpus-Justice
Brewer's Sentiments on Home Life,
Original proceedings in habeas corpus.
Petition for a writ of habeas corpus in behalf of Emily C.
Evans, by Joseph A. Bullen, against Josephine Cantwell,
filed in this court August 22, 1882, and thereupon the writ
was allowed and issued. The case was argued and submitted
October 24, 1882, and was heard and decided by BREWER,
J., at chambers, in the city of Leavenworth. Judgment
was entered for the petitioner, and the opinion filed October
31, 1882.
H. W. Ide, for petitioner.
Thomas P. Fenlon, for the respondent.
1
BREWER, J. This is an application in habeas corpus,
brought by Joseph A. Bullen in behalf of Emily C. Evans, a
little girl of the age of six years, against Josephine Cant-
well, praying that the said Emily C. Evans may be taken
from the custody of the respondent, and sent to England, to
be placed under the care and guardianship of her grand-
1
CURIOUS CASES
59
Right to Custody of Child
1
mother, Catherine Anne Evans. The questions in the case
are in many respects novel and interesting, and the conclu-
sion to which I have come has been reached with much hes-
itation. The facts of the case are these :
The grandparents of the child were residents of London,
England. The father of the child, (their oldest son,) some
time about the year 1868, then about twenty years of
age,
came to this country in the hope of bettering his condition.
In 1875 he married, in the city of Leavenworth, Catherine
Mary Murray, and shortly thereafter returned with his wife
to London, where, on the second day of September, 1876,
Emily C. Evans was born. On June 22, 1878, the father
died, and in December of the following year the mother,
with the little girl, returned to Leavenworth, in hopes of
meeting a brother in this city supposed to be in comforta-
ble circumstances. She was disappointed in this expectation,
and, being without means, proceeded to support herself and
child by her own labor. In the spring of 1880 she was
taken down with consumption, was unable to do further
work, and became very destitute. In April of that year,
information was received at the Home for Friendless Women
of her condition, and Mrs. Bullen and Mrs. Legate, in re-
sponse thereto, proceeded to North Leavenworth, and found
her in the basement of a little house, in extreme destitution
and weakness. Words fail me to picture clearly her forlorn
and wretched condition. Wasted by sickness, weak and fee-
ble, she was lying on a little mattress on the floor, sheltered
from the cold by only a few rags. There was no furniture
60
CURIOUS CASES
Right to Custody of Child
in the room, no fire, and the room was cold and damp. Her
little child was running around scarcely half clad. These
ladies removed her and her little child to the home, where
they remained a few days, and then, becoming dissatisfied
with the matron, she, with her child, left, and returned to
the basement. Here, within a few days, she was found by
Mrs. O'Connor and Mrs. McFarland, who soon procured her
admission to St. John's Hospital, where she remained,
gradually failing, until her death, on September 5, 1880.
During these last days of feebleness and disease, she was
tenderly cared for by the good sisters in charge of the
hospital, and I have no reason to doubt that everything was
done by them which sympathy and love could suggest to
make bright and peaceful the few last days of life, and to
assuage a mother's grief at leaving her only child a lonely
orphan in the world. I pause for a moment in the coldness
of judicial opinion, to say that every true man stands with
uncovered head in the presence of a kindly charity such as
this case discloses, when gentle woman, foregoing personal
ease and comfort, drawn by no tie of blood nor for old
acquaintance sake, but moved alone by the impulse of a
common humanity, seeks out a wretched and helpless one,
removes her from a dreary, cold, and desolate abode to sur-
roundings of warmth, cleanliness, and comfort, smooths
with tenderest touch the pillow beneath her weary head,
and brings to the heart of a dying mother the richest of all
comfort, in the assurance that the little life she leaves behind
her will be tenderly cared for by loving hearts and hands.
CURIOUS CASES
61
Right to Custody of Child
Such acts redeem poor human nature from all its burden
of selfishness and sin, and make us thank God that we are
brothers to such sisters.
But, returning, it appears that while at the hospital, at
her solicitation, proceedings were attempted for the purpose
of having her child adopted by St. Mary's Female Academy,
conducted by the Sisters of Charity of St. Vincent of Paul.
It is conceded by counsel that these proceedings were ineffec-
tual for the purpose of effecting a legal adoption, yet they
confirm a fact, abundantly established by other testimony,
that during her last days she desired and earnestly besought
the sisters to take care of her little girl, and they, on the
other hand, comforted her dying hours with the promise to
watch over and care for her during her childhood and until
she shouid reach the years of maturity. It is also true that,
while she was at the Home for Friendless Women, she as
earnestly urged the good ladies there to see to it that after
her death her child be sent to its father's family in London,
I see no reason to doubt the fact of both these requests of
the mother ; nor do I see anything unnatural in her conduct
in this respect. It seems to me it must be true, not alone
because the witnesses testify to it, but because I think it is
just what a mother would do under those circumstances.
Since the mother's death, the sisters have fulfilled their
promise to her, and have taken tender and faithful care of
the little girl. The testimony of the witnesses shows this,
and the little one's face and appearance confirm it. Turn-
ing now, to the other side, it appears that the grandfather of
62
CURIOUS CASES
Right to Custody of Child
the child died in 1879, leaving a widow and children. He
made a will, which has since been duly probated. By this
will he left all his property in trust that the yearly income
should be paid to his widow during her life, or until she
married again, and, upon her death or marriage, to be
divided among his children ; this trust to continue until the
expiration of twenty-one, years from the death of the longest
liver of his children. He especially provided that his grand-
daughter, Emily C. Evans, should take the place of her
father, and share in his property ; but coupled this provi-
sion with the condition that she be brought to England be-
fore she attained the age of seven years, and not reside abroad
thereafter ; that she should be brought up and remain in the
Protestant faith, and not marry a Roman Catholic. At the
expiration of the trust as above indicated, the entire prop-
erty was to pass to the person who should then be his heir-
at-law. And, in the meantime, the death of any child
increased by so much the share of all the survivors.
The testimony shows that, upon the settlement of his real
estate, there remained nine freeholds, now producing in the
aggregate a rental of sixteen hundred and twenty dollars.
It further appears that the grandmother has a comfortable
home, well furnished, situated in the city of London, in
which she lives with an unmarried son and two unmarried
daughters. The testimony abundantly shows that her home
is all that could be expected of one in ordinary circumstances
of life; that the income is sufficient to maintain the family
comfortably ; that the characters of the inmates of the fam-
CURIOUS CASES
63
Right to Custody of Child
ily are above reproach ; that all the members of the family
feel a deep interest in, and strong attachment for, their little
orphan relative here ; and that if this child is placed in that
family it will have all the advantages of personal and affec-
tionate care, education, moral training, and social position
which come to those who live in ordinary walks of life.
This, I think, presents a fair summary of the facts of the
case ; and from this statement I pass to a consideration of
the questions presented and discussed by counsel. On the
one hand, it is claimed that the grandmother has no legal
right to the custody of the child ; that it is never the prov-
ince of the court to expatriate a citizen, even though that
citizen be a mere child ; that the expressed wishes of the
dying mother should be respected ; and that, beyond all
these matters, the child is at present happily situated, in
good hands, kindly and properly cared for ; and that there
is not, under the testimony, enough to satisfy that the
change asked for would substantially better its condition, or
promote its welfare. On the other hand, it is contended
that, upon a change, the little girl will obtain that which she
now lacks,—the surroundings and blessings of a home,
where personal attachment and not official duty is the con-
trolling spirit ; that she will secure a property sufficient for
her support, and which will render her comparatively inde-
pendent; and that, therefore, the interest of the child,
which in all such cases as this is the paramount considera-
tion, demands the change.
I can but think that
í
64
CURIOUS CASES
Right to Custody of Child
the welfare of the child, its best interests, will be promoted
by granting the prayer of the petition.
Two principal reasons control in my mind: First. Her
life here would be a life in an institution; there, a life in a
home. I need not stop to recount the numberless blessings
which home gives to a child, especially a female child. The
common judgment of all voices the truth that the best develop-
ment of a young life is within the sacred precincts of a home.
No institution, however cultured and refined its instructors,
however pure its life, however faithful and devoted all its
officers and teachers to the care, nurture, and education of
the many children within its walls, will give that sweet,
gentle, and attractive development to a young girl that comes
from the personal and affectionate training of a home. There
is something of the same difference as between hotel life and
home life. There is more publicity to the one ; more
privacy to the other. There is something official, as it
were, in one, and personal in the other. The varied graces
of true womanly nature ripen more sweetly and more surely
in one than in the other. I would not detract in the least
from the advantages which these institutions afford to the
young. I believe they are a large blessing, and that, even
for those children who have homes, an occasional and tem-
porary sojourn in one is of lasting and incalculable benefit
to the development of the child. But when it comes to the
question of a life wholly within an institution, and one
wholly a home life, I think all will agree that the latter is
to be preferred. I think every parent, when asked whether
CURIOUS CASES
65
Right to Custody of Child
{
he or she would have his or her child forego during all the
years of childhood the blessings of a home life, for the sake
of the advantages furnished by even the best institution in
the world, would unhesitatingly answer in the negative.
And I doubt not the good sisters in this institution, many of
whom look back with sacred reverence to the home life of
their childhood, with all their pride in and affection for
that institution to which they have so sacredly devoted
their lives, still feel in their inmost hearts that that home
life was a blessing which nothing else could equal to their
early days. Second. There is a pecuniary consideration.
I am not so sordid as to believe that money is the one
thing to be regarded ; but, other things being equal,
that certainly is a matter to be considered. If she remains
here, she will come to maturity without means, and
dependent solely on her own labor or the help of others.
There she will have a little property,—not a great wealth,
it is true, but enough to keep want away, and to en-
able her to act freely in her choice of place and work
in life. There is also a possibility, though perhaps only a
remote one, of her becoming, through the death of others,
the heir to quite a property. It is true there are conditions
attached to the receiving of that property which to my mind
are odious and unjust. They indicate a bigoted spirit on the
part of the testator, so foreign to the free and catholic spirit
of today that every true man must condemn them. Yet
this little girl ought to have the opportunity to decide for
herself, when she comes to maturity, whether she will
CC-5
66
CURIOUS CASES
Right to Custody of Child
accept or reject the property burdened with those conditions.
Today she knows nothing of the value of the property, or
the meaning and import of the conditions. It would be
wrong to refuse her the privilege of an intelligent choice.
When she arrives at years of discretion, she may prefer to
accept her mother's faith, and reject her grandfather's prof-
fered bequest, or she may prefer to accept the bequest, and
walk in the faith of her father; but, unless the prayer of
the petition be granted she will never have the opportunity
of accepting it.
Counsel have made a most eloquent appeal that the wish
of a dying mother as to the future of her child should be
respected. The precious recollections of my own childhood,
with all the shapings of my life through the gentle influence
of a loving mother's care, from its first helping my infant
steps, up through all the sunny days of childhood, to her
dying blessing in manhood's morning hour, send this
appeal home to my heart with tremendous force. But I
interpret the mother's conduct and desire thus : She was a
stranger in a strange land, alone, and dying. The upper-
most thought in her heart was the future of her child.
When with the ladies of the home, she turned to her hus-
band's family home as the surest and most certain place of
refuge for her orphan child, and she begged the ladies to
see that it was sent thither. Afterwards, when she passed
into the kindly care of the good sisters, and found what
faithful friends they were to her in her time of need, she
believed the same kind care would be extended to her little
CURIOUS CASES
67
Right to Custody of Child
1
one, and begged of them to take it. In other words, think-
ing only of her child, she ever turned to that which at the
time seemed the nearest and surest succor for its helpless-
ness, and prayed for the care which she was no longer able
to give it. Evidently, from a letter written by her while at
the hospital shortly before her death, her affection for her
husband's family and her friends was strong to the last, and
she committed her little one to the care of the respondent
through no aversion to them.
If, from the calm and peaceful heights of heaven, the
departed look back with loving interest upon the things
of earth, I can but think that she will look down approv-
ingly upon the conclusion I have reached. I know she will
approve the spirit with which I act, even though she may
not the wisdom of my conclusion. The order then that
will be made, is that the prayer of the petition be granted,
and the child be given into the custody of Mr. Bullen, to be
by him sent to its grandmother in London.
As the opposition of the respondent to this petition has
not been from any factious spirit, but under a sense of
obligation springing from a promise to a dying mother, I
think the costs of this proceeding should be paid by the
petitioner.
(All the justices concurring.)
68
CURIOUS CASES
Judicial Temperance Lecture
STATE OF KANSAS ex rel. A. H. VANCE, CO. ATTY. SHAW-
NEE Co.,
V.
LESTER M. CRAWFORD et al.
Supreme Court of Kansas, 1882.
[28 Kan. 726.]
Judicial Temperance Lecture-The Evils of Treating.
Error from Shawnee District Court.
5
Action brought by the state of Kansas, on the relation of
A. H. Vance, as county attorney of Shawnee county, against
Lester M. Crawford and G. N. Boutell, to perpetually shut
up and abate the further continuance of a certain illegal
liquor saloon.
When the foregoing petition was filed, the plaintiff moved
the court for an order granting a temporary injunction as
prayed for, and afterwards, on the hearing of this applica-
tion, produced evidence in writing, by depositions and affi-
davits, to support its motion. June 3, 1882, the court
overruled the motion, and refused the temporary injunction,
which ruling and refusal the plaintiff brings here for review.
A. H. Vance, Co. Atty., and G. C. Clemens, special
counsel, for the State.
CURIOUS CASES
69
+
Judicial Temperance Lecture
*
Joseph G. Waters, for defendants in error.
VALENTINE, J. * Probably, even independent
of the statutes and of the constitution, all saloons where in-
toxicating liquors are sold to be drank on the premises as a
beverage ought to be considered as nuisances. Under the
present laws, they must be so considered; and, under all laws,
they probably ought to be so considered. Though where
they are legalized, the courts cannot so declare. Probably
no greater source of crime and sorrow has ever existed than
social drinking saloons. Social drinking is the evil of evils.
It has probably caused more drunkenness, and has made
more drunkards, than all other causes combined ; and
drunkenness is a pernicious source of all kinds of crime and
sorrow. It is a Pandora's box, sending forth innumerable
ills and woes, shame and disgrace, indigence, poverty, and
want; social happiness destroyed ; domestic broils and bick-
erings engendered; social ties sundered; homes made deso-
late; families scattered ; heart-rending partings; sin, crime,
and untold sorrows; not even hope left, but everything lost ;
an everlasting farewell to all true happiness, and to all the
nobler aspirations rightfully belonging to every true and
virtuous human being. If all drinking saloons and all social
drinking establishments were utterly overthrown and
destroyed, all sales and uses of intoxicating liquors at other
places might probably be left comparatively free, with but
little danger to the general welfare of society. If these
views with respect to the natural and ordinary consequences
70
CURIOUS CASES
Judicial Temperance Lecture
of drinking saloons are correct, then there are certainly
very strong reasons for considering all drinking saloons as
public nuisances. But, of course, courts of justice can
declare only such saloons nuisances as are illegal.
We cannot say that the court below erred in refusing the
injunction in this case ; and therefore the judgment and
order of the court below in this case will be affirmed.
*
(All the justices concurring.)
CURIOUS CASES
71
Trespassing Dog
BRADFORD
V.
MCKIBBEN.
Court of Appeals of Kentucky, 1868.
[4 Bush 545.]
Trespassing Dog-Kentucky Statute-Dog Roaming
Around to Procreate Species.
Appeal from Bracken Circuit Court.
W. C. & T. F. Marshall, for appellant.
Harrison Taylor, for appellee.
PETERS, J. The language of the statute is very broad,
making it lawful for any person to kill, or cause to be
killed, any dog which he may find roaming at large'on his
premises without the presence of the owner or keeper of
such dog; and it shall be further lawful for any person at
any time to kill, or cause to be killed, any dog which may
be, or may have been, found killing, worrying, or injuring
any sheep or lambs ; and when any person is sued for the
killing of a dog, and his defense is under this act, he shall
be a competent witness to prove the same. (Myers' Supple-
ment, p. 189.)
Whatever may be the temptations, therefore, to entice a
dog from home without the presence of his owner or keeper,
1
72
CURIOUS CASES
Trespassing Dog
even though it be for the propagation of his species, his
innocence is no protection to him; if he is found roaming
on a neighbor's premises without the presence of his pro-
tector, his life is forfeited, if the owner of the premises on
which he is found will exact the penalty, and chooses to
execute the sentence. As the excuse alleged for this dog's
absence from home is not inserted in the statute, and made
so to operate, the court has no power to give effect to it; and
the court below did not err in refusing to permit appellant
to prove the existence of the temptation to invite the dog to
leave his home.
The instruction to the jury (and there was but one given)
is in the language of the statute, and without objection.
Wherefore, the judgment must be affirmed.
CURIOUS CASES
73
Bawdy Houses-Failure to Conduct in Decent Manner
CITY OF SHREVEPORT
2.
FANNY Roos.
Supreme Court of Louisiana, 1883.
(35 La. Ann. 1010.]
Bawdy Houses-Failure to Conduct in Decent Manner.
Appeal from the Mayor's Court of Shreveport.
Wm. A. Seay, City Attorney, for plaintiff and appellee.
Hicks & Hicks, for defendant and appellant.
MANNING, J. The defendant was tried before the mayor
of Shreveport on a charge of keeping a disorderly house of
ill fame in an indecent manner, and thereby causing and
maintaining a nuisance, and upon conviction was fined fifty
dollars, and ordered out of the premises.
The ordinances of the corporation require that houses of ill
fame within the town which shall be conducted in an inde-
cent manner, or so conducted as to be nuisances, shall be
abated by compelling the parties to abandon the premises,
and power is given the mayor to close them and fine the
occupant. The charter gives full authority to the council
to pass the ordinances, and to the mayor to enforce them.
Copies of the ordinances are in the transcript and objec-
r
س)
74
CURIOUS CASES
Bawdy Houses-Failure to Conduct in Decent Manner
tion is made here that they are not signed by the mayor.
It
was not raised below so that the plaintiff might have been put
on guard and exhibited the signed ordinances in full. Sec-
tions only of ordinances were offered in evidence—those
which related to the matter in hand—and each section was of
course not signed.
The ordinances are attacked as unconstitutional, but it is
not now disputed that municipal corporations may adopt
laws and regulations touching the good order of the com-
munity, and where the power to suppress bawdy houses is
conferred, the corporation has by implication and of neces-
sity the power to adopt proper means to accomplish it. Dil-
lon Munic. Corp. $$ 93 and 310.
A more serious objection is that the ordinance does not
create any specific offense, and that the phrase "conduct a
house of ill fame in an indecent manner " is uncertain and
vague. It could scarcely be expected that an ordinance
affecting houses of this kind should specify the particular
act of indecency which will render its inmates obnoxious to
the law's denunciation.
These acts may be so various in kind and so differing in
degree, and withal so numerous, as to defy specification.
The experience of the city fathers in that domain is doubt-
less so limited that in drafting an ordinance which should
comprehend all the indecent convolutions of lascivious cyp-
rians, they would be forced to put fancy on the wing, and
imagine postures they never beheld. This would be danger-
ous occupation. Neither the law, nor the right of accused
CURIOUS CASES
75
Bawdy Houses-Failure to Conduct in Decent Manner
parties to be informed of the nature of the accusation against
them, imposes such particularization upon the corporation
authorities.
The prohibition is of keeping a bawdy house in a disorderly
and indecent manner. The offense of keeping a disorderly
house is a well recognized misdemeanor in many States, and
the statute denouncing it does not undertake to specify what
particular acts shall be deemed disorderly within the mean-
ing of the statute, nor was it ever supposed essential.
like manner this ordinance probibiting a bawdy house being
kept in an indecent manner clothes the magistrate necessarily
with the discretion to determine whether the particular acts
proved are indecent.
We have not a doubt the mayor
decided correctly in the present instance.
Judgment affirmed.
In
76
CURIOUS CASES
Liability for Torts of Infants
ATKINS SCOTT
V.
CHARLES WATSON.
Supreme Judicial Court of Maine, 1859.
[46 Me. 362.]
Infants-Liability for Torts Committed in Obeying
Parents.
J. Granger, for plaintiff.
G. W. Dyer, for defendant.
66
APPLETON, J. This is an action of trespass quare clau-
sum,
,
for breaking and entering the plaintiff's close and car-
rying away his bay ; to which the only defense interposed
is that the defendant was a minor, acting under the author-
ity and by the direction of his father.
Trespasse. Transgressio, derivatur a transgrediundo,"
(says Lord Coke, as cited by the learned counsel for the
defendant,) “because it passeth over that which is right.”
Coke's Ins. 56, b. Now, the defendant, by entering with-
out the plaintiff's license or permission upon his land, and
cutting and carrying away his bay, very much "passeth over
that which is right.” Nor is his infancy any defense, for
infants are liable for torts. Campbell v. Stokes, 2 Wend.
137; Fitts v. Hall, 9 N. H. 441; School District in Mil-
ton v. Bragden, 3 Foster, 507; Lewis v. Littlefield, 15
CURIOUS CASES
77
Liability for Torts of Infants
Maine, 233. The parent is not answerable for the torts of
his minor child, committed in his absence and without his
authority or approval, but the minor is answerable therefor.
Tifft v. Tifft, 4 Denio, 177. The minor is not exempt from
liability, though the trespass was committed by the express
command of the father. Humphrey v. Douglas, 10 Verin,
71.
Nor can the defendant derive any support from the scrip-
tural injunction to children of obedience to their parents,
invoked in defense. No such construction can be given to
the command - Children, obey your parents in the Lord, for
this is right,” as to sanction or justify the trespass of the son
upon the land of another, and the asportation of his crops,
even though done by the express commands of his father,
The defense is as unsound in its theology as it is baseless in
its law.
Defendant defaulted for $10.
TENNEY, C. J., CUTTING, DAVIS, and KENT, JJ., con-
curred.
MAY, J. I am not quite satisfied with either the law or
the theology of the opinion in this case. That sins of igno-
rance may be winked at is both a dictate of reason and of
Scripture. It is true, as a general rule, that infants who
have arrived at the age of discretion are liable for their tor-
tious acts. But, for the protection of infants, ought not the
rule to be limited to cases where the infant acts under such
circumstances that he must know or be presumed to know that
78
CURIOUS CASES
Liability for Torts of Infants
the acts which he commits are unauthorized and wrong,
when it appears that in the commission of the acts he was
under the control and direction of his father? Will not an
opposite doctrine tend to encourage disobedience in the child,
and thus be subversive of the best interests of the commu-
nity?
Will it not also tend to subject him to embarrassment
and insolvency when he shall arrive at full age? If all the
members of a family under age are to be held liable in tres-
pass or trover for the food which they eat, when that food
is in fact the property of another, but, being set before them,
they partake of it, in ignorance of such fact, by the com-
mand or direction of the parent, and under the belief that
it is his, will not such a doctrine be in conflict with the
principle that the common law is intended as a shield and
protection against the improvidence of infancy? While the
decided cases upon this subject seem to be limited to cases of
contract, is there not the same reason for extending it, and
applying it to cases like the one before us? In all the cases
which I have examined in which infants have been held lia-
ble, the proof shows acts of positive wrong committed under
circumstances where the infant must have known the nature
and character of his acts. If the doctrines of the opinion
are to prevail in a case like this, then the common law is but
the revival of the old doctrine that the parents, by eating
sour grapes, have set the children's teeth on edge. The rule
that a servant who acts in ignorance of the rights of his
principal is to be held liable for his acts does not fall within
the principles for which I contend.
CURIOUS CASES
79
Homicide Committed by Quack
COMMONWEALTH
v.
SAMUEL THOMPSON.
Supreme Judicial Court of Massachusetts, 1819.
[6 Mass. 134.]
Homicide Committed by Quack-Medical Jurisprudence
- Treatment of Fevers Regardless of Color-
Cure for “Hyps.”
At the beginning of the term, the prisoner Thompson was
indicted for the wilful murder of Ezra Lovett, Jun., by giv-
ing him a poison, called lobelia, on the ninth day of January
last, of which he died on the next day. On the twentieth
day of December, at an adjournment of this term, the pris-
oner was tried for this offence, before the chief justice, and
the judges, SEWALL and PARKER.
On the trial, it appeared in evidence, that the prisoner, some
time in the preceding December, came into Beverly, where
the deceased then lived, announced himself as a physician,
and professed an ability to cure all fevers, whether black,
gray, green, or yellow ; declaring that the country was much
imposed upon by physicians, who were all wrong, if he was
right. He possessed several drugs, which he used as med-
icines, and to which he gave singular names. One he called
80
CURIOUS CASES
Homicide Committed by Quack
coffee; another, well-my-gristle; and a third, ramcots.
He had several patients in Beverly and in Salem, previous
to Monday, the second of January, when the deceased, hav-
ing been for several days confined to his house by a cold,
requested that the prisoner might be sent for as a physician.
He accordingly came, and ordered a large fire to be kin-
dled to heat the room. He then placed the feet of the
deceased, with his shoes off, on a stove of hot coals, and
wrapped him in a thick blanket, covering his head. In this
situation he gave him a powder in water, which immediately
puked him. Three minutes after, he repeated the dose,
which in a short time operated with more violence. These
doses were all given within the space of half an hour, the
patient in the meantime drinking copiously of a warm
decoction, called by the prisoner his coffee. The deceased,
after puking, in which he brought up phlegm, but no food,
was ordered to a warm bed, where he lay in a profuse sweat
all night. Tuesday morning the deceased left his bed, and
appeared to be comfortable, complaining only of debility;
and in the afternoon he was visited by the prisoner, who
administered two more of his emetic powders in succession,
which puked the deceased, who, during the operation, drank
of the prisoner's coffee, and complained of much distress.
On Wednesday morning, the prisoner came, and after
causing the face and hands of the deceased to be washed
with rum, ordered him to walk in the air, which he did for
about fifteen minutes. In the afternoon, the prisoner gave
him two more of his emetic powders, with draughts of his
CURIOUS CASES
81
Homicide Committed by Quack
1
coffee. On Thursday, the deceased appeared to be comforta-
ble, but complained of great debility. In the afternoon, the
prisoner caused bim to be again sweated, by placing him,
with another patient, over an iron pan, with vinegar heated
hy hot stones put into the vinegar, covering them, at the
same time, with blankets. On Friday and Saturday, the
prisoner did not visit the deceased, who appeared to be com-
fortable, although complaining of increased debility. On
Sunday morning, the debility increasing, the prisoner was
sent for, and came in the afternoon, when he administered
another of his emetic powders with the coffee, which puked
the deceased, causing him much distress. On Monday, he
appeared comfortable, but with increasing weakness, until
the evening, when the prisoner visited him, and administered
another of his emetic powders, and in about twenty minutes
repeated the dose. This last dose did not operate. The
prisoner then administered pearlash mixed with water, and
afterwards repeated bis emetic potions. The deceased
appeared to be in great distress, and said he was dying. The
prisoner then asked him how far the medicine had got down.
The deceased, laying his hand on his breast, answered here;
on which the prisoner observed that the medicine would
soon get down, and run through his navel; meaning, as was
supposed by the bearers, that it would operate as a cathartic.
Between nine and ten o'clock in the evening, the deceased
lost his reason, and was seized with convulsion fits ; two
men being required to hold him in bed. After he was thus
seized with convulsions, the prisoner got down his throat one
$
CC-6
82
CURIOUS CASES
Homicide Committed by Quack
or two doses more of his emetic powders, and remarked to
the father of the deceased, that his son had got the hyps
like the devil, but that his medicines would fetch him down;
meaning, as the witness understood, would compose him.
The next morning, the regular physicians of the town were
sent for, but the patient was so completely exhausted, that
no relief could be given. The convulsions and the loss of
reason continued, with some intervals, until Tuesday even-
iog, when the deceased expired.
From the evidence it appeared that the coffee administered
was a decoction of marsh-rosemary, mixed with the bark of
bayberry-bush, which was not supposed to have injured the
deceased. ---But the powder, which the prisoner said he
chiefly relied upon in his practice, and which was the emetic
so often administered by him to the deceased, was the pul-
verized plant, trivially called Indian tobacco. A Dr.
French, of Salisbury, testified that this plant, with this
name, was well known in his part of the country, where it
was indigenous, for its emetic qualities; and that it was
gathered and preserved by some families, to be used as an
emetic, for which the roots, as well as the stalks and leaves,
were administered ; and that four grains of the powder was
a powerful puke.—But a more minute description of this
plant was given by the Rev. Dr. Cutler. He testified that
it was the lobelia inflata of Linnæus; that many years ago,
on a botanical ramble, he discovered it growing in a field
not far from his house in Hainilton; that, not having Lin-
næus then in his possession, he supposed it to be a
non-
CURIOUS CASES
83
Homicide Committed by Quack
In a
descript species of the lobelia; that by chewing a leaf of it,
he was puked two or three times ; that he afterwards
repeated the experiment with the same effect; that he
inquired of his neighbor, on whose ground the plant was
found, for its trivial name. He did not know of any, but
was apprised of its emetic quality, and informed the doctor
that the chewing of one of the capsules operated as an emetic,
and that the chewing more would prove cathartic.
paper soon after communicated by the doctor to the Amer-
ican Academy, he mentioned the plant, with the name of
the lobelia niedica. He did not know of its being applied
to any medical use until the last September, when, being
severely afflicted with the asthma, Doctor Drury, of Mar-
blehead, informed him that a tincture of it had been found
beneficial in asthmatic complaints. Dr. C. then made for
himself a tincture, by filling a common porter bottle with
the plant, pouring upon it as much spirit as the bottle would
hold, and keeping the bottle in a sand heat for three or four
day's period. Of this tincture he took a tablespoonful,
which produced no nausea, and had a slight pungent taste.
In ten minutes after, he repeated the potion, which produced
some nausea, and appeared to stimulate the whole internal
surface of the stomach. In ten minutes, he again repeated
the potion, which puked him two or three times, and
excited in his extremities a strong sensation, like irritation ;
but he was relieved from a paroxysm of the asthma, which
had not since returned. He had since mentioned this tinc-
ture to some physicians, and has understood from them,
84
CURIOUS CASES
Homicide Committed by Quack
that some patients have been violently puked by a tea-
spoonful of it; but whether this difference of effect arose
from the state of the patients, or from the manner of pre-
paring the tincture, he did not know.
The solicitor general also stated that, before the deceased
had applied to the prisoner, the latter had administered the
like medicine with those given to the deceased, to several
of his patients, who had died under his hands; and to prove
this statement, he called several witnesses, of whom but one
appeared. He, on the contrary, testified that he had been
the prisoner's patient for an oppression at his stomach ; that
he took his emetic powders several times in three or four
days, and was relieved from his complaint, which had not
since returned. And there was no evidence in the cause,
that the prisoner, in the course of his very novel practice,
had experienced any fatal accident among his patients.
The defence stated by the prisoner's counsel was, that he
had, for several years, and in different places, pursued his
practice with much success; and that the death of the
deceased was unexpected, and could not be imputed to him
as a crime.
But as the Court were satisfied that the evidence
produced on the part of the commonwealth, did not support
the indictment, the prisoner was not put on his defence.
The chief justice charged the jury ; and the substance of
his direction, and of several observations, which fell from
the Court, during the trial, are, for greater convenience,
here thrown together.
As the testimony of the witnesses was not contradicted,
CURIOUS CASES
85
Homicide Committed by Quack
nor their credit impeached, that testimony might be con-
sidered as containing the necessary facts, on which the issue
must be found.
That the deceased lost his life by the unskilful treatment
of the prisoner did not seem to admit of any reasonable
doubt; but of this point the jury were to judge. Before
the Monday evening preceding the death of Lovett, he had,
by profuse sweats, and by often-repeated doses of the emetic
powder, been reduced very low. In this state, on that
evening, other doses of this Indian tobacco were adminis-
tered. When the second potion did not operate, probably
because the tone of his stomach was destroyed, the repeti-
tion of them, that they might operate as a cathartic, was
followed by convulsion fits, loss of reason, and death.
But whether this treatment, by which the deceased lost
his life, is, or is not, a felonious homicide, was the great
question before the jury.
To constitute the crime of murder, with which the pris-
oner is charged, the killing must have been with malice,
either express or implied. There was no evidence to induce
a belief that the prisoner, by this treatment, intended to kill
or to injure the deceased; and the ground of express malice
must fail. It has been said that implied malice may be
inferred from the rash and presumptuous conduct of the
prisoner, in administering such violent medicines. Before
implied malice can be inferred, the jury must be satisfied
that the prisoner, by his treatment of his patient, was wil-
fully regardless of his social duty, being determined on
86
CURIOUS CASES
Homicide Committed by Quack
mischief. But there is no part of the evidence which
proves that the prisoner intended by his practice any harm
to the deceased. On the contrary, it appears that his inten-
tion was to cure him. The jury would consider whether
the charge of murder was, on these principles, satisfactorily
supported.
But though innocent of the crime of murder, the prisoner
may, on this indictment, be convicted of manslaughter, if
the evidence be sufficient. And the solicitor general strongly
urged that the prisoner was guilty of manslaughter, because
he rashly and presumptuously administered to the deceased
a deleterious medicine, which, in his hands, by reason of
his gross negligence, became a deadly poison.
The prisoner's ignorance is in this case very apparent.
On any other ground consistent with his innocence, it is not
easy to conceive that on the Monday evening before the
death, when the second dose of his very powerful emetic
had failed to operate, through the extreme weakness of the
deceased, he could expect a repetition of these fatal poisons
vould prove a cathartic, and relieve the patient ; or that he
could mistake convulsion fits, symptomatic of approaching
death, for a hypochondriac affection.
But on considering this point, the Court were all of opin-
ion, notwithstanding this ignorance, that if the prisoner
acted with an honest intention and expectation of curing
the deceased by this treatment, although death, unexpected
by him, was the consequence, he was not guilty of man-
slaughter.
CURIOUS CASES
87
Homicide Committed by Quack
To constitute manslaughter, the killing must have been a
consequence of some unlawful act. Now, there is no law
which probibits any man from prescribing for a sick man
with his consent, if he honestly intends to cure him by his
prescription. And it is not felony, if, through his igno-
rance of the quality of the medicine prescribed, or of the
nature of the disease, or of both, the patient, contrary to his
expectation, should die. The death of a man, killed by
voluntarily following a medical prescription, cannot be
adjudged felony in the party prescribing, unless he, how-
ever ignorant of medical science in general, had so much
knowledge, or probable information of the fatal tendency of
the prescription, that it may be reasonably presumed by the
jury to be the effect of obstinate, wilful rashness, at the
least, and not of an honest intention and expectation to cure.
In the present case, there is no evidence that the prisoner,
either from his own experience, or from the information of
others, had any knowledge of the fatal effects of the Indian
tobacco, when injudiciously administered ; but the only
testimony produced to this point, proved that the patient
found a cure from the medicine.
The law, thus stated, was conformable, not only to the
general principles which govern in charges of felonious
homicide, but also to the opinion of the learned and excel-
lent LORD CHIEF JUSTICE HALE. He expressly states that
if a physician, whether licensed or not, gives a person a
potion, without any intent of doing him any bodily hurt,
but with intent to cure, or prevent a disease, and contrary
88
CURIOUS CASES
Homicide Committed by Quack
to the expectation of the physician, it kills him, he is not
guilty of murder or manslaughter.
If, in this case, it had appeared in evidence, as was stated
by the solicitor general that the prisoner had previously, by
administering this Indian tobacco, experienced its injurious
effect in the death or bodily hurt of his patients, and that
he afterwards administered it in the same form to the
deceased, and he was killed by it, the Court would have
left it to the serious consideration of the jury, whether they
would presume that the prisoner administered it from an
honest intention to cure, or from obstinate rashness and fool-
hardy presumption, although he might not have intended any
bodily harm to his patient. If the jury should have been of
this latter opinion, it would have been reasonable to convict
the prisoner of manslaughter, at least, for it would not have
been lawful for him again to administer a medicine of which
he had such fatal experience. It is to be exceedingly
lamented, that people are so easily persuaded to put confi-
dence in these itinerant quacks, and to trust their lives to
strangers without knowledge or experience. If this aston-
ishing infatuation should continue, and men are found to
yield to the imprudent pretensions of ignorant empiricism,
there seems to be no adequate remedy by a criminal prosecu-
tion, without the interference of the legislature, if the quack,
however weak and presumptuous, should prescribe, with
honest intentions and expectations of relieving his patients.
The prisoner was acquitted.
Bartlet and Story, for the prisoner.
CURIOUS CASES
89
3
Assignments for Benefit of Creditors
SELLECK & BUSH et al.
V.
J. POLLOCK & Co. et al.
Supreme Court of Mississippi, 1892.
[69 Miss, 870.]
Assignments for Benefit of Creditors-Preferences-Rule
Deducible from Case of Ananias and Sapphira.
From the chancery court of Noxubee county. Hon. T.
B. GRAHAM, Chancellor.
W. H. Bogle, Brame de Alexander and A. C. Bogle, for
appellants.
Rives & Rives, R. C. Beckett and Orr & Dinsmore,
for appellees.
*
*
CAMPBELL, C. J.
A failing debtor may devote
all he has to pay a favored creditor. He may buy property
from one, and, before paying for it, may transfer it to
another, and prefer him at the expense of the wronged
creditor, whom he owes for this very property. A debtor
may prefer his creditor by selling property, or by confess-
ing a judgment, or by giving him a mortgage, and, in such
mortgage, he may stipulate for time and for retention of
possession and control of the mortgaged property.
He
90
CURIOUS CASES
+
Assignments for Benefit of Creditors
may sell all be has to pay his wife, and then devote his
entire time and labor to her service as against creditors,
however meritorious. Great indulgence is shown to special
and particular arrangements wbereby a debtor secures his
creditor, but when one undertakes to make an assignment
for the benefit of creditors, a higher standard is erected ; and
if preferences are ventured on in this form, great strictness
prevails—80 great as to make any such attempt extremely
hazardous, as the many wrecks strewn along this route at-
test. It is like the garden of Eden, where all was free for
use except one tree, eating whose forbidden fruit was
attended by dire calamity.
It seems probable that the idea of the courts as to gen-
eral assignments for creditors was derived from the dealing
with the luckless Ananias and Sapphira, who, having under-
taken to sell their possessions and bring the proceeds to
the common treasury, after selling their land, reported
only a part, and withheld the balance of the money received,
with terrible results to both, as recorded in Acts v. But
the serious consequences of any withholding of part, or
other deviation from the allowable course in making an as-
signment, is not made to fall on the assignors, as the punish-
ment of their hypocrisy did on Ananias and Sapphira, but
it is visited on innocent creditors, who, for some nere
error of judgment on the part of the drawer of the assign-
ment, or inadvertence it may be, or other trivial circum-
stance with which they have no connection, are deprived
of the provision their debtor has made for them, and,
CURIOUS CASES
91
Assignments for Benefit of Creditors
instead of reaping its fruits, are made to witness its enjoy-
ment by the unpreferred creditor, who successfully attacks
the assignment, for a very small fly in the jar of ointment,
and, having made that the point of his successful assault,
appropriates all to the satisfaction of his own demand, to
the loss and chagrin of the other creditors.
Like the moral law in its entirety, which, broken in the
least is broken thoughout, an assignment, however merito-
rious in the main, however free from censure in its chief
provisions, however perfect except in some small particular,
is condemned for that. Like some beautiful design in art,
marred by but a single blemish, its perfections are all
merged and lost in that which causes its rejection. For all
else except assignments there is toleration and some indul-
gence. For them there is no dispensation of grace, but the
terrors of the stern and rigorous law ever confront them.
And under this relentless and rigorous rule, this assign-
ment must fall.
Affirmed.
92
CURIOUS CASES
Indictment against Common Prostitute
MAMIE PEABODY
0.
THE STATE.
Supreme Court of Mississippi, 1894.
[72 Miss. 104.]
Indictment against Common Prostitute-Sufficiency of
Evidence-Biblical Test.
A
Hon. JOHN
From the circuit court of Warren county.
D. GILLAND, Judge.
Marshall & Dollor, for appellants.
Frank Johnston, attorney-general, for the state.
WHITFIELD, J. The demurrer to the affidavit does not
appear in the record, and this assignment cannot, hence, be
noticed.
We find no error in the instructions.
We cannot say the verdict is manifestly wrong. The
nature of the offense charged is such that it is rarely estab-
lished by the same fullness and directness of proof by which
more open violations of law are made out.
The character of these appellants was graven with “the
point of a diamond on the rock forever,” some centuries
since, by an unerring artist, as will at once be seen by the
CURIOUS CASES
93
Indictment against Common Prostitute
marvelous correspondence between that character, as thus
sketched, and as reflected in this record. In the record we
are told that they did nothing, went out on the streets night
and day, attired themselves in the evenings ; sat upon the
steps of the house, and called, in honeyed phrases, men
passing through the street near their house, and they went
after them into the house, and the shutters were drawn and
the doors closed. In Proverbs, chap. 7, verses 6-23, we
are told, inter alia, of “the flattery of the tongue of the
strange woman, " » and then admonished : 61 discerned
among the youths a young man, void of understanding,
passing through the street near her corner; and he went the
way to her house, in the twilight, in the evening ; *
and there met him a woman in the attire of an harlot, and
subtle of heart; she is loud and stubborn, her feet abide not
in her house ; now is she without, now in the streets, and
lieth in wait at every corner.
With her much
fair speech she caused him to yield, with the flattery of
her lips she forced him. He goeth after her straightway
as a fool to the correction of the stocks." This
portrait is accurate; its colors have lost none of their vivid-
ness in the lapse of centuries; and upon the authority of this
great text, reflected in all the text-books and decisions, the
judgment is
Affirmed.
*
*
*
*
94
CURIOUS CASES
Ignorance of Attorney as Ground for New Trial
STATE OF MISSOURI, RESPONDENT,
0.
EMMETT JONES, APPELLANT.
St. Louis Court of Appeals, 1882.
[12 Mo. App. 93.]
Ignorance of Attorney as Ground for New Trial.
Appeal from the St. Louis Criminal Court. LAUGHLIN, J.
Davenport & Napton, W. F. McIntire and F. B. Strode,
for the appellant.
J. R. Harris, for the respondent.
LEWIS, P. J. The defendant was convicted of murder
in the first degree and sentenced to death. It is not satis-
factorily shown to us that any error was committed by the
court in the conduct of the trial, but our attention is strongly
called to its refusal to sustain a motion for a new trial,
based upon the alleged ignorance, imbecility and incompe-
tency of the defendant's attorney, and his gross mismanage-
ment of the cause.
Such a claim for reversal must be considered with great
caution. The law has provided means whereby only persons
qualified by learning, intellectual capacity, and good moral
character may be permitted to defend in a court of justice
CURIOUS CASES
95
$
Ignorance of Attorney as Ground for New Trial
the reputation, property, or life of a fellow-citizen. This
being done, the presumption necessarily follows that one
who, by such means, has become armed with the proper
credentials will be competent to judge and faithful to adopt
the best methods for securing a vindication of his client's
rights; with the further presumption that the client, in
selecting him, bas elected to abide by the results of his skill
and fidelity. It would be difficult to state with too much
emphasis how the stern severity of the courts has generally
compelled parties to stand by the consequence of negligent
omission, blundering, or improper management by their
attorneys in legal proceedings. This severity is generally
justified by the most important considerations of public pol-
icy, as well as by the plain demands of justice, as between
the parties to the cause. In civil cases the rule is broadly
laid down that "neither the ignorance, blunders, nor mis-
apprehension of counsel, not occasioned by the adverse party,
is a ground for vacating a judgment or decree.” Boston v.
Ilaynes, 33 Cal. 31; Farmers' Co. v. Bank, 23 Wis. 249 ;
Burton v. Hynson, 14 Ark. 32; Burton v. Wiley, 26 Vt.
430 ; Quinn v. Wetherbee, 41 Cal. 247.
But must there be absolutely no limit to the operation of
this rule, even where a human life is at stake? If an attor-
ney should become insane during the progress of a trial, and
should thereupon take such steps as should insure the convic-
tion of an innocent client, would no relief be possible ? To
say so would be a libel on the law. In looking over this
record, we find, in the performance of the counsel for the
!
96
CURIOUS CASES
Ignorance of Attorney as Ground for New Trial
defendant, an exhibition of ignorance, stupidity, and silli-
ness that could not be more absurd or fantastical if it came
from an idiot or a lunatic. Among many similar examples,
it was urged that no act of congress had ever authorized the
state of Missouri to delegate to the city of St. Louis the
power of enforcing the laws ; and that the state could not
offer proof of the killing, without first proving affirmatively
that the deceased was alive and that he did noť kill himself.
Objection was made to an officer's testifying, “because he
undertakes to testify to a confession which he has already
testified to in the other court, and because it is presumed
that he will testify to the same in this court." It was ob-
jected that a confession made in Illinois could not be proved
in Missouri, for want of jurisdiction, and because " the
United States have made no law” to authorize it. These
are only samples of the absurdities with which the record
painfully abounds. It must be admitted that an attorney
who is ignorant or imbecile in a general way may, neverthe-
less, conduct a cause with propriety, and omit nothing on
the trial which would secure any right or advantage in his
client's behalf. So much weight, at least, must be accorded
to the fact of his admission to the bar. The record before
us would indicate no reason for disturbing the judgment, if
it contained no evidence of specific and gross mismanage-
ment, by which the prisoner was deprived of some essential
right, guaranteed to him by law, necessary for his proper
defense, and inseparable from a fair trial. Such evidence
is not wanting on the present occasion.
CURIOUS CASES
97
Ignorance of Attorney as Ground for New Trial
No witness saw the fatal shooting. The prisoner, in aid
of his application for a new trial, filed an affidavit, stating,
in effect, that several weeks before the trial he had informed
his attorney that he could prove by three several witnesses,
naming them, that the deceased had repeatedly threatened to
kill the affiant on sight; but the said attorney, “by reason
of his incompetency and imbecility, refused and neglected to
bring said facts before the court.” That the facts as to the
homicide were that when the defendant approached the de-
ceased, who was lying in a hammock, and requested him to
settle certain bills, the deceased arose with an oath, saying
he would kill the defendant, at the same time drawing a pis-
tol ; that the defendant thereupon shot in self-defense. The
affiant further stated that he informed his attorney of these
facts, and requested to be put upon the stand to testify to
them. But the said attorney, “by reason of incompetency,
imbecility, and ignorance of the law, informed this affiant
that the law was such that this affiant, being charged with
murder, could not swear in his own defense." The attor-
ney filed a counter-affidavit, in which lie" denies that the
defendant was not fully informed as to his right to take the
stand as a witness," and alleges that "it was concluded and
agreed” that the defendant should not be put upon the
stand, for the reason, in effect, that the testimony of the
officer to the defendant's confession would accomplish all
that was desired. Considering the existing exigencies, it
may be doubted whether the reason given by the attorney
for keeping his client off the stand was any more creditable
CC-7
98
CURIOUS CASES
Ignorance of Attorney as Ground for New Trial
to his professional discrimination than the one stated by the
prisoner. But waiving that, and also the seeming impro-
priety of an attorney's volunteering an affidavit to prevent
his convicted client from getting a new trial, we think that
the general aspect of the record so far corroborates the affi-
davit of the prisoner as to entitle him to the benefit of the
doubt. We feel constrained to act upon the supposition that
the attorney, ignorantly or otherwise, advised his client
against going upon the stand, on the ground that under a
charge of murder he could not lawfully testify in his own
behalf.
Of course, we cannot assume that the jury would have
believed the prisoner's testimony, if it had been given. But
if it could have been considered in connection with the
proofs of threats from the deceased by three other witnesses,
as is alleged, there is at least a reasonable probability that
the prisoner would have gotten off with conviction of a
lower grade of crime and a lighter punishment than are
recorded against him. In any event, he has been deprived,
in the manner complained of, of a most important weapon
for his defense, and one whose use, at his option, was guar-
anteed to him by law for whatever it might be worth.
While it is true, as was held in Bowman v. Field, (9 Mo.
App. 576,) that there can be no relief against a mere negli-
gent omission of an attorney presumably competent, and
notwithstanding the rigid rule in ordinary civil cases, as
before stated, yet there is high authority for the granting
of relief in extreme cases, where the client's loss results, not
CURIOUS CASES
99
Ignorance of Attorney as Ground for New Trial
merely from negligence, but from the gross ignorance,
incompetence, or misconduct of the attorney. In Sharp v.
Mayor, (31 Barb. 578,) a judgment was obtained against the
city of New York for over $40,000. The corporation coun-
sel failed to prove facts in defense which were known to him,
and which it was his plain duty to prove. After the judg-
ment, although urged by the proper city authorities to take
an appeal, he refused to do so. The supreme court, in gen-
eral term, set aside the judgment. Said the court
"Courts of law are not to be used by parties in effecting,
through the forms of law, the ruin of a party who has
employed an incompetent, negligent, or unworthy attorney."
If such considerations can prevail where only money or
property is concerned, how much weightier should they be,
in every rightly constituted mind, when a human life is in
the balance. Modern civilization stands aghast at the bar-
barity of the ancient law which denied to a prisoner the aid
of counsel “ learned in the law," when on trial for his life.
The wisdom and humanity of the present age demand that
the maxim “ every man is presumed to know the law”
shall be reversed, both in theory and in practice, when applied
to the legal methods of conducting a defense against a charge
of felony. Our state constitution (art. II., sect. 22) com-
mands that in “in criminal prosecutions, the accused shall
have the right to appear and defend in person and by coun-
and the legislative authority has supplemented this
with the provision that " if any person about to be arraigned
upon an indictment for a felony be without counsel to con-
sel;
100
CURIOUS CASES
Ignorance of Attorney as Ground for New Trial
duct his defense, and be unable to employ any, it shall be
the duty of the court to assign him counsel,” etc. Rev.
Stats., sect. 1844. To say that these beneficent require-
ments were satisfied in the circumstances of the present case,
by the share taken in the proceedings by a licensed attorney,
would be a mockery of the purposes of the constitution
and the law. It would be a most unworthy exercise of
the judicial function to administer the shadow of the law,
but not its substance. We consider that the prisoner
here, in effect, went to his trial and his doom without
counsel such as the law would secure to every person
accused of crime.
The judgment is reversed and the cause remanded. JUDGE
THOMPSON concurs ; JUDGE BAKEWELL concurs in the result,
but has not seen this completed opinion.
CURIOUS CASES
101
Libel by Officer of Official Superiors
STATE OF MISSOURI AT THE RELATION OF ISAAC S. BRISTOL,
RELATOR,
v.
CYRUS P. WALBRIDGE, MAYOR OF CITY OF ST. LOUIS,
RESPONDENT.
St. Louis Court of Appeals, 1897.
[69 Mo, App. 657.]
Libel by Officer of Official Superiors-Removal from
Office.
Certiorari to review a judgment of the Mayor of the
City of St. Louis removing the ſelator from office.
Chester H. Krum, for relator.
No brief filed for respondent.
BLAND, P. J. On February 9, 1897, the relator, Isaac S.
Bristol, was the superintendent of the house of refuge in the
city of St. Louis. On that day there was filed before Cyrus
P. Walbridge, the mayor of said city, the following charges
and specifications against the relator :
In this,
that you, Isaac S. Bristol, superintendent of the house of
refuge, heretofore duly appointed such by the mayor of the
city of St. Louis under the provisions of section 2, of article
4, of the charter of the city of St. Louis, which house of
*
102
CURIOUS CASES
Libel by Officer of Official Superiors
refuge exists by virtue of an act of the general assembly of
Missouri entitled, “An Act concerning the St. Louis house
of refuge,' approved February 24, 1873, and which by said
act is an institution under the control of a board of managers
therein provided for, and which institution is likewise under
the visitatorial supervision of the commissioners on charita-
ble institutions, as provided by section 49, of article 4, of the
charter of the city of St. Louis, and which board of manag-
ers and commissioners on charitable institutions were, at
the time hereinafter stated, and are now, officers of the city
of St. Louis, and your superior officers, did heretofore, to
wit, on or about the fifteenth day of October, 1896, while
acting as such superintendent of such house of refuge, and ·
while owing official duty and respect to your said superior
officers, the board of managers of said house of refuge and
said commissioners on charitable institutions, publish and
circulate the following false, libelous, scandalous, and dis-
respectful charges of and concerning your said superior
officers, said managers of said house of refuge and said com-
missioners on charitable institutions to.wit:
· BED BUGS ON THE BRAIN.
6
CHARITY AND HOUSE OF REFUGE LADIES HAVE THEM-
WOMEN-DEMOCRATS WANT TO WORRY MR. BRISTOL
OUT OF OFFICE.
"It is the nature of a hen to set. Some hens do it as a
duty. Some do it as a craze. The last are a nuisance.
You can't break them of it. It's not their fault, but their
nature.
CURIOUS CASES
103
Libel by Officer of Official Superiors
The house of refuge is like unto a nest, on which several
old hens are trying to hatch out trouble. It is their nature
and we bespeak unto them charity. They can't be broke of
it.
As the hen that layeth not, but forever desireth to set,
doth cakel long and loud betimes to attract unto herself the
eyes of the roosters, so doth the hens which do wear skirts,
and which do without ceasing sit on the charity nest make
much noise ; for it getteth her name in the papers and
maketh her to rejoice with the fullness of notoriety.
* Two o'clock Monday, council chamber, Superintendent
Bristol arraigned; charges by the charity commissioners,
the same being women-democrats and other democrats who
wear pants and bask in their smiles.
"A more frivolous farce than madman with diseased
imagination ever faked in an erratic fancy, was enacted.
Martha Fischel, president of the charity commission, was
chairmaness; a most recherche woman, wonderfully refined
for a democrat. Mrs. Richter, Louis J. Singery, W. H.
Lee, Geo. C. Hitchcock and others, supported her.
A score of exquisites and aesthetics staid by, viewing
the plebian witnesses with lorgnettes, asking questions in
lofty tones and elevated language and applied their vinia-
grettes between smells, the scent of a common person being
rather irritating. Interpreters to translate their queries
into plain English.
Mary M. Brown was a witness. The presidentess asked
her if the lingerie of the protegees within her jurisdiction
was transposed with sufficiently frequent periodicity, to
6
104
CURIOUS CASES
Libel by Officer of Official Superiors
properly interrupt the development of insect life. In other
words, to be more lucid, were the youth of that institution
dissociated from their environments of muslin and re-envel-
oped in petit garments that had been subjected to a proper
degree of purification at intervals of a fortnight or so.
“That was the question. The elegance of the chairman-
ess' diction intoxicated the senses of the witness and lulled
her fancy into a labyrinth of delicious bewilderment. She
didn't revive until the vulgar jargon of Judge Chesterfield
Krum, Bristol's attorney, asked:
"" She wants to know if the girls change their chemises
once in a while ?
C-Oh yes, oh yes yes, they change once in a while, only
the colored girls, that ain't got any."
Often enough to arrest the growth of bed bugs ?
"The witness didn't know how long it took to breed a bed
bug.
Geo. Oger, a laborer, was put on the rack. He couldn't
catch onto anything but the most abominable plain English.
A great gulf yawned between him and his cultured inquisi-
tor. He was half a-scared of her. She didn't seem to know
what she wanted to find out and it was dead certain he didn't.
John H. Raymond, for forty years bookkeeper of the
house of refuge, took his seat and began revealing what he
didn't know. He admitted that Bristol had run the place
very much like other men, only some better, that it was in
better condition than before.
CURIOUS CASES
105
Libel by Officer of Official Superiors
Judge Krum asked: “Can you give one instance of
double dealing or deception by Mr. Bristol !"
666 No sir."
Kram often objected but the ladies overruled him. The
most absurd questions, relevant to nothing in the charges
and not pregnant with any sense, were put, sense, system or
order. It was an object lesson in how women run things
when they get into politics. The modest and gentle females
seem about as well adapted to the affair on hand as a hod
carrier to doing duty as a wet nurse.
(Mrs. Damon was a valuable witness, She is one of the
“ Managers." She is devoted to the belief that charity
begins at home and had her probable brother-in-law Dr.
Hall, a nice little fellow who will be a man if he keeps on
growing, and who disguises his boyishness in a long Prince
Albert, the skirts of which he lifts à la lady, at muddy
crossings—had him made doctor of the refuge at $50 a
month. She wanted some other things, but Bristol per-
sisted that the refuge was for friendless waifs. She soured
on Bristol. Oh, how her tongue did strive to down him.
And how her tongue did try to roast him when he spoke his
pretty little speech.
“Superintendent Bristol sat by concerned lest it be shown
that no bed bugs rendezvoused at the refuge. It is well
known that St. Louis is the Mecca to which all good bed
bugs turn their longing eyes, and toward which healthy bugs
trend; and hence the fame of this city for its superior breed
of these miniature animals. Travelers say that all trains
106
CURIOUS CASES
Libel by Officer of Official Superiors
coming into this city, especially Pullman cars on which
these insects, being of luxurious tastes, prefer to travel, are
abundantly supplied; and the porters say that the animals
leave the cars on their arrival here and at once locate for
business. This they determine because of the utter absence
of them from outgoing trains. Consequently these little
tricks are so prevalent in St. Louis that most people
wouldn't feel at home if they found their houses deserted
by the tiny birds, which, like the phantom bugs in Macbeth's
brain,
""Do murder sleep."
· Hence the superintendent feared that, were it known
that the refuge were tabooed by bugs the citizens of this
great community would try to break into it, and convert it
into a summer resort, dissolve the establishment, and abolish
the positions pertaining thereto.
On the other hand, Chesterfield Krum didn't want the
commission to officially declare that no bed bugs lingered
in those precincts lest that their utter absence would lead
the public to think it a pretty tough place, much as a ship
deserted by rats.
• Mrs. Doctor Trelease fidgeted about for an hour waiting
for a chance to express her pent up emotions. She is boss
woman of the refuge managers and has got it in for Bristol,
bad. While the chairmaness tried to find out what the wit-
ness didn't know, Mrs. Trelease mildly exercised her talking
machinery and got it into good training.
When at last the eventful moment came she eagerly
CURIOUS CASES
107
Libel by Officer of Official Superiors
seized upon the witness chair and made it to groan with its
precious burden. Having put herself in the most public
place, the public, or that part that was there, began to size
her up. They at once drew the conclusion that she was a
mighty solid girl. Various estimates were made, the con-
census of opinion averaging her at two hundred and sixty-
seven pounds, four ounces avoirdupois, though the
amplitude of fabrics about her person made guessing haz-
ardous. The public put it down that she had lovely pink-
pearl ears and exquisite opalescent eyes changeable in tint.
• Whatever else she had the public was impressed that
she had a great gift of speech. Did you ever see one of
those switch engines that has a bell run by machinery, that
starts when the engine does and stops when the engine stops ?
At first the sound is musical, and it keeps on, and keeps on,
and keeps on, and at last you yearn to open a switch and
dump the whole business in the river.
Well, she kept on, and kept on. The chairlady tried to
ask questions and the lawyers tried to, but the queries fell
like rain drops on a duck's back. Some of them feared her
talking apparatus would get a hot box, but it it seemed it
must have been lubricated by a master mechanic.
· Ever and anon her ample mouth would pause and supply
the bellows connected therewith with a few more cubic metres
of atmosphere and then she would begin blowing again.
She had seen bed bugs and all sorts of horrors. She
thought Bristol a horrid man. He wouldn't salaam before
ladies of the board. He refused to be impressed with a sense
6
108
CURIOUS CASES
Libel by Officer of Official Superiors
of their importance. The yards were knee deep in mud and
the ladies had to wear skirts cut dancing length and tie them
up to get through.
He must have devoted his time and that of his assistants
to going out into the neighborhood, gathering up dirt and
refuse to bring in and dump on the floors and lawn. He
must have taken a fiendish delight in making the girls wash
their night shirts in mud puddles. Of all the bad men in
the nineteenth century he was the worst.
· How long the farce would have lasted nobody knows;
but the husband of one of the women leaned over and whis-
pered that the baby was locked up alone and the servant
playing euchre with the policeman of the beat—and adjourn-
ment was had at once.
If Mrs. Dr. Trelease should be appointed judge of a
court in the next world and Bristol should come before that
tribunal there is no telling where he would go to, for hell
wouldn't be half hot enough for him in her estimation.
The fact of the matter is that Mr. Bristol has been attend-
ing to the city's business and his wards, and has refused to
fool away time in attentions to the board of busybodies, who
have been accustomed to going down there and have the
superintendent lay off and let things go their own way while
be flattered the vanity of the “ lady managers.
All contrary to the provisions of said act creating said house
of refuge, and of the charter of the city of St. Louis, and
prejudicial to the public service of said city, and calculated
CURIOUS CASES
109
Libel by Officer of Official Superiors
to bring the administration of public affairs relating to said
house of refuge into disrespect and disgrace.
The article was a vile attempt at ridicule, ridicule of the
official acts of the ladies named, ridicule of their language
and demeanor, when making an official inquiry of the con-
ditions of the house of refuge,-ridicule of the person of one
of them, coupled with a vulgar suggestion. Counsel for
relator in his argument termed the publication a silly pro-
duction. ,
It is this, and more,—it is unappreciative of offi-
cial courtesy, and an act of official insubordination. The
effect of the setting up of this article by the inmates of the
house of refuge could have no other influence on them than
to excite to insubordination, and inculcate disrespect of the
officials of the institution. The moral delinquency mani-
fested by the publication of the article, under all the circum-
stances, is so apparent and is of so grave a nature as to
convince us that Mr. Bristol is not a fit person to hold the
office of superintendent of the house of refuge. The motion
to quash the judgment of the mayor is overruled, and judg-
ment is given for respondent. JUDGES BIGGS and BOND
concur.
110
CURIOUS CASES
Indictment for “Sporting” on Sunday
STATE OF NEBRASKA
V.
Tim O'ROURK et al.
Supreme Court of Nebraska, 1892.
[35 Neb, 614.]
Indictment for “Sporting" on Sunday-Playing Base Ball.
Exceptions to the decision of the district court for Lan-
caster county, HALL, J., presiding.
Novia Z. Snell, County Attorney, Frank W. Lewis, and
J. R. Webster, for the State.
Charles E. Magoon, contra, submitted the following
brief. *
The defendants in error were arrested on the 27th day of
April, 1891, charged with violating section 241 of the
Criminal Code. The complaint, in substance, charged a
violation of the Sunday law, by playing base ball on that
day.
I.
Being arraigned, they entered a plea of not guilty and
were tried by the county judge without a jury and were
*This brief, which is not officially reported, is here reproduced
through the courtesy of Lee Herdman, Esq., the official reporter.
B. A. M.
CURIOUS CASES
111
Indictment for " Sporting” on Sunday
found not guilty. The sole question involved was one of
fact as to whether or not they had violated the provisions
of the statute, and upon this finding of fact the decision of
the court is final. I am at a loss to determine upon what
question of law exception can be taken, the question being
solely one of fact.
II.
The county attorney filed a petition in error in the dis-
trict court of Lancaster county and brought the same to the
attention of the court, which court, holding that there was
nothing to review and that the decision of the county court
was right, affirmed the finding of the county court. Peti-
tion in error was then filed in this court and the cause now
comes on to be heard on the petition in error herein. The
attorney for defendants in error appears in compliance with
an order of the district court requiring him as an officer of
said court so to do. It is a matter of regret to him that he
is unable to even undertake to compete in theological dis-
cussion with the authors of the brief filed by the plaintiff in
He admits his want of theological training, his mi-
nority having been passed in a locality jointly occupied by
the grasshoppers and the Pawnee Indians, and his legal re-
searches, having been mainly directed by the Hon. C. 0.
Whedon, have not taken a theological trend.
erl'or.
III.
It is not denied that the Sabbath is a holy day and that
religious observance on the seventh day of the week is en-
Samen
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CURIOUS CASES
Indictment for “Sporting” on Sunday
joined by the ten commandments. It is equally well known
that the observance of the first day of the week, or Sunday,
has been adopted in obedience to an edict of Constantine.
It is equally well established in law that in the absence of
a statute there is no legal obligation to observe Sunday as
distinguished from any other day of the week.
Bloom v.
Richards, 2 Ohio St., 387; McGatrick v. Wason, 4 Ohio
St., 566-571 ; Moore v. Clymer, 12 Mo. App., 11; L. &
N. R. R.'s Case, 8 Ky., 291.
IV.
But one
In reviewing the so-called Sunday laws of the various
states it is remarkable into what contradictory opinions and
amusing conclusions the courts have been led.
thing seems to be established, Sunday is not a court day-
dies Dominicus non est juridicus. Service of process, arrest
in civil actions, and all that sort of thing are prohibited on
that day universally. In this respect, however, it is not
much more sacred than election day. No trial can be had
on Sunday. The only trials which the lawyer can then law-
fully be subjected to are those which he undergoes in listen-
ing to the clergy who make him a frequent object of
reproach. The only court permissible on that day is such
as lovers, according to immemorial custom, pay to the objects
of their adoration. Sunday was not always held thus sacred
from the demands of Themis. It did not become so until
the year 517. Originally the Christian courts were open
on Sunday to prevent resort to the heathen courts, but with
CURIOUS CASES
113
.
Indictment for “ Sporting" on Sunday
these exceptions all business transactions are valid at common
law, “however wrong or unbecoming in morals they may
be considered.” Merritt v. Earle, 31 Barb., 41. Among
other things prohibited by these statutes is Sunday traveling.
Washington, in his diary, under date of November 8, 1789,
in journeying through Connecticut, remarks : “ It being
contrary to the law and disagreeable to the people of this state
to travel on the Sabbath day, and my horses, after passing
through sach intolerable roads, wanting rest, I stayed at Per-
kins' tavern (which, by the way, is not a good one) all day;
and a meeting house being within a few rods of the door, I
attended the morning and evening services and heard a very
lame discourse from a Mr. Bond." Connecticut has
improved her inns and the intellectual character of her
preaching and has mended her ways, but has not altered
particularly the laws spoken of ; at least Sunday traveling
and work are still prohibited, except in cases of necessity
and mercy. The running of the Long Island Sound's steam-
boats seems to be considered necessary or merciful, however,
and as an incident it was held by a New York court that the
fact that the plaintiff left the boat on Sunday made no
difference, under the Connecticut Sunday law, as to her right
to call for a trunk; if delivering it would have been work or
labor within the statute, it was a work of necessity. And
so where she neglected to call for her trunk for seventeen
hours and it was put in the steamboat company's warehouse
where it was burned, it was held that she could not bold
them as common carriers. As to the Sunday work, she
CC-8
114
CURIOUS CASES
Indictment for “Sporting” on Sunday
į
and they were in the same boat. Jones v. Norwich & N.
Y. T. Co., 50 Barb., 193. In Massachusetts it is not only
unlawful to travel on Sunday, except from necessity or
charity, but a fine of $10 may be inflicted for every violation.
There is certainly no amusement in that, but there is in
some of the decisions on that subject. A person cannot
legally travel on the Lord's day for the purpose of supply-
ing fresh meat to marketmen whom his master bas agreed to
supply, although he could not do this in addition to his work
on Monday morning and his master was too sick to do it
bimself, and consequently, if while so traveling he sustained
an injury on account of a defective highway, he cannot
l'ecover damages therefor. He offered to prove that he was
his master's only servant; that at that season fresh meat
was only fit for use on Monday when slaughtered and dressed
on Sunday, but the judge said that “it was too clear to
admit of discussion, and so this wicked servant had to bear
his smarts unrecompensed. The judge undoubtedly was not
one of the persons who suffered from othe temporary
inconvenience caused by the failure to supply provisions on
Monday.” If he had been, he might have undergone a
state of mind which even the recollection of the previous
day's exercises could not have soothed. But, as it was, the
court held that the servant received a meet punishment for his
transgression, and thus the sound morality taught at the fa-
mous theological semivary at Andover and recognized by the
Massachusetts statutes saved that town from a bill of dam-
ages.
Jones' v. The Inhabitants of Andover, 10 Allen, 18.
ול
CURIOUS CASES
115
Indictment for “Sporting” on Sunday
But this is not the only case showing the prudence with
which Massachusetts reconciles a due observance of Sunday
with the inviolability of the public purse. It is a work of
necessity for the public to repair the highway on Sunday in
order to prevent accidents on Monday. So beld in an action
for damages occurring on Monday through a defect in the
highway, the defendant setting up as a defense that it would
have been unlawful to repair the road on Sunday; the court
wisely held that no day was fitter than Sunday for a commu-
nity to mend its ways. Flagg v. The Inhabitants of Mill-
bury, 4 Cush., 243. . To visit one's father on Sunday is a
work of necessity or charity, so held in Pennsylvania.
Logan v. Matthew, 6 Pa. St., 417. But in Massachusetts it
was left undecided whether a young man who worked at a dis-
tance during the week and received injuries arising from a
defect in the highway from proceeding to visit his betrothed
on Sunday was a lawful traveler. Buffington v. Swansey,
2 Am. Law Review, 235. This is a case calculated to arouse
the indignation of every well regulated young woman in the
land. Is a mere father to be preferred to a contingent wife
and mother? It might, in the long run, be a work of mercy
to the young woman if the young man would let her alone
or confine his attention to epistolary communications, thus
giving her an opportunity to take her natural rest and sleep
and reflect on the lessons of the day. Massachusetts was
impartial in its administration of its laws, at all events, for
in 1793 the chief justice of the state and his associates were
indicted for traveling on Sunday, and were compelled to
116
CURIOUS CASES
Indictment for “Sporting” on Sunday
petition the legislature to authorize a nolle prosequi.
Although one carrying the mails on Sunday could not be
arrested, yet his passengers might be, though this decision is
hardly consistent with Scripture : - It must needs.be
that offenses come, but woe to that man by whom the
offense cometh." The New York statute, with a view to
restricting inordinate and excessive church-going, has
wisely provided that no one shall ride more than twenty
miles to church on Sunday. Sunday working is another
thing interdicted by these Sunday statutes. It is a mis-
demeanor in Massachusetts to perform any labor on Sunday
except works of necessity or charity. The principle of
the maxim Ne sutor ultra crepidam was enforced in a
recent case in that commonwealth. Commonwealth v.
Josslyn, 97 Mass., 411. A shoemaker was indicted for
hoeing in his garden on the Lord's day. A witness testified
that about 8 o'clock in the morning of Sunday he saw this
dangerous man hoeing for about an hour in his garden.
The defendant testified that for two days next preceding
the day in question he had not worked at his trade, but had
given the greater part of his time to cultivating his crops at
home, and had been engaged at that labor by moonlight on
Saturday evening ; that when he left off work a few hills
remained unfinished and in very bad condition, suffering for
want of hoeing, and this, we infer, he finished on Sunday
morning, contrary to the form of the statute in that case
made and provided, and being thereunto moved and insti-
gated by the wiles of the devil. He asked the court to sub-
CURIOUS CASES
117
Indictment for “Sporting” on Sunday
mit the question of the moral propriety and fitness of the work
to the jury, but this was refused. He was convicted. The
court on appeal overruled his exceptions, and, for aught we
know, he is pegging shoes for the righteous old Bay state
while the ill weeds disfigure his garden patch, and his tem-
porary widow and his little ones “go bare,” like the little
colt in the nursery rhyme. The domestic tragedy thus inad-
equately set forth is courteously recommended to the drama-
tist who wrote the plaintiff's brief, who cannot fail to turn
it to good use by making it the subject of a glowing diatribe
suited to the meridian of Nebraska. The same volume of
reports also contains an account of another dreadful infrac-
tion of human and divine law which is worthy of our con-
sideration. The defendants, who were farmers, had a license,
for which they made an annual payment, from the owner of
the beach about four miles from their residence, and gath-
ered sea-weed thereon, which is valuable and in common use
as a fertilizer. A storm on Saturday having thrown a large
quantity of the sea-weed, the defendants, about 10 o'clock
on Sunday evening, gathered it from the space between high
and low water mark and drew it higher up the beach, the
tide being low and a strong wind blowing in a direction
which had frequently caused the sea-weed to float away and
be lost. Under the instructions of the court the jury found
the defendants guilty, and their exceptions were overruled.
The things which may lawfully be done were enumerated in
the opinion of the court : “ To save life, or prevent or
relieve suffering, and this is the case of animals as well as
118
CURIOUS CASES
Indictment for “Sporting” on Sunday
men; to prepare needful food for man and beast; to
save property, as in case of fire, flood, or tempest, or
other unusual peril, would unquestionably be acts which
fall within the exceptions. But it is no sufficient excuse
for work on the Lord's day that it is more convenient
or profitable if then done than it would be to defer or
omit it." Coinmonwealth v. Sampson, 97 Mass., 407.
Is it any worse to acquire property on Sunday than to
save it on that day, especially if it be property which can
be acquired on that day? The court answered this question
in its next sentence : " If a vessel had been wrecked upon
the beach, it would have been lawful to work on Sunday for
the preservation of property which might be lost by delay.
But if the fish in the bay or the birds on the shore happened
to be uncommonly abundant on the Lord's day, it is equally
plain that it would furnish no excuse for fishing or shooting
on that day.” How would it be if a whale happened to be
stranded on the shore, we need not determine. 6. Whether
a case wholly exceptional, and involving a large amount of
accessible value, would require any modification of the rule
is not now in question." How the judge should tolerate
even in imagination an exception in favor of the whale, with
the example of Jonah before his mind, we cannot imagine.
And suppose a whale should come along on Sunday, who
can deny that another would not come along on Monday,
and a whole school during the week? But his honor's mind
was evidently affected by the idea that a whale on the beach
is worth two in the sea, and that “a large amount of acces-
CURIOUS CASES
119
Indictment for “Sporting" on Sunday
sible value” is not to be passed by, even on Sunday. After
reading these last two cases no man will disagree with the
editor of the American Law Review, who, remarking on
them, says: “It is difficult to restrain a movement of indig-
nation that a law under which such prosecutions are possible
still stands on the statute book," nor with Judge Grier, who
says :
- The Massachusetts decisions upon the Sunday law
depend upon the peculiar legislation and customs of that
state more than any general principles of justice or law.”'
Philadelphia v. Towboat Co., 23 How. (U. S.), 209. The
financial thrift that distinguishes Massachusetts is sufficient,
however, to relax the sternness even of their Sunday laws.
That state kindly admits that a note dated on Sunday is
not infected with wickedness, but is binding. Stacy V.
Kemp, 97 Mass., 166. And that an account brought for
services of the plaintiff's stud-horse for the defendant's mare
under a contract made on Sunday, but performed on a sec-
ular day, may be maintained. Dickinson V. Richmond,
97 Mass., 45. Vermont does not agree with Massachusetts
in its treatment of the gifts of nature. That court held, as
a matter of law, that it is not always unnecessary to work on
Sunday to prevent a waste of sap in making maple sugar. A
religious man, says the court, should set tubs enough on Sat-
urday, but if the run is extraordinary—why, verb. sap.
In
New Hampshire only such ordinary labor or business is for-
bidden as is carried on to the disturbance of others.
A legal
definition of this term may be found in a case in which a con-
tract for the sale of a horse was made on Sunday, and a note
120
CURIOUS CASES
Indictment for “Sporting” on Sunday
given at the house of the plaintiff, whose wife was present
reading a newspaper. The court held the note void, the
giving of it being under the circumstances a disturbance
of others, although no complaint of the disturbance was
made. It is hard to understand the soundness of this rule,
it not appearing that the wife " took any note" of what was
going on. Neither is it plain to see how the court could
deen the wife an 6 other " when husband and wife were one ;
nor how they could hold that the wife was disturbed unless
it appeared that her attention was distracted from her news-
paper.
So far as the case discloses, the newspaper
was not a religious one,
which adds to our doubts.
Could she lawfully read any other? And if she were
engaged in an illegal undertaking, how could she be
disturbed ? Vurney v. French, 19 N. H., 233. A
man may make his will on Sunday anywhere, even in
Massachusetts. Bennett v. Brooks, 9 Allen, 452. In that
state the right seems to be put on the ground of its “ fitness
and morality.” In New Hampshire it seems to be supported
by the numerous good words at the commencement of the
document. Perkins v. George, 1 Am. Rev., 755. The court
referred to "a most interesting collection of the opening
words of wills, selected through a period of a hundred years,"
and arguing therefrom that the act is usually regarded in
New England as a religious one. Truly, if we trust to wills
and epitaphs, the world has lost none but religious people.
What a shock, then, we receive in a Pennsylvania case, which
upholds the right mainly on the ground that the will does
CURIOUS CASES
121
Indictment for “Sporting” on Sunday
not take effect until the testator's death.
death. Beitenman's
Appeal, 55 Penn., 183. But suppose the testator should
afterward die on a Sunday? Would not that render the exe-
cution of the will unlawful ? “ As no roads are so rough as
those which have just been mended, so no sinners are so
intolerant as those who have just turned saints.” Therefore
we find the following decision in Arkansas: The defendant
was poor; had no implements to cut his wheat, which was
wasting for over-ripeness; and could borrow none until
Saturday evening. He exchanged work with his neighbors
during the week, hired a negro, and cut his own wheat on
Sunday. Held, no justification for breaking the Sabbath.
This is quite different from the horse races, gambling, and
duelling which formerly enlivened the Sabbath in that state.
State v. Goff, 20 Ark., 289. The foregoing decisions exhibit
the absurdities into which courts have been led by trying to
follow, as a rule of law, a fixed, unchangeable religious
dogma. The doctrine that the great system of truth, recti-
tude, code of morals, or by whatever term you may designate
Christianity, rests upon enforced idleness for a designated
period finds no sanction in the heart or deliberate judgment
of mankind. If this doctrine were true, Christianity would
have been destroyed when Constantine changed the day
from the seventh day to the first day of the week and made
Sunday, theretofore reverenced by the idolatrous worshipers
of the sun, the day of Christian festival. Nor is this the
only change. The Gregorian calendar is defective, and the
identity of even Sunday has long since disappeared. It lies
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within the recollection of every member of this court that
not many years ago the tinie rendered sacred as Sunday com-
menced at sunset on the seventh day of the week and
ended at sunset on the first day of the week. The law
is a creature of growth. Even the fixed provisions of the
constitution are amenable to the inexorable logic of events
and mold themselves to meet the varying conditions of social
and governmental growth. And therefore we see even the
Sunday laws changing by force of events. To-day thousands
of men work from Saturday night to Sunday morning
creating the great Sunday papers and resume their labors
Sunday night for the Monday issue. Thousands of news-
paper dealers and carriers dispose of these papers. Mil-
lions of readers peruse them all on Sunday. The mails are
assorted and transported. Letter carriers and postal
clerks distribute and transmit the mails, thousands of
railroad employees attend to the operation of other
thousands of trains on that day. Street car lines, steam-
boats, omnibuses, and countless other vehicles for hire
operate each day of the week. Telegraph, telephone,
messenger service and express companies, with their hordes
of employees, discharge their public duties on that day.
Hotels, restaurants, and livery stables afford accommoda-
tions for man and beast and compel the labor of their
attachés on Sunday as on every other day. The great army
of domestics, housemaids, cooks, coachmen, hostlers, etc.,
milkmen, victualers, icemen, etc., and the millions of
mothers and wives who do their own work find that the first
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day of the week differs only from the others by increase of
toil ; to say nothing of the preachers, choristers, organists,
sextons, ushers, etc., who on Sunday earn their bread by the
sweat of their face and exemplify the primal curse imposed
upon Adam that he should " work all the days of his life.”
Add to these the countless multitude who on Sunday walk,
ride, and row and otherwise indulge in exercises for health
or pleasure, or visit parks, libraries, theatres, base ball, or
other forms of relaxation, and the sum total would aggre-
gate fully seven-eighths of our population. Does any one
claim that this condition of affairs has imperiled Christianity
or impeded the establishing or growth of “any system of
charitable institutions for relief of suffering humanity" or
that it has imperiled “ that particular form of religion which
is founded on the teachings of the great Nazarene"? If
enforced idleness for a stated period is the foundation stone
of Christianity, it is singular that the Founder should have
wilfully set the example of its violation. We certainly have
record of one instance where Christ, although possessed of
the miraculous power to feed multitudes, and to whose wants
the angelic hosts attended, went forth into the field to gather
corn on the Sabbath, in violation of the fourth command-
ment. Yet Christ was careful in the observance of the cere-
monial law or He could never have secured a hearing among
the formalists to whom His preaching was addressed.
Therefore He antagonized no part of the Mosaic code, and
His utterances on Sabbatarianism were confined to a gentle
pleading that in this as in all things there should be a sensi-
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ble moderation. But it was written that Christianity should
not be limited to the Hebrew race. And when the apostles
came to lay down rules for their Gentile converts, one of the
first difficulties with which they were confronted was the dis-
position—inherent in the nature of all men—to substitute
outward ceremony for internal purity. To take the instance
with which we bave to deal, it is much easier to be idle one day
in the week than to be honest, kind, and liberal all the time;
just as it is easier to go to church occasionally than to tell
the truth under all circumstances. The early Gentile Chris-
tians, like the rest of us, were prone to find a way to balance
their accounts on the eternal books by privately indulging
in pleasant or profitable sins and publicly displaying an
extraordinary zeal for matters of ritual. There was noth-
ing in which the apostles more thoroughly imbibed and
earnestly enforced the spirit of the Master's teaching than
in this thing of cleansing the “ inside of the plattter"; and
the burden of their speech is incessant that there is nothing
meritorious in the form, and that the motive is the all essen-
tial. While they were contending against other supersti-
tions, the innate immorality of this superstition of days did
not escape their attention. They plainly discerned its dan-
gerous tendency to be twofold : first, in the false idea that
the time of an act could have nothing to do with its moral
nature, other things being equal ; secondly, in the inevitable
result of its acceptance to foster the notion that it was possi-
ble, by being extraordinarily good for a certain number of
hours, to purchase immunity for wickedness the balance of
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Indictment for “Sporting” on Sunday
the time. The moral system of Christianity would be fatally
incomplete if its sacred books did not contain condemnation
of this, one of the most common and apparently ineradica-
ble weaknesses of the human heart. But it is pointed out
clearly enough for all, in the fundamental charter of Chris-
tian liberty. “Let no man therefore judge you in meat,
or in drink, or in respect of a holy day, or of the new moon,
or of the Sabbath days, which are a shadow of things to
come." Col. ii. 16, 17. "One man esteemeth one day
above another; another esteemeth every day alike. Let
every man be fully persuaded in his own mind. He that
regardeth the day, regardeth it unto the Lord ; and he that
regardeth not the day, to the Lord he doth not regard it.”
Rom. xiv. 5, 6. " Ye observe days, and months, and times,
I am afraid of you, lest I have bestowed upon
you labor in vain."
Gal. iv. 10, 11.
It would have been
better for the later day apostles who prepared the brief of
the state if they had sought wisdom of the Church Fathers
instead of the Puritan Fathers, before declaring the needs of
Christianity.
V.
and years.
The statute which the defendants were charged with vio-
lating is as follows: “Sec. 241. If any person of the age
of fourteen years or upwards shall be found on the first day
of the week, commonly called Sunday, sporting, rioting,
quarreling, hunting, fishing, or shooting, he or she shall be
fined in a sum not exceeding twenty dollars, or be confined
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in the county jail for a term not exceeding twenty days, or
both, at the discretion of the court. And if any person of
the age of fourteen years or upwards shall be found on the
first day of the week, commonly called Sunday, at common
labor (work of necessity and charity only excepted), he or
she shall be fined in any sum not exceeding five dollars nor
less than one dollar ; Provided, Nothing herein contained
in relation to common labor on said first day of the week,
commonly called Sunday, shall be construed to extend to
those who conscientiously do observe the seventh day of the
week as the Sabbath, nor to prevent families emigrating
from traveling, watermen from landing their passengers,
superintendents or keepers of toll bridges or toll gates from
attending and superintending the same, or ferrymen from
conveying travelers over the water, or persons moving their
families on such days, or prevent railway companies from
running necessary trains." Base ball playing can hardly
be deemed “common labor" in the sense in which those
words are used in the statute. It is an athletic exercise,
the same as are walking, running, riding, and rowing.
Walking does not violate the statute. Hamilton v. Boston,
14 Allen, 475; Davidson v. Portland, 69 Me., 116;
O'Connell v. Lewiston, 65 Me., 34. Driving or sailing
does not violate the statute. Nagle v. Brown, 37 Ohio
St., 7. Shaving customers does not violate the law. State
V. Lorry, 7 Baxt. (Tenn.), 95. Transporting cattle held no
violation. Phil. & B. R. R. Co. v. Lehman, 56 Md., 209.
.
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Repairing switch on railroad is held to be lawful on Sunday.
79 Ind., 393. Gathering grain no violation. Turner v.
State, 67 Ind., 595. Labor to prevent waste of sap in
making maple sugar.
Whitcomb v. Gilhan, 35 Vt., 497.
The statute of Massachusetts prohibits traveling on Sunday,
and although all the dictionaries agreed that all persons were
travelers who had occasion to pass along the highway for
any purpose, yet the inhibition did not apply to a person
walking for exercise on Sunday evening, and that he could
recover for injuries occasioned by a defective highway.
Hamilton v. Boston, 14 Allen, 477. The county attorney
does not seem to rely upon the common labor clause
of the statute in his brief, and it will not be further con-
sidered. The provision of the statute seemingly relied upon
by the state for a conviction herein was that relating to
"sporting:” Did the act of engaging in the athletic exer-
cise of throwing or batting a ball, and running a specified
distance before the return of the ball, constitute "sporting
as that term is used in the statute ? It is well settled that
66 where a statute uses a word which is well known and has
a definite sense at common law or in the written law, with-
out defining it, it will be restricted to that sense, unless it
appears that it was not so intended."
Sutherland on
Statutory Construction (Ed. of 1891), sec. 253, p. 331.
See authorities there cited. The word “sporting” is de-
fined as meaning the “ killing and taking game on a man's
own land.” Rapalje's Law Dictionary, vol. 2, p. 1212.
>>
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This is the sense in which Shakespeare, the great master
of English, used the word :
" Horse and chariots let us have,
And to our sport. Madam, now shall ye see
Our Roman hunting.”
Tit. And, ii, 2, 19.
The great English scholars who translated the Bible cer-
tainly did not accept the word in the sense in which the
attorneys for the state would have this court interpret it.
In Genesis, 26th chapter and 7th verse, the Scripture reads:
“And the men of the place asked him of his wife; and he
said, she is my sister ; for he feared to say, she is my
wife, lest, said he, the men of the place should kill me for
· Rebekah; because she was fair to look upon. 8. And
it came to pass, when he had been there a long time, that
Abimelech, king of the Philistines, looked out at a window
and saw, and, behold, Isaac was sporting with Rebekah
his wife.” It will hardly be contended that this couple
were engaged in playing base hall, or that, had the day
been the Sabbath, that they would be considered violators of
the law, either human or divine. A consultation of the
dictionaries, especially the Century dictionary, will disclose
that “ sport” and “ sporting” have a variety of meanings,
extending from closing a door to sexual intercourse. It is,
therefore, absurd to claim that this word should be extended
in a criminal case beyond its recognized and established
legal meaning. The judgment of the two lower courts was
right and should be affirmed.
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Indictment for “Sporting" on Sunday
*
MAXWELL, C. J. *
Section 241 of the Criminal
Code provides : “ If any person of the age of fourteen
years or upward shall be found on the first day of the week,
commonly called Sunday, sporting, rioting, quarreling, hunt-
ing, fishing, or shooting, he or she shall be fined in a sum
not exceeding twenty dollars, or be confined in the county jail
for a term not exceeding twenty days, or both, at the dis-
cretion of the court. And if any person of the age of
fourteen years or upward shall be found on the first day of
the week, commonly called Sunday, at common labor (work
of necessity and charity only excepted), he or she shall be
fined in any sum not exceeding five dollars nor less than one
dollar: Provided, Nothing herein contained in relation to
common labor on said first day of the week, commonly
called Sunday, shall be construed to extend to those who
conscientiously do observe the seventh day of the week as
the Sabbath, nor to prevent families emigrating from
traveling, watermen from landing their passengers, super-
intendents or keepers of toll bridges or toll gates from
attending and superintending the same, or ferrymen from
conveying travelers over the water, or persons moving their
families on such days, or to prevent railway companies from
running necessary trains."
Webster defines "sporting," “1. To play; to frolic ; to
wanton. 2. To represent by any kind of play,” and as
synonyms gives "to play, frolic; game; wanton." (Ed.
of 1881, p. 1276.) The definitions in the Century are the
same, but somewhat more extended. In the same author-
ܪ
C0—9
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Indictment for “Sporting” on Sunday
ity (Webster), p. 111, “ base ball” is defined as “a game of
ball, so called from the bases or bounds (usually four in
number) which designate the circuit which each player must
make after striking the ball.” That playing base ball
comes within the term "sporting," and is, therefore, a vio-
lation of the statute, there can be no doubt.
But it is claimed, in effect, that restraint of the kind
named is in contravention of natural right or religion, and
therefore is in excess of the powers of the legislature. The
right of free, equal and undisturbed enjoyment of religious
opinion, whatever it may be, and to fully discuss the same,
is secured to every one.
Free discussion, however, is the
outgrowth of free government. All free government is
based on the divine law. God gave the ten commandments
to Moses, which contain rules designed to apply to the whole
Although given to the Israelites, they were designed
for all humanity. The Israelites were constantly lapsing
into idolatry. There are noble examples of manhood, how-
ever, in their history, but the ignorance of the public, the
almost continuous wars, internecine, offensive, or defensive,
together with the pagan influences of the surrounding
nations, prevented the development of the nation, and it
became a prey to the Babylonians, and later to the Roman
empire. If we look at the world at the time of the birth
of Christ, there was not, so far as we know, a nation where
equal and just rights were enjoyed by all, nor where the
rights of the poor were adequately protected and enforced,
if, indeed, considered. The Roman empire, then at the
race.
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1
height of its power, had much to commend it. Many of its
rulers were men of genius, ability, and manhood, but pun-
ishments of all kinds were of the most cruel character; war
was carried on for conquest and with a degree of barbarity
that shocks our feelings of humanity. Captives were sold
into slavery and practically possessed no rights that their
masters were bound to respect. A pastime of the Roman
populace was to witness deadly contests of captives with
wild beasts or each other. Even as late as the third cen-
tury after Christ's birth this barbarous practice was in
force. Gibbon, in the Decline and Fall of the Roman
Empire, vol. I, p. 386 (Millman Ed.) says:
“We cannot,
on this occasion, forget the desperate courage of about
fourscore gladiators, reserved, with near six hundred others,
for the inhuman sports of the amphitheatre. Disdaining to
shed their blood for the amusement of the populace, they
killed their keepers, broke from the place of their confine-
ment, and filled the streets of Rome with blood and confu-
sion. After an obstinate resistance, they were overpowered
and cut in pieces by the regular forces; but they obtained
at least an honorable death, and the satisfaction of a just
revenge. Cruelty was the rule and death inflicted as pun-
ishment for trivial causes. Specimens of Roman justice
may be seen in the trial of Christ before Pilate, and Paul
before Felix and Festus. In neither case
In neither case was there the
semblance of an accusation based upon law ; yet Christ was
condemned to please a mob, and Paul would have been
delivered to men who had sworn to kill him but for his
”
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appeal to Cæsar, and even then he was held a prisoner for
two years without a charge against him. The indigent,
unfortunate, and discouraged were permitted by the law to
sell themselves as slaves, and the rights of the poor were to
a great extent at the mercy of the rich and powerful.
While there were amphitheatres for the exhibition of brutal
contests between men and wild beasts, or between captives
to furnish amusement to an unfeeling populace, there were
no public hospitals for the insane, sick, or unfortunate.
In addition to this, covetousness, licentiousness, and other
vices prevailed to an extent unknown at the present time,
nor, so far as we are informed, was any nation superior in
any of these respects to the Romans. The most favorable
view that can be taken of any government of that date is to
say that might alone controlled, and right was a remote
consideration.
The birth of Christ was ushered in by the proclamation
by angels of peace, “Glory to God in the highest, and on
earth peace, good will toward men.” (Luke 2: 14.) His
birth was among the poor and lowly, as if to show that
wealth is a mere circumstance wbich adds nothing to either
the usefulness or respectability of its possessor.
purity of life, unselfishness, good will toward friends and
foes alike, doing good to all as opportunity offered ; that
religion affected and controlled the life of the individual,
and did not consist in mere outward observances.
demned covetousness, licentiousness, selfishness, and self-
righteousness, and insisted on the equality of the race. He
He taught
He con-
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1
practiced His own preaching, and led a life of poverty,
purity, and doing good. None so poor as not to claim His
sympathy and assistance, nor so wealthy and great as to be
above His consideration. The lepers, the blind Bartimeus,
the rich centurion, alike were recipients of His beneficence.
All were welcome, the only conditions being that they needed
His aid and applied for it. His unselfishness, His magna-
nimity, the nobility of His character were misunderstood by
those who were looking for a deliverer from the Roman
yoke, and by others who had been taught to regard the law
of Moses as perfection. The Jews, who, as the children of
Abraham, deemed themselves the favored people of God,
were neither expecting nor desiring a leader for mankind,
but rather one who, like Moses, would lead them out of
hated Roman bondage; neither could they understand a
system that, while accepting much of the law of Moses,
proposed to supersede its rites and ceremonies. Many cen-
turies before, the prophets in glowing language had fore-
told the birth of a son, the Prince of Peace, who would
establish His throne with judgment and justice forever.
These statements seems to have been taken literally, as ap-
plying alone to an earthly prince who should destroy the
enemies of the Jews. It is apparent, however, that the
prophets' utterances refer to a spiritual ruler who would
conquer by love, and whose followers would be guided by
his precepts and establish justice and right.
From the crucifixion of Christ until the present time the
contest between Christianity and wrong has been going on.
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Indictment for “Sporting” on Sunday
Wherever Christianity has prevailed free and untrammeled,
liberty has existed. It forbids cruelty, haughtiness, arro-
gance, pride, licentiousness, and covetousness. It requires
a return of good for evil, and aid for the suffering in distress,
whether friend or foe, and has established the rule that we
shall do unto others as we would have them do unto us. It
requires honesty, honor, and integrity in all the affairs of life,
and fair treatment for every one.
In every Christian land
it has swept away the harem and seraglio, made bigamy and
polygamy' crimes, and elevated woman from a condition of
semi-serfdom to be the equal of man.
It has broken the
captive's chains and mitigated the horrors of war, and there
are indications that between Christian nations at least soon
“they shall beat their swords into ploughshares and their
spears into pruning hooks.” It has abolished slavery in
every Christian land and enfranchised the slave and given
him an opportunity to develop his manhood.
It has en-
nobled labor and established the rule that the laborer is
worthy of his hire." We admire the Declaration of Inde-
pendence as a statement of principles based upon the
equality of the race, and give credit to the authors as states-
men and benefactors, not only of this nation, but mankind.
The sturdy independence of the barons who at Runnymede
compelled King John to sign Magna Charta has been the
subject of eulogy in both song and story, but the principles
of both are found in the Sermon on the Mount.
safely be said that the charter of liberty reaches back to
Christ's teaching. Christianity is woven into the web and
It may
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Indictment for “Sporting” on Sunday
woof of free government, and but for it free government
would not have existed, because no other system has been
able to check the selfishness, greed, arrogance, cruelty, and
covetousness of the race.
In People v. Ruggles, 8 Johns. (N. Y.), 294, in a prosecu-
tion for blasphemy, CH. J. Kent said : 6. There is nothing
in our manners or institutions which has prevented the ap-
plication or the necessity of this part of the common law.
We stand equally in need, now as formerly, of all that
moral discipline and of those principles of virtue which
help to bind society together. The people of this state, in
common with the people of this country, profess the general
doctrines of Christianity as the rule of their faith and prac-
tice; and to scandalize the author of these doctrines is not
only, in a religious point of view, extremely impious, but,
even in respect to the obligations due to society, is a gross
violation of decency and good order. Nothing could be
more offensive to the virtuous part of the community, or
more injurious to the tender morals of the young, than to
declare such profanity lawful. It would go to confound all
distinction between things sacred and profane, for, to use the
words of one of the greatest oracles of human wisdom, Pro-
fane scoffing doth by little and little deface the reverence
for religion,' and who adds in another place, "Two principal
causes have I ever known of atheism-curious controversies
and profane scoffing.' (Lord Bacon's Works, vol. 2, 291-
503.) Things which corrupt moral sentiment, as obscene
actions, prints, and writings, and even gross instances of
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It
seduction, have, upon the same principle, been held indict-
able, and shall we form an exception in these particulars
to the rest of the civilized world ?"
may be true that the professed followers of Christ are
not, in all cases, as unselfish as they should be, or as is their
right and privilege, but progress is being made in that di.
rection, and many examples of self-denial and unselfishness
may be found.
Let a cry of distress and a call for help come
from any part of the world by reason of some great calam-
ity and the Christian nations at once respond by liberal con-
tributions and other means to relieve the distress. Schools
and colleges are liberally provided and patronized, and
education is general. Hospitals and asylums exist on every
hand for the poor, the insane, the blind, deaf and unfortu-
nate, while punishments for offenses are graduated in pro-
portion to the offense, and a conviction can only take place
after a fair public trial upon specific charges, and death is
imposed in no case except murder or treason. No fair-
minded student of history will deny that these benefits and
liberty itself flow from Christianity. It appeals alone to
reason and asks for adoption because of its excellence. It
makes no person the keeper of another's conscience, but
requires every one to judge and act for himself. It toler-
ates the utmost freedom of opinion and worship, and seeks
to coerce no one except by the force of reason.
But while allowing the force of reason to be the sole guide
in the adoption or rejection of Christianity, its followers
have been impelled from duty to combat wrong and oppres-
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Indictment for “Sporting" on Sunday
sion on every hand. These were strongly intrenched in the
selfishness, covetousness, and other vices of the race, so that
they have yielded slowly, but they have been gradually dis-
pelled like clouds after a storm, so that the sun shines almost
clearly, and without obstruction. This result has been
brought about by almost constant effort, and has cost the
lives of hundreds of thousands of martyrs and patriots, and
it can only be preserved by constant vigilance.
As a Christian people, therefore, jealous of their liberty
and desiring to preserve the same, the state has enacted cer-
tain statutes, which, among other things, in effect, recog-
nize the fourth commandment and the Christian religion
and the binding force of the teachings of the Saviour.
Among these is the statute which prohibits sporting, hunt-
ing, etc., on Sunday.
The human body, considered as a machine, is the most
perfect mechanism of which we have any knowledge. If
properly cared for and treated, it will, in ordinary cases
where there are no hereditary defects, retain its vitality
and vigor to old age, but every movement of the body or
action of the brain involves waste of the vital force, and
this the Creator has provided shall, to a great extent, be
replenished during sleep. Hence, it is necessary to spend
about one-third of our time in sleep.. While it is true that
the reserve force.of life is so great in many persons as to
enable them to live for a time with less than the normal
amount of sleep required, yet, if continued for any, consid-
erable time, the general health will be affected, and to
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entirely abstain from sleep for a week or more, as in cases
of certain fevers, like the typhoid, almost unavoidably
results in temporary insanity, if not death. But the recu-
peration from sleep in most cases does not restore full tone
to the system, and Sunday is like an oasis in the journey of
life where each traveler may be refreshed and become more
able to continue the performance of his duties or labors.
As a natural consequence, if the vitality of the body is per-
mitted steadily to decrease without being replenished, life
will be proportionately shortened. Therefore, if a person
labors continuously at hard and exacting labor without rest
for many years, his health is liable to be impaired and he
become prematurely old. No doubt one of the objects of
the Creator in establishing the Sabbath as a day of rest was
to provide for restoring and retaining, as far as possible,
health and strength and perfect action of the body. Every
person of observation knows that the man who labors seven
days in the week continuously for any considerable length
of time lacks the spring and elasticity of action of another
of like years and naturally active habits who rests on Sun-
day. Experience has also shown that men will accomplish
more labor in a series of years by working six days in the
week than by continuous application.
Sunday is to be a day of rest. Wordly cares are to be
laid aside, and the worries of business or pleasure thrown
off. How gladly the tired laborer, workman, farmer, mer-
chant, manufacturer, attorney, and judge welcome Sunday
as a day of rest and on the succeeding Monday enter upon
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Indictment for “Sporting” on Sunday
their respective labors with renewed strength and vigor.
The idler and trifler may complain of the loss of time from
resting on Sunday ; but the active, intelligent worker
knows that thereby he has increased his capital stock of
health and chances of longevity. Christ sought to apply
the Sabbath to its appropriate use. The Jewish religion at
that time consisted largely of outward ceremonies which
were performed with a rigor never intended by the author
of the Mosaic law. It is evident that great reliance was
placed upon these outward ceremonies. Christ, however,
while not condemning many of these ceremonies, intended
to show that the mere observance of these was not sufficient;
that the Sabbath was made for man, and not man for the
Sabbath ; and in effect, therefore, that works of charity,
mercy and necessity not only could, but if necessary should,
be performed on that day. He recognized the Sabbath,
however, as a day of rest set apart by the Creator. After
His death and resurrection, His disciples, to commemorate
that event, changed the day to the first day of the week, and
that day is now observed by the great body of His followers
throughout the world, and is recognized by both the com-
mon and statute law.
In this state the right of every one to worship God ac-
cording to the dictates of his own judgment and conscience
is recognized, and hence permits those who prefer to keep
the seventh in place of the first day of the week to do so.
The law, both human and divine, being thus in favor of
abstaining from sporting, etc., on Sunday, is a reasonable
6
140
CURIOUS CASES
Indictment for “Sporting” on Sunday
requirement and should be enforced. The deliberate viola-
tion of such a law, there is reason to believe in many cases,
is but the commencement of a series of offences that lead to
infamy and ruin ; and in any event the influence upon the
participants themselves has a tendency to break down the
moral sense and make them less worthy citizens. The state
has an interest in their welfare and may prevent their vio-
lation of the law. The state, in order to prevent vice and
inmorality, may punish licentiousness, gambling of all
kinds, the keeping of lotteries, enticing minors to gamble,
or to permit one under eighteen years of age to remain in a
billiard room; to punish publishing, keeping, selling, or
giving away any obscene, indecent, or lascivious paper,
book or picture, and also punish any person who shall lend
or show to any minor child any such paper, publication, or
picture, etc. The law also punishes the disturber of a
religious meeting, school meeting, election, etc. These
cases show the importance felt by the legislature of evils of
the kind named, and others, by means of which, in addition
to wrongs inflicted on the persons injured, a spirit of insub-
ordination is created and fostered which incites to evil and
tends to subvert the just and equal rights of some, or all.
In addition to this, every person has a right to the quiet
and peace of a day of rest. He has also a right to the en-
forcement of the law so that the evil example of a defiance
of the law shall not be set before his children. The state
has an interest in their welfare also, in order that they may
become useful citizens and worthy and honorable members
CURIOUS CASES
141
Indictment for “Sporting" on Sunday
of society. The fact that the defendants were some distance
away from the residence of any person can make no differ-
ence.
It did not change the nature of the offence nor ex-
cuse the act. It was a violation of the law just the same.
The question here presented was before the Kansas City
court of appeals in State v. Williams, 35 Mo. App. 541,
and it was held the parties were liable. Afterwards the
question of the validity of a contract arose. In St. Louis,
etc., Ass'n v. Delano, 37 Id. 284, in an action upon a con-
tract, it was held that under the Missouri statute athletic
games and sports on Sunday were not prohibited. The
case was then taken to the supreme court of that state,
where the judgment was affirmed. (St. Louis, etc., Ass'n
v. Delano, 18 S. W. Rep. (Mo.), 1101.) An examination
of the statute shows that it is not as broad as ours. In
addition to this it is evident the question of the validity of
the contract was not raised by the pleadings and therefore
was not in issue. Under our statute, however, sporting is
clearly prohibited and the party guilty thereof is liable to
the punishment provided by statute.
It is unnecessary to consider the other branch of the
case.
The district court and also the county court erred in
holding that the defendants were not liable, and dismissing
the action.
Exceptions sustained.
The other judges concurred.
142
CURIOUS CASES
Deceit-Religious Communism
JESSE M. ELLIS, APPELLEE,
V.
John B. NEWBROUGH and A. M. HOWLAND, APPELLANTS.
Supreme Court of New Mexico, 1891.
[6 N. Mex. 181.]
Action for Deceit-Sufficiency of Complaint-Evidence-
Religious Communism.
Appeal, from a judgment for plaintiff, from the Third
Judicial District Court, Dona Ana County. Judgment
reversed.
S. B. Newcomb, for appellants.
W. C. Bowinan, for appellee.
FREEMAN, J. This is a most extraordinary proceeding.
So far as we have been able to extend our researches, it is
without a precedent. It comes to us by appeal from a
judgment of the district court for Dona Ana county, refus-
ing to set aside a verdict of a jury in favor of the appellee.
It is an action of trespass on the case. The declaration sets
out substantially the following cause of action, viz. : That,
at the time of the committing of the grievances that the
plaintiff complains of, the defendants were engaged « in
organizing and establishing a community” called “ Faith-
ists,” and, being so engaged, the defendants, heretofore,
CURIOUS CASES
143
1
Deceit-Religious Communism
to wit, about the years 1882, 1883, and 1884, wrongfully
and corruptly contriving and intending to deceive and injure
the plaintiff, issued and published certain false, fraudulent,
and deceitful writings, falsely and fraudulently and deceit-
fully pretending in said writings to describe the true nature
and objects of said community, and to set forth the true
state of facts in connection with said enterprise, and thereby
to induce the plaintiff to believe that said objects and pur-
poses of the defendants, and said facts in connection with
said enterprise, were far different from what they really
were, and from what said defendants really intended they
should be. The declaration then proceeds to set out what
it is alleged the defendants held out the enterprise to be,
viz. : That the property of the community was to be held in
common,-no one individual to have any separate title and
property; that said community was to be conducted on
principles of brotherly love, without master or leader to
exercise control over the members ; that all the members
were to enjoy equally a permanent place in the community,
with no authority on the part of any member or members
to exclude another ; that said community was laid on prin-
ciples of sound morality and purity of life; that the plain-
tiff, misled by these pretenses, was induced to become a
member of the community ; "that he did then and there
enter into said community with defendants ;
did
consecrate his life, his labor, and all his worldly effects and
prospects, together with those of his two children, placing all
good faith and confidence in said community; whereas, in
*
144
CURIOUS CASES
Deceit-Religious Communism
19
truth and in fact, said defendants knew at the time of making
said false statements and pretenses that the property of the
said community home would not be held in common by the
members of said community, but that the title thereto was
then and would in future be vested by deed in one individ-
ual, to wit. the defendant Andrew M. Howland ; and,
whereas, in truth and in fact, defendants well knew, at the
time of making said false statements and misrepresentations,
that said community would not be conducted on principles
of equality and kindness, without a master." The declara-
tion then proceeds to charge defendant Newbrough with acts
of tyranny, and also with living a life of immorality, etc.;
that, by reason of the false representations aforesaid, the
plaintiff was induced to become a member of the community;
and that he remained a member of such community from
October, 1884, until April, 1886, both he and his two
children working for the improvement of the home; "and
the plaintiff saith that the defendants refused and still refuse
to pay plaintiff for his said work and labor, or any part
thereof; by reason whereof plaintiff saith that he has sus-
tained great damage in loss of time and labor and opportu-
nity, and in the education of his children, and that he has
suffered great anguish of mind in consequence of the dis-
honor and humiliation brought upon himself and his children
by reason of his connection with said defendants in said
community, to the damage of the plaintiff in the sum of
$10,000."
To this unique and weird complaint a demurrer was inter-
CURIOUS CASES
145
Deceit-Religious Communism
*
posed. The second and fourth grounds of demurrer are as
follows: “(2) Because there are no sufficient facts alleged
in plaintiff's said declaration to charge these defendants, or
either of them, with any liability to plaintiff by reason of the
matters by plaintiff in his said declaration complained of.
(4) Because the said declaration is duplicitous,
in this : that plaintiff in his said declaration has attempted
to plead more than one, and various and distinct and differ-
ent causes of action in one and the same count.
We think the court erred in overruling this demurrer.
The most that can be gathered from the, declaration is that
the defendants had conceived some Utopian scheme for the
amelioration of all the ills, both temporal and spiritual, to
which human flesh and „soul are heir; had located their new
Arcadia near the shores of the Rio Grande, in the county of
Dona Ana, in the valley of the Mesilla ; had christened this
new-found Vale of Tempe the Land of Shalam"; had
sent forth their siren notes, which, sweeter and more
ductive than the music that led the intrepid Odysseus to the
Isle of Calypso, reached the ears of the plaintiff at his far-
off home in Georgia, and induced him to "consecrate bis
life and labors, and all his worldly effects,” etc., to this new
gospel of Oahspe. This much is gathered from the plead-
ings. The evidence adduced in support of the plaintiff's
demand is as startling as the declaration is unique. What
the declaration leaves as uncertain, the proof makes incom
prehensible. If the court below had been invested with
spiritual jurisdiction, it might have been enabled, through
se-
CC-10
146
CURIOUS CASES
Deceit-Religious Communism
ance.
an inspired interpreter, to submit to a mortal jury the
precise character of plaintiff's demand, We think an ex-
amination of the record before us will amply support these
conclusions. The first and principal witness offered by plain-
tiff was himself. He sets out in full the nature of his griev-
He admits, on page 59 of the record, that he made
no sacrifice of property to become a member of the organi-
zation, but that he threw up a situation" in which he
could make a good living. What induced him to make this
sacrifice is set out in this testimony. First in order came
some specimens of literature published by the society, com-
munity, order, church, or " Faithists," as they were pleased
to call themselves. Over the objections of the defendants,
two books were allowed to go to the jury. The first and
larger volume is entitled as follows: "Oahspe : A New
Bible in the words of Jehovib and his Angel Embassadors.
A sacred history of the dominions of the higher and lower
heavens on the earth for the past twenty-four thousand years,
together with a synopsis of the cosmogony of the universe ;
the creation of planets ; the creation of man; the unseen
worlds ; the labor and glory of gods and goddesses in the
ethereal beavens. With the new commandments of Jehovib
to man of the present day. With revelations from the sec-
ond resurrection, formed in words in the thirty-third year
of the Kosmon era. In the preface to the book it is said
of it that "it blows nobody's horn ; it makes no leader."
It is further stated : "When a book gives us information
of things we know not of, it should also give us a method of
CURIOUS CASES
147
Deceit-Religious Communism
proving that information true. This book covers that
ground.” The inspired author of this new revelation was
doubtless somewhat familiar with the writings of his early
predecessors. He had read of the jealousies that had arisen
between Paul and Barnabas so that he takes occasion in his
preface to assure his disciples that these gospels are not
intended to establish the fame of any one,-“ it blows
nobody's horn." And again having seen innumerable sects
spring up as a result of a misconstruction, or rather of a
diversified construction, of the earlier gospels, we are fur-
nished with the consoling assurance that this book presents
the “method of proving that information to be true.”
With this comfortable and comforting assurance, the witness
opens this volume of light, and bids us satisfy the hungry
longing of our restless spirits by feasting our eyes on its
simple truths. This new gospel, in order to prepare our
minds for the acceptance and enjoyment of its simple truths,
proceeds to dispel the mists of superstition that for nearly
two thousand years have obscured our spiritual vision. It
gives a plain and unvarnished story of the origin of the
Christian's Bible. It is this : That once upon a time the
world was ruled by a triune composed of Brahma and
Buddha and one Looeamong ; that the devil, entering into
the presence of Looeamong, tempted him by showing the
great power of Buddha and Brahma, and induced him
(Looeamong) to take upon himself the name Kriste, so that
it came to pass that the followers of Kriste were called
Kristeyans; that Looeamong or Kriste, through his com-
148
CURIOUS CASES
Deceit-Religious Communism
manding general, Gabriel, captured the opposing gods, to-
gether with their entire command of 7,600,000 angels and
cast them into hell, where there were already more than
10,000,000 who were in chaos and madness. This Kriste
afterwards assembled a number of his men to adopt a Code
At this meeting it is said there were produced “two thou-
sand two hundred and thirty-one books and legendary tales
of gods and saviors and great men,” etc. This council
was in session four years and seven months, “and at the end
of that time there had been selected and combined much
that was good and great, and worded so as to be well re-
membered of mortals." Plaintiff's Exhibit A, page 733,
verse 55. The council, or "convention,” as it would now
be termed, having adopted a platform--that is, agreed upon
a Bible—then proceeded to ballot for a god. “As yet no god
had been selected by the council, and so they balloted in
order to determine that matter. Plaintiff's Exhibit A,
page 733, verse 36. On that first ballot the record informs
us there were thirty-seven candidates, naming them. This
list includes the names of such well known personages as
Vulcan, Jupiter, Minerva. Kriste stood twenty-second
on this ballot. “Besides these, there were twenty-two
other gods and goddesses who received a small number of
votes each."
Plaintiff's Exhibit A, page 733, verse 37.
The names of these candidates are not given, and therefore
there is nothing in the record to support the contention of the
counsel that the list includes the names of Bob Ingersoll and
Phoebe Coussins. The record tells us that at the end of
CURIOUS CASES
149
Deceit-Religious Communism
seven days' balloting “the number of gods was reduced to
twenty-seven.' And so the convention or council remained
in session 6 for one year and five months, the balloting
lasted, and at the end of that time the ballot rested nearly
equal on five gods, namely, Jove, Kriste, Mars, Crite, and
Siva”; and thus the balloting stood for seven weeks. At
this point Hataus, who was the chief spokesman for Kriste,
proposed to leave the matter of a selection to the angels.
The convention, worn out with speech making and balloting,
readily accepted this plan. Kriste, who, under his former
name of Looeamong, still retained command of the angels
(for he had prudently declined to surrender one position
until he had been elected to the other), together with his
hosts, gave a sign in fire of a cross smeared with blood;
whereupon he was declared elected, and on motion his
selection was made unanimous. Plaintiff's Exbibit A, page
733.
We think this part of the exhibit ought to have been
excluded from the jury, because it is an attack in a collat-
eral way on the title of this man Looeamong, who is not a
party to this proceeding, showing that he had not only
packed the convention (council) with his friends, but had
surrounded the place of meeting with his hosts "a thousand
angels deep on every side,” thus violating that principle of
our laws which forbids the use of troops at the polls.
After thus endeavoring to demonstrate that Christianity
had its origin in fraud, and thus to prepare the minds of its
disciples for the new gospel, the Oahspe proceeds to unfold
the beauties and the simplicity of the new faith. Passing
150
CURIOUS CASES
Deceit-Religious Communism
over many interesting features contained in this exhibit,
such as the birth of Confucius, the rise and fall of Moham-
medanism, the discovery of America by Columbus, etc., the
record brings us to the discovery and settlement of the Land
of Shalam, which forms the subject of this controversy. As
already seen, the record shows that a tract of land in the
county of Dona Ana was selected. This was bought and
paid for by the appellant Howland, and conveyed in trust for
the use of the society. Among other conditions attached to
the trust, one was to the effect that "no meat, nor fish, nor
butter, nor eggs, nor cheese, nor any animal food, save honey,
shall ever be used upon any part of the premises, except that
milk may be given to children under five years old.” Tranh
script of Record, page 167. It is admitted that this, among
many other conditions of the trust, was violated ; so that on
the thirteenth day of March, 1886, the trustees, among
whom was the appellee, made a reconveyance of the property
to the said Howland. There are many other interesting fea-
tures presented by this record. Much proof was taken as to
the conduct of the society or community which was incorpo-
rated under the name and style of the “ First Church of the
Tae.” Record, page 180. They organized also a general
co-operative system ; established what they called the “Faith-
ist Country Store” (Record, page 87)—an institution, as we
are advised, that did well as long as it kept on hand a good
stock of faith. There was an outer and an inner council,
and contributions were received, to be devoted to the care
and education of orphan children. It was charged in the
CURIOUS CASES
151
Deceit-Religious Communism
declaration that the members did not practice that degree of
morality which was set forth in their circular, and proof
was introduced with a view to show the questionable relations
existing between one of the promoters of the scheme and
one Miss Vandewater, alias Miss Sweet; but as the plaintiff
remained on the premises eighteen months, and as he assigned
no such reason for leaving (page 88), and as he made no
demand at the time for compensation for work and labor
done, nor for his injured sense of morality, we think this is
an afterthought. This society of Faithists, while commu-
nistic in theory, agrarian in habits, and vegetarian in diet, was
not altogether void of sentimentality nor indifferent to the
Muses. One of the fair members of the society, inspired by
the poetic surroundings of this fair Land of Shalam, com-
posed some beautiful lines that are incorporated into the
record on page 62. They are as follows:
* For all things are held in common,
Hooray! Hooray!
Thus everything belongs to all,
And peace abounds in Shalam;
Away, away, away out west in Shalam ! "
The authoress of these beautiful and touching lines is
Nellie Jones, a member of the society. She is not made a
party to this action, however, and therefore no judgment
can be rendered against her. The lines were, by direction
of one of appellants, Dr. Newbrough, sung to the air of
Dixie.
We cannot give our assent, however, to the views
of the able counsel for the appellee that causing these lines
to be sung to the air or "tune of Dixie” was of itself such
152
CURIOUS CASES
Deceit-Religious Communism
an act of disloyalty as to entitle the plaintiff to a verdict.
The writer of this opinion, like the appellee, is himself a
native of the land of Dixie, that
os Fair land of flowers,
And flowery land of the fair."
-And, as he reads these lines of Nellie Jones, memory car-
ries him back to the days of his boyhood, and to the land of
the “magnolia and the mocking bird."
0, glorious Land of Shalam! O, beautiful Church of Tae !
When the appellants, the appellee, Ada Sweet, and Nellie
Jones, aforesaid; formed their inner circle, and like the morn-
ing stars sang together, it matters not whether they kept
step to the martial strains of Dixie or declined their voices
to the softer melody of Little Annie Rooney, the appellee
became forever estopped from setting up a claim for work
and labor done ; nor can he be heard to say that she has
suffered great anguish of mind in consequence of the dis-
honor and humiliation brought on himself and children by
reason of his connection with said defendants' community.”
His joining in the exercises aforesaid constitutes a clear caso
of estoppel in Tae.
There is another reason, however, why this act of disloy-
alty on the part of the appellants should not prejudice them ;
and that is that the plaintiff himself joined in the chorus when
the "tune of Dixie” was sung. On page 109 of the Record
appears the following, the plaintiff himself being upon the
witness stand : “Question. You all sang this with a good
deal of lustiness? Answer. No, sir ; we sang it to the tune
CURIOUS CASES
153
Deceit-Religious Communism
of Dixie. Q. All joined in the chorus ? A. Yes, sir; all
that could.” Pretermitting any expression of opinion as to
whether it would, under any circumstances, be competent to
allege and prove in this court that the ode to Shalam had
been sung to the tune of Dixie, it is in proof, as we have
seen, that the parties were in pari delicto, and therefore
neither can avail himself of the other's wrong.
It is insisted, however, that the appellee was deceived by
the appellants ; that they did not carry out the purposes set
'forth in their circular and manifestoes ; and that they did
not live up to the doctrines contained in their Bible. The
plaintiff admits that he had read their books thoroughly
before he joined them. He belonged to the inner circle;
was one of the trustees ; joined in the worship; sang in the
choir; and listened to the soul-enrapturing voice of Nellie
Jones. Moreover, he had entered into the Holy Covenant.
That covenant is found in chapter 5 of the Book of Jehovih's
Kingdom on Earth. Plaintiff's Exhibit A, page 833. The
twenty-fourth verse of the covenant is as follows: “I cove-
nanted unto Thee, Jehovih, that, since all things are thine,
I will not own nor possess, exclusively unto myself, anything
under the sun, which may be intrusted to me, which any
other person or persons may covet or desire, or stand in
need of." Under the terms of this covenant, he cannot
maintain his suit, for the defendants insist, and the proof is
clear, that they s6 covet or desire or stand in need of” the
$10,000 for which the plaintiff sues. This is a complete
answer to so much of plaintiff's cause of action as is laid in
154
CURIOUS CASES
Deceit-Religious Communism
assumpsit, just as his participation in the church exercises,
music, etc., was an estoppel to his right to set up sanguish
of mind”, and ruined reputation and other matters founded
in tort.
It is insisted, however, that the appellee has a right to
recover for a deceit practiced upon him ; that he was misled
by the Oahspe and other writings of the society. On the
contrary, the defendants maintain that the appellee is a man
who can read, and who has ordinary intelligence, and this
the appellee admits. This admission precludes any inquiry
as to whether appellee's connection with the Faithists, their
inner and outer circles, their music and other mystic cere-
monies, their general warehouse and co-operative store, and
other communistic theories and practices, gave evidence of
such imbecility as would entitle him to maintain the suit.
Admitting, therefore, that the appellee was a man of ordi-
nary intelligence, we find nothing in the exhibits which in
our opinion was calculated to mislead him. True, the
Oahspe, like other inspired writings, such as the Koran, Bun-
yan's Pilgrim's Progress, and other works of like character,
deals largely in figures and tropes and allegories. But,
read in the light of modern sciences they are beautiful in
their very simplicity. We would be glad to embody the
whole of plaintiff's Exhibit A, but must confine ourselves to
such citations as will, in our opinion, be sufficient to sustain
this view. A careful examination of appellee's Exhibit A,
the New Bible of Oahspe, leads us to the inevitable conclu-
sion that its splendid exbibitions of word painting were not
CURIOUS CASES
155
Deceit-Religious Communism
confined to the Mesilla valley, although it is in proof, and,
indeed, is not denied, that a much larger volume might be
written, and yet not exhaust the subject of that valley's
many attractions. But, while there are many descriptive
features in the record that unquestionably apply to the section
in controversy, there are others that bear on their face a
very different application. As a specimen of the former,
we cite the following, found on page 370 of the Exhibit
A: " Next south lay the kingdom of Himalawowoagana-
papa, rich in legends of the people who lived here before
the flood; a kingdom of seventy cities and six great canals,
coursing east and west, and north and south, from the
Ghiee mountain in the east to the West mountain, the
Yublabahcolaesavaganawakka, the place of the king of bears,
the EEughehabakax (grizzly). And to the south, to the
middle kingdom, on the deserts of Geobiathhaganegane-
wohwoh, where the rivers empty not into the sea, but sink
into the sand, the Sonogallakaxkax, creating prickly Thuaz-
hoogallakhoomma, shaped like a pear. As an illustration
of that portion of the exhibit which, in our opinion, was
not designed as a description of the Land of Shalam, we
cite the following, found on the same page of the exhibit :
“ In the high north lay the kingdom of Olegalla, the land of
giants, the place of yellow rocks and high spouting waters.
Olegalla it was who gave away his kingdom, the great city
of Powafuchswowitchabavagganeabba, with the four and
twenty tributary cities spread along the valley of Anemoo-
sagoochakakfuela. Gave his kingdom to his queen, Minne-
156
CURIOUS CASES
Deceit-Religious Communism
1
ganewashaka, with the yellow hair, long hanging down.”
This unquestionably refers to Chicago. The author, after
giving a general description of many lands and cities, leads
bis 60
deciples” to some high point, most probably Sierra
Blanca (from whose snow-covered summit the summer
breezes fall like a gentle cascade over the valley of the Pecos),
and spreads out before them a vast system of irrigation.
The following is taken from the record, and will be found
commencing on page 369 of appellee's Exhibit A: “Besides
the canals mentioned, there were seven other great canals,
named after the kings who built them, and they extended
across the plains in many directions, but chiefly east and
Speaking of the vast canals that formed a network
of the beautiful valley, the record says:
Betwixt the
great kings and their great capitals were a thousand canals,
crossing the country in every way, from east to west and
from north to south, so that the seas of the north were con-
nected with the seas of the south. In kanoos the people
traveled, and carried the productions of the land in every
west."
way."
We e are of the opinion that a proper cause of action was
not set out in the declaration, and that there was no evi-
dence to sustain the verdict of the jury awarding tbe plain-
tiff $1,500; that the refusal of the trial judge to set aside
the verdict was crror ; and therefore the judgment of the
district court should be reversed.
O'BRIEN, C. J., and LEE and SEEDS, JJ., concur in the
result.
CURIOUS CASES
157
Bastardy-White Man or Negro as Father
THE COMMISSIONERS OF THE ALMSHOUSE
V.
ALEXANDER WHISTELO, (A'BLACK MAN.)
New York Court of General Sessions, 1808.
[3 Wheel. Crim. Cas. 194.]
Bastardy-Question whether Negro or White Man Was
Father-Prenatal Conditions-Laban's Lambs.
Present, Clinton, Mayor.
Van Wyck, Recorder.
Mott, Bingham and Drake, Aldermen.
Vanhook, counsel for the Commissioners of the Almshouse,
made a short opening of the case. He said the points upon
which it had been drawn into doubt, and which occasioned
the reference to the decision of this court, were two :
First, whether the witness was to be believed ; secondly,
whether the fact she swore to was possible. He observed
that although many witnesses of learning and experience in
such subjects had been called to give their opinions for the
satisfaction of the court, yet he conceived it to be a matter
on which technical knowledge could not throw much light ;
and that each of the members who composed the court were
as well able to form a correct opinion as any professional
man whatever. The woman had already sworn positively ;
158
CURIOUS CASES
Bastardy-White Man or Negro as Father
and evidence of opinion that went to contradict a positive
oath should be received with many grains of caution—the
more so, as those opinions would probably be opposed by
others of very great authority. But he thought, unless the
woman could be otherwise discredited, such opinions, opposed
to positive testimony, were of little weight, and ought to fall
to the ground.
Lucy Williams was then called and sworn ;—the child and
the reputed father, Whistelo, were also produced.
Question, by Vanhooh. Do you know Alexander Whis-
telo?
Answer. Yes, .
Q. Tell the court whether he visited you; at what time;
and what the result was?
A. It will be two years this August since the time I first
saw him ; he then told me he was a married man divorced
from his wife, and never intended to live with her again.
Q. Did he say he wished to marry you?
A. Yes; both before he went to sea and after he came
back. He told others so also; he told Mrs. Hoffman, and
you consent to marry him, or did you refuse?
A. I refused; for I did not choose to have him—I did
not love him. He then carried me to a bad house, and locked
the door-I scuffled with him a long time, but at last he
worried me out. He went after that to sea, and after he
came back I told him I was with child.
Q. When was the child born?
A. The 23d of January, 1807.
Q. Did
CURIOUS CASES
159
Bastardy-White Man or Negro as Father
Q. What was the day on which the affair you have related
took place?
A. The 13th of April, 1806, on Sunday evening.
Whistelo first took the child to himself; but afterwards,
when they put it into his head that it was not his, he refused
to maintain it.
Cross-examined by Morton.
Q. Did he ever say it was his child ?
A. No; but he took it at first.
Q. You say you became acquainted with him in August,
1806, how do you know the child was got on the 13th of
April—how long after that was it till Whistelo went to sea ?
A. On the 1st of May following.
Q. When did you next see him?
A. Not till the 4th of August following.
Q. When did you first perceive that you was pregnant?
A. Before his return.
Q. How did you know it?
A. By feeling life.
Q. When did you first feel that symptom
A. Near two months before he returned.
Q. Then it was one month after he went away?
A. Yes.
Q. Did he not go a third time to sea ?
A. Yes, in October : and he was gone for the fourth time
about eight days when the child was born.
Q. You went to a bad house—how do you know it was a
bad house where he took you?
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Bastardy-White Man or Negro as Father
A. Because no other would take in a man with a strange
woman in that manner.
Q. Then you went to a bad house knowingly with him?
A. I thought he was taking me to his cousin Mrs.
Grough's.
Q. Were you always constant to him in his absence
;
were you never unfaithful to him when he was away?
A. I never did when he was at sea.
Q. Had you not a white man in bed with you?
A. I had a scuffle with one once I knocked off his hat.
The witness, being pressed by the examination of Mr.
Morton, at length confessed that such a person had been in
bed with her ; that he had turned the black man out with a
pistol, and taken his place—that they had a connexion ; but
she said she was sure they had made no young one, for they
fit (fought) all the while. She said if the clerk had been at
home he would not have used her so.
Q. Why, did you cry out?
A. No, I did not hallo.
Q. Then what did you do to prevent him from executing
his purpose ?
A. I bid him be quiet.
.Q. Is the child a boy or a girl ?
A. A girl.
Q. Of what color were your parents ?
A. My father was white; he was a Scotchman, a servant ;
and my mother was a dark sambo.
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Bastardy-White Man or Negro as Father
Q. How did the scufiling end—you understand memdid,
you part friends with the white man?
A. He owes me four dollars which he would not pay.
Q. Was that your charge ?
A. He owes it to me for wages.
Q. But you took it out in scufiling ?
Dr. Kissam sworn.--After examining those parts of the
child which particularly indicate the color of the race, said,
he should not suppose, judging from the general rules of
experience, that it was the child of that black man ; but
on the contrary, of one of lighter complexion than the
mother. Black persons are almost white at their birth, but
change soon after.
Question, by Sampson. How soon is the change generally
complete, and their true color decided ?
A. Generally about eight or nine months. Within the
year it is complete.
Dr. Hosack sworn.-From the appearance of the father,
the mother and the child, and the laws of nature which he
had uniformly observed in such cases, he certainly would not
take it for the child of a black man. But would say, it was
that of a white one, or at most of a very fair mulatto.
Cross-examined by Vanhook.
Q. Has it not some of the features of a negro?
A. If its features, in my judgment, were those of a negro,
I should not have given the opinion I did.
Q. Dr. Hosack, might it not be possible, judging after
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Bastardy-White Man or Negro as Father
your reading or experience in such matters, that in the early
stage of pregnancy the agitation of the mother's mind, irri-
tation, terror or surprise, might alter in some degree the
nature and appearance of the child ?
A. I am not of that opinion.
Question by Morton. What is the period at which a
mother becomes sensible of her pregnancy (as the witness
calls it), by feeling life?
A. From three to four months ; but four more com-
monly than three—at three it very rarely happens.
Several questions were put to this witness by Mr. Nitchie
touching the albinos, their livid color, and symptoms of
disease and debility, with a view to obviate and attempt to
account for the fairness of this child by such analogy. The
witness answered that their entire appearance showed them
to be an exception to the ordinary laws of generation.
Dr. Post sworn.-From the appearance of the child, he
would suppose it the offspring of a white man and a mulatto
woman, or of two light-colored persons. He could discern
none of the features of a negro in it. There were instances
of black men with black women producing children as fair
as this ; but they were exceptions to the general laws of
nature. His opinion was, that this was not the child of
Whistelo. What confirmed him most of all, was the color
and straightness of the hair. Being questioned as to the
albinos, answered he had never seen any of them, but from
what he has learned from books and conversation, is con-
vinced that there is no analogy.
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Bastardy-White Man or Negro as Father
man.
Dr. Seaman sworn.-I should not believe the negro to be
the father of that child.
Dr. Tillary sworn.—Was fully of opinion with the other
gentlemen—could not conceive this the child of a black
He had no principles of physiology nor philosophical
data to lay down touching ticks of that sort.
Dr. Moore and Dr. Anthon declared themselves of the
same opinion.
Dr. Secor saw the child in question at its birth; it was
then quite white; from its appearance at that time and
now, he is of opinion that it is the child of a white man.
Dr. Williamson said he had seen and observed both the
man and the woman. If this was the child of that woman
by that man, it is a prodigy; and he did not believe that
prodigies happened, though daily experience unfortunately
proved that perjuries did.
Dr. Osborne, who from a long residence to the south-
ward had had the most ample means of observing all the
varieties that these mixtures of race occasion; but had never
seen any fact that could warrant him to suppose this the
child of a black man. He had seen albinos, but this child
bore no resemblance to them. They were always distin-
guishable by the red dotted iris, and the tremulous move-
ment of the eyes. Never had seen the produce of African
parents with hair such as this. He had seen some with fair
or yellowish hair, but that was peculiar.
Mr. Furman, keeper of the Almshouse, testifies that he
had received an order to take the child and place it on the
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Bastardy-White Man or Negro as Father
books. The black man, Whistelo, took the child, but said
at the same time it was not his.
Dr. De Witt said he should have no doubt that it was the
child of a white man.
Adam Ray, a black, knew of Whistelo having taken the
child to board, and of the mother having it carried away.
He asked her reasons for taking it back; and her answer
was, that since he would not own the child at first, he should
not have it now, for it was not his.
Nancy Cooke lived together with the witness six weeks—
could not say as to her character but saw a very light man
in bed with her. There were two beds in the room ; Lucy
Williams had one and witness the other. Witness fell asleep.
Man lay with Lucy all night.
At the request of the counsel for the Commissioners of
the Almshouse, the cause was adjourned till Saturday, as he
professed the hope of procuring by that time other witnesses,
whose testimony would tend to throw a different light upon
the fact, and which he conceived altogether material and
important to the ascertainment of the truth.
After some opposition on the part of Mr. Morton, who
said he was under the necessity of going out of town, the
cause was adjourned ; and Mr. Sampson, who was present
in court, was engaged to assist Mr. Nitchie in the farther
investigation of evidence, and to sum up on behalf of the
defendant.
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Bastardy-White Man or Negro as Father
Saturday, August 20.
Present-The Mayor, Recorder, and Aldermen Mott,
Bingham and Drake.
Dr. Mitchell sworn.--The woman, the child and the
defendant produced. The witness was first examined in
chief by Mr. Vanhook on the part of the Commissioners of
the Almshouse.
Counsel. From your observations upon those persons,
Dr. Mitchill, and from what you know of this case, be so
good to state your belief, whether that child is or is not the
child of that black man?
Witness. It is then expected that I should give an opinion
touching the parentage of the child ?
Counsel. Yes, sir; whether from all the circumstances
you believe that black man to be its father.
Witness. It may be expected, perhaps, that I should give
my reasons for my opinion, that it may be judged upon its
own merits?
Counsel. If you please, doctor. The more so, as the
counsel on the other side will probably inquire into them.
Witness. There are three general rules, as far as I under-
stand, touching the propagation of men between the white
and black race. First, when the connexion has been be-
tween white and black, the offspring is a mulatto-second,
when the child is produced from an intercourse between a
white man and a mulatto, it is then called a quadroon-
thirdly, when it is between a black and a mulatto, it is called
a sambo.
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Bastardy-White Man or Negro as Father
ܪ
In the French and Spanish islands there are more minute
distinctions ; but for more certain information, witness
referred the court to Bryan Edwards' History of the British
Colonies in the West Indies, by which any errors of his
memory might be corrected. The principle, however, is,
that the shade is between the two in equal degree; and it is
told in a way that meets my assent, that when a rapid succes-
sion of intercourse has taken place between a woman and
two men of different colors, twins have been produced of the
opposite colors.
Morton. What are we to understand, doctor, by rapid
succession?
A. When a white man succeeds to a black, or a black to
a white, almost instantaneously.
Q. Do not accidental causes sometimes operate a change
on the feetus at or after the time of conception?
A. Yes, sir.
Q. Will you be good enough to describe them?
A. The changes which take place in the human form dur-
ing the time of conception are reducible to three heads,
according to the observations of D’Azara in his history of
the quadrupedes of Paragua. First, when there is an alter-
ation of complexion so as to render the skin of a black,
white or other variety of color. Second, when the cause
or agency manifests its power by frizzling or curling the
hair or feathers, this is termed crispation. Third, when
the same constitutional change shows itself by a loss of hair
or plumage so as to leave a naked skin, it is called peeling.
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Bastardy-White Man or Negro as Father
i
1
Of these three effects, the last occurs but seldom; the
second pretty often; and the first is very frequent indeed,
showing that it is a much more difficult process for nature to
eradicate hair or feathers than to curl them, and more diffi-
cult to twist than to change their color. If it be of any im-
portance to investigate minutely these points, they will be
found at length in the work I have mentioned. These acci-
dents, says that author, may befall every man, every quad-
rupede and every bird, to a greater degree in some than in
others, and become permanent in the race by propagation
from one generation to another without end.
With this view, it would appear that with respect to
the rule we first laid down touching the color of men, there
are a vast number of exceptions ; which exceptions I shall
class under the three last mentioned heads. It is only by
comparing those facts with the case before the court, and
applying the observations which they furnish, that we can
pronounce an opinion; for as to reasoning a priori upon
such a subject, neither the court nor I, nor any other wit-
ness that can be brought, can know anything of the matter.
The most that I can do is to state facts that I know, and
from them give my opinion upon the probability of the case.
The woman here swears the black man to be the father of
the child,
Morton. Doctor, I am sorry to interrupt you ; but it is
necessary I sbould remind you that the witnesses are only
called to give testimony, not to observe upon it—that will
be the duty of the counsel in summing up.
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Bastardy-White Man or Negro as Father
Witness. In estimating this case according to the excep-
tions laid down, and which I have observed are so frequent,
and often so widely deviating from the general rule, I con-
ceive that it violates no probability to suppose this child
the offspring of the connexion between the woman and the
black man.
The mother, who knows most of the matter,
has deposed to that fact, and it is not in itself incredible.
I have, therefore, no hesitation to say, according to the best
of my judgment, as the evidence of the woman is positive
and the fact she swears to violates no probability, I should,
were I in the place of the court, confirm the rule.
Morton. Doctor, you must excuse me--before, you
seemed inclined to do the office of counsel, and now that of
the judge.
Cross-examination.
Question by Morton. This case, you say, doctor, violates
no probability. Are we to understand from that, that it is
a possible case or a probable one l-or let me ask you, ac-
cording to your own principles, which is most probable,
leaving the woman's evidence out of the question, that this
should be the child of a black or white man?
A. Prima facie I should say it was a case under the general
rule. If I did not adhere to the rule, it would be on account
of the circumstances attending the case, which I take to be
an exception; for if I have no knowledge of any matters
which go positively to contradict the woman's testimony, I
should naturally lean towards it.
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Bastardy-White Man or Negro.as Father
Q. Do you consider this case as having any affinity with
what is called albinage ?
A. I have not much experience on the subject of albinos,
as my residence has been chiefly in New York, where such
accidents rarely occur.
But I have known instances of
negroes turning white where there was no symptom of
disease or sickness.
Morton. Have the goodness, doctor, to relate them.
The witness then related the case of Henry Moss. The
Reporter having since obtained the original note of that case
in the witness's handwriting, for more certainty, thinks it
proper to insert it literally.
1
Moss's CASE.
- Some time in the year 1792, Henry Moss, who was
born of black parents, and as black himself as negroes gen-
erally are, began to grow white. The first whiteness began
about the nails of the fingers ; but in the course of the change
none of them have fallen off, except those of the little toes.
There has been no scabbiness, ulceration or falling off of the
cuticle—nor could this covering be removed by rubbing,
wasbing or chafing. The whiteness has spread over the
whole body, neck, shoulders and arms, and down the thighs
and legs. Some brownness remains in his face, hands and
feet. He thinks his sense of touch more acute than it used
to be ; and his feelings so sharpened, that he is more readily
affected by the solar warmth than he formerly was, being
able, while he was black, to support great degrees of sunshin-
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CURIOUS CASES
Bastardy-White Man or Negro as Father
ing heat.
A change has taken place in his sight. He has
had no sickness before or during this alteration of color to
account for it. The skin is of the white carnation hue, and
the blue veins plainly visible through it. The rete mucosum
seems to have undergone the principal change. His wooly
hair is falling out, and straight hair coming in its place on
his head; and the same thing has already happened on his
legs. He observes his flesh is now less disposed to heal
from wounds and cuts than it used to be."
Q. Are there no other facts which influence your opinion?
The witness here mentioned two other cases, which for the
reason above given, the Reporter copies literally from the
“ Medical Repository."
MAURICE'S CASE.
" A young negro, named Maurice, aged twenty-five years,
began about seven years ago to lose his native color. A
white spot appeared on the right side of his belly, which is
now about as large as the palms of two hands. Another
white spot has appeared on his breast, and several more on
his arms and other parts ; and the sable cloud is plainly dis-
appearing on his shoulder. The skin of these fair spots is
not surpassed by the European complexion. His general
health is and has been good ; and he has suffered no scald-
ing ulceration, scabbiness or other local disease.
The change
is not the dead white of the albinos, but is a good whole-
some carnation hue. Such an alteration of color as this
militates powerfully against the opinion adopted by some
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Bastardy-White Man or Negro as Father
modern philosophers, that the negroes are a different species
of the human race from the whites, and tends strongly to
corroborate the probability of the derivation of all the
varieties of mankind from a single pair. Facts of this kind
are of great value to the zoologist. How additionally
singular would it be, if instances of the spontaneous disap-
pearance of this sable mark of distinction between slaves and
their masters were to become frequent! They would then
be no less important to the moralist and political economist."
POMPEY'S CASE.
“Pompey, a very healthy negro, of about twenty-six years
of age, about two years since discovered on his right thigh
a small white spot, which, from that to the present time,
has been constantly increasing to the size of nearly a half-
crown piece; while there have appeared, on other parts of his
body, other spots to the number of twelve, of different sizes,
but all constantly and gradually enlarging. In several of
the spots, the margin is perfectly defined, from a distinct
line between the clear white and the natural color. In others
there are circumscribed rings of a dun appearance, the exter-
nal margin of which is very regular. I have the fullest belief
that a very few years will complete the total change."
Q. Was there not some other case which you mentioned
before the police office ?
A. I mentioned somewhat jocularly the loves of Theag-
ines and Chariclea. Chariclea was a beautiful and fair vir-
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Bastardy-White Man or Negro as Father
gin, of Ethiopian parents. Her whiteness was occasioned by
her looking on a statue of Venus.
Question by the Mayor. About what time, doctor,
might that have happened ?
A. The work is written by a Christian bishop, Heliodorus,
who wrote about the fourth century. It was the first novel
I ever read, and made a great impression on me.
Q. As to those cases in which the agency of some external
objects upon the mother's imagination produces an entire
change in the fætus, have you any facts within your own
knowledge ?
A. There was a man in the city of New York who kept
a COW.
Q. Will you tell the court, doctor, the story of that cow?
A. The cow was a favorite with the wife of the man,
but be found it more convenient to kill her than to keep her.
Q. And how did the death of the cow influence the birth
of the child ?
A. The cow affording a larger supply of provisions than
was required for family consumption, he sold part and re-
served the rest.
Counsel. Very well, sir, be so good as to relate the rest.
Witness. Among the parts that were reserved, were the
feet. The wife saw them hanging up in a mangled state.
It was the first news she had of the death of her favorite
cow; and she was so vebemeptly moved and so shocked, as
to affect the child of which she was then pregnant.
Q. And what was the result ?
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Bastardy-White Man or Negro as Father
1
A. The child was born without any arms, and with dis-
torted feet.
Q. Did you ever converse with the father or mother of
the child ?
A. I did not. But the child is still alive ; and there is no
doubt of the fact.
Q. Have you examined the child ?
A. I saw it once as I passed, playing with a cooper's
shaving knife between its toes. I stopped to inquire, and
was told the story.
Q. Is there no other case, ancient or modern, to support
this theory: is there nothing in verse or prose?
A. There is a case, called the Black Case, in Haddington's
poems. He was a lord of sessions, or other considerable
man in Scotland. The story runs thus :—There was a man
who followed the profession of an attorney, or a scrivener,
who had a very amorous wife. But he had not leisure to
attend to all her gayeties. Once, that he was unable other-
wise to free himself from her importunities, in toying with
her he upset his ink-bottle in her shoes. She brought him
a black child in consequence. He reproached her, but she
reminded him of the ink-bottle, and of his awkwardness.
There is also the story told by Malebranche, of the woman
who saw a man broken on the wheel, and bore a mangled
and disjointed child.
If such changes as the last are true and there is strong
authority for it), then the mere change of color or complex-
ion is not difficult to believe.
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CURIOUS CASES
Bastardy-White Man or Negro as Father
The cross-examination of Doctor Mitchill was continued
by Mr. Sampson; and extending to a variety of topics,
produced much anecdote and repartee.
The subject of the albinos was fully discussed. Their
feeble structure—weak eyes—leprous appearance—their
being found chiefly in low latitudes : and the Chacrelas of
Java, the Bedas of Ceylon, and the white Indians of Darien
were instanced; who are all within the eighteenth degrees of
north or south latitude. Mr. Buffon's opinion was cited,
that they were not a distinct race, but individuals degener-
ating from black to an adulterated white : supposing the
blacks to have degenerated originally from the white to black.
But as it was admitted that the whiteness of this child bears
no resemblance to that of the albinos, and cannot be ex-
plained on the same principles, it is unnecessary to pursue
all the details of the examination on that point.
The proximate cause of the fairness of the albinos was
stated to be the absence of the rete mucosum, which gives
color to the black men : and the dots and redness of the
eyes in albinos was supposed owing to organic debility
which admits of extravasation of the blood, and of its lodg-
ing in the globules in the iris. The want of the rete mucosum,
which fortifies the eye of the negro against the sun's glare,
is the reason at once why the eyes of an albino are unable
to bear the sun, and more fitted to see by night.
Mr. Sampson mentioned the two children of Chamouni,
or albinos of the Alps, with whom he had frequently con-
versed. He compared their eyes to those of owls and other
CURIOUS CASES
175
Bastardy-White Man or Negro as Father
and a
animals, fitted for night or long twilight, which called forth
an anecdote from the witness, of a numerous flight of white
arctic owls, which had some years ago visited this city,
remained some time, and then disappeared, having never
been heard of before or since. The witness also mentioned
the white sparrows of Sweden, the hares of Albany,
wbite bird with which he had been regaled in Canada, whose
flesh was very delicate. But to a question put by the
counsel, he answered that he had never seen a race of white
deaf dogs.
Mr. Sampson then apprized the witness that since his
opinions were likely to be unfavorable to the side he was to
advocate, he must avail himself of the privilege of cross-
examination. It would be necessary with so learned a wit-
ness to say, that the adverb cross was not to be taken in the
vulgar acceptation. Cross was in contradistinction to di-
rect; and cross-examination meant only an indirect exami-
nation. The ignorant, who take things in the wrong sense,
often show ill-humor, and put themselves in an attitude to
be cross, because they are to be cross-examined. With the
candid and enlightened, it proves often an agreeable mode of
discussion, and is particularly so to our profession, when it
gives us occasion to extract from those of superior learning
knowledge which we might not otherwise have the means
of acquiring
The witness expressed great readiness to answer any ques-
tion for the satisfaction of the court or the counsel ; and the
examination proceeded as follows:
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CURIOUS CASES
Bastardy-White Man or Negro as Father
Counsel. What do you think, doctor, of the opinions of
Plato, touching the principles of generation ?
Witness. Do you mean also to ask me Pythagoras's opin-
ion on wild fowl?
Counsel. Far be it from me, sir ; that question might
serve to puzzle a man who was in the dark—mine are meant
to elicit light from a source where it abounds.
Witness (bowing). I do not know, sir, to what particular
opinions you allude.
Counsel. To his triangle of generation, as well as to the
harmonies and mysteries of the Number Three.
Witness. I have never devoted any attention to such mys-
teries. A triangle has three sides and three angles, if you
can find out the mystery of that.
Counsel. Has not a prism three sides and three angles ?
Witness. It has.
Counsel. Could Plato have meant that any thing resem-
bling a prism could have an influence in generation ?
Witness. You seem, sir, to have thought enough upon
the subject to judge.
Counsel. Sometimes the more we look the less we see.
Can you, upon any principles of plain or spheric trigonome-
try, produce a triangle which shall be flat on one side and
round on the other ?
Witness. That, perhaps, is an Irish triangle; if so, you
can produce it yourself. Will you permit me now, sir, to
examine you a little ?
..
-
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177
Bastardy-White Man or Negro as Father
I pray
Counsel. Oh, doctor, you cannot be serious--not surely
in the face of the court!
The Mayor. I think, Mr. Sampson, after the manner in
which you have examined the witness, he is entitled to what
he desires.
Counsel. Alas, sir, I am but a poor tradesman, laboring
at my vocation ; if I let him wind that long chain of causes
and effects round me, I shall be so entangled I shall never be
myself again. It is play to him, but death to me.
the court to let the shoemaker stick to his last.--Doctor,
are you familiar with the opinions of Aristotle upon matter
and motion ?
Witness. Your question, sir, is very general.
Counsel. I shall be more particular.-Do you believe that
matter is the capacity of receiving form?
Witness. I believe there is a first cause which is the law
to which all matter is subject.
Counsel. The first cause is too far off for my span ; let
us keep to one less remote. Is it not a corollary from the
opinion of Aristotle, that the son should resemble his father?
Witness. I do not see that it is.
Counsel. I wish, doctor, I could establish some difference
between you and those great luminaries of ancient times.
The authority of your opinion requires some such powerful
counterpoise.
Witness. Well, sir, propose your questions.
Counsel. Since I cannot press these great men of antiq-
uity into our service, I shall endeavor to find something in
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178
CURIOUS CASES
Bastardy-White Man or Negro as Father
Doctor Mitchill, to set off against Doctor Mitchill. The
counsel on the other side will not fail to avail himself of
your opinions to the utmost extent, perhaps beyond your
intention. I wish, therefore, by taking your opinion touch-
ing the probability of other facts, to find what degree of
belief you attach to the present, and by establishing a stand-
ard of faith, fix a boundary line between us ; and also to
discover, if possible, how much light learned opinions may
throw upon this cause.
Witness. Some years ago there was a machine invented
called a light gauge or photometer, which was to measure
the degrees both of light and shade, but part of it always
failed or broke ; or, for want of encouragement, it never
was brought to perfection.
Counsel. Oh what a pity! I once projected a machine to
measure happiness, wisdom, love, and other moral qualities
and affections ; but the ladies secretly discouraged it, fear-
ing to have it known how they loved the fellows. Since
then that our machines are out of order, doctor, we must
proceed by the imperfect modes of our fathers. Are you
acquainted with a story related by Mr. Saussure, of a lady
of quality of Milan who had seven sons?
Witness. I have no recollection of such a story.
Counsel. It was this : the two first of her sons, and also
the two last, had brown hair and black eyes ; the three inter-
vening had blue hair and red eyes.
Witness. Very possible.
Counsel. That is not all. The author accounts for it in
CURIOUS CASES
179
Bastardy-White Man or Negro as Father
this way: that while the mother was pregnant with three red-
haired and blue-eyed children, she had also conceived a
violent passion for milk, in which she indulged to excess.
This might, when related by Mr. Saussure, have passed for
a traveler's story. But it is adopted by an eminent physi-
ologist, Mr. Buzzi, surgeon of the hospital of Milan. What
would you infer in such a case 2*
Witness. I would infer that the milk must have been blue,
such as they sometimes sell mixed with water ; otherwise I
cannot see how it could have made the children's eyes blue.
Counsel. I think not, doctor ; they would have been
rather of a cream color. It must have been milk and
water, or skimmed milk. It is a loss that the case does not
*REMARKABLE EFFECT OF A PREGNANT MOTHER'S IMAGINATION.
“A young married lady, pregnant with her second child, being
with her parents at Brunswick, in New Jersey, where it was fixed
she should lie in, when that time drew nigh, she sent to New York
for her nurse ; and having made every necessary preparation for the
interesting moment, waited with tranquility for a few days before
it arrived. Nurses generally employ this time in taletelling, gossip-
ing, &c. The nurse in this case told, one afternoon, to the pregnant
lady and her mother, how she had once nursed in the family of a Jew,
and how she saw the little infant circumcised; and dwelt upon the
description of the operation with great minuteness. The young lady
sat and listened, and being very susceptible of sympathy, first shed
tears, then fainted. A day or two afterwards she was delivered,
after a very short labor, of a boy. All went on very well till the next
day, when the nurse discovered that the child's prepuce was diseased.
Dr. Scott, of Brunswick, was immediately sent for. He came, and
on examination, found the whole of the foreskin destroyed by a sphac-
elus !
"The above circumstance happened in the winter of 1798–9. The
young lady, her husband and child, all died in the course of the
year.' Vide Med. Rep., vol. 3, page 69.
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Bastardy-White Man or Negro as Father
mention which. Do you think it credible, sir, that Louis
the Second, king of Hungary and Bohemia, was born with-
out his epidermis or scarf-skin?
Witness. It is not impossible.
Counsel. Yet for a king to come without his skin, that
was coming very naked into the world. What do you think
of Zoroaster, king of the Bactryans ?
Witness. I have never thought about him.
Counsel. Pliny says he came laughing into the world.is
that probable ?
Witness. It would be an exception to the general rule,
for we generally come into the world crying.
Counsel. And seldom go out of it laughing: so that as
the only time we have to laugh is when we are in it, it is
wise to profit by it. Do you recollect Pliny's remark upon
this king; that he little knew what a world he was coming
into, for if he had foreseen his destiny he would not have
been so merry
?
Witness. It was a witty remark of Pliny if it was his.
Counsel. Apropos. May I ask what you think of the opin-
ion of the great Verulam, that when mothers eat quinces and
coriander seed, the children will be witty?
Witness. Some persons have a great deal of wit, but I
don't know how they come by it.
Counsel. Do you think, doctor, as the counsel on the
other side does, that a pistol is an instrument of much effi-
cacy in generation ?
Witness. On the contrary, sir, a pistol is generally used
CURIOUS CASES
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Bastardy-White Man or Negro as Father
to take away life.
vie. Do you mean that ?
Counsel. Of what color may that be, doctor?
Witness. It may be black or white. .
Counsel. Which of the two would be most influential on
the birth of a white child?
Witness. Most probably the white.
Counsel. There it is! I will lay my life that is what
the man had in his hand when the scuffle began, that so
strongly affected the mother. Did you ever hear how the
mistress of Pope Nicholas III. was brought to bed of a
1
young bear?
Witness. No, sir; but many women have had bearish
children.
Counsel. After that, I think they may bear anything.
Do you find a great affinity, in what concerns generation,
between man and beast?
Witness. Undoubtedly.
Counsel. May not the principle of maternal affection influ-
ence in one as in the other?
Witness. I am of that opinion.
Counsel. So that when the Dutch farmers on Long Island
plough a black mare with a bay horse, to have a bay colt,
the idea is not unreasonable ?
Witness. There is nothing unreasonable in ploughing a
black mare with a bay horse, nor in a black mare having
a bay foal, more than a black hen having a white egg.
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Bastardy-White Man or Negro as Father
Counsel. Does not Mr. D'Azara lean to the notion of a
primitive color ?
Witness. He gives the philosophers their choice in sup-
posing our first parents to have been either of white or black
complexion.
Counsel. How do you account for the ring-streaking of
Laban's lambs? The fact we cannot doubt; we have it on
such high authority. Does it appear to you an extraordi- .
nary interference of Providence in favor of an individual,
or can it be accounted for by the principle of maternal
affection, and by the ordinary laws of nature ?
Witness. By the ordinary laws of nature.
Counsel. That being the case, doctor, there remains only
to thank you for the information you have given us.
August, 1808.
Dr. Pascalis, sworn and examined, said that the child in
question appeared to him to be three-fourths white and one-
fourth black—that was his impression. But he pronounced
with diffidence upon such subjects, as he knew how easy it
was to err where there was a want of certain data.
Nature was uniform in her works and faithful to fixed
rules ; and when facts are in dispute or doubt, there is no
way of forming an opinion but by recurring to those rules
which experience has established. Witness had lived long
in the West Indies, and had remarked three principal char-
acteristics of the negro race, and all compounded of it.
First, the crispations of the hair.
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Bastardy-White Man or Negro as Father
Second, the rete mucosum which gives the black hue to the
skin.
Third, the conformation of their legs and feet.
These characterizing marks are discernible in all the mix-
tures between black and white; but according as the mixture
participates more of one than of the other, so naturally will
the hair, the features, the complexion and the structure of
the limbs. He had observed, farther, that in general when
there happened in any one or more of these distinguishing
indications a deviation from the general rule; for instance,
wherever the complexion partakes more of the white than
from the known parentage, it should be expected, then it
would be found that in some other of those indications there
will be preponderance the other way.
One example which he cited out of numbers which he had
noticed was the French general, Rigaud. He was the son
of a white man, a relation of the witness, by a black woman.
He was so dark as to differ little from the true African com-
plexion ; but in return for that, he had the features and form
of a white man—was very handsome and well made. If
this principle of nature is not universal, it is, as repeated
observations had proved to him, very general. The last
symptom of the negro blood wbich disappears is the crispa-
tion of the hair and the setting on of the ankle, which he
described in technical language amounting to this, that the
leg was' inserted move forward on the foot, and consequently
the heel longer. He, therefore, when he was told that this
child was of a black man, examined it to discover whether,
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Bastardy-White Man or Negro as Father
seeing its complexion was so unusually fair, there were not
some strong traces of the black race to counterbalance that
deviation ; and upon looking at the conformation of its feet
and legs, and more particularly at the straightness and light
color of its hair, he was disappointed not to find his obser-
vation verified; and he was now of opinion that it was not
the offspring of a black man.
He conceived the woman to be a perfect mulatto. He
had known one instance of a woman of mixed blood having a
white skin with the features of a negro strongly pronounced.
Cross-examined by Vanhook.
Question. Might not some accident, happening at the
moment of coition, produce by its effects upon the woman's
imagination as great a deviation from the general rule as
this?
Witness. Why make that particular conclusion? It would
be much more apt if it produced any thing to produce de-
formity or abortion ; but it would be too far-fetched to
suppose it would cloud or uncloud the skin. Upon the
whole, as I am impressed, I must give my opinion that it is
not the black man's child.
Alderinan Barker sworn. Stated that the woman when
examined before him, said she had no intercourse with any
white man.
Afterwards she acknowledged she had had a
struggle with one.
Mr. O'Blenis, clerk of the police, stated, that after her
examination on oath was closed, she was questioned as to
CURIOUS CASES
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Bastardy-White Man or Negro as Father
that fact, and answered laughing that the white man had
torn her petticoat.
Sir James Jay, M. D., examined by. Vanhook, gave a
decided opinion that it was not a black man's child, asked
whether he lay much stress upon the color and straightness
of the hair of the head, and whether it might not yet become
like that of the mother. He said it was not necessary to
wait so many years as to see what conformity there might
be in the hair with the mother. It was enough if the coun-
sel chose to examine the mother at present.
Question by Sampson. Doctor, we have been deep in the
mysteries of Lucina.
Witness. Very good, sir; I hope you have profited.
Counsel. No, Sir James; it is a cross birth—we are not
yet delivered of our doubts. We want to know whether
the Abbe Spallenzani's method of propagation is a safe and
good one-whether there is not such a thing as Lucina sine
concubitu; for, as it appears the black man could not have
got the child because it is white, nor the white man because
of the fighting, it would be good to see whether the pistol-
barrel could have got it.
Witness. Then, sir, you must inquire elsewhere touching
that matter. I have found the old practice good enough
for me, and have made no experiments in the way you
allude to.
The evidence closed here, and Mr. Morton addressed the
court, premising that it was his intention to be very brief,
and to confine himself entirely to the positive testimony
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CURIOUS CASES
Bastardy-White Man or Negro as Father
and the inferences of law which it furnished, and leave to
the counsel associated with him the various topics of curiosity
which had been introduced.
Although this case was not of so grave an import, nor
so serious in its consequences, as a trial for a rape, yet still
. it was one in which the nature of the proof should be
equally certain, as it went to inflict what, to a poor man, was
a very heavy penalty, and which, if he was innocent of the
charge, would be an insupportable oppression. The convic-
tion here, as in a case of rape, would be founded upon the
evidence of a woman who, by the fact itself, might become
mother to a bastard child, whose character for virtue and
good morals makes a principal part of the consideration.
Necessity made this woman a witness, for it is her own
cause in which she is swearing : but wherever from policy
such testimony is admitted against the great ruling principle
of law that "none shall be witness in their own cause, nor
to swear to their own criminality,” it is always admitted
with extreme caution, and qualified with well-placed jealousy.
For it is better even that the community should suffer an
inconvenience than an example of injustice be set, and a door
opened to oppression.
This woman's evidence, without the irresistible proof which
the child's appearance furnishes, and which the opinion of so
many skilful men of profession confirms, carries with it its
own refutation. The counsel here recapitulated the dates
and epoch fixed by the woman from the time she first became
acquainted with Whistelo in August, 1806—his going to sea
CURIOUS CASES
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Bastardy-White Man or Negro as Father
on the first of May, and returning on the first of August
—that she felt life two months before his return, which
was only one month from the time she swears to his having
got her with child. All the physicians agree that that
symptom of pregnancy does not take place in less than three
months, and that it is more commonly four. She has also
positively contradicted upon one examination upon oath
what she positively swore upon another. At the police office
she said she had no connexion with the white man -before
this court she has acknowledged that she had.
There is at least as much reason to charge the white man
to be the father, with whom she states on her oath that she
had a connexion within a few days after the first connexion
with the black. So short an interval must leave it impossi-
ble to determine, from the reckoning of time merely, which
was the father. If so, and the matter was otherwise in bal-
ance, surely the child being white is a circumstance strong
enough to put it past all doubt. Another fact equally con-
clusive is what the mother told the witness Ray, when she
took back the child, “That the defendant at first would not
own it, that it was not his, and that now he should not have
Now, if this was a serious crime and a criminal prose-
cution, such evidence would not weigh a feather. I cannot
see why there should be any more hesitation in the present
it.",
case.
After Mr. Morton had finished, another woman was pro-
duced with her child. The woman was a light mulatto, and
the father said to be a black man.
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CURIOUS CASES
Bastardy-White Man or Negro as Father
Sampson. If this be to prove anything by comparison it
is good, provided the object of comparison be certain. We
must have proof of the parentage of this child, otherwise it
is ignotum per ignotius.
Mr. Vanhook, next, according to arrangement, summed
up, and answered the observations of Mr. Morton, leaving
to Mr. Sampson the reply.
He said, the arguments did not convince him in any degree
that the black man was not the father of the child.
And if by fair reasoning, the party who sued was entitled
to an order, the court would, in spite of subtle objections
and raillery, grant it in furtherance of the statute. The
Commissioners of the Almshouse had instituted this suit as
their duty obliged them, and the law directed. The woman's
testimony in one view was meritorious—it went to discharge
the community from the burthen of supporting a bastard
child, and to oblige the true father to maintain it, and there-
fore should not be disfavored.
Much stress was laid upon the time of her feeling her
pregnancy, but that was not sufficient to destroy the force
of her positive testimony on oath ; a difference or mistake
of a month or two, which may be the fault of her memory,
is not enough to discredit her. What she said at the police
[office) is of as little importance, being easily reconcilable
with what she has sworn here. She said she had no connec-
tion with a white man, meaning no such connection as could
produce a child ; and she admitted before the same magis-
trates, on the same occasion, that she had a struggle with
CURIOUS CASES
189
Bastardy-White Man or Negro as Father
one, and that he tore her petticoat. If she did not say the
whole of this when upon oath, at the time her deposi-
tions were written down, it is not material ; she might
not have been so particularly questioned till afterwards;
but viewed with common candor there is no contradiction to
discredit her. On the one occasion and on the other her
evidence was this, that she had a struggle with a white man,
but that she prevented him by resistance from accomplish-
ing his purpose, and was sure there could be no child born
in consequence of that encounter.
Why did not the gentleman on the other side call this
white man? He could have contradicted her if her testi-
mony was false.
With respect to the alarm with the pistol and its
possible effect upon the mother's imagination--that changes
in the fætus do happen from such accidents stands
upon the highest authority; and has been supported in a
way not to be shaken, by Doctor Mitchill, who has related
facts proved past contradiction. Doctor Pascalis thinks it
far-fetched to suppose it would change the complexion, but
seems to admit that it might produce abortion or deformity;
yet the change the most easy of operation has been stated
to be that in the color of the skin. Doctor Mitchill has
stated that reasoning a priori upon such subjects is only pre-
sumption ; but that where facts of a certain nature have
arisen, it is possible that similar facts may arise from
similar causes, and he has given instances of infinitely
greater changes than this by the power of maternal affection.
Certainly, to oppose arbitrary reasoning to the authority of
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CURIOUS CASES
Bastardy-White Man or Negro as Father
facts, is the height of presumption ; and no man is better
qualified from his extensive reading and continued investiga-
tion to collate a number of facts, and draw certain conclu-
sions from them.
Lastly, the woman's testimony goes to accredit the suppo-
sition that the influence of fear or surprise, and the sudden
appearance of the white man armed with a pistol—the
struggle that ensued—the irritation it produced—all com-
bined to operate such change.
And although she be an unfortunate woman, and mother
of an illegitimate child, yet let me repeat it, that her evi-
dence is here meritorious, as it goes to deliver the commu-
nity from the support of a bastard, and justly to fix the
man who begot it with the maintenance of it. And above
all, that she is swearing not corruptly for her own interest ;
but against it, for if money was her object, the white man
was her mark.
Sampson. May it please the court. If ever the situation
of man was full of peril and difficulty, so is mine. My
learned colleague has taken to himself all that was terra
firma in our cause, and when he had brought me to the
world's end, plunged me headlong into that ocean of won-
ders and adventures where I am now adrift.
He has, more-
over, taken away his notes on which I relied, and left me
no other chart than this stenographic scrawl wherein my
eyes can discern nothing but objects of evil omen.*
*Mr. Sampson had taken his notes in shorthand, and the allusion
here is to certain emphatical words written in the common character,
and of course more obvious to the eye.
CURIOUS CASES
191
Bastardy-White Man or Negro as Father
Arctic owls, misshapen monsters, and prodigious births.
Well might I barter one hundred leagues of such sea for
half an acre of brown furze. If I escape this time, I will
hang up my drooping garments as an offering to Neptune,
and never tempt my wayward fortune more.—I will now
borrow courage from despair, and to the matter.
Soon after the vernal equinox, in the year of the vulgar
era one thousand eight hundred and six, an Adam-colored
damsel submitted to the lewd embraces of a lascivious Moor,
and from that mixture sprang three miracles.
l'st. In the course of one month's time she quickened
and conceived.
2d. She bare a child, not of her primitive and proper
color, nor yet of the African-but strange to tell, of most
degenerate white.
3d. And the greatest of these wonders, she remained, as
the counsel for the Almshouse charitably testifies, a lady of
virtue and unblemished credit !
I have heard of a sect that trusted more to faith than to
good works.
The counsel it appears is of that sect, when he
asks this honorable court to put its hand and seal to three
such miracles. I would rather be called ignorant and sim-
ple than too learned and perverse.
But since I cannot be-
lieve in the metamorphoses of old, nor in the procreations
of Jupiter Ammon, I am sour upon the belief of all other
such heathenish stories.
Before I lose myself in the labyrinth through which I am
to tread, that I may not die in the learned counsel's debt, 1
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CURIOUS CASES
Bastardy-White Man or Negro as Father
shall first answer all his observations. If I should miss my
way, and never return to where I set out, my will is that
all concerned shall mourn for me—the whites putting on
black, and the blacks white, in token of affection. Item :
the manuscript I hold in my hand to be deposited in the
city library. Item : the fee which I receive in this cause
to enure to the benefit of the Almshouse.
The counsel says that the reasoning of my colleague has
not convinced him. If it had, it would have been a fourth
miracle; for certainly the counsel's business here was not
to be convinced.
He triumphantly asks why we did not call the white man?
and I answer, in all simplicity, because we had no need of
him : besides, he is our rival, and carries pistols ; and we
disclaim all prying into what does not concern us, and all
indiscreet meddling with family affairs.
All the justice we ask for our poor black swain is not to
for a child he never got, nor be made a worker of mira-
cles against his will : the thing of all things of which he
thought the least, and of which he is the least ambitious.
Again, the counsel asks what motive could the woman
have to charge the child to a black father, when she could
have had a white one? We do not know why-some love
the darkness rather than the light.
But it is said evidence was meritorious, and for the good
of the community, charitable, and for the good of the Alms-
house. I never before heard of such pious and patriotic
fornication.
pay
CURIOUS CASES
193
Bastardy-White Man or Negro as Father
But if she was disposed to perjure herself, would she not
have laid the child to the richest father as well as to the
fairest?
Perhaps not. Perhaps she wished to establish a partner-
ship according to the custom of merchants, long used and
approved within this city, to make one a sleeping partner,
to contribute by his friends; the other the active partner,
taking the trouble and responsibility, and giving his name
to the firm. She has herself averred and proved this part-
nership, stated the locus in quo, and laid the venue in her
bed, and it is too late now for the counsel to say it was a
transitory action after issue found.
There is another legal view of this matter. The child
may be a negotiable instrument under the statute of Anne
and one party liable as maker, the other as endorser. It is
thus that commerce is every day encroaching on the common
law. Formerly a bastard was nullius filius, and could have
no father : now it seems he may have two, unless the court
will think that it is carrying the commercial principle too far.
Then if the court will allow only one father to one child,
it is to be seen whether it will permit another innovacion
not less violent, viz: that black men shall be the fathers of
white children by intendment of law. If a white man can
say to a black one, get out of that bed, you black devil, till
I do this thing—by division of labor trade will be advanced
-you must do your part of the duty and I mine-I will
get the child and you shall father it—there will be in this
CC-13
194
CURIOUS CASES
Bastardy-White Man or Negro as Father
manner employment for us both-Can that, may it please
your bonors, be the law ?
As to a complaint made by the gentleman that we insin-
uated the evidence on his side to be altogether base, if it be
any satisfaction to him we will retract that saying. We
will admit that there was first and second fiddle and base
accompaniment. But as he is himself the leader of the band,
he ought not to complain of the effect.
After breaking a lance upon my colleague in the honor of
this daughter of Eve, he attacks the doctors en masse.
What do they know, he says, more than other men ? But
that is not all, he goes farther and levels a shaft at your
honors on the bench, and says you have as much experience
in such matters as any doctors or any persons whatsoever.
Some gentlemen have a happy knack at saying any thing.
If I had even suspected any of your honors of any such ex-
perience, or at all to have dipped into such matters, even
from curiosity, I never should have ventured to hint at it.
After disposing of the faculty in a summary way, and
representing all the doctors who don't believe that black men's
children may be white as a set of coasting doctors, who
don't go out of sight of land, who run by the line and the
dipsey lead, he then introduces a doctor as a god upon the
scene. Never was a god introduced more apropos.
truly dignus vindice nodus. It was no longer your men of
experience who believe nothing but what they see, and tell
nothing but what they know, who never go on voyages of
discoveries or explore the unknown regions of hidden won-
It was
CURIOUS CASES
195
Bastardy-White Man or Negro as Father
ders. Not so Doctor Mitchill. At his name all ears stand
erect; might and power are his attributes.
Be it so. I
rejoice in his strength, I glory to magnify him, for if he
be that great Ajax Telimonius, who then am I, who have
scuffled with him for one hour in the heat of a burning day,
and come off, if not with victory, with life, which is great
honor? And now having returned by the same sally-port
through which I ventured out to skirmish with him, once
more I plant my standard on the ramparts of the law, and
display to the whole camp the trophies I have borne off the
field.
It is grievous to see the disposition that pervades man-
kind to laugh at serious things. But ever by the side of
eminent learning there is a nitch where malice loves to sport.
It is a quit rent which the learned owe to us small wits ; it
is an indemnity for the shade they cast upon us, and we
seize upon it by the title of amends. I do very much
respect the witness and admire his learning and his candor;
but when I think of the odd excursion we have made to dis-
cover the parentage of this child of nature, I must either
laugh or die of it.
If a witness was wanted with a mind well stored with
facts, he stands unequalled. His is like the magazine of
some great commission merchant, whose high credit and
extensive correspondence brings him consignments from the
four corners of the earth—with room for all, and no partic-
ular reason for rejecting any, whoever would make up an
assortment to answer any demand may call upon him.
him. If
196
CURIOUS CASES
Bastardy-White Man or Negro as Father
the wares be not all his own, he has a factor's lien on them,
and a vested interest, and may dispose of them for the ben-
efit of the concerned. If he parts with them without
warranty, and there is no scienter, then they are at the risk
of the party who receives them, and the maxim is caveat
emptor.
It was with this view of ascertaining how far these facts
were warranted genuine, or in other words, how many ounces
of such testimony went to the pound, that I put so many
questions to Doctor Mitchill. I wanted to know whether we
were to take by the Winchester or the standard bushel —
whether our long measure was the ell Flemish or the common
yard ; and the court will very clearly comprehend, or else
will not comprehend, how we came to treat of Plato's tri-
angle, of the virtues of number Three, and of the probabil-
ity of the opinions of that great philosopher-viz : that
when men and women hold this sort of tete-a-tete, it is only
for the sake of completing a triangle. If I did not pursue
that curious subject farther, it was for this reason : from
the moment I found out that a triangle bad but three sides,
I saw that the doctrine would not apply; for make what
angle you will of a man and woman, still as each has two
sides at the least, a right and a left, the diagram which they
describe must have four, not to speak of others that I am
ashamed to mention.
We passed on to Aristotle; but with all his form and his
substance, his matter and his motion, his cause and his effect,
he could not inform us how, without violating probability,
CURIOUS CASES
197
Bastardy-White Man or Negro as Father
1
the black man could get the white child, and therefore, as we
gained no light, we had no need of any photometer to meas-
ure how much. Fearing to trust myself longer in the dark,
I passed on to the next topic, recollecting an old maxim :
Desperes tractata niitescere posse relinquas.
But I had the consolation to think that for all that had
yet passed between them, nobody was a bit the wiser.
The albinos, with their blood-shot eyes and white hair,
with the arctic owls, Swedish sparrows, and white birds of
Canada, I leave to the curious in wild fowl.
The strength of the adversary's case I take to be this :
that at a critical moment, after Mr. Whistelo and Miss Will-
iams had been just long enough in bed together to be draw-
ing towards a perfect understanding of the business which
brought them there, the lady saw, or thought she saw, an
apparition of a white man making towards her with his cocked
pistol in his hand; and the true point now is, whether that
apparition did of itself beget the child, or only change it
from black to white after it was begotten, by acting upon
the nervous system of the mother? The counsel showed a
skill more than professional, which convinced me that he
had gone deep into this subject, and probed it successfully.
He understands the doctrine of animal appetencies, if not of
chemical affinities.
It is curious to see how the learned will differ : Professor
Röderer denies the effect of maternal imagination in chang-
ing the form or color of the fætus : and for so doing he
198
CURIOUS CASES
Bastardy-White Man or Negro as Father
gains the prize medal of the University of Göttingen. Doc-
tor Mitchill maintains the effect of maternal imagination
with all his might. And another profound and ingenious
philosopher, Dr. Erasmus Darwin, denies this power in the
female imagination; but demonstrates its existence in the
male, and says that the Calipedia, * or art of getting beauti-
ful children, as also of procreating males or females, may be
taught by affecting the imagination of the male parent ; for
he says that the delicate extrenities of the seminal glands
irritate the organs of sense, either of sight or of touch. . He
recommends the art very seriously to those who are inter-
ested in the procreation of male or female children; and
observes that the phalic which were hung round the necks of
the Roman ladies, or worn in their hair, might have caused
the great proportion of male children. He laments, finally,
that the manner of accomplishing this cannot be unfolded
with sufficient delicacy to meet the public eye. And I fear
myself the squeamishness of the age to be such that if any
professor should propose a course of lectures, or any artist
advertise to give lessons in this art, he would find very great
difficulty and discouragement. A reflection, by-the-by,
involving a satire upon mankind, since it is notorious that
the most delicate of both sexes practice, with shameless
hypocrisy, what is too bad, it would seem, to be spoken of
without offending decency. I greatly wish, therefore, that
*Doctor Darwin and other learned zoologists seem to have mis-
taken this term. It should be written Callipædopæia.-The Re-
porter.
CURIOUS CASES
199
Bastardy-White Man or Negro as Father
the Abbe Spallenzani had brought his methods into general
use, notwithstanding the slighting manner in which Sir
James Jay has treated them, because it would be a means
of quieting the most scrupulous delicacy, and relieving per-
sons of elevated sentiment from the necessity of coarse
familiarities; and be more suitable every way to the delicacy
of the age. But as far as concerns the present point, whether
Röderer, Mitchill or Darwin prevail, the cause is not a whit
advanced ; for allowing that this white man operated upon
the organs of sight or touch, whether of father or mother,
so as to whiten the child, such a position would give birth
to two doubts, more perplexing than any yet appearing.
First, touching the identity and individuality of the infant,
of which individuality color is a part. For if one makes a
child black and another makes it white, sball it, while it
continues white, be said to be the child of the father who
made it black, and not rather be taken to be his who made
it white ? Even upon legal principles, such an act of owner-
ship exercised by a man over the child of another, as bleach-
ing him without authority, entitles him whose child was so
bleached against his consent to abandon altogether to the
wrongdoer, and to throw the child upon his hands. Cer-
tainly, if such a principle be established as that white men
can father their children upon negro fathers, it will very
much advance industry and encourage many to go abroad for
employment who now stay at home.
But to return to maternal affection. A fair lady, to whom
his holiness Pope Nicholas the Third had committed the
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CURIOUS CASES
Bastardy-White Man or Negro as Father
sacred charge of bearing him nephews and nieces, brought
him to his utter discomfiture one day, a little bear—and why?
why, because he was of the Ursini family, and had every-
where throughout his palace carved and painted emblems of
the name and honors of his house. Pope Martin the Fourth,
who succeeded to the chair, the palace, and the mistress,
fearful of like mischief, had them all effaced ; and accord-
ingly his nephews and pieces were nice little popines, no
more like bears than Miss Williams' child is like a negro.
At Tzertsogonbosh, in Germany, there was a religious
procession. Some of the inhabitants personated angels, and
some devils.
One of the devils, more merry than wise,
took it in his bead, as soon as the pageant was over, to run
home to his wife, and accosted her, if not in these words, in
words to this effect: “You dear plague of my life, for all
the vexation you have caused me from the beginning of the
world till the date of these presents, I am determined forth-
with to do in sort that you shall hereafter be the mother of
a young devil.” She scuffled, he "worried her out, and
ad a connexion with her ;” and whether she felt life in one
month or four, she finally bore him a young devil. Doc-
tor Mitchill saw nothing improbable in a fellow playing the
devil with his wife, or begetting a little devil. He thought
it prudent, however, to inform himself whether it was a
dancing devil. I am cautious in what I relate ; and as I did
not know what dancing master it had, I would not undertake
to say: it was, however, a merry-begotten devil, and prob-
ably a dancing one; and it is not impossible that it might
CURIOUS CASES
201
Bastardy-White Man or Negro as Father
have been one of those that tempted Saint Anthony, twenty
thousand of whom it is said could dance a saraband upon
the point of a cambric needle, without incommoding each
other.
That the learned sometimes account for things quite
differently from the rest of mankind, will appear from the
sequel of the story of the lady of Milan and her seven sons.
There was a tattle when I was at Milan, but as those who
believed it had not read Simon Pontius de Coloribus Oculo-
rum, it may be entitled to small credit. There was, they
said, in those days a young Scotch laird, blue-eyed, and red-
haired, who made the tour of Italy, to see pictures and stat-
ues, and kiss the Pope's toe; but that bis devotion was
principally warmed by the image of this cisalpine saint;
that he came at different times to worship at her shrine, and
finally, that it was he who recommended the milk that
turned the children's hair red.
So much for maternal affection with human kind. But as
there is a comparative anatomy, why not comparative zo-
ology? and unfortunately for the pride of man, in the act on
which our philosophers and doctors have delivered their
opinion, the similarity is entire. Poets have viewed it in
the same light; and the prince of poets defines it to be
making the beast with two backs. He, too, by-the-by,
was for the maternal affection, for he makes Iago alarm
Brabantio, lest Desdemona should " be got with child of a
Barbary horse," and he should have "coursers for cousins
and gennets for german.
It was conformable to that idea
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CURIOUS CASES
Bastardy-White Man or Negro as Father
that I asked Dr. Mitchill whether the farmers on Long
Island could reasonably expect to have a bay foal when
they ploughed the black mare with the bay horse. He saw
no more wonder than that a black hen should have a white
egg: and then would have been the time, but for the fear
of lengthening out the trial too far, to have discussed the
great problem of the eternity of the world, which many
venerable philosophers, according to Censorinus, supported
by the single argument of an egg. For they said no egg ;
was produced without a bird, and no bird without an egg
and as it never could be shown which was first formed, it
followed that the world had no beginning. We might have
shown upon the authority of Aristophanes how the world
was produced by divine love, and divine love from the
egg
of night, hatched by chaos. If we had been prepared to go
into eternity, there would have been a range! There was a
subject fit for philosophy-one never to be determined.
Touching the old cow that was killed, I can only say that
whatever Doctor Mitcbill says he saw, I believe as if I had
seen it ; I therefore believe he saw a cripple playing with a
cooper's knife, and playing with it between his toes. I
believe, also, that the neighboring gossips told him the
story of the dead cow; but I am not bound to believe all
they said. When such facts occur, it is so natural to run
the back scent, and if memory does not furnish something,
invention will. I once, however, saw a man who was born
without arms, but his father had killed no cow.
It is a good rule, that golden rule of King Charles, to be-
t
CURIOUS CASES
203
Bastardy-White Man or Negro as Father
lieve the half of what we hear. It is a good rule of juris-
prudence to reject all hearsay evidence; and it is a good
rule to reject a great deal more. A man made a fortune by
wagering to the contrary of what everybody said. If his
maxim was true in common life, how much more so in phi-
losophy ?
The attorney's case in Haddington's poems, with the dif-
ference only between black and white, is a case in point.
He was an awkward fellow to upset his ink in his wife's lap.
It was such au ill-natured return for her caresses, ingrati-
tude of so black a dye, that he deserved his fate.
The world has been in ignorance on another subject, which
this trial bas promulgated.—First, all negroes were sup-
posed to be black. In process of time it was discovered
that some were white ;—and now it appears that others are
piebald. He that Doctor Mitchill saw, in the very act of
metamorphose, was a full grown man, and could not be in-
fluenced, one would think, at that time, by any affection of
his mamma to change his color. That fact then remains to be
accounted for on some newer principle. I once knew a Mr.
Percy, a composer in music and singing master.
He taught
in my family, and he confessed one day in the fullness of
his heart, that he had been credulous enough to throw away
a guinea a visit for several months, to a quack, calling him-
self an ancient magnetist, who undertook by gestures and
wry faces to take a purple stain from the cheek of a favorite
pupil. In the beginning of the course of magnetism, all
parents, kindred and neighbors glorified this quack, for
204
CURIOUS CASES
Bastardy-White Man or Negro as Father
they thought they saw the mark disappearing from the edge
of the lower eye-lash. But finally they were convinced that
they were imposed upon.
There was a horse shown some time ago in New York as
a wonder, and he passed well enough because his tail was
shaved and his buttocks painted dapple green. It is the
easiest thing in life to work a wonder.
The last question I took the liberty of asking Doctor
Mitchill, in order to come to a just estimate of what he con-
ceives the line of probability, was, whether the fact which
we have on Scripture authority of the changes worked upon
Laban's sheep by the contrivance of Jacob, was to be con-
sidered as a miracle, or, on the principles of maternal affec-
tion, a thing within the ordinary laws of nature? And the
learned witness answered, without hesitation, that it was to
be accounted for by the ordinary laws of nature. Seeing
that this is so, and that in matters of generation the resem-
blance is so perfect between man and beast, I wonder it has
not been long ago turned to the embellishment of the human
species. Ladies might then go to the ball, and Indians to
the war, without paint: and it would be an innocent pleas-
ure to variegate boys and girls, by means of colored sticks,
feathers and ribbands; and the Dutchmen might display their
taste upon their children as they now do upon their tulips.
How pretty and pleasant to see little natural harlequins
playing about! But for the ignorance of our fathers we
might have been burnished like game cocks, and had wives
like birds of paradise, and daughters like cockatoos : now
CURIOUS CASES
205
Bastardy-White Man or Negro as Father
and then those that love curiosities might have a little mon-
ster, and for those who think two heads better than one, it
would be quite easy to frighten the mother out of a child
with two heads.
Let not the learned witness complain that we treat his
opinions lightly; the greatest philosophers in the universe
have been thought, upon some particular subjects, too easy
of belief.
Hippocrates relates that his mother used frequently to
tell him that for two years before his birth she had no
carnal intercourse with his father. But that she had been
strangely influenced one evening as she was walking in the
garden.
Galen, in his treatise on the measles, says the disease was
brought by a woman who had no father.
Doctor Harvey, who discovered the circulation of the
blood, is said to have believed and written of a race of men
with tails.
Diodorus Siculus mentions a sorceress of Egypt who had
passed for the celebrated Isis, upon the strength of bearing
children without the help of men, but that a priest of Mer-
cury was detected in her bed.
Livy speaks of a woman brought to bed in a desolate
island, where she had not seen a human face for nine years.
She was brought, he says, to Rome, and examined by the
senate. What a pity that we had no report taken in short-
hand of the arguments of the jurisconsults, and the
opinions of the conscript fathers !
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CURIOUS CASES
Bastardy-White Man or Negro as Father
Lord Bacon, in treating of the period of gestation of
various animals, says gravely that an ox goes twelve
months with young, and Doctor Mitchill, of North America,
was so impressed in early life by reading the novel of
the Christian bishop Heliodorus, entitled the loves of
Theagines and Chariclea, that he could not see any improba-
bility in black men getting white children !
A Prussian soldier was detected taking certain jewels and
corporal ornaments from the image of the Virgin Mary, and
boldly asserted that she gave them to him. The case was
novel, and a counsel of prelates and other learned men was
convened, who, not averse to miracles, adjudged the thing
possible. Frederick the Great understood trap, and suffered
the soldier to be discharged; but next day it was proclaimed
that on pain of death none should thereafter take advantage
of the generosity of the Virgin Mary. Now let it be pro-
claimed by authority of the mayor and corporation, that no
black man shall hereafter presume to get a white child; but
let the fellow be, in the meantime, discharged.
And now that we have returned from our voyage round
the world, let us look how the thing stands on a nearer view.
Ten or twelve of the most experienced physicians declared this
thing next to impossible. One gentleman says emphati-
cally that if it is true, it is a prodigy, and prodigies, he
believes, do not happen, though perjuries do. Some of the
professional witnesses have resided long in those countries
where, if such facts were natural, they must have fallen
within their notice; but they never saw one such as would
CURIOUS CASES
207
Bastardy-White Man or Negro as Father
man.
warrant their belief in this case-others have practised in
that particular and useful branch which enables them to
judge with certainty in matters of this nature; and envy
cannot deny of them that they have brought more into the
world than they have sent out of it. The very gentlemen
who ushered into life the babe whose name will be bright
in the annals of zoology, physiology, pathology, and all the
ologies (Doctor Secor) agrees that it is the child of a white
Doctor Mitchill denies it, partly on the authority of
the quadrupeds of Paraguay, and partly because Miss Will-
iams bas deposed otherwise. Allowing the analogy in such
transactions between men and four-footed animals, yet I am
not so easy in allowing weight to the testimony of a woman
who swears to her own shame; and if I did give weight to
her testimony, I should not admit any conclusion to be drawn
from it in this case ; for it is as strong one way as the other.
She scuffled with a black man in a bad house, and he wor-
ried her out and had a connexion with her. Very good.
Shortly afterwards she scuffled, or fit, as she termed it, with
a white man, and knocked off his bat, but he afterwards
came to bed with his hat, and had a connexion with her.
Did you cry out? No, sir. What then did you do? I bade
him be quiet! Well! where is the difference, except in
this, that the white nian had no hat upon his head? Will it
be contended, now, on the authority of any treatise upon
generation, that a man cannot get a child without a hat upon
his head? Here I might say, without indiscretion, your
honors have experience to the contrary. No well bred man
208
CURIOUS CASES
Bastardy-White Man or Negro as Father
would think of going to bed to a lady with a hat on; if he
did, she would do well to knock it off. If he was so much
afraid of catching cold, he might have put on his night cap.
To be sure, if he be of the society of friends, it alters the
case, because then it might be an inconvenience; but could
not be considered an incivility—but there is no evidence of
that.
Besides this, the evidence of Alderman Barker and Mr.
O'Blenis shows that she has contradicted herself upon oath,
for before them she swore she had no connexion with a
white man.
Here before this court she admits, when upon
oath, that she had. She admitted, it is true, before those
magistrates, after her depositions were given in, that she had
a scuffle with the white man, and that he tore her petticoat ;
but that does not reconcile the contradiction upon oath.
Tearing a petticoat is not having a connexion; nor is it to
be supposed that all the passions with which that white man
was influenced were to be allayed by the small satisfaction
of tearing her petticoat. Where there are Helens there will
be wars; but the most quarrelsome will not fly to arms for
the sake of tearing petticoats. I defy all the annals of pa-
thology to show a case of a man affected with such an antip-
athy to petticoats. But it may be said one of those scuffles
was more platonic than the other. I do not believe that.
The one worried, and the other fit. Platonic love does not
carry pistols, nor jump into bed with its hat on. Such scuf-
fles may differ in etiquette—but not in reality. “Monta-
gue's men are always thrust from the wall, and their women
CURIOUS CASES
209
Bastardy-White Man or Negro as Father
to the wall." Can we believe that the white watch made
the black watch turn out merely for the sake of a warm
hammock ? If that be so, I can only say, “delicate pleas-
ures to susceptible minds !” But that is not the argument :
the woman herself says, that there were no young ones that
time, because they fit all the time. If they fit what more is
wanted? One of the counsel asked whether many races of
animals were not propagated in strife, and he instanced
cats; but he might have taken a still nobler instance, that
of the Sabine women, who scuffled with the Roman men,
yet bore them children. All history, sacred and profane,
is full of children begotten in violence. There are countries
where a scratched nose is a sign of victory rather than de-
feat; and where a woman who surrenders her favors with-
out resistance is like a general who surrenders a strong
place without a shot. Say then that one scuffled like Boreas,
the other like Zephyr,—still it comes to the same thing ;
for Zepbyr, mild as he was, got Flora with child, and Bo-
reas with his Orythia could no more, except that he got
twins with wings on them. The terms in which Ovid makes
Flora give her evidence, are so applicable to the case of our
Lucy, when she speaks of her black lover, that I am tempted,
as well for that as to show I have not forgotten my Latin,
to repeat them.
Ver erat, Zephyrus me conspexit, abibam
Insequitur, fugio, fortior ille fuit.
What is there then but the love of the marvellous that
should induce us to depart from the ordinary laws of nature
CC-14
210
CURIOUS CASES
Bastardy-White Man or Negro as Father
to come at the conclusion that this child belongs to a black
rather than to a white man? There was no difference but in
the manner; and in such matters every man will have his way.
Dick can neatly dance a jig;
But Tom is best at Borees.
There remains but one topic of the evidence to discuss.
Cases have been related and assented to by Doctor Mitchill,
that where there has been a rapid succession of intercourse
between a white and a black man, twins have been born, each
resembling the respective incumbent to whom he owes his
origin. Upon this ground we are at length enabled to make
a proposition which will meet the justice of the case, and of
course the approbation of the court. It appears here that
there has been a rapid succession of intercourse in the very
terms of the evidence; but of the twins only one is yet
come to light, which is evidently that of the white man.
The black man's twin is not yet born; but if the lady be
as slow in bringing forth as she was quick in conceiving, it
will be time enough two years hence to look for it. Let her
satisfy the court that she has lived chaste since April, 1806,
and will continue so to do for two years more, and then if
there comes a black child bona fide the fruit of our connex-
ion, we pledge ourselves to maintain it.
The mayor delivered the opinion of the court to the fol-
lowing effect:
This is an appeal from the police magistrates.-It appears
that they were divided in opinion respecting the charging
CURIOUS CASES
211
Bastardy-White Man or Negro as Father
the defendant as the father of an illegitimate child, and
that the Commissioners of the Almhouse and Bill
acting as overseers of the poor, have applied to the Ses-
sions to review the case.
The defendant is a negro-the mother a mulattress-and
the child has the hair and most of the features of a white,
the color, indeed, somewhat darker, but lighter than most
of the generality of mulattoes.
The oath of the woman is positive as to the father; and
it is not pretended by the defendant that he has not been
connected with her; but he relies upon the appearance of
the child to destroy the evidence of the mother.
This case involving a most important question in phys-
iology, the most respectable medical gentlemen in the city
have been called in to give their opinions, and they almost
unanimously declare that the defendant is not the father of
the child, as it would be a deviation from the course of
nature. Doctor Pascalis has fortified his opinion by some
very able remarks ; and Sir James Jay, a physician of
great respectability, and of the longest standing in the city,
has given a decided opinion to the same effect, and Las par-
ticularly indicated the want of crisped hair as a conclusive
circumstance against the testimony of the woman; and he
has been supported in his opinion by the president of the
Medical Society and several professors and other distin-
guished physicians.
The only opinion which militates against the united voice
of the profession is that of Doctor Mitchill, and this is more
>
212
CURIOUS CASES
$
Bastardy-White Man or Negro as Father
in appearance than in reality. That learned gentleman has
explicitly admitted that the offspring of the mother and the
defendant would, according to the ordinary laws of nature,
possess a color lighter than that of the father, and darker
than that of the mother; and that, on the presumption of
their being the parents, the appearance of the present child
would be an anomaly in the science of man, and a departure
from the usual operations of nature.
If, therefore, nothing farther appeared before the court,
we would not hesitate to decide against the appellants; as we
undoubtedly repose less confidence in the oath of the woman,
than in the opinions of the medical gentlemen who have
appeared here as witnesses, corroborated by every appear-
ance, and by our own observations; and it cannot certainly
be expected that we would have recourse to the miraculous
to bear out and support the testimony of the mother. The
rule in dramatic poetry will apply to cases of this nature-
Nic Deus intersit nisi dignius vindice nodus,
Inciderit-
But the mother has reluctantly attested and explicitly
admitted that she had connexion with a white man as well
as with the defendant. We can, therefore, even upon her
own testimony, be justified in dismissing the present com-
plaint; and we accordingly order that the application to
charge the defendant as the father of the illegitimate child
be overruled, and that he be discharged from his recog-
nizance.
CURIOUS.CASES
213
Breach of Contract by Opera Si
er
DE RIVAFINOLI
V.
CORSETTI.
New York Court of Chancery, 1833.
[4 Paige Ch, 264.]
Breach of Contract by Opera Singer-Specific Perform-
ance-Ne Exeat-Italian Opera before Master
in Chancery.
This case came before the chancellor on an order for the
complainant to show cause why a ne exeat granted against
the defendant should not be discharged, or the amount for
which the defendant was held to bail reduced. The bill
stated that the defendant had agreed with the complainant,
as manager of the Italian theatre in the city of New York, to
sing, gesticulate and recite, in the capacity of primo basso, in
all the operas, serious, semi-serious and comic, farces,
oratorios, concerts, cantatos and benefits, which should
be ordered by the complainant; that the defendant also
agreed not to make use of his talents in any other
theatre, or public hall, without the permission of the
complainant or his agents; that the complainant had
entered into a contract with the trustees of the Italian
opera house, in New York, under heavy penalties, to
commence the performance of Italian operas, with a first
214
CURIOUS CASES
Breach of Contract by Opera Singer
rate company, on the first of November, 1833; that he
had engaged the defendant as one of such company; that
the defendant, since the making of the agreement aforesaid,
and in violation thereof, bad entered into a contract with
another person to go to the Havana as an opera singer, and to
be there on the same day on which, by his agreement with
the complainant, his services were to commence at New
York ; and that the defendant was about to leave the state of
New York for Cuba, in fraud and violation of the rights of the
complainant. The bill therefore prayed for a specific per-
formance of the contract with the complainant ; that the
defendant might be decreed to sing, gesticulate and recite,
according to the said agreement; that he might be re-
strained from leaving the state of New York ; and for gen-
eral relief. The bill also prayed for a ne exeat, which
was granted by an injunction master.
W. Hall, for the complainant.
W. Mulock, for the defendant.
CHANCELLOR WALWORTH. The material facts alleged
in the complainant's bill are not denied; and for the purpose
of this application, they must be taken to be true. There
is an affidavit annexed to the bill, that the defendant has
declared his intention of going to the Havana ; and the de-
fendant has not denied such intention, although he swears he
has not made any engagement to go there. Upon the
merits of the case, I suppose it must be conceded that the
complainant is entitled to a specific performance of this con-
CURIOUS CASES
215
Breach of Contract by Opera Singer
tract ; as the law appears to have been long since settled
that a bird that can sing and will not sing must be made to
sing. (Old adage.) In this case it is charged in the bill,
not only that the defendant can sing, but also that he has
expressly agreed to sing, and to accompany that singing
with such appropriate gestures as may be necessary and
proper to give an interest to his performance. And from
the facts disclosed, I think it is very evident also that he
does not intend to gratify the citizens of New York, who
may resort to the Italian opera, either by his singing or by
his gesticulations. Although the authority before cited
shows the law to be in favor of the complainant, so far at
least as to entitle him to a decree for the singing, I am
not aware that any officer of this court has that perfect
knowledge of the Italian language, or possesses that exqui-
site sensibility in the auricular nerve, which is necessary to
understand, and to enjoy with a proper zest, the peculiar
beauties of the Italian opera, so fascinating to the fashionable
world. There might be some difficulty, therefore, even if
the defendant was compelled to sing under the direction and
in the presence of a master in chancery, in ascertaining
whether he performed his engagement according to its
spirit and intent. It would also be very difficult for the
master to determine what effect coercion might produce
upon the defendant's singing, especially in the livelier airs;
although the fear of imprisonment would unquestionably
deepen his seriousness in the graver parts of the drama.
But one thing at least is certain; his songs will be neither
216
CURIOUS CASES
Breach of Contract by Opera Singer
comic, or even semi-serious, while he remains confined in that
dismal cage, the debtor's prison of New York. I will there-
fore proceed to inquire whether the complainant had any
legal right thus to change the character of his native war-
blings, by such a confinement, before the appointed season
for the dramatic singing had arrived.
From the terms of the agreement, as stated in the bill,
it is evident that there can be no breach thereof until the 1st
of November next, when the engagement of the defendant
was to commence. Even when that time arrives, the com-
plainant will not be entitled to the defendant's services until
he shall have paid, or tendered to him, a half month's salary
in advance. A specific performance can not be decreed, upon
the present bill, because at the time it was filed, the complain-
ant had no right of action against the defendant, either at
law or in equity. And I believe this court has never yet
gone so far as to sustain a bill quia timet because the com-
plainant apprehended that the defendant might not be will-
ing to perform an engagement for personal services; and
wbere, from the peculiar nature of those services, they
could not be performed until a future day. The writ of ne
exeat is in the nature of equitable bail, and to entitle the
complainant to such bail, there must be a present debt or
duty, or some existing right to relief against the defendant
or his property, either at law, or in equity. The writ in
this case therefore was prematurely granted; and the rule
to discharge it must be made absolute.
CURIOUS CASES
217
Nature, Origin and History of Intoxicating Liquors
NEVIN
V.
LADUE et al., OVERSEERS OF THE POOR, ETC.
Court for the Correction of Errors of New York, 1846.
.
[3 Den. 437.)
Nature, Origin and History of Intoxicating Liquors.
On error from the supreme court to review a judgment
of that court affirming one rendered by the court of common
pleas of Putnam county.
W. Fullerton & N. Hill, Jr., for the plaintiff in error.
J. A. Collier, for the defendants in error.
CHANCELLOR WALWORTH. The suit in the justice's court
against Nevin was for an alleged violation of the statute
against selling liquors without a license. And the principal
question for our consideration is whether ale, porter and
strong beer, are within the prohibitions of the statute as it
existed when this offense is alleged to have been committed.
The statute provides that whoever shall sell any strong, or
spirituous liquors, or any wines, in any quantity less than
five gallons at a time, without having a license therefor
granted as therein directed, shall forfeit twenty-five dollars.
To ascertain whether these malt liquors are included in
the term strong liquors, it may be necessary to refer to the
>
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Nature, Origin and History of Intoxicating Liquors
history of this species of intoxicating beverage, and the
previous legislation on the subject both here and in England.
The words strong liquors in our statutes were probably in-
tended to include all those strong and inebriating drinks
sold and used as beverages which in King James' version of
the scriptures are called strong drink; as well as the prod-
ucts of the still. It will be seen by a reference to the
French translation of the Bible, that the Hebrew word which
is supposed to mean any kind of fermented intoxicating
beverage, and which in our English version is called strong
drink, is, in the French translation that I have examined,
generally rendered cervoise. (Prot. French Bible, Paris ed.
of 1805, Lev. 10, 9; Num. 28, 7; Prov. 31, 6; &c.)
And that is the proper French word to designate the ale or
beer of the ancients produced by the fermentation of grain
in water. (Wilson's French Dict. Cervoise.) The Hebrew
word used in the scriptures could not have meant distilled or
ardent spirit. For the art of distillation was not known to
the ancients, but is supposed to have been discovered several
hundred years after the commencement of the Christian era,
and to have been introduced into England by Friar Bacon
about the thirteenth century. There the knowledge of the
process of distillation was for a long time confined to the
religious houses, and its product was sold and used only
as a medicine. But upon the dissolution of the monasteries
shortly before the middle of the sixteenth century, the
knowledge of the art became general. I think, however,
it had been in common use in Ireland long before the time
2
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Nature, Origin and History of Intoxicating Liquors
of Henry the Eightb, under the name of usquebaugh. But
the intoxicating beverage now known as ale, or beer, pro-
duced by the fermentation of barley, wheat, and other
farinaceous substances, must have been used by the Jews at
a very early day; as it was by other eastern nations. Its
use as a beverage was probably known to them while they
sojourned in the land of Ham, and before the Pentateuch
was written. For beer was in use in Egypt from the most
remote antiquity. The learned President De Goguet, in
his valuable treatise on the origin and progress of laws, and
of the arts, among the most ancient nations, says that
next to wine it was the most ancient and universal liquor.
It was the common drink of the greatest part of Egypt ;
and its invention is exceedingly ancient. (1 De Goguet, B.
2, art. 3, p. 108, Edinb. ed. of 1775.) And the discovery
of the art of making it, as stated by Diodorus of Sicily,
(Diod. Sic. Lib. 1,) was there ascribed to Osiris; who was
the Bacchus of the Egyptians. (Tertullian De Corona, v.
7, Oxford ed. of 1842, p. 170. See also Beloe's Heroditus,
Phil. ed. of 1840, p. 95, n.) Beer was sometimes called
by the ancients the Pelusian potution. (Wilson's Fr. Dict.
art. Beer.) And they probably gave it that name because
they first obtained it from the city of Pelusium, near the
mouth of the Nile; where it was made in very great quan-
tities at an early day. (1 Wilk. Man. & Cust. of the
Ancient Egyp. Lond. ed. 1837, p. 172.) We also know
from the inspired volume that long before Moses wrote, ,
some of the then dwellers in Canaan knew that the land of
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Nature, Origin and History of Intoxicating Liquors
Egypt not only shared largely of the bounties of Ceres, but
that also, by the providence of Joseph, it was able to supply
neighboring nations with grain in a time of famine. And
as the vine did not flourish in Egypt, it probably was oinos
kristhinos, or barley wine, that Joseph gave to his brethren
on their second visit to that country to buy corn, when they
drank largely and became intoxicated; as the Hebrew text
clearly indicates ; (Hunter's Sac. Biog. v. 2, p. 75, 8th
Lond. ed.;) or, in the language of our translation, “ drank
and were merry with him.” (Gen. 43, 34.)
Herodotus, the oldest of the Grecian historians, who wrote
nearly five hundred years before the commencement of the
Christian era, and who traveled over Egypt and Italy as
well as Greece, says the Egyptians used a liquor drawn from
barley by fermentation. (Beloe's Herodotus, Book 2, $ 77, p.
95.) Athenæus, in his Feast of the Sophists, also cites Aris-
totle, the tutor of Alexander the Great, to show the intoxi-
cating effects of beer among the Egyptians in his day; and
that those who got drunk on it invariably lay upon their
backs, while those who got intoxicated upon wine always
lay upon their faces. (Athen. Deipnosophisho, Lib. 1, p. 16,
C. p. 34, 3. and Lib. 10, p. 418, E. Lond. ed. of 1612.)
Beer was not only in general use in Egypt long previous to
the time of Herodotus, but it had found its way into other
countries also; or at least it was known in them at a much
earlier period. It was known to Archilochus, the Grecian
poet and satirist, who flourished about the time of the last
of the decennial archons, and near the end of the reign of
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Nature, Origin and History of Intoxicating Liquors
the good King Hezekiah, seven hundred years before the
Christian era. For be, as well as Sophocles the tragedian,
who wrote three hundred years later, calls this liquor wine
of barley.
Dr. Robinson, in his Hebrew Lexicon, refers to Herodotus
and also to Diodorus of Sicily, to show that the word shekar,
usually translated strong drink in King James' version of
the Bible, means any inebriating liquor ; and includes ale
or beer.
He also refers to St. Jerome to show that it in-
cludes mead or metheglin, an intoxicating beverage also well
known to the ancients, and sometimes called by them wine of
honey. And he might have added that in Jerome's time
the word sikera, from the Hebrew shakar, to get drunk, was
used to designate any kind of inebriating drink; whether
made from grain, honey, juice of apples, dates or other
fruits. (See Parkhurst's Hebrew Lexicon, p. 827, and also
Hieron. Epist. ad Nepotianun Devita Clericorum.) It
may
be that the word chica, which was used by the Aborig-
ines of this continent, as the name of an intoxicating bev-
erage found among them at a very early day, produced by
the fermentation of maize or Indian corn, was derived from
the same Hebrew root.
Acosta, in his Natural History of the Indies, written in the
sixteenth century, and Frezier, in the account of his voyage
to the South sea, and the coast of Chili and Peru, about
1713, and other voyagers of that day, give the name, and the
disgusting mode of preparing that kind of beer among the
Indians : in which the saliva of the females answered the pur-
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Nature, Origin and History of Intoxicating Liquors
pose of barm in producing the vinous fermentation. (See
Acosta Hist. Nat. des Indes, Paris ed. of 1598, p. 161;
Voyage de Frezier, Paris ed. of 1716, p. 62; Dampier's
Voyage to the Bay of Campeachy, Lond. ed. of 1700, p. 113.)
De Lery, who visited America more than a century before
Frezier and Dampier, also refers to the same custom. (See
Voyage de J. De Lery, Paris ed. of 1580, p. 124.) Indeed,
we learn from Garcilasso de la Vega's History of the Incas
of Peru, that an intoxicating beer, produced by the fer-
mentation of grain, was in use among the Peruvians long
before they were first visited by the Europeans. And they
probably brought the knowledge of the art of making it with
them, at that unascertained period of time when adventure
or accident first brought them to this continent. (Hist. des
Incas, tome 2, Par. ed. of 1744, p. 196.) The Abbe
Molina, in his history of Chili, states the fact that the
Aborigines of that country, in burying their dead, deposited
in the mound with theni vessels filled with chica or beer,
to subsist the deceased on his passage to the other world.
(Hist. of Chili, vol. 2, p. 81, Middletown ed. of 1808.)
And it is worthy of remark that some of the earthen jars
found in the Chilian and Peruvian burial places were
similar in form and appearance to those which Lane says he
saw in the tombs at the necropolis of ancient Thebes ; and
which contained the dregs of beer. (See Lane's Modern
Egyptians, vol. 2, p. 34.)
Xenophon, who wrote between three and four hundred
years before the Christian era, shows that beer was then in
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Nature, Origin and History of Intoxicating Liquors
use among the Armenians upon the borders of Kurdistan.
In describing the retreat of the ten thousand Greeks, after
the battle of Cunaxa, he makes mention of a fermented
liquor, prepared from grain, which the inhabitants of that
country, through which they passed, like the more refined
tipplers of the present day, sucked through a reed or hol-
low tube. The passage in Xenophon is thus translated:
" There was also wheat, barley and legumens; and beer in
jars in which the malt itself floated even with the brims of
the vessels ; and with it, reeds, some large and others small
without joints. These, when any one was dry, he was to
take in his mouth and suck. The liquor was very strong
when unmixed with water,” &c. (See Cooper's Xen. Phil.
ed. of 1845, p. 246 &c.) The elder Pliny, who must have
written shortly after the middle of the first century, as he
perished at the eruption of Vesuvius which destroyed
Herculaneum in seventy-nine, notices the intoxicating
drinks which were in use among the different nations of his
day. He says, the drinks of the Egyptians were manufac-
tured from grain steeped in water ; and that a similar liquor
was used by the several nations who inhabited the west of
Europe, with which they intoxicated themselves. He
notices the fact that the manner of making the liquor was
somewhat dissimilar in Gaul, Spain and other countries;
and that the people of Spain in particular brewed the liquor
so well that it kept good for a long time. It was called by
different names, but its nature and properties were the same
in all the nations where it was in use. And to show that
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Nature, Origin and History of Intoxicating Liquors
even then it was considered a curse instead of a benefit to
mankind he remarks that so exquisite is the ingenuity of
mankind in gratifying their vicious appetites, that they have
invented a method to make water itself intoxicate. (Plin.
Nat. Hist. Book 4, SS 12, 22; B. 14, $ 19.) Tacitus, also,
in describing the manners and customs of the Germans in his
day, notices their drunken broils from the excessive use of
beer. (See Murphy's Tacit. De Mor. German. $$ 22, 23,
Phil. ed. of 1842, p. 552; and Diod. Sic. Lib. 5, p. 350,
Amsterdam ed. 1745.) Perhaps the people of Spain bad as
early as Pliny's time discovered the antiseptic property of
hops when mixed with ale or beer; although hop$were not
used in brewing in England until some centuries later. That
the art of malting was in use before the Christian era may be
inferred from Ovid. He describes the meeting of Ceres,
when exhausted and weary, with an old woman, and when
she requested water of her, the latter presented the goddess
with some of this inebriating product of her own bounty, a
liquor manufactured from dried grain. (Ovid Met. Lib. 1.)
The story is thus translated :
“The Goddess knocking at the little door,
'Twas opened by a woman, old and poor ;
Who, when she asked for water, gave her ale,
Brewed long, but well preserved from being stale."
At what time beer was first introduced into England, is un-
certain ; but it was probably in use there very soon after
the discovery of that country by the Romans, if not before.
For according to Morewood, Dioscordes, who wrote in the
time of Nero, records the fact that the British and Irish
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Nature, Origin and History of Intoxicating Liquors
then used an inebriating liquor called curmi, made from
barley. Morewood also states that the manner of making
ale or beer by the ancient Britons and other Celtic nations
is thus described by Isodorus, and by Orosius, who was a
disciple of St. Augustin. “The grain was steeped in water
and made to germinate, by which its spirits were excited
and set at liberty; and it was then dried and ground ; after
which it was infused in a certain quantity of water, and being
fermented, it became a pleasant, warming, strengthening and
intoxicating beverage. (Morew. Hist. 530.) This liquor
was called by the people of Spain celia, and ceria. The
Britons, as we have seen, called it curini. And in Germany
and Gaul, as well as among the Romans, it was called cere-
visia, from Ceres, the goddess of grain, and vis, power or
strength. Its proper name in the English language, there-
fore, is strong liquor, or strong drink. Buckhardt, Salt,
Bruce and other modern travelers in Egypt, Nubia, Abys-
sinia, &c., mention a similar liquor still in use in those coun-
tries under the name of bouza; which is made by fermenting
barley and other farinaceous substances with water, but
without malting the grain ; which makes a strong and inebri-
ating drink, and is in extensive use. And an evidence of its
intoxicating qualities is the fact stated by one of those writ-
ers, that it is used sometimes to catch monkeys; who like
the bipeds they are so apt to imitate are inclined to partake
of the pleasures of the inebriating cup, without duly consid-
ering the consequences. To effect his object, the monkey-
catcher places a vessel filled with bouza at the foot of the
CC-15
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Nature, Origin and History of Intoxicating Liquors
tree on which the animals are gamboling, and then watches
at a distance until they come down and regale themselves to
intoxication. And we, who have seen the effect of similar
proceedings elsewhere, can readily imagine what is the inevi-
table result of this stratagem to the bouzy monkeys.
The regulation of ale houses and victualling houses in Eng-
land claimed the attention of the government at a very
early day, and long before the art of distillation was known
there. For in the latter part of the tenth century King Ed-
gar put down all ale houses except one in each borough or
small town. The statutes of 5 and 6 Edward 6, ch. 25 ;
1 James 1, ch. 9; 4 James 1, ch. 5; 21 James 1, ch. 7;
and 1 Charles 1, ch. 4, (7 Evans Stat., 1, 3, 5, 7, 9,) which
were subsequently passed to regulate ale houses and tippling
houses, all related merely to the retailing of ale, beer, wine,
ardent spirit, and other intoxicating beverages sold at such
houses to be drank therein, and not to the manufacture or
sale of such liquors to be used elsewhere. Nor was there
any rerenue or excise duty raised upon the granting of li-
censes to such houses. Those regulations and restrictions,
however, applied to the sale of every kind of intoxicating
beverage which was sold at such taverns, or tippling houses.
But so far as related to the making and vending of ale or
beer generally, there was no restriction. Nor was there any
duty imposed thereon until about the middle of the 17th
century. Both before and since that time, there were not
only common brewers, who made such liquors for sale to
others, but many of the inhabitants had brewing materials
.
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Nature, Origin and History of Intoxicating Liquors
and manufactured the liquor for their own consumption.
Morewood says, it is a common practice in Staffordshire,
Shropshire and Warwickshire, as well as in the midland coun-
ties, for women to brew ; that many of them follow it as a
livelihood, going from house to house as the wants or calls
of the victuallers require; that this has been the practice for
centuries ; hence the term ale-wives as recorded in some of
the old statutes. (
(Morewood, 543.) The term as used in
an early statute of Massachusetts, referred to by the counsel
for the defendants in error upon the argument, however, did
not refer to this class of brewing dames, but to their name-
sakes the herring ; who probably derived their cognomen
either from the redness of their gills, or from their attach-
ment to ale or strong beer. Most likely the latter ; for I
see by a statute passed in the time of Cromwell, (Scobell's
Stat. 458,) that this intoxicating beverage has sometimes
been used for the enticement of herring and some other fish
into difficulty, as well as men and monkeys.
In 1643, a tax was laid for one year upon ale and beer
brewed by a common brewer, or by any private person who
should sell or tap out such ale or beer, either publicly or pri-
vately ; which tax upon home manufactured articles was
called by the new name of excise, as the duty upon the im-
portation of articles from abroad was called an impost. This
excise was continued from time to time by the Cromwellian
parliaments until the statute of 1656, chapter 19, to which I
have before referred ; which appears to have been unlimited,
and to have continued in force until the Restoration. By that
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CURIOUS CASES
Nature, Origin and History of Intoxicating Liquors
>
statute, the general principles of which seem to have been
afterwards adhered to in England, a distinction was made
between ale or beer of a particular strength and value, sub-
sequently called strong beer, or porter, and beer of a less
value which assumed the name of small or table beer ; both
of which, however, were strong and intoxicating liquors.
The excise upon the one, when brewed by a common brewer,
or by any other person for sale, was fixed at two and six
pence, and upon the other at six pence the barrel ; and in
the same proportion for a greater or less quantity. In the
same statute an excise duty of two pence a gallon was imposed
upon aqua vitce, or strong waters, distilled within the com-
monwealth. A duty of two and six pence a hogshead was
also imposed upon cider and perry, made and sold by retail ;
and a penny a gallon on mead and metheglin and such like
drinks, thus made and sold. And the act concludes with a
proviso, to which I have before alluded, that the excise duty
thereby imposed shall not extend to salt used in salting her-
rings, &c., or to beer used for taking them. (Scob. Stat.
452.) Immediately after the Restoration the same excise
duty was granted to Charles the Second and his successors;
and this excise duty was farmed out during his life. (Stat.
12 Charles 2, ch. 8.) After his death the excise duty was
continued to his successors, with various modifications from
time to time, until 1830; when the excise upon cider and
perry was abolished.
But I believe the excise duty upon
all the other intoxicating beverages manufactured for sale,
including mead and metheglin, still continues in England.
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Nature, Origin and History of Intoxicating Liquors
At the union in 1707, the English excise duties on beer, &c.,
were extended to Scotland ; and a malt liquor of intermedi-
ate strength, in use there, called twopenny ale, was also
provided for.
It will be seen that these were mere revenue laws, as the
earlier laws of this state were, and had no necessary con-
nection with the vending of intoxicating beverages by the
keepers of ale houses and other houses of public entertain-
ment; which houses also were regulated by particular stat-
utes from time to time. The first colonial act which I
have been able to find, fixing an excise duty upon inebriat-
ing liquors here, is the act of October, 1713, entitled “an
act for laying an excise on all strong liquors retailed in this
colony.” (Bradf. Laws, 179 ; 1 Smith & Liv. 94.) A
previous act, however, had been passed in June, 1709, en-
titled "an act for laying an excise on all liquors retailed in
this colony for one year”; which act was replaced by another
passed the next year. That was continued by the act of July,
1711, and subsequently expired by its own limitation ; when
its place was supplied by the act of October, 1713, which was
renewed from time to time until the Revolution. (See 1
Smith & Liv. Laws, 78, 82, 85, 93, 204, 312; and 2 Idem,
497.) By the first section of this colonial act of 1713, an
excise is granted upon all strong liquors retailed throughout
the colony, under the quantity of five gallons, beer and cider
only excepted, of one-eighth of a Spanish milled dollar, or
a York shilling for each gallon so retailed, and three-quar-
ters of a dollar for every barrel of beer or cider. The act
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Nature, Origin and History of Intoxicating Liquors
then provides for farming out the excise and licensing the
retailers, and for the payment of the duty by them. And
the sixth section provides that if any person not duly licensed,
shall at any time presume to sell by retail any strong
liquors, that is, any quantity less than five gallons as afore-
said, the person or persons so offending shall pay the sum of
£5 current money aforesaid, for every such offence.
Even if I had not before shown by the review of the his-
tory of this inebriating drink, and the duties imposed thereon
in England previous to 1713, that the words strong liquors
would include all intoxicating drinks, and particularly beer
produced by the fermentation of malted grain, it is evident
from the language of this act of October, 1713, that ale and
beer must have been included within its provisions. For in
the first section beer and cider are covered by the general
term strong liquors upon which the excise is laid, and are
afterwards excepted for the mere purpose of fixing a lower
rate of duty upon the retailing of those two articles. And
if they are not embraced in the general term strong liquors
in the subsequent sections of the act, the legislature was
guilty of the absurdity of imposing an excise duty of six
shillings currency a barrel upon beer and cider sold by retail,
without making any provision whatever for the collection of
such duty, or for punishing those who sold without being
licensed to sell either of those dutiable articles.
In the revision of the statutes, soon after the close of the
Revolution, the excise is changed from a specific duty upon
the quantity of liquor sold, to an equitable sum to be fixed
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Nature, Origin and History of Intoxicating Liquors
by the commissioners of excise, for permission to retail
intoxicating liquors under five gallons. And provisions are
also inserted in that act for regulating inns and taverns where
liquor is sold to be drank there, as had been done in relation
to the ale houses and victualling houses in England ; and
requiring a special license for that purpose, beyond
the ordinary permit granted to retailers who did not sell
liquors to be drank on their premises. In this revised
act of March, 1788, the language is somewhat changed
from that of the act of 1713. For the act of 1788
uses the words spirituous liquors as well as strong liquors.
And it probibits the sale by retail of any strong or spirituous
liquors, to be drank or used anywhere, without a permit, or
to be drank at the place of sale without a tavern license, &c.
Here, again, however, the legislature have used other terms
showing that the act was intended to have the same extensive
signification as the colonial act of 1713, for which it was a
substitute; terms which clearly indicate that the legislature
intended to include all kinds of strong or fermented inebriat-
ing drinks, as well as ardent spirits, within its general pro-
visions. For the tenth section, which prohibits the sale of
strong or spirituous liquors without a permit or tavern license,
excepts metheglin, currant wine, cherry wine and cider, from
this general prohibition, when those particular kinds of
strong liquors are made by the person selling the same, and
where they are not to be drank at the place of sale : but leaves
the general prohibition to extend to that class of -liquors, as
well as all other intoxicating drinks, where the sale does not
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Nature, Origin and History of Intoxicating Liquors.
come within the special terms of the proviso to the tenth sec-
tion. (See 2 Greenl. Laws, 118, 10.) Under the statute of
March, 1788, therefore, the vendor of these excepted articles
was liable to the penalty of £10, if he sold them by retail to
be drank at the place of sale without having a tavern license;
or if he sold them by retail to be used elsewhere without a
license or permit; provided he was not the manufacturer of
the article soll.
The provisions of the revised act of April, 1801, were the
same, in reference to the question now under consideration,
as those of ihe act of 1788; and were continued in force
until the revision of 1830. The provisions of the revised
statutes are the same, with one or two immaterial exceptions,
so far as they have a bearing upon the question before us.
In some of the sections of the revised statutes, the revisers
and the legislature have added the word wines to the prohib-
itory words of the statute, and also in the sections declaring
the penalties for violations of the act; thus prohibiting the
sale of wines in express terms, whereas it was before only
prohibited in general terms with all other strong or spiritu-
ous liquors. But the statute, still contains a section exempt-
ing, not only the sale of currant and cherry wine, but also
metheglin and cider, from the penalties imposed upon the
sale thereof by the general provisions of the act, for selling
any strong or spirituous liquors or wines by retail, without a
permit or license. (1 R. S. 682, § 26.) This again shows
that the legislature understood strong liquors produced by
fermentation, as well as those which are the product of dis-
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Nature, Origin and History of Intoxicating Liquors
tillation, to be within the general provisions of the act. For
if it were otherwise, it was useless to continue this exception
as to metheglin and cider. Nor was this section inserted
without due and careful consideration by the legislature, as
well as by the revisers. For by a reference to the notes of
the latter to this section, and the section itself as originally
drawn by them, it will be seen that the revisers only proposed
to alter the section from what it was before so far as to let
any person sell these excepted strong liquors by retail, al-
though they were to be drank at the place of sale ; provided
he was the maker of the inebriating liquors embraced in this
section. They therefore framed a section, which was after-
wards amended and passed as the 25th, accordingly. And
they added a note stating that they had altered the qualifica- .
tion of the exception in the previous statute, so far as to omit
the clause which prohibited the excepted liquors from being
drank at the place of sale. (Revs. Rep. of ch. 20, tit. 9, §
25, p. 122.) But the legislature struck out the concluding
words " made by him” from that section as drawn by the re-
visers ; so as to except all sales of metheglin, currant wine,
cherry wine or cider, from the general prohibitions of the
statute against retailing any strong or spirituous liquors or
wines without a license. Under the provisions of the revised
statutes as adopted, therefore, any person was authorized to
retail the four kinds of inebriating fermented liquors ex-
cepted from the operation of the statute by this twenty-sixth
section, anywhere and under all circumstances.
The term strong waters, as used in Cromwell's statute to
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Nature, Origin and History of Intoxicating Liquors
which I have before referred, and in the statute 26 Geo. 2,
ch. 31, which was cited on the argument, was a technical
term used for some time after the introduction of the art of
distillation into England, in the same sense as aqua vitæ, to
designate that clear and colorless fluid, resembling limpid
water, produced by distillation only. And it was entirely
different in its meaning from the term strong drink, as
used in King James' translation of the Bible, and from the
term strong liquor, as used in the colonial act of 1713, and
other subsequent statutes, to denote any intoxicating bever-
age, produced either by fermentation or distillation. I
have, therefore, no doubt that the revised statutes prohib-
ited the selling by retail of ale and porter, and every other
kind of beer which was subject to the excise duty under the
statutes in England, and under the colonial act of 1713.
And if the plaintiff in error admitted that he had been
guilty of such an offense, the judgment of the justice was
right and was properly affirmed by the supreme court.
That question remains to be considered.
The declaration before the justice was a general one,
under the provisions of the revised statutes on that subject,
(2 R. S. 482, § 10,) claiming $25 of debt, which had
accrued to the plaintiffs, as overseers of the poor, under the
section of the statute distinctly referred to in such declara-
tion. No action could have accrued to them, according to
the provisions of that section, unless the defendant had been
guilty of selling strong or spirituous liquors or wines under
fire gallons at a time, without a license therefor. Neither
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235
Nature, Origin and History of Intoxicating Liquors
he nor the justice, therefore, at the time of the trial, could
suppose from the charge then distinctly made against the
defendant, that he had sold either ale or strong beer, or fer-
mented beer, without a license, that he was not charged with
selling such liquor at retail, or under five gallons. An
admission of the charge, therefore, but claiming that it was
not prohibited by statute, was an admission that he had sold
some one of the three articles mentioned, by retail and with-
out license; and so it was the duty of the justice to construe
the admission under those circumstances.
If there was anything in this case from which I could
legitimately conclude that the defendant Nevin must have
understood the term fermented beer to have been used by
the plaintiffs in the same sense as the words ale and strong
beer, or in the ordinary sense in which the word beer is
used to denote an inebriating beverage produced by fer-
mentation from grain or malt, I should have no hesitation
in affirming the decision of the court below. But the term
fermented beer, in the connection in which it was used
before the justice, might well have been understood by
Nevin as intended to cover a charge of selling some of the
various kinds of beer which have long been in use in this
country under the different names of spruce beer, spring
beer, ginger beer, molasses beer, &c. Each of these may
very properly be termed fermented beer, as fermentation to
à certain extent is necessary to fit the article for use.
What was denominated small, or table, beer in England was
a different article from any of these ; and was an excisable
236
CURIOUS CASES
Nature, Origin and History of Intoxicating Liquors
liquor, under the general name of beer. For it differed
from porter only in its strength; and being sold at a
smaller price it was for that reason charged with a lower
rate of duty under the English statutes. But the other
kinds of beer to which I have alluded were never consid-
ered as strong liquors or intoxicating beverages, either here
or in England ; and therefore were not excisable articles.
They do indeed contain a certain amount of alcohol, as
every liquid containing saccharine matter does, imme-
diately after the vinous fermentation has commenced. But
they have not been considered as strong drinks, or intoxica-
ting beverages; either because it was supposed that the
human stomach had not capacity to contain a sufficient
quantity of those kinds of beer, if they were properly
made, to unduly or injuriously excite the person who used
them as a beverage; or for the reason that those who were
in the habit of using them never got intoxicated by such
use.
In penal actions, where the plaintiff seeks to charge the
adverse party with a penalty or forfeiture, he is held to
more strictness than in ordinary suits. For the reason
therefore that the plaintiffs in the suit before the justice did
not state their case with sufficient clearness to show that a
violation of the statute had been committed by the defend-
ant, though they probably supposed they had made out a
proper case by his admission, I think the justice should
have required other or further proof of the commission of
CURIOUS VASES
237
Nature, Origin and History of Intoxicating Liquors
an offense before he gave judgment against the defendant
for the penalty.
On this ground alone I shall vote for a reversal of the
judgment.
For reversal : The Chancellor, and Senators Barlow,
Beekman, Burnham, Denniston, Deyo, Johnson, Jones,
Lott, Porter, Sanford, J. B. Smith, S. Smith, Spencer,
Van Schoonhoven, Wheeler and Wright-17.
For affirmance : Senators Emmons and Williams.
Judgment reversed.
238
CURIOUS CASES
Whether Electricity Is Fire
BABCOCK
V.
THE MONTGOMERY COUNTY MUTUAL INSURANCE COMPANY.
Court of Appeals of New York, 1850.
[4 N. Y. 326.]
Whether Electricity Is Fire-Insurance-Destruction of
House by Lightning Without Ignition.
Babcock sued the Montgomery County Mutual Insurance
Company in the Supreme Court, and declared on a fire
policy, dated the 21st of September, 1844, whereby the
defendants insured two dwelling houses and outbuildings of
the plaintiff, against loss by fire for five years from the
date of the policy. The conditions annexed to the policy
and forming a part thereof contained a clause in these
words: “The company will be liable for fire by lightning,
but not for any loss or damage by fire happening by means
of any invasion, insurrection, riot,” &c.
Ward Hunt, for appellant.
N. Hill, Jr., for respondents.
HURLBUT, J. By the policy set forth in the declaration
the defendants became or liable for fire by lightning," and
the dwelling house of the plaintiff which was the subject of
insurance, 6 was rent and torn to pieces by lightning, with-
CURIOUS CASES
239
Whether Electricity Is Fire
out being burnt or consumed ”; and the question is,
whether this was a loss within the meaning of the policy?
The proposition of the plaintiff is, that in the ordinary
acceptation of language, lightning is fire, and hence that
destruction by lightning in any manner is necessarily a
destruction by fire; or, if not, that in effect the language
of this policy imported an insurance against lightning. In
support of the first branch of this proposition, reference
was made on the argument as well to passages in ancient
scripture, as to the writings of modern philosophers. In
the first book of Kings, (ch. 18, v. 38,) “ the fire of the
Lord” is mentioned as a destructive agent; and at an early
stage in the afflictions of Job he received intelligence that
" The fire of God is fallen from heaven and bath burned up
the sheep and the servants and consumed them.” (Job,
ch. 1, v. 16.) If the fire thus spoken of were atmospheric
electricity, which there may be some reason to doubt, still,
according to the same book, the voice which answered Job
out of the whirlwind designated it as "the lightning of
thunder"; and as if in derision of all human effort to under-
stand or control its action, inquired, "Canst thou send
lightnings that they may go, and say unto thee, here we
are ?” (Job, ch. 38, v. 25, 35.)
A conjecture as to the identity of fire and lightning
appears to have been indulged in by the ancients. Sen-
eca maintained it as probable, and stated that the Stoics
believed that air was converted into fire and water during a
thunder storm. The Epicureans are represented to have
240
CURIOUS CASES
Whether Electricity Is Fire
taught that lightning consisted of fire alone, which was
derived from the sun.
In figurative speech and poetry, lightning is designated
by a variety of terms. Milton, in Paradise Lost, (book 10,)
speaks of the collision of two bodies grinding “the air
attrite to fire."
>>
as late the clouds
Justling, or pushed with winds, rude in their shock
Tine the slant lightning, whose thwart flame driven down
Kindles the gummy bark of fir or pine.”
Spenser alludes to a person dying, “as one with light-
ning fired”; while Pope, in referring to death caused by
lightning, does not suggest the idea of fire, but describes
the fatal influence as the "touch ethereal,” which seems to
be a poetic term for one of the mechanical effects of elec-
tricity. Byron, in the third canto of Childe Harold's Pil-
grimage, has this expression
“ From peak to peak the rattling crags among
Leaps the live thunder."
And again
"as a tree
On fire by lightning; with ethereal flame
Kindled he was and blasted."
From these references, however, we derive but little aid
in ascertaining either the popular acceptation or the true
meaning of the term lightning.
If we turn to the books of the learned relating to electric-
CURIOUS CASES
241
Whether Electricity Is Fire
ity and caloric or heat, we shall encounter much doubt and
contradiction. Descartes has said that "there is nothing in
the whole range of philosophy which does not admit of two
opposite opinions”; and in the present state of science,
electricity and caloric cannot be regarded as exceptions to
this remark. The former is spoken of as an 6 invisible
agency
in the natural world, dependent on an extremely
subtle species of matter, either of a compound or elemen-
tary character, everywhere present, and operating accord-
ing to certain laws, some of which are known, while others
remain to be determined." (Harris on some Elementary
Laws of Electricity; Transactions of the Royal Soc. Lon-
don, 1834.) But this is no sooner affirmed by one learned
writer, than this omnipresent and invisible agent is de-
clared by another scientific gentleman' not to be electricity,
but caloric, “the first of second causes,” of which elec-
tricity is only a modification. Dr. Lardner (1 Lectures on
Science and Art, 539, 540) presents a table containing
numerous instances of the descent of " ball lightning,
collected by M. Arago, in which it is described as “balls of
fire” and “globes of fire.”
But we have it from very
high authority, that although electric discharges have occa-
sionally been described in that form, yet that they are
entirely incompatible with all that is known of electricity
and its modes of discharge ; and that although the phe-
nomena of balls of fire may appear in the atmosphere, it is
denied that they have anything to do with the discharge of
ordinary electricity, or that they are at all related to light-
as
22
CC-16
242
CURIOUS CASES
Whether Electricity Is Fire
ning. (Faraday's E-cperimental Researches in Electricity,
$ 1641.)
Dr. Franklin at one time considered that the fusion of
metals by the electric fluid was a 66 cold fusion”; but it is
now believed that the influence in question results from the
operation of the fluid in raising the temperature of metals,
as it appears that heat is evolved by common electricity
when passed through wires or other substances. And the
current of scientific opinion is at present in favor of the
notion that heat and electricity are distinct from each
other, although distinguished names may be cited to the
contrary. (Faraday ut sup. 88 287, 1625; 2 Lardner's
Lectures,' 66; 10 Edin. Ency. 295 ; Metcalf on Caloric,
passim.) Beccaria, according to Priestly, reckoned hail,
rain and snow among the effects of a moderate electricity ;
and held that waterspouts, tornadoes and earthquakes have
an electric origin. But Dr. Metcalf maintains not only
that caloric is the cause of these, but is the main force
operating to produce the mechanical, chemical and vital
transformations throughout the universe. (1 Metcalf on
Caloric, London ed. 1843, p. 20, 22, 44.) This learned
and ingenious writer insists that caloric is not the offspring
of electricity, but that the latter is a modification of the
igneous principle. That caloric is omnipresent, whilst its
offspring in the form of electric fluid is only occasional;
that without caloric there could be no electricity ; that by
the attraction of caloric for ponderable matter it unites
and holds together all things, and by its self-repulsive
CURIOUS CASES
· 243
Whether Electricity Is Fire
agency it separates and expands all things—asserting with
Bacon that heat and cold are nature's two bands." In
reference to electric discharges in the atmosphere, he main-
tains, that upon the condensation of aqueous vapor, its
caloric is given out in the concentrated form of lightning ;
and he thinks it probable that the luminosity of the spark
is owing to a sudden combustion of air or vapor by so
intense a heat. (1 Metcalf on Caloric, 204, 176, 282, 298,
301, 337.) He conceives that the mechanical force of elec-
tricity demonstrates that it is a material agent—and that
when greatly concentrated it produces the phenomena
ascribed to caloric—and if it combine with metals or other
bodies, producing their liquidity, &c., it communicates no
shock, its peculiar properties being merged into those of
ordinary caloric. (Id., p. 313, 318, 287.)
It is, however, conceded by this writer “that almost
everything connected with the origin and laws of electric-
ity is either debatable or unintelligible ; some maintaining
that it is a subtle and inconceivable refined species of mat-
ter diffused throughout nature; others, that it is a com-
pound of two fluids, each of which repels its own particles
and is attracted by the other ; while a third party main-
tains that it is neither, but a mere effect or property of
ponderable matter."
If the learned in natural science are thus in doubt, how
can the court pronounce upon the nature of electricity?
It is fortunate that the law has wisely relieved us from
such a burthen. 6. It were infinite,” says Bacon, “for the
244
CURIOUS CASES
Whether Electricity Is Fire
law to consider the causes of causes, and their impulsions
one of another; therefore it contenteth itself with the
immediate cause, and judgeth of acts by that, without look-
ing to any further degree.” (Bac. Max, reg. 1; Broom's
Max. 105.)
But while we are neither able nor required to determine
what electricity is, some of its effects are well understood
and agreed to by men of science, and are apparent to ordi-
nary observers. Among its prominent and well shown
effects is its mechanical agency in rending solid matter
which is an imperfect conductor ; in impelling and dispers-
ing light bodies; in perforating, expanding, compressing,
tearing and breaking to pieces, &c. (Edinb. Enc. tit.
Electricity.) It has not been ascertained how this influence
is exerted, although it has been sometimes referred to the
expansion of the water or other fluid, contained in the
pores of the body which the electric fluid penetrates. But
however that may be, it is clear that it may produce the
effects mentioned without actually setting fire to the object
acted upon.
The action of electricity in the evolution of light and
heat, in inflaming combustible bodies, in fusing metals, &c.,
is reckoned among its well known chemical effects. And
it appears to have been ascertained that of the chemical
power of a current of electricity is in direct proportion to
the absolute quantity of electricity which passes.” (8 Ed.
Ency. 322; Faraday's Exp. Res. in Electricity, $ 783.)
Treating electricity as an agent which is capable of pro-
CURIOUS CASES
245
Whether Electricity Is Fire
ducing destructive effects, it is mainly, if not altogether, in
reference to its well known modes of mechanical and chem-
ical action, that danger is to be apprehended to property ;
and it is, therefore, only as against these that insurance
would naturally be required. No doubt it would be
proper for the owner of property to ask for indemnity
against all the effects of lightning, as it would clearly be
competent for the insurer to limit the policy to certain
specified effects. In case of a general insurance against
lightning, as the risk would be increased beyond what it
would be in case it were limited to only one known effect
of it, it is to be presumed that the rate of premium would
be proportionately enhanced ; and whether the insurance
be general or limited, or what is its character and effect,
must in all cases be gathered from the language of the
policy. In the case in hand, the parties, who are pre-
sumed to have had an ordinary acquaintance with the
known effects of lightning upon a building, and knowing
that it might either rend, shatter, and prostrate it, or
ignite and cause it to be consumed, entered into the con-
tract of insurance, which is the foundation of this contro-
versy. They employed ordinary words, and not scientific
terms, to express their meaning ; and the policy must be
understood in the plain, ordinary and popular sense of the
words used in it. (2 Arch. N. P. 272.) Taking the lan-
guage of the policy in this sense, the defendants did not
undertake to indemnify the plaintiff against lightning, nor
the effects of lightning. Such an undertaking might have
246
CURIOUS CASES
Whether Electricity Is Fire
charged them with the loss alleged to have been incurred.
But they became liable for one only of the known effects of
lightning, to wit, for fire produced by that means; having
treated the lightning as a cause, and fire resulting from it
as an effect, and the only effect to be insured against.
According to Webster, “lightning” is defined to be sa
sudden discharge of electricity from a cloud to the earth,
&c., producing a vivid flash of light,” &c. He does not
speak of "fire" in connection with it; while he defines the
latter to be a heat and light emanating visibly, perceptibly,
and simultaneously, from any body ; or in popular accepta-
tion, the effect of combustion." Here we have the sense
in which it must be intended that the parties employed
these terms in their contract; and it seems to me that the
learned judge who delivered the opinion of the supreme
court was entirely correct, in saying that the terms of the
policy exclude the idea that it was intended to cover dam-
age by lightning, when there was no ignition. The insur-
ance was against fire, and the clause in reference to
lightning seems to have been introduced to avoid any doubt
which might arise as to the liability of the insurers for fire
originating from that peculiar source. But however that
may be, the declaration should have averred a loss by fire,
i. e. from actual ignition and burning ; whereas the aver-
ments of the plaintiff as modified by the stipulation between
the attorneys present a case of mechanical destruction
purely, and expressly negative the idea of burning or con-
sumption by fire, in the common acceptation of the term.
CURIOUS CASES
247
Whether Electricity Is Fire
The very obvious remark of CH. J. GIBSON, in 3 Barr
Penn. Rep. 47, is applicable here ; that “when the peril
insured against is fire, the instrument of destruction must
be fire. »
>>
יל
An old writer (Weskett on Ins. 212, 213) speaks of
insurances against fire as securing the insured from the
“ flames,” and of the risk of the insurer being diminished
where there is a plenty of water, and dispositions have
been made for the extinguishment of fires.' But these
would have very little influence in arresting the mechanical
effects of lightning. Emerigon on Insurances, (translated by
Meredith,) ch. 12, $ 17, speaks of the liability of insurers
for "accident by fire," when “ caused by lightning.” In
1 Philips on Ins. 631, 2, it is said in reference to maritime
insurers, that they are liable for loss when the property
is consumed by lightning,” &c.
&c. In Smith's Mercantile
Law, 340, it is said to be immaterial how the fire was occa-
sioned, whether by lightning or any other cause. In 1
Camp. R. 123, Lord Ellenborough said : “ If the ship is
destroyed by fire, it is of no consequence whether it was
occasioned by a cannon, accident, or by lightning," &c.
“Loss by fire, when caused by lightning, is held to be
a charge upon the underwriters, under the word "fire,' in
our common form of policy.” (2 Arnould on Marine
Ins. 806.) These authorities, which were referred to by the
learned counsel for the defendants, show the legal accepta-
tion of the term "fire" in connection with lightning,
and it is but a reiteration of its popular meaning. It is the
248
CURIOUS CASES
ܟ
Whether Electricity Is Fire
effect of combustion, caused by ligbtning. The latter is
not treated as 6 fire,” but as an agent that may produce fire,
which is the immediate and only recognized cause of loss.
Electricity, caloric or heat, may so act, without produc-
ing fire, as to cause great injuries to property ; but these
are not embraced by an insurance against fire alone.
(Austin v. Drew, 4 Camp. N. P. R. 360; 6 Taunt. R.
437.)
On the whole, I think it clear that the plaintiff has not
averred a loss within the meaning of the policy; and that
the judgment of the supreme court, with the very clear and
satisfactory reasons assigned in its favor by MR. JUSTICE
PRATT, should receive the concurrence of this court.
Judgment affirmed.
I
CURIOUS CASES
249
Chapter in New York Politics
EBER MOFFATT
V.
ZADOCK PRATT.
Supreme Court of New York, 1855.
[12 How. Pr. 48.]
Pleading-Irrelevancy and Redundancy-Chapter in
New York Politics.
The complaint stated that one Hiram Cumming was
possessed of about 500 prints, struck from a certain steel-
plate engraving, originally designed to represent the form
and features of the celebrated British statesman Sir Robert
Peel, in a standing posture, and whose head was decapi-
tated, or struck off, by a certain curious piece of mechanical
necromancy, and the head of the defendant, the Honorable
Zadock Pratt, substituted therefor, at his special instance
and request, and under his dictation and direction, with
which he was so well pleased, that he contrived to get
into his possession the said prints, which the said Hiram
Cumming duly sold to the plaintiff for a good and sufficient
consideration; and which, after such sale and transfer, and
before the commencement of this action, the defendant
wrongfully converted to his own use, by distributing in
divers counties and different sections of this state, to be
stuck up in the pot-houses, bar-rooms, groceries, oyster
saloons, public libraries and legislative halls, for the pur-
250
CURIOUS CASES
Chapter in New York Politics
pose of exhibition, so that the enlightened freemen of the
empire state would become so enamored of his august per-
sonage as to bear hir triumphantly into the executive chair,
and make him governor of a mighty commonwealth, the
said prints still being the property of the plaintiff, and he
being entitled to the possession thereof. Wherefore the
plaintiff demands judgment against the defendant for $500,
the value of the prints.
The defendant moved to strike out, as irrelevant and
redundant, those parts of the complaint which are printed
in italics.
Thomas Smith, for plaintiff.
W. H. Peckham, for defendant.
Harris, J. The subject of the action is certain prints,
which the plaintiff alleges the defendant had wrongfully
converted to his own use. It was proper that the plaintiff
should describe the property thus converted. He has
chosen to do so by referring to the origin and history of
the engraving from which the prints had been struck.
The description is sufficiently distinct and intelligible. It
might, undoubtedly, have been stated more briefly, and,
perhaps, in terms less offensive to the defendant, but this
was a matter of taste, rather than of legal necessity.
So far as the matter of the complaint embraced in the
motion tends to furnish a description of the subject of the
action, it cannot be regarded as either irrelevant or redun-
dant. But I think it was quite unnecessary for the plaintiff
to state that the mechanical necromancy,” by which the
CURIOUS CASES
251
Chapter in New York Politics
head of Sir Robert Peel was struck off, and that of the
defendant substituted, was performed "at the special
instance and request of the defendant, and under his dicta-
tion and direction." This part of the statement can hardly
be considered as tending to identify the engraving from
which the prints in question had been struck. It was
obviously designed for an entirely different purpose--one
unknown to the rules of pleading under any system of prac-
tice. This portion of the complaint, therefore, must be
struck out, as wholly irrelevant.
And so must all that portion of the complaint specified in
the second clause of the defendant's notice. It was enough
for the plaintiff to allege that the prints had been wrong-
fully converted by the defendant to his own use.
If the con-
version should be denied by the defendant, it may, upon the
trial, be allowable for the plaintiff to show that the defend-
ant had distributed the prints in the manner stated, with a
view to establish the fact of a conversion. But even then,
it would be quite incompetent for the plaintiff to give evi-
dence, even if he were able to do so, to show the motive
which actuated, the defendant in making such distribution.
Whatever may have been the defendant's purpose, if he has
converted the plaintiff's property, he is liable for its value.
He is liable for nothing more, even though he had been
actuated by a motive as absurd and ridiculous as that stated
in the complaint.
The defendant having but partially succeeded in his
motion, neither party is entitled to costs.
252
CURIOUS CASES
Duel Between Dogs-Canine Etiquette
WILEY
V.
SLATER.
Supreme Court of New York, 1856.
[22 Barb. 506.]
Duel Between Dogs-Canine Etiquette-Right of Dog's
to Fight.
Appeal from a judgment of the Oneida county court,
affirming the judgment of a justice. The action was
brought to recover damages for alleged injuries to the
plaintiff's dog, inflicted by the defendant's dog, in a fight,
in consequence of which the plaintiff's dog died.
+
R. II. Morehouse, for the appellant.
D. C. Stoddard, for the respondent.
W. F. ALLEN, J.
This is the first time I
have been called upon to administer the law in the case of a
pure dog fight, or a fight in which the dogs instead of the
owners were the principal actors. I have had occasion to
preside upon the trial of actions for assaults and batteries
originating in affrays in which the masters of dogs have
borne a conspicuous part, and acquitted themselves in a
manner which might well have aroused the envy of their
canine dependents. The branch of the law, therefore,
1
CURIOUS CASES
253
Duel Between Dogs-Canine Etiquette
1
applicable to direct conflicts and collisions between dog and
dog is entirely new to me, and this case opens up to me an
entire new field of investigation. I am constrained to
admit total ignorance of the code duello among dogs, or
what constitutes a just cause of offense and justifies a resort
to the ultima ratio regem, a resort to arms, or rather to
teeth, for redress; whether jealousy is a just cause of war,
or what different degrees and kinds of insult or slight, or
what violation of the rules of etiquette, entitle the injured
or offended beast to insist upon prompt and appropriate
satisfaction, I know not, and am glad to know that no nice
question upon the conduct of the conflict on the part of the
principal actors arises in this case. It is not claimed, upon
either side, that the struggle was not in all respects dog-
like and fair. Indeed, I was not before aware that it was
claimed that any law, human or divine, moral or ceremo-
nial, common or statute, andertook to regulate and control
these matters, but supposed that this was one of the few
privileges which this class of animals still retained in the
domesticated state ; that it was one of their reserved rights,
not surrendered when they entered into and became a part
of the domestic institution, to settle and avenge, in their
own way, all individual wrongs and insults, without regard
to what Blackstone or any other jurist might write, speak
or think of the “ rights of persons” or “rights of things."
I have been a firm believer with the poet in the instructive
if not semi-divine right of dogs to fight; and with bim
would say,
254
CURIOUS CASES
Duel Between Dogs—Canine Etiquette
“ Let dogs delight to bark and bite,
For God hath made them so ;
Let bears aud lions growl and fight,
For 'tis their nature to."
It is possible that had the owners of both dogs been
present the belligerents would have been changed, and the
familiar questions growing out of son assault demesne and
molliter manus imposuit would have been presented, but
no such questions are made here.
The defense is not rested upon the principle of self-de-
fense, or defense of the possession of the master of the vic-
torious dog. Had this defense been interposed, a serious
and novel question would have arisen, as to the liability of
the offending dog for excess of force, and whether he would
be held to the same rules which are applied to human
beings in like cases offending ; whether he would be held
strictly to the proof of the necessity and reasonableness of
all the force exerted, under the plea that in defense of his
carcass or the premises committed to his watch and care,
- he did necessarily a little bite, scratch, wound, tear,
devour and kill the plaintiff's dog, doing no unnecessary
damage to the body or hide of the said dog."
Addressing myself to the question really made in the
case, then, the first difficulty I meet with is the want
of proof of ownership by the defendant of the offending
dog. The plaintiff made a prima facie case, by proving
an apparent possession of the dog, but the appearances
were entirely explained by the witness Nowell, who testi-
fies that the dog was not owned by the defendant, nor kept
CURIOUS CASES
255
Duel Between Dogs—Canine Etiquette
nor harbored by him, but was really a trespasser on the
premises, being kept at the shop adjoining. Upon the
question of ownership there is really no conflict of testi-
mony.
2. Whatever may have been the character and habits of
the dog, there is no evidence that he was the aggressor, or
in the wrong, in this particular fight. The plaintiff's dog
may have provoked the quarrel and have caused the fight;
and if so, the owner of the victor dog, whoever he may be,
cannot be made responsible for the consequences.
3. There is no evidence that the dog alleged to belong to
the defendant was a dangerous animal, or one unfit to be
kept. The cases cited, in which dogs have attacked human
beings, although trespassers, and the owners have been held
liable, are not applicable. It is one thing for a dog to be
dangerous to human life, and quite another to be unwilling
to have strange dogs upon the master's premises. To attack
and drive off dogs thus suffered to go at large, to the
annoyance if not to the detriment and danger of the public,
would be a virtue, and that is all that can be claimed, upon
the evidence, was done in this case. Owners of valuable
dogs should take care of them proportioned to their value,
and keep them within their own precincts or under their
own eye.
It is very proper to invest dogs with some dis-
cretion while upon their master's premises, in regard to
other dogs, while it is palpably wrong to allow a man to
keep a dog who may or will, under any circumstances, of
his own volition, attack a human being. If owners of
256
CURIOUS CASES
Duel Between Dogs-Canine Etiquette
dogs, whether valuable or not, suffer them to visit others
of their species, particularly if they go uninvited, they
must be content to have them put up with dog fare, and
that their reception and treatment shall be hospitable
or inhospitable, according to the nature or the particular
mood and temper, at the time, of the dog visited. The
courtesies and hospitalities of dog life cannot well be regu-
lated by the judicial tribunals of the land.
4. The evidence is slight that the dog died in conse-
quence of this fight. I should infer, from the evidence, that
he continued his annoying visitations until some one who
did not own a white dog with black spots on his head made
use of a shotgun or “Sharpe's rifle,” or some other sub-
stitute, to abate the nuisance.
But as this question is left
in doubt by the evidence, the judgment of the justice is
conclusive as to the cause of death. I can, however, see
no just grounds for the judgment. It can only be sup-
ported upon the broad ground that when two dogs fight
and one is killed, the owner can have satisfaction for his
loss from the owner of the victorious dog ; and I know of
no such rule. The owner of the dead dog would, I think,
be very clearly entitled to the skin, although some, less
liberal, would be disposed to award it as a trophy to the
victor, and this rule would ordinarily be a full equivalent
for the loss; and with that, unless the evidence differ
materially from that in this case, he should be content.
The judgment of the county court, and of the justice,
reversed.
CURIOUS CASES
257
Judicial Notice as to Human Height
CHARLES H. HUNTER, RESPONDENT,
V.
THE NEW YORK, ONTARIO AND WESTERN RAILROAD COM-
PANY, APPELLANT.
Court of Appeals of New York, 1889.
[116 N. Y. 615.]
All About Giants-Judicial Notice as to Height of Human
Body.
Appeal from judgment of the General Term of the
Supreme Court in the second judicial department, entered
upon an order made December 14, 1886, which affirmed a
judgment in favor of plaintiff, entered upon a verdict.
This action was brought to recover damages for injuries
received by plaintiff while in defendant's employ as
brakeman.
a
William Vanamee, for appellant.
T. A. Read, for respondent.
BROWN, J. Assuming that the plaintiff was struck upon
the head by the brick arch within the tunnel, and that he
was, as a result of that blow, thrown from the cars and
injured, I think there was ample evidence for the jury to
determine that the defendant was guilty of neglect produc-
ing the accident, and that the plaintiff was free from
1
CC-17
258
CURIOUS CASES
Judicial Notice as to Human Height
*
*
carelessness contributing to it. The jury were warranted
in finding that the only notice that the plaintiff had of the
existence of the arch was that received from the tell-tale.
This was located about two hundred feet west of the west
entrance of the tunnel. It served as a warning of the
approach to the tunnel, but it gave no notice of the
obstruction within the tunnel. A person receiving its
warning and noticing the height of the tunnel might natu-
rally suppose that the height at the entrance would be
maintained throughout its length, and if the height was at
any point reduced that notice of that fact would be given.
Relying, therefore, upon what would be apparent to his
observation, he was exposed to a danger of which he had
no notice or information.
It appears that the tunnel at the west entrance was twenty.
feet high. Two hundred feet from the entrance the
brick arch began and continued for a distance of eighty-
five feet. It reduced the height of the tunnel to fifteen
feet nine inches, measured from the rail. The plaintiff
testified that he left the engine and went on the top of a
box car and sat down. His exact words are : "I was sit-
ting down on the box car, on the head box car, where the
brake was ;
I went out on the box car and sat down, and
that is the last I remember."
This car was identified and proven by a witness called by
plaintiff to have been eleven feet two inches high from the
rail to the foot-board that the men walk on, in the centre
of the roof. There was, therefore, a space of four feet and
CURIOUS CASES
259
Judicial Notice as to Human Height
*
seven inches between the top of the car where plaintiff was
sitting and the bottom of the arch. There was a cut or gash
on plaintiff's forehead, which it is claimed he received by
coming in contact with the arch, so that his head, to
have received a blow at that point, must have been at least
four feet eight inches above the foot-board on the top of
the car.
There was no evidence given on the trial as to the plain-
tiff's size or height, and the argument is now made that as
the jury saw him, and could, therefore, judge of his size,
it must be assumed that it was not impossible for bis head
to have reached as high as the arch; and the learned judge
who presided at the trial appears to have submitted this
question to the jury, saying: “If the plaintiff was sitting
down, it is for you to say whether his head would reach to
that height.”
The verdict of the jury rests upon an affirmative answer
to this question, and we are now called upon to say whether
we will accept that finding and sustain the judgment, or
whether we will take judicial notice of the height of the
human body and the measurements of its separate parts,
and so taking notice of those facts reverse a judgment that
is based upon a finding clearly contrary to the laws of
nature.
The court may take notice of the size and height of the
human frame, and, doing so, we know that the plaintiff's
head could not have reached to a height sufficient to come
in contact with the arch.
260
CURIOUS CASES
Judicial Notice as to Human Height
We know that the average height of man is less than six
feet. That the average length of the body from the lower
end of the spine to the top of the head is less than thirty-
six inches. That the measurement varies but little in
adults, and that the chief difference in the height of men is
in the length of their lower limbs.
To assume, therefore, as we must, in order to sustain
the judgment, that the top of the plaintiff's head, when in a
sitting position, was four feet seven inches above the board
on which he was sitting, is to assume him to have been not
only far above the average height of man, but of a height
beyond that of which we have any authentic record.
It has not been claimed by the respondent that the plain-
tiff was a man of extraordinary height, and if he was, I
think a fact so rare in the course of nature should be made
apparent in some way on the record.
It can be asserted, I think, without contradiction, that
man whose forehead would be four feet seven inches above
a seat upon which he was sitting would have a frame at
least nine feet high. History affords no authenticated
instance of men attaining such height. Buffon, in his
Natural History, records instances of men attaining extraor-
dinary height, but modern writers do not accept his state-
ments. Pliny tells of an Arabian nine feet high, but the
story is not authenticated.
In the article upon “Giants" in the Encyclopedia Britan-
nica, it is stated that the tallest man whose stature has
been authentically reported was Frederick the Great's
CURIOUS CASES
261
Judicial Notice as to Human Height
Scotch giant, who was eight feet three inches tall. In the
College of Surgeons in London there is a skeleton of an
Irishman, who was named Charles Bierne, which measures
eight feet high. Such heights are of rare occurrence, and
the height of nine feet has probably never been attained by
man. Suppose the proof bad shown that upon approach-
ing the entrance to the tunnel the plaintiff was standing up
and his body had been found between the entrance and the
west end of the arch, would it be assumed that his head
had struck the roof of the tunnel, which would have been
eight feet ten inches above the top of the car? In other
words, would the court, to sustain the judgment, assume
him to have been over eight feet and ten inches in height ?
Yet that assumption would call for no greater exercise of
the imagination than to suppose his head to have reached
the bottom of the arch when he was in a sitting posture.
To assume either fact requires us to believe that the plain-
tiff was nearly, if not fully, nine feet in height.
I think, therefore, the court may take judicial notice of
the fact that a man could not strike his head against an
obstruction four feet and seven inches above the place on
which he was sitting, and that being so, the negligence of
the defendant was not established.
In no other way or manner is it suggested that the
defendant was negligent, except in the maintenance of the
arch and the failure to warn the plaintiff of its existence.
Unless the plaintiff's injuries can, by s preponderance of
evidence, be attributed to those causes, his case must fail.
262
CURIOUS CASES
Judicial Notice as to Hunnan Height
Unless the proof shows that he struck his head against the
arch, the judgment can only be sustained on pure specula-
tion. There are numerous ways in which the accident
might have happened, but none other have any support in
the testimony, and if the case is left in such a condition
that it is just as possible the injury came from one cause as
another, the judgment must be reversed. (Taylor v. City
of Yonkers, 105 N. Y. 202.)
It has been said that an appellate court will not take
judicial notice of facts not proven on the trial for the pur-
pose of reversing a judgment. While all reasonable
intendments should be indulged in to support a judgment,
the court is not called upon to assume the existence of a
fact which is contrary to the ordinary course of nature,
solely because the party raising the question did not give
oral testimony upon it at the trial.
In a case like this, in which it is well known that it can
be submitted to a jury with generally but one result, the
judgment should not be upheld when it is apparent that the
verdict is not supported by the evidence.
Here the finding which must exist to support the judg-
ment is so contrary to our general knowledge, and so far
outside of common occurrence, that it may, in the absence
of further proof, be regarded as contrary to nature, and
hence untrue, and substantial justice will be done by
reversing the judgment and granting a new trial.
Upon such trial, if the plaintiff was a giant in stature, or
if, as claimed by the learned counsel for respondent, the
CURIOUS CASES
263
Judicial Notice as to Human Height
+
space above the car was less than I have stated, such facts
may be made clear.
The judgment should be reversed, and a new trial
granted, costs to abide event.
FOLLETT, Ch. J., POTTER and PARKER, JJ., concur ;
BRADLEY and VANN, JJ., dissent for the reason that the
ground upon which JUDGE BROWN founds his conclusion
was not specifically raised at the trial, and it does not
necessarily appear that it might not have been obviated
if it had been so raised there; and that, in such case, judi-
cial notice of a fact upon which no evidence was given or
point made on the trial should not be taken for the pur-
pose of reversing a judgment; HAIGHT, J., did not sit. .
Judgment reversed.
f
264
CURIOUS CASES
Divorce for Physical Incapacity
WILLIAM RILEY, APPELLANT,
V.
MARY A. RILEY, RESPONDENT.
Supreme Court of New York, 1893.
(73 Hun 575.]
Divorce-Physical Incapacity of Wife Who Bears
Twins.
William Riley, appellant, in person.
Thayer & Small, for the respondent.
PRATT, J. This action was brought to annul the mar-
riage between plaintiff and defendant on the grounds that
the defendant, at the time of the marriage, was physically
incapable of contracting marriage ; that such incapacity was
known to her, but unknown to him, and was fraudulently
concealed from him by the defendant.
The parties intermarried on July 14, 1890, and cohabited
together until shortly before this action was commenced in
June, 1892, a period of nearly two years. They had twins
born to them in February, 1891, about seven months after
their marriage, one of which died on the night of its birth,
the other about three months later. This would seem to
CURIOUS CASES
265
Divorce for Physical Incapacity
dispose of the question of defendant's want of capacity,
unless plaintiff expected her to have triplets.
As to the other grounds alleged by plaintiff, it is suffi-
cient to say that they were not proven, neither the incura-
ble defects nor their fraudulent concealment, and, even if
proven, we know of no rule of law that will enable a hus-
band to annul the marriage contract on the ground that his
wife has a swollen tongue or inflammation of the bladder.
We are satisfied that the court at Special Term made a
proper disposition of the case, and that the judgment should
be affirmed with costs.
BARNARD, P. J., concurred ; DYKMAN, J., not sitting.
Judgment affirmed, with costs.
266
CURIOUS CASES
A11 About Dogs
WILLIAM R. WOODBRIDGE, PLAINTIFF,
V.
WILLIAM D. MARKS, DEFENDANT.
Supreme Court of New York, 1895.
[14 Misc. 368.]
All About Dog's-Canines in Prose and Poetry.
McLaughlin & Rowe (John C. Keeler, of counsel), for
plaintiff.
Hand, Kellogg & Hale (R. L. Hand, of counsel), for
defendant.
RUSSELL, J. The defendant demurs upon the merits to
the complaint. The complaint avers that the defendant
wrongfully kept several fierce and dangerous dogs, well
knowing them to be ferocious, vicious and of a mischievous
disposition and accustomed to attack and bite mankind ; that
on the 10th day of May, 1895, the said dogs, or some of
them, while in the keeping of the defendant as aforesaid,
attacked and bit the plaintiff and severely wounded him.
It will be observed that no allegation is made, in addition
to the statements of fact as to the character of the dogs and
their maintenance by the defendant, of any active partici-
pation by the defendant in the injury, or of any act of
negligence on his part.
CURIOUS CASES
267
All About Dogs
Is it necessary to add an allegation of this character to
the complaint in order to justify recovery?
There has been much discussion in the books as to the
standing of the dog, both as to the right of ownership in
him and the limitations under which he may be kept and
used. He has become now, if he had not before, a recog-
nized article of property and adopted from the wild state
into that of feræ domesticce. As a pet, companion, watch-
dog or herder he has his uses, sentimental or otherwise.
For his courageous and faithful qualities he has been
admired by all walks of mankind and immortalized by
eminent writers. More than 300 years before the Chris-
tian era Socrates said of him, 66 When I see some men I
love my dog the more,” and early in the present century
Lord Byron wrote of him :
“ But the poor dog, in life the foremost friend,
The first to welcome, foremost to defend."
And again :
“ 'Tis sweet to hear the watchdog's honest bark
Bay deep-mouthed welcome as we draw near home."
At the present day this animal is one of those which are
protected by the philanthropy of the society which believes
and maintains that the lower animals should be shielded
from cruelty as well as the human animal. He is thus rec-
ognized as entitled to his proper place in the economy of
civilization.
But what is that place? The answer to this inquiry may
268
CURIOUS CASES
A11 About Dogs
solve not only the rights of the animal himself as a dog,
but also the rights of his owner to use and keep him.
One of the ablest of the opinions in the jurisprudence of
this state upon this subject is written by the late JUSTICE
W. F. ALLEN as far back as 1856 in the case of Wiley v.
Slater, 22 Barb. 506.* In that case the defendant had a
dog. evidently of superior ability in the fighting line to that
of the dog owned by the plaintiff, so that in a fierce con-
tention upon the merits of the respective animals the defend-
ant's dog succeeded in depriving the plaintiff's dog of his
existence. Being a supposably valuable dog, the plaintiff
sued the defendant and recovered for the value of his dog.
It became, therefore, necessary for the General Term,
upon an appeal being taken from the affirmance by the
County Court of the justice's judgment, to determine
whether, prima facie, the fact of the killing justified the
recovery, there being no evidence as to which dog was
originally the aggressor.
JUSTICE ALLEN frankly confessed his incompetency to
speak by authority of the code duello of dogs. He recog-
nized, however, and judicially adopted, the poet's commen-
tary on the nature of dogs :
“That dogs delight to bark and bite
For God hath made them so,"
and judicially announced the rule that, when dogs fight in
pursuance of their disposition to do so, the mere killing of
*This case is reported herein before, p. 252.
CURIOUS CASES
269
A11 About Dogs
one dog by another does not justify a recovery, and that
the owner of the slain dog is entitled only to the salvage,
consisting of the skin of the deceased.
He, however, limits the application of the rule laid down
by him by the statement that there was no proof in the
case that the dog triumphant was of a vicious or dangerous
disposition, and the implication fairly is that, if this kind of
a character had been proven to exist in the surviving dog,
the trial court might have been justified in its judgment.
This was a case to determine the responsibility of the
owner in a controversy between dog and dog. The rule
should be stronger as against the owner of the offending
animal where tbe victim of the propensities of the dog is a
human being. Conceding the highest place here or here-
after to this companion of man which is claimed by any
one, even to the faith of the Indian-
“ That in the happy hunting grounds
His faithful dog shall bear him company,”
still, in the walks of life be must give way to the interests
of man.
Whether this be so or not, as a question of pure
ethics, it is so recognized by man-made law in courts
administered by man. As against the dog, man has the
right of way. It is not a presumption of law or fact that
a human being is of a fierce, vicious or dangerous disposi-
tion. It is as yet the belief of mankind, recognized and
acted upon, that the ordinary nature of human beings has
the proper elements of kindness and justice. It, therefore,
270
CURIOUS CASES
All About Dogs
seems to be a necessary deduction that when a fierce,
vicious, dangerous animal, accustomed to bite mankind,
attacks and wounds a human being, the presumption is that
the dog is the aggressor and the offender, which presumption
may, of course, be rebutted, but, without rebutting proof,
must be acted upon as well founded.
Starting with this presumption, as between the dog and
the man, that the facts stated show the dog to be in the
wrong, what is the presumed liability of the owner ? It is
an undoubted fact that owners have a right to keep fierce
and dangerous dogs for the protection of their premises, if
so guarded that they will inflict no injury, except in unu-
sual emergency which justifies their resort to nature's
weapons in defense of their master's belongings. Such a
state of facts may well be a justification to the owner as
well as the dog. But it is not to be presumed without
proof; and, therefore, upon the ground that where a
fierce, vicious and dangerous dog, 'accustomed to bite man-
kind, known to be such by the owner, attacks and wounds
a human being, the burden lies upon the master to show
the provocation or excuse, this controversy is decided.
The demurrer in this case is overruled, with costs, with
leave to answer within twenty days on payment of the
costs.
Demurrer overruled, with costs, with leave to answer.
CURIOUS CASES
271
Liability of Bailee of Pet Cat
LILLIAN C. MOERAN, RESPONDENT,
V.
THE NEW YORK POULTRY, PIGEON AND PET STOCK Asso-
CIATION (LIMITED), APPELLANT.
Supreme Court of New York, 1899.
[28 Misc. 537.]
Liability of Bailee of Pet Cat to Exhibitor-Defective
Coop.
Appeal by the defendant from a judgment rendered in
favor of the plaintiff in the Municipal Court, seventh dis-
trict, borough of Manhattan.
Murphy, Lloyd & Boyd, for appellant.
E. H. Moeran, for respondent.
FREEDMAN, P. J. The action was brought to recover
the value of a cat delivered by the plaintiff to the defend-
ant for exhibition, and to be returned after the lapse of a
certain period of time. The defendant, at the time of the
delivery, conducted an exhibition of pet animals at Madison
Square Garden. The cat was entered under the rules of
the association, which, so far as material here, provided
that the entry was to be made at the owner's risk, and that
all specimens would be cared for and returned at the close
272
CURIOUS CASES
Liability of Bailee of Pet Cat
of the exhibition, and that the association would exercise
all reasonable vigilance in the care of the exhibits, but
would not be responsible for loss by fire or otherwise.
There was no stipulation exempting the defendant from
liability in case of negligence. The true construction of
the contract between the parties, so far as material for the
purpose of the present controversy, therefore, is that,
though the cat was received at owner's risk, the defendant
remained bound to exercise ordinary care to prevent escape.
The facts disclosed by the record fully establish that the
defendant did not exercise the ordinary care requisite for
that purpose, but was negligent, and that the escape of the
cat was due to such negligence.
Upon these facts judgment was properly rendered for
the plaintiff in the court below.
The judgment should be affirmed, with costs.
LEVENTRITT, J., concurs.
MacLEAN, J. Herein is an instance of bailment, or, to
borrow learned language from Massachusetts (10 Gray,
366), locatum, of a Manx feline, described as a male speci-
men, longer as to its two bind legs than as to its fore,
prize-winning from agricultural societies, of great value
and without a tail. Zenda, for so the Manx was hight,
was brought to the show of pigeons, of poultry and of pets
of the defendant, and placed in a coop thereof by mistress
and maid, assisted by an offering man, of fair complexion
and dressed in blue checked overalls, with a colored blouse,
CURIOUS CASES
273
Liability of Bailee of Pet Cat
in which livery many were about, who opened the coop
door and showed both how to open and to close it. A little
later the powerful and peculiar exhibit had moved the iron
cage, unforesightedly not fastened at the bottom, along and
partly beyond the platform whereon it stood, making an
aperture sufficient for his escape. Then he was off.
There was quick but bootless pursuit by the attendants, in
pack with many others, with hue and cry. Though often
spied in the secrecies between the roof rafters and sub-
cellar of the vast garden, Zenda was never recovered.
Whether his manucapture was impracticable because he
was strenuously moved to solitude by jealousy or any other
of the impulses delicately suggested by ALLEN, J., in his
lettered and sympathetic opinion (22 Barb. 506) anent the
contentions of and over the dogs of Oneida county, or
because ferce nature, as was held (47 Hun, 366) to be the
bivalve, though destitute of locomotivity, in an oyster-bed
litigation in the adjoining judicial department, is not
'stated. The defendant contends that it was relieved from
liability for such loss because the animal was received at
66 owner's risk." But that proviso in the entrance blank,
read with the regulations also prepared and furnished by
the association, caused the owner to assume only the risk
arising from ordinary dangers not to be prevented by rea-
sonable and ordinary care on the part of the show com-
pany. It left the latter liable for occurrences which might
be avoided with ordinary care and prudence. It still left
to the exhibitor a right to anticipate that the coops pro-
CC-18
274
CURIOUS CASES
Liability of Bailee of Pet Cat
vided, and in which, within the regulations, exhibits could
only be shown, would be suitable for their purpose and
such as were likely to enable the defendant to carry out its
undertaking to return the exhibit at the close of the exhi-
bition. Besides, the constructive caption of the cat at the
outset was lucrandi animo, so far as the corporation had a
mind. It was delivered on the invitation of the defendant,
which charged and received a payment for the entry and
for the coop
" Then it was," to take again from Massa-
chusetts without plagiary, "locatum and not a depositum,
and the defendants were liable for a want of ordinary care.
Newhall v. Paige, 10 Gray, 366. The learned justice of
the Municipal Court before whom the parties appeared and
introduced their evidence found for the plaintiff, and cast
the defendant in damages of fifty dollars. He was right.
Judgment affirmed, with costs.
CURIOUS CASES
275
Singing in Church Out of Time
STATE
V.
WM. LINKHAW.
Supreme Court of North Carolina, 1873.
[69 N. Car, 214.]
Singing in Church Out of Time-Disturbing Religious
Worship.
Indictment for misdemeanor, tried before RUSSELL, J.,
at Robeson Superior Court, Spring Term, 1873.
Defendant was indicted for disturbing a religious congre-
gation. The evidence as detailed by several witnesses was
substantially this : Defendant is a member of the Method-
ist Church; he sings in such a way as to disturb the congre-
gation ; at the end of each verse, his voice is heard after all
the other singers have ceased. One of the witnesses, being
asked to describe defendant's singing, imitated it by sing-
ing a verse in the voice and manner of defendant, which
produced a burst of prolonged and irresistible laughter,
convulsing alike the spectators, the Bar, the jury and the
66
Court."
It was in evidence that the disturbance occasioned by
defendant's singing was decided and serious ; the effect of
it was to make one part of the congregation laugh and the
other mad ; that the irreligious and frivolous enjoyed it as
276
CURIOUS CASES
Singing in Church Out of Time
fun, while the serious and devout were indignant. It was
also in evidence (without objection) that the congregation
had been so much disturbed by it that the preacher had
declined to sing the hymn, and shut up the book without
singing it; that the presiding elder had refused to preach
in the church on account of the disturbance occasioned by
it; and that on one occasion a leading member of the
church, appreciating that there was a feeling of solemnity
pervading the congregation in consequence of the sermon
just delivered, and fearing that it would be turned into
ridicule, went to the defendant and asked him not to sing,
and that on that occasion he did not sing. It also appeared
that on many occasions the church members and authorities
expostulated with the defendant about his singing and the
disturbance growing out of it. To all of which he replied :
" That he would worship his God, and that as a part of his
worship it was his duty to sing.” Defendant is a strict
member of the church, and a man of exemplary deportment.
It was not contended by the State upon the evidence that
he had any intention or purpose to disturb the congrega-
tion; but on the contrary, it was admitted that he was con-
scientiously taking part in the religious services.
Defendant prayed the Court to instruct the jury that if
the defendant did not intend to disturb the congregation he
was not guilty.
This instruction his Honor refused, and among other
things, told the jury that it would not excuse the defendant
to say that he did not intend to disturb the congregation.
CURIOUS CASES
277
nging in Church Out of Time
The question is, did he intend to commit the act which did
disturb the congregation? The jury must be satisfied that
there was an actual disturbance occasioned by the defend-
ant's act. It is a general principle that every man is pre-
sumed to have intended the necessary consequences of his
own acts.
There was a verdict of guilty. Judgment, and appeal
by the defendant.
A
W. McL. McKay and N. A. McLean, for appellant.
Attorney General Hargrove, for the State.
SETTLE, J. The defendant is indicted for disturbing a
congregation while engaged in divine worship, and the
disturbance is alleged to consist in his singing, which is
described to be so peculiar as to excite mirth in one portion
of the congregation and indignation in the other.
From the evidence reported by his Honor who presided
at the trial, it appears that at the end of each verse his voice
is heard after all the other singers have ceased, and that the
disturbance is decided and serious ; that the church mem-
bers and authorities expostulated with the defendant about
his singing and the disturbance growing out of it; to all of
which he replied that he would worship his God, and that
as a part of his worship it was his duty to sing. It was
further in evidence that the defendant is a strict member of
the church, and a man of most exemplary deportment.
" It was not contended by the State upon the evidence
that he had any intention or purpose to disturb the congre-
278
CURIOUS CASES
→
Singing in Church Out of Time
was
gation ; but on the contrary, it was admitted that he
conscientiously taking part in the religious services.”
This admission by the State puts an end to the prosecu-
tion. It is true, as said by his Honor, that a man is gen-
erally presumed to intend consequences of his acts, but
here the presumption is rebutted by a fact admitted by the
State.
It would seem that the defendant is a proper subject for
the discipline of his church, but not for the discipline of
the Courts.
Per Curiam.
Venire de novo.
CURIOUS CASES
279
Sticking Qualities of Mortgages
TURPIN
V.
CUNNINGHAM.
Supreme Court of North Carolina, 1900.
[127 N. Car. 508.]
Change of Color by Mortgaged Horse-Sticking Qualities
of Mortgages.
Heard by JUDGE H. R. STARBUCK, at Spring Term,
1899, of Haywood Superior Court.
No counsel for the plaintiff.
J. F. Ray and Ferguson & Son, for the defendant.
0
CLARK, J. One Ray, being indebted to the plaintiff,
executed to him September 13, 1894, to secure the debt, a
mortgage on a certain “bay horse, six years old, which I
purchased of said Turpin.” The mortgage was regular in
all respects, and was filed for registration March 2, 1895;
the horse being left in possession of the mortgagor. After
the registration, and before the mortgage fell due, the mort-
gagor traded the horse to a party in another county, who
had no actual notice of the mortgage; and after the mort-
gage fell due (September 13, 1895), the horse was traded
from party to party until the defendant purchased him, in
1897, with no actual notice of the mortgage.
66 At the
280
CURIOUS CASES
Sticking Qualities of Mortgages
time and prior to the time the defendant purchased said
horse, he had entirely changed color, from some natural or
unnatural cause, until he was not a bay horse, but a white
and sorrel spotted horse, without any appearance of bay
whatever.” The mortgagee had done all the law required
him to do, when the horse was specifically described in the
mortgage, and that instrument was duly recorded. There
being no doubt as to the identity of the horse, the mort-
gagee does not lose his right to subject the horse to the
payment of the lien because of the change in appearance,
due, probably, to old age. A mortgage on pigs, calves, or
other young animals is not vitiated by their growing up
into boars, sows, bulls, and cows, and the like. Nor would
a mortgage upon boars and bulls be destroyed by turning
them into barrows and oxen, which would be a more sub-
stantial alteration than a change of color. The horse may
shed his color, but a mortgage is not so easily shedded. It
usually sticks closer than the skin. In adjudging that the
mortgagee could recover the horse, or his value if not pro-
duced, to be applied to the mortgage debt, there was no
Error.
CURIOUS CASES
281
:
Right to Kill Trespassing Chickens
STATE
v.
OSCAR NEAL.
Supreme Court of North Carolina, 1897.
[120 N. Car. 613.]
Cruelty to Animals-Right to Kill Trespassing
Chickens.
Indictment for cruelty to animals, tried before NOR-
WOOD, J., and a jury, at Fall Term, 1896, of Stanley
Superior Court.
Attorney General Zeb Vance Walser and J. M. Brown,
for the State.
Adams & Jerome and S. J. Pemberton, for defendant
(appellant).
fowl, "
CLARK, J. This is an indictment for cruelty to animals,
to wit: Sundry Stanley county chickens, “ tame, villatic
as Milton styles them in stately phrase. The
prosecutor and defendant lived very near to each other and
their chickens were exceedingly sociable, visiting each
other constantly. But after the defendants had sown their
peas they had no peace, for the prosecutor's chickens
became lively factors in disturbing both. The younger
defendant, Oscar, as impetuous as his great namesake,
282
CURIOUS CASES
Right to Kill Trespassing Chickens
the son of Ossian, pursued one of the prosecutor's chick-
ens clear across the lot of another neighbor, one Mrs.
Freeman, and intimidating it into seeking safety in a brush
pile pulled it out ignominiously by the legs, and putting
his foot on his victim's head, by muscular effort, pulled its
head off. Then, in triumph, he carried the headless, life-
less body and threw it down in the prosecutor's yard in the
presence of his wife, also letting drop some opprobious
words at the same time. The prosecutor was absent.
Another chicken Oscar also chased into the brush pile, and,
sharpening a stick, jabbed it at said chicken and through
him, so that he then and there died, and Oscar, carrying
the chicken impaled on his spear, threw it over into the
prosecutor's yard. He knocked over another and, impal-
ing it in the same style, also threw its lifeless remains over
into the prosecutor's yard, as the Consul Nero caused the
head of Asdrubal to be thrown into Hannibal's camp. On
yet another occasion Oscar did beat a hen that had young
chickens, which, with maternal solicitude, she was caring
for, so that she died, and the young ones, lacking her care,
also likewise perished. The aforesaid Oscar, on other
divers and sundry times and occasions, was seen "running
and chunking” the prosecutor's chickens. The other
defendant, Oscar's father, proposed to the prosecutor “to
strike a dead line, and each one kill everything that crossed
the line.' The offer seemed too unrestricted, and the cau-
tious prosecutor, whose thoughts were “bent on peace,
as much as his chickens were on peas, firmly declined the
CURIOUS CASES
283
Right to Kill Trespassing Chickens
dead line proposition, but Oscar's father said he "guessed he
would do that way.” As the evidence limited his proceed-
ings to this declaration of war, without any overt act,
a nol. pros. was entered as to him, and Oscar was left
alone to bear the brunt. “Having,” in the language of
Tacitus, “made a solitude and called it peace,” he natu-
rally protests against being now charged with the odium
and burdens of war, which his Honor has assessed at a fine
of $1 and costs.
Both defendants and Oscar's mother went on the stand.
There was no substantial contradiction of the State's evi-
dence, but all three testified that the prosecutor had been
notified to keep his chickens out of their pea patch or they
would be killed. This is the “round, unvarnished tale"
of the evidence.
The defendant's counsel interposed every consecutive
defense from a plea to the jurisdiction to a motion in arrest
of judgment.
The case was tried before a justice of the peace and the
defendant appealed. In the Superior Court a bill of indict-
ment was found by the grand jury and the defendant was
tried thereon. Therefore, in any aspect, there was juris-
diction. Whether the court acquired it by the appeal or
had original jurisdiction by the indictment, it is immaterial
to decide.
Chickens come within the very terms of The Code, sec-
tion 2482, describing the creatures intended to be protected
from man's inhumanity, "any useful beast, fowl or ani-
284
CURIOUS CASES
Right to Kill Trespassing Chickens
mal.” Pigeons were held to be within it.
State v.
Porter, 112 N. C. 887.
The defendants offered to show by Oscar himself that
robe killed the chickens to prevent them from destroying
the peas." This
This was
to show justification and was
properly rejected. The defendants had no more right to
destroy a neighbor's chickens when thus found damage
feasant than they would his cattle. The remedy is by
impounding them till damage paid, or by an action for
damage. Their destruction is not necessary to his rights,
Clark v. Keliher, 107 Mass. 406, which was a case on
all fours" with this for killing a neighbor's chickens while
trespassing after notice to keep them up. In this State, in
like manner, it has been held that one has no right to lay
poison, though on his own premises, for another's “egg-
sucking dog," Dodson V. Mock, 20 N. C. 146; nor to
“ chicken-eating hog” as a nuisance, Morse v.
Nixon, 51 N. C. 293 ; nor a “ breachy hog” for the same
reason. Bost v. Mingues, 64 N. C. 44. These cases refer
to and distinguish Parrott v. Heartsfield, 20 N. C. 110,
where it was held lawful to kill a " sheep-stealing” dog
about to kill sheep. This is because of the fact that such
animal could not be easily caught and impounded, nor
could he be sold for anything to pay damages. In Johnson
v. Patterson, 14 Conn. 1, a very long and learned opinion
sustains the proposition that one is not justified in strewing
poisoned meal on his premises whereby a neighbor's chick-
ens were killed, though notice was given that this would be
ול
kill a
CURIOUS CASES
285
.
Right to Kill Trespassing Chickens
done if they were not kept off. It is true, these were
actions for damages, and not indictments for cruelty to
animals, but if, even in such cases, the trespass is no defense,
certainly evidence to show the trespass by an animal was
incompetent in an indictment whose gist is merely the fact of
cruelty or needless killing. State v. Butts, 92 N. C. 784.
The first prayer for instruction was properly refused.
If this were stock law territory (which is not in evidence)
the killing would be none the less wilful. State v. Brig-
man, 94 N. C. 888.
The second prayer was also properly refused. Chickens
could be impounded at common law, and besides, the
“needless killing” of the chickens is of itself cruelty,
though done without torture. State V. Porter, supra.
The third prayer, that the jury must find that the
defendant "wilfully, knowingly and of stubborn purpose.
killed the chickens” before they could convict, was given.
The fourth prayer was properly refused. The wilful
and needless killing of the prosecutor's chickens was none
the less cruelty to them because done on an “impulse of
anger. Says BURWELL, J., in State v. Porter, supra :
Since the enactment of this Statute it has been unlawful in
this State for a man to gratify his angry passions or his
love for amusement and sport at the cost of wounds and
death to any useful creature over which he has control.
The fifth prayer, which contained this : 6 If the defend-
ant killed the chickens without any intent to wilfully
>
286
CURIOUS CASES
Right to Kill Trespassing Chickens
*
kill them, he would not be guilty," was properly
refused.
There was no aspect of the evidence tending to show an
accidental killing. If the rest of the prayer were correct,
it being incorrect as an entirety, the court was not called
upon to dissect it and give so much as was good.
The sixth prayer was given, and the seventh, from what
has already been said, was properly refused.
The judge stated a correct proposition of law when he
told the jury that the defendant was not justified if he
killed the chickens to prevent the destruction of his crop,
State v. Butts, supra, for he could have prevented it by
impounding them, or he could sue for damages. But he
erred in telling them that the defendant must prove justifica-
tion in the killing. The indictment being that the defendant
did “knowingly, wilfully and needlessly act in a cruel
manner towards a certain fowl, to-wit, a chicken, by kill-
ing said chicken, the said chicken being a useful fowl,” &c.,
this (rejecting refinement, The Code, section 1183) is an
intelligible charge that the defendant was guilty of cruelty
to the useful fowl by needlessly and wilfully killing it.
But the burden was on the prosecution to prove the
“knowingly, wilfully, and needlessly.” It was not incum-
bent on the defendant to prove justification. It is not like
the killing of a human being, which, if done with a deadly
weapon, raises a presumption of malice, State v. Rollins,
113 N. C. 722; nor yet like the proof of a sale of liquor,
which, being shown, the burden devolves upon the defend-
CURIOUS CASES
287
Right to Kill Trespassing Chickens
ant to show the license, because it is a matter peculiarly in
his own knowledge, State v. Emery, 98 N. C. 668; nor
like cases where an act is made punishable irrespective of
intent in which, the act being shown, the burden shifts to
the defendant, State v. Glenn, 118 N. C. 1194, and it was
still greater error to charge that the defendant must prove
the matter of justification beyond a reasonable doubt.
Even where the burden shifts to the defendant, he needs
only to prove it “to the satisfaction of the jury." State
V. Ellick, 60 N. C. 56; State v. Willis, 63 N. C. 26.
But this error in the charge was harmless error, for there
was no evidence tending to show that the defendant was
justified, and the court properly told the jury that the kill-
ing to prevent the destruction of the peas (the only matter
in justification relied on) would not justify the defendant.
The court might properly have told the jury that, if they
believed the evidence, they should find the defendant guilty,
for there was no conflict of evidence, and it amounted to
that, since there was no evidence which made a legal
defence.
In response to the third prayer the court properly
instructed the jury that they could not convict unless they
found that the defendant “knowingly, wilfully and of
stubborn purpose » killed the chickens. This is not a
case of “intent,” which is an inference of inner motive to
be drawn by the jury, State v. Coy, 119 N. C. 901, but of
conduct, cruelty, independent of intent if wilful, and the
defendant's own evidence proved that the killing was done
288
CURIOUS CASES
Right to Kill Trespassing Chickens
wilfully, and the charge being substantially that, if the
jury believed the evidence, he was guilty, was correct.
State v. Woolard, 119 N. C. 779; State v. Riley, 113 N..
C. 648.
What has already been said disposes of the motion in
arrest of judgment. The defendant understood fully the
charge against him, The Code, section 1183.
The Code,
section 2490, provides that “cruelty” shall be held to
include every act, &c., whereby unjustifiable physical
pain, suffering or death is caused. While the indictment is
not carefully drawn, and is, indeed, less accurate than the
warrant originally issued by the justice, the charge of
66 needlessly acting in a cruel manner by killing” is a suf-
ficient charge of cruelty, and is sustained by the uncontro-
verted proof of impaling one chicken on a sharp stick and
beating the ben to death.
Affirmed.
CURIOUS CASES
289
New Trial for Taking Jury to Church
STATE OF NORTH DAKOTA
V.
MYRON R. KENT.
Supreme Court of North Dakota, 1896.
[5 N. Dak. 576.]
Propriety of Taking Jury to Church-Sermon on
Doubting Thomas-New Trial.
Error to District Court, Cass County; MCCONNELL, J.
William W. Pancoast, informed against as Myron R. Kent,
was convicted of murder, and brings error. Affirmed.
M. A. Hildreth, Jas. E. Campbell and W. H. Barnett
(C. F. Amidon, of counsel), for plaintiff in error.
H. G. Voss, State's Atty., J. F. Cowan, Atty. Gen'l
( Wm. P. Miller, of counsel), for the State.
BARTHOLOMEW, J. * By leave of court, and with
the full consent of counsel on both sides, the jury was per-
mitted to attend church. Pursuant to such leave, a portion
of the jury, in charge of the bailiff, attended the Episcopal
Church in Fargo. There is no claim that it was known
beforehand that any jurors would attend that church, or
anything that was said was spoken with the purpose or
expectation of influencing the jury in any manner in
the discharge of their duties. But it so happened that the
CC--19
290
CURIOUS CASES
New Trial for Taking Jury to Church
minister upon that particular day discoursed upon the
familiar subject of doubting Thomas. A large portion of
the sermon has been brought upon the record. In it the
minister animadverts upon the incredulity of Thomas in
refusing to accept the statements of his friends and fellow
disciples as to the existence of a risen Lord, and demanding
ocular and manual evidence thereof. It is claimed that
the whole tenor of the sermon was such as to induce the
jurors to accept facts as proven on less positive and con-
vincing evidence than they otherwise would have done.
Granting this, it is difficult to perceive why the jurors'
doubts would not be resolved just as readily in favor of the
testimony of the defense as of the prosecution. But the
whole theory is wrong. It is speculative and almost chi-
merical. The preacher was speaking of spiritual matters,
and his whole application was spiritual. No reasonable
.
man would be influenced in the performance of his duties as
a juror in the slightest degree by what was said: Were it
otherwise, we do not see how error could be assigned in
this connection. Counsel for the accused, in open court,
consented that the jurors might attend church. He knew
they must hear something, and his consent carried with it
an assent that they should hear anything that was a proper
and ordinary enunciation from a Christiaó pulpit. They
heard nothing more.
The law demands that this judgment be affirmed. It is
so ordered. All concur.
CURIOUS CASES
291
Estoppel of Party Injured by Rescuer
COM. ex rel. SUSAN STEPHENS
V.
CLEMENTS.
Supreme Court of Pennsylvania, 1814.
[6 Binn, 206.]
Estoppel of Party Injured by Rescuer.
This was a habeas corpus issued to Joseph Clements, to
bring up the body of Susan Stephens, in his custody,
together with the cause of her detainer. The defendant
made return, that he held her as a servant by indenture
dated the 3d September, 1813, by which she bound herself
to serve him for the term of three years. The writ was
returnable before the Chief Justice; and in consequence of
its novelty, the case was heard before the whole court.
It appears in evidence that Susan Stephens was a black
woman, formerly the slave of William Maxwell of Kent
county in the state of Maryland ; and that she ran away
from her master, and came to Philadelphia, where she
married George Stephens, a free black residing there.
Maxwell afterwards came to the city, apprehended the
woman, had her in his custody as his slave, and was
about to carry her to Maryland, when Joseph Clements, at
the solicitation of both the husband and wife, agreed to pay
Maxwell 195 dollars, provided he would manumit the wife,
292
CURIOUS CASES
Estoppel of Party Injured by Rescuer
it being at the same time understood that the husband and
wife should bind themselves as servants to Clements for the
term of three years. In pursuance of this agreement,
Clements paid Maxwell the money, Maxwell executed a deed
of manumission, and Stephens and his wife bound them-
selves by separate indentures to serve Clements for three
years.
The indenture of the wife was executed before an
alderman of the city, her husband being present, and con-
senting, but not being a party. It was also executed by
William Masters, one of the society for promoting the
abolition of slavery, who was styled the next friend of the
wife. The indenture was expressed to be made in consid-
eration of the manumission of Susan Stephens by the said
Maxwell, and of 195 dollars paid to him by the said
Clements. At the time of the transaction, Susan was in a
state of pregnancy.
Shoemaker, for the relator.
Hopkinson, contra.
BRACKENRIDGE, J. I have read an account of a case,
real or fictitious, I will not say which, decided in some
country under the civil law, which has been generally
received as a ground of the law of nations; and this ques-
tion, which respects the rights of a slave, cannot but be con-
sidered as having some relation to the law of nations, or at
least authorities of general law may be read in the case.
The case to which I refer, and have in my mind, was said
to be as follows:
CURIOUS CASES
293
Estoppel of Party Injured by Rescuer
A person passing by a pool missed a foot and slipped in.
He was over his depth and the bank was steep. A shep-
herd, observing him from a height, hastened to his assist-
ance, and entangling his crook in the garments of the
drowning man, drew him out. But in attempting to fix
his crook in the first instance, he had hurt the eye of the
stranger in the pool, and which afterwards occasioned the
loss of it. The stranger so rescued brought his suit and
claimed damages ; for it is a principle of our law, derived
from the civil, Southcote's Case, Coke ; Coggs v. Barnard,
Ld. Raymond ; and Jones on Bailments, that even voluntary
service and without reward, if unskilfully performed, may
partake of the nature of injury, and require damages.
The court decided that the plaintiff should have his elec-
tion to go back to the same pool, and put himself in the
same place, and after having struggled awhile and being
half drowned, if he could get out of himself and without
help, he might come back and prosecute his action ; this he
declined, and was nonsuited. I would propose to give the
applicant in this case the like election, which is to annul
the evidence of her manumission, and procure her indenture
to be taken up, and to put herself in her master's hands,
as at the time when she was taken out of his possession, if
this can be done. If she cannot do this, or procure it to
be done, her complaint under this habeas corpus must be
dismissed.
Prisoner remanded.
294
CURIOUS CASES
Assault and Battery Committed by Express License
+
THE STATE
v.
WM. BECK AND OTHERS.
Court of Appeals of South Carolina, 1833.
[1 Hill L. 363.]
Assault and Battery Committed by Express License.
Tried before MR. JUSTICE RICHARDSON, at Pickens-
Fall Term, 1833.
Indictment for an assault and battery. The defendants
were all acquitted, except Wm. Beck. The facts were
these : One of the defendants had lost leather, and sus-
pecting it was stolen, got Beck and the other defendants to aid
him in the search. They found the leather on the premises
of Noble Anderson, and immediately took him into custody,
whether under a warrant or not did not appear. Whilst
in this state, some one, not Beck, asked Anderson if he
would not rather be whipped than go to jail ? He replied
he would, and then requested Beck to whip him. Beck at
first hesitated, but finally, at the earnest entreaty of Ander-
son, and saying, “If it will oblige you, I will do it," con-
sented; and Anderson putting his arms around a tree, he
gave him a few stripes with a switch. Anderson was then
released, but was afterwards prosecuted, convicted and pun-
ished for stealing the leather. Under these circumstances
CURIOUS CASES
295
Assault and Battery Committed by Express License
the presiding judge charged the jury that Beck was clearly
guilty, and they found accordingly. He now moves for a
new trial, on the ground that the whipping, having been
inflicted at the importunity of Anderson and against the
inclination of the defendant, was not an assault and battery.
Burt, for the motion.
Thompson, Sol., contra.
HARPER, J. We do not think the act in question
amounts to an assault and battery, on the part of the
defendant Beck. A battery is generally defined to be any
injury done to the person of another, in a rude, insolent
or revengeful way. There is also another class of cases
where some degree of negligence may be imputed : as
where a person throwing stones into the highway strikes
another passing ; or, as in the instance of a person throw-
ing a lighted squib into a crowd. But where there is no
intention to injure, and no negligence, I do not think the
offence can be imputed. An instance, commonly put, is
that of a soldier firing his piece at muster, and, without
any fault of his own, injuring another, casually and sud-
denly passing before it. A surgeon who, for his patient's
health, cuts off a limb is not guilty of mayhem; or if one
plucks a drowning man out of a river, by the hair of the
head, this is no assault. If, according to the prescription
of the physician in the Arabian Nights, a physician should
beat his patient with a mallet, for the bona fide purpose
296
CURIOUS CASES
1
Assault and Battery Committed by Express License
The person
of restoring his health, though this might be malpractice,
it would be no battery. Where one gave another a license
to beat him, there is a case in which it is said the license
was held to be void. This may well be.
receiving the license entertained hostile dispositions to-
wards the other, and upon being thus licensed, proceeded
to carry his revengeful purpose into effect. But in the
case before us, the defendant had no evil disposition
towards Anderson, but the contrary; and at his own ear-
nest request, and to save him from what he considered a
greater evil, reluctantly consented to inflict the stripes.
However ill-judged the act may have been, I cannot think
it constituted an assault and battery. The case might be
different with respect to the other defendants who were
acquitted ; but as to the defendant before us the motion for
a new trial must be granted.
JOHNSON and O'NEALL, Js., concurred.
.
CURIOUS CASES
297
Larceny of Dog-Burglary of Dog House
STATE
.
LANGFORD.
Supreme Court of South Carolina, 1899.
(55 S. Car. 322.]
Larceny of Dog-Burglary of Dog House.
T. S. Sease, Eugene S. Blease and Asst. Atty.-Gen. U.
X. Gunter, for appellant.
Johnston & Welch, for appellee.
.
JONES, J. In this case the state appeals from an order
quashing an indictment, containing two counts—one charg-
ing burglary of a dog house within 200 yards of and
appurtenant to the dwelling of Mary Nichols, with intent
to steal, etc., the goods and chattels of Mary Nichols in the
said dog house ; the other count charging larceny of a dog
of the value of $10 of the proper goods and chattels of
Mary Nichols, then and there being found in the said dog
house. In sustaining the demurrer to the indictment the
Circuit Court held: (1) that larceny cannot be committed of
a dog ; (2) that the intent to steal goods and chattels,
charged in the first count, necessarily implies the stealing of
a dog, because from a dog house, and that the offense of
burglary is, therefore, not charged ; (3) that it is not com-
298
CURIOUS CASES
Larceny of Dog-Burglary of Dog House
pound larceny to steal from a dog house, as alleged in the
second count.
1. The first and principal question presented is whether
a dog is the subject of larceny. By the old common law, ,
larceny could not be committed of a dog. The reasons
assigned for this were the baseness of the nature of such
creature; that it was kept for mere whim and pleasure ;
that being unfit for food, it was of no intrinsic value ; that
the penalty for the felony of larceny was too severe to apply
for the stealing of so contemptible a créature. By the
statute of 10 George III., c. 18 (George III. was fond of
stag hunting), the taking and carrying away of a dog was
made punishable, but not as larceny. Under the reasoning
satisfactory at that day, it was larceny to steal a tame
hawk, but not larceny to steal a tame dog, although it
was larceny to steal the hide of a dead dog. Yet by the
common law dogs were held to be such property as would
sustain an action of trover for their recovery.
Civil
remedies were permitted for injury to or loss of dogs,
and they would go to the executors and administrators as
property. The reason for the outlawry of dogs in favor of
thieves can hardly be regarded as persuasive at this day
and here, and such crude application of the principles of
the common law must yield to common sense. The fitness
of an animal for food is not the only test of its value to
mankind; its capacity for useful service in other ways is
often the real test of value. Nor is the fact that an animal
is kept for the whim and pleasure of its owner any sort of
CURIOUS CASES
299
܀
Larceny of Dog-Burglary of Dog House
reason for excluding it from the law of larceny as a thing
of no value, for amusement has its valuable uses to man.
Neither is it just to say of the dog that its nature is so
base as to render it unworthy of protection as absolute
property, for Baron Cuvier says the dog is the completest,
the most singular, and the most useful conquest ever
made by man.
When we are told that the Greeks and
Romans employed dogs in war, armed with spiked collars,
and that Corinth was saved by war dogs which attacked
and checked the enemy until the sleeping garrison were
aroused, we better understand Shakespeare's Antony when
he said: “Cry havoc, and let slip the dogs of war." We
should not let our contempt for sheep-killing dogs and our
dread of hydrophobia do injustice to the noble Newfound-
land, that braves the water to rescue the drowning child ; to
the Esquimaux dog, the burden bearer of the arctic
regions; to the sheep dog, that guards the shepherd's flocks
and makes sheep raising possible in some countries; to the
St. Bernard dog, trained to rescue travelers lost or buried
in the snows of the Alps ; to the swift and docile grey-
hound; to the package-carrying spaniel ; to the sagacious
setters and pointers, through whose eager aid our tables
are supplied with the game of the season ; to the fleet fox-
hounds, whose music when opening on the fleeing fox is
sweet to many ears; to the faithful watchdog, whose
honest bark, as Byron says, bays 6 deep-mouthed welcome
as we draw near home”; to the rat-exterminating terrier ;
to the wakeful fice, which the burglar dreads more than he
300
CURIOUS CASES
Larceny of Dog-Burglary of Dog House
now
does the sleeping master ; to even the pug, whose very ugli-
ness inspires the adoration of the mistress ; to the brag
'possum and coon dog, for which the owner will fight if
imposed upon; and lastly, to the pet dog, the playmate of
the American boy, to say nothing of the “yaller dog,
that defies legislatures. Of all animals the dog is most
domestic. Its intelligence, docility and devotion make it
the servant, the companion and
the companion and the faithful friend
of man.
The raising and training of dogs are
pursued by many as a business, large sums of money
are invested in them, and they are bought and sold as
other property. In this state, by statute, dogs are and
have long been taxed as personal property, according to
value and for revenue. As stated in Salley v. R. R., 54 S.
Car. 484 : 6 What the law taxes as personal property it
will protect as such.” This legislation is potent in two
ways : (1) If the common law rule, notwithstanding the
fallacy of the reasoning upon which it is based, as applied
to present conditions, should be held of force in this state,
in the absence of modification by statute, then the statute
taxing dogs as personal property ad valorem and for reve-
nue is a modification of the common law rule. (2) It
brings dogs as personal property and things of value within
the meaning of " chattels” in our state as to simple lar-
ceny—see 160 Criminal Code, the term “chattel” includ-
ing all kinds of property except freehold, or things parcel
thereof, and perhaps choses in action. In the case of Ward
CURIOUS CASES
301
Larceny of Dog-Burglary of Dog House
V. State, 48 Ala. 161, 17 Am. Rep. 31, holding that
there is no such property in dogs as makes them the sub-
ject of larceny, the court was influenced by the absence of
any statute modifying the common law, and the fact that
dogs were not taxed as other property in that state. Like-
wise, in the case of State v. Doe, 79 Ind. 9, 41 Am. Rep.
599, the court, while holding dogs not the subject of lar-
ceny, said : “If dogs were taxed in this state (Indiana) as
other property for revenue purposes, it would be a strong
circumstance to show an intent on the part of the legisla-
ture to abrogate the common law rule, and make them the
subjects of larceny like any other personal property." In
the case of Mullaly v. People, 86 N. Y. 365, a strong case
in support of the view of this court, the court said: “It
can scarcely be supposed that the legislature meant to
regard dogs as property for purposes of taxation, and yet
leave them without protection from thieves.” Sustaining
our conclusion, among others are the following cases :
State v. Brown, 8 Baxt. 53, 40 Am. Rep. 81; Hornsby
v. Sampson (Iowa), 40 L. R. A. 508, and a very able and
exhaustive note on property rights in dogs, beginning at
page 503.
2. The Circuit Court also erred in holding that the
intent to steal goods and chattels, charged in the first count,
necessarily implies the stealing of a dog, because from a
The first count did not charge intent to steal
a dog, but intent to steal the goods and chattels of the
ול
dog house."
302
CURIOUS CASES
Larceny of Dog-Burglary of Dog House
prosecutrix in said dog house. It is not a necessary infer-
ence that no chattel other than a dog could be in a dog
house, as there might have been other chattels there, such,
for example, as collar and chain, block and chain, vessel
for food and water, &c., or, indeed, any other chattel the
proprietor might see fit to place therein. The first count
could, therefore, be sustained as a count for burglary,
without reference to the question whether a dog is the sub-
ject of larceny. In indictments for burglary with intent to
commit larceny, it is not necessary to specify the particular
goods and chattels the defendant intended to steal. 3
Enc. Pl. & Prac. 776. It is urged against this that such
want or specification would prevent the plea of former
acquittal or conviction ; but not so, for such plea is avail-
able if the same burglarious breaking and entering is the
essential ingredient in both charges.
3. In reference to the second count, we think the Cir-
cuit Court correctly held that it failed to charge a com-
pound larceny. In alleging a larceny from « said dog
house,” this count did not allege that the dog house was
appurtenant to and within 200 yards of the dwelling house.
This was alleged in the first count, but the rule is that the
sufficiency of each count must be determined by its own
allegations, without aid from another count.
State v.
Johnson, 45 S. Car. 483. But, nevertheless, it was error
to quash the second count, because it was good as a count
for simple larceny, and the Court of General Sessions has
CURIOUS CASES
303
Larceny of Dog-Burglary of Dog House
concurrent jurisdiction in all cases of larceny triable by
magistrate. See Constitution, art. 5, sec. 18, applied in
reference to larceny of live stock, in the case of State v.
Crosby, 51 S. Car. 249.
The judgment of the Circuit Court is reversed, and the
case remanded for further proceedings.
304
CURIOUS CASES
Requiring Prisoner to Make Footprint in Court
JERRY STOKES
V.
THE STATE.
Supreme Court of Tennessee, 1875.
[5 Baxt. 619.]
Identity of Footprint-Requiring Prisoner to Put
Foot in Pan of Mud.
Appeal from the Criminal Court.
Thos. N. FRAZIER, J.
Atty.-Gen. Heiskell, for State.
P. G. Stiver Perkins, O. S. Galbreath, W. D. Coving-
ton, for Stokes.
LEA, Sp. J. The prisoner was indicted for the murder
of Mrs. Housen in the Criminal Court of Davidson. He
was tried, convicted of murder in the second degree, and
sentenced to twenty years in the penitentiary.
Mrs. Housen was taken from her house at night and
carried some distance and hung to what the witnesses term
a "bog pole." Near the place where she was hung a track
was found in the mud, in a branch, made by a bare foot.
The inference from all the surrounding circumstances is
that the person who made that track was one of the parties
who were engaged in the murder. And, upon an examina-
tion of the record, we are satisfied that the jury in part
CURIOUS CASES
305
Requiring Prisoner to Make Footprint in Court
based their conviction upon their belief that the track
found in the mud in the branch near where Mrs. Housen
was hung was made by the foot of the prisoner. The
question then whether the track was made by the pris-
oner was of very great importance in the investigation.
Upon the trial of this cause, the bill of exceptions shows
that “the state brought in a pan of mud and placed it
immediately in front of the jury, and then asked the wit-
ness if the mud in the pan was about as soft as the mud in
the branch where he saw the track. Witness said it was.
(To all of which defendant objected and the same was over-
ruled.) The attorney-general then called upon the defend-
ant to put his foot in the mud.” Upon objection, the
court told the defendant he could put his foot in the mud if
he wanted to, but he would not force him to do so.
Subsequently another witness was asked if he saw the
pan of mud setting there before the jury. He said he did,
and he was asked if he saw any track in it. He said he
(To all which defendant objected.) Here the
attorney-general again called upon the defendant to put his
foot in the mud.
Because of this action of the attorney-general, and the
assent of court thereto, this cause is reversed and
remanded. In the presence of the jury the prisoner is
asked to make evidence against himself. The court should
not have permitted the pan of mud to have been brought
before the jury, and the defendant asked to put his foot in
it. We are satisfied the jury was improperly influenced
saw none.
CC-20
306
CURIOUS CASES
Requiring Prisoner to Make Footprint in Court
thereby. And it is no sufficient answer that the judge
afterwards told the jury that the refusal to put his foot in
the mud was not to be taken as evidence against him. The
bringing in of the pan of mud and the request of the attor-
ney-general was improper and should not have been per-
mitted by the court. We greatly deprecate the practice
into which some circuit judges bave fallen, in permitting
incompetent and illegal testimony to be placed before the
jury, and afterwards, at the close of the case, withdrawing
it and telling the jury not to be influenced thereby. Such
testimony should be promptly rejected, and not permitted
to go to the jury at all, for jurors with minds untrained to
legal investigations and discriminations are sometimes
likely to be influenced thereby, although such incompetent
evidence may be afterwards withdrawn. And while we
will not reverse because of the admission of incompetent
evidence afterwards withdrawn, unless we are satisfied the
jury was in fact influenced thereby, yet the correct practice
is to reject such evidence at once, and not permit it to go
to the jury.
In this case, as before stated, we are satisfied that the
action of the attorney-general in bringing the pan of mud
into court and requesting the defendant to put his foot in it
had an influence upon the jury prejudicial to the prisoner.
Although we might be satisfied of the prisoner's guilt, yet
it is our duty to see that he has a fair and impartial trial,
and this he must have though costs may accumulate and
punishment be long delayed.
CURIOUS CASES
307
Tearful Argument of Counsel
FERGUSON
V.
MOORE.
1
Supreme Court of Tennessee, 1897.
(98 Tenn. 342.]
Argument of Counsel-Right to Shed Tears While
Addressing Jury.
Appeal in error from Circuit Court of Lincoln County.
DAN WILLIAMS, Sp. J.
Jo G. Carrigan, Bright & Woodard, and Higgins &
Son, for Ferguson.
Holman & Carter, for Moore.
WILKES, J. This is
an action for damages. The
declaration has two counts-one for breach of contract to
marry, and the second for seduction accomplished by rea-
son of such contract.
It is further assigned
as error that plaintiff's counsel, in his closing argument,
called defendant hard names, such as villain, scoundrel,
fiend, hellbound, &c., which, it is alleged, was calculated
to prejudice defendant before the jury. It must be
admitted these are rather harsh terms, and other language
could have been used no doubt equally as descriptive and
not so vituperative, but it does not appear that defendant
308
CURIOUS CASES
Tearful Argument of Counsel
asked the Court to interpose, and we cannot put the trial
judge in error under these circumstances. It is true the
trial judge, in his discretion, might have checked the
counsel on his own motion, but inasmuch as defendant and
his counsel did not object, the Court did not probably feel
called upon to act.
It is not reversible error.
It is next assigned as error that counsel for plaintiff, in
his closing argument, in the midst of a very eloquent and
impassioned appeal to the jury, shed tears and unduly
excited the sympathies of the jury in favor of the plaintiff,
and greatly prejudiced them against defendant. Bearing
upon this assignment of error we have been cited to no
authority, and after diligent search we have been able to
find none ourselves. The conduct of counsel in presenting
their cases to juries is a matter which must be left largely
to the ethics of the profession and the discretion of the
trial judge. Perhaps no two counsel observe the same
rules in presenting their cases to the jury. Some deal
wholly in logic and argument, without embellishments of
Others use rhetoric and occasional flights of
fancy and imagination. Others employ only noise and
gesticulation, relying upon their earnestness and vehemence
instead of logic and rhetoric. Others appeal to the sym-
pathies—it may be the passions and peculiarities of the
jurors. Others combine all these, with variations and
accompaniments of different kinds. No cast-iron rule can
or should be laid down.
Tears have always been consid-
any kind.
CURIOUS CASES
309
Tearful Argument of Counsel
ered legitimate arguments before a jury, and while the
question has never arisen out of any such behavior in this
Court, we know of no rule or jurisdiction in the Court
below to check them. It would appear to be one of the
natural rights of counsel, which no Court or constitution
could take away.
It is certainly, if no more, a matter of
the highest personal privilege. Indeed, if counsel has
them at command, it may be seriously questioned whether
it is not his professional duty to shed them whenever
proper occasion arises, and the trial judge would not feel
constrained to interfere unless they were indulged in to
such excess as to impede or delay the business of the Court.
This must be left largely to the discretion of the trial
judge, who has all the counsel and parties before him, and
can see their demeanor, as well as the demeanor of the
jury. In this case the trial judge was not asked to check
the tears, and it was, we think, an eminently proper occa-
sion for their use, and we cannot reverse for this. But
for the other errors indicated, the judgment must be
reversed and the cause remanded for a new trial. Plaintiff
will pay the costs of the appeal.
310
CURIOUS CASES
Killing Dog While “ Setting” on Track
CITIZENS' RAPID TRANSIT Co.
V.
DEW.
Supreme Court of Tennessee, 1898.
[100 Tenn. 377.]
Street Railroad Companies-Killing Dog While “Set-
ting” on Track-Measure of Damages-Evi-
dence of Pedigree.
Appeal in error from Circuit Court of Davidson County.
JOHN W. CHILDRESS, J.
J. S. Pilcher, for Citizens' Rapid Transit Co.
J. D. B. De Bow, for Dew.
WILKES, J. This is an action for negligently injuring
and killing a dog. It was commenced before a justice of the
peace, and, on appeal, was tried in the Circuit Court before
the court and a jury. There have been two trials, the first
resulting in a mistrial, and the second in a verdict and judg-
ment for $250, and defendant Rapid Transit Company
has appealed and assigned many errors. They are too
numerous to treat separately and seriatim. It is said
there is no evidence to sustain the verdict. It appears
that the Citizens' Rapid Transit Company operates a line of
electric street cars from Nashville to West Nashville, over a
CURIOUS CASES
311
Killing Dog While “Setting” on Track
highway known as the Charlotte Pike. This pike is a
public thoroughfare for wagons and other vehicles, horses,
cattle, pedestrians, and is much used and frequented. The
plaintiff was passing over this turnpike, returning from a
nutting expedition into the country, in a conveyance with
his two daughters. He had taken his gun with him, and
also a favorite bird dog. The accident occurred about five
o'clock in the evening. The dog was running along the
turnpike, or thoroughfare, some one hundred and fifty or
two hundred yards in front of the plaintiff's vehicle, when
he started across the tracks of the street car line, which
were laid on the bed of the turnpike, some little birds flying
up attracted his attention, and he stopped in the center of
the track, and, as some witnesses say, was in the act of
" setting " the birds. The term "setting," as used here,
has a somewhat technical meaning, and means that he was
standing” and intently looking in one direction. In dog
parlance, therefore, "setting" means “standing,” and the
attitude is also called "pointing. While in this attitude a
street car came up rapidly, and, some of the witnesses
say, almost noiselessly, upon him, and ran
over and
crushed him so much that his owner, seeing that he was
fatally injured, shot and killed him. It appears that the
gong was not sounded, the motorman did not shout at the
dog, did not make any effort to check the car until it was so
close that it was impossible to prevent running over the dog.
The motorman excuses his act by saying that the dog came
upon the track so abruptly and unexpectedly, and so nearly
66
>
312
CURIOUS CASES
Killing Dog While “ Setting” on Track
in front of the car, that there was no time to stop the car
or sound the gong, or take any other precautions. There is
other evidence to show that the dog could be seen, and was
seen, quite a distance before the car reached him, and the
weight of the evidence is in favor of this view of the case.
The car was running rapidly and smoothly at the time, the
dog was in plain view upon the track, and, according to some
of the witnesses, the motorman was looking at him for some
distance, and evidently expecting that he would leave the
track in time to escape injury. All other questions out of
the way, there is ample evidence to sustain the verdict of the
jury as to the killing, the negligence of the motorman, and
the reckless running of the cars at a rapid rate of speed,
and without due precaution to prevent accidents to animals
on the track.
It was not error in the trial judge to charge that the
street car company must have sufficient employees on its
cars to operate them in a careful manner, so as to prevent
damages or injuries to persons and animals that might go
upon the track, and was liable for a failure to do so, the
question of what number would be sufficient being left to
the jury under all the circumstances. It appears that, at
this time and place, the motorman was the only employee on
the car, and he was doing duty both as motorman and con-
ductor, the latter having left the car after it passed from
the more crowded portion of the track nearer the city.
The roadway of the street car company being on the road-
way of the turnpike, where persons, horses, and vehicles
CURIOUS CASES
313
Killing Dog While “Setting
Setting” on Track
were constantly passing, and had the right to pass, and on
the same grade as the turnpike, were all circumstances for
the jury to consider, and they could properly do so under the
charge as given. The motorman had also stated that the
reason he did not see the dog sooner was because he was
looking around at the passengers to see if any desired
to get off, so that the charge was called for and appro-
priate.
It was not error to charge that, inasmuch as the street
car track was laid on the roadway, and on the same level
with it, that the dog was not a trespasser if he went upon
the track, inasmuch as the dog was not improperly on the
highway.
It was not error to tell the jury that if, after the dog was
injured, his master killed him, under the honest belief that
he was fatally injured, this would not prevent a recovery.
The action in this case was for both the injury and killing,
and if the jury should have found that the dog ought not
to have been killed, still the plaintiff would be entitled to
damages for his injuries.
It is said that the judge should have told the jury that
the motorman might rely upon the keen sense of hearing,
great alertness, intelligence, and active celerity common to
dogs, and they might consider and weigh their own practi-
cal knowledge as to the nature, character and quality of
dogs, and consider all these matters in reaching a verdict in
The request we think is too broad ; unquestion-
ably, the jury might take into consideration common
the case.
314
CURIOUS CASES
Killing Dog While “Setting" on Track
knowledge and observation about the habits and qualities
of dogs, but it was going too far to say that the motorman
might rely upon t'e.. quickness and celerity of the dog, and
thus absolve himself from all duty and care to prevent the
accident, which is virtually what the request implies. The
court sufficiently stated to the jury the rule applicable, if
the dog appeared so suddenly and immediately in front of
the car that it could not be stopped, and no precaution
could have prevented the accident. The special request on
this point was not necessary, nor as made was it correct.
Assignments are made which raise the question of the
status of dags before the law, and on what plane they are
to be put, and how regarded. It has been held that the
owner of a dog has such property in him as that he may
maintain an action for killing or injuring him.
Wheatly
v. Harris, 4 Sneed, 468. Also, that he is the subject of
larceny as personal property. State v. Brown, 9 Baxt.
53. It has also been held that a dog is an animal such as
the statute contemplates in providing statutory precautions
when they appear upon railroad tracks. Fink v. Evans,
11 Pickle, 416. It is true that at common law a dog was
not considered as property, the reason given being that
they were base in their nature, and kept merely for wbims
and pleasures. But this rule of law has not found favor in
later days, and the reason of the rule is not regarded as
well founded.
In Mullaly v. The People, 86 N. Y. 365, the court said,
very enthusiastically, that " when we call to mind the fact
CURIOUS CASES
315
Killing Dog While “Setting” on Track
that a small spaniel saved the life of William of Orange, and
thus changed the current of modern history, and when we
consider the faithful St. Bernards, whish rescue travelers
caught in the storms which sweep over the crests and sides
of the Alps, the claim that the dog is base in his nature is
overthrown, and he cannot be left a prey to every person
who chooses to steal or kill him. The rule of the common
law was technical in the extreme, for while it was not lar-
ceny by it to steal a dog while living, it was larceny to steal
his hide after he was dead."
Large amounts of money are now invested in dogs, and
they are extensively the subjects of trade and traffic. They
are the negro's associates, and often his only property, the
poor man's friend, and the rich man's companion, and the
protection of women and children, hearthstones and hen-
roosts. In the earlier law books it was said that “dog law”
was as hard to define as was dog Latin." But that day
has passed, and dogs have now a distinct and well-estab-
lished status in the eyes of the law.
Much evidence is given in the case upon the question of the
dog's pedigree and ancestry. The objections made are that
these matters are attempted to be proven by general reputa-
tion, and this is characterized as hearsay. But the question
of pedigree and ancestry is a matter of common or general
reputation, whether the question concerns horses, cattle,
dogs, or men. The matter, from the very nature of
things, depends upon reputation or common repute. It is
shown that certain books are kept, and in them there is a
66
316
CURIOUS CASES
Killing Dog While “Setting
on Track
registration of pedigrees kept up for the information of the
public, not only as to horses, but also as to cattle and dogs.
These are shown to be received as satisfactory evidence of
pedigree in the same manner and upon the same idea as
entries in family records of births, deaths, and marriages
are received with regard to the human family. 18 Am.
& Eng. Enc. L. 258; Flowers v. Haralson, 6 Yer. 494 ;
Rogers v. Park, 4 Hum. 480; Swink v. French, 11 Lea,
79; Morris v. Swaney, 7 Heis. 591 ; Ford v. Ford, 7
Hum. 92. It is true that in family records the entries in
the books are usually made by the relatives and friends of
the person, but inasmuch as dogs have no relatives compe-
tent to make entries for them, it is allowable for such
entries to be made by the owners, friends, and admirers of
the dog.
Upon the general question as to the admissibility of evi-
dence of the dog's pedigree, and the qualities and perform-
ances of his ancestors, we think there can be no doubt but
that such evidence is competent. It is certainly competent
to show pedigree upon the question of value of horses, cat-
tle, and even sheep and swine—their different strains of
blood—and especially as to horses and cows it is competent
to show the qualities of the sires and dams and more
remote ancestry, as these matters enter largely into the
question of value. It is a matter of common knowledge
that the same questions enter in the consideration of the
value of dogs, not only such as are kept for common use,
such as guard dogs, shepherd dogs, Newfoundland dogs,
CURIOUS CASES
317
Killing Dog While “Setting” on Track
but also such as are kept for sporting purposes, such as
grey, blood, and fox hounds, bird dogs and others. There
are high and low degrees among dogs as well as among men,
and while the common coon dog has his value, it is not the
same as that of the trained bird dog or the trained blood-
hound. It is a matter of common knowledge and obser-
vation that certain strains of blood among horses add
materially, if they do not entirely fix their values, and so
among cows and hogs and sheep, and even among chickens
and turkeys. Different strains of blooded horses are valu-
able because it is found that for generations the achieve-
ments of horses of that strain have been noteworthy upon
the turf and elsewhere, and so with dogs these qualities, as
a matter of common observation, are much the same in the
same strain for generation after generation. We think
there is no error in admitting evidence upon these matters
of pedigree, and the reputation of this particular dog killed
is shown to have had what, in dog'circles, is regarded as
- blue blood,” and among these he belongs to the inner
circles of the four hundred, a member of the F. F. T., or
first families of Tennessee. In addition, he was of English
descent. His sire was Champion Tribulation, by imp.
Beppo III., out of imp. Champion Lass of Bow, and so on
for twenty or more generations. His dam was Dick's Sue,
by Dick, out of Ida Heath, &c., for as many generations.
It is fully shown that on both sides the ancestry is traced
back to the best of English nobility blood in dog circles.
The sire of the dog is shown to have had a remarkable
318
CURIOUS CASES
Killing Dog While “Setting" on Track
record in field trials and bench shows, and so with the dam.
Dogs of the grade of the dog that was killed, and with
such pedigree, are shown by the proof to be worth from
$500 to $1,000 in the market. It is also shown that this
dog had had the distemper, and, under the proof, this
added to his value one hundred per cent. It is attempted
to show that this dog's descent may not have been entirely
pure, and it is intimated that he may have had terrier
blood in him, but the only foundation for this inference is
the fact that he starried ” so long on the track when the
car was approaching. But it appears from the record that
it is a characteristic of the pointer, when he sets, to become
oblivious to all earthly surroundings, and the bluer his
blood the more absent-minded he becomes on such an occa-
sion.
The question of pedigree is really important so far only
as it bears upon the question of value of the animal killed.
But it is evident, on examining the record, that the jury
were not influenced by considerations of pedigree in fixing
the damages, since they have named an amount below that
fixed by any witness who placed a value upon the animal,
based upon his pedigree, and adopted as their verdict the
evidence given by the plaintiff and other witnesses of
value, without regard to pedigree, and fixed the amount at
the smallest sum named by him for the dog, taking in view
his qualities, and in leaving out of view his ancestry or
pedigree. The plaintiff fixes the value of the dog at $250,
without any reference to his blood or lineage, and in this
CURIOUS CASES
319
Killing Dog While “ Setting” on Track
he is sustained. He describes him as a handsome dog,
very fast, wide ranger, very stanch on his game and to the
gun, thoroughly broken, a fine retriever from land or
water, with an excellent disposition. He is shown also to
have been a valuable, reliable yard and house dog, and to
have made himself generally useful and almost indispensa-
ble to the plaintiff's household.
With such an eloquent recital of the dog's qualities, the
jury could not, perhaps, have given less damages than $250.
The defendant company introduced no evidence of value,
and no assignment is made that the damages are excessive.
Whatever might be our opinion as to the value of a dog is
immaterial, as we are controlled by the evidence in the
record. While we have not passed seriatim upon the
many errors assigned, we have considered them all, and
given a general view of such matters as consider
important.
Upon the whole case, we are of opinion that the defend-
ant company was guilty of negligence in the killing of this
dog ; that his death could have been prevented by the
exercise of proper care and diligence; that he was fatally
injured by the car, and killed as an act of humanity by his
owner, and the company is liable for the killing. As to
value, it is placed by the jury at the lowest estimate made
by any witnesses, and evidently without regard to his pedi-
gree or the performances of his ancestors.
We are satisfied with the verdict and judgment, and it is
affirmed with costs.
we
320
CURIOUS CASES
Disorderly Conduct of Mule
MINCEY
.
BRADBURN.
Supreme Court of Tennessee, 1899.
(103 Tenn. 407.]
Disorderly Conduct of Mule-Ordinance of Municipal
Corporation-Duties of Poundkeeper.
Appeal in error from Circuit Court of Knox County. J.
W. SNEED, J.
T. L. Carty, for Mincey.
Chas. Nelson, for Bradburn.
WILKES, J. This is a lawsuit arising out of the unlawful
act of a disorderly mule. He was found loitering about the
streets of Knoxville, without any apparent business, no vis-
ible means of support, and no evidence of ownership,
except a yoke on his neck. This yoke was evidence that
the mule had been, at some time, in a state of subjection,
but did not indicate to whom. Although he does not
appear to have been drunk or boisterous, a vigilant officer
of the police of the city arrested him and took him to the
lockup. The policeman was authorized to do this by a city
ordinance, which was no doubt intended and well calculated
CURIOUS CASES
321
Disorderly Conduct of Mule
to preserve the lives of the people and the good order of the
city by prohibiting mules from being loose in the streets.
The mule was arrested on the 7th of September and was
locked up in the city pound. The poundkeeper did not
know who he belonged to, and the mule made no disclosure
of his ownership. The poundkeeper, it appears, went to
the market house and inquired of the butchers if a mule
had escaped from any one of them. Why he should sup-
pose that a butcher's stall should be an appropriate place to
find out the owner of a live mule does not appear. The
poundkeeper further inquired of such country people as he
could find, if they knew of any one who had lost a mule.
A farmer, who lived out about three miles from the city,
said that one of his neighbors had lost a mule, and requested
that no advertisement be made until he could see if the
mule was his neighbor's. When the farmer asked his
neighbor if he had lost a mule, he was told that, unfortu-
nately, he had not. In this way five days elapsed before
any advertisement was made. In the meantime, the mule
was kept in close confinement, and refused to be inter-
viewed. On the 12th of September, or five days after the
mule was arrested, the poundmaster advertised in the Knox-
ville Journal and Tribune that the mule would be sold on
the 14th, unless called for and charges paid ; and no one
calling, the mule was sold publicly for cash for $20, and
one 0. T. Smith became the purchaser. The costs and
charges were paid out of the proceeds of sale, and the
balance was left in the city treasury, to be called for by the
CC-21
322
CURIOUS CASES
Disorderly Conduct of Mule
owner.
What this balance was does not appear.
It is
stated in the record that it was $ (blank dollars).
Whether this means that there was no balance, or that the
amount was unknown and not material, is left in doubt.
Mr. Smith, the purchaser, sold the mule to Mincey, but
for what sum does not appear. Mincey, it appears, bought
the mule in good faith, and did not know that he had ever
been arrested or confined in the city lockup, or that he had
been sold by the city. So far as he knew, the mule had
the usual good reputation of his species. In the meantime,
Mr. Bradburn, to whom the mule belonged, missed him
from his corn crib, and supposed he had gone to Sevier
county, where he came from originally. He made
inquiries, however, and among other things went to a tele-
phone station to inquire of the poundkeeper if he had such
a mule. It appeared, however, that “Central” was busy
or gone
to dinner, and Mr. Bradburn couldn't reach the
poundkeeper. He thereupon asked Mr. Clarke to tele-
phone for him.
Mr. Clarke reported that word came back
to him from the other end of the line that there was no
mule there. It does not appear who was at the other end
of the line, so that the truth of this answer is not verified.
The mule, however, did not return to Sevier county, but
preferred to be locked up in Knoxville.
Mr. Bradburn did not see the advertisement in the Jour-
nal and Tribune; probably he didn't take that paper, but
read the Sentinel. Counsel says that the advertisement
was put in an obscure place. Exactly what he means the
CURIOUS CASES
323
Disorderly Conduct of Mule
court to infer from that, we are unable to see. The court
cannot judicially know there is anything obscure in any
Knoxville paper, unless it be in the reports of Supreme
Court opinions, and these appear to be obscure only to the
lawyers who lose their cases. After the sale and plaintiff
found out where his mule was, he replevied him. The case
was tried before the court and jury in the court below, and
plaintiff was successful, and defendant has appealed ; but
he has been paid back the money he paid for the mule, and
the further proceedings do not appear to interest him.
The city comes in, however, by counsel, and complains ear-
nestly at the charge of the Circuit Judge. The learned
trial judge charged that an ordinance of the city, which
provided for a sale of animals impounded, after only two
days' advertisement, was unreasonable and invalid ; that
two days was not sufficient notice to give, and a sale under
such advertisement would be void, and confer no title on
the purchaser, and he could communicate none to a party
who bought from him even without notice. The learned
trial judge also charged that the proceeding by the munici-
pality to sell impounded stock, being a summary proceed-
ing, must be strictly pursued ; that the poundmaster should
immediately, upon impounding the animal, make the adver-
tisement, and that if the mule was impounded on the 7th,
and not advertised till the 12th, it was not a compliance
with the ordinance, and a sale thereunder would be null and
void, and communicate no title to the purchaser, and he
could convey none to his vendee; that, no matter if the
324
CURIOUS CASES
Disorderly Conduct of Mule
poundmaster made the delay with good intentions, hoping
to find the owner, it would furnish no excuse.
The city attorney insists that this is requiring too great a
degree of diligence on the part of the poundmaster, and
that a reasonable delay will not vitiate his sale, especially
when that delay is caused by trying to find the owner.
The argument is that the word immediately, as used in
the ordinance, does not mean instantaneously; that the
poundkeeper must have sufficient time to shut the pound gate
so as to keep the mule in, before he starts to the printing
office ; that after he does start he may proceed in a brisk
walk, and is not required to run; that after he gets there
time must be allowed to set up the matter in type, and
there must then be a delay until the hour when the paper
is printed and ready for distribution, and that the pound-
keeper is not required to get out an extra.
We are satisfied the learned trial judge did not mean
to require such dispatch as this, and without undertaking to
say how rapidly the poundmaster must proceed, we are of
opinion that, under all the facts of this case, there was no
such unreasonable delay as would render the sale void.
Now, if the mule was the party complaining, the court
would feel disposed to say the delay was too great, as it
does not appear thảt the mule had anything to eat during
his stay as the city's guest. But neither the city nor the
owner has any ground of complaint.
It is said by counsel that the other question presented is
an exceedingly important one, and we approach it with a
CURIOUS CASES
325
Disorderly Conduct of Mule
deep feeling of responsibility. Counsel for plaintiff says
the ordinance is unreasonable, and the charge was neces-
sary to correct a great and growing evil. What this evil
is the record does not disclose. It is not alleged that any
great trust or combine is being formed in impounded mules,
and it is not shown that any trust at all exists as to mules
running loose.
The attorney for the city has furnished us a printed
brief, wbich we have read with much interest and profit,
and have filed away for future reference. In it a case is
cited from North Carolina where the Supreme Court of that
state held that three days' advertisement of an impounded
hog was sufficient. Shaw v. Kennedy, Term R. 158; Helen
v. Noe, 3 Iredell 493. Also a case from Missouri holding
that three days, advertisement of impounded cattle was
sufficient. White v. Harworth, 21 Mo. App. 439. Under
a former ordinance of the city of Knoxville, it was held that
five days' notice by posters at the courthouse door was
sufficient. Mayor of Knoxville v. King, 7 Lea 444.
In the case of Moon v. The State, 11 Lea 35, it
was held that an ordinance of the taxing district of Mem-
phis, providing that impounded stock might be sold on four
days' advertisement, was valid. Now, if it would take
four days to affect the city of Memphis with notice, it is
said it would not require less time to reach the public in
Knoxville. The argument of the city attorney seems to be
that if a hog may be sold in three days, a mule might be
sold in two days, since he is much more of a nuisance and
326
CURIOUS CASES
Disorderly Conduct of Mule
much more dangerous to keep, and the city ought not to be
expected to remain forever on guard. Now, we do not
desire to say anything disrespectful of or derogatory to the
mule. He has no posterity to protect and keep alive his
memory. The ordinance applies to all animals, and we are
of opinion that two days' advertisement is not enough. No
owner would feel any great sense of loss in so short a time.
We feel constrained, upon the ground stated, that the
time is too short, and declare the ordinance unreasonable,
and the judgment must be affirmed.
The defendant must pay all cost. We would tax the
city with it, as it loses one of its ordinances, but we are
unable to tell from the partial transcript whether the city
is a party or not.
CURIOUS CASES
327
Exemption of Barber's Tools
TERRY
v.
McDANIEL.
Supreme Court of Tennessee, 1899.
[103 Tenn. 415.]
Exemptions-Tools of Trade-Barber's Chair, Look-
ing Glass and Map of World.
Appeal in error from Circuit Court of Roane County.
S. A. ROGERS, J.
Wright & Wright, for Terry.
John F. McNutt, for McDaniel.
WILKES, J. This is an action of replevin. It originally
involved a barber's chair, a looking glass, and a map of the
world. After the battle of Manila and the close of the
Spanish-American war the map of the world was released,
presumably because it had become incorrect, obsolete, and
valueless. The contest over the chair and the looking
glass, like the war in the Philippines, still continued, how-
ever.
The contest arose in this
arose in this manner. Defendant had
obtained a judgment against plaintiff for $5, and some
costs. For fear that plaintiff might meet with reverses and
328
CURIOUS CASES
Exemption of Barber's Tools
become insolvent, she swore out an execution and put it in
the hands of an officer, with instructions to make it.
He
proceeded to obey instructions, and seized the chair and
mirror, when plaintiff replevined them. The officer there-
upon stepped out and left plaintiff and defendant to carry
on the fight.
Plaintiff says he is married, has a wife and two children ;
that he did not own any other looking glass, and did not
have as many chairs as the law allows, counting the barber's
chair as one, and he was entitled to hold these neces-
sary articles as exempt to himself as the head of the family.
He also says that he is a barber by occupation, and that he
allows his customers to sit in this chair and look into this
glass while he proceeds to make gentlemen of them, and
these, with his razor, are the tools of his trade or occupa-
tion, and exempt to him as a mechanic. The chair is not
described fully in the agreed statement of facts, nor is the
size and finish of the mirror given, except that it was a large
one, and hung on the wall. The chair is worth $8, and the
mirror $11. It is shown that the plaintiff is a citizen of
Roane county, and was engaged in his trade, and had
a victim in his chair when the constable seized it, and he
did not have any other barber's chair, nor any other mir-
ror of any kind. The court tried the case without a jury,
and thought plaintiff was entitled to the chair and mirror
as exempt, and gave judgment for the plaintiff for the
costs, inasmuch as the articles had not been taken out of
his possession. Defendant has appealed, and assigned
CURIOUS CASES
329
Exemption of Barber's Tools
errors. She says the chair is not a suitable chair for fam-
ily use, and that if the plaintiff is as poor as he says he is,
that the mirror is too large for him, and counsel says that
the mirror is larger than his potato patch. Plaintiff
demurs to the first proposition, and says the chair is well
suited to raise a family in, but candidly admits that he has
not a potato patch half as big as the mirror.
Counsel for plaintiff urges upon the court that the stat-
ute does not say what sort of a chair a head of a family
may have, whether a split, cane, or wood bottom, straight
back or rocker, nor does it prescribe how large the looking
glass may be, and that he is strictly within the letter of the
law in claiming these articles. The argument is that the
law exempts a horse, and under that head it may be a sad-
dle horse or a harness horse or a race horse, or even a.
Spanish horse. But if the court should not agree with him
on this proposition, still he insists that he is entitled to
these articles as a mechanic, and that they are indispensable
tools in his trade. It is argued that no one is a mechanic
except a person who works on wood or metal, but it is
replied the barber works upon the head and upon the
cheek, so that, while there is a distinction between the two,
it seems to be a distinction without any material difference.
Attention is called to the fact also that frequently the
impression made on the customer's face is similar to that
made by a carpenter with his saw. This appears, however,
to be owing more to the razor than the chair or mirror, but
(for prudential reasons, no doubt) the constable didn't
330
CURIOUS CASES
Exemption of Barber's Tools
seize the razor. In Story v. Walker, 11 Lea 515, it was
held that a photographer was not a mechanic, but an
artist, and one of such quality that the law required him to
pay a privilege tax, and take out license before he could
follow the business. But the legislature has not yet
reached the point where they require barbers to pay a priv-
ilege tax. Possibly they may have been overlooked up to
this time.
In the case of Waite v. Franciola, 6 Pickle 191, it was
held that a house and sign painter was both a mechanic and
a laborer. The argument is that if a man who spreads
paint on a board, and makes it more attractive, is a
mechanic and laboring man, another man who spreads soap
on the face, and makes it more presentable, is likewise a
mechanic and laboring man.
We must confess that we are not able to answer such
logic as this. To look at him, the barber appears to be a
professional gentleman, and we feel much hesitation in
classing him with mechanics, except upon his own request.
The decisions of the several states are by no means uni-
form as to who may be classed as mechanics, and what may
be treated as mechanics' tools. Thus, in Michigan, a den-
tist is a mechanic. Maxon v. Perrott, 17 Mich. 332. But
in Mississippi he is not. Whitcomb v. Reid, 31 Miss. 567.
A pool table in a saloon is held not to be a tool, upon
the ground that the saloon could run without a pool table
and a pool table could be run without a saloon, but
not very successfully. Goozen v. Phillips, 49 Mich.
CURIOUS CASES
331
Exeinption of Barber's Tools
7. In Baker v. Willis, 123 Mass. 194, it was held that a
tinner was entitled to a cornet horn, as well as his working
tools, and this was on the idea that while he carried on his
trade with his tools occasionally, his chief occupation was
blowing the horn. In Illinois it was held that a piano was
a tool necessary to a music teacher. Annud v. Murphy,
69 Ill. 337. And in Massachusetts, that a fiddle and bow
were exempt as tools necessary to a fiddler's occupation.
Goddard v. Chaffee, 2 Allen 395. And so also in New
Hampshire, Wilkinson v. Alley, 45 N. H. 452. And that
a mirror was absolutely necessary to the occupation of a
milliner. Now, if a mirror was as necessary to a man as
to a woman, this case would be conclusive as to the mirror,
but does not touch the question of the chair. In New York
a fisherman's boat and net were held to be tools of his
trade. Sammis v. Smith, 1 N. Y. (T. & C.) 144. So,
also, a rope used as a boatman's tow line.
Fields v.
Moul, 15 Abb. 6. Also a gun in the hands of a hunter.
Choate v. Reddings, 13 Tex. 581.
And in Vermont it is expressly decided that a barber's
chair is exempt as a tool. Allen v. Thompson, 45 Vt. 172.
And in Texas, that a chair, mirror, and table are barbers'
tools. Fore v. Cooper, 34 S. W. Rep. 341.
The cases all hold that the exemption law must be liber-
ally construed to preserve the exemption.
Now, there can be no doubt that the law exempts a
chair, and there is none that a barber's chair is a chair.
There can be no doubt that the law exempts a looking-
332
CURIOUS CASES
Exemption of Barber's Tools
glass, and a mirror on the wall is a looking-glass, so that
defendant comes within the letter of the law.
We think, also, that at his request, he must be classed as
a mechanic and laborer, as well as orator and news agent,
and is therefore within the spirit of the law, and is entitled to
the exemption.
We therefore affirm the judgment of the court below,
with costs.
CURIOUS CASES
333
Increase of Wife's Property--Growth of Mules
W. M. STRINGFELLOW
V.
C. V. SORRELLS.
Supreme Court of Texas, 1891.
[82 Tex. 277.]
Community Property Under Texas Statute-“ Increase
of Separate Estate of Wife-Growth of Mules.
Tried below before HON. JOHN L,
Appeal from Morris.
SHEPPARD.
Talbot & Turner and J. T. Jones, for appellant.
MARR, J. Before and at the time of her marriage to
W. J. Sorrells, in the year 1884, the appellee, Mrs. C. V.
Sorrells, owned in her own right, together with other sepa-
rate property, two mules. These animals were then colts
and worth $35 each, and a portion of their present value as
a result of their growth and avoirdupois, augmented as the
years rolled on, is the subject of this controversy. The
appellant in the year 1888 held a just debt, nierged into a
valid judgment, for a small sum against the husband of the
appellee, and in satisfaction of which he caused a writ of
execution to be levied upon these mules of the wife during
At the time of the levy the animals were grown
and each of them worth in the market $75, instead of $35
that year.
334
CURIOUS CASES
Increase of Wife's Property-Growth of Mules
as originally. The husband had managed and cared for the
mules since the marriage, and the community estate fur-
nished the provender for the animals during the intermedi-
ate time. The appellee replevied the property and duly
made her claim thereto under the statute - to try the rights
of property.” The case came up to the District Court
from a Justice Court, and the former court rendered a
judgment in favor of the wife.
The appellant insists that the enhanced value of the
mules which has resulted from the attention of the husband
and the food furnished by the community since the mar-
riage amounts to $80, and is an increase of the separate
estate of the wife, and consequently is community property
and liable to his execution. There is a modicum of plausi-
bility in his contention, based upon the construction given
by the Supreme Court to “ the increase of the lands” of
the wife; but these decisions were inspired by the necessity
of protecting, not of destroying, her estate. Deblane v.
Lynch, 23 Tex. 25; Forbes V. Dunhamn, 24 Tex. 611 ;
White v. Lynch, 26 Tex. 195 ; Cleveland v. Cole, 65 Tex.
402; Epperson v. Jones, 65 Tex. 425 ; Braden v. Gose, 57
Tex. 37; Carr v. Tucker, 42 Tex. 336.
The Supreme Court has often decided what is not the
increase of the wife's lands,” but so far as we are aware
have not decided what is, and we are not required to do so
The rule contended for would be most impracticable
in application. The equitable criterion, if any were admis-
sible in cases like the present, should be the expenses to the
noᎳ. .
CURIOUS CASES
335
Increase of Wife's Property-Growth of Mules
husband or the community, regarded as an investment, of
rearing the mules, not the increased value, which may be
due to other causes, subject to be offset by the value of
their use, if anything. This would lead to "confusion
worse confounded." As applied to live stock belonging to
the wife, “the increase ” of such property (ever since the
decision of the Supreme Court in Howard v. York, 20
Tex. 670) has been invariably recognized in the reported
cases to denote the progeny of the original stock or their
descendants. This construction comports with the etymol-
ogy of the term and accords with the universal understand-
ing. Deblane v. Lynch, supra. The record, therefore,
develops no "increase” of these particular mules in the
sense that would add to or constitute a part of the commu-
nity estate. They are still the same animals which the
wife owned at the time of her marriage, and, mule like,
they have stubbornly refused to briug forth after their
kind.'
The sex of these particular mules and their capacity for
reproduction, if any, is not disclosed by the record, but
the general rule founded on common knowledge, with
possibly some sporadic exceptions, must be recognized,
that mules do not so increase, multiply, and replenish the
earth” according to the ordinary laws of procreation and
the genesial command. It would seem, therefore, that
there can be no increase of the wife's separate estate if
composed solely of specific mules at the time of her mar-
riage. In cases of other live stock, his interest, recognized
}
336
CURIOUS CASES
Increase of Wife's Property-Growth of Mules
It
by law, in the offsprings thereof compensates the husband
and the community, but the erratic mule standeth apart
66 like patience on a monument, smiling at grief.
would tend to entirely destroy the corpus of the wife's
estate, consisting of live personal property, to declare that
an augmentation in weight or value should be deemed an
" increase" of the property itself so as to constitute a part
of the community to that extent. Suppose it should
decline under the ministrations of the husband what then
would compensate the wife? Fortunately she does not
hold her separate property by so precarious a tenure as to
depend upon the fluctuations of weight or the prices in the
market. If she did, then the alert creditor would only
need to abide his time in confidence of ultimately seizing,
upon a ruthless execution, the flock, the drove, and feath-
ered tribe of the wife. The law too closely guards, “with
flaming sword and cherubim,” the sacred rights of the
good housewife in her own “ separate property,” to admit
of such grave consequences.
We need only to add that the use of the mules and the
products of their labor may be supposed to compensate the
community for the provender consumed, and the husband
would scarcely demand any recompense for the felicity of
teaching them how - to work in the traces."
We conclude that the judgment of the District Court is a
most righteous one, and ought to be affirmed.
Affirmed.
CURIOUS CASES
337
Disturbance of Religious Worship
WINNARD
v.
STATE.
Court of Criminal Appeals of Texas, 1895.
[30 S. W. Rep. 555.]
Disturbance of Religious Worship-Application of Hot
Drops to Dog-Principal and Accomplice.
Appeal from District Court, Lampasas County ; W. A.
BLACKBURN, Judge.
Matthews & Browning, for appellant.
Mann Trice, Assistant Attorney-General, for the State.
HENDERSON, J. This was a conviction for disturbing a
congregation assembled for religious worship. From the
statement of facts, it appears that, while church was going
on at a certain schoolhouse, some boys conceived the idea of
putting what they termed “hot drops" on a certain dog that
was then in attendance on the church. But they did not
seem to have the hot drops there present, and did not have
the wherewithal to buy the same; whereupon the defendant
suggested that they go up to a little store, and get the hot
drops, and have them charged to him. The hot drops were
procured, and delivered to the boys; the defendant in the
CC--22
338
CURIOUS CASES
Disturbance of Religious Worship
meantime remarking to the boys, as he testifies, not to put
the hot drops on until the services were over. The defend-
ant then seems to have absented himself. The boys pres-
ently put the hot drops on the dog, when he immediately
made for the interior of the church, barking and yelping
and scraping himself on the floor to such an extent as to
greatly discomfort and annoy the congregation. Indeed,
some of the women and children were so frightened that
they got up on benches to keep out of his way.
The judge in this case gave a charge on principals
and accomplices, and authorized the jury to acquit the
defendant if defendant was a mere accomplice, and not a
principal. The appellant, however, cantends that this
charge was not explicit enough, and too general, and that
the court should have given the charge asked by the defend-
ant. In our view, the doctrine of principals and accom-
plices does not apply to misdemeanors. All persons who
are accomplices in misdemeanors may be prosecuted and
tried as principal offenders. See Houston v. State, 13
Tex. App. 595. But the court's charge on this subject
gave the appellant the full benefit of such charge, and
authorized the jury to acquit. They found that defendant
was a principal, and not an accomplice.
The appellant also insists that the court should have
directed the jury that the wilfully putting hot drops on the
dog was not sufficient to constitute this offense, that the
term “ wilfully,” as defined by the court, should have been
addressed to the intent to disturb the congregation. We
CURIOUS CASES
339
Disturbance of Religious Worship
think the charge of the court sufficiently comprehensive to
have embraced the idea that the intent in putting the drops
on the dog was to disturb the congregation.
The most material question, however, in this case, is the
sufficiency of the evidence to sustain the verdict, the defend-
ant having himself testified that he cautioned the boys not
to put the drops on the dog during the services ; and it is
contended that this evidence is not gainsaid or contradicted
by that of any other witness in the case, and, being so
uncontradicted, the jury were bound to take it as true.
We apprehend, however, that, from the surroundings of the
case, the jury must have believed that, when the defendant
gave the drops to the boys, he must have known it was
their intention to have some fun at the expense of the con-
gregation. The drops were sent for while the services were
in progress. The dog was expected to remain during the
services, but he could hardly be expected to remain after
the benediction had been pronounced, but would, like the
congregation, return to his home. Besides, if the boys,
together with the defendant, had not meditated an imme-
diate administration of the drops, while the congregation
were assembled, it would have been an easy matter on the
part of the boys to have decoyed the dog away from the
church ; and such a suggestion, if the defendant was acting
in good faith, not to disturb the congregation, would have
been made by him. It is not intimated, however, that the
dog was a voluntary party in disturbing the congregation.
On the contrary, he appears to have been an unsuspecting
340
CURIOUS CASES
Disturbance of Religious Worship
victim of the mischievous machinations of the boys.
From all the circumstances in this case, the jury were at
liberty to infer that the defendant expected the fun to come
off as soon as the boys could lay hands on the dog and
administer the hot drops. At any rate, the jury having
found that the defendant furnished the means by which the
congregation was disturbed, and that he did so with that
intent, and the testimony being sufficient to justify such
finding, we will not disturb the 'verdict. The judgment
is affirmed.
CURIOUS CASES
341
Good Reputation Acquired in Jail
ROTAN HILL
V.
THE STATE.
Court of Criminal Appeals of Texas, 1896.
(37 Tex, Crim. 415.]
Good Reputation Acquired in Jail.
Appeal from the District Court of Hill. Tried below
before Hon. J. M. HALL.
McKinnon & Carlton, for appellant.
Mann Trice, Assistant Attorney-General, for the State.
*
HENDERSON, J. Appellant was convicted of assault with
intent to murder, and his punishment assessed at confine-
ment in the penitentiary for seven years.
It
appears from bill of exceptions No. 4 that a number of
witnesses were placed upon the stand, and the appellant
sought to prove by them that he had been placed in the Hill
county jail shortly after the shooting, and remained in said
jail for a long time—as much as twelve months ; that the
witnesses were acquainted with the general reputation of
the defendant during his confinement in jail, as to whether
he was a peaceable and law-abiding man, or a dangerous
and pugnacious man, and that said general reputation was
good ; also, that during this time each of them were
342
CURIOUS CASES
Good Reputation Acquired in Jail
acquainted with the general reputation of the defendant for
truth and veracity, and that the same was good ; also, that
during the time that the defendant was in jail he was a
docile, obedient and submissive prisoner. To all of which
counsel for the State objected, and the court sustained the
objection, to which the appellant excepted, and reserved
this bill of exceptions. There was no error in the action
of the court in excluding this testimony. We would pre-
sume that a man locked up in the jail of Hill county would
be a law-abiding man. Good policy would dictate that he
be quiet and a submissive prisoner. In this place, men do
not generally make reputations as peaceable and law-abiding
citizens. Their situation forces them to be such. There is
ample proof by other witnesses that his general reputa-
tion for truth and veracity was good, and that he was a law-
abiding citizen.
Affirmed.
1
CURIOUS CASES
343
Conversion of Grass Growing on Highway
JOSEPH COLE
V.
SAMUEL P. DREW AND WIFE.
Supreme Court of Vermont, 1871.
(44 Vt. 49.]
Conversion of Grass Growing on Highway-Emble-
ments-De Minimis Non Curat Lex.
Trespass 7. c. f. The defendants pleaded the general
issue, plea in bar, and notice. Trial by jury. June term,
1871. WHEELER, J., presiding. The evidence of the
plaintiff and defendants both tended to show that there was
a public highway in Newark leading through land of the
plaintiff by the «lwelling-house occupied by the defendants.
The defendants' evidence tended to show that their chil-
dren, in attending school, had to travel over this highway,
and that on each side of the said highway were briar bushes
grown up to near the margin of the travelers' path, and
that upon one side of said highway besides said briar bushes
there was a slash fence and also trees that shaded the road ;
that in the season of 1869 said road was traveled so little
that the grass grew high between the footpath traveled by
horses and the wheel-ruts, and also outside the wheel-ruts to
these briar bushes and slash fence aforesaid ; that the season
344
CURIOUS CASES
1
Conversion of Grass Growing on Highway
of 1869 was wet, and that the defendants' children, son and
daughter, in going to and returning from school, by reason
of the height of said grass, wet their clothes and persons to
their waists; that the defendant, Mrs. Lucy Drew, wife of
the said Samuel P. Drew and mother of said children,
applied to Reuben D. Merritt, highway surveyor of said
highway, for permission to cut the grass between the
traveled path of the horse and the wheel-rut on said high-
way, for the purpose of protecting the health of her chil-
dren, and preventing their clothes and persons from being
constantly wet in going to and returning from school ; that
the said Reuben D. Merritt, highway surveyor, gave her
permission to cut said grass for the purpose aforesaid, and
requested her to do it, saying, if she did not do it, he
should as soon as he got round to it ; that Mrs. Drew did
cut the grass growing in the traveled path of the highway
between the path made by the horses and the wheel-ruts,
the strip being about seven rods in length (two rods of
which had no grass) and from six to twelve inches in
width, for the purpose of protecting the clothes and person
of her children from getting wet when going to and from
school ; that upon said strip she cut from fifteen to twenty-
five pounds of hay, and carried it out of the road and away,
and gave it to her husband's horse. The plaintiff's evi-
dence did not contradict that given by the defendants.
G. C. & G. W. Cahoon, for the defendants.
Belden & May, for the plaintiff.
CURIOUS CASES
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Conversion of Grass Growing on Highway
Ross, J. The only question arising from the exceptions
is, whether the court were correct in holding that Mrs.
Drew, if justified in cutting the grass growing in the high-
way over the land of the plaintiff, that her children might
go and come from scbool, in the highway, without getting
their clothes wet, made herself a trespasser ab initio in car-
rying away the grass, and giving it to the horse ; and that
the rule de minimis non curat lex did not apply. That the
jury must therefore return a verdict for the plaintiff for
some sum.
The owner of the soil over which a highway is located is
entitled to the emblements growing thereon, and to the
entire use of the land, except the right which the public
have to use the land and materials thereon for the purpose
of building and maintaining a highway suitable for the safe
passage of travelers. This doctrine has been long estab-
lished by numerous authorities. Goodtitle v. Alker, 1
Burr. 133; Holden v. Shattuck, 34 Vt. 336 ; Perley v.
Chandler, 6 Mass. 454 ; Stackpole v. Healy, 16 Mass.
33; Jackson v. Hathaway, 15 Johns. 447. These author-
ities fully establish that he may maintain trespass or
ejectment for injuries to his rights as such owner of
the soil. The public acquire only an easement in the
land taken, consisting of the right to use the materials,
in and upon the land taken, for building and maintaining a
suitable way, and of using the way, when constructed, for
passing and repassing. The public and the highway sur-
veyor, who is the agent of the public for certain purposes,
346
CURIOUS CASES
Conversion of Grass Growing on Highway
.
have no right to appropriate any of the materials or emble-
ments of the land taken to any other purpose. The defend-
ant wife could exercise, under the authority of the highway
surveyor, no greater rights than those which the law had
conferred on the surveyor. The grass, though properly
cut by Mrs. Drew under the direction of the highway sur-
veyor, because it interfered with the use of the land for the
purposes of a highway, was, when cut, the property of the
plaintiff. Mrs. Drew had no right to use it for feeding her
husband's horse. By so doing she overstepped the license
and authority which the law conferred upon the highway
surveyor, and through him upon her, and made herself a
trespasser ab initio. If a man abuse an authority or license
given by law, he renders himself a trespasser ab initio, as
was resolved in the Six Carpenters? Case, 8 Coke 146. She,
under the authority and license given by the law to cut the
grass, by feeding the grass to the horse, clearly invaded a
right still belonging to the plaintiff as the owner of the soil.
Such cutting and appropriation of the grass, under the
claim of a right by the defendant for fifteen consecutive
years, would furnish very strong if not conclusive evidence
of the acquisition of the ownership of the soil, by the
defendant, by adverse use. The right to take the herbage,
or emblements, is about all that is left to the owner of soil
burdened with the easement of a public highway. When
one takes this right from him, he appropriates generally
the only remaining right of the owner of the soil. Such
an invasion of a right, we think, always imports some
CURIOUS CASES
347
Conversion of Grass Growing on Highway
damage, though no pecuniary loss results therefrom. We
think Fullam et al. v. Stearns et al., 30 Vt. 443, fully
establishes that the maxim de minimis non curat lex is
never properly applied to an injury for the invasion of a
right, and it does not apply to this case. The defendants
insist that, under the pleadings, if the plaintiff would
recover for the appropriation of the grass, he should have
new assigned. No such question appears to have been
raised in the court below.
Judgment of the county court is affirmed.
348
CURIOUS CASES
New Trial Where Jurors Drink Tobacco
THOMAS J. BAKER, APLT.,
2).
JOSEPH JACOBS.
Supreme Court of Vermont, 1891.
[64 Vt. 197.]
New Trial-Treating Jurors to Cigars-Drinking
Tobacco.
Assumpsit. A verdict was found for the plaintiff, and the
court granted a motion for a new trial on the ground that
after the verdict was returned the plaintiff treated some of
the jurors to cigars. By Rev. Laws 1880, $ 997, codifying
Act Nov. 1, 1791, and Act March 2, 1797, it was provided
that "if a party obtaining a verdict in his favor sball, dur-
ing the term of the court in which such verdict is obtained,
give to any of the jurors in the cause, knowing him to be
such, any victuals or drink, or procure the same to be
done, by way of treat, either before or after such verdict,
on proof thereof being made, the verdict shall be set aside
and a new trial granted.
>>
P. K. Gleed, for the plaintiff.
This case must be judged by the ordinary customs of the
time and place. Giving a friend a cigar in these last days
is by common custom as usual, as harmless and commenda-
CURIOUS CASES
349
New Trial Where Jurors Drink Tobacco
ble as was once the giving of a cup of cold water. One of
Vermont's greatest statesmen has been often censured
because he so seldom conformed to this universal social cus-
tom.
What if the plaintiff had furnished the jury a drink of
water, or a pinch of snuff, a clove, or a tooth-pick?
Would that have set aside the verdict?
Must it be said that this court by solemn and deliberate
adjudication, from which neither exception nor appeal can
be taken, has decreed that tobacco is victuals ? (Tell
it not in Gath, publish not in the streets of Askalon," lest
the sons of the Connecticut valley rejoice, and the daugh-
ters of Virginia be glad.
When the anxious mother asks her foolish son what
causes that projection in his thin and sallow cheek, she is
met with the truthful answer—« victuals."
When the sacred atmosphere of the church is polluted
with the stench that steams up from every smoker's clothes
and hair and breath, the lady who is compelled to hold her
scented handkerchief to her nose all through the service to
keep her stomach in submission must be reminded that it is
only the lingering aroma of a delicate breakfast. Tobacco
is victuals.
Clearly this verdict was not influenced by the act com-
plained of; it was an act of ordinary custom and usual
hospitality; it is in itself exceedingly diminutive and insig-
nificant; and to sustain the motion would do much more
harm to the public and damage even to the moving party
350
CURIOUS CASES
New Trial Where Jurors Drink Tobacco
than could be done by ending the litigation and sustaining
the verdict.
E. B. Sawyer, for the defendant.
THOMPSON, J., wrote an opinion for affirmance declaring
that whether or not tobacco be “victuals or drink,” the
furnishing of it to jurymen by way of treat is within the
purview of the statute.
Son.
TAFT, J. I concur in the result, but not for the reason
stated. When the act under which we are asked to affirm
the judgment was passed in 1791, to drink tobacco was a
common phrase. It was used in that sense by the best
authors, like Spenser, Dryden, Pope and rare Ben Jon-
Webster says to drink is “to absorb,” 66 to take in."
Do you not often meet men who have absorbed and taken in
so much tobacco that you can scent them as far as the hound
can the fox ? According to these definitions, they drink it.
He says " to smoke as tobacco" is now obsolete, but I do
not think it was when the act in question was passed, and
in construing a statute have we not the right to use the
words thereof in the same sense in which they were used at
the time of its enactment? I think we have. In 1620
George Wither wrote a poem on the weed, the refrain of
which was
“ Thus thinke then drinke tobacco.”
From the discovery of the plant until this century the
word was used in this sense.
CURIOUS CASES
351
New Trial Where Jurors Drink Tobacco
wine."
Joaquin Miller says:
"I drink the winds as drinking
If a man can drink wind I think he can drink
tobacco smoke, vile and disgusting as it is. A man is com-
pelled to drink it, by having it puffed in his face, on all
occasions and in all places, from the cradle to the grave.
It is a drink, and I would set aside the verdict for that
reason.
4
352
CURIOUS CASES
Option op Mary Washington's Grave
COLBERT & KIRTLEY
V.
SHEPHERD.
Supreme Court of Appeals of Virginia, 1892.
[89 Va. 401.]
Option on Mary Washington's Grave-Dedication,
Broker with Power to Sell Cannot Buy.
Error to judgment of Circuit Court of City of Fredericks-
burg, rendered March 28th, 1891; in an action of covenant
wherein Joseph W. Colbert and William F. Kirtley, part-
ners under the name of Colbert & Kirtley, were plaintiffs,
and George W. Shepherd was defendant. The judgment
being adverse to the plaintiffs, they obtained a writ of
error to this court.
A. H. Dickinson and John Lyon, for plaintiffs in error.
Marye & Fitzhugh, for defendant in error.
FAUNTLEROY, J. The form of the suit is an action for
damages for the alleged breach of a written contract,
declared upon and made profert of in the declaration; to
which there was a demurrer, overruled by the court. The
jury, upon the evidence set forth in the record, and under
instructions given by the court, after refusing to give
instructions asked for by the plaintiffs, found a verdict for
CURIOUS CASES
353
Option on Mary Washington's Grave
the defendant. The plaintiffs moved the court to set
the verdict aside and grant to them a new trial, upon the
ground that the verdict was contrary to the law and the
evidence; which motion the court overruled, and entered
judgment for the defendant in accordance with the verdict.
The record in this case presents for review by this court
the sacrilegious and shockingly shameful spectacle of a
controversy and traffic over the grave and sacred ashes of
Mrs. Mary Washington, the honored and revered mother
of the transcendent man of all the ages, who, in the annals
of the world, is without a prototype, a peer, or a parallel.
Mary, the mother of Washington, a deeply pious, intellect-
ual, resolute woman, refused to surrender her supremacy
by residing with any of her children, and chose to live by
herself on her farm in Stafford county, opposite Freder-
icksburg, surrounded by her slaves and domestics, in the
exercise of her systematic and beneficent authority; until
her illustrious son urged upon her his solicitude for her
personal safety, and his apprehension that the capture of
her person, by the enemies of her country, to be held as a
hostage, might some time constrain him, as the commander-
in-chief of the revolutionary patriots, to elect between public
duty and filial affection. She removed to the village of
Fredericksburg, on the south side of the Rappabannock
river, and resided there from 1776 to 1789, in a plain
wooden structure, framed and weather-boarded, within
three squares of the “ Kenmore" residence of Col. Field-
ing Lewis, the husband of her daughter, Betty. There, at
CC--23
354
CURIOUS CASES
Option on Mary Washington's Grave
the age of eighty-three years, on the 25th day of August,
1789, she died, and was buried on the apex of a hill
which overlooks the valley of a little stream of water,
which, on the western side of Fredericksburg, winds its
way to the Rappabannock river. There, tradition says,
she resorted frequently, during her fourteen years of
solitary life, for meditation and prayer, and sat, often
for hours, upon the ledge of rocks that crops out on the
top of the hill; and that she gave directions to be buried
there, on the land, then the property of her son-in-law,
Col. Fielding Lewis. About the year 1831, forty-two
years after Mrs.
Mrs. Washington was buried, an associ-
ation was organized to erect a monument to her memory
over her grave; and General Andrew Jackson, the re-
nowned President of the United States, who had been com-
patriot in arms with her great son, and whose youthful
blood had been shed in the Revolutionary War—the inde-
pendence of their common country—was invited to lay the
corner-stone.
And, on the 7th day of May, 1833, with civic ceremonies
and military pageant worthy of the occasion, the venerated
chief magistrate of the United States, who, the illustrious
Thomas Jefferson said, “bad filled the measure of his
country's glory,” in the name and in behalf of all the people
of this great country, performed the signal act of public
gratitude and affection, and laid the corner-stone of the
monument which marks the grave of the mother of the
- father of his country"; and thus, in the most solemn
CURIOUS CASES
355
Option on Mary Washington's Grave
and impressive manner, dedicated to public and pious uses
forever the consecrated spot where the remains of this hon-
ored woman had reposed for forty-five years, in the grave
where the pious duty and reverence of her children had
laid her. From that day to this no right or claim of
private ownership has ever been exercised over it, or made
to it.
In Beatty v. Kuntz JUDGE STORY said: “It [the lot] was
originally consecrated for a religious purpose. It has
become a depository of the dead, and it cannot now be
resumed by the heirs of Charles Beatty.” In Cincinnati
V. White the court said: “There is no particular form or
ceremony necessary in dedication to public use. All that
is required is the assent of the owner of the land, and the
fact of its being used for public purposes. Beatty v.
Kuntz, 2 Peters 556; Cincinnati v. White, 6 Peters 186.
In the appropriate and elegant address made by Mr. Bas-
sett, chairman of the monumental committee, to the Presi-
dent of the United States, at the laying of the corner-stone
of the monument, he said : “In looking upon this monu-
ment, the citizens of these states will remember that they
are brothers. They will remember that here lie the ashes
of the mother of the father of his country. They will
acknowledge, too, this just tribute to the merits of her who,
early deprived of the support of her consort, encouraged
and fostered, by precept and example, the dawning virtues
of her illustrious son, and nurtured into maturity those
nobler faculties which were the ornament and glory of her
356
CURIOUS CASES
Option on Mary Washington's Grave
waning years. They will acknowledge the hallowed charac-
ter of this romantic spot, ever to be remembered as the
place chosen for her private devotions. Here she asked,
as a dying request, that her mortal remains might rest.
Hallowed be this wish! Sacred this spot! Lasting as
time this monument ! Let us cherish the remembrance of
this hour. Let us carry with us hence, engraved on our
hearts, the memory of her who is bere interred. Her for-
titude—her piety—her every grace of life—her sweet peace
in death-through her sure hope of a blessed immortality.
To this President Jackson responded, in an address ex-
quisitely beautiful and justly proportioned to the great
occasion and the mighty theme ; in the conclusion of which
he said : “It is to me a source of high gratification that
I can speak of him from personal knowledge and observa-
tion. I witnessed the public conduct and private virtues
of Washington ; and I saw and participated in the confi-
dence which he inspired, when probably the stability of our
institutions depended upon his personal influence. In the
grave before us lie the remains of his mother. Long has it
been unmarked by any monumental tablet ; but
but not
unhonored. You have undertaken the pious duty of erect-
ing a column to her memory, and of inscribing upon it the
simple but affecting words : Mary, the Mother of
Washington. No eulogy
No eulogy could be higher ; and it
appeals to the heart of every American. Fellow citizens,
at your request, and in your name, I now deposit this plate
in the spot destined for it; and when the American pil-
CURIOUS CASES
357
Option on Mary Washington's Grave
>>
grim shall, in after ages, come up to this high and holy
place, and lay his hand upon this sacred column, may he
recall the virtues of her who sleeps beneath ; and depart
with his affections purified and his piety strengthened, while
he invokes blessings upon the memory of the Mother of
Washington.”
This proud history has been recited arguendo to show
that the hallowed tomb of her who gave to the country and
to humanity the foremost man on the files of Time has
been consecrated, by private dedication and by public cere-
monial, as the peculium of patriotic pride and protection ;
and could not be made the subject of legitimate contract,
much less of venal and vulgar traffic. Lord Brougham,
the great English chancellor and philanthropic statesman,
said : "Until time shall be no more will a test of the prog-
ress which our race has made in wisdom and virtue be
derived from the veneration paid to the immortal name of
Washington." And Washington himself, in the fulness of
his matchless fame, said: 66 All that I am I owe to nay
mother!"
By a deed made on the 13th day of April, 1888, and
duly recorded in the clerk's office of the corporation court
of Fredericksburg, Brodie S. Herndon and his wife granted
and conveyed to George W. Shepherd all their right and
title to the lot of ground numbered (25) twenty-five on the
map of the “ Kenmore” estate, containing one acre, one
rood, and six poles of land, and which includes within its
limits the family burying-ground and monument ; “but it
358
CURIOUS CASES
1
Option on Mary Washington's Grave
is expressly stipulated and agreed that the said family bury-
ing-ground and monument are not included in this grant,
but excluded therefrom; and is the same lot or parcel of
land as conveyed by deed by William K. Gordon to Brodie
S. Herndon, Jr., in deed of the 13th day of May, 1881,
and recorded in the clerk's office of the corporation court
of Fredericksburg, Va., on that date."
Which said deed of May 13th, 1881, from William K.
Gordon to his son-in-law, Brodie S. Herndon, grants
sunto the said Herndon the lot of ground numbered 25, on
the map of the Kenmore estate, containing one acre, one
rood, and six poles of land, and which includes within its
limits the family burying-ground and monument. But it
is expressly stipulated and agreed that the said family
burying-ground and the said monument are not to be
included in this grant, but excluded therefrom."
The testimony in the record shows that the deed from
Herndon and wife to George W. Shepherd was in Shep-
herd's handwriting, copied by him from the deed of Gordon
to Herndon ; and that the said George W. Shepherd,
defendant, never claimed more than was conveyed to him
by the said deed, and never claimed to own the monument
or the grave of Mary Washington ; and that he used the
words 66 with the Mary Washington monument and large
marble shaft thereon ” as merely descriptive of the lot of
land. That there was and is on the lot No. 25 aforesaid no
monument except the Mary Washington monument, which
is located within two feet of the brick wall of the Gordon
1
CURIOUS CASES
359
Option on Mary Washington's Grave
$
family burying-ground; that the option contract signed by
the defendant, and dated February 28th, 1889, referred
only to the property he bought from Dr. Herndon--no
more, no less--and that property was universally known
and designated as the “ Mary Washington monument lot”;
that the option was given by the defendant to the plaintiff
at their request, without any consideration therefor, only
to furnish a description to swell their catalogue, which they
said they intended to publish as real estate agents, but
which, in fact, they never did issue or publish, and which,
their subsequent conduct shows, was a device and false pre-
tense to procure from G. W. Shepherd a paper given to
them for one purpose, but which they fraudulently per-
verted to another and a different purpose, and have made
the foundation for a suit for damages.
On the 27th day of February, 1889, the defendant,
George W. Shepherd, a wealthy citizen of Fredericksburg,
of advanced age, and of the highest standing in business and
society, approached the plaintiff, William F. Kirtley,
whom he only knew by sight, on the street in Fredericks-
burg, and said to him that, having been told that he (Kirt-
ley) had opened a real estate business in Fredericksburg,
he thought that he might help to find purchasers for some
land belonging to the Chancellor estate, and that he also
had some lots that he would sell. Kirtley desired Shepherd
to show his said lots to him, and on that day (February 27th,
1889.
) they visited the Kenmore lots, one of which was
known and designated as the “Mary Washington monu-
+
360
CURIOUS CASES
1
Option on Mary Washington's Grave
ment lot.” Kirtley said that Colbert & Kirtley were about
to publish a catalogue of land for sale in Fredericksburg
and vicinity, and would like to swell it; and asked Shepherd
if he would agree to give an option on his said lots, and at
what price he would sell them. Shepherd replied that he
would let him know, and that same day, after dinner,
Kirtley called at Shepherd's office, and Shepherd gave to
him two written papers, as follows:
[Private.]
“ FREDERICKSBURG, VA., February 27th, 1889.
" Mr. Kirtley,--I herewith hand you a memorandum of
the price for the monument lot and adjoining lot, and will
allow you a commission on the monument lot of ten per
cent., and allow you a commission on the adjoining lot of
ten per cent. This property can probably be marketed, by
a syndicate, at a much higher figure than I now ask ; and,
if Congress makes the appropriation for the monument,
the new owners could dictate terms that would pay hand-
somely for their investment.
- Very truly,
"G. W. SHEPHERD."
- FREDERICKSBURG, February 22d, 1889.
"I will sell the lot containing about two acres of land,
with the Mary Washington monument and large marble
shaft thereon, for the sum of twenty-five hundred dollars.
I will sell the lot adjoining the monument lot, containing
CURIOUS CASES
361
Option on Mary Washington's Grave
about ten acres, for the sum of five thousand dollars, and
will give to Messrs. J. W. Colbert and W. F. Kirtley a
sixty-day option on these two pieces of property at the
prices named.
"G. W. SHEPHERD."
After receiving the aforesaid two papers, Kirtley went
away with them; and afterwards, during that same after-
noon, he sent Shepherd the following letter :
66J. W. Colbert.
Wm. F. Kirtley
“COLBERT & KIRTLEY,
“ Real Estate Agents and Auctioneers.
“ FREDERICKSBURG, VA., February 27th, 1889.
- Mr. G. W. Shepherd :
"Dear Sir,—There is one little error in the papers you
gave me this morning, which might have to be corrected
hereafter ; so I have concluded to call your attention to it
now, and would like to have it in proper shape before
north-bound mail this 8:47 P. M. Please call at my place
of business as soon as you get this, or let me know what
time to meet you at your place.
6. Yours truly,
WM. F. KIRTLEY.
"N. B.-Should you call and I am out, please leave
word with Mr. Colbert what time I can see you.
(W. F. K."
362
CURIOUS CASES
Option on Mary Washington's Grave
On the same afternoon of February 27th, 1889, Mr.
Kirtley brought to the place of business of Mr. Shepherd,
and handed to him, the written paper, in Mr. Kirtley's
handwriting, down to the words and figures “February
28th, 1889,” inclusive, as follows :
"I agree to give Messrs. J. W. Colbert and William
F. Kirtley a sixty (60) day option on the lot containing
about two acres of land, with the Mary Washington mon-
ument and large marble shaft thereon, for the sum of
twenty-five hundred dollars. And I further agree to give
the same length of time on the lot adjoining, containing ten
acres of land, for the sum of five thousand dollars. And
the said option shall be in full force from this date, Febru-
ary 28th, 1889.” (To which, at the request and dictation
of Mr. Kirtley, Mr. Shepherd added): “And they (Messrs.
Colbert & Kirtley) have full authority to sell said property
at the price named above, and will make title to same when
sold.
“G. W. SHEPHERD.”
The evidence in the record shows that these three papers,
dated, respectively, February 22d, February 27th, and
February 28th, were all written, signed, and delivered on
the 27th day of February, as parts of one transaction, and
were so given by Shepherd to Colbert & Kirtley, as real
estate agents and auctioneers, for insertion in their pre-
tended-to-be forthcoming catalogue ; and that Mr. Shep-
herd having thereby constituted Colbert & Kirtley his
CURIOUS CASES
363
Option on Mary Washington's Grave
agents to sell, they could not buy for themselves at the
price named, unless they satisfied him that they were not
in possession of, or could not obtain, a better offer. It is
a general rule of law, as well as of morals, that an agent to
sell cannot buy; and the import of the three papers given
by Shepherd to Messrs. Colbert & Kirtley is nothing more
than a permission, asked for by Kirtley, to insert a descrip-
tion of the lots in their proposed catalogue, for sixty days,
at the prices named ; and agreement, on Shepherd's part,
that, in the event of a sale of the lots at those prices, the
commission of ten per cent. would be allowed. All three
of the papers, written, signed, and delivered the same day, in
relation to the same subject, and as parts of the same trans-
action, must be read together and in the light of the paper
of February 27th, 1889, marked “Private," and as ex-
plained by the uncontradicted testimony as to the object
and purpose in view in giving them. The undisputed fact
is, that these papers, containing the option,” were given
to a firm of land agents as authority to sell these lots, and
that they did, as said agents, so advertise them for sale ;
and, even though the language of the papers and the evi-
dence left it doubtful whether the option was to buy as well
as to sell, the law would not infer that an agent to sell
could himself become the purchaser. Story on Agency,
section 210. In section 211 JUDGE STORY says :
"It is
well settled that an agent employed to sell cannot himself
become the purchaser ; and an agent employed to buy can-
not himself be the seller." In Farnsworth v. Hemmer,
364
CURIOUS CASES
Option on Mary Washington's Grave
1 Allen 494, BIGELOW, C. J., said : 66 A man cannot
become the purchaser of property for his own use and ben-
efit which has been intrusted to him to sell." See Wads-
worth v. Adams, 138 U. S. R. 380; 129 U. S. 663 ;
Story's Equity, Vol. I., sections 307, 315; Lamar v. Hale,
79 Va. 158 ; 25 Gratt. 40.
The transaction between Colbert & Kirtley and the
defendant, Shepherd, whether viewed in the light of the
well-settled principles of law applicable to the relation of
principal and agent, or of the undisputed testimony in the
record, shows that the plaintiffs were his agents to adver-
tise and sell his lots, and that, as such, they could not
become the purchaser of them, or of either of them ; and,
independently of the other questions to be considered, the
attempt to obtain the title in and for themselves was a fraud
upon the defendant.
But the plaintiffs themselves construed the so-called
as being only an authority to them to sell the
lots as land agents; and they advertised them for sale as
land agents. On the 28th day of February—the very next
day after the paper sued upon was signed and delivered to
them—there was published in the Free Lance newspaper,
in Fredericksburg, an interview had with Messrs. Colbert
& Kirtley, in which they said : “ Yes, sir ; we have the
property in hand for sale, and will offer it, at public out-
cry, in the city of Washington, on the 5th of this month
(March). There being no disposition on the part of either
Congress or people to finish the monument, or to care for
" option
CURIOUS CASES
365
Option on Mary Washington's Grave
the grave of Mrs. Washington, and feeling the general
depression of all kinds of business, and to enliven up things,
we have determined to sell graves, if by so doing we can
attract the attention of the country to this locality, and
bring money here from other sections. We have ordered
the Post, at Washington, to insert the following advertise-
ment for us ; and, if parties will purchase, we mean to sell.
The title to the land and all there is on it-above and below
will be made perfect to the purchaser. We think it would
be better than Libby Prison to some northern relic-hunter,
and, thinking the opportunity a favorable one to offer the
property, we have decided to do so in the manner described.
As real estate agents, we mean business in this, and in all
other matters. The property is in our hands for sale,
and we mean to sell it, if possible, at the time and place
designated.
THE ADVERTISEMENT.
66 The Grave of Mary, the Mother of General George
Washington, to be Sold at Public Auction.
" To the Ladies Attending the Inauguration of President-
Elect Harrison:
"On Tuesday, the 5th of March, 1889, at 4 o'clock P. M.,
we will offer for sale, at public outcry, at the capitol of
the United States of America, twelve acres of land, embrac-
ing the grave and the material of the unfinished monument
of Mary, the mother of General George Washington.
“COLBERT & KIRTLEY,
“Real Estate Agents and Auctioneers.
- Fredericksburg, Va.”
3
366
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Option on Mary Washington's Grave
79
On Saturday morning, the 2d day of March, 1889, Hamp-
ton Merchant said to Mr. Kirtley: “I notice that you
have advertised to sell the Mary Washington monument.
You can't do it. I have examined the records, and find that
the monument is reserved in the deeds; and neither Mr.
Shepherd nor you have any right to sell it.”
Mr. Kirtley
answered : “I propose to sell it." To which Merchant
replied : 6. The hell you do! You can't do it.” To
which Mr. Kirtley rejoined : “I propose to sell according
to the option.
After 2 o'clock P. M. on Saturday, the 2d day of March,
after Kirtley had had the interview with Merchant, above
detailed, and information of the recorded deeds, which
showed the express reservation and exclusion of the mon-
ument from the title to the lot conveyed to G. W. Shep-
herd, Messrs. Colbert & Kirtley had printed, at the office of
the Free Lance, 2,000 copies of a hand-bill, as follows:
- GENERAL GEORGE WASHINGTON.
"The Tomb and Unfinished Monument of Mary,
His Sainted Mother.
"On Tuesday, the 5th inst., at 4 o'clock P. M., at the
capitol of the United States of America, under authority
vested in us by the “real” owners of the property, we will
offer for sale, at public outcry, about twelve acres of land,
situate within the corporation of Fredericksburg, embrac-
ing the grave of Mary, the mother of General George
Washington, and also the material of her unfinished monu-
CURIOUS CASES
367
Option on Mary Washington's Grave
ment. At the same time and place we will offer, to the
highest bidder, the house in which she lived and died, and
within eight squares of the tomb.
“COLBERT & KIRTLEY,
Real Estate Agents,
Fredericksburg, Virginia.
..
The plaintiffs, Colbert & Kirtley, had printed and circu-
lated, in 2,000 atrocious hand-bills, a false statement, known
to them to be absolutely and positively false, obviously as a
part of their predication for their suit against Shepherd,
for damages for his refusal to sell and convey to them (his
agents), with warranty of title, what he did not own, and
had never claimed, and what the records and common fame
of the country explicitly informed them he had no title
whatever to.
As soon as Mr. Shepherd got the first intimation of the
shocking advertisement in the Post and hand-bills, he sought
to find Kirtley, who had gone to Washington city, and he
sent to him a letter, dated Fredericksburg, Va., March 3d,
1889, Sunday, P. M.
" Mr. Kirtley,
Washington, D. C. :
“Dear Sir, I understand you are using my name as
the owner of the Washington monument, and that a deed
will be given for same by me. This, as you are aware, is
not correct, as I have never set up any claim to the owner-
368
CURIOUS CASES
Option on Mary Washington's Grave
ship of the monument, and have no deed for it, and cannot
convey what I do not own. In offering the land let nothing
be misunderstood, and only sell the land conveyed to me by
Herndon and others. Neither do I own the Gordon
burial-lot,' in the same field, and the right to the family is
reserved to continue using the same if they so desire.
“Very truly,
“G. W. SHEPHERD."
On the 4th of March, 1889, he promptly served on Col-
bert & Kirtley the following notice :
66 Messrs. Colbert & Kirtley,
Fredericksburg, Va..
“Gentlemen, I notice, by the hand-bill you have issued,
advertising twelve acres of the Kenmore farm for sale, in
Washington, D. C., on the 5th of March, 1889, that the
language you employ is calculated to produce the impression
that you will sell the grave of Mary, the mother of Wash-
ington, and the material of her unfinished monument. I
hereby notify you that I do not own, or claim to own, said
grave or monument, and your advertisement of the same
for sale is wholly unauthorized. I further notify you that
the proposed offer of said twelve acres of land at public
auction' is wholly unauthorized, and I protest against the
.
Very respectfully,
G. W. SHEPHERD."
same.
CURIOUS CASES
369
Option on Mary Washington's Grave
The record shows the indignant outburst of reprobation
with which the citizens of Fredericksburg, in public meet-
ing, denounced the outrage upon public sensibility by
advertising to sell, at public outcry, the grave of Mrs.
Washington; and the action of the city council declaring
the proposal to be “a scandalous reflection upon a civilized
Christian community.”
And Mr. Shepherd himself says : “I had never in my
life read or heard of traffic in graves and the monuments
that marked them; and I must confess that I did not
dream that it could enter into the imagination of man to
make merchandise of the remains of Mary, the mother of
Washington, or that any sane man could be bribed to offer
them at auction. I had no title to the monument, and I
knew I had none, and my deed of record proclaimed to the
world that I had none. I gave no authority to any one to
offer my lots at auction, and nothing contained in said
papers given Colbert & Kirtley could be so construed. I
attached but little importance to the option when I gave it
(for insertion in their proposed catalogue); and certainly
no one, not a prophet, could have foreseen the use that was
sought to be made of it, and its utter perversion from a
simple authority to sell two lots, given by the owner to a
firm of land agents, into a sensational scandal and reproach
upon the community and the nation.
On the 12th of March, 1889, Colbert & Kirtley published
a card to vindicate themselves, in which they say : “Mr.
Shepherd put this lot in our hands for sale.' 6. Had Mr.
C0—24
370
CURIOUS CASES
Option on Mary Washington's Grave
Shepherd come to us when first informed of our intention
to put this property upon the market, and made the state-
ment he did in his card (of the 8th), &c., &c., we, doubt-
less, would have consented to release him from the con-
tract,” &c.
And yet these land agents of Mr. Shepherd
to sell his lots, for a commission, tender to him, on the
13th day of April, 1889, $2,500, and say :
"Our Mr.
Kirtley will hand you the cash upon the delivery of the
deed, properly executed by you and your wife.' Which
deed, prepared by themselves, was a deed to themselves
(Colbert & Kirtley), conveying the monument lot (No. 25)
and the monument and shaft, with an express covenant in
the deed that George W. Shepherd had the right to convey
the monument and shaft, and expressly granted the monu-
ment and shaft in addition to the lot. And the declaration
in this suit alleges that George W. Shepherd, the defend-
ant, promised and agreed to sell to the said plaintiffs, Col-
bert & Kirtley, a certain lot of ground in Fredericksburg,
Virginia, containing two acres of land, together with the
Mary Washington monument and large marble shaft on
said lot, for the sum of $2,500; and that the said plain-
tiffs, Colbert & Kirtley, were ready and willing to perform,
&c., and to pay the said sum of $2,500 for the said lot of
ground and monument and shaft, and to complete the pur-
chase thereof; and requested that he, the defendant, should
then and there execute and deliver to them a conveyance
of, and to make title to, the said lot of ground, and monu-
ment and shaft.
CURIOUS CASES
371
Option op Mary Washington's Grave
Without a further recital of the details of this horrid
transaction, stamped all over with the fraud, false pretense,
and deceit of the plaintiffs in error, we are of opinion that,
upon the pleadings and evidence in the record, the verdict
of the jury is plainly right; and that the circuit court of
Fredericksburg did not err in refusing to set the verdict
aside, and in entering judgment thereon. The judgment
complained of is right, and it is affirmed.
Judgment affirmed
372
CURIOUS CASES
Estoppel to Tell Truth-Corroboration of Preacher
MOORE
V.
MUSTOE et al.
Supreme Court of Appeals of West Virginia, 1900.
(47 W. Va. 549.]
Resulting Trusts-Estoppel to Tell Truth-Reputation
for Veracity-Witness Never Caught in a Lie-
Corroboration of Preacher.
Appeal from Circuit Court, Randolph County.
A. B. Parsons, for appellant.
E. D. Talbott, for appellees.
DENT, P. This is a suit from the peaceful shades of
Randolph county, instituted by Clara, intermarried with
Eli 'Moore, of Montrose, against her pa, the Reverend
Anthony Mustoe, of Breitz, near the happy land of Canaan,
the neighboring county of Tucker. Clara's story is as fol-
lows : Eli's creditors becoming importunate, he found it
necessary to make an assignment for their benefit. In this
assignment he included an item of five hundred dollars for
her, which she had no knowledge of ; also a note for six
hundred and thirty dollars in favor of her pa, which, how-
ever, was to be for her benefit. The circuit court, on
application of the other creditors, struck out the five
CURIOUS CASES
373
Estoppel to Tell Truth-Corroboration of Preacher
hundred dollar item, without resistance on her part, but
allowed the six hundred and thirty dollars in favor of her pa,
and decreed the lands of Eli for sale. That her pa agreed
to purchase for her at such sale three certain tracts of land,
and did purchase them, to wit: A seventy-six acre tract, at
the price of two hundred and sixty-nine dollars ; a seventy-
five acre tract, at the price of two hundred and fifty-five
dollars, and a one-half acre lot, at the price of two hundred
and thirty-one dollars,—aggregating seven hundred and
forty-five dollars. On this amount the six hundred and
thirty dollar note was to be credited, and the residue pa was
to take in timber, tanbark, and rent. But, he becoming for
some reason dilatory, she decided pa must toe the mark.
So she sought the aid of a court of equity to bring him to
time, and compel him to hand over the deed. Eli, like a
faithful helpmeet, seconds her motion to the extent of his
skill and ability. He says he knew creditors always wanted
something to kick at, so he put in the five hundred dollar note
to furnish them the necessary exercise. The six hundred
and thirty dollar note, in the name of Clara's pa, was a bluff
note; but the old gentleman had, much to his surprise,
called him one better, and got away with the whole of bis
frugal savings, from his greedy creditors. A mere breach
of trust, not fraud in law. Currence v. Ward, 43 W. Va.
368 (27 S. E. 329). Eli entered the contest badly
disfigured. The backbone of his evidence had been broken
by the obstruction put in its way in the execution of the
deed of trust and the note under seal; solemn acts which
374
CURIOUS CASES
Estoppel to Tell Truth-Corroboration of Preacher
cannot be easily explained away, and by which he is
estopped from telling the truth,—not a great hardship on Eli.
In addition, a number of his neighbors, notably among
them two of his brothers-in-law, pa's sons, who are in a
position to know, say his reputation for truth and veracity
is not the best, and they do not hesitate to declare that they
would not believe him under oath. Pa certainly could not
induce the boys to swear thus falsely for the purpose of
cheating their sister, even though Eli intimated in his evi-
dence that pa had been guilty of forging his valuable name
to some small notes. It is due to Eli to say, however, that
a greater number of his neighbors have absolute confidence in
his capacity to tell the truth, because they do not know that
he was ever caught in a lie. Pa Mustoe, with a few essential
variations, tells about the same story as his dutiful children.
He says he agreed to buy the lands in for Eli at the com-
missioner's sale on the representation by him that he had
saved some money out of the assignment to pay for the same.
After the lands were knocked down to him, he told Eli to
show up. Eli, instead of doing so, wanted him to give a
note, and he would sign it, and raise the money in that way.
But pa was too well acquainted with Eli's note-paying abil-
ity to be caught napping. So he told Eli he would raise the
money to pay the down payment, and he could pay it back
to him, and meet the deferred payments, and then he could
have the lands. Eli failed to meet the deferred payments,
and the commissioner brought suit, and obtained a new decree
of sale, and pa Mustoe, having realized about three hundred
,
CURIOUS CASES
375
Estoppel to Tell Truth-Corroboration of Preacher
and sixty dollars out of the six hundred and thirty dollar
bluff note, raised the remainder, paid up the purchase money
in full, and took a deed for the property. The evidence
tends to show that while pa Mustoe does a little preaching,
trying to gather the lost sheep into the fold, and has one
eye on the pearly gates, where the wicked cease from trou- .
bling and the weary are at rest, he keeps the other to wind-
ward in an endeavor to make friends with the Mammon of
unrighteousness. While trying to serve two masters, he
gives his present allegiance to the one he can see, taste,
hear, feel, and smell, and puts the other off with a little
preaching and the promise of a more convenient season.
He says that he bought the lands for Eli, but several wit-
nesses, bidders at the sale, say that he came to them during
the bidding, and persuaded them not to continue bidding
against him, as he was buying the lands for bis daughter
Clara. And they stopped, and let him have them because
there was a woman in it. He acknowledges that his son
had him arrested, and thrown in jail, like poor old Bunyan,
charged with burning down his own barn. He has not
money enough to furnish a good consideration for the bluff
note, and admits that ninety-seven dollars and ten cents was
paid him by Clara through Eli to go on the land. He ap-
pears to have stumbled onto the truth here, and afterwards
tries to correct himself, under the coaching of his coun-
sel. He is probably a little absent-minded. He makes a
big effort to outswear several other witnesses in the case.
His attainments in this direction will hardly win him a
376
CURIOUS CASES
*
Estoppel to Tell Truth-Corroboration of Preacher
crown as a faithful servant when he presents his credentials
at the golden gate of the New Jerusalem. The Good
Book saith there is a place without for whosoever loveth
and maketh a lie, and they shall in no wise enter therein.
Though his prospects for a mansion beyond are uncertain,
he has possession and title to the lands here. He would
rather dwell in the tents of the wicked than be a door-
keeper in the house of the righteous. Equity never helps
those engaged in fraudulent transactions, but leaves them
where it finds them. Therefore the money that Eli succeeded
in bluffing his creditors out of must remain the money of
his trusted father-in-law. He justly punishes Eli by
keeping it. The fowler is caught in his own snare. He
could not possibly permit his daughter to be the benefi-
ciary of such a fraudulent transaction. It would not
become a minister's daughter. So, he will just apply
tbe money to the indebtedness of Eli, acknowledged
by his note. With Clara it is somewhat different. She
must suffer for the company she keeps. Yet the sins of
both father and husband should not be imputed to her.
Woman has always been a favorite with equity, and it
always throws its willing arms around her to protect her
from the importunity and duress of her impecunious
husbands. See opinion of JUDGE BRANNON in case of
Schamp v. Association, 44 W. Va. 50
W.Va. 50 (28 S. E.
709). A resulting trust cannot be implied in her favor,
for the reason that her money was not used at the time of
the purchase or entered into the consideration therefor.
CURIOUS CASES
377
Estoppel to Tell Truth-Corroboration of Preacher
Nor was it paid thereafter in pursuance of such purchase.
Myers v. Myers (W. Va., decided at this term), 35' S.
E. 868; Webb v. Bailey, 41 W. Va. 463 (23 S. E.
644). Nor can the express trust be enforced so far as
the two tracts of land are concerned, for the reason that
her pa relies on the statute of frauds, and his contract with
Eli was nothing more than an option withdrawable at any
time before acceptance. Eclipse Oil Co. v. South Penn
Oil Co. (W. Va.), 34 S. E. *923. When a man only
preaches a little, and undertakes to deal in the transitory
things of this life, it is well always to have writings with
him, as memory is one of the worldly things that may be
counted uncertain. It is not to be trusted, for it is easily
overcome by self-interest. With the house and one-half
acre lot it is different. She has been in continual posses-
sion thereof since the sale, claiming it as her own, and has
put valuable improvements thereon. It is true pa says be
advised her not to do so, through fear that she might not be
able to pay the purchase money. In the light of the evi-
dence, pa cannot be believed unless he is corroborated.
On this point he lacks corroboration. The boys were
absent. Besides, he acknowledges, as heretofore shown, to
having received the ninety-seven dollars and ten cents to be
applied on his daughter's purchase. If pa is to continue
preaching,—and it is to be hoped, for from the conduct of
this suit and the testimony of the witnesses Eli is not the
only one in need thereof,—he should cultivate a greater
regard for the truth, and try to overcome his lust for the
378
CURIOUS CASES
Estoppel to Tell Truth-Corroboration of Preacher
fleshpots of Egypt. It is bad advice that Stout sent to Eli
to betake himself to a warmer country, and it is not wise
for pa to take it. A rich man, who chose a home there
once, sent back word, when be found the climate was sul-
try, the air impregnated with the fumes of brimstone burn-
ing, the society not select, and water scarce and more to be
desired than the gold standard, that he longed for the com-
panionship of poor Lazarus, to whom he had denied the
crumbs that fell from his sumptuous table. He pleaded
for a new trial and change of venue, which being refused,
he asked that his brother be notified that the country was
not a desirable place for a permanent location. Rather
than accept Stout's advice, it had been better had he
remained in jail until he mastered the Pilgrim's Progress,
and learned how to get rid of the heavy loads which are
preventing the full consecration of himself to his chosen
calling, than which there is none higher. If he is going to
despoil anybody, it should not be those of his own house-
hold. With them, at least, he should be just.
As to this one-half acre lot, pa must be held to be the
holder of the legal title in trust for Clara. Potts v. Fitch
(W. Va.), 34 S. E. 959; Camden V. Dewey,
V. Dewey, Id.
911. The decree complained of must therefore be re-
versed, and this cause is remanded to the circuit court,
with direction to secure to Clara, the wife of Eli, the
legal title to the one-half acre tract, retaining thereon
a lien for any unpaid purchase money, if her pa exacts
CURIOUS CASES
379
3
Estoppel to Tell Truth-Corroboration of Preacher
it, subject to the credit of ninety-seven dollars and ten
cents, with interest and the costs of this suit, and any
other just demand she may show herself entitled to, except
the "bluff" money, which, if not really belonging to pa,
coming from a corrupt source would pollute her otherwise
chaste home. Reversed and remanded.
Reversed.
380
CURIOUS CASES
Counsel Rebuked for Scolding Court
HUNTER
.
BOSWORTH AND OTHERS, IMP.
Supreme Court of Wisconsin, 1878.
(43 Wis. 583.]
Motion for Rehearing-Counsel Rebuked for Scold-
ing Court-Liability of Great Lawyers to Be
Unsuccessful.
Appeal from the Circuit Court for Milwaukee county.
The court having read an opinion for affirmance, a motion
for rehearing was made.
Winfield Smith, for the motion.
It can
RYAN, C. J. The
The motion for rehearing is seldom
abused as an opportunity for scolding the court.
not properly be said that it is so in this case. But the
learned counsel who makes the motion opens his argument
with this singular sentence :
- The series of misfortunes which I have latterly met
with at the hands of this court has shaken my confidence
in the result of any effort I may make to convince the court,
or to obtain its favorable judgment in any case where a
serious contest is possible.'
The fact may be as stated, though the late volumes of
CURIOUS CASES
381
Counsel Rebuked for Scolding Court
But the sugges-
reports do not quite appear to verify it.
tion is not fair either towards the learned counsel himself
or towards the court. For it may be an imputation of
failure in the intelligent discharge of duty equally to
either. It does not seem to have occurred to the learned
counsel that the misfortune of which he complains may be
attributable to his clients, or to the work which they give
him to do. A great judge once said that great lawyers
were frequently unsuccessful; for the reason that, being
generally expensive luxuries, they are apt to be employed
only in desperate cases. This may be the occasion of the
learned counsel's complaint, and his consolation.
The learned counsel has made an ingenious and interest-
ing argument, presenting the point on which the judgment
of this appeal turned, in a light not suggested on the hear-
ing. Had it been then presented, or were it now presented
in time, it would be entitled to the careful consideration
due to every lawyer-like argument. But unfortunately, as
the learned counsel for the respondent objects, it comes too
late. And the court has lost jurisdiction to consider it, or
to entertain the motion, or to deny it with costs. Pierce v.
Kelly, 39 Wis. 568; Diedrich v. Railway Co., 42 Id.
274.
It is hoped that the learned counsel will not accept this
ruling as a continuation of his series of misfortunes at the
hands of the court.
By the Court.-Motion denied without costs.
382
CURIOUS CASES
Throwing Persons Overboard to Lighten Leaky Boat
UNITED STATES
V.
HOLMES.
Circuit Court of the United States, Third Circuit, 1842.
[1 Wall. Jr. 1.]
Manslaughter-Throwing Persons Overboard to Lighten
Leaky Boat.
The American ship William Brown left Liverpool on the
13th of March, 1841, bound for Philadelphia, in the U. S.
She had on board, (besides a heavy cargo,) seventeen
of a crew, and sixty-five passengers ; Scotch and Irish
emigrants. About ten o'clock on the night of the 19th of
April, when distant two hundred and fifty miles. S. E. of
Cape Race, Newfoundland, the vessel struck an iceberg,
and began to fill so rapidly that was evident she must soon
go down. The long-boat and jolly-boat were cleared away
and lowered. The captain, the second mate, seven of the
crew, and one passenger got into the jolly-boat. The first
mate, eight seamen, of whom the prisoner was one, (these
nine being the entire remainder of the crew,) and thirty-two
passengers, in all, forty-one persons, got indiscriminately
into the long-boat.* The remainder of the passengers,
*The first mate and some of the crew of the long-boat were origi-
nally in the jolly-boat with the captain ; but the mate, understanding
navigation, was transferred, with a chart, quadrant and compass, to
the long-boat; and some of the crew were exchanged. · The long-boat
was 22%2 feet long, six feet in the beam, and from 272 to 3 feet deep.
CURIOUS CASES
383
1
Throwing Persons Overboard to Lighten Leaky Boat
thirty-one persons, were obliged to remain on board the
ship. In an hour and a half from the time when the ship
struck, she went down, carrying with her every person who
had not escaped to one or the other of the small boats.
Thirty-one passengers thus perished. *
On the following morning, (Tuesday,) the captain, being
about to part company with the long-boat, gave its crew
several directions, and among other counsel, advised them
to obey all the orders of the mate, as they would obey his,
the captain's. This the crew promised that they would do.
The long-boat was believed to be in general good condi-
but she had not been in the water since leaving
Liverpool, now thirty-five days; and as soon as she was
launched, began to leak. She continued to leak the whole .
time; but the passengers bad buckets and tins, and, by bal-
ing, were able to reduce the water, so as to make her hold
her own.
The plug was about an inch and a half in diame-
ter. It came out more than once, and, finally, got lost
but its place was supplied by different expedients.
It appeared by the depositions of the captain, and of the
second mate, t (the latter of whom had followed the sea
twenty-one years; the former being likewise well ex-
tion;
*One passenger had died after leaving Liverpool, and before the
catastrophe of the nineteenth.
Ť The captain and second mate, with the other persons in the jolly-
boat, after having been out at sea six days, were picked up by a
French fishing lugger. They afterwards came to Philadelphia,
where, by consent of the United States, the depositions of the cap-
tain and mate were taken, and the testimony was now read in
evidence.
384
CURIOUS CASES
Throwing Persons Overboard to Lighten Leaky Boat
”
perienced,) that on Tuesday morning, when the two boats
parted company, the long-boat and all aboard were in great
jeopardy. The gunwale was within from five to twelve
inches of the water. "From the experience” which they
had had, they thought “the long-boat was too unmanagea-
ble to be saved.” If she had been what, in marine phrase,
is called a leaky boat, she must have gone down. Even
without a leak, she would not have supported one-half her
company, had there been "a moderate blow"; : she would
have swamped very quickly.” The people were half
naked, and were “all crowded up together like sheep in a
pen. "A very little irregularity in the stowage would
have capsized the long-boat.” “If she had struck any
piece of ice, she would inevitably have gone down. There
was great peril of ice for any boat.”—(Captain's and sec-
ond mate's depositions. Without going into more detail,
the evidence of both these officers went to show, that
loaded as the long-boat was on Tuesday morning, the
chances of living were much against her. But the captain
thought that even if lightened to the extent to which she
afterwards was, “it would have been impossible to row her
to land ; and that the chances of her being picked up were
ninety-nine to one against her."
It appeared, further, that on Monday night, when the pas-
sengers on the ship (then settling towards her head and clearly
going down) were sbrieking, and calling on the captain to
take them off on his boat, the mate, on the long-boat, said
to them: “Poor souls ! you're only going down a short
>>
CURIOUS CASES
385
Throwing Persons Overboard to Lighten Leaky Boat
661
time before we do"; and further, that on the following
morning, before the boats parted company, the mate, in
the long-boat, told the captain, in the jolly-boat, that the
long-boat was unmanageable, and that unless the captain
would take some of the long-boat's passengers, it would be
necessary to cast lots and throw some overboard.
know what you mean," or, as stated by one witness, “I
know what you'll have to do,” said the captain ; "Don't
speak of that now. Let it be the last resort.
There was little or no wind at this time; but pieces of
ice were floating about.
Notwithstanding all this, the long-boat, loaded as she is
above described to have been, did survive throughout the
night of Monday, the day of Tuesday, and till ten o'clock
of Tuesday night; full twenty-four hours after the ship
struck the iceberg. The crew rowed, turn about, at inter-
vals, and the passengers baled.
On Tuesday morning, after the long-boat and jolly-boat
parted, it began to rain, and continued to rain throughout
the day and night of Tuesday. At night the wind began to
freshen; the sea grew heavier ; and once or oftener the
waves splashed over the boat's bow so as to wet, all over,
the passengers who were seated there.
Pieces of ice were
still floating around; and, during the day, icebergs had
been seen.
About ten o'clock of Tuesday night, the prisoner and the
rest of the crew began to throw over some of the passen-
gers, and did not cease until they had thrown over fourteen
CC-25
386
CURIOUS CASES
Throwing Persons Overboard to Lighten Leaky Boat
male passengers. These, with the exception of two mar-
ried men and a small boy, constituted all the male passen-
gers aboard.
Not one of the crew was cast over ; one of them, the cook,
was a negro.
It was among the facts of this case, that during these
solemn and distressful hours, scarce a remark appeared to
have been made in regard to what was going to be done,
nor, while it was being done, as to the necessity for doing
it. None of the crew of the long-boat were present at the
trial, to testify; and, with the exception of one small boy,
all the witnesses from the long-boat were women ; mostly
quite young. It is probable, that by Tuesday night, (the
weather being cold, the persons on the boat partially naked,
and the rain falling heavily,) the witnesses had become
considerably overpowered by exhaustion and cold; having
been twenty-four hours in the boat. None of them spoke
in a manner entirely explicit and satisfactory in regard to
the most important point, viz., the degree and imminence of
the jeopardy at ten o'clock on Tuesday night, when the
throwing-over began.
As has been stated, few words were spoken. It ap-
peared, only, that about ten o'clock of Tuesday night, it
being then dark, the rain falling rather heavily, the sea
somewhat freshening, and the boat having considerable
water in it, the mate, who had been baling for some time,
gave it up, exclaiming : “ This work won't do. Help me,
God! Men, go to work.' Some of the passengers cried
>>
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out, about the same time : 6. The boat is sinking. The
plug's out. God have mercy on our poor souls ! »
Holmes and the crew did not proceed upon this order;
and after a little while, the mate exclaimed again :
you must go to work, or we shall all perish !” They then
went to work; and as has been already stated, threw out,
before they ended, fourteen male passengers; and also two
"Men,
women. *
The mate directed the crew ws not to part man and wife,
and not to throw over any women. There was no other
principle of selection. There was no evidence of combi-
nation among the crew. No lots were cast; nor had the
passengers, at any time, been either informed or consulted
as to what was now done.
Holmes was one of the persons who assisted in throwing
the passengers over.
The first man thrown over was one
Riley, whom Holmes and the others told to stand up,
which he did : they then threw him over; and afterwards,
Duffy, who, in vain, besought them to spare him for the
sake of his wife and children, who were on shore. They
then seized a third man ; but, his wife being aboard,
*It was matter of doubt whether these women (two sisters of
Frank Askin, an Irish youth, spoken of further on) had been thrown
over, or whether their sacrifice was an act of self-devotion and
affection to their brother. When Holmes seized him, his sisters
entreated for his life, and said that if he was thrown over, they
wished to be thrown over too; that “they wished to die the death of
their brother." 'Give me only a dress to put round me," said one
of the sisters, after her brother had been thrown out, “and I care
not now to live longer."
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he was spared. Coming to Charles Conlin, the man
exclaimed : “Holmes, dear, sure you won't put me out?”
" Yes, Charley,” said Holmes, "you must go too"; and
so he was thrown over. Next was Francis Askin, for the
“ manslaughter” of whom the prisoner was indicted. .
When laid hold of, he offered Holmes five sovereigns to
spare his life till morning, “when," said he, if God
don't send us some help, we'll draw lots, and if the lot
falls on me, I'll go over like a man. Holmes said :
661
don't want your money, Frank”; and put him overboard. .
When one M’Avoy was seized, he asked for five minutes
to say his prayers; and at the interposition of a negro, the
cook, was allowed time to say them before he was cast
overboard. It appeared, also, that when Askin was put
out, he had struggled violently : yet the boat had not sunk.
Two men, very stiff with cold, who had hidden them-
selves, were thrown over after daylight on Wednesday
morning, when, clearly, there was no necessity for it. *
On Wednesday morning, while yet in the boat, some of
the witnesses had told the crew that they (i. e., the crew)
should be made to die the death they had given to the others.
The boat had provisions for six or seven days, close allow-
ance ; that is to say, seventy-five pounds of bread, six gal-
lons of water, eight or ten pounds of meat, and a small bag
of oatmeal. The mate had a chart, quadrant and compass.
*The exact condition of these two men did not appear. Some of
the witnesses thought that they were too much frozen to recover :
others swore differently.
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Throwing Persons Overboard to Lighten Leaky Boat
0
The weather was cold, and the passengers, being half clothed,
much benumbed.
On Wednesday morning the weather cleared, and early
in the morning the long-boat was picked up by the ship
“Crescent.' All the persons who had not been thrown
overboard were thus saved.
On the other hand, the character of the prisoner stood
forth, in many points, in manly and interesting relief. A
Finn by birth, he had followed the sea from youth ; and his
frame and countenance would have made an artist's model for
decision and strength. He had been the last man of the
crew to leave the sinking ship. His efforts to save the
passengers, at the time the ship struck, had been conspicu-
ous; and but that they were in discharge of duty, would
have been called self-forgetful and most generous. *
As a sailor, his captain and the second mate testified, that
he had ever been obedient to orders, faithful to his duty,
*Ou board the long-boat, a widowed mother--a Scotswoman-and
her three daughters had escaped ; but just as the boat was about
veering astern, and when there was great danger of being drawn
into the vortex of the sinking ship, it was discovered that one of the
family, a sick sister, had been left behind in the ship. Her mother
was calling : “Isabel ! Isabel ! come ! come !” but the girl was too
sick to hear or to mind. Holmes, hearing the mother's cry, climbed
up the ship's side, (at great peril of his life, as was testified,) ran
astern, and hoisting the sick girl upon his shoulders, swung himself
and her over, by the tackle, by one arm, into the long-boat below.
“ 'O mother! I am coming! I am coming !” responded the girl, as
Holmes was lowering himself and her along the ship's side.
On the trial, Holmes's counsel, after describing, with effect, the
earlier circumstances of the catastrophe, thus opened his defence :
'But hark ! gentlemen. On that dreadful night, the crew and half
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and efficient in the performance of it ; " remarkably so," --
said the second mate. - He was kind and obliging in every
respect"; -said the captain ; “to the passengers, to his
shipmates, and to everybody ; never heard one speak against
him ; he was always obedient to officers ; I never had a bet-
ter man on board ship; he was a first rate man.” (Captain's
deposition.) While on the long-boat, in order to protect
the women, he had parted with all his clothes, except his
shirt and pantaloons ; and his conduct and language to the
women were kind. After Askin had been thrown out,
some one asked, if any more were to be thrown over.
"No," said Holmes, “no more shall be thrown over ; if any
more are lost, we will all be lost together.” Of both pas-
sengers and crew, he finally became the only one whose
energies and whose hopes did not sink into prostration.
He was the first to descry the vessel which took them up,
the passengers having taken to the boats, the agonized voice of a
mother is heard, even beyond the tumult and the outcry, calling for
the preservation of her daughter, who in the consternation of the
moment had been forgotten, and remained on board the fated ship.
In an instant you see an athletic sailor passing hand over hand, by
means of a slender rope, until he regains the vessel. Behold him
now on the quarterdeck, with one arm entwined around a sickly and
half naked girl, in the depth of the night, surrounded by icebergs
and the ocean; while, with the other, he swings himself and his
almost lifeless burthen from the stern of the sinking ship into the
boat below; and restores the child at once to the open arms and
yearning heart of her mother! Yet, today, gentlemen, there, before
you, sits that self-same heroic sailor, arraigned upon the charge of
having voluntarily and feloniously deprived a fellow creature of his
life : and that, gentlemen, is the charge which you are summoned
here to determine."
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Throwing Persons Overboard to Lighten Leaky Boat
and by his exertions the ship was made to see and finally
to save them.
The prisoner was indicted under the Act of April 30th,
1790, “For the punishment of certain crimes against the
United States,” (1 Story's L. U. S. p. 83,) an act which
ordains, $ 12, 6 that if any seamen, &c., shall commit
manslaughter upon the high seas," &c., on conviction, he
shall be imprisoned not exceeding three years, and fined
not exceeding one thousand dollars. The indictment
1
*". The passengers, on Wednesday morning," said one of the wit-
nesses, “looked very distressed ; and Holmes told them to keep their
hearts up.” " The mate,” said another witness, asked the men
what he should do; Holmes said we ought not to steer for New-
foundland, as we would never reach it; but to go south, as it would
be warmer, and we might meet a vessel. The mate said he would do
as Holmes wanted. He would give up all to Holmes."
"I
saw Holmes with a quilt. He tried to raise it to make a sail ; but
the wind was too strong. He then stood up, and said that he saw the
mast of a vessel ; and afterwards got to work to raise a shawl on
the end of an oar.” In fact, as appeared by other parts of the tes-
timony, Holmes' long trained, laboring eye descried the Crescent's
mainnast, in the distance, several minutes before it was at all visi-
ble to anybody on board : and while most of the boat's assemblage
lay yet exhausted, or despairing, he had raised the signal of distress.
His coolness and deep knowledge of sea-life were not less mani-
fested now than his physical superiority had been before. The
great distance of the Crescent rendered it almost impossible that
Holmes' signal should be seen. The second mate of the vessel hap-
pened, however, to be aloft, watching for ice; and as soon as the
ship, responding to the signal, put about, the voice of exultant joy
and gratitude burst forth from the wretched assemblage on the long-
boat. Some were crawling up the side of the boat to see the ap-
proaching vessel ; and others, who had seemed congealed, now stood
erect; “Lie down!” said Holmes,
, every soul of you; and be
still ! If they make so many of us on board, they will steer off
another way, and pretend they have not seen uis."
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charged that Holmes : First, with force, &c., "unlawfully
and feloniously” did make an assault, &c., and cast and
throw Askin from a vessel, belonging, &c., whose name
was unknown, into the high seas, by means of which, &c.,
Askin, in and with the waters thereof, then and there was
suffocated and drowned: Second, in the same way, on
board the long-boat of the ship William Brown, belonging,
&c., did make an assault, &c., and cast, &c.
The trial of the prisoner came on upon the thirteenth of
April, 1842; a few days before the anniversary of the
calamitous events referred to. The case was replete with
incidents of deep romance, and of pathetic interest.
These, not being connected with the law of the case, of
course do not appear in this report: but they had become
known, in a general way, to the public, before the trial ;
and on the day assigned for the trial, at the opening of the
court, several stenographers connected with the newspaper
press appeared within the Bar, ready to report the evidence
for their expectant readers.
MR. JUSTICE BALDWIN, on taking his seat, now said :
“By an act of Congress, passed some years since, the court
has no longer the power to punish, as for contempt, the,
publication of testimony pending a trial before us.
We
have, however, the power to regulate the admission of
persons, and the character of proceedings within our
own bar; and as the court perceives several persons
apparently connected with the daily press, whose object,
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Throwing Persons Overboard to Lighten Leaky Boat
we presume, is to report the proceedings and evidence in
this case, as it advances, the court takes occasion to state
that no person will be allowed to come within the bar of
the court for the purpose of reporting, except on condition
of suspending all publication till after the trial is con-
cluded. On compliance with this condition, and not
otherwise, the court will direct that a convenient place be
afforded to the reporters of the press."
The reporters expressed their acquiescence in this order
of the court; and the most respectful silence, on the part
of the press, prevailed during the whole trial.
The prosecution was conducted by Mr. Wm. M. Mere-
dith, D. A. U. S., Mr. Dallas, and Mr. 0. Hopkinson ;
the defence by Mr. David Paul Brown, Mr. Hazlehurst,
and Mr. Armstrong.
Mr. Dallas.-The prisoner is charged with wunlawful'
homicide, as distinguished from that sort which is mali-
cious. His defence is, that the homicide was necessary to
self-preservation. First then, we ask : Was the homicide
thus necessary? that is to say : Was the danger instant,
overwhelming, leaving no choice of means, no moment for
deliberation? For unless the danger were of this sort, the
prisoner, under any admission, had no right, without notice, .
or consultation, or lot, to sacrifice the lives of sixteen fel-
low-beings. Peril, even extreme peril
, is not enough to
justify a sacrifice such as this was. Nor would even the
certainty of death be enough, if death were yet prospective.
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Throwing Persons Overboard to Lighten Leaky Boat
It must be instant. The law regards every man's life as
of equal value. It regards it, likewise, as of sacred value.
Nor may any man take away his brother's life, but where
the sacrifice is indispensable to save his own.
[Mr. Dallas
then examined the evidence ; and contended that the danger
was not so extreme as is requisite to justify homicide.]
But it will be answered, that death being certain, there
was no obligation to wait until the moment of death had
arrived. Admitting then, the fact that death was certain,
and that the safety of some persons was to be promoted by
an early sacrifice of the others, what law, we ask, gives a
crew, in such a case, to be the arbiters of life and death?
settling, for themselves, both the time and the extent of the
necessity? No! We protest against giving to seamen the
power thus to make jettison of human beings, as of so much
cargo : of allowing sailors, for their own safety, to throw
overboard, whenever they may like, whomsoever they may
choose. If the mate and seamen believed that the ultimate
safety of a portion was to be advanced by the sacrifice of
another portion, it was the clear duty of that officer, and
of the seamen, to give full notice to all on board. Com-
mon settlement would then have fixed the principle of
sacrifice : and the mode of selection involving all, a sacri-
fice of any would have been resorted to only in dire extrem-
ity.
Thus far, the argument admits that at sea, sailor and
passenger stand upon the same base, and in equal relations.
But we take, third, stronger ground. The seaman, we hold,
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Throwing Persons Overboard to Lighten Leaky Boat
the sea.
is bound, beyond the passenger, to encounter the perils of
To the last extremity, to death itself, must he
protect the passenger. It is his duty. It is on account of
these risks that he is paid. It is because the sailor is
expected to expose himself to every danger, that beyond all
mankind, by every law, bis wages are secured to him. It
is for this exposure, that the seaman's claims are a " sacred
lien,” and “ that if only a single nail of the ship is left, they
are entitled to it.” (3rd Kent's Com. p. 197, and in note.)
Exposure, risk, hardship, death, are the sailor's vocation";
the seaman's daily bread. He must perform whatever
belongs to his duty. To this effect speaks Lord Bacon,
when he says: “That the Law imposeth it upon every sub-
ject that he prefer the urgent service of his Prince and
Country before the safety of his life.”
His Lordship goes
on to say, that " if a man be commanded to bring ordnance
or munition to relieve any of the King's towns that are
distressed, then he cannot for any danger of tempest justify
the throwing of them overboard ; for there it holdeth
which was spoken by the Roman when he alleged the same
necessity of weather to hold him from embarking : Ne-
cesse est ut eam ; non ut vivam.' » (Bacon's Works, by
Montagu, vol. 13th, p. 161, Lond. 1831.)* No other
*The navy and army chronicles of England record many examples
of Bacon's noble thought, " The duties of life are more than life.”
And certainly, in whatever circumstances witnessed, such testimo-
nials will prove a vindication of all that counsel here asserted. But
most of these heroic examples (some of which were cited in the
argument) have been on the part of officers, in England especially,
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Throwing Persons Overboard to Lighten Leaky Boat
doctrine than this one can be adopted. Promulge as law
that the prisoner is guiltless; and our marine will be dis-
graced in the eyes of civilized nations ! The thousand
ships which now traverse the ocean in safety will be con-
signed to the absolute power of their crews: And, worse
than the dangers of the sea will be added such as come
from the violence of men more reckless than any upon
earth!
Mr. Armstrong opened the defence; and was followed
by Mr. Brown.
We protest against the prisoner being made a victim to
the reputation of the marine law of the country. It cannot
be, God forbid that it should ever be, that the sacrifice of
innocence shall be the price at which the name and honor
of American jurisprudence is to be preserved in this coun-
try, or in foreign lands! The malediction of an unright-
men of high associations, and often highly educated. And we are
ready to resolve much into the instinct of discipline, and much,
perhaps, into the incentive of ambition, seeking the bubble reputa-
tion.
An example more impressive than any of these, as it was that of
a common sailor, occurred in our own country, on Lake Erie, in the
destruction of the steamboat Erie by fire, on the afternoon of the
9th of August, 1841. As soon as it was discovered that the flames
could not be controlled, the captain ordered the helmsman to make
for land, then within sight. The man accordingly turned the ves-
sel. The fire, having taken near midships, quickly reached the
binnacle. Yet the man kept his post ; and his hand was on the
wheel. The wreathing flames ere long enclosed him; and when
every soul had left the ship, his form was still to be seen amidst the
flames; his clothes dropping from him ; standing like a man of
steel ; and in performance of his duty, steering the flaming vessel
to a headland.
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!
Throwing Persons Overboard to Lighten Leaky Boat
eous sentence will rest more heavily on the law, than on
the prisoner! This court (it would be indecent to think
otherwise) will administer the law, “uncaring conse-
quences.
But this case should be tried in a long-boat, sunk
down to its very gunwale with forty-one half naked,
starved, and shivering wretches; the boat leaking from
below ; filling from above; a hundred leagues from land ;
at midnight ; surrounded by ice; unmanageable from its
load, and subject to certain destruction from the change of
the most changeful of the elements ; the winds and the
waves. To these superadd the horrors of famine and the
recklessness of despair, madness, and all the prospects,
past utterance, of this unutterable condition. Fairly to sit
in judgment on the prisoner, we should, then, be actually
translated to his situation. It was a conjuncture which no
fancy can image. Terror had assumed the throne of Rea-
son ; and Passion had become Judgment. Are the United
States to come here, now! a year after the events; when
it is impossible to estimate the elements which combined to
make the risk, or to say to what extent the jeopardy was
imminent : Are they, with square, rule and compass,
deliberately to measure this boat, in this room ; to weigh
these passengers ; call in philosophers; discuss specific
gravities; calculate, by the tables of a Life Insurance Com-
pany, the chances of life ; and because they, these judges,
find that, by their calculation, this unfortunate boat's crew
might have had the thousandth part of one poor chance of
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escape, -to condemn this prisoner to chains and a dungeon,
for what he did in the terror and darkness of that dark and
terrible night! Such a mode of testing men's acts and
motives is monstrous.
We contend, therefore, that what is honestly and reason-
ably believed to be certain death, will justify self-defence
to the degree requisite for excuse. According to Dr.
Rutherford, (Inst. of Nat. Law, Book I, Chap. 16th, $ 5,)
" This law," i. e., the law of nature, “cannot be supposed
to oblige a man to expose his life to such dangers as may
be guarded against, and to wait till the danger is just com-
ing upon him, before it allows him to secure himself.” In.
other words, he need not wait till the certainty of the
danger has been proved, past doubt, by its result. Yet
this is the doctrine of the prosecution. They ask us to
wait until the boat has sunk : we may then make an effort
to prevent her from sinking. They tell us to wait till all
are drowned : we may then make endeavors to save a part.
They command us to stand still till we are all lost past pos-
sibility of redemption : and then we may rescue as many as
can be saved !
Where the danger is instantaneous, the mind is too much
disturbed, says Rutherford, in a passage hereafter cited, to
deliberate upon the method of providing for one's own
safety, with the least hurt to an aggressor.
The same
author then proceeds: “I see not, therefore, any want of
benevolence which can be reasonably charged upon a man in
these circumstances, if he takes the most obvious way of
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Throwing Persons Overboard to Lighten Leaky Boat
preserving himself, though perhaps some other method might
have been found out, which would have preserved him as
effectually, and have produced less hurt to the aggressor,
if he had been calm enough, and had been allowed time
enough to deliberate about it.” (Rutherf. Inst. of Nat.
Law, Book 1, Ch. 16th, $ 5.)
Nor is this the language of approved text writers alone.
The doctrine has the solemnity of judicial establishment.
In Grainger vs. The State, 5th Yerger's Rep., p. 459,
the Supreme Court of Tennessee deliberately adjudge,
that w if a man, though in no great danger of serious
bodily harm, through fear, alarm or cowardice, kill
another under the impression that great bodily injury
is about to be inflicted on him, it is neither manslaughter
nor murder, but self-defence.”
" It is a different thing,"
say the Supreme Court of the U. S. in The Mariana Flora,
" to sit in judgment upon this case, after full legal investi-
gations, aided by the regular evidence of all parties, and to
Iraw conclusions at sea, with very imperfect means of ascer-
taining facts and principles which ought to direct the judg-
(11th Wheaton's Rep. p. 51.) The decision in the
case just cited carried out this principle into practice : as
the case of The Louis, decided by Sir William Scott, had
done before. (2nd Dodson's Adm. Rep. p. 264.)
The counsel cited Lord Bacon, likewise, (Works, by
Montagu; vol. 13th, p. 160, Lond. 1831,) and 4th Black-
stone's Com., p. 186.
But the prospect of sinking was not imaginary. It was
ment."
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CURIOUS CASES
Throwing Persons Overboard to Lighten Leaky Boat
>>
well founded. It is not to be supposed that Holmes, who,
from infancy, had been a child of the ocean, was cause-
lessly alarmed : and, there being no pretence of animosity,
but the contrary, we must infer that the peril was extreme.
As regards the two men cast over on Wednesday, the pre-
sumption is, that they were either frozen, or freezing to
death. There being, at this time, no prospect of relief, the
act is deprived of its barbarity. The evidence is that the
two men were very stiff with cold.”
Besides : This indictment is in regard to Askin alone.
There is no evidence of inhumanity on Tuesday night, when
this throwing over began ; though it is possible enough,
that having proceeded so far in the work of horror, the
feelings of the crew became, at last, so disordered as to
become unnatural. [The learned counsel then examined
the evidence, in order to show the extremity of the danger.]
Counsel say that lots are the law of the ocean. Lots, in
cases of famine, where means of subsistence are wanting for
all the crew, is what the history of maritime disaster
records ; but who has ever told of casting lots at midnight ;
in a sinking boat; in the midst of darkness; of rain ; of
terror and of confusion ? To cast lots when all are going
down, to decide who shall be spared ; to cast lots when the
question is, whether any can be saved, is a plan easy to
suggest; rather difficult to put in practice. The danger
was instantaneous; a case, says Rutherford, (Inst. of Nat.
Law, Book 1, Ch. 16th, $ 5,) when the mind is too much
disturbed to deliberate" ; and where, if it were
more
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401
Throwing Persons Overboard to Lighten Leaky Boat
calm," there is no time for deliberation. The sailors
adopted the only principle of selection which was possible
in an emergency like theirs ; a principle more humane than
lots. Man and wife were not torn asunder ; and the
women were all preserved. Lots would have rendered
impossible this clear dictate of humanity.
But again : The crew either were in their ordinary and
original state of subordination to their officers, or they
were in a state of nature. If in the former state, they are
excusable in law, for having obeyed the order of the mate;
an order twice imperatively given. Independent of the
mate's general authority in the captain's absence, the cap-
tain had pointedly directed the crew to obey all the mate's
orders as they would his, the captain's; and the crew had
promised to do so.
It imports not to declare, that a crew is not bound to
obey an unlawful order; for to say that this order was
unlawful, is to postulate what remains to be proved. Who
is to judge of the unlawfulness? The circumstances were
peculiar. The occasion was emergent; without precedent,
or parallel. The lawfulness of the order is the very ques-
tion which we are disputing ; a question about which this
whole community has been agitated, and is still divided ;
the discussion of which crowds this room with auditors
past former example ; a question which this court, with all
its resources, is now engaged in considering—as such a
question demands to be considered-most deliberately, most
anxiously, most cautiously. It is no part of a sailor's duty
CC-26
402
CURIOUS CASES
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to moralize and to speculate, in such a moment as this was, ,
upon the orders of his superior officers. The commander
of a ship, like the commander of an army, “gives desper-
ate commands. He requires instantaneous obedience.'
The sailor, like the soldier, obeys by instinct. In the
memorable, immortal words of Carnot, when he surren-
dered Antwerp in obedience to a command which his pride,
his patriotism, and his views of policy all combined to
oppose : “The armed force is essentially obedient : it acts,
but never deliberates.” This greatest man of the French
Revolution did here but define with the precision of the
algebraist what he conceived. with the comprehension of a
statesman: and his answer was justification with every sol-
dier in Europe! How far the principle was felt by this
crew, let witness the case of this very mate, and of some of
these very sailors, who, by the captain's order, left the
jolly-boat, which had but ten persons, for the long-boat,
with more than four times that number. See ante, p. 2
[p. 382 of this book], in note. They all regarded this
as going into the jaws of death. Yet not a murmur !
It is a well known fact, that in no marine on the ocean is
obedience to orders so habitual and so implicit as in our
The prisoner had been always distinguished by
obedience.
Whether the mate, if on trial here, would be found
innocent, is a question which we need not decide. That
question is a different one from the guilt or innocence of
the prisoner; and one more difficult.
own.
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Throwing Persons Overboard to Lighten Leaky Boat
But if the whole company were reduced to a state of
nature, then the sailors were bound to no duty, not
mutual, to the passengers. The contract of the shipping
articles had become dissolved by an unforeseen and over-
whelming necessity. The sailor was no longer a sailor,
but a drowning man. Having fairly done his duty to
the last extremity, he was not to lose the rights of a
human being, because he wore a roundabout instead
of a frock-coat. We do not seek authorities for such
doctrine. The instinct of these men's hearts is our au-
thority; the best authority. Whoever opposes it must be
wrong; for he opposes human nature. All the contem-
plated conditions; all the contemplated possibilities of the
voyage, were ended. The parties, sailor and passenger,
in
a new state. All persons on board the vessel
became equal. All became their own law givers; for arti-
ficial distinctions cease to prevail when men are reduced to
the equality of nature. Every man on board had a right to
make law with his own right hand : and the law which did
prevail on that awful night having been the law of neces-
sity, and the law of nature too, it is the law which will be
upheld by this court, to the liberation of this prisoner.
On the 22nd April, the same day, Mr. Meredith, D. A.,
replied, speaking principally to the evidence.
MR. JUSTICE BALDWIN proceeded, afterwards, to charge
were
the jury.
He alluded to the touching character of the case ; and
after stating to the jury what was the offence laid in the
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Throwing Persons Overboard to Lighten Leaky Boat
indictment, his Honor explained, with particularity, the
distinction between murder and manslaughter. He said
that malice was of the essence of murder, while want of
criminal intention was consistent with the nature of man-
slaughter. He impressed strongly upon the jury, that the
mere absence of malice did not render homicide excusable;
that the act might be unlawful, as well as the union of the
act and intention ; in which union consisted the crime of
murder. After giving several familiar instances of man-
slaughter, to explain that although homicide was committed,
there was yet an absence of bad motive, his Honor pro-
ceeded with his charge nearly as follows: In such cases
the law neither excuses the act nor permits it to be justi-
fied as innocent ; but, although inflicting some punishment,
she yet looks with a benignant eye through the thing done,
to the mind and to the heart ; and when, on a view of all
the circumstances connected with the act, no evil spirit is
discerned, her humanity forbids the exaction of life for
life.
But though, said the court, cases of this kind are viewed
with tenderness, and punished in mercy, we must yet bear
in mind, that man, in taking away the life of a fellow-
being, assumes an awful responsibility to God, and to
society ; and that the administrators of public justice do
themselves assume that responsibility, if, when called on
to pass judicially upon the act, they yield to the indul-
gence of misapplied humanity. It is one thing to give a
favorable interpretation to evidence in order to mitigate an
CURIOUS CASES
405
Throwing Persons Overboard to Lighten Leaky Boat
offence. It is a different thing, when we are asked, not to
extenuate, but to justify, the act. In the former case, as I
have said, our decision may, in some degree, be swayed by
feelings of humanity ; while in the latter, it is the law of
necessity, alone, which can disarm the vindicatory justice
of the country. Where, indeed, a case does arise, em-
braced by this claw of necessity,” the penal laws pass over
such case in silence ; for law is made to meet but the ordi-
nary exigencies of life.
But the case does not become 66 a case of necessity,'
unless all ordinary means of self-preservation have been
exhausted. The peril must be instant, overwhelming ;
leaving no alternative but to lose our own life, or to take
the life of another person.
An illustration of this principle occurs in the ordinary
case of self-defence against lawless violence aiming at the
destruction of life, or designing to inflict grievous injury to
the person ; and within this range may fall the taking of
life under other circumstances where the act is indispensa-
bly requisite to self-existence. For example : Suppose
that two persons who owe no duty to one another that is
not mutual, should, by accident not attributable to either,
be placed in a situation where both cannot survive. Neither
is bound to save the other's life by sacrificing his own :
nor would either commit a crime in saving his own life in a
struggle for the only means of safety. Of this description
of cases are those which have been cited to you by coun-
sel, from writers on natural law ; cases which we rather
等 ​A
406
CURIOUS CASES
Throwing Persons Overboard to Lighten Leaky Boat
leave to your imagination than attempt minutely to de-
scribe.
And I again state, that when this great “ law of neces-
sity” does apply, and is not improperly exercised, the
taking of life is divested of unlawfulness.
But in applying this law, we must look not only to the
jeopardy in which the parties are, but also to the relations
in which they stand.
The slayer must be under no obligation to make his own
safety secondary to the safety of others.
A familiar application of this principle presents itself in
the obligations which rest upon the owners of stages,
steamboats, and other vehicles of transportation. In con-
sideration of the payment of fare, the owners of the vehi-
cle are bound to transport the passengers to the place of
contemplated destination. Having, in all emergencies, the
conduct of the journey, and the control of the passengers,
the owners rest under every obligation for care, skill, and
general capacity ; and if, from defect of any of these
requisites, grievous injury is done to the passenger, the
persons employed are liable. The passenger owes no duty
but submission ; he is under no obligation to protect and
keep the conductor in safety ; nor is the passenger bound
to labor, except in cases of emergency, where his services
are required by unanticipated and uncommon danger.
Such, said the court, is the relation which exists on ship-
board. The passenger stands in a position different from
.
CURIOUS CASES
407
Throwing Persons Overboard to Lighten Leaky Boat
The cap-
that of the officers and seamen ; it is the sailor who must
encounter the hardships and perils of the voyage.
Nor can this relation be changed when the ship is lost by
tempest or other danger of the sea, and all on board have
betaken themselves, for safety, to the small boats ; for
imminence of danger cannot absolve from duty. The sailor
is bound, as before, to undergo whatever hazard is nec-
essary to preserve the boat and the passengers. Should
the emergency become so extreme as to call for the sacri-
fice of life, there can be no reason why the law does not
still remain the same; the passenger, not being bound
either to labor or to incur the risk of life, cannot be bound
to sacrifice his existence to preserve the sailor's.
tain, indeed, and a sufficient number of seamen to navigate
the boat, must be preserved; for except these abide in the
ship, all will perish; but if there be more seamen than are
necessary to manage the boat, the supernumerary sailors
have no right, for their safety, to sacrifice the passengers.
The sailors and passengers, in fact, cannot be regarded as
in equal positions. The sailor (to use the language of a
distinguished writer) owes inore benevolence to another than
to himself; he is bound to set a greater value on the life of
others than on his own ; and while we admit that sailor and
sailor may lawfully struggle with each other for the plank
which can save but one, we think that if the passenger is
on the plank, even the law of necessity" justifies not
the sailor who takes it from him.
This rule may be deemed a barsh one towards the sailor,
408
CURIOUS CASES
Throwing Persons Overboard to Lighten Leaky Boat
who may have thus far done his duty ; but when the danger
is so extreme that the only hope is in sacrificing either
a sailor or a passenger, any alternative is hard ; and
would it not be the hardest of any, to sacrifice a passenger
in order to save a supernumerary sailor ?
But in addition : If the source of the danger have been
obvious, and destruction ascertained to be certainly about to
arrive, though at a future time, there should be consulta-
tion, and some mode of selection fixed, by which those in
equal relations may have equal chance for their life. By
what mode then should selection be made ? The question is
not without difficulty ; nor do we know of any rule pre-
scribed either by statute or by common law, or even by
speculative writers on the law of nature.
he pre-
In fact, no rule of general application can
scribed for contingencies which are wholly unforeseen.
There is, however, one condition of extremity for which
all writers have prescribed the same rule. When the
ship is in no danger of sinking, but all sustenance is
exhausted, and a sacrifice of one person is necessary to
appease the hunger of others, the selection is by lot.
This mode is resorted to as the fairest mode ; and, in some
sort, as an appeal to God for selection of the victim.
This manner, obviously, was regarded by the mate, in
parting with the captain, as the one which it was proper
to adopt, in case the long-boat could not live with all who
were on board on Tuesday morning. The same manner, as
CURIOUS CASES
409
Throwing Persons Overboard to Lighten Leaky Boat
would appear from the response given to the mate, bad
already suggested itself to the captain.
For ourselves, we can conceive of no mode so consonant
both to humanity and to justice; and the occasion, we think,
must be peculiar, which will dispense with its exercise. If,
indeed, the peril be instant and overwhelming, leaving no
ince of means, and no moment for deliberation; then, of
course, there is no power to consult, to cast lots, or in any
such way to decide ; but even where the final disaster is
thus sudden, if it have been foreseen as certainly about to
arrive ; if no new cause of danger have arisen to bring on
the closing catastrophe ; if time have existed to cast lots,
and to select the victims; then, as we have said, sortition
should be adopted. In no other than this or some like way
are those having equal rights put upon an equal footing;
and in no other way is it possible to guard against partiality
and oppression, violence and conflict. What scene, indeed,
more horrible, can imagination draw, than a struggle
between sailor and sailor, passenger and passenger, or it
may be, a mixed affray, in which, promiscuously, all destroy
one another ! this too, in circumstances which have allowed
time to decide, with justice, whose life should be calmly
surrendered.
When the selection has been made by lots, the victim
yields of course to his fate ; or, if he resist, force may be
employed to coerce submission.
Whether or not " a case of necessity” bas arisen, or
whether the law under which death has been inflicted have
410
CURIOUS CASES
Throwing Persons Overboard to Lighten Leaky Boat
皆
​been so exercised as to hold the executioner harmless,
cannot depend on his own opinion ; for no man may pass
upon his own conduct when it concerns the rights, and
especially when it affects the lives, of others. We have
already stated to you, that by the law of the land, homicide
is sometimes justifiable ; and the law defines the occasions
in which it is so. The transaction must, therefore, be
justified to the law ; and the person accused rests under
obligation to satisfy those who judicially scrutinize his case,
that it really transcended ordinary rules. In fact, any
other principle would be followed by pernicious results ;
and, moreover, would not be practicable in application. .
Opinion or belief may be assumed, whether it exist or not ;
and if this mere opinion of the sailors will justify them in
making a sacrifice of the passengers, of course, the mere
opinion of the passengers would, in turn, justify these in
making a sacrifice of the sailors. The passengers may
have confidence in their own capacity to manage and pre-
serve the boat ; or the effort of either sailors or passen-
gers to save the boat may be clearly unavailing; and what,
then, in a struggle against force and numbers, becomes of
the safety of the seamen? Hard as is a seaman's life,
would it not become yet more perilous, if the passengers,
who may outnumber them tenfold, should be allowed to
judge when the dangers of the sea will justify a sacrifice of
life? We are, therefore, satisfied, that in requiring proof
which shall be satisfactory to you of the existence of the
necessity, we are fixing the rule which is not merely the
CURIOUS CASES
411
Throwing Persons Overboard to Lighten Leaky Boat
only one that is practicable, but, moreover, the only one
which will secure the safety of the sailors themselves.
The court said, briefly, that the principles which had
been laid down by them, as applicable to the crew, applied
to the mate likewise ; and that his order, (on which much
stress had been laid, ) if an unlawful order, would be no
justification to the seamen ; for that even seamen are not
justified, in law, by obedience to commands which are
unlawful.
The court added, that the case was one which involved
questions of gravest consideration ; and as the facts, in
some sort, were without precedent, that the court preferred
to state the law, in the shape of such general principles as
would comprehend the case, under any view which the jury
might take of the evidence.
After a few remarks upon the evidence, the case was
given to the jury; who, about sixteen hours afterwards.
and after having once returned to the bar, unable to agree,
with some difficulty found a verdict of GUILTY. The pris-
oner was, however, recommended to the mercy of the
court.
On the same day a rule was obtained to show cause why
judgment should not be arrested and a new trial granted.
The following ground was relied on for a new trial :
Because the court, instead of telling the jury that in a state
of imminent and deadly peril, all men are reduced to a state
of nature, and that there is then no distinction between the
412
CURIOUS CASES
Throwing Persons Overboard to Lighten Leaky Boat
rights of sailor and passenger, adopted a contrary doctrine,
and charged the jury accordingly.
Mr. Brown in favor of a new trial. He insisted largely
upon the existence of the state of nature, as distinguished
from the social state, and contended that to this state of
nature the persons in the long-boat had become reduced on
Tuesday night, at ten o'clock, when Askin was thrown over-
board. He iterated, illustrated, and enforced the argument
contained in the closing part of the defence. For the arrest
of judgment he argued, that the indictment was defective
in not stating the name of the boat on which the homicide
was alleged to have been committed ; that the counts in this
respect wanted certainty.
The United States did not reply.
The court held the application for some days under advise-
ment; and, at a subsequent day, discharged the rule.
They said, that during the trial, (aware that no similar case
was recorded in juridical annals,) they had given to the sub-
ject studious and deliberate consideration ; and they had
paid like regard to what was now urged ; but that notwith-
standing all that had been said, (and the arguments, it was
admitted, were powerful,) no error had been perceived by
the court in its instructions to the jury.
It is true, (said the court,) as is known by every one, that
we do find in the text writers, and sometimes in judicial
opinions, the phrases: “the law of nature"
;
66 the princi-
CURIOUS CASES
413
Throwing Persons Overboard to Lighten Leaky Boat
ples of natural right”; and other expressions of a like sig-
nification ; but, as applied to civilized men, nothing more
can be meant by those expressions than that there are cer-
tain great and fundamental principles of justice which, in
the constitution of nature, lie at the foundation and make
part of all civil law, independently of express adoption or
enactment. And to give to the expressions any other sig.
nification ; to claim them as showing an independent code,
and one contrariant to those settled principles, which, how-
ever modified, make a part of civil law in all Christian
nations, would be, to make the writers who use the
expressions lay down, as rules of action, principles which,
in their nature, admit of no practical ascertainment or appli-
cation. The law of nature forms part of the municipal law;
and in a proper case, (as of self-defence,) homicide is justi-
fiable, not because the municipal law is subverted by the
law of nature, but because no rule of the municipal law
makes homicide, in such cases, criminal. It is, said the
court, the municipal or civil law, as thus comprehensive; as
founded in moral and social justice ; the law of the land,
in short, as existing and administered amongst us and all
enlightened nations : that regulates the social duties of men,
the duties of man towards his neighbor, everywhere.
Everywhere are civilized men under its protection ; every-
where subject to its authority. It is part of the universal
law. We cannot escape it, in a case where it is applicable;
and if for the decision of any question the proper rule is to
414
CURIOUS CASES
Throwing Persons Overboard to Lighten Leaky Boat
be found in the municipal law, no code can be referred to
as annulling its authority.
Varying however, or however modified, the laws of all
civilized nations, and, indeed, the very nature of the social
constitution, place sailors and passengers in different rela-
tions. And without stopping to speculate upon over-nice
questions not before us, or to involve ourselves in the laby-
rinth of ethical subtleties, we may safely say, that the sail-
or's duty is the protection of the persons intrusted to his
care ; not their sacrifice ;-a duty, we must again declare
our opinion, that rests on him in every emergency of his
calling; and from which it would be senseless, indeed, to
absolve him exactly at those times when the obligation is
most needed.
Respecting the form of the counts, the court said, that
the locality of the offence was sufficiently expressed ; and
that in a case so peculiar it was impossible to express the
place with more precision.
When the prisoner was brought up for sentence, the
learned judge said to him, that many circumstances in the
affair were of a character to commend him to regard ; yet,
that the case was one in which some punishment was
demanded ; that it was in the power of the court to inflict
the penalty of an imprisonment for a term of three years,
and a fine of one thousand dollars ; but, in view of all the
circumstances, and especially as the prisoner had been
already confined in gaol several months, that the court
CURIOUS CASES
415
Throwing Persons Overboard to Lighten Leaky Boat
would make the punishment more lenient. The Cconvict ) ?
was then sentenced to undergo an imprisonment in the
Eastern Penitentiary of Pennsylvania, (solitary confine-
ment,) at hard labor, for the term of six months, and to
pay a fine of twenty dollars.
Note.-Considerable sympathy having been excited in favor of
Holmes, by the popular press, an effort was made by several persons,
and particularly by the Seaman's Friend Society, to obtain a pardon
from the Executive. President Tyler refused, however, to grant any
pardon, in consequence of the court's not uniting in the application :
the penalty was subsequently remitted.
416
CURIOUS CASES
Law of Horse Racing
DANIEL MCKAY
V.
JAMES IRVINE.
United States Circuit Court, District of Illinois, 1882.
[11 Biss. 168.]
The Law of Horse Racing-Liability Where One Horse
Fouls Another.
W. I. Culver and M. 0. Lewis, for plaintiff.
S. K. Dow, for defendant.
BLODGETT, J., charged the jury as follows:
Gentlemen of the jury: This is a suit for damages
alleged to have been sustained by the plaintiff from the
wilful or negligent act of the defendant's servant. The
plaintiff claims that, on the 25th of June last, he was
the owner of the thoroughbred stallion Wolverton ; that
this horse was entered for a race that day at the Chicago
Driving Park, near Chicago, competing with eight other
horses for a purse offered by the Driving Park Association ;
and that the defendant was the owner of a mare called the
Belle of Nelson, entered in the same race; that in the second
heat of this race, the defendant's mare, ridden by his serv-
ant or employee, was by intention or negligence of the
CURIOUS CASES
417
Law of Horse Racing
jockey or rider for the defendant foully ridden against the
plaintiff's horse, whereby the latter was thrown and killed.
The defendant denies that his mare was either intention-
ally or negligently ridden against the plaintiff's horse, and
denies that the death of the plaintiff's horse was caused by
any act of his jockey or rider.
If you have no knowledge of horse racing, other than
that developed by the proof in this case, you must see that
in a race like this, a horse is necessarily exposed to great
hazard and peril. In the first place the horses are mostly
ridden by boys, who can do little in the way of guiding or
controlling them, and whose chief office would seem to be
to urge them with whip and spur to the top of their speed ;
and in the second place, the horses themselves are high-
strung, nervous and excitable; and with as many competi-
tors as there were in this race, on a comparatively narrow
track, not running in a straight line, but around a parallelo-
gram with curved or rounded corners, so that at least four
turns must be made, there must be great risk of collision,
especially at these turns, even when the horses are fairly
and carefully ridden ; and those risks the owner of a horse
starting in a race must be presumed to take. That is, he
takes all the risk of accidents incident to the race ; but if a
horse is intentionally fouled, if it is purposely run against
or interfered with by the rider of another horse, the
employer of the rider who so fouls him or interferes with
him is liable for damages ; and so, too, each rider is
bound, as far as possible, to keep his horse from fouling
CC-27
418
CURIOUS CASES
Law of Horse Racing
with another, and his employer would be liable for any pal-
pable or clear act of negligence whereby a foul was occa-
sioned ; but I can hardly imagine a case where there would
be liability for negligence except where the rider was
incompetent. The owner starting his horse in the race is
bound to have a rider who is competent to such an extent as
is necessary to sufficiently manage and control the horse for
the purposes of the race, and the owner who starts his horse
in the race with a rider incompetent to perform the duties
of so guiding and controlling the horse might be held
liable for the consequences of his rider's incompetency.
This question, however, does not arise in this case, as there
is no charge that the defendant's jockey was not competent
for the service and duty assigned to him.
The foul complained of in this case is charged to have
consisted in an attempt on the part of the rider of the Belle
of Nelson to take the track ahead of Wolverton, before his
mare was far enough ahead of Wolverton to enable her to
draw in front of him without collision. You can readily
see, if a jockey attempts to take the track ahead of another
horse, before his horse is a clear length ahead of the other,
he runs great risk of colliding with the other horse, and if
he does so collide, or if he crowds the other horse so as to
impede him, or compel his jockey to hold him, or change
his course, for the purpose of avoiding a collision, it would
be unfair, and, therefore, would be foul riding; but there
may be a case where there is a clear space between the
horses sufficient to justify the foremost one in attempting to
CURIOUS CASES
419
Law of Horse Racing
take the track, and yet at the moment the jockey of the
foremost horse attempts the mancuvre, the rear horse may
be pushed, or rushed suddenly up, in which event a colli-
sion may occur by the act of the rider of the rear horse.
You will also bear in mind that, so far as danger is con-
cerned, the rider who attempts a foul runs as great risk to
himself and his own horse as he imposes on his competitor,
because it is impossible to tell in advance who may be the
sufferer ; but this fact does not justify a jockey in attempt-
ing a foul on the ground that he risks as much as his oppo-
nent. So much as to the rules of duty and obligation
which each rider, and the employer of the rider, assumes in
a race like this, and is bound to observe towards his compet-
itor.
The plaintiff has given proof tending to show that his
horse had the second position in the second heat; that is,
that he was started under the wire next to the horse that
had the pole, and that he maintained that position and was
a little behind Nero, who had the pole, and that the Belle
of Nelson was a little ahead of the plaintiff's horse up to
and at the first turn, which was from 150 to 200 yards
from the wire; and at this point the Belle of Nelson was
reined in to the left onto the plaintiff's horse, and in
attempting to pass ahead of him, tripped him, and he fell
and was fatally injured. · The testimony on the part of the
plaintiff tends to show this state of facts; this testimony
comes from persons who were spectators of the race, and
who, from different positions or standpoints of observation,
420
CURIOUS CASES
Law of Horse Racing
saw, or think they saw, the movements of each horse and
saw acts on the part of the defendant's rider which, if true,
would show an intentional fouling of plaintiff's horse.
The defendant has given proof tending to show that his
mare was in the lead, well ahead of Wolverton when he
fell, and that his fall was occasioned either by a collision
with some other horse, or by his stumbling, or some other
inherent weakness. The proof on the part of defendant
tends to show that immediately after leaving the wire the
Belle of Nelson and the horse Clan Alpine rushed to the
front; that they became the leading horses in the race, and
were clear ahead, a length or more ahead of Nero and Wol-
verton at the first turn, and at the time when Wolverton
fell, so that a collision between Wolverton and the Belle of
Nelson according to the testimony of defendant's witnesses
was impossible ; the defendant's proof, as I have said,
tending to show that the Belle of Nelson and Clan Alpine
took the lead within a few jumps after leaving the wire,
and that she could not have collided with Wolverton at the
turn, as she had been ahead of him for quite a distance
before they reached the turn.
The defendant has also given proof tending to show that
plaintiff's horse was badly ridden; that his rider was
incompetent and did not understand the proper management
of his horse, and that the horse was out of condition ; and
that he stumbled in his exercises before the race, and was
in such condition as to be liable to fall upon being pushed
to his utmost in the second heat of a contest like this.
CURIOUS CASES
421
Law of Horse Racing
You will see, therefore, that there is a conflict of testimony
here which you must settle, as to whether this injury was
occasioned by the fault of defendant's jockey.
It is for you to say which one of these witnesses you will
believe, or where you will place credence—not that you
must necessarily conclude that either of these witnesses has
sworn falsely, because you must see from the manner in
which these witnesses have testified that it was very diffi-
cult to see just exactly at the critical moment when this
horse fell, what horse was next to him, or what horse
caused him to fall, or what did actually cause him to fall.
The whole matter seems to have occurred instantaneously,
and witnesses of equal intelligence and equal credibility
have given you different versions of the way in which this
accident occurred, and the manner in which the horse fell,
and what horse was nearest to him. Some say the Belle of
Nelson was ahead ; some say she was clear ahead of bim
more than a length ; and others say she was running with
Wolverton's nose about at her saddle when her rider pulled
her in ahead of him and thereby tripped him up. These
witnesses testify from various positions. You must deter-
mine from the intelligence of the witnesses, from their
apparent candor and fairness, and from their opportunities of
observation, where the truth lies in this case.
The proof tends to show that this was a thoroughbred
horse, bred in England, and imported into this country
only a few weeks prior to this race. The plaintiff alleges
*
*
*
422
CURIOUS CASES
Law of Horse Racing
that the pedigree of his horse shows a high degree of excel-
lence of blood, but the pedigree is not before you.
There is, however, testimony of not only the plaintiff
himself, but of experts who saw the horse, and who claim
from experience to be able to judge whether a horse is or
is not thoroughbred, that he was a thoroughbred horse.
From the testimony in the case you are to say, if you find
the defendant guilty, what is the value of the horse,
because the measure of plaintiff's damages is the value of
the horse, it being conceded that the loss was a total one.
Verdict for plaintiff.
CURIOUS CASES
423
Collision---Boat in Wrong Berth
THE NIOBE.
United States District Court, S. D. Georgia, E. D., 1887.
(31 Fed. Rep. 164.]
Collision-Boat in Wrong Berth in Charge of "Lone
Fisherman"-Mutual Fault.
Isaac Beckett and R. R. Richards, for libelants.
A. H. MacDonell and J. R. Saussy, contra.
а.
1
SPEER, J. On the twenty-third day of March, 1886,
small sloop with a batteau bottom might have been seen
beating her way up the Savannah river. It was March, and
its conventional wind was blowing a pitiless gale from the
northwestward, and the tide was pouring its turbid volume
down the broad reaches of the Savannah, and, altogether,
there was nothing in the weather which indicated that the
sloop called the Pleasant Day should be out upon the waters,
and yet there she was. She had, under the skilful pilotage
of two colored mariners, threaded the sinuous and intricate
waters that trend from Savannah to the neighboring port of
Thunderbolt, or, more accurately, Warsaw. When the
Pleasant Day came abreast the Savannah, Florida & West-
ern wharves, whether a gust of unusual violence blew down
the river, or whether she sought instinctively her accus-
tomed anchorage in the Bilbo canal, the evidence is silent ;
424
CURIOUS CASES
Collision-Boat in Wrong Berth
but certain it is that she “pulled for the shore," and made
fast to the wharf. The weather-beaten crew without delay
betook themselves to a neighboring house of entertainment,
having first requested a lone fisherman, who, in despite of
the severity of the weather, was angling from the wharf, to
give an occasional eye to the Pleasant Day. About that
time the Norwegian bark Niobe, in charge of two tugs, one
towing her with a hawser from her bow, and the other made
fast to her starboard side, came up the river against the
same stress of wind and tide which had embarrassed the
Pleasant Day. Further down the Niobe had been hailed by
the harbor-master, Kennedy, and the pilot in charge
directed by that official to put the bark on that particular
spot of the mile and a half of wharf at which the Pleasant
Day was peacefully lying. The Niobe accordingly was
towed up the stream above that spot, the tug ahead cast off
the bawser which held her against the stream, and the north-
west wind, the downpouring tide, together with the impulse
of the tug fastened alongside, swept the Niobe rapidly
inshore. These preliminaries adjusted, it seemed to flash
upon the Niobe's people that there was an inevitable colli-
sion ahead of them. There was much shouting and “run-
ning to and fro” by the pilot and officers of the Niobe, and
- Move that boat !” was the cry; but the shouting was
directed at no one in particular. There was nobody to
move her. The lone fisherman was engrossed with the finny
inhabitants of the Savannah, presumably at that moment
had a bite; in any event, he was preoccupied, or in reverie,
CURIOUS CASES
425
Collision-Boat in Wrong Berth
and listened with a callous and indifferent ear to the outcry
of the pilot and the Scandinavian objurgations hurled at
him by the master and crew of the Niobe. The barbor-
master came running up, but it was all too late. The Niobe
dropped her anchor, but, notwithstanding, swung in with
full momentum against the little sloop, which disappeared
under the water; and that was the end of the Pleasant Day.
The owner of the latter brings his libel to recover dam-
ages for her destruction. Undoubtedly, the crews of both
the Pleasant Day and of the Niobe were guilty of negli-
gence. It was in broad day; the Niobe had passed up the
river in full view of the berth where the Pleasant Day was
moored. It was the duty of the Niobe to see that the berth
was clear.
There in full view lay the sloop, apparently
with no one on board. She was very perceptible. She was
thirty feet in length; eight tons. The Niobe's people had no
right to presume that she could be, or would be, instantly
removed ; they knew the consequence of a collision, and yet
they cast off the hawser from the leading tug with the
full knowledge and intention that the Niobe would swing in
the berth. Then to shout and scream to 6 move the boat"
was not enough (nor to drop the anchor) to relieve them
from the consequences of their recklessness. If the Pleasant
Day crew had not been also at fault, I would give a much
larger sum as damages, but they were also negligent. They
left the sloop without any one in charge, which is contrary to
the harbor regulations. The undertaking of the fisherman
to watch her was a mere nudum pactum, and carried with it
426
CURIOUS CASES
Collision--Boat in Wrong Berth
no legal obligation. She was not lying where boats of her
class properly belonged; but this does not give any right
to a vessel entitled to that berth to crush into her, and
sink her, when that result could be easily avoided. The
Canima, 17 Fed. Rep. 271; The Southern Belle, 18
How. 584.
What is the value of the Pleasant Day is a question
difficult of determination. Her disjecta membra were res-
cued from beneath the wave, but the Niobe had left her
with a shattered constitution. Opinions as to her value vary
pretty much anywhere from five hundred to fifty dollars,
and one witness thought she would be dear at any price.
The truth is, the Pleasant Day was not a very valuable
craft. She had been moored for quite a while in the Bilbo
canal, an artery which performs the same functions for the
city of Savannah that the Cloaca Maxima did for ancient
Rome, and was as a consequence not so pleasant as her
name imported. All the sails and rigging were saved. On
the whole I award $150 to Wilson, the owner of the Pleas-
ant Day, and decree that he pay half the costs.
CURIOUS CASES
427
Whether Shepherd Dog Is “ Stock"
THE MISSOURI PACIFIC RAILWAY COMPANY
.
THE TEXAS AND PACIFIC RAILWAY COMPANY. *
United States Circuit Court, E. D. Louisiana, 1888.
Whether Shepherd Dog Is “Stock."
To the Honorable the Judges of the United States Circuit
Court for the Fifth Circuit and Eastern District of
Louisiana :
The undersigned, Master in the above entitled cause, to
whom the order of this Honorable Court entered December
28th, 1885, refers claims of the herein recited character
made against the Receiver of defendant Company, respect-
fully reports :
That pursuant to due notice communicated by mail to
parties in interest, he visited Fort Worth, Texas, on the
seventeenth day of April, 1888, where and when, attended
by Messrs. L. D. Mayes and Henry Finch, respectively of
counsel for intervenor and for the Receiver of defendant
Company, he proceeded to take the testimony of said inter-
venor and two other witnesses in respect of a judgment, a
transcript whereof, submitted to the Master at New
Orleans, Louisiana, recited no cause of action, and a hear-
ing upon which was appointed on said date.
*Master's report, which was kindly furnished by the Hon. Don A.
PARDEE, Judge of the U. S. District Court, Fifth Circuit.
428
CURIOUS CASES
Whether Shepherd Dog Is “ Stock"
That it appears that on Sunday, the eleventh day of Sep-
tember, 1887, and near Fort Worth, Texas, a passenger
train of and west bound upon the track of defendant Com-
pany, whose unenclosed right of way adjoins intervenor's
premises, killed a fine female shepherd dog, the property
of intervenor and trained to drive his cows home and guard
his orchard, or at need, his house, and valued in said serv-
ice of driving cattle as that of four men and in price at
one hundred dollars, for which sum and unshown costs a
judgment in compensatory damages was recovered on the
fifth day of November, 1887, in the Justice Court of Pre-
cinct No. One, Tarrant County, Texas; that the animal
was first seen running “ for dear life” in apparent fright
upon the track, whence nothing but weeds upon each side
opposed her escape, and about thirty feet in front of the
advancing engine which, gaining upon her, ran over her
body two hundred yards west of a public crossing, and
three hundred yards from intervenor's house ; and that
defendant's servant in control of the engine looked forward
from its cab window before and backward after the
encounter.
The premises considered, the Master is constrained to
recommend a disallowance of said judgment, and is unable
to discover warrant for its rendition, which appears as far
out of legal as was the dog out of domestic bounds.
Where a railway line is not fenced, the law presumes
negligence on the part of the company if stock are injured
by the passage of a train (64 Tex. 151); the statute compel-
CURIOUS CASES
429
Whether Shepherd Dog Is “Stock'
ling such a fence having for its object the prevention of
damage to live stock and to passengers (64 Tex. 346), and
leaving defendant to no liability as to dogs greater than he
is subject to at common law for ordinary care, default
wherein is not shown.
However valuable the animal in question, it can hardly
fall under the designation of stock unless, in the service of
driving cows, it may be considered under the proverb to
have received such a character from the stock with which it
had run as associates.
The proverb, however, has not been clearly admitted to
the Statute Book of Texas, which, indeed, prescribes no
fence to turn a dog and measures damages in the value,
without interest thereon, of the animal killed or injured as
stock (54 Tex. 233). For intervenor's purposes the dog
seems as a single picket with a proper gait to have sufficed
the need of a fence.
It is common to the canine nature to follow a track and,
while so engaged, to press ahead with dogged determina-
tion.
The evidence discloses that this trait prevailed in the ani-
mal, when several hundred yards from her customary post
of duty, without intervening fence; she had deserted the
Garrison premises and was exposing herself to new and
fatal ties with no shown motive ahead and a locomotive
behind. The testimony, in respect both of her obvious
fright and of her position in front of the engine, may, how-
ever, warrant a presumption of sudden aberration during
430
CURIOUS CASES
Whether Shepherd Dog Is “Stock”
:
which she misconceived her duty and her right of way and
still imagined herself a cow catcher.
An exemplary dog prone, under a grave persuasion of
being an active vice-principal of intervenor, to cow cows and
steer steers homeward at nightfall, protect with her bark
each tree in intervenor's orchard, keep house during the ab-
sence of its inmates, scrutinize the premises with the sobriety
of a precinct justice and exhibit as sound a judgment, with
interest; she was evidently regarded, in said lower tribunal,
as neither to be charged with deliberate truancy nor to have
forfeited for intervenor a claim to consideration when on a
Sabbath, foregoing her secular pursuit of cows and preda-
tory rats and being in no apparent contemplation of a ren-
dezvous and illicit purpose and running for no “6 dear life”
save her own, she emulated the example of her human
betters and went forth with a sedate countenance at one
end, without wag at the other, with the worth of one hun-
dred dollars between the two ends and with a human
being's utility dormant in each of her decorous legs.
The decision of the Tarrant county magistrate would
seem to interpret the slaughter of the dog either as a reck-
less impairment of a cattle-guard under the statute or as a
proximate result of a negligent accumulation, upon the
right of way, of weeds that forbade her in running from
taking the usual oblique line of progress by which a dog
could escape an engine in rapid approach upon a straight
roadway. The decision may import, moreover, a persua-
sion not uncommon among many people, whose mature
CURIOUS CASES
431
Whether Shepherd Dog Is “Stock"
> >
product such wise magistrates are, that, wherever a carrier
lays a chartered track, that carrier rails against the
commonwealth it spans and should be jealously held, irre-
spective of conditions disclosed in proof, to a sober respon-
sibility which the real value of the property injured but
inadequately measures in damages, and should multiply
switches that may be vigorously applied to engines in order
to compel their diversion to sidings and their passage
around and beyond animals in tranquil occupation of a
main track, especially on the Sabbath, when even a dog,
though as useful in service as four men, is relieved of the
obligation either to look and listen or to abandon an
unfenced track to the extent of a foot on either side, and
partakes, as on no other day of the week, of the construct-
ive character of stock the killing whereof denotes negli-
gence without further burden upon intervenor than a heavy
sense of his loss.
And it appearing that the admitted fact of the engineer
looking ahead, with reasonable confidence in a clear track,
denotes a due discharge of duty to his employers and pas-
sengers, and that the animal was, before its death, no more
live stock than even now, intervenor's action is, as was the
injury to the dog, without recovery, despite the 6 bull”
issuing from the pen of said Justice of Tarrant Co.
April 28th, 1888.
Respectfully submitted,
J. R. G. PITKIN,
Master.
432
CURIOUS CASES
In the Matter of Rest
IN THE MATTER OF REST. *
Supreme Court of Georgia, 1879.
[64 Ga. 452.]
1. Rest for hand and brow and breast,
For fingers, heart and brain !
Rest and peace ! a long release
From labor and from pain :
Pain of doubt, fatigue, despair,
Pain of darkness everywhere,
And seeking light in vain !
年
​2. Peace and rest! Are they the best
For mortals here below?
Is soft repose from work and woes
A bliss for men to know?
Bliss of time is bliss of toil :
No bliss but this, from sun and soil,
Does God permit to grow.
-Bleckley, Justice.
*JUSTICE BLECKLEY having resigned, at the conclusion of his last
opinion read from the bench the above exquisite little poem, which
was ordered spread upon the minutes by the court. It constitutes a
fit close to the judicial career of one whose opinions in these reports
show him not only to have been the profound lawyer, but also the
accomplished scholar.-Official Reporter's Note.
}
INDEX.
ABANDONMENT-
Of unborn child, 27.
ACCOMPLICE-
Who is an, 337.
AEROLITE-
Ownership of, 41.
AMENDMENTS-
All about, 31.
ANANIAS AND SAPPHIRA-
Fraudulent preferences by, 89.
ANIMALS
Cats, 271.
Dogs, 71, 252, 266, 297, 310, 337, 427.
Hog, larceny of, 24.
Horses, change of color of, after being mortgaged, 279.
Mules, disorderly conduct of, 320.
Mules, growth of, as increase of wife's separate estate, 333.
ARGUMENT OF COUNSEL-
Shedding tears during, 307.
ASSAULT AND BATTERY-
License to commit, 294.
ASSIGNMENTS FOR BENEFIT OF CREDITORS-
Preferences as in case of Ananias and Sapphira, 89.
ATTORNEY AND CLIENT-
Ignorance of attorney as ground for new trial, 94.
Liability of great lawyers to be unsuccessful, 380.
BAILMENTS-
Liability of bailee for loss of cat, 271.
BARBERS-
Exempt property of, 327.
Liability of, for lost hat, 39.
BARLEYCORN CASE, 1.
·-
• CC-28
434
INDEX
BASEBALL-
Indictment for playing on Sunday, 110.
BASTARDY-
Paternity of aegress's child, 157.
"BATTERY"-
Defined, 294.
BAWDY HOUSES, 73.
BIBLE
Injunction to children to obey parents, 76.
Test as to fraudulent preferences, 89.
Test as to who is a prostitute, 92.
BROKER
Option on Mary Washington's grave, 352.
BURGLARY-
Of dog house, 297.
1
CATS-
Liability of bailee for loss of, 271.
CHICKENS-
Cruelty to trespassing, 281.
CHILDREN-
Abandonment of unborn child, 27.
Paternity of, 157.
Right to custody of child, 58.
Torts committed by, in obeying parents, 76.
CHINAMAN-
Oath of, 2.
CHURCH-
Propriety of taking jury to, 289.
CLERGYMAN-
Corroboration of, 372.
COLLISION-
Mutual fault, 423.
COMMUNITY PROPERTY-
Increase of, by growth of mules, 333.
INDEX
435
--
CONTRACTS,
Breach of, by opera singer, 213.
Consideration for, 1.
CONVERSION-
Of grass growing on highway, 343.
CRUELTY TO ANIMALS-
Trespassing chickens, 281.
DAMAGES-
For killing dog, 310.
DEDICATION-
Of Mary Washington's grave, 352.
DE MINIMIS NON CURAT LEX, 343.
DISORDERLY CONDUCT-
Of mule, 320.
DISORDERLY HOUSES, 73.
DISTURBING RELIGIOUS WORSHIP-
Application of hot drops to dog, 337.
Singing out of time, 275.
DIVORCE-
For physical incapacity of wife, 264.
DOG HOUSE-
Burglary of, 297.
DOGS-
Application of hot drops to, 337.
Duel between, 252.
Excuse for trespass by, 71.
Injury to, while "setting” on railroad track, 310.
In prose and poetry, 266.
Larceny of, 297.
Whether shepherd dog is “stock,” 427.
DOUBTING THOMAS
Sermon on, before jury, 289.
“ DRINK”-
Defined, 348.
DUEL-
Between dogs, 252.
436
INDEX
ELECTRICITY-
Destruction of insured house by, 238.
EMBLEMENTS
Grass growing on highway, 343.
ESCAPE FROM JAIL-
When wrongfully imprisoned, 50.
ESTOPPEL-
Of party injured by rescuer,
To tell truth, 372.
291.
EVIDENCE-
Good reputation acquired in jail, 341.
Judicial notice as to human height, 257.
Of larceny of hog, 24.
Of pedigree of dog, 310.
Of prostitution, 92.
Of vagrancy, 17.
Of wife's physical incapacity, 264.
Requiring prisoner to put foot in mud, 304.
EVILS OF TREATING, 68.
EXEMPTIONS-
Barbers' tools, 327.
EXHIBITIONS
Liability of exhibitor for loss of cat, 271.
" FAITHISTS'
Deceit in procuring membership, 142.
FINDING LOST PROPERTY-
Aerolite, 41.
" FIRE"-
Defined, 238.
FIXTURES-
Aerolite, 41.
FOOTPRINT-
Evidence of, 304.
FRAUD--
In procuring membership in religious community, 142.
INDEX
437
GAMING-
Evidence of keeping gambling house, 29.
GIANTS-
A11 about, 257.
GRAVE-
Sale of Mary Washington's, 352.
HABEAS CORPUS-
To obtain child, 58.
To obtain liberty of slave, 291.
HIGHWAY
Conversion of grass growing on, 343.
HOMICIDE-
Committed by quack, 79.
On high seas for self-protection, 382.
HORSE-
Change of color of, after being mortgaged, 279.
HORSE RACING-
Law of, 416.
HUSBAND AND WIFE-
Growth of wife's mule fed by husband, 333.
IDENTITY
Evidence as to footprint, 304.
INDICTMENT-
For doing nothing with force and arms, 17.
For sporting” on Sunday, 110.
INFANTS-
Torts committed by, in obedience to parents, 76.
INSTRUCTIONS-
By justices of the peace, 22.
INSURANCE-
Destruction of house by lightning, 238.
INTOXICATING LIQUOR-
Judicial temperance lecture, 68.
Nature, origin, and history of, 217.
Sale without license, 19.
438
INDEX
IRRELEVANCY AND REDUNDANCY,
In pleading, 249.
JUDICIAL NOTICE-
As to human height, 257.
JUSTICES OF THE PEACE-
Ignorance of, 22.
LARCENY-
Of dog, 297.
Of hog, 24.
7
七
​LAWYERS-
See ARGUMENT OF COUNSEL ; ATTORNEY AND CLIENT.
LIBEL-
By officer of official superior, 101.
LICENSE
To commit assault and battery, 294.
MANSLAUGHTER-
See HOMICIDE.
MARY WASHINGTON'S GRAVE-
Dedication and sale of, 352.
MASTERS IN CHANCERY-
Italian opera before, 213.
MEDICAL JURISPRUDENCE-
Capacity of woman to bear child, 264.
Height of human body, 257.
Homicide committed by quack, 79.
White man or negro as father of child, 157.
MORTGAGES-
Sticking qualities of, 279.
MULE-
Disorderly conduct of, 320.
Growth of, as community property, 333.
MURDER-
See HOMICIDE.
INDEX
439
NE EXEAT, 213.
NEGLIGENCE-
Law of horse racing, 416.
NEW TRIAL-
Because of ignorance of attorney, 94.
For taking jury to church, 289.
For treating jurors to cigars, 348.
OATH-
Of Chinaman,
OPERA SINGER-
Breach of contract by, 213.
OPTION-
On Mary Washington's grave, 352.
OWNERSHIP-
Of aerolite, 41.
PARENT AND CHILD-
Abandonment of unborn child, 27.
Torts committed by children in obeying parents, 76.
PEDIGREE-
Of dog, 310.
PHYSICIANS AND SURGEONS-
Homicide committed by quack, 79.
PLEADING-
Political allegations in, 249.
POEM-
By Justice Bleckley, 432.
POETICAL REPORT-
By Ironquill,” 50.
66
POISONING-
By quack, 79.
POLITICS AND PLEADING, 249.
POUNDKEEPER-
Duties of, as regards mule, 320.
PRINCIPAL AND ACCOMPLICE, 337.
440
INDEX
PROSTITUTE-
Sufficiency of evidence, 92.
REHEARING-
Rebuke of counsel for scolding court in application for, 380.
RELIGIOUS COMMUNISM, 142.
REPUTATION-
Acquired in jail, 341.
Of clergyman for veracity, 372.
RESCUER-
Estoppel of party injured by, 291.
REST-
Poem on, by Justice Bleckley, 432.
SEALS-
Origin and history of, 4.
SLAVE
Habeas corpus to obtain liberty, 291.
SPECIFIC PERFORMANCE-
Of contract to sing in opera, 213.
SPORTING"-
Defined, 110.
STARE DECISIS, 31.
1
"STOCK"--
Defined, 427.
STREET RAILROAD COMPANY--
Liability of, for killing dog, 310.
"STRONG LIQUORS
Defined, 217.
SUNDAY-
Indictinent for playing baseball on, 110.
SWEARING CHINESE WITNESS, 2.
TEARS-
As part of argument of counsel, 307.
INDEX
!
441
TEMPERANCE LECTURE-
By judge, 68.
TOBACCO-
Drinking of, 348.
TOOLS OF TRADE-
Barber's chair, etc., 327.
TRESPASS-
By chickens, 281.
By children, 76.
By dog, 71.
Conversion of grass growing on highway, 343.
TRUSTS
Resulting, 372.
VAGRANCY, 17.
WITNESS
Corroboration of clergyman, 372.
Mode of swearing Chinaman, 2.
WORDS AND PHRASES-
" Battery,” 294.
" Drink,” 348.
"Fire,” 238.
Sporting,” 110.
" Stock,” 427.
“Strong liquors," 217.
WRIT OF ERROR-
Necessity for seal, 4.
UNIV. OF MICH.
DEC 13 1907
UNIVERSITY OF MICHIGAN
3 9015 06862 1385
$
i