The Project Gutenberg eBook of The New Jersey Law Journal, Volume XLV, No. 3, March 1922

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Title: The New Jersey Law Journal, Volume XLV, No. 3, March 1922

Author: Various

Editor: A. Van Doren Honeyman

Release date: September 15, 2019 [eBook #60300]

Most recently updated: October 17, 2024

Language: English

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*** START OF THE PROJECT GUTENBERG EBOOK THE NEW JERSEY LAW JOURNAL, VOLUME XLV, NO. 3, MARCH 1922 ***

THE

NEW JERSEY LAW JOURNAL

PUBLISHED MONTHLY

VOLUME XLV FEBRUARY, 1922 No. 2

EDITORIAL NOTES.

HAPPILY IT IS not such a frequent occurrence as may be supposed that the Judges of our Court of Errors and Appeals split apart so curiously as they did in determining that the Van Ness Enforcement Act should be declared unconstitutional. The result only shows that, like the doctors, Judges cannot all think alike. On the subject of whether whiskey is useful as a medicine or not our New Jersey doctors, on a canvass, split, 520 to 308, or 490 to 319, according as one interprets the replies. In the Nation at large it ran 51 per cent. to 49 per cent., a closer margin. But only half of those who were interrogated by the “Journal of the American Medical Association” responded; what the rest thought we do not know. So on the legal questions involved in the Van Ness Act, counting those Judges who approved the Act as constitutional in the Supreme Court, the difference between a yea and nay vote appears to have been only one. On the subject of whether the Act could be sustained because it took away from defendants the right of trial by jury, which was the great burden in objections made by defendants themselves, the Court held what this Journal has held, that the Legislature had the power to direct that trials might be by magistrates without a jury. It had done so over and over again in other matters and could do so in liquor legislation as well. On other points there were various differences of opinion. However, since the Act as a whole is declared unconstitutional, on the ground that it does not conform to the Federal Act, which declares that the illegal possession, sale, etc., of liquors constitute a crime, instead of disorderliness, the Legislature has passed new statutes which alter the basis of a conviction from a disorderly proceeding to a criminal proceeding. There is no hope in this for bootleggers, except as it permits them to escape by jury disagreements or “not guilty” verdicts. If no law were enacted the Federal Courts would be filled with cases, and the results there would give no hope to criminals. Generally speaking, the upsetting of the Van Ness Act is unfortunate, because jury trials are expensive as well as uncertain; trials before Judges as magistrates are more certain and far less expensive. In the end, however, bootleggers will not win in the game.

On the question of the legality of “picketing” by strikes the Court of Errors and Appeals of this State also held quite divergent views, but sustained the Keuffel & Esser injunction granted by Vice-Chancellor Buchanan against the International Association of Machinists. The majority decision of the Court was rendered on Jan. 26th, in an opinion by Mr. Justice Swayze. His finding was sustained by 9 affirmative and 5 negative votes. Besides Justice Swayze, the members of the Court voting to affirm were Justices Parker, Bergen, Kalisch and Katzenbach, and Judges White, Williams, Gardner and Ackerson. Voting to reverse were Chief Justice Gummere, Justices Trenchard, Minturn and Black and Judge Van Buskirk. “The object of the appeal avowedly is,” said Justice Swayze, “to secure a decision as to the legality of picketing when unaccompanied with violence, molestation of others, annoying language or conduct—in short, what is sometimes called peaceful picketing. Parading in the neighborhood of complainants with placards indicating that a strike is in progress is similar in its legal character to picketing.” He then pointed out that the Court is bound in a measure by the recent decision of the Supreme Court of the United States in the case of the American Steel Foundries v. The Tri-City Central Trades Council, in which Chief Justice Taft wrote an opinion upon the rights of strikers, both at common law and as governed by the Clayton act. Taking the Federal decision as a foundation, Justice Swayze said it held the employer had the right to the access of his employés to his place of business and of egress therefrom, without intimidation or obstruction; and the employés, recent or expectant, had the right to use peaceable and lawful means to induce present employés and would-be employés to join their ranks. He remarked that the legality of any particular conduct depends on the facts of the particular case and that picketing may or may not be lawful, as it has or has not an immediate tendency to intimidate the other party to the controversy. Remarking that picketing is illegal if it has an immediate tendency to obstruct free passage such as the streets afford, consistent with the rights of others to enjoy the same privilege, Justice Swayze continued:

“Thus men may accost one another with a view of influencing action, but may not resort to persistence, importunity, following and dogging. The number of pickets may of itself make the picketing unlawful, since it may amount to intimidation. Everyone knows that threats of bodily harm may be made by a mere show of force, without violence of language or breach of the peace, and that mere numbers may intimidate. The real question is, ‘Does the conduct under existing facts amount to intimidation?’ Twenty-five or fifty pickets may, when a single picket probably would not. If information alone were wanted in the pending case, all the information necessary for the defendants to enable them to prosecute their efforts to convert the complainants employés would have been obtained by a few men. The use of twenty-five or fifty or two hundred, as in fact used, was clearly unnecessary, and could not have been intended for any lawful purpose. In view of the testimony as to what actually went on, the Vice-Chancellor properly held that the conduct of the defendants was an illegal interference with the complainants’ property rights.”

The opinion noted above is, in the whole, a lengthy one. Judge White concurred in it in a separate opinion. Justice Minturn filed a strong dissenting view, taking the ground that the Court’s conclusion served to mark another step in the cycle of judicial legislation, which, beginning with an appropriate effort to curb agitation of a forcible character, has concluded with an edict which will be construed to put an end to peaceable and constitutional economic agitation. “Nothing further,” he said, “would seem to be necessary to complete the chaplet of judicial legislation, unless it be the invocation of the provisions of the statute of laborers (Edward III.), under the provisions of which the laborer was effectually conscripted to the service of the master, and to that end was hounded as a helot, and labeled with the brand of Cain. In every other walk of life the peaceful activities condemned by these adjudications are quiescently tolerated, if not approving recognized.”

The cash bonus asked—not asked but demanded in formal resolutions—by various of the associations of the American Legion throughout the country, and which has given the present Congress and the President more concern than almost any domestic subject, has not struck a responsive chord in the popular ear except from the soldiers—a minority of them, as we believe—who want it. Every business man knows it is not the time to pension well soldiers of the late war further than the States are doing it. We have always doubted that the best officers and soldiers of the country were behind the movement. It is to belittle their patriotism to believe that they desire to foist billions of taxes, direct or indirect, upon their country at the present moment.

When Senator Edge told an assembly at Atlantic City recently that the Senate of the United States, of which he is a member, failed alarmingly in performing its proper duties in a speedy and efficient manner, he only stated what public opinion has long held. The mere fact, to which he did not allude however, that a few men can talk any good project before that body to death, the Senate rules permitting unlimited debate, has served again and again to prove the truth of his statements. The House of Representatives, with its too-many members, is far more reflective of public sentiment than the Senate, and actually does its work more expeditiously when a majority of members desire quick action. A reform in the Senate is of such importance that too much public attention to its improper methods of carrying on public business cannot be given. The press of the country should be a unit in demanding a change in methods and results. The New York “Times” thinks the trouble is largely due to the fact that there is a dearth of strong men in the Senate; that there is no great inducement for a strong man to go to the Senate as a new member, because he is practically “frozen out” of any good committee assignment for a long period of time. It says of a new member:

“What will happen to him when he takes his seat in the Senate? He will get only insignificant committee appointments. He will be expected to be silent for at least six months. If he undertakes, as a new Senator, to impress upon the Senate any positive convictions of his own, he will be ‘hazed’ like a college freshman in the effort to teach him his place. If there is in the Senate a ‘career open to talent,’ it is open only after long waiting. In short, the Senate that now professes an anxiety for the accession of strong men itself puts formidable obstacles in the way of a strong man. Its rules, as Senator Wadsworth has just been lamenting, make it almost impossible to transact business. Its time is mostly taken up by querulous and ineffective members. Its committees are manned by the rule of seniority, which too often spells senility. Indeed, about the only way in which the Senate as it is at present can be said to be a nursery of political strength is in accordance with the maxim, Suffer and be strong. A Senator who can survive for a few years the suffering, mental and moral, which he has to undergo in the Senate, may emerge into power and influence. But upon the strong man just arrived the Senate always puts a damper.”

Lots of truth in this. Nevertheless, present Senate rules combined with too much politics and too little statesmanship and business activity are responsible for a deterioration of the public esteem for our highest governing body.

Dean Stone of the Columbia University Law School of New York City in a report to the President of that Institution made recently sounds a proper warning as to the quality and numbers of young men crowding into the Bars of many of the States. Among other things he said:

“It may well be doubted whether there is any profession which makes greater demands than the law on the capacity of its members for sustained intellectual efforts, their powers of discrimination and their ability to master detail. Yet, as I have often had occasion to point out in these reports, increasing numbers of men of mediocre ability and inadequate preliminary education are being attracted to the law by the ever-increasing facilities for law study. What, under the conditions of law study and admission to the Bar of a generation ago, was a task of magnitude testing the patience, stability, character and intellectual power of the prospective lawyer to the utmost may now be performed with relative ease. This is partly attributable to the multiplication of opportunities for law and study nicely adapted to the peculiar type of Bar examination prevailing in most of our States, and partly because Law Schools and Bar examinations too often place the interests of the individual law student and sometimes their own interests ahead of the interests of the profession. It is the duty of Law Schools to dissuade the man of ordinary ability and meagre education from beginning law study, and, if he will not be dissuaded, to apply to him standards of proficiency and attainment worthy of the profession to whose membership he aspires.”

The Washington Conference is over and the results are more than gratifying. Only the blindest obtuseness on the part of the United States Senate has prevented early ratification of the various treaties made by it. The great point gained by this Conference is that it brought Great Britain, France, Japan, China and five other powers face to face in friendliest attitude, and this is what should happen again when occasion calls for it. Every country represented is happy over the result, and to say that America should be is a truism. It marked another great event in world history.

Some day perhaps, every moving-picture theatre will have this description of the art it employs on its front curtain, for is it not the lucid description recently published in a magazine devoted to the “sublime art” of motion-picture writing? And it will be good for school boys and girls to interpret: “The photodramatist enters the great cosmic drama in keeping with the Infinite Plan; he will be, in the expanse of days to come, a master of new values in art, science, philosophy, religion. From the fastnesses of the invisible world of Thought, fulgurous forces of the very essence of Beauty are sweeping into his consciousness, attracted by the human desire for more complete expression.”

SOME REMINISCENCES, MOSTLY LEGAL.

BY HON. FREDERIC ADAMS, LOS ANGELES, CALIFORNIA.

V. SOME NEW JERSEY COURTS AND LAWYERS

In the early autumn of 1862, nearly sixty years ago, I became a law student in the office of Amzi Dodd, in Newark. Mr. Dodd was then at the best of his mental and physical strength. In his office I came to know, admire and revere him, and there was begun a cordial friendship between us which continued unbroken until he passed away in extreme old age. I think that there was not in New Jersey a sounder legal head than his, nor a better balanced and more sagacious legal judgment. Nor was this all. He was profoundly ethical, not obtrusively but sensitively. There was a voice within to which he always listened, and he rested firmly on the fundamental morals which are part of the religion of every good man and underlie the Law itself. Nor was this all, for to the innermost recesses of his nature he was devoutly, rationally and serenely Christian.

Mr. Dodd was a Princeton graduate and a contemporary of three remarkable Rutgers men, Cortlandt Parker, Frederick T. Frelinghuysen and Joseph P. Bradley, any one of whom would have conferred distinction on any Bar in the country. Mr. Dodd, though a good and persuasive speaker, had not the oratorical charm of Mr. Frelinghuysen, nor the forensic power of Mr. Parker. He and Mr. Bradley had a good deal in common. Both were scholarly, excellent mathematicians, and had the judicial stamp.

In my first year with Mr. Dodd I had an interesting experience. His cousin, Chief Justice Edward W. Whelpley, came to Newark to hold the Essex Circuit, pursuant, I suppose, to some arrangement with Judge Daniel Haines. He was in the office almost every day, and I lost no opportunity to attend Court and hear him try cases. He was an impressive figure, a big man with a heavy voice and a commanding manner. I have sometimes wondered since whether he was really as powerful a Judge as he then seemed to me to be, or whether perhaps his dominating personality threw a kind of spell over me. I remember that his charge would often efface the impressions made by the arguments of counsel. He seemed to be in exuberant health and spirits, and to have before him the prospect of many years of usefulness and distinction. He died on February 22, 1864, and was succeeded by Mercer Beasley, who held office for thirty-three years, and wrote his name high on the scroll of New Jersey worthies. I wonder how many of the Essex Bar now remember seeing Chief Justice Whelpley at the Essex Circuit. He held the Union Circuit also, and, I have heard, used to get his dinner in New York on the ground that there was nothing fit to eat in Union county. He was probably unfortunate in his choice of a restaurant, or perhaps his requirements were unusual, for he is said to have spoken unfavorably of our national bird, the turkey, because a turkey is “too much for one and not enough for two.”

Judge Haines left the Bench at the expiration of his term on November 15, 1866, and was succeeded by David A. Depue, who held office as Judge and Chief Justice and was a strong pillar of society, until November 16, 1901.

A Persian proverb says that a Stone fit for the wall is never left in the road, and so, as it was according to the evident fitness of things that Mr. Dodd should become a Judge, that event came to pass when Chancellor Zabriskie, in 1871, appointed him the first Vice-Chancellor. In 1875 he resigned his office, and in 1881 was reappointed by Chancellor Runyon. He became also a specially appointed Judge of the Court of Errors and Appeals, thus strengthening its equity side. In a Court many of whose most important issues are in equity, and one of whose members is the Chancellor, who is precluded from sitting in equity cases, it is always well that some of the Judges should have, or have had, the valuable experience of sitting alone in equity, and dealing at first hand with the rules of equity practice and procedure. This has been the case with Justice Bergen and Mr. Dodd. No other instances occur to me.

The highwater mark of Vice Chancellor Dodd’s judicial duty was reached in the memorable case of Pennsylvania R. R. Co. v. National Railway Co., 23 Equity 441, decided at the February term, 1873. This was before the General Railroad Law, and there was a strong movement, backed by much public opinion, and attended by some public excitement and high feeling, to break the monopoly of the Pennsylvania Railroad Company by uniting interests and connecting existing roads, so as to secure an independent through line between New York and Philadelphia. The purpose was meritorious, for the State needed another through line. The case which Vice-Chancellor Dodd decided was in form an application to enjoin the National Railway Company from proceeding with the construction of its road in New Jersey with intent to use it as part of a through line from New York to Philadelphia. The argument which, with the reading of proofs, took two weeks, was upon a rule to show cause why an injunction should not issue pursuant to the prayer of the bill. Attorney-General Stockton, Mr. Theodore Cuyler and others were counsel for the complainant, and Mr. Cortlandt Parker and others represented the defendants. I went to Trenton to hear the opinion. The reading of it took about an hour. The gist of the opinion, which was for the complainant, was this,—not that several links might not form a chain, but that the defendants’ so-called links formed no chain because the legislative acts which created them indicated no intent that they should connect. The opinion shows Vice-Chancellor Dodd’s strong judicial qualities; admirable language and style, clear statement, controversial force, persuasive reasoning and exposition, all, in their combination, leading up to a high level of jurisprudence. I know of nothing in the New Jersey books more skillful or nobly ethical than portions of this opinion. Vice-Chancellor Dodd would not have esteemed it praise to be told that the case was a test of his nerve, for, though his feelings were easily wounded, he was far above being moved by clamor, either before or after a decision. I will not dwell on Vice-Chancellor Dodd’s other opinions. They are numerous and may be consulted in the volumes in which they are printed, beginning with 22nd Equity.

A strong magnet was drawing Vice-Chancellor Dodd away from the law to a pursuit attractive to one of his mathematical bent: I mean the intellectual side of the science and art of life insurance, and it finally captured him. Perhaps some readers of the New Jersey Law Journal have been favored, as I have been, by polite letters from one or more insurance companies, offering options between two or three propositions about equally unintelligible, and have, perhaps improvidently, solved the problem by selecting the one which seemed to promise most immediate cash. To such persons, if any there be, I respectfully commend the perusal of a valued and interesting book of about four hundred pages which lies before me, entitled “Reports to the Board of Directors of the Mutual Benefit Life Insurance Company, made by Amzi Dodd as Mathematician or President, from October, 1877, to January 21, 1901.” I can say like Hamlet, “I am ill at these numbers,” if I may be pardoned for perverting the meaning of the Prince of Denmark, but I have sufficient comprehension to see that the same man wrote the opinions and the reports, and that they are characterized by the same high mental and moral qualities.

Mr. Dodd was fond of Governor William Pennington and liked to talk about him. They became acquainted when they met in a cow case at Orange. An old woman’s cow was run down and killed by a Morris & Essex train and young Dodd sued the railroad. It had not then been judicially determined in New Jersey whether a cow or the locomotive had the superior right of way. The case was tried before a Justice of the Peace with a jury. Dodd was very much on his good behavior and treated the Governor with extreme courtesy. He had the crowd with him and triumphantly won the verdict. The next day Governor Pennington called on him, or sent for him, complimented him on his management of the case, and spoke of his own friendship with Amzi Dodd, an uncle of young Amzi, who was a capable Newark lawyer, a careless, unsystematic man of whom I heard Mr. Cortlandt Parker tell that he carried his papers in his hat, and was said sometimes to lose both hat and papers together.

One day, Amzi Dodd, the uncle, came into Governor Pennington’s office and said: “Good morning, Governor. Confound these young fellows! They get all my books away from me. Now there is ‘Elmer’s Forms.’ I own a copy of it, and it has my name in it, but it is gone. It is a very useful book. I need it every day. Governor, have you a copy that you can let me have?”

Governor Pennington, who was a courtly gentleman of the old school and something of a wag, answered very gravely:

“Mr. Dodd, I agree with you about ‘Elmer’s Forms.’ It is an excellent office book. I consult it every day and should be sorry to be without it, but you know, Mr. Dodd, that I am always ready to oblige you, and I will cheerfully let you have it if you will promise in writing to return it when I need it.” “Certainly,” said Mr. Dodd, and dashed off a serio-comic agreement to return the book when called for. He folded the document and handed it to the Governor, and the Governor handed him his own missing book.

I told this to my old Yale friend, William Pennington of Paterson, a nephew of the Governor, who chuckled and said, “I can see him doing it.”

Governor Pennington used often to associate young Dodd with him in the trial of causes. He had been Governor under the old Constitution and ex-officio Chancellor, but was not scholarly and relied very much on his knowledge of the world, tact, and strong common sense. Mr. Dodd once told me that while the Governor knew very little law, he was a most dangerous antagonist before a jury. If he had the close he was almost sure to get the jury with him, and if you had the close he would sit in front of the jury and smile your speech away.

Mr. Dodd is my authority for this story: Ex-Governor Daniel Haines, the Justice of the Supreme Court who held the Essex Circuit, was a man of strict views, and Mr. Cortlandt Parker, the Prosecutor of the Pleas, was discharging his important duties with a force and efficiency worthy of national issues and a wider stage, and so, what with the austerity of the Judge and the zeal of the Prosecutor, the way of the transgressor was growing hard, and it was getting to be common talk among the rounders and hangers-on at the courthouse that if a man was indicted he might as well plead guilty at once and save the county the expense of a trial. Some malefactor, with more money or spirit than the others, paid Governor Pennington a good fee and instructed him to fight. The Governor had been informed of the current gossip, and thought he would see what he could make out of it. So he told the jury in his most impressive manner, that a man is taken to be innocent until he is proved to be guilty; that this is the palladium of our liberties; and that he feared that this precious, fundamental right was not sufficiently borne in mind, even in the courthouse of the county of Essex, and that it was too much assumed that conviction ought to follow indictment. At this point Judge Haines, with a flushed face and his eyes shining brightly through his gold-rimmed spectacles, interrupted the Governor, and said that he had heard the remarks of the distinguished counsel with much surprise and regret; that they conveyed an imputation upon the Court itself—an intimation that he was derelict in his duty toward an important class of suitors, the defendants in criminal cases, and that he desired to know and now asked counsel to state from what persons he heard these strictures upon the Court. Governor Pennington, with his usual urbanity, bowed and said: “It is mainly from the criminals themselves.” This answer occasioned such a sudden revulsion of thought and feeling as to discompose the Judge and convulse the Bar.

It is now just seventy years since Mr. Dodd went to Trenton to hear and see Daniel Webster and Rufus Choate in the case of Charles Goodyear against Horace H. Day, pending in the Circuit Court of the United States before Judge Grier of the Supreme Court, and a District Judge. There is probably now no living member of the Bench or Bar of New Jersey who attended that trial even as a spectator. As to this case I quote briefly from Mr. Choate’s “Commemorative Discourse” on Webster, delivered at Dartmouth College on July 27, 1852:

“The professional life of Mr. Webster began in the spring of 1805. It may not be said to have ended until he died; but I do not know that it happened to him to appear in Court, for the trial of a cause, after his argument of the Goodyear patent for improvements in the preparation of India-rubber, in Trenton, in March, 1852. There I saw him and last heard him. The thirty-four years which had elapsed since, a member of this College, at home for health, I first saw and heard him in the Supreme Court of Massachusetts, in the county of Essex, defending Jackman, accused of the robbery of Goodrich, had in almost all things changed him. The raven hair, the vigorous, full frame and firm tread, the eminent but severe beauty of the countenance, not yet sealed with the middle age of man, the exuberant demonstration of all sorts of power, which so marked him at first—for these, as once they were, I explored in vain. Yet how far higher was the interest that attended him now: his sixty-nine years robed, as it were, with honor and with love, with associations of great service done to the State, and of great fame gathered and safe; and then the perfect mastery of the cause in its legal and scientific principles, and in all its facts; the admirable clearness and order in which his propositions were advanced successively; the power, the occasional high ethical tone, the appropriate eloquence, by which they were made probable and persuasive to the judicial reason—these announced the leader of the American bar, with every faculty and every accomplishment, by which he had won that proud title, wholly unimpaired; the eye not dim nor the natural force abated.”

Mr. Webster represented Goodyear, Mr. Choate represented Day. The injunction which Goodyear applied for was granted. Day surrendered his license, transferred his factory and machinery to a representative of Goodyear, and agreed to retire from the business for the sum of $350,000, and counsel fees amounting to $21,000 additional, which amounts were paid. Mr. Webster’s retainer was $15,000.

Mr. Dodd liked to talk about this case. Mr. Webster and Mr. Choate each spoke for two days, or parts of two days. Chancellor Green is said to have called Mr. Choate’s argument the finest that he ever heard in Court. Lawyers came from all over the State to attend the trial. Mr. Dodd said that at times Mr. Choate would seem “to go up like a balloon.” One who has heard or even read Choate knows how at times he would seem to lift himself and his audience on the rushing wings of his magical oratory.

One of the junior counsel for Day had made some impression by dwelling on the hardships of operatives if the injunction should be granted. The day was getting late and Judge Grier suggested to Mr. Webster, who was to speak next, that the Court adjourn until the next day. Mr. Webster assented, but said: “There is one thing that I wish to say now. If Mr. Day’s operatives are likely to be distressed, it will be because of his own default, of his own breach of faith, of his own repudiation of his own solemn contract, under his own hand and seal,” and, as he said it, his voice deepened and his eyes flashed, and the courtroom rang as with a peal of mellow thunder. Mr. Dodd came out of Court with ex-Chancellor Halsted who said: “Well, Amzi, the old lion has given his first growl.”

The case is reported in 10 Federal Cases, page 638, Case No. 5569.

In a footnote is this extract from Mr. Webster’s argument. It is interesting, for it shows him at his very best and is not generally known. His biographer, Mr. G. T. Curtis, speaks of this argument as one of the most remarkable and interesting of his forensic efforts.

“I believe,” said Mr. Webster, “that the man who sits at this table, Charles Goodyear, is to go down to posterity in the history of the Arts in this country, in that great class of inventors at the head of which stands Robert Fulton, in which class stand the names of Whitney and of Morse, and in which class will stand ‘non post long intervallo’ the humble name of Charles Goodyear. Notwithstanding all the difficulties he encountered he went on. If there was reproach he bore it. If poverty, he suffered under it; but he went on, and these people followed him from step to step, from 1834 to 1839, or until a later period when his invention was completed, and then they opened their eyes with astonishment. They then saw that what they had been treating with ridicule was sublime; that what they had made the subject of reproach was the exercise of great inventive genius; that what they had laughed at was the perseverance of a man of talent with great perceptive faculties, which had brought out a wonder as much to their astonishment as if another sun had arisen in the hemisphere above. He says of his cell in the debtors’ jail that ‘it is as good a lodging as he may expect this side the grave’; he hopes his friends will come and see him on the subject of India rubber manufacture; and then he speaks of his family and of his wife. He had but two objects, his family and his discovery. In all his distress and in all his trials his wife was willing to participate in his sufferings, and endure everything, and hope everything; she was willing to be poor; she was willing to go to prison, if it was necessary, when he went to prison; she was willing to share with him everything; and that was his solace. May it please your honors, there is nothing upon the earth that can compare with the faithful attachment of a wife; no creature who, for the object of her love, is so indomitable, so persevering, so ready to suffer and to die. Under the most depressing circumstances woman’s weakness becomes mighty power; her timidity becomes fearless courage; all her shrinking and sinking passes away, and her spirit acquires the firmness of marble—adamantine firmness, when circumstances drive her to put forth all her energies under the inspiration of her affections. Mr. Goodyear survived all this, and I am sure he would go through the same suffering ten times again for the same consolation. He carried on his experiments perseveringly, and with success, and obtained a patent in 1844 for his great invention.”

There is a spirited report of the same case in 2 Wallace Jr., where, at pages 294 and 295, are some turns of thought and expression very characteristic of Mr. Webster.

A few months later, on October 24, 1852, Daniel Webster died at Marshfield.

Years after the Trenton trial Mr. Dodd was in Boston, and was inclined to call on Mr. Choate, at his office, but at the very door his diffidence made him withdraw. He should have gone on. An opportunity was lost. It was said of Mr. Choate that he treated every man with the courtesy due to a woman, and every woman as though she were a queen. He bore interruptions cheerfully, almost gladly. Mr. Choate would have been found working at a standing desk covered with his hieroglyphic notes, undecipherable except by himself; he would have cordially owned his visitor’s fraternal claim to his attention; and he would have kindled to the depths of his nature at the memory of his last encounter with his mighty friend.

That the sale of whisky is prohibited by law is held in Ellis v. Com. 186 Ky. 494, 217 S. W. 368, not to deprive it of its character as goods, wares, and merchandise, and a thing of value, within the meaning of a statute providing for punishment of one breaking into a storehouse and taking therefrom goods, wares, and merchandise or other thing of value.

IN RE B. & B. MOTOR SALES CORPORATION.

(U. S. Dist. Court, Dist. of New Jersey, Jan. 18, 1922).

Bankruptcy—Sale of Auto Truck—Conditional Agreement and Its Transfer—Right to Possession of Property—Uniform Conditional Sales Act

In the matter of B. & B. Motor Sales Corporation, bankrupt. On exceptions to Master’s report denying The First People’s Trust petition for certain property held by the Receiver.

Mr. Harry Green for Exceptants, The First People’s Trust.

Mr. Barney Larkey for the Receiver.

RELLSTAB, District Judge: The First People’s Trust excepts to the Master’s findings that it is not entitled to Apex truck No. 5365, found in the possession of the B. & B. Motor Sales Corporation (hereinafter called the bankrupt,) at the time the receiver took charge of the bankrupt’s estate.

The facts are: The bankrupt carried on the business of buying and selling auto trucks. On July 12, 1920, it agreed in writing with Robert Jones to sell him the truck in question for $1,955, payable in monthly installments. In this writing (called a “conditional sale agreement”), signed by both parties, it was declared, inter alia, that the bankrupt had that day delivered the truck to the buyer; that the title to the truck was not to pass to the buyer, but was to “remain vested in and be the property of the seller or assigns until the purchase price has been fully paid;” that if Jones failed to pay any of the installments when due the bankrupt might without demand, notice, or process, take possession of the truck, whereupon Jones’ right therein should terminate absolutely, and all payments made thereon be restrained by the bankrupt as liquidated damages and rent. At the same time, Jones executed two notes to the bankrupt, one for the sum of $1,427.15 (in the conditional sale agreement recited to be the balance to be paid on the truck), payable in twelve monthly installments, wherein it was declared that “upon default in the payment of any installment when due, the whole amount remaining unpaid shall immediately become due;” the other note represented the remainder (or some part of it) of the purchase price.

Both the conditional sale agreement and the $1,427.15 note subsequently were transferred by the bankrupt to the First People’s Trust. The transfer of the agreement is dated July 12, 1920, and recites that it is simultaneous with the purchase of the note; in terms it sells, assigns and transfers the bankrupt’s right, title and interest in the automobile in question and also in the conditional sale agreement, and asserts that the automobile was sold and not consigned to the buyer. The transfer of the note bears no date, is in the form of an endorsement, guarantees payment of the note, principal and interest, waives demand and protest, and is signed by the bankrupt by its President and Secretary, and by the same persons individually.

Jones had possession of the truck for several months, and, after making some of the stipulated payments, defaulted in further payments on both notes. The bankrupt repossessed itself of the truck, and was in possession thereof at the time the receiver took charge. Neither the conditional sale agreement nor the assignment was recorded. No rights or interests of any purchaser or creditor of Jones, the buyer, are involved in these proceedings, the controversy being exclusively between the assignee of the conditional sale agreement and the creditors of the bankrupt (seller).

The Master held that the assignment of the conditional sale agreement “was to act as a mortgage for the payment of the notes;” and that, as neither the conditional sale agreement nor the assignment had “been recorded in accordance with the laws of the State of New Jersey and ... the B. & B. Motor Sales Corporation had repossessed the truck and had it in its possession at the time of the appointment of the receiver,” the receiver, and not the First People’s Trust, was entitled to it.

First, as to the conditional sale agreement. The New Jersey Uniform Conditional Sales Act, approved April 15, 1919, effective from July 4, 1919 (N. J. P. L., p. 461), in section 1, defines a seller as “the person who sells or leases the goods covered by the conditional sale, or any legal successor in interest of such person.” In section 4 it declares that: “Every provision in a conditional sale reserving property in the seller after possession of the goods is delivered to the buyer, shall be valid as to all persons, except as hereinafter otherwise provided.”

The exceptions here referred to are contained in section 5, which declares that:

“Every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided, unless such contract or copy is so filed within ten days after the making of the conditional sale.”

From this recital it will be seen that as no purchaser from or creditor of Jones is questioning the validity of such reservation, as between the bankrupt and Jones, the reservation to the bankrupt of title and property in the truck, was valid, notwithstanding the failure to record the agreement.

Second, as to the assignment of the conditional sale agreement: The New Jersey Chattel Mortgage Act (Revision of 1892; 1 Comp. Stat. N. J., p. 463) in section 4, declares:

“Every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, having annexed thereto an affidavit or affirmation made and subscribed by the holder of said mortgage, his agent, or attorney, stating the consideration of said mortgage and as nearly as possible the amount due and to grow due thereon, be recorded as directed in the succeeding section of this Act.”

To constitute a mortgage the right of redemption must exist, and where such right is established the form of the conveyance is not controlling. Wilmerding, Heguet & Co. v. Mitchell, 42 N. J. L. (12 Vr.) 476; Hastings v. Fithian (E. & A.), 71 N. J. L. (42 Vr.) 311. An assignment of a chose in action, even if it be a security for the payment of a debt, is not a chattel mortgage within the meaning of the New Jersey Chattel Mortgage Act. Bleakley v. Nelson, 56 N. J. E. (11 Dick. Ch.) 674. This Act applies only “when the goods mortgaged are capable of such open and visible possession that their holding by a mortgagor, who had given a secret mortgage, might tempt someone to deal with him as the absolute owner.” Cumberland National Bank v. Baker, 57 N. J. E. (12 Dick. Ch.) 231, 242.

The assignment now under consideration was not given as a security. It was an absolute transfer of the seller’s property and interest in the conditional sale agreement and the automobile mentioned therein, without right of redemption. By this assignment The People’s Trust became the “legal successor in interest” referred to in section one of the Uniform Conditional Sales Act, supra; and the reservation of property contained in the conditional sale agreement was transferred to it by the assignment. The assigned agreement recited that the automobile had been delivered to the buyer, and the assignment expressly recited that it had been sold to Jones (the buyer); and the assignor at the time of the assignment was not in a position to retain the automobile, or to deliver it to the assignee. What the assignor could deliver to The People’s Trust was the conditional sale agreement, and that was done. Had the transfer been to secure a debt, the delivery of the conditional sale agreement would savor more of a pledge than a chattel mortgage, but, as the assignment was absolute and not conditional, it was neither.

Such a transaction is not contemplated by the Chattel Mortgage Act, which covers transactions where the title, but not possession, is transferred; but by the Uniform Conditional Sales Act, supra, which operates upon transactions where the possession, but not the title, is transferred. The right of The People’s Trust to the automobile is fixed by the assigned conditional sale agreement, and is superior to the rights of the bankrupt or its creditors—here represented by the receiver.

As opposed to this view, and in support of the Master’s finding, the case of David Straus Co. v. Commercial Delivery Co. (N. J. Ct. Ch.), 113 Atl. 604, affirmed by the Court of Errors and Appeals, 112 Atl. 417, is cited by the receiver. That case, made up of facts which existed before the Uniform Conditional Sales Act went into effect, presents many features similar to the instant case. However, the differences, and not the similarities, are controlling. The pertinent facts were: Coincident with the agreement (called a lease) relating to the delivery and use of the automobile truck, the lessee (driver) entered into a service contract with the lessor (Commercial Delivery Company). In that contract the driver agreed to work the truck under the direction of the lessor for two years, and in no other way than as directed by it, and to deliver to the lessor the entire gross monthly earnings. The contract also provided that out of these moneys the latter was to retain a certain percentage for its services, pay the wages of the drivers, storage charges, repairs, etc., and credit the balance to the driver; and that the truck should at all times be stored in a garage furnished by the lessor. The lessor assigned to the Morris Plan Company all its right, title and interest in the lease and the property therein described, and agreed, “in the event of any resale, release, or repossession of said property,” to pay to the assignee any deficiency between the net proceeds of such resale and the amount necessary to pay the unpaid installments. At the time of this assignment the assignee took a note made jointly by the assignor and the driver for the sum advanced by the assignee as consideration for the assignment. Subsequently an equity receiver in insolvency proceedings was appointed for the lessor, and the receiver found it in possession of the truck. The Morris Plan Company petitioned that the truck be delivered to it as the legal owner thereof. The Vice-Chancellor held that the assignor was a debtor of the assignee; that the assignment was not an absolute sale of the truck, but collateral security for the payment of the debt; that while the lease apparently gave the right of possession to the driver (lessee), the actual possession, by reason of the service contract, was always in the lessor; that the assignment of the lease was in legal effect a chattel mortgage; and that not having been recorded it was void as against the receiver and creditors of the assignor. As already stated this finding was affirmed by the Court of Errors and Appeals.

In the cited case, as noted, it was held that the possession, as well as the title, of the truck was in the lessor at the time of the assignment of the lease or sale agreement; and that the assignment was not an absolute sale of the agreement, but a security for the payment of the advances made by the assignee for which payment the assignor was jointly liable with the driver. In the instant case, the actual, as well as the right of possession of the truck, was not in the bankrupt, but in a third person—the buyer—and the assignment was an absolute transfer of the bankrupt’s property in the conditional sale agreement, without right of redemption. These differences are essential, and distinguish the cases.

The fact that the truck was taken from the buyer by the bankrupt subsequent to the latter’s assignment of the conditional sale agreement, gave it not property or right in the truck as against its assignee, The First People’s Trust. Whatever rights such possession gave it as against the buyer, they were subordinate to the assignee’s right of possession on the buyer’s default in the terms of the conditional sale agreement then held by the assignee. Such default having taken place, the assignee is entitled to the possession of the truck.

The Master’s findings are disapproved, and an order will be made giving The First People’s Trust the possession of the truck in question.

OSBORNE & MARSELLIS CO. v. ESSEX CO.

(Essex Co. Circuit Court, Feb. 3, 1922).

Compensation for Road Labor Performed Under County Contract—Ultra Vires Resolution

Case of The Osborne & Marsellis Company against County of Essex.

Messrs. Edwin B. and Philip Goodell for Plaintiff.

Mr. Arthur T. Vanderbilt for Defendant.

DUNGAN, J.: This is a suit brought by Osborne & Marsellis Company against the County of Essex to recover compensation for labor performed and materials furnished in the improvement of a part of Franklin avenue, a county road in the county of Essex, prior to the allowance of a writ of certiorari to review the legality of the contract under which the work was done, which contract was set aside by the Supreme Court, and the decision of that Court was affirmed by the Court of Errors and Appeals. Chamber of Commerce v. County of Essex, 114 Atl. 426.

The case is submitted upon a statement of the case and stipulation of facts for judgment, without pleadings; the parties agreeing that the issues be submitted to this Court for decision, without trial by jury, and that “No appeal will be taken from the judgment entered on his findings.”

From the agreed statement of fact it appears that there was no irregularity on the part of Osborne & Marsellis in the bid, in the awarding of the contract, or in the execution of the contract, which was approved as to form by the county counsel, and a bond was furnished which was also approved, both in accordance with the resolution of the Board awarding the contract. It also appears that, after the adoption of the resolution awarding the contract, the plaintiff commenced the work and performed work and furnished materials, the value of which, at the unit prices fixed by the contract, amounted to $18,562.80, all of which labor and materials were performed and furnished prior to the allowance of the writ and prior to notice that application would be made for the writ, “except such work as was necessary to leave the unfinished road in condition as required by law.”

The grounds upon which the contract was set aside appear fully in the case of Chamber of Commerce v. County of Essex, 114 Atl. 426.

Two defenses to the plaintiff’s claim are urged: First, that the contract was not signed by the director of the Board of Freeholders; and, second, that the resolution constituted an ultra vires act of the Board of Freeholders and that there can be no recovery upon quantum meruit where the act is ultra vires.

1. The resolution of the Board of Freeholders relating to the awarding of the contract, which included other contracts, is as follows: “Resolved that the contracts ... be and the same are hereby awarded;” and that “the director and clerk be and they are hereby authorized and directed to execute contracts with said companies pursuant to this resolution,” the only conditions being that a proper bond be furnished and that the contract and bond be approved by the county counsel, and both contract and bond were so approved. The contract, therefore, was awarded by the resolution itself, and the formal document, approved by the county counsel, was actually signed by the clerk and the seal of the county affixed thereto by him, and the failure of the director to sign was a failure to perform a purely ministerial act, the performance of which could have been required by proper legal proceedings. Therefore, I hold that the plaintiff is not prevented from recovering on account of the failure of the director to sign the contract.

2. The subject of the contract is one which was entirely within the powers of the Board, and hence it cannot be said that the action of the Board in awarding the contract to the plaintiff was ultra vires in that respect. After the adoption of the resolution awarding the contract, and after the approval of the plaintiff’s bond and the form of the contract by the county counsel, and the affixing thereto of the signature of the clerk and the seal of the county, the plaintiff commenced the work contemplated by the contract. Grade stakes were furnished by the County Engineer’s department, and the work which was performed was under the supervision and direction of an inspector furnished by that department, and the portion of the road upon which the work was done was completed and left ready for use and is now actually in use by the public.

This situation, it seems to me, brings this case within the decision of the Supreme Court in Wentink v. Freeholders of Passaic, 37 Vroom, p. 65, in which it appeared that a contract to do the mason work of a bridge was let to Wentink, which contract the Court subsequently declared void because the firm to whom a contract for the same work had been originally awarded, but which had failed to furnish a bond, had no notice that their bid had been rejected. Wentink expended $600 in attempting to secure materials and in the execution of the contract. The Court held, that even though the county had derived no benefit from such expenditure, Wentink might recover the amount expended. The Court said: “There was no lack of power to make the contract with the plaintiff. The fatal defect was in an irregular exercise of such power. It would be too much to hold every contractor for a public body to a scrutiny at his peril of the corporate proceedings. All that he need look to is the power to make the ostensible contract.”

On the question of damages the Court said: “In the case in hand the performance of the contract was not prevented by the fault of the defendant, but by vis major. The making of the contract was, however, induced by such fault, and on its annulment the defendant should answer, as on a quantum meruit for the work done thereunder,” and that, “As to the measure of the quantum meruit for the work done the contract rate should govern.”

It is admitted that at the contract rate the work which was performed by the plaintiff would have amounted to $18,562.80. Since this case is submitted for judgment without pleadings, and since the statement of the case and the stipulation of facts make no provision for interest, the judgment of the Court will be in favor of the plaintiff and against the defendant for that sum.

IN RE ELIZABETH AVENUE ASSESSMENT.

(Union Co. Common Pleas, Jan., 1922).

Assessment for Repairing Street—Method Employed—Method Suggested

In re appeal from assessment for repairing Elizabeth Avenue from Front street to Seventh street, Elizabeth.

Mr. Alfred S. Brown, Appellant, in person.

Mr. Joseph T. Hague, for City of Elizabeth.

PIERCE, J.: This is an appeal from an assessment for repaving with granite blocks that portion of Elizabeth avenue, Elizabeth, extending from a point about 150 feet east of Front street to Seventh street. The error complained of is inequality as compared with other assessments.

Appellant is the owner of a triangular lot of land lying between Elizabeth and First avenues, at their intersection at Liberty Square; the lot is bounded northerly 350 feet on Elizabeth avenue, easterly 31 feet on Liberty Square, southerly about 350 feet on First avenue, and westerly 133 feet on abutting property; the lot is vacant except for an old house at the southwest corner fronting on First avenue.

The general method of assessment adopted by the Commissioners was as follows: From the whole cost of the improvement, $220,330.56, was deducted $23,127.29, paid by the Public Service Company for repaving its trolley tracks, leaving $197,203.27, of which one-half was assumed by the City and the other half assessed upon abutting property, being at the rate of $8.82 per linear front foot. The Commissioners adopted this linear front-foot rate as the bases of the assessment, and imposed it upon all lots one hundred feet deep; short lots were given concessions assumed by the City, viz., 12-1/2 per cent. off where the lot was 50 feet deep, 18-3/4 per cent. off where the lot was 25 feet deep, and in that proportion. The Commissioners determined that as to all the lots the assessment was less than the value of the lot, and less than the benefit conferred, but gave no consideration as to the relative value of the lots as between themselves.

In assessing appellant’s triangular lot the following method was adopted: The lot was divided lengthwise by an imaginary line into two equal parts, one fronting on First avenue and the other on Elizabeth avenue. The part on First avenue was not assessed. The part on Elizabeth avenue was assessed at the regular rate of $8.82 for its 350 feet frontage, a total $3,087.00, less three concessions: a concession of 12-1/2 per cent. ($110.25) was allowed on the westerly 100 feet averaging fifty odd feet deep; a concession of 20 per cent. ($441.00) was allowed on the remaining 250 feet averaging thirty odd feet deep; and a concession of 25 per cent. ($68.35) was allowed for the 31 feet fronting on Liberty Square. Total concessions, $619.61, leaving $2,467.40 as the assessment levied. In addition to the concessions the Commissioners made no assessment against the lot for its frontage on Liberty Square.

The result reached by the Commissioners was to assess a lot 350 feet in front on Elizabeth avenue, 15-1/2 feet deep at one end and 66-1/2 at the other, nearly four-fifths as much as though the entire frontage had been full lots 100 feet deep. This is unreasonable and I think more than appellant’s entire lot should be assessed.

I think the Commissioners erred in two respects in their method of assessment:

1. It was improper to divide appellant’s lot lengthwise for the purpose of assessment. The lot was already too shallow for the greater part of its frontage for ordinary building purposes, and to divide it further was to leave two narrow strips, one fronting on Elizabeth avenue and the other on First avenue, neither of any sale value, or practical value for any purpose.

It was held by the Court of Errors and Appeals in Aldridge v. Essex Road Board (51 N. J. L. 166) that assessors may not divide a lot for the purpose of assessment so that, should a sale result to collect the tax, the property would not bring as much as if sold as part of the original parcel. The rule was followed in Coward v. North Plainfield (63 N. J. L. 61), where, as in the case at bar, an imaginary line was drawn midway between two avenues.

2. I think the Commissioners erred also in disregarding the relative benefit received by lots along the line of the improvement resulting from location and value of the property. The assessment was strictly a front-foot assessment with concessions for short lots, but disregarding the element of location and relative value.

The 4th Ward assessment roll received in evidence shows substantial variations in the value of properties on Elizabeth avenue, and inspection of the line of improvement about a mile in length shows greater traffic and better building and values toward Seventh street than opposite and below appellant’s lot. The intersection of Elizabeth avenue and High street, a few feet West of Seventh street, is a business center for that part of the City, and values and traffic are materially greater in that vicinity than below Third street. It is manifest that business houses dependent upon traffic for their business are more benefited by a paving improvement than vacant lots at a distance where there is less traffic.

It is well settled in New York that the relative value of lots and the buildings upon them must be considered in determining the benefits accruing from a paving improvement (Donavan v. Oswego, 39 Misc. 291, and cases therein cited); and in State v. Rahway (39 N. J. L. 646; affirmed by the Court of Errors and Appeals in 11 Vr. 615) a greater assessment upon lots nearer a business center was approved in a grading, curbing and guttering improvement.

The statute provides that “all assessments ... levied for any local improvement shall in each case be as near as may be in proportion to the peculiar benefit, advantage or increase in value which the respective lots and parcels of land and real estate shall be deemed to receive by reason of the improvement.”

Under the circumstances existing in the case at bar, there being, as I find, a difference in benefit along the line of the improvement resulting from location and value, these elements should have been considered by the Commission and such weight given them as in the judgment of the Commissioners they should receive.

In reassessing appellant’s lot I suggest a different ratio of concessions for short lots. The concessions adopted by the Commissioners are one-half the concessions allowed by the Newark, or Hoffman rule, in valuing short lots in regular assessments. As evidenced by the result reached in the assessment appealed from, the concessions are inadequate, and I see no reason why the full concessions established by the Newark rule should not be adopted.

It is not easy to formulate a rule that will do justice in all cases in assessing irregular shaped lots, but I think a fair result would be reached in the case at bar by deducting from the frontage assessment of $3,087.00 a concession of 25% ($771.00) for the frontage and probable future paving assessment on First avenue; a further concession at the rates given by the Newark Rule for that portion of the lot under 100 feet in depth (20%—$441.00), less the added value under the same rule for that portion over 100 feet in length (7%—$61.74) net $379.26; total net $1,936.74; less such further concession for less than average benefit received by appellant’s lot as in the judgment of the Commissioners should be allowed by reason of inferior location, value and improvements.

As appellant’s lot is not assessed for paving Liberty Square, no concession should be made for frontage on Liberty Square.

For the reasons given, the assessment appealed from should be set aside as to appellant’s lot.

Inexcusable delay in presenting a check for payment is held to discharge an indorser from liability thereon if the check is not paid, whether he is in fact injured or not, in the West Virginia case of Nuzum v. Sheppard, 104 S. E. 587, annotated in 11 A.L.R. 1024.

STATE v. GRUICH.

(Essex Quarter Sessions, Dec. 27, 1921).

Criminal Abortion—New Trial—Postponing Sentence Days

Case of The State against Anne Gruich. On application for new trial.

Mr. Frank Bradner for Petitioner.

Mr. John A. Bernhard, Assistant Prosecutor of the Pleas, for State of New Jersey.

STICKEL, Jr., J.: Anna Gruich was tried before this Court, Judge Harry V. Osborne presiding, and, on February 21, 1919, convicted of abortion. The minutes of the Court at the foot of the entry of the verdict of the jury contain the words, “Sentence postponed.”

On the 23rd day of May, 1919, the said defendant was convicted by a jury on a second charge of abortion and, on June 5, 1919, sentence of both convictions was imposed by Judge Osborne, the sentences running concurrently.

The conviction on the second charge of abortion having been reversed by the Court of Errors and Appeals at a recent term of that Court and a new trial ordered, application is now made to this Court to grant a new trial on the charge of abortion of which the defendant was convicted on February 21st, 1919.

[Here two broad grounds are urged as warranting such action, the first ground involving a question of fact; that part of the opinion is not published. The second ground is that the Court, having postponed sentence thereafter to in a new term of the Court and without having noted in the minutes continuances of the day of sentence, imposed sentence upon the defendant, the contention being the Court then had no jurisdiction to impose any sentence. The opinion continues.—EDITOR].

And I am equally clear that there is no merit in her contention that the Court had no jurisdiction to sentence in the April Term upon a conviction had in the December Term.

The theory of the defendant seems to be that, because the minutes do not show that the time for sentence was fixed and then postponed from time to time until the sentence was actually imposed, therefore, no sentence day was, in fact, fixed, no continuance had, and, when the December Term expired, the power of the Court to fix a sentence day or impose a sentence ended.

The sentence file of this Court will show that the assumption of counsel is unwarranted, and that a day for sentence was fixed and regular adjournments of that sentence had from time to time until the day upon which sentence was imposed. But, even though we assume that no sentence day was fixed and no continuance in fact taken, the position of counsel in my judgment is unsound.

This case is controlled by the principles laid down in the opinion in Gehrmann v. Osborn, 79 N. J. Eq. 430; 82 Atl. Rep. 424, and by the decision in that case, and even though, as counsel for the defendant suggests, I may not be bound by the decision in that case, the reasoning, the logic and learning thereof is such that I am wholly content to be governed thereby in determining this case, and convinced that the decision in that case represents the law of this State.

There, as in this case, sentence was postponed, and, although more than two years elapsed before the defendant was actually sentenced, and, although the original postponement was the practical equivalent of an indefinite postponement of sentence, the Court upheld a sentence to State Prison. Here the sentence was imposed but a few months after conviction, and the postponement was not the equivalent of an indefinite postponement. And, like in the present case, there were no continuances of the sentence recorded in the minutes.

“The conclusion which I have, therefore, reached,” says Vice-Chancellor Garrison, “in the Gehrmann case, is that in the State of New Jersey, if a defendant has pleaded nolle contendere, or guilty, or has been convicted upon trial, the Court has the power, if the defendant does not object thereto, and therefore is assumed to assent thereto, to refrain from pronouncing a judgment or sentence, and may, at a subsequent time, hale the defendant before it, and impose the punishment in the same manner that it would have been justified in pronouncing upon the very day when the case was ripe for sentence.”

It will be observed from the opinion that the duty rests upon the defendant to object to an indefinite postponement of sentence; that his failure so to do creates a presumption that he assented thereto, and that his assent or acquiescence to such postponement disenables him to complain when thereafter the Court imposes sentence, whether within or without the term in which the conviction is had or plea taken.

Here not only is there no proof of an objection, but on page 23 of the testimony it appears that the defendant at least acquiesced in the postponement from time to time of the sentence.

Moreover, just as the research of the learned Vice-Chancellor convinced him that an indefinite suspension of sentence has been the custom in our State beyond the memory of those then connected with the administration or practice of criminal law in this State, so, from my own experience as a practitioner in and Judge of this Court do I know that for years it has been the practice to sentence on a given Monday after conviction; to sentence periodically all persons convicted or who have pleaded; to enter in the minutes “Sentence postponed” in bail cases and prisoners “Remanded for sentence” in jail cases and to advise defendant for counsel, or both, in open Court of the regular sentence day; for the clerk to make up a sentence list for said day; for the Court to use such list in sentencing; for the Court to postpone to another day sentences set down upon such sentence day when it so determined, the clerk noting the postponement and placing the case on the new sentence list of the Judge, and for the clerk to take the various sentence lists and file them as a part of the records of this Court. This practice I find was followed in this case and probably accounts for the repeated attendance of the defendant at the courthouse for sentence. The defendant was convicted on February 21st and the first sentence day of Judge Osborne thereafter was February 24th, 1919. The defendant’s name appears upon this list for sentence and a notation is made that the sentence was postponed to March 10th; the sentence list of March 10th shows a postponement to March 24th; that of March 24th a postponement to April 14th; that of April 14th a postponement to May 5th; that of May 5th a postponement to May 26th; that of May 26th to June 5th, and on June 5th sentence was imposed. If there is any question about this and the case is to be appealed, I would suggest that the Prosecutor submit as part of the record on this rule evidence of the practice of this Court in sentencing, together with the sentence lists of Judge Osborne covering the period in question.

The rule obtained in this case is discharged and the application of the defendant for a new trial denied.

IN RE WILL OF MARION.

(Essex Co. Orphans’ Court, Jan. 12, 1922).

Probate of Will—Signing Will “for Sake of Peace”—Burden of Undue Influence—Facts Considered

In the matter of the probate of a certain paper writing purporting to be the last will and testament of Elizabeth Marion, deceased. On caveat.

Mr. Edwin B. Goodell and Mr. Philip Goodell for Proponent.

Mr. Paul M. Fischer for Caveator.

STICKEL, Jr., J: I was satisfied at the conclusion of the hearings in this matter that the paper writing purporting to be the will of the decedent had been properly executed, and I was also satisfied that she was capable of making a will; in other words, that she had testamentary capacity; but I had some doubt whether the decedent had not consented to the making of the document in question and signed the same for the sake of peace. Being thus in doubt I asked counsel to submit briefs on that point alone, and counsel for the proponent have submitted a brief. Counsel for the caveator has not submitted a brief, and, as I understand it, does not intend to submit one.

The decedent was a woman between fifty and sixty years old. She had several children, two or three sons and two daughters, as I recall it, and one of the daughters, Mrs. Appleton, resided, together with her three children, with the decedent, and had done so for sometime prior to the execution of the document in question. The decedent and her husband had lived apart for some years, and the whereabouts of the husband of Mrs. Appleton were unknown, so that both the decedent and the daughter daily went out to work.

The decedent had never made a will. She was not on unfriendly relations with her children, although there is some suggestion that she disagreed with all of them at different times. So far as the testimony shows, she had not indicated definitely to anyone at any time prior to the making of the document in question what she intended to do with her estate.

She executed the papers purporting to be her will between five and six o’clock, P. M., on the 21st day of December, 1920. She died about one A. M., the succeeding day. She received the last rites at eleven o’clock in the morning of the day she made the will. At three o’clock in the afternoon, two or three hours before she made her will, she inquired of her daughter where certain insurance papers were, and, being told that they were in possession of the daughter and that the insurance had been paid, she seemed relieved and said she did not want any trouble over her affairs. The daughter then asked her whether she had a will and received a reply in the negative. The daughter, Mrs. Appleton, followed this with an inquiry whether the decedent wanted to have things fixed up, and the decedent did not answer her. The daughter, nevertheless, thinking, as she said, that the employer and friend of her mother, Mrs. Hill, had a will, called up Mrs. Hill and, apparently, either told Mrs. Hill that the decedent wanted a lawyer to make a will, or that she had no will and was dying, for, in any event, Mrs. Hill, shortly after the telephone call, came to the decedent’s house with Mr. Edwin B. Goodell, a lawyer of Montclair, to prepare a will for the decedent. The decedent was not asked whether she wanted to make a will prior to this time, and did not in anyway, so far as the testimony shows, request the attendance of Mr. Goodell or anyone else to make a will. When Mr. Goodell acquainted the decedent with the reason for his attendance, she said she did not want to make a will “tonight,” or words to that effect; indicating, as Mr. Goodell put it, that she would prefer not to make a will that night.

At that time there were in the room with the decedent, who was in bed, very sick, a Mrs. Fischer, Mrs. Wickham, who was holding her up or propping her up in bed, Mrs. Appleton, the daughter, Mrs. Hill and Mr. Goodell. In an adjoining room was a son of the decedent with his child or children.

Someone of the persons in the room—the testimony does not agree as to who it was, and it may be that it was more than one—urged and encouraged the decedent to make a will after her remark that she did not want to make one that night. Mr. Goodell says he did not, although he felt that the decedent wanted to make a will, and that if she did not make it that night she would never make it, because he thought she would die before morning. In any event, a short time after she said that she did not want to make a will that night, Mr. Goodell inquired of her what she wanted to do with her property, and someone in the room, he thinks it was Mrs. Wickham—but Mrs. Wickham says it was not, although all seem to agree that it was not Mrs. Appleton—suggested that she wanted to leave her house, the one in which she was then living with her daughter and grandchildren, to the three grandchildren. The decedent assented to this. But Mr. Goodell took the precaution to ask her directly whether she wanted her house to go that way and reminded her it would tie up the sale of the property, because the children were minors. The decedent, in replying to this, said that was what she wanted to do; she wanted it so that it could not be “spent.” Mrs. Hill and Mr. Goodell agree as to this testimony, and Mrs. Wickham, the only other person in the room, who was interrogated on this point, said that she had no recollection one way or the other. Then Mr. Goodell inquired of the decedent what she wanted to do with the residue of her estate, and again someone volunteered that she wanted it to go equally among her children. Whereupon Mr. Goodell, having interrogated the decedent, she replied that she wanted the residue to go in that way.

Mr. Goodell’s recollection is that the decedent nominated the executor, herself, although he said it is possible that someone else in the room suggested it and that the decedent assented thereto.

Thereupon, the will having been read, paragraph by paragraph, the decedent and the witnesses duly executed it.

The burden of proving undue influence, of course, rests upon the person or persons charging undue influence, and, as was said in the case of Schuchhart v. Schuchhart, in the fourth syllabi, 62 Eq. 710, 49 Atl. 485: “When undue influence is claimed to be established by inference from certain facts proved, and, upon all the facts proved, an equally justifiable inference may be drawn that the will executed was what testator would have made under the circumstances, the burden on contestants is not supported.” See also In re Richter’s Will, 89 N. J. Eq. 162.

The inference which the contestants would have the Court draw from the facts is that the decedent intended to die intestate, so that her property would go to her children equally, and that her objection to making a will that night indicated her desire to die intestate, for she knew that her end was near and believed that if the making of the will were put off until the next day she would be dead and dead intestate.

This is an inference which may be drawn from the facts, but an equally justifiable inference is that the decedent had the all-too-common disinclination to draw a will; that she sought to shirk the responsibility of deciding what disposition to make of her property, to avoid making and executing a will; that when brought face to face with her responsibility she yielded to the advice and suggestions of her friends, and, although originally preferring not to make the will, determined to discharge her responsibility and make the will. In no other way can the statement of the decedent that she wanted to tie up the house, so the children could not spend it, be reconciled. That remark indicated that the decedent had aroused herself to the task of making her will, had overcome her disinclination, determined to perform the duty of making a will and had considered the question of the disposition of her property.

It is true that others made the suggestion as to what the decedent wanted to do with the property, and I am inclined to think that everyone in the room knew from talking with the decedent that she wanted to leave her property as she actually did leave it, although there is no direct testimony on this point, but the remark about preventing the children from spending the property was the product of the decedent’s own mind; she initiated the remark, and thereby revealed her state of mind, both as to the matter of making a will at all and as to how she wanted her property to go. And it is not strange that she wanted the property to go in this way, for she knew it was her grandchildren’s home (and we all know the wonderful love that grandparents have for grandchildren); she knew that they could not depend upon a father for support and upbringing and that their mother was the breadearner. Her own children were grown up, married, most of them, and so far as the record shows not to need of assistance. That the devise of the house to the grandchildren is a natural, normal one, is emphasized by her disposition of the residue of her estate, for, having taken care of her grandchildren, assured them of a home during their minority at least, she proceeded to give to her children everything else that she had; and I am inclined to think she believed that the residue of the estate would be much larger than it actually is; that the return she would get from the estate of Timothy Arnold would be larger than it actually was.

It is undoubtedly true that, except for the presence of the lawyer, which was brought about by Mrs. Hill and Mrs. Appleton, and except for the advice and encouragement to make a will and at once by those in the room to the decedent, she would have died without a will. But, instead of the presence of the lawyer and the said advice and encouragement dominating the deceased and destroying her free agency, it seems only to have served to arouse in her the necessity for making a will, if she would protect her grandchildren, to re-awaken and revive her apparently dormant and pre-existing desire to provide a home for her grandchildren, to do this and to give her the opportunity to carry out such desire or intention, which opportunity she seized and made the best of, for how else can her response to Mr. Goodell, that she wanted to tie up the house so that it could not be “spent,” “That is what I want to do,” be accounted for? Certainly acts which produce such a result cannot be said to be acts of undue influence. Stewart v. Jordon, 50 N. J. Eq. 733-741. And it is well settled that it is not the exercise of undue influence to advise, encourage, or urge the making of a will. In re Barber’s Will, 49 Atl. 826; In the matter of Seagrist, 1 N. Y. App. Div. 615; 37 N. Y. Supp. 496; Aff. 153 N. Y. 682; 43 N. E. 1107.

Mr. Goodell, who drew the will, is a reputable and careful lawyer, and I feel sure that he would not have prepared this will or permitted the decedent to execute it except he felt it represented her real wishes. Nor do I think he would have permitted her to have executed this document if he for one moment conceived that she was making it for the sake of peace or to be rid of her visitors. That fact must also be considered in determining the question in hand.

It seems to me, therefore, that the more probable inference to be drawn from the facts in this case is one which requires the upholding of the document as the will of the decedent and that the contestants have not sustained the burden of proving undue influence.

The paper writing purporting to be the will of Elizabeth Marion is consequently admitted to probate.

WOMEN JURORS.

Does the right of suffrage entitle women to serve as jurors? This question has been answered in the affirmative in Michigan, where it was held, in People v. Barltz, 180 N. W. 423, 12 A.L.R. 520, that a constitutional declaration that every inhabitant of the State, being a citizen, shall be an elector and entitled to vote, makes women electors within the meaning of a statute requiring jurors to be drawn from the electors, and they are therefore entitled to perform jury duty.

This decision seems to stand alone. A contrary conclusion was reached in Re Grilli, 110 Misc. 45, 179 N. Y. Supp. 795, affirmed on opinion below in 192 App. Div. 885, 181 N. Y. Supp. 938, which involved the right of an enfranchised woman to compel the board of assessors and the commissioner of jurors to complete the county jury lists by including therein the qualified women voters of the county. The Court said: “The only claim made by the petitioner in connection with her application is that jury service is incidental to and a part of suffrage, and since, by the recent amendment of the State Constitution, women are qualified to vote, they must be made jurors. The fallacy of this contention is found in an examination of the history of the jury system since the adoption of the first Constitution in the State of New York. While citizenship has always been a qualification of jury service, every voter has not been included within the jury lists. The various laws with reference to jurors show that men who were entitled to vote have been excluded from jury service.”

In Illinois, the fact that women are legal voters for the election of statutory officers, and certain other purposes, is held not to make them eligible for jury service in criminal cases, in People v. Krause, 196 Ill. App. 140, and People v. Goehringer, 196 Ill. App. 475.

In Virginia, according to 6 Va. L. Reg. N. S. 780, Judge Gardner, in instructing jury commissioners, distinguished between the right to vote and the duty to render jury service, by stating that the former is a constitutional right conferred, while the latter is a legislative duty imposed. He concluded that women cannot lawfully serve as jurors under the Virginia statute, which limits that duty to “male citizens over twenty-one years of age,” until the legislature so modifies the statute as to make it applicable to “all male and female citizens twenty-one years old.”

The Court, in the Wyoming case of McKinney v. State, 3 Wyo. 719, 30 Pac. 293, 16 L.R.A. 710, seems to have been of the opinion that a constitutional provision that “the rights of citizens of the state of Wyoming to vote and to hold office shall not be abridged or denied on account of sex,” and that “both male and female citizens of this State shall equally enjoy all civil, political, and religious rights and privileges,” did not require that women voters be allowed to serve as jurors.

The Supreme Judicial Court of Massachusetts, in Re Opinion of Justices, 130 N. E. 685, answered questions submitted by the House of Representatives by holding that, under the Constitution of the United States and the Constitution and laws of Massachusetts, women are not liable to jury duty. The State statute subjects to jury service persons “qualified to vote for representatives to the General Court.” These words, while broad enough to include women, are held not to do so, when interpreted in connection with the history of the times and the entire system of which the statute forms a part. It was determined, however, that the General Court had constitutional power to enact legislation making women liable to jury duty.—Case and Comment

MISCELLANY

NEW CHANCERY RULE.

The Chancery Rules have been supplemented by the addition of a new rule numbered 165a, promulgated January 6, 1922, as follows:

165a. All pleadings, proofs and other papers presented to, and all orders and decrees signed by the Chancellor or a Vice-Chancellor or Advisory Master at the State House in Trenton, shall be forthwith filed with the clerk; and all such which shall be so presented and signed at chambers or elsewhere shall be marked filed by the Chancellor or Vice-Chancellor or Advisory Master (which need only be over the initials of his name and office, and may be done by his official stenographer or sergeant-at-arms at his direction), and all such papers shall be retained by the Chancellor or Vice-Chancellor or Advisory Master and delivered or forwarded by him, or at his direction, to the clerk with all convenient speed.

SUPPLEMENTARY PROCEEDINGS.

Attention has been called to the Bar of Bergen county by Mr. Justice Parker to a laxity of practice in relation to supplementary proceedings in cases of judgment and execution, and, as the matter should interest the Bar of the State generally we give, herewith, what has been spread before the Bergen attorneys:

“1. Originally an attorney or agent could not make the affidavit. Westfall v. Dunning, 50 N. J. L. 459. This was changed by statute. P. L. 1890, p. 185. But it should appear as one of the direct statements in the affidavit that the attorney is the attorney, i. e., “J. S., being duly sworn, says that he is the attorney herein for A. B. the plaintiff,” and not merely, “J. S., attorney for the plaintiff, being duly sworn,” which is a mere appositive and not a definite statement.

“2. Such affidavits frequently say: “that he has read the foregoing petition, and that the statements thereof so far as they relate to his own acts are true, and so far as they relate to the acts of others he believes them to be true.” This, it would seem, is not a compliance with Section 24 of the Executions Act. Such an affidavit in Chancery was considered in Barr v. Voorhees, 55 Eq. 561, and held sufficient for an order for discovery, but not for an injunctive order. But it is to be noted that this was under Section 90 of the Chancery Act of 1875 (Rev. 121; G. S. 1895, p. 389) which reads “that he believes the contents thereof are true,” whereas, Section 24 of the Executions Act requires the creditor or his agent to verify the petition, in which he shall state the amount due on the execution, the return by the officer, and his belief that the creditor has assets, etc. The belief is, therefore, restricted to the debtor’s assets and does not apply to the recovery of the judgment or the issue or return of execution. As to these facts, the late Chief Justice Depue said he doubted the sufficiency (at law) of such an allegation. 10 N. J. L. J. 223-4; Frankel v. Miner, 10 N. J. L. J. 341.

“There is no difficulty about an attorney deposing from personal knowledge that a judgment was entered, and execution issued and returned, as these things are matters of record; and as Chief Justice Beasley said in Westfall v. Dunning, 50 N. J. L. 461 already cited: “It is obvious that such a statement could be safely made by anyone who was possessed of the loosest information,” etc. He was there speaking of verifying the belief of the creditor; under the present act the belief of the attorney may do as well, but the criticism seems applicable to the other allegations also.

“The printed forms in Jeffery and on some of the law blanks are open to criticism in the above respects, and debtors should not be hauled before Commissioners for examination unless the statute is complied with.”

ACCIDENT TO MRS. EMERY.

Mrs. John R. Emery, widow of the late Vice-Chancellor Emery, while traveling with friends in Algiers, met with an automobile accident about Feb. 12th. The automobile turned over on the edge of a mine shaft, and it is stated she sustained a fracture of both arms. She went abroad Oct. 8th.

DEATH OF NEWARK’S MAYOR.

Mayor Alexander Archibald, of Newark, died on Feb. 11th, after an operation for a pressure on the brain nerves. He is said to have been the first Mayor of Newark to die while in office. He was born in Edinburgh, Scotland, December 13, 1869; was three years of age when his parents came to America. He was a silverware manufacturer in Newark. He was elected to the Council of Newark in 1910; became City Clerk in 1914, and in 1917 was elected City Commissioner and became Mayor. He was a Democrat and was talked of as a candidate for Governor. His funeral was large and observed generally throughout the city.

HUMOR OF THE LAW.

A Memphis lawyer entered his condemned client’s cell: “Well,” he said, “good news at last!”

“A reprieve?” exclaimed the prisoner eagerly.

“No, but your uncle has died leaving you $5,000 and you can go to your fate with the satisfying feeling that the noble efforts of your lawyer in your behalf will not go unrewarded.”

GOVERNOR’S APPOINTMENTS.

Adam O. Robbins, of Flemington, Common Pleas Judge of Hunterdon county in place of George K. Large.

Henry E. Newman, of Lakewood, Common Pleas Judge of Ocean county in place of William H. Jeffrey.

Marshall Miller, of Bloomsbury, Prosecutor of the Pleas for Hunterdon county in place of Harry J. Able.

Wilfred H. Jayne, Jr., Prosecutor of the Pleas for Ocean county in place of Richard C. Plumer.

Mahlon Margerum, member of the State Board of Taxes and Assessment.

J. Harry Foley, Secretary to Governor Edwards, State Superintendent of Weights and Measures.

Joseph A. Delaney, of Paterson, Common Pleas Judge in place of William W. Watson.

Joseph F. Autenreith, of Jersey City, in place of President John J. Treacy, resigned, on Public Utilities Commission.

Austin H. Swackhamer, of Woodbury, Judge of Gloucester Common Pleas, in place of Francis B. Davis.

BOOK RECEIVED.

THE NATURE OF THE JUDICIAL PROCESS By Benjamin N. Cardozo, New Haven: Yale University Press, 1821.

This book is especially welcome just now, after reading Judge Cardozo’s article in the December number of the “Harvard Law Review,” entitled “A Ministry of Justice,” which shows that his study of the nature of the judicial process has led him to seek for practical means to correct the errors that have crept into the law in the application of legal principles. This article in the “Harvard Law Review” is in itself the result of his study during his long experience on the Bench of the problem he deals with in these lectures on the nature of the judicial process. The book consists of four lectures delivered in the William L. Storrs’ lecture series in the Law School of Yale University, 1921. The titles of the lectures suggest the scope of his inquiry. They include: The Method of Philosophy; The Methods of History, Tradition and Sociology; the Judge as a Legislator; Adherence to Precedent; The Subconscious Element in the Judicial Process.

“Any Judge,” he says, “one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth.” In telling of the study of precedents in arriving at the rule of law to be applied to the decision of cases, he takes up, first, in the introduction, the method of philosophy and inquiries, in what proportions different sources of information shall be allowed to contribute to the result. If a precedent is applicable, when shall he refuse to follow it, and if no precedent is applicable, how does he reach the rule that will make a precedent for the future? “If,” he says, “I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare; by my own or the common standards of justice or morals?” And again, he says: “The first thing he does is to compare the case before him with the precedents, whether stored in his mind or hidden in the books. I do not mean that the precedents are ultimate sources of the law, supplying the sole equipment for the legal armory, the sole tools, to borrow Maitland’s phrase, ‘in the legal smithy.’ Back of precedents are the basic juridical conceptions which are the postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn.”

In the lecture on the methods of History, Tradition and Sociology, he shows how the method of Philosophy comes in competition with other tendencies which find their outlets in other methods. The tendency of a principle to expand itself to the limit of its logic may be counteracted by the tendency to confine itself within the limits of its history. “Very often,” he says, quoting Justice Holmes, “the effect of history is to make the path of logic clear. History, in illuminating the past, illuminates the present, illuminates the future.”

The law of real property supplies the readiest example of a field where there can be no progress without history, and where “a page of history,” to quote Holmes again, “is worth a volume of logic.”

He refers to leading examples of cases in which history has moulded the rules established by precedents and customs, and how the Law Merchant has not been moulded into a code, but has been expanded and enlarged to meet the wants of trade, and how the course of dealing to be followed is defined by the customs, or, more properly speaking, the usages of a particular trade, or market, or profession, and the natural and spontaneous evolutions of habit fix the limitation of right and wrong.

The law of real estate is taken merely as an example. Maitland, Holmes, Pollock and Pound, and many others, have pointed out the historical origins and development in the forms of action, the law of pleading, the law of contract, and the law of torts. The historic influences are strong in some departments of the law, and in others larger and fundamental conceptions tend to control the judicial mind, and there is a tendency to harmony of the law of different countries.

From History and Philosophy and custom he passes to the power of Social Justice, which he says is the force that in our day is becoming the greatest of the directive forces of the law. It is by the way of history and tradition that he comes to the method of Sociology. It is by the common law method of applying old principles to new conditions that Courts have been able to preserve the continuity of the law in changing conditions.

Among the leading cases cited is the Bakeries case, Lochner v. New York, 198 U. S. 45, wherein Judge Cardozo suggested that in this decision the dissenting opinion of Justice Holmes was the beginning of a new point of view in the dealing with the social welfare, which, he said, has since written itself into law. Justice Holmes made the remark, “The Fourteenth Amendment does not enact Herbert Spencer’s Social Status,” and Judge Cardozo cites later cases in the Supreme Court to the effect that “A constitution is not intended to embody a particular economic theory, whether of paternalism ... or of laissez faire.” It was by careful research of the effect of long hours of work for women that the change of opinion was brought about.

There is a short and very interesting lecture on precedents that are of doubtful value questioning what ought to be done with them. He quotes President Roosevelt’s message to Congress, December 8, 1908, in which he says: “The chief lawmakers in our country may be, and often are, the Judges, because they are the final seal of authority.... The decisions of the Courts on economic and social questions depend upon their economic and social philosophy; and, for the peaceful progress of our people during the Twentieth century, we shall owe most to those Judges who hold a Twentieth century economic and social philosophy and not a long and out-grown philosophy which was itself the product of primitive economic conditions.” This aroused at the time, he says, a storm of criticism and betrayed ignorance of the nature of the judicial process, but the author said he had no quarrel with the doctrine that Judges ought to be in sympathy with the spirit of their times. Yet this does carry us very far upon our road to the truth. The spirit of the age, as it is revealed to each of us, is only too often only the spirit of the group in which the accidents of birth, or education, or fellowship have given us a place. No effort or revolution of mind will overthrow utterly and at all times the empire of these unconscious loyalties.

The relation of the law to the economic and social progress is of great importance at this time, and it is well for us to have the help of this thoughtful and suggestive discussion by an experienced and conscientious Judge.

E. Q. K.

OBITUARIES.

Mr. Thomas W. Randall

Mr. Thomas William Randall, long prominent as a lawyer in Paterson, died at his residence at Upper Preakness, a few miles from that city, on Feb. 9, 1922, after a long illness. Up until a few days of his death he expected to live at least through the coming Summer, but the final end came with little warning.

Mr. Randall was born at Slough, in Buckinghamshire, England, about twenty miles from London, near the historic Windsor Castle and famous Stoke Pogis church, on June 24, 1853, and is a descendant of some of the most substantial and oldest families in that locality. He arrived in the United States, with his parents, on June 8, 1866, sailing from London, and resided first in Franklin township, Bergen county, and later at Hawthorne, in Passaic county, until he entered upon the study of his profession. He first studied law in the office of Judge Hopper, in Paterson, and afterwards with Messrs. Pennington & DeWitt, of Newark, and also attended the Columbia Law School in New York. He was admitted to the New Jersey Bar at the June Term of the Supreme Court in 1877, and, after spending some time abroad, came to Paterson and entered upon the practice of law, in which he was actively engaged ever after until his last illness. He became a counselor at the February Term, 1889.

Mr. Randall took no active part in politics, and never held a political office; he had no liking for mere partisanship. His practice was large in the Orphans’ Court and in Chancery proceedings, as he settled many estates. He was a Special Master of the Court of Chancery and as such many matters of reference were heard by him, and always with promptness and efficiency. He was also a Supreme Court Commissioner. He was counsel for many of the old Passaic families and for various corporations. In the great Paterson fire he lost every thing in his office except what was in his safe. He was an extensive reader of good books and had an excellent memory, a refined taste and the best of habits. He had none of the common vices of the day.

For many years Mr. Randall was a member of the Second Presbyterian Church. He served there on the Board of Trustees and was also a member of the Session. Mr. Randall served the Second Church in a legal capacity without cost to the congregation and was always glad to give legal advice to the poor in need of it. He also served for many years on the Board of Trustees of the New Jersey Presbytery and was known by every clergyman in that Presbyterian body. He was seldom absent at a stated meeting.

Mr. Randall was also the recognized friend of the Young Men’s Christian Association and his services in legal transactions were also at the disposal of the Board of Managers. He was counsel for the Young Women’s Christian Association and served as a member of the Investment Committee, with other prominent men of the city.

When in 1886 the people of the People’s Park District appealed to the late Dr. Charles D. Shaw and the elders of the Second Presbyterian Church for the establishment of a Sunday School in that district of the city, Mr. Randall was one of the most interested members of the Session in the movement to that end. Through the aid extended on behalf of the plan the Sunday School was opened a few weeks after the request was considered, and Mr. Randall became the superintendent. He frequently referred to that service as one of the happy experiences of his life. Later the school movement grew into the establishment of the Madison Avenue Presbyterian Church, now one of the most thriving congregations in the city, under the pastorate of the Rev. Franklin J. Miller. Mr. Randall frequently visited the People’s Park church and school to note the progress of the work he had a prominent part in starting. He was also interested in the St. Augustine Presbyterian Church, and in establishing headquarters for the colored men on Governor street.

Mr. Randall was a Christian citizen and was concerned in the welfare of Paterson. He was a member of the Passaic County Bar Association, a director of the Paterson Building and Loan Association, and was identified with the old Board of Trade. When the centennial celebration of Paterson was held in 1892 he was one of the hundred prominent men of the city selected to plan for that big event.

For several years before his death Mr. Randall was a member of the Church of the Redeemer.

Mr. Randall was specially fond of his native England, and made various journeys to that county. The Editor of this Journal has special cause to know of his interest in travel and fine qualities as a traveler, having been in his company abroad in 1898, 1903, 1907 and 1910, in some of which occasions he extended his trip to France, Switzerland, Italy, Germany and Holland; also to Ireland and Scotland. In 1910 he saw the Passion Play. He was also a frequent visitor to Lake Mohonk. From its beginning he was a patron and valued friend of this Journal, frequently sending to it copies of legal articles from English newspapers and occasionally contributing to its pages. The article we shall publish in our next issue, entitled “A Letter to Portia,” was received from him only a few days before his death, as were some notes concerning the death of his friend, Mr. Robert Hopper, also of the Paterson Bar.

In 1879 Mr. Randall married Miss Jennie S. Perry, a well known and highly esteemed teacher in the Paterson Public Schools, and at one time principal of School Number Two. Mrs. Randall died in 1912. There survives one son, Edmund Brown Randall, who is now the Judge of the Paterson District Court. A brother of Thomas W., Mr. Richard Randall, also a member of the Paterson Bar, died Oct. 16, 1913.

Col. E. Livingston Price

Colonel Edward Livingston Price, for 56 years past a member of the Essex County Bar, died at his home, 112 Bruen street, Newark, on February 4, from a heart attack, after an illness of about one year.

Colonel Price was born in New York City Dec. 20, 1844, being a brother to former Governor Rodman M. Price, and a son of Francis and Maria Louisa (Hart) Price of New York City. He received his education at Dr. Cattell’s Edgehill School, Princeton; Dr. Woodhull’s School, Freehold, and Dr. John F. Pingry’s School, then in Newark and now in Elizabeth. He would have gone to college had it not been for the outbreak of the Civil War. He entered the Union Army in April, 1861, when he was sixteen, as Second Lieutenant of Company E, 74th Regiment, New York Volunteers, having been unable to get a commission in New Jersey. Shortly afterward he was promoted to First Lieutenant. In this capacity he served from July, 1861, to April, 1862, when Major General Hooker placed him on his personal staff as Ordinance officer of the Third Army Corps, “Hooker’s Division.” As Ordinance officer he served at the siege of Yorktown, Va., and during the whole of the peninsular campaign. In August, 1862, he became Major of his old Regiment, the 74th New York, which he commanded through Pope’s campaign in Virginia, in the battles of Bristow Station, Second Manassas and Chantilly. His promotion to the Colonelcy of the 145th New York Volunteers took place on February 18, 1863. He served with this Regiment until January, 1864, taking part in the battles of Chancellorsville and Gettysburg.

At the end of the War he studied law with the late U. S. Justice Joseph Bradley, and was admitted as a New Jersey attorney at the June Term, 1866, but did not become counselor until February, 1879. He also became admitted to the various United States Courts. He became, in Newark, an active lawyer not only but a strong political speaker and manager, and was long chairman of the Essex County Democratic Committee and, for a time, of the State Democratic Committee. His ability as an organizer and his forcefulness as a speaker made him a powerful factor in moulding sentiment in party conventions. His tall figure and military bearing added their effect. In the latter years of his political activity he was familiarly referred to as the “Old War Horse of the Democracy.” As a lawyer he ranked high in municipal practice. He was counsel for the city of Newark and various outlying townships and for many of the Boards in Newark.

In 1865, before he became of age, he accepted a nomination for Assembly from Essex county and was sworn into office just after he rounded his twenty-first year. He was re-elected in 1867. As a legislator he applied his active intelligence to a study of the needs of his constituents and of the State in general and was the author of many laws now on the statute books. In later life Colonel Price bought a farm near Branchville, Sussex county, and spent much of his time there.

On June 1, 1864, Colonel Price married Emma, daughter of William and Mary Ann Marriott of Newark. On April 27, 1887, he was married again, the second wife being Frederica Theresa, daughter of Edward C. and Eva Elizabeth Eberhardt of Newark. His surviving children are a son, Frank M. Price, who lives at the Price home, and two daughters, Mrs. Frances Maria Josephine Spear, wife of Edwin M. Spear of Trenton, and Mrs. Marion White, a widow, also of Trenton. Edward Livingston Price, the eldest son, died three years ago. The eldest daughter, Marie Louise Jones, died in Kansas City, Mo.

Mr. Charles J. Roe

Mr. Charles J. Roe, of the Jersey City Bar, died in Faith Hospital, St. Petersburg, Florida, on Feb. 10th. For some time past he had not been in good health, and he went South the latter end of January to seek improvement. Soon after his arrival there he became worse and entered the hospital where he died. In Jersey City he had recently made his home, for himself and wife, in the Fairmount Hotel on the Boulevard.

Mr. Roe was the son of Charles Roe and Elizabeth Ann (Coult) Roe, and was born in Sussex county, Sept. 11, 1850. His father was the surrogate of that county for three terms (1863-'78) and then opened a drug store in Newton. The son obtained his preparatory education at Chester Institute and Newton Collegiate Institute; then entered Princeton College and was graduated therefrom in 1870, in the same class as Chief Justice Gummere and ex-Judge George M. Shipman of Belvidere. He then studied law with the late Levi Shepherd of Newton, and became an attorney at the June Term, 1873, and a counselor three years later. He practiced very successfully in Newton until 1894, a portion of the time having a law partner, Mr. Frank Shepherd; at the last named date, he removed to Jersey City. Recently he has had, as a law partner, J. Haviland Tompkins, the firm being Roe & Tompkins. Mr. Roe was an Advisory Master of the Court of Chancery and Supreme Court Commissioner. His practice was a general one, but he somewhat specialized in Chancery work. He was recognized as an able attorney, of scholarly instincts, being learned not only in his profession but in the arts and sciences. He knew some foreign languages and had traveled extensively in Europe as well as in this country.

Mr. Roe married Margaret, daughter of James F. and Sarah (Northrup) Martin, and is survived by his wife, and his sister, Mrs. John R. Hardin of Newark.

Transcriber Notes:

Throughout the dialogues, there were words used to mimic accents of the speakers. Those words were retained as-is.

Errors in punctuations and inconsistent hyphenation were not corrected unless otherwise noted.

On page 67, “complaintants” was replaced with “complainants”.

On page 74, “breaking a storehouse” was replaced with “breaking into a storehouse”.

On page 76, “B & B” was replaced with “B. & B.”.

On page 78, a period was deleted after “ESSEX”.

On page 88, “37 N. Y. Supp, 496” was replaced with “37 N. Y. Supp. 496”.

On page 90, “haled” was replaced with “hauled”.

On page 94, “Christain” was replaced with “Christian”.

On page 94, “Assocaition” was replaced with “Association”.

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Table of Contents

THE New Jersey Law Journal PUBLISHED MONTHLY

EDITORIAL NOTES.

SOME REMINISCENCES, MOSTLY LEGAL.

IN RE B. & B. MOTOR SALES CORPORATION.

OSBORNE & MARSELLIS CO. v. ESSEX CO.

IN RE ELIZABETH AVENUE ASSESSMENT.

STATE v. GRUICH.

IN RE WILL OF MARION.

WOMEN JURORS.

MISCELLANY

NEW CHANCERY RULE.

SUPPLEMENTARY PROCEEDINGS.

ACCIDENT TO MRS. EMERY.

DEATH OF NEWARK’S MAYOR.

HUMOR OF THE LAW.

GOVERNOR’S APPOINTMENTS.

BOOK RECEIVED.

OBITUARIES.

Mr. Thomas W. Randall

Col. E. Livingston Price

Mr. Charles J. Roe

Transcriber Notes:

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