SHAM ANSWER. WATERTOWN, N. Y., Dec. 29, 1870. Editor Albany Law Journal: Dear Sir,-A query: can an answer consisting of a general denial of the complaint be stricken out as sham? The code, sec. 152, provides, that "sham and irrelevant answers and defenses may be stricken out," and, as a general denial is certainly an "answer or "defense," it would seem necessary to follow, that if “sham,” it may be stricken out like any other sham answer. If this is not so, then the section must be modified. "Some sham answers and defenses may be stricken out." This latter seems to have been the view taken of the matter, in a recent case before the supreme court, at special term, for the court refused to entertain the motion to strike out on this ground, declining to follow the cases cited (14 | How. 406; 18 N. Y. 320; 22 How. S, 150). Is this the meaning of the section? CORRESPONDENT. Dear Sir, - On receiving No 51 of your valuable journal, I noticed an editorial reference to the report of the case of Oertel v. Wood, in the last number of Howard's Practice Reports, in which it is stated, that while the argument of the plaintiff's counsel is given to the extent of thirteen printed pages, "all that was given of the brief of the defendants's counsel was his name." As all lawyers know, the questions presented in this case were both novel and'important, and I therefore had prepared a careful brief representing the defendant's side of the case, which the reporter could have had upon application, and which (although it probably would not cover thirteen pages), I trust contained some propositions of law. Having always supposed that the references made in reports to the "arguments of counsel" were for the sole benefit of the bar, who pay for them, I must confess my astonishment to notice, upon receiving my Howard, that this case had been reported by citing the arguments for the plaintiff verbatim, without the least reference to those advanced by the defendant. Respectfully yours, GEO. W. WINGATE. "SLANDERED CHASTITY AND SPECIAL DAMAGES." DETROIT, December 27, 1870. Mr. Editor.-In reading your article entitled, "Slandered Chastity and Special Damages," I was again reminded of the advance which some of the western states have made, on some subjects at least, beyond the legislation of the older states, and also that of England. You cite high authorities, which express deep regret that a female cannot recover damages for words imputing a want of chastity, unless she can prove, in the language of pleading, some special damages as having resulted therefrom, to her. It may, therefore, be of interest to your readers to know that the state of Michigan has had on her statute books for twenty-four years, a law in the following words: "Words imputing to any female a want of chastity shall be deemed to be actionable in themselves, and shall subject the person who shall utter and publish such words to an action on the case for slander, in the same manner as the uttering and publishing of words imputing the commission of a criminal offense." R. S. of 1846, page 484; 2 Canfield, laws of 1851, page 1225. So you see again, as I remarked in a former letter, that if you desire to find examples of wise legislation, the western states should not be overlooked. Truly, yours, LEVI BISHOP. STAMP ON CONSTABLES' RETURN. CAMBRIDGE, N. Y., December 17, 1870. Mr. Editor-I learn from your valuable Journal that our court of appeals, following the decision of the supreme judicial court of Massachusetts in Carpenter v. Snelling, and that of the supreme court of Michigan, in Clemens et al v. Conrad, has lately held that congress has no power to prescribe rules of evidence to state courts. Some of us country lawyers, who do not have access to the Massachusetts and Michigan reports, and have not yet seen the report of the decision of our court of appeals referred to in your journal, would be glad to know whether these cases do not also settle the question of the right of congress to prescribe rules as to jurisdiction of state courts, or rather rules as to what is a proper return of service of process, i. e., whether the certificate of service of process by a constable or sheriff requires to be stamped in order to give the court jurisdiction, as held in Miller v. Larmon, 38 How. Pr. 417. D. M. W. In none of the cases referred to was the question presented directly. But enough was said, arguendo, to lead us to believe, if we had ever doubted it, that the decision in Miller v. Larmon was entirely errone- ED. L. J. ous. BOOK NOTICES. The Suitors: A Comedy in three Acts. Translated into English verse from the French of Racine. By Irving Browne, of the Troy Bar. New York: Putnam & Sons, 1871. Roy. 8vo. and Sm. 4to. pp. 79. Mr. Browne has done a great deal for the amusement of the profession, and not a little for their instruction, in "Law and Lawyers in Literature" and "Humorous Phases of the Law," published in these columns. We are glad to see that his literary ventures all tend in the direction of the law. Racine's comedy is a satire on the legal profession, and was written because its author had been defeated in a lawsuit. It is very rattling and amusing, and in its caricature of the tedious speeches of the advocates of the day is irresistibly funny. The translator, we think, has been quite successful. His version is wonderfully literal, almost line for line, and word for word, and we notice but very little interpolation or stuffing, such as translators are frequently driven to employ. In the few instances where he has found this necessary, we think he has improved upon his author. The spirit of the original has been admirably preserved. If it were possible, we should like to present a few extracts, but it is hardly practicable to do so in our limits. The little volume is published in a sumptuous style, and the larger copies have a frontispiece representing the trial of the dog for stealing the capon. We should like to see Mr. Browne try his hand at the Latin play of Ruggle, of James First's day, called "Ignoramus," which was a satire on law and lawyers. Reports of Decisions rendered in the Circuit and District Courts of the United States. By Benjamin Vaughan Abbott. Vol. 1. New York: Diossy & Company, 1870. This is the first of a series of reports, the purpose of which is announced in the preface to be: "to present the adjudications of the United States circuit and district courts in a comprehensive and satisfactory manner.' "There are at present some three or four series of circuit court reports, but these are severally confined to particular circuits; while the decisions of the remaining circuits have been almost wholly unreported. The decisions of the district courts have been reported with even less completeness and regularity. The design of Mr. Abbott is to collect and report the decisions of general importance of all the circuit and district courts, "wherever local reports are not supported." The preface concludes as follows: "The selection of cases to be reported in these volumes must be chiefly controlled by the consideration of their value and utility to the practicing lawyer. There is a tendency toward the unnecessary multiplication of reports, to which, it is hoped, this enterprise will not be found to yield. The volumes will be devoted to decisions of general application and value, exhibiting the advance and progress of the national jurisprudence, the construction and application of the United States laws, the procedure of the United States tribunals, and similar objects. And, as far as practicable, cases of only local application; decisions which only resolve controverted questions of fact peculiar to the controversy, or repeat and apply familiar principles of law; together with decisions which there is reason to anticipate will be carried before the supreme court for review, or will be seasonably reported in standard reports, to which the bar would naturally turn for them, will be excluded." If the plan and purpose thus set forth are faithfully and skillfully carried out, the series will prove of great value to the profession. That they will be thus carried out, those who know Mr. Abbott will need no assurance. He is the author of several works, which have attained a deservedly high reputation, and which attest his capacity for the work now in hand. The volume before us contains a large number of important cases, covering the period between 1865 and 1870, and collected from all parts of the Union. The reporting is exceedingly well done, and the printing and binding is rather better than that of the average reports. Reports of the Cases Argued and Determined in the Supreme Court of the State of Vermont. By Wheelock G. Veazey. Vol. 42. Montpelier: J. and J. M. Poland, 1870. This is the seventh volume of the series by Mr. Veazey, and brings the cases down to the March term, 1870. We have already given an abstract of the important decisions in the book, and will therefore limit our reference to one case that of The Troy and Boston Railroad Company v. Potter-deciding a question that has not heretofore been decided, to our knowledge. The question was, as to whether the owner of lands adjoining a railroad, and from whom the right of way was purchased, had a right to enter upon the lands occupied by the company, and to cut and take therefrom the grass, etc., growing thereon. It was claimed that the company had simply an easement similar to that of the public in a highway, and that the owner of the fee had the right to use the land in any way not incompatible with its use by the company. The court negatived this proposition, and held that the company had the right to the exclusive possession and use of the land. Mr. Veazey has reported the cases in a very accurate and able manner. His head notes are sometimes, it seems to us, needlessly long, but we are aware that this would be esteemed a virtue by many very competent judges. The index is wonderfully full and exhaustive, and is quite a model in its way. DIGEST OF RECENT AMERICAN DECISIONS. We have in type abstracts of recent decisions of the supreme courts of Pennsylvania, Michigan, Rhode Island and Indiana; but, owing to the crowded condition of our columns, have been compelled to reserve them for the next number. READING OF THE REPORTS.-In reading the reports, I cannot help thinking you will find it most convenient to begin with the latest, referring, as you read, to the earlier cases, as they are cited and commented upon in the judgments of that which you are reading. Always make a note of reference from the earlier to the later cases. The first thing to attend to in this branch of your reading, is, a comprehension of the facts of the case; and I think it may be stated, as a general rule, that any report which does not present a clear and succinct statement of the facts, and of which the point for decision arises, may be passed over. In the next place, read attentively the judgments of the court; and, lastly, such parts of the arguments of counsel as are commented upon by the court, and no other, except in a few instances, perhaps, for the sake of elucidation; for you will soon find your reading so voluminous as to demand the greatest attention, not less to the expense of time, than of money. Raithby. LEGAL NEWS. A Boston paper calls one of the police justices of that city "a velvet pawed dictum of the law." The lord chancellor (England) has declined to make any more queen's counsel at present, One thousand and three convicts are at the Auburn Prison, in this state, which is the largest number in its history. Forty-four were received last month. Samuel Lowry, a colored man residing in Nashville, has been admitted to practice in the supreme court of Tennessee. The law school of the University of the City of New York has been re-organized, with the Hon. Henry E Davies, LL.D., as president. Since the English divorce and matrimonial court was established-some twelve years ago-no less than 1575 marriages have been dissolved. The bar association of the city of New York has recently been presented by Messrs. Dickinson and Dickinson, lawyers of Detroit, with a complete set of the Michigan law and chancery reports, with digest. There are said to be about four thousand lawyers in the city of New York. Of this number, five hundred do all the important business, and about fifty monopolize the "heavy" cases. The Louisville Courier Journal has the following: "Olive Logan says Wyoming territory rejoices in having been the first to grant women the right to sit on juries. Yes, but since the members, female and male, of that jury out there were fined ten dollars each and dismissed from further duty, for gambling in the jury room, the territory does n't rejoice as much as she did." Mr. Mullet, the supervising architect of the New York post-office, has informed Mr. Purdy, the librarian of the law institute in the federal building on Chambers-street, that there will be ample accommodations for the library on the third floor of the new post-office building. According to an arrangement completed in 1828, the institute furnishes all the law-books which are necessary for the use of the government officers in this city while discharging their duties in the courts, and the government in return provides the rooms for the library free of expense. The institute has 600 subscribers, who are all lawyers, about half of them practicing in this city, and the remainder in the surrounding cities. All government officers and their employees are entitled to use the books in the library free of charge, and any citizen has also free access to them when properly introduced. But no lawyers are allowed the use of the books unless they subscribe. In this way the institution secures an income, devoted principally to purchasing new legal publications. The number of bound volumes in the library is 13,500, and of unbound volumes 500. The annual income is $7,500. Notwithstanding the fact that many subscribers discontinue from year to year, and others die, the net increase for several years past has been, on an average about 25. The Albany Law Journal. ALBANY, JANUARY 14, 1871. DEMURRERS IN CRIMINAL CASES. A case has recently occurred in one of the courts of the United States, which raises a question of grave importance in criminal cases. A party was indicted under a law passed at the last session of congress. He desired to raise, for an adjudication by the highest court in the land, the constitutional question whether congress had a right to pass such a law. He raised it in the simplest form known in the practice of our courts. He demurred to the indictment. The demurrer was decided against him, and he was then refused permission to plead to the merits. He was denied the right to a trial by a jury on the facts of the case. His demurrer was regarded by the court as an admission of his guilt, and he was sentenced as upon a plea of guilty. Is this correct practice in the face of that provision of the United States constitution which says, "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed?" It is undoubtedly true that good sense and sound law both agree that the accused may waive his right to such a trial, and does waive it, when he pleads guilty. When he thus pleads guilty, he admits both the facts imputed to him and the law which makes those facts a crime. But when he admits only one of those two things which go to constitute crime, does he necessarily admit both? If he admits the, law that those facts do constitute a crime, does he thereby admit those facts? If he admits the facts charged, may he not raise the question whether they do constitute a crime? Must he deny both in order to raise either question? Such was the ruling of the court in the case referred to, and the question is, whether that ruling is right? The question of law may be raised by a demurrer. The question of fact can be raised only by a plea of not guilty, and that plea puts in issue the questions of both law and fact. So that, if this ruling is right, a conscientious man arraigned on a criminal offense, in order to avail himself of the various shields of protection which the law has mercifully thrown around even the veriest rogue, has got to put upon the record what may in fact be a lie, or forego all advantage of the weakness of the case against him, whistle down the wind the beneficent rule that when there is doubt, there must be an acquittal, and undergo all the vexation and expense of a trial of the facts, when it may be that those facts do not in law constitute a crime. Now is this the law? And if it is, ought it to continue such? Such was at one time, undoubtedly, the rule and the practice in both civil and criminal cases, but is it so yet? I repeat, that raising the question whether the facts stated constitute a crime does not necessarily admit the facts. The familiar definition of a demurrer tells the story. A. charges certain facts against B. and B. neither admits nor denies the facts, but says, what of that? But the courts, at an early period, when fiction in their proceedings was the order of the day and mystery an element of action, even in their judgments, went further, and laid down the rule,-You shall not say What of that? unless you admit the facts from which such question may flow,-because, forsooth, it was not convenient or decorous for them to sit and hear discussed questions of law, which the facts might not give birth to at all. In other words, it was more desirable for the courts to learn the facts first and lay down the law afterward. This mode of procedure was doubtless more consonant with their dignity, and therefore more acceptable to the courts, but never most conducive to the protection of parties. Yet out of this grew the fiction of the law, that a demurrer admitted the facts alleged, and, consequently, if the demurrer was decided against the party interposing it, there was an end of his case. But as the courts progressed and the administration of justice became more refined, the courts relaxed the rigidity of this fiction, and began the practice of allowing to the party defeated on demurrer, on the one side to amend the pleading thus assailed, and on the other side to put in a plea to the merits. And this practice has continued so long, that now, unless the pleading is frivolous or fraudulent, or the case is one that cannot be amended, it is a matter of course, if not of absolute right, that the defeated party may amend. It is almost unheard of, that the power to amend is denied to a party who has demurred in good faith. This is a wise and beneficent modification of the old rule of a fictitious admission, and is growing stronger with us every day. This modification is undoubtedly, even at this day, more prevalent in civil than in criminal cases, for, even in this country of a government of the people, the government officials cannot always resist the temptation of overlooking the interest of the individual when it comes in conflict with the claims of the ruling power. The practice now prevalent in civil cases is divested of all mystery and fiction-is very simple, and far more just to parties. It is, first, to determine whether, upon the case as stated by the party him. self, he has the right he claims. If that is determined against him, it is a judgment against him or his own showing. Thus far the question is solely for the court. If, however, the decision is in his fa vor, then comes the trial of the fact, to ascertain whether his own showing of the case is true. That becomes a question of fact, generally for a jury, and when they certify to the court what the fact is, then comes the judgment of the court both upon the law and the fact. Is there any necessity or even any propriety in adopting a rule that you cannot raise the question of law without admitting the facts, or dispute a question of fact without admitting the law? Admitting one or the other, for the sake of the argument, may be very well, but the fiction of the old rule does not stop there. It claims that the admission shall be one on the record, which the party is afterwards precluded from withdrawing or denying, and is so broad and firm as to sacrifice to its fiction, justice, right, and sometimes even life. The most remarkable case of the kind, and one that had much to do with rendering the old rule | odious, was the trial of Algernon Sydney, before Chief Justice Jeffreys in England, in November, 1683. There is no name connected with the English administration of justice more offensive than that of Jefferies. He was the willing and cruel tool of the Stuarts in their efforts to retain the throne of Great Britain against the will of the people. He was called to the bar in 1668, but began practice in the old Bailey, and other low courts in London, which in those days were dens of torture and murder. Here he rose rapidly, displaying at once much talent, and great brutality. Originally starting in politics as a patriot and a puritan, he soon betrayed his associates and accepted office from the crown. He was counsel for the crown on the trial of Lord Russell, and bore himself so villainously, that he was made chief justice of the king's bench, in order to effect the death of Algernon Sidney. In 1685, he was made a lord, by the title of Baron Jefferies, of Wern, and was at the head of the commission to try the persons accused of participation in the Monmouth rebellion. Of the persons then brought before him, 320 were hanged, 841 transported and sold into slavery, and others scourged and imprisoned. He boasted that he had hanged more traitors than all his predecessors since the conquest. He was rewarded by being made lord chancellor, in 1685, and held this office until the downfall of the Stuarts. Then he attempted to make his escape from England, but, dallying to indulge in drunkenness, to which he was addicted, he was recognized, rescued from a mob who threatened to tear him to pieces, and was confined in the tower, where he died in four months' time of the stone, having much aggravated his disease by his indulgence in drinking. He has been characterized by historians as the "worst man of a hard and ferocious age," and declared by Mr. Justice Foster to have been "the very worst judge that ever disgraced Westminster hall." This was the judge who, some 200 years ago, applied in full rigor, the rule of fictitious admission in a demurrer, then an instrument of oppression in his hands, and now revived in our midst, now as then, in an action in which the government takes an anxious part. an It was then exercised on Algernon Sidney, 66 English statesman and republican, born in 1622, and executed on Tower Hill, London, December 7, 1683." He early adopted republican principles. He was one of the judges on the trial of Charles I. He was equally opposed to the usurpation of Cromwell, and after remaining an exile from his country over 18 years, was permitted to return home in 1677, to see a dying father. He soon became an active opponent of the court party, who determined to crush him, had him indicted for a conspiracy with Lord Russell, to murder the king, and his brother. He was tried before Jefferies, convicted, and sentenced to execution. He met his death with a heroism which enrolled him among the noblest martyrs of freedom in any age. "He marched to the scaffold as to a victory, displaying at his execution, as on his trial, all the bold and sublime traits of the republican character." We give some extracts from his trial, showing how this rule, as to the admission of a demurrer, may be used for the purposes of oppression, and the sacrifice of personal safety and freedom: The trial of Colonel Algernon Sidney, at the king's bench, for high treason, 35 Charles II, A. D. 1683. On November 2, 1683, Algernon Sidney, Esq., was by habeas corpus brought to the bar of the court of king's bench, and the clerk of the crown having read the return, the attorney-general informed the court there was an indictment against the prisoner, and prayed he might be charged with it. Clerk of Crown.-"Algernon Sidney, hold up thy hand" (which was done). (The indictment, which was then read, charged, among other overt acts of treason, writing a book containing these words: "The power originally in the people of England is delegated unto the parliament, he (the most serene lord, Charles II, now king of England, meaning) is subject unto the law of God, as he is a man, to the people that makes him a king," etc.) The report proceeds: "How sayest thou? Art thou guilty of this high treason whereof thou standest indicted, or not guilty??? Colonel Sidney.-"My lord, I find an heap of crimes put together, distinct in nature one from another, and distinguished by law: and I do conceive, my lord, that the indictment itself is, thereupon, void, and I cannot be impeached upon it.” Lord Chief Justice (Sir George Jefferies).—“We are not to admit of any discourses till you answer the question whether you be guilty or not guitly." - Mr. Attorney-General (Sir Robert Sawyer).— “If he will demur, my lord, we will give him leave." Colonel Sidney. "I presume your lordship will direct me, for I am an ignorant man in matters of this kind; I may easily be surprised in it; I never was at a trial in my life of any body, and never read a law book." Lord Chief Justice. "Because no prisoner under your circumstances is to have counsel, but in special cases to be assigned in matters of law, the court is bound by their oaths, and duty of their places, that they shall not see any wrong done to you. But the business we are to tell you now is, you are to plead guilty or not guilty, or demur, which is a confession, in point of law." Sidney." Under favor, my lord, there may be indictments that are erroneous, and if they are erroneous or vicious, they are null, and ought not to be answered to. Mr. Justice Withirs.-"If you please to demur to it, you shall have liberty to make any exceptions." Sidney."I do not demur; it is only exceptions. * Sidney. "My lord, I do not pretend to any thing but what is law and due to every man upon English ground. I would be very sorry to do that which may be hurtful." L. C. J.-" You have the rule of the court. You must do one or the other. Call him to it." Sidney.-"I desire this may be read" (showing the same parchment). L. C. J.-"It shall not be read unless you put it in as a plea." * Sidney."I only give it as exceptions to the bill." Cl. of Cr.-"Art thou guilty, or not guilty?" Sidney. "If any one should ask me any particular thing, I could tell how to answer." L. C. J.- “He asks you a particular thing. It is the duty of the court to pronounce judgment if you do not plead." Sidney. "Why then, if you drive me to it, I must plead. * * My lord, I am there indicted for conspiring the death of the king: I have not conspired the death of the king. I am there indicted for levying of war: I have not done that. I am indicted for having invited in others of another nation. I have not done that neither. I am there indicted to have written a seditious libel to stir up the spirits of the people against the king. I have not written any thing to stir up the people against the king." L. C. J.-"We can't do it. If you assign us any particular point of law, if the court thinks it such a point as may be worth the debating, you shall have counsel; but if you ask for counsel for no other reason than because you ask it, we must not grant it.” *** Sidney."Hath not every body counsel?" L. C. J.-"No." Sidney. "I have several points of law." Sidney. -"My lord, will you compel me, that am an ignorant man, and confess myself so, upon hearing my indictment for things I know not of, presently to raise a point of law?" L. C. J.-"It is not we that compel you, Mr. Sidney. It is the law which compels you. We are the ministers of the law. It is the law says that we are not to allow you counsel without making your objections, that the court may understand whether it is fit. It is the law says we may not allow you a copy of the indictment. Therefore, do not go away and say that we, as men sitting here, impose upon you. We sit here only to administer the justice of the nation." Just. Withirs. "Sir, you will have a fortnight's time to consider of objections in law." |