The Project Gutenberg EBook of The New Jersey Law Journal, Volume XLV, No. 2, February, 1922, by Various This eBook is for the use of anyone anywhere in the United States and most other parts of the world at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of the Project Gutenberg License included with this eBook or online at www.gutenberg.org. If you are not located in the United States, you'll have to check the laws of the country where you are located before using this ebook. Title: The New Jersey Law Journal, Volume XLV, No. 2, February, 1922 Author: Various Editor: A. Van Doren Honeyman Release Date: September 20, 2019 [EBook #59877] Language: English Character set encoding: ISO-8859-1 *** START OF THIS PROJECT GUTENBERG EBOOK NEW JERSEY LAW JOURNAL, FEBRUARY 1922 *** Produced by Ernest Schaal and The Online Distributed Proofreading Team at http://www.pgdp.net (This book was produced from scanned images of public domain material from the Google Books project.) THE NEW JERSEY LAW JOURNAL PUBLISHED MONTHLY VOLUME XLV FEBRUARY, 1922 No. 2 SOME REMINISCENCES, MOSTLY LEGAL BY HON. FREDERIC ADAMS, LOS ANGELES, CAL. IV. Certain Courts and Lawyers. Ever since my boyhood the drama of the courtroom has interested me more than the drama of the theatre. I well remember my introduction to litigated business. I was a youngster on a visit to Boston when some one took me to a Court where a patent case was on trial. I was duly impressed by the imposing personality of the Judge, but my attention was soon fixed by the witness on the stand, whom I happened to know, for my father had once introduced me to him. He was Professor James Jay Mapes, of Newark, New Jersey, a chemist and inventor, one of whose many activities was the manufacture of fertilizers. I had visited one of his factories, somewhere between Newark and Elizabeth, and was surprised to see him at Boston in the rôle of a mechanical expert in a patent case. As the examination carefully proceeded I concluded, with the rashness of inexperience, that the examiner was a very dull man, for he seemed so slow to get an idea. What I then mistook for dullness I now recognize as professional skill, employed by counsel to unfold to the Court and jury the details of a complex mechanism. I know now more about that case than I did then, for, rather to my surprise, I have recently found a report of it in the first volume of Fisher's "Patent Cases," at page 108. The time was August, 1851, when I was not quite eleven years old. The courtroom was that of the Circuit Court of the United States for the First Circuit. Samuel Colt was plaintiff. The Massachusetts Arms Company was defendant. The counsel for the plaintiff were E. N. Dickerson, C. L. Woodbury and G. T. Curtis, and for the defendant R. A. Chapman, G. Ashmun and Rufus Choate, and the Judge was Mr. Justice Levi Woodbury of the Supreme Court of the United States, who was then testing the validity of the patent for the Colt revolver. The charge is reported in full. The verdict was for the plaintiff. Judge Woodbury was a New Hampshire man of some note, then in his sixty-second year, called by Thomas H. Benton "the rock of the New England Democracy," who had been Senator of the United States from New Hampshire, and a member of the Cabinets of Jackson and Van Buren, and, on the nomination of President Polk, had succeeded Judge Story as a member of the Supreme Court of the United States. The trial of the case in which I saw him was one of his last official duties, for he died in the following month. He was succeeded by Benjamin R. Curtis, of Boston, on the nomination of President Fillmore. While I was at the Harvard Law School in 1863-4, Richard H. Dana was United States District Attorney at Boston, and I often saw him at Cambridge, where he lived. His book, "Two Years Before the Mast," was and is a favorite of mine. I suppose that I have read it twenty times, and I hope that the boys of this day read and love it. It is in a class by itself. There is, I think, not in English, and probably not in any language, another account of seafaring life written in the forecastle by one of the crew, who was also a gentleman and a scholar and master of a charming style. The veracity and spirit of the narrative have made it a classic both here and in England. In California it is particularly valued, for Dana was one of the pioneers and had sailed through the Golden Gate on the "Alert" in the winter of 1835- 6, many years before the Mexican War and the discovery of gold, when San Francisco as yet was not. When, at the end of the visit, the good ship floated out on the tide, herds of deer came down to the northerly shore to watch the unusual sight. Dana left college and went on this voyage to cure an affection of the eyes. After his return he graduated at Harvard in the class of 1837 and became a lawyer. Mr. Dana was qualified by nature and training to become a leading figure in the public life of this country, and his ambition was that way, but the cards ran against him. As Goldsmith said of Burke, he was "too nice for a statesman, too proud for a wit," high-strung and sensitive as a race-horse, well bred and distinguished in bearing, a clear, graceful and forcible speaker, an admirable advocate, and an accomplished jurist. One of his greatest professional efforts and triumphs was his argument before the Supreme Court of the United States in the Consolidated Prize Cases, when he had to make it clear to the Court how it was that the stupendous struggle in which the country was engaged could be a- war with belligerent rights as between ourselves and other nations, and a local insurrection as between ourselves and the South. It may be remembered that, at the centennial anniversary of the battle of Lexington, Mr. Dana delivered the oration. It begins with the words, "How mysterious is the touch of fate which gives immortality to a spot of earth, to a name." It is a noble commemorative address. Concord has always plumed itself because it had a real fight, while the Lexington men only stood up to be shot at and did not damage the English. As the anniversaries were approaching and good-natured rivalry was in the air, Concord issued a prospectus of some kind, which did not suit Mr. Dana's fastidious taste, and he said to Judge Hoar, of Concord: "How is it, Judge, that you folks at Concord have sent out such a shabby, badly-written paper? It is positively ungrammatical." "O," said the Judge, "you know, Dana, at Concord we always did murder the King's English." While Mr. Dana was United States District Attorney he tried the last slave-trading case. The vessel was the "Margaret Scott," which was fitted out, I think, at New Bedford, but did not actually embark on the voyage. The trial was before Mr. Justice Nathan Clifford, of the Supreme Court of the United States. I heard Mr. Dana's summing up and the charge to the jury. Judge Clifford was a tall man of great girth. He stood throughout his admirable charge, which took him an hour to deliver. After about half an hour he told the jury that they might be seated. Governor Hoadley, of Ohio, who was a friend of Judge Swayne of the United States Supreme Court, once told me this story, which he got from Judge Swayne. Judge Grier, when on the Bench sat next to Judge Swayne and, during the latter part of his service, was crippled and dozed a good deal, and sometimes used to annoy Judge Swayne by speaking to him in a stage whisper. A prize case was on trial and there was discussion about belligerent rights, which one of the counsel pronounced belligerent. The novelty of the pronunciation roused Judge Grier, who said to Judge Swayne quite audibly: "Brother Swayne, Brother Swayne, Judge Clifford is the belliggrent member of this Court." In 1868, while at Boston, I heard part of the argument in the remarkable case of Hetty H. Robinson v. Thomas Mandell, Executor and others. The case was tried before Judge Clifford in the Circuit Court of the United States. Sidney Bartlett and Benjamin R. Curtis (who was then an ex-Judge of the Supreme Court of the United States), were leading counsel for the complainant, and Benjamin F. Thomas, an ex-Judge of the Supreme Court of Massachusetts, was leading counsel for the respondents. The complainant, who is better known to us by her married name of Hetty Green, had filed her bill setting up a special contract between herself and her aunt, Sylvia Ann Howland, for an exchange of mutual wills, and that neither should make any other will without notice to the other and a return of the other's will. Miss Howland had died, leaving a will not in favor of Hetty, but largely to charity. The respondent, Mandell, was her executor. The case is reported in 3 Clifford's Circuit Court Reports, page 169. Judgment was for the respondents, Judge Clifford saying, in his decision: "In this case there was no competent evidence to show that there was any agreement as to the making of mutual wills, and there was nothing on the face of the instruments to warrant any such conclusion." Mrs. Green, whom I saw for the first time, was in Court with her husband, a large, dressy man, looking like an English guardsman. Much testimony had been taken. There was a question of forgery, and enlarged photographs of [pg 34] [pg 35] signatures were standing about. Judge Curtis spoke for two days, one day on the facts and one day on the law, a length unusual for him, for he was generally brief. I heard Mr. Bartlett's opening and part of Judge Curtis's discussion of the facts. Mr. Bartlett was a great lawyer, but not, I should say, a very good speaker. His reputation was for condensation and concentration; for making a direct thrust at the central point, with small regard for introductory and collateral matters. Someone, I think a Judge of the Massachusetts Supreme Court, said that Mr. Bartlett's mental operations on matters of law bore about the same relation to those of the average lawyer that a book of logarithms does to a common school arithmetic. He continued in active practice until about the age of ninety, made a large fortune, and was famous for his high charges. He was no recluse, but a club man and citizen of the world. This was not the first time that I heard Judge Curtis. To follow any argument of his was an ever fresh delight. I remember as though it were yesterday the neatness and felicity with which, in the case just mentioned, he dismissed one of several propositions submitted by his adversary, saying, with his usual dignity and composure: "I now come to another of this series, I believe it is the ninth. Like all of them, it is not pleaded; like most of them, it is not proved; and, like each and all of them, it would be totally immaterial if it were both pleaded and proved." And then, in his last sentence, with exquisite tact, he lightly touched a certain string: "On one side of this case stands the complainant, with a large fortune; on the other side is a charity; but this Court observes the divine injunction, 'Thou shalt not respect the person of the poor, nor honor the person of the mighty, but in righteousness shalt thou judge thy neighbor!'" My friend, Mr. Frank E. Bradner, of the Essex Bar, has referred me to some lines in "The Professor At The Breakfast Table" which speak of Judge Curtis, who was a classmate of Dr. Holmes: "There's a boy--we pretend--with a three-decker brain, That could harness a team with a logical chain; When he spoke for our manhood in syllabled fire, We called him 'The Justice,' but now he's 'The Squire'." He who runs may read. The class of '29 had its twenty-five years meeting, always a great event, in 1854. Judge Curtis was then on the Bench and it was probably then that he spoke for the manhood of the class. He resigned his office in September, 1857, and became a "Squire." Judge Curtis was a master of the difficult art of Nisi Prius duty. No one could be more courteous, patient and impartial, better equipped with law, more accurate as to fact, or clearer in his rulings and instructions. Any Judge who has spent several of the best years of his life in learning how easy it is to try badly a case with a jury and how hard it is to do it well, will be interested to read the passage which I quote from a private letter written by Judge Curtis to Mr. Webster after he had been on the Bench for about a month: "I presume you will agree with me that there is no field for a lawyer which, for breadth and compass and the requisitions made on all the faculties, can compare with a trial by jury; and I believe it is as true of a Judge as of a lawyer that, in the actual application of the law to the business of men, mingled as it is with all passions and motives and diversities of mind, temper and condition, in the course of a trial by jury what is most excellent in him comes out and finds its fitting work, and whatever faults or weaknesses he has are sensibly felt." The great event of his judicial career was his dissenting opinion in the case of Dred Scott v. Sandford, (10 Howard 393, Dec. Term, 1856), in which he asserted the constitutional power of Congress to prohibit slavery in the territories. This was the doctrine of Webster and Mason and of the coming Republican party. Mr. Lincoln, in his debate with Douglas, carried this dissenting opinion with him. There were nine Judges, each of whom filed an opinion. Five Judges were from slave States and were probably themselves slave-holders. Chief Justice Taney wrote an opinion which is called "Opinion of the Court," but may be more accurately described as the opinion of Chief Justice Taney and Judge Wayne, for Judge Wayne, who also filed a separate opinion, was the only one of the six Judges voting with the Chief Justice who concurred in all his points, reasonings and conclusions. Even at this day one cannot read without a shudder the Chief Justice's unflinching declaration as to the helpless and hopeless status of the negro. Judges McLean and Curtis filed dissenting opinions. There are complexities in the record which make it difficult for even a lawyer to determine just how much of the opinions filed by a majority of the Court is decision and how much is dictum. The Chief Justice withheld from the files the so-called "Opinion of the Court," and made additions and alterations to the extent of eighteen pages, in evident answer to the filed dissenting opinion of Judge Curtis, and instructed the clerk not to furnish a copy of the "Opinion of the Court" to anyone without the permission of the Chief Justice before it was published in Howard's "Reports," so that Judge Curtis, on application to the clerk, was unable to obtain the amplified opinion. There ensued a correspondence between Judge Curtis and the Chief Justice in which Judge Curtis kept his temper admirably and the Chief Justice nearly, if not quite, lost his, and did so, I think, because he felt that he was in the wrong. Judge Curtis, by leaving office in 1857, at the age of forty-seven, surprised his friends and the country. There were two reasons for it. The state of the Court was such that he did not feel comfortable in it. This does not refer to his [pg 36] [pg 37] controversy with the Chief Justice, to whose memory he afterwards paid a cordial tribute. Indeed, it may be doubted whether he would have felt much more comfortable as a member of the Court under the reign of Lincoln than he was under the reign of Buchanan. He was no party man and did not belong in either camp. His all-sufficient and avowed reason for resigning was that he could not live on a salary of $8,000, and felt bound to secure for himself and his family what Burns calls "the glorious privilege of being independent." This purpose was amply realized. He went at once and inevitably to the front rank of the American Bar and remained there for seventeen years, during which time his professional earnings amounted to about $650,000. This was not in our day of big business, when members of the Bar, who are great men of affairs, but not necessarily great lawyers, receive, or are supposed to receive, rich rewards for services in the organization, manipulation and combination of colossal corporate interests. The annual income of Judge Curtis was not much over $38,000, but, like Mercutio's wound, it was enough, it would serve, and it was fairly earned in the regular practice of his profession, at his office desk, in the trial of cases, and in writing opinions on important questions submitted to him from all parts of the country. He stood so high that his written opinion would often be accepted by both sides of a controversy as the veritable voice of the Law itself. I first saw and heard Judge Curtis at New Haven in 1864, in the trial of a suit in equity brought in the Circuit Court of the United States for the Second Circuit by the Lowell Manufacturing Company against the Hartford Carpet Company for an injunction and accounting. Judge Curtis led for the complainant, and the special interest of the case was that he had against him an opponent worthy of his steel, a man five years his senior, of different race, creed, politics and temperament, Charles O'Conor, the brilliant leader of the Bar of New York. The two men were evidently no strangers to one another. Judge Curtis had said at a dinner party that he regarded Mr. O'Conor's management of the Forest Divorce Case as the most remarkable exhibition of professional skill ever witnessed in this country. In the case which I heard at New Haven the associate counsel were able men, Mr. Edwin W. Stoughton for the complainant and Mr. George Gifford for the respondent, both prominent patent lawyers of New York. The Judges were Samuel Nelson of the Supreme Court of the United States and William D. Shipman of the District Court. It was pleasant, after the crudities of county practice, to see the mutual courtesy of the two leaders. I happen to remember a few gracious words of Judge Curtis: "and such rights, as no one knows better than the admirable lawyer on the other side, do not lie in covenant, but do lie in grant." The argument was not fully intelligible to me, for it dealt largely with considerations arising out of written contracts with which I was not familiar, but it was entertaining and instructive to watch the two men. There came on each side a grateful gleam of fun. While Mr. Stoughton was speaking of the terms of a contract, Judge Curtis, who sat near him, interjected the words: "and no longer." Mr. O'Conor in his argument laid hold of this and said: "Why, you might as well say, 'as long as grass grows and water runs,' 'and no longer'." I recall only one precedent for such an expression. It comes from a land from which we get very little law, though it has given us some lawyers. It is a verse of an old Irish song: "Then Pat was asked would his love last, And the chancel echoed with laughter, O, O yes, said Pat, you may well say that, To the end of the world and after, O." Mr. Gifford, in his argument, had referred to a certain United States statute which, as he said, the Supreme Court had found difficulty in construing. Mr. Curtis, in his closing argument, said: "That statute reminds me of a story of a learned divine of this State who once preached a sermon upon a difficult text in one of St. Paul's Epistles, and said, finally: 'My brethren, I have now given you the results of my most careful study and reflection upon this passage of Scripture, but I feel that, in justice to myself, I ought to say that I very much wish that the Apostle had not used those words'." When Mr. O'Conor, who followed his junior, Mr. Gifford, took his seat after speaking for five hours, the afternoon was getting late, and I heard Judge Curtis say to Mr. Stoughton: "I have to answer more than seven hours of solid argument. I cannot do it in two hours, and shall ask that the case go over until to-morrow." It was so ordered. In the evening he said to a friend of mine: "Nothing has been said on the other side which cannot be answered. The question is whether I can do it." He spoke the next day for two hours and twenty minutes and closed the case. This litigation resulted in a victory for Mr. O'Conor and his associates. In July, 1864, Judge Nelson wrote a short opinion dealing with contractual rights and gave judgment for The Hartford Carpet Company. (Case No. 8569, 15 Federal Cases, page 1021, 2 Fisher's Patent Cases, 472). The Judges and counsel, with the juniors from the Boston and Hartford offices, dined together every day at the New Haven House, and a congenial company it was. Mr. O'Conor, when he was at liberty, would put on the back of his head the silk hat which he always wore and say: "Who's for a walk?" and go off on a tramp under the elms. He was a spare, active man, of nervous temperament and great vitality. In New York he lived at Fort Washington, on the Hudson, and used to rise early, walk to his club on Fifth Avenue, breakfast there and then go down to his office. The keynote of Judge Curtis was serenity, that of Mr. O'Conor was intensity. Beginning to tread law at the age of [pg 38] [pg 39] sixteen, Mr. O'Conor fought his way to the lead, an achievement which no one who knows New York City will be disposed to underrate. In the fine old common law phrase, he "made war for his clients." He was tremendously combative within the rules of the game, and absolutely fearless and independent. His opinions were often extreme and sometimes eccentric. I heard him say at the New Haven House, in the middle of the War for the Union, to a man who asked for political advice: "Take the bull by the horns. Every dollar spent and every life lost in this War is just so much thrown into the great deep." It was like him to offer his professional services to Jefferson Davis in his evil day. He prophesied or hoped that "some future Tacitus" would arise to pronounce the verdict of history on Chief Justice Taney as ultimus Romanorum. There was a noble side to Mr. O'Conor's nature. With all his law he was an idealist. In accepting some now-forgotten nomination to the Presidency, he wrote this ringing sentence: "To spend in one's allotted place a blameless life of honest effort, and at its end to perish nobly contending in the Thermopylæ of an honest cause, has always been to me the perfection of a happy individual destiny." Let this be his epitaph. It remained for Judge Curtis, a few years later, to perform a professional duty which made him for the second time a prominent figure in the law and politics of the country. This was his opening argument for the defense in the Impeachment Trial of President Johnson. In a private letter written during that trial, he said: "There is not a decent pretense that the President has committed an impeachable offense." Most intelligent persons will now agree with him. His argument is a masterpiece of luminous reasoning and exposition, and concludes with this grave warning: "It must be unnecessary for me to say anything concerning the importance of this case, not only now, but in the future. It must be apparent to everyone in any way connected with or concerned in this trial that this is and will be the most conspicuous instance which ever has been or can ever be expected to be found of American justice or American injustice, of the justice which Mr. Burke says is the great standing policy of all civilized States, or of that injustice which is sure to be discovered and which makes even the wise man mad, and which, in the fixed and immutable order of God's providence, is certain to return to plague its inventors." A landlord is held to be deprived of his property without due process of law by a statute giving the tenant the privilege of holding over at pleasure at expiration of his lease, in Hirsh v. Block, 267 Fed. 614, annotated in 11 A.L.R. 1238, on the constitutionality of rent laws. MAXWELL v. PINYUH. (N. J. Supreme Court, Jan. 20, 1922). New Trial--Rules of Supreme Court--Orders of Judges--Relaxation of Rules. Case of Louise Sylvester, Plaintiff, against George S. Pinyuh, Defendant. On motions to vacate certain Rules and Orders. Mr. Harry R. Cooper for Plaintiff. Mr. William J. Hanley, Mr. O. J. Pellet and Mr. Harlan Besson for Defendant. Heard before Justices Trenchard, Bergen and Minturn. PER CURIAM: This is a motion by the defendant to vacate certain rules heretofore made in the above entitled cause, and a counter motion by the plaintiff to strike out the restraint imposed upon her in a rule to show cause granted by Mr. Justice Minturn on the 25th day of October, 1921, and for permission to perfect her proceeding for a new trial. The facts are substantially as follows: In September, 1921, the case (a Supreme Court issue) was tried in the Monmouth Pleas on an order of reference made by a Justice of the Supreme Court. The jury found a verdict for the defendant, and the plaintiff, on the 22d day of September, applied to the trial Judge for a rule to show cause why a new trial should not be granted, which order was allowed by the trial Judge and was made returnable before him on the 6th day of October, 1921. On the return day of the rule, the attorney for the defendant appeared before the Judge and objected to his hearing the rule on the ground that, it being a Supreme Court issue, the rule must be heard by the Supreme Court. Judge [pg 40] Lawrence reserved decision in the matter, and thereafter came to the conclusion that the action had become a Common Pleas case, and that the rule could properly be heard before him, and fixed October 7th, 1921, for the hearing of same. In the meantime defendant's attorney procured from Mr. Justice Minturn a rule to show cause, returnable before the Supreme Court on the first Tuesday of November, 1921, why judgment should not be entered in favor of the defendant against the plaintiff on the postea, and why the trial Judge should not sign the postea, and restraining the plaintiff from further proceedings until the further order of the Court. A copy of this rule was served upon Judge Lawrence and he thereupon concluded that the rule must be heard before the Supreme Court, and he signed the postea. Plaintiff's attorney was evidently under the impression that, after the postea had been signed by Judge Lawrence, the object of the rule allowed by Justice Minturn was served, and that the stay contained therein was no longer effective and did not restrain him from taking the necessary proceedings to bring on the argument of the rule before the Supreme Court. He accordingly obtained from Judge Lawrence (who evidently entertained the same view) a rule amending the previous rule granted by him to the extent that the argument should be heard before the Supreme Court on the first Tuesday of February. Apparently, because of the uncertainty on the part of plaintiff's attorney as to whether the rule originally granted by Judge Lawrence, and the reasons on which plaintiff rested her motion for a new trial, should be filed in the office of the Clerk of the Supreme Court, or in the office of the Clerk of the Court of Common Pleas, these papers were withheld from the files and were not filed within the ten days required by the rules of this Court. A copy of the reasons and rule were, however, immediately served on the attorney for the defendant. Depositions were also taken by the plaintiff under the rule. On the 15th day of December, 1921, plaintiff's attorney obtained from Mr. Justice Kalisch a rule permitting plaintiff to file the rule to show cause allowed on the 22d day of September, as amended by the rule made by Judge Lawrence on the 30th day of November and the reasons on which plaintiff based her motion for a new trial, with the same force and effect as if the same had been filed within the time limited by law, and, immediately after that rule was granted, filed the rule made by Judge Lawrence and the plaintiff's reasons in the office of the Clerk of the Supreme Court. A copy of the depositions which were taken under the original rule granted by Judge Lawrence were also served on the defendant's attorney. No state of the case has yet been prepared and served, but it is stated to be the plaintiff's intention, should the Court permit her to do so, to immediately prepare and print her case and bring on the rule for argument at the February Term of the Supreme Court. The defendant moves to vacate the rule of September 22d, and the rule of November 30th, amending it; to vacate the rule allowed by Justice Kalisch permitting plaintiff to file such rules and the reasons. The plaintiff moves to vacate the restraint imposed upon her by the rule allowed by Justice Minturn October 25, 1921, and also moves to be allowed to perfect her proceedings for a new trial, and to bring on the same for argument, according to the rules and practice of the Court, at the February term. We think the defendant's motion should be denied and the plaintiff's motions granted. It is of course apparent, and the plaintiff freely admits, that the rules to show cause why a new trial should not be granted were irregular and defective and that they have not been brought on in accordance with the rules of the Supreme Court; but evidently the sole reason therefor was the confusion existing, both in the mind of plaintiff's attorney and that of the trial Judge, as to whether the application for a new trial should be heard before the trial Judge or before the Supreme Court. It seems not to be disputed that substantial reasons exist for giving consideration to plaintiff's application for a new trial. In granting the rule to show cause why a new trial should not be granted the trial Judge evidently felt that the plaintiff should be given her day in Court upon the reasons which were presented to him why the verdict of the jury should not be set aside. We feel that this Court should not allow the technical infirmities in the proceeding to deprive the plaintiff of an opportunity to be heard when, by a suspension or relaxation of its rules, a possible injustice may be avoided. Rule 217 of the Supreme Court provides: "The time limited in these rules for the doing of any act may, for good cause, be extended (either before or after the expiration of the time), by order of the Court, or a Justice or a Judge thereof." Rule 218 provides: "These rules shall be considered as general rules for the government of the Court and the conducting of causes; and as the design of them is to facilitate business and advance justice, they may be relaxed or dispensed with by the Court in any case where it shall be manifest to the Court that a strict adherence to them will work surprise or injustice." We therefore deny defendant's motion to vacate the rules heretofore obtained by the plaintiff to perfect her proceedings for a new trial, and we grant the plaintiff's motion to vacate the restraint imposed in the order of Mr. Justice [pg 41] [pg 42] Minturn, and also grant the plaintiff permission to perfect her proceedings for an application for a new trial, and also permission to bring the same on for argument at the February term of this Court, according to the rules of this Court. The relief thus granted to the plaintiff will be upon terms that she pay the defendant costs upon these motions; all other costs to abide the event. STATE v. GROSS. (N. J. Supreme Court, Jan., 1922). City Ordinance Against Disorderly Conduct--The Disorderly Act--Removal of Persons from Railroad Train. Case of The State against Jacob Gross, Prosecutor. On certiorari dismissing conviction. Mr. Charles W. Broadhurst for the Rule. Mr. Joseph J. Weinberger for Prosecutor. Argued before Justice MINTURN by consent. MINTURN, J:. The prosecutor of this writ was convicted before the Recorder of the City of Passaic for violating section 72 of an ordinance of that city which provides as follows: "That any person, who shall in any place in the city of Passaic, make, aid or assist in making any improper noise, riot, disturbance or breach of the peace, or shall behave in a disorderly manner, or make use of obscene or profane language ... shall each be liable to a penalty of five dollars for every offense." The violation complained of was that, while he was a passenger on an Erie Railroad train, and while the train had stopped at Passaic, he refused to remove his baggage from between the seats to the baggage compartment at the request of the conductor, as a result of which the prosecutor became noisy and boisterous, and the conductor thereupon caused the removal of the prosecutor and his baggage from the car, and turned him and it over to a local police officer. He was thereafter prosecuted as a disorderly person and convicted of that offense. Various legal grounds are advanced as a basis for vacating the conviction. One only I deem fatal to its validity. The ordinance in question was intended to apply to public places within the city for the purpose of suppressing disorderly conduct therein, and, while in a limited sense a steam railroad car is a quasi public place as between the State and the railroad, it cannot be reasonably construed as furnishing such a public place within the contemplation of the local legislative body, when they passed this ordinance. A similar contention was before this Court in State v. Lynch, 23 N. J. L. J. 45, where it was held that a saloon, although a public house in contemplation of law, is not a "public place" within the contemplation of the provisions of the Disorderly Act. The words "public places" in this connection were held to be "such places as are in general use for travel by all citizens, and in which all have at all times an equal right of passage and repassage." Adopting this rule of construction the railroad coach in question was not a "place" to which the jurisdiction of the city can be said to extend, and the word "place," therefore, in this connection, must be held to be equivalent to "public place." That this is so is made manifest from the context of the section of the ordinance invoked upon the doctrine of noscitur a sociis. Thus, the person charged must not only be in "a place in the city of Passaic," but he must "make, aid or assist in making any improper noise, riot, disturbance or breach of the peace, or shall behave in a disorderly manner or make use of obscene or profane language." This enumeration of specific acts of misdemeanor connotes, generally speaking, the ordinary offense of disorderly conduct, such as is condemned in our Disorderly Act; and, as has been observed, such disorderly conduct, to be the subject of public prosecution, must occur in a "public place," within the jurisdiction of the City Magistrate, and the environment of the city. A travelling car manifestly is not such a public place. 32 Cyc. 1249 and cases. The fact that the prosecutor was noisy in asserting his rights can make no difference in the result, for we may, from experience, judicially notice the fact that the inter-urban railroad train presents no suitable accommodation for one inclined to indulge in either introspection or somnolence. Therefore, an ordinary conversation in a major key when indulged, as was the case here, between a conductor, with a book of railroad rules in his hand emphasizing his duty, and a protesting commuter with an innocuous bag, the owner of which attempted to vindicate in Yiddish-English the rights of the American travelling public, might be the means of provoking an innocent mental diversion for the benefit of the curious passengers, but could hardly be said to evolve the serious accusation of disorderly conduct in a public place, within the meaning of the ordinance. A discussion in an elevated key on a railway carriage, whether it concern a bag or the suspected contents of a bag, is not an unusual episode in everyday American railway life; nor can it be said to be without its compensation and exhilarating effect upon the general body of passengers, so long as it does not assume the [pg 43] intolerant form of vulgarity, or obscenity, and thus warrant the ejection from the train of the malodorous disputant. The fact, of course, is that the voluminous resonance of a conversation cannot be utilized as a standard to guage either its criminality or its literary value, and yet debates in the halls of legislation, in the Courts of justice, not to speak of fulminations from the pulpit, are often measured by the volume of vocalization and the density of lung power behind them. If precedent were invoked from the classics, we have it in "Sweet Auburn;" where, in fancy, we hear the "Loud laugh that spoke the vacant mind;" and Goldsmith's pen picture has placed the vociferous schoolmaster among the immortals, whose "Words of learnèd length and thundering sound Amazed the gazing rustics ranged around." All of this, and more, is familiar experience on the railway train, and thus far has escaped the proscription of the authorities. In Mullen v. State, 67 L. 450, the prosecutor in asserting his rights at a schoolmeeting became, in the language of this Court, "quite noisy and excited." His conception of public duty led him to indulge in what the complainant called "loud language," and for this he was prosecuted under the provisions of the Disorderly Act, which prohibits in "public places" the use of "loud, offensive or indecent language." There was no proof of the indecency or offensiveness of his speech, and this Court held that the uttering of "loud" language was not enough to sustain the complaint. These considerations, without reference to the other objections presented, lead me to conclude that the judgment of conviction should be vacated, and such will be the order. STATE v. CAPRIO. (Before Hon. Fred G. Stickel, Jr., as Magistrate. Nov. 2, 1921). Prohibition Enforcement Act--Search Warrant--Seizure of Liquor Permits and Certain Liquors. Case of State against Luigi Caprio. On application to restore property and liquor taken under search warrant issued under the Prohibition Enforcement Act. Before Hon. Fred G. Stickel, Jr., a Judge of the Court of Common Pleas, acting as Magistrate under the Prohibition Enforcement Act. Mr. Anthony R. Finelli for application. Mr. J. Henry Harrison, Prosecutor of the Pleas, opposed. STICKEL, Jr., Magistrate: On October 3rd, 1921, acting as Magistrate under the Prohibition Enforcement Act, I issued a search warrant directed to Richard Roe, authorizing a search of the drug store, cellar and rooms attached at 7 Bloomfield Avenue, Belleville, New Jersey, and a seizure of the liquor there found, together with all vehicles, fixtures, containers, utensils, machines, contrivances, or paraphernalia whatsoever, there found used or intended to be used in the illegal keeping, manufacture, transportation or sale of liquor. This warrant was based upon an allegation by Nick Takush that he believed liquor was unlawfully possessed in such place, and that he based his belief upon the fact that he had on several occasions purchased whiskey at that address for beverage purposes, and on the 30th day of September, 1921, had purchased two gallons of alcohol there for beverage purposes. Acting under this warrant, the sheriff, through under-sheriff Alfred C. Walker, returned the body of Luigi Caprio, admittedly the owner of said 7 Bloomfield Avenue and of the drug store, cellar and rooms attached. The said under- sheriff also filed an inventory showing that he had seized under said search warrant a two gallon can labeled, "Columbia Spirits;" a five gallon can labeled "Alcohol;" one bottle labeled "Columbia Spirits;" some liquor permits; one five gallon can, full, labeled, "Columbia Spirits;" one bottle labeled "Aromatic Elixir;" one bottle labeled "Alcohol." Application is now made under sections 63 and 64 of the Prohibition Enforcement Act to restore the liquor and property so taken, on the ground that there was no probable cause for believing the existence of the grounds on which the search warrant was issued, and on the further ground that the liquor and chattels taken upon such search warrant are not the same as referred to in the search warrant. [pg 44] [pg 45] There is absolutely nothing in the testimony taken before me to support the contention that there was no probable cause for believing the existence of the grounds upon which the search warrant was issued, but there is some merit in the other contention. The search warrant directs the taking by the sheriff of "liquor found in and upon the premises aforesaid, together with any and all vehicles, fixtures, containers, utensils, machines, contrivance, or paraphernalia whatsoever found, used or intended to be used in the illegal keeping or sale of liquor." It will be readily seen that the sheriff would only be justified in his seizure of the liquor permits if they came within the description "paraphernalia," and clearly the word "paraphernalia" cannot be interpreted, particularly in the light of the words which precede it in the search warrant, to cover liquor permits. The testimony also showed that the five gallon can labeled "Columbia Spirits" was delivered by a drug concern to Caprio while the sheriff's men were there or about the time they arrived. Certainly this liquor is not the liquor referred to in the search warrant, and consequently, not being the liquor referred to in the search warrant, it must be restored to the person from whom it was taken. Therefore an order may be presented, reciting that, so far as the Prohibition Enforcement Act is concerned, the search warrant issued by virtue of the authority thereof is not sufficient to justify the sheriff in retaining the liquor permits and five gallon can labeled "Columbia Spirits," and that in view of the Prohibition Enforcement Act the said liquor permits and "Columbia Spirits" be restored to said Caprio. HARSEL v. FICHTER & ENGELHARDT. (Essex Common Pleas, Dec. 27, 1921). Workmen's Compensation Acts in New Jersey and New York--Applying to Wrong Tribunal--Election of Tribunal. Case of Julia Harsel, Petitioner, against William Fichter and John Engelhardt, copartners trading as Fichter & Engelhardt, Defendants. On petition for compensation under Workmen's Compensation Act. Messrs. Kent & Kent for Petitioner. Messrs. Kalisch & Kalisch (by Mr. Isador Kalisch) for Respondent. STICKEL, Jr., J.: The employers contend that the petition for compensation in this case should be dismissed because the contract of employment was made in New York, and because the petitioner elected to proceed under the compensation law of New York, subsequently petitioning for compensation under the New Jersey law. In considering the case, I felt I would be aided if I had before me the testimony taken in the New York compensation action, and counsel for the defendant very kindly supplied me therewith. From such testimony, which I have filed in this case, as well as from the deposition filed, I am satisfied and find as a fact that the deceased was hired in New Jersey by Fichter & Engelhardt. It is quite clear to me that the deceased heard of the New Jersey job of Fichter & Engelhardt at the Union rooms in New York and that, being attracted thereby, he, after giving up the New York job, came to the New Jersey job, was seen by the foreman, Millhouse, and employed on the spot. Engelhardt appears to be a silent partner of Fichter, according to his own testimony, and the firm is, in fact, made up as stated in the title to this cause. Furthermore, even though the contract of employment had been made in New York, the accident causing the deceased's death having taken place in New Jersey, the case falls within the New Jersey Compensation Act, and this notwithstanding the existence of a New York Compensation Act. American Radiator Company v. Rogge, 86 N. J. L. 436, aff. 87 N. J. L. 314; 245 U. S. 630; David Heiser v Hay Foundry & Iron Works, 87 N. J. L. 688 (at this time the New York Compensation Act was in force); West Jersey Trust Company v. Philadelphia & Reading Realty Company, 88 N. J. L. 102. As to the question of election, the contention of the employers is wholly without merit. The petitioner, through attorneys other than those who now represent her, applied for compensation under the New York Compensation Act. The Commission held that it had no jurisdiction; that the case was not within the New York jurisdiction, apparently, from the testimony taken, because the Commission found that the contract of employment with petitioner was made in New Jersey and the accident took place there. Thereupon petitioner applied for compensation in New Jersey, and an informal award had been made in New Jersey, and a day fixed to hear the case on the formal petition, before someone in New York claiming to represent Mrs. Hassel, the petitioner, had applied for a reopening of the finding of no jurisdiction by the New York Commission. [pg 46] Petitioner in that posture of affairs advised the New York Commission of the New Jersey proceeding, and asked that the New York proceeding be stayed "pending the trial of her case in New Jersey, and then after and when we receive compensation over there, as I understand the law in this State, Mrs. Hassel can still come in and get the deficiency claim from the Compensation Bureau here," and this request was duly granted. What acts of petitioner constitute the election which should bar this New Jersey proceeding? Certainly not the original application for compensation in New York, for that application was dismissed, and it now appears erroneously, for lack of jurisdiction, and, under such circumstances, it is clear that she has not made a final and binding election such as would preclude her applying to the tribunal in fact possessing jurisdiction. 15 Cyc., p. 262, and cases cited; 20 Corpus Juris, p. 37, and cases cited. If a mistake of a petitioner in applying to the wrong tribunal for relief would not preclude application to the right tribunal (see 15 Cyc., supra) certainly the erroneous finding of no jurisdiction by the tribunal applied to could not have a greater and more binding effect upon the petitioner. And even a correct finding of no jurisdiction would not preclude application for relief to the tribunal possessing jurisdiction. 20 Corpus Juris, p. 27. The only other conduct of petitioner which is relied upon to constitute an election is her request to the New York Commission after someone unauthorizedly had applied for a re-opening of the case, and after the institution of the New Jersey suit to stay the New York proceedings until the completion of the New Jersey proceeding, so that petitioner might obtain in New York the difference between the New York compensation allowance and that of New Jersey, and clearly such conduct, which is, in effect, an election to proceed in New Jersey on the main case, cannot be held to constitute an election to proceed in New York. I, therefore, find that the petitioner is entitled to compensation for three hundred weeks at the rate of twelve dollars per week, and to one hundred dollars, the statutory allowance for funeral expenses, and I will allow counsel for the petitioner a counsel fee for services in this Court of two hundred and fifty dollars. A determination of facts should be prepared by counsel for the petitioner, submitted to counsel for defendant for inspection, and then transmitted to me for signature. STATE v. ASH. (Essex Common Pleas Jan. 6, 1922). Driving Automobiles Under Influence of Liquor--Review of Evidence Below. Case of State of New Jersey against Joseph A. Ash. On appeal from Third Criminal Court of Newark. Mr. John P. Manning for State. Mr. Andrew Van Blarcom for Defendant. STICKEL, Jr., J.: The defendant-appellant was found guilty in the Third Criminal Court in the City of Newark, Judge Horace C. Grice presiding, for driving an automobile while under the influence of liquor, in violation of Section 1, Chapter 67, of the Laws of 1913, a supplement to the Disorderly Person Act, and he now appeals to this Court. The first point urged as a ground for reversal of the conviction is that "at the close of the case there was a reasonable doubt as to the applicant's guilt; that the State had not sustained the burden of proof, and that the weight of the evidence favored the appellant." It is to be doubted whether this Court has any power to review the evidence at all, in view of the Laws of 1895, Page 197, section 7, 3 Comp. Stat., p. 3993, providing: "That it shall not be necessary to set forth in said conviction [convictions in Police Courts of first-class cities] the whole or any part of the testimony upon which such convictions is had," but, assuming it possesses such power, it cannot extend beyond the point of determining whether there was any evidence before the trial Court to support its finding. See Sec. 39, Laws of 1915, p. 411, Supp. Comp Stat., p. 490; State v. Lynch, 3 N. J. L. Journal 45; Lyons v. Stratford, 43 N. J. L., 376; Orange v. McGonnell, 71 N. J. L. 418. No power to weigh the evidence rests in this Court, and, if it did, I would be unwilling to say, after a reading of the evidence in this case, that the trial Court was wrong in its conclusion of facts; that it should have disregarded the officer's testimony and that of Doctor Mitchell, and believe the story of the defendant and his friend; or even that the Court must have or should have entertained a reasonable doubt of the defendant's guilt on the whole case. The trial Court saw the witnesses, had the benefit of the atmosphere of the trial, witnessed the demeanor of the witnesses on the stand, their manner of testifying, and, consequently, was in a better position to determine questions of fact than this Court is, relying...