DYING

AFTER TRIAL-ENTRY

JUDGMENT-PARTY NUNC PRO TUNC.-Where a party to an action dies after trial and submission to the court, but before a decision is announced, the court has jurisdiction, and in furtherance of justice, may enter judgment nunc pro tunc as of the day of submission. It is well established that to prevent injustice and to promote justice judgments may be entered nunc pro tune. This power has been exercised by courts from the earliest times. Mayor of Norwich v. Berry, 4 Burr. 2277; Tooker v. Duke of Beaufort, 1 id. 146; Freem. Judg., § 56, and cases cited. In Dial v. Holter, 6 Ohio St. 228, this court said: Where a defendant in an action for libel and slander after the finding of a verdict against him in theCourt of Common Pleas, files, duing the same term, and in compliance with the rules of the court, motions for a new trial and in arrest of judgment, and afterward dies, and the motions are continued to another term for hearing, the court may, if such motions be overruled, enter a judgment nunc pro tunc upon the verdict, as of the term in which it was found." In Perry v. Wilson, 7 Mass. 39 3-395, the court say: "Where an action is delayed for the convenience of the court they will take care that no party suffers by such delay.' Therefore where, after a continuance by order of the court for advisement, the defendant in the action died, judgment was entered as of a former term. This position is supported by numerous decisions. Bank U. S. v. Weisiger, 2 Pet. 481; Clay v. Smith, 3 id. 411; Griswold v. Hill, 1 Paine, 484; Gray v. Brignardello, 1 Wall. 636; Campbell v. Mesier, 4 Johns. Ch. 342; Freem. Judg., § 57. In Turner v. London & S. W. Ry. Co., L. R., 17 Eq. Cas. 561, 565, Sir Charles Hall, V. C., examines Collinson v. Lister, 20 Beav. 355, and Troup v. Troup, 16 W. R. 573, and states the law to be that "where a plaintiff dies after hearing but before judgment the court has jurisdiction to date the judgment as of the date of the hearing." And in Chitty's Archbold's Practice, Q. B. (12 ed., p. 1572), the rule at law is stated thus: "The court will in general permit a judgment to be entered nunc pro tunc, where the signing of it has been delayed by an act of the court. Therefore if a party die after a special verdict, or after a special case has been stated for the opinion of the court, or after a motion in arrest of judgment, or for a new trial, or after a demurrer is set down for argument, and pending the time taken for judgment, or whilst the court are considering their judgment, the court will allow judgment to be entered up after the death nunc pro tunc, in order that a party may not be prejudiced by a delay arising from the act of the court." Matter of Jarrett. Opinion by Follet t, J.

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, June 9, 1885:

Judgment of the General Term reversed; that of Special Term affirmed, with costs-Eliza Hegerick, administrator, etc., respondent, v. John Keddie, executor, etc., appellaut.-Order of General and Special Terms reversed and motion denied, with costs to all courts-Polly Moriarty, respondent, v. Virgil C. Bartlett, executor, etc., appellant. Order of General Term reversed, and case remitted to General Term for further consideration-James Mingay and others, respondents v. Henry B. Hausom and others and the

Holly Manufacturing Company, appellants.-Judgment affirmed with costs-People ex rel. Alfred Short and others, appellants, v. Orin S. Bacon, sheriff, etc.,

respondent.Judgment affirmed with costs-John H. Haight, appellant, v. Mayor, etc., respondent.Order and award affirmed, with costs-John Sipple, respondent, v. State of New York, appellant.—Judg ment reversed, new trial granted, costs to abide events -George C. Gerritt, appellant, v. City of Brooklyn, respondent.-Judgment reversed, new trial granted, costs to abide event-Samuel D. Coykendall, appellant, v. Abraham Constopto and others, respondents.-——— Judgment affirmed, with costs-Supervisors of Tompkins County, respondent, v. George H. Bristol and others, appellants.-Order of General Term affirmed and judgment absolute ordered for the defendants on stipulation, with costs-Town of Ontario, appellant, v. Hezekiah Hill and others, respondents. Order of General Term reversed and judgment absolute rendered for the respondents on stipulation, with costsBenjamin Gould, respondent, v. Cayuga County National Bank and others, appellants. Judgment affirmed, with costs-Addison Macullar and others, appellants, v. John W. McKinlay, respondent.-Judgment affirmed with costs-Isabella B. Clute, appellant, v. Adam Emerich.-Judgment affirmed with costsPeople ex rel. Carrie L. Van Deusen, appellant, v. George W. Drum and others, trustees, etc., respond. ents.--Judgment affirmed with costs-John Rehberg, appellant, v. Mayor, etc., respondents. Judgment reversed, new trial granted, costs to abide event— Ellen Bullock, respondent, v. Mayor, etc., respondents.

-New trial ordered, costs to abide event-National Bank of Virginia, appellant, v. Robert A. Mills and others, respondents.-New trial granted, costs to abide event - Benjamin P. Fairchild, appellant, v. Theresa Lynch.-Judgment affirmed with costs.Gustave Pantzur, respondent, v. Tiltz-Foster Manufacturing Company, appellant.-Judgment affirmed, with costs-Mary R. Husted, respondent, v. John H. Sweeney and others, appellants.-Judgment affirmed with costs-Patrick Cowan, respondent, v. Hudson River Bridge Company, appellant.-Judgment affirmed, with costs-Charles W. Miller, respondent, v. N. Y. C. & H. R. R. Co., appellant.-Motion to dismiss appeal. Ordered that the appellants have leave to apply to General Term for the preparation and settlement of a case as required by section 1339 of the Code, etc., and that appellants pay $10 costs, in which case motion to dismiss is denied; if not it is granted, with costs-George Jackson and others, respondents, v. Horace D. Tupper and another, appellants.-Motion to dismiss appeal granted unless, within twenty days after the service of a copy of this order, appellant file the proper undertaking and proceeds to justification, if objected to, and pay $10 costs of motion; in such case motion denied-Clarence T. Sanford, respondent, v. Louisa C. Pollock, appellant.-Motion to perfect appeal granted in payment of $10 costs; but if not paid within twenty days from entrance of this order, motion to dismiss appeal granted; otherwise dismissed-Edward D. McCarthy, respondent, v. Robert Bonynge, appellant.- Motion to vacate order granted without costs-Julia E. Blackman, respondent, v. Eliza Wheeler, appellant.- -Motion denied, without costs-J. Smith McIntosh, appellant, v. State of New York, respondent.-Order that remittitur be consolidated, and that it direct that on plaintiff's ap peal the judgment of General Term, so far as it reversed the judgment entered in referee's report, be modified by ordering a new trial, and as modified affirmed; and on defendant's appeal the judge of General Term, so far as it affirms the referee's report, be reversed and new trial granted, costs to abide eventDaniel R. Lyddy, appellant and respondent, v. Lilah Chamberlain, respondent and appellant.

by a single judge, and the absence of critical examination by the others, and denies that codification would cure the difficulty. We do not see why not. The trouble now comes, it is said, from ignorance or forgetfulness of what some other judge has decided. Now if the law were reduced to rules, ascertainable by quick and easy reference, there would be no such difficulty. Of course, we assume that the rule shall be explicitly and clearly laid down, and that the judge shall not be too indolent to hunt it up if he has any doubt.

There is no book more delightful for a lawyer's summer vacation than Mr. McMaster's "History of the People of the United States," the second volume of which has just been published. The author is undoubtedly an imitator of Macaulay's method and style, but he follows him closely and worthily. His work is a wonderful mosaic. His industry and research are wonderful. His list of petty and obscure authorities is an astonishing evidence of his patience. The result is a book as picturesque and interesting as a novel. We note a singular mistake on the first page of the current volume. The author states that Oglethorpe served with Peterborough in Italy; meaning Spain - the war of the Spanish succession, undoubtedly.

It will probably be necessary to fence Vermont in with a strong barrier, to prevent her from trespassing on her neighbors, so swollen with pride will she be to think that Minister Phelps had an 66 ovation" in the House of Lords on the 12th instant. He appeared before that august body, and testified that between 1691 and 1830 a ceremony was not essential to a marriage in the State and colony of New York. We do not suppose that he means it to be understood that he lived here during all that period and speaks from knowledge, but that such is his opinion of the law. Others may have a different opinion, and think that the common law did not prevail here in the earlier colonial days. But it seems that "when Mr. Phelps arose to leave the Chamber, their lordships all rose and bowed deferentially to him, the American minister returning the greeting in a graceful and appropriate manner." It is a great thing to be "known and honored in the House of Lords," and it is touching to observe that these representatives of an effete civilization do not "forget the deference due" to the representative of this glorious country, any more than the victim forgot that due the executioner, in Mr. Gilbert's last opera. We flatter ourselves that when it comes to manners our new minister knows all about the politest observances, and will never, never trip over his own sword. But what was Mr. Phelps' "return" for the greeting? We are consumed with curiosity to know. Probably he had not his sword about him; otherwise he might have drawn and flourished it. Did he ask their lordships all out for "a modest quencher?" That would have been "graceful and appropriate." We

shall look to see a bill introduced into the Vermont legislature next winter setting apart the 12th of June as a public holiday, and expect that Judge Poland in August next will submit gratulatory resolutions for adoption by the American Bar Assocition in honor of this marked triumph of one of its late presidents.

IT

NOTES OF CASES.

T is important to know that evidence that "the prosecuting witness will be twenty-one years old the first day of August next " after the trial justifies a finding that he was under twenty-one on the 15th of November preceding. Dolke v. State, 99 Ind. 229. The court observe: "But counsel say that evidence that the alleged minor will be twentyone years old next August is not conclusive that he was under twenty-one years of age at the time of the alleged sale, and they cite Meyer v. State, 50 Ind. 18, which seems to support their position. Upon the point now under consideration the case cited was criticised and condemned in the recent case of Ehlert v. State, 93 Ind. 76, and must now be regarded as overruled." In the Meyer case, the minor being Edward Gresh, the evidence showed that "Gresh" was nineteen; it was held that it did not show that he was a minor. The court said: "For any thing that appears in the evidence Gresh might have lived the age of Methuselah," because "it does not show he was older than that." But in the Ehlert case it was held sufficient that the evidence showed that the person in question was nineteen in August preceding the trial. The court said of the Meyer case: "What was said in that case in relation to the age of the party to whom the liquor was sold was not necessary to a decision of the case, and may therefore be regarded as a dictum. The statement there made, and the argument here, are too refined and technical to commend themselves to our judgments. In this case the witnesses were asked to state the age of the party to whom the liquor was sold by appellant. It would be a straining of terms, and an unusual interpretation of the language, to hold that the answers left any reasonable doubt as to the young man's age." But see Arbintrode v. State, 67 Ind. 267; S. C., 33 Am. Rep. 86, holding that an allegation in an indictment of a sale of "one gill" does not necessarily imply less than a quart.

In State v. Wasson, 99 Ind. 261, it was held that under a statute requiring election tickets to be printed on plain white paper, but prescribing no quality or thickness, they may be printed on plain white paper of unusual thickness. The court said: "The object of the statute undoubtedly was to secure the privacy of the ballot. But if a voter uses a ballot which comes within the letter of the statute, his vote is not to be rejected because the quality or grade of the paper upon which it is printed differs from that of others, which also come within the

H

consisted in putting off an action, not in making a wrong decision." Does he mean to intimate that the scriptural judge is a type of modern judges or of some modern judges?

He says "Lords Kenyon and Ellenborough tried cases at the rate of twenty-five a day, The very last day that Lord Ellenborough sat at Guildhall when he was laboring under great infirmity and weakness, he tried seventeen defended cases," does he hold up such despatch as an example to be imitated in these modern days? A judge who at tempted to follow the abitrary methods of the judges named would shock the public sense of justice and would be speedily impeached as unfit to wear the ermine.

He says "the right of appeal, the chances of a new trial, the deliberations of courts especially in the case of a capital offense, put off punishment to such a time that its infliction seems to be a cruelty." Should there, then, be no right of appeal, no chance for a new trial, no deliberations of courts in capital cases? Should lynch law take the place of the slow and deliberate methods of modern courts ?

He refers to several cases which were pending in the courts before final decisions for many years. They were exceptional cases and by no means typical law suits. Most law suits are brought to a termination with all the speed any reasonable person could expect or desire, and when they are not, the judiciary is not to blame. There are motions and counter-motions, demurrers, answers, amendments, appeals upon all sorts of questions, delays and postponements on account of deaths, engagements of counsel and absence or sickness of witnessss. How can all this be helped? The judges cannot help it without the exercise of arbitrary power which in this country would not be tolerated. A party unjustly attacked by a law suit has the right to defend himself by all the methods the law places at his diposal, and among them is delay so far as he can legitimately obtain it. Like a nation taken at a disadvantage by a powerful adversary in war, he may adopt the Fabian policy of delay and thus weary out and circumvent an antagonist seeking to enforce what he believes to be an unjust claim. The courts are powerless to prevent this, and always will be and always have been except by the exercise of arbitrary power limited only by the will and whim of the presiding judge. If the parties desire a speedy settlement of the controversy, they can usually have it. They can arbitrate, or an action may be commenced and referred, and speedily tried, or the action can, without much delay, be tried at a regular term of some court. There need be no great delay unless one or both of the parties desire it. He says "the doubting Lord Eldons are the curse of suitors." Is that really so? Was Lord Eldon, the greatest of judicial doubters, really a curse to suitors? Is the painstaking judge who carefully scans all arguments, examines all points, weighs all doubts, solves all difficulties, and thus, slowly it may be, reaches a conclusion, a greater

curse than one whose decisions, rashly, hastily and immaturely made, are apt to be erroneous and liable to be set aside ?

If

He says "slight excuses are accepted more readily than they formerly were for putting a case over to the next term " and intimates quite plainly that judges are in the practice of putting cases over the term so as to relieve themselves from the labor of trying them and imposing that labor upon another judge. In this country trials have always been postponed for substantially the same causes for which they are now postponed. Are there trial judges who postpone causes for the sole purpose of shirking labor and imposing it upon some other judge? Such a shameful practice has never come to my observation and cannot exist to any great extent. it does exist it cannot be too strongly condemned. Let the trial judges rise to explain. He says when a defendant once more reaches the highest court upon a second appeal, "he may find a distinguendo, and that that court did not mean quite what he thought they meant " upon the first appeal. What of it? Who is to blame? A case is frequently on one side or the other of a very narrow line, and a very slight change in the facts may take it from one side and place upon the other. Shall the court keep it upon the wrong side for the sake of speedy justice, and thus make a wrong precedent?

He seems to complain that many cases are several terms tried before a final judgment which will stand is obtained. How can that be helped? Judges, even the wisest and greatest, are not infallible, and their errors must be corrected, and delays thus occasioned are unavoidable.

He says "there is often an understanding between the court and the parties at the trial which cannot be put upon paper, and which has most to do with the merits and with a just decision. Hence an appellate court, while it has more time for deliberation, sometimes misses the truth of the case." This is really quite wonderful! What kind of an understanding can that be, fleeting as a ghost, passing over a case like a shadow, which cannot be caught so as to place it upon paper, and yet influences a just decision upon the merits? Of course appellate courts cannot take account of such an attenuated, invisible understanding as impalpable as the imponderable ether which is supposed to fill all space, and thus necessarily they must decide without reference to it, and justice may thus be delayed or defeated. But there is no help for it.

He says "appellate courts seem at times to care more about making precedents than about deciding the case in hand justly. This comes from the fact so often discussed that our law is largely judgemade law. Instead of being guided by the rules of codes of law, or by sound judgment as to the merits of the case, appellate courts are constantly searching for precedents in other cases and are anxiously making a precedent out of the case in hand. When a case is argued, the question is not whether justice was done in the court below; but it may be whether some witness said something which might be con