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opposite to the banner. A rope led from one corner of the bottom to an awning post on the sidewalk, and one running from the other corner of the bottom was fastened to the sill of a window of a house. The jury found that the banner was an object likely to frighten horses ordinarily gentle and well trained. The banner had been up a considerable time. In an action by the plaintiff to recover damages sustained by being thrown from his buggy while his horse, which had been frightened by the banner while passing under it, was running away, held, that the defendant was liable. The court said: "The argument presented by the defendant is this: That it is not the duty of a municipal corporation to remove objects suspended over the street, fastened to supports wholly outside of the street, if they are elevated so high as not to actually obstruct the use of the road-bed or sidewalk. In this State the proposition, as stated, has never been approved by any reported decision, nor have I been able to find any rule or authority which supports the argument. I think the doctrine contended for was repudiated in Hume v. Mayor, 74 N. Y. 264. In that case the erection complained of as an obstruction to the street was an awning made of a permanent roofing of boards over the entire sidewalk, resting against the building and supported on the outer line by wooden posts standing in the ground, near the curb-stone, and was used wholly for private purposes. This was held to be an unauthorized obstruction, or an encroachment upon the street, and the city was held liable to a person injured by its fall, for the reason that it was the duty of the city to remove it after notice of its erection. In the opinion of the court, no point was made of the circumstance that a part of the structure was supported by a post standing in the street. The court'referred to several Massachusetts cases, with approval, where hanging objects were supported by fastenings in the face of the buildings which were standing on the line of the street, which were held to be unlawful obstructions. The cases to which I refer are, Pedrick v. Bailey, 12 Gray, 161; Day v. Inhabitants of Milford, 5 Allen, 98. The court, in commenting on these cases, said they are precisely in point upon the question whether such a structure, if in a dangerous position or condition, is a defect in the street, which a municipal corporation, in pursuance of its general duty, is bound to remove or repair. It has been repeatedly held that it is the duty of a municipal corporation to remove objects deposited upon the streets, the natural effect of which is to occasion accidents, frightening horses of ordinary gentleness, although the objects were placed wholly outside of the traveled part of the road-bed. In Eggleston v. Columbia Turnpike Co., 18 Hun, 146, the court remarked: The more common causes of injury and liability are structural defects or means to repair the road-bed; but a road may be also rendered unsafe, with consequent liabilities therefor, by unsightly objects placed or permitted to remain upon it, which are calculated to frighten animals employed thereon.
See also Sherm. and Redf. Neg., & 388; Morse v. Richmond, 41 Vt. 435; Winship v. Enfield, 42 N. H. 199; Dimock v. Suffield, 30 Conn. 129; Bennett v. Lovell, 18 Alb. Law. Jour. 303; Harris v. Mobbs, id. 382. We are unable to discover any sensible reason for holding that an object permanently suspended directly over the travelled part of a highway, although fastened to supports outside of the limits of the same, is not an obstruction to travel, if it naturally tends to frighten horses of ordinary gentleness. Such an object drives travel from the street over which it is suspended, because discreet persons will avoid the risk and danger incident to an attempt to pass under the same. It endangers travel and makes it perilous to all travellers riding in conveyances drawn by horses. Such an object placed in a place so conspicuous as this banner was, within the plain sight of horses, is to be distinguished from objects which are suspended over sidewalks and fastened to the face of a building, like a sign or a bracket fastened in the face of a building, on which traders display their goods, or a show-case standing in front of a store. In many of the cases cited the argument is rejected that a road-bed can only be rendered defective by something in or upon the road itself, as being narrow and unreasonable. See Norristown v. Moyer, 67 Penn. St. 365; Grove v. City of Fort Wayne, 45 Ind. 429; S. C., 15 Am. Rep. 262.”
In Pilgreen v. State, 71 Ala. 368, it was held that when goods are forwarded through an express company, by instructions of the purchaser, marked "C. O. D.," the carrier is the agent of the purchaser to receive the goods from the seller, and the agent of the seller to collect the price from the purchaser; and the sale is complete when the goods are delivered to the carrier. The court said: "Upon all sales of specific goods in the possession of the vendor, the contract is complete when the buyer and seller agree; the property in the goods then passes to the buyer, and the risk of loss by accident, or from any other cause than the fault or negligence of the seller, is cast upon the buyer as an incident of ownership, though actual possession may not pass, and he may not be entitled to it until he pays the price, or performs some other like stipulation. 1 Pars. Cont. (6th ed.) 525. An illustration given in some of the books is, if a man sells his horse for money, though he may keep him until he is paid, yet the property of the horse is in the bargainor or buyer.' When buyer and seller are distant from each other, the delivery of the goods to a carrier by the seller, in accordance with the specific request of the purchaser, is a delivery to the purchaser. 1 Pars. Cont. (6 ed.) 532; Benj. Sales (3rd Am. ed.), § 181. Applying these settled rules of the law of sales of personal property to the facts, the transaction cannot be located at Columbiana. All the dealings between the buyer and the seller were at Calera. There the offer of the buyer was received, accepted and acted upon, and there every act was done, which it was intended the seller should do.
The general property in the thing sold there passed to the buyer, by the delivery to the carrier of his own appointment, though he could not entitle himself to possession until he paid the price to the carrier. The carrier was his agent to receive the thing sold at Calera, and was the agent of the seller to receive the price. It would have been a neglect of duty, as a collecting agent, rendering the express comyany liable to the seller, if there had been a delivery of the whiskey without payment of the price; and if possession had been wrongfully obtained, it may be, the seller could have reclaimed it. The general property however passed to the buyer by the delivery to the express company at Calera; the risk of loss then passed to him; though there may have remained in the seller a special property, and though the buyer could not, without the payment of the price, entitle himself to the absolute property and to the actual possession. 'In law,' as is observed by Mr. Benjamin, 'a thing may in some cases be said to have in a certain sense two owners, one of whom has the general, and the other a special property in it.' Benj. Sales, § 1. And this occurs in sales of personal property, when the bargain is struck, and the payment of the price is intended to be simultaneous with the delivery of possession. The seller has a lien on the property for the price, and the right of possession until it is paid. A sale, which will be in violation of the statute under which the conviction was had, must, within the designated locality, pass the title; a sale made in a different locality, where the liquor is set apart and delivered to the purchaser, or to a carrier for him, passing title, is not within its words or spirit. Garbracht v. Commonwealth, 96 Penn. St. 449; S. C., 42 Am. Rep. 550." This is contrary to Baker v. Bourcicault, 1 Daly, 28. The Supreme Court of Vermont stand equally divided on the question. We believe the Alabama doctrine to be wrong.
In Morton's case, Pennsylvania Common Pleas, Dec. 1884, 16 W. N. C. 395, a citizen of New York committed a criminal offense in Pennsylvania, and fled into the State of New York, whence he was by artifice and force brought back into Pennsylvania, and arrested, and after hearing upon habeas corpus was remanded by the Court of Common Pleas to the custody of the sheriff; thereupon the governor of New York formally requested the governor of Pennsylvania, if consistent with his ideas of justice and executive power, to cause the release of the prisoner; and the governor of Pennsylvania, in a communication to the president judge of the said Court of Common Pleas, disclaiming executive power to order such discharge, and recognizing the power of said Court of Common Pleas to act in the premises, requested the said president judge to cause the release of the prisoner. Held, that in the exercise of the undoubted power and discretion of the Court of Common Pleas, and in the exercise of that comity, which does now and ought always to exist between adjoining State in this government, the Court of
Common Pleas would order the release of the said prisoner. The court said: "The questions involved in the determination of this case are new. * ** The question is therefore one of comity between the State of New York and the State of Pennsylvania. Every sovereign State is independent of every other in the exercise of its judicial power, and one of the purposes of this judicial power is to punish all offenses against the municipal laws of the State, by whomsoever committed, within its territory. This independence and sovereignty of the several States exists as truly as does the independence and sovereignty of the United States from that of a foreign State or sovereignty, subject only to the powers expressly conferred by the States upon the general government. It follows from this that there is no rightful authority or power on the part of one State to invade the territory of another State for any purpose whatsoever, except it be given by the Constitution of the United States. And the power to extradite fugitives from justice from one State to another is expressly given by the 4th article, section 2, Constitution of the United States, and the mode regulated by the act of Congress of the 12th of February, 1793. But the facts in this case show that the prisoner was not brought into our jurisdiction in pursuance of the mode thus regulated by law. That the manner of his arrest and the means employed to bring him out of the State of New York and within the State of Pennsylvania constitutes the crime of kidnapping at common law will not be denied; that it was in express violation of the statutes of the State of New York, punishing the crime of kidnapping (vide Penal Code of New York, sec. 211), will not be disputed; that it would be so held and construed by the courts of that State under the statute cannot be doubted, since the decision in the case of Hadden v. People, 25 N. Y. 373. If the power to surrender the prisoner was vested in the executive of the State and he refused to deliver him, no legal power exists anywhere to compel him to do so, even if he were a Commonwealth v. Dennison, fugitive from justice. 24 How. 66. And the same we claim is true if we
should refuse to release the prisoner upon the demand of the executive department of the State of New York. No power but that of force and war could compel his release. This therefore brings us to face the importance of the question, shall this prisoner who stands indicted for violation of law within our jurisdiction be set at large, only from considerations of utility and mutual convenience of the States of New York and Pennsylvania, ex comitate ob reciprocam utilitatem. We are not wholly without precedent however. In Dow's case, 6 Harris. 37, Chief Justice Gibson, a greater judge than whom never lived, said, 'Had the prisoner's release been demanded by the executive of Michigan, we would have been bound to set him at large.' It was not shown nor alleged in that case that any law of Michigan had been violated. Indeed it is a question whether the prisoner, Dow, was within the ter
ritorial jurisdiction of the State of Michigan when taken. But in this case the statutes of the State of New York have been violated, aside from the invasion of her territory. Shall it be said then that a court sitting to administer and vindicate the law in this case shall close its eyes to the violation of the law by which the prisoner is brought within its jurisdiction? That the end to be accomplished justifies the means employed cannot and ought not to become a maxim of legal jurisprudence. To deny this demand for the release of the prisoner, would be to encourage the violation of that comity which does now and ought always to exist between adjoining States in this government. It would be, in our judgment, a precedent full of evil consequences to the citizen in his right to be secure in his liberty. When one violates the law and flees from justice, the Constitution of the United States and the act of Congress thereunder afford a complete remedy for his arrest and return. That occasionally the remedy may be too slow and the guilty escape, can not avail in this case and overcome what to us, upon careful consideration, seems a plain duty.”
OLD CASES REVIVED.
THE TRIAL OF LORDS WARWICK AND MOHUN FOR THE MURDER OF CAPTAIN COOTE.
AMOUS cases usually derive their celebrity either from the importance of the issue or the intricacy and mystery of the facts, but there is a third class in which the interest arises from the sudden and powerful side-light they throw upon life and manners in by-gone times. Of such is the trial which we have now to sketch. Thackeray, with the instinct of a great master, has not failed to avail himself of its strong colors in "Esmond," to our thinking the most perfect of his works, and no part of that exquisite tale is more striking than the chapter in which he describes the duel between Castlewood and Mohun. Although taking the principal incidents from our present trial, he has used the novelist's license to mix them with circumstances drawn from the subsequent encounter between Mohun and the Duke of Hamilton; a license which is, of course, not open to us in our more humble capacity of chroniclers of facts.
In the spring of 1699 the House of Lords assembled in solemn conclave to try two members of their august body, the Earl of Warwick and Lord Mohun, for the murder of Captain Coote. Mohun was the most notorious "hard case" of an age prolific in rakish scoundrels. Once before he had appeared at the same bar on a similar charge. Whilst attempting with a worthy associate to abduct the famous actress, Mrs. Bracegirdle, her protector, Captain Mountford, had been run through the body, but as Mohun had not actually dealt the fatal blow, his peers, by a vote of sixty-nine to fourteen, acquitted him of the crime, and he was restored to a society of which he was the pest.
Warwick had not attained an equal distinction of infamy in public estimation, but there was, if our reading of the facts be correct, little to choose between them. Both were emphatically men about town," and passed the greater part of their waking hours at the card table, in the bagnio, or running amuck through the streets of London with the notorious and dreaded Mohocks. Amongst their chosen associates was one Coote, an admirable specimen of the "led captain," familiar to the reader of the novels of that day; a genus represented amongst ourselves by the toady and tufthunter. Coote was Lord Warwick's particular parasite, and as we have said, it was for his death that these two worthy noblemen found themselves arraigned. On March 28, 1699, the lords filed in stately procession into Westminster Hall, duly attended by clerks, masters in chancery, sergeant-atarms, ushers and the common law judges; the lord, chancellor, Somers, Macaulay's great favorite (who was also lord high steward for the nonce), following in solitary dignity in the rear. All standing uncovered the royal commission was read, and after a long perusal of official records in barbarous Latin the Earl of Warwick was brought to the bar. The lord high steward shortly addressed him, informing him that he stood indicted by the grand jury of Middlesex, and that whilst he could not, as the law then stood, have the assistance of counsel upon matters of fact, no evidence would be received against him but such as was warranted by law, no weight would be laid upon the evidence but such as was agreeable to justice, and that he might assuredly promise himself throughout the whole trial to find all the candor and compassion consistent with impartiality. (4 Beyond that nothing is to be expected; their lordships can never so far forget themselves as to depart from what is right, and to draw the guilt of blood upon their own heads; but if your lordship is innocent you are safe." The indictment was then read in English, and the prisoner pleaded not guilty, electing to be tried in the usual formula - "by God and by his peers."
For the Crown, Sergeant Wright opened the pleadings, and the attorney-general (Sir T. Trevor) stated the evidence briefly and clearly. The first witness was Samuel Cawthorne, the "drawer," or in modern parlance, bar-tender, of the Greyhound Tavern in the Strand. He proved that on the night of Saturday, October 29, 1698, Warwick and Mohun were in company at the tavern with four officers, Captains Coote, French, Dockwra and James. Coming down stairs about midnight they called for sedan-chairs to go home. Witness went to fetch chairmen, and on his return to the house heard swords clashing. Entering the bar-room he found the revellers divided into equal parties on each side of the bar, Warwick, Mohun and Coote forming one faction, and the other three opposing them. He heard Coote say, with a vigorous expletive, that "he would laugh when he pleased, and frown when he pleased," but on witness' entry the
should be admitted to the house, and that he should be denied all inquirers, but in about half an hour James and Dockwra arriving, Warwick himself let them in. As to the swords it appeared pretty clear that Warwick's was the only one
swords were put up. Coote, violently excited, was hot for fighting, but Warwick and Mohun threatened to send for a file of musketeers. They ultimately persuaded him to get into a chair, and each of them also taking chairs the three started off together. The other three quickly followed, Dock-bloody, and also that it was the only broad sword, wra exclaiming "they did not care a farthing for though it must not be forgotten that nothing was them, they would fight them at any time." Caw- seen of Mohun after the affray, nor was his sword thorne gave his evidence in a most confused and ever accounted for. contradictory manner, and got roughly handled on all sides, especially by the lord high steward.
The surgeon who examined Coote's body after death deposed to finding two wounds, one on the breast about one-half inch wide and five inches deep, and the other under the ribs, made from be
but though much pressed, he would not say that the difference in breadth denoted that the latter wound had been made by a broad sword.
The next proof was that of the chairmen, the first being Browne, who carried Coote. He deposed that Coote gave orders to be taken to Leices-hind, and about one inch wide and six inches deep, ter Square. Warwick and Mohun protested and begged him to go home with them, and "leave it alone till the morning," but he would not hear them. On their way Mohun stopped the chairs, and again resumed his endeavors to pacify Coote, but whilst they were talking the chairs of the other three passed by, and Coote instantly ordered his bearers to take up and hurry to the square, threatening to run them through if they went no faster. Arrived at the square Mohun paid the fares, and the three comrades entered the enclosure. Honest Browne filled and lighted his pipe, and was just ready to wend his peaceable way homeward when he heard a cry for chairs. With much ado getting his cumbrous vehicle over the railings, and making for the spot whence the cries proceeded (it being a very dark night and impossible to see) he found two men holding up Coote in their arms, and crying out "My dear Coote! My dear Coote!" Coote was covered with blood. They endeavored to put him in the chair, promising Browne £100 to❘ make amends for his ruined sedan, but Coote would not be put in, and in the course of their struggles the chair was broken. Then the watch was called, who strictly following Dogberry's time-hallowed advice, "would not come near, for they said it was out of their watch;" "so," continues Browne, "I staid about half an hour with my chair broken, and afterward I was laid hold upon, both I and my partner, and we were kept till next night eleven o'clock, and that is all the satisfaction I have had for my chair and everything." Of one thing Browne was very certain, viz.: that Warwick was not one of those holding Coote up. Amongst the other chairmen we need only notice the evidence of Applegate, who, after carrying Mohun to the square, heard the second call of chairs, and took up Captain French, desperately wounded. Him they carried to the bagnio in Long Acre, Warwick following in another chair. When they got to the bagnio French was so weak with loss of blood that he fell to the ground.
Next came Pomfret, the servant at the bagnio, who let Warwick and French in. He deposed that Warwick's sword, which he still held in his hand, was covered with blood, whilst French's sword was clean. The surgeon was called up to dress French's wounds, and Warwick gave strict orders that none
Some minor evidence closed the case for the crown, and Warwick opened his defense. He alleged the fatal quarrel to have arisen from an unprovoked insult given by Coote to French, and charged the death on the latter. He referred to the trial of French, James and Dockwra at the old Bailey, when they were convicted of manslaughter only, and dwelt with somewhat suspicious emphasis upon his long friendship with the deceased, and the many favors he had conferred upon him, amongst others lending him a hundred guineas toward buying an ensign's place in the guards. His evidence consisted merely of witnesses to prove this intimacy, such as that he used constantly to pay Coote's reckoning, and once settled the tailor's bill when that irate tradesman had arrested the gallant captain. From such an expensive intimacy he might be well content to be delivered, but it does not seem to have occurred to the prisoner that the evidence could be looked at from this point of view.
When however Warwick proposed to call Captain French a battle royal arose amongst the lawyers. The objection of the crown was that a man convicted of felony, and not pardoned, was incompetent to testify, and that his having the benefit of clergy did not remove this disability. The point was most elaborately and learnedly argued by Sir Thomas Poroys for the prisoner, and by the attorney-general for the crown, and the peers calling for the advice of the judges the lord chief justice, Treby, delivered a long opinion, going into the whole subject of benefit of clergy, and concluding against the competency of the witness. Another point then arose, Warwick submitting that he being on Coote's side in the affray could not be held guilty in an equal degree with those who were his opponents, but this was too flimsy, and soon fell through.
Ultimately the prisoner submitted his whole defence without further cominent, and the solicitorgeneral (Sir John Hawley) rose to reply. His voice was too weak to be heard by the more distant peers, and there were calls for some one else to sum up, especially for Mr. Cowper (whose acquaintance we made in our last sketch). Mr. Solicitor however did not suffer himself to be sat upon, and acquitted
himself of his task very sufficiently. After succinctly reviewing the evidence he referred to the nature of the wounds and the state of the prisoner's sword, and threw cold water upon the David and Jonathan business, observing that the prisoner appeared much more concerned for Captain French, who, as he now alleged, had killed his friend, than for that friend whom he had abandoned dying on the field. Upon the law he insisted that no satisfactory evidence having been given by whose hand the fatal blow had been struck, Warwick, being present and participating in the fighting, must incur an equal share of the guilt of murder.
At the close of the solicitor-general's speech the lords retired to their house. After two hours' deliberation they returned to the hall and gave their verdict, each peer rising in order of precedence, from the prisne baron upwards, and uncovered, with his right hand upon his breast, pronouncing his judgment thus: "Not guilty of murder, but guilty of manslaughter, upon my honor." The lord high steward then demanded of the prisoner what he had to say why judgment of death should not be pronounced against him according to law, upon which Warwick claimed the benefit of his peerage, according to the statute of Edward VI. This was allowed him, and with a gentle reprimand from the lord high steward, who reminded him that he could not have the benefit of peerage twice, Warwick was discharged, and the house adjourned.
Next day Mohun was put upon his trial, but the proceedings being a mere recapitulation of the case against Warwick need no detailed mention. We only notice that the very fact of his disappearance immediately after the duel, so suspicious in itself, turned out in his favor, for there being no evidence to prove that he entered the square and shared in the fight, he escaped any condemnation whatever, being unanimously found not guilty either of murder or manslaughter. Thus the greatest scoundrel unhung in England escaped scot-free.
Upon his acquittal he made a short speech, promising the lords that he would make it the business of the future part of his life to avoid all things that might bring him into such a position. again. He kept this promise with such fidelity that a few years after he forced the Duke of Hamilton, a comparatively respectable man, into a duel, and falling mortally wounded, retained sufficient malice in the moment of death to shorten his sword and drive it through his noble opponent's heart. Thus the devil got his own after all.*
Upon the principal case; whilst the verdict of the lords was only what might be expected from a miscellaneous body of men in those times, and such as would to-day be rendered in similar circumstances by a Kentucky jury, our own hypothesis of Coote's death is that he was stabbed from behind either by
NOTE-It is fair to state that there is another account of Hamilton's death which attributes it to Mohun's second, Macartney, who, seeing his principal killed, came up and stabbed Hamilton as he stood over the dead body. We have given the one which appears to us best authenticated.
Warwick or Mohun, both glad of a convenient opportunity to rid themselves of an expensive and turbulent hanger-on. For further information upon the whole matter our readers may consult Swift's Letters to Stella, Burnet, Hamilton, the State Trials, in short every contemporary work of history or memoirs.
PRESUMPTION OF MARRIAGE.
A jury would have been warranted under the ciroumstances of the case to have inferred an actual marriage, and the court below had sufficient ground to draw that conclusion; and as they have drawn it, and their decision being a substitute for a verdict, we will uot disturb it. Now it is apparent that the court found a marriage in fact where in all probabilities no legal marriage existed. The chances are that the parties considered that on the death of Guest their marriage became valid by their subsequent recognition of it as valid. That this would not constitute them husband and wife is clear on principle, and has the sanction of the United States Circuit Court for the Eastern Circuit of Missouri. Holabird v. Atlantic Ins. Co., 12 Am. Law Reg. (N. S.) 566; S. C., 2 Dill. C. C. 167. In this case Judge Treat, in charging the jury, said:
The attention of the jury is directed to the difference between a mere attempted recognition of a past void marriage and a subsequent expression of mutual and then present consent to be husband and wife." The cases of Rose v. Clark and Jackson v. Clow are very similar in their facts, and in each case an actual marriage was found and the finding sustained on appeal. The case of Hynes v. McDermott, recently (1883) decided by the New York Court of Appeals is even a stronger authority in support of the proposition that the marriage may be inferred from cohabitation against the probabilities of the case. The action was ejectment. The plaintiffs claimed to be the widow and legitimate children of one William R. Hynes, and their right to recover the real property depended upon their substantiating that claim. The name of the widow before alleged marriage with Hynes was Saunders. The facts of the case are very clearly stated in the opinion of the court. "It appears, says the court, "that Mrs. Saunders in May, 1871, had left the Langham hotel and was living in lodgings at 169 Cleveland street, London. It was proved that on the night of Derby day, in that month, Mr. Hynes visited her, and desired to remain with her, and she refused to consent without marriage aud complained that he had not kept a promise of marriage. He said he did not believe in the marriage ceremony or the mumbling of priests. He thereupon, in the presence of wituesses, took a ring from his pocket and gave it to her, saying that if she would wear the ring and be true to him he would consider her his wife as much as if they had been married in church. She accepted the ring on these conditions, and he remained there that night, and from that time until his death, openly lived and cohabited with her. At the time of this occurrence Mrs. Saunders was pregnant of the eldest child, William Ross, born in the following December." (He was one of the plaint
iffs and was adjudged to be legitimate.) The court continues: "This evidence seems conclusively to establish the commencement of an illicit intercourse between Mr. Hynes and Mrs. Saunders, prior to May, 1871, and also that the cohabitation did not commence with a marriage valid by the English law."