Page images
PDF
EPUB

he was accustomed to carry about his person, and people of my time could never satisfactorily ac thus taking the oath. The judge at the same count for such an effect from such a cause, but I time remarked that strictly speaking a Parsee can understand why the kissing of some of our should be sworn holding the tail of a cow. Tyler court-room Bibles should produce a feeling, disin his History of Oaths says that Sir James Mac-torting the features as much as weeping." In intosh told him that at Bombay he once had a People v. Cook, 4 Seld. 84, an oath on Watt's cow brought into court for this purpose. This Psalms and Hymns, the affiants supposing it to would seem a good way to swear a milkman, but be the Bible or New Testament, was held binda Parsee ought to be sworn upon a grammar. ing.– Albany Law Journal. The twelve judges, in Morgan's case, 1 Leach. 24, held that à Mahometan might swear upon

the

THE GENESIS OF PERJURY. Koran. In Ormichund, v. Barker, 1 Atk. 21, it was held that a Gentoo might be sworn by touch- We shall probably never see, and perhaps we ing the foot of one of his priests. In Eutreh- have no right to expect, the advent of time when man's case, Cur. & M. 248, it was settled that a Parliament will treat things just in exact probroken china saucer is essential to a Chinaman's, portion to their real place and importance. oath. The Israelite swears upon the Pentateuch What is personal will claim and get in most or Old Testament, with covered head. The popular assemblies, our own not accepted, preceBedouin grasps the middle tent pole and swear dence over what is more material, but not so sal. bythe life of the tent and its owner. One form

One form ient and conspicuous; the vivid, obtrusive interofsweyaring among the Scythians was by the est of the moment will push aside things of roal hearth. In an interesting paper by Mr.s more permanent consequence. We have not far James L. Angle, of Rochester, N. Y., on “the to look for examples of this tendency, which is Supernatural in the Administration of Justice," so natural as scarcely to merit censure. If Parhe says: “In his treaty with the king of Sodom, liament were guided solely by reference to the Abraham swore by the uplifted hand (Gen. xiv, intrinsic importance of things, it would have 22); in his treaty with Abimelech he swore by found, sooner or later, a little time for considerElohim (Gen. xxi, 23); and the Hebrews were ing a matter, the significance of which cannot be commanded to swear by the name of Elohim easily overrated. At Manchester, the other day, (Deut. vi, 13; x, 20). The angel in the Apoca- Lord Coleridge took occasion to tell the grand jury lypse is represented as combining the two-the that the crime of perjury was greatly on the inuplifted hand and the name of God (Rev. x, 5-6); crease. He had not in view merely local cirwhen standing on sea and land he swears that cumstances; for another judge, Lord Justice Bagtime shall be no longer. Jehovah is representedgally, speaking to the grand jury of Carnarvonas swearing by Himself (Gen. xxii, 16; xxvi, 3; shire, made much the same remark, expressing Ex. vi, 8; Heb. vi, 13-17); as swearing by His his regret that this oftence was now so prevalent. own life,' (Num. xix, 28), and by the uplifted If these judgments be correct--and there is no hand (Deut. xxxii, 40). *

* * Jacob swore reason to doubt that they contain an element of by the fear of his father, Isaac (Gen. xxix, 53), truth-they unvail a defect in the administraand Joseph by the life of Pharaoh (Gen. xi, 11-15). tion of justice to which all others are secondary. Erskine once fell in with a witness who insisted What is the good of Judicature Acts and amendon being sworn with the uplifted hand, because ing measures, if the very fountains of law are the angel in the Apocalypse was thus sworn. being thus poisoned ? It will be all in vain to "But,” said Erskine, "you are no angel; and seek to improve legal machinery if this internal then you don't know how he would have been deterioration, to which judges of experience tes sworn if he had stood on dry land, as you do.” We tify, be really going on. Lawyers of the old heartily sympathize with Mr. Angle in his ob- school will probably say that they are not surservations about "kissing the book.” He says; prised at this declension. It is, they will argue, “Tho custom of kissing the leather covering of a the natural, though mournful, outcome of the Bible prevails with us; usually the book has been changes which enable parties on the record and in use for that purpose for many years; it has persons interested generally to give evidence. passed through thousands of dirty, perhaps filthy. It was predicted, when such a change was sug: hands; and been pressed to 10,000 lips, many of gested, that perjury would become rife; and it them redolent with tobacco juice or reeking with will be said that we are now only reaping as we other unsavory liquids, some of them bloated, sowed in 1843, 1851, and 1853. This explanation sore and corrupted, by disease and debauchery. is more plausible than satisfactory. It is not conI have seen Bibles in use for this purpose whose spicuously witnesses who are « interested," in stained and begrimmed covers looked like fit me- the legal sense of the term, and who once might diums for contagion, and emblematic of any have been objected to as incompetent, that are thing but purity and truth; and the osculatory reckless in regard to what they say in the box. part of our form, while it might make the gorge Oaths are not more respected in criminal cases, risc, would certainly have nothing sacred or sol. where a remnant of the old rule survives, than emn in its influence. We read that when 'Jacob in civil cases, from which it is banished. It is kissed Rachel he lifted up his voice and wept" not at all certain that if the stupid exclusive (Gen. xxix, 1); why he wept I recollect hearing system which shuts the mouths of almost everydiscussed in my younger years, and the young one who knew anything about the matter in dis pute were in full force, fewer perjuries would be "Bracton”-is an excellent safe-guard of rogues. committed than is now the case. At any rate, It is not in practice so easy as it might, at first it would be paying dearly for a slight diminu- blush, seem, to prove that an averment is at tion, to forego what are usually the most valu- once false and material. Probably, too, no acable indications of truth. We shall, perhaps, be curate note of what the witness said exists. told also that the vice is more or less due to the The enormous expenses incidental to trials careless, unimpressive, and barely decent way in for perjury also operate as an encouragement of which an oath is administered in the English the crime.

the crime. Nothing can be taken for granted in courts of justice. Mumbled or gabbled over by a criminal proceeding. The circumstance that some subordinate official, no one heeding what is a jury in a civil case by implication gave it as going on, the oath loses its force over those whom their opinion that a witness swore falsely, does it is intended to affect, and who, it is supposed, not conclude the matter at the Old Bailey or at would speak under a less keen sense of responsi- | the Assizes. Everything must be proved there; bility if their evidence were prefaced by a bare nothing can be taken for granted; and this rigaffirmation. We cite this criticism for what it orous principle necessitates, especially in prois worth. There is certainly a contrast, not ceedings for perjury, heavy outlay. The Tichwholly to our honor, between an oath as admin- borne trial, which cost the nation many thouistered in foreign courts by the presiding judge, sands of pounds, has been an evil precedent, and and the same ceremony as slurred over in an oft- has discouraged the instituting of proeedings for hand way in an English court. If evidence is to perjury in circumstances in which the crime has be taken under oath-if we are to abide by the been obviously committed. What happens almaxim, In judicio non creditur nisi juratis—the ac- most every week is not at all edifying. A witcessories should not be such as to suggest to a ness steps into the box and makes statements witness the thought, “This is a mere form; every: about transactions said to have taken place in body in.court, from the judge to the usher, treats South America or Australia. The story is provit as such." There is, however, no reason to sup- ed to be false; and the jury unmistakably show pose that things would be very different if tak- that is their view of it. No one, however, cares ing an oath were made to look a little more im- to go to the expense of making protracted inquirportant than shaking hands, bowing, or any sec- ies into these distant countries, and of procuring ular act of politeness. It would be inventing a and bringing over the necessary witnesses, and far-fetched, unsubstantial explanation, to sup- so the offender goes unpunished, to the scandal pose that the unseemly manner in which wit- of public morals and the encouragement of the nesses are sworn is at the bottom of much of the evil-disposed. When a perjurer is brought to evil of which Lord Coleridge and Lord Justice justice, his fate is not calculated to operate as a Baggally complain. Make the ceremony as im- striking warning. Though his offence may be pressive as you can, it will fail to affect very as heinous in the eye oi a moralist as murder, deeply many minds. False witnesses who never though it may be committed with a view to destudied casuistry under Sanches or Escobar have stroying the character of the innocent, or robbing always had their little devices by which they a man of his property, the judge finds his hands palliated to their own satisfaction the crime they tied, and is forced to pronounce a totally inadecommitted. They kissed their thumbs insteadquate sentence. It is a significant fact, that of of the Book. They made mental reservations 13,130 prisoners committed for trial for indictwhile they repeated the formula prescribed by able offences in England and Wales, in 1879, law. There is no reason to think that this sort only ninety-one were committed for perjury or of sophistry is at all more common than it was, subornation? perjury; that only fifty of the or that any fresh appeals to men's consciences ninety-one were convicted; and that only three would put an end to it. What may be new, and of the fifty were sentenced to penal servitude. what is perhaps responsible for much loose testi- We need not as ume that perjury is more prevamony, is the knowledge more or less precisely lent than it ever before was. It is well known possessed by most people, that it is extremely that, in spite of the national character for downdifficult to convict a person who has committed right veracity, the commonness of this crime in perjury; that convictions for this offence are rare, English courts was always a subject of lamentaand that the punishment is at worst not very tion among our moralists. The pillory was severe. A man may go into the witness-box specially reserved for it until recent times. The and utter there a series of falsehoods in his own bishops actually met in 1754, to take counsel interest or that of some other person. It may how to cope with this crying sin. The profesbe plain to everybody who hears him that he sional perjurer, with the straw in his shoe, is as lies. Yet in ninety-nine cases out of a hundred prominent a figure as any in our legal history. he stands down in perfect safety. His sole In view of all this, we are not disposed to strain punishment, in all probability, will be a rebuke the remarks of Lord Coleridge and Lord Justice from the bench. As soon as the question of Baggally, and say that things are worse than prosecuting him arises, difficulties present them they were at any previous time. There is nothselves. It must be shown that he has deposed ing to show that the alterations, first largely to some statement which is material to the issue; introduced into the law of evidence in 1851, and and that qualification-said to have been due to extended, with misgivings in many minds, to a blunder as to the meaning of a passage in the divorce court in 1869, have led to an increase in perjury. After thirty years trial, of a liberal

SUPREME COURT RECORD. system ef evidence, no clear reason for retracing our footsteps can be adduced. But no one can (New cases filed since last report, up to May 17, 1882.] be acquainted with the inside of our courts without being aware of the enormous amount of pet

1157. George W. Moore_v. The Greenville Building

and Savings Association. Error to the District Court of ty perjury there, and which passes unpunished. Darke County. Men perjure themselves because they wish to

1158. Joseph Fisher et al. v. Louisa Schlosser. Error make good their claims or escape liability, to the District Court of Lawrence County. W., H. They do so because they are friendly to one of

Enochs and W. S. McCune for plaintiffs; O. F. Moore

and E. F. Williams for defendant, the parties, or because they have once incau

1159. John Campbell v. Phoebe B. Johnson. Error to tiously out of court told some one a certain story the District Court of Lawrence County. O. F. Moore and resolved to stick to it when subpoenead by aud Neal & Cherrington for plaintiff; John Hamilton an enterprising solicitor, or because they are

for defendant. vain and wish to figure in public proceedings.

1160. Continental Life Ins. Co. v. Andrew Hamilton.

Error to the District Court of Delaware County. SayThese motives will always operate, and cannot be

ler & Sayler and Jones & Lytle for plaintiff; E. T Popeftectually resisted. But men commit perjury pleton for defendant. also because they assume, with too much reason, 1161. Mary J. Selman et al. v. J. H. Selman. Error that they will not be punished, and this is a

to th District Court of Brown County. White, Mc

Knight & White for plaintiffs ; C. B. Fee for defendant. temptation which might be diminished by

1162. Wilber R. Smith et al. v. Hezekiah Bainum. means too obvious to require explanation.- Lon

Error to the District Court of Brown County. White, don Times.

McKnight & White for plaintiffs; W. W. Young for

defendant. PROFESSIONAL ADVERTISING.

1163. Wilber R. Smith et al. v. Taylor Manchester. Error to the District Court of Brown County. White,

McKnight & White for plaintiffs ; Thomas & Thomas It is well for the old attorney, after years of for defendant. struggle have given him fame, and a lucrative 1164. Theophilus P. Brown v. The Merchants' National practice, to descant upon the professional degen

Bank of Toledo et al. Error to the District Court of

Lucas County. Lee, Brown & Lee for plaintiff; Dodge eracy of the times if a young attorney resorts to & Raymond for defendants. printer's ink to inform the world that he is,

1165. William Bailey v. Jacob Stoneman. Error to where he is, and what he is; but the young at

the District Court of Cuyahoga County. R. E. Knight torney who is deterred by such antiquated pro

and A. T. Brewer, for plaintiff; Pennewell & Lamson

for defendants. fessional ethics and ingenious sophistry from do

1166. John Peters v. Isaac Peters. Error to the Dising so straight forward and sensible a thing

trict Court of Lawrence County. Ralph Leete, John reflects discredit'either upon his shrewdness in Hamilton and 0. F. Moore for plaintiff'; W. A. Hutch

ins and W. H. Enochs for defendant. detecting sophistry or his moral courage in fac

1167. Lewis Coster v. W. R. Hardnan et al. Error to ing an old and absurd prejudice.

the District Court of Greene Cuunty. T. E. Scroggy for Is a young man to sit down Micawber-like in

plaintift ; Little & Shearer for defendants. in the seclusion of his office and whisper to him- 1168. Jane E. Sanders v. Annie R. Smith. Error to self amidst its silence, "Here I am, let the world

the District Court of Jefferson County. W. P. Hays and come and employ me?” But, my dear young

Walden & Elliott for plaintiff. friend, did it never occur to you that it is a spe

1169. Charles E. Beardsley v. Jarvis Wing, Guardian,

&c. Error to the District Court of Putnam County. C. cies of presumptious egotism for you to suppose J. Swan, W. C. G. Krauss and E. N. Lamison for piai. 'iff. that the world even knows, much less cares any. 1170. Knickerbocker Casualty Insurance Co. v. N. E. thing about you; and that it is a species of Jordan, Administrator. Error to the District Court of moral cowardice in you to refrain from modestly dan, Jordan & Williams for defendant.

Hamilton County.. C. D. Kobertson for plaintiff; Jorannouncing yourself to the world as an attorney

1171. Irving W. Pope v. John Bleasdale. Error to at law? You thus simply do in one form what the District Court of Cuyahoga County, Ranney & Ranyour ethical stickler does in another. He has ney and J. M. Estep for plaintiff; A. J. Marvin for de

fendant. reached a point where he can attain the same end by other methods; by his appearance before the public and in the public print 'in connec- SUPREME COURT ASSIGNMENT. tion with celebrated cases, and in various other ways not yet open to you.

The profession of law in the times when, what we have termed antiquated ethics obtained, was

May 25th-No. 111. Bundy v. Opbir Iron Co. No. 112. strictly an honorable one and its followers being Simpson et al. v. Greenfield Building and Savings Associgentlemen of wealth, pursued it not as now for

ation. the purpose of earning a living; nay, it was

May 26th-No. 114. Coffin v. The Greenlees and Ran. even no less dishonorable to take pay for ser- som Co. vices than it was to seek an employment. J'oes

May 31st–No. 1117. Charles Stoddard v. The State of the modern advocate of the old honored custom Ohio. No. 1118. Jacob Ridenour v The State of Ohio. attest his sincerity by scorning to accept com

June 14th.-No. 1138. Nelson B. Stone et al. v. Henry pensation for his own services? If not, is it noble C. Viele, Treasurer. in him, having discarded half the rule himself, to disclaim the young attorney's right to dis

The Supreme Court adjourned Saturday last, card the other half?

until Monday next,

FOR ORAL ARGUMENT.

Olio law Journal.

0.

respects complying with the requirements of the statute in such case made and provided :

thereby making said claim a lien upon said COLUMBUS, OHIO,

Railway, and said indebtedness payable from de: MAY 25, 1882.

fendant to plaintiff. That said Railway com

pany has not paid such claim, or any part WE published last week, a sensibly worded thereof to said plaintiff; wherefore plaintiff article, entitled “Professional Advertising,” due prays judgment against said Railway company credit for which should have been given to the for said amount of fifteen dollars and forty-three American Law Magazine, of Chicago, one of our

cents, and interest thereon, from said 30th day valued exchanges.

of January, 1876.

"By Wm. E. GILMORE, his Atty.

On the day set for the trial of the cause, the The Supreme Court of the District of Colum- plaintiff in error, by his attorney, filed a motion bia, on Monday last, rendered its decision, af- to dismiss the action for reasons therein assigned, firming the decision of the court below in the among which is the following, viz:conviction of the assassin of President Garfield.

“Because there is no cause of action against Barring accidents, the execution will take place

the defendant alleged in the bill of particulars." June 30th, next.

The motion was overruled by the justice, to which the plaintiff in error excepted.

At a subsequent day the cause was tried to a RAILROAD-CONSTRUCTION-PAY FOR. jury, and after the evidence for the defendant in

error, all of which is embodied in the bill of exSUPREME COURT OF OHIO.

ceptions, was closed, the plaintiff in error moved

the justice “to withdraw said cause from the SCIOTO VALLEY RAILWAY COMPANY jury, and to dismiss said action, because there

was no evidence offered on behalf of the plaintiff DENNIS CRONIN.

to make out a cause of action against the de

fendant, and because the testimony of the plaint

May 9th 1882. iff showed that more than thirty days had 1. Under the act of March 31st, 1874, entitled "an act to elapsed between the alleged service of notice secure pay to persons performing labor and furnishing upon the company and the bringing of the materials in constructing railroads." (71 O. L. 51), a substantial compliance with the conditions of the statute

action.” This motion was also overruled and providing for the service of written potice upon the own- exception noted. er of the road is essential to create any obligation on the Plaintiff in error also asked the justice to part of such owner toward the person performing labor or furnishing materials under a contractor or sub-con

charge the jury that they must find for defendtractor, or to give to such person any right of action ant in case it should appear that the suit was against such owner.

.not commenced within thirty days from the 2. Where from the nature of the action defendant has notice that the plaintiff intends to charge him with the

time the notice of the claim was served upon possession of a written instrument, formal notice to the company. This charge, the justice refused produce the same at the trial is not essential as a founda- to give. tion for the introduction of parol testimony touching its contents.

At the trial, after proof of service of the no3. The limitation of time within which suits under tice upon the company, parol evidence of its this statute must be brought, applies to controversies contents was given against defendant's objection, arising between the contractor or sub-contractor and the person furnisbing niaterials or work, and not to rights of

without showing that the written notice had action on the part of the latter against the owner of the

been lost or destroyed, or that any demand had road.

been made upon defendant for its production. Error to the District Court of Ross County. The verdict and judgment were for plaintiff,

The defendant in error commenced an action and upon error the judgment was affirmed in against the plaintiff in error, before a justice of the court of common pleas, and the action of the the peace, on the 24th day of July, 1876. In latter court was in turn, affirmed by the district his bill of particulars he states his cause of ac

court. tion in the following language:

LONGWORTH, J. “The said plaintiff, Dennis Cronin, says, that The cause of action upon which suit was origthe firm of Spotts, Frank & Co., contractors for inally brought, was created by the act of March building a part of the Scioto Valley Railway, 31st, 1874, 771'0. L. 51), entitled "an act to sewas indebted to him, the said Dennis Cronin, cure pay to persons performing labor and furin the sum of fifteen dollars and forty-three nishing materials in constructing, railroads," cents, for work and labor bestowed by said and the solution of the questions raised in this plaintiff in grade-making upon the line of said court, depends upon the proper construction of Railway. That said amount is yet due to said its terms. These questions we shall treat in the plaintiff

, and is wholly unpaid. That on the following order: 30th day of January, 1876, plaintiff filed with 1st. Was the bill of particulars sufficient? defendant, the Scioto Valley Railway Com. 2nd. Was parol evidence of the contents of the pany, a notice of said claim, in writing, in ali notice properly received ?

3rd. Was the written notice sufficient under “within thirty days from the date that said perthe statute ?

son ceased furnishing said materials or laboring 4th. Did the lapse of more than thirty days on said road as aforesaid, stating in said notice bar the right of action ?

the kind and amount of materials furnished and I. The rules which govern pleading in courts labor performed, the time when, the contractor of record at common law and under the code of or sub-contractor for whom, and the section or civil procedure have never been strictly applied place where on the line of the road the labor in proceedings before justices of the peace. From was performed or materials were furnished by the earliest days a very liberal practice, has ob- him as aforesaid, and the amount due him theretained in this State in reviewing proceedings for.". had before these officers, where the question of A substantial compliance with these requiretheir jurisdiction is not involved. A different ments is unquestionably necessary to create any course would be unreasonable and impracticable, liability on the part of the company, their oband, to use the language of this court in Hard- ject being to apprise the company of all facts necing v. Trustees of New Haven Tp., 3 O. R. 232, essary to a thorough understanding of its rights "would not only destroy their usefulness, but and obligations in respect to its contractor and render them in a great degree deceptive and the person furnishing the materials or labor mischievous."

under him, with the latter of whom it had, up In the case before us the bill clearly informed to the time of notice, made no contract and asthe defendant of the nature of the cause of action sumed no obligation. sued on and the amount for which a recovery The notice served upon the company was as was sought.

follows:We are not disposed to quarrel with it because "To THE SCIOTO VALLEY RAILWAY COMPANY: it is not as complete in its statement of facts as You are hereby notified that there is due to me, might be required of it, had it been filed as a pe- and unpaid, from Spotts, Frank & Co., contracttition in a court of record.

ors, the sum of fifteen dollars and forty-three II. It is undoubtedly true that secondary evi-cents, for work and labor bestowed by me in dence to prove a fact cannot be resorted to until grade-making upon the line of said railway, beall sources of original evidence have been ex- tween the Scioto river bridge and Main street in hausted, and in general where a written instru- the city of Chillicothe. I ceased to bestoit said ment is in the hands of an adverse party, its

labor on the

day of

1876, and less contents cannot be proved by parol until its pro- than thirty days from the time of filing this duction has been called for and refused. There notice." are, however, as laid down by Mr. Greenleaf,

DENNIS CROXIX. three well established exceptions to this general In this we find a substantial compliance with rule, and in which notice to produce is not nec- the conditions of the statute. The company is essary. First, where the instrument to be pro- advised of the nature of the plaintiff's claim, the duced and that to be proved are duplicute origin character and value of the work done, the connals; secondly, when the instrument to be

tractors under whom it was performed, the place proved is itself a notice, such as a notice to quit, where done and that it was finished within or notice of the dishonor of a bill of exchange; | thirty days next preceding the notice. More and thirdly, where from the nature of the action, than this, it was not the intent of the legislathe defendant has notice that the plaintiff intends to ture to require. charge him with possession of the instrument. 1 These notices are drawn up and served in Greenl. on Ev. $ 561. See also 2 Phillips on most cases by unlettered men without the aid of Ev. 539, and cases therein refered to.

counsel. To require a literal compliance with In the case before us the plaintiff's right of the terms of the statute, would not only be obaction is created by the statute and depends jectless, but would in many cases defeat the very upon the fact of written notice served. With- end and aim of the law. out proof of this no recovery could possibly be IV. In answer to the claim that suit was not had. The bringing suit, therefore, apprised de brought within thirty days, we have only to say fendant that it would be necessary for plaintiff that the limitation contained in the proviso reto introduce the written paper at the trial, lates only to disputes between the contractor which paper at the time was in defendant's pos- and the claimant, and not to controversies besession.

tween the claimant and the railroad company. We think the case clearly falls within the last It is further urged that the plaintiff failed to exception to the rule quoted above, which seems make out a case by omitting to prove that the to be founded in sound reason and common aggregate indebtedness of the contractor for the sense, in view of the fact that the law regards labor let by the company did not exceed 90 per substance rather than mere form. The defend. cent. of the contract price. ant being thus informed that plaintiff required isted, would have constituted a defense pro tanto, this paper at the trial, no reason can exist for and might have been shown by the company. insisting that it should be a second time formally It was not a matter necessary to be proved to notified of this fact.

make out a right of action. III. The statute provides that the notice It is also insisted that there was no evidence shall be served upon the railroad company | tending to show that Spotts, Frank & Co. were

« PreviousContinue »