Supreme Court, N. Y.-In the matter of George Kirk, a fugitive slave. The rights of the owners of fugitive slaves are in no just sense interfered with or regulated by such a course; and in many cases the operations of this police power, although designed essentially for other purposes, for the protection, safety and peace of the state, may essentially promote and aid the interests of the owners. But such regulations can never be permitted to interfere with or obstruct the just rights of the owner to reclaim his slave, or with the remedies prescribed by congress to aid and enforce the same. entirely decisive and satisfactory in the result to which they lead us. To apply, first, the rules given us in the case of Prigg, in 16 Peters: The police power "extends over all subjects within the territorial limits of the state," yet our statute does not confine its operation within our limits, but provides, in case the fugitive is from another state, for the return of the fugitive back to the place whence he fled. We "may remove slaves from our borders to secure ourselves against their depredations." To transport the slave to Canada or Connecticut would effect this purpose, yet that is not allowed by our statute. He must, in compliance with its command, be returned only to his place of bondage. "The rights of the owners are not to be interfered with or regulated." In New-York v. Milne, 2 Peters, 139, Mr. Justice Barbour, in delivering the opinion of the court, applies this test to determine the nature of the power: Did it belong to the state before the adoption of the constitution? has it been taken from the states and given to congress or does it fall within that immense mass of legislation which embraces every thing within Yet, what is a compulsory return of the territory of a state not surrendered to the slave, with or without his owner's the general government? And the pow-consent, to the place whence he fled, but er then under consideration was held to an interference with or regulation of the be of that "mass," because its place of master's right to control his movements operation was within the territory, and and govern his person? therefore within the jurisdiction of the state; because the person on whom it operates was found within the same territory and jurisdiction; because the persons for whose benefit it was passed were the people of the state; because the purpose to be attained was to secure the protection of that people, and because the means used were just, natural and appropriate to those ends. The state regulation is, "not to interfere with the remedy prescribed by congress." Congress has limited the power of recaption to the owner, his agent or attorney, but our state law has removed that limitation. Congress has protected the rights of the owner, by securing the reclamation to him and those appointed by him, yet our statute gives to the commander of the vessel the power of transporting the slave beyond even the reach of the owner. Such is the result of the rule furnished us by Judge Story. The application of Judge Barbour's tests will be found equally satisfactory and conclusive. Is the power exercised in this statute one "embracing a matter within the territory of the state, not surrendered to the government, and which can be most advantageously exercised by the state?" It cannot be most advantageously exercised by this state. It, cannot, indeed, be ex Complaint was made during the argument, that this police power was exceedingly vague, uncertain and undefinable, and hence, I suppose, an inference was to be deduced that I ought to regard the claim of power with little favor at least. In the very nature of things it must be difficult, in few, or perhaps in many words, to define the power; for it comprehends an immense mass of legislation, inspection laws, quarantine laws, health laws, internal commerce, roads, ferries, &c. Yet, immense as is this mass, and vari-ercised at all without the consent of the ous as are the interests embraced in and affected by it, it seems to me that the rules laid down by the supreme court of the United States, as I have already quoted them, and the tests which they provide, are plain and simple and easy to be understood, and in their application to this case state from which the slave fled. Suppose that any slave state should forbid the return to its territory of a fugitive slave, could our law commanding his return be enforced? It could be only enforced by the national government. But to proceed with his tests: Supreme Court, N. Y.-In the matter of George Kirk, a fugitive slave. We are to look at the place of its ope- other. If any other end had been in view ration to see that the statute operates-if the protection of our people at large within the territory of New-York: yet had been aimed at-there would have the main object of this statute plainly is, not the removal of the slave from our borders, but his return to the place whence he fled, involving of necessity the operation of our statute, without our territory and without our jurisdiction. Could it be more so if it provided that every vagrant arrested in our streets should be transported to and abandoned in the streets of Savannah? We are next to look upon the person on whom it operates, to see that he is within the same territory and jurisdiction; yet this statute must, of necessity, operate both on the slave and the commander of the vessel more out of the state than in it. We are next to look at the persons for whose benefit it was passed, to see that they are the people of our state. Yet this statute does not confine the power of recaption to the commanders of vessels, being citizens-it confers it on all commanders, reside where they may. been something compulsory in the law, something rendering it obligatory on the captain to afford us the desired protection. But every thing is left to his discretion. If he pleases he may retake, and, after retaking, if he pleases, he may return the slave to the place whence he fled. If the captain should chance not to be a citizen of this state, it would be difficult to discover how it could benefit this state; yet under no circumstances would it be diffi cult to see how it could benefit the owner to have his fugitive servant placed again within his reach. In every aspect in which I view this statute, I cannot help regarding it as intended and calculated to aid in returning a fugitive slave to his master; and it seems to me that the claimant in this case, and his counsel, have so understood the law, and have acted accordingly. Else why was the boy confined on board the vessel after her arrival here? Why does the captain plead his obligation to the laws of Georgia, when those laws compel him to return the boy to his owner? Or why, when George was making every effort, with the assistance of numerous friends, to escape from the state, did the captain invoke the aid of the police to arrest those efforts; and why does he now press this claim, but that he may do that which the constitution and laws of the United States declare shall be done only by the party to whom the service is due, or his agent or attorney? I do not allude to these considerations for the purpose of even implying a censure upon the commander of the vessel or his owners; but solely with a view of drawing from his acts, and those of his very And lastly, we are to examine the respectable counsel, the consolation justmeans by which these ends are to be at-ly flowing, that he and they do, in effect tained, so that they bear a just, natural and from necessity, understand our statute and appropriate relation to those ends. precisely as I do, namely, in the language There is no special pleading, no refine- of the United States supreme court, as by ment of reasoning, that can disguise from way of compliment to the legislation of a common understanding the fact that the congress, prescribing additional regulawhole object of the statute was, to allow tions, and what they deem auxiliary prothe commander of the vessel to protect visions for the same purpose. himself by retaking and returning the fugitive; and the means used, namely, the examination and adjudication by the mayor, and his certificate, were natural and appropriate to that end, and to none We are next to turn our attention to the purpose to be attained, to see that it is to secure that very protection and provide for that very welfare. The argument is, that this statute had its origin in the desire to protect our citizens from the evil example of having slaves among us; yet that very statute prohibits the removal of slaves from our territory by high penal enactments; and surely if the welfare of our citizens and their security from the evil example of slavery were the object in view, it could be attained as well and far more easily by transporting the slave to a free state, which it prohibits, than to a slave state, which it absolutely commands. It must have occurred to all who have given this subject much consideration, as it has to me, to observe the extreme watchfulness with which this provision of our national constitution has been regard. In the Queen's Bench-Practice Court.-Sarah Auster v. Holland. If however, contrary to all just calculation, those fears should yet be realized, our regard for the individual may not warp the law from its uprightness, though it may well excite our regrets that its integrity cannot be maintained without the infliction of unmerited suffering. This boy must at all events be discharged; the ed by our courts. It is not worth my | and to maintain the constitution as it has while to pause and inquire into the cause been interpreted by the highest tribunals or the propriety of this. It is enough to in the country. It cannot be that under know that whenever any state legislation, such circumstances, he can have any thing attempting to intermeddle with the ques- to fear from the penal enactments of tion, has come before our highest courts, Georgia. it has without ceremony been swept from the statute book. Our statute regulating and controlling the master's right of reclamation, and allowing to the alleged slave the benefit of the writ of homine replegiando, fell before the decision of our supreme court in Jack's case. The laws of Pennsylvania, running through a period from 1780 to 1826, and containing a pro-law allows it and the court awards it. vision like that now under my review, were overturned by the supreme court of the United States in Prigg's case; and I only discharge my duty-obey, indeed, merely one of its plainest and most simple dictates-by declaring that the rule of law thus laid down by the highest judicial tribunals in the country, and whose decisions I am bound to respect and to enforce, is applicable to the statute in question, and being applicable, 1enders the statute null and void, and the arrest and detention of Kirk under it improper. STAYING It will be observed that I have omitted to discuss many considerations which were pressed upon me during the argu ment. The view which I have taken of the case rendered their discussion unnecessary, but I will briefly allude to one topic, because, if the danger apprehended were to ensue, it would be the only cause of regret which I should experience growing out of this case. I allude to the penalty which it is averred may fall upon the captain in case of his return to Georgia. I cannot persuade myself that there is any cause for the fear. The slave was concealed on board his vessel without his knowledge or consent. He was not discovered until the limits of Georgia had been passed, and to have returned then to Savannah would not only have vitiated the captain's insurance, but have rendered him liable in an action to the boy; and since his arrival in this port, he has resorted to every means which our law allows to return him to his place of servitude. And if he shall be finally defeated in his attempts, it will not be from any want of effort on his part, but from a determination on the part of the authorities of this state, to avoid state usurpation, ENGLISH CASES. In the Queen's Bench. [PRACTICE COURT.] Before Sir J. T. COLERIDGE KNIGHT. PROCEEDINGS-ACTION IN THE NAME OF NOMINAL PLAINTIFF WITHOUT HIS AUTHORITY. By deed of seperation between husband and wife the husband covenanted to pay an annuity to a trustee for the use of the wife. The annuity being in arrear, and the trustee refusing, upon indemnity to sue the husband, an action was commenced in the trustee's name, but without his authority, for the recovery thereof. Under these circumstances the court refused to stay proceedings at the instance of the defendant. GRAY had obtained a rule calling upon the plaintiff and her attorney to show cause why the writ of summons and all subsequent proceedings should not he set aside with costs to be paid by the attorney, upon an affidavit of the defendant stating that he had been informed by the plaintiff that the action was commenced without her authority, and continued against her express directions. The affidavit negatived collusion between the plaintiff and defendant. By the affidavits in answer it appeared that differences having arisen between the defendant and his wise, they agreed to separate, and that a deed had been executed, whereby the husband covenanted with the plaintiff to pay her, in trust for Eldon Anecdotes. his wife, an annual sum by monthly payments. Several payments being in arrear, the plaintiff was requested by the wife to commence an action to recover them, and was at the same time offered an indemnity against all consequences by the wife's father. The plaintiff, however, declined to proceed, whereupon this action was commenced in her name. A correspondence had taken place upon the subject, and from the defendant's letters it appeared that he had tendered a sum which had not been accepted. Lush now showed cause. The defendant had no right to a stay of proceedings. An indemnity has been. offered to the plaintiff, and she makes no application, and it is quite clear that if she did, proceedings would only be stayed until security were given. Spicer v. Todd, 2 C. & J. 165. Even if the plaintiff had given the defendant a release, the court would not permit the defendant to plead it. In Chambers v. Donaldson, 9 East. 471, where husband and wife were living apart under sentence of separation, an action was brought by the wife in the husband's name for breaking and entering the house of the wife and taking her goods, and an application similar to the present having been made by the defendant, upon an affidavit stating that the action had been commenced without the husband's authority, the court refused a rule. Upon the authority of that case this rule must be discharged. Gray was then called upon to support the rule. There is nothing to lead to the supposition that there has been any collusion between the plaintiff and defendant. The case differs also from Chambers v. Donaldson, 9 East., 471, in this, that if money were now brought into court, there would be no one competent to give a valid discharge; for payment to an attorney who sues without the plaintiff's authority, is no answer to an action. Hubbard v. Phillips, 14 Law J. (Exch.) N. J. 163, is a direct authority in favor of this application, for it was there held that where an attorney has commenced an action without the authority, either plaintiff or defendant may apply to stay the proceedings and to make the attorney pay costs. COLERIDGE, J.-I think that it sufficiently appears that there is collusion between the plaintiff and the defendant.The plaintiff must know that, except by using her name, the wife has no remedy at law, and though an indemnity has been offered he has refused to accept it; moreover, she herself makes no application to court, so that it can hardly be surmised that the use of her name can be attended with any hardship to her, and I do not see that it can be productive of any to the defendant. Looking, therefore, to all the circumstances, I think that this rule should be discharged, and with costs, because all the facts were not stated in the affidavits upon which the rule was obtained Rule discharged with costs. ELDON ANECDOTES. TRIAL BY JURY. THE greatest objection to trial by jury appears to me to be founded upon the fact that men of low condition serve as jurymen. No man can have gone a circuit without seeing twelve men upon a jury who if they did not implicitly follow the direction of the judge, would be quite incompetent to form an opinion upon any case at all complicated in the facts which constitute it. The lower orders of jurymen, too, are easily corrupted. I remember at an alehouse, where some of us dined upon a Sunday after seeing Corby, in Cumberland, a person whom Serjeant Bolton treated with a good deal of milk-punch, told the Serjeant that he was upon the jury at Carlisle, and would give him verdicts wherever he could. Another juryman told me that he gave the Serjeant all the verdicts he could, because he loved to encourage a countryman: he and the Serjeant were Lancaster born. Coming down the steps from the Exchequer into Westminster, I followed two common jurymen, when I was a law officer of the Crown, and I overheard one say to the other, I think we have given the Crown verdicts enough; we may as well give them no more,' I touched them upon the shoulders and told them they should have no more trouble, for 1 should challenge them in all cases that remained. A DIGEST OF THE CASES REPORTED. [For index to the principal matters, see ante, p. vii.] ADMIRALTY JURISDICTION. A contract of affreightment for the carriage of merchandize from one port or place to another, within the ebb and flow of tide, on a navigable river, is subject to admiralty and maritime jurisdiction of the courts of the United States; and it is immaterial whether the vessel or boat, by means of which the service is to be performed, is propelled by its own motive power, or is towVan Santwood & Redfield ed by another vessel. v. The Boat John B. Cole, AFFIDAVIT. 373 Williams v. 165 A British consul, resident abroad, has authority to administer oaths and take affidavits only in those cases in which oaths and affidavits may be taken and administered by a magistrate in England. Held, therefore, that an affidavit of service of a rule to show cause, sworn before the British consul at Paris, is not receivable. Welsh and an'r, An affidavit not signed by the deponent, but having been sworn before a justice of the peace in America, whose signature was duly certified by the governor of that state, was refused to be filed by the clerk in the affidavit office in England. Anderson v. Stather, AGENT. 229 The mere act of contracting with another in the name of an agent, that agent making himself liable, and not disclosing that he does not in truth contract on his own behalf, is not forbidden, but may effectually take place. Nelthorpe v. Holgate, See Peck v. Taylor, ALIEN. 113 141 Where an alien deserted from a ship of war and enlisted on board an American frigate in 1814, war then existing between the two nations, and continued in the United States navy throughout the war and for several years subsequently, and had since that time followed the seas constantly, sometimes in the merchant, and at other times in the United States service, but had had no residence within any part of the United States, other than by such employment on board American vessels. Held, that he had not been a resident, within the meaning of the act of congress, and was not entitled to be naturalized. Anonymous, in re, AMENDMENT OF BILL. 98 a bill seeking to restrain a defendant from defeatAmendment of a bill, whereby it is converted from ing the plaintiff's right at law, to one seeking relief obtainable only in equity, is not necessarily such a variation in the original case as eutitles the plaintiff to have the original bill dismissed. 156 Abram v. Ward, ANSWER. A defendant is bound to answer all the allegations APPOINTMENT. Harris 114 Power of appointment in the wife, and of management in the trustees, under the Revised Statutes of New-York-the former valid if not destructive or in anticipation, and the latter sufficient to effectuate a trust, though only to "hold and keep" the estate from the debts and contracts of the husband. The advice of her friends, solicited by herself, without the interference of the husband, is not that duress, coercion, or undue persuasion which will vitiate the deed of a married woman; especially where the instrument was prepared at her request and by her own counsel, was duly executed, and afterwards acknowledged before a commissioner as having been signed "freely and without any fear, or compulsion on the part of her husband," was witnessed by one of her |