, 1881-04-01
\ Cold Day for Abbaiucci

vorce?"
..Hush. Tillie. said Dahlgreen, and he |
read the second time this local DreVlty: |
"Abbatucci Tambourini. an Italian
peanut yerder on Mulberry street. was
Yesterday assaulted by Poindexter Ryan,
who upsrt his stand and robbed HIM OF
50 - RYAN was arrested, and will be
tried this morning for the larceny and
assault
1t so hapYened that Mr.. Dalrymple sat
among the spectators III court that day
when the case was called he had a
sublime respect-uOt uncommon among
those unfamiliar with its worklngs-for
the administration of Justice, and he ex-
pected confidently to see Tam bouunls
goods restored to him and Ryan sent to
a deep dungeon cell. He listened, and
this is what he heard:
Counsel for Tambourini. rising, said:
IF it may please the Court, the Pris-
oner at the bar Is charged with aggra-
waited and unprovoked assault upon my
client; but. in consequence of the repeal
Of the statute of 1871 by the new general
law of lS73-an error, as your Honor
will remember. not noticed until after
the negatory act had passed both Houses
of the Legislature and obtained the Gov
ernor's signature-there is no law COW
ering this case You will find, however,
in an act passed in 1913, and entitled,
AN act TO prevent mock auctions and to
secure efficiency in the National Guards,
a clause in the second section of the
third amendment which bears directly
upon this matter 1t has been held
Blown VS.. Bown, 23, 10, Maguiness j.
that an assault upon the person OF an
alien is misdemeanOr. Though Abbott
lin Blake VS.. Snoogles, 40, II, A held
otherwise. In the act passed in 1883, en-
titled AN act to withhold water franchises
from the Union Ferry Company for 90
wears it was provided that where rob-
berry follows assault, the power of the
Judge shall be discretionary. But where
they are coincident, his power Is restrict
ed to a fine of $50, o: more, or less, or
six months imprisonment, or more. or
less, or both, or either. And We find
that at common law the same rule holds:
Esto quod esse Videris. l admll that in
the present condition OF the statute 1t is
impossible TO say whether an offense of
shis nature is, technically, a misde-
meanor. However, it must be clear that
my client has lost his peanuts, and Is en-
titled to some redress
Ryans counsel here arose:
IF it may please the Court. this case
turns on the old law of 1921, entitled
An act to empower the State Surveyor
to sue for damages sustained by reason
of county ordinances The first case Is
reviewed by Mills, G. j., who, IN the
matter of Shillitu VS.. Guiteras, held that
a man may suffer the same injuries if as
saulted in the street as if assaulted IN Il
house. Two Judges concurred and three
dissented. By one of those laches which
seem almost inevitable the Clerk mislaid
the opinion of the dissenting Judges,
and the assaulted man was sent to the
Jail, where he died some time afterward.
That, however, is not material. Parsons
on Contracts states clearly that where a
man enters into an arrangement whereby
there is n reasonable likelihood that he
will be knocked down, he can only re-
cover damages in the event of his being
killed. Your Honor Will remember that
Parsons lays down this rule as a per-
emptory; but, as Chalmers truly OBJ
serves: How can the dead man sue :?
Bis peccare in belli non hcet. will not
waste the time of the Court to inquire
whether my client did really rob and NAL
treat this Italian. l admit that he
did. We concede premedtation, the
assault, and the larceny. But what has
that to do with it? Has not Hope, ir
Downing VS.. Durande, 1915, decided
that in case where warranty
is not specified it is not to be pre-
sumed? Does anybody come into this
Court to guarantee these peanuts? No.
Mr.. Tambourini swears the peanuts
were his. Let us concede it. What did
he have them for? Presupposing no
illicit intention on his part, and swaiving
how he got them, l will say simply:
He had them to dispose of. To whom?
That is no business of this Court. Ryan
comes along. He takes them. They are
disposed. And then this sallow-faced.
coal-eyed, lantern jawed, hungry-mouth
ed, Peninsulan comes here and asks this
august Court tosresolve itself into an in
vestigating committee to ascertain
whether the consideration was adequate?
And in the same breath that he says he
received nothing for the peanuts he
swears that he got two black eyesr'
eff your Honor please" said the Ital-
ian's counsel, "the black eyes referred
to were given to Tambourini by the gen.
tleman's client"
Unsurpassed merriment of the Court
officers.
The Judge raped heavily for order,
and when silence was restored spoke
thus:
This case is a peculiar one. About
once a month I hear it. Sometimes l
decide one way, sometimes anotner. 1t
is generally appealed and always over
ruled. Authorities conflict. Judge
Timothy Campbell has had that an as
sault where generalization is shown; but
Judge Patrick G. Duffy has decided
otherwise, basing his decision on the old
common law of torts, which assumes
violence as the occasion of blOod-fiowing
and contusions. 1t was so held by
Tailey, in Morey VS.. Tom Collins, 4, II,
329.'
"If your Honor please" said Ryans
counsel.
Il move to discharge the prisoner"
''On what grounds?"
On tine ground that the complaint is
defective. 1t states that Tambourni is
an Italian and resides at 365 Mulberry
street. Now 1 offer to show by patrol
evidence that he is native of the
Republic of San Marino, and does not
reside at but in 500 Mulberry street.
His Honor, Judge Bowling, in Weston
VS.. O'Leary, 65S, ,, was held that the
substitution of the word at for in is
fatal"
IF your Honor please" ventured the
Italians counsel, ''Gerdney has decided