The sun. [volume] (New York [N.Y.]) 1833-1916, 1897-11-21
xorEs or LraAs ErExrs.

IL is q remarkable fact that the original do.
ciston In the Kingston Railway case, which has
recently attracted 30 much attention, was rem.
derod ny JudgeAlton b. Parker, who was chosen
et the late election to succeed Chief Judge An.
drcws In the Court Of Appeals. Mr.. Justice
Parker held that n consent to construct and op-
crate a street surface railroad obtained by ono
corporation was available TO another railway
company which had entered into n traffic ar.
rangenent with the first. This view accorded
with that generally entertained by lawyers who
had considered the subject, but II was rejected
both by tho Appellate Division of the Third
Judicial Department and by tho Court Of APP
peals. The counsel who represented the sue
ctssfutappellants was A. 7. Clearwater of Kings
ton, County Judge Of Ulster county, who, curl
ously enough, Is the most prominent candidate
for appointment as the successor Of Judge
Parker on tho Supreme Court bench In the
Third district. As we have already intimated
the claims of Ulster county for this appoint
mont oeem entitled to moro consideration than
those OF any other locality in the district, and
we do not believe that the Governor can find
any one who would make L worthior or moro &C.
ceptable successor to Mr.. Justice Parker than
Judge Clearwater.
The homicide of q petty officer on the United
States battleship Indiana some months ago by a
seaman named Carter has given rise to an in
~terosting question of jurisdiction, which was
determined during the past week in favor Of
tho United States by Judge Asa w. Tenney,
the newly appointed District Judge for tho
Eastern district Of New York. The vessel on
which the crime was committed was lying at
the time In Wallabout Bay at the navy yard.
the waters Of which are In the Southern district
OF New York as defined by act Of Congress, SO
that the case could not be tried In Brooklyn
but was transferred to this city. Judge Ten
ney, however, after the manner Of his prcdeces.
sor, Judge Benedict, holds Circuit courts here
for the trial of offenders against the Federal
laws; and tho indictment camo before him a
second time upon a demurrer, on the ground
that the State Of New York and not the Federal
Government had criminal jurisdiction over the
locality of the homicide. This objection has
been overrulcd by Judge Tenney in a carefully
considered opinion, and Carter will be brought
to trial in the Circuit Court Of the United States
In this city In December.
In a breach Of promise case recently tried be-
fore Mr.. Justice Darling, ono Of the newly ap-
pointed Judges Of the High Court OF Justice in
England, the plaintiff. who was q lady's maid,
gave testimony tending to show that the defend
ant, O sugar boilers assistant, was in such good
circumstances that he was able to indulge In
the pastime OF hunting. This evidence excited
some surprise in the court room ut first, until
the learned Judge told the jury that as he was
credibly informed it was now the practice for
persons who had no horses to attend fox hunts
and participate in the chase on bicycles.
In addition to the appointment of Mr.. Oar
ling and Mr.. Brigham as Justices OF the High
Court, o number Of other important changes
have recently taken place on tho English bench.
Mr.. Justice Lindley has succeeded Lord Esher
as Master Of the Rolls, and Lord Ludlow has re-
tired from the Court Of Appeal. in which trt-
bunal no has been succeeded as q Lord Justice
by Sir Richard Hem Collins, heretofore q dis
tinguished Judge .of the Queens Bench Divis.
ion. Lord Ludlow is hardly known in this
country by his present title, which was be-
slowed upon him on the occasion of the Queens
diamond jubilee, when he was made a peer, but
as Lord Justice Lopes his name is familiar to
lawyers. Lord Justice Collins. his successor in
the Court of Appeal. is tho son of a prominent
Dublin barrister and was admitted 10 the bar in
1857.
In q recent decision the Court Of Appeals has
condemned the practice. In tho lower appellate
courts, of Diminishing the complaint absolutely
where they reverse q Judgment in q case which
has been tried before a jury. No matter how
hopeless the plaintiffs cause of action may
seem on the record contained in the printed ap.
peal book, there is almost always a possibility
that 1t may be improved II he is allowed TO try
the case over again. 1--WE are not satisfied with
the action OF the General Term" say the Court
of Appeals in tho decision to which wc refer,
sin ordering final Judgment on the merits, even
II the evidence was not sufficient to justify the
submission of the case to the jury-a question
which We do not now decide. We are unable to
say that other evidence may not be in existence
which may materially change the facts with ref.
erence to these transactions. We therefore
tb;nl That n ~ ,r y; I uhn,,ll harnh aa. a-l.nad d,
The suit was an action for negligence in which
| the plaintiff was a child who had been crippled
by falling into a cellar way.
In the case of the people VS.. Burgess the Court
of Appeals has again affirmed the propriety of
allowing q non-professional witness that Is, a
person not educated in medicinel to testify as to
his opinion whether certain stains were or were
not blood stains. A lantern supposed to have
been used by tho defendant upon the night of
he murder figured rs an important object upon
the trial, and one OF tho witnesses pointed out
n spot upon it which he said was blood. He
also stated that the first time he noticed this
spot. on the morning after the homicide, the
blood was fresh. The admission of this evil
dence was approved by Judge Haight, who wrote
tho opinion of the Court Of Appeals. saying
on this point: ''The witness but described
what no saw upon tho lantern, and indicated
the spot as it appeared upon the lantern when
exhibited In court. 1t does not require an
expert to distinguish blood from other
things or objects with which every person is
familiar" 1t would have been different, how
ever, II a non-expcrt witness had been allowed
to testify TO his opinion as to whether It was
human blood or not. Such evidence, we take
it, would be received only from a medical man
or chemist skilled in the analysis of blood
stains.