Majority
p. 313Jackson, ex dem. Russell, against White.Headnote
w. E. came from England in 1774, and resided m tins state? and was an officer in *®# ^-laving j®e"77glieasstef person disaffected to the American re- or the slfiember, erJo^Ms^paro,es and mained such prisoner,at^i^ Beccmfier^or January 1-lowing, waiting for a passFegímenqwhen b® the^Briiisit army, or went to England» where he died theb^„g then a gnerai army : Held, ^ oitizen ^oftfiis had thrown off to GnS'srl tam> and be* come a sovcreign and indo» but^that^hn continued a British subject, so that lie cotild not, by reason of his alienage, take lands in this state, by descent, from his brother,’who died in 1792.Although the Convention of delegates of this state, on the 9tli of July, 1776, adopted the declaration of independence, and there were committees, or temporary bodies of men who took charge of the public safety, there was no regular organized government, or any executive, legislative, or judicial authority of the state, until the adoption of the Constitution, on the 20th of April, Í777.
EJECTMENT for lot No. 41., in the north-east quarter of the town of Columbus, in the county of Chenango, tried before Mr. Justice Van Ness, at the Chenango circuit, i n June, 1821.
The plaintiff gave in' evidence letters patent, dated May 27th, 1791, to Robert Edmonston, for the north-east quarter of the seventeenth township on the Unadilla river, (now the . 7 , . town of Columbus.)
J. Aitcheson, a witness for the plaintiff, testified, that lie was well acquainted with the family of Robert Edmonston, and that he died in Great Britain, about the year 1792, leaving three children, Samuel B,, Elizabeth Frances, (now the wife of George Riddel,) and Andrew, all of whom were ° „ ' bom in Great Britain^ where they have always resided,, except Andrew, who came into this state in the year 1811. That Robert E., at the time of his death, left two si st ers, Grace and Eleanor, and one brother, William, all of them horn in Great Britain; and none of them, except William, ever resided in this country. That Grace died in the lifetime of William, without issue 5 William died in London, about twenty years ago, and was, at the time or his death, a general in the British army 5 that Eleanor is still living. The plaintiff then gave in evidence a deed from Eleanor E., Samuel B. E., George Riddel, and Elizabeth Frances, his wife, and Andrew E., to the lessor of the plaintiff, dated April 27, 1812, for lots 39, 40, 41, 42, and 43, as designated on a map made for the said William, Edmonston, in November, 1796.
John Frank, a witness, testified, that he knew William Edmonston, who lived on his farm, called Mount Edmon sion, on the Unadilla river, before the revolutionary war ;
p. 314that in 1776, the witness was a member of the committee of safety? ;n t[le town of German Flatts ; and the committee, in that year, caused W. E., who was a major in the Bri ti'sA service, to be arrested, as a disaffected person, and he was sent to Albany, where he remained, as the witness was informed, during the ensuing winter ; and the witness believed, that he was arrested after the declaration of independence. Another witness testified, that she saw William E., in the fall of the year 1776, at the German Flatts; that he came there on his way to Albany. That she knew the time, as it was after the birth of her eldest child, who was born the 19th of August, 1776. Another witness testified, that he saw William E., in Albany, the latter end of August, or beginning of September, 1776, and was informed by him that he had just arrived, and was a prisoner on his parole; that he again saw W. E. in Albany, in December or January following, and was told by him; that he was waiting for a passport to join his regiment. This evidence, as to the residence of W. E. in this state, was objected to by the defendant’s counsel, but the objection was overruled by the Judge.
A witness, (Cannon,) for the defendant, testified, that he passed through Albany, in May or June, 1776, on his way to Lake George, and heard that Major Edmonston was there, and complained of being made a prisoner; but he did not see him; the witness said, that on his way to Lake George, he met the American troops on their retreat from Canada.
The defendant read in evidence an act of the legislature, entitled, “ an act for the relief of the children of the late Robert Edmonston,n passed March 29th, 1816; and, also, the decision of the Chief Justice and Surveyor General, made in pursuance of the act, by which it was decided, that the defendant was an actual settler on lot No 41., the premises in question, under the said act, and that the children of the said Robert E. should convey the said lot to the defendant, on the terms mentioned by that decision, from which it further appeared, that Andrew Edmonston, in behalf of the children of Robert Edmonston, attended with,his counsel, before the Chief Justice and Surveyor General.
p. 316that ordinance recites, that “ divers subjects of this state have been seduced from their allegiance to the same, by the acts of subtle and wicked emissaries from the enemy and offers them, on their taking the oath of allegiance, a full and free pardon ; and that they be restored to a participation of all the rights and privileges appertaining to the good people of this state.2. The descent from William Edmonston, being after the treaty of 1794, between the United States and Great Britain, is within the provisions of the ninth article of that treaty, and protected by it. It may, perhaps, be objected, that William Edmonston could not be an American citizen in 1792, and a British subject in 1794, and at his death : But there is nothing repugnant or inconsistent in his being both. He was born in Great Britain, and after he left this state, he resided in his native country. According to the English laws, he owed perpetual allegiance to that country, as a natural born subject; and if the laws of this country imposed on him a new allegiance, it did not destroy his natural allegiance, while he remained in the British dominions, nor prevent his being a British subject. If he had the right, before the treaty, which other British subjects had not, that cannot take away his right, acquired in common with other British subjects, under the treaty. The treaty is a compact between the two nations, and is to be construed according to the understanding of the contracting parties. There can be no doubt, that William Edmonston was considered by the British government, in 1794, as a British subject, for whom provision was made in that treaty. If so, he must' be deemed by this Court, a British subject, for the purposes contemplated by the contracting parties to the treaty. The decisions of the English Courts are in accordance with this doctrine. In Marryat v. Wilson, (1 Bos. and Pull. 430.) the Court of Exchequer Chamber decided, that a natural bom British subject, who had become a naturalized citizen of this country, either' before or after the declaration of Independence, was to be considered as an American citizen j so as to entitle him to the benefits of the provisions of the treaty of 1794, in regard to the trade with the East Indies.
p. 317M. Van Der Lyn, contra,
contended, 1= That tlie premises in question, on the death of Robert E., in 1792, es-cheated to the state, on account of the alienage of his children. (Calvin’s Case, 7 Co. 25 a. Jackson v. Lunn, 3 Johns. Cases, 109. 120.) There is a distinction, in this respect, between a parchase, and a taking by descent. In case of a purchase, the alien holds until office found % but, where an alien dies seised of land, the law, quae nihil frustra, will not give the land to an alien heir, who cannot keep it. (1 Ventris, 417. 1 Bos. and Pull. 48. Fairfax v. Hunter’s Lessee, 7 Cranch, 603 . 621. 7 Term Rep. 98.)2. Admitting William E. to have been antenatus, or bom under a common allegiance, before the American revolution, yet it has been settled, that a British subject, bona before, cannot, since the revolution, take lands by descent in this country. (Fairfax v. Hunter’s Lessee, 7 Cranch, 603 . 620. Kelly v. Harrison, 2 Johns. Cases, 29. Dawson v. Godfrey, 4 Cranch, 321 .)3. William E. cannot be considered as a citizen of this state, in consequence of his being here after the declaration of independence. From the evidence of the witness, Cannon, it is most probable, that he was arrested in May, 1776 but, admitting that his arrest was after the 9th of July, yet, being a natural born subject of Great Britain, he had a right, at the commencement of the revolution, to dissent from it, and the declaration of independence, and to adhere to Ills allegiance to the king of Great Britain ; and the evidence shows, that he exercised that right, and, therefore. never became a citizen of this state. In Chapman’s case, decided in the Supreme Court of Pennsylvania, in 1781, (1 Dallas, 53.) Chief Justice M'Kean, fully recognises this right of the minority, in case of a revolution, or change of government. So, in 1795, in the case of Caignet v. Pettit, (2 Dallas, 234.) the same Court, in the case of a Frenchman, admit, that he had an undoubted right to dissent from the revolution, and, as a member of the minority, to refuse Ms allegiance to the new government, and withdraw from the territory of France. The only question is, whether W. E. did dissent from the revolution, within a reasonable time, and quit the country. Et appears, that as early as August,
p. 3181776, he was arrested as a dangerous and disaffected person’ a commission in the British army, and was de» tained, as a prisoner, on his parole, until December following’, when he was either exchanged as a prisoner of war,-or per™ mifted to return to England.4. At the time of W. E‘s. arrest, in 1776, the colony of New- Yorlc had no government, no executive or legislature, duly constituted by the people; for the constitution of this state was not adopted until April, 1777. He, therefore, could not be a subject of the colony. Where there is no government, there can be no allegiance. Every thing, at that time, was in disorder and confusion. The people were in transitu from the condition of a colony, to that of an independent state; and, during that period, New-York retained the name of a colony. The declaration of independence worked a dissolution of government j the acts of Assembly, and the common and statute law of England, were no longer in force, and were not revived until the constitution of the state was adopted. No laws, passed subsequent to the arrest and departure of W., E. from the state, could have any operation as to him.5. Laws of the state, passed as late as 1778 and 1781, recognise the right of the loyalists to refuse to become citizens of the state, (1 Greenl. Ed. Laws, 22, 43. Sess. 1. ch. 47. Sess. 4. ch. 33.) If, then, W. E. had continued in the state, as late as 1781, he would have had the right of electing to continue a subject of the king of Great Britain, and of being sent home as a prisoner of war.6. But, admitting even that W. E. was an American, at the time of his departure to England, we contend, that the premises in question, on his death, in 1801, escheated to the state, and-did not descend to his sister and the children of his brother Robert, by reason of their alienage. In answer to this objection, the plaintiff relies on the 9th article of the treaty of 1794, between Great Britain and the United States. But that treaty was intended to secure British subjects, holding lands in the United States, from the consequences of alienage, and to enable them to sell, grant, and devise the same, as if they were native American citizens. American citizens did mot require the protection of an article
p. 319of the treaty, to remove the obstacle of alienage, which, as to them, did not exist, and invest them with the rights of native citizens, which they already possessed. If, therefore, W. E. acquired a title to the premises in question, by descent, on the death of his brother Robert, in 1792, and the treaty of 1794 had never been made, he would have continued to hold the lands, as a native citizen, until his death. The 9th article of the treaty has, then, no application to the case of American citizens. And, if W. E. did, in truth, hold the premises in question, at the date of the treaty of 1794, as a native American citizen, according to the laws of this, state, he could not, at the same time, have held them as an alien, and subject of Great Britain„ While a person in the United States is regarded as a citizen, he never can cease to be so regarded, until he has expatriated himself, and become the subject of another government. (Fish v. Stoughton, 2 Johns. Cases, 407.)Again, the dissolution of the British government in America,, and the erection of a new and independent government, absolved all the citizens of the new government from their allegiance to Great Britain ; and by the treaty of peace of 1783, Great Britain recognised the independence of the United States, and of all its citizens, among whom W. E. would be, of course, included. (3 Dallas, 224. 1 Bac. Abr. 129. 1 Woodes. 382.) If W,. E. therefore, be considered as a citizen of JYew-YorJc, he was absolved by the British government from his natural allegiance to that government, and could not, without some act of denization or naturalization, become again a subject of Great Britain.The treaty of 1794, does not determine who were British subjects, or American citizens, but leaves that question to be determined by the laws of the respective governments. ( 4 Cranch, 214 .) It would be strange that a native American citizen should he considered, in an American Court, as holding lands in the United States, not as a citizen of his own country, but as a subject of Great Britain; for he must be considered as holding the land as a British subject, before the 9th article of the treaty can be made applicable to his ease. Those British• subjects who held lands in the United States, as aliens, were, by the 9th article of the treaty,1 to be
p. 320considered as native citizens, so far only as respected ]an(jSj and the legal remedies incident thereto ; but in all other respects, they continued aliens. If W. E. at the date of the treaty was an American citizen, he must, notwithstanding that treaty, be considered as holding his lands as an American citizen. (Jackson, ex dem. Folliard and another, v. Wright, 4 Johns. Rep. 75 . 79.)The case of Marryat v. Wilson, (1 Bos. & Pull. 442. S. C. 8 Term Rep. 31.) has been cited by the plaintiff’s counsel, to show that a natural born British subject, who has become an American citizen, is considered in England, in regard to their navigation laws, as an American citizen. That case, however, supports the position for which we contend, that an expatriated subject, who has become the subject of another state, is to be, thereafter, regarded in his native state as the subject of his adopted country. England, notwithstanding her feudal maxim, nemo patriam in qua natus est eceuere, nec legeniice debitum ejurare, possii, is in the habit of violating that maxim, and of adopting the natural born subjects of other countries. Chief Justice Eyre might well put into the mouth of the Englishman, to say, “ Í violated no law of my parent state, in procuring myself to be received a subject in the United States. She encourages the practice, for she herself adopts the subjects of other states. Why then are the fruits of my adoption to be withheld from me ?” Besides, it has been shown, that the independence of the United States absolved all its citizens from their former allegiance as natural born subjects of Great Britain ; and consequently, W. E. if he became a citizen of this state, by the declaration of independence, could not thereafter be considered a subject of Great Britain, by reason of his birth in England. It was, therefore, out of the power of Great Britain, at the date of the treaty of 1794, to claim W. E. as a subject, after having ratified and confirmed, by the treaty of 1783, the independence of the United " States. Chief Justice Eyre, in Marryat v. Wilson, says, “ By the way, I do not understand upon what ground the ease of Butler was distinguished from Collet's case, unless it be that Butler has been expressly discharged from his allegiance by act of parliament, in consequence of our acknow
p. 321Hedging the independence of the United States." The facts were, that Butler was domiciled in the United States before, and Collet after the declaration of independence. Most clearly, the United States could not, without surrendering their sovereignty and independence, permit any person who became a citizen, at the declaration of independence, to be afterwards claimed by Great Britain as a subject, on the ground of his having once owed a natural allegiance to that country.We contend, therefore, that whether W. JEL was or was not an American citizen, the plaintiff is not entitled to recover.I consider these facts as proved : that William Edmonston came from England to this state in 1774, at which time he was a major in the British service. In 1776, he was arrested by direction of the committee of safety, in the town of German Flatts, as a person disaffected to the revolution. In the latter part of August, or beginning of September, 1776, he was in Albany, in consequence of this arrest. He was there as a prisoner on Ms parole, and remained there until the following winter, waiting for a passport to join his regiment. After that time, we have no further account of him during the revolutionary war ; but the inevitable presumption is, that he joined the British forces, or proceeded immediately to England ; for there is no proof that he continued to reside in this state, or in any part of the United States; and the evidence is9 that he died a general in the British army.
The lessor of the plaintiff does not claim to have derived title under the children of Robert Edmonston, as his heirs, but claims that William Edmonston was a citizen of this state, and took by descent, the real estate of his brother Robert, as his heir; and that on the death of William, it descended to his sister Eleanor, and to his nephews and niece, the children of Robert. It becomes, then, unnecessary to consider the effect of the act of the 29 th of March, 1816, and the decision of the Chief Justice and Surveyor General under it.
It is not pretended that the children of Robert Edmonston
p. 322could take the lands whereof he died seised, by descent, and as his heirs. They were aliens, and he died in 1792 5 so that the 9th article of the treaty between the
United States and
Great Britain, of 1794, does not apply to their case. The question, then, which I propose to examine, is, whether
William Edmonston became a citizen of this state, after it had thrown off its allegiance to
Great Britain, and became a distinct and independent sovereignty.
We are called upon to discuss and decide this question, as a mere matter of private right, when all the feelings and passions incident to so mighty a revolution, have subsided. I think it cannot be doubted, that when a people, from a sense of the viciousness of a government under which they have lived, are driven to the necessity of redressing themselves, by throwing off the allegiance which they owed to that government, and in its stead, erecting a new and independent one of their own, that such of the members of the old government only, will become members of the new, as choose voluntarily to submit to it. Every member of the old government must have the right to decide for himself, whether he will continue with a society which has so fundamentally changed its condition. For, having been in- . corporated with a society under a form of government which was approved, no one can be required to adhere to that society, when it has materially and radically changed its Constitution. Every member submitted to the society as it was, and owed obedience to it, while it remained the same political society. When it divests itself of that quality, by an entire new institution of government, it cuts the knot which united its members, and discharges them from their former obligations. (Vattel, b. 1. ch. 3. s. 33., and ch. 16. s. 195. Puffendorf, 639.) These principles were expounded by Ch. J. M‘Kean, in a very satisfactory manner, in Chapman’s case. (1 Dallas’s Rep. 58.) He observed, that in civil wars, every man chooses his party; but that all the writers agree, that the minority have individually an unrestrainable right to remove with their property into another country; that a reasonable time for that purpose ought to be allowed; and, in short, that none are subjects of the adopted government, but those who ha,ve freely assented
p. 323ÍOÍL The cases mentioned by the writers on the laws of nature o and nations, are not precisely analogous with the condition of the
American provinces, at the commencement of our revolutionary contest» Ours was a civil war j in the event of failure it would have been regarded as a rebellion j it terminated prosperously and gloriously, and became a revolution. But, that there was an entire dissolution of the government, under which we lived as provinces, owing alieglance to the
British crownj and "that a new form of government, and a new organization of the political society took place, cannot be denied 5 and hence the case occurred in which every member of the old society had a right to determine upon adhering to his old allegiance, and withdraw himself 5 or to abide among us, and thus tacitly, or expressly, yielding Ms assent to the change, and becoming a member of the new society.
It is to be observed, that although the declaration of independence was made by Congress, on the 4th of July, 1716, and although the Convention of delegates of this state adopted that declaration on the 9th of the same month, and although we had committees, and temporary bodies of men, who took charge of the public safety, we had no executive, legislative, or judicial authority, nor any organized government, until the 30th of April, 1 111, It would be a very grave question, which I shall avoid discussing, whether, until the adoption of our Constitution, treason could be committed against that imperfect and inchoate government which was called into existence by the necessity of the case, and was continued until the people could deliberate and settle down upon a plan of government calculated to secure, and perpetuate their liberties. But the question is, whether Major Edmonston, being in this state at the very commencement of that revolutionary struggle, holding a commission in the army of the British king, and being taken up, within one or two months after the declaration of independence, put on Ms parole, and finally sent out of the country as a dangerous and disafiected man, prior to the institution of any regular form of government, can be said to have renounced the former government, and to have become a mem
p. 324ber of the new society, and ever afterwards to have retain^le rights, duties, and privileges of an
American citizen.
I cannot bring my mind to doubt on this question; and to me it appears most clearly, that Major Edmonston never did acquire the character of a citizen of this state. In Chapman’s case, Ch. J. J\£‘Kean said, that when the word subject, instead of inhabitant, is used, it meant a subjection to some sovereign power; it refers to one who owes obedience to the laws, and is entitled to partake of the elections into public office; and he observed, that if there were no laws to be obeyed, the prisoner could not be deemed a subject of the state of Pennsylvania. It has been decided by the Supreme Court of the United States, (4 Cranch’s Rep. 321.) that a subject of Great Britain, born before the declaration of independence, who was never in the United States, cannot take.lands in this country by descent from a citizen. In Kelly v. Harrison, (2 Johns. Cases, 30.) it was decided, that although the division of an empire worked no forfeiture of a right previously acquired, and, as a consequence, all the citizens of the United States who were bora prior to our independence, and under the allegiance of the .king of Great Britain, would still be entitled there to the rights of British subjects; yet the rule would not apply e converso, and British subjects have not, with us, the privileges of citizens; and for this reason, that the sovereignty of the United States was created by the act of independence, and there could be no previous right acquired in re-: spect to it, and, consequently, none to lose ; nor could it include any other than residents, at the time, within the jurisdiction of the state; and that, therefore, the demandant, who was the widow of Kelly, prosecuting for her dower in lands acquired by her husband after the declaration of independence, who had been married to Kelly before the revolution, but who remained in Ireland during, and after it, he having resided here, and become a citizen, was held not to be endowable of such after acquired lands. This decision fully sanctions the principle, that there must, even in the case of a feme covert, be some personal act, indicative of an assent to become a member of the new government, and without it, the rights of citizenship are not acquired. Re
p. 325mdeuce here, after the organization of the government, would generally authorize the presumption of assent; for it would be evidence of a union with the new society» When, however, we find a person holding a military ofiice under the regal government, arrested by those who were zealously engaged in effecting a division of the empire, and in rearing a new government, for his disaffection to that new government, so soon after the declaration of independence ; and. when we find him a prisoner for that cause, and immediately thereafter departing out of the jurisdiction of the new government, and in all human probability, taking part, and bearing arms against its independence j and, finally, when we consider, that his arrest and departure took place before the institution of a regular government in any of its departments, it appears manifest to me, that he cannot be considered as having thrown off his allegiance to the former government, and that, consequently, he never became a member of the new government, but remained a
British subject.
The plaintiff’s counsel has referred us to an ordinance of the Convention of this state, of the 16th of July, 1776, which, he supposes, recognises persons in the situation of Major Edmonston, as citizens. It resolves, 61 that all persons, abiding within the state of Mew- York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the state $ and that all persons passing through, visiting, or making a temporary stay in the said state, being entitled to the protection of the laws, during the time of such passage, visitation, or temporary stay, owe, during the same time, allegiance thereto; and that all persons, members of, or owing allegiance to this state, as before described, who shall levy war against the said state, within the same, or be adherent to the king of Great Britain, or others, the enemies of said state, giving to him or them aid and comfort, are guilty of treason against the state j and, being thereof convicted, shall suffer the pains and penalties of death.”
This ordinance takes the distinction between such persons as were abiding within the state, and, as such, deriving protection from, and owing allegiance to the laws, and thereby
p. 326becoming members of the state 5 and such as were passing' through, visiting, or making a temporary stay within the state. The former class, those who were abiding here, were considered by the Convention as citizens; but the latter class were considered as owing a mere temporary allegiance, which terminated with their departure from the state. The resolution distinctly admits, that such persons as were making a temporary stay, who did not mean to abide here, but to leave the country as soon as they could, were not members of the new community. This ordinance, then, so far from regarding persons in the situation in which we find Major Edmonston, as members of the new government, in my judgment, considers them not to be such members. It will be recollected, as a known historical fact, that in the early part of the contest, the several provinces assumed arms, merely for the redress of grievances, and that there was no idea of erecting independent governments, and throwing off all allegiance to the British government, until thé period of the declaration of independence by Congress. Residence in this state, prior to that event, imported nothing, as regards the election or determination of such residents, to adhere to the old, or to adopt the new government. The temporary stay, mentioned in the resolution of the Convention, passed only twelve days after, the declaration of independence by Congress, and within five days after the adoption of the declaration by the Convention of this state, clearly imports, that such persons who were resident here without any intention of permanent residence, were not to be regarded as members of the state; and such was the precise character and situation of Major Edmonston’s residence. The case of M‘Ilvaine v. Coxe’s Lessee, ( 4 Cranch, 209 .) has been relied upon, as a strong and decisive authority for the plaintiff. The facts of that case are stated in 2 Cranch, 289 . The opinion delivered by Mr.. Justice Cushing, contains no principle at variance with the conclusion to which I have come in this case. It proceeds entirely on the ground, that Daniel Coxe remaided in JYew-Jersey, not only after she had declared herself a sovereign state, but after laws had been passed, by which he was pronounced to be a member of, and in allegiance to the new government. The
p. 327right which
Cosoe liad to elect to abandon the
American cause, and to adhere to his allegiance to the king of
Great Britain, I understand not to have been doubted by Judge
Gushing s and he places the decision not only on the continued residence of
Goxe in
JYew-Jersey, until in 1777, but on rfae legislative acts of that state, at several periods, recognising .him as a citizen of the state. That case being essentially different from this, in the important facts of the case, can have no influence in the decision.
The plaintiff’s counsel relied, also, on another ordinance or resolution of the Convention of this state, of the 10th of May, 1777, offering u a free pardon to such of the subjects of the state as, having committed treasonable acts against the same, shall return to their allegiance.” This ordinance leaves the inquiry, who were subjects of the state, open to examination 3 and I have endeavoured to show, that Major Edmonston was not a subject of the state. Besides, this resolution was posterior to the adoption and promulgation of the state constitution 3 and treasons may have been committed in the interval between the adoption of the constitution and this ordinance. There may, also, have been persons who had, openly and unequivocally, made their election to become members of the new government, and who were afterwards guilty of treasonable acts. When the Convention speak of subjects of the state, they speak of those who owed a permanent allegiance to the state as a political body, and had acquired the rights and ovyed. the duties of citizenship 3 for we perceive, that the same Convention had, on the 16tli of July, 1776, discriminated, with great accuracy, between an abiding in the state, which produced permanent allegiance, and a temporary stay, which exacted obedience only during such stay.
Having come to the conclusion, that William Edmonston never became a citizen of this state, he was incapable, from his alienage, of taking by descent from his brother. This disposes of the cause, and renders it unnecessary to consider the other points raised by the defendant’s counsel.
Platt, J. concurred.
Woodworth, J» dissented.
Judgment for the defendant.