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Central Law Journal.

ST. LOUIS, MO., AUGUST 16, 1901.

bation officer, generally for a few months or longer as the court may deem advisable. The child is advised that if his conduct is such as not to give offense during the time of his parole he will be brought back to the court and discharged, but that if his actions do not show such improvement the probation officer is charged with the duty to arrest and return him to the court, when more serious punishment will be meted out to him. The child is now a ward of the court. The probation officer, acting under the court's direction, looks after the paroled children and reports at stated intervals upon their behavior, and the character of their surroundings and of their care and keeping. These officers are friendly visitors with authority to enter the home and help parents and guardians to manage and control their refractory children, or, if such parents or guardians are not fit persons for such purpose, to take them from the home and its evil surroundings, and put them under different and more healthy influences during the time of their parole. Under the prudent care and advice of these officers many a child criminal is saved from the damning influences of the jail on the one hand, and, in many cases, of his home sur

One of the most recent and important advances in criminal trial and procedure is the inauguration in several of the larger cities of the United States of what is known as the probation system for the trial and custody of minor criminals. It is not seldom the case that the first offense of a child is done out of a spirit of mischief, rather than from any criminal intent, and when shown the seriousness of his act is usually very repentant and easily impressed either for good or evil. If tried, condemned and imprisoned as other criminals, his acquaintance with vice is widely extended and his heart gradually hardened in crime; and equally dangerous to society and to the child is the discharge of the juvenile offender with a simple reprimand, inculcating in him a feeling of disrespect for the courts and the dignity and authority of the state. To be compelled to choose between two such alternatives, either of which gave little promise of good results, was always, and is still, a serious embarrassment to magis-roundings on the other, and his life turned trates having the public interest at heart. This embarrassment is quite completely relieved by the happy thought which originated the probation system. By the provisions of this system no child of tender years, usually under 12 years of age, may be sent to jail. When a child is arrested, charged with crime, instead of being detained until the day of trial with other criminals, he is given an immediate hearing by the court and put on parole in the care and custody of the probation officer, who is charged with the duty of returning the offender into court on the day set for trial. On that day none other than juvenile offenders are tried, or better still, as in the system in vogue in Chicago, a separate court, called the Juvenile Court, is used exclusively for that purpose, the object being to keep out every contaminating influence and every suggestion of crime, at the same time impressing the child with a sense of the dignity of the court and enormity of his offense. After trial, if proven guilty, the court reprimands the child and places him on parole under the authority of the pro

into channels of usefulness to himself and to
society. Such, in a few words, is the idea
unfolding itself in the probation system. All
of the provisions just suggested are not em-
bodied in any one of the systems now in force,
but are provisions selected from all the differ-
ent experiments of the system in Boston, in
Chicago and in St. Louis, which the writer be-
lieves shows forth the highest perfection of
the system at the present time.
This prac-
tical extension of the system, however, is
still in its infancy, but its wonderful possibil-
ities for good to society and the individual
already suggesting themselves, bid fair to
make this one of the most valuable legacies
bequeathed to the new century by the one
that has just closed.

NOTES OF IMPORTANT DECISIONS.

GIFTS CAUSA MORTIS AND INTER VIVOS.-The distinction between gifts causa mortis and gifts inter vivos, is well brought out in the recent case of Wilson v. Jordan, 29 South. Rep. 823, in which the Supreme Court of Mississippi holds that where the evidence shows that the donor of prop

erty, real and personal, intended that a gift thereof should take effect immediately and irrevocably, the mere fact that the donor is in extremis, ex. pects to die of his illness and does die within a short time, will not make it a gift causa mortis, and hence void as to the land. The court said: The evidence shows clearly that it was the intention of the donor that the gifts of property, both real and personal, should take effect immediately and irrevocably, and that the gifts were fully executed by a complete and unconditional delivery at the time. Whenever this is the case, the mere fact that the donor is in extremis, expects to die, and does die of that illness even, does not affect the validity of the gifts, because they were, in such case, gifts inter vivos, and not gifts causa mortis. To hold otherwise would be to declare that no one could make a deed to land when sick of his last illness, no matter how clear the intention to make a deed conveying a present interest absolutely and unconditionally. The test whether the gift is one inter vivos or one causa mortis, is not the mere fact that the donor is in extremis, and expects to die, and does die of that illness, but whether he intended the gift to take effect in præsenti, irrevocably and unconditionally, whether he lives or dies. This is the correct view set out in 14 Am. & Eng. Ency. Law, pp. 1014, 1015, par. 6. See, specially, Carty v. Connolly, 91 Cal. 15, 27 Pac. Rep. 599; Hatcher v. Buford, 60 Ark. 169, 29 S. W. Rep. 641, 27 L. R. A. 507; Henschel v. Maurer, 69 Wis. 576, 34 N. W. Rep. 926; McCarty v. Kearnan, 86 Ill. 292. The absence of any hope of recovery," says Judge Cassoday in the Wisconsin case, "is persuasive to show the intent that the deed should take effect in præsenti; and the same observation may be made where all is conveyed as here. Conveying all is evidence of absence of hope of recovery, but also evidence that because of it the party means the gift to take effect at once, unconditionally and irrevocably. The fallacy in the argument for appellee and cross appellant is the assumption that, wherever the facts show that the donor is in extremis, expects to die, and does die of that illness, then, necessarily, without more, and without regard to the real intent and actual delivery of the deed, the gift must be taken to be one causa mortis, and hence, as to land, void, since, of course, land is not the subject of a gift causa mortis. But, as shown, this denies to a donor in extremis the power under any circumstances to make a gift of land inter vivos by deed."

REAL PROPERTY-DRAINAGE OF OIL LANDSDAMAGES.-Where A leased two adjoining tracts of oil land from different parties, B and C, agreeing to pay royalty on all the oil produced, and then sank a well on C's land only, intending to drain and in fact draining the oil from B's land, held, in equity, B is not entitled to the royalties on all the oil produced, on the theory of confusion of goods, but only on the proportion of oil, to the whole amount produced, which the area of his

land so drained bears to the land drained in the other tract. Kleppner v. Lemon, 48 Atl. Rep. 483, Sup. Ct. Pa., March 25, 1901.

Cases relating to oil and natural gas necessarily involve difficult and uncertain points, for although both are minerals, because of their peculiar attributes, as the subject of property, they differ from other minerals, and the term "minerals feræ naturæ," used by Mitchell, J., in Westmoreland Co. v. De Witt, 130 Pa. 235 (1890), illustrates their nature. Thus, until the owner of the land has actually reduced the oil into his possession he has no exclusive property right in it, and if an adjoining proprietor by sinking a well in his own land draws off the oil, the owner of the drained land has no remedy. Achison v. Stevenson, 146 Pa. 239 (1891); Brown v. Spilman, 155 U. S. 665 (1895). This result is in accord with the doctrine as to percolating water (Acton v. Blundell, 12 M. and W. 324), and has been followed in Vermont, even in the case of malicious interception. Chatfield v. Wilson, 28 Vt. 49 (1855). In view of this doctrine, where oil lands are leased in consideration of a royalty, the law implies a covenant on the part of the lessec to work the lands properly and with due diligence so that the lessor should not sustain loss by the operations of adjoining proprietors. Brown v. Vandergrift, 80 Pa. 142 (1875); Koch's Appeal, 93 Pa. 434 (1880). It seems from an earlier report, Kleppner v. Lemon, 176 Pa. 502 ¡(Sup. Ct., 1896), that the lessee A, in the principal case had forfeited his lease; but it is not shown in the present report whether the lessor is trying to obtain damages for the breach of the implied covenant to work the lands properly and with due diligence, or is attempting to get satisfaction for the oil willfully drained from his land. If the lessor's action is on the implied covenant, the measure of damages ought to be determined in a more accurate way, for the relative areas of the two tracts show nothing as to the amount of oil lying under the surface. In a question of so uncertain a nature, the measure of damages laid down in Bradford Oil Co. v. Blair, 113 Pa. 83 (1886), seems preferable. The court there decreed that a master should ascertain how much more oil the plaintiff ought to receive, over and above what he had received, deducting from this the cost of producing what ought to have been produced. So here, an estimate of the amount of oil lying under the lessor's land should have been made and the royalties allowed on that quantity only. But if the lessor is attempting to get satisfation for the oil drained from his land, it seems doubtful whether he has any right to recover. For the cases of Achison v. Stevenson and Brown v. Spilman hold that the owner of the soil has no such property right in oil, before it is reduced to possession as to be able to bring trover for it, if it is drained off through the land of another. As the action was in equity, the court might, however, have given damages for the fraud practiced on

the plaintiff. See Law of Mines and Mining in the U. S. Barringer & Adams, Ed. (1897.)-Columbia Law Review.

CRIMINAL EVIDENCE-DYING DECLARATIONS. -In the opinions of many lawyers with wide experience of the criminal law, the rules as to the admissibility of dying declarations have become too rigidly defined, and the exclusion of such declarations on technical grounds leads not infrequently to the escape of the guilty and miscarriage of justice. We are far from saying that there was any miscarriage of justice in the recent case of Rex v. Smith at the Old Bailey, as there appears to have been a substantial defense to the charge on its merits, but it supplies a very good example of the somewhat mischievous strictness alluded to above. It was an indictment for murder by performing an unlawful operation on a woman, and there was no evidence upon which the defendant could be convicted if a declaration made by the woman on her deathbed were excluded. It appears that the deceased was informed that her life was in danger, and a magistrate was called in, in whose presence a statement from her was taken down in writing. Before this was done she said: "I am aware that I am seriously ill," and then her statement was taken down in narrative form, but induced by questions put to her. Of course the fact that the gentleman called in was a magistrate made no difference at all in law, for there was no pretense that the statement was a deposition. Under these circumstances Bruce, J., rejected the statement, closely following the authority of Reg. v. Mitchell, 17 Cox 503. He held that in order that the statement could be received it was necessary to show that there was a "settled hopeless expectation of impending death”—that is, of "immediate or almost immediate death;" and that the woman's words did not show such an expectation of immediate death. No doubt the learned judge was perfectly right, according to the reported cases. But to insist upon the necessity of the deceased person being absolutely devoid of hope is, it is submitted, going much too far. The reason for allowing this great exception to the rule against hearsay evidence was given by Eyre, C. B., in Woodcock's ease, 1 Leach, 500. He said that dying declarations are received because they are made in extremity, when every hope in this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice, Now surely a person who knows that he will most probably die in a very short time is likely to be under just this motive to speak the truth and avoid falsehood. It ought to be sufficient to prove that the deceased when he made the declaration realized that his life was in serious and immediate danger. It may well be doubted whether a dying person ever quite abandons all

hope. Especially where a strong man is struck down by the knife of the assassin, there is probably some hope of recovery present as long as consciousness lasts. But the motive described by the Chief Baron will surely exist where there is a realization of the great probability of approaching death, even though there be an atom of hope left. Probably it would work no injustice if the declarations of dying persons, who were aware of their danger, as to the cause of death were always allowed to go to the jury. The jury would then have to decide from the evidence what weight to give to the statement; and in order to arrive at a decision, would consider the state of mind of the deceased at the time, whether he really believed he was in great danger, whether he was sufficiently clear-headed to know the effect of his words, whether the statement was made, owing to suggestions by others, etc. There can be little doubt that, as human nature is constituted, a man who knows that his immediate death is probable, is most likely to speak what he believes to be true. He may tell a deliberate falsehood, but it is not probable. If, then, the judge is satisfied that the deceased man was aware that his life was in imminent danger, the declaration ought to be admitted, without going so far as to insist that he must have lost all hope. The weight to be given to the evidence, and the reliability of it, would always be open to comment, and a jury under proper direction might, it is submitted, be trusted not to give undue weight to the declaration of a dead man.-. -Solicitors' Journal.

REASONS AND SCOPE OF MUNICIPAL LIABILITY FOR DEFECTIVE HIGHWAYS.

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Section 1. Reasons for Responsibility.The management of highways may be characterized as municipal duties relating to governmental affairs. During the early periods of English history highways were laid out and constructed directly by the government. The government assumed the immediate and sole management of them, and this was recognized as an essential governmental function. In this country the control of highways is primarily a state duty. They are everywhere maintained for the use of the public at large. "To the commonwealth here, as to the king in England, belongs the franchise of every highway as a trustee for the public; and streets regulated and repaired by the authority of the municipal corporation are as much highways as are rivers, rail

1 Barney v. Keokuk, 94 U. S. 324; Peop e v. Sup er visors, 112 N. Y. 585; Davies v. Saginaw Count y, 8 Mich. 295.

2

roads, canals or public roads laid out by authority of the quarter sessions. In England a public road is called the king's highway; and though it is not usually called the commonwealth's highway here, it is so in contemplation of law, for it exists only by force of the commonwealth's authority." In this country it is generally true that the construction, maintenance and repair, and almost exclusive control of highways, has been delegated by the state to its municipal corporations, and ordinarily they are invested with adequate power to properly perform such duties. Counties are generally given similar control and authority over highways within their limits, but in most states the rule is that, in the absence of express statute de. claring the liability, such corporations are not subject to private action for neglect in this respect or for the negligent discharge of these duties. With few exceptions the rule is otherwise as to municipal corporations. Usually cities have conferred upon them extensive powers in the management of their highways, streets, bridges, alleys and sidewalks, and adequate means to keep them in a reasonably safe condition for use in the usual mode by travelers; and hence they are held liable to private action for special injuries resulting from omission to perform this duty, and for the negligent performance of it. It is obvious that such obligation, so far as travelers are concerned, is one of a public character, fulfilled, not for pecuniary profit or private corporate advantage, but exercised as a purely governmental function. The liability," remarked the Supreme Court of Missouri, "it is generally said, arises by implication from the nature of the subject and the vast powers conferred upon such corporations, including the exclusive control of the streets."'4 The New England commonwealths and a few other states

2 Per Gibson, J., in O'Connor v. Pittsburg, 18 Pa. St. 187, 189.

3 Blake v. St. Louis, 40 Mo. 570; Smith v. St. Joseph, 45 Mo. 449; Bowle v. Kansas City, 51 Mo. 454; Vogelsang v. St. Louis, 139 Mo. 127; Wiggins v. St. Louis, 135 Mo. 558; Sindlinger v. Kansas City, 92 Mo. 482; Burdoin v. Trenton, 116 Mo. 358. See article on "Liability of Municipal Corporations for Torts," etc., 50 Cent. L. J. 84 to 90.

Kiley v. Kansas City, 87 Mo. 103, 107; Halpin v. Kansas City, 76 Mo. 335; Russell v. Columbia, 74 Mo. 480; Welch v. St. Louis, 73 Mo. 71; Bassett v. St. Joseph, 53 Mo. 290.

deny all liability, unless imposed by statute, because it is regarded as merely "the neglect of a public duty imposed upon it (the city) by law for the benefit of the public, and from the performance of which the corporation receives no profit or advantage." This view is ably supported by Gray, C. J., in the leading case of Hill v. Boston,5 where the cases are critically reviewed and the conclusion is adopted that at common law no private action would lie for injuries inflicted on account of failure to repair a highway or bridge, unless the right to such action was given by statute. But the decisive question involved in this case related to the liability of the municipal corporation for maintaining what was claimed to be a defectively constructed public school building; however, the case is always cited to support the common-law doctrine of non-liability. So in Michigan there is no common-law liability for injuries received by reason of defective highways and streets, and statutes giving such remedies are strictly construed in that state. Mr. Jones endeavors to prove that "the best English cases favor the view that a private action can be maintained for injuries suffered from a breach of this duty by a public corporation," and he asserts that in this country "the decided weight of authority sustains the proposition that there is a common-law liability arising upon every chartered municipality for special damages occasioned by its neglect to repair a highway over which it has control." Although the reason for municipal liability as given by the Supreme Court of Missouri may not be wholly satisfactory, it is usually advanced by the decisions. It should be observed that streets in cities have peculiar and local uses distinct from state highways. Judge Dillon concludes that "this duty or burden must appear upon a fair view of the charter or statute to be imposed or rest upon the municipal corporation, as such, and not upon it, as an agency of the state, or upon its officers as independent public officers." Mr. Jones con

5 122 Mass. 344, 23 Am. Rep. 332, 6 Am. & Eng. Cor. Cas. 54.

6 Face v. Ionia, 90 Mich. 104.

7 Jones, Neg. Munic. Corp. § 45 et seq. See 2 Dillon, Munic. Corp. §§ 999 to 1,017; Elliott on Roads and Streets, p. 444 et seq.

8 Goodnow, Munic. Home Rule, pp. 147, 148. 92 Dillon, Munic. Corp. §§ 123, 123a.

tends that the reason is found in the fact that "the duty to keep the streets in repair is a municipal duty in regard to property rights which rests upon the corporation as an independent member of society, and the rights of others are infringed if their action for damage for its breach is taken from them by the courts.''10 This reason can hardly be accepted. Courts everywhere decline to recognize that the city possesses any property rights in the streets, although they may be a source of profit to the municipality. The interest is exclusively publici juris, and is in any respect wholly unlike property of the private corporation which is held for its own benefit and used for its private gain and advantage.11 In many states the fee of the street is in the abutting property owner, the public only possessing a mere easement therein, which is committed to the guardianship of the city as a public trust. Where, as in some states, the fee is vested in the municipality, it is so vested in trust for the public. If the control and preservation of the rights of the public in the street on the part of the municipal corporation is to be regarded as in the nature of managing property, municipal liability logically follows where damages result because of negligence in this respect. Although the courts have experienced much difficulty in ascertaining a logical ground upon which to base the doctrine of implied liability of chartered cities, when at the same time it is denied as respect counties, townships and towns without charters, and also denied in other matters wherein the municipal corporation proper is charged with duties relating to governmental affairs, yet whatever may be the true ground the law in the states generally established the liability. The fact alone that the doctrine may be conceded to be exceptional does not prove that it is unjust. It is fully vindicated by the decisions and has found a firm place as a sound and wholesome rule of law in American jurisprudence.12

Sec. 2. Ground of Liability.—The rule of law which imposes the obligation upon municipal corporations to keep their streets and

10 Jones, Neg. Munic. Corp. § 58.

11 People v. Kerr, 27 N. Y. 188, 192, 197 to 200. 12 Jones, Neg. Munic. Corp. 51 et seq.; 2 Dillon, Munic. Corp. § 1000 et seq.; Elliott on Roads and Streets, pp. 444, 445.

public ways reasonably safe for travel in the ordinary modes, by night as well as by day, is a comprehensive one. Municipal liability may arise for any wrongful act which makes the use of the way unsafe, first, whether it is done by the city itself, its officers or servants, or by others under its authority, which would constitute misfeasance on the part of the corporation, or second, by third persons, which would constitute neglect of the corporation in omitting to put streets in repair or failure to remedy the causes of danger occasioned by the wrongful acts of others, as by removing obstructions therefrom, or dangerous excavations therein. In either case the proximate cause of the injury, in the language of the law, would be the want of due care or skill on the part of the corporation. In the first instance the city would be liable without establishing notice of the condition of the streets, whereas, in the second, either actual or presumptive notice, or its equivalent, is indispensable to constitute a cause of action. It is also essential to a recovery 13 that the plaintiff be free from such fault as in the law of negligence would constitute his act the proximate cause of the injury. In other words, he should have been using reasonable or ordinary care, or have been free from neglect, according to the circumstances, in order to avoid the injury.14

Sec. 3. Duty Belongs to City and Cannot be Shifted. The obligation of keeping the streets in proper condition belongs to the city itself, and is a continuous one which cannot be shifted to another.15 Thus, a city cannot relieve itself of the duty to put up sufficient barriers to warn or guard persons passing upon its streets by showing an agreement with an independent contractor to protect and guard an excavation made in its streets.16. The act of a person making an excavation in the street by permission of the city is the act of the city, and no notice to

13 Carrington v. St. Louis, 59 Mo. 209; Garvin v. St. Louis, 151 Mo. 334; Atwater v. Baltimore, 31 Md. 462. 14 New York Cent. R. R. v. Lockwood, 17 Wall. (U.S.) 357; Milwaukee Ry. Co. v. Arms, 91 U. S. 495; Vaughn v. Taff Valle Ry. Co., 5 H. & N. 679. 688; Gerdes v. Iron Foundry Co., 124 Mo. 347; Cohn v. Kansas City, 108 Mo. 387.

15 St. Louis v. Conn. Mut. Life Ins. Co., 107 Mo. 92; Norton v. St. Louis, 97 Mo. 537; Franke v. St. Louis, 110 Mo. 516.

16 Welch v. St. Louis, 73 Mo. 71; Russell v. Columbia, 74 Mo. 480; Britton v. St. Louis, 120 Mo. 437.

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