« AnteriorContinuar »
pear, but it is to be presumed that they corresponded principle upon which our government is formed, in liberality to those dealt out to others. The court certainly does appear to leave the danger of mob very properly refused to confirm this report, saying violence in localities unprovided for, yet we do not that, in the distribution of estates intrusted by law know but that our authorities are as successful in to their administration, the courts act for absent checking mobs as those of countries where the cencreditors and unrepresented parties who repose with tral government undertakes that business, as in confidence in their care, and no right exists in them France, for instance. Perhaps the railway interests to sequester the money equitably belonging to of the country should be under the control of the others on lavish and injudicious allowances to trus- | Federal government, but not merely because the tees and attorneys. The amount of the estate men- | strikers destroyed railway property. tioned was upwards of $1,000,000, but the court says that the simple employment of officers of the
The judges of the Federal courts in Indiana, who law to aid an assignee having that amount to administer, does not necessarily, or by any just deduc
committed persons for interfering with trains upon tion from the magnitude of the sum, “entitle them
railroads in the hands of receivers, have concluded
to remit a portion of the penalties imposed; the to any increased compensation for their services beyond what might be allowed where the fund was
object in imposing such penalties, namely, to mainsmall in amount.” While compensation for legal ser
tain the authority of the courts and prevent the repe
tition of the offense, having been substantially accomvices performed in reference to property must be, to
plished. We regret that this action has been taken. some extent, measured by the amount involved, the action and reasoning of Judge Robinson are right.
A brief imprisonment is but little punishment to One of the charges made by the public against the
those who engage in the work of wrecking raillawyers is, that they plunder estates falling into
roads, and while most of those who committed such their hands for settlement. The courts should see
acts had, probably, no actual knowledge that they
were guilty of a contempt of court, they knew to it--and they can do so — that such charges are not justified. The exorbitant awards to counsel,
well enough that they were violating the law, and
they had little care what they did so long as it did referees, receivers, assignees and others, permitted
not injuriously affect themselves. If they merited by courts, especially in the city of New York, has tended to make the profession unpopular, and we
the attention of the Federal courts at all, they deare glad to see that the Court of Common Pleas
served and should suffer the punishment inflicted means to pass such awards no longer.
The daily newspapers, from time to time, call atAn article in the current number of the North tention to the existence of a system of persecution American Reviero, by Mr. Thomas A. Scott, President that defendants in criminal cases pending before of the Pennsylvania Railroad Company, contains the Federal courts in the Northern District of New some valuable suggestions as to the legislation re- York are subjected to by reason of the great terriquired to prevent a recurrence of labor strikes and torial extent of that district. Persons accused of mobs, of the character recently prevailing along the some trifling violation of the revenue or other Fedprincipal lines of railway in this country. He sug eral statutes, are dragged long distances for comgests that the Federal government is alone able to mitment and trial, and if out on bail are subjected deal with such disturbances, and cites in proof of to very great expense in attending and procuring this the fact that the strikers and rioters took care the attendance of witnesses at places remote from to let alone those railroads which were in the hands their homes and business, where the court may be of receivers appointed by United States courts. / held. The various court officers, such as marshals He might have added the other circumstance that, and deputies, and the hangers-on, are interested in so far as they were able to do so, the rioters avoided making the annoyances to which a defendant is put interfering with the passage of mail trains. The from this circumstance, as great as possible, these organfzation of our government unintentionally fa- | individuals being paid mileage fees for traveling vors the success of a mob. In many States the or pretending to travel about the State, in the permayor of a city must first exhaust his power before formance of their duties. Now and then a judge, he can call on the county authorities, then the sheriff when his attention is called to a case of more must essay his strength, and if he fails he may call than ordinary hardship, censures the acts of on the State. Then the State must make an unsuc- the officers, but this does but little good. The cessful trial, so as to put it in a position to apply to trouble is in the territorial extent of the district, the Federal government for aid. In other words, and the numerous places where the courts hold the rioters must be victorious over the public au- their sessions. The district should be made into thorities upon three occasions, before a power which two, or the business should be so divided as to do must be submitted to, interferes. The fundamental | away with the necessity of a trial or appearance by
a defendant at sessions of the courts appointed to 4 E. D. Smith, 245; Everhart v. Scarle, 71 Penn. St. be held at places remote from his residence.
256; Raisin v. Clark, 41 Md. 158; 20 Am. Rep.
66; Schwartze v. Yearly, 31 Md. 270; Morrison v. Our courts have almost every kind of subject | Thompson, L. R., 9 Q. B. 480; Rice v. Wood, 113 brought before them for adjudication, but they are | Mass. 133; 18 Am. Rep. 459. In some cases it is as yet relieved from the necessity of determining | intimated that where the employment by both is whether the dress of a clergyman, while officiating | known to both he can recover from both. Pugsley in his church, is proper, or whether certain acts are v. Murray, supra, but even this has been denied. legitimate, or whether certain church decorations In Raisin v. Clark, supra, the court says: “It is perare lawful. In the case of Risdale v. Clifton, rc- | haps possible for the same agent to serve both cently decided, the argument of which occupied the parties to such a transaction honestly and faithattention of the Judicial Committee of the Privy fully, but it is very difficult to do so, and the tempCouncil from January 23 to February 1 of this year,
tation to do otherwise is so strong that the law has inclusive, and the report of which occupies twenty wisely interposed a positive prohibition to any such four double column pages of the Law Times Reports, attempt.” And see to the same effect, Morrison v. the questions discussed were, whether it is lawful Thompson, supra. for the officiating minister to wear, during the service of the holy communion, the vestments known In Hopkins et al. v. Great Northern Railway Co., as an alb and a chasuble; whether it is lawful for 36 L. T. Rep. (N. S.) 898, recently decided in the the officiating minister, while saying the prayer of English Court of Appeal, it is held that consecration in the communion service, to stand on of an ancient ferry is not entitled to maintain an the west side of the communion table, with his face action for disturbance of the ferry against persons to the east and his back to the people; whether it is who provide a new mode of transit to meet the lawful for the minister to use, in the administration requirements of a new traffic. In this case, a railof the communion, bread made in the form of cir- | way company, under the powers of the act under cular wafers; and other questions of like nature. which it was incorporated, constructed a railThe result of the discussions is not of the slightest way bridge and a footway, which was used by importance to the profession on this side of the the public as a means of access to the station water, but the subject forms no inconsiderable part | and other places across a river. The plaintiffs of the body of the English law, and is one upon owned an ancient ferry about half a mile lower which no small amount of talent and learning are
down the river. In consequence of the building of employed.
the bridge, the traffic by the plaintiff's ferry ceased,
and the ferry was given up. The plaintiff brought NOTES OF CASES. a
an action against the company to recover compenIn Lynch v. Fallon, recently decided by the Su sation awarded by an umpire under the statute, preme Court of Rhode Island, the action was for | for the disturbance of the ferry. The court held, services as a broker, in negotiating an exchange of reversing the decision of the Queen's Bench Divisreal estate. The plaintiff, who was employed by a ion, that the company was not liable on the ground corporation to sell its land, exchanged that land | that (1) no action would lie against it for disturbfor the land of defendant, who agreed to compen- ance of the ferry if the bridge and footway had not sate him for making the exchange, and after it was been made under the powers of the Company's Act, made promised to pay the sum for which the action and (2) that the plaintiffs were not entitled to comwas brought. It did not appear that the corpora pensation under the statute, as the plaintiff's loss tion for which plaintiff was also acting in the mat was occasioned by the working of the railway, and ter, and against which he made a claim for services not by the construction of the railway works. The therein, knew of his agreement with defendant. court, in its decision, overrules the case of Regina The court held defendant not to be liable, saying | v. Cambrian Railway Co., 25 L. T. R. (N. S.) 84; that the general rule is, that though a person may L. R., 6 Q. B. 422. The ferry proprietor is put by be entitled to pay from both parties to a sale or ex- it upon the same ground that proprietors of turnchange, where he acts merely as a middleman to bring pike roads, of canals, and others who have suffered them together (Rupp v. Sampson, 16 Gray, 398; from the diversion of traffic by means of railways. Siegel v. Gould, 7 Lans. 177), he cannot be allowed In this country it has been held that a legislature to serve as an agent or broker for both, because in having granted a ferry franchise may authorize the such case there is a necessary conflict between his , erection of bridges that will take the trade and interest and duty, and he is exposed to a tempta- | travel away from the ferry and destroy the frantion to sacrifice the interests of both his principals chise, without any compensation to the owners of to secure his double commissions. See, as support the ferry for such damage. See Piatt v. Covington ing this view, Farnsworth v. Hlemmer, 1 Allen, 494 ; Bridge Co., 8 Bush, 31; Charles River Bridge Co. v. Walker v. Osgood, 98 Mass. 348; Pugsley v. Murray, ' Warren Bridge Co., 11 Pet. 420.
cations, libel and slander of sex, impotence, divorce; SOME RECENT DECISIONS — 2011 AMERICAN.
all the nameless catalogue of indecencies, la chronTHIS volume gives us selections from 26 volumes
| ique scanduleuse of all the vices and all the infirmi
ties of all society, with which the profession has to 1 of reports of the States of Alabama, Illinois,
deal, and which go toward filling judicial reports Iowa, Maine, Maryland, Massachusetts, Michigan, which must be read for accurate 'knowledge of the New Hampshire, New York, New Jersey, West | law. This is bad enough for men. We hold in too Virginia and Wisconsin. In a cursory examination
high reverence the sex, without which, as is trully we have noted a few of the more curious and strik
and beautifully written, le commencement de la vie est
sans secours, le milieu suns plaisir, et le fin sans coning cases reported.
solation, voluntarily to commit it to such studies The chief interest of the Wisconsin cases is in and such occupations. Non tali aurilio nec defensoseveral cases involving the constitution and practice ribus istis should juridical contest be upheld. Reverof the courts. In Matter of Goodel, 39 Wis. 232,
ence for all womanhood would suffer in the public
spectacle of woman so instructed and so engaged. the right of women to be admitted as attorneys was
This motion gives appropriate evidence of this thoroughly considered and denied. Some of Chief truth. No modest woman could read without pain Justice Ryan's opinion is so excellent that we must and self-abasement, no woman could so overcome the find room for it. He says:
instincts of her sex as publicly to discuss the case
which we had occasion to cite supra, king v. Il'ixe“So we find no statutory authority for the admis
man. And when counsel was arguing for this lady, sion of females to the bar of any court of this that the word person,' in § 32, ch. 119, necessarily State. And with all the respect and sympathy for includes females, her presence made it impossible this lady which all men owe to all good women, we to suggest to him as reductio ad absurdum of his cannot regret that we do not. We cannot but think
position, that the same construction of the same the common law wise in excluding women from the word in § 1, ch. 37, would subject woman to proseprofession of the law. The profession enters largely cution for the paternity of a bastard, and in $$ 39, into the well-being of society; and to be honorably 40, ch. 164, to prosecution for rape. Discussions filled and safely to society, exacts the devotion of | are habitually necessary in courts of justice, which life. The law of nature destines and qualifies the are unfit for female ears. The habitual presence of female sex for the bearing and nurture of the woman at these would tend to relax the public children of our race, and for the custody of the sense of decency and propriety. If, as counsel homes of the world and their maintenance in love threatened, these things are to come, we will take and honor. And all life-long callings of women, no voluntary part in bringing them about.” inconsistent with these radical and sacred duties of their sex, as is the profession of the law, are de
A more admirable piece of judicial wisdom, partures from the order of nature, and, when volun- | more replete with humane and chivalrous feeling, tary, treason against it. The cruel chances of life
or couched in a more beautiful style, it will be sometimes batlle both sexes, and may leave women
difficult to find in the law books. We commend it free from the peculiar duties of their sex. These may need employment, and should be welcome to
to the woman who wants to be a lawyer, and at the ay not derogatory to the sex and its proprieties, or same time a consideration of the anonymous case inconsistent with the good order of society. But on the subject of slander, 60 N. Y. 262, which it is public policy to provide for the sex, not for its
was embraced in 19th American, but to which we superfluous members; and not to tempt women from the proper duties of their sex by opening to them
did not deem it best, when reviewing that volume, duties peculiar to ours. There are employments in to draw particular attention. life not unfit for female character. The profession
In Matter of Mosness, 39 Wis. 500, it was held of the law is surely not one of these. The peculiar qualities of womanhood, its gentle graces, its quick
that a non-resident cannot be admitted to the bar, sensibility, its tender susceptibility, its purity, its
although he is a counselor in good standing where delicacy, its emotional impulses, its subordination of he resides; and a statute authorizing such admission hard reason to sympathetic feeling, are surely not is invalid. At the same time the court observed qualifications for forensic strife. Nature has tempered
that foreign counsel would always be heard with women as little for the judicial contlicts of the courtroom, as for the physical conflicts of the battlefield. | pleasure, ex gratul. In Van Slyke v. Trempealeall, Womanhood is moulded for gentler and better etc., Ins. Co., 39 Wis. 390, it was held that a statute things. And it is not the saints of the world who authorizing actions, in which the judge was interchietly give employment to our profession. It has
ested or prejudiced, to be tried by consent before a essentially and habitually to do with all that is selfish and malicious, knavish and criminal, coarse
counselor of the court, was unconstitutional, and a and brutal, repulsive and obscene in human life. It person assuming to act under it was not even a would be revolting to all female sense of the inno- judge de facto. They have a curious law in that cence and sanctity of their sex. Shocking to man's
State, under which “mere imputation of prejudice reverence for womanhood and faith in woman, on which hinge all the better aflections and humanities
to the circuit judge, made in proper time by either of life, that woman should be permitted to mix pro party to a civil action, entitles the party making it fessionally in all the nastiness of the world, which to a change of the venue.” It was to save the nefinds its way into courts of justice; all the unclean
cessity of such change in such cases that the statute issues, all the collateral questions of sodomy, incest, rape, seduction, fornication, adultery, preg
under discussion was passed. nancy, bastardy, legitimacy, prostitution, lascivious Another case in another State, where the court
abitation, abortion, infanticide, obscene publi. I was in trouble with its own working, was Dalrymple v. Williams, 63 N. Y. 361. There the foreman of a | vailable to any one finding it. In the other case, a jury announced a verdict different from that agreed statute making railroad companies liable for all upon, and it was so recorded. Held, that affidavits expenses of the coroner and his inquest, and the of the jurors were competent evidence to prove the burial of all persons who may die on the cars, or mistake. A valid distinction is drawn between who may be killed by collision or other accident affidavits of jurors to impeach a verdict recorded in occurring to such cars or otherwise," was held unconformity to the agreement, and to correct a ver constitutional, so far as it attempts to impose liadict recorded contrary to the agreement
| bility where there has been no negligence or violaThe so-called trade-mark case of Meneely v. Meneely, tion of law. This was certainly a most extraordi62 N. Y. 427, we have several times noticed. The nary statute, and could only be justified on the attempt of one brother to restrain another brother theory that such corporations are liable to any sort from the honest use of the family name in a rival of tax, at the caprice of the legislature, in considerestablishment of the same kind of business, was ation of the rights bestowed upon them. defeated.
| Man's instinctive love of physical liberty was seriThe case of Youngblood v. Serton, 32 Mich, 406, ously relvuked in Luke v. State, 49 Ala. 30. A prismay stand among the curiosities of nomenclature. | oner set fire to the jail where he was confined, solely As might be supposed, Sexton was too much for for the purpose of escaping, and controlled the fire Youngblood in the long run.
with water saved from his allowance, so that no The subject of double insurance is illustrated in great injury was done. Still this was held arson, two cases. In Gee v. Cheshire County Mutual Fire Our State and some others are more lenient. But Insurance Co., 55 N. H. 65, the plaintiff, having if the Alabama courts cannot make allowance for a valid insurance in one company, with a condition | one's natural repugnance to staying in jail, they ceragainst double insurance, " whether valid or not,” tainly can for one's conduct when he is suffering obtained a policy from the defendants on the same from the tremens." In Beasley v. State, 50 Ala. property, also conditioned against double insurance. | 149, a confirmed drunkard, while suffering from a fit Held, that the first policy did not terminate of delirium tremens which had lasted several days, instantly upon the execution of the second, so as to committed a homicide; held, that a charge that save the condition in the second, and that there upon the evidence the prisoner was guilty of murder was a double insurance within the terms of the in the first degree or nothing, was erroneous; the second policy; and semble that the condition in the question when the "drunk" stopped and the first policy, making it void in case of an invalid in “tremens” began, should have been submitted to surance, was void. In Thomas v. Builders' Mutual the jury. This is probably right, certainly humane, F. Ins. Co., 119 Mass. 121, the same doctrine was held although to the uninstructed it might seem strange as to the point decided, and in addition it was held to say, that if a man commits a homicide when he that the assured could enforce the first policy, al- | is moderately or even very drunken, he is guilty of though he had received payment of the second. murder, and yet if he has drunk so hard as to proThe latter case is accompanied by a long and excel duce delirium tremens, and in that condition comlent note.
mits the act, it may be excusable. “Drink deep A rather singular question arose in Rockport v. or taste not,” should be the motto of those who Walden, 54 N. II. 167, where it was held that where nerve themselves for bloody deeds by alcoholic stimthe statute of limitations has run on a debt, the ulants. debtor's right to the defense is vested, and any | A very nice question of contributory negligence, statute which afterward annuls or takes it away is as between master and servant, came up in Gibson v. unconstitutional.
Erie Railway Co., 63 N. Y. 449. A conductor of a As against carriers of passengers, the scales of freight train on defendant's railroad, just as the justice are very nicely balanced in Pullman Palace train was moving out of a depot, jumped on a car, Car Company v. Reed, 75 III. 125, and Ohio, etc., and climbed on the ladder to the top, when he was Railroad Company v. Lackey, 78 id. 55. In the knocked off by the projecting roof of the depot, former case, a passenger, who had purchased a ticket and killed. He was familiar with the road; had for a berth in a sleeping car, lost it, and gave evi passed over it daily for seven years; the roof was dence to the conductor that he had done so, but three feet higher than the car, and had not been alrefusing to pay again, the conductor expelled him tered after he entered defendant's employ. There without violence, and he was compelled to ride in a was no evidence that it was his general or special common car. It was held that he could recover of duty to go on top of the cars, but it was shown that the owners of the car the price of his ticket, and a | his place between stations was in the caboose. The reasonable compensation for his trouble and incon question was submitted to the jury, who found for venience, but not exemplary damages, and a verdict the plaintiff, of course. This is now set aside. The of $300 was held excessive. The circumstances judge writing the opinion puts the reversal on the showed that the berth ticket would have been una ground, first, that the deceased was familiar with the danger, and second, that it was not shown that of mere articles of luxury, the court somewhat rheit was necessary or proper for him to incur it at the torically remarks: time in question. Of the seven judges five con- | "The plaintiffs had built a costly mansion, and curred, one putting his concurrence on the second had laid out their grounds and planted them with ground; one did not vote, and the other dissented.
ornamental and useful trees and vines, for their
comfort and enjoyment. How can one be compenSo difficult it seems to be to get a precise and satis
sated in damages for the destruction of his ornafactory determination of the doctrine of contribu
| mental trees, and the flowers and vines which surtory negligence.
round his house? How can the jury estimate their The case of Wolcott v. Mount, 9 Vroom, 496, in value in dollars and cents ? The fact that trees and
vines are for ornament or luxury entitles them no volving the question of the measure of damages on
less to the protection of the law. Every one has the breach of implied warranty of personal property, right to surround himself with articles of luxury, and has reached the ultimate court of New Jersey. This he will be no less protected than one who provides is the turnip-seed case, where it was held, as in our himself only with articles of necessity. The law case of Passinger v. Thorburn, that if one sells seed | will protect a flower or a vine as well as an oak.” as and for a particular kind of seed, and with proper Turning then to Brightman v. Bristol, 65 Me. 426, cultivation it fails to produce the proper crop, he is we find an action against a town, under a statute, liable for the difference between the two crops. We to recover three-fourths the value of a porgy-oil fachave hitherto commented on this doctrine, and can tory destroyed by a mob. The offensive character see no reason to change our opinion that it is ex- l of the business was held to be no justification. travagant, oppressive, and grossly disproportion. “Porgy-oil is an article of commerce," say the ate to the circumstances. The doctrine of the Con court, “and its manufacture an honest and lucrative necticut case cited in the note seems much more one." The opinion contains an interesting review of reasonable, namely: “the measure of damages was cases where buildings have been similarly destroyed. the cost of the seed, the value of the labor in pre In Maine they have reasonable ideas of the sanctity paring the ground for it and planting it, and the of Sunday. Thus, in O'Connell v. Lewiston, the interest on these sums, less the general benefit of the statute against "travelling” on Sunday was held labor to the land.” On a mere implied warranty, not to be infringed by “a young lady, who, on the why should the seed-vendor be charged with the Lord's day, walks one-fourth of a mile to her aunt's value of the anticipated crop, when the failure is house, and calls there and invites her cousin to walk through no fault of his own “Paul may plant, with her, and they then proceed to walk threeand Apollos may water, but God giveth the in- fourths of a mile simply for exercise in the open air." crease.”
The young lady, having in the walk “stubbed her The important question of the liability of muni- | toe" against the loose end of a plank in the sidecipal corporations for injuries produced by culverts, walk, recovered $1,800 for the injuries sustained. was considered in Van Pelt v. City of Davenport, 42 Although in Wisconsin a contract made on Sunday Iowa, 308. It was held that the city was bound to is invalid at law, yet they held in Knox v. Clifford. exercise reasonable care, judgment, and skill in the 38 Wis. 651, that the maker of a promissory note, construction, but that it was not liable for the mis- dated on a secular day, is estopped, as against a bona judgment of a competent engineer as to the capacity; fide holder, from showing that it was made on Sunday. also that if plaintiff could have protected his prop- The question of the rights of an accused person erty at slight cost, he cannot recover more than the testifying in his own behalf, was again up in State expense of such protection. An excellent note is v. Wentworth, 65 Me. 234, and it was held that he appended.
could not refuse to answer on cross-examination on Two important cases on the subject of nuisance the ground that answering would criminate him. call for notice. Campbell v. Seaman, 63 N. Y. 568, This was a complaint for selling intoxicating liquors. is a case which we have twice before noted in its Chief Justice Appleton waxed logically merry in progress to the ultimate court. The defendant man the discussion, observing: “Now what was the ufactured brick with the use of anthracite coal, matter under investigation: A sale by the defendthereby producing a noxious vapor, which, borne by ant or his servant in his shop. It matters not the wind over the plaintiff's lands, destroyed the whether the sale or the authority to sell is denied. fruit and shade trees and shrubbery about his resi- | His answer is exonerative. The question is put, dence. The brick yard had been used before the Did you have any bottles there filled with gin, plaintiff purchased his lands, and although not un- | whisky, rum, and brandy, pint, quart and halfinterruptedly, for more than twenty-five years. Held, pint bottles ?' Shall the question be answered ? that plaintiff was entitled to damages and to an The question is pertinent to the case. A sale is deinjunction restraining the use of coal producing such nied. Before selling he must have liquors to sell. vapors. In the opinion the principal brick kiln | Selling implies having. It is important to prove cases are reviewed. In regard to the claim that it having. Having being admitted, for what purpose is inequitable to restrain a useful industry in favor I were they had ? Were they like —