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must be a duty voluntarily assumed or one imposed become through use unsafe, and continues without any by law. A deposit received by a servant not in the special order of the company, and without making any line of his duty and without the expressed or implied complaint, to use the said appliances, that he will be consent of his principal, and against positive instruc- held to have either run the risk of being injured, or to tions, cannot impose a liability upon the principal. have been guilty of contributory negligence, and hence In such the deposit is a mere personal trust in the ser- in case of injury to him occasioped by such defect the vant. Ala. Sup. Ct., May 1, 1891. Gleem y. Jackson. company will not be liable; and this is true, even Opinion by Coleman, J.

though the defect be such a one as under ordinary

circumstances the company would be bound to re. MASTER AND SERVANT-DEFECTIVE APPLIANCES.

pair.'” Railroad Co. v. Huber, 128 Penn. St. 63, disPlaintiff sued his employer for injuries received from

tinguished. Penn. Sup. Ct., May 27, 1891. Benusch v. iron bars that fell on him from a vehicle that he was

Roberts. Opinion by Green, J. pushing, because the holes in which the pins intended to bold the bars on the vehicle fitted were worn so as NEGLIGENCE-ACCIDENT AT CROSSING-FAILURE TO not to hold the pins. The evidence showed that the LOOK OR LISTEN -- ABSENCE OF SIGNALS. -- Where a rebicle was loaded by plaintiff and bis fellow-servants, boy stopped on a railroad at a street crossing to await who failed to observe the defect therein, though it was the passage of a train on another track, and did not plainly apparent; that they were not bound to use look or listen for a train on the track on which he that particular vehicle, because many others were stood, it is error to charge, that though he did not exavailable; that defevdant had no knowledge of the de- ercise care according to his age and discretion, the fects, and that he kept constantly employed a machin- company is liable if the bell of the engine by wbicb be ist whose duty it was to make repairs whenever bis at- was struck was not sounded for the crossing, and the tention was called to the need of them by the work- failure so to sound the bell directly caused the injury. men. Held, that a verdict should have been directed Does the instruction No. 1, given at plaintiff's request, for defendant. In Railroad Co. v. Sentmeyer, 92 Penn. correctly declare the law of the case? If it does, then St. 276, we held that where an employer has furnished there is no longer such a defense as contributory neg. his employees with tools and appliances, which, thoughligence in this State. This iustruction told the jury not the best possible to be obtained, may by ordinary in uumistakable terms, that notwithstanding plaintiff care be used without danger, he has discharged his went upon the railroad track, and stood there without duty, and is not responsible for accidents. This doc- looking or listening, and notwithstanding he did not trine is precisely applicable to this case. There was exercise care according to his age and discretion in so no complaint against the buggy that was used, except doing, and standing upon said track without looking the absence of the pins. If they were absent because

or listening for the approach of a train, yet if defendthe plaintiff or his fellow-workmen failed to put them ant failed to ring its bell eighty rods from the crossin, of course it was the result of their own negligence. ing, and such failure directly caused the injury to It being their duty to put them in, they must neces- plaintiff, then plaintiff was entitled to recover. • This sarily know whether they could or could not put them instruction was unanimously condemned by this court in the holes, and if they used the machine without the in Guenther v. Railway Co., 95 Mo. 286. Said Judge pins, they were by necessary consequence guilty of Brace in that case: Reading the first and second negligence, whether the holes were too farge or not. instruction) together, the jury were in effect told, By the exercise of the most ordinary care they could that although the deceased had been guilty of neglihave avoided any davger from such a source. The gence contributing directly to his death, yet if they learned court correctly charged the jury that “if the found from the evidence that no bell was rung while defect complained of was visible, it was the duty of the locomotive was passing over the street or road the plaintiff, and those working with him, to kuow that immediately before the accident, and that the death it existed, and know the danger which was incident to of said Guenther directly resulted from the omission tbat defect." This is in exact accordance with the au- to sound the bell, they should find for plaintiff.” “In thorities, and should have been followed by a direction other words, the jury were told: “Here are two acts to render a verdict for the defendant, as this court has of negligence — one of the plaintiff in being on the declared should be done in repeated instances. Thus track, the other of defendant in not sounding the bell in Sykes v. Packer, 99 Penn. St. 465, we said: “The-concurring at the same time and place, the result of defendant had as good an opportunity of seeing the which is death. Now if you find that the death recondition of the tackle as any other employee had. sulted directly from the failure to ring the bell, you He must be held to have known what was clearly vis- must find for the plaintiff',' practically ignoring deible to his sight. It was not necessary that he should ceased's contributory negligence, without which no be specitically informed of a fact so patent to him." death could have happened, by leaving the jury at In Brossman v. Railroad Co., 113 Penn. St. 498, Mr. liberty to select out the defendant's act of negliJustice Trunkey, in delivering the opinion of this gence, and say that was the direct cause of his death, court, said: “When an employee, after having the op- and render a verdict accordingly, and under it the portunity of becoming acquainted with the risks of his jury bave only to find the bell was not rung immesituation, accepts them, he camot complain if subse- diately before and at the time Guenther was struck in quently injured by such exposure. By contracting for a publicly-travelled street, in order to find for plainthe performance of hazardous duties, he assumes such tiff, notwithstanding Guenther's act contributed dirisks as are incident to their discharge from causes rectly to his death.” “It is not necessary to quote auopen and obvious, the dangerous character of which thorities to show this is not the law." Notwithstandcauses he has had opportunity to ascertain. Whart. ing the confidence expressed in this position, counsel Neg., $ 214.

This is tbe general rule. In Ballou v. for respondent challenge it. In Kelley v. Railroad Co., Railway Co. (Wis.), 11 N. W. Rep. 559, the deceased

75 Mo. 138, Judge Henry, speaking for the whole court, was killed by reason of a defect in the ladder of a says: That it is such negligence for one to attempt freight car, and it was held that his representative to cross or get upon a railway track, at a public crosscould not recover. A well-prepared note reviewing ing or elsewhere, without looking or listening for an the cases on the subject, upon the point which touches approaching trnin, as precludes a recovery for an inthe case in hand (5 Am. & Eng. R. Cas. 506) states jury sustained by him from a passing train or locomothe doctrine as follows: “It seems clear if a person in tive, whether the company's negligence also contribthe employment of a railroad company discovers that uted directly to produce the injury or not, has so often the appliances with which he is working are or have been decided by this court that it must now be reregarded as the settled law of this State;" citing given for plaintiff in this case and the instruction Maher v. Railroad Co., 64 Mo. 267; Fletcher v. Railo given and condemned by this court in Guenther v. road Co., id. 484. In this last case Judge Henry with Railway Co., 95 Mo., 286, were given by the learned approval quotes from the opinion of Judge Allen in Circuit judge who tried those cases upon the authorGorton v. Railway Co., 45 N. Y. 662: It is not im- ity of the case of Kelly v. Transit Co., 95 Mo. 279; and posing an onerous duty upon the traveller crossing a it must be confessed that if we accept the quotation railroad is broad daylight, over which trains of cars made by Judge Norton from the opinion of the St. were frequently passing and are liable to pass at any Louis Court of Appeals in the same case, reported in time, to make use of the most common and lowest de- 18 Mo. App. 151, as the law, there would appear to be gree of observation and care and to cast his eyes in ample justification of this instruction; but it seems both directions and in every direction from which evident that Judge Norton did not so understand the danger may be apprehended." " The doctrine has law and the instructions in the Kelly Case. He says: been declared by this court and re-attirmed that a "It is argued that said instructions are erroneous betraveller approaching a railroad track is bound to use cause they authorize a recovery for plaintiff notwithhis eyes and ears, 80 far as there is opportunity, and standing his negligence, it defendant either knew, or wben, by the use of those senses, danger may be by the exercise of ordinary care could have known, avoided, notwithstanding the neglect of the railroad the danger in which plaintiff bad placed himself in servant to give signals, the omission of the plaintiff to time to have avoided injuring him and failed to exeruse his senses to avoid the danger is concurring negli- cise such care. This contention is not well founded. gence, entitling defendant to a uousuit." In Zimmer- When a plaintiff is guilty of contributory negligenco man v. Railroad Co., 71 Mo. 476, the exact point was the company is nevertheless liable if by the exercise made: “The doctrine contended for is, that although of ordinary care, after a discovery by defendant of a traveller could have seen if he had looked, or heard the danger in which plaintiff stood, the accident might if he had listened, for an approaching train, yet with- have been prevented, or if the company failed to disout looking or listening he may go upon the track, and cover the danger through recklessness when ordinary not be chargeable with contributory negligence if run care would have discovered the danger and averted against and injured by a train of cars passing over the the calamity.” Aud citing with approval the former road; that he may shut his eyes and close his ears, and cases decided by this court. So that if we interpret walk, drive or ride across or along a railroad track; the Kelly Case in 95 Mo. 279, it only means to anand if the company fails to blow its whistle or ring its nounce the qualification of the rule that plaintiff's collbell as required by law, his negligence is cancelled by tributory negligence will precludo a recovery, as unithat of the company, and ceases to be a proximate formly held by this court prior to that decision, then cause of the injury, of which the negligence of the we indorse it; but if it means, as interpreted by the company is then to be regarded as the sole proximate learned judge who tried this case in the Circuit Court, cause." This court wholly repudiated such a doctrine that the negligence of the defendant in not ringing its then. Bell v. Railroad Co., 72 Mo. 50; Purl v. Railroad bell of itself gave plaintiff a good cause of action, notCo., id. 168; Turner v. Railroad Co., 74 id. 602. In withstanding he might be guilty of the most reckless Powell v. Railway Co., 76 id. 80, the facts were very contributory negligence, and without reference to similar to the facts in the case now under considera- when defendant's servants discovered the danger to tion. In that caso Judge Sherwood, speaking for the plaintiff, then we unhesitatingly say that decision is not court, says: “Making the broad concession, for ar- in harmony with an almost unbroken line of decisions gument's sake, that the testimony tending to show the of this court, and ought not to be followed; and this delendant was negligent, still there was nothing to qualification of the rule has been expressly limited by show that this of uecensity caused the injury. On the the decisions of this court to those cases in which the contrary thereof, tbe only inference which can be injured party was uot a trespasser. Barker v. Railfairly drawn from the testimony is, that but for the road, 98 Mo. 50. “At railroad crossings there are reboy's neglect to act in a manner suitable to the situa- ciprocal duties. Both the company and the publia tion in which he was placed -- suitable to the danger- have a right of way. Neither is exclusive. It is the ous machinery by which he was surrounded--that but duty of each to so exercise their respective rights as for bis heedlessness, not to say absolute rasbness, in not to interfere unnecessarily with the rights of the failing to look and listen for the train, of whose ex- other. A crossing is a known place of danger. The pected arrival be was fully aware, the accident would engineer of a train, when he approaches it, has a right not have occurred. That he could have seen the train to expect that persons may be there; bence it is his if he had lookej, tbat he could have heard if he had duty to approach it with his engine under control, listened,

abundantly established." This court re- The citizen, when he attempts to cross, knows that a versed that case without remanding. In the same train may come at any moment. It is his plain duty volume-Lenix v. Railway Co., 76 Mo. 86 — the same to look out for it, and avoid it is possible. Moore v. dootrine is reiterated, and the failure to give the sig- Railroad Co., 108 Penn. St. 349. It is not pretended nals was held not to condone the contributory negli- the train wis running at au unlawful rate of speed. It gence of plaintiff. And so the law was written and came to the station about the time it was due, and accepted until the decision in Kelly v. 'Transit Co., 95 stopped at the usual place. The court, of its own moMo. 279, with this qualification : that it has been held, tion, withdraw the violation of the ordinauce as to that notwithstanding plaintiff's contributory negli- keeping a watchman and as to ringing the bell on the gence, he may recover if the defendant's negligence, engine continuously from the jury, so that the issue which directly caused the injury, occurred after the was narrowed down to the sole question whether tho defendant kuew, or by the exercise of reasonable or defendant failed ring its bell eighty rods before proper care might have known, of the danger or peril reaching the crossing, and at intervals until it passed in which the injured party stood, and by the exercise the crossing where the accident happened. As before of ordinary care might then have prevented the in- stated, the positive evidence on the part of the defense jury, or if the company failed to discover the danger is that the bell was rung continuously. That on part through the recklessness or carelessness of its em- of the plaintiff is negative, save that of the witness ployees when the exercise of ordinary care would bave Vance or Frank Dlauhi. His evidence might well discovered the danger, and averted the calamity.'' have been wholly disregarded by the court and the Kelley v. Railroad Co.,76 Mo. 138; Scoville v. Railroad jury, as he testifies that at the very moment his Co., 81 id. 434 ; Harlan v. Railroad Co., 65 id. 22; Isabel brother was being crushed under this powerful engine V. Railroad Co., 60 id. 482. The instruction No. 1 my object in looking was to have a good case against

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the railroad company.” But conceding that the bell beer in the bar-room of which the defendant was one
was not rung as required by statute or ordinance, what of the proprietors. We have not overlooked the case
was the proximate cause of this injury? We must as- of Mascowitz v. State, 49 Ark. 170, but notwithstand-
sume that this boy, in the absence of all proof that he ing our high respect for the court which decided it, we
was weak-minded, or that he was not possessed of ordi cannot accept it as a precedent. It refers to no au.
pary intelligence, knew it was dangerous to stand be- | thority, and to our minds its reasoning confounds the
tween the rails of a railroad track. He had been just distinction between police and civil liability. Ga.
reared in the sight of this railroad, and within a block Sup. Ct., March 4, 1891. Gill v. State. Opinion by
of the depot. He knew also it was about the time for Bleckley, C. J.
this train to arrive. The evidence on his part shows
that passengers had collected at the depot waiting for
the train. It was broad daylight. He could have seen FOURTEENTH ANNUAL REPORT OF THE
an engive approaching for two blocks from the south,

NEW YORK STATE BAR ASSOCIATION.
His view was unobstructed. He voluntarily placed
himself in a place of known danger. According to
his own evidence he could have stood between the Rooms OE NETOL ORKESTATE RAB, ASSOCIATION, }
traoks ju perfect safety while watching the outgoing

CHE fourteenth annual report of the New York State freight. If it be said that the engineer ought to have seen him, with equal force it can be asserted that he ought to have seen the train approaching. It was quite will be sevt to members by mail on or before the 10th

publishers, Weed, Parsons & Co., Albany, N. Y., as easy for him to see the train as for the engineer to see him. Under these circumstances then, we think

inst. Those who do not receive the report in due time the first instruction for plaintiff incorrectly stated the

after that date will please address the secretary, Capilaw, and moreover was contradictory of the sixth iv- tol, Albany, N. Y. struction given by the court of its own motion. The defendant was entitled under this evidence, to an in

NOTES. struction on contributory negligence in accordance

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defendant's refused instruction, and the sixth given The , seeing a cat past in by the court of its own motion. For this error in the public street, called to a dog beside him to seize it.' instructions the cause is reversed and remanded. Mo. The dog accordingly gave chase to catch the cat, and Sup. Ct., May 19, 1891. Dlauhi v. St. Louis, etc., Ry. in doing so knocked down and injured a child. Held, Co. Opinion by Gavitt, P.J.

that the defender, in setting a dog to chase a cat

through the street, acted vegligently and without due STATUTE-SALES OF LIQUOR TO MINORS-PERMIT care for passers-by, and was found liable in damages." FROM PARENT.--Written authority from the parent or -Law Times. guardian for selling or furnishing intoxicating liquors to a minor must be special for each occasion. A pa- The event of the week has been Sir Edward Clarke's rental decision not founded on the ciroumstances of concluding speech for the plaintiff in the baccarat case, any particular occasion, but applicable alike to all oc- one of the ablest and most skillful pieces of advocacy casions, and measuring the supply of liquors to be fur- which has occurred in our generation. We think it nisbed by nothing but the desires and appetites of the may be said that not a point which could tell in favor child, is simply an effort to repeal the law pro tanto. of his client was missed; that the difficulties of the To give it effect would be in direct conflict with the case were cleverly grappled with, and that the “obliprinciple announced by this court, during the preva- gation of the robe,” to which he referred at the comlence of slavery, in the case of Reiubart v. State, 29 mencement of bis address, “ to disregard all private Ga. 522, in which it was held that the master's discre- friendships, all political associations, all personal intertion to deterınine the quantity of spirituous liquors ests in the discharge of his duty toward his client," necessary for the health of a slave could not be dele- was fulfilled. Eloquent, powerful, temperate and courgated. Consistently with the policy of the law, there ageous, the speech maintained the best traditions of can be uo general authority by the parent conferred the bar. That it was not effectual to win the day was upon any one to furnish liquors at his own pleasure or due to the fact that no skill of argument or rhetoric the pleasure of the child. The parent must bold con- could arnil to avert the inference to be drawn from the trol of the supply, both as to time and quantity, and plaintiff's own conduct after the accusation bad been the written authority must be special, as contradis- inade against him-an inference which tbe lord chieftinguished from general. It must be applicable to one justice, in bis summing up, took occasion quite propoccasion only, and must be repeated separately for erly to bring into prominence. It is needless, but we each subsequent occasion. Once acted on it is ex- trust not impertinent, to say that the trial was conhausted, and is no more authority for subsequent sup- ducted throughout by the presiding judge with skill plies than if it had never existed. Parental license to and perfect judicial demeanor; aud but for the regurun indefinitely would, if granted by a sufficient bum- lation which couverted the greater part of the public ber of rash aud inconsiderate fathers, enable one or accommodation into an exclusive rendezvous of more drinking saloon18 in large cities to flourish on the fashion, we might well look back on the case as an expatronage of minors alone. We think such a license cestent example of our English system of trial by jury: shows on its face an attempted evasion of the law. It As it was, although the judge very pointedly remarked treats the parent alone as interested in the conduct of that “this is not a theater,” the audience apparently the child, and ignores the wider and more important could not be brought to believe that it was not. They policy of the statute, which is to rear good citizens and are stated to have applauded Sir E. Clarke aud hissed conserve the public order and general welfare of the and mobbed the defendants. We earnestly hope that, State. If we are correct in what has been said, the in- notwithstanding the lord chief justice's statement, in strument relied upon as a defense in this case was void his reply to the ill-mannered epistle addressed to him, upon its face. It was no authority for selling or fur- that the practice will be continued, he will have come nishing even in a single instance, for it had no limita. to see from the inoidents of the late trial that a pubiio tion as to time or quantity, and was obviously intended exclusively composed of so-called “ persons in society as a general license rather than as a particular author- does not altogether tend to the convenient or orderly ity. It was an unlimited permit to drink whisky and administration of justice.-Solicitors' Journal.

The Albany Law Journal.

THE

mous.

of the law not only over the criminals who pay the penalty of their crimes, but also over the attorneys who have so long obstructed the course of justice

without reason or excuse. One eminently respectALBANY, JULY 11, 1891.

able journal, perhaps the best of its kind in the

country, makes this comment on the Court of ApCURRENT TOPICS.

peals opinion: NAE New York Court of Appeals struck a popular bar is, that the lawyers are officers of the courts and

The theory on which the public puts up with the chord in its recent denunciation of counsel for equally concerned with the judges in the proper and their dilatory tactics in the electrical execution orderly administration of justice. To have the bar's cases. The particular case under consideration was privileges converted, as they have been in these murthat of the Japanese murderer Jugigo, who was tried der cases, into weapons of opposition to the law, into and condemned to death in December, 1889, and curing impunity for crime, is more than any civilized

instruments for making the law contemptible and sewhose case has been twice appealed to the Supreme community can bear very long. So we trust the SuCourt of the United States, and had been twice be- | preme Court will use any powers it possesses to fill the fore considered by the Court of Appeals. Though lives of these habeas corpus tricksters with some kind the opinion of the court was necessarily confined to of terror." the case in hand, its criticism was obviously in- We have searched the files of our esteemed contemtended to cover all of the cases, from that of Kemmler poraries in vain for any expression of dissent from down to that of the latest aspirant for the euthanasia these views. They appear to be absolutely unaniof the electrical chair. After reciting the earlier history of the case, down to and including the affirmance, in October, 1890, of the original judgment

With all due respect for the learned and distinof conviction, the court proceeds to express its guished court which has given us our text — though opinion in the following untrammelled terms:

with much less for the organs of public opinion

which have so unthinkingly joined in the hue and “The subsequent proceedings in the case on behalf of the defendant have been discreditable to the admin- cry — we desire to enter our protest against the new istration of justice. His case has been twice to the view of professional duty which is here propounded. Bupreme Court of the United States, and is now here The Court of Appeals has our profound sympathy for the third time, and thus the courts have been need in its unequal contest with the technicalities of the lessly vexed for no possible purpose except delay,

law. In the utterance above quoted it has, with Upon this occasion a motion is made for a reargument of the case after the lapse of nearly a year from the

force and feeling, voiced the revolt of all rightoriginal argument upon pretexts manifestly frivolous, minded men, whether on or off the bench, against and for which there can be no possible excuse or justi- that iron law of procedure which, in the halls of fication, and which will not how be diguified by any Justice, spreads a net for her feet. Probably there further notice. When all the forms of law have been observed, and the defendant has had every opportu: cedure in this country or in England when this pro

has never been a time in the history of legal pronity to make his defense, and his couviction has been affirmed by the highest court of the State, the contest

test was more needed than it is at the present time. in the courts should end and the final judgment should The exigencies of our complex modern life buve be executed unless the governor of the State, in the driven our lawyers to put the ancient weapons of exercise of his clemency, should grant a reprieve or a pardon. The forms of law should not be used to suba day it is the writ of habeas corpus, which is used,

their profession to new and unexpected uses. Tovert the criminal law of the State. counsellors admitted to practice in the courts of this again and again, in the forlorn hope of saving a State are under a duty to aid in the administration of client from death. Yesterday, it was the writ of justice and they cannot, consistently with this duty injunction, whose lavish use in behalf of great corengage in vexatious proceedings merely for the purporations stirred the popular indignation; to-morpose of undermining the final judgments of the courts and defeating the behests of the law. It ought to be a

row, it may be that another emergency will bring subject of inquiry therefore whether they can thus be- another of the ancient remedies out of the scabbard come the allies of the criminal classes and the foes of to aid or embarrass the administration of jusorganized society, without exposing themselves to the tice. But in all these cases, be it remembered, the disciplinary powers of the Supreme Court."

counsel, who has been made the victim of the judiThis utterance of the supreme tribunal of the State cial and popular censure in this case, does no more in a case, or group of cases, which had aroused an than apply to the court for the remedy which he unusual degree of popular interest, and whose de- seeks. It is in every case the court that grants the velopments had been keenly followed by the public remedy, and it can only be granted by the court mind, was at once adopted as the expression of pub- under sanction of the law. Here, then, we have lic opinion upon the question involved; and the seal three elements in the production of this grave situof condemnation was at once shifted by the organs ation: the counsel, eager for success, employing all of that opinion from the courts and the supposed the resources of his trained skill and ingenuity in employers of counsel in these cases to the counsel

behalf of his client or of the cause which has been themselves. The executions of the poor wretches, intrusted to him; the courts of law, acting with or who have this week been sent to their account, arc

without discretion upon the case presented; and, celebrated, in reputable newspapers, as a "triumph I lastly, the system of which law has provided the

VOL. 44 - No. 2.

remedies in question and clothed the courts with bow-string, and if our fellow-man is to be put out the power or imposed upon them the duty of ap- of the way at all, we prefer the promptest and most plying these remedies. If there is an abuse of legal business-like way of effecting our object. There is machinery and a perversion of justice here - and no sentiment about the dynamo, but its efficiency upon that point we may well take the testimony of has been very effectually demonstrated, and this is the witnesses arrayed above upon which of these the important thing after all. Moreover, if the adopthree parties does the responsibility for the abuse tion of this new and unusual mode of intlicting the rest? Is it fair to throw it upon the counsel, who death penalty shall have the effect of showing our· has only availed himself, for the benefit of his selves and the world what a cold blooded, brutal clients, of the remedies which the law has provided, and demoralizing spectacle our humanity presents, and which the courts have authorized? Nay, would when, in the dawn of the twentieth century, it dethe counsel not have been false to his trust if he had liberately puts one of its owo members out of existallowed a sentimental doubt as to the proper scope ence, it will not have been in vain. of the remedy placed in his hands to restrain him from using it? We yield to no one in our reverence

Another bar association that of Virginia -- is for the bar at its best. We magnify our office. We would exact of members of the bar a much higher port of the special committee on that subject, to be

wrestling with the problem of law reform. The restandard of professional honor than is required by submitted at the annual meeting of the association the so-called ethics of the profession. But we must the latter part of this month, is before us.

It is a confess our inability to understand how the counsel in these cases could, in justice to themselves, to considerable study of the subject as well as observa

conservative document, the result, apparently, of their clients and to the profession, have done less

tion of the experience of other States, and recomthan they did to save their clients and the cause

mends no changes which have not demonstrated which had been committed to them. We doubt

their wisdom and practicability by their successful very much if any one of the acute and learned law

operation elsewhere. Virginia still adheres, more yers who constitute our highest tribunal would, un

closely than any other State, excepting New Jersey, der similar circumstances, have hesitated to make use, as these counsel did, of all the resources of the to the old distinction between law and equity prolaw which their learning and ingenuity could have (avowedly modeled after the English Judicature

cedure, and the bill proposed by the committee brought into requisition. Accordingly, we have no

Act of 1873, and the Connecticut Practice Act) behesitation in saying that we believe that the right. gins by abolishing this distinction. The spectre of eous indignation of the Court of Appeals against codification seems to haunt our committee however, the abuses complained of blinded it to the real sin- and they hasten to exorcise the evil spirit and proner; that the fault is not with the counsel, who only did their duty in the premises, but with the pitiate the association by making the gratuitous as

sertion that “the consolidation of law and equity whole system of law and administration of justice procedure does not even tend toward codification." under which these abuses have grown up, and by You are mistaken, brethren; every thing tends towhich they are protected. Reform this system by ward that blessed consummation which simplifies restricting and more carefully guarding the exercise of the abused remedies, and you will bave no fur- your cumbrous procedure, or which teaches the

Virginia Bar Association that the venerable fabric ther cause to complain. But so long as these remedies are available for all, and so loug as they will Indeed, the law reformers of this committee, in spite

of the common law is susceptible of improvement. be granted by the courts upon application, so long of the conservative character of their recommendawill there be earnest, zealous and ingenious counsel tions, seem to be dangerous heretics in the common who will use them. May they live and prosper! law fold, as witness the words with which they subThey need not fear the disciplinary powers of the mit their work to the association: Supreme Court. Those powers will not be set in motion against them, and they would not harm

“The bill offered for the consideration of the associAstute and learned counsel are

ation is of course merely tentative. them if they were.

The members of

the committee who hare signed this report are in earnnot so common among us that we can afford to dis

est in their efforts to put Virginia in line with the rest cipline them for displaying those qualities.

of the civilized world, and while they are convinced that the reform of the pleading so as to consolidate

law and equity procedure is absolutely necessary to her The “ instantaneous and painless” death of the progress as a great State, they do not mean to say that four murderers, who were executed by electricity at the bill offered by them is the best possible form it Sing Sing this week, probably puts an end to the

But this bill contains all of the princi

The Codes long controversy as to the legality and humanity of pal features of the reformed procedure.

of Procedure have met with the most violent and un. the new mode of executing the death penalty which

reasoning opposition, but they have overcome all has been adopted in this State. We may now prob- prejudice wherever they have been adopted. No State ably look for the general adoption of this method has ever tried the Code system and then returned of disposing of capital cases, and if society is to to the common-law and equity pleadings which ema. continue to kill men, this most humane and efficient is established is sacred with those who do not think.

nated from the wisdom of our ancestors.' Whatever mode of doing it should surely prevall. We have

A close and careful investigation of the origin of anno penchant for hanglug, or for the guillotine or the cient laws aud customs causes any one to turn with a

could assume.

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