reconciliation with her was at an end; that he was kept in this mental state for more than three weeks before he learned that his wife had sent the message." The alleged damages were not founded at all upon loss of professional prospects or gain in the town to which plaintiff proposed moving, but simply on the mental suffering from not knowing for a period of three weeks whether the wife had acceded to a proposition for reconciliation. The "Texas doctrine" is anomalous in theory because it is evident that for mental suffering, unaccompanied by physical effects of any kind, pecuniary damages are in no sense compensatory. These actions are essentially punitory, and the effect of the "Texas doctrine" is to allow in an action for breach of contract the recovery of exemplary damages, and exemplary damages only. The rule is stated as follows in the American and English Encyclopædia of Law (vol. 5, p. 21): "In actions for breach of contract, with a single exception, the amount recovered is limited to the actual damage caused by the breach. The measure of damages is the same, whether the defendant fails to comply with his contract through inability or willfully disregards it." The "single exception" referred to here is an action for breach of promise to marry, and this action, although founded on contract, is regarded as largely in the nature of an action in tort. No legitimate argument for adding another hybrid form of action to the legal armory can be drawn from the existence of the action for breach of promise, as the disapproval of the latter action and the demand for its abolition are constantly growing more serious and more widespread. -New York Law Journal. BREACH OF COVENANT TO INSURE. An important decision has been rendered by the Supreme Court of New York, in the case of National Mahaiwe Bank v. Elizabeth T. Hand. The defendant covenanted to keep in force insurance on property, for the benefit of plaintiff, in such companies as the bank should approve. The building burned, and the plaintiff had not taken out the insurance. The court held that "in an action brought by a landlord against a tenant, after the destruction by fire of the leased premises, to recover damages for the tenant's neglect to comply with a covenant in the lease to keep the premises insured for the benefit of the landlord in a specific amount, the measure of damages is the cost, and not the amount of insurance." The court followed the reasoning in Dodd v. Jones (137 Mass. 322), which is: A contract for the sale of a house and lot contained a promise that the grantor would assign a policy of insurance then in ful force and effect. The property was conveyed to the grantee, but the policy was not assigned, although its assign.. ment was requested. The purchaser did not procure any insurance and the house was injured by fire. The purchaser then attempted to recover from his grantor such a sum as he would have been entitled to recover upon the policy of insurance had it been assigned, alleging that by reason of the grantor's failure to perform his contract in such respects the policy became void. The trial Court held that plaintiff was only entitled to recover for the cost of procuring insurance for the unexpired term of the policy, and in its opinion said: "The agreement was not a contract of insurance, but of sale; and the measure of damages for the breach of it was the value of the thing sold. A sum that would procure a similar policy, and thus place the plaintiff in the position she would have been in had there b en no breach of the contract, would indemnify her, and she cannot elect to go without insurance, and hold the defendant as insurer. Damages resulting from the burning of the building are not the direct and natural consequence of the breach of the defendant's contract, and could included in it. The natural consequence of not have been contemplated by the parties as contract would be that the plaintiff would prothe failure of the defendant to perform his cure another policy of insurance, and she cannot charge the defendant with the consequences of her neglect to do that." The New York Court applied the argument of that case to the case under consideration and say: "Hand's contract was not one of insurance, but of leasing. The agreement does not contemplate tha he should become the insurer of the property, that the lessor should look to $10,000, but rather that for the use of the him in case of loss by fire to the extent of premises he should pay the taxes, whatever sum should be assessed against the property, and the insurance premiums necessary to keep in force a $10,000 policy, no matter what the expense of it should be, and in addition should pay a fixed sum to the lessor, which thus became to it net rent. "Under this contract of leasing, the lessor had the right to demand of the lessee that he at once comply with his agreement respecting insurance, and, in case of his neglect or refusal to perform, it was the right of the lessor to procure insurance and charge the lessee with the cost of it. This is a matter of everyday practice as between mortgagor and mortgagee under stipulations similar in character. If this position be well taken, it follows that defendant was entitled to a dismissal of the complaint, for when he had rested there was no proof whatever tending to show what would have been the cost of obtaining the stipulated insurance." ABSTRACTS FROM RECENT DECISIONS. MUNICIPAL CORPORATION. Defective Streets. In an action against a city for injuries through negligence in the care of its streets. Evidence of other accidents occurring from the same cause, is admissible to show its dangerous character, and also to show notice. CITY OF BLOOMINGTON V. LEGG, Ill., 37 N. E. Rep., 696. SAME. A city is required to keep a manhole at the intersection of streets, in a reasonably safe condition, so that travelers stepping on to it while crossing the street will not be thrown into the hole. LINCOLN V. CITY OF DETROIT, Mich., 59 N. W. Rep., 617. EMPLOYER And Employe. Wrongful Interference with rights of. A case has been recently determined in the Court of Appeals of Maryland. GEO. W. LUCK V. THE CLOTHING CUTTERS' ANd Trimmers' Assembly ET AL., in which a judgment was sustained of $2,500, which plaintiff recovered for a wrongful and malicious interference of the defendant, by reason of which plaintiff was discharged from his employment and prevented the free exercise of his trade and occupation, and thereby deprived of his means of livelihood. DOGS. Killing without notice to owners. An ordinance authorizing a police magistrate to order the killing of a dog without notice to the owner, is void on the ground that it professes to authorize judgment without the constitutional requirement of a judicial hearing. So held in a recent case in New York Supreme Court, Kings Co. The same case also declares that a statute authorizing a common council to pass an ordinance to regulate and license dogs, confers no power to pass an ordinance to kill them. CORPORATIONS. Pledge of stock by agent for his own benefit. A general agent with power to sell certain stock, cannot pledge it for his own benefit, and a corporation, making a transfer with knowledge of the facts may be compelled to restore the principal to his rights as a stockholder. REED V. CUMBERLAND, Tenn, 27 S. W. Rep. 660. cine, although he claims to cure by means of Christian Science, and to do so as an act of worship or a matter of conscience. The Court said that, as the defendant relied upon the teachings of the Bible for his authority as a refer to it for instances applicable to his case, Christian Scientist, it would not be amiss to and thereupon quoted at length the account of Simon, the sorcerer (whose name and offense live in the word "Simony,)" and to whom Peter said "Thy money perish with thee because thou hast thought that the Gift of God may be purchased with money," and also the account of the healing of Naaman of leprosy, by compliance with a very simple, hydropathic course of treatment," prescribed by the prophet Elisha, and the transfer of his leprosy to the prophet's servant, Gehazi, who secretly took pay from the Assyrian. These seem to make out pretty clearly that the case of the Christian Scientist stands worse under the divine law, than under the statutes of Nebraska. When the mysterious woman now confined in the Tombs and known as the wife of Dr. Henry C. F. Myer, who is now serving a life sentence for the murder of Ludwix Brandt, and indicted as a co-defendant to that charge, is brought to trial, the eyes of the legal, medical and scientific world will be turned to the probable outcome of the defense in the action. Vague rumors have been afloat ever since the trial of Dr. Myer that the defense in his alleged wife's case would be hypnotism, and that the defendant would try to show that it was by reason of this force that she took part in the murder. Only once before has this defense been set up, and that was in the case of Eraud, the Parisian strangler, in which case a State's evidence and claimed that she was woman was jointly indicted with him, turned forced by reason of the hypnotic influence to assist him in his crime. From the legal standpoint it is certain that in the minds of jurors at least, a practical illustration of the power of hypnotism will raise a reasonable doubt such as would entitle the defendant to an acquittal at the hands of a jury. Hypnotism has had many private trials and has given the public ground for believing that there is some force which may be exerted by one individual to control the actions of another against his will and without any physical contact. The proof of such a force as hypnotism, if publicly demdefense, which undoubtedly could be used in onstrated during a trial, would open up a new many cases to defeat the ends of justice, though it must be recognized that no person under the influence of such a. force should be convicted to suffer the penalty for a crime which he did not intend to commit, and which at the time he did not know he was committing. If hypnotism is a sham, it were better now to fully demonstrate the fact and end, once for all, the dangerous consequences of such theories, but the defense in the Myer case will at Probably the first decision of the kind is that of the Nebraska Supreme Court, in State v. Buswell, 24 L. R. A. 68, which holds that a person who makes a practice of attempting to cure ailments of others, for a compensation, tion of the lawyers, doctors and scientists, as cannot be exempted from the law requiring a well as the public at large.-Albany Law license, in order to be allowed to practice medi-Journal. least receive the earnest and careful considera Obio Legal News. (Formerly Toledo Legal News.) A Weekly Legal Paper Published by THE LANING PRINTING CO., NORWALK. OHIO. ISSUED EVERY FRIDAY AFTERNOON, Subscriptions and business communications should be sent to the publishers. No law of importance passed by the General Assembly escapes a judicial attack, and the inheritance tax law, passed last winter, is no exception to this rule. Suits have been started in several localities, to avoid payment of the tax, and administrators are so generally awaiting to hear from the courts, that some time will elapse before the state derives any revenue from this source. Some of the points made against the law are, as follows: If the law is a tax upon the estate of a decedent, does it not violate that section of the SUBSCRIPTION PRICE. $3.00 PER YEAR, IN ADVANCE. | constitution which says that all property shall New subscriptions can begin at any time, and back numbers will be supplied if desired. Entered at the Postoffice, Norwalk, Ohio, as second be class matter. COMMUNICATIONS SOLICITED. Contributions, items of news about courts, judges and lawyers; queries or comments; criticisms on various law questions; addresses on legal topics, or discussions upon points of interest, as well as important decisions, are solicited from members of the bar and those interested in legal proceedings. LEGAL PRINTING. We have one of the largest and most complete printing offices in the country, and are enabled to do all classes of work quickly, and at low prices. Records, briefs and other legal works are made a specialty. Estimates are always cheerfully and promptly given in reply to inquiries for them. 60 CENTS PER PAGE. Will not this price secure your brief and record printing? We can put the longest brief on record in typ, so that proofs of the whole may be had to read together. OUT OF PRINT. The Ohio Local and Special Laws, passed by the General Assembly in 1893, were issued in but a small edition by the State, and no copies were distributed to members of the bar. Being state printers, fortunately for the lawyers, we saved the plates, and have issued an edition as a personal venture. No library is complete without a copy. Three dollars gets one of these Laws and the OHIO LEGAL NEWS for one year. The edition will soon be exhausted. Subscribe now. be taxed by a "uniform rule," the same property having a burden of taxation put upon it, not laid upon other property? Would it not double taxation of a man's property because he was not fortunate enough to live? And is it not a discrimination that violates the rule of uniformity, when estates of less than twenty thousand dollars are not taxed? If the tax is upon the right of succession, levied to which they succeed, and not upon decedent's upon successors in respect to the shares defeasible estates are subject to as much tax estate as such, estates for years and partial and as those which are vested absolutely. Tie values of life estates and annuities are to be determined according to actuary tables, but who shall pay the tax on the difference between the value so found, and the amount of the estate? Does not the law discriminate in favor of limited estates? Whether the legislature intended to create a succession tax, and as to whether such a tax is allowable, under the peculiar tax restrictions of a constitution we have outgrown, if it is decided to be such a tax, are new questions for the judiciary of this state. The Supreme Court of this state has affirmed the decision of the Superior Court of Cincinnati in the case of the city against the Inclined Plain Railway Company, operating the Mt. Auburn line. The company is perpet ing its lines on several streets, over which its ually enjoined from maintaining and operatdecreed to pay the city a license fee of one cars reach the business part of the city, and hundred dollars per annum for each car operand 1884 inclusive. The effect of the decision ated over its tracks, between the years 1877 is to forfeit the franchise under which a porfranchise, it must enter into competition with tion of the road is operated, and to get a new other companies, as franchises in that city are now granted only upon competitive bidding. The question has been raised in this county (Huron), as to the constitutionality of the law under which juries are now selected. It is claimed that the jury commissioners are officers, and therefore the act by which they are created is in conflict with sections 1 and 2 of article 10 of the constitution, which require that all county officers be elected. 49 O. S. 34 is cited in support of this theory. Judicial recognition of common law marriage has, in many of the states, given rise to some very interesting questions concerning the property rights of the wife as against individuals who had no knowledge of the relationship constituting the marriage. The general rule in this class of cases may be said to have been, and is, that so far as the parties dealing with the husband, having no knowledge of his common law marriage, have been prejudiced or injured by the lack of such knowledge, they have been and will be protected. In 1893 a suit was filed in the Lucas county Common PleasCourt by Lucy Cline against John F. Cline, a nephew of Judge Stevenson Burke, and at one time well known in railroad circles in Ohio, now a resident of New York. The action setting up a common law marriage dating back some years, was for divorce and alimony. It was not contested and the plaintiff secured a decree, recognizing the marriage and awarding about $5,000 alimony. Her subsequent efforts to collect the judgment developed the fact that the defendant, John F. Cline, had transferred the only property he had in Toledo, consisting of certain valuable real estate, to Judge Burke in 1892. Proceedings were commenced to set aside that transfer on the ground of fraud; subsequently the charges of fraud were withdrawn and the action proceeded to determine the legal rights of the wife under the facts stated. On the trial it was shown that the deed from Cline, made in 1892, was to secure Judge Burke for money advanced to Cline, prior to the date of the transfer, aggregating about $30,000; also that Judge Burke had no knowledge of the relations existing between the plaintiff and Mr. Cline until the divorce suit was instituted. In ordering a sale of the property the Court directed the claims mentioned to be paid in the following order: first, plaintiff's homestead and contingent right of dower; second, Judge Burke's claim for money advanced to Cline, to secure which the former had taken the deed which the action sought to set aside; third, plaintiff's claim for alimony. Notice of appeal was given by counsel on both sides and the case will probably go to the Supreme Court. THE LAWYER'S LULLABY. BY F. H. COGGSWELL. Be still, my child! remain in statu quo, Let no involved res inter alios I'll send a capias for some wise expert Who knows to eject the pain and stay the hurt. No trespasser shall come to trouble thee; Quash every tendency to keep awake, The Supreme Court of Michigan has decided a case involving the rights of those who wish to examine the files or records of a public office. It is in substance that the officer is under no obligation to provide additional accommodations, or permit one to move in furniture, or occupy permanently any portion of the office, that the clerk cannot charge fees for those things that a citizen has a right to demand, and that one whose business requires much examination of public records has no greater rights than one whose interests require title. It will be observed, in our report of Supreme Court proceedings in this issue of the LEGAL NEWS, that the judgment of the Circuit Court in 4116 Darby v. The State ex rel. M. T. Palmer, was affirmed. Bradbury, Burket and Spear, JJ., dissenting on the ground stated in the short report, viz.: That the petition does not state a cause of action. Inasmuch as no further report is expected from the Supreme Court the Circuit Court decision becomes particularly valuable and important. It was published in our paper, then known as TOLEDO LEGAL NEWS, and may be found on pages 399 to 405, volume 1. All for $3.00 a year: THE OHIO LEGAL NEWS and Ohio Decisions. Subscribe now. JUDICIAL IRRITABILITY. nation is very simple. A criminal Judge is Under the title "Irritable Judges," the Newbrought in contact with persons whose guilt York Sun, of Saturday last, prints the follow- in the majority of cases is obvious to a man of ing letter: "To the Editor of the Sun--Sir: In view of the Sun's reputation for impartiality and fair play, I beg to submit the question as to the justice or injustice of two recent sentences. Judge Lilley added a full year to the punishment of an offender who had laughed when the judge had sentenced him for three years, thus sentencing the poor wretch to imprisonment for one year for contempt of Court, though the judge did not so state. Is this justice, or is it personal vengeance? "Judge Ely committed to the city prison some young men who laughed when a simple fine was imposed. If this judge had the right to imprison these young men for contempt of Court, was he justified in changing his sentence, already passed, thus adding to the penalty already decreed for the offense? In the writer's opinion, while a judge may properly impose a penalty for contempt of Court, he makes a grave mistake and sets a very bad example, and may be going beyong the law, in adding to a sentence already imposed, simply because the culprit relieves himself by a laugh. “Boston, October 16. C. E. P." common sense from the start. But the Judge: But There is much force in the criticisms of the Sun's correspondent, and the incidents related serve to illustrate the fact that judicial officers as a class are inclined towards irritability of temper. During the past summer at a vacation resort in a neighboring state, a lady was heard Of course, the care of one's nerves, self-conto describe a fellow guest with whom she had trol, and the cultivation of urbanity are not yet become acquainted, as the old gentle-judicial duties which should always be seriously man with the chronic look of displeasure." kept in view. And to the persons most largely He turned out to be a judge of ability and dis- | responsible for judicial irritability members tinction from a distant state. He further of the Bar who "try every case for all it is proved, on closer acquaintance, what the young worth," or, as it is sometimes put, try each case men term "a thoroughly good fellow," a whist for an appeal' the lines from the "Song of fiend, an enthusiastic angler and even some Shirt," slightly altered, might be addressed: thing of a practical joker. His settled expres- "It is not linen you're wearing out, sion of countenance was merely a mark which | But human creature's lives." his life work had left on him. N. Y. Law Journal. the AUSTRALIAN BALLOT SYSTEM. It is quite significant that in talking over the merits of different Judges, members of thei Bar give so much prominence to the element of personal manners and bearing. Such element is, of course, important because of personal relations between Bench and Bar in the The adoption of the Australian ballot system, Court room, and the special praise bestowed in spite of its many advantages, has given rise upon a Judge who is even-tempered and uni- to a vast deal of litigation over points that had formly bland amounts to an unconscious ac- theretofore been pretty well settled; and has also knowledgment of the difficulty of preserving unfortunately called forth many conflicting desuch disposition under the stress of judicial cisions. The American Law Register has the life. Judicial irritability is comparable with following in reference to some recent decisions writer's cramp or painter's colic. It is a dis-upon the vexed question, as the marking of the temper which the conditions of daily duty ballot and the consequent validity or invalidity necessarily tend to engender. And the expla- of the vote: |