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his license shall be forfeited." After some criticisms of the form of this provision, which are not cogent, he says: 'Liquors are recognized as property under our present Constitution, and by the decisions of the courts. Their sale may be regulated and restricted, but it cannot be prohibited; they cannot be confiscated. What cannot be done directly cannot be done indirectly or by evasion. Yet this provision makes the mere 'keeping on hand' of liquors — without any sale or intention to sell a crime. This is a destruction of property or interference with its vested rights that is repugnant to the Constitution. If this provision can be upheld it would prevent the proprietor of a respectable restaurant from keeping in his establishment a bottle of brandy even for his own family use. would seem to be a preposterous provision, ill-conceived and badly framed." This is very poor quibbling. The law clearly means "keeping on hand " for sale, and so any court would construe it. The Supreme Court of Iowa have just decided that a city, under an authority "to suppress and restrain disorderly houses," may fine any person found in or frequenting such a house. The court below held that such an ordinance was void because it subjected any person found in such a house to a fine, although he was there was for a lawful or innocent purpose. But the appellate court said: "This position of the court below is clearly unsound, and in violation of familiar rules of construction and interpretation of statutes. The subject-matter, effect and consequence, and the reason and spirit of a statute must be considered, as well as its words, in interpreting and construing it. A statute intending to prohibit an offense will, under these rules, never be applied to an innocent and lawful act. The offense is prohibited, and not the lawful act. Hence, if an act is done which is prohibited by the words of the statute, it may be shown to be lawfully or innocently done." By virtue of a license the licensee gets specified rights, and if he undertakes to violate his license it shall be forfeited; that is all the law means or says. This is no "distinction of property or interference with vested rights." It is simply a penalty imposed for violation of a privilege. The clause in question differs materially from that condemned in the Wynehamer case, for there the licensee was forbidden to keep liquors "in any place

Governor Hill's veto of the Crosby high-license bill will not increase his fame as a lawyer. He utterly ignores the fact that the bill is a police measure, and discusses it as if the traffic in intoxicating drinks were a commendable business, useful and beneficial to the State, rather than a great moral evii, a traffic to be sternly regulated, if not suppressed. As we have said before, considered as a police measure, the discriminations of the bill are perfectly justifiable. It is a great deal more necessary to keep down intemperance in our great cities than in the smaller cities, and in the towns and villages, because the opportunities and inducements for crime, and the consequence of pauperism, caused or inspired by drunkenness, are much larger in the former. The governor admits that the bill need not be the same in minor details in the country as in the great cities, but asserts that it must be "as broad and liberal" in the latter as in the former. Here we differ from him. He says "drunkenness is not a greater evil in New York than in Buffalo." We differ from him in this also. Will he pretend to argue that 8,765 liquor licenses in New York, or 3,012 in Brooklyn will not work more evil than the average of 187 in 24 other large cities which he cites, or the average of 51 in 23 large towns and villages which he cites, or even than 2,136 in Buffalo? The trouble with the governor is that he regards the traffic in intoxicating liquors just like an honest and honorable business. Thus he says: "Suppose a higher license fee was exacted of the lawyer, physician, merchant or plumber in Buffalo than in New York, would not all admit the inequality of the burden?' To have made a true moral parallel he should have cited the business of gambling, of selling obscene literature, of keeping bawdy-houses, concert saloons or opium dens, and the like. Would the governor approve a bill prohibiting lawyers or plumbers from keeping open their places of business between 12 P. M. and 6 A. M., or forbidding them to screen their windows, or denying them the right to do business without the consent of a certain number of their neighbors? And yet such laws have been repeatedly held legal as to liquor saloons. His objection to the "inequality" of the measure therefore falls to the ground. So, too, for the same reason his objection that it is a revenue measure under guise of a license. We suppose that a business liable to absolute pro-whatsoever, except in a dwelling-house in no part of hibition by constitutional fiat, like the liquor traffic, may be permitted upon the payment of any fee which the Legislature may see fit to impose, even if it amounts to practical prohibition. If the plumber's business caused immorality, crime, poverty and misery, it might lawfully be subjected to a high price.

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which any tavern, store, grocery," etc., is kept. So that if the law means what the governor thinks, it steers clear of that case. The Legislature would even have a right to enact that the mere "keeping on hand " should be prima facie evidence of an intent to sell.

It seems to be of small use to cite cases to Governor Hill, but we will cite for our readers the most recent case on this point that has come to our notice. It is Re Hoover, 30 Fed. Rep. 31, in the United States District Court for Georgia, decided March 1, 1887. The statute in question prohibited the issue of any license unless the applicant should present

the written consent of ten of the nearest bona fide residents, five of whom should be the nearest freeholders; "provided that this act shall not apply to incorporated towns or cities." Judge Speer pronounced this a valid law. He said: "The particular legislation before the court, affecting as it does the rural communities of the State, was of supreme necessity, and of supreme reasonableness. In incorporated towns and cities the law is presumed to be present in the persons of its municipal officers and its police force. The brutal excesses of ungovernable and dangerous men when inflamed with drink may be readily repressed, and the perpetrators punished. It is otherwise in the quiet and sparsely settled neighborhoods, where the farmers, and their wives and children, 'far from the madding crowd's ignoble strife pursue the noiseless tenor of their way.' The cross-roads groggery was the bane of our civilization. A simple, artless and industrious laboring population, inflamed and enervated with drink, became worthless as laborers, irresponsible as citizens, unreliable in all the relations of life, and the more vicious very dangerous to society. It is superfluous to dilate upon facts so well known, and which have mainly caused the tremendous wave of public sentiment toward local option. It is historically true that incalculable benefit has been accomplished under the operation of this law, and that of which it is an amendment, by conscientious and fearless county officials who have steadily refused to license dram-shops where there could be no police supervision. I state these things because, in considering the reasonableness of the law, the court will take cognizance of the history of the times in which it was enacted, and understanding the mischief, can better understand the remedy." The judge argues upon a different condition of things from that among us, where it is notorious that the police authorities in the great cities do not their duty, but his reasoning shows that it is perfectly valid to make one regulation for the country and a different one for the city.

We are sorry that the governor did not advise with some disinterested lawyer of high standing rather than with the counsel for the associated liquor dealers. We are sorry that he did not let the courts decide on the constitutionality of this bill. He knew it could not be passed over his veto. It is evident from his notions of revenue, under the guise of license, that he would veto a general high license bill. What, then, are this rum-ridden people to do? Let the Legislature pass the Vedder general high license bill, and throw the responsibility of vetoing it on the governor. If relief cannot be got in this way, we shall hope to see a prohibition amendment submitted and adopted.

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policy not to question the validity of the policy after the death of the insured, is not against public policy, and is valid. The court say: "The remaining question is whether the provision so construed contravenes any rule of public policy, and is for that reason void. The stipulation provides that the validity of the policy shall not be questioned after the death of the insured, and not after two years from the date of its issue. An action for the recovery of the sum insured not being maintainable until after the death of the insured, one effect of the stipulation, if valid, is to prevent the insurer from interposing as a defense the falsity of the representations of the insured. But its effect is not to prevent the insurer from annulling the contract upon the ground of the fraudulent representations of the insured, provided an action for that purpose is brought in the life-time of the insured, and within two years from the date of the policy. The practical and intended effect of the stipulation is, as held by the trial court, to create a short statute of limitations in favor of the insured, within which limited period the insurer must test, if ever, the validity of the policy. It is settled that a stipulation in a policy limiting the time within which an action may be brought thereon is not against public policy, and that an action begun after the lapse of the stipulated time cannot be maintained. Ripley v. Etna Ins. Co., 30 N. Y. 136; Roach v. N. Y. and Erie Ins. Co., id. 546; Mayor v. Hamilton Ins. Co., 39 id. 45; Wilkinson v. First Nat. Fire Ins. Co., 72 id. 499; S. C., 28 Am. Rep. 166; Riddlesbarger v Hartford Ins. Co., 7 Wall. 386. If a stipulation shortening the period within which the statute permits the insured to enforce his rights in the courts is not against public policy, it is difficult to see upon what ground a stipulation shortening the time which the statute and the rules of the common law give an insurer to enforce its rights in the courts, can be held to contravene public policy. In Wood v. Dwarris, 11 Exch. 493, an action on a life policy was defended on the ground that it was issued upon the express condition that if any statement in the application was untrue, the policy should be void, and that certain statements were untrue. The plaintiff replied that the defendant issued a prospectus, which came to the knowledge of the insured, stating that all policies were indisputable, except in cases of fraud. The defendant rejoined that the policy and the application formed the contract, and that the statement in the prospectus was not binding; but the court held the rejoinder bad, and the stipulation binding. The stipulation in that case did not, like the one at bar, cut off a defense based upon the fraudulent representations of the insured, but in another respect it was broader than the stipulation under consideration, because it absolutely cut off the insurer's right to litigate the validity of the policy because of the untruth of the representations, no time being given to the insurer in which to contest upon the ground that the representations were untrue. A stipulation like the one under consideration ought to be an incentive

sentence is given above; and that instruction is given with an announcement of the judgment of the judge as to the allowance of an important item in such damages, the allowance of which was a question for the jury to determine. In this we think there was error." See Bowman v. State, 19 Neb. 523; S C., 56 Am. Rep. 750.

for the insurer to exercise vigilance and good faith excepted portion of the charge is found, and which in investigating the truth or falsity of the representations upon which the policy is issued while the matter is fresh. The witnesses are all alive, and the exact truth can, if ever, be ascertained, and the stipulation prevents the insurer from lying by and receiving the premiums during the life of the insured, and after his death," when the witnesses may be dead or absent, repudiating the policy.

A

COMMON WORDS AND PHRASES.

CTUAL USE. In Schlesinger v. Reard, United

States Supreme Court, Jan. 31, 1887, it was held that punchings and clippings of wrought-iron boiler-plates and wrought sheet-iron, left after the process of the manufacture of the boiler-plates into boilers is completed, and the ends of bridge rods and beams of wrought iron cut off to bring the rods and beams to the required length, are iron that has been in "actual use," and dutiable. Waite, C. J., said: "That the iron now under consideration was waste iron is conceded, and in our opinion it had been "in actual use" within the meaning of that term as employed in the statute. At one time it formed part of boiler-plates used in the manufacture of boilers, or of rods or beams used in build

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In Richardson v. Van Nostrand, 43 Hun, 299, an action for slander, the trial judge charged: "It is due, gentlemen, to good order in society and common decency among neighbors that you should look to it, if you are convinced that the defendant has made these charges, that he should respond in such damages as you think the plaintiff is entitled to for having charged her with these crimes, and it is well, in my judgment, for the defendant, no matter if his version of these transactions be a correct version, it is well for him to drop this currant transaction, and to cease talking about these currants. He has talked about them, in my judgment, long enough, and it is time he stopped talking about this apple transaction, and lived in peace and comity with his neighbors." The court, on review, said: "The portion of the charge excepted to is decidely sug-ing bridges. In order to fit the plates, rods or gestive that in the judgment of the judge the damages should be sufficient to stop defendant's talk about the currant and apple transaction. It goes further than an instruction to the jury that they might give such damage as would stop such talk by defendant. In Allis v. Leonard, 58 N. Y. 291, Chief Judge Church says: 'Jurors cannot distinguish between a direction in a matter of law or fact. They are bound to take the law from the court, and a positive direction from the bench as to a question of fact is as potent as if it pertained to a question of law; and even an expression of opinion calculated to influence the decision of the jury in a matter clearly within their cognizance should be critically scrutinized.' In the present case the language from the bench was 'it is well, in my judgment, for the defendant to stop,' etc.; 'he has talked about them, in my judgment, long enough,' etc. In vindictive actions, as they are sometimes termed, * the conduct and motive of defendant is open to inquiry with a view to the assessment of damages; and if the defendant in committing the wrong complained of acted recklessly, or willfully, and maliciously, with a design to oppress and injure the plaintiff, the jury in fixing the damages may disregard the rule of compensation, and beyond that may, as a punishment to the defendant, and as a protection to society against a violation of personal rights and social order, award such additional damages as in their discretion they shall deem proper.' Voltz v. Blackmar, 64 N. Y. 444; Brooks v. Harrison, 91 id. 91, 92. In the charge in the present case the judge nowhere gives the jury any instruction as to the plaintiff's right to recover more than compensatory damages, except in the sentence in which the,

* *

beams to the places they were to occupy in the structures of which they were to form a part, these pieces were cut off as useless, and thrown away, or in the language of the trade, into the scrap heap.' They had become, by the use to which they were put, 'scrap iron,' in the popular sense of that term, and nothing else. It is true the cuttings and clippings had never themselves been used in the boilers or in the bridges, but they had been used in making these structures, and thus had accomplished the purpose for which they were originally manufactured. The plates, rods and beams of which they were once parts had been used, and these were the waste resulting from that use. They are not old in the sense of having, been worn by use, but they are scrap, and no longer capable of any use until manufactured, because in their use they have been rendered worthless for any purpose except to manufacture. In the popular sense, as manufactured articles, they have been used up-made worthless by use; and this use has been actual, not colorable only. The plates, rods and beams were made to be used in a particular way. They have been so used, and these cuttings and clippings are the waste of that use. Consequently they are, in our opinion, 'wrought scrap iron,' and dutiable as such."

CASE. A statute provides that "gunpowder or other explosive or inflammable substance shall not be taken into the mine except in a case or canister," etc. Held, that a linen or calico bag was not such

a

case." Foster v. Diphwys Casson Slate Co., 18 Q. B. Div. 428. Coleridge, C. J., said: "I should say that here the words ' case or canister' explain one another, that the word 'case' which is used in

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act as it would be construed by an intelligent, disinterested person, or are we to destroy the object of it by finding out that some word could be used (as most words can be) in senses totally different to that intended by the act. Bag is not however the ordinary meaning of the word 'case,' and I have not the least doubt that it is not the meaning intended by this act. I am of opinion that 'case' in section 23 (2) (b) means as canister' means something solid, and capable of reasonably protecting gunpowder taken into a mine, one of the very sources of danger against which the act is directed. Gunpowder is not to be conveyed into a mine except in something that will protect it. A 'case' or canister' would protect it from a spark or hot cinder, which would be almost certain to explode it if only in a thin bag, and still more so if in a net.”

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this place, and in connection with 'canister,' must mean a case in the nature of a 'canister,' not strictly speaking a canister, but a solid and substantial thing of wood or metal, or some other such solid substance, which can be covered over so as to prevent ignition from a spark. That seems a proper view of this section, because in so construing the act we give effect to the act according to its pur* * k It was admitted that a net if suffiposes. ciently fine would be a 'case' within the meaning of the act; and we are familiar with the fact that some most powerful gunpowder is made in such large grains that it could be carried in a net, which need not be particularly fine to hold it. But a net would be no protection whatever in a mine. I am clearly of opinion that this bag is not a 'case' within the meaning of the act, and the justices must proceed to convict." Grove, J., said: "When I first read section 23 it never occurred to me that 'case' meant 'bag,' nor indeed should I have expected, until a definition was found including bag which may be sometimes the same as a casethat 'case' could include 'bag.' For 'case' prima facie to my mind means something solid not confined perhaps to box, canister or tin case, but something of a solid character. The counsel for the respondents, in answer to a question put to him as to 'net,' defined case to mean any thing which would include another thing. So perhaps a handkerchief or net might be a 'case.' A fine net would carry coarse blasting-powder perhaps without danger of its escaping, yet with imminent danger of explo-brained and murderously inclined person, and is sion from a spark even out of a domestic fire, and certainly from one of those hard sparks which are blown out of engines, and which would penetrate a much thicker and more substantial thing than even this calico bag, and explode gunpowder in it. Can any one, except a person seeking a way out of the act, interpret the word 'case' used in section 26 (2) (b), otherwise than as meaning something solid? But it is said the word 'case,' according to the dictionary, may include a bag. There are few words that cannot be used in more senses than one, and are not capable of some exceptional interpretation different from the ordinary meaning if taken from the context. I have, as an author, to have no necessarily defamatory sense. It would tried in vain to find words not capable of being ap-not necessarily imply that a man had been guilty of plied differently to my intention. Language does a crime, nor tend to subject him to ridicule or connot admit of mathematical accuracy, and it is im-tempt to say of him that he is capricious, or subject possible to use words, which with all their various to vagaries or whims; and such implication or insenses may not be used in a different sense to that tent could only be shown by an apt averment, and in which the author used them. Nobody reading proof in support of such averment." this act by ordinary common sense would say that in an act providing against accidents from explosion of gunpowder, the provision that 'it shall not be taken into the mine except in a case or canister,' means that it may be taken in a thin calico bag, or even in a net, because a net would include some kinds of gunpowder. Every one would understand the word 'case' there to mean something solid, something permanent, which would save the gunpowder from being exploded. Then comes the question asked by my lord, are we to construe the

CRANK.-In Walker v. Tribune Co., 29 Fed. Rep. 827, it was held that the word "crank "has no necessary defamatory meaning, and for a newspaper to publish an item that a certain pamphlet written by a lawyer, who was also the author of a text-book on | the law of patents, was "the effusion of a crank," is not actionable without a charge in the declaration of the alleged defamatory meaning of the word by an appropriate innuendo, and an averment and proof of special damage. The court said: "It is urged in a brief filed by plaintiff that since the assassination of President Garfield by Guiteau, the word 'crank' has obtained a definite meaning in this country, and is understood to mean a crack

so used by the public press. I do not think so short a term of use would give to such a word a libelous sense or meaning without an allegation or innuendo as to the sense in which it was used by the defendant. In Ogilvie's Imperial Dictionary, published in England in 1883, and republished in this country in 1885, the word is found in the supplement with the following definition: 'Crank.' Some strange action, caused by a twist of judgment; a caprice; a whim; a crotchet; a vagary. Violent of temper; subject to sudden cranks. Carlyle.' So that by this authority, which I think must be deemed the latest, and probably the best, the word would seem

DOMESTIC SERVANT.— As that term is defined by legal lexicographers, and as it is used in article 714 of the Penal Code of Texas, it means a servant who resides in the house with the master he serves, and does not include a servant whose employment is outside, and not in the house. A farm hand who sleeps and eats outside of the master's house, though he performs chores inside of the house when directed, does not come within the meaning of the legal term "domestic servant." Waterhouse v. State, Texas Court of Appeals, June 25, 1886.

GAMBLING DEVICE.- A gun and target are not a gambling device within the meaning of a stat ute enumerating "A. B. C., faro-bank, E. O., roulette, equality and keno," and prohibiting betting upon any game played by means of them, or any other gambling device. State v. Bryant, Missouri Supreme Court, Jan. 31, 1887. The court said: "It is very evident to my mind that the words 'or other gambling device,' employed in section 1548, were only designed to apply to such gambling devices as are of a kindred nature and similar kind to those mentioned in section 1547. This view accords with that good rule of construction which requires that when a particular class is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class.' Broom Leg. Max. 625. Thus, if a statute, after the enumeration of classes of persons and things, there should be added 'and all others,' such general words will be limited in their meaning, and restricted in their operation to objects of like kind with those specified. Bish. St. Crimes, § 245, and cases cited. A familiar example of this 'celebrated rule' is found in the case of Reg. v. Whitnash, 7 Barn. & C. 596. The statute of 29 Car. II., ch. 7, § 1, provided that no tradesman, artificer, workman, laborer or other person whatsoever,' should exercise his ordinary calling on the Lord's day; and thereupon it was ruled that the words 'other person' did not include a farmer,' because not of like denomination with those specifically mentioned; Bailey, J., remarking that if all persons were meant there was no need of the specific enumeration. But aside from the familiar rule already adverted to, and looking to the bare reason of the case, it cannot be possible that a 'gun and target' were, within the legislative contemplation, a 'gambling device,' 'adapted, devised and designed for the purpose of playing any game of chance for money or property.' If a 'gun and a target' are to be so regarded, a game of marbles would fall equally under the statutory ban. Indeed, under such a latitudinous construction it is difficult to tell what sports might be interdicted, and what games punished."

NEGLIGENCE-CONCURRENT-IMPUTABLE.

ENGLISH COURT OF APPEAL, NOV. 8, 1886.
THE BERNINA.*

A passenger in a public conveyance, injured by the concur-
rent negligence of the managers of that conveyance and
those of another, may maintain an action against the
owner of either or the owners of both.
opinions state the case. The opinions are so
long (covering forty pages) that we can give only
some extracts, omitting, especially from Lord Esher's
opinions, a long discussion of cases supposed to follow
or to differ from Thorogood v. Bryan.

THE

LORD ESHER, M. R. This was a special case, heard

12 Prob. Div. 58.

and determined by Butt, J., sitting in the Court of Admiralty. It appears from the case that three actions had been brought and entered in the Admiralty Division, each for damages against the owners of the ship Bernina, the actions being founded on Lord Campbell's act. In the first, Elizabeth Armstrong sued as administratrix of her husband on behalf of herself and children. In the second, Catharine Owen sued as administrator of her husband. In the third, Habiba Toeg sued as administratrix of her son. The collision took place between the Bernina and the Bushire, both British ships, and the collision was caused by the fault or default of the master and crew of the Bushire, and by the fault or default of the master and crew of the Bernina. Armstrong was one of the crew of the Bushire, but at the time of the collision was off duty, and had nothing to do with the negligence of the Bushire which partly caused the accident. Owen was secoud officer of the Bushire, and was at the time of the collision in charge of the Bushire, and was directly responsible for the negligence or carelessness which partly caused the collision. Toeg was a passenger on board the Bushire, and had nothing to do with the negligent or 'careless navigation which partly caused the collision. Butt, J., gave judgment for the defendants in all three actions, in obedience to, but apparently without himself acquiescing, in the case of Thorogood v. Bryan, 8 C. B. 115. It is evident from the statement that the question raised is, what is the law applicable to a transaction in which a plaintiff has been injured by negligence, and in the course of which transaction there have been negligent acts or omissions by more than one person?

Upon many points as to such a transaction the common law is clear. (1) If no fault can be attributed to the plaintiff, and there is negligence by the defendant and also by another independent person, both negligences partly directly causing the accident, the plaintiff can maintain an action for all the damages occasioned to him against either the defendant or the other wrong-doer. (2) If in the same case the negligence is partly that of the defendant personally and partly that of his servants, the plaintiff can maintain an action either against the defendant or his servants. (3) If in the same case the negligence is that of the defendant's servants, though there be no personal negligence by the defendant, the plaintiff can maintain an action against either the defendant or his servants. (4) If in the same case the negligence, though not that of the defendant personally, or of a servant of the defendant, consists in an act or omission by another, done or omitted to be done in the way in which it is done or omitted to be done by the order or direction or authority of the defendant, the plaintiff can maintain an action either against the defendant or the person personally guilty of the negligence. (5) If although the plaintiff has himself or by his servants been guilty of negligence, such negligence did not directly partly cause the accident, as if, for example, the plaintiff or his servants having been negligent, the alleged wrong-doers might by reasonable care have avoided the accident, the plaintiff can maintain an action against the defendant. (6) If the plaintiff has been personally guilty of negligence, which has partly directly caused the accident, he cannot maintain an action against any one. (7) If although the plaintiff has not been personally guilty of negligence, his servants have been guilty of negligence which has partly directly caused the accident, the plaintiff cannot maintain an action against any one. (8) If although the defendant or his servants has or have been guilty of negligence, the plaintiff or his servants could by reasonable care have avoided the accident, the plaintiff cannot maintain an accident against any one.

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