90, down to Gregory v. Bough, 2 Leigh, 665, are cited in 1 Robinson Prac. 338; Barton Law Prac. 214. See also Cornet v. Rundy, in this court, not yet reported. But I can find no case which can be said to be exactly like this on this point. It is said by the counsel for the appellants to be unprecedented, and that seems to be so in this State at least. The case of Dejarnette v. Com., 75 Va. 877, was a case where the court appears of its own motion to have proceeded to instruct the jury upon the principles of law by which insanity is to be tested. Judge Staples in that case says that such was not the practice in Virginia, and says: "We think however that the practice in Virginia is a wise one in general; for it is extremely difficult to deliver charges to the jury without conveying to them some intimation of the opinion of the judge upon the eviidence, or using some phrase or expression which may constitute a ground of just exception." In this case the court was not satisfied with charging the jury at great length upon their general duties as jurors, but in effect instructs them that the minority should yield to the majority, that is, concede to the majority something in this particular case; that the evidence was very conflicting, etc. How much this judge thought the minority must concede to the majority the jury is not informed; but upon what principle could this be held except that the majority should govern, and that the question should be decided by a vote, the voice of the majority being then reported to the court as the unanimous verdict of the jury. The minority of the jury may thus have been induced to believe that by such a course all responsibility would be removed from them upon their oaths, and placed upon the majority, or possibly upon the court; for the judge loftily concludes. "Do your duty, gentlemen, and leave the rest to me." We think a verdict thus obtained cannot be said in any just sense to be the verdict of the jury. The course of the trial judge, we think, was an altogether unwarrantable invasion of the domain of the jury, and if upheld, would tend to render jury trials a mockery. It lies at the foundation of jury trials that by their verdict the jury shall determine the issue joined upon their consciences without outside influence or coercion from the court or elsewhere. The province of the court is to instruct the jury upon questions of law, and express no opinion, make no comments concerning the facts, whether conflicting or not; there can be no particular circumstances which will justify the court in doing either. We have found no case in Virginia before this where the jury has been instructed to decide the case by a ballot, and this case will doubtless long stand alone. Va. Sup. Ct. App., March 17, 1887. Whitelaw's Ex'r v. Whitelaw. Opinion by Lacy, J.

REPLEVIN — DAMAGES — USE OF PROPERTY.- When a defendant, from whom the plaintiff replevied a piano, succeeds in the action, he is entitled to recover of the plaintiff such damages for the detention thereof as the jury shall be satisfied the use of the property was worth to the defendant during the time of the detention, considering the nature and character of the property. This is an action of replevin in which the defendant has recovered a verdict. He is entitled to recover as damages such sum as will be a fair indemnity to him for the injury he has sustained by reason of the unlawful taking and detention of his property by the plaintiff. Stevens v. Taite, 104 Mass. 328. In this case the property replevied was household furniture, including a piano, and it appeared that during the time of the detention the defendant did not purchase or hire other similar property. The plaintiff asked the court to rule that "the damages for the detention should be fixed at the interest of the money value of the property, during the time it was detained,

and whatever loss or inconvenience was sustained in purchasing property of equal value for use during the time of detention." As the defendant did not purchase other property, this was equivalent to asking the court to rule that the defendant could only recover as damages the interest on the value of the property. The court rightly refused this ruling, for it is clear that interest on the value of the property is no criterion of the damage sustained by the defendant, by reason of being deprived of the use of it. The property was household furniture, in daily use and necessary to his comfort. It is evident that the restoration of the property, with interest on its value, would not furnish an adequate indemnity to the defendant for the wrong done in taking it out of his possession. In Clark v. Martin, 125 Mass. 543, it was held that where a plaintiff in replevin recovered damages for the detention of a horse and buggy attached by the defendant on a writ against a third person, the jury might award such damages for the detention as they should be satisfied the use of the property was worth to the plaintiff during the time of the detention, considering the nature and character of the property. A similar rule of damages would apply in the case before us, and it is to be presumed that such rule was adopted by the court, as nothing appears to the contrary. Mass. Sup. Jud. Ct., Jan. 17, 1887. Boston Loan Co. v. Myers. Opinion by Morton, C. J.

REVENUE - INCOME TAX FOREIGNERS RESIDENT ABROAD-TRADE CARRIED ON IN ENGLAND THROUGH A RESIDENT AGENT.-The appellants, wine merchants, and shippers, of Rheims, in France, where they lived, and where their chief office for business is, and who were never resident in England, are, and for many years have been, in the habit of shipping and sending yearly to England very considerable quantities of champaigue for the purposes of sale there. By arrangement, Mr. A. Hubinet, of 24 Mark lane, London, acts in England as their sole representative in the sale of their wine and the transaction of their business, receiving as an equivalent for his expenses in rent, clerks' salaries, and otherwise, and as a remuneration for his services, a commission on all wine sold by the appellants in England. The premises in Mark lane were taken in Hubinet's name, and he carries on no business there except that of the appellants' representative, and is duly assessed to and has paid income tax on all profits made by him in respect of his said agency. The appellants' names, with Hubinet as their agent, appear among the wine merchants in the Post-office Directory, and are also shown at the Mark lane premises. Hubinet, on behalf of the appellants, employs travellers and appoints sub-agents, who seek for orders for the wine in various parts of England, all orders being sought for and taken by him as "agent for Pommery & Greno." The orders so obtained are transmitted to Hubinet, and forwarded by him to the appellants at Rheims, and in response thereto either Hubinet supplies the wine ordered from a small stock kept by the appellants at Mark lane, or if the order be for a considerable quantity, the appellants ship the wine direct to the customer. All goods are invoiced to the customer in the appellants' names as vendors, and the amounts due in respect thereof are collected by Hubinet at Mark lane on behalf of the appellants, who keep a banking account in London. Bills and drafts are drawn payable to the appellants' order, and when received are transmitted by Hubinet to the appellants at Rheims for indorsement. On default of payment by a customer proceedings are taken in the English courts in the appellants' names, and proof in bankruptcy is made in their names against a bankrupt debtor. The appel. lants take all gains and suffer all losses in the sale of

any wine in England, and Hubinet has no interest in any such sale other than his said commission as agent. All goods are shipped from France at the purchaser's risk. The income tax commissioners having confirmed the assessment to income tax made upon the appellants in the name of their agent in respect of the profits from their trade of wine merchants carried on as above mentioned, the appellants appealed therefrom to the Queen's Bench Division, and contended, that as their agent had paid income tax on all profits made by him, and as they only sold wine through him as agent in England, they were not liable to be taxed; and further, that the profits were made in France, and not in England, and that in any case the profits arising from the orders executed from the stock of wine in France were made there, and were not taxable here; but it was held by Denman and Hawkins, JJ. (dismissing the appeal), (1) that the appellants carried on a trade within the United Kingdom, on the profits from which they were liable to assessment to income tax under schedule D of 16 & 17 Vict., ch. 34; and (2) that liability extended not only to the profits upon the orders executed by their agent from the stock of wine kept in Mark lane, but also to the profits accruing from the orders executed by the appellants from their stock of wine at Rheims direct to the customers in England. Q. B. Div., Dec. 17, 1886. Pommery v. Apthorpe. Opinions by Denman and Hawkins, JJ.

SHIP AND SHIPPING-LIABILITY OF SHIP-OWNER TO SHIPPER FOR DECK CARGO JETTISONED-CONTRACT

BREACH-PROXIMATE CAUSE OF DAMAGE. On a ship carrying a general cargo from New Orleans to Liverpool cotton was shipped on deck, under a practice by which owners of vessels trading between those ports were in the habit of stowing goods on deck in violation of their contract with the shipper, the ship-owners accepting full responsibility for the consequences. The bills of lading for part of the cotton contained the words "under deck." All the bills of lading contained exceptions (inter alia) in favor of "jettison." On the voyage the ship took ground, and in order to get her off the master properly jettisoned the cotton The indorsees of the bills of lading having brought an action against the ship-owners to recover the value of the cotton, held, affirming the decision of the Court of Appeal, that (whether the bills of lading did or did not contain the words "under deck "), the cotton was carried in breach of the contract, and was not within the exceptions specified in the bills of lading, which had exclusive reference to goods safely stowed under the hatches; that the shipowners had therefore no legal excuse for their failure to deliver; that the cause of damage was not too remote, and that the ship-owners were liable to the indorsees for the value of the cotton. Royal Exchange Shipping Co. v. Dixon. 12 App. Cas. (H. L.) 11.

SLEEPING-CAR COMPANY-LIMIT OF DUTY TO TRANSPORT.-The gist of the plaintiff's claim is that he was wrongfully refused accommodation in the sleeping car of the defendant, in coming from Baltimore to New York, by the defendant's servant, and that on declining to leave the car, he was ejected therefrom. His argument assumes that it was for the defendant to determine under what circumstances a passenger should be allowed to purchase a berth, and incidentally the other accommodations afforded by the sleeping car. An examination of the contract with the Pennsylvania Railroad Company, by virtue of which the cars owned by the defendant were conveyed over its railroad, shows that while these cars were to be furnished by the defendant corporation, they were furnished "to be used by the railroad company" "for

the transportation of passengers; " that its employees were to be governed by the rules and regulations of the railroad company, such as it might adopt from time to time for the government of its own employees. While therefore the defendant company was to collect the fares for the accommodations furnished by their cars, keep them in proper order and attend upon the passengers, it was for the railroad company to determine who should be entitled to enjoy the accommodations of these cars, and by what regulations this use of the cars should be governed. The defendant company could not certainly furnish a berth in its cars until the party requesting it had become entitled to transportation by the railroad company as a passenger, and he must also be entitled to transportation for such routes and distances, or under such circumstances, as the railroad company should determine to be those under which the defendant company would be authorized to furnish him with its accommodations. The defendant company could only contract with a passenger when he was of such a class that the railroad company permitted the contract to be made. The railroad company had classified its trains, fixing the trains upon which persons should become entitled to transportation in the sleeping cars, and the cars in which such transportation would be afforded. It was their regulation that between Baltimore and New York this accommodation should only be furnished to those holding tickets over the whole route. It does not appear that this was an unreasonable rule; but whether it was so or not, it was the regulation of the railroad company, and not of the defendant. The evidence was that "the ordinary train conductors of the Pennsylvania Railroad have full and entire authority over the porters and conductors of the Pullshall ride in the cars, and under what circumstances, man cars, in regard to the matter of determining who and in regard to every other thing except" the details of care, etc. The defendant's servant, the plaintiff having entered the sleeping-car, informed him that his "split" tickets, as they were termed, were not such as would entitle him to purchase a berth, and that he could sell only to those holding "through tickets intact to the point to which sleeping accommodations were desired." The plaintiff was in no way disturbed until the train conductor (who was not defendant's servant) came into the car, informed plaintiff that his tickets were not such as to entitle him to purchase the sleeping-car tickets, and several times urged the plaintiff to leave the sleeping-car, which the plaintiff refused to do. Whether accommodation was rightfully refused to plaintiff or not in the sleeping-car, the refusal was the act of the railroad company's servant, and not of defendant's, whose duty it was to be guided by the train conductor. The ejection of defendant was also the act of the railroad company, and not of the defendant. Even if the Pullman conductor had used force upon the plaintiff, he was not doing the business of the defendant compant; he was assisting the train conductor in the duty he was performing as servant of the railroad. Mass. Sup. Jud. Ct., Feb. 24, 1887. Lawrence v. Pullman Palace Car Co. Opinion by Devens, J.

OBSTRUCTING

WAY BAY-WINDOWS. Bill in equity to restrain the defendant from building baywindows projecting over a passage-way of the width of five feet, which runs from Joy street, across the rear of the lots of the plaintiff and defendant. The defendant does not deny that the plaintiff has the right to use the passage-way as a means of access to his lot from Joy street, formerly Belknap street. The question in the case is as to the extent of this right, and whether in projecting bay-windows over the

passage-way, in the manner alleged in the bill, the defendant is violating this right. The windows do not interfere with passage to and fro over the passage-way. The various cases which have arisen, as to the right of the owner of land subject to a right of way to build or project structures over the way, have all been decided upon the same general principles. The difference in the results arises from the application of these principles to a difference in the grants by which the way is created, and in other circumstances of the cases. These general principles are that a man, who owns land subject to an easement, has the right to use his land in any way which is not inconsistent with the easement, but has no right to use it in a way which is inconsistent with the easement, and that the extent of the easement claimed must be determined by the true construction of the grant or reservation by which it is created, aided by any circumstances surrounding the estate and the parties, which have any legitimate tendency to show the intentions of the parties. In the leading case of Atkins v. Bordman, 2 Metc. 457, it was held that a passage-way about five feet in width, running from Washington street to rear land owned by the plaintiff, might be built over by the owner of the front land. The court held, that by the true construction of the grant under which the plaintiff claimed, he required merely the right of a "suitable and convenient footway to and from his house, of suitable height and dimensions, to carry in and out furniture, provisions, and necessaries for family use, and to use for that purpose wheelbarrows, hand-sleds, and such small vehicles as are commonly used for that purpose, in passing to and from the street to a dwelling in the rear, through a foot-passage, in a closely-built and thickly-settled town. It was therefore adjudged that the owner of the fee might build over the way in a manner which did not render it unfit for these purposes. This decision was followed in Gerrish v. Shattuck, 132 Mass. 235, in which the reservation to the plaintiff was of "a passage-way four feet wide in, through, and over said premises, from said Prescott street to my tenement, on the westerly side thereof." It was held that this reserved a footway for passing and repassing, with such incidental rights as are necessary to its enjoyment, and that the owner of the servient premises might build over it in such manner as not to interfere with these purposes. In the case of Schwoerer v. Boylston Market Ass'n, 99 Mass. 285, it was clear that the passage-way could not be built over, because the grant to the plaintiff expressly provided that it should not be "subject to have any fence or building erected thereon," and because the other parts of the deed and the facts of the case show that the intention of the parties was that it should be in the nature of an open court or street. In Brooks v. Reynolds, 106 Mass. 31, the passage-way was expressly declared to be "for light and air," and it was held that it could not be covered in whole or in part. The cases of Salisbury v. Andrews, 128 Mass. 336, and AttorneyGeneral v. Williams, 140 id. 329, were decided upon the ground that the terms of the grant and the surrounding circumstances showed that the purpose was that the passage-ways in question should be kept open and unobstructed, substantially as streets or courts, not only for the purpose of passing and repassing, but also for purposes such as streets are ordinarily used for,for light, air, and prospect. The right of the parties in this suit depends upon the construction of the grant to the plaintiff. It is a grant of “a right and 'privilege, in common with me, my heirs and assigns, in a five feet passage-way, leading from the north-easterly corner of said land to said Belknap street." In the same breath the grantor reserves to himself "the right and privilege of using, as a passage-way in common with said grantees, their heirs and assigns, a strip of land

five feet wide across the northerly end of said granted premises, the said passage- way to be maintained and supported at the common expense of the several abutters." The passage-way reserved was a continuation of the passage-way named in the grant to the plaintiff. The effect of the two clauses was to provide for a passage-way running from Belknap street (now Joy street) in a westerly direction, for a distance of ninety-six feet across the rear of the two lots now owned by the plaintiff and the defendant. It is only five feet in width, and has no outlet at the westerly end. It is too narrow to be used for horses and carriages, and clearly was not designed for such use. It is not of the character of a street or court. The purpose seems to have been to provide a narrow footway leading to the rear of the defendant's and plaintiff's lots, and of the lot next westerly of the plaintiff's, and of the lot on the northerly side of the way, designed for passing and repassing on foot, and for carrying in, in small vehicles, articles necessary for family use, and generally to be used as such ways are ordinarily used in a large city. The grants to the plaintiff and to the other abutters contain no provision that the way is to be kept open to the sky for light or air or prospect. We cannot distinguish this case from the two cases above cited, of Atkins v. Bordman and Gerrish v. Shattuck, and are therefore of opinion that the plaintiff has not shown a right to have the passageway open unobstructed from the ground upward, for its full width of five feet. Mass. Sup. Jud. Ct., Feb. 25, 1887. Burnham v. Nevins. Opinion by Norton, C. J

CONFLICT OF JURISDICTION, DOUBLE PUNISHMENT. Editor of the Albany Law Journal:

W. J. Sanderson, a justice of the peace, was charged with an assault, and one of his friends, learning that a warrant had issued for him from a police court, which had final jurisdiction of the offense, and went before a justice of the peace, and had Sanderson arrested and brought before him, where he waived an examination and was bound over to answer to the grand jury.

Subsequently thereto, a police officer, having the warrant from the police court, arrested Sanderson and brought him before that court, against all of which he protested, and to avoid imprisonment gave bail, and filed his plea, setting up his previous arrest, identity of person and offense, and his binding over by the magistrate to the grand jury.

To this plea the State demurred and the court sustained the demurrer, and the defendant, still objecting to the jurisdiction of the court, entered a plea of guilty, and he was sentenced to a fine of $200 and thirty days in the work-house. The court refused a stay of execution, and defendant had to go out. It took some time to get up a bill of exceptions, and appeal to the Court of Common Pleas, which upon hearing the same ordered the defendant's discharge (after having served seventeen days of his sentence) and held, that the police court had no jurisdiction. The

The Albany Law Journal.

THERE

ALBANY, JUNE 4, 1887.

CURRENT TOPICS.

THERE may be some reasonable difference of opinion as to the wisdom of the late prosecution for blasphemy in New Jersey. Our own opinion is that it is the wiser course generally to ignore such things. A mere proclamation of irreligion is apt to do the less hurt the less attention is paid to it. It is after all but an announcement, although perhaps violent and offensive, of an opinion upon a subject in regard to which men always have differed and always will differ. Men often speak contemptuously and offensively of things which they do not believe, even to the point of shocking those who

do believe them. It is not like a libellous attack

upon character or profane swearing in public, which assail private interests or disturb public quiet, and which have no foundation in opinion or belief. Colonel Ingersoll is wrong however in denouncing such prosecutions as an infringement of the constitutional right of free speech. To speak freely does not mean to say any thing that a man pleases, without regard to its character or purposes. He might assail prosecutions for libel or profane swearing as an interference with free speech, but he would be wrong. So in theory prosecutions for blasphemy are not an unjustifiable interference with free speech, although they may be impolitic. But as the Colonel's client was found guilty and fined twenty-five dollars, we have no fault to find with either the verdict or the sentence, which respectively mark the disapprobation of the jury and the contempt of the court for the offender.

Two pamphlets on Insanity have recently come to our table. One is entitled "Insanity and the Care of the Insane," and is written by Doctor Clark Bell. The writer collects various legal and medical definitions of insanity, and advocates the view that one should be excused for crime, even if he knows he is doing wrong, provided his will is too feeble to resist the wrong impulse. A very humane doctrine for the insane but not for the sane. The more interesting part of the treatise is on the care of the insane. The writer inclines against confinement in asylums and mechanical restraints, and in favor of putting the patients in small numbers in care of families, or forming colonies like that at Gheel, in Belgium, where there are 1,653 patients living in private families. In place of restraints he advises active physical employment. He says: "No matter how excited a lunatic is he will work out of it if furnished with hoe and shovel." He also says: "Music has exercised a wonderful curative and tranquillizing power over the disordered intellect, to which much greater stress was given by the anVOL. 35 No. 23.

cients than with us. The sweet strains of delicious music will quiet the most excited and raving maniac a thousand-fold quicker and more completely than any of the barbarous appliances of chains, or force in any form, and cheerful and merry companions, pleasant surroundings and good cheer, will restore the light of reason better than medicines, or bolts or bars. These aids were better understood by physicians of the past than of the present, and asylum superintendents who will study attentively. the influence of these aids to diseased brains will be astounded at the results they will meet. Amuser, toujours amuser, should be the motto of asylums." The other pamphlet is entitled "The Defense of Insanity in Criminal Cases," and is a thesis by Lancelot Fielding Everest, for the degree of Doctor of Law at Cambridge. The writer gives an excellent analysis and criticism of the leading English cases of Arnold, Ferrers, Hadfield, Bowler, Bellingham, Offord, Oxford, MacNaughten, Stokes, Barton, Haynes and Layton, and comes to the conclusion that it is best not to adopt any general test of responsibility, but to lay down the law, in general terms, like that of the French and German codes,

to the effect that the offender is not accountable when the act is done "under alienation of mind," and leave it to the tribunal to say in each case when the alienation is sufficient to justify an acquittal. Doctor Bell and Mr. Everest both advo

cate a tribunal of medical experts to decide the

question of insanity. Doctor Bell does not explain what he would do with a man acquitted of murder on the ground of insanity. Would he set him at work with hoe, or spade, or rake, and play soft music to him? Especially, what would he do with those emotional lunatics who kill the men who have seduced their wives or sisters, and are acquitted? In regard to these two classes, at least, we think the community would be justified in demanding that they should be shut up for life. Mr. Everest's pamphlet is published by Stevens & Sons, London.

Governor Hill ought to proclaim a day of special thanksgiving for the adjournment of our Legislature. We speed the parting guest. But it did not brighten as it took its flight. It has folded its tents like the Arabs and as silently stolen away. True, it did make out to pass the Vedder highlicense bill at the last gasp, but probably to put the odium of vetoing it upon the governor. Aside from this it has done nothing good or useful that we now recall. It has consumed much of the session in quarrelling with the governor. It has enacted a dead-letter marriage law, and it has legalized the felony of gambling on horse-races, for five months of the twelve. It has refused to pass the Code, or take any steps toward giving the people the Code enjoined by the Constitution. constituted a miserable make-shift for the relief of the Court of Appeals — already swamped beyond the reach of plummet - composed of judges from the Supreme Court, which is itself overburdened

It has