additional, is a reasonable precaution to be taken by the company, and binding upon all who assent to it, so as to exempt the company from liability beyond the amount stipulated, for any cause except willful misconduct or gross negligence on the part of the company." Becker v. Western Union Telegraph Co. Opinion by Lake, J.

[Decided Jan. 14, 1881.]

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

NOVEMBER, 1880.

MASTER AND SERVANT- - LIABILITY OF MASTER FOR INJURY TO SERVANT CAUSED BY DANGEROUS STRUCTURES LEFT STANDING DERRICK ON LINE OF RAIL

ROAD. A derrick was erected by the servants of a railroad company on its road for the purpose of doing work on the road, within four or five feet of an overhanging bank. One of the guys of the derrick was stretched across the track on which the company's trains ran, and fastened. It was of sufficient height when the derrick was upright to clear passing trains. The derrick was carelessly and negligently set up, the guys not being taut and it being placed dangerously near the overhanging bank. It was used for some four days, after which it was not used. About fourteen days after it was set up a mass of the overhanging bank fell upon the derrick breaking it down and bringing the guy so low that it struck a passing train of the railroad company upon which the plaintiff was employed as brakeman and swept him from the train, injuring him. The day before the accident it was apparent to any one that a large mass of the bank was liable to fall upon the derrick. During the time the derrick was up the weather had been alternately thawing and freezing. Held, that there was evidence that would warrant a jury in finding that the railroad company had not used the care which the circumstances required to keep their track in a safe condition and to guard against impending danger. It has been settled that a master is bound to use reasonable care in selecting his servants and in keeping the engines with which, and the buildings, places and structures in, upon or over which his business is carried on, in a fit and safe condition, and is liable to his servants for any injury suffered by them by reason of his negligence in this respect. Cayzer v. Taylor, 10 Gray, 274; Snow v. Housatonic R. Co., 8 Allen, 441; Coombs v. New Bedford Cordage Co., 102 Mass. 527; Huddleston v. Lowell Machine Shop, 106 id. 283. The master does not warrant the safety or sufficiency of such places, buildings, structures or engines. Ladd v. New Bedford R. Co., 119 Mass. 412. But he is bound to use reasonable care, having regard to the nature of the business and the circumstances of the case, to secure their safety and sufficiency. It is difficult to lay down a more definite rule applicable to all cases. If a railroad corporation has suffered a structure not actually in use for the purposes of its business to remain for an unreasonable length of time on land within its control in such a position by the side of its track as to be in danger of being thrown down by ordinary natural causes so as to interfere with the safe passage of its trains, the structure is in law a nuisance, and the corporation is liable to servants employed upon its passing trains for injuries resulting from its own neglect in not removing the structure, or in not guarding against the danger of allowing it to remain in such a place, whether it was originally put there by the servants of the corporation or by strangers, and independently of the question of negligence on the part of those who placed it there. Holden v. Fitchburg Railroad Co. Opinion by Gray, C. J.

NEGOTIABLE INSTRUMENT

PAYMENT -TITLE ONE IN POSSESSION MAY SUE. - The F. Bank of Boston held a promissory note upon which defendants were indorsers, payable at the plaintiff bank in Boston. On the day of maturity the F. Bank sent through the clearing house the note to plaintiff bank, charging the note to plaintiff. Plaintiff's teller, supposing the makers were in funds, stamped the note as paid. He discovered his mistake the same day and had the note duly presented and protested, and notice was duly given to the indorsers and the F. Bank but plaintiff did not return the note. A dispute arose between the F. Bank and plaintiff as to whether under the rules of the clearing house the note had not become the property of plaintiff by a failure to return the same. Plaintiff, to terminate this dispute, paid the amount of the note to the F. Bank, reserving all rights. Held, that the note was not paid and that the defendants could not set up that the note was not the property of plaintiff. Defendants could not set up any thing in the rules of the clearing house to estop or defeat the right of plaintiff to recover against them as they were not parties to the clearing house regulations. Overman v. Hoboken City Bank, 30 N. J. 61. Their rights were in no way prejudiced. Merchants' Banks v. Eagle Bank, 101 Mass. 281. The plaintiff had sufficient title to recover on the note. The note was indorsed in blank and passed by delivery. The plaintiff is in possession of it, and even if the F. Bank is regarded as the real party in interest, yet it is settled that an action may be maintained in the name of the holder of such a note who came into possession of it with the assent of the party in interest. Pemberton Bank v. Porter, 125 Mass. 335; Spofford v. Norton, 126 id. 533. But the evidence shows that the plaintiff has both the legal and beneficial interest as sole owner. No one else claims any interest in it. The transaction shows that it was intended by the F. Bank on receiving the amount paid by the plaintiff to leave the note in the hands of the latter as a valid existing security. Troy City Bank v. Grant, Hill & Denio, 119; Watervliet Bank v. White, 1 Denio, 608. Manufacturers' National Bank v. Thompson. Opinion by Colt, J.

MUNICIPAL CORPORATION - NOT LIABLE FOR NEGLIGENCE IN PERFORMANCE OF PUBLIC ABDUTY IN SENCE OF STATUTE-MANAGEMENT OF DRAWBRIDGE.

Plaintiff's vessel was detained by the neglect and refusal of the superintendent of a drawbridge across the Charles river, maintained by the city of Boston as a highway under a State statute, to open the draw when required by plaintiff to do so. The ground of refusal was that plaintiff's vessel was too wide for the draw. Held, that the city was not liable for the damage arising from such detention. The duty imposed upon the city by the statute is a public duty from the performance of which it receives no profit or advantIt is well settled in this Commonwealth that no private action can be maintained against a city for the neglect to perform such a duty, unless it is expressly authorized by statute. Hill v. Boston, 122 Mass. 344, and cases cited. There is no statute which makes the

age.

city liable to a private action for a failure to provide a draw of proper width, or for the carelessness of the superintendent of the bridge in delaying vessels which seek to pass through the draw. French v. City of Boston. Opinion by Morton, J.

LIABILITY FOR ANIMAL LICENSED TO EXHIBIT—

through the Legislature under the name of codification of existing law.

Yet the ALBANY LAW JOURNAL tells us (and this is the astonishing part of it, for we look to the JOURNAL for information in such matters): "The Codes propose no revolution in principle." "These Codes simply propose to write down the ascertained but unwritten law, to pick it out of thousands of reports and text-books, and to express it fixedly and clearly, so that it will not be liable to caprices of memory or construction, and so that the layman may himself ascertain its principles." But is all this true, Mr. Editor? What do the commissioners themselves say about it? In their report made in 1865 they say of the Code then presented (and the one now before the Legislature is the same with very few changes): Besides the changes, to which attention was particularly directed in the preceding report, relating to the rights of married women, the adoption of children, and the assimilation of the laws of real and personal property, there are others of less importance which ought not to be overlooked." Then follows the especial enumeration of 120 sections in which these particular changes in the law are to be found!

It would appear then that the ALBANY LAW JOURNAL is in error in supposing that the simple proposition is to write down the existing law; for the com

least, knowledge of the law, he will to-day be found the equal of any adorning the Supreme Bench at the present moment.

I do not wish to make comparisons, but I submit that if judicial experience be an essential requisite in a nominee for the bench then the appointments of Marshall, Story, Taney, Chase and Waite, and several of their associates, were improper, for not one of them ever graced the Woolsack until elevated to the bench of the Supreme Court. I do not wish to discuss a subject of this nature, but I cannot, without a protest, see attacks upon a man which, to all who know him, are destitute of foundation. "J. W. J."

CINCINNATI, O., March 25, 1881.

[We have never denied Mr. Mathews' brilliant abilities. We have objected to him because in our opinion he has not the judicial spirit and cast of mind, because he has not had the proper judicial Comexperience, and because he is from Ohio. mendations from some other State than Ohio would influence us more than the above. — ED. ALB. L. J.]

NEW YORK COURT OF APPEALS DECISIONS.

the law fundamentally respecting the domestic relations and the laws of property, and also in 120 other particulars. Would it not be well for us to find out of what these innumerable changes consist before the State adopts them by legislative authority?

No, Mr. Editor, let us have codification if it is best. But the State of New York of late years has been peculiarly unfortunate in the determination of the codifiers to force upon us without debate their peculiar views of the law as it should be. The present attempt, which must fail, if the proposed bill is understood, is not codification, but the enactment of fundamental changes in the law affecting the interests of every man, in his house and in his place of business, entering into his contracts, denying him his present legal remedies, and disposing of his property after his death in a manner of which he now knows nothing.

HERBERT B. TURNER.

STANLEY MATHEWS.

Editor of the Albany Law Journal:

In your issue of the 19th inst., referring to Stanley Mathews' nomination by President Garfield, to the Supreme Bench, you assert that the nominee is "unfit for a judicial place," and ask "why not put on a man with some judicial bent and experience?" Your JOURNAL is justly recognized as one of the leading legal publications of the country, and its treatment of a subject, whether it be of law or lawyers, has been

March 25, 1881:

Judgment affirmed with costs. · Agate v. Morrison; Puleston v. Wallace; Nickerson v. Ruger; Bigler v. Pinckney; Hennequin v. Clews; Sniffen v. Noechling; McGraw v. Tatham; Hart v. The Village of Port Jervis. Judgment reversed and new trial granted, costs to abide avent-Wheeler v. Young; Steele v. Benham. Order affirmed with costs-Tiedmann v. Ackerman; Ingersoll v. Mangam; In re Cruger; Blossom v. Estes; People ex rel. Sears v. Board of Assessors of Brooklyn. Order of General Term reversed and judgment of Special Term affirmed with costsWyeth v. Braniff. Appeal dismissed with costsWilson v. Simpson; Wertheim v. Page. Order of Special and General Terms affirmed as respects the part of the assessment for work and material (except sewer pipe), for which a price was fixed in notice to bidders; and reversed as to other items, and a rehearing ordered to ascertain the amount of the deduction to be made from the assessment for the items for which a price was thus fixed, without costs to either party on the appeal to this court-In re Merriam, to vacate assessment; In re Vandenheuvel; In re Morrison; In re Livingston; In re Robbins; In re Gilbert; In re Malone.

Adjourned till April 18, 1881.

NOTES.

Kentucky Law Reporter for March contains a leading article on Mandatory Statutes. Mr. Albert Mathews has published a pamphlet entitled Thoughts on Codification of the Common Law, the most striking thought in which is, that under the Code of Procedure "technicality is 'king.'" Mr. Mathews, however, presents his objections to general codification with learning and calmness, if with the vagueness and timid vaticination which must always attend that side of the question. - -In the current number of the American Law Register Mr. Chauncey continues his article on Contempt of Court, and the case of Sims v. Anglo-American Telegraph Co., on forged transfer of stock, is reported in full, with note by Edmund H. Bennett; also Heyman v. Covell, on replevin in State court of property seized on Federal process, with note by M. D. Ewell; and McCleary v. Ellis, on restriction upon alienation, with note by Henry Wade Rogers.

No

So we found Mr. Ivins, on the same subject. Both profound and learned gentlemen, but inconclusive. Such thinkers are too much wedded to old ways, and too skeptical of reform. They call our State an old State. It certainly is not old enough to have got a settled and certain jurisprudence. They praise the "elasticity" of the common law. body ever doubted that quality of it. It has been stretched to conform to every caprice of the judicial mind. There is hardly an important question | of common law that has not been differently adjudged in these States and in England. Take any volume of the current American Reports, and you can find several important questions differently held at about the same time in these States, and without any reason for differing. Even in questions involving life and death, this is true. For example, the rule of the burden of proof of insanity pleaded as a defense in murder; the States are about equally divided, and New York does not know exactly what she thinks. Any objection to writing down a rule on that subject? Or is "elasticity" better? The same is true of vital civil questions without number. For ourselves, we are nothing if not practical. We do not enjoy or understand metaphysics. And no one can convince us that it is not much more

or

practicable to regulate the legal affairs of society by written rules, than by rules un formulated, traditional, changeable, uncertain, "elastic." Now this state of things will not always be endured. These laws are sure to be written sooner later. If the conservative gentlemen of the Bar Association, who have thought of the proposed Code a whole week-the same length of time it took the Almighty to make a universe- - can improve it, let them offer amendments, now or after its passage, and if the amendments are wise, let them be adopted. But the Legislature will find that if they yield to postponement for a year, on the plea of a desire to examine and criticise, the same plea will be made every year, so long as old gentlemen dislike to read new books, and so long as young gentlemen are vague, profound, and out of their own depth and everyone else's depth. If it takes the Bar Association sixteen years to find out that a Code has been brewing, how long will it take them to amend it to suit themselves? Give us this Code, and let the aroused metaphysicians of the Bar Association have a good time in construing it at their leisure, and in amending it as it demands. glad to see that the assembly have passed it by a vote of 83 to 2. They had previously passed the Code of Criminal Procedure by 77 to 20. So much for the interposition of the Bar Association. haps the Bar Association and The Nation will now open their eyes to the fact that there is a public demand for a Code, and that the community are not quite satisfied with the present state of things.

We are

Per

Handwriting experts have suffered some bad black eyes of late. The indictment against Philp and the Truth people for forging and uttering the Morey letter is to be quashed- the prosecution being sat

isfied that they were not the authors of the letter, but were imposed upon by the real forger, who is said to be known. Four "experts" testified that Philp wrote the letter. Three of these same men are witnesses in the Whittaker case, and they all say the colored cadet wrote the celebrated letter of warning to himself. In the Whittaker case two of the experts discovered "underwriting," but they materially disagreed as to what it read. The defense in this case have now introduced a Boston lawyer who swears to several very bad blunders made by Mr. Southworth, one of these discoverers, in cases with which the witness had a professional connection. And that while Mr. Southworth is a man of veracity, yet he has become a monomaniac on the subject of handwriting, who "can see things about it that no one else can see, and can tell things about it that no one else can tell." This is just our opinion of most of these learned gentlemen - much expertness hath made them mad.

The decision in Congress Spring Co. v. Knowlton, reported in full in another column is of great intrinsic interest, and of special interest in this State because it is directly contrary to that of the commission of appeals in the same case, 57 N. Y. 518, and sustains the dissenting opinion of Dwight, C.

NOTES OF CASES.

'N Baccigalupo v. Commonwealth, 33 Gratt. 817, it

IN that in defense to a criminal prosecution, upon the ground of insanity, it is not suffi

Icient that the evidence should be of such a character only as to produce a doubt on the minds of the jury, but the onus probandi is always on the accused to prove such insanity to their satisfaction." The court said: "In Boswell's case, 20 Gratt. 860, one of the grounds of error assigned was that the court in that case gave to the jury the following instruction, to wit: 'That every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary is proved to the satisfaction of the jury.' In commenting upon this instruction, the president of this court said: 'I think this instruction is unexceptionable. * * * * * * He (the counsel for the accused) seems to think that all the proof required by law to repel the said presumption was only so much as would raise a rational doubt of his sanity at the time of committing the act charged against him.' Now I think this is not law; and that the law is correctly expounded in the instruction given by the court. There are certainly several American cases which seem to sustain the view of the prisoner's counsel. But I think the decided weight of authority, English and American, is the other way. In 1 Whart. Am. Cr. Law, § 711, the writer says: 'At common law the preponderance of authority is that if the defense be insanity, it must be substantially proved as an independent fact.' And for this proposition a number of cases are cited. And after reference to many of them, he concludes as follows: