CURRENT TOPICS. The verdict of a jury in a case in Massachusetts a few days ago goes a good way towards showing that there is at least a grain of truth in the old adage to let well enough alone, and that even a lawyer should sometimes give this advice to a client. The action in question was brought against a railroad company for personal injuries received by a commercial traveller in that somewhat common occurrence, a railroad accident. On the first trial the jury gave the maimed drummer $7,000; the company appealed, but had the verdict set aside only to be ordered by a second jury to pay over to the plaintiff double that amount. And now, emphasizing the opinion of two juries, a third one proceeds to treble the damages given by the first. The case in respect to the damages assessed by the different juries resembles Shaw v. Boston, etc., R. Co., 8 Gray, 45. There the action was brought by a woman, who, by being struck by the defendant's locomotive at a crossing, lost one arm and the use of the other, and was otherwise so much bruised and injured as greatly to impair her health and memory. At three different trials she obtained verdicts of $15,000, $18,000, and $22,000 respectively, the two first of which were set aside for errors in the instructions of the presiding judge. The Supreme Judicial Court refused to set aside the third verdict on the ground that the damages were excessive. Within the past twelve months a great case was decided by the Supreme Court of this State-a case in which large interests and enormous sums of money were involved. It concerned on the one hand a corporation with its small clique of stockholders; on the other a great city with its thousands of tax-payers. Pending the opinion of the final tribunal, more than one newspaper sought to forestall the action of the court by attack and threats, but when in the end the decision was rendered, it was found that nothing had prevailed with the court except the rules of law which they were sworn to follow, and the result was received by the bar as unassailable. Suppose it had been thought possible by the counsel in the Gas Case that the opinions of citizens on the merits of the case would influence the decision, what a petition might not they have presented to the court from reluctant tax-payers asking that their view of the case should be followed. That such a course did not present itself to the lawyers in that case is not to be wondered at. On the other hand it is perhaps not surprising that a similar method of influencing the action of the Supreme Court should be first conceived and put into execution by an outcast from the profession. We understand that Mr. Bowman of this city, a former member of the bar but recently disbarred for professional misconduct, intends shortly to apply for re-admission to its ranks. The Supreme Court is then to be called upon to decide certain facts relative to his conduct while an attorney -facts which if decided in his favor should open the door to him, but which if decided against him prove him entirely unfit to be a member of an honorable profession. In order to influence the decision of the court on these facts, he is said to be at present engaged in obtaining signatures to a petition of those who believe that the circumstances of his case did not call for his conviction and sentence. This is shameful. Such an action recalls again the practices of this man which ended in his disbarment, and which only our sense of propriety, and our respect for the court which is to be called upon to consider them, prevent us from again reciting. A district attorney may very properly give the world some information as to what he knows about crime; and this Mr. Benjamin K. Phelps of New York has been doing in a lecture which contains the results of many years of experience in dealing with different kinds and grades of criminals. There are many popular errors concerning crime and criminals; one is, that an increased number of arrests or convictions indicates necessarily an increase in crime. It simply shows that more criminals are caught, which is a very different thing. Another prevalent notion is that he who will commit one crime will commit any crime. Many good people are the dupes of the least pretense to penitence or religion on the part of a prisoner, but a popular delusion very deep-seated in the public mind is that the criminal shows guilt in his face, as the saying is, and many think that it is possible to determine by means of a man's physiognomy whether or not he is guilty of the offenses with which he is charged. This belief." says Mr. Phelps, "leads to curious results, in the tendency it has to make people reason backward in the effort to find in the face of the accused man evidence of the crime. The behavior of the accused is equally delusive as a test of guilt. Hesitation, embarassment, incoherence and self-contradiction are by no means unerring indications of crime. Indeed, they are almost sure signs that the person manifesting them is not a hardened criminal. There are no more thoroughly self-possesed people than professional criminals in carrying out their designs." This recalls Dickens' well-known saying that dishonesty will stare honesty out of countenance all the world over. In discussing reform in the treatment of criminals Mr. Phelps urged an alteration in the method of mingling youthful offenders with hardened ones. Another thing that ought to be done in this connection is to keep separate those accused and those convicted of crime. There should be a house of detention for those accused of offenses, which the accused should never enter after his trial. He should go free if acquitted or to the prison if convicted, but the convict and the accused should never be together. Those who most deserve our pity and sympathy are not the criminals themselves, but the unfortunate and innocent persons who are disgraced and broken-hearted by their fall-the parents, the wife, the children of the criminal. In one class of cases especially the punishment seems to fall entirely upon the innocent. Take the too frequent instance of a brute inflamed by drink who abuses and beats his wife. He is arrested, tried and for punishment is sent to jail. During his confinement he is well housed, decently clothed, sufficiently fed and gets thoroughly sobered; while the wife and children are left without even the precarious support of his uncertain labor; having nothing else to live upon are too often left to the beggary or starvation of the streets. For such offenses as this, said the lecturer, even the most sentimental tenderness could not deny that the most efficacious and appropriate treatment would be to subject the wife-beater to an interview with the whipping-post, from which he would depart a wiser if not a better man. NOTES OF CASES. In the United States Circuit Court at this city last week in the case of American Union Telegraph Co. v. Bell Telephone Co., the power of a Federal Circuit Court under the act of 1875 to grant a writ of mandamus as an original proceeding was denied: · ́All the proceedings prior to that act," said TREAT, J., "it is conceded denied such jurisdiction in the United States Circuit Courts; but it is contended that the act of 1875 not only enlarged the jurisdiction as to parties, but also as to the subject matter and forms or modes of proceeding. The language invoked is, that said courts 'shall have original cognizance of all suits of a civil nature, at common law or in equity.' There still remain on the statute book, secs. 629 and 716, which are substantially a reproduction of secs. 11 and 14 of the Judiciary act of 1789 unless their restrictions are repealed by the act of 1875. The latter enlarged the jurisdictisn as to the parties, but used the same language as to the nature of the suits which had prevailed since 1789, viz., 'all suits of a civil nature at common law or equity," under which the United States Supreme Court has uniformly held that, taken in connection with sec. 14 of the original act (now sec. 716 of the Rev. Stats.) the power claimed did not exist. It is held, therefore, that the United States Circuit Courts have not, under the statute of 1875, any other jurisdiction in mandamus proceedings than theretofore existed. The same reasons that caused Congress originally to withhold the authority exist more forcibly to-day, growing out of the large multiplication of offices and corporations." NOTES. -According to the evidence of a French avocat given in an English court recently, the French Court of Appeal is not bound by its prior decisions.—Chief Justice Campbell of the Supreme Court of Michigan tells the law class of the University that this generation has met with an infliction unknown to former ones. The bugbear is the experts who "having first qualified themselves for impartial witnesses by accepting employment to aid counsel in working up their case, and acting as their promptors, are too often allowed to turn the witness box into an exhibition stage and display their acquirements very liberally." -The United States judgeship for the district of Kentucky has been filled by the appointment of John W. Barr of Louisville to that position. Judge Barr is a native of Kentucky, having been born in Fayette county in that State, and is in his fifty first year. He commenced practice at Versailles, being early appointed county attorney. He continued to practice in Versailles until1853, when he removed to Louisville and entered into partnership with Mr. J. B. Kinkead. This partnership continued for several years, when Judge Barr opened an office by himself. In 1864 he entered into partnership with Mr. J. K. Goodloe. This partnership was continued under the title of Barr & Goodloe until 1870, when Mr. Alex. P. Humphrey was admitted, and the late firm of Barr, Goodloe & Humphrey, of that city, formed. Hon. William Watson, who was admitted an advocate at the Scotch Bar in 1851, and who has held the office of Lord Advocate since Oct. 1876 has been appointed a Lord of Appeal, in succession to Lord Gordon, deceased. -Dr. Edward V. H. Kenealy, who in 1873 gained great notoriety as the leading counsel of the claimant of the Tichborne estates, died in London on the 16th inst. aged 61. Dr. Kenealy was born in Cork, Ireland, in 1819. He was educated at Trinity College, Dublin, and early won a distinguished reputation for his knowledge of languages. He published translations from many of these which were received with approbation. He was a contributor to Dr. Maguire's "Homeric Ballads' to the Dublin University Magazine and Fraser's Magazine. In 1845 he published "Brallaghan, or the Delphosophists," and in 1850, "Goethe, a New Pantomime." His subsequent career at the bar was unfortunate. His zeal in behalf of the Claimant lead him to attack the court to such an extent that at the close of the trial he was disbarred. In 1875 he was elected to Parliament from Stoke-uponTrent, his supporters being mainly sympathisers with the prisoner in whose defense he had suffered so much. He had previously founded The Englishman, a weekly newspaper largely devoted to denouncing the prosecution of the Claimant. This publication achieved a large circulation and might have been made a leading organ of public opinion. In parliament Dr. Kenealy did not add to his reputation. Having attacked on one occasion a member, the latter revived against him an old charge of cruelty to a child. As Dr. Kenealy was unable to disprove the accusation, he fell considerably in the public estimation. At the recent election he called on the people to pay his campaign expenses, but his appeal was unheeded, and he only polled a few votes as an independent candidate. -Some lawyers in Brooklyn, New York, have been reading the "Leading Cases Done into English," and have set to work to render their complaints and pleas and affidavits into poetry. Miss Arabella Parthenia Featherstone sues J. Uriah Allibone for breach of promise of marriage and lays the damages suffered at $10,000. The complaint begins thus: "The plaintiff, in seeking redress for her woes, and, after setting forth the circumstances on which the action is based, closes as follows-asking for damages: "Ten thousand is the sum, Though it would not requite me, "Twill teach Uriah, any way, How much it cost to slight me. The affidavit to the complaint is as follows. "Arabella Parthenia Featherstone, The plaintiff, being duly sworn, The same are true, of my knowledge born, I did believe him-that I swear.'" The answer denies the allegations of the complaint, and the defendant declares that -"He no promise of marriage has broken, As never such subject was dreamed of or spoken." He also says that the plaintiff represented herself to be engaged to marry one Vedder. His affidavit is unique: "King's County-Allibone, J. U.; First being sworn in manner due, The Central Law Journal. of jewelry to the wife of the defendant, ST. LOUIS, APRIL 30, 1880. IMPLIED AUTHORITY OF A WIFE TO BIND HER HUSBAND. The case of Debenham v. Mellor, in which the Court of Appeal [English] gave judgment on the 24th ult., has attracted so much attention that it might be thought questions of some degree of novelty were raised. Such, however, can hardly be said to have been the case. The present action was brought by the plaintiffs, a firm of linendrapers, against the manager of an hotel, at Brighton, for goods supplied to his wife. It was admitted that the goods were such as would be reasonably necessary or proper for her in her station of life. The defendant pleaded, however, that his wife was forbidden to exceed her allowance, and had no authority to pledge his credit. This was not her first dealing upon credit with the plaintiffs. At the trial Mr. Justice Bowen directed the jury that where a husband and wife are living amicably together, as in this case, the goods supplied being reasonable goods considering her position, prima facie she would have authority to pledge her husband's credit; but if in fact it turns out that the husband has withdrawn such authority, then the prima facie presumption is rebutted; and further that there was no necessity that the tradesman should know that the wife had been forbidden to pledge her husband's credit, if in fact she had been forbidden to pledge it. The jury found that at the time the goods were ordered the defendant had withdrawn from his wife authority to bind his credit, and forbidden her to do so. Judgment was accordingly entered for the defendant. amounting in value to £83. It appeared that the defendant was a certificated special pleader, and lived in a ready furnished house, of which the annual rent was £200; that he kept no man servant; that his wife's fortune upon her marriage was less than £4,000; that she had at the time of her marriage jewelry suitable to her condition; and that she had never worn, in her husband's presence, any articles furnished her by the plaintiff. When the plaintiff went to the defendant's house to ask for payment he always inquired for the wife and not for the defendant. The defendant's counsel contended upon those facts that the plaintiff ought to be non-suited, because there was no evidence to show that the husband had any knowledge that the goods had been delivered to his wife, and consequently no evidence of assent to the purchase. Chief Justice Abbott, however, thought there was evidence for the jury, and directed that a husband was not liable for goods supplied to his wife unless he gave her an express or implied authority to purchase. In considering the question of authority the estate and degree of the parties was a fit subject for consideration, and so also was the nature of the articles. jury found for the plaintiff. A rule nisi was obtained for a nonsuit on the ground that there was no evidence to be left to the jury of the husband's assent to the contract, or for a new trial. The rule was made absolute for a nonsuit. The rule of law was thus The stated by Mr. Justice Bayley: "If a man without any justifiable cause turns away his wife, he is bound by any contract she makes for necessaries suitable to her degree and estate. If the husband and wife live together, and the husband will not supply her with necessaries or the means of obtaining them, then, although she has her remedy in the Ecclesiastical court, yet she is still at liberty to pledge the credit of her husband for what is strictly necessary for her own support. But whenever the husband and wife are living together, and he provides her with necessaries, the husband is not bound by contracts of the wife, except when there is reasonable evidence to show that the wife made the contract with his assent." The rule was then stated by Mr. Justice Holroyd. The husband is liable for necessaries provided for his wife where he neglects to provide these necessaries himself. If, however, there is no necessity for the articles provided, the tradesman will not be entitled to recover their value, unless he can show an express or implied assent of the husband to the contract made by the wife. Where a tradesman takes no pains to ascertain whether the necessity exists or not, he supplies the articles at his peril; and if it turns out that the necessity does not exist, the husband is not responsible for what may be furnished to his wife without his knowl edge. Where a tradesman provides articles for a person whom he knows to be a married woman, it is his duty, if he wishes to make the husband responsible, to inquire if she has her husband's authority or not, for when he chooses to trust her, in the expectation that she will pay, he must take the consequences if she does not. The burden of the proof of the assent of the husband is thus cast on the party who supplied the goods, and who acts upon the supposed authority. Mr. Justice Littledale was also of opinion that the husband is not liable in respect of a contract made by his wife without his assent to it, and that a party seeking to charge him in respect of such a contract is bound either to prove an express assent on his part, or circumstances from which such assent is to be implied. Seaton v. Benedict,3 was a subsequent case in which the Court of Common Pleas held that a husband who supplies his wife with necessaries in her degree is not liable for debts contracted by her without having previous authority or subsequent sanction. "A husband," said Chief Justice Best, "is only liable for debts contracted by his wife on the assumption that she acts as his agent. If he omits to furnish her with necessaries he makes her impliedly his agent to purchase them. If he supplies her properly, she is not his agent for the purchase of an article, unless he sees her wear it without disapprobation." The Court of Exchequer in one case, Johnston v. Sumner, stated that if a man and his wife live together, it matters not what private arrangement they may make; the wife 35 Bing. 28. 43 H. & N. 261. has all usual authorities of a wife—a proposition which conflicts with other decisions. A similar question was again argued in Jolly v. Rees. In 1851 the defendant forbade his wife to incur debts for clothing for herself and her two daughters. He promised to allow her £50 a year for that purpose, in addition to £65 a year which was settled upon her to her separate use. In 1860 and 1861 the wife contracted a debt with the plaintiffs for clothing. The plaintiffs had no notice of the revocation of the wife's authority. In an action against the husband to recover the price of those goods the jury found that the articles supplied were necessaries suitable to the degree and estate of the parties; that the wife's authority to pledge her husband's credit was revoked in 1851; that if the £115 per annum had been regularly paid to the wife, and applied by her to the clothing of herself and daughters, it would have been sufficient; that beyond the £65 it was not regularly paid, and that so much of it as was paid was insufficient. The arguments in the case were heard by Chief Justice Erle, Mr. Justice Williams, Mr. Justice Willes and Mr. Justice Byles, who dissented from the opinion of the other three learned judges. The majority held that the presumption which exists during cohabitation, and from that circumstance that the husband assents to contracts made by his wife for necessaries suitable to his degree and credit, may be rehutted by showing that he has forbidden his wife to pledge his credit, although no notice of that fact has been communicated to the tradesman. "The question," said Chief Justice Erle, "is whether the wife has authority to make a contract binding on the husband for necessaries suitable to his degree, against his will and contrary to his order, although without notice of such order to the tradesman. Our answer is in the negative. We consider that the wife can not make a contract binding on her husband unless he give her authority as his agent so to do. We lay down this as the general rule, premising that the facts do not raise the question what might have been the rights of the wife, either if she were living separate without any default on her part towards her husband, or if she had been left destitute by 5 Supra. him. Our decision does not militate against the rule that the husband, as well as every principal, is concluded from denying that the agent had such authority as he was held out by his principal to have. Taking the law to be that the power of the wife to charge her husband is in the capacity of agent, it is a solecism in reasoning to say that she derives her authority from his will, and at the same time to say that the relation of wife creates the authority against his will by a presumptio juris et de jure from marriage; and if it be expedient that the wife should have greater rights, it is certainly inexpediant that she should have to exercise them by a process tending to disunion at home, and pecuniary distress from without. The husband sustains the liability for all debts; he should therefore have the power to regulate the expenditure for which he is to be responsible by his own discretion, and according to his own means." The ground upon which Mr. Justice Byles dissented from this judgment was that no private arrangement between the husband and wife, uncommunicated to the tradesman, could affect his right to rely on the apparent authority of the wife, or destroy the presumption of the husband's assent to the wife's contracts for necessaries arising from the fact of cohabitation. In the Court of Appeal, counsel for the appellants in Debenham v. Mellor, argued that, according to the principle to be deduced from the authorities prior to Jolly v. Rees, the plaintiffs were entitled to a reasonable notice from the defendant of his withdrawal of the authority given to his wife to pledge his credit. The learned judges who formed the court, namely, Lord Justices Bramwell, Baggallay and Thesiger, were unanimous in dismissing the appeal. The former learned judge having remarked that the question was whether the defendant was to pay for goods which had been supplied by the plaintiffs to his wife without his authority and against his will-the goods being necessary in the sense that they were such as the wife would require -intimated that the courts could not take judicial cognisance of any practice o wives to pledge their husbands' credit for such articles. Lord Justice Thesiger agreed with the decision of the majority in Jolly v. Rees, and thought that the authorities supported it, being to the effect that the wife's authority to pledge her husband's credit depended upon the ordinary principles of agency, and required some evidence of the husband's authority, either express or implied from his acts and conduct. As to the presumption of authority arising from the wife living with her husband, his lordship thought that the notion was founded upon an erroneous view of what was meant by a presumption with reference to the wife's authority, for the presumption only came to this, that the tradesman made out a prima facie case against the husband by showing the order given by the wife while they were cohabiting together; but it was a presumption rebuttted by proof that the orders were without his authority. We believe the case will be carried to the House of Lords. If so we shall be curious to see how far their lordships acquiesce in the remarks of Lord Cranworth in Pole v. Leask. 6 APPELLATE COURTS AND SOME NEEDED REFORMS.-I. The discussion of the subject indicated by our title is suggested by the present condition of the dockets of the courts of last resort all over this country. One of the leading features of our American State governments has always been cheapness. This, of course, has grown out of the scarcity of money and the practicability of obtaining the services of good men for the offices of trust at comparatively low rates. But as commercial, manufacturing, professional and other employments have become more lucrative, and through the National tendency and the depreciation of the currency. all those employments which are compensated by fees are generally well paid, and in most States even the judges of the courts are fairly paid. But in many of the States the salaries are so greatly disproportioned to the compensation of the merely ministerial officers of the courts, that the clerks and sheriffs generally receive about double the compensation of the judges. When we take into consideration that the whole community is interested in whatever relates to the right administration of justice, it is marvelous that while we vote millions for railroads and public improvements and for whatever promotes trade and commerce, our appellate courts are denied the necessary appliances for the proper discharge of their functions, simply on account of the niggardly policy of our legislatures which send committees to descend into the bowels of the earth to find some wrong or oppressive conduct on the 69 Jur. N. S. 829. |