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pear, but it is to be presumed that they corresponded in liberality to those dealt out to others. The court very properly refused to confirm this report, saying that, in the distribution of estates intrusted by law to their administration, the courts act for absent creditors and unrepresented parties who repose with confidence in their care, and no right exists in them to sequester the money equitably belonging to others on lavish and injudicious allowances to trustees and attorneys. The amount of the estate mentioned was upwards of $1,000,000, but the court says that the simple employment of officers of the law to aid an assignee having that amount to administer, does not necessarily, or by any just deduction from the magnitude of the sum, "entitle them to any increased compensation for their services beyond what might be allowed where the fund was small in amount." While compensation for legal services performed in reference to property must be, to

some extent, measured by the amount involved, the action and reasoning of Judge Robinson are right. One of the charges made by the public against the lawyers is, that they plunder estates falling into

their hands for settlement. The courts should see to it and they can do so-that such charges are not justified. The exorbitant awards to counsel, referees, receivers, assignees and others, permitted by courts, especially in the city of New York, has tended to make the profession unpopular, and we are glad to see that the Court of Common Pleas means to pass such awards no longer.

An article in the current number of the North American Review, by Mr. Thomas A. Scott, President of the Pennsylvania Railroad Company, contains some valuable suggestions as to the legislation required to prevent a recurrence of labor strikes and mobs, of the character recently prevailing along the principal lines of railway in this country. He suggests that the Federal government is alone able to deal with such disturbances, and cites in proof of this the fact that the strikers and rioters took care to let alone those railroads which were in the hands of receivers appointed by United States courts. He might have added the other circumstance that, so far as they were able to do so, the rioters avoided interfering with the passage of mail trains. The organization of our government unintentionally favors the success of a mob. In many States the mayor of a city must first exhaust his power before he can call on the county authorities, then the sheriff must essay his strength, and if he fails he may call on the State. Then the State must make an unsuccessful trial, so as to put it in a position to apply to the Federal government for aid. In other words, the rioters must be victorious over the public authorities upon three occasions, before a power which must be submitted to, interferes. The fundamental

principle upon which our government is formed, certainly does appear to leave the danger of mob violence in localities unprovided for, yet we do not know but that our authorities are as successful in checking mobs as those of countries where the central government undertakes that business, as in France, for instance. Perhaps the railway interests of the country should be under the control of the Federal government, but not merely because the strikers destroyed railway property.

The judges of the Federal courts in Indiana, who committed persons for interfering with trains upon railroads in the hands of receivers, have concluded to remit a portion of the penalties imposed; the object in imposing such penalties, namely, to maintain the authority of the courts and prevent the repetition of the offense, having been substantially accomplished. We regret that this action has been taken. A brief imprisonment is but little punishment to those who engage in the work of wrecking railroads, and while most of those who committed such acts had, probably, no actual knowledge that they were guilty of a contempt of court, they knew well enough that they were violating the law, and they had little care what they did so long as it did not injuriously affect themselves. If they merited the attention of the Federal courts at all, they deserved and should suffer the punishment inflicted upon them.

The daily newspapers, from time to time, call attention to the existence of a system of persecution that defendants in criminal cases pending before the Federal courts in the Northern District of New York are subjected to by reason of the great territorial extent of that district. Persons accused of some trifling violation of the revenue or other Federal statutes, are dragged long distances for commitment and trial, and if out on bail are subjected to very great expense in attending and procuring the attendance of witnesses at places remote from their homes and business, where the court may be held. The various court officers, such as marshals and deputies, and the hangers-on, are interested in making the annoyances to which a defendant is put from this circumstance, as great as possible, these individuals being paid mileage fees for traveling or pretending to travel about the State, in the performance of their duties. Now and then a judge, when his attention is called to a case of more than ordinary hardship, censures the acts of the officers, but this does but little good. The trouble is in the territorial extent of the district, and the numerous places where the courts hold their sessions. The district should be made into two, or the business should be so divided as to do away with the necessity of a trial or appearance by

a defendant at sessions of the courts appointed to be held at places remote from his residence.

Our courts have almost every kind of subject brought before them for adjudication, but they are as yet relieved from the necessity of determining whether the dress of a clergyman, while officiating in his church, is proper, or whether certain acts are legitimate, or whether certain church decorations are lawful. In the case of Risdale v. Clifton, rccently decided, the argument of which occupied the attention of the Judicial Committee of the Privy Council from January 23 to February 1 of this year, inclusive, and the report of which occupies twentyfour double column pages of the Law Times Reports, the questions discussed were, whether it is lawful for the officiating minister to wear, during the service of the holy communion, the vestments known as an alb and a chasuble; whether it is lawful for the officiating minister, while saying the prayer of consecration in the communion service, to stand on the west side of the communion table, with his face to the east and his back to the people; whether it is lawful for the minister to use, in the administration of the communion, bread made in the form of circular wafers; and other questions of like nature. The result of the discussions is not of the slightest importance to the profession on this side of the water, but the subject forms no inconsiderable part of the body of the English law, and is one upon which no small amount of talent and learning are employed.

NOTES OF CASES.

In Lynch v. Fallon, recently decided by the Supreme Court of Rhode Island, the action was for services as a broker, in negotiating an exchange of real estate. The plaintiff, who was employed by a corporation to sell its land, exchanged that land for the land of defendant, who agreed to compensate him for making the exchange, and after it was made promised to pay the sum for which the action was brought. It did not appear that the corporation for which plaintiff was also acting in the matter, and against which he made a claim for services therein, knew of his agreement with defendant. The court held defendant not to be liable, saying that the general rule is, that though a person may be entitled to pay from both parties to a sale or exchange, where he acts merely as a middleman to bring them together (Rupp v. Sampson, 16 Gray, 398; Siegel v. Gould, 7 Lans. 177), he cannot be allowed to serve as an agent or broker for both, because in such case there is a necessary conflict between his interest and duty, and he is exposed to a temptation to sacrifice the interests of both his principals to secure his double commissions. See, as supporting this view, Farnsworth v. Hemmer, 1 Allen, 494; Walker v. Osgood, 98 Mass. 348; Pugsley v. Murray,

4 E. D. Smith, 245; Everhart v. Searle, 71 Penn. St. 256; Raisin v. Clark, 41 Md. 158; 20 Am. Rep. 66; Schwartze v. Yearly, 31 Md. 270; Morrison v. Thompson, L. R., 9 Q. B. 480; Rice v. Wood, 113 Mass. 133; 18 Am. Rep. 459. In some cases it is intimated that where the employment by both is known to both he can recover from both. Pugsley v. Murray, supra, but even this has been denied. In Raisin v. Clark, supra, the court says: "It is perhaps possible for the same agent to serve both parties to such a transaction honestly and faithfully, but it is very difficult to do so, and the temptation to do otherwise is so strong that the law has wisely interposed a positive prohibition to any such attempt." And see to the same effect, Morrison v. Thompson, supra.

In Hopkins et al. v. Great Northern Railway Co., 36 L. T. Rep. (N. S.) 898, recently decided in the English Court of Appeal, it is held that the owner of an ancient ferry is not entitled to maintain an action for disturbance of the ferry against persons who provide a new mode of transit to meet the requirements of a new traffic. In this case, a railway company, under the powers of the act under which it was incorporated, constructed a railway bridge and a footway, which was used by the public as a means of access to the station and other places across a river. The plaintiffs owned an ancient ferry about half a mile lower down the river. In consequence of the building of the bridge, the traffic by the plaintiff's ferry ceased, and the ferry was given up. The plaintiff brought an action against the company to recover compensation awarded by an umpire under the statute, for the disturbance of the ferry. The court held, reversing the decision of the Queen's Bench Division, that the company was not liable on the ground that (1) no action would lie against it for disturbance of the ferry if the bridge and footway had not been made under the powers of the Company's Act, and (2) that the plaintiffs were not entitled to compensation under the statute, as the plaintiff's loss was occasioned by the working of the railway, and not by the construction of the railway works. The court, in its decision, overrules the case of Regina v. Cambrian Railway Co., 25 L. T. R. (N. S.) 84; L. R., 6 Q. B. 422. The ferry proprietor is put by it upon the same ground that proprietors of turnpike roads, of canals, and others who have suffered from the diversion of traffic by means of railways. In this country it has been held that a legislature having granted a ferry franchise may authorize the erection of bridges that will take the trade and travel away from the ferry and destroy the franchise, without any compensation to the owners of the ferry for such damage. See Piatt v. Covington Bridge Co., 8 Bush, 31; Charles River Bridge Co. v. Warren Bridge Co., 11 Pet. 420.

SOME RECENT DECISIONS — 20тH AMERICAN.

THIS

HIS volume gives us selections from 26 volumes of reports of the States of Alabama, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New York, New Jersey, West Virginia and Wisconsin. In a cursory examination

we have noted a few of the more curious and striking cases reported.

The chief interest of the Wisconsin cases is in

several cases involving the constitution and practice of the courts. In Matter of Goodell, 39 Wis. 232, the right of women to be admitted as attorneys was thoroughly considered and denied. Some of Chief Justice Ryan's opinion is so excellent that we must find room for it. He says:

"So we find no statutory authority for the admission of females to the bar of any court of this State. And with all the respect and sympathy for this lady which all men owe to all good women, we cannot regret that we do not. We cannot but think the common law wise in excluding women from the profession of the law. The profession enters largely into the well-being of society; and to be honorably filled and safely to society, exacts the devotion of life. The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race, and for the custody of the homes of the world and their maintenance in love and honor. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of the law, are departures from the order of nature, and, when voluntary, treason against it. The cruel chances of life sometimes battle both sexes, and may leave women free from the peculiar duties of their sex. These may need employment, and should be welcome to any not derogatory to the sex and its proprieties, or inconsistent with the good order of society. But it is public policy to provide for the sex, not for its superfluous members; and not to tempt women from the proper duties of their sex by opening to them duties peculiar to ours. There are employments in life not unfit for female character. The profession of the law is surely not one of these. The peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife. Nature has tempered women as little for the judicial conflicts of the courtroom, as for the physical conflicts of the battlefield. Womanhood is moulded for gentler and better things. And it is not the saints of the world who chiefly give employment to our profession. It has essentially and habitually to do with all that is selfish and malicious, knavish and criminal, coarse and brutal, repulsive and obscene in human life. It would be revolting to all female sense of the innocence and sanctity of their sex. Shocking to man's reverence for womanhood and faith in woman, on which hinge all the better affections and humanities of life, that woman should be permitted to mix professionally in all the nastiness of the world, which finds its way into courts of justice; all the unclean issues, all the collateral questions of sodomy, incest, rape, seduction, fornication, adultery, pregnancy, bastardy, legitimacy, prostitution, lascivious cohabitation, abortion, infanticide, obscene publi

cations, libel and slander of sex, impotence, divorce; all the nameless catalogue of indecencies, la chronique scandaleuse of all the vices and all the infirmities of all society, with which the profession has to deal, and which go toward filling judicial reports which must be read for accurate knowledge of the law. This is bad enough for men. We hold in too high reverence the sex, without which, as is trully and beautifully written, le commencement de la vie est sans secours, le milieu sans plaisir, et le fin sans consolation, voluntarily to commit it to such studies and such occupations. Non tali auxilio nec defensoribus istis should juridical contest be upheld. Reverence for all womanhood would suffer in the public spectacle of woman so instructed and so engaged. This motion gives appropriate evidence of this truth. No modest woman could read without pain and self-abasement, no woman could so overcome the instincts of her sex as publicly to discuss the case which we had occasion to cite supra, King v. Wiseman. And when counsel was arguing for this lady, that the word 'person,' in § 32, ch. 119, necessarily includes females, her presence made it impossible to suggest to him as reductio ad absurdum of his position, that the same construction of the same word in § 1, ch. 37, would subject woman to prosecution for the paternity of a bastard, and in §§ 39, 40, ch. 164, to prosecution for rape. Discussions are habitually necessary in courts of justice, which are unfit for female ears. The habitual presence of woman at these would tend to relax the public sense of decency and propriety. If, as counsel threatened, these things are to come, we will take no voluntary part in bringing them about."

A more admirable piece of judicial wisdom, more replete with humane and chivalrous feeling, or couched in a more beautiful style, it will be difficult to find in the law books. We commend it to the woman who wants to be a lawyer, and at the same time a consideration of the anonymous case on the subject of slander, 60 N. Y. 262, which was embraced in 19th American, but to which we did not deem it best, when reviewing that volume, to draw particular attention.

In Mutter of Mosness, 39 Wis. 509, it was held that a non-resident cannot be admitted to the bar, although he is a counselor in good standing where he resides; and a statute authorizing such admission is invalid. At the same time the court observed that foreign counsel would always be heard with pleasure, ex gratia. In Van Slyke v. Trempealeau, etc., Ins. Co., 39 Wis. 390, it was held that a statute authorizing actions, in which the judge was interested or prejudiced, to be tried by consent before a counselor of the court, was unconstitutional, and a person assuming to act under it was not even a judge de facto. They have a curious law in that State, under which "mere imputation of prejudice to the circuit judge, made in proper time by either party to a civil action, entitles the party making it to a change of the venue." It was to save the necessity of such change in such cases that the statute under discussion was passed.

Another case in another State, where the court was in trouble with its own working, was Dalrymple

v. Williams, 63 N. Y. 361. There the foreman of a jury announced a verdict different from that agreed upon, and it was so recorded. Held, that affidavits of the jurors were competent evidence to prove the mistake. A valid distinction is drawn between affidavits of jurors to impeach a verdict recorded in conformity to the agreement, and to correct a verdict recorded contrary to the agreement.

The so-called trade-mark case of Meneely v. Meneely, 62 N. Y. 427, we have several times noticed. The attempt of one brother to restrain another brother from the honest use of the family name in a rival establishment of the same kind of business, was defeated.

The case of Youngblood v. Sexton, 32 Mich. 406, may stand among the curiosities of nomenclature. As might be supposed, Sexton was too much for Youngblood in the long run.

two cases.

The subject of double insurance is illustrated in In Gee v. Cheshire County Mutual Fire Insurance Co., 55 N. H. 65, the plaintiff, having a valid insurance in one company, with a condition against double insurance, "whether valid or not," obtained a policy from the defendants on the same property, also conditioned against double insurance. Held, that the first policy did not terminate instantly upon the execution of the second, so as to save the condition in the second, and that there was a double insurance within the terms of the second policy; and semble that the condition in the first policy, making it void in case of an invalid insurance, was void. In Thomas v. Builders' Mutual F. Ins. Co., 119 Mass. 121, the same doctrine was held as to the point decided, and in addition it was held that the assured could enforce the first policy, although he had received payment of the second. The latter case is accompanied by a long and excellent note.

A rather singular question arose in Rockport v. Walden, 54 N. H. 167, where it was held that where the statute of limitations has run on a debt, the debtor's right to the defense is vested, and any statute which afterward annuls or takes it away is unconstitutional.

As against carriers of passengers, the scales of justice are very nicely balanced in Pullman Palace Car Company v. Reed, 75 Ill. 125, and Ohio, etc., Railroad Company v. Lackey, 78 id. 55. In the former case, a passenger, who had purchased a ticket for a berth in a sleeping car, lost it, and gave evidence to the conductor that he had done so, but refusing to pay again, the conductor expelled him without violence, and he was compelled to ride in a common car. It was held that he could recover of the owners of the car the price of his ticket, and a reasonable compensation for his trouble and inconvenience, but not exemplary damages, and a verdict of $300 was held excessive. The circumstances showed that the berth ticket would have been una

vailable to any one finding it. In the other case, a statute making railroad companies liable "for all expenses of the coroner and his inquest, and the burial of all persons who may die on the cars, or who may be killed by collision or other accident occurring to such cars or otherwise," was held unconstitutional, so far as it attempts to impose liability where there has been no negligence or violation of law. This was certainly a most extraordinary statute, and could only be justified on the theory that such corporations are liable to any sort of tax, at the caprice of the legislature, in consideration of the rights bestowed upon them.

But

Man's instinctive love of physical liberty was seriously rebuked in Luke v. State, 49 Ala. 30. A prisoner set fire to the jail where he was confined, solely for the purpose of escaping, and controlled the fire with water saved from his allowance, so that no great injury was done. Still this was held arson. Our State and some others are more lenient. if the Alabama courts cannot make allowance for one's natural repugnance to staying in jail, they certainly can for one's conduct when he is suffering from "the tremens." In Beasley v. State, 50 Ala. 149, a confirmed drunkard, while suffering from a fit of delirium tremens which had lasted several days, committed a homicide; held, that a charge that upon the evidence the prisoner was guilty of murder in the first degree or nothing, was erroneous; the question when the "drunk" stopped and the "tremens" began, should have been submitted to the jury. This is probably right, certainly humane, although to the uninstructed it might seem strange to say, that if a man commits a homicide when he is moderately or even very drunken, he is guilty of murder, and yet if he has drunk so hard as to produce delirium tremens, and in that condition commits the act, it may be excusable. "Drink deep or taste not," should be the motto of those who nerve themselves for bloody deeds by alcoholic stimulants.

A very nice question of contributory negligence, as between master and servant, came up in Gibson v. Erie Railway Co., 63 N. Y. 449. A conductor of a freight train on defendant's railroad, just as the train was moving out of a depot, jumped on a car, and climbed on the ladder to the top, when he was knocked off by the projecting roof of the depot, and killed. He was familiar with the road; had passed over it daily for seven years; the roof was three feet higher than the car, and had not been altered after he entered defendant's employ. There was no evidence that it was his general or special duty to go on top of the cars, but it was shown that his place between stations was in the caboose. The question was submitted to the jury, who found for the plaintiff, of course. This is now set aside. The judge writing the opinion puts the reversal on the ground, first, that the deceased was familiar with

the danger, and second, that it was not shown that it was necessary or proper for him to incur it at the time in question. Of the seven judges five concurred, one putting his concurrence on the second ground; one did not vote, and the other dissented. So difficult it seems to be to get a precise and satisfactory determination of the doctrine of contributory negligence.

The case of Wolcott v. Mount, 9 Vroom, 496, involving the question of the measure of damages on breach of implied warranty of personal property, has reached the ultimate court of New Jersey. This is the turnip-seed case, where it was held, as in our case of Passinger v. Thorburn, that if one sells seed as and for a particular kind of seed, and with proper cultivation it fails to produce the proper crop, he is liable for the difference between the two crops. We have hitherto commented on this doctrine, and can see no reason to change our opinion that it is extravagant, oppressive, and grossly disproportionate to the circumstances. The doctrine of the Connecticut case cited in the note seems much more reasonable, namely: "the measure of damages was the cost of the seed, the value of the labor in preparing the ground for it and planting it, and the interest on these sums, less the general benefit of the labor to the land." On a mere implied warranty, why should the seed-vendor be charged with the value of the anticipated crop, when the failure is through no fault of his own? "Paul may plant, and Apollos may water, but God giveth the increase."

The important question of the liability of municipal corporations for injuries produced by culverts, was considered in Van Pelt v. City of Davenport, 42 Iowa, 308. It was held that the city was bound to exercise reasonable care, judgment, and skill in the construction, but that it was not liable for the misjudgment of a competent engineer as to the capacity; also that if plaintiff could have protected his property at slight cost, he cannot recover more than the expense of such protection. An excellent note is appended.

Two important cases on the subject of nuisance call for notice. Campbell v. Seaman, 63 N. Y. 568, is a case which we have twice before noted in its progress to the ultimate court. The defendant manufactured brick with the use of anthracite coal, thereby producing a noxious vapor, which, borne by the wind over the plaintiff's lands, destroyed the fruit and shade trees and shrubbery about his residence. The brick yard had been used before the plaintiff purchased his lands, and although not uninterruptedly, for more than twenty-five years. Held, that plaintiff was entitled to damages and to an injunction restraining the use of coal producing such vapors. In the opinion the principal brick kiln cases are reviewed. In regard to the claim that it is inequitable to restrain a useful industry in favor

of mere articles of luxury, the court somewhat rhetorically remarks:

"The plaintiffs had built a costly mansion, and had laid out their grounds and planted them with ornamental and useful trees and vines, for their comfort and enjoyment. How can one be compensated in damages for the destruction of his ornamental trees, and the flowers and vines which surround his house? How can the jury estimate their value in dollars and cents? The fact that trees and vines are for ornament or luxury entitles them no less to the protection of the law. Every one has the right to surround himself with articles of luxury, and he will be no less protected than one who provides himself only with articles of necessity. The law will protect a flower or a vine as well as an oak."

Turning then to Brightman v. Bristol, 65 Me. 426, we find an action against a town, under a statute, to recover three-fourths the value of a porgy-oil factory destroyed by a mob. The offensive character of the business was held to be no justification. "Porgy-oil is an article of commerce," say the court, "and its manufacture an honest and lucrative one. "The opinion contains an interesting review of cases where buildings have been similarly destroyed.

In Maine they have reasonable ideas of the sanctity of Sunday. Thus, in O'Connell v. Lewiston, the statute against "travelling" on Sunday was held not to be infringed by "a young lady, who, on the Lord's day, walks one-fourth of a mile to her aunt's house, and calls there and invites her cousin to walk with her, and they then proceed to walk threefourths of a mile simply for exercise in the open air.” The young lady, having in the walk "stubbed her toe" against the loose end of a plank in the sidewalk, recovered $1,800 for the injuries sustained. | Although in Wisconsin a contract made on Sunday is invalid at law, yet they held in Knox v. Clifford, 38 Wis. 651, that the maker of a promissory note, dated on a secular day, is estopped, as against a bona fide holder, from showing that it was made on Sunday.

The question of the rights of an accused person testifying in his own behalf, was again up in State v. Wentworth, 65 Me. 234, and it was held that he could not refuse to answer on cross-examination on the ground that answering would criminate him. This was a complaint for selling intoxicating liquors. Chief Justice Appleton waxed logically merry in the discussion, observing: "Now what was the matter under investigation? A sale by the defendant or his servant in his shop. It matters not whether the sale or the authority to sell is denied. His answer is exonerative. The question is put, 'Did you have any bottles there filled with gin, whisky, rum, and brandy, pint, quart and halfpint bottles?' Shall the question be answered ? The question is pertinent to the case. A sale is denied. Before selling he must have liquors to sell. Selling implies having. It is important to prove having. Having being admitted, for what purpose were they had? Were they like

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