Abbildungen der Seite

business of the principal and as a part of the transac- sett, 21 id. 162; State v. Gibson, 36 Ind. 389; 8. C., 10 tion which is the subject of inquiry. Hence where the Am. Rep. 42; 1 Bish. Marr. & Div., $ 87; State v. Kenbaggage-master of a railroad company, wbile away nedy, 76 N.C. 251; S. C., 22 Am. Rep. 683; Ellis v. State, from the baggage-room of the company and engaged 42 Ala. 525; Burns v. State, 48 id. 195; S. C., 17 Am. in the transaction of his private business on his own Rep. 34; U. S. v. Stanley, 109 U. S. 3. State v. Jackson. premises, gave directions to a stranger with reference Opinion by Henry, J. (See 32 Eng. Rep. 7.] to the delivery of baggage, held, that they were not binding on the company. Adams v. Railway Co., 74 Mo. 554. City of Chillicothe v. Raynard. Opinion by Norton, J.


REFORMED.-As against a married woman a court of
equity has po power to compel specific performance, to

CONTRACT-PERSONAL LIABILITY OF AGENT.-The reform a deed, or to do any thing else which will di

defendants gave the plaintiff a note reading: “$1,000. Fest title to land out of her. Hence where there

Carmel, April 22, 1876. For value received, we, the were two deeds of trust executed by husband and

subscribers for the Carmel Cheese Manufacturing Com

pany, promise to pay William Simpson, or order, one wife, and both intended to cover the same land, but

thousand dollars in six months from date, with interby mistake the earlier deed described a different tract, and because the holder of the later deed had notice of

est. F. A. Simpson, Rufus Work, A. S. Garlaud." the mistake, the court decreed that the first deed

Held, that an action upon the note could not be mainshould be reformed and enforced as a first lien against

tained against the signers, as it did not purport to be the true land. Held, that this decree was correct so

their promise, but the promise of their principal, and far as it related to the husband's interest, but errone

if given without proper authority the agents may be

liable in another form of action. Nor could an action 00s so far as it related to the wife's, and as to her interest the second deed must remain the first lien.

of money had and received be maintained against

them where they received the money as agents, and Shroyer v. Nickell, 55 Mo. 264; 7 Cent. L. J. 182; Atkison v. Henry, 80 Mo. 151. Meier v. Blume. Opin- disposed of it for the benefit of their principal before

the commencement of the suit, and without notice to ion by Sherwood, J.

withhold it. The note does not contain the promise MARRIAGE-HUSBAND AND WIFE'S JOINT ESTATE- of the defendants. There are in it no apt words to CONVEYANCE OF-TITLE BOND-EQUITY.-Where a hus- bind them, but the promise is expressly made for the band and wife are seised in entirety the husband may corporation. The testimony introduced has no tendwithout joining his wife convey his legal or equitable ency to fasten that promise upon them, nor would estate, subject to her right of survivorship. But that or any other having that tendency be competent where the husband alone executed a title bond for for the purpose. So far as the action is founded upon such land, held, that the wife's estate could not be di- that contract, it must stand or fall with it. Any Fested by reason thereof, although she afterward re- proof offered, whether in writing or otherwise, must ceived from her husband part of the purchase-money, correspond to the allegations in the writ. If they and thereupon expressed satisfaction with the sale. have signed a note purporting to bind a principal Hall v. Stephens, 65 Mo. 670; Shroyer v. Nickell, 55 id. without authority, the note is simply void. The agent H4; 7 Ceut. L. J. 182; Devorse v. Snider, 60 Mo. 235; thus doing may be liable in another form of action, Baldwin v. Snowden, 11 Ohio St. 203; Ackert v. Pultz, but certainly not in a suit upon a contract into which 7 Barb. 386; Purcell v. Goshorn, 17 Ohio, 105; Pilcher he never entered. This seems to be clear upon priuV. Smith, 2 Head, 208; Martiu v. Develly, 6 Weud. 9. ciple, and is supported by a decided preponderance of Alkison v. Henry. Opinion by Sherwood, J.

authority. It may be considered as well settled law

in this State and Massachusetts. In New York, whilo ASSIGNMENT-CAUSE OF ACTION FOR TORT.-A cause

the earlier decisions were opposed, the later are in fa43d section of the Railroad Law, for double damages

them in detail. The following will give all the light for the killing of live stock, cannot be assigned so as to

necessary: Harper v. Little, 2 Me. 14; Stetson v. Patinvest the assignee with the right to sue. Citing Wal

ten, id. 358; Noyes v. Loring, 55 id. 408; Ballou v. Icn v. Railway Co., 74 Mo. 521, and distinguishing Talbot, 16 Mass. 461 ; Abbey v. Chase, 6 Cush. 54; Jefts Smith v. Kennett, 18 id. 154. Snyder v. Wabash, St.

v. York, 4 id. 371; S. C., 10 id. 392; Bartlett v. Tucker, Louis & Pac. Ry. Co. Opinion by Norton, J.

104 Mass. 336; Bray v.Kettell, 1 Allen, 80; 1 Pars. Cont. CONSTITUTIONAL LAW-INTERMARRIAGE BETWEEN

68, and note. Thus it is evident that the defendants WHITES AND NEGROES.—The act making intermarriage

cannot be holden upon the note declared upon, even between white persons and negroes a felony (Rev. though they had no authority to bind the principal: Stat., $ 1540) is no violation of the 14th amendment of

nor can they be holden upon the count for money bad the Constitution of the United States. Neither is that

and received; for whatever money they had was clause of the act which provides that the jury trying a received as agents, and disposed of for the benefit of party accused of such a marriage may determine the

their principal before the commencement of the suit, proportion of negro blood in either party to the mar

and without notice to withhold it. Simpson v. Garriage from the appearance of such person, a violation

land. Opinion by Danforth, J. [See 47 Am. Rep. of that clause of section 53, article 4 of the Constitu-818.] tion of Missouri, which provides that “the General

FRAUD–RESCISSION OF CONTRACT-OFFER TO Assembly shall not pass any local or special law regu.

STORE-DAMAGES.—To rescind a contract of sale of lating the practice or jurisdiction of or changing the

merchandise, which has been delivered, ou the ground rules of evidence in any judicial proceeding." "The of fraudulent representations of the seller, the buyer privileges and immunities of citizens of the United

must restore the goods to the seller, if they are of any States " protected by the 14th amendment are such as

value, or to offer to restore them under such circum. are secured to them by the Constitution of the United

stances as to show an existing intention and ability to States and laws enacted in pursuance thereof, and the deliver them into the possession of the seller, or if he right of unrestricted marriage is not among these. The Slaughter House cases, 16 Wall. 36; Minor v. Happer

*To appear in 76 Maine Reports.


elects, to accept them. When such a contract has not standing sold the vote, and G. was compelled to pay been rescinded the buyer is liable for the contract it, priucipal and interest, to the purchaser. Held, that price, less the damages occasioned by any fraud that by the sale of the note C. violated a trust, and thereby was practiced upon him in the sale. Sharp v. Ponce. forfeited his right to retain that portion of the purOpiniou by Walton, J. [See 27 Alb. L. J. 218, 375. chase-money received from G., and that assumpsit for -ED.]

money had and received was a proper form of action

in which to recover it. Moore v. Marshall. Opinion by ELECTION--ELECTOR DISFRANCHISED--UNREASONABLE

Walton, J.
DAMAGES.-(1) The action of selectmen in refusing to

INJUNCTION-JUDGMENT NOT ENJOINED-RES ADpermit a legal elector to vote on the ground that his JUDICATA.-A court of equity never enjoins a judg. name was checked; that another man had falsely per- ment except upon some distinct equitable ground sonated him and voted under that name, is unreason

which neither was nor could have been set up as a deable, and renders them liable to an action under R. S., fense to the action at law. An issue once tried in s ch. 4, $ 63. (2) It appears to us that the question was one

court of law is never retried by a court of equity. The upon which men of common intelligence, acting fairly parties have had their day in court, and they must and without bias, could not be expected to take oppo- abide by the result. The rule was correctly stated by site sides. The defendants claim that they were jus- Chief Justice Marshall iu Marine Ins. Co. v. Hodgson, tified in their action, because two gentlemen present, 7 Cranch, 33:2. It is that any fact which clearly shows who were lawyers, declared that the plaintiff should it to be against conscience to execute a judgment at not be permitted to vote, as it would invalidate the law, and of which the complainant could not have election; and fearing that effect, they refused the

availed himself at law, or which he was preveuted vote. We cannot conceive how two lawyers, giving from availing himself of by fraud or accident, untheir opinions upon their responsibility as such, could mixed with any fraud or negligence of himself, or his express such an opinion. It must have been inspired agent, is ground for enjoining, the judgment; but a by political interest or bias rather than by legal learn- legal defense, actually made at law, is not ground for ing. The idea that because a fraudulent ballot had enjoining the judgment, though the court may think been put into the ballot box, which, if it would change it ought to have prevailed. “It is now, I apprehend the result, any tribunal having power to determine well settled,” said Redfield, J., in Emerson v. Udall, the election would reject, the reception of the honest, 13 Vt. 477, “that a court of equity will not examine legal ballot would invalidate the whole election, is, to

into the foundation of a judgment of a court of law, say the least, unique. No elector can be legally dis. upon any ground which either was tried, or might franchised by being falsely personated by another as in have been tried in the court of law. The judgment of this case. The defendants were so advised by several

a court of law is conclusive upon all the world as to all lawyers, among them the solicitor for the town, whose

matters within its cognizauce. If a party fail by not opinion was given at the request of the chairman presenting his defense, when he should have done it, of the board, and that they ought to permit he cau have no redress in a court of equity. Much the plaintiff to vote. (3) Where the act of the select- less can be expect relief in a court of equity, when he men in refusing to permit a legal elector to vote is un- has had a full trial at law upon the very grounds which reasonable, but not corrupt, punitive damages will not

he now wishes to urge anew. To the same effect is be awarded in an action against them by such elector.

2 Story Eq., $ 894, and High on Inj., 896. Bachelder v. Pierce v. Getchell. Opiniou by Libbey, J.

Bean. Opinion by Walton, J.



CRIMINAL LAW. In an action for personal injuries alleged to have been caused by the negligence of the employer in retaining

VERDICT--RECEIVING IN ABSENCE OF DEFENDANT the services of a fellow servant who was careless, and

TO POLL JURY-SUNDAY NOT COURT DAYwhose carelessness caused the injury, a witness testi

ERROR.–The jury returned their written verdict in a fied that he considered the fellow servant slow and

criminal case to the judge of the court on Sunday, in lazy, and not fit for the service, he was so slow, and

the absence of the defendant and his counsel, and witness had so informed the agent of the employer;

without either of them being called or notified. The and in answer to a question, if the fellow servant was competent and careful in the performance of his du- judge received the verdict, and discharged the jury ties, witness testified: “Yes, he was always careful

from further consideration of the case. At the openabout his work.” Held, that this evidence was not ing of the court on the next day (Monday), the desufficient to establish the negligence of the employer.

fendaut asked the court to recall the jury, and allow (2) The jury is not authorized to decide that a person

him the opportunity of having the jury polled in his is unfit to be employed as a brakeman on a railroad, on

presence; but the court denied the application. The account of what they saw or supposed they saw, or

defendant also moved that the verdict be set aside and

stricken from the files; that the jury be recalled, and could read in his face and manner while testifying before them as a witness, and determine from that alone

directed to returu a proper verdict; all of which mothat the railroad company was negligent in employing tious, as well as the motion for a new trial, were over such a person.

Corson v. Maine Ceni. R. Co. Opinion ruled. Held, that neither the defendant nor his counby Walton, J.

sel, in the absence of notice, were bound to be in at

tendauce upon the court on Sunday on the coming in MONEY HAD AND RECEIVED-TRUST-SALE OF NOTE.

of the jury; and held further that on account of the -C. and G. were tenants in common of a parcel of

action of the court ip discharging the jury, and refusreal estate. C. conveyed his party to G. and took G.'s ing to poll the jury in the presence of the defendant, note therefor. Both parties agreed that the sale was the judgment must be reversed and a new trial one only in form, that C. was to continue the actual granted. When a verdict is announced the defendant owner of one-half and that G. should not be required may require that the jury be polled. A party bas, to pay the note. G. bold and conveyed a part of the in all cases, the right to kuow whether the supposed land and paid to C. a portion of the purchase-money verdict is the verdict of each juror, or only one of the received therefor. C. then in violation of the under- jury; and examining the jury by the poll is the only




recognized means of ascertaining whether they were It also appeared that divers rooms, closets and drawers ananimous in their decision. This right is equally ap- in the house were ransacked; but there was no eviplicable to civil and criminal cases. The appellant dence tbat burglar's tools had been used to effect tbe therefore had the legal right to poll the jury, and he entry or to open inner doors or drawers. Held, that cannot be deprived of that right without his consent. evidence that the defendant, when arrested, had such Cr. Code, $ 208; Civil Code, $ 283; Maduskav. Thomas, tools in his possession was nevertheless admissible. 6 Kans. 159; Munkers v. Watson, 9 id. 668-673; James People v. Winters, 29 Cal. 658. State v. Davis. Opinion 5. State, 55 Miss. 57; 30 Am. Rep. 496, and notes; State by Hough, (. J. (80 Mo.) F. Hughes, 2 Ala. 102. If it be urged that the appellant was voluntarily absent from the court-room on the coming in of the jury, and thereby waived his

INSURANCE LAW. right to have the jury polled, it is sufficient to answer that neither he nor his counsel, in the absence of FIRE-LOSS-LOCATION OF GOODS.— Where a policy notice, were bound to be in attendance upon the court of fire insurance in one clause insures household goods, on Sunday. Dies dominicus non est juridicus—the furniture, clothing, etc., contained in a "two-story Lord's day is not a court day. While it is lawful for a frame dwelling-house and additions, occupied as a court to receive a verdict on Sunday, yet as the parties residence," and in another clause insures bare the right to poll the jury, the court ought not to buggies, hay, etc., and barn tools,” the insured cannot make such disposition of the case, in the absence of recover for the loss of the household goods by burning the parties and counsel, as to prevent the exercise of of the baru into which they had been removed on acthis right. Stone v. Bird, 16 Kans. 488; Norvell v. count of a previous fire in the dwelling-house. HartDeval, 50 Mo.272; Reid v. State,53 Ala. 402; Stewart v.

ford Ins. Co. v. Farrish, 73 Ill. 166; Annapolis, eto., R. People, 23 Mich. 63; James v. State, supra;1 Bish. Cr.

Co. 7. Baltimore Fire Ine. Co., 32 Md. 37 ; S. C., 3 Am. Pro., *270, 272. Sup. Ct. Kans. State v. Muir. Opin- Rep. 112; and Bryce v. Lorillard Ins. Co., 55 N. Y. 240. ion by Horton, C. J. (32 Kans. 481.) [See 4 Neb. 86; Sup. Ct. Mich., Nov. 19, 1884. English v. Franklin Fire B Am. Rep. 484; 67 N. C. 283; 88 Penu. St. 189; 49 Insurance Co. Opinion by Cooley, C. J. (21 N. W. Cal. 41.]



In the absence of averment as to the form of an insurSESSES. -If a doubt is raised as to the paternity of a ance policy agreed to be issued, it will be assumed that bastard child by reason of the complainant's connec- the form stipulated for was the form then in use by tion with other men at about the time it was begotten, the company, and that the terms of such policy were other facts may be shown sufficient to satisfy the jury embraced by implication in the contract. Hubbard v. that the accused is the father. State v. Pratt, 40 Iowa, Hartford Ins. Co., 33 Iowa, 325. See also De Grove v. 631. In other words, the jury are to determine from Insurance Co., 61 N. Y. 594. Acts or omissions relied all the evidence before them whether or not the ac- upon as a waivor of preliminary proof should, to concused is the father of the child. The first instruction stitute such waiver, take place before action is brought therefore was properly refused. The second instruc- if not before the time has expired within which the tion also was properly refused. The proceeding is es- insured has a right, under the terms of the contract, sentially a civil one, and the rules of evidence govern- to supply such prvof. Beatty v. Lycoming Co. Mut. jog civil actions are applied. Carter v. Krise, 9 Ohio St. Ins Co., 16 P. F. Smitb, 9; Fland. Ius. 593, note. Be402; Glenn v. State, 46 Ind. 368; State v. Evans, 19 id. sides in this case no waiver was pleaded. Lumbert v. 12; Byers v. State, 20 id. 47; State v. Brown, 44 id. 329. Palmer, 29 [owa, 104. Sup. Ct. Iowa, Oct. 24, 1884. In this State a preponderance of evidence is all that is

Smith v. State Ins. Co. Opinion by Adams, J. (21 N. required in civil actions, even in cases of fraud. Pat- W. Rep. 145.) rick v. Leach, 8 Neb. 538; Search v. Miller, 9 id. 30;

FIRE PREMISES VACANT OR UNOCCUPIED. Kopplekom v. Huffman, 12 id. 101. In Patrick v.

Where the owner of a dwelling, who after a tenant has Leach, p. 538, it is said: “In a civil action the law

vacated the premises, moves his furniture into and does not require the jury to be satisfied beyond a

cleans up the house with an intention of making it his reasonable doubt, as in criminal cases." The court

residence, but during that time does not actually ocdid not err therefore in refusing to give the instruc

cupy it at night, subsequently leaves it temporarily on tion. Sup. Ct. Neb., Nov. 18, 1884. Altschuler v. Algaza.

business, and puts a party in possession until his reOpinion by Maxwell, J. (21 N. W. Rep. 401.)

turn, the house cannot be considered as


unoccupied,” within the meaning of a clause in the SAL-SECOND TRIAL FOR ASSAULT-CHALLENGE.—When

policy providing that if the insured building shall “be a party has been convicted of an assault with intent to

or become vacant or unoccupied” the policy shall be kill, and on appeal such conviction has been reversed

void unless consent in writing is indorsed thereon, and on the ground that the evidence would not sustain

he will be entitled to recover for a loss occurring dursuch charge, he can only be tried a second time on the ing such temporary absence. In contemplation of same information for the offense charged therein, and

law her occupation of the house would have been conif the court put him on trial for a simple assault, and

tinuous. Stupetski v. Translantic Fire Ins. Co., 43 restrict the number of his challenges of jurors to five,

Mich. 373; S. C., 5 N. W. Rep. 401; Cummings v. Ag

ricultural Ins. Co., 67 N. Y. 260; Herrman v. Mera conviction for the assault will be reversed, and tbe accused discharged. Sup. Ct. Mich., Nov. 20, 1884.

chants' Ing.Co., 81 id.184; Phenix Ins. Co.y. Tucker, 92 People v. Comstock. Opinion by Champlin, J. (2 N.

111.64; Dennison v.Phenix Ins. Co., 52 Iowa, 457; S. C., W. Rep. 384.)

3 N. W. Rep. 500. The only question then is whether

the fact that for the few days she remained at home LARCENY EVIDENCE - PRISONER'S POSSESSION OF before starting on the business trip she did not sleep BURGLARS' TOOLS.-On a trial for larceny from a in the house or take her meals there should make any dwelling-house, it appeared that defendant was ar- difference. Under the circumstances we think not. rested in the vicinity of the locus delicti immediately The insured had taken possession of the house, as the after the commission of the larceny, under suspicious jury must have found, for the purposes of permanent circumstances tending to connect him with the crime. occupancy. She had moved in her household furniture

[ocr errors]

and other goods, and was cleaning and doing other pect of a change of government throws the bar into a work preliminary to living there in person. Nothing wild state of excitement, because it means a shuffling apparently was wanting to complete personal posses-- of the cards and a partial redistribution of business. sion, except that she lodged and took her meals at her Of a truth the advent of a conservative ministry father's, a few rods off. Those facts were not conclu- would produce changes more than usually great in the sive against her occupancy. It could not be justly personnel of the law officers. In plain words, no one claimed, we thiuk, that if a family, for the purposes of

knows who the fortunate men would be. In all prob. cleaning and interior decoration, were thus to sleep ability the master of the rolls would be elevated to the and take meals at a neighbor's, while busy in the woolsack, and Mr. Edward Clarke, Q. C., who has house in working hours, they would in doing so vacate distinguished himself in the House of Commons of the house. But the case of such a family would be

late, would become a law officer of the crown. But analogous to that of the party insured in this case. his health is delicate, and it is doubtful whether he Cases are cited and relied upon ou the part of the de- would be able to sustain for any length of time the feuse which we think are distinguishable on their wear and tear of official life. After him and Sir Hardfacts. Wustum v. City Fire Ins. Co., 15 Wis. 138, was

inge Gifford all is mystery. There is hardly a single the case of a policy of insurance, which by its terms barrister who has distinguished himself as a conservarequired unoccupied property to be insured as such. tive, in the House of Commons, and who is also well The building insured was not occupied, but was not known for forensic ability. This perhaps may account insured as unoccupied, and the policy was held inop- for the fact that the conservatism which has appar. erative for that reason. In Ashworth v. Builders', ently been lying dormant in many leading juniors is etc., Ins. Co., 112 Mass. 422, it was decided that merely beginning to show signs of awakening. using a house for the purpose of taking meals in it was Of all the changes which the advent of a conservanot occupancy within the meaning of an insurance tive ministry must produce for barristers, none would policy. "Occupancy,” it was said, “implies an ac- be more welcome than the new lord chancellor. Lord tual use of the house as a dwelling-place.” “The in

Selborne has been a failure, not because he has made surer has a right, by the terms of the policy, to the many mistakes, but because he has given himself no care and supervision which is involved in such an oc- opportunity of making any. It is quite an event for cupancy.” This we think is true; but as we have seen, him to sit in the Court of Appeal, where his predeces. it does not follow that the presence of the occupant in

sors sat frequently. When he does sit, the society the building should be continuous and unintercepted. papers, the bugbear of all great men, or perhaps I The necessity for temporary absences on business, or should say of all men in great places, hope sarcastifor family conveuience or pleasure, is recognized, and cally “that he is not fatigued by the unwonted exerthe insured is understood to contemplate an as

tion." Yet it cannot be said that the duties of the sent to them. In Corrigan v. Connecticut Fire Ins. office are more laborious now thau they used to be in Co., 122 Mass. 298, the question was whether a tenant former times. Sometimes it is suggested that the who had occupied a house, but had moved with his lord chancellor has enough to do in drafting bills for family out of it and was taking his meals elsewhere, Parliament, but the suggestion is obviously based upon could be said to be occupying it merely because some

either a low estimate of his lordship's power of work, of his furniture remained in it, and he had not sur- or a mistakev idea of the nature of the work which he reudered the key? It was very properly held be could in fact performs. The lord chancellor does not draft not. Herrman v. Adriatic Fire Ins. Co., 85 N. Y. 162, bills, he settles them after they have been drafted by was still more unlike the present case, and calls for no his subordinates, and they in their turn are rewarded comment. Sup. Ct. Mich., Nov. 19, 1884. Shackelton by County Court judgeships, like Mr. Chalmers, or v. Sun Fire Office. Opinion by Cooley, C. J. (21 N. become standing counsel to the Board of Trade in W. Rep. 343.)

bankruptcy cases. Therefore there is no sufficient

reason why a lord cbaucellor should not make his FIRE-ALIENATION OF PROPERTY.-A policy of fire

mark in the history of the curious development of insurance provided that if the building was sold or

case-law as lord chancellors were wont to do in times transferred, the policy would be rendered void, unless

of historical celebrity: but of Lord Selborne it can ratified to the assignee thereof by the written conseut

only be said that his foot-prints are small, and the imthereon, signed by the presideut and secretary, or any

pressions thereof are light. The place of the lord two directors of the company. Held, that a sale of the

chaucellor as the presiding genius of English law has buildings without a transfer of the policy, rendered

been lost-perhaps not for ever-but certain it is that the policy void. Sup. Jud. Ct., Maine. Gould v.

the late Sir George Jessel, to say nothing of the presPatrons' Androscoggin Mut. Fire Ins. Co. Opinion by

ent accomplished master of the rolls, will be rememLibbey, J. (76 Me. 298.) [See 29 Am. Rep. 180; 27 id.

bered when the name of Lord Selborne bas long been 582; 28 Eng. Rep. 162; 30 Alb. L. J. 457.-ED.)

forgotten. I should add that the present lord chall

cellor has incurred much unpopularity by his reluctOUR LONDON LETTER.

ance-up to the present moment well sustained-to add to the number of existing queen's counsel.

The Durham divorce case is attracting an infinity of WEEK ago the bar was in a state of absolute fer- notice. Imprimis, it is a case of first impression;

ment. There was every indication of a possible secundo, the parties engaged are of the highest rank. change of government. And even when the ministry The judgment is not pronounced at the moment of saved defeat by the narrowest of majorities, there writing, nor will it largely affect the public feeling in was much talk upon the prospect that the Cabinet the matter. Lord Durham seeks for a declaration might resign. Even at the present moment when the that bis wife was never married to him, on the ground intelligible desire to hold on to office till the last gasp that when she went through the ceremony of malhas been plainly expressed, no one knows what a day riage with bim she was, in plain words, mad. Whether may bring forth. It is possible that in spite of the the allegation be true or not nobody knows, and there wishes of their colleagues two of the most prominent are two diametrically opposite classes of opinions. But members of the government may secede, and if Sir upon one point there is universal unanimity. Lady William Harcourt and Mr. Chamberlain do secede it Durham is now hopelessly and incurably mad, and can hardly be that the ministers will continue to hold every body agrees that when either party to a marriage office. It is probably unnecessary to state that a pros. is ascertained to be in this deplorable condition, the



same party ought, pro facto, to be freed from the pasture, at a price agreed upon. The cattle were bouds of marriage. A somewhat scandalous side in

turned into defendant's pasture in the month of Aucident of the trial has had the effect of throwing some gust. From May to that time, Texas cattle, direct light upon the rights of the public to enter the law from Texas, had been depastured in the same field. It courts. It is certainly the fact that since the courts is an established fact, that when native cattle are were transplauted to the Straud, there has been a turned into a pasture where Texas cattle have been great increase of difficulty in this respect. More speo- pastured, they will take the Texas cattle fever, which tators have come to the fore, and ingress is barred for generally proves fatal. The emissions or droppings those who have business, and for those who have not, from the Texas cattle infect or poison the grass, from by a band of absolutely irresponsible officials. To which the native cattle become infected. The plaintthese gentry, Sir James Hannen has administered a iff turned eighteen head into defendant's pasture, aud severe blow over the knuckles, because by barring they all died of Texas fever. There was evidence on the entry of a certaiu eccentric student at law, who is the trial, which tended to prove that the defendant a bad imitation of Oscar Wilde, they were the cause of did not know that Texas cattle would poison the pasa most unseemly uproar.

ture. Judge Dwight charged, on this point, that “tho It is with the greatest pleasure that I am able to an- jury must find, to authorize the plaintiff to recover, nounce that the subject of codification is again to the that the defendant knew that the effect of pasturing fore, and that its advocates are in no mood for trilling. Texas cattle was to render the field dangerous for pasThe draft Criminal Code has hung fire so long that turing northern cattle thereafter." people had begun to believe that the law officers bad Under the charge, the verdict was for the defend. no heart in the projected reform; but l-am informed and rerily believe that the reason of delay is to be My contention is, that the defendant in offering his found in the imperfections of the draft. The presid- field to grazers warranted, among other things, that ing genius of the drafting was Mr. Justice Stephen, the grass was wholesome, and not contaminated with whose reputation as a criminal lawyer is waning, any foreign substance that would kill the cattle grazwhereas for his knowledge of common law he has ing thereon. I fail to find any authorities bearing op never been famous. On dit that he has only thrice this precise point. I found a case which held that the since his elevation to the bench been confirmed by the vendor of hay was liable in damages to the vendee, if Court of Appeal, and your correspondent in person the hay was unwholesome and not fit for food for has, in the course of the present year, heard him layhorses, although there was no express warranty as to down that it was not negligence in a sheriff's officer to the condition of the hay. I entered the case in my sit in the front parlour of an inn at his ease while the pocket diary, and subsequently lost it, and after furniture upon which he has levied execution is being diligent search, have been unable to find it again or carried off at the rear. In the same case he ruled that my diary. where an officer has been guilty of a breach of statu- It occurred to me, that in your law researches, you tory duty the onus of proving damages lies upon the may have seen the same case, and cau refer me to it, plaintiff. Ou the very same day he characterized as if not that you could put me ou a line of cases that "rubbish " a statement of law of which he was com. would throw light on the questiou involved in the pelled to admit the precision later. Therefore I be- action. lieve that a good Criminal Code would have been con- In 1 Bell Com., p. 458, I find this under the head of verted into law long ago. Certaiuly the commercial Agister of Cattle: classes will not wait loug for a commercial Code. They "The place of custody must be secure against ordi. are agitating vigorously, and barristers, having little to nary accidents incident to the property to be predo, are helping them by showing that the difficulty of served. The “grazing field must be properly secured the task is not invincible. With a view to elucidate against escape, and free from pit-falls and dangers the problem, one of my acquaintance, who has studied which may lame or injure them. The livery stable much under German professors, is publishing au his- must be wind and water tight, so as not to expose the torical commentary on both the criminal and com- horse to cold or wetness, besides the food being wholemercial Codes of Germany; I have just received a some and the hostler fit for his undertaking. A failprospectus of a similar book upon French lines; there ure in these respects will expose the owner of the is lying before me a copy of Marine Insurance, codi-field, the stable or other place of custody, to a claim of fied ten years ago, and altogether I am looking for damage, thus occasioned by his fault.” ward to the time when the interest of my law library Why should not the grazing field contain wholesome shall be antiquarian merely.

grass, and be free from poisons that sicken or kill LONDON March 4, 1885.


Very truly yours,


GENESEO, N. Y., March 18, 1885.

[See French v. Vining, 102 Mass. 132; S. C., 3 AGISTER'S WARRANTY OF WHOLESOMENESS OF

Am. Rep. 440; Lukens v. Freiund, 27 Kans. 664; PASTURAGE.

S. C., 41 Am. Rep. 429.—ED.] Editor of the Albany Law Journal:

I get much valuable learning from your journal. There is one question to which I have not noticed any NEW BOOKS AND NEW EDITIONS. reference, and that is the liability and responsibility of agisters of cattle. The general rule seems to be,

BLISS ON SOVEREIGNTY. that agisters are not insurers, or in the language of Judge Dwight, in the case I will refer to:

Every once in a while appears a book from some "A pasturer is not an insurer against any kind of stray professor of jurisprudence, which shows that the loss, but he only engages to exercise the care of a pru- speculative side of juristic science is not wholly negdeut person in respect to the property intrusted to lected in this busy land. Of all the elements of mod.

ern law, sovereignty is the most important, for the The case is this: The plaintiff was the owner of sovereign makes the law. Professors of political scicattle, and hired them pastured in the defendant's ence do not all agree as to what the definition of sov


« ZurückWeiter »