The Albany Law Journal.

ALBANY, MARCH 22, 1884.

CURRENT TOPICS.

HE Denver Law Journal, continuing the gown discussion, says: "Our people have confidence in their judges. The want of confidence is in the results of jury trials in criminal cases. Eastern judges and courts have so refined the law, and made technical loopholes for the escape of undoubted criminals, that the best judges are unable to prevent acquittals, where stern and equal justice, as well as the evidence, demands conviction. No technical objection upon which a criminal will go unwhipped of justice, can be found which is not the invention of judges who robe in silken gowns. The judges, who wear silken robes in Westminster Hall, are the authors and originators of the net-work of technicalities which disgrace the administration of the criminal law. Witness the Hartung case, the Cancemi case, and others familiar to the profession, in the courts of New York. Now we ask, with these cases in view and the repeated escapes of persons guilty of the most heinous crimes from merited punishment, giving our people well founded ground to fear that justice will not be impartial and speedy in its administration, where can the ALBANY LAW JOURNAL find any reason to believe that robing the judges in gowns will tend to elevate the popular idea of law and of the courts? Our western judges

have done much to remove technical obstructions in

the administration of the criminal law. To-day technical objections are countenanced in New York and other eastern courts, which find no favor with Colorado judges. Our judges follow eastern precedents when they permit technicalities to obstruct the speedy administration of justice, but in a majority of instances, technicalities are not favored.” Our contemporary is unfortunate in its illustrations. The Cancemi case simply held that a prisoner was not bound by his election to be tried for a felony by less than twelve jurors, and the Hartung case simply held that a man could not be hanged when there was no law for it, owing to bungling legislation. Probably no western court would have held differently in either case. We believe that the rule of the Cancemi case has been adopted in the west. It is not correct to attribute the failures of criminal justice to the laxity of eastern courts. The rulings of the eastern courts in criminal law are extremely strict and technical compared with those of the western courts. We do not know how it is in Colorado, but the rulings of the Missouri courts, for example, in favor of prisoners, have excited bitter animadversion even among lawyers of that State. Our brother should reflect, when he talks about Westminster Hall, that there is no country where crime is so swiftly and speedily punished as in England. Westward the course of looseness takes its way. VOL. 29 No. 12.

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The publishers of Myer's Federal Decisions call our attention to a mis-statement in our recent notice of that work, namely, that "the publishers hope to bring every letter into one volume." This they do not hope, but they do hope to complete each subject in a single volume, and each volume will have a table of cases and an index. We cheerfully make the correction, and shall endeavor to speak more fully of the work hereafter.

The bill now pending in our Legislature to abolish free passes on the railroads ought to prevail, at least so far as it concerns legislators and judges. Our opinion beyond this may be considered obiter. It requires no argument to demonstrate the impolicy of granting free passes to those who make and administer the laws by which the railroads are bound. The bill ought also to provide against selling tickets to such persons under the usual rate. Otherwise the railroads may easily evade the prohibition of free passes.

Speaking of the evasion of law, some governor, forbidden by law to commute, has respited a murderer for fifty years. Of course we know nothing of the particular hardships of the case in question, but the act looks like an unhandsome evasion of the law. It is such acts that inspire if they do not excuse lynching.

The printed argument before the Senate Judiciary Committee against Mr. Throop's Revision Bill, by Messrs. Opdyke, Frankenhemier, Wilds and Foster, contains some trenchant and just criticism of that bill, and some cogent arguments in favor of the

Field Code. As Mr. Field's Code has in former years been criticised for changing the law - at present it is not amenable to such a charge it is noteworthy that Mr. Throop proposes to change the law in many particulars which are pointed out in this argument. The argument points out that while the proposed code contains about 90,000 words, the proposed revision, covering about one-fourth of the same ground, contains about 70,000. This points one of our main objections to Mr. Throop as a codifier. Hamlet would be out of all patience with his "words, words, words."

The first annual report of the new Board of Claims, shows a great cutting down of claims transferred from the late boards. Contested claims amounting to $150,000 have been allowed at about $6,500. This looks healthy. Claims to the amount of more than $160,000 were dismissed for want of prosecution.

Mrs. Weldon had a hard time of it before the Lord Chief Justice the other day, in spite of the fact that she appeared in her own behalf. She had sued her husband for slander in saying that she was hopelessly insane. The following colloquy illus

Mrs. Weldon I have, and I have got it here. I will read the passage

'Who steals my purse steals trash; 'tis something, nothing; "Twas mine, 'tis his, and has been slave to thousands, But he that filches from me my good name Robs me of that which not enriches him, But makes me poor indeed.'

The Lord Chief Justice Yes, that not enriches him.'

Mrs. Weldon Yes; he took away my money and my house, which made him very rich. I only wish I could get rich so easily. (Laughter.)

The Lord Chief Justice here reminded Mrs. Weldon of the provisions of the Act of 1882, declaring that 'except as aforesaid' no husband or wife was entitled to sue one another in tort.

Mrs. Weldon - It would be a very good thing if all the women in England knew that. (Laughter.) Then I can't catch him in any way? (Great laughter.)

The Lord Chief Justice Certainly not in this way. (Renewed laughter)

Mrs. Weldon So that a husband can libel his wife or do any thing he likes. It is a very good thing that we were not told this before we got married, or else the men would be very badly off. (Great laughter.)

The Lord Chief Justicesed.

Your appeal is dismis

Mrs. Weldon - Very well. I don't see that the Married Woman's Property Act is of much good. (Laughter.)"

These unfeeling people would have laughed at poor Miss Flite, in Bleak House. But we think it would be very unwise to subject husband or wife to action of slander of the one by the other.

The New Jersey Law Journal says that a bill has been introduced in the Legislature of that State providing that the servant of a railroad company may recover damages for injury caused by the negligence of a fellow-servant. The Journal says: 66 Similar bills have been introduced before, and from the fact that they were directed against railroad companies alone, have not received much attention. An amendment was proposed this year, making it applicable to all persons and corporations. The propo

sition seems preposterous to a lawyer who understands the principle upon which a person is liable for the acts of his servant and the reason why he is not liable to one servant for the acts of a fellow-servant, but there are practical reasons why some further protection should be furnished to the servants in a large manufactory or of a railroad company against injuries arising from the negligence of others in the same employment, especially if they are in any sense his superiors in rank, Many States have already passed laws making railroad companies responsible for the negligence of fellow-servants generally. This fact indicates a popular pressure in this direction, but it does not prove that such legislation is wise." We agree with this. But a practical answer to all such attempts is found in the fact that corporations can always find servants who will agree not to hold them responsible in such circumstances.

NOTES OF CASES.

N Germantown Pass. Ry. Co. v. Brophy, Pennsyl. vania Supreme Court, January 14, 1884, 14 W. N. Cas., 213, it was held that where a person sits in a street car with his arm resting on a window sill wholly within the car, and by a sudden collision his arm is thrown out and broken, his occupying such a position is not contributory negligence in law. The court said: "The company has two railway tracks, separated by so narrow a space on a curve, that when its cars were passing in different directions they came in collision, whereby the defendant in error, a passenger in one of the cars, was injured. The main contention is whether he was guilty of contributory negligence in producing the injury to his arm. * * *The learned judge charged that if be sat with his arm out of the window when the collision occurred, he was guilty of negligence, and could not recover. Not satisfied with this, the counsel for the company requested the court to charge if the defendant in error placed his arm on the window sill and by a jolt of the car it was thrown out of the window and he was injured, he was guilty of contributory negligence, and could not recover. The court refused to so charge, but left it to the jury to find whether if he was so riding it was negligence on his part which contributed to the injury. The company has no just cause of complaint of this answer. It would have been clear error if the court had instructed the jury that occupying such a position was negligence in law. Resting his arm upon the window-sill wholly within the car, created no legal presumption of negligence. If it constituted negligence, it was a fact to be found by the jury, to whom it was submitted, and it was not to be so declared by the court. In the absence of a collision with an external object his arm was in no danger of injury. He was under no legal obligation to assume or anticipate that the company would run another car against the one in which he was sitting. The window-sill in a railway car is substantially the top of the back of the seat. It cannot be declared neg

ligence in law for a passenger to so rest his arm, and the jury has found it is not negligence in fact.”

In Shay v. Thompson, Wisconsin Supreme Court, February 19, 1884, 18 N. W. Rep. 473, it was held that where two voluntarily fight each other, either may recover from the other for the injury suffered. The court said: "The parties own adjoining farms and had a personal difficulty concerning the sufficiency of the line fence between their respective farms. On a certain Sunday in August, 1882, they met, quarrelled about the fence, and fought. Although they were both old men, it is but just to say they fought with great spirit and brutality. The defendant is the larger and probably the stronger man, and had the best of the fight. He gouged both eyes of the plaintiff, and it is claimed that the sight of one of them is permanently impaired. This action is to recover damages for such injuries. * * * The jury were also instructed as follows: 'If two, in anger, fight together, each is liable to the other for the actual injury inflicted. If you find that the plaintiff and defendant by common consent, in anger, fought together, and that the plaintiff was

actually injured in said fight by the defendant, the plaintiff is entitled to recover from the defendant the actual damages resulting from said injury, but not exemplary damages. This instruction is fully sustained by the authorities cited by counsel for the plaintiff. These are 2 Greenl. Ev., § 85; Comm. v. Collberg, 119 Mass. 350; S. C., 20 Am. Rep. 328; Adams v. Waggoner, 33 Ind. 531; Stout v. Wren, 1 Hawks. 420; Bell v. Hansley, 3 Jones Law (N. C.), 131; Exodus, xxi, 18, 19. These authorities go upon the principle that the fighting being unlawful, the consent of the plaintiff to fight is no bar to his action, and he is entitled to recover. We believe the rule is one of sound public policy, and we do not hesitate to ineorporate it into the jurisprudence of this State."

In Leonard v. Wells, Ch. Div., 50 L. T. Rep. (N. S.) 23, it was held that there can be no trade-mark in valvoline," and so "valvoleum" is no infringement. The court said: "The question I have to decide is whether that word was then a fancy word, and one which they could adopt and register as a trademark, and by so doing exclude the rest of Her Majesty's subjects, or whether it was only a descriptive word, and merely equivalent to 'valve oil,' and therefore incapable of being so registered. The late Master of the Rolls, when the word came before him in Re Horsburgh, certainly considered it was not a fancy word, but was simply the same as 'valve oil;' and from what I know of Sir George Jessel, I think that if he had been called upon to decide the point he would not have held that it was a word which could be registered by itself. But I need not rely upon obiter dicta of the Master of the Rolls, for since 1873 I am satisfied that the word has been used by the plaintiffs themselves as a word of description only, and not at all as a trade-mark. I find that

when they wish to have a trade-mark for their oil in America they take the word 'valvoline,' not by itself, but plus something else. And in like manner I find that when they began to sell the oil over here, and wanted to have a trade-mark in England, the mark which they registered was again, not the word 'valvoline' alone, but the device of a shield with valvoline' printed across it. The opinion

which I have formed upon hearing the facts— and for this purpose I take the facts as stated to me by is that from 1873 to 1878 the plaintiffs themselves the plaintiffs used that word as descriptive only, the word was indeed branded on their casks, yet and not as a trade-mark at all; and that although but the mark of the shield with the word 'valvotheir trade-mark was not the mere word 'valvoline,' line' across it; and further that the registration in 1878 was only effected in order to try to keep to themselves the word 'valvoline,' and not bona fide to register it as a real trade-mark. Then I have to consider, under these circumstances, whether in 1878 they could turn around and alter their position. By that time the word, even if it had ever meant any thing else, had come to mean merely oil used equivalent to 'valve oil,' was a word which could for lubricating machinery; and being thus simply not be used as a trade-mark to the exclusion of the describing the substance of which it is the name, rest of Her Majesty's subjects. It is a word merely and there is plenty of authority for holding that such a word cannot be registered as a trade-mark."

COMMON WORDS AND PHRASES.

CON

YONSENT. — Owners of property cannot be said to have given "consent" to the furnishing of labor and materials by a sub-contractor of a subcontractor, within a mechanics' lien law. Geddes v. Bowden, 19 S. C. 1. The court said: "The word 'consent' ordinarily implies choice, and one can scarcely be regarded as giving his consent to that which he has no right to object to. In the experience of life a man is oftentimes compelled to accept results, in the sense that he makes no opposition or objection thereto, for the reason that he has no right or power so to do, but he cannot, in any proper sense of the term, be regarded as consenting to them unless he has the right and the power to exercise a choice to consent or object thereto."

PROBABILITY. In Brown v. Atlanta, etc., R. Co., 19 S. C. 39, the court said: "It seems to us that there is a difference between probability and proof. The object of both words is to express a particular effect of evidence, but proof' is the strongest expression. All the dictionaries give different definitions of 'probability.' One of Worcester is, 'Likelihood of the occurrence of an event in the doctrine of chances, or the quotient obtained by dividing the number of favorable chances by the whole number of chances;' and one of Webster is, Likelihood; appearance of truth; that state of a case or question of fact which results from superior

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evidence or preponderation of argument on one side, inclining the mind to receive it as the truth, but leaving some room to doubt. It therefore falls short of moral certainty, but produces what is called opinion. Demonstration produces certain knowledge, proof produces belief, and probability opinion.'" So in State v. Jones, Iowa Supreme Court, December, 1883, the court said: "If it was made probable to the jury that the defendant was so far insane as not to be accountable for his acts, we think that he should have been acquitted. Worcester defines probable as having more evidence than the contrary.' Webster defines it as 'having more evidence for than against.' We think that it was sufficient if the evidence of insanity preponderated." FROM, IN. — Stealing "in a field," is not equivalent to stealing "from a field." 19 S. C. 140. The court said: "We think therefore that the real purpose in using the words from the field,' was to point to a particular kind of property, to-wit: the products of or outgrowth from the field, of the kind designated, before they were gathered by the owner, and not to the stealing of that kind of property in any particular locality. Thus, if a bag of corn taken from the owner's barn, or purchased in market, should be carelessly left by him in an open field, and stolen while in such field, the offender could not be indicted under this section of the general statutes because that would not, in our judgment, be the offense there denounced. The object of the statute was not to protect, specially, property which the owner had thus carelessly exposed to the depredation of thieves, because the common law afforded sufficient protection for that kind of property by an ordinary indictment for larceny, but the object was to extend special protection to a kind of property which the owner could not so carefully guard and protect from theft, as it must necessarily remain exposed in an open field until it could be gathered."

UNDERSTANDING.-This is not equivalent to "contract" or "agreement.” Black v. City of Charleston, 19 S. C. 412.

CULVERT. - In Omslee v. Baltimore and Ohio R. Co., 60 Md. 358, the court said: "The court did not think that the language, with the understanding that in constructing a culvert in said road, on its new location, it shall be placed so as to drain, as far as practicable, the former bed of said falis,' meant that an arched water-way of masonry, as usually understood to be its architectural meaning, was necessarily to be built and maintained. A culvert' was understood, in its ordinary and common parlance meaning, as a water-way, or waterpassage, whether of wood or stone, square or arched. It only meant that such provision should be made for the passage of the water that collected in the old bed of the river, through the railroad as newly constructed, as would drain, as far as practicable,' the old river bed." SURPRISE. - In respect to new trials, "is nearly allied to accident, which is a prominent subject for

equitable relief. 3 Grah. & Wat. on New Tr., 874. Of accident Mr. Justice Story says: By this term is intended not merely inevitable casualty or the act of Providence, or what is technically termed vis major, or irresistible force, but such unforeseen events, misfortunes, losses, acts or omissions, as are not the result of any negligence or misconduct in the party.' 1 Story Eq. Jur., § 78." Fretwell v. Laffoon, 77 Mo. 28.

CRUEL AND UNUSUAL PUNISHMENT. - Two years' imprisonment for false pretenses is not. State v. Williams, 77 Mo. 310. The court said: "The interdict of the Constitution against the infliction of cruel and unusual punishments would apply to such punishments as amount to torture, or such as would shock the mind of every man possessed of common feeling, such for instance as drawing and quartering the culprit, burning him at the stake, cutting off his nose, ears or limbs, starving him to death, or such as was inflicted by an act of Parliament as late as the 22 Henry VIII, authorizing one Rouse to be thrown into boiling water and boiled to death for the offense of poisoning the family of the bishop of Rochester. As was said in the case of James v. Commonwealth, 12 Serg. & Rawle, 220, 'it must be a very glaring and extreme case to justify the court in pronouncing a punishment unconstitutional on account of its cruelty.' If under the statute in question, a punishment by imprisonment for life of one who is convicted of the offense therein defined, should be inflicted, it might well be said that such punishment would be excessive, or rather entirely disproportioned to the magnitude of the offense, yet notwithstanding this, there is high authority for saying that the question whether the punishment is too severe and disproportionate to the offense, is for the Legislature to determine.' monwealth v. Hutchings, 5 Gray, 482."

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SCHOOL. "The term 'school,' ex vi termini, does not imply a restriction to the rudiments of an education. When contrasted with the term 'college' or ' university,' it may and ordinarily does imply a lower grade, but just where the one ends and the other begins, may not be easy to define. There is, in fact, as we all know, a great difference in the extent of education and range of learning that may be and often is taught in what are properly called common or public schools. There is also a wide difference between the range and extent of learning and erudition taught in different colleges, seminaries and universities." Roach v. Board, etc., 77 Mo. 484.

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OFFICE OR PLACE OF TRUST OR PROFIT. night-watchman of a Federal post-office building, appointed by the Federal treasury department, does not "hold an office of trust or profit under the United States." Doyle v. Aldermen, 89 N. C. 133. The court said: "We shall not make the attempt to define the precise extent of the word employed, after the unsatisfactory efforts of the counsel of the respective parties to do so; and we shall do all required in this appeal by assigning the place held by

the plaintiff on the proper side of the line which separates those employments in the public service which are, from those which are not, 'offices or places of trust or profit' in the sense of the Constitution. It is apparent from the association that 'places of trust or profit' are intended which approximate to but are not offices, and yet occupy the same general level in dignity and importance. The manifest intent is to prevent double-office-holding- that offices and places of public trust should not accumulate in a single person, and the superadded words of 'places of trust or profit' were put there to avoid evasion in giving too technical a meaning to the preceding word."

STATE. Includes "territory," within the acts of pilotage. The Ullock, 19 Fed. Rep. 207. CREDITOR.

One who pays the funeral expenses of an intestate is a "creditor." Lentz v. Pilert, 60 Md. 296. MANUFACTORY, FACTORY. - In Schoti v. Harvey, Pennsylvania Supreme Court, February 25, 1884, it is said: "The word 'factory' is a contraction of manufactory, which Webster defines to be a building or collection of buildings appropriated to the manufacture of goods. But a manufactory is something more than a building. It includes not only the building, but the machinery necessary to produce the particular goods manufactured, and the engine and other power requisite to propel such machinery. A building with only bare walls and a roof would no more be a manufactory than it would be a hotel. Such a building would be a mere shell, and would not impose the duty of erecting fireescapes upon any one."

OWNER. A tenant is not the "owner" within a statute requiring fire-escapes. Schott v. Harvey, Pennsylvania Supreme Court, February 25, 1884. PERSON OR PROPERTY. - A man's "pants" are a part of his "person or property," within a statute as to injuries by dogs. Schaller v. Conners, 57 Wis.

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Bridge. A pen of logs, with stringers and slabs, across a pond, may be a bridge. Board of Comr's v. Brown, 89 Ind. 48. The court said: "There can be no doubt that the structure, though somewhat simple and primitive in construction, constituted a bridge within the ordinary and usual meaning of the word. Any structure of wood, stone, brick or iron, raised over a river, pond, lake or across a valley, is called a bridge. It is thus defined by Webster. See also American Cyclopædia, vol. 3, art. Bridge."

TRAVELLER. - A man residing in P. county, extensively engaged in the stave business, having stave yards in various places in that and an adjoining county, and going from his residence in a buggy to and from these several places in attending to his business, and so engaged three-fourths of his time, being twenty-two miles from home, is a traveller," within the statute of concealed weapons. Borst v. State, 89 Ind. 133. The court cite the reporter's note, 25 Am. Rep. 652.

1. A lease of dwelling houses contained a covenant on the part of the lessee that he would not, without the consent of the lessor, carry on any trade in any house. He afterward converted one of them into a public house and grocery, and the lessor, with knowledge of it, received the rent for more than twenty years. The presumption was that the lessor had li censed this use. (1)

2. An action is brought on a contract for goods sold. The goods are proved to be liquors. The presumption is that the plaintiff was duly licensed to sell them.(2) "It is a maxim of the law of England," it was said in case 1, "to give effect to every thing which appears to have been established for a considerable length of time, and to presume that what has been done was done of right and not in wrong. That practically has caused a series of trespasses to constitute a right so that it may be said, a right has grown out of proceed ings which are wrongful. But in truth it is nothing more than giving effect to notorious and avowed acquescence. No person would have permitted a covenant to be broken for more than twenty years, unless he was aware that it was broken as a matter of right. It is not necessary in point of form to send the case to a jury to find the facts which the judge may tell them they ought to presume.'

RULE II. The performance of a mere moral duty is not presumed.

ILLUSTRATIONS.

A. sells goods to B. and B. sells them to C. C. sends his clerk to get them (they being still in A.'s possesise that C. would pay A. In an action by A. against sion), and they are delivered to the clerk on his prom

C. no presumption arises that the clerk communicated his bargain to C.(3)

"I am clearly of opinion," said Wells, J., in case 1, "that there was no evidence that C. authorized or ratified the promise made by his clerk. There being no original authority in him to make the promise, it was a thing done by him out of the ordinary scope of his duty; and although there was a moral duty cast upon him to communicate to his employer the fact of

his having made the promise, it was nothing more than a moral duty, and the rule omnia praesumuntur rite esse acta donec probetur in contrarium is never applied to such a duty as that. There is therefore no presumption, either that the clerk did or did not perform that duty; and in the absence of positive evidence that the promise was communicated to C., the jury would not have been warranted in assuming that it was merely because the evidence was equally consistent with either supposition."

RULE III. Documents regular on their face are presumed to have been properly executed, and to have undergone all formalities essential to their validity.(4)

1. A copy of an agreement in the hands of the opposite party is offered in evidence. It is objected that

(1) Gibson v. Doeg, 2 H. & N. 615 (1857).
(2) Horan v. Weiler, 41 Penn. St. 470 (1862).

(3) Fitzgerald v. Dressler, 7 C. B. (N. S ) 375 (1859).

(4) Freeman v. Thayer, 33 Me. 76 (1851); Munroe v. Gates, 48 id. 463 (1860); see Stevens v. Tafft, 3 Gray, 487 (1855); Sadler v. Anderson, 17 Tex. 245 (1856); Diehl. v. Emig, 65 Penn. St. 327 (1870); Roberts v. Pillow, 1 Hempst. 631 (1851); Re British, etc., Assurance Co., 1 DeG., J. & S. 488 (1863); Lane's Case, id. 504.