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The Albany Law Journal.

UND

ALBANY, APRIL 26, 1884.

CURRENT TOPICS.

course of decisions has established distinctions which cannot now be disregarded. The Queen's Bench Division were, no doubt, compelled to give effect to those decisions. But although certain points have been decided, the general principles that govern the liability of owners of animals for the acts of such animals have never been so clearly elucidated as might be desired. It would appear that the question of liability for acts of trespass on realty by animals does not stand entirely on the same footing as the question of liability for acts of animals causing personal injuries. It would seem, as far as one can judge from ancient dieta, that with regard to trespasses to realty the original notion was that dogs being in general harmless but wandering animals,

ant, Swan. The plaintiff was in the hole in a bent attitude, when one of these dogs, which was a large Newfoundland dog, jumped over the wall and fell into the hole upon the neck or back of the plaintiff, causing him the injury for which he sued. The County Court judge nonsuited the plaintiff, and the Divisional Court confirmed his ruling. The lord chief justice appears to have treated the contention [NDER the title of "Dissenting Magazine Artiof the plaintiff's counsel that the defendant, Teape, cles," the New York Daily Register has some was liable for the acts of the dogs as an absurdity, remarks on Justice Stephen's recent article in the but if the matter were res integra we must confess Nineteenth Century on the law of blasphemy, as lately we do not see any such great absurdity in the case. expounded by the lord chief justice. The Regis- It must be admitted, however, that the matter canter says: "Perhaps this method would have some not, at the present day, be dealt with solely on advantages. It looks odd, and would continue to grounds of expediency or reason, and that a long look odd, no matter how often practiced; but there is this in its favor— that in this way the judgment of the court is embodied in the reports as an authoritative declaration of the law of the land, qualified only by the indication that 'Justice S. dissented,' and the dissent would be spread abroad in the public journals in an ephemeral form, where it would reach the public more freely, and the views of the dissenting judge would have opportunity to win their way in public approval and react on public opinion, not authoritatively, nor by way of impugning the authority of the decision, but as forming part of the great body of that general judgment on affairs of public concern by which judges, like all other officers, must, and ought to be, in a proper degree influenced; and especially would have a better opportunity to influence legislation. There would be this serious disadvantage that some judges might be tempted to dissent for the purpose of raising an issue on which to make an exposition of their views when the question was one appealing to the interest or sympathies of any large class of the public.' We greatly doubt the taste and the policy of such publications. They are less to be deprecated, however, than the publication of dissenting opinions in the reports. Indeed, we have always been opposed to the publication of any indication of dissent in the reports. If the law is settled in a given manner by a certain decision, the announcement that such was the judgment of only a part of the court can answer no purpose except to aid in unsettling the law and encouraging litigation. There have been in recent times in England some very undignified displays of judicial temper in mag-biting him had knocked him down? Then, if not, azines and newspapers. (This remark does not at all apply to Justice Stephen.) On the whole it is perhaps best and safest for the judges to keep out of print except in the reports.

The recent case of Saunders v. Teape, in the Queen's Bench Division, is a welcome addition to Our "animal kingdom in court." The Solicitors' Journal makes the following statement and remarks: "The plaintiff, a laborer, was employed in digging a hole in the garden of a house adjoining Teape's garden, and separated therefrom by a wall only three feet high. The defendant, Teape, kept three dogs which were out under the care of the defendVOL. 29-No. 17.

it would not be reasonable to make their owners

responsible for every act of trespass committed by them, whereas it was otherwise of animals such as oxen or horses. But with regard to trespasses to the person, apart from trespasses to realty, the question seems to be somewhat different. It would seem that in these cases, both with regard to cattle and

dogs, to support an action proof must be given that

the animal was mischievous to the knowledge of the defendant. It does not appear that any question of trespass to realty arose in the case we are discussing. It would rather appear that the plaintiff was a laborer employed in the defendant's neighbor's garden. It is clear if the dog had jumped over and bitten him he could not have recovered without

proof of the scienter or knowledge that the animal was of a mischievous disposition. Could it be put higher if the dog had jumped over and instead of

does the fact of the accident arising from the dog falling into the pit instead of colliding with the plaintiff while standing above ground make any

difference? We cannot see how it does. If it were not for previous decisions, however, we are not at all convinced, that as a matter of abstract justice it is so absurd that a man should be responsible for keeping his dogs from doing damage, whether to his knowledge mischievous or not. What is the proper test of mischievousness for this purpose? When a big, powerful animal like a mastiff or Newfoundland dog knocks down or falls on a man and breaks his bones, it is very immaterial to the person who is injured whether the dog did it in

innocent play and lightheartedness or because he cial usurpation · -a part of a system of usurwas of a mischievous disposition. The question, as pation by which the Federal judges on the Pacific it seems to us, ought, in justice, to be whether the coast are slowly and surely suppressing the rights of animal is, from its general character, likely to be in those States. Our judgment is that it never was infact dangerous, not whether the mischief proceeded tended by Congress that the Federal judges should from a mischievous disposition or not in the partic- have any jurisdiction in this matter whatever. The ular animal; and if so, it would appear to us to be matter of surrendering fugitives from the justice of equitable that the person who keeps such an animal other States is a matter which belongs wholly to the for his pleasure or profit should be responsible for States. It belongs to them in their sovereign charnot preventing him from doing mischief. The truth acter. It is true that it is an obligation imposed is that our old law on the subject is too undiscrim- on them by the Constitution of the United States; inating. For instance, it puts all dogs in the same but it is a preposterous idea that the governors of category as if they were for this purpose essentially the States should be subjected to the superintendsimilar; as if a lady's lap-dog was like a boar-hounding jurisdiction of the Federal judges. If the idea or mastiff, strong enough to encounter a powerful had been mentioned in the early days of the Constiwild beast." tution, it would have been scouted."

The Canada Legal News gives the following comparative statistics of advocates and other professions and occupations in that country: "The census statistics of Canada, which have just appeared, give the number of advocates in 1881 at 2,717, against 2,212 in 1871. It appears, therefore, that there is one advocate for every 1,584 of population. This proportion is not nearly so considerable as in the case of the other learned professions, the number of physicians being 3,507 in the year 1881 against 2,792 in 1871; while of clergymen there were 6,329 in 1881 against only 4,436 in 1871. This is exclusive of 491 Christian Brothers who have more than doubled in the decade, there being only 205 in 1871. The 'nuns' also exhibit a remarkable increase, the number being 5, 139 in 1881 against 2,907 in 1871. While the increase in these sacred vocations has been, so to speak, by leaps and bounds, we nevertheless required 1,313 policemen in 1881 against 446 in 1871. The band of teachers exhibits a normal and satisfactory increase from 13,400 in

1871 to 19,232 in 1881. We are not concerned

about other figures of the tome, which somewhat tardily makes its appearance three years after date. We only note that the hackneyed jokes at the expense of the plumber, far from deterring the rising generation from turning their attention to that lucrative occupation, have almost trebled the num bers within its fold, there being 1,307 in 1881 against 526 in 1871."

A correspondent assures us that the author of "Eternal vigilance is the price of liberty" is unknown. So it seems, as far as heard from. Was it not one of our revolutionary fathers - John Adams, possibly?

Mr. Alfred Clarke, of the San Francisco bar, has published a pamphlet on Inter-State Extradition, in re Robb, in answer to Dr. Spear's criticism, ante, 209. We should be glad to republish it if we had space for the discussion to which it would probably give rise. The pamphlet is issued by A. L. Bancroft & Co., of San Francisco. The American Law Review says of this decision: "It is, in our deliberate judgment, a flagrant piece of judi

Judge Brewer, of the Kansas Supreme Court, having resigned his office to accept that of United States Circuit judge of the eighth district, writes a letter of farewell to his late associates, in which he says: "The court has, thanks to your faithful and unremitting labors, been enabled to keep even with the constantly increasing volume of its duties; we have met on the first of each month, and called every case on the docket; and within a few weeks in each case the opinion has been filed. The law`s delay' has to the litigant in Kansas courts become an obsolete phrase. To-day I leave you with a clean docket. Every case submitted prior to the first of March has been decided, and my successor comes on to an open field." Judge Brewer is an able and conscientious jurist, and his appointment to the Federal bench is recognized as in every way a fit one.

adjourn for the funeral of the Duke of Albany, the In reply to a suggestion that the court should lord chief justice remarked that "truest respect we those of her subjects who throng these courts." He can pay to her majesty is to administer justice to therefore declined to adjourn the Court of Crown Cases Reserved. The other courts, we believe, adjourned. The legal press censure the action of his lordship observing, "much the same remark might be made as to every institution which was closed on Saturday last." Still, it seems hardly fair to keep prisoners in jail or on bail out of respect to the queen or her deceased son.

It seems a singular state of society where a lawyer beats a judge almost to death, and the community is equally divided on the question whether the judge can be re-elected unless he murders or challenges his assailant, and the judge's wife announces that if her husband does not kill him she will. And yet this is the state of society in Kentucky at the present moment. It must seem singular to those foreign nations to whom we are continually calling to look at us and to follow us and come to us, and lay aside old-world ways. This we suppose is true democracy - to show judges that they cannot be allowed to put on airs or gowns or any such badges

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Right across the river, too, in Cincinnati, we have another disgraceful exhibition of the disorders of society in the developments about the jury in the Berner case. If these reports about the conduct of the jury are true, they show a terrible state of demoralization in the administration of criminal justice. But it does not mend matters to rush out and commit more murders and burn and destroy in the madness of a justly offended public sentiment. Let the officers of justice, if they have any in Cincinnati, get hold of the corrupters of the jury- the “fixers " and the fixed — and punish them, and try and work a general jail delivery, and having wiped the slate clean, commence on a new and more prompt and summary plan.

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NOTES OF CASES.

HE Ellsworth (Me.) American brings us an ac

ing, killing and destroying " a deer. The objection of duplicity was overruled, Chief Justice Peters holding that the words in question substantially state a single offense. Mr. J. D. Pulsifer, late State reporter, appends the following remarks: "The points taken in the indictment for hunting, killing and destroying deer suggest a topic for the reporter to ventilate some cheap etymological learning upon. It is matter of common learning, merely stated here as a postulate, that modern English is made up mainly of Latin and Anglo-Saxon, two languages in one, that we have a multitude of synonyms which were real synonyms to start with, half of them derived from Norman, French or Latin, and half from Anglo-Saxon. The legal phraseology is full of those synonyms. After the Norman Conquest, Frenchified Latin was the language of the court, which after some 300 years gave place to purer Latin, and then to composite English. In the course of these changes there were two sets of citizens to be informed of the laws and legal instruments and records, and all important words ran in pairs, and this fashion, then necessary, is continued as a linguistic trick, whether necessary or not; thus in this statute it is not enough to kill a deer, he must be killed and destroyed. Kill is Saxon, destroy is Latin. The same distinction in an indictment for murder, the double phrase is to kill and murder (Saxon); so assault and battery, the former Latin, the latter Saxon; so we have 'will' and 'testament,' not synonyms, but words from two languages applied to the same thing. It would be curious and interesting to examine writs, pleadings, indictments, deeds, contracts, etc., and see innumerable illustrations of these Latin and Saxon pairs."

Very appropriate to this season is Phanix Iron v. Samuel, Pennsylvania Supreme Court, Jan. 29, 1884, 41 Leg. Int. 156, holding that parol evidence is competent to explain the meaning of "early spring" in a written contract made in England. The trial court had charged as follows: "It was contended during the argument that as there was no evidence that any of the words in these contracts of sale were used technically as words of art, or with reference to the usage of the iron or any other trade, it was the duty of the court to say what the words meant, as being words of that English language which we speak in common with the people of England, where one of the contracts was made, and to say, moreover, what was the effect of the words viewed in their relation to each other. There can be no doubt that such is the general rule, that is to say, that the court should, ordinarily, taking written words in their [common acceptation, interpret the instrument as a whole. Certainly upon the impression which I had when this case was first opened I should have had no doubt as to the popular and general signification of the term 'spring,' as applied in England and this country, to the designation of time, and consequently would have thought it my duty to instruct you as to its meaning as used in this contract. It would appear however from the testimony, that spring' is used not merely scientifically but popularly in different senses, and that its meaning varies with the circumstances. As defined by some of the most eminent lexicographers it is the 'vernal season,' or 'the season when vegetation generally begins.' As used in astronomy it dates from the 21st of March, when the sun enters the constellation Aries. Had both these contracts been made in this city I should have been confirmed by the evidence in the impression which I entertained in the first instance, that spring, as used popularly in the United States to designate one of the four seasons, means March, April and May. No doubt spring may be used in the sense given by Dr. Johnson as the vernal season, or, as when the poet wishes for the wings of a bird to travel around the globe, 'companion of the spring,' and will then necessarily imply that spring is not restricted to any particular time. But it appears to me that when spring is used in the United States to designate the period at which work is to be done or goods delivered, it should be understood as referring to March, April and May, and if I do not so inform you in this instance it is in view of other considerations which induce me to leave the meaning of the term 'early spring' to you as a question of fact. The meaning of the word spring,' relatively to the case in hand, is complicated by an inquiry as to the sense in which that term is understood in England, and consequently presents a question which, so far as I am aware, is altogether novel. That question is, England being a foreign country relatively to us, although we are for the greater part descendants of the English race, and speak the same language, what is the province of the court in defining the

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meaning of English words as used in an English contract when that contract is brought to the United States for interpretation? The plaintiff's counsel said frankly in argument that presumably the meaning of English words was the same in both countries, and deduced the inference that the testimony taken in London was directly relevant here. In this aspect it would be my duty to instruct you that if the general acceptation of the word spring in the United States is March, April and May, such presumably is the sense in which it is understood in England. I do not think however that the court can arrive at such a conclusion in all cases as matter of law, because we know, as matter of fact, that certain words are used in different senses in England and the United States. The word 'clever,' the word 'stage,' and the word sick,' may be referred to as instances of a divergence for which we on this side of the Atlantic are not exclusively responsible. You have heard the evidence, and you will say, so far as the meaning of the word 'spring,' as used in the contract which was made in London between the Messrs. Sanders and the plaintiff, bears on the interpretation of the contract between the plaintiff and the defendants here, whether the word as used in the English contract meant, as the plaintiff contends, a period dating from the 21st of March, or as the defendants would have it, beginning on the 1st of that month. There is the more reason for supposing that the word may differ in meaning in this country from the sense in which it is used in England, because the climates are not the same. There is probably no part of the United States, except it may be Florida, which is a comparatively recent annexation, where the leaves put forth earlier than the 1st of March, and none where they are not fully developed by the end of May, and hence those months may well be considered as including the vernal season,' or that when vegetation begins and is matured. This cause, however, depends not merely on the meaning of the word 'spring,' but on what we are to understand by 'early spring,' which is obviously still more indefinite. It is not less clear that to know what is early spring we must first determine the meaning of spring. If you believe that when a man agrees that he will perform certain work in the spring, he has from the 21st of March to the 21st of June to fulfill the contract, you will be led to a different conclusion as to what is early spring from that which you would arrive at if you believed that spring begins on the 1st of March and ends on the 1st of June, and as I cannot tell what meaning you will attach to the word spring, it is not easy for me to aid you in arriving at the meaning of the words 'early spring.' Two views may be suggested as more or less appropriate. Whether we regard time as divided into a beginning, a middle, and an end, or simply as of but two parts without a middle, the line between late and early must be drawn somewhere. Agreeably to the former division, one who speaks of 'early spring' must be understood as referring to a period anterior to an

intermediate period, which is neither late nor early, and hence if spring consists of March, April and May, and April is the middle, early spring would be limited to the month of March. If, on the other hand, spring is regarded as consisting solely of two periods, it is not easy to say where we ought to draw the dividing line, but it would seem that it should be somewhere near the middle, and that the first half should be regarded as early. In this aspect of the question early spring would terminate on the 15th of April, and the 24th of the month would be late."

In Reg. v. Labouchere, Q. B. Div., Feb. 9, 1884, 50 L. T. Rep. (N. S.) 177, it was held that a criminal information will not lie for a libel upon a deceased person. The judgment of the lord chief justice, and Denham, Field, Hawkins and Mathew, JJ., was delivered by the lord chief justice, who said on this point: "Next, as to the point that the subject of the libel is dead, the authorities are not absolutely conclusive, but it seems to us that the weight of authority inclines upon the whole in favor of the objection. The locus classicus upon this subject is the judgment of Lord Kenyon in Rex v. Topham (4 T. R. 126). Lord Kenyon there points out (at p. 128) that the general statement in 5 Rep., in the case de libellis famosis (5 Co. Rep. 125), that publications defamatory of dead persons are libellous, was a statement extra-judicial, that it was not the point in judgment, and that the judgment might well have been sustained without going into it. He shows further, that the passage in Hawkins (Hawk. P. C., book 1, ch. 73, § 3), which deals with informations as well as ordinary indictments, puts the whole criminalty of libels, as distinguished from the civil liability of those who publish them, on private persons, on their tendency to disturb the public peace. Hawkins, indeed, in a passage immediately following the words quoted by Lord Kenyon, puts his own view beyond all doubt, and shows that he would have discouraged, or even disallowed many of the indictments for libel- to say nothing of informations - with which the courts of late years have been occupied. For he says: 'The court will not grant this extraordinary remedy by information, nor should a grand jury find an indictment, unless the offense be of such signal enormity, that it may reasonably be construed to have a tendency to disturb the peace and harmony of the community. In such a case the public are justly placed in the character of an offended prosecutor to vindicate the common right of all, though violated only in the person of an individual; for the malicious publication of even truth itself' (this was written when truth could not be pleaded to an indictment) 'cannot in true policy be suffered to interrupt the tranquillity of any well-ordered society.' The case, Rex v. Paine, in Carthew, 405 (a strange and unsatisfactory case, and very loosely reported), Lord Kenyon explains, as he does also Rer v. Critchley (4 T. R. 128, in note), by stating that in both cases an intention to subvert and slander the

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government of the country was charged in the indictment, and he supports both cases distinctly on this ground. It may be doubted, if the cases are looked at, whether Lord Kenyon did not support the decisions (what the actual decision in the case in Carthew was does not appear) upon grounds which the judges who decided them did not think of, and which most certainly they did not state. The libel in Rex v. Paine (Carthew) was on King William, who was alive, and Queen Mary, who was dead; the case, therefore, is a very weak one on the point now before us in any view of it. The libel in Rex v. Critchley, stated of a certain Sir Charles Nicoll, who was dead, that 'he changed his principles for a red ribbon, and voted for that pernicious project the Excise.' This was the whole libel, and Lord Kenyon may well have been puzzled to uphold the propriety of a criminal information in respect of it, even though the deceased Sir Charles was the father of the wife of a secretary of state. But in the case itself, in which the libel on a deceased Lord Cowper was of the most virulent possible description, imputing to him unmanly vices and debaucheries,' Lord Kenyon, after time taken to consider, with the assent of Buller, J., who had tried the case, arrested the judgment, on the ground that it was not the subject-matter of indictment for libel to asperse the memory of the dead unless it was done with a design to break the peace. The court of King's Bench, in the case of Rex v. Topham (4 T. R. 126) appears to assent to the principle laid down by Hawkins, that private character is to be vindicated by private action, and that an indictment or information for libel is then only to be justified where there are some incidents in it which concern the public, such as an attempt to injure the government, or an intention or tendency to break the public peace. This necessity of the person who applies for the criminal information being himself individually aspersed, is laid down in very strong terms by Patterson, J., in Reg v. Mead (4 Jur. 1014). There is no instance of an action for libel by the representative of a deceased person; it must be some very unusual publication to justify an indictment or information for aspersing the character of the dead. If such a case should ever arise, it must stand upon its own footing. But this is not that case, and on this ground also we should, in our discretion, decline to intefere."

CODIFICATION OF THE COMMON LAW.

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ITH all those who write upon this topic it is apparent that a lurking fear of some despotic influence tinges all their ideas. Even Blackstone, while professing his just and high regard for the civil law, and his thorough persuasion of the general excellence of its rules and the usual equity of its decisions, declares that we "must not carry our veneration so far as to sacrifice our Alfred and Edward to the names of Theodosius and Justinian; we must not prefer the edict of the prætor or the rescript of the Roman emperor to our own immemorial customs," etc. When however we reflect that these same "immemorial cus

toms"

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have all the force of law, and are laws binding "that fall within their reach, it is difficult to perceive any very good reason why such immemorial customs" could not be crystallized and perpetuated in brief and intelligible language. This would be simply the expression of the law of the people, [and when so expressed could be sanctioned by the people as an authoritative expression of those "immemorial customs" for the people as a guide for all future transactions.

If therefore learned men shall duly arrange a list of these immemorial customs" in proper form and order, the result would be that dreadful thing, a code, and it would make no difference, in effect, whether such expression of the law of custom was compiled for a Theodosius or Justinian, and sanctioned by an emperor, or by commonplace codifiers named by an elected governor, and whose work should be approved by those capable of recognizing its truth and fidelity. That the task of codifying the "common law" or the results of custom modified by equitable requirements of special circumstances is admittedly difficult, but that it would be beneficial, cannot be doubted. It must not be forgotten that in our American sovereignties the "immemorial customs," which form so large a part of English law, have nearly all of them been already sanctioned by legislative statutes.

The first requirement is of course that the codifier must know what is the law of the land, for either we must admit the possibility of such knowledge, or deny the existence of any such law. If no codifier can be found with this knowledge, then we must wait for the hour and the man; but the only reasons why the work caunot now be done must lie in ignorance or incapac. ity, or the non-existence of the law itself. Blackstone describes the common law as that "ancient collection of unwritten maxims and customs which is called the common law, however compounded or from whatever fountains derived, and says it had subsisted immemorially in this kingdom; and although somewhat altered and impaired by the violence of the times, had in great measure weathered the rude shock of the Norman conquest." He declares that the then clergy in particular were remarkable for their proficiency in the study of the law, but that after the conquest the foreign clergy did not like it, because it was unwritten, and preferred the civil, which they brought and taught in England.

It will be noted in this connection that the common law in a measure fell into disuse, because it was unwritten, and the conclusion can hardly be avoided that it would have maintained its supremacy had it been reduced before the conquest to that fixed expression. Whether it does not run the same danger now in our changing populations, with such a large influx of immigration hostile to our traditions and sentiments, is a matter for reflection. Certainly that danger will be eliminated if the new-comers are required to adapt themselves to us and our laws, and not seek to impose upon us their alien substitutes.

Blackstone says that the Roman clergy brought over and taught the civil law, but that in the time of King Stephen the laity remained wedded to the common law, which was a "mild and rational system;" and the fact that the laity of those days were unacquainted with the mysteries of reading and writing will account for the disadvantage of their system in the contest with that of the clergy. It may be of interest to the laity now, in face of the immense strides of that same clergy" in our country to remove this disadvantage from our common law.

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The seventeenth section of the Constitution declares that "such parts of the common law and of the acts of the Legislature of the Colony of New York as together did form the law of the said Colony on the 19th of

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