how it has lost its authority in other courts. He closes as follows: "If Chief Justice Marshall had seen fit to follow the ideas of the Supreme Court of New Hampshire in its previous decisions of the same case, and to adopt expressions like the following: The creation of a corporation is a legislative grant, issued under its powers of sovereignty, and revocable at will. It is of the nature of a license or permission to an aggregation of persons to do certain things as a unit, usually embracing also the conferring of powers of a public nature, to be used in the apprehension of the Legislsture, for the public good. In case (which is rare) of remuneration made to the State for the grant, the payment is in the nature of a license fee. In case (which is usual) of no consideration moving to the State, an essential element of a contract is lacking. With the ethics of the matter we have nothing to do. Unless the State in a charter stipulates that it will not alter, amend or revoke the grant, no contract on its part that it will not do so is implied in the act of incorporation, any more than in acts of Parliament which are confessedly repealable and amendable without restraint. If, I repeat, language like the foregoing, every sentence of which finds its parallel in some later expression of the Supreme Court, had been used by Chief Justice Marshall in the Dartmouth College case, the vast expense and controversy which have ensued would have been saved; the same result, since reached by judicial "construction," and by the express reservation of the right to alter, amend or repeal, would have been at once attained; and such language, if used by the Supreme Court of the United States in the decision of an actual cause, would ipso facto have been true." rational religion, and the source of the only solid and imperishable glory which nations can acquire; and for as much as literature and philosophy furnish the most useful and pleasing occupations, improveing and varying the enjoyment of property, affording relief under the pressure of misfortune, and hope and consolation in the hour of death; and considering that in a commonwealth where the humblest citizen may be elected to the highest public office, and where the Heaven born prerogative of the right to elect and to reject is retained, and secured to the citizen, the knowledge which is requisite for a magistrate and elector should be widely diffused." Very likely General Harrison drew that preamble; he prided himself on his "style." Some of the Latin phrases are spelled in an unconventional manner, as ownus probandi," "habias corpus," "scira facias," and once in a while the English is peculiar, as "speritous liquors," "judge of probat," "foregn county," "referrees." The sheriff had $7.50 for executing a criminal, and twenty-five cents a day for "dieting a prisoner," and each juryman that "sets on the body" got ten cents and five mills. NOTES OF CASES. N Leggett v. Rome, etc., R. Co., 41 Hun, 80, an IN road, it was held that the plaintiff was not limited action of damages for failure to fence the railto damages arising from the killing of stock, but could recover for deprivation of the use of his pasBarker, J., said: "The defendant places its deture land in consequence of the failure to fence. fense upon the single legal proposition that the statute has limited the landowner's right of action for The first of the "Indiana Historical Society damages against a railroad corporation, arising Pamphlets," on "the Laws and Courts of North- from its neglect to erect and maintain a fence, to a west and Indiana Territories," by Daniel Waite class of cases where the damages are caused by Howe, comes to us at the same time with a reprint killing or injuring cattle, horses or other animals of the Laws of the Indiana Territory, 1801-1806 by the engines or agents of the company. In this inclusive," and both have considerable historical contention I do not concur, and am of the opinion interest. The reprint is as nearly as possible a fac that the adjacent landowner may recover in a comsimile, and a very neat piece of work. General mon-law action all the damages which he may have Harrison was governor of the territory. The pub- sustained by reason of the neglect of duty imposed lishers should send a copy to Prof. Baldwin, whose upon the corporation by the statute. In this case heart would be strengthened by observing that the omission imputed to the defendant is the fail"thirty-nine lashes on his or her bare back, well ure to build a fence. The loss claimed to be suslaid on, at the common whipping post, "" was tained by the plaintiff is the diminished value of denounced against runaway servants, and "not less the use of the pasture field for the period the fence than fifty nor more than two hundred stripes" for remained unconstructed. If it is made to appear, stealing any "Horse, Mare, Gelding, Mule or Ass." in view of all the facts of the case, that the damThe preamble to an act to incorporate a university ages sustained are the natural consequences of the is a piece of fine hifaulutin-"Whereas the inde- omission, then a perfect right of action was made pendence, happiness and energy of every republic de-out, and the judgment should be sustained. One pends (under the influence of the destinies of Heaven) upon the wisdom, virtue, talents and energy of its citizens and rulers; and whereas, science, literature and the liberal arts contribute in an eminent degree to improve those qualities and acquirements; and whereas, learning hath ever been found the ablest advocate of genuine liberty, the best supporter of of the objects of this statute, requiring the corporation to erect a fence, is the protection of the public, for whose use, as a means of travel and transportation of goods, the company was permitted to construct the road, as the safety of their lives and property requires that all animals should be kept from the tracks traversed by its engines and cars. Nichols, 64 N. Y. 73. The public interest in the highway is nothing but an easement which gives to individuals the right to pass and repass on foot, or with animals and conveyances, and as an incident, they may do all acts necessary to keep the highway in proper repair for traveling purposes. Kelsey v. King, 33 How. Pr. 39. Any use of a highway except for the purposes of traveling, and the making of necessary repairs under the direction of proper authorities, constitutes a trespass against the adjoining owner. Jackson v. Hathaway, 15 Johns. 447; Adams v. Rivers, 11 Barb. 390. And actions of trespass or ejectment may be maintained therefor. Bloomfield Gas-light Co. v. Calkins, 62 N. Y. 386. The Legislature undoubtedly had the power to authorize the village authorities to pass ordinances and by-laws (which they might enforce) limiting and restricting the use which the public might make of the streets beyond their rights of travelordinances which could be enforced as against the adjoining owners themselves, for the purpose of keeping the streets open to free and uninterrupted travel. But the Legislature had not the power, neither had the municipal authorities, as against the adjoining owner, to confer upon any person the right to make use of the highway for any other purpose than to pass and repass without the consent of the owner of the fee. Williams v. N. Y. C. R. Co., 16 N. Y. 97; Henderson v. Same, 78 id. 423; Knox v. Mayor, 55 Barb. 404; People v. Mayor, 59 How. Pr. 277. As the by-laws in question afforded no protection to the defendants for the acts of trespass, committed as against this plaintiff, the evidence was properly excluded." To the same effect is Branahan v. Hotel Co., 39 Ohio St. 333; S. C., 48 Am. Rep. 457. But I think that the Legislature had also another object and purpose in view, and that was to enable adjacent landowners to use and occupy their lands in the same manner and as advantageously as they could if the road had not been constructed. Without a fence sufficient to turn domestic animals it is obvious that pasture lands adjacent to a railroad land would have less rental value. It is the general custom in this country for farmers to allow their cattle to roam in the pasture field day and night during the season of pasturage, and to go unattended by a herdsman. The danger of cattle being killed or injured by passing trains is not the only reason why the rental value of lands would be diminished, without a fence sufficient to keep them off the tracks, but the chance and probability of their roaming away and becoming strays on the premises of others would be very great. If such an occurrence should happen that the cattle should be trespassers upon the lands of others the owner of the cattle could not resist the claim of the injured party for damages, on the ground that the railroad company had not constructed a fence on the sides of its road, as required by statute. The words of the statute until such fences and cattle-guards shall be duly made the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses or other animals thereon,' were not inserted, as I think, for the purpose of limiting the liability of a railroad corporation to the particular cases enumerated, but were so inserted so as to embrace that very class of cases, and bring them within the limit of its liability to adjacent landowners in case of injury to their cattle should they happen, in the manner indicated, to be injured by reason of the omission to erect fences. The Legislature has declared some of the consequences which result to the railroad corporaIn Reg. v. Latimer, 54 L. T. R. (N. S.) 768, the tion by an omission on its part to comply with the prisoner struck A. with a belt, intending to injure requirements of the act, but not all of them. The him, and it bounded off and struck B., whom he question, as now presented, has not been heretofore did not mean to hit. Held, that he was liable for an passed upon by the courts in this State, but it assault on B. Lord COLERIDGE, C. J., said: "I am would seem as if the intention of the Legislature to of opinion that this conviction must be sustained. give the adjacent landowner the benefit and proIn the first place, it is common knowledge, that if a tection which a fence of the height and strength person has a malicious intent toward one person, and required by statute secures to him is clear and cer- in carrying into effect that malicious intent he intain. The statute contains no negative words lim-jures another man, he is guilty of what the law coniting its liability to the cases enumerated, and the words used should not receive the limited meaning contended for by the defendant." In McCaffrey v. Smith, 41 Hun, 117, it was held that neither the Legislature nor a village can confer authority on a person to occupy part of the public street as a hack stand as against the adjacent lot owners. The court said: "The plaintiff is the lessee of the hotel and premises, and as such was in the actual possession and occupation thereof at the time the acts complained of were committed, and he was entitled to have the highway adjoining and in front of such premises kept free from all obstructions and nuisances. White's Bank of Buffalo v. siders malice against the person so injured, because he is guilty of general malice; and is guilty if the result of his unlawful act be to injure a particular person. That would be the law if the case were res integra; but it is not res integra, because in Reg. v. Hunt, 1 Moody C. C. 93, a man, in attempting to injure A., stabbed the wrong man. There, in point of fact, he had no more intention of injuring B. than a man has an intent to injure a particular person who fires down a street where a number of persons are collected, and injures a person he never heard of before. But he had an intent to do an unlawful act, and in carrying out that intent he did injure a person; and the law says that under such circumstances a man is guilty of maliciously wounding the person actually wounded." Bowen, L. J., said: "I am also of the opinion that this conviction should be affirmed. It is quite clear that this offense was committed without any malice in the mind of the prisoner, and that he had no intention of wounding Ellen Rolston. The only difficulty that arises is from Reg. v. Pembliton, which was a case under an Act of Parliament which does not deal with all malice in general, but with malice toward property; and all that case holds is, that though the prisoner would have been guilty of acting maliciously within the common law meaning of the term, still he was not guilty of acting maliciously within the meaning of a statute which requires a malicious intent to injure property. Had the prisoner meant to strike a pane of glass, and without any reasonable expectation of doing so injured a person, it might be said that the malicious intent to injure property was not enough to sustain a prosecution under this statute. But as the jury found that the prisoner intended to wound Chapple, I am of opinion that he acted maliciously within the meaning of this statute." Field, J., said: "I am also of the opinion that this conviction must be affirmed. I think this a very important case and one of very wide application, and am very glad that it has come before this court, and has been carefully considered and decided so that there may be no doubt about the matter." THE rule which requires the judge to charge the jury only in writing came into vogue at a period before the advent of the court stenographer. The real object of the rule was to enable counsel to get a fair bill of exceptions. But now, notwithstanding the intervention of the stenographer, the rule is maintained, and we have often this incongruous result, that the evidence is delivered to the jury by witnesses orally or read to them from depositions, but they are not allowed to take these depositions with them to the jury room; while the charge of the judge applying the law to this evidence must be given in writing so that they can take it to their room and consider it. Now it is just as important that the jury should take with them the evidence in writing as it is that they should take with them the judge's instructions as to the law in writing. It is just as essential that they should have the evidence before their eyes in making up their verdict as to have the instructions applying the law to the evidence. But we have sometimes in the same jurisdiction this inconsistency, that it is ground for a new trial if the judge allows the jury to take with them on their retirement the written depositions which have been read in the cause, or if he fails to instruct them in writing so that they can take with them to their retirement the instructions which he gives them. The presence of a stenographer renders it no longer necessary for the judge to reduce his instructions to writing, in order that the unsuccessful tions; and it should seem that the statutes which party may have them fairly embodied in his excepmake it imperative upon the judge to charge the jury in writing should be qualified by the proviso that this should not be necessary where there is an official sten ographer by whom the charge, if delivered orally, may be reduced to writing, or where the parties may have provided themselves by agreement with a stenographer to report the trial. The most valuable safeguards against judicial carelessness, oppression or corruption have been found in the rule which requires the judge, at least in important cases, to give his reasons for decisions in writing. This practice is known to be so important a check upon hasty and perfunctory work by appellate courts, that in some of the States the judges of these courts are prohibited from rendering oral decisions. Moreover, the experience of the legal profession justifies the statement that the decisions of courts presided over by the most eminent judges have comparatively little weight when not supported by satisfactory reasons publicly given. A rule which has been found so important a safeguard to the carefulness and integrity of judges must be an equally important safeguard to the carefulness and integrity of juries; and it is a just conclusion that if juries could be required to give their reasons for their verdicts, a great many of the anomalous, absurd and unjust verdicts which are returned by them would not be returned. The public judgment has become so thoroughly impressed with this fact that in several of the States statutes now exist under which it is the privilege of the judge or of either party to require the jury to answer certain interrogatories applicable to the issue as well as to return a general verdict. The statutes generally provide that if the general verdict is inconsistent with the answers to the interrogatories, a new trial shall be granted or that the particular answers shall control the general verdict. In other words the jury are not allowed under this system to find that certain facts have or have not existed, and then to return a controlling general verdict according to affection, passion, prejudice or caprice; or as often happens, according to the loose views of justice and benevolence entertained by the jurors. This new practice, wherever introduced, is said to have been attended with favorable results. It rests upon the obvious propriety of obliging the jury to tell how they found particular facts material to the general result, which is equivalent to requiring them to give reasons for their general conclusion. The practice, if it serves no other purpose, has the effect of requiring greater care on the part of the jury, of obliging them to analyze the evidence and to state their conclusions upon different elements of it in writing, a practice which is necessarily favorable to a correct result. During the period when public opinion tended in an extravagant degree toward establishing the absolute independence of the jury, a doctrine sprang up in some of the States which was frequently called the "scintilla doctrine." This went so far, that if there was a bare scintilla or spark of evidence to support the verdict, the judge ought not to disturb it. The rule was applied more strictly in the appellate courts, when urged to set aside verdicts as contrary to the evidence. In some jurisdictions the doctrine assumed a form like this, that the trial court possessed a power over the verdict larger than the appellate court, because the trial judge had heard the witnesses and observed their manner of giving testimony, and for the further reason, that living in the community where the trial had taken place, he might reasonably be supposed to have some knowledge of the standing and the character of the witnesses. In those jurisdictions therefore it was assumed that the trial judge would not set aside the verdict unless it was clearly unsupported by evidence, and that the appellate court would not set aside a verdict, as being against the weight of the evidence, if there was a scintilla of evidence to support it. The question frequently arises in jury trials, under what circumstances the judge should submit the case to the jury at all; and hence in those jurisdictions where the scintilla doctrine prevailed, it has been the practice of the judge to submit the cause to the jury where there was a scintilla of evidence which, if believed, would entitle them to render a verdict for the plaintiff, even for nominal damages. But with the decay of the scintilla doctrine, a tendency is developed to adopt the sounder rule that the judge will not in any case submit the cause to the jury where he would feel bound, if the verdict were rendered against his views, to set it aside ou a motion for new trial. We think that a proper check upon the incompetency, the mistakes, the prejudices and the caprice of juries is found in the rule that the judge ought not to submit any civil controversy to them unless the evidence is of such a character as to leave the issue of fact to be decided fairly in doubt; that is to say, unless in his opinion fair minded men might disagree or hesitate as to what decision ought to be rendered upon it; and if the judge disregarding this rule has inadvertently submitted the cause to the jury, he should not hesitate to apply the rule in determining whether the verdict should be allowed to stand. If the verdict is, in the opinion of the trial judge or the appellate court, clearly opposed to the weight of evidence, it should be set aside by the former on a motion for a new trial, or by the latter on appeal where the evidence is fully presented by a bill of exceptions, and the appellate court is authorized to review the facts. The proposition that it is desirable to give the judge power to sum up the evidence orally and to advise the jury as to the facts involves, it is true, a necessary implication against the capacity of the jury to perform the work which the law commits to them. For if the jury are more capable of deciding the facts than the judge, they do not need the aid of his opinion in deciding them. This is true, and it is also true that trial by jury is hedged about with a great many rules of evidence and procedure, which involve au implication against the sufficienty of the system. Some of the rules of evidence which have grown up under it would never have come into existence under the system of trial by judge. In trials before judges alone the presumption is that they have sense enough to determine the value of evidence; before juries the presumption is that sometimes they have not sense enough to determine it. Then in regard to the conduct of juries, they are encompassed with restrictions which have never been thought necessary in the case of a judge where he sits as the trier of the facts in the most important controversies. Separating from each other and from the officer in charge of them; listening to outside remarks of the parties, or their witnesses, or of third persons, concerning the cause ou trial; in some cases receiving at the hands of the successful party what between neighbor and neighbor or citizen and citizen, are usually regarded as no more than the ordinary courtesies of life; these or most of these, under varying rules and in different classes of trials, are regarded as reasons for setting aside the verdict and granting a new trial. In causes of equitable cognizance, in cases of admiralty or divorce, no principles exist which supply such rules to the conduct of the judge who sits as the trier of the facts. This jury of twelve "good and lawful men" are in vested with a sort of sanctity in the popular estimation, and yet they are so little sanctified in legal estimation that the law has found it necessary to environ them with restrictions, which would be found humiliating and insulting if imposed upon a judge. The truth is, that the jury is one of those institutious, not infrequent in the history of the race, which being established for one purpose, and upon one theory, are maintained for a different purpose, and upon an altogether different theory. As the best tribunal for the trial of civil causes indiscriminately, it is not now defensible; if defended at all it must be upon other grounds, such as protecting suitors against the partiality of judges, or accustoming the people to the consideration of judicial questions or for other reasons already mentioned. No man in his senses would think of leaving the decision of a question of fact that may unfortunately have arisen between him and his neighbor to twelve men chosen by lot out of the mass of citizens; but when considering how best to protect the rights of all the people, at all times and under all circumstances of tyranny, of prejudice or of panic, he might reason thus, let us establish an intelligent and independent judiciary to decide between man and man, but let us at the same time give to a suitor the right at his option in certain cases to call in the aid of a chosen body of his fellow citi zens. For conclusions on this head, to be submitted for the consideration of the association, we recommend the following, in addition to the eighth adopted last year: 1. The greatest possible care should be exercised in the selection of jurors, much greater than is now exercised in most of the States. No person should be put upon the jury list who is not known to be a person of probity, intelligence and good repute. It should be borne in mind, that a juror is in a very important sense a judge, though a temporary one, and something like the care required in the selection of permanent judges should be required in the selection of jurors. 2. A jury should not be called in civil cases unless demanded by one of the parties. 3. It should be made the duty of the judge in every case, civil or criminal, to instruct the jury as to the law, and it should be his right, in the exercise of a sound discretion, to advise them as to the facts, cautioning them at the same time that they are not bound by his opinion except as to matters of law. 4. The judge should not be required to reduce his instructions upon matter of law to writing, where a competent stenographer, appointed under a provision of law or selected by the parties, is present, by whom such instructions may be taken down as delivered. 5. The trial court on a motion for new trial, or the appellate court on appeal upon a question of fact, should set aside a verdict where it plainly appears to be unsupported by substantial evidence of a credible character, or to be contrary to the weight of trustworthy evidence. 6. The practice of submitting to juries special interrogatories upon the material or controlling facts in issue, and of disregarding their general verdict when inconsistent with their answers to such interrogatories, ought to be extended. THE RELIEF OF APPELLATE COURTS. Last year's report of our committee discussed this subject and made these recommendations, which appeared to meet the approval of the association: "The Constitution should provide for one permanent court of last resort in the State, to which appeals should be so limited as not to exceed the capacity of the court to hear and decide them as they arise. Temporary commissions should not be resorted to in courts of last resort." We have little now to say by way of argument beyond what was said in that report, but it may not be uninteresting to see what expedients have been adopted in some of the States. Some of them have created a court composed of six judges sitting in two sections. This experiment has been tried in Tennessee and in California. The result is believed to have been unsatisfactory. It is said that the two sections have assumed too much the character of separate courts. Even where both sections consulted upon every case, the minds of the judges of one section were with difficulty brought to bear upon the business of the other section to any considerable extent. Overburdened with the business of their own section, their tendency would be to neglect the business of the other. The results had been that each section assumed to a considerable extent the character of an independent court, and the decisions of the two sections sometimes clashed with each other, thus introducing confusion and uncertainty into the law, at the expense of a dispatch of the public business. In some States the experiment has been tried of assisting the Supreme Court temporarily in disposing of its arrears by creating a commission of appeal or a Supreme Court commission, to sit separately from the Supreme Court, to hear arguments in causes, and to decide them as is done in the Supreme Court.. In some of the States this experiment has taken the form of creating a commission whose powers were apparently merely advisory, the judges hearing arguments and writing opinions, to be submitted to the Supreme Court, and if approved by the Supreme Court, to be reported as the opinions of the Supreme Court and to have the like effect as precedents. Devices of this character have little to recommend them to the favor of this association. Where these commissions are created by the Legislature their constitutionality is more than doubtful, unless Constitution in direct terms has conferred upon the Legislature the power to alter the Constitution of the Supreme Court. Where the Supreme Court is created by the Constitution, the number of its judges prescribed, their compensation fixed and their duties declared, and where no power is vested in the Legislature to alter the Constitution of this tribunal, upon what ground such power can be claimed for the Legislature is not perceived. Passing by the question of the validity of such a contrivance, it should further be observed that it is a mere make-shift, and while able lawyers have been sometimes found wiling to occupy seats upon these temporary tribunals, they have been generally unwilling to abandon their practice for the short period of service and the doubtful honor which such a seat would give them. We believe that the soundest plan for relieving the highest appellate courts is the establishment of intermediate appellate courts, and the division of appellate causes among them according to the subjects of the litigation or the amount in controversy, and that appeals upon questions of fact should be extremely limited. We recommend the following resolution: The law should provide for the settlement of the facts in the court of first instance, subject perhaps to one appeal, and the courts of first instance should be so constituted as to enable them in general to settle satisfactorily the issues of fact. DELAY AND UNCERTAINTY IN THE ADMINISTRATION OF In this respect a marked contrast exists between most of the American States and Great Britain and her colonies. If a capital felony is committed in England or Canada, and the felon is immediately apprehended, his execution under sentence of the law will generally take place in the ordinary course of justice, within a period varying from two to four months from the commission of the crime. In some of the American States years intervene between the commission of a crime and the infliction of the punishment. In consequence of this long delay the value of the punishment as a public example is in a great measure lost. A feeling sometimes springs up on the part of the people, that after suffering a long prosecution at the hands of the officers of the law, especially if the accused has been in prison all the time, he has perhaps suffered enough; and that after such treatment the additional infliction of the extreme penalty of the law is not punishment but cruelty. Perhaps this feeling has another source in the belief or hope that the character of the man meantime has measurably changed, and that the punishment falls, perhaps not upon the old criminal, but upon a new and regenerated man. The delay in the administration of criminal justice and the multiplication of new trials have ultimately the effect of defeating justice in many cases because witnesses die, or are scattered, or somehow get out of the way; and new crimes, apparently more atrocious because more recent, produce new prosecutions, which take their places upon the calendars of the criminal courts, and seem to demand greater attention on the part of the prosecuting officer, so that every mouth of delay increases the chances of escape in the old cases, These delays are due to various causes, chief among which is the extreme technicality of the rules of criminal procedure, which too frequently result in the granting of new trials and the reversal of criminal judgments. These techuical rules have been handed down to us from a time when the statute books of our English ancestors were defiled with more than a hundred capital offenses; when the accused was not allowed the benefit of counsel, except to argue questions of law in his behalf, and not then unless he had the wit to discover what questions of law were proper to be so argued. Arraigned perhaps for an offense the investigation of which involved a complication of facts and many distinct transactions, he was tried generally in a single day. The trial, too often consisted in a process of the grossest abuse and browbeating on the part of the counsel for the crown. The situation of the prisoner was so unhappy that humane judges invented a great variety of technicalities to assist him in escaping from the severe penalties denounced by the criminal statutes. As the substantive law of crimes became ameliorated, the reasons which had moved the judges to countenance these technical objections and escapes from the rigors of the law measurably passed away; but the rules have too many of them remained. In the State of Missouri, in 1877, a miscreant deliberately shot and killed the wife of his employer and the unborn babe in her womb, because she refused to forsake her husband and become his mistress. He was four times tried for murder. His last trial resulted in a conviction and a capital sentence, but it went through the ordinary channels to the Supreme Court of the United States on a Federal question, and was finally reversed, on a doubtful question of constitutional interpretation, by five of the judges, against four who dissented. In point of fact, taking together all the judges who had heard the case on the last trial and on the successive appeals, and considering their judgment upon the particular question of constitutional law, it appears that in this remarkable instance five judges overruled thirteen. Seven years had now elapsed since the commission of the crime. During |