distinguished from the regular judiciary powers of the state. From time immemorial, a distinction has been observed between the two, both in England and in this country. It would be next to, if not impossible, for a large city like Baltimore to preserve order within its limits, preserve its streets from interruption, indeed to do most of the thousand things necessary to be done, to carry on its various and indispensable operations, if in every case it were a necessary preliminary that the offender should be regularly prosecuted by presentment, indictment and trial. It has always been understood that under the police power persons disturbing the public peace, persons guilty of nuisance, or obstructing the public highways, and the like offenses, may be summarily arrested and fined without any infraction of that part of the constitution which apportions the administration of the judicial power, strictly as such."

In the case of Flint River Steamboat Co. v. Foster, 5 Ga. 194, the court held that "trial by jury, as heretofore used, shall remain inviolate,' means that it shall not be taken away in cases where it existed when that instrument was adopted in 1798, and not that there must be a jury in all cases; same in note to Kennedy v. Indianapolis, 11 Cent. L. J. 93. See 1 Dillon on Corporations, 4th Ed., sec. 411: "Neither courts nor legislatures may build in opposition to fundamental law. Whatever the language employed, it must admit of such incidents as presumed knowledge of the law, that for the greater the lesser must yield, because of the public welfare, necessity, good morals, reason and convenience." Hughes' Procedure, Vol. 2, p. 829; Indianapolis R. R. Co. v. Horst, 93 U. S.

381.

If in 1860 Baltimore was regarded so large that the number of cases for breach of the police regulations would make it next to impossible, if not quite so, to preserve order, if in every case it were a necessary preliminary that the offender should be regularly prosecuted by presentment, indictment and trial, what, must be the situation in 1907? Necessity, reason, convenience, and good morals, all stand with the settled policy of ages in upholding the practice of dispensing with a jury in certain cases which the constitutions of all the states recognize when they say, "trials by jury shall be as heretofore.'

NOTES OF IMPORTANT DECISIONS.

The

NEGLIGENCE - EVEN THOUGH ONE COULD SEE AN APPROACHING CAR, IF IN THE EXERCISE OF COMMON PRUDENCE HE MAY REASONABLY THINK THERE IS TIME TO CROSS SAFELY, HE IS NOT CHARGEABLE WITH NEGLIGENCE IN ATTEMPTING To Do So.-In the recent case of McQuisten v. Detroit Citizens St. Ry. Co. (Mich.), 110 N. W. Rep. 118, it appears that the action was one for damages for the death of plaintiff's intestate who was instantly killed by a car of defendant. A verdict was had for the plain1iff for $3,500. The trial judge was of the opinion that the testimony showed deceased was guilty of contributory negligence, and set aside the verdict, and entered one in favor of the defendant. The trial judge suggested that if he was wrong, the supreme court would correct the error, and doubtless reinstate the verdict and judgment in accordance with the practice of Rundell v. Ogdenberg's T. Co., 117 Mich. 568, 76 N. W. Rep. 380, 44 L. R. A. 415. The facts are the essential consideration and the supreme court was of a different opinion from the nisi prius court as to what they decided. It seems that the accident occurred about half past 10 o'clock in the morning, on Jefferson avenue, near Bowen avenue. track of defendant at that time was north of the traveled portion of the street. The street runs east and west. North of the railway track, at a distance thereform variously stated by the witnesses to be from 3 to 7 feet, was a well from which teamsters were in the habit of drawing water for their teams. It is claimed that parallel to the track, on the north side thereof, looking west, and from 4 to 7 feet from the north rail, were the trolley and telephone poles and a row of trees that somewhat obstructed the view. The deceased and two other teamsters, each in charge of a team, stopped their teams opposite the well, and from 3 to 6 feet south from the railway track, for the purpose of watering their horses. It was claimed that before crossing the track deceased looked in each direction, and then went to the well and drew a pail of water; that after getting his pail filled he looked in a westerly direction and started across the track, and when about half way across he was struck by a car running at the rate of 30 or 40 miles an hour; and that no gong or bell was sounded, and that no warning was given of its approach. Testimony was given by several witnesses tending to support the plaintiff's claim. Counsel sought to discredit the witnesses for the plaintiff, claiming they testified differently at the coroner's inquest. They denied they had done so. The witnesses for defendant gave another version of the transaction, but that presented a question for the jury. It was claimed that the body was carried by the car 160 feet after Mr. Trudell was struck, aud that the car ran 100 feet further before it was stopped.

The court said: "It is urged on the part of the plaintiff that if the signals had been given, or

if the car had been running at a reasonable rate of speed, deceased would not have been hurt, and that it cannot be said, as a matter of law, the deceased was guilty of contributory negligence. It has been repeatedly held, even though one could see an approaching car, that if, in the exercise of common prudence, he may reasonably think there is time to cross safely, he is not chargeable with negligence; Chauvin v. Detroit United Railway, 135 Mich. 85, 97 N. W. Rep. 160, and the many cases there cited; McVean v. Detroit United Railway, 138 Mich. 263, 101 N. W. Rep. 527, and cases cited therein; Gaffka v. Detroit United Railway (Mich.), 106 N. W. Rep. 1121; LaLonde v. Traction Co. (Mich.), 108 N. W. Rep. 365. We think it cannot be said, as a matter of law, deceased was guilty of contributory negligence. The trial judge properly submitted that question to the jury in his charge, and the verdict rendered should have been permitted to stand."

Every great edifice or engineering work is drawn from some datum post or plane, from some dominant initial. Unless this is known and agreed upon among architects, engineers and builders, then they cannot all work together in concord for the perfection, the harmony and the symmetry of a structure. To illustrate: It is observed that only the Greek could draft and direct the erection of the Parthenon, which was drawn from an initial principle and point of reckoning, which was buried with him. The drafts and the engineering reckonings of the Greek are unknown to later and to modern architects. He studied from nature and from dominating initials which he well comprehended. He studied the ant, the bee, the spider and the mud-swallow. Great lessons may be learned from little things. It was a great and a wise king and counselor who said, "thou sluggard, go learn of the ant." Marvelous secrets lie buried with the ancient. No living architect can draft his

*[We call attention of the reader that this article renews the discussion of the subject by its author in 64 Cent. L. J. 128. What is here termed as the" Ambulatory Rule" is an arbitrary designation of the rule that the "theory of the case" as outlined in the evidence can change the nature of the case as outlined in the pleadings filed with the clerk, called for convenience, the "mandatory record."-ED.]

wonderful creations. The great bridges, canals and dams are all drawn from some fixed initial from which all estimates are made. The mariner reckons when out of sight of the headlands from the heavenly bodies; by wonderful and ever certain lights he is guided over vast and trackless depths.

As it is with all these, so it is with the drafting and framing of government. Governments have their datum posts or dominating initials as well as other structures; and those who frame, who direct and participate in the management of government must know its datum posts if they would guide aright. All governors should be well instructed as to the fact that every government of freedom and of protection is necessarily drawn from the same old venerable principles of antiquity that shine on from age to age, undimmed by cloud and undisturbed by storm.

In the case of government these datum posts are the maxims which are often reaffirmed in written constitutions; they have always been the unwritten constitution, which from time immemorial has led and guided the development of institutions as needed from age to age. These maxims are the very spirit of the genius of the people who adopt and utilize them; and this spirit is breathed into the government and gives it life. Accordingly a government is tyrannical or democratic as the maxims in which the people believe express a reverence for the will of a potentate, or for the will of the people. A written constitution is as nothing without these maxims. The operation of the constitution of the United States in Turkey would permit just as absolute a government as Turkey has today. It is the unwritten, not the written constitution that weighs most, and that unwritten constitution comes down to us in the maxims, wherein it is best preserved and expressed from time, whereof the memory of man runs not to the contrary. The unwritten constitution is the heirloom of the ages.

The federalist sustains these propositions. Hamilton knew the use of maxims, and he commended them to the students as the easiest way to a mastery of the principles of government. At this time it is instructive to inquire what are some of the basic maxims of government? If they be named and shown to be determinates of the character, nature,

and structure of government, then a practical illustration of Hamilton's theory will be afforded. Further, if there be such maxims, and they are shown to be fundamental principles of codes and practice acts, of evidence, pleading, and construction, then it will appear that the student of procedure must needs travel far beneath the surface. He must look to something more than the sections of a code or of decisions thereon.

Further, the relations of the "ambulatory" rule to its affines and repulses affords the opportunity of referring to the necessity for an unwritten constitution in a beneficent government. Then such a government depends on the same maxims, the same unwritten constitution that support juridical procedure, then a useful and much needed demonstration will be afforded that a study of procedure is a study of government. Certainly no more important proposition can have the attention of the jurisconsult. He will be greatly encouraged to perceive that the mastery of one subject is a mastery of more.

"That procedure with all its volumes vast
Hath but one page."

The first of these basic maxims which we will discuss is verba fortius accipiuntur contra proferentem (every presumption is to be made against a pleader) which teaches as much of the philosophy of law as any five words we know. If there be one maxim more instructive, a greater beacon light, a "pole star”. of greater magnitude, we will be instructed to learn which it is. And even should there be, still this maxim must ever be reckoned from in a constitutionalism. Its philosophy leads as "A pillar of cloud by day,

A pillar of fire by night."

If there be one general rule that has no exceptions, it is the rule expressed in that maxim. Verba fortius, etc., is thus at war with the "ambulatory" rule, because verba fortius puts the burden on the pleader to plead and prove his case as must be in a constitutional government; whereas the "ambulatory" rule puts the burden on the pleader's opponent, by allowing the pleader to introduce evidence unsupported by his pleadings. Under the "ambulatory" rule every presumption is in favor of the pleader. The states adopting this new "ambulatory" rule are actually substituting a pillar of our un

written constitution, and the bar does not even know what is going on. It is time that we awake. Shall we change the maxim to read verba fortius accipiuntur pro proferentem? Those who advocate and maintain the "ambulatory" rule are squarely opposed to enlightened antiquity. They can sustain their position only upon the principles of arbitrariness, which underlies oriental procedure which is inquisitorial or barbarous.

Verba fortius, etc., and the philosophy it inculcates is the corner stone of protection. It is a first and the best precept to be impressed upon the mind; it is from the Roman and is as true today as it was thousands of years ago. It and its cognates express and supply the most important ideas of procedure. This maxim is one of Bacon's twenty-five which were published, and it is well explicated in Broom's maxims, and is more extendedly discussed in Hughes' procedure.

Wherever every presumption is made in favor of a pleader there is an absolutism; there is a government of oppression, of arbitrariness and immorality. Of such was the Jewish law under which Paul was indicted, long imprisoned, and was to have been deprived of his life without written or any definite further charges preferred against him, only conclusions of law having been set up. But Paul was a Roman citizen and the Roman governor therefore stepped between him and his accusers and accorded him his right to a trial "according to the manner of the Romans." What a world of difference this "manner of the Romans" meant to Paul. The Roman governor was greatly embarrassed to think that the prisoner should even be detained, much less put to trial without a written charge, setting forth the accusation against him. At this juncture Agripa the king passed through the Jewish province, and Paul was brought before him. There occurs in the 25th chapter of the Acts, verse 16, one of the greatest juridical passages of the world. The governor explains to King Agripa that there are no written charges against Paul, who therefore ought not, according to "the manner of the Romans," be detained, and cannot be tried upon vague and general charges. Look at the majesty of that simple statement and judge between the tribunals of Jerusalem and those of Rome. Paul fully recognized the difference and chose the Roman.

Look at it and judge between the "ambulatory" rule and Verba fortius, etc. Look at it and say whether a Roman prætor would allow a pleader to introduce evidence not within his pleadings. Would not the prætor say to such a one, Frustra probatur quod probatum non relevat. (It is vain to prove what is not alleged)? "The manner of the Romans" was founded upon Verba fortius, etc., and its cognate, Semper præsumitur pro negante (every presumption is in favor of him who denies). The Romans correctly understood this maxim, Cujus est instituere ejus est abrogare (he who can institute can also abrogate), also ignorantia legis neminen excusat (ignorance of law is no excuse).

The foregoing maxims are foci from which issue and flow many related rules which should be mastered by every practitioner. A study of them will broaden the vision.

There is a maxim upon the title page of Broom's Maxims, namely: Juris praecepta sunt hæc honesta vivere, alterum non lædere suum cuique tribuere: We should live honestly, injure no one, and render unto everyone his due. From the use Broom made of it indicates all that Blackstone observed, where the latter quoted it with approval and adopted the views of Justinian, who articulated the entire body of the law from that maxim.1 Conceding all that such high authority contends for, then the student must perceive that the law can not be so written that he who runs may read, at least, read and understand the law. In this connection it is well to observe that the law must be studied and comprehended from its maxims or datum posts.

A late case from Florida will well illustrate the condition of many of our best courts.2 It is due to expressly state that the court that decided the Atlantic, etc., R. R. v. Benedict Co., is an able one and that its citation of such cases as Dovaston v. Payne, shows that it is a truly erudite court; it also repeats from Mansfield in Robinson v. Rally, as to pleadings being founded in the closest logic and the soundest sense. If every student would master those two cases he would be greatly advanced. The Florida court well concluded that Verba fortius, etc., applied in that state. But the court failed to make a clear and

1 Blackstone Com. 40.

2 42 So. Rep. 529.

comprehensive statement as to the application of that canon in other jurisdictions; relating to that its conclusions are equivocal and hazy, as will appear from a careful reading of it. However, it well presented Verba fortius, etc., in its true light as a rule of morals, of reason and logic, and of necessity. Unfortunately the court did not stop there, for it went further and expressly conceded that a statute could overthrow a fundamental rule so well and so deeply grounded. This is asking far too much; the validity of such a statute cannot have the consent of broad constructionists. The decision is permissive of the view that a statute can change moral and fundamental law; it may be cited to sustain that proposition. It also leads the student to look to a statute, to haggle over a statute in opposition to fundamental law and to accept a statute as the origin of great and basic principles. The outlook of the decision was not broader than what is quoted in it from the code, namely, "in furtherance of justice between the parties." Courts that are led by this quotation do not recognize Verba fortius, etc., as organic law, as a part of the prescriptive constitution, indispensable for the conserving principles of procedure. Courts that deny this may properly be cited to oppose the claims for an unwritten constitution. As to this the reader must look and judge for himself.

In a constitutionalism the rule is, "what is not juridically presented can not be judicially considered nor decided," which is in direct antagonism to the "ambulatory" rule. If every one indicted were presumed guilty, who would be safe? Would the accused be under a government such as Paul advocated, of protection, of morals and of mercy? If averring one a debtor, cast the burden of proof upon him, how could he escape the entry of a judgment against and the consequent confiscation of his estate; here is a view-point from a towering mountain called Verba fortius accipiuntur contra proferentem.

Earth has its Himalayas and these their Mount Everest. Analogously jurisprudence has its towering heights and everlasting prominences. From these, illimitable vistas are lit up and illumined. From them are gained the highest views, the profoundest instruction, and the greatest mastery. This mountain in jurisprudence is nothing more nor less than a rule of procedure from many