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154.

White V. Miller (Iowa) Right of Purchaser

where there is a Breach of Warranty, ann.

case, 34.

White v. Trowbridge (Pa.) Partnership-Right
of Retiring Partner Where not Restricted
from Engaging in Business in Same Place,
ann. case, 10.

Withers v. Lane (N. Car.) Trial-Right of Trial
Judge to Comment on Evidence, R. D., 347.
Wyeman V. Deady (Conn.) Labor Unions-A
Labor Union which Procures the Discharge
on Non-ion Workman from Employment
by Threats made to the Employer, Liable
with Walking Delegate, who Acted for the
Union, as a Joint Tort Feasor, R. D., 107.

Young v. Soltau (Ind.) Is a License to Sell In-

toxicating Liquors Unconstitutional, ann.

case, 493.

Central Law Journal.

ST. LOUIS, MO., JANUARY 4, 1907.

ANNOUNCEMENT FOR THE COMING YEAR.

Though we have had many commendations from our subscribers during the past year, we are aware of the fact that there is room for improvement. We expect to give special and careful attention to the questions of the day which are rising out of the great corporate movements of capital and labor and the legislative enactments in regard to them both national and state. We have had articles on the Employers' Liability Act of Congress from our staff of writers pro and con as to its constitutionality. We expect soon to give another view of that act. We have made special arrangements with Mr. William T. Hughes, of Chicago, author of what we regard the greatest work of modern times, Hughes on Procedure, to write a series of articles which will show where many of our state courts have made radical departures from well settled principles to the great detriment of their jurisprudence. These articles will be of special interest because they come from one whose knowledge of the fundamental principles of our jurisprudence and their relationships, is wider than that of any one we have

met.

Mr.

It is one thing to know fundamental principles, it is another to have a thorough understanding of their relationships. Hughes is not only deeply grounded in the philosophy of the law, but is profoundly versed in general history and its philosophy. He knows by heart every one of Bacon's and Broom's maxims and, we believe, understands as Bacon did their importance to our jurisprudence. These maxims he regards as what he calls the "metwand or datum posts of construction." Everyone who is half way versed in fundamental principles, knows that a jurist's ability in construction is the true test of his greatness. He will demonstrate that we owe more to Bacon, than to Coke and Blackstone, and that the matter of Ulpian, from whose work two-thirds of the Pandects was made up, which is conceded to be the greatest law book of all the ages, is the great source of our own laws; and that the decisions of

Mansfield, Marshall, Kent, Story, Field and Shaw are far better guides than the majority of the hastily written and clashing opinions of today, because they adhere most closely to the fountain springs of the law.

It is certain that in many states there is good reason for the complaint on the part of members of the bar of those states of the degeneracy of their jurisprudence. We have in the last year pointed out the errors of many opinions of many state appellate courts. to the general satisfaction of our readers who have expressed themselves, and we have reason to believe, to the satisfaction of many more of our readers who have not. Everyone recognizes that just criticism from a proper source is healthful. Some of the judges of the higher courts, even those we have criticised, have commended our work in this respect as important.

We expect to make the work of the CENTRAL LAW JOURNAL of the very first order, worthy the confidence and respect of every judge and lawyer in the land. The constantly increasing, unsolicited, subscriptions from lawyers of high standing in the profession show that the work we have been doing is appreciated. We shall do more and better work in the future and those who read carefully the articles which Professor Hughes has prepared for us, no matter who, will find they will have risen to a new and broadened view of jurisprudence. Professor Hughes declares himself a disciple of Bacon. Francis Bacon is acknowledged to be the greatest of the utilitarian philosophers and towers highest as a philosopher in his philosophy of the law. This being true, we certainly can not make a mistake in following his guidance in the midst of the ruins of the jurisprudence of a number of our great states the bars of which openly complain of the fact that they have no lamp by which to be guided in their judgments of their laws.

It is but just to again state that what we have hitherto said of. Professor Hughes' work was induced solely by a desire to bring to the notice of the profession a most meritorious work, and in doing so we got all the reward we had in view, for the publishers of the work do not advertise in our pages and have not for two years. By securing his services for our readers we are merely giving them assurance of our opinion of the merits of the author of Hughes on Procedure.

NOTES OF IMPORTANT DECISIONS.

CONTRACT LIMITING LIABILITY OF RAILROAD COMPANY TO THE VALUE OF A SHIPMENT GIVEN BY SHIPPER TO OBTAIN CONCESSION IN RATES HELD VALID.-This question was recently decided in the appellate division of the supreme court of New York in the case of Barnes v. Long Island R. Co., 100 N. Y. Supp. 593.

It seems that the plaintiffs delivered 29 yearling colts and fillies to the Adams Express Company at Lexington, Ky., under a written contract with the said company for through shipment by it to Sheepshead Bay, N. Y.; the freight being paid in advance. During the time that the said colts and fillies were in transit over the defendant's lines an accident occurred, resulting in injury to many of these animals, and the verdict of the jury clearly establishes the negligence of the defendant, charging it with liability; the jury having assessed the damages at $30,000. The contract under which these animals were received and shipped by the Adams Express Company provided among other things:

"Twenty horses, consigned to John Miller at Sheepshead Bay, N. Y., for the sum of three hundred and twenty-five dollars and cents, which charge is fixed by and based upon the value of said animals as declared by the shipper, as hereinafter mentioned. (2) And in consideration of the premises said parties agree that the shipper. before delivering the said animals to said express company, demanded to be advised of the rates to be charged for the carriage of said animals aforesaid, and thereupon was offered by said express company alternative rates proportioned to the value of said animals, such value to be fixed and declared by the shipper, and according to following tariffs and charges. (5) The shipper, in order to avail himself of said alternative rates, and in consideration thereof, being asked by the express company to value said animals, now declares the values hereinafter mentioned to be the true values of said animals so to be shipped as follows, to-wit: twenty horses, value $75 each."

There can be no doubt that a contract of this character would be valid in the state of New York, if the contract was executed here and to be performed in this state; but it was urged upon the trial that under the provisions of section 196 of the constitution of the state of Kentucky this contract was void, and this view was accepted by the learned trial court, constituting, we believe, the only serious question in this case. If the contract was void in the state of Kentucky, if it had no vitality at the piace of its execution, under the facts here involved, it may be deemed settled by authority that it could not limit the liability of the defendant, which was, by the terms of the contract, to have the same exemptions as the express company. Grand v. Livingston, 4 App. Div. 589, 38 N. Y. Supp. 490. On the other hand, if the contract was valid in Kentucky, and not in

conflict with the laws of this state and its public policy, the judgment appealed from cannot be sustained, and the defendant is entitled to a reversal of the judgment.

The section of the constitution of Kentucky relied upon to invalidate the contract under which the shipment was made, and which expressly limited the liability of the defendant to the agreed value of the horses, provides that "no common carrier shall be permitted to contract for relief against its common-law liability." The question is, what construction is to be put upon this language? Is it broad enough to invalidate the contract entered into in Kentucky? Leaving out of consideration the language of the contract in so far as it attempts to make of the express company a forwarder, rather than a common carrier, under the principle that the law will not permit that to be done by indirection which may not be done directly, is the language of the Kentucky constitution intended to invalidate such a contract as was concededly made, and permit the plaintiffs to get the benefit of reduced rates of transportation upon a false valuation, and then to charge the defendant with the value of the animals as they proved to be worth after they had been injured through the latter's negligence? We think not, for the common law never sanctioned fraud.

The limitation of the constitution of Kentucky is that no common carrier shall be permitted to contract for relief against its common law liability; that is, it shall not be permitted to contract that it shall not be liable for a breach of those duties and obligations which the common law imposes. But the contract here under consideration does not seek to give the express company, or those for whose benefit the stipulation was made, "relief against its common law liability." It merely seeks to limit the liability to the value as given by the shipper for the purpose of getting concessions in rates, and this the common law has always sanctioned. Chancellor Kent, who undoubtedly understood the common law, in his Commentaries (2 Kent's Com. 603), lays down the proposition that:

The common carrier is responsible for the loss of a box or parcel of goods, though he be ignorant of the contents, or though those contents be ever so valuable, unless he made a special acceptance. But the rule is subject to a reasonable qualification; and if the owner be guilty of any fraud or imposition in respect to the carrier, as by concealing the value or nature of the article, or deludes him by his own carelessness in treating the parcel as a thing of no value, he cannot hold him liable for the loss of the goods. Such an imposition destroys all just claim to indemnity, for it goes to deprive the carrier of the compensation which he is entitled to, in proportion to the value of the article intrusted to his care and the consequent risk which he incurs, and it tends to lessen the vigilance that the carrier would otherwise bestow." See Hart v. Pennsylvania R. R. Co., 112 U. S.

331, 340, 5 Sup. Ct. Rep. 151, 28 L. Ed. 717, and authorities there cited; Chicago, M. &. St. P. Ry. v. Solan, 169 U. S. 133. 135, 18 Sup. Ct. Rep. 289, 42 L. Ed. 688; Calderon v. Atlas Steamshin Co., 170 U. S. 272,278, 279, 18 Sup. Ct. Rep. 588, 42 L. Ed. 1033, and authorities there cited.

In the case now before us the contract does not attempt to avoid liability under the common law." It merely seeks to limit its liability to the valuation which the plaintiffs, through their agent, fixed as the basis of computing the freight charges. which charges were materially less because of the valuation of $75 than they would have been if the value had been placed at $2,000 each, as the evidence now shows them to have been worth. The express company accepted the animals for shipment under a special acceptance, and the plaintiffs could not avail themselves of the fraudulent valuation for the purpose of getting a concession in rates, and then hold the defendant liable for the higher value when an accident bas occurred. The contract provided merely what the common law bas recognized as the rule governing common carriers, and it in no wise contravenes the constitution of Kentucky. It follows, therefore, that the judgment in favor of the plaintiffs for the value of the horses as fixed by the evidence cannot be sustained.

THE PRIVILEGE OF SILENCE AND IMMUNITY STATUTES.

A short review and exposition of the law in relation to immunity statutes, substituted for the privilege of silence, contained in that clause of the fifth amendment to the constitution of the United States which reads: "Nor shall any person be compelled, in any criminal case, to be a witness against himself" and the many similar provisions contained in the state constitutions, seems timely in view of the many cases of bribery, extortion, and the like, that are to be placed on trial during the fall terms of many courts in various jurisdictions throughout the country, and in view of the fact that it is one of the most cherished and sacred rights of the American people. The principle upon which these various constitutional enactments are founded, is the ancient common law maxim nemo tenetur seipsum accusare. It is a rule of evidence whereby any person or party called as a witness in a civil or criminal proceeding has, if he chooses, the privilege of silence by refusing to answer any question. put to him on direct or cross-examination, the answer to which, if true, will disgrace

him, or render, or tend to render him liable to criminal prosecution. The theory upon which the maxim has been interpreted by the many adjudications, is that a witness must not be placed in jeopardy by a legal detriment brought on through his own exposure.

Much has been said against the rule in that it is not applicable to modern conditions, that it has outlived its usefulness, that it is a hindrance to the very object of evidenceto ascertain the truth and that the guilty may use the privilege as a shield, still it cannot be denied that it may be the main protection of the innocent for a person may be placed in such circumstances, connected with the commission of a criminal offense, that if required to disclose other facts within his knowledge he might, though innocent, be considered guilty. That the maxim in its interpretation and application is undergoing such changes and modifications as to meet all modern requirements and still retain its original importance is apparent from the natural evolution of legal principles. In the general application of this principle the courts are uniform in their decisions, but only in certain aspects of its application the courts are not agreed. The general doctrine has been well established that the privilege of silence can be invoked in all cases where the answer of the witness may subject himself to imprisonment, fine, forfeiture, or penalty which may result from criminal or civil proceedings, that the right of privilege is personal to the witness, that he alone has the right to invoke its protection, that he alone has the right to waive the privilege, that he must claim it in good faith and that the right in all cases to decide whether his answer will incriminate him or tend to incriminate him does not rest solely with him. On the other hand the doctrine is not so well settled as to what extent the claim of privilege is left to the determination of the witness and to what extent he is held to waive it by consenting to answer some questions, or at what stage of an examination he must insist on his privilege in order to avoid a waiver. There are a class of cases where the witness, not being advised of his privilege of silence, testified in part, the court seeing his danger advised him and thereafter allowed him the right of privilege. Another class of cases are those where a witness, evidently ignorant of his rights, had

spoken before he could be cautioned, the court put him on his guard and allowed the testimony to which a full examination could not be had stricken out. There are a class of cases that make a distinction between a witness proper and an accomplice or party in interest. It is not quite clear why an accomplice, who admits his guilt by seeking to implicate others, should claim immunity from exposure about the very matter which he is willing to confess. In cases where a party in interest volunteers to testify in his own behalf the rule is not liberally construed in his favor as in the case of disinterested witnesses who are summoned to testify in controversies between others. Cases in which the privilege may be claimed are such that may subject a witness, if he answers, to imprisonment, a fine, forfeiture, or penalty. Where a witness is asked whether he has been accused of stealing, or whether stolen goods had been found in his possession, or is questioned as to how he testified on a former trial, relative to the matter in question, or is questioned as to the signs and tokens by which horse-thieves are known and recognized by each other, or is questioned whether he voted in an action to try title to office, or is questioned as to whether he had gone through bankruptcy without mentioning the claim in controversy, or is questioned concerning his acts as a railway conductor in not accounting to company for money collected whether he had passed persons free in the cars, or whether he had sold tickets below the regular prices, or is questioned when on trial for felony whether she was not accused of stealing or taking things not her own, while living with A and whether, when she left then, she was not followed, and the things taken from her, or is questioned in a case of seduction as to her acts of unchastity with others, the witness may claim the privilege in all these cases.9

7

5

2

Cases in which the privilege may not be claimed are such where a witness, in a bas

1 Howell v. Commonwealth, 5 Gratt. (Va.) 664.

2 Mitchell v. Hinman, 8 Wend. (N. Y.) 667.

3 State v. Wilson, 8 Iowa, 407.

4 23 Wis. 309.

3 Taylor v. Mac Irvin, 94 Ill. 488.

6 Eaton v. Former, 4 N. H. 200.

7 Howell v. Commonwealth, 5 Gratt. (Va.) 664.

8 Reed v. Williams, 5 Sneed (Tenn.), 580.

9 For further cases see the various text-books on evidence.

11

tardy case, was asked, after it was shown that the circumstances were such that the act would not have been criminal, whether he had sexual intercourse with the prosecutrix,1 10 or where a witness for the prosecution was asked, in a trial for a riot, whether he is a member of a secret society organized to repress a sect to which defendant belongs, or where a constable was asked, when testifying before a grand jury, whether he knew of any house in a certain place "where spirituous liquors are sold,"12 or where a witness was properly subpoenaed before a grand jury and asked: "What person or persons have so bet on faro?"13

English Law.-The fact that certain principles of natural justice which had become fixtures in the jurisprudence of the mother country were incorporated as amendments to the constitution, gives sanction to a cursory review of the construction, given to these principles by the English courts. In the early application of this rule of evidence or maxim, nemo tenetur seipsum accusare, it gave rise to some difficulty in its interpretation, in so far as to preserve the rights of the party, the privilege of the witness, and the prerogative of the court. The courts construed the maxim to mean that a witness is not only not bound to answer a question which would criminate him, but he is not bound to answer any question, the answer to which tends to criminate him, 14 that he has the privilege to object to answering a question which he thinks will tend to his crimination, though the answer would not lead to an immediate conclusion of guilt, and that the court retains the prerogative to decide whether the questions propounded tend to criminate witness or not.16 This latter point was more fully decided in the leading case. 17 Here the court held (Cockburn, C. J.), that in order to entitle a witness to the privilege of silence, the court must determine from the facts and circumstances in the case as well as from the nature of the evidence

10 Ford v. State, 29 Ind. 541.

11 Pecple v. Christie, 2 Park (N. Y.), Cr. 579.

12 Hunt v. McCulla, 20 Iowa, 20.

13 Ward v. State, 2 Mo. 120; Warner v. State, 13 Lea (Tenn.), 52. For further illustrations see works on evidence.

14 Rex v. Slaney, 6 Car. & P. 217.

15 Cate v. Hardacre, 3 Taunt. 424.

16 Maloney v. Bartley, 3 Campbell's Rep. 210.

17 Queen v. Boyer, 1 B. & S. 311.

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