All communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication. Communications on business matters should be ad dressed to the publishers. The Albany Law ALBANY, MARCH 6, 1875. CURRENT TOPICS. resulted. This is on the principle, we suppose, that brute force should be met by brute force. On the other hand, Justice Keating was opposed to this punishment and pronounces it simply retaliatory. He also declares it to be unequal in application; the number of lashes that would exhaust one man would be taken by another with comparative indifference. Yet the judge who passes sentence has no means of discriminating. Justice Keating thinks that flogging is neither reformatory nor deterrent, an opinion in which the majority in this country concur. Recorder Hackett has disposed of the contempt case against Mr. Bergh, for sending a reproving letter to the grand jury. The recorder said that it is clearly contempt of court at common law for a witness or by-stander to communicate with the grand jury without its request; but to be a contempt under the New York statutes, the communication must savor of the degree of contemptuous behavior committed during the sitting of the court and directly tending to impair due respect. The term "behavior" may cover the writing and delivery to the grand jury of a contemptuous and insulting letter. But Mr. Bergh showed that he is, for the purposes of his society, both a deputy Attorney-general and an assistant District-attorney by written appointments from Messrs. Pratt and Phelps. He also made affidavit that he believed that he was only doing his duty, and that he was acting in accordance with his authority. The recorder thought Mr. Bergh's ex The Marine Court of New York, in Palmeter v. Wagner, considered the liability of a sleeping car company for loss by theft of a portion of the personal baggage of a passenger who was asleep in one of the company's sleeping cars. The judge who delivered the opinion said that the company were not insurers, innkeepers nor transporters. In the ordinary railway car a passenger may sleep, but it is at his own risk that he does so; he is the custodian of the property retained in his possession and he must look out for it. But when he gets into a sleeping car, and pays for sleeping, the passenger is not expected to keep awake, to take care of himself and his property. The company had a conductor and a porter to watch during the night, and they were bound to use due diligence in keeping away disturbers. Sleeping car companies undertake to do that which the railroad companies find it injudicious to attempt. The judge further said that the question was one of great importance, and that he based his decision solely on the ground that the|planation was consistent with his innocence; but he sleeping car company are not insurers, but are, by reasonable watch, to protect a passenger in his person, and his property about his person, during sleep. 4. Should flogging be authorized for other kinds of violence than those now provided by law? 5. Has flogging been efficacious in putting down the offenses for which it is now authorized as a punishment by law? To the first of the questions the Lord Chief Justice of the Queen's Bench, the Chief Baron, two judges and three barons reply that the present law is not sufficiently stringent; but the Lord Chief Justice of the Common Pleas, four judges and one baron think that the present law is stringent enough. There was also a disagreement among the judges as to the efficacy of punishment by flogging. Chief Justice Cockburn was of the opinion that flogging had been found efficacious, and that it may well be authorized for violence in cases of brutal assault, where, from the nature of the assault, it appears that bodily injury was intended, and such injury actually VOL. 11.- No. 10. remarked that the representative of the Attorney-general and the District-attorney owed it to those gentlemen, if not to himself, to infuse into his oral or written intercourse with grand juries, rather the suaviter in modo than the fortiter in re. The Supreme Court "Reporter's Bill" was passed in the Senate, on Tuesday, after having been amended by the Senate Judiciary Committee so as to provide for a meeting of the judges to make the appointment in Albany on the last Wednesday in May. This amendment, although strenuously opposed by the "official" reporter, was adopted by the unanimous vote of the Judiciary Committee. A similar amendment was made by the Judiciary Committee of the Assembly some weeks ago, but the friends of the "official" reporter succeeded in getting it sent back to the committee, where it now lies. There is a disposition manifested in some quarters to kill the bill unless it can go through in a certain form, and it is a question whether private interests or public needs will triumph. The amendments were made by the committees from no question as to the fairness of Mr. Justice Davis, but simply from an opinion that it would be better to designate the time and place of meeting. Another "Reporter's Bill" was introduced last week to "simplify report ing in this State." The modus operandi proposed is to turn over the whole matter of reporting, in all the courts to a "council of law reporting" composed of, beside the Chief Judge of the Court of Appeals and the Attorney-General, the following gentlemen: Messrs. Joseph S. Bosworth, James Emott, Montgomery H. Throop, William M. Evarts, Clifford A. Hand, and Lewis L. Delafield. It is a matter of general comment, among the newspapers, that Mr. Tracy's opening address in the Tilton-Beecher case was a written document and was read to the jury from the manuscript. This is regarded as an innovation and an evidence that forensic oratory is on the decline; and it is said that speakers now address themselves, not to those who are present and hear but to those who are absent and read. Even arguments on questions of law, though they may be decided by judges in court, are read and the judgments thereon reviewed in the homes of the people. Our contemporaries say that it was a consciousness of this that led Mr. Tracy to write out in full his four days' opening address and to read it to the jury, and that he expected to appear to better advantage before the vast multitude who are sure to read what he had to say. But this was not the practice of the great masters of forensic eloquence whose aim was to convince the jury and not the public; and although they may have written their addresses in the office, they delivered them, without extended manuscript, in court. It will, probably, be some time before Mr. Tracy's example will be generally followed by the profession. A bill has been introduced into the Senate, providing for the increase of the commission to revise the statutes of this State from three members to five. There can be no weighty objection against this measure, and there are many reasons why it should become a law and carried into effect. The revision has progressed very slowly so far; and the rate of revision must so continue even with a complement of three revisers at work constantly. We believe Mr. Throop has estimated that with only three commissioners the revision cannot be completed in less than four years from the present. Five commissioners could materially lessen this time; and the work is of such a character that five could be employed as well as three. An increase of the commission would also be accompanied by a corresponding variety of suggestion, and would add to the value of the consultations of the commission. Notwithstanding these considerations the Judiciary Committee reported adversely to the bill, and the report, after some opposition, was adopted. In this connection we may mention that the appointment of Messrs. Caverno and Johnson commissioners in place of Messrs. Stebbins and Werner, resigned, has been confirmed by the Senate. The speech of Mr. Poland, in the House of Representatives on the tariff bill, describes the manner in which the work of revising the United States Statutes was executed, particularly in reference to the tariff laws. Mr. Poland states that the tariff part was done by Mr. Abbott of New York "a man specially eminent for his knowledge of the statutes of the United States, having made a digest of them years ago, besides being the author of other legal works." When the revision came before congress, it was referred to the committee which had charge of the subject. Mr. Poland was finally assigned for an examination of the tariff part; an occasional error and several omissions were found, but very little change was made from the work as prepared by the commissioners of revision. In speaking of the revision as a whole, Mr. Poland said, that in his judgment, not only the bench and bar of the country but the whole people owe a debt of gratitude to the gentlemen who made the revision, for placing the laws of the nation not only within reach but within reason. Nevertheless the Treasury Department claims to have discovered a mare's nest in the revision of no ordinary magnitude. The Secretary of the Treasury, some time ago, directed a "competent person,” in his department, to make a careful examination of the codification, with special reference to the Treasury Department. Said "competent person" reported "between two hundred and three hundred errors and changes some of them of striking importance." Thereupon the Secretary "sent an official communication to Judge Poland and Mr. Conkling, sixty fools-cap pages long, calling attention to this important subject; but," adds the report, from which we copy, "they have done nothing." They will, very likely, read the communication during the summer and may possibly find the report true; but we hope that the government will not, on the doubtful authority of a "competent person," suspend its efforts toward publishing the revision. The report of a select committee of the House of Representatives has been made in reference to the arrest of Mr. Whitelaw Reid, editor of the New York Tribune, at the suit of Mr. A. R. Shepperd. Mr. Reid being in Washington in attendance, as a witness in the Pacific Mail investigation, at the time of the arrest, it was contended that the arrest was illegal. The matter of privilege from arrest is one of the most interesting and important questions in the law; and the committee, evidently, thought that this privilege should be strictly maintained; for they have decided that a witness brought into the district by a superior power should not be regarded as within it for any other purpose than that of giving testimony, and that he should not have his condition changed to his prejudice on that account. The Senate Judiciary Committee has reported favorably the bill relating to the compensation of Supreme Court justices. It provides that after the 1st day of January, 1875, ten dollars a day shall be paid to every justice for each and every day in which he shall be engaged in holding any court out of the district in which he was elected, which shall not have been assigned to him in the appointment of terms. The Assembly Judiciary Committee reported favorably Mr. Hammond's bill in relation to general terms of the Supreme Court. The bill provides that the terms shall be held at such times and places as the justices may appoint; that the first appointment shall be made on or before the 15th of December, 1875, and thereafter every two years, "provided that said justices or a majority of them may at any time change the appointment of the time and place for holding the general term of said Supreme Court in the sixth judicial department made by them on the 13th of November, 1874." NOTES OF CASES. In Foulke v. Stockdale, 9 West. Jur. 84, the Supreme Court of Iowa held, that where parties in arranging the boundary between adjoining tracts of land called in referees, who fixed the line by monuments, and the land owners executed deeds incorrectly describing the line, but assented to it as fixed by the referees, and one of them built a fence thereon and occupied the land, claiming the fence to be the boundary line for more than ten years, his possession beyond the line described in the deed would be protected by the statute of limitations in an action by the grantee of the other party. In Burdick v. Hivley, 23 Iowa, 511, it was held that an agreement between the owners of land as to the boundary line of adjoining tracts, though it did not correspond with the line established by the survey and recog-nized in the deeds, followed by possession and claim of title corresponding therewith, entitles the possessor to the protection of the statute of limitations. See also Dudley v. Elkins, 39 N. H. 78; Huntington v. Whaley, 29 Conn. 391; Spaulding v. Warren, 25 Vt. 316; Blair v. Smith, 16 Mo. 273. In Bedee v. The People, 7 Chicago Legal News, 180, the Supreme Court of Illinois held, that where a prisoner has been indicted and found guilty by the verdict of a jury, if the judgment has been arrested on his motion, he has not been legally in jeopardy and cannot plead the conviction in bar to a subsequent indictment. Gerard v. The People, 3 Scam. 362, was cited to sustain this point. Bishop in his Criminal Law, § 1000, thus lays down the rule: "When the indictment is good, and the court erroneously supposing it not good arrests judgment on the defendant's application-here, in those States in which the prosecutor may have this judgment of arrest reversed for the error, he cannot maintain a new indictment; because, notwithstanding what has been done, the prisoner is still in jeopardy under the old indictment, which may practically be revived on the reversal of the judgment of arrest. The State v. Norvill, 2 Yerg. 24. But in localities where the erroneous judgment of arrest cannot be afterward called in question, the prisoner's jeopardy has ceased, at his own request, and for his own benefit, therefore he may be proceeded against anew." People v. Casborus, 13 Johns. 351; Gerard v. People, supra. In Seeger v. Petit, 1 Weekly Not. Cas. 226, the Supreme Court of Pennsylvania considered a question in the law of fixtures. The defendant rented premises for the purpose of carrying on the business of selling drugs and dyes for manufacturers. He put in gas-fixtures, platform scales, railings, a coalbin, shelves and a staircase; and the question arose whether they were fixtures. The judge charged that if they were affixed to the freehold in a permanent manner they could not be removed as fixtures. But the court, on error brought, said: "The test of physical annexation was overturned in Vorhees v. Trueman, 2 W. & S. 116; Pyle v. Pennock, 2 W. & S. 390; and other cases cited in Hill v. Sewald, 3 Sm. 272. The true rule was the intention to annex. The jury were instructed in substance that the test was physical annexation. In this there was error." In Hanrahan v. O'Reilly, 102 Mass. 201, it was held that bowling alleys erected by a tenant for the purposes of profit in a room which the landlord let for hall purposes were tradefixtures which the tenant might remove, although they were nailed to the floor, and although the drawing of the nails would injure the building. And Brown in his Law of Fixtures, § 67, says that in the late cases there is a clear alteration in the point of view from which fixtures are regarded, an alteration which amounts to an entire inversion of the ancient point of view. In Ashlin v. Lee, 31 L. T., N. S., 721, Vice-Chancellor Hall decided that where two separate sums are secured by one bond, a payment in respect of one sum does not prevent the statute of limitations running in respect to the other. In Chitty on Contracts, 11th Am. Ed., 1236, it is said that in the case a bond conditioned for the performance of a series of acts at stated times, though there may have been a forfeiture by reason of the non-performance of the first act; yet, if default be made in the performance of subsequent acts, a new cause of action arises on each default, and the statute runs from that. See Amott v. Holden, 18 Q. B. 593, 603; Sanders v. Cowend, 15 M. & W. 48; Blair v. Ormond, 17 Q. B. 423. THESPIS AND THEMIS. within the constitutional power of the legislature; From early times there has been an irrepressible but even if the society were a mere private corporaconflict between these two. The goddess of law tion, and the appropriation a mere gift for private has ever been rancorous toward the dramatic poet use, yet in view of the objects of the society it is and the stage. Whether this is provoked by a sense sustainable; that in the absence of constitutional of injury or a suspicion of rivalry is not quite clear. restriction, the power of the legislature over the subThe anger of the deity may arise from a just sense ject of taxation is supreme, and it is exclusively of the numerous abominable caricatures of her within legislative discretion to determine the subject courts and officers of justice which the former has and class to be taxed, the place and manner of coluttered, or it may possibly spring from her conscious-lection, and the purpose of its application, and the ness that lawyers are themselves the most consum- constitutional provisions against taking private mate actors, and that she is consequently an unwill-property for public use, etc., are not limitations on ing debtor or an unrecognized rival. Law has her the taxing power. tragedies more awful and her comedies more mirthful than those of the theater. But whatever the reason it does not concern us further to inquire. The fact is unquestionable that the law has always grudgingly tolerated the stage. We animadverted, last week, on the attitude of the pulpit toward the stage in connection with certain criminal prosecutions, and now we have to notice a singular instance of the intolerance of the law for the theater. The occasion of these remarks is found in the case of Wallack v. Mayor of New York, 5 N. Y. S. C. Rep. 310. This was an action to restrain the defendant from taking any proceedings against the plaintiff under chapter 836 of the Session Laws of 1872, entitled "An act to regulate places of amusement in the city of New York." This act provides that it shall not be lawful to exhibit the entertainments therein enumerated without a previous license from the defendant, and empowers him to grant such license on receipt of $500; imposes a penalty of $100 for every exhibition without such license, and authorizes the Society for the Reformation of Juvenile Delinquents to prosecute for such penalty in the name of the people; directs the payment of such license fees to that society; declares the violation of any of the provisions of the act to be a misdemeanor punishable by fine or imprisonment, or both; and authorizes that society to restrain, by injunction, the opening of any place for the exhibition of such amusements until a compliance with the provisions of this act. The It was claimed by the plaintiff, the proprietor of the celebrated theater, that this act is unconstitutional because it provides for the taxation of individuals for the support of a private corporation. general term held, that the legislature had power to confer upon the mayor the authority to regulate places of amusement by license; that the disposition of the moneys received for licenses did not affect the validity of the provision requiring the license to be obtained; that the society, even if a private corporation, was such only for public uses, and that the appropriation of the license fees was not a gift to private charity, but a provision for public uses lawfully administered through that corporation, and The distinction between the taxation of a business or enterprise, and the taking of private property for public use, is declared by Judge Ingraham in Fire Department v. Noble, 3 E. D. Smith, 440, to consist in this, that the citizen is not bound to conduct the business, and may escape the tax by refusing to carry it son; it is simply putting a condition on his prosecution of it. The As this case, like the modest guest at the marriage feast in scripture, will be apt to "go up higher," we shall not obtrude our opinion on its merits, and have called attention to it simply on account of the novelty and importance of the principle involved, and also to remark upon the ingenious and brilliant argument of the plaintiff's counsel, Mr. A. Oakey Hall, of which the general term observed: “We may enjoy, but we cannot otherwise use the admirable argument of the learned counsel for the respondent in defense of theatrical exhibitions, such as those conducted by his client." Mr. Hall cites the old Supreme Court of this State in favor of theaters. Judge Cowen, in Tanner v. Trustees of Albion, wrote a learned opinion, holding that bowling-alleys are nuisances, but quotes Hawkins as saying: "Playhouses were originally instituted for the laudable design of recommending virtue to the imitation of the people and exposing vice and folly." ancient further says that playhouses are not nuisances in themselves, but may become so, whereas bowling-alleys cannot be other than nuisances. Our legislature evidently agree with old Hawkins, and in order to assist playhouses to carry out their "laudable design," have levied a direct tax upon them for the reformatory institution in question. The counsel cites the Encyclopædia Britannica, which classifies the Book of Job as a dramatic composition, and refers to the miracle and moral plays of the church which preceded the proper English drama. He might also have referred to the great modern revival of the miracle-play at Ober-Ammergau, a few years ago, a spectacle which convened the intellect, culture, and piety of Europe. He also cites Rev. Dr. Bellows' Defense of the Drama, and Hudson's Growth of English Drama, and of the latter author he might have remarked that he was a clergyman. He pays a glowing tribute to the Greek drama, in "the magnificent performance of Eschylus, where noble diction, well-regulated music, scenery, and dress afforded every accessory requisite to heighten the illusion of the scene." He might have remarked, although perhaps it would not have aided his argument, that the modern opera bouffe, with its ridicule of all things human and divine, can be traced directly to the comedies of Aristophanes. The learned counsel takes the point that there is nothing in the plaintiff's business which authorizes the imposition of the license as an exercise of police power. Such impositions, he claims, are proper only for the protection of life, as in the licensing of steam-boilers; of limb, as in that of keeping gunpowder; of health, as in the enactment of inspection laws; of comfort and quiet, as in the licensing hawkers and peddlers; and of morals and public peace, as in that of drinking saloons and games. He would argue that the imposition in this case is as improper as would be a tax upon camp-meetings for the benefit of invalid clergymen. The counsel also argues that in like manner "the legislature may yearly inaugurate fresh eleemosynary raids upon other private business;" "may compel the National Academy of Design to pay $500 per year, out of its picture gallery moneys, for the use of the Blind Asylum; or "the Philharmonic Society to pay a similar sum out of its concert admissions to the use of the Deaf and Dumb Asylum;" | or that "whenever Mr. Weston takes money for pedestrian exhibitions, the legislature may enact that he shall apply for a license and pay the fee to the use of the Society for the Ruptured and Crippled!" But we have said enough to demonstrate how wit, literary culture, and historical learning can enforce and illuminate a legal argument. It behooves the counsel, however, not "to be as funny as he can," for if the decision in question shall stand as the law, we see no reason why the legislature may not tax Mr. Hall, as an amusement, and devote the proceeds to the benefit of the American Tract Society. LIABILITY OF INNKEEPERS. At the common law an innkeeper is responsible for the safe-keeping of property committed to his custody by a guest, and is an insurer against loss unless caused by the negligence or fraud of the guest, or by the act of God or the public enemy. This liability arose from considerations of public policy in a time when travelers were peculiarly exposed to depredation and fraud. In the early days of the common law England was sparsely settled, and there were numerous localities where one would travel for miles without seeing a human face or habitation. The highways were wretched, and locomotion was difficult, slow, and even dangerous. It was the custom of the wealthier classes, annually, to visit London and attend the court, and crowds of people, of all conditions, were frequently called thither from distant parts of the country on business, for pleasure, and in attendance on parliament or the law courts, the latter being very frequent, as nearly all the legal business of the kingdom was transacted at Westminster Hall. To accommodate the great crowds of travelers, numerous and well-appointed inns, or hostelries, as they were called, were established, which were frequently, and sometimes deservedly, the boast and pride of the locality. Hollinshed says of them: "Such is the capacity of some of them that they are able to lodge two or three hundred persons, and their horses, at ease, and thereto with a verie short warning make such provision for their diet, as to him that is unacquainted with all may seem to be incredible." Some of the very inn-signs cost thirty or forty pounds. The praises of these inns had been celebrated by Chaucer, who says of the Tabard Inn at Southwark: "The chambers and the stables weren wide, And wel we weren esed atte beste." And commends its victual and wine. Other poets and the dramatists, and even the moralists, speak in the same way. Johnson says: "There is nothing which has been contrived by man by which so much happiness is produced as by a good tavern or inn." Archbishop Leighton said, if he were to choose a place to die in, it should be an inn. The gentle Geoffrey Crayon says: "To a homeless man, who has no spot on this wide world which he can truly call his own, there is a momentary feeling of something like independence and territorial consequence when, after a weary day's travel, he kicks off his boots, thrusts his feet into slippers, and stretches himself before an inn fire. Let the world go without as it may; let kingdoms rise or fall; so long as he has the wherewithal to pay his bill, he is for the time being the very monarch of all he surveys. The arm-chair is his throne, the poker his sceptre, and the little parlor, some twelve feet square, his undisputed empire. It is a morsel of certainty, snatched from the midst of the uncertainties of life; it is a sunny moment gleaming out kindly on a cloudy day." And Shenstone sang: "Whoe'er has travel'd life's dull round, Where'er his stages may have been, May sigh to think he still has found, The warmest welcome at an inn." It will not hurt us, if we are lawyers, to read again the charming description in Goldsmith's Deserted Village: "Near yonder thorn, that lifts its head on high, Where once the sign-post caught the passing eye, The parlour splendours of that festive place; |