vision would not protect the carrier against liability for latent defects." This is the case to which I referred in my book. In Capehart v. Seaboard, etc., R. R. Co., 81 N. C. 438, decided in 1879, and reported since my book went to press, a precisely similar provision was held unreasonable. This is the case to which you referred in your article. I shall neither attempt to reconcile these decisions nor to explain why the court did not in the last case deign to notice their former ruling. It is, however, worth while to note that the reason which they give to sustain their latest position applies only to what Reade, J., called a "latent defect" (better latent "injury"), viz., "the stipulation must be reasonable; and we do not think it is reasonable to require the consignees of a car-load of cotton to cut into the bales before they are received, to ascertain whether they have been seriously damaged." The case required no such opinion as the jury had found that the damage sued for was patent. COURT OF APPEALS REPORTS. To the Editor of the Albany Law Journal: In view of the great inconvenience and loss occasioned by the delay in publishing the decisions of the Court of Appeals in the regular series of reports, I am led to suggest that an additional or an assistant reporter for the court should be appointed. The details of the plan will readily suggest them selves, and the additional expense to the State would be trifling compared with the benefit conferred upon the bar and through the bar upon the people. BROOKLYN, April 23, 1880. BROOKLYN LAWYER. [The trouble is not with the reporter. He is well up in his work. What we need is not another or additional reporter, but a reasonable contract, and a publisher who will keep it.-ED. ALB. L. J.] NOTES. THE published "Proceedings of the Illinois State Bar Association, at its third annual meeting, January 8,1880," contains an address by Hon. John A. McClernand, on the Scientific or Model Lawyer, and one on the Line of Demarcation between the powers of the State and Federal Judiciary, by Hon. James M. Riggs. -The April number of the American Law Register contains a continuation of an article on the Legal Effect of Sunday; the case of Box v. Jubb, on the right of drainage through another's land, with a note by Edmund H. Bennett; the case of Hynes v. McDermott, on foreign marriage, with a note by Hugh Weightman. Mr. Leonard A. Jones has issued a pamphlet monograph on the Legal Nature of the Rolling Stock of Railroads, published by G. J. Jones & Co., St. Louis. It is stated in the Vienna Juristische Blatter, that the Russian government has appointed a commission to examine and study the extradition laws and treaties of all nations, and then prepare a draft of an international code of extradition, which Russia will propose to the other powers. Prof. Dr. R. von Ihering, author of "The Struggle for Law," is publishing a series of articles in the Blatter on some points in ancient Roman law. They are written in a humorous style and make pleasant and instructive reading. The last few were on the usucapio pro herede lucrativa. Our Court of Appeals having held court in the city of New York last week, were entertained by the city judges at Delmonico's, by others at one of the clubs, and also by the Bar Association. We dare say they had a good time. But in Illinois they do these things still better. The Illinois State Bar Association, at their last meeting, wound up the banquet in the evening with a ball. The official report says "this feature of the evening continued until a late hour." Some one writes to the Central Law Journal, for an opinion in a case where A's horse ran away in a street, frightening B's horse, and causing the latter to run away and over a blacksmith who was at the moment shoeing a horse on the public sidewalk. The learned editor gives a long and exhaustive answer, concluding as follows: "If any one was guilty of negligence in respect to the injury which happened to the blacksmith, was the blacksmith guilty of contributory negligence such as would bar a recovery of damages? We do not suppose any one will assume for a moment that to carry on the business of blacksmithing on the sidewalk is a proper and lawful use of it. But the fact that a man is negligent, is committing a nuisance or is otherwise violating the law, does not justify another man in injuring him, if such injury can be avoided by the exercise of ordinary care. This rule has been held in favor of an ass; Davies v. Mann, 10 Mees. & W. 545; S. C., 2 Thomp. on Neg. 1105; a hog, Kerwhacker v. Cleveland, etc., R. Co., 3 Ohio St. 172; S. C., 1 Thomp. on Neg. 472; and an oyster; Colchester v. Brooke, 7 Q. B. 339; and we suppose it would hold good in favor of a blacksmith, although one humane court has denied its application in favor of a child. Hartfield v. Roper, 21 Wend. 615. Then, although the blacksmith was guilty of a nuisance in turning the sidewalk into a blacksmith shop, and in exposing his person there to the vicissitudes of highway travel while his mind was abstracted by the metaphysics of horse-shoeing, this would not justify the owner of team A, or the owner of team B, in running him down if they could have avoided the accident by the exercise of ordinary care. But we should suppose that his negligence in thus exposing his person under the circumstances stated, would be a more immediate cause of the injury than either the negligence of the owner of team A or the owner of tcam B." Vegetarians will rejoice at a decision lately given at Leeds, England, by the stipendiary magistrate. The question arose upon the seizure of a number of eggs stated to be unsound. The solicitor for the defense objected to a decision against his client, on the plea that eggs were not "meat." According to the statute, it appears that the articles subject to examination and condemnation are set down as any "animal, carcass, meat, poultry, game, flesh, fish, fruit, vegetables, corn,' and so forth. After a lengthened argument on both sides, the magistrate felt compelled to dismiss the summons, although he expressed an opinion that it was most desirable that the sale of unsound eggs should be stopped. The decision, as we have said, will be satisfactory to at least one section of the community. It has been the custom of vegetarians to place eggs in the same category as milk, and both these articles are freely partaken of by those who pin their faith to a purely vegetable diet. To the rest of the public the result of the inquiry will not be so satisfactory. Although, as the defendant's solicitor stated, "a bad egg carried its own condemnation," it must be recol lected that there are various degrees of badness, and that many a doubtful egg may be mixed up in puddings and other forms of cookery with at least the prospect of injury to delicate digestions. The Albany Law Journal. ALBANY, MAY 8, 1880. CURRENT TOPICS. HE Nine Chapters Code bill has passed both THE houses of our Legislature, and only needs the Governor's approval to become a law. The three so-called Field Codes have passed the lower house, and await the action of the Senate. This progress is satisfactory, we think, to a large majority of our shall be annulled, and new proposals shall be advertised for, but no bid shall then be entertained from such former contractor or any person connected in business with him as publisher or bookseller. This is excellent, and ought to pass.- Mr. Madden wisely proposes to compel life insurance companies to attach to every policy a copy of the application. In the Assembly, Mr. Duell proposes to compel courts to appoint, as referee to sell real estate under decree, any person agreed upon by the attorneys in a writing annexed to the judgment roll. The manner of the investigation of Cadet Whit profession. We want what Gen. Grant wanted-taker's case, at West Point, is a reproach upon jus"peace." If our legislatures or governors wait until a perfect Code, or a Code entirely satisfactory to everybody, or even to a majority of the legal profession, is devised, we shall always be in a state of uncertainty and unrest. The old Code of Procedure, which we considered well nigh perfection, was the subject of annual amendments for thirty years. Therefore it is no objection to these present proposed Codes that they do not suit everybody. If they are generally right, let them be adopted, and let the minor objections be made the subject of subsequent examination. To Mr. Throop's Code we have heard some objections - some possibly quite valid - but these can be looked to hereafter. To Mr. Field's Penal Codes we have heard some objections- some which we deem valid but these can be obviated hereafter. To Mr. Field's Civil Codes we have never heard any objection which we deem of any weight whatever. The whole question seems to be resolved into this: is any codification of principles or procedure advisable? If this question is to be answered affirmatively, as it seems to us it must, then these proposed Codes should be adopted. Either this, or let us hear no more of codification, and let us leave principles, capable of fixed verbal expression, to be interpreted according to the caprice, partiality, or comparative enlightenment of the particular judge. There is really but one argument against codification, and that is honestly and plainly expressed by a correspondent in another column the indisposition of our profession to read the laws which are now simple tradition. An important bill is introducea in the Senate by Mr. Winslow, to amend section 211 of the Code of Civil Procedure, by providing that the Court of Appeals reports shall be furnished at a price not exceeding $2 per volume, and that each volume shall contain at least 750 pages, in lieu of $3 and 500 pages, as at present. It also provides that the contracts must be for three years each, and must contain conditions that the contract price shall be the price of all volumes published or furnished after as well as during the term of the contract, and that no contractor shall charge a greater sum for past volumes than the contract price at which they were published. The contracts must be awarded to the lowest responsible bidder. Upon a judicial determination that the contractor has broken his contract it VOL. 21.- No. 19. tice, but it is nothing new for military tribunals. The New York Daily Register justly says: "The presence of able legal counsel as the representative of the department of justice is a wholesome restraint; and by so much as it excites antipathy to have the true principles of investigation pressed thus on a military court, by so much we may infer it restrains what otherwise would be the different action of the tribunal. Much of the evidence which the court has received is such as no impartial investigators would receive, mnch less ask for; and it stretches a civilian's faith in a military tribunal to believe that it would not have the unjust effect which seems to be its only motive. What possible bearing on the question of guilt has the opinion of the witnesses? It would be as well to assemble the population of the post and take their vote in ancient Athenian style as to proceed by accumulating the impressions, suspicions and beliefs of individu| als, and treating these as a part of the basis for the conclusion of the court. The experience of ecclesiastical tribunals on the one hand, and of military courts on the other, affords frequent demonstration of the substantial excellence of the rules of the common law and the procedure of the civil and criminal courts as a means of the just and impartial investigation of charges of wrong doing." Any thing more outrageous than Gen. Schofield's proclamation, pending the trial, acquitting the cadets of the commission of the outrage, declaring his sympathy with them for the injustice with which they have been treated, and removing the restraints under which they had been placed, it would be hard to conceive. The government should utilize the general's aversion to colored people by sending him west to fight Indians; and if he should chance to lose his scalp we shall be quite willing to believe that he scalped himself. Really, there is no safety, justice, nor fair play for mankind in the investigation of their legal rights. outside of purely legal tribunals. ** * * * * We are which, or postal card upon which indecent, lewd, obscene * * terms or language may be written or printed, are hereby declared to be nonmailable matter, and any person who shall knowingly deposit or cause to be deposited for mailing or delivery, any thing declared by this section to be non-mailable matter * * shall be deemed guilty," etc. The Federal commissioner finds the contents of the letter to be "grossly obscene and indecent, and the mailing of it proved;" but he declares that it is legally mailable matter, because on the envelope was only the direction to Mr. Rowland and his address, and he avers that the Federal statutes do not refer to scaled-up letters, whatever their character, if they are only respectfully directed; and a letter so sealed is not a "publication" within the statute. Some of the newspapers think this a "remarkable" decision. inclined to think that the commissioner is right. As the law stood before 1876 he would undoubtedly be right, for then the first sentence above quoted did not contain the word "writing," and the statute clearly referred only to "publications." That word was introduced in 1876, not very carefully, but probably with a view to the mailing of obscene writings designed for circulation, not private letters. The subsequent reference to envelopes was designed to cover the case of any letter sealed in an envelope superscribed in an obscene or indecent manner. It would perhaps be rather difficult to imagine a "writing" that is at the same time a "publication," in the ordinary sense of the latter word, but such a thing is possible. The matter is perhaps not quite free from doubt in grammatical construction, but we are inclined to believe that the accused could not be convicted under this statute. If the legislators had meant in this amendment to include "letters," they would have used that word, but the first reference to "letters" is in connection with envelopes. The object was to prohibit the public dissemination of indecency, and it was probably not intended that private sealed letters should be prohibited unless contained in envelopes indecently superscribed. Under the rule of strict construction which applies to all penal statutes, it is hardly safe to say that the accused is guilty. We should think that Judge Patterson, who disbarred the attorneys for reflecting in the newspaper on the political favoritism of his court (ante, 321), would find it rather difficult to get over In re Wallace, L. R., 1 P. C. 283. There an attorney and barrister of the Supreme Court of Nova Scotia addressed "a most reprehensible letter" to the chief justice, severely reflecting on the judges and their general administration of justice, on account of their disposition of certain causes in which he was a suitor. He was suspended from practice by the court, but that order was reversed by the Privy Council. Lord Westbury said: "This letter was a contempt of court." "It was an offense" which "had no connection whatever with his professional character, or any thing done by him professionally." "If an advocate, for example, were found guilty of crime, there is no doubt that the court would suspend him. If an attorney be found guilty of moral delinquency in his private character, there is no doubt that he may be struck off the roll." "When an offense was committed which might have been adequately corrected by that punishment, and the offense was not one which subjected the individual committing it to any thing like general infamy, or an imputation of bad character, so as to render his remaining in the court as a practitioner improper, we think it was not competent to the court to inflict upon him a professional punishment for an act which was not done professionally, and which act, per se, did not render him improper to remain as a practitioner of the court." In this case, too, Wallace had refused to apologize for his letter, which charged the judges with submitting to be "lobbeyed," and deciding causes on out-door statements. Here, too, the chief justice below insisted that the court were not actuated by "personal resentment," and had taken ample time for reflection. Will Judge Patterson take an anodyne, and read this case? We recently asked, in connection with Chief Justice Campbell's remarks on expert testimony, why he does not put his foot down on experts after this fashion in court. On a casual examination of recent Michigan decisions, we are inclined to think he has done so. For example, in People v. Monigan, 29 Mich. 4, testimony of detectives as to whether it were possible to commit a robbery in a certain manner was excluded. The chief justice said: "The experience of courts with the testimony of experts has not been such as to impress them with the conviction that the scope of such proofs should be extended. Such testimony is not desirable in any case where the jury can get along without it; and is only admitted from necessity, and then only when it is likely to be of some value. If experts are allowable on questions of criminal science, the professors and practitioners of that science would naturally be the experts needed. It is not presumable they would be easily obtained or very candid; and in a class of cases where possibilities are the subject of inquiry, it would be somewhat questionable whether detectives who are reputable could have complete knowledge on all criminal possibilities, however extensive they may suppose their knowledge to be." In Treat v. Bates, 27 id. 390, the court said: "The scientific testimony upon the extent of the backing up of water in such a stream, is, as courts frequently find it, not to be reconciled. * ** No theory can change the facts, and we need no aid of science to confirm the proofs of eyewitnesses." In Stewart v. Carlton, 31 id. 270, it was held that the question of the location of a section line or a starting-point is one of fact for the jury, and not one of theory to be finally determined upon the opinion of surveyors as experts. The chief justice said: "And where, as is generally the case in an old community, boundaries and possessions have been fixed by long use and acquiscence, was bound to apply to the debt of the plaintiffs, the verdict must be for the defendant; and answered the defendant's fourth point, namely, "if the jury find that as between the plaintiff and Miller the liability of the latter still exists, the alleged agreement was collateral, the statute of frauds requiring a finding applies, and the verdict must be for the defendant," as follows, that an inducement to give time, through Dock's promise, would be enough, and further charged that if Dock agreed to apply the means in his hands to Miller's debt, with Miller's acquiescence, he was bound thereby without a writing. This was affirmed, the court saying: "When the promise is to apply the funds or property of the debtor in the hands of the party, it is not necessary that the creditor should give up his recourse against the debtor upon the original claim. The promise is not a collateral, but an original one, founded on sufficient consideration." This principle is recognized in Belknap v. Bender, 75 N. Y. 446, with the limitations following: "If the promise in such case be made to the debtor in consideration of the transfer, it is no doubt valid. If it be made to the creditor after it has become the duty of the promisor under his arrangement with the debtor to pay, then it is valid." it would be contrary to all reason and justice to have them interfered with on any abstract notion of science. The freaks of opinionated surveyors have led to much needless and vexatious litigation and disturbance, and it is much to be desired that they should be confined to their legitimate place as witnesses on fact, and not on opinions, which lie beyond the domain of science." In Underwood v. People, 37 Mich. 1; S. C., 20 Am. Rep. 633, he said, in speaking of experts on insanity: "It is a result of the dangers which have been multiplied by the absurd lengths to which the defense of insanity has been allowed to go, under the fanciful theories of incompetent and dogmatic witnesses, who have brought discredit on science, and made the name of experts unsavory in the community." In Matter of Foster's Will, 34 Mich. 21, he observed: "Every one knows how very unsafe it is to rely upon any one's opinions concerning the niceties of penmanship. The introduction of professional experts has only added to the mischief, instead of palliating it, and the results of litigation have shown that these are often the merest pretenders to knowledge, whose notions are pure speculation. Opinions are necessarily received, and may be valuable, but at the best this kind of testimony is a necessary evil. Those who have had personal acquaintance with the handwriting of a person are not always reliable in their The same court held, in Penn. Railroad Co. v. views, and single signatures, apart from some known surroundings, are not always recognized by the one Langdon, Jan. 5, 1880, 37 Leg. Int. 172, that a paswho made them. Every degree of removal beyond senger who rides in a baggage car, by permission of the conductor, but against the rules of the road, and personal knowledge, into the domain of what is is injured in consequence of riding there, cannot resometimes called with great liberality scientific cover from the railroad company on the ground of opinion, is a step toward greater uncertainty, and its negligence. The court say: "Can a passenger the science which is so generally diffused is of very who voluntarily leaves his proper place in the pasmoderate value. Subject to cross-examination it may be reduced to the minimum of danger." In senger car, in violation of the rules of the company, to ride in the baggage car, or other known place of Pierce v. Pierce, 38 Mich. 412, he held that the effect danger, and who is injured in consequence of such of intoxication upon testamentary capacity is not a question for experts. In People v. Finley, id. 482, violation, recover damages for such injury? We he held that moral insanity is not a question necesare not speaking of a possible accident the result of a brief visit to the baggage car to give some needed sarily requiring expert testimony. directions about a passenger's baggage, to have it rechecked, or for any other legitimate purpose, but of a person who rides in a baggage car in violation of a known rule of the company and who is injured in consequence of such violation." "It is true the conductor has the control of the train, and may assign passengers their seats. But he may not assign a passenger to a seat on the cow-catcher, a position on the platform or in the baggage car. This is known to every intelligent man, and appears upon the face of the rule itself. He is expressly required to enforce it, and to prohibit any of the acts referred to, unless it be riding upon the cow-catcher, which is so manifestly dangerous and improper that it has not been deemed necessary to prohibit it. We are unable to see how a conductor, in violation of a known rule of the company, can license a man to occupy a place of danger so as to make the company responsible. It is otherwise as to rules which are intended merely for the convenience of the company or its passengers." The court distinguished Lackawanna & Bloomburg R. Co. v. Chenewith, 2 P. F. IN NOTES OF CASES. N Dock v. Boyd, Pennsylvania Supreme Court, January 26, 1880, Miller owed the plaintiffs certain money. The plaintiffs wrote to Miller, threatening legal proceedings. Miller sent the letter to the defendant, Dock, who, with Miller and another, owned certain land. The defendant called on the plaintiffs and said that he had property of Miller's in his hands, and would see the plaintiffs paid if they would give time. The plaintiffs agreed not to push Miller without giving notice to the defendant. Miller subsequently absconded, and the plaintiffs obtained judgment against him. Miller was largely indebted to the defendant, but the latter had in his hands lumber in which Miller had an interest. The judge at nisi prius refused to charge, as requested by defendant, that as there was no evidence to show that the defendant had in his hands property of Miller's which, as between himself and Miller, he which he took from a photograph, as to which there was no extrinsic evidence of the origin of its design, or whether it was an imitation of the oil painting or engraving. Held, that even if it had been proved that the idea or design of the photograph had been taken from the oil painting, the copying of such photograph was no infringement of the He Smith, 382, and Creed v. Penn. R. Co., 5 Norris, 139; S. C., 27 Am. Rep. 693, the former on the ground that the rule violated had no relation to the plaintiff's safety, and the latter on the ground that the place occupied, a caboose car in the rear of the train, was not a place of danger. Dunn v. Grand Trunk Ry. Co., 58 Me. 187; S. C., 4 Am. Rep. 267, was distinguished on both grounds. Keith v. Pink-copyright in the engraving, and that the plaintiff's ham, Ludren, 501, was a case where the passenger got on the outside of the coach, there being a vacant seat inside, after being told that if he did so it would be at his own risk; and in Huelsenkamp v. Citizens' Ry. Co., 37 Mo. 537, the passenger was on the platform of a street car, without prohibition; and in both these cases a recovery was maintained. In Washburn v. Nashville, etc., R. Co., 3 Hend. 638, and Carroll v. N. Y. & N. H. R. Co., 1 Duer, 571, there was no rule prohibiting passengers from riding in the baggage car. Jacobus v. St. Paul, etc., Ry. Co., 20 Minn. 125; S. C., 18 Am. Rep. 360, is opposed to the principal case. Of this the principal case says: "The difference between a rule for the convenience of the company, and one for the safety of the passenger, has been entirely lost sight of. In the former, the company would be liable, unless the violation was the cause of the accident producing the injury. In the latter, it is sufficient to relieve the company, that the injury was received in consequence of the violation of the rule, and this, notwithstanding the fact that the negligence of the company's servants was the cause of the accident. We do not regard Jacobus v. The Railroad Co. as entitled to weight as authority. The reasoning of the court is not satisfactory, and the authorities cited do not sustain the position assumed by the learned judge who delivered the opinion." On the other hand, in Robertson v. Erie Railroad Co., 22 Barb. 91, it was held that where one rode upon the engine in violation of the known rules of the company, and was there injured, he could not recover, notwithstanding he was there with the assent of the engineer. * In Lucas v. Cooke, Ch. Div., April 10, 1880, 42 L. T. (N. S.) 180, the owner of an oil painting called "Going to Work," and of the copyright therein, for valuable consideration, gave to the plaintiff a license in the following words: "I assign to you, for the purpose of producing an engraving of one size, the copyright of the picture * * entitled 'Going to Work.'" The plaintiff caused himself to be registered at Stationers' Hall as the proprietor of the copyright in the painting. Held, that the effect of the assignment, as regarded the plaintiff, after the preparation of an engraving and the registration of it, was that the plaintiff became the owner of the copyright in the engraving, and that the owner of the painting retained the copyright therein, each being at liberty to copy, and publish copies of that which was his own property. Under the circumstances aforesaid, the defendant, not having seen the painting or engraving, printed and published a chromo-lithograph very similar in design to the oil painting and engraving, but the main design of action to restrain the publication of the lithograph failed. The defendant was a printer in Leeds, who furnished chromo-lithographs for almanacs. averred that the one in question was copied from a photograph by Mora, of New York, which he found in Islington, and the picture closely resembled that owned by the plaintiff. The court said: "The result of this instrument, so far as regards the plaintiff, was that only after the preparation of the engraving and the registration of it did he become the owner of the copyright of the print or engraving, and that Mr. Halford remained the owner of the copyright in the painting. Each of them was at liberty at his pleasure to copy from and publish copies of that which he possessed, and neither could restrain the publication of a copy by the other of that which was in his possession and his property. Mr. Lucas, therefore, under the circumstances, ran the risk of allowing Mr. Halford to publish copies of the picture in his possession, if he thought fit, which certainly was not very great, considering his position in society, and the character of the painting, which was a portrait of his own daughter." As to the resemblance, averred to be accidental, the court said: "Then it is said that the photograph from which this chromograph is mainly taken is a copy, as the statement of claim alleges, of the said oil painting, and also of the said mezzotinto engraving, and that the design therein in the chromo-lithograph is the same as in the engraving. That it is to some extent a copy seems to me from a comparison of the two very probable, so far as the design is concerned. There are a number of likenesses about them which I think render it very likely that the design, on the one hand, of the original, originated the design of the other, they having in fact one common source. But I also bear in mind that there is no evidence to show what was the original of the photograph bearing the name of 'Mora.' I am left, therefore, entirely to inference. I must bear in mind, too, other things before I can come judicially to conclude that the one is necessarily a copy of the other. In the first place a little girl with a spade on her shoulder, and holding a pail in her hand, and without shoes and stockings, is one of the commonest objects of the seashore, as must be well known to everybody, as also would be the attitude assumed by a child in such circumstances. I must also bear in mind that we constantly meet with coincidences in many things which suggest a common origin for them, but which, if investigated and examined, are seen to be but coincidences, and not copies one from the other. Now, bearing all these things in my mind, I think I cannot safely come to the conclusion that that photgraph was a copy either from the oil painting or from the engraving. I re |