responsible for the negligence of the driver, which he could not reasonably anticipate or prevent. Lopes, J., is quoted in the same case as saying (Thorogood v. Bryan and Armstrong v. Railway Co. having both been in the meantime overruled in the English Court of Appeal in the case of The Bernina, L. R., 12 Prob. Div. 58): "A passenger in an omnibus, whose injury is caused by the joint negligence of that omnibus and another, may, in my opinion, maintain an action either against the owner of the omnibus in which he was carried, or the other omnibus, or both," and was clearly of opinion to overrule Thorogood v. Bryan, as had been many times held before that. Robinson v. Railroad Co., 66 N. Y. 11; Dyer v. Railway Co., 71 id. 228; Bennett v. Railroad Co., 36 N. J. Law, 225; Railroad Co. v. Steinbrenner, 47 id. 161; Transfer Co. v. Kelly, 36 Ohio St. 86, 91; Railway Co. v. Shacklet, 105 Ill. 364; Turnpike Co. v. Stewart, 2 Metc. (Ky.) 119; Railroad Co. v. Case's Adm'r, 9 Bush, 728; Thompkins v. Railroad Co., 4 Pac. Rep. 1165; Little v. Hackett, 116 U. S. 366. The doctrine of Thorogood v. Bryan, being declared to be unsound and in conflict with the principle that no one should be denied a remedy for injuries sustained without fault by him, or by a party under his control or direction; that the relation of master and servant and principal and agent does not exist in cases where the passenger has no control over the driver: that it is the right to control the conduct of the agent which is the foundation of the doctrine that the master is to be affected by the acts of his servant, and that no one is responsible for the negligence of another, unless the latter is his servant or agent. The doctrine of Thorogood v. Bryan was much criticised by the English judges, and has been at last overruled there. It was never generally followed in this country, and may be now properly said to be altogether discarded, and rightly so. The passenger has no control over the driver of an omnibus, and certainly none over the conduct of a railway train or steamboat, on which he has taken passage. He has no control over the movements of either, and is in fact powerless to prevent the negligence of either. As is pointed out in the case of The Bernina, supra, if the passenger is so identified with the driver as to be deemed to be guilty of his negligence, and therefore to be deprived of a right of action, it must necessarily follow that in addition to his rights being curtailed, his liabilities are correspondingly enlarged, and the result is that the passenger in an omnibus or other public conveyance is necessarily liable to third parties for the negligence of the driver, which could be maintained upon no sound principle. See note in Am. Law Rep. 27, 129. Va. Sup. Ct. App., April, 1889. New York, P. & N. R. Co. v. Cooper's Adm'r. Opinion by Lacy, J. Lewis, P., dissenting. NEW BOOKS AND NEW EDITIONS. LAWYERS' REPORTS (ANNOTATED). The first part of the fourth volume of this excellent series has just been issued. There are reported thirtyone cases, most of which are copiously annotated upon the following subjects: Action; election; concurrent or alternative remedies; waiver of tort; effect of election. Banks; application of depositor's money. Champerty. Constitutional law; departments of government. separation of. Contempt; summary punishment. Contracts; in partial restraint of trade; to prevent competition; effect of partial illegality. Corporation; effect of lease on liabilities. Dower; right of. Evidence; judicial notice. Fraud; what constitutes; constructive; fraudulent representations; suppression of fact: false promises. Husband and wife; validity and effect of divorce. Judgments; faith and credit in other States. Levy; wrongful, remedy for. Maintenance. Master and servant; assumption of risk; risks apparent; notice of danger; continuance in employment; assurances of master; contributory negligence. Negligence; imputed; of children; contributory. Perpetuities; uses and trusts. Release; of joint tortfeasor, effect of. Shipping; suit to recover penalty for overcrowding steamers. Statutes; joint resolutions; title and contents; constitutional provisions as to title; contents and amendments; repeal. Taxes; exemption; succession or inheritance tax. Trusts; statutory regulation; perpetuities. Will; devise of life-estate; lapsed devise. Witness; discrediting by party calling; contradiction of testimony. Rochester, N. Y.: Lawyers' Co-operative Publishing Company. NOTES. The question is whether the taxing master has a discretion to allow refreshers. The action came on for hearing at 12:35 on one day, and the court sat until 4 o'clock. The next day, the case began at 10:30 and ended at 12:30. The taxing master has reckoned three hours and twenty-five minutes one day and three hours the next day, and makes out that the hearing lasted five hours and twenty-five minutes, which is sufficient to give him power to allow refreshers. Sub-rule 48 of rule 27 of Order LXV, which governs the case, is in the following terms: "As to refresher fees, when any cause or matter is to be tried or heard upon vivâ voce evidence in open court, if the trial shall extend over more than one day, and shall occupy either on the first day only, or partly on the first day and partly on a subsequent day or days, more than five hours without being concluded, the taxing master may allow for every clear day subsequent to that on which the five hours shall have expired, the following fees." Now, Mr. Bousfield argues that "one day" must be read as "one day's time," that is to say, five hours. Though it is the practice for the court to adjourn in the middle of the day for something like thirty minutes, this is entirely within the judge's discretion. There is no reason why the judge should not return within five or ten minutes. Lord Romilly and Sir George Jessel on many occasions were absent from the bench for less even than ten minutes. I myself have recently prolonged the adjourn ment, partly because I find plenty of work to occupy my attention in seeing chief clerks and in dealing with other matters at this time of the day, and partly to suit the convenience of counsel who seem to require a half-hour's adjournment. Now in this interval counsel cannot go away and transact other forensic business, not because other judges may not be sitting, but because they do not know when the judge will return. I cannot therefore accede to Mr. Bousfield's proposition, that a half-hour should be deducted. It is quite clear that some time must be taken. Some interruption often takes place in the hearing of a cause by applications ex parte or of a pressing nature, which may take five, ten or fifteen minutes. Now ought that to be excluded? It seems to me not right that it should. This may occur more than once in the course of a trial. Now I come to the language of the rule as to refresher fees. It must be borne in mind that the language of the rule says "may," not "shall" allow. The rule goes on, "if the trial shall extend over more than one day, and shall occupy either on the first day only, or partly on the first and partly on a subsequent day or days, more than five hours." Thus the trial must extend over more than one day, but if it does, then the computation must be made of time. Nothing is said that the taxing master shall exclude the ordinary times of adjournment.-Chitty, J., in Collins v. Wor ley, 60 L. T. Rep. (N. S.) 748. The Albany Law Journal. THE ALBANY, AUGUST 17, 1889. CURRENT TOPICS. shallowness of the pretense that a law to close tippling saloons on Sunday cannot be enforced was long ago exposed in the city of New York, and just now has been even more strongly exposed in Cincinnati, where twelve hundred saloonkeepers, five-sixths of whom were Germans, announced their determination to resist the law. Only two hundred had the audacity to stand out at the last moment, and these were arrested and bailed, some of them more than once. After a hard fight lasting all day, disturbing the peace of the orderly citizens and the quiet of the holy season, these impu dent offenders were at last subdued. The boldness of this defiance of law by anarchists, socialists and rumsellers is almost unprecedented, and never would have been indulged but for a long course of truckling by both great political parties to win the votes of this foreign element. We shall watch with interest to see if this righteous action on the part of the public authorities is continued, or whether it is only a spasm of virtue like that in New York. It is high time that, immigrants should be taught that they cannot graft the riotous and disorderly Sunday of continental Europe on this country. In the little college town of Williamstown, Mass., one rumseller defied the whole town for several years, until his fines amounted to several thousand dollars, when he was jailed and finally succumbed. But while we are looking for motes in the eyes of our brothers, we should cast out the beams from our own. How does it happen that ball-playing on Sunday is allowed in Brooklyn and New York, and reported in the newspapers, without a struggle on the part of the police suppress it? These things ought not so to be. to The Washington Law Reporter criticizes our statement that ". 'public opinion even among the better classes is not conclusively against prize-fighting," and remarks: "For ourselves, we profess only a superficial knowledge of public opinion on this subject, but as far as that knowledge goes we are inclined to assert that public opinion among the better classes is decidedly opposed to prize fighting. It seems to us that the man who upholds this sport of the blackguard is ipso facto not of the better classes. The better classes are always in favor of enforcing the laws against it. * * * Decent people, on the principle that what is everybody's business is nobody's business, hold their hands off. Hence, as long as gamblers and prize-fighters confine their fleecing and brutality to themselves, their efforts to screen each other will be successful. The better classes, though they privately condemn, are VOL. 40-No. 7. * * * not apt to publicly interest themselves so much about it as to undertake the bother of prosecuting two men for pummelling each other when neither complains of it. Of course this is not right in the better classes, but it is so notwithstanding." Just so; that is what we said the opinion of the better classes is not conclusively against it; if it were, they would see that the law is enforced. Our contemporary concedes our case by admitting that so long as prizefighters simply batter one another, the better classes do not complain. Of course if they battered the better classes the latter would complain. Our contemporary must admit too that the better classes take an unholy interest in the details and results of prize-fights, even attending boxing matches. We have heard of a box full of the first young men of this city at a boxing-match at a theatre. Our contemporary is also unfortunate in instancing gamblers as a parallel, when it is well known that thousands of the better classes are gamblers in stocks and grain, at horse races, on elections, in lotteries, and in other ways. The truth of the assertion in the last sentence is demonstrated by a recent adjudication in the Supreme Court of this State. We have always heard and believed that many respectable lawyers and even a few judges in the city of New York are stockgamblers on Wall street. In the forthcoming volume of Hun's Reports may be found a case of a prominent stock-broker of that city against a well-known judge of one of the superior courts to recover a balance of $14,000 on stock transactions on margins. It is not at all probable that this judge would ever have assumed the attitude of plaintiff, but he could not very well avoid the unpleasant predicament of being embalmed as defendant in stock-gambling transactions in the history of the judicial adjudications of this State. And what a shameful chapter it is! The standing of the defendant is perhaps not so prominent as to make the affair generally public, and therefore it is not so shocking as it would be in the case of a more prominent man. But it nevertheless stands recorded that a magistrate of high authority and large jurisdiction, who is called to pass upon property rights of great magnitude, even stock transactions, is himself a stock-gambler on Wall street! Perhaps he will try to justify himself by saying that such transactions are not now illegal. So it is of pool selling within certain limits. But what high-minded citizen does not shrink from the picture? Imagine Lord Chief Justice Coleridge, or Mr. Justice Miller, or Chief Judge Ruger or Judge Daniels or ex-Judge Noah Davis in this attitude! It cannot be successfully argued that this practice hurts nobody but the man himself. It tends to degrade the bench in the estimation of the public and to shake public confidence in its integrity. It is the sort of thing that one might have expected of Barnard, who did not pretend to have any conscience, but in this instance it comes to us with a painful shock. This man should either give up stock gambling or go into the business exclusively. The Green Bag grows less "useless" and more "entertaining" with every number. The July num ber has an inviting table of contents, embracing a memoir and portrait of Rufus Choate, a sketch of the St. Louis Law School, with four portraits (including Dr. Hammond and Henry Hitchcock), the case of Clark v. Kelliher (killing trespassing hens), in verse, by Mr. Austin A. Martin, the case of Elacabide, and articles on Primitive Law in New England, the Morality of Advocacy, Police Courts in Belgium, and Curiosities of Jury Trials. Nothing can be droller than this, in the " Notes," from the London News "Seeing how attractive such an alliance seems in England, I cannot but inquire why the Englishman does not marry the wife's sister in the first place. Why does he go on marrying the wrong one, and then wait for death and the law to help him?" There is also a funny story of a creditor of the government at Fort Randall, who desiring an attachment, his lawyer filled up a blank stating that "he had reason to believe, and did believe, the said United States were about to leave the country," etc. Part of them did try to leave in 1861, but were "purwailed on to stop," as the highwayman in Dickens "purwailed" on a party, by putting "an ounce of lead in his nob." These "Notes" also tell of a Dutch proverb that "The better lawyer, the worse Christian." This last is certainly not true of the Hon. G. R. Chaney, of Red Cloud, Nebraska, who sends us A Lecture on the Evidences of the Future Life," a wellwritten and extremely orthodox, not to say Calvinistic production. It contains some very eloquent passages. We may say, with the author, that we believe "there is a law-giver as well as a law, and this great Law-giver is the author of all things." But reasonable men may reasonably hesitate about describing the indications as "evidences," and may prefer to call them "probabilities." Faith is not "evidence." The author cannot reconcile the doctrine of evolution with the Bible, although Mr. Gladstone seems inclined to believe it possible. The author takes the Garden of Eden too literally to suit us. whether Adam had a navel and whether the pious rise with their bowels. We have passed that age of silly conjecture, and yet it seems only to indulge in rancour over the question whether man once had a tail. Writing these lines in a cottage on the Sound where Bryant lived and wrote, we prefer to pin our faith on his creed expressed in the familiar closing lines of "Thanatopsis," and the closing stanza of the less familiar "Lines to a Waterfowl": "He who from zone to zone Guides through the boundless sky thy certain flight, IN NOTES OF CASES. N Knapp v. Preferred Mut. Accident Ass'n, 53 Hun, 85, a policy of insurance against "bodily injuries effected through external, violent and accidental means," provided for certain payments "if said member shall sustain bodily injuries by means as aforesaid, which shall, independently of all other causes, immediately and wholly disable and prevent him from the prosecution of any and every kind of business pertaining to the occupation under which he receives membership." The assured, described in the policy as a retired gentleman, having no occupation, injured himself while operating a buzz-saw at the shop of a wagon manufacturing company of which he was a stockholder and director, and in consequence was obliged to carry his arm in a sling, and was deprived of its use to some extent for some months. Held, that he was not entitled to recover. The court said: "First. Did the injury sustained by the plaintiff result from an exposure incident to the plaintiff's occupation named in the contract? And second, was the disability incurred 'total' within the definition of the contract? Both of these questions, we think, require to be answered in the negative, and therefore adversely to the plaintiff's claim. The undertaking of the defendant, as expressed in the contract, was not to indemnify against pain, suffering or inconvenience, but against loss of time in the prosecution of the occupation under which the insured received membership; and the injuries must be such as to wholly disable and prevent him from the prosecution of any and every kind of business pertaining' to such occupation. Can it be said that a man with his hand in a sling, and suffering a degree of discomfort from a painful wound in that member, is wholly disabled and prevented from the prosecution of every kind of business pertaining to the condition of a retired gentleman? The question is one which does not seem to admit of much discussion, but it would be easy to We are free to confess that we do not believe in the apple and snake story. It occurred to us when we were very young, as we have since found it occurred to Sir Thomas Browne, that Eve would have been frightened to hear a serpent speak. One who believes that account, except as an allegory, must believe that the earth was made in six days of twenty-fours each, and is it possible for anybody to believe that, in the light of scientific research? We rather believe that those " days" were thousands of years, which the Bible tells us are in God's sight but as a day. But the author's views seem to us much more reasonable and lawyer-like than those of Mr. Inger-suggest many duties, and even pleasures, pertaining soll. The latter is much the more credulous of the two. It is our opinion that men have always troubled themselves with creeds and religious conjectures too much, and not enough with the idea of right living. There was a time when the monks were ready to kill one another in disputes over such problems as to the domestic, social and business relations of a retired gentleman, from which he would not be wholly debarred by a disabled hand. He might still, it would seem, keep an eye upon his investments, collect and disburse or reinvest his income, attend the meetings of the boards of directors of which he was a member, superintend repairs and improvements to his property, and generally devote considerable attention to the care of himself, his family and his estate. That the plaintiff was totally disabled and prevented from any and every kind of business pertaining to the situation in life which he ascribes to himself seems not to be established by the evidence before us. But his case seems to us to be even more clearly excluded from the provisions of the contract by the answer to the first of the two questions above suggested. The work of operating a buzz-saw is proverbially dangerous; and is probably not less so when engaged in for amusement than when practiced as a business or occupation. The dangers are such as probably to exclude the case of one engaged in the business from the class of preferred risks. The injury sustained by the plaintiff occurred from voluntary exposure to these dangers. Can it be said that such exposure was incident to the occupation or condition of a retired gentleman ? If not the contract was, by its terms, void as to the accident resulting therefrom." In Louisville, N. 0. & T. Ry. Co. v. State, Mississippi Supreme Court, June 10, 1889, it was held that the act of Mississippi, March 2, 1888, section 1, which provides "that all railroads carrying passengers in this State (other than street railroads) shall provide equal but separate accommodations for the white and colored races, by providing two or more passengercars for each passenger train, or by dividing the passenger-cars by a partition so as to secure separate accommodations," operates only upon the carriage of passengers from points within the State to other points also within the State, and is not an interference with inter-State commerce. The court said: "Upon this question, this court sustains the relation of an inferior tribunal, and, without regard to the opinions of its members, must conform to the decisions of the Supreme Court of the United States, by which court only can an authoritative decision be made. Without attempting to argue for or against any conclusions reached by that court, we shall endeavor only to deduce from them the principles proper to be applied to the decision of the question involved. development of an immense inter-State commerce, with its incidental multitude of phases and ramifications, has disclosed to the generation of this day the magnitude of the power delegated to the Federal government by that clause of section 8, article 1, of the Constitution, by which Congress is given power 'to regulate commerce with foreign nations and among the States, and with the Indian tribes.' It is not surprising that the recognition of its extent has been of gradual growth in the court called upon construe it, nor that in judicial utterances there have been inconsistent and conflicting expressions. It does not lie within our province to point out or criticise real or supposed inconsistencies, but, taking the more recent decisions of that court, where they have limited or overruled prior cases, to apply the principles, as we understand them to be now an The to * * nounced, to the cause before us. But it does not follow that we are to treat decisions not clearly overruled as not longer binding because remarks are to be found in later cases which, somewhat extended, may be thought to be applicable to the facts here involved. We consider it to be settled, as stated by counsel for appellant, that transportation of persons is as much commeree as transportation of property, and as a corollary, that the inter-State transportation of persons is inter-State commerce, and that the State may not regulate such commerce, since it is national in character, and requires uniformity of regulation. It may also be conceded that absence of legislation by Congress on the subject is indicative of its will that such commerce shall be free and untrammelled. The question returns, whether the act under consideration is a regulation of inter-State commerce, and upon its solution hinges the controversy. The cases of Hall v. De Cuir, 95 U. S. 485, and Railroad Co. v. Illinois, 118 id. 557, are relied upon as decisive against the validity of the statute. We do not so understand them. * The question here is a different one from either of those involved in these cases. It is more nearly akin to that decided in Stone v. Trust Co., 116 U. S. 307, in which the right to regulate domestic commerce was considered and upheld. It is a matter of common knowledge that there are, at present, many State commissions for the regulation of State commerce, and one by the general government for the regulation of that between the States. Each occupies a field from which the other is excluded, and each is essential, or deemed so to be, to full control of the commerce of the country. By what authority can the transportation of domestic travellers be controlled if not by that of the State? Congress has no jurisdiction over the subject, it being confined to commerce 'with foreign nations, and among the States, and with the Indian tribes.' Suppose Congress should deem it advisable to enact a law similar to our statute for the regulation of inter-State transportation of passengers; could it be contended that it controlled as to passengers taken up and set down within a State? But how does the statute interfere with inter-State commerce, if it be true that it has no application save to those travelling wholly within the State? It is manifest from the plea that the statute is resisted because it imposes a burden, not on commerce, but upon the carrier. The addition of a car, at the State line, to each of its trains may impose additional expense on the company, but how it is a burden or obstruction to commerce it is difficult to perceive. We do not know of any decision in which the supposed burden of commerce, easily obviated by the act of the corporation, has been held to invalidate a statute in the interest of the carrier. The United States have no concern with the policy, merely, of domestic State laws. It may be that they are harsh, or unfair, or unjust. Admit it, and what follows? Surely not that they are invalid, but only that they should be repealed by that power having jurisdiction of the subject. It would seem to follow that since the transportation of passengers and of property stand upon the same footing, regulations of property within State limits being valid, regulations touching passengers of the same character, i. e., domestic travellers, are also valid." rendered the child legitimate. An equivalent of must not only be legitimate, but must have been actually born in wedlock. 129 Mass. 252, 254; 91 N. Y. 321, 322. It is worthy of remark that the famous statute of Merton (20 Hen. III, chap. 9) is in fact not a statute, but a mere entry on the minutes of Parliament of a refusal by the English lords to In Dayton v. Atkisson, New Jersey Court of Chan- assimilate the laws of England to that of the other cery, June 22, 1889, it was held that a child born civilized countries, by affirmatively declaring that out of wedlock, in Pennsylvania, and rendered legiti-the marriage of the parents subsequent to the birth mate by the subsequent marriage and cohabitation of its parents in that State, is competent to inherit land in New Jersey. Pitney, V. C., said: "I do not deem it worth while to state at any considerable length the grounds upon which I reach this conclusion. They are stated elsewhere much better than I could state them. The question involved was elaborately discussed in England in Doe v. Vardill, 5 Barn. & C. 438; same case, sub non. Birthwhistle v. Vardill, 2 Clark & F. 571; 7 id. 895; in New York in Miller v. Miller, 91 N. Y. 315; S. C., 43 Am. Rep. 669, and in Massachusetts in Rose v. Rose, 129 Mass. 243; S. C., 37 Am. Rep. 321. In the latter case Chief Justice Gray cites and comments upon every case up to that date (1880), and, after an exhaustive discussion of the whole subject, comes to the conclusion that the particular reasons that influenced the English court in holding in Doe v. Vardill, that an heir to land in England must be actually born in wedlock do not apply in this country; and that a person declared to be a legitimate child of another by the law of the State of the domicile must be held to have all the rights of a legitimate child wherever he goes. The Court of Appeals of New York in 1883, in the case above cited, came to the same conclusion in a case where a son born out of wedlock in Germany was legitimized by the subsequent marriage and cohabitation of his parents in Pennsylvania by force of the same statute above quoted, and held such son entitled to inherit lands in New York. The result in these cases has the support of Judge Story in his Conflict of Laws (section 93, et seq.); of Dr. Wharton in his work on the same subject (section 240, et seq.); and of Professor Parson in 2 Pars. Cont. (5th ed.) 600. An examination of these cases will show that the contrary result in England was attempted to be justified by the language of the statute, so called, of Merton (20 Hen. III, chap. 9), which it was claimed negatively enacted that the English heir must be born in lawful wedlock. Lord Brougham in 2 Clark & F., and again in 7 id., combats this position with arguments that the courts of New York and Massachusetts seem to think unanswerable, and they appear so to me. And see the strictures upon the result of the English decision in the judgment of Lord Justice James in Goodman's Trusts, L. R. 17 Ch. Div. 296-298. The English judges in Doe v. Vardill did not deny, but admitted, that the effect of the Scotch marriage in that case was to legitimize the previous-born issue, and that, being legitimate in Scotland, the country of his domicile, he was also legitimate in England. But they held, as before stated, that a person who inherits land in England LANDLORD AND TENANT-LEASES-AS- ILLINOIS SUPREME COURT, JUNE 15, 1889. SEXTON V. CHICAGO STORAGE CO. A lease, by a tenant, of the demised premises for his entire term, is an assignment and not a sublease, though the rent reserved is different from that reserved in the original lease, and though the second lease provides for forfeiture and re-entry for condition broken, and for surrender of the premises upon expiration of the term. In such case the assignee is liable to the original lessor for the rent reserved in the original lease. The original lessor is not estopped from treating the second lease as an assignment by having refused to release his lessee from his liability for rent, or to accept the amount |