tion. Ind. Sup. Ct., June 5, 1889. Louisville, N. A. & given a hypothetical case. Those of you who have C. Ry. Co. v. Hart. Opinion by Berkshire, J. VERDICT-CHANCE.-An instruction that "if the jury wished to compromise the amount of damage, they could each one write his amount of damage separately on paper, and then add them together, and divide them by five, the number of jurymen, and let that be their verdict," is erroneous. A verdict in each case on the trial is desirable, because if just, it will probably put an end to that litigation. If however it was not arrived at by a careful consideration of the evidence, it cannot be said to be the judgment of each member of the jury, and does not, in fact, as its name imports, speak the truth. The direction as to the mode of arriving at a verdict is clearly erroneous. Dana v. Tucker, 4 Johns. 487; Guard v. Risk. 11 Ind. 156; Johnson v. Perry, 2 Humph. 569; Barton v. Holmes, 16 Iowa, 252; Maxw. Pl. & Pr. (4th ed.) 489. Neb. Sup. Ct., June 27, 1889. Burke v. Magee. Opinion by Maxwell, J. See note, 35 Am. Rep. 394. NOTES. N his brief in Colman v. Crump, 70 N. Y. 573, Mr. IN wis baie te ry Arnoux says: It is the greed of gain, so eloquently denounced by Upton in his Law of Trade-marks, and not any 'childlike and bland' characteristics, that leads the plaintiffs to sell colored and spiced flour at mustard prices." But the court stood by "the heathen Chinee." As judges have so often said, and we have so often drawn attention to in these columns, expert witnesses, in nine cases out of ten in which they are called, are inclined to give their evidence as if they were retained as advocates for the respective sides subpoenaing them. This fact among other circumstances has tended greatly to depreciate in the minds of jury men that just weight which their evidence should have. The recent Liverpool poisoning case has brought prominently before the public the difficulty which a jury must feel in estimating the exact worth of the evidence of even so eminent experts as the medical witnesses in that case undoubtedly are. We doubt however that any one will receive much comfort from learning what the medical profession in America think of the evidence of their own members. At the meeting of the MedicoLegal Society of Chicago, held on the 1st of December, 1888, the attention of the society was given to the consideration of a suit for malpractice in which one of the members of the society had recently been a successful defendant. Dr. F. C. Hotz said: "From a medical point of view I think we may disagree with some applications Dr. G. made, but I am sure on the whole the case was managed well. We all have our individual views in regard to treating a case; I may use one medicine and another person another medicine for the same purpose, but that does not make the other treatment unjustifiable. We are none of us infallible; one may use corrosive sublimate and another something else, for conjunctivitis; and if one makes a mild application of nitrate of silver I should not be justified to condemn the treatment of the other as long as the majority of oculists consider it a valuable remedy. But this meeting, I believe, was called for the purpose of bringing out the medico-legal aspects of a recent case. An important medico-legal point is this: I became thoroughly convinced of the utter uselessness of expert testimony. All it can do is to muddle the heads of the jury. The expert is not allowed to give his opinion upon the merits of the case, from a medical point of view. Oh, no, that is for the jury to decide. He is been there and heard all that was put in a hypotheti cal case by the one side first, and then by the other side, will certainly agree that it is the easiest thing in the world to prove any thing with these hypothetical cases. The prosecution will put in the strongest way against the defense. They make it appear that the doctor has been as cruel as a butcher at the stockyards, handling the poor woman worse than an animal, and showing ignorance in every thing; they put all this into a hypothetical case to the expert, and of course he has to answer that such treatment is all wrong. Then comes the defense and puts another hypothetical case. In the light of their evidence of course the expert will say, 'he could not treat it any differently; that was elegantly done.' And there sit the twelve wise men, unfamiliar with medical technicalities, and they are to form an opinion out of this chaos of hypothetical cases! I am sure no jury has ever gone into the jury-room and paid any attention to the expert evidence in the case." Judge Oliver H. Horton said: "As to expert testimony, I do not think as a rule that lawyers have the highest appreciation of or place the highest value upon it. In the matter to which Dr. Hotz referred, of hypothetical questions as being so misleading to laymen-in any profession, for instance in your profession, to a jury who are utterly inexperienced, a hypothetical question is so misleading as to oftentimes result in injustice, but until somebody is sagacious enough to give us a better mode I know of no way to stop the present. Counsel for the plaintiff cannot be required to put a hypothetical question upon the defendant's case, but a suggestion from the doctor, it seems to me, would be very valuable. Instead of putting a hypothetical case, where the doctor had seen and examined the patient, the question should be: You saw the patient, what is your judgment?' and I think the question would have influence, from the doctor as an expert. When you saw this case, what was your opinion as to the defendant's treatment?' That however is not a legal aspect of this particular case, but only the mode of trying it by the lawyers; it is not in the law but in the mode of trying the case. But if he had not seen the patient, how are you going to ask him his opinion as an expert? In no mode that I know of except in a hypothetical case. Presumably the hypothetical question states the case as presented by the evidence. If it does not, the question is erroneous, but if it states the facts in the hypothetical question as developed in the evidence, then it is proper, and how else will you get the opinion of experts who have not seen the case?' Another thing I have observed somewhat as a rule, that the lawyer is seriously at a disadvantage when examining an expert where he is not thoroughly conversant with the subject himself, for the expert in nine cases out of ten will down him. Unless he is thoroughly posted, crammed for that particular case, if you please, he is apt to come out second best. I think the case stated to-night is a good illustration of the fact that expert testimony often does more harm than good. It is a good deal in the general view of the jury, like a case against a corporation. Expert testimony does not weigh as a rule. It is my belief that I could take medical experts and prove that any man in America was insane, and I ask you doctors if that is not pretty nearly true? And if that is true, how can you expect it to have weight against the truth, for we all know there are some saue people in America. The thought is in the air, and it has an effect upon expert testimony of all kinds." In view of the facts above related it is not surprising that the legal profession and the public are not in love with expert testimony at all, not only of medical experts, for they give their evidence in no way differently from experts in other professions.-London Law Times. children to extend all needed services to their par The Albany Law Journal.ents in the period of old age and infirmity as it was ALBANY, OCTOBER 12, 1889. CURRENT TOPICS. GREAT deal of space is given this week to the report of the Neagle case. The case is perfectly novel, and it is to be hoped that there may never be an occasion to cite it as a precedent in similar circumstances, but so important is the question, and so interesting is the case historically, that we believe that our readers will not object to our reporting it in full. the duty of the latter to provide for the former in the period of infancy and childhood. Children are not always as mindful of this obligation as they should be. Sometimes they are grossly negligent and indifferent, especially if their parents happen to be poor, and hence have nothing to leave to them. One of the comforts of old age is found in the attentions and kindly sympathies of dutiful and affectionate children." Here is no misstatement, but it might have been stated, that although the vaunted common law did not recognize any such obligation, yet it has been statutory for three centuries, in England and here, that the child is bound to support his blind, lame or impotent parents when poor. Then we find the following going the rounds: "The recent marriage of Viscount Dunlo of England, the heir of Lord Clancarty, to Miss Belle Bilton, a prominent music hall singer, has turned out disastrously. The viscount has gone to the Antipodes, and his wife still appears nightly at the Empire Theater, London. It is said that Dunlo's father will attempt to have the marriage annulled on the ground that his son was not of age. Miss Bilton was old enough to contract a legal marriage. The ceremony performed will bar her from instituting a suit for breach of promise of marriage, even if the the son was "not of age" his promise to marry is not enforceable, and no action lies for a breach of it. The ceremony has "nothing to do with the case." It devolves upon us every now and then to set the newspapers right in their law. At this moment there is an unusual number of instances in which the lay press is going wrong on legal points, and is unnecessarily exercised, and is raising false hopes, beliefs and expectations. Perhaps the most important of these is the failure of the grand jury to indict Justice Bookstaver for his judicial conduct in the Flack divorce case. The newspapers are wondering at this. Perhaps if the judge had been a party to an illegal conspiracy his judicial position would not shield him from indictment any more than it would protect him in case of murder or burglary. At least such is our impression. The Con-marriage is pronounced void." This is amusing. If stitution is vague; it says "the party impeached shall be liable to indictment," etc., but it does not prohibit indictment before impeachment. It would be singular if a judge could not be punished for murder until after impeachment. But if he has simply abused his judicial position by granting an order which he knew to be illegal, although it aided a conspiracy, the remedy is not indictment, but impeachment. That is what the grand jury meant in speaking of "another tribunal." We advise the newspapers to "go slow" about impeachment. It would not be easy to impeach a judge for appointing a referee nominated by both parties in a divorce case, although it is contrary to the rules. The rules are mere matter of agreement between the judges. They need not live up to them, although they ought to do so, and the judge's action was very foolish and impolitic. None the less so because it is not unusual. The Independent is a very fair lawyer, and usually writes with good sense and correct information on legal points. Just now it quotes from an opinion of Chief Justice Paxson, of Pennsylvania, deprecating actions by children against the estates of their parents for services, and holding that there must be an express contract. The chief justice said: "This is but a return for like duties rendered the son in his infancy by his parents. The law regards such services as but part of the performance of a filial duty which every man owes to his parents, and implies no contract for compensation therefor;" and The Independent observes: "It is clearly the duty of VOL. 40-No. 15. Then comes our intelligent neighbor, the Troy Times, which does not like lawyers, but which informs its readers that the Dominion of Canada is in danger of suits by persons whose houses or relatives, or both, were crushed by the fall of the cliff at Quebec, under which they had built and lived. There is no obstacle to bringing such suits, but the Dominion is in no danger of being mulcted. The State cannot be made liable in damages unless it consents by statute. That is the reason why we have a Court of Claims in this country, and a Canal Board in this State - to adjudicate upon claims against the government, which the government consents to pay when adjudged against it. If the excellent editor of the Times should stumble down an open elevator at the Capitol, he could not recover of the State, and if that building, which he so reviles, should slide down hill, the citizens injured would be without redress, so far as we can guess. It is so in respect to counties. But it is different in regard to cities, which are creatures of statute, municipal corporations, and liable in such circumstances. Quebec casualty, we believe, was the fall of a natural cliff, but the law would not have been different even if it had been the fall of a wall built by the government. The State is sovereign, and does not allow such familiarities on the part of its subjects and citizens. Meanwhile we advise the Times to get a lawyer on its staff. In regard to the law, the The newspapers are like the nobility, according to one of Molière's characters, who says, "they know every thing without having learned any thing." radical, novel and difficult. They were pioneer decisions, along the lines of which, as Mr. Justice Miller himself admits, the court has followed with very little deviation. Certainly no decision of Marshall has lost any of its sanction and influence, except that in Dartmouth College v. Woodward, which we believe has outlived its usefulness and the reverence once accorded it. It is not an exaggera tion to say that Marshall made the court what it is, raised it to its legitimate sovereignty among the governmental powers, and gave it its peculiar and shining pre-eminence over all other benches of magistrates now existing or that have ever been known. It was Marshall who worked out and demonstrated propositions which, as Mr. Hitchcock says, "To us are no more novel or sensational than is the idea of specific gravity, or the forty-seventh proposition of Euclid." Mr. Hitchcock emphasizes Marshall's original genius for the law, and his small obligation to precedents, by saying: "In deciding such questions Marshall was laying foundations, and erected no scaffolding." Mr. Hitchcock cele In the October North American-which is not precisely a newspaper, to be sure - three great medicine chiefs discourse on "The Open Door of Quackery." They satisfy us that there is a great deal of quackery, and that there should be stricter legislative regulation of medical schools, but Dr. Eggleston exhibits an astonishing ignorance of our Federal system of government when he urges that Congress ought to enact a general law for all the States. He recognizes the argument that the end can only be accomplished by State legislation, but he combats this by arguing that it can be done under the "general-welfare" clause. Would he argue that Congress can lawfully enact a general marriage law, or an oleomargarine law, or a vaccination law? Probably not, and yet these just as much concern the "general welfare." It is not necessary to tell lawyers that what the doctor proposes cannot be done, but it seems necessary to inform some phy-brates Marshall's noble independence in the trial of sicians of it. Dr. Flint is quite correct when he says that Dr. Eggleston's scheme is impossible, and he very wisely suggests that the proper way to effect the desired reform would be to pass a proper act in this State, which other States would probably follow. What Dr. Doremus thinks about the power of the Federal government is a little vague, but he observes that it does not interfere in the education of those preparing for the bar or pulpit," which "professions are equally important for the general welfare of the people' with that of medicine," and predicts that "in a few years each State will have its board of medical examiners, and a unification of the entire system of such boards will probably follow without action of the Federal government.” Meantime let the sick man beware when Dr. Eggleston tells him that there are ten thousand men practicing medicine in this country on diplomas of a single fraudulent school, and that some of them never studied medicine ten minutes. We have never read, in short space, so excellent a view of Chief Justice Marshall as is given by Mr. Henry Hitchcock in a lecture entitled "The Development of the Constitution as Influenced by Chief Justice Marshall," delivered before the Political Science Association of the University of Michigan. In some sixty pages is given a summary of the great chief's principal opinions, with a general account of his other achievement. He sat on the Supreme Court bench thirty-four years, during which time are reported 1,126 opinions, of which he wrote 519; of these opinions, sixty-two involved constitutional questions, and he wrote thirty-six of them. In this class of cases he dissented but once-in Ogden v. Saunders. These opinions in constitutional questions perhaps do not equal in number those pronounced by Mr. Justice Miller (we are not sure, and we wish some of our readers would ascertain), but the points settled by Marshall were by far more man: Burr, in which a right judgment was even more unpopular than in our modern cases of Tweed and Sharp. Mr. Hitchcock gives the following alluring portrait of this intellectual giant and pure states"The great influence which Marshall's intellectual power commanded was enhanced by his singularly winning personal traits. It is said that he never had a quarrel or an enemy. Friends and political opponents alike bear witness to the perfect purity of his life, his absolute integrity, his simple and genial manners, the gentle dignity of his bearing, and the sweetness and serenity of his temper. His demeanor on the bench was a model of judicial dignity, courtesy and patience; and the popularity which was remarkable even in his youth, became in late years an exalted and affectionate veneration, which his associates shared with the bar and the people at large." N Hine v. NOTES OF CASES. Cushing, 54 Hun, 519, an action for in "It was strenuously objected on the trial before the referee, and the objection has been urged in support of the appeal, that under the principle maintained by the case of Ryan v. New York Cent. R. Co., 35 N. Y. 210, no liability attached to the defendant for the destruction of the plaintiff's property in this manner. He was a tenant in the occupancy of the building under the defendant. Between this building and that in which the fire originated a space was appropriated to the maintenance of the elevator, closets and stairways. And each building communicated with this space by means of doors. The evidence tended to prove the fact, and it was not in this respect seriously controverted, that through the open spaces means of passing from one building to the other were supplied. The elevator was connected with each story of the building above * * * * * sidered to be that the primary cause may be the the ground floor, and it communicated on the east own property is liable to his immediate neighbor with the building occupied by the plaintiff, and on for the damage caused to him by the spread of the the west with that in which the fire occurred. Both fire on to his neighbor's next adjacent property.' the stairs and the elevator seem to have been used Id. 426. An effort was made in that case to relieve for the joint convenience of each of these struc- the defendant from liability under the statute of tures. And after the fire commenced it immedi- Anne, as it was afterward amended, declaring that ately burned its way through the space occupied by no action, suit or process whatever shall be had the elevator, closets and stairs, into the building in against any person in whose house, chamber, stable, which the plaintiff carried on his business, and it barn or other building, or on whose estate any fire progressed so rapidly as to preclude the possibility shall accidentally begin, nor shall any of removing from the fifth story of the building any recompense be made by such person for any damage of the plaintiff's machinery or other property which thereby.' But assuming this statute to have bewas there situated. Whether the defendant, as the come a part of the common law, it was held by the owner and landlord of these buildings, would be le- court that it did not include or relieve the owner gally liable for a destruction of the property by fire from liability for the destruction produced by a fire in the building occupied by the plaintiff was not a arising from its negligence. The principle was furpoint in controversy in Judd v. Cushing, 50 Hun, ther considered in Milwaukee, etc., Ry. Co. v. Kellogg, 181. And what was said incidentally in the decis-94 U. S. 469, where the law was declared and conion of the case, by way of reference to that point, is of course not controlling in this case. The facts, as they have now been presented for decision, justified the referee in finding as he did--that the proximate cause of the plaintiff's loss was the fire produced through the alleged negligence of the defendant's agent in the building in which the floors were shown to have given away. There was no intervening fact or circumstance, as there was in the case of Ryan v. New York Cent. R. Co., supra, by which the fire was carried from one building to the other. But it proceeded from the place where it commenced, by its own progressive ravages, into this connected building occupied by the plaintiff, and there caused the destruction of his property. The cause of this destruction was therefore the fire in the westerly building. Naturally and inevitably it burned its way through until the other building was reached and consumed. And when that is sustained by the evidence as the fact, the party by whose negligence the fire was in the first instance caused is the party producing the destruction of the property in controversy. This subject was further considered in Webb v. Rome, etc., R. Co., 49 N. Y. 420, where the fire, which was communicated by a loco-accelerate the progress of the fire after it originated, motive upon the defendant's railway to a tie at the but it progressed, by its own natural action and moside of the track, proceeded from the tie to an ac- mentum, into the building occupied by the plaintiff, cumulation of weeds and grass and down by the and there produced the destruction of this propside of the track. From thence it was conducted erty. And for that, if the fire was caused by the to a fence, and then upon the plaintiff's land, burn-negligence of the defendant's agent, he was liable ing the trees and soil, and finally doing the damage for the loss. And the principle applied in this mancomplained of in the action. And the court held ner seems to have been followed in Tanner v. New there that the defendant was liable for the loss in York Cent., etc., Co., 108 N. Y. 623." that manner produced. And in the course of the opinion, which seems to have received the approval of all the members of the court, it was said that it certainly is not a novel proposition, that he who by his negligence or misadventure creates or suffers a fire upon his own premises, which, burning his prop-anteed. The court, Barrett, J., said: "The rule in erty, spreads thence on to the immediately adjacent premises of another, and there destroys the property of the latter, is liable to him in an action for the damage he has suffered.' Id. 425. And it was further announced as the common law that he who negligently sets or negligently manages a fire in his In Burch v. De Rivera, 54 Hun, 367, it was held that a continuing guaranty ceases with a change in the membership of a firm whose obligation is guar England has always been that a guaranty does not continue in force after a change in the principal debtor's firm, unless so expressed in the instrument, either directly or by clear implication. The principle is plain. A man may be willing to guarantee A. and B., but be unwilling to guarantee A. and C. So C. tioned,' etc. And in Strange v. Lee, supra, Lord Ellenborough suggested a possible view upon which Barclay v. Lucas might be entertained. 'In Barclay v. Lucas the words were different from the present case, the clerk was to be taken into the service of the obligees as a clerk in the shop and counting-house, which might be supposed to mean the same house, however the individual partners might change.' The wide difference between such a case and that of a guaranty for the house of a principal debtor is apparent. In the latter case 'the house' could not, without an express stipulation to that effect, well be supposed to mean the same house, however the individual partners might change, and the guarantor's responsibility must have been understood to end when the persons for whom he agreed to be responsible ceased to constitute the house. The fact that the plaintiffs were not notified of the change is immaterial. They may have an action against the firm as it existed before the change, because of failure to notify them of such change or to publish the dissolution. That proceeds upon another principle, namely, the presumption attached to continuous firm dealings without notice. The guarantor however is not responsible for the state of facts which might justify a recovery against the original members. There is no evidence here that he was aware of the change. He seems to have been as much without notice as the plaintiffs themselves. But were it otherwise, we may say, in the language of Lord Blackburn in Backhouse v. Hall, supra: Nothing is stated below either that the defendant was under any obligation to inform the banking he may be willing to guarantee a firm composed of A. and B., but not a firm composed of A. and He may guarantee solely on the strength of B.'s ability or caution. At all events, his contract is to guarantee a copartnership firm composed of certain persons, and that contract cannot be altered or extended without his consent. The case of Backhouse v. Hall, 6 Best & Smith, 505; 118 C. L. R. 505, is directly in point. Lord Blackburn said it was a hard case, as the plaintiffs did not know of the change of membership for some years, whereas it was known to the guarantor. But the rule was deemed inflexible, and the court observed that "if the parties to a guaranty given to a firm mean that it is to continue in force though there be a change of parties, it is very easy to express that. Strange v. Lee, 3 East, 490; Weston v. Barton, 4 Taunt. 673; Simson v. Cooke, 8 Moore, 588; Myers | v. Edge, 7 T. R. 254; Dry v. Davy, 10 Ad. & El. 30; Solvency M. G. Co. v. Froane, 7 H. & N. 17; Pemberton v. Oakes, 4 Russ. 154. The present guaranty is not withdrawn from the general rule because of the expression, 'The house of J. de Rivera & Co.' That signified nothing more than the firm or partnership of J. de Rivera & Co. That the guarantor used the words 'house' and 'firm' as equivalent expressions is evidenced by this language: 'I am so well satisfied with the manner in which the said house is working that I have still left in their hands not only the one hundred and odd thousand dollars that I left with them when I withdrew from the firm, but I have increased the loan to some extent.' Thus the house is not treated as an institution or collective body or joint-stock company, with fluc-house of that fact, or that he took any steps to contuating membership, as in Metcalf v. Bruin, 12 East, 400. On the contrary, the writer evidently refers to the particular individuals whom he left in the firm, and with whose business qualifications, experience, character and judgment he was acquainted. These characteristics, it may fairly be presumed, he relied on, and for individuals possessing these qualifications he was willing to assume responsibility. The cases where peculiar or added force is given to the expression the house of' so and so, are those of indemnity bonds for personal service, such as Barclay v. Lucas, 3 Dougl. 32; and see note to Lord Arlington v. Merricke, 3 Wms. Saund. (3d Am. ed.) 414a, note 5. That was a case of security to the house for the fidelity of a clerk, and Lord Mansfield held that a continuous and successive indemnity was intended. As was said in the note above cited, for the fidelity of a clerk in the shop and countinga change of partners is said to make no difference, but the surety still continues.' This case of Barclay v. Lucas has been repeatedly criticised and doubted. Dance v. Girdler, New R. 42; Weston v. Barton, 4 Taunt. 681. In the latter case Lord Mansfield himself, in following the general and settled rule, observed: This then being the construction of the instrument from almost all the cases, in truth we may say from all (for though there is one adverse case of Barclay v. Lucas), the propriety of that decision has been very much ques 6 house ** * * ceal it.' The defendant's obligation is not to guar- CONSTITUTIONAL LAW-POWER OF GOV- UNITED STATES CIRCUIT COURT, NORTHERN DISTRICT MATTER OF NEAGLE. Where reasonable ground existed for apprehension of deadly violence on the part of T. toward an associate justice of 1 |