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whether the defendant's men had used reasonable guarded, which it ought not to have been. Into care to secure the flap. His direction implies that this ditch, or cutting, owing to its being unfenced, in that case only would the intervention of a third the horses fell and injured themselves and the party causing the injury be a defense.
carriage. It was contended that the remedy, if The cases of Hughes v. Macfie and others, and any, was against the contractor; but it was held Abbott v. Macfie and others, 12 W. R. 315, 2 H. & that the plaintiff was cntitled to recover against C. 744, two actions arising out of the same circum the company. stances, and tried in the Passage Court at Liver In Burrows v. The March Gas and Coke Company, pool, though at variance with some of the forego 20 W.R. 493, L.R. 7 Ex. Ch. 96, it was held in the ing so far as relates to the effect of the plaintiff's Exchequer Chamber, affirming a judgment of the right to recover where his own act as a trespasser Court of Exchequer, that where, through a breach has contributed to the injury of which he com of contract by the defendants in not serving the plains, is in accordance with them as respects the plaintiff with a proper pipe to convey gas from defendant's liability for his own act where that act their main into his premises, an escape of gas had is the primary cause, though the act of another taken place, whereupon the servant of a gasfitter may have led to the immediate result. The de at work on the premises having gone into the part fendants had a cellar opening to the street; their of the premises where the escape had occurred men had taken up the flap of the cellar for the with a lighted candle, and examining the pipe purpose of lowering casks into it, and having with the candle in his hand, an explosion took reared it against the wall nearly upright, with its place by which the premises were injured, the delower face on which there were crossbars towards fendants were held liable, though the explosion the street, had gone away. The plaintiff, in one had been immediately caused by the imprudence of the actions, a child of five years old, got upon of the gasfitter's man in examining the pipe with the crossbars of the flap, and in jumping off them a lighted candle in his hand. brought down the flap on himself and another In Collins v. The Middle Level Commissioners, child (the plaintiff in the other action), and both 17 W. R. 929, L. R. 4 C. P. 279, the defendants were injured. It was held that, while the plain were bound under an act of parliament to contiff, whose act had caused the flap to fall, could
struct a cut with proper walls, gates and sluices to not recover, the other plaintiff who had been in keep out the water of a tidal rlver, and also a culjured could, provided he had not been playing vert under the cut to carry off the drainage of the with the other so as to be a joint actor with him. land lying east of the cut, and to keep the same
Bird v. Holbrook, 4 Bing. 628, is another strik oper at all times. In consequence of the defecting case, as there the plaintiff was undoubtedly a ive construction of the gates and sluices, the water trespasser. The defendant being the owner of a of the river flowed into the cut and bursting its garden, which was at some distance from his western bank flooded the adjoining lands. The dwelling-house, and which was subject to depreda- plaintiff and other proprietors on the eastern side tions, had set in it without notice a spring gun for closed their culvert and so protected their lands, the protection of his property. The plaintiff, who but the proprietors on the western side, to lessen was not aware that a spring gun was set in the the evil to themselves, reopened the culvert, and garden, in order to catch a peafowl, the property so increased the overflow on the plaintiff's land, of a neighbor, which had escaped into the garden, and caused injury to it. The defendants sought to got over the wall, and, his foot coming into con ascribe the injury to the act of the western protact with the wire, which communicated with the prietors in removing the obstruction which those gun, the latter went off and injured him. It was on the other side had placed at the culvert, but it held, though his own act had been the immediate was held that the negligence of the defendants cause of the gun going off, yet that the unlawful was the substantial cause of the mischief. “ The act of the defendant in setting it, rendered the defendants," says Mr. Justice Montague Smith, latter liable for the consequences.
"cannot excuse themselves from the natural conseIn the course of the discussion a similar case of quences of their negligence by reason of the act, Jay v. Whitfield, 3 B. & Ald. 308, was mentioned, whether rightful or wrongful, of those who retried before Richards, C.B., in which the plaintiff, moved the obstructions placed in the culvert, unwho trespassed upon premises in order to cut a der the circumstances found in this case." - The stick, and had been similarly injured, had recover primary and substantial cause of the injury," says substantial damages, and no attempt had been Mr. Justice Brett, “was the negligence of the demade to disturb the verdict.
fendants, and it is not competent to them to say In Hill v. The New River Company, 9 B. & S. |
that they are absolved from the consequences of 303; 16 W.R.C. L. Dig. 73, the defendant created a
their wrongful act by what the plaintiff or some nuisance in a public highway by allowing a stream
one else did. I do not see how the defendants can of water to spout up open and unfenced in the
excuse themselves by urging that the plaintiff was road. The plaintiff's horses, passing along the
prevented by other wrongdoers from preventing road with his carriage, took fright at the water
part of the injury.". thus spouting up, and screwed to the other side The case of Harrison v. The Great Northern of the road. It so happened that there was in the Railway Company, 12 W, R. 1081, 3 H. & C. 231, road an open ditch or cutting which had been
belongs to the same class. The defendants were made by contractors who were constructing a i bound under an act of parliament to maintain a sewer, and which had been left unfenced and un- ' delph or drain with banks for carrying off water for the protection of the adjoining lands. At the | ble for damage which is not the natural or ordinary same time, certain commissioners appointed under consequence of such an act, unless it be shown that an act of parliament were bound to maintain the he knows, or has reasonable means of knowing, navigation of the river Witham, with which the that consequences not usually resulting from the act delph communicated. There having been an ex are, by reason of some existing cause, likely to intraordinary fall of rain, the water in the delph tervene so as to occasion damage to a third person. rose nearly to the height of its banks, when one of Where there is no reason to expect it, and no them gave way and caused the damage of which knowledge in the person doing the wrongful act the plaintiff complained. It was found that the that such a state of things exists as to render the bank of the delph was not in a proper condition, damage probable, if injury does result to a third but it was also found, and it was on this that the person it is generally considered that the wrongful defendants relied as a defense, that the break act is not the proximate cause of the injury, so as ing of the bank had been caused by the water in it to render the wrong-doer liable to an action." And having been penned back owing to the neglect of Grove, J., said: “I am entirely of the same opinthe commissioners to maintain in a proper state ion. I think the act of the defendant was not the certain works which it was their duty to keep up ordinary or proximate cause of the damage to the under their act. Nevertheless the defendants plaintiff's horse, or within the ordinary consewere held liable.
quences which the defendant may be presumed to These authorities would appear to be sufficient have contemplated, or for which he is responsible. to maintain the plaintiff's right of action under The expression, natural' consequence, which has the circumstances of this case. It must, however, been used in so many cases, and which I myself be admitted that in one or two recent cases the have no doubt often used, by no means conveys to courts have shown a disposition to confine the li the mind an adequate notion of what is meant; ability arising from unlawful acts, negligence, or 'probable' would perhaps be a better expression. omission of duty within narrower limits, by hold If, on the present occasion, the water had been ing a defendant liable for those consequences only allowed to accumulate round the spot where the which, in the ordinary course of things, were likely washing of the van took place, and had there frozen to arise, and which might therefore reasonably obviously within the sight of the defendant, and be expected to arise, or which it was contemplated the plaintiff's horse had fallen there, I should have by the parties might arise from such acts, negli been inclined to think that the defendant would gence, or omissions.
have been responsible for the consequences which In Greenland v. Chaplin, 5 Ex. 243, Lord Chief
had resulted." And Mr. Justice Keating said: Baron Pollock says: “I entertain considerable
“The damage did not immediately flow from the doubt whether a person who is guilty of negli
wrongful act of the defendant nor was such a gence is responsible for all the consequences which
probable or likely result as to make him responsimay under any circumstances arise, and in respect
ble for it. The natural consequence, if that be a of mischief which could by no possibility have
correct expression, of the wrongful act of the debeen foreseen, and which no reasonable person
fendant would have been that the water would would have anticipated.
under ordinary circumstances have flowed along Acting on this principle, the Court of Common
the gutter or channel, and so down the grating to Pleas, in a recent case of Sharp v. Powell, 20 W.
the sewer. The stoppage and accumulation of the R. 584, L. R. 7 C. P. 253, held that the action
water was caused by ice or other obstruction at
the drain, not shown to have been known to the would not lie where the injury, though arising from the unlawful act of the defendant, could not
defendant, and for which he was in no degree rehave been reasonably expected to follow from it.
sponsible. That being so, it would obviously be The defendant had, contrary to the provisions of
unreasonable to trace the damage indirectly back the Police Act, washed a van in the street, and
to the defendant." suffered the water used for the purpose to flow
We acquiesce in the doctrine thus laid down as down a gutter towards a sewer at some little dis
applicable to the circumstances of the particular tance. The weather being frosty, a grating through
case, but we doubt its applicability to the present, which the water flowing down the gutter passed
which appears to us to come within the principle into the sewer had become frozen over, in conse
of Scott v. Shepherd and Dixon v. Bell, and the quence of which the water sent down by the de
later cases to which we have referred. At the fendant, instead of passing into the sewer spread
same time it appears to us that the case before us over the street and had been frozen, rendering the will stand the test thus said to be the true one. street slippery. The plaintiff's horse coming along
For a man who unlawfully places an obstruction fell in consequence, and was injured. It was held across either a public or private way may anticithat, as there was nothing to show that the defend pate the removal of the obstruction by some one ant was aware of the obstruction of the grating, and entitled to use the way, as a thing likely to hapas the stoppage of the water was not the necessary pen; and if this should be done the probability is or probable consequence of the defendant's act, he that the obstruction so removed will, instead of was not responsible for what had happened. Lord being carried away altogether, be placed someChief Justice Bovill there says: “No doubt one where near; thus, if the obstruction be to the carwho commits a wrongful act is responsible for the riage way, it will very likely be placed, as was the ordinary consequences which are likely to result case here, on the footpath. If the obstruction be therefrom; but, generally speaking, he is not lia- ' a dangerous one, wheresoever placed, it may, as
NOTES OF RECENT DECISIONS.
was also the case here, become a source of danger from which, should injury to an innocent party occur, the original author of the mischief should be held responsible. Moreover, we are of opinion that, if a person places a dangerous obstruction in a highway, or in a private road, over which persons have a right of way, he is bound to take all necessary precaution to protect persons exercising their right of way, and that if he neglect to do so, he is liable for the consequences. It is unnecessary to consider how the matter would have stood had the plaintiff been a trespasser. The case of Mangan v. Atterton, 4 H. & C. 388, L. R. 1 Exch. 239, was cited before us as a strong authority in favor of the defendant. The defendant had there exposed, in a public market place, a machine for crushing oil cake, without its being thrown out of gear, or the handle being fastened, or any person having the care of it. The plaintiff, a boy of four years of age, returning from school with his brother, a boy of seven, and some other boys, stopped at the machine. One of the boys began to turn the handle; the plaintiff, at the suggestion of his brother, placed his hands on the cogs of the wheels, and, the machine being put in motion, three of his fingers were crushed. It was held by the Court of Exchequer that the defendant was not liable, first, because there was no negligence on the part of the defendant, or if there was such negligence it was too remote; secondly, because the injury was caused by the act of the boy who turned the handle, and of the plaintiff himself who was a trespasser. With the latter ground of the de cision we have in the present case nothing to do, otherwise we should have to consider whether it should prevail against the cases cited with which it is obviously in conflict. If the decision as to negligence is in conflict with our judgment in this case, we can only say that we do not acquiesce in it. It appears to us that a man who leaves in a public place, along which persons, amongst them children, have to pass, a dangerous machine which may be fatal to anyone who touches it, without any precaution against mischief, is not only guilty of negligence, but of negligence of a very reprehensible character. And not the less so because the imprudent and unauthorized act of another may be necessary to realize the mischief to which the unlawful act or negligence of the defendant has given occasion. But, be this as it may, the case can not govern the present; for the decision proceeded expressly on the ground that there had been no default in the defendant. Here it can not be disputed that the act of the defendant was unlawful.
On the whole, we are of opinion, both on principle and authority, that the plaintiff is entitled to our judgment.
JUDGMENT for the plaintiff.
COMMON CARRIER-BILL OF LADING-EXEMPTION. -Germania Fire Ins. Co. v. Memphis & Charleston R. R. Court of Appeals of Naw York, 7 Ins. L. J. 547. Opinion by RAPALLO, J. 1. Cotton was shipped by a railroad company, and after its delivery, but before the cotton had started on its destination, a bill of lading was given which exempted the carrier from loss by fire. Insurance was effected by the shipper, and the bill of lading delivered to the insurer. Held, in an action by the insurer against the carrier, that the plaintiff was subject to any defense that would be available against the shipper; and in the absence of negligence the bill of lading exempted the carrier from liability, 2. The bill of lading having been accepted without objection, was the contract, and the shipper could not resort to an alleged prior oral agreement; he was bound to know its contents. To take the case out of this rule, it would be necessary to show that the goods had passed beyond the shipper's control before the bill of lading was delivered.
NEGLIGENCE-MASTER AND SERVANT-MINING OPERATIONS-FELLOW-SERVANTS.-Lehigh Valley Coal Co. v. Jones. Supreme Court of Pennsylvania, 5 W. N. 436. Opinion by MERCUR, J. 1. In order to bring a case within the rule that a master is not responsible for an injury happening to a servant through the negligence of a fellow-servant, it is not necessary that the injured and the negligent servants should be engaged in the same particular work; it is sufficient if the general scope of their employment be the same. 2. A “ driver boss" was killed in a coal mine, by an explosion caused by the negligence (if any negligence there was) of the “mining boss," who had given an order to. reduce the supply of fresh air. Held, that the two were fellow-servants within the meaning of the rule, and that the owner of the mine was not responsible. 3. To prove contributory negligence, testimony is ad. missible to show that the deceased, at the time of his. death, was in a position which he had been warned, and himself had warned others, was dangerous. Mula len v. Steamsbip Co., 28 Sm. 25,1 W. N. 218, explained.
ACCIDENT INSURANCE - CONDITIONS— NOTICELyon 0. Ry. Pass. Ins. Co. Supreme Court of Iowa, 7 Ins. L. J. 491. Opinion by Day, C.J. 1. The policy provided that insured might recover for accidental injuries only which totally disabled, and prevented him from the transaction of all kinds of business. Held, that an instruction that the plaintiff might recover, thongh able to do some parts of the accustomed work pertaining to his business, so long as he could not, to some extent, do all parts and engage in all the employments of it, was erroneous. 2. An instruction that the ability of the insured to engage in some business or occupa. tion would not prevent recovery unless it was one which he was qualified to engage in as an occupation, and transact in the ordinary way, was erroneous; such partial disability does not entitle to indemnity. 3. The policy, after stating the conditions of the company's liability, adds: “Provided that, in the event of bodily injury or death insured against, by reason of which a claim for loss may be made under this contract, immediate notice shall be given, etc.” Held, that the liability of the company is contingenton such notice being given, and an instruction that a failure to give such no. tice in the time provided, will not prevent recovery, unless it prevented the company from properly investigating the loss, was erroneous. 4. Where notice was delayed for a month, but it appeared that insured was under treatment nine weeks, the question of due diligence was for the jury; and a refusal to instruct as a matter of law, that it had not been exercised, was not rror.
MR. SAMUEL HAND, of Albany, has been appointed to the vacancy in the New York Court of Appeals, caused by the death of Judge Allen.
CONSTITUTIONAL LAW-POWERS OF MUNICIPAL that after providing for the relief of the needy kind. CORPORATION - REGULATING TRADES- Ex parte red of the testator, the surplus was applicable to charFrank-Supreme Court of California, 1 Cal. Leg. Rec. itable objects generally. Gillman v. Taylor, 21 W. R. 225. Opinion by CROCKETT, J.-1. A municipal corpo 823, L. R. 16 Eq. 581, discussed. ration is the creature of the statute, invested with such
TRADE-MARKS-INJUNCTION-MUSICAL PUBLICApower and capacity only as is conferred by the statute,
TION-FRAUDULENT IMITATION OF TITLE.-Metzler or passed by necessary implication. 2. In construing
v. Wood, English High Court, Chy. Div., 26 W. R. 577. the words of the grant, the whole chapter and the gen.
- The plaintiffs were the proprietors of an elementary eral legislation of the state respecting the matter must
musical work, called “Hemy's Royal Modern Tutor be consulted in order to determine whether, by the
for the Pianoforte.” The defendants, who had purterms “license and regulate," it was intended to au
chased the plates of an old pianoforte tutor, called thorize licenses for purposes of revenue. Acting on this rule of interpretation, it is held that the act giving
“Jousse's Royal Standard Pinaforte Tutor," employed
Mr. Hemy, the editor of the plaintift's work, to re-edit it, power “to license and regulate trades, callings and
and called the new edition - Hemy's New and Revised employment as the public good may require to be
Edition of Jousse's Royal Standard Pianoforte Tutor," licensed and regulated," confers power to exact license
the name “Hemy" being at the head of the title-page, fees for purposes of revenue. 3. But an ordinance
and in characters much more conspicuous than the passed under a general authority of this nature must
word “Jousse's." Held, (affirming the decision of be-(1), reasonable, consonant with the general pow.
Malins, V. C.), that the plaintiffs were entitled to an ers and purposes of the corporation, and not incon
injunction, on the ground that the title-page of the sistent with the laws or policy of the state. (2), it must
defendant's work's was a fraudulent imitation of that not be oppressive; (3), it must be impartial, fair and
of the plaintiff, and calculated to deceive the publie. general; (4), it may regulate, but must not restrain trade or contravene public policy. 4. One Frank was
JURISDICTION-DOMICIL, ABANDONMENT — TEMconvicted of a misdemeanor, for violation of what is
PORARY RESIDENCE IN ENGLAND-SUIT FOR RESTI. known as the “Sample seller's ordinance," and being
TUTION OF CONJUGAL RIGHTS-SERVICE OUT OF JUrestrained of his liberty upon process issued upon the RISDICTION.-Forebrace 0. Forebrace, English High judgment of conviction, was before the court on a writ Court, Probate and Divorce Division, 26 W. R. 613. – of habeas corpus. The ordinance provides in effect that 1. The 20 & 21 Vict. c. 85, s. 42, gives the court no any person who shall sell or solicit for the sale or pur
power to order service out of the jurisdiction of a pe: chase of any goods, wares, merchandise, etc., without
tition for restitution of conjugal rights. 2. A wife's at the time having the goods at or in the city and
domicil is that of her husband, and her remedy for county of San Francisco, or a bill of lading of a com matrimonial wrongs must, as a general rule, be sought mon carrier, showing the goods are in transitu to said in the courts of that domicil; and, therefore, the wite city and county, shall pay a license of $2,000 per quar of a man not domiciled in England can not maintain ter for every $250,000 of business done, and then estab. a suit for restitution of conjugal rights if her husband lishes other proportions. But the ordinance pro.
has left the jurisdiction before the commencement of vides also for licensing other persons for buying and
the proceedings. 3. A, a native of Barbados, was selling the same character of goods that are within the
for many years an officer in the English army, and corporate limits of said city and county, fixing the fees served with his regiment in England and Scotland, and at $100 per quarter for the same amount of business.
in various places abroad. His son, B, was born in Held, that the ordinance is flagrantly unjust, oppress 1828, in England, where the regiment was then sta. ive, unequal and partial. It contravenes public policy,
tioned. In 1841 A retired from the army, and went and obstructs commercial intercourse between the
with his wife and children to Australia where he re. principal seaport city of the state and the interior, and sided until his death, in 1856. B lived with. A till the is in restraint of trade, and is, therefore, inoperative
death of the latter and remained in Australia for ten and void.
years longer. In 1858 he was married at Melbourne to C, who was a native of Australia, and in 1866, he ca ne
with C and his children to England, where he resided SOME RECENT FOREIGN DECISIONS.
for several years, but without establishing himselt in a permanent home, the bulk of his property beivg still
in Australia. In 1869 he presented a petition for dis; PRACTICE-TRIAL-DEPOSITION-ILLNESS-Queen 0. Wellings, English High Court, 26 W. R. 592.- Preg
solution of marriage, on the ground of C': adultery;
the petition was ultimately dismissed, and he soon nancy alone may be a source of “illness" within the meaning of the 11 & 12 Vict. c. 42, $17, such as to give
afterwards left England. Aner his departure, C com
menced a suit for restitution of conjugal rights, and B the presiding judge discretionary power to admit in evidence in a prosecution the deposition of a witness
appeared under protest. Held, that neither A nor B who is unable to travel in consequence of her ap
had ever a quired a domicil in England; that A bav.
ing acquired an Australian domicil, and B having as proaching confinement.
a minor acquired his father's domicil of choice and af. CUSTOM BAD IN LAW.-Bradburn v. Foley, Eng. terwards continued it by his own act, the domicil of lish High Court, C. P. Div. 17. Alb. L. J. 483.-A the latter was in Australia; that B had never aband. custom that the outgoing tenant of a farm shall look oned such domicil; and that, after B had left Eng. exclusively to the incoming tenant, where there is land, the court had no jurisdiction to entertain C's one, and not to the landlord for compensation for the petition for restitution of conjugal rights. Yelverton seeds, acts of husbandry , tillages, etc., is so unreason v, Yelverton, 8 W. R. 134, 1 S. & T. 574, followed. able, uncertain and prejudicial to the interests of both landlords and tenants as to be bad in law. CHARITABLE BEQUEST_GIFT TO "POOREST OF
DIGEST OF DECISIONS OF THE SUPREME MY KINDRED"-CONSTRUCTION-APPLICATION OF SURPLUS.-Atty.-Gen. v. Duke of Northumberland,
COURT OF THE UNITED STATES. English High Court, Chy. Div., 26 W. R. 586.-A gift “ for the relief and use of the poorest of my kindred "
October Term, 1977. must, to be a charitable gift, be construed as a gift for MARRIAGE-STATUTORY REQUISITES DO NOT TAKE the benefit of those who are really poor and not of | AWAY COMMON LAW RIGHT.-1. A statute may take those who are the least wealthy. Held, accordingly, I away the common law right of marriage, but there is
ABSTRACT OF DECISIONS OF SUPREME
COURT OF ILLINOIS.
[Filed at Ottawa, June. 21, 1878.]
Hon. John SCHOLFIELD, Chief Justice.
PICKNEY H. WALKER,
always a presumption that the legislature has no such intention, unless clearly expressed. 2. Such formal provisions as regulate the requirements of the mar, riage ceremony, may be construed as merely directory, instead of being treated as destructive of the common law right to form the marriage relation by words of present assent.--Meister v. Meister. In error to the Circuit Court of the United States for the Western District of Pennsylvania. Opinion by Mr. Justice STRONG. Reported in full 10 Ch. L. N. 315.
CONFISCATION LAW Not RETROACTIVE.-In May, 1862, C., who was a member of the Confederate Congress, and engaged in armed hostility to the United States within the Confederate lines, conveyed to plaintitt, his son, also within the Confederate lines and engaged in hostility to the United States, certain real estate situate in the city of New Orleans, then within the Federal lines. Subsequently, and under authority of the act of Congress of July 17, 1862, the property was confiscated in proceedings against C., and sold by the United States Marshal. Held, 1. That the confiscation act mentioned did not authorize proceedings for acts committed before its passage. 2. That transfers of property between those in hostility to the government before its passage were not valid. 3. That the proceedings could not affect the interest of C. in the property at the time the act was passed, and that the proceedings did not invalidate the title of plaintiff to the property acquired by transfer from C. in May, 1862. -Conrad o. Waples. In error to the Circuit Court of the United States for the District of Louisiana. Opinion by Mr. Justice FIELD. Reported in full 17 Alb. L. J. 484.
CONSTITUTIONAL LAW-STATE PROHIBITORY LAWS AFFECTING CORPORATIONS.-A statute of Massachusetts, passed in 1809, providing for the chartering of manufacturing corporations, contained this: “ Provi. ded, always, that the legislature may from time to time, upon due notice to any corporation, make fur: ther provisions and regulations for the management of the business of the corporation and for the government thereof, or wholly repeal any act or part thereof establishing any corporation, as shall be deemed expedient." In 1828 the Boston Beer Company was incorporated, “ for the purpose of manufacturing malt liquors in all their varieties in the city of Boston," and the act of incorporation, which was passed by the Legislature of Massachusetts, provided that said company “ for that purpose sball have all the power and privileges, and be subject to all the duties and requirements contained in” the act of 1809 mentioned. Iu 1829 the act of 1809 was repealed, with this proyision: “But this repeal shall not affect the existing rights of any person, or the existing or future liabilities of any corporation, or any members of any corporation now established, until such corporation shall have adopted this act, and complied with the provisions berein contained.” Held, that the repeal of the act of 1809 by the act of 1829 was not a revocation or surrender by the State of Massachusetts of the reserved power to repeal the charters of corporations, and the passage of an act forbidding the maliufacture and sale of malt liquors, was not an act impairing an obligation of a contract with the company mentioned, and was not in violation of the Federal Constitution.-Boston Beer Co.v. Commonwealth. In error to the Superior Court of Massachusetts. Opinion by Mr. Justice BRADLEY. Reported in full 17 Alb. L. J. 487.
OUTSIDE of the bench, the legal offices in England are numerous, easy and fat. A professional witness testifying before a commission concerning the duties of an office, the incumbent of which has just diedsalary, $6,000-said: “The Record and Writ Clerk does nothing whatever; he sits in an inner room in the office, and takes a few afhdavits occasionally; but a great part of his time is employed in reading the news:
TAXES–PARTIES-INTEREST.-This was a suit for unpaid taxes. A rehearing of the case was had, at which time objectors appeared and contested the validity of the tax. The court say; “It does not appear from anything in the records, or any extrinsic evi. dence, that any one of the objectors have any interest in the property assessed, against which judgment is brought for unpaid taxes. Having no interest in the subject of the taxes, the objectors can not be permitted to contest the taxes levied. It is not a matter that concerns them, unless they have some interest as owner or otherwise in the property assessed. Such facts must be made to appear before their objections will be considered.” Affirmed. – Burbank v. The People ex rel.
INDICTMENT-RAPE-EVIDENCE.-This was an indictment for rape alleged to have been committed by defendant. On the trial, a witness was asked, “Haye you not heard people say that he (alluding to the de. fendant) was a gambler?” The witness answered in the affirmative. Again, when the defendant gave evidence in his own behalf, he was compelled, over objections, to state that he had visited houses of ill-fame, and had connection with the inmates, and also that he bad played cards for money. SCHOLFIELD, C. J.: “Evidence of prior misconduct is never admissible in a criminal trial, unless it be to prove prior malice towards an individual, or guilty knowledge, neither of which can have pertinency in cases like the present, And particular acts of misconduct are never admissible in rebuttal of proof of defendant's good character. McCarty v. The People, 51 III. 231. Nor can it be said this evidence was admissible for the purpose of impeaching the defendant's reputation as a witness only, although not for the purpose of proving the of. fense charged. The reputation of a witness can not be
impeached by proof of particular acts-it must be by i proying his general reputation for truth and veracity I to be bad. 11 Ill. 367; 82 III. 579. Reversed and remanded.- The People v. Gifford.
INDICTMENT – LARCENY – STATUTE OF LIMITATIONS.—This was an indictment for a larceny alleged to have been committed on January 21, 1866. The indictment was found in 1876. The statute of limitations in force in 1866 provided that no person shall be prosecuted or tried for larceny, "unless the indictment for the same shall be found by a grand jury within three years next after the offense shall have been committed, provided that nothing herein contained shall extend to any person fleeing from justice." There was no allegation that defendant had been fleeing from justice: Held, that under that statute the count was clearly bad, unless that statute be rendered inoperative by subsequent legislation, DICKEY, J.: "In the Revised Statutes of 1874 there is a repealing statute covering the former criminal code and laws of limitation, and at the end thereof it is provided, when any. limitation law has been revised by this or the 27th General Assembly, and the former limitation law rerepealed, such repeal shall not be construed so as to stop the running of any statute, but the time shall be construed as if such repeal had not been made