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Entered, according to act of Congress, in the year eighteen hundred and seventy-five,
BY WEED, PARSONS AND COMPANY,
APR 20 1966
A WEEKLY RECORD OF THE LAW AND THE LAWYERS.
The Albany Law Journal.
All communications intended for publication in the LAW
The brief charge to the jury of Judge Neilson in JOURNAL should be addressed to the editor, and the name the Tilton-Beecher case is in marked contrast with of the writer should be given, though not necessarily for the address of Lord Cockburn in the Tichborne publication.
case. The address of the former occupied only one Communications on business matters should be ad
hour and a-half, while that of the latter required dressed to the publishers.
many days, and fills two ponderous wolumes. The The weekly edition of the ALBANY LAW JOURNAL Is now 3,800 copies.
vast variety of topics, social, moral, religious, political and legal, which were connected with the Tilton-Beeecher case, gave the counsel on both sides and the judge a splendid opportunity to air their
learning, their fancy, their rhetoric and their logic. ALBANY, JULY 3, 1875.
This opportunity the counsel accepted, but the judge modestly, and, we think, commendably, refrained
from any display of any thing but what the bare CURRENT TOPICS.
necessities of the case required. His charge is a THE formal opening of the new international court | model of clearness, precision and force. It seems 1 in Egypt, which occurred on Monday at Alex almost incredible that the case could have been andria, is an event of remarkable significance and presented to the jury adequately in so few words. importance. The constitution of this tribunal has But a careful perusal of the charge shows that been briefly described in this journal, and the ap- | nothing was left out which was necessary to the pointment of the American members has been complete presentation of the case. The whole adnoticed. It is difficult to over-estimate the value of dress bears marks of the most careful and patient this inauguration of a court of private international consideration of all the material evidence, and of law in a country where large numbers of foreigners the most wonderful condensation which our lanof many nationalities meet and mingle for the pur- guage affords. The spirit which breathes through poses of travel and of trade. The practical utility the address is one of the utmost fairness and imparof the court will be even surpassed by the impetustiality. The counsel on both sides expressed which will be afforded the cause of international themselves satisfied, and this, of itself, is a high law reform, and we shall not be surprised to see the testimonial to the freedom from bias which the example of the Khedive soon followed in Europe charge evinces. and in America. It is a singular comment upon the international legal condition of the world that the Of the subject-matter of Judge Neilson's charge first great step, having a truly international and we need not say much, as it is before the country official character, and having for its object the and has been extensively read. The theory which establishment of a permanent court of interna the judge adopts is one which we could wish were tional law, composed of members representing the universally followed. He says: “I have persistprincipal civilized nations, – should have been ently, and upon principle, refrained from stating to taken in Egypt. No potentate deserves higher juries my opinions upon controverted questions of encomiums from the great publicists and jurists of fact.” Again he remarks to the jury: “You are the our time than this enterprising and advanced re-sole judges of the weight of the testimony and of former, who has both the intelligence to con- | the credibility of the witnesses. A sense of this ceive improvements and the ability to carry them restrains me from commenting upon the proofs at out.
| large, and from indicating to you what my opinions VOL. 12.- No. 1.
may be on the questions of fact involved.” The sustained; but, under the acts of 1868 and 1871, judge is thus the mere legal guide of the jury, as he such expense cannot become a corporation liability. should be. There is another characteristic of this Judge Larremore seems to feel the defects in our remarkable charge, which shows, in our view, the laws relating to this matter when he says: “Fully entirely judicial temperament and habit. There is recognizing the utility and necessity of chemical a complete absence of vindictiveness, of harshness, / analysis, in furtherance of justice and the detection in the expressions which are used in reference to the and punishment of crime, I am forced to the concharacter and conduct of the parties and witnesses. ) clusion that plaintiff's services, however meritorious, The charge is properly devoid of that element which were unauthorized, and his appeal should be adwe find so frequently in judicial utterances, the dressed to the legislature and not to the court." moralizing and sermonizing element, which is good This suit involved only the construction of statutes in its place, but which is entirely out of place on the relating to New York city and county. But by bench. Taken as a whole, Judge Neilson's charge chapter 535 of the general laws of 1874, it was prois a model which our nisi prius judges may well vided that "a coroner shall have power, when imitate, but which they will find difficulty in ex necessary, to employ not more than two competent celling
surgeons to make post-mortem examinations and
dissections, and to testify to the same, the compenIt appears that the libel case of Johnston v. The
sation therefor to be a county charge.” If this Atheneum, which we noticed some time since, did
statute does not cover cases of chemical analysis, not turn out as well for the plaintiffs as was expected.
or cases whose submission to a toxicologist is reIt will be remembered that the London Athenæum
quired, then the law should certainly be amended. reviewed unfavorably one of the maps of the Messrs.
It does not appear from the opinion that this statute T. B. Johnston & Co., and stated that the talent of
was noticed. the McKeith-Johnston family no longer appeared in their maps. The action was tried at Edinburgh,
The constitution of this State provides that, in Scotland, where a verdict was rendered for £1,275.
case of the absence of the governor from the State, Sir Charles Dilke, who is the owner of the Athenæum,
| the powers and duties of his office shall devolve on proposed at first to pay this sum, but was afterward
the lieutenant-governor. Whether any duties perinduced to appeal the case. The Lord Justice Clerk
formed by the governor while out of the State are was of opinion that a new trial should be granted,
constitutional, has become a question in a recent on the ground of excessive damages, and Lord
case. Two prisoners were arrested in New York, Neaves, we are told, thought the amount was
and held to await a requisition from the governor "outrageous." The court, however, suggested that
of Pennsylvania under indictments found against the parties should agree upon the amount of dam
them in that State. The necessary documents were ages without retrying the case. The court then, by consent, assessed the damages at £100, a consider
forwarded to Albany from Pennsylvania, but the able reduction, it must be confessed. The plaintiffs
governor was at Long Branch. The governor's were also condemned to pay their own costs of
secretary examined the papers, and, finding them appeal and half of defendant's. The case bas, how
satisfactory, sent two warrants of extradition to the ever, illustrated an important point in the law of
governor for his signature, which was affixed at libel, and has shown that there are pretty well-defined
Long Branch. The warrants, of course, purported
to be signed “at the capitol, in the city of Albany." limits to newspaper criticism.
The question of the validity of this act of the govThe unsatisfactory condition of toxicological law
ernor was brought before Judge Brady by habeas
corpus. The decision was reserved. was shown in the recent case of Prof. Doremus, of New York, who was employed by a coroner to make analyses of the bodies of persons who had died under Some queer cases arise in the ecclesiastical courts circumstances indicating poisoning. Prof. Doremus of England. Not long since we mentioned the failed to get his bill paid, and brought suit in the celebrated “Reredos " case, wherein it was ineffectuCourt of Common Pleas against the county. Having ally sought to restrain the members of a church been defeated in the court of first instance, he car- from erecting certain symbols or designs over the ried his case to the general term, where a decision | altar. Now the ecclesiastical functionaries are enhas been rendered, Judge Larremore delivering the gaged in settling the question whether dissenting opinion, holding, that while there is no difficulty in ministers are entitled to the prefix of “Reverend.” regard to the necessity or value of the services ren- The question has been before the chancellor of the dered, yet there is an insuperable obstacle to the diocese of Lincoln on behalf of a man who describes recovery, on the ground of want of authority on the himself as “the Rev. Henry Keet, Wesleyan minispart of the coroner to incur such expense. Under ter.” The petitioner showed that he lost a daughter, former legislation, such a claim might have been who was buried in the churchyard of his parish, and over whose grave he was anxious to erect a tomb- | were not fixtures, but chattels. When the article is stone bearing the inscription: “In loving memory attached to the land merely by its own weight, it of Annie Augusta Keet, the younger daughter of is usually considered a mere chattel. Wiltshear v. the Rev. H. Keet, Wesleyan minister. * * * Cottrel, 1 E. & B. 674. Still, if the intention is to 'Safe sheltered from the storms of life.'" The vicar make it a part of the land, it becomes a part of the refused to allow him to erect a tomb-stone bearing land. D'Eyncourt v. Gregory, L. R., 3 Eq. 382. such an inscription, on the ground that it included | The true rule is expressed in Holland v. Hodgson, the words “Reverend” and “Wesleyan minister.” L. R., 7 C. P. 328, a very elaborately considered The chancellor sustained this action in respect to the case, where it is laid down that "articles not othertitle “Reverend," saying, among other things, that wise attached to the land than by their own weight “it not being contended that the petitioner was in are not to be considered as part of the land, unless any sense in holy orders (meaning ordained by the the circumstances are such as to show that they were church of England), he could not discover on what intended to be part of the land, the onus of showing grounds it was conceived that that title (Reverend) that they were so intended lying on those who assert belonged to him. The endeavor seemed to be to they have ceased to be chattels; and that, on the obtain an authoritative sanction by the church of contrary, an article which is affixed to the land that title.” The chancellor said he might have even slightly is to be considered as part of the land, considered the matter differently if the petitioner unless the circumstances are such as to show that it claimed the title as a matter of courtesy; but, as he | was intended all along to continue a chattel, the claimed it as his absolute right, the claim must be onus lying on those who contend that it is a chattel,” rejected. It is understood that the case will go to the Court of Arches and to the Privy Council, where it is believed that the decision of the chancellor will
In Geiselman v. Scott, 25 Ohio St. 86, the Supreme be reversed.
Court of Ohio considered the liability of a physician
or surgeon for injuries resulting from his negligence One of those decisions which illustrate the strict- | as affected by the contributory negligence of the ness with which penal statutes have to be construed patient. This was an action to recover of the is Wine v. State of Ohio, 25 Ohio St. 69. Under a defendant, a physician and surgeon, for malpractice statute of Ohio, “if any person shall, in the night, in treating a swollen and diseased foot and ankle of willfully, maliciously and forcibly break and enter the plaintiff. The court below charged the jury into any * * * barn * * * with intent to steal,” that, if the defendant directed the plaintiff to it is burglary. It was held that the crime of bur- observe absolute rest as a part of the treatment to glary was not committed where a person, without said foot, and that direction was such as a surgeon either actual or constructive breaking, entered a or physician of ordinary skill would adopt or sancbarn withi intent to steal, and afterward “broke out tion, and the plaintiff negligently failed to observe of the barn in making his exit therefrom.” The such direction, or purposely disobeyed the same, unlawful breaking must precede the entry. One and that such neglect or disobedience approximately knows not which to admire more, the ingenuity or contributed to the injuries of which he complains, the justness of this distinction.
he could not recover - although he might prove that the defendant's negligence and want of skill
also contributed to the injury. This instruction NOTES OF CASES.
was sustained on the authority of Smith v. Smith, 2 IN Chidley v. Church Wardens of West Ham, 32 L. T. Pick. 621, and Hibbard v. Thompson, 109 Mass. 286. 1 (N. 8.) 486, the Court of Queen's Bench con But it was also held that the information which a sidered the difficult question as to whether certain surgeon may give a patient concerning the nature objects were fixtures or mere chattels. It appeared of his malady is a circumstance that should be conthat the premises of a distillery contained tanks sidered by the jury in determining the question, which formed the roofs of rooms and houses, boiling whether the patient, in disobeying the instructions backs and mash tuns, lying on brick piers against of the surgeon, was guilty of contributory neglithe walls, which formed the floors of some of the gence or not. This latter holding complicates matrooms, and were connected by pipes to other houses, ters somewhat, and, it appears, was not necessary to also reservoirs, and other articles necessary for the the decision of the case. The effect of the holding process of distilling. They were all heavy and either is, however, to render it only presumptive evidence of unattached, except by the communicating pipes, to contributory negligence that a patient has disobeyed the walls or piers, or were fastened by screws for the his physician's instructions. See, on this subject, purpose of being steadied. Each was to be bought McCandless v. Mc Wha, 22 Penn. St. 272; Smothers v. and sold as a separate article, and if all were re- Hanks, 34 Iowa, 286; 11 Am. Rep. 141, note 146; moved the premises might be used for other manu- | Almond v. Nugent, 34 Iowa, 300; 11 Am. Rep. 147; facturing purposes. It was held that the articles Collins v. Council Bluff, 32 Iowa, 347; 7 Am. Rep. 200.