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known by an alphabetical name: APPRENTICES, ATTOR
der. Its weight when shipped for London was 431 NEY AND CLIENT; INDIANS, etc. So we have a broad pounds.” Our correspondent then says: “You know title CRIMES for whatever applies to crimes in com- every thing, or if you don't, you know where to find mon and a specific title for each nominate crime: out about every thing. As a question of law, who ARSON, BURGLARY, LARCENY.
owned this ærolite, the tenant or the landlord ?" We As practical convenience overrides theory, in classic should say, the landlord, but the tenant could of fication, there are many variations from the theorem. course prevent the removal during his term. For Some arise from the unwillingness of the compiler to another ærolite case, see 20 Alb. L. J. 120. See, also, depart too much from the usual methods of classifying. id. 299. Some are attributable to want of apt, correct names capable of alphabetic arrangement. In many instances An American contemporary has been sorely exer(in the Digest), a specific title formed under one class, cised with the question whether nothing can be'done if it pertains wholly to a specific title drawn from
to put a stop to Dr. Tanner's exhibition; and after another class, is made a subdivision under it, thus: consideration has arrived at the conclusion that LEASE, which is assorted as a species of CONTRACT, “there seems to be no law against a man's making an but pertains wholly to the relation of LANDLORD AND ass of himself." There is no doubt an insuperable TENANT, is a subdivision under it; and COLLISION,
obstacle to proceedings against the doctor on the which is a species of WRONGS, but affects only ves- ground of attempted suicide. He does not want or sels, is placed under SHIPPING. Again, instead of the
intend to die, but to live, and as Wightman, J., told large titles “Conveyances," Remedies” and “Gov
the jury in R. v. Doody, 6 Cox, 463, the question to be ernment,' Deeds," “ Practice,” and “United States
considered in such cases is whether the prisoner did in and “States” are employed in the printed book. fact intend to take away his life. But we may suggest
One who should endeavor to assort a pile of paragraphs one way in which Dr. Tanner might possibly be visited for an index, by aid of any such theorem might natu- for his iniquities. The life and limbs of every citizen rally first assort them into eleven piles; one for each are under the safeguard and protection of the State, category or class, and one for matters which will not
because they may be called on for the service of the well go in either. These last are best dealt with by State. See Co. Litt. 127b. “Hence," says Coke, “in duplicating them in the two or three classes most ger- my circuit, ir, anno 1 Jac. regis, in the county of Leimane; in that way they are most easily found. Let
cester, one Wright, a young, strong, and lustie rogue, practical convenience ways override theory. Having to make himselfe impotent, thereby to have the more now ten classes, the indexer will find some of them
colour to begge or be relieved without putting himself none too large. If it is an equity book, CRIMES, if it to any labour, caused his companion to strike off his is a criminal book, CORPORATIONS will be small left hand; and both were indicted, fined, and ranenough. Those which are too large may well be re- somed therefor, and that by the opinion of the rest of duced by considering which species under them occupy the justices, for the cause aforesaid." Dr. Tanner has much space, and taking what relates to these out for a
imperilled the life which belongs to the State; could separate title. It remains to write cross references to not both he and his abettors be indicted for that ofthe classes and species under the various heterogeneous fense ?- Solicitors' Journal. words and phrases under which a reader, looking in haste and by haphazard, might try to find what he wished.
Lord Eldon, who has just finished a church at a cost Different volumes indexed on this plan would not of near $200,000, and lost valuables worth another exhibit the same titles; but there might be uniformity $100,000 by the hands of Bill Sykes & Company, repreenough in method to aid a reader very much in sents the largest fortune which ever came directly using them all.
from the law. His great-grandfather, the pet ChanBENJ. VAUGHAN ABBOTT. cellor of George III and IV- it was not often that NEW YORK, Aug. 18, 1880.
they approved of the same man - started with little more than a pretty and shrewd wife, for his marriage
compelled him to give up his Fellowship at Oxford, NOTES.
and his father, an old coal-shipper at Newcastle, albeit
well-to-do, was not disposed to lavish money on Jack, CORRESPONDENT sends us the following from more especially after he had dared to elope at twenty
the Davenport Democrat newspaper: “ In May, one with Bessie Surtees. The habits of cheese-paring 1879, the largest meteoric stone ever beheld in America and flint-skinning which the pair acquired at their start fell on a farm in Emmet county. The farm belonged were never lost in after years; and it is well known to Mrs. Colonel C. H. Perry, of Keokuk. The stone that when Lord Eldon went back to town, on one oclay imbedded fifteen feet deep in the ground for ten or casion Lady Eldon had the shoes taken off his pony, twelve days, visited by hundreds of people, each one and locked them securely in her desk, to prevent wear carrying off a piece of it. A friend of Mrs. Perry, re- and tear meantime. Not only did he save the bulk siding in this city, wrote her asking her if she would of great earnings at the Bar, but those also he had as not like to have the meteorite stored in the Davenport Chancellor, and for some twenty years he had from Academy of Sciences. She replied that it would cost 20,0001. to 30,0001. a year, for in those days the chan$150 or $160 to get it out and place it upon the railroad cellor was largely paid by fees, which were enormous. train – for something would have to be paid the ten- Besides all this, the bulk of the fortune of his brother. ant of the farm, who claimed a sort of partnership in Lord Stowell, the pillar of international law, ultithe ovnership, and if the academy would raise the mately came to swell the Eldons' wealth. Lord Stowamount it might have the stone and welcome. Alas! ell, as judge of the Court of Admir: during the there wasn't a dollar in the academy treasury, and the long war period, positively coined money, and he too effort to raise the amount failed. Then a Mr. Berge was exceedingly careful of what he got. No member gave Mrs. Perry $160 for the stone, she supposing that of the family has since been conspicuous for ability. he intended it for an institution in this State - and The present Earl, who is grandson of the chancelMr. Berge gave the farm tenant $50 or $60 for the right lor, is, like his father before him, a quiet country of way across the fields. And so Mr. Berge got pos- gentleman, whose voice is never heard in the councils session of that stone, and not long since he sold it to of the nation.--New York Times. The Pittsburg the British Museum for $6,500; and there it is to be Legal Journal has changed its form from quarto to placed in a glass case and preserved as a celestial won- 8v0.,--a decided improvement.
The Albany Law Journal.
ALBANY, SEPTEMBER 4, 1880.
but at the same time there is a lively feeling among our profession here that his trial was not marked by the patience, impartiality, and dignity which should characterize the bench. Our people are apt to attribute this to what may be defined as political causes. This is what we mean by “suspicion,”
R. COMPTROLLER LAWRENCE, of the Treas- A very warm controversy is going on in the Chi
ury Department, has made an interesting de-cago Legal News respecting the use of the word cision. A joint resolution of Congress provides "garnishee ” as a verb. Some lawyer has actually that employees in the government printing office are been bold enough to defend this vulgar corruption. to be paid wages for legal holidays on which the We think he must have been retained to do it. It office is closed, in cases where other employees of seems to us that there can be no question about the the government are so paid. This, he holds, ap- matter. The verb is garnish; the noun is garnishee. plies to the case of the 4th of July falling on Sun- | Neither Webster nor Worcester gives any counteday, and celebrated and observed on the 5th. He nance to garnishee as a verb. The best reporters, defends this on principles of statutory construction, such as Mr. Chaney, use garnish as the verb. In and by the usage of the government. He observes: some of the older reports the practice was other“There had been a usage in the government print- | wise. On principle, one might as well say that land ing office for many years, by which holidays were is mortgageed, or a note indorseed, as to say that a observed and the employees paid as if they had ren- debt is garnisheed. Our profession make a similar dered service. And if a holiday fell on Sunday, mistake in using guarantee as a noun describing an the next day was observed and employees paid agreement. The noun is guaranty; the verb is therefor. Thus, the 4th of July was on Sunday in guarantee. We know Webster gives both words as 1869 and 1875, and the 1st of January was on Sun- nouns and as verbs, but it is not elegant, for it day in 1865, 1871, and 1876, but in each case the makes no distinction between the agreeing, the next day was observed and paid for. This usage agreement, and the person benefitted by the agreewas subsequently discontinued. The other department. The Southern Law Review, in a notice of a ments of the government for many years observed recent volume of Wisconsin Reports, speaks of and continue to observe the usage which had pre- “injunctive” and “evincive" as coinages. The vailed in the government printing office. The dis-writer justly criticizes the title-pages of reports continuance of the usage in the government print-announcing “cases argued and determined,” as ing office left the employees therein less favored tautological, but congratulates this reporter on havthan those of other departments. The object of the ing ceased to announce that the cases are argued and statute was to place all on the same footing, and determined by himself. A little less fear of literagive like advantages to all rendering service in like ture would not harm some of our profession.
The evident design was that no distinction should be made on account of the place of
The Master of the Rolls is unquestionably a very service. Without this construction, the equity of the resolution in some measure fails."
learned and acute judge, but it seems to us that he is unlike George Washington, who, according to
Artemas Ward, “never slopped over." In the The London Law Times says: “The greatest re- recent case of Ginesi v. Cooper, 42 L. T. (N. S.) spect is paid in this country to decisions of Ameri- 751, he held that the vendor of a business and a can courts and the opinions of the legal press. We good will might be restrained from soliciting or in are surprised to observe that the ALBANY LAW any way endeavoring to obtain the patronage of his JOURNAL concludes a comment upon the decision former customers. This is undoubtedly correct as on the writ of error in the Tichborne case with the a general proposition. In this case, however, the remark, “We receive every thing from an English purchaser was, by the terms of the sale, at liberty court concerning the claimant with a grain of sus- to use the vendor's name in the business for two picion. Our contemporary appears irritated because years, and the court held that on the vendor's reasthe Tweed case was not accepted as a settlement of suming business at the end of that period, he might the question in the claimant's favor. We would re- be restrained as above. We are not prepared to mind him that respect for American judges does say that this is wrong, although in the absence of not mean subservience to their opinions." The any agreement not to reassume business, we should statement in the first sentence quoted we believe to feel inclined to hesitate about approving it. But be generally correct; but the decision complained when the learned judge continues, “but I go further, of exhibited an ignorance of the constitution of and say that he must not deal with the old customour courts and the grounds of the adjudication in ers,” he certainly “slops over.” A sale of good the Tweed case that half amused and half annoyed will can only bind the will of the vendor; it cannot the legal profession of this State, and a flippancy bind the will of the customers; and if they choose, and an impatience that extorted a rebuke even from uninfluenced by the vendor, to deal with him rather English law journals. The claimant is generally than with the purchaser, they cannot be prevented, considered in this country as great a rascal as Tweed, nor can he be debarred from assenting to their pre
VOL. 22.- No. 10.
ference. Fortunately, the learned judge admits heart; of little passion and no impulse; so cold and that his remark is obiter. Since writing the above clammy, that he might have been a fish; a creature we have discovered that our impression has been
whose lean brain and thin blood, cautious egotism verified. The Court of Appeal have maintained the
and selfish greed, would fit him, as far as they go,
for store or bank or factory, conducted on purely injunction as to solicitation, but have held that as
economic principles; but could fill no honest place the defendant had not entered into any express | in a lawyer's office. A quick-tempered or warmagreement not to deal with customers of the old hearted rogue could never fill the favorite's place. firm who might come to him voluntarily, the injunc- It requires a fellow of no pity to mitigate his thrift, tion must be contined to preventing the solicitation and of no temper to betray his confederacy. So of the old customers. The Master of the Rolls you find him a grave, quiet, scdate sharper; guarded, should ponder the scripture, “Sufficient unto the formal, presuming, dogmatic, with as little taste for
fun as talent for honor. In his intercourse of busiday is the evil thereof," and content himself with
ness, he rarely speaks of his uncle, or father, or just law enough for the case in hand.
cousin, the judge; but he utters no words to client
or adversary, in which the judicial influence is not Chief Justice Ryan's recent address before the implied, like the verb sometimes in grammar, which law class of the University of Wisconsin was a vig-gives significance to the whole sentence. He is inorous, manly, and sensible production, albeit the dignant at the slightest reference to the nepotism.
But he is virtuous about expression only, the thing learned orator dived rather deeply into philosophy he wishes always understood. It is his stock in and religion at the start. Speaking of law, he said: trade, his family estate.” “Society is prone to grumble at those who serve
This is almost worthy of Montaigne. it, and to lavish its smiles on those who abuse it." One rarely finds any thing better than the following:
NOTES OF CASES. “On the bench, lawyers are charged with a higher ande.of function
, little more important than their IN Smalley y. Smalley, 70 Me. 545, it is held that
The bench necessarily depends which he is deprived of a larger estate as heir, is much upon the bar. A good bar is an essential of a good court. The problems of justice can rarely not to be regarded as beneficially interested under be safely solved in solitary study. Forensic con- the same, so that he cannot be an attesting witness flicts give security to the judgment of the law. The thereto. The court said: “In this case Bart K. world sometimes scolds at the delay and uncertainty Smalley is not interested to sustain the will
, but of the administration of justice. These are evils rather to defeat it.” essential to our civilization, perhaps to any attain- terested under the will was one gaining by and un
“The witness beneficially inable civilization. But summary judgment is judicial despotism. Impulsive judgment is judicial in- der its provisions. But an attesting witness who justice. The bench symbolizes on earth the throne is called to establish a will by which he is divested of divine justice. The judge sitting in judgment of his inheritance can hardly be regarded as benefion it is the representative of divine justice, has the cially interested by it and so interested to maintain most direct subrogation on earth of an attribute of it. One losing an estate by a will under which he God. In other places in life, the light of intelli
is a legatee for a cent or a dollar cannot in any ordigence, purity of truth, love of right, firmness of integrity, singleness of purpose, candor of judgment, nary use of language be considered as a gainer — or are relatively essential to high beauty of character. beneficially interested, unless a loss is determined On the bench they are the absolute condition of to be a gain. As is well remarked by Bigelow, C. duty; the condition which only can redeem judges J., in Sparhawk v. Sparhawk, referring to Haven v. from moral leprosy. When I was younger, I could Hilliard, 23 Pick. 10, where it was said to be held declaim against the enormity of judicial corruption. that a witness might be incompetent when his interI could not now. I have no heart for it. The mere
est was adverse to the validity of the will; "cerwords seem to have a deeper ignominy, than the wisest brain and the most fluent tongue could put that an heir-at-law, who is disinherited in part or in
tainly so far as it seems to support the proposition into other language. The judge who palters with justice, who is swayed by fear, favor, affection, or whole by will, is incompetent as an attesting witthe hope of reward, by personal influence or public ness, the case is contrary to well-established princiopinion, prostitutes the attribute of God, and sells ples, and must be overruled.' Undoubtedly, the the favor of his maker as atrociously and blasphe-object in giving this trivial legacy was to guard mously as Judas did.. But the light of God's eternal against the witness taking a portion of the estate truth and justice shines on the head of the just under the provisions of section 9 by which a child judge, and makes it visibly glorious."
omitted in the will may have its share of the estate, The orator spared the “dunces,” remarking that unless such omission was intentional or such child “they are altogether too respectable and influential had had its due proportion of the estate during the a class to be criticised with safety,” but under the life of the testator." head of “knaves” he dissected the pettifogger, the shyster, and the “professional adventurer who In Ducker v. State, Oregon Supreme Court, A by trades in judicial favor.” Of the latter, he said: mistake paid to B a roll of twenty-dollar gold
“He is almost always a dunce, a fellow of low pieces, supposing it to be a roll of half dollars. B intellect and vitality; of meager life; of mean and subsequently discovered the mistake, and knew, or selfish instincts and tastes, dull of head and cold of had the means of knowing, who was the owner,
but nevertheless appropriated the money to his own unable to see them until they were brought into use and refused on demand to make restitution. court under this writ. Mrs. Ashton, the respondent, Held, that he was guilty of larceny. The court had was about sixty years of age and not in regular emcharged the jury that “if the prosecuting witness ployment, but through the assistance of friends was returned to the defendant ten twenty-dollar gold enabled to clothe the children well, and in all repieces under the belief that he was giving him that spects had given them a good home, sending them number of silver pieces, and the defendant so took to both day and Sunday school, except during the them, sharing the mistake, and if upon discovering time that they were concealed, which was done, as the mistake the defendant knew, or had the means she alleged, because of her fear that their father of knowing, who the owner of the gold pieces was, would carry them off to Virginia. The father was but he thereupon, nevertheless, converted them to in receipt of good wages, and testified that he was his own use, it was larceny.” The court above said: entirely able and willing to support his children, “This instruction is objected to on behalf of the and there was no evidence whatever affecting his appellant and assigned as error. This objection, we character for soberness and respectability. He had think, is not well taken, as the instruction con- always kept up his incercourse with the children tains a correct statement of the law upon the point until the time of their concealment. developed by the evidence in this case. The money, tioned privately by the judge, the elder child said in excess of that which the appellant was entitled that she loved her father, but he could not support to receive, was taken without the owner's consent, her, and she wished to remain with her grandand that which was thus taken was appropriated to mother; the younger said that she loved her grandthe appellant's use with an intent to cheat and mother and wanted to stay with her also. The parfraudulently to deprive the owner thereof. These ties were all persons of color. The court said: two elements being both present in this case are “There is no doubt that in Pennsylvania there is sufficient to constitute the crime of larceny, for it no flexible seven-year rule or any rule prohibiting will not do to say that the owner parted with his the court from always consulting the best welfare money voluntarily; and therefore there could not of the children. And in this case I am impelled by have been any unlawful taking. While it may be the evidence to think that this will be best subserved said it was the physical act of the owner in hand-by permitting these children to remain with the ing that which was his to another, yet it was lack-grandmother. She has been with them all their ing his intellectual and intelligent assent to the lives, and nursed them with a parental fondness, transfer upon which the consent necessarily de- and her love for them is not that of a hired nurse, pended. And so in a case 'where money and prop- but a really maternal affection; besides, they are of erty is obtained from the owner by anther, upon that sex which renders it peculiarly important that some false pretense for the temporary use only, with they should have the care of a female.
I am satisthe intent to feloniously appropriate it permanently, fied that these children now have a good home, and the taking thereof, though with the owner's con- on the other hand I cannot but feel that, although sent, is larceny. Wolfstein v. Joseph, 13 N. Y. 121 ; a change which would place them entirely under the People v. McGanness, 17 id. 630; People v. Call, 1 control of the father might result happily, there is id. 120.” Compare 21 Alb. L. J. 402.
a very great risk attending it, and I should be in danger of compelling them to exchange a certainty
for an uncertainty. He should, however, be entiIn Commonwealth ex rel. Drummond v. Ashton, Phil
tled to visit them at all reasonable times; but in adelphia Quarter Sessions, 8 W. N. C. 563, the facts were as follows: The relator brought habeas corpus
view of his avowed intention of taking them out of
the State, and the grandmother's natural fear, I for the custody of his two daughters, aged respectively nine and six years. The respondent was the
deem it proper to stipulate that his visits should
only be in the presence of the grandmother and maternal grandmother of the children, and they had all lived in the same house together ever since
some male relation capable of protecting them in the birth of the elder child and after the death of
case of any attempt to take them by force." Unless
the court assumed an agreement by the father to the mother, which took place in 1877, until some nine months before this hearing, when the relator
surrender the custody of the children, of which
there seems no conclusive evidence, we should releft the common residence, saying that the children might remain with the respondent. The evidence gard this decision as entirely insupportable by gen
eral law, and exceedingly harsh and unjust. In was conflicting as to whether the father had fur
fact we do not remember to have read of a more nished the children with money and clothing after that time, as well as with reference to an alleged | despotic disregard of a father's natural rights. promise made to his wife before her death that he would always permit the children to remain with In City of Logansport v. Dick, Indiana Supreme their grandmother. In December, 1879, the father Court, June, 1880, 11 Cent. L. J. 148, it was held proposed going to Virginia to visit his mother and that the general rule of law that where the work sister, who lived there, and stated that he intended contracted for is not a nuisance per se, the employer to take the children with him, to which the respond of the contractor is not liable to a third person for ent objected; and from that time she had kept them an injury resulting from the wrongful act or omisconcealed within doors, so that the father had been sion of such contractor or his servants, does not ap
ply to municipal corporations, so as to relieve them quite, makes the city the insurer of the lives of inof the duty of keeping their streets in a safe condi- dividuals against defects in her streets." We think tion for travel; and where a city contracted with municipalities should be bound to care in the conanother for the putting in of a system of water- duct of operations intrinsically dangerous, in the works, during the progess of which work the plaint- work of repairing their streets, and that they should iff's intestate was killed by the result of a blast not be enabled to evade that responsibility by letcarelessly made by the contractor, the city was lia- ting the work to contractors. See note to City of ble to respond in damages for such injury. After Erie v. Caulkins (85 Penn. St. 247), 27 Am. Rep. admitting that the general rule is, that where the 647. This idea is conveyed in Storrs v. Utica, 17 work contracted for is not a nuisance per se, the em- N. Y. 104; City of Detroit v. Corey, 9 Mich. 165, ployer of the contractor will not be liable for inju- | 187; City of Joliet v. Harwood, 86 Ill. 110; S. C., 29 ries resulting from the carelessness of himself or Am. Rep. 17; Palmer v. City of Lincoln, 5 Neb. 136; his servants, the court continue: “But it seems to S. C., 25 Am. Rep. 470. On the general rule conus that in view of the exclusive power conferred, ceded by the court in the principal case, see Harriand of the correlative duty necessarily imposed son v. Collins, 86 Penn. St. 153; S. C., 27 Am. Rep. upon the appellant over the streets, alleys and high-699, and note, 702. We think the principal case ways within its corporate limits by the legislation of well adjudged. this State providing for the incorporation of cities, the appellant could not and ought not to be allowed
PRACTICAL JOKES. to avoid the imperative duty, which it owed to the public, to keep its streets, alleys and highways in a THE law holds practical jokers criminally, and safe condition for use in the usual manner by trav- sometimes civilly, responsible for the fatal efellers, nor to escape responsibility for its neglect or fects of their playful pranks. failure to perform such duty, upon the plea that it In Daingerfield v. Thompson, a civil action of damhad entered into a contract with another person for ages, decided recently by the Court of Appeals of the performance of the work, which rendered such Virginia, the defendant was the keeper of a restauuse of the street, alley or highway, unsafe or dan- rant, and about 11 P. M., after he had closed for the gerous to the travelling public. It can not be said, night, hearing a noise outside, was on the point of we think, that the appellant's contract with Far- opening the door, when he was shot through the rington or his assignors for the construction and right foot with a pistol ball which had penetrated completion of its water-works, as found by the jury, the door from the outside. It appeared that several could or did relieve the appellant of its legal duty persons being on the street waiting for the plaintiff to keep those streets, wherein the water-pipes were to let them in, the defendant said to one of them being laid, in such safe condition for use in the who had a pistol, “Let us give him a salute.” To usual manner, as that its inhabitants and the gen- which the latter, one Harrison, replied, “I'll do it," eral public might safely and conveniently pass and and immediately fired. When the parties entered the repass over, along and across such streets. Not- restaurant and found how the “salute” had resulted, withstanding such contract, the appellant stood Harrison was greatly alarmed and said to the defendcharged by law with a duty, and could not relieve ant: “ This would not have happened if you hadn't itself by that or any other contract of such duty in told me to fire a salute.” To which defendant anthe care and control of its streets, in and through swered: “I didn't suppose you were d—d fool which its water-works were in process of construc- enough to fire into the house - I thought you'd fire tion. If in the progress of the work, blasting was into the air.” There was an ordinance of the city dangerous and unnecessary, the appellant's duty to prohibiting the discharge of fire-arms in the street. its inhabitants and the public required that it should “The willful firing of a pistol in the street of a city, prevent such blasting; and if on the other hand, whether maliciously or not,” said Christian, J., "is the blasting was necessary, and though dangerous,
of itself an unlawful act, and the consequence of the danger could be averted by the use of proper such unlawful act must be visited upon those who precautions, the appellant's plain duty was to re-commit it or instigate it. Safety and protection to quire its contractor to use such precautions. The society require that both the actors and instigators appellant could not, by any contract it might make, of unlawful acts should be held to strict accountaavoid its liability to third persons for injury or bility for the consequences of their violation of law. death, resulting from a breach of its duty in the It is no excuse or justification of Daingerfield to care and control of its streets. Grove v. City of Fort say that he did not fire the pistol which caused the Wayne, 45 Ind. 429; Toron of Centerville v. Woods, injury. He was the aider and abcttor and insti57 id. 192.” The editor of the Central Law Journal gator of Harrison, who fired the fatal shot, and who says of this case: “All the decisions, except this himself admits that it was fired at his advice and one, recognize the exigency that may arise in pub- instigation. And it is no excuse or justification to lic improvements, or emergencies of an exclusive say that he simply told him to fire a salute, and that temporary occupancy in the street which ex necessi- he expected him (Harrison) to fire in the air. The tate rei render the way unsafe and inconvenient, and firing of the pistol was in itself an unlawful act, that the private right must yield to the public neces- and advised and instigated by him, he must take sity. The doctrine of the above case goes beyond the consequences of the result. He who commands the authorities of other courts and nearly if not or procures another to do an unlawful act is as re