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eurance Co., 38 Iowa, 304; Insurance Co. v. Warner, 80 History and Laws.” He states at the commencement Ill. 410; Insurance Co. v. Robertson, 59 id. 123, U.S. his intention to be to pass in review the leading inciCirc. Ct., Minnesota, Aug. 4, 1880. Seaman's v. North- dents in the history of the chase, and the laws which western Mutual Life Insurance Co. Opinion by Mo- have regulated its exercise, or determined the extent Crary, C. J.

to which property could be asserted or acquired in the wild animals which it is beyond the art, or foreign to

the purpose, of man to domesticate; but as he only CORRESPONDENCE.

gets so far in his first paper as the hunting of the East

ern world in ancient times, there is no legal aspect of DISQUALIFICATION OF PERJURY.

the matter to consider. It is, as he says, with the Editor of the Albany Law Journal:

Romans that we first find any question raised as to the

relative rights and obligations of the hunter and As relating to the subject which you comment upon the owner of the soil, inter se. - Solicitors' Journal. in your last number, whether the penalties attached to

When is his Lordship going to give us his essay on the a conviction, such as a disqualification from testifying Authorship of “Junius?" or voting, will follow the convict iuto another State whero similar disqualifications are imposed, I would refer you to the case of Jones v. Board of Registrars,

The London Law Times utters the following awful 56 Miss. 706; S. C., 31 Am. Rep. 385. There it was held

communist sentiments: “We are altogether dead to that a pardon by the President of the United States the appeal which Sir George Bowyer makes through of an individual convicted of embezzlement in a Fed

the columns of tho Times with the hope of preserving eral court restores tho offeuder to his right as a voter

the office of Lord Chief Baron. * Practicing in the State. So far as the opinion of the court goes,

barristers are all keenly conscious that the administraan inference might be drawn from this case, that if the tion of tho law in the present day is one of the most President had not pardoned the convict, he would have prosaic things in the world, and that no officer, howbeen debarred tho privilego of voting in the State. In ever lofty, gains any thing by its antiquity, or by its this respect perhaps the case might be considered as in venerable associations, but it is indebted for every accord with the case of State v. Kelley, which is in thing that it is, and for all the esteem which it secures, conflict with the New York decisions.

to the individual who occupies it for the time being. Respectfully,

For all purposes of practical utility an able puisne

L. MAYER. judge is of as much service to the State as an equally CHICAGO, Oct. 12, 1880. .

able chief baron or chief justice, and although we are generally conservative in our tendencies, we should be very sorry indeed to uphold an institution simply be

cause it is venerable, when its abolition is likely to NOTES.

produce uniformity in the constitution of our courts,

economy in the administration of the law, and is also E hear with regret of the serious illness of Mr.

calculated to secure the objects aimed at by the JudiJustice Clifford.

* * Veneration for any particular

cature Acts. The Supreme Court assembling this month is seriously crippled by the absence judicial office is in our opinion unnecessary to the of Mr. Justico Hunt, which seems permanent, that of

maintenance of our legal institutions in their highest Mr. Justice Clifford, which at his advanced ago we

efficiency. Give us able judges, judges without fear will prove so, and the temporary absence of Mr.

crotchets, judges who with the calm courage of capacJustice Field. — Tho venerable Peleg Sherman, for ity will sit alone, and we care not by what name they many years a distinguished Federal judge, is dead.

are called, or what may be the designation of the office He discharged his duties in a most admirable manner

which they fill. Does Sir George Bowyer really even while totally blind. The current number of imagine that Sir Alexander Cockburn would be rethe Southern Law Review contains the following lead- garded with less respect if he were the President of

the Common Law Divisions? We believe the suggesing articles: Purchases by Insolvents, by Orlando F.

tion is idle; and it will be indeed deplorable if the gove Bump; Limitations on the Powers of National Banks, by Frank P. Blair; Rights of Material Men and Em

ernment should be deterred or influenced by any such ployees of Railroad Companies as against Mortgagees,

cousiderations." We tremble for the wigs. by George Tucker Bispham; Judicial Nominations, by Thomas T. Gantt; Continement of the lusane, by Thomas M. Cooley.

The ALBANY LAW JOURNAL of the 9th contains the following: “Our lively friend, Mr. Bradwell, of the

Chicago Legal News, complains of Judge Harker for We have received from Mr. Freeman, State Reporter holding that a woman cannot be a master in chancery." of Illinois, advance sheets of volume 95 Illinois Re

The Central Law Journal of the 8th also pays its reports, coming down to September last. These are fur-spects to the Chicago Legal News in a severe upbraidnished to subscribers to the Reports at $1 per volume ing for the tendency of the latter to defend the rights in addition to the price of the volume. This plan is a

of women and glorify their successes. For shame, gengreat convenience and ought generally to be adopted. tlemen! The accomplished editor of the Chicago Legal

- The American Law Register, for September, con- News, as the Scotch say, * does na weer breeks,” is, in tains a leading article on Expert testimony and the

fact, a lady, a good lawyer, a thorough business man, microscopic examination of blood, by R. U. Piper, to

an elegant newspaper editor, and a gentleman, but of be continued; the case of Leigh v. Jack, on presump

the sex feminine for all that; and we venture the tion of ownership of soil in highway, with a note by opinion that if she had either Mr. Browne or Mr. Edmund H. Bennett; that of Dewey v. Union School Lawson in chancery, in a pugilistic sense, she would District, on act of God excusing performance of con

prove herself a master in spite of Judge Harker. We tract, with a note by M. D. Ewell; and that of Palys hope to see an apology from our worthy contemporav. Jewett, on suits against receivers, with a note by J.

ries at an early date. - Ohio Law Journal. We cerH. Stewart.

tainly have said nothing against Mrs. Bradwell, and

have explained how we came to attribute the mascuThe lord chief justice appears in the new issue of line gender to her. We think the Central Law JourThe Nineteenth Century as a writer on “The Chase - its nal is unnecessarily and even unjustly severe on her.



The Albany Law Journal.


tice, however, it would necessarily degenerate into the summoning of such witnesses as either party desires. As to the latter suggestions, while it might not be improper to let the judge fix the compensation, it seems hardly fair to impose the expense of expert witnesses on the public.




66 TXPERTS and Expert Testimony” is the title The late decision of the Court of Appeals of this

of a paper read by John B. Chapin, M. D., State in People ex rel. Campbell v. Campbell has been of the Willard Insane Asylum, before the associa- misunderstood in some quarters. The proceedings tion of superintendents of American asylums for the were instituted to reverse the action of the defendinsane, last May. Dr. Chapin makes a strong argu-ant, as commissioner of public works in the city of ment against the admission of hypothetical ques- New York, in the removal of the relator from his tions to witnesses who have not heard all the evi. office of chief engineer of the Croton aqueduct. dence. He attributes the popular prejudice against The alleged cause of removal was the improper conexpert witnesses to the following causes: 1st. The struction of an arch. The defen was that the refact that medical experts are usually summoned by lator was not charged with daily supervision of the counsel, and not by the court, in the interests of work, but that this duty was devolved by the comtheir side or clients, and their supposed liability to missioner of public works on certain inspectors aphave a bias arise in the progress of the case — a pos-pointed and employed by him for the purpose, and sible risk that their feelings and sympathies may that the defect resulted from the negligence of these become enlisted in behalf of the side on which they inspectors. This defense having been made out, the are called. 2d. The arrangement which is some- Court of Appeals now say that there was no evidence times made for the payment of money, or a retain- to justify the removal, and they annul the order of ing fee, to medical experts for their services, by removal. The opinion was written by Judge Finch, counsel in whose interests they are summoned, the Judges Rapallo, Andrews, and Earl, concurring; amount of which is not fixed by law, and which Chief Judge Folger and Judges Miller and Danmay possibly be contingent upon the issue of the forth dissenting. The relator's counsel very cor

3d. The form of submission of the hypo- rectly states the law of the case and the theory of thetical question which is permitted to contain a the decision as follows: “The law, as laid down by portion, and not the whole, of what a physician the Court of Appeals in this and prior cases, is submay deem essential to the formation of a satisfactory stantially tbis: The heads of bureaus and regular opinion, or so much as may be necessary to bring an clerks under the city charter hold office by a qualianswer favorable to the interests of one or the other fied tenure of good behavior. They can only be parties; and 4th. The general prejudice which exists removed for cause, and the cause is to be some in the popular mind against the interposition of dereliction or general neglect of duty or incapacity the plea of insanity in criminal cases.

to perform the duties or some delinquency affecting

their general character and fitness for the office.' While admitting the difficulty in adopting any new Such was the opinion of the court delivered by the rule for the selection of witnesses, he insists that late Judge Allen some two years ago in People ex rel. "legislation must be invoked to alter the practice Munday v. Fire Commissioners, 72 N. Y. 445. The so that the law confer upon judges alone the power charter provides that before a removal the person to subpæna experts in such cases where their opin- must be notified of the cause of the proposed reions would seem to be desirable. There can be no moval and be allowed an opportunity for an explanadoubt the power thus conferred would be exercised tion. The present case lays down clearly the prowisely and result in elevating the standing and cess for removal and the remedy in case of supposed character of expert testimony, and what is more injustice. The superior officer is to notify the subimportant, restore to experts that independence of ordinate of his intention of removing him and asjudgment and respect for their opinions we do not sign the cause, which of course must be sufficient believe they enjoy under the present system. No on its face. The subordinate then is allowed to exsuspicion of bias could then properly attach to plain the unfavorable appearances or alleged misthem. They would then assume their appropriate conduct. No formal trial is allowed and no eviand originally-intended relation to the court, that of dence is taken. The superior officer can make the amicus curiæ.” As to the compensation of expert removal without further formalities. But there is witnesses, he says: “It would therefore seem to be

one safeguard against abuse of this power. The the proper and obvious course to authorize and di- removed subordinate, if he deems himself aggrieved, rect the court in all cases where experts appear, to can apply to the court. Upon his application the fix and determine their compensation, in its discre- superior must give a statement of the facts from tion, and if deemed necessary to go further, pro- which he drew the conclusion that the accused party hibit by positive enactment the reception of any was guilty of the charge. If in this statement any gift or compensation for expert services directly facts appear which tend to prove the charge, the from parties interested.” We see no theoretical ob- removal stands, and the aggrieved party has no rejection to the first of these suggestions. In prac- dress except to sue his superior for making a false

VOL. 22.- No. 18.

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return. If, on the other hand, the statement dis- catastrophe. The promoters of the fraud having proves the charge that is, contains no evidence, now been put in jail, the question is asked, why however slight, to sustain it — the removal is to be could not the law have broken up this business beset aside, because made without cause.” Judge fore the suspension of the bank? The answer is Finch

says: “Here, we conclude, there was no evi- simple: there is no law to prevent a bank from offerdence, since the solitary fact upon which the com- ing to pay eight per cent a month for deposits, nor missioner relied was one which in no manner affected from paying it. There is no law to prevent a man the relator."

from offering to carry passengers by balloon to the

moon, nor from carrying them there. All experiThe ghost of the constitutional amendment de- ence shows that neither of these promises can be cision in Indiana seems not yet laid. The New fulfilled, and if people are so silly as to believe that York Times says: “The remarkable claim set up they can be, they have none but themselves to blame by certain leaders of the Democratic party that the for loss by the inevitable failure. If the credulous recent election is not valid because the Supreme depositors in the women's bank could only have held Court, in its decision upon the constitutional their faith, and kept on depositing, the day of failamendments did not have the third amendment, ure would have been indefinitely postponed, for the which changed the date from October to No-early lenders would have received their interest out vember, before them at all, and therefore the of the capital of the later depositors, and the devil election should have been beld under the amend- would have taken the hindmost, according to usage ments without questioning its ratification, has and the proverb. We do not now exactly underawakened no inconsiderable interest.

stand on what charge the managers have been ingested that the governor will be made a party to carcerated, but whatever it is, it could not have mandamus proceedings, and long litigation forced matured so long as the bank kept its promises. The upon successful candidates. The Republicans them- scheme was a shallow, shameless fraud from the selves have started the question whether or no the start, and the defense of it put forth by Gail Hamnew Supreme Bench — three Democrats and two ilton a few days before the breaking of the bubble, Republicans — might not reverse the decision of the is a pregnant commentary on the fitness of women old court (inasmuch as Judge Niblack will still be to vote, to legislate, to become lawyers, to hold a member of the readjusted court, and he decided office, and generally to take care of themselves. the amendments to have been legally ratified), and Fools are plenty among men, but it would be hard by such reversal invalidate the whole election of to find men who would invest their money at eight Tuesday week.” This paragraph illustrates four

per cent a month. That is the reason why the points. First, the popular impression that the In- blessings of the late bank were only vouchsafed to diana Supreme Court is a very fickle tribunal, an impression which is warranted by its course in several recent cases. Second, the indecent partisan

The annual meeting of the New York State Bar estimate of the motives which influence courts in

Association will be held at the city of Albany, on pronouncing judicial decisions. Third, the singu, the 16th day of November next. We understand larly inconsistent suspicion, apparently entertained

that Hon. George W. Biddle, of Philadelphia, is to by members of one political party, that judges of deliver the annual address, and that the exercises the opposite party would deliberately decide to turn themselves out of office. Fourth, the gross popu

will be of an interesting character. lar ignorance of legal principles, which leads men to suppose that a court could pass on the validity of

NOTES OF CASES. its own election. The constitutional amendments must stand or fall as a whole. If the late election was irregularly held, all that it brought about must

N People's Ice Co. v. Steamer Excelsior, Michigan go down, the two new Republican judges are not

Supreme Court, Oct. 6, 1880, 6 N. W. Rep. 636, lawfully elected, and can join in no decision; and plaintiffs were engaged in a general ice business in as without them the former decision cannot be re

Detroit, Mich., and the lessees of a large portion of versed, it is difficult to see how it can in any event

the water front of Belle Isle, in the Detroit river, be set aside. The court would decide itself out of along which and outside of a line fifteen feet from office by such a judgment. It is like the case of the

the shore they had constructed a boom. On January man sitting on the limb of a tree, outside his saw,

11, 1878, the pond formed inside of such boom was and sawing himself off with the limb. The con

frozen over with hard, clear ice six inches thick, jecture described in the Times' paragraph is the

and on that day the defendant boat was, by her massheerest nonsense that was ever conceived.

ter, run backward and forward on such river, and so unusually near the boom that the swell

caused by the steamer broke up the ice so that The failure of the women's bank, in Boston, that plaintiff was unable to harvest it, and the weather pretended to pay eight per cent a month on deposits, continuing mild thereafter so that ice did not prophas stirred up some fault-finding. Those who have erly form, plaintiff was, by reason thereof, unable been deceived are now disposed to blame the law to get a stock or fill its ice-houses. There was room for not having laid hold of the cheats before the l for the boat to pass farther away from such boom,



and where the swell would not have injured such lishing dock lines and boom limits on our river and ice. Held, that defendant boat was liable for the lakes, the channel is frequently encroached upon, in damage so caused. The court observed: “Was, order to reach deep water, that the right may be usethen, the respondent's right to navigate the Detroit ful and valuable; and although the channel may river subject to complainant's right of property in thereby be narrowed, yet if ample room for the purthis case ? Ordinarily it may be said that the entire poses of navigation remains, the owners of vessels width of the highway may be used, yet the owner cannot complain. Of course the right of navigation of the land over which it passes may, within the is paramount, and no unreasonable or unnecessary limits thereof, plant trees, set posts, and do such obstruction can be permitted to interfere therewith; other acts as will add to his convenience or assist in but while this is so, yet the riparian proprietor and beautifying his premises. He is encouraged in the public do not thereby lose all night to use the doing this by public sentiment, in the remission of stream for any other and legitimate purpose which taxes by the public authorities for the planting of will not unreasonably interfere with the right of trees, and in the protection which the law gives him navigation. The right of navigation, while paraby the punishment of those who interfere with or mount, is not exclusive, and cannot be exercised to destroy what he has done. Public convenience the unnecessary or wanton destruction of private may, in time, in particular locations, require the re- rights or property, where both can be freely and moval of some of these things, and whenever the fairly enjoyed. But in this case the vessel did not necessity arises and the public authorities request run into the boom, and therefore it may be said the their removal, then the private must give way to case is not parallel with those we have been considthe public or paramount right. But while permit- ering. The principle, however, is the same, which ted to remain, no one travelling the highway could recognizes the superior right of the vessel, but punwilfully injure or destroy them, and should any one ishes any abuse of that right. It is also clearly do so he would justly be held responsible, notwith- apparent that vessels have not an exclusive right to standing his plea of a claim of right to travel over use the entire channel, which may be narrowed or any part of the highway. If the law were other- used for purposes, some of which are but remotely wise, the streets in our cities and villages and our if at all connected with the subject of navigation. public bighways would soon be stripped of their It is well known, as this case proves, that there is a shade and ornament. Clark v. Dasso, 34 Mich. 86. class of vessels navigating our lakes and rivers So, in cities, the right to use the public streets which cause, when running, very great commotion whereon to deposit material for building purposes is or swells in the water. It is also well known that frequently granted and enjoyed. Has the traveller on many of the rivers a class of lighters and barges the right unnecessarily to willfully or negligently are used for the lighterage or necessary transportadrive over and break, mar or destroy such materials, tion of the agricultural, manufacturing and mining upon the plea of a right to use the bighway? The products of the country. This class of vessels are law in this country requires the owners of vehicles, often loaded to the water's edge, and smooth waters when meeting, each to bear to the right, yet it has are thus considered perfectly safe, and yet they never been supposed that a neglect so to do on the could not venture out where the wind or waves part of one would justify the other in willfully or could reach them. Would a steamer approaching carelessly injuring the person thus in the wrong. such a tow, where it was clearly apparent the swell A teamster may temporarily incumber a part of the she created would endanger the lighter or cargo, be highway while loading or unloading, and while thus justified in recklessly pursuing her course at full exercising his right another cannot insist upon occu- speed, in case damage resulted? Upon some of our pying the same place, or carelessly drive into and in-| rivers and water highways artificial banks have been jure bis team or vehicle. Caryv. Daniels, 8 Metc. 478. formed for the benefit of commerce, and to prevent The right of fishing in our public navigable waters a spread of the waters over the adjoining country. is one largely and profitably enjoyed, and in order | The swells caused by steamers of a certain class to carry on the business successfully it frequently would, by washing such banks, and otherwise, becomes necessary to set nets extending into the weaken and injure them, and thus create danger of river channels and the deep navigable waters of our public and private damage. Such dangers are frelakes. This may, and to a limited extent does, causequently guarded against by legislation, or rules of vessels to change their course, in order that the the highway, but it may be questionable whether property of the fishermen may not be injured or de- such regulations are not merely declaratory of the stroyed. The master of the vessel would not be common-law maxim that a man must enjoy his own justified if he should unnecessarily or wantonly run property in such a manner as not to injure that of his vessel upon the nets and destroy them. Post v. another person. So the right to boom logs is necesMum, 1 South. (N. J.) 61. So, in the rafting, run- sary to their profitable manufacture. The owners ning and towing of logs in our navigable waters, must therefore be protected in this right, else it vessels are sometimes necessarily delayed, or caused would be of but little value. Vessels would have to change their course, yet in cases where the own- no right to destroy them, or wantonly run so close ers of the logs were exercising due care and rea- to them as to cause a loss of the property therein. sonable diligence, the vessel must suffer the tempo- | A vessel has no right to wantonly run so close to the rary delay or inconvenience caused. So, in estab- | shore, to a boom or to a dock, as to cause damage which could easily be avoided by standing further


In Higler v. People, Michigan Supreme Court,
Oct. 6, 1880, 6 N. W. Rep. 664, it was held that 66 To resort” means to go once or more.

State v. one falsely representing himself to be a 'storekeeper" is guilty of a false pretense within the This was under a statute forbidding any one “to restatute in regard to obtaining money or goods under sort” to any place to smoke opium. The court said: false pretenses. The court, Cooley, J., said: “Pe- “The appellant also contends that the district judge cuniary responsibility is no more a necessary attend- erred in instructing the jury to the effect that going ant upon a commission in the army than upon the once to a place kept for opium smoking for the purkeeping of a store, but the false assertion that one pose of smoking is an infraction of the law. What holds such a commission has been held a false pre- the statute forbids all persons to do is to 'resort' to tense. Reg. v. Hamilton, 1 Cox's C. C. 244; S. C., such places, and it is argued that resort means, not on appeal, 9 Q. B. 271; Thomas v. People, 34 N. Y. to go merely once, but to go and go again; in other 351. So the pretense that one is buying horses as a words, to make a practice of going. The etymology gentleman's servant may be a criminal false pre- of the word 'resort'lends some support to this artense, though the fact of service by itself would gument, but the definitions given in the lexicons not be likely to inspire confidence, except in con- show that whatever may have been its original nection with the further fact, expressed or under- meaning it no longer means any thing more in the stood, that the master was to pay the purchase-price.connection in which it is employed in the statute Reg. v. Dale, 7 C. & P. 352. Now, it is unquestiona- than to go once." ble that the fact that one is a storekeeper is one · Eggs” are not “meat” nor “poultry," within which would be likely to give a degree of confi- a statute prohibiting the sale of such articles when dence and credit. There is an implication, if not of unsound. See 21 Alb. L. J. 360. solvency, at least of the possession of considerable Boring through a floor with an auger constitutes money, in the very idea that one is keeping a store. | burglary, say the Alabama Supreme Court, in Walker With no knowledge of his responsibility, one would V. Stute. This was where the prisoner bored a hole sooner trust him for small sums than if he had no through the floor of a corn crib, stopped it up with business, or if his business were unknown. A store- a cob, and afterward, on a separate occasion, drew keeper is not expected to refuse payment of small the shelled corn through the hole into a sack underdebts whether payment can or cannot be enforced. neath the crib. It is inconsistent with business prosperity that he “ Brass knucks" is used in the statute as the should do so, and prima facie he will have in his name of a weapon, without reference to the metal hands the means whereby such debts may be paid; of which it is made. Therefore a conviction of and if such a person, when away from home, had unlawfully carrying “brass knucks” will not be set occasion to borrow a few dollars for expenses, a aside because it was proved that the weapon was lender would trust, not to his responsibility, but to lead or pewter. Patterson v. State, 3 Lea, 575. his honor, for repayment, and would probably ask “Terms cash” is not equivalent to "received no questions further after learning what was his payment.” “Terms cash,” on an unreceipted bill business. But the question of the inability of pre- of goods sent by a wholesale to a retail dealer, cantense is one rather of fact than of law. If it was not be held as matter of law to imply that the false, and had a tendency to deceive, and did actu- goods were paid for before they were shipped. ally deceive and accomplish the intended fraud, the Wellaner v. Fellows, 48 Wis. 105. case is within the statute. Reg. v. Hamilton, supra.' A receipt for money as part of the purchase-price Campbell, J., dissenting, said: “The cases which of a farm is an acquittance,” within the statute have held a false statement of office or position suf- of forgery. State v. Shelters, 51 Vt. 105; S. C., 31 Am. ficient are mainly, and so far as original authority Rep. 679. The court said: “It is not questioned goes, I think, entirely, cases where the character but that a receipt in full is an acquittance. Why, assumed involves such elements as to make it safe to therefore, is not a receipt for a part of a demand or trust the party from that alone. They are such in- obligation an acquittance pro tanto? We are aware stances as officers of the army and navy, govern- that lexicographers do not fully agree as to this; but ment officers, and English university commoners. in legal proceedings a receipt is regarded as an acAn officer of the army or navy is liable to punish- quittance." ment for any sort of dishonest conduct, and officers A farm overseer is not a “laborer," within the lien appointed to honorable positions are presumably law. Whitaker v. Smith, 81 N. C. 340; S. C., 30 reputable. Moreover, all of these have a pecuniary Am. Rep. 503. income, which is known to every one, and the as- A stipulation by the vendee of a newspaper to sumption of this character is a representation of

"pay all of the outstanding liabilities,” will not their means and station. The conditions of residence in an English university make it entirely safe

cover a subsequent recovery in a suit for libel pendfor a local tradesman to trust a commoner to any | ing against the vendor at the time of the sale. Perreasonable extent." The false pretense in Thomas ret v. King, 30 La. Ann. 1368; S. C., 31 Am. Rep. v. People, supra, was that the defendant was a 240. chaplain in the army.

In a statute providing for the punishment of the

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