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zette, up to January 1, 1884, together with a brief synopsis of the law points decided, arranged alphabetically. By W. P. Preble, Jr. Second edition. Little, Brown & Co., Boston, 1884. Pp. 707.

The title page sufficiently explains the scope of the book, which is divided into four parts: (1) Table of Cases, (2) Synopsis of Law Points, (3) List of inventions involved in cases digested, and (4) Tables of Cases arranged under defendants named. We see no good reason for separating a table of cases, and think it preferable that parts 1 and 4 should be combined. Too much praise cannot be accorded the publisher's work.


A Digest of Fees of Town and County Officers of the State of New York. Rewritten and adapted to the new Codes. By Clinton A. Moon. Fifth edition. Williamson & Higbe, Rochester, N. Y., 1884.

The above presents in compact' form what fees. according to law, officers ars entitled to for their services. As matter of experience, though, the figures in the book are no guide at all. The book should be in the hands of every officer and every lawyer in the State.

BUMP'S PATENTS, TRADE-MARKS, ETC. The Law of Patents, Trade-Marks, Labels and Copyrights: consisting of the sections of the Revised Statutes of the United States, with notes under each section, referring to the decisions of the courts and the commissioner of patents, together with the rules of the patent office, relating to patents, trade-marks and labels, with a selection of forms; also a table of cases cited and a table of patents construed. Second edition. By Orlando F. Bump. Baltimore: Cushings & Bailey, 1884. Pp. ccxviii, 667.

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BARTON'S SUIT IN EQUITY. History of a Suit in Equity, from its commencement to its final termination. By Charles Barton, of Middle Temple. New edition, adapted to modern practice in the United States, with numerous equity forms, by Henry H. Ingersoll. And an appendix containing the rules of practice for the courts of equity of the United States, and a digest of the acts of Congress relating to equity, revised to date, and the ordinances of Lord Bacon. Cincinnati: Robert Clarke & Co., 1884. Pp. xv, 245.

This is an excellent little manual, especially for students. It states very concisely and neatly all the es

sentials of a very tedious subject. The revision and adaptation has been well done.



HE following decisions were handed down Friday, Oct. 31, 1884:

Judgment affirmed with costs-Union Trust Company of New York, appellant, v. Augustus S. Whiton, respondent; William Howe, appellant, v. Boston and Albany Railroad Company, respondent; Lowell Talbott, as trustee, etc., appellant, v. George W. Adams and another, executors, etc., respondents; John Martin, respondent, v. New York Central and Hudson River Railroad Company, appellant; Charles Stebbins, appellant, v. Albert P. Bennett, impleaded, respond. ents; John R. Van Buskirk, respondent, v. Andrew Coyne and another, appellants; Stephen O. Barnum and another, respondents, v. Merchants' Fire Insurance Company, appellant; Mutual Life Insurance Company, respondent, v. Anson B. Hoyt, impleaded, etc., appellant; People ex rel. Albert Brisbane and others, respondents, v. John Zoll and others, assessors, etc., appellants; Louisa C. Smith, appellant, v. James Mooney, respondent.—Judgment reversed, new trial granted, costs to abide the event-Stephen D. Pringle, respondent, v. Charles D. Leverich, impleaded, appellant; Henry L. Nagle, respondent, v. Robert McFeeters and another, appellant.-Order of General Term affirmed, and judgment absolute rendered for defendant with costs-Hubbard Kalsey, appellant, v. Smith Lyon, respondent.-Order affirmed and judgment absolute ordered for the respond. ent with costs-James Bigler, appellant, v. National Bank of New York, respondent.--Order affirmed with costs-Jabob Crouse, in his own behalf, v. The Syracuse, Chenango and New York Railroad Company, respondents; George N. Crouse and another, appellants; David Cromwell, treasurer, etc., respondent, v. John Henry Hull et al., appellants; David Carll, respondent, v. Whiston Oakay and another, appellants: Moses May, respondent, v. Nelson Morris, appellant.- -The order of the county judge and the judgment of the General Term, so far as they direct the judgment of the Court of Sessions to be carried into effect reversed; so far as they direct the prisoner to be remanded to the custody of the sheriff, affirmed, and the prisoner remanded to the sheriff of Otsego county, in order that the Court of Sessions may deal with him according to law-People ex rel. Henry Devol, appellant, v. John Kelly, sheriff, etc., respondent. -Appeal dismissed with costs-Cyrus H. Wilbur and another, respondents, v. Asa T. Soule, appellant; Leo Neuman v. Third Avenue Railroad Company; The Orden Germania, appellant, v. Charles E. Devender, respondent; James Gilbert, respondent, v. Third Avenue Railroad Company; Alfred L. Simmonson and another v. William Elmer, impleaded, respondent.——— Motion to postpone argument granted upon condition that appellant perfect security on appeal within twenty days, as required by order; otherwise deniedWilliam H. Hillis, appellant, v. Peekskill Savings Bank, respondent.

Court adjourned till November 24.

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Only two new law journals this week. The Boston Daily Record gives the calendars, and abstracts of the current decisions of the Supreme Court. The Georgia Law Journal, the first number of which is at hand, isa weekly, and has sixteen pages of reading matter, of the same size and form as this journal. It promises well, and the opening number is attractive and valua ble.

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The Albany Law Journal.



OMMENTING on some recent suggestions in this journal on head-notes and indexes, the Virginia Law Journal observes: "We venture to dissent from a part of this. We think that generally speaking the less the head-notes has to do with the facts of the case the better. This is just the thing, as we have always thought, which renders so many of the head-notes of Grattan's Reports, for example, absolutely useless, and which requires a careful reading of the case to ascertain what it really decides. There are cases of course where it is necessary to state the facts, and then they ought to be stated, as our contemporary says, with the greatest conciseness consistent with clearness. But

here is the great difficulty; the faculty of conden

sation is one of the rarest, and most of those reporters who deal much with facts in their head-notes present a tedious and circumstantial recital of complicated transactions between A., B. and C. which is often quite unintelligible. Every decision proceeds upon some principle of law, often a very old one, applied to the facts of the particular case. In many cases the bare statement of the principle itself is a sufficient head-note, and it is no valid objection that it is a legal truism. The province of a head-note is to state what was decided, no more and no less. But when the facts must be stated we believe that our contemporary has struck upon the very best method, which will be found practicable in most cases, viz. to impregnate the statement of the legal conclusion with the leading facts. gard to indices we do not at all agree with the ALBANY LAW JOURNAL and the Chicago Legal Adviser 'that merely reproducing the statements of the syllabi is generally a vicious system.' On the contrary we think that where the head-notes are even tolerably good it is a very good system, since in such case the examination of the index is generally all that is necessary to ascertain whether the case is such as is needed. The object of an index is to point out where that which is needed may be found; if it can be so constructed as to show also whether that which is pointed to is actually what is wanted,

In re

then so much the better. In an index made with

reference to the subjects only one may be referred to a dozen or more cases without getting any satisfaction at the end of his search. What the profession needs most in this busy age are time and laborsaving arrangements of all kinds."

The Journal has not precisely comprehended us. We think the best form of index is the reproduction of the head-notes, where the head-notes are constructed properly, but that the mere reproduction of the common head-notes is a bad system. VOL. 30- No. 20.

This is what we said before. As to the recital of facts in the head-note, or the impregnating the head-note with the facts, let us illustrate by a few examples selected at random from the forthcoming volume of American Reports. First, let us take a few, stating the facts: "A father signed a release of a note and mortgage executed by his daughter, put it with them in his safe, and it remained there till his death. Shortly after signing the release he made his will, giving the daughter a much larger amount. Held, that the release did not take effect for want of delivery." "A testator gave all his real and personal estate to his wife, her heirs and assigns forever, 'having full confidence in my said wife, and hereby request that at her death she will divide equally between my sons and daughters all the proceeds of my said property, real and personal, hereby bequeathed.' Held, that the widow took a

life estate, with the remainder in trust for the chil

dren." "The plaintiff, in the employ of a railway company, went under a car standing alone on a repair track, by order of his foreman, to repair it, and was there injured by the starting of the car by an advancing train. The track was usually protected. There was no proof of any precautions to protect it on this occasion. Held, that a non-suit iff: We are authorized to offer Michigan fine salt was improper." "The defendant wrote the plaintin full car load lots of eighty to ninety-five bbls., delivered in your city at eighty-five cents per bbl.' The plaintiff telegraphed: 'Your letter of yesterday received and noted. You may ship me 2,000 bbls. of Michigan fine salt as offered in your letter.' Held, not a binding contract." These seem to us sufficiently to state the facts, and to be superior to any mere statement of the legal conclusions properly derivable from the facts.

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Now we will take a few, merely suggesting or impregnated with the facts, the facts being too numerous and complicated to justify a detailed recital, or there being nothing to be gained by setting forth the facts: "Tenants in common of land, owning personal property in severalty, may make a joint will disposing of all their property severably,

which will take effect on the death of all." "An insurance company is chargeable with the mistake of its soliciting agent in filling up an application." "A contract for future delivery of merchandise, in warehouse receipts, within a limited time, the seller having an option as to the precise time, the buyer to put up margins, and the measure of damages for breach to be the difference between the contract price and the contract price on the chamber of commerce when the contract is made, is not void as a gambling contract if it is made to appear that the seller intended an actual delivery." "A newspaper publication of the suicide of a man, falsely charging in effect that it was induced by the extravagance and exactions of his wife, and by her fraudulent conduct in taking wages for her son which he had not earned, is libellous, per se." "A city is liable in damages for

the seizure and sale of property by its officers to pay a void assessment for a street opening." These seem to us sufficiently to indicate the facts. And an index made up of such head-notes as these is the best kind of index, for as the Journal suggests, it frequently saves turning to the case.

The American Law Record, published at Cincinnati, confirms our idea of lawyers' incomes, saying in regard to a statement that it was a poor lawyer who could not earn $5,000 a year: "Now, the Cincinnati bar compares favorably with any in the country, and the number of active practitioners must be in the neighborhood of four hundred, and yet of that number those who earn $5,000 per annum will not comprise ten per cent, if indeed it will five per cent of the whole. The conclusion therefore would be that the remaining number, say 360 or 370, were incompetent to practice. Nothing could be so wide of the truth. Two classes of men succeed at the bar. First, those of acknowledged ability and learning in the law, and secondly, those who possess the facuity of securing business through influences of different character. The latter class have tact and skill enough to obtain clients, though their ability as lawyers may be very commonplace. Some notable examples exist in our midst, and it is not necessary to more than suggest the fact to have it recognized and admitted. The best legal minds are failures frequently-looking at the profession from its mercenary or money-getting standpoint while some notable cases can be seen of financial success on the part of lawyers of second and thirdrate capacity or ability, and whose opinion upon any nice legal question would be taken only at a very heavy discount."

In commenting on our criticism of the judges for citing the reports by the reporters' names rather than by the number of the State series, the Central Law Journal remarks: "But in its criticism it does not spare those judges who persist in referring to the Massachusetts reports of Pickering, Cushing, Metcalf, Gray and Allen, by the names of those reporters instead of by the number of the reports, reckoning from the beginning of reporting the decisions of the Supreme Court of the State. We are at a loss to know whence those writers who persist in making trouble for investigators, derived their authority to refer to any report as '68 Mass.' The law does not require it; very few, if any of the libraries have them so numbered, and the lawyers of the State, and consequently the judges, have never adopted the new system. There ought to be some understanding before writers assume authority to make a departure, and oblige men in haste to make it a mathematical problem as to where they are likely to find a given report." The Centra does not exactly understand us. We expressly conceded that the old reporters must probably continue to be cited by the reporters' names. The practice has become inveterate. What we object to is this

mode of citation of the very recent and current reports. Now is the time to make the reform. It is exasperating to be referred to "1 Out.," or "27 P. F. S.," or "47 Sick."

The Central is equally astray in its understanding of our objection against reporting rape cases in detail. It says: 66 Another thing that our contemporary does not like is the publication of 'nasty' cases. We know of no reason why these cases, if they decide a point of law, should not be furnished to the profession with all the fullness requisite to make the force of the decisions clear as of those upon any question. The fact that they have arisen is evidence of the likelihood of their continuing to arise. We hardly think that the profession has become so delicate all of a sudden' that its mental equilibrium has been disturbed by this matter. Doubtless, our contemporary has had a vision, and an early crop of female lawyers may have been foretold, and this delicate matter suggested. But long discussions are objected to. It seems to forget that the 'passive policy' and 'volenti non fit injuria' decisions of our own and only 'Sherwood, J.,' are very short, and that in their brevity lies their wit. We are glad that our brother has been suddenly struck with the idea that judicial moral tastes should be elevated. The intimation that these sensational cases are too well relished by the judges will have some effect, if it is justifled." We have never objected to the publication of decisions of points of law in such cases. What we object to is the publication of filthy details of the modus operandi, in such cases. The decision in the latest Missouri case is not on a point of law, but a different interpretation of facts by the court from that made by the jury. The jury said the woman was unwilling, "Sherwood, J., said she was willing. Every lawyer knows the legal doctrine well enough, and no lawyer needs to have it illustrated in page upon page of filthy testimony. There is no benefit in reporting pure fact cases, be the facts ever so unobjectionable; and to report such cases as those alluded to is an outrage against decency. We are glad that "our own and only Sherwood, J.," who seems to be peculiarly prone to these recitals, belongs to Missouri and not to New York. We are glad that our own reports are not loaded with such gratuitous filth as that of the case in 53 Missouri. We hope our sincerely respected contemporary will think more deeply about the immorality in question, and on this point, at least, acquit us of any charge of "levity."


Professor Wayland made some interesting observa tions on the pardoning power, at a meeting of the National Prison Association, at Saratoga, in September last. He advocates the establishment of a board of pardons in every State. He asks with a good deal of force: "As a hearing on a petition for pardon often involves a re-hearing of the case or the determination of the value of evidence purport

ing to be new and material, is it not obvious that the tribunal which is to pass upon the question should have a judicial element? As the plea of insanity is frequently raised, is it not expedient that the tribunal should contain an expert in mental disease? As men convicted of aggravated crimes are sometimes possessed of very considerable political influence, by reason of the votes which they or their friends can control, is it not in the highest degree important that the tribunal should be superior to all partisan considerations?" He disapproves the granting of pardons on account of the incurable illhealth of the prisoner, or the poverty of his family, or the apparent excessive severity of the sentence. He would demand the unaminous agreement of the pardoning tribunal. And he well sums up the theory of punishment as follows: "First. The object of imprisonment for crime is to protect society by confining and reforming the criminal. Second. Thorough moral reformation in a prison where there is no systematic, individual treatment, is more often superficial than genuine. Third. Society has a right to insist on adequate protection from convicted criminals. Fourth. The presumption of innocence does not survive a verdict of guilty. Fifth. The deterrent element of punishment resides mainly in its certainty."



Mather v. American Express Co., Massachusetts Supreme Court, Nov., 1884, it was held that in an action against a common carrier for loss of an architect's plans, nothing can be awarded for delay in constructing the house. The court, by Field, J., said: "It is not denied that the defendant is liable in damages for the reasonable cost of the new plans, and for other expenses, if there were any reasonably incurred in procuring new ones; but it is denied that the defendant is liable in damages for the delay in constructing the house occasioned by the loss of the plans. It is assumed that the plans had no market value, and were only useful to the plaintiff. The rule of damages, then, is their value to the plaintiff. As new plans could not be bought in the market ready made, some time must necessarily be required in making them, and the plaintiff contends that the value of the plans for immediate use, or for use at the time he would have received them from Boston if the defendant had duly performed its contract, is their value to him, and that their value is made up of the costs of procuring the new plans, and the damages occasioned by the delay. Whatever he calls it, it is damages for the delay in constructing the house, caused by the loss of the original plans, that he seeks to recover. It does not appear that the defendant had notice of the contents of the package at the time it was delivered for transportation, or any notice or knowledge that the plaintiff needed the plans for the construction of a house which he had begun, The damages caused by the delay are

not such as would usually and naturally arise solely from a breach of a contract of the defendant to carry the package safely to its destination, no were they, within the reasonable contemplation o both parties to this contract, as likely to arise from such a breach. The fact that the plans had special value to the plaintiff, and could not be pur chased, does not touch the question of including it the damages the injury to the plaintiff occasioned by reason of other contracts which he had made and of work which he had undertaken in expecta tion of having the plans for use immediately, o after the usual delay involved in sending the plans to Boston, and in having them traced and returned to him. Damages for such injury are not given unless the circumstances are such as to show that the defendant ought fairly to be held to have assumed a liability therefor when he made the contract. We think that Hadley v. Baxendale, 9 Exch. 341, which has been cited with approval by this court, governs this case. Green v. Boston and Lowell R., 128 Mass. 221; S. C., 35 Am. Rep. 370, on which the plaintiff relies, was an action to recover for the value of an oil painting, the portrait of the plaintiff's father. The opinion attempts to lay down a rule for determining the value of such a painting when the plaintiff had no other portrait of his father, and which, so far as appears, had no market value; but the opinion does not discuss any question of damages not involved in determining the value of the portrait to the plaintiff. The plaintiff in that case made no claim for damages occasioned by a loss of the profitable use of the portrait."

In Dietrich v. Inhabitants of Northampton, Massachusetts Supreme Court, Oct., 1884, a woman four or five months advanced in pregnancy fell by reason of a defect in a highway and miscarried. The child lived ten or fifteen minutes. Held that the mother could not maintain an action of damages under the statute for its death. The court, by Holmes, J., said: "The plaintiff founds his argument mainly on a statement by Lord Coke, which seems to have been accepted as law in England, to the effect that if a woman is quick with child, and takes a potion, or if a man beats her, and the child is born alive, and dies of the potion or battery, this is murder. 3 Inst. 50; 1 Hawk. P. C. 31, § 16; 1 Bl. Com. 129, 130; 4 id. 198; Beak v. Beak, 1 P. Wms. 244; Burdet v. Hopegood, id. 486; Rex v. Senior, 1 Mood. C. C. 346; Rex v. West, 2 C. & K. 784; 2 Cox C. C. 500. We shall not consider how far Lord Coke's authority should be followed in this Commonweath if the matter were left to the common law, beyond observing that it was opposed to the case in 3 Ass pl. 2; S. C., Y. B., 1 Ed. III, 23 Pl. 18, which seems not to have been doubted by Fitzherbert or Brooke, and which was afterward cited as law by Lord Hale. Fitz. Abr. Indictment, pl. 4; Corone, pl. 146; Bro. Abr. Corone, pl. 68; 1 Hale P. C. 433. For even if Lord Coke's statement was the law of this Common


ealth the question would remain whether the anogy could be relied on for determining the rule 'civil liability. Some ancient books seem to have lowed the mother an appeal for the loss of her ild by a trespass upon her person. But no case, far as we know, has ever decided that if the innt survived it could maintain an action for injurs received by it while in its mother's womb. Yet at is the text of the principle relied on by the aintiff, who can hardly avoid contending that a etty large field of litigation has been left unexored until the present moment. If it should be gued that an action could be maintained in the se supposed, and that on general principles an jury transmitted from the actor to a person rough his own organic substance, or through his other, before he became a person, stands on the me footing as an injury transmitted to an existg person through other intervening substances itside him, the argument in this general form is ot helped but hindered by the analogy drawn om Lord Coke's statement of the criminal law. or apart from the question of remoteness, the arment would not be affected by the degree of marity reached by the embryo at the moment of the sion or wrongful act. Whereas Lord Coke's rule quires that the woman be quick with child, hich, as this court has decided, means more than regnant, and requires that the child shall have ached some degree of quasi independent life at e moment of the act. Commonwealth v. Parker, 9 et. 263; State v. Cooper, 2 Zabr. 52. If these genal difficulties could be got over, and if we should sume, irrespective of precedent, that a man ight owe a civil duty, and incur a conditional rospective liability in tort to one not yet in being, nd if we should assume also that causing an infant be born prematurely stands on the same footing a wound or poison, we should then be confronted y the question raised by the defendant whether an fant dying before it was able to live separated om its mother could be said to have become a erson recognized by the law as capable of having locus standi in court, or of being represented here by an administrator. Marcellis v. Thalheimer, Paige, 35; Harper v. Archer, 4 Sm. & M. 99. nd this question would not be disposed of by citg those cases where equity has recognized the inant provisionally while still alive en ventre, and erhaps not by showing that such an infant was ithin the protection of the criminal law. But we zed not go beyond the Massachusetts statute. ub. Stat., ch. 207, § 9. The section referred to unishes unlawful attempts to procure miscarriage, cts which of course have the death of the child or their immediate object, and while it greatly ineases the severity of the punishment if the woman es in consequence of the attempt it makes no orresponding distinction if the child dies, even afer leaving the womb. This statute seems to us to estroy the whole foundation of the argument rawn from the criminal law, and no other occurs

to us which has not been dealt with. Taking all the foregoing considerations into account, and further, that as the unborn child was a part of the mother at the time of the injury, any damage to it which was not too remote to be recovered for at all was recoverable by her, we think it clear that the statute sued upon does not embrace the plaintiff's intestate within its meaning.”




THE Commons having resolved that "the people are, under God, the original of all just powers," and deducing therefrom the inference that themselves, as the people's representatives, were supreme in the nation, and that their enactments had the force of law without consent of king or peers, proceeded to apply their authority in the punishment of those guilty of the long troubles which had culminated in the civil war. The head and front of the offenders was the king himself, and with him they began.

On January 4, 1649, an ordinance was passed erecting a High Court of Justice for his trial. Whether this precedent was in the minds of the framers of the Judicature Acts of our own time we cannot say, but designedly or not, the old title has been revived, and the High Court of Justice is to-day the style of the English court of first instance.

Many names are to be found on the list of the 135 commissioners who were constituted the king's judges which have still a place in history. The roll commences with Oliver Cromwell, first in place as well as fame. Next comes the sturdy Ireton, whilst Waller, Skippon, Pride and Ludlow, remind us of the recent battles from which they came, hot with victory, to sit in judgment on their adversary. Amongst the men of the long robe we find Bradshaw, Thorp and Nicholas, all serjeants at law, and two names are there, which to our ears have oddly incongruous associations, to wit, Richard Ingoldsby and R. Tichborne. Not all the commissioners participated in the proceedings of the court, Fairfax and Whitlocke being the most notable absentees, but the majority were far from shrinking from responsibility. They knew their duty, and were willing to perform it.

Moreover, they were determined to carry out their task in the most public and solemn manner. Many were the meetings and committees, elaborate were the preparations, but at length all was complete, and on January 20th the court assembled in Westminster Hall. Careful precautions had been taken against tumult and conspiracy. The vaults under the Painted Chamber had been searched to provide against a possible gunpowder plot. Guards were mounted upon the very leads of the roof. All privy means of access to the Hall were blocked up, including the "doors from the house called

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