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thereof against the elevator. If the intention was that
"The action (at least) will not lie, the writing should not affect Day Bros.' liability upon
(For he owed his old client a grudge), the draft, the parties used very remarkable language
And the only thing he will try to express it. It may be that the plaintiff never
Is the patience of jury and judge." thought of Day Bros.' liability being affected; but if
The plaintiff opened his case: this were conceded, it would only show the more
“ Here is a French adage," he said, clearly that the qualifying clause of the writing was
“I cannot refer to the place, not designed to refer to it. Sup. Ct. Iowa, June 10,
But the same I am sure you have read. 1884. First Nat. Bank of Decorah v. Day. Opinion by
Which holds out a man who appears Adams, J. (19 N. W. Rep. 882.)
For himself on his own brains reliant,
Regardless of jibes and of jeers, NEW BOOKS AND NEW EDITIONS.
has always a fool for a client."
We said that he did not agree
With this sentiment, plainty untrue, Some Leading Principles of Anglo-American Law, ex
And thought himself perfectly " free pounded with a view to its arrangement and codification.
To assert that neither do you."
“Opinion by the full Bench The above work is a contribution to the legal litera.
For the county and town of Lefort; ture of the times, having for its end and aim codifica
No one dissenting, the French tion. Every member of the American bar, whether
Adage affirmed by the court." advocates of codification or not, should peruse this A lawyer writes us from Minneapolis: “I do not volume, for the reason that the author does not carry know whether you care to hear from youngsters, but him back to times of the civil law, as writers on juris- will take the liberty of expressing the pleasure, ever prudence generally do, but grappling our own law in increasing, which the advent of the JOURNAL affords its present condition, which in itself is a herculean task, me each week. From the Law JOURNAL I glean my he feels, to borrow one of Bishop's expressions, “for legal lore quite as much as I ever did from Blackthe ribs of the law." The volume closes with some stone or Kent or Parsons or Story, and the friendliest suggestions on the subject of codification, which to face of all I met when I came to Minnesota from New those interested and engaged in such labor will be of York was the old familiar one of your periodical. Inparticular interest. We do not entirely agree with the fant that I still am (not in the legal sense), I save the author's views, as we have before pointed out. The
best for the last, and commence
my perusal book is excellently printed and bound.
of the paper with the “Notes of Cases," to wind up
with “Current Topics;" and to REESE'S MEDICAL JURISPRUDENCE AND TOXICOLOGY.
thank you for the enjoyment to be derived from Text Book of Medical Jurisprudence and Toxicology. By the latter is my object in writing. They form the
John J. Reese, M. D. P. Blakiston, Son & Co., Phila., greenest of oases in the limitless desert stretching out 1884. Pp. 606.
before a clientless counsellor in a strange land. May This work is itended as a stepping-stone to the more your right hand never grow weary-or are you leftvoluminous and exhaustive treatises of Casper, Taylor, handed?” Such a discerning young lawyer will not Beck, Wharton & Stillé, Tidy and others. The author be briefless very long.—The American Law Register has condensed all the essentials of the science, present- for October contaius a leading article on Possession by ing them in an orderly, systematic and lucid manner. Husband and Wife, by David Stewart; and the folIf some of those into whose hands the book may find lowing cases in full: Whalley v. Lancashire, etc., Ry its way will follow the advice therein given, the court Co. (Eng.), on obstruction of surface water by railway scenes which the author so much deprecates will grow embankments, with note by Edmund H. Bennett: beautifully less. But experience teaches us that the Gleason v. Gleason (Neb.), on divorce for cruelty, with medical expert will insist upon “explaining" instead of
note by W. W. Thornton; Hoffman v. Brooks (Cincin
nati Supr. Ct.), on pooling contracts, with note by answering questions. Again, the author seems to
Elisha Greenhood; Hoverson v. Noker (Wis.), on think that if « experts were equally skilled there
father's liability for torts of minor child, with note by rarely would occur any conflict of opinion between Marshall D. Ewell.- -Chief Justice Jackson, of Georthe opposite sides, since both are equally desirous of gia, affords us the following in 70 Ga.: "Unfortudiscovering and testifying to the truth, and truth is nately for the Dahlonega company however it dealt always undivided." This reads well, but the records of
with the Battle Branch Company as a corporation re
peatedly, in respect to the waters of this very ditch, cases in which it has been necessary to call in “experts"
it actually obtained its permission to use those waters; show that no matter who the experts are, whether it did use those waters under that permissiou for professors or doctors, they still are men, interested in years; it dealt with its attorneys, its presidents, and swearing for the side which employs them. If superintendents and managers, as attorneys, presithe work which is so faithfully done encourages an in
dents, superintendents and managers of a corporation
known and recognized by it as the Etowah and Battle terest in the subject of Forensic Medicine the author's
Branch Hydraulio Hose Mining Company. It called hopes will be realized, and his labors will not have been
it by the name, the long name, the very remarkable in vain. The printing is excellently done.
and distinguished name, by which it was clearly dis, tinguishable from all the world of creatures, corporeal
and incorporeal, and which it had received by baptism NOTES.
at the christening fount of the General Assembly of
the State of Georgia. Surely such a recognition of the "AFFIRMED."
infant by name; such a dandling and handling it; Addison Brown of Lefort,
such billing and cooing with it; such reception of Suing a neighbor for pelf,
gifts and favors from it; such drinking the water of Bringing his case into court,
the child's ditch by permission of the little creature, Determined to try it himself.
must estop in all courts, both of law and equity, the
recipient of such favors from denying the existenceLittle his knowledge of law,
the breath in the body of the being with whom it thus But great his belief in the same,
dealt so long, and from whom it received (much of it Said his sometime attorney (De Graw
without money and without price, too) 80 many faWas the legal gentleman's name),
The Albany Law
one of those who never have got over John Brown's Law Journal.
invasion, and who are never done with dwelling on
its wickedness. We seldom allow ourselves even to ALBANY, NOVEMBER 29, 1884. whisper any thing about politics, but we would
whisper to ex-Justice Campbell that John Brown's CURRENT TOPICS.
invasion can be defended by the same reasoning
upon which secession is defended, and upon which is a good thing to refer once in a while to an
alone it can be defended, namely, that it was an at
tempt at revolution, justifiable by success, reprehenand warning. The lawyers of this State ought
sible for failure. But what good is there in dwellnever to forget Judge Davis' fining the counsel for
ing on these things ? The reason for secession has contempt in the Tweed case, which was one of the
disappeared, and we suppose there are few secessiongreatest judicial outrages ever perpetrated. We
ists who would care to see it restored. It is all well are glad to see so temperate and intelligent a critic enough for southern soldiers, assembling on solemn as the London Law Times taking this view of it.
or festal occasions, to mourn over the “lost cause." In a recent review of Mr. David Dudley Field's So much is permitted to those who so bravely and works, that periodical says: “There is only one persistently fought for what they honestly thought other portion of the work which is of deep interest,
right. We can even tolerate it in politicians and and that is to be found in the remarks upon Judge stump-orators. But it is a very improper text for an Davis and the Contempt Proceedings.' The history assembly of lawyers. We deprecate the spirit of of this case is such as to make us feel with more than
this address. A man who can exclaim, “who shall usual strength, the value of the traditional dignity deliver us from the body of this death ?” and and honor of the English Bench and of the integ
aver that “only when the United States invaded rity and courage of the English Bar. The brief
the States was there war and the calamities of war," summary of the facts, is that Judge Davis twice
is not only dwelling in the past, but has forgotten tried the same prisoner, that on the first occasion he summed up against the prisoner, and upon the second, counsel for the prisoner handed up a formal
It was quite a serious omission of attention to our protest that Judge Davis ought not to try the case. distinguished guest, Lord Chief Justice Coleridge, This protest, after consultation with his brother
not to take him out west, and treat him to a stagejudges, he treated as a contempt, and his address to coach robbery, compelling him to hold up his hands the counsel in contempt was received with applause while the founders of our breezy western civilizaby the junior bar, which as usual, had crowded the
tion put their hands in his pockets. We treat our court.
We can only say that if the law allowed own chief justices better. Thus, Chief Justice such a thing in England, the honor of the judges Wade, of Montana, was recently subjected to one would prevent the law from being followed, and we
of these visitations, and required to hold up his trust the day is far distant when such an address as
hands, although not for the avowed purpose of was delivered by Judge Davis would be received swearing. He writes a very amusing account of the with acclamation by any member of either branch of incident to a friend, which was published in the the profession. Note well, that Judge Davis' mon
Cleveland Lcader. The result of the affair is thus strous tyranny was the fruit of consultation with
described : “How anxious we were to give up our his brethern. The conclusion is, that his victims money, and watches and bave the entertainment 'were the only men who emerged from this disgrace- It is amazing how very liberal we all became. ful scene without a blemished reputation, and that
We were just aching to give up our valuables. Englishmen may be pardoned if they do not yet see
We waited patiently to be killed if that was in the the necessity of Americanizing their judicial sys- programme (we had no bills showing the acts and tem.”
scenes), and after waiting for what seemed about
nine years, but in fact perhaps ten minutes, one of The Report of the Sixth Annual Meeting of the the masked fellows, who seemed to be in command, Alabama State Bar Association, in August last, con- and who stood like a statue, said: “Get into the tains some interesting papers, notably one upon Lim- coach. Be quick about it. Don't look back, and itations upon the Quarantine Power, by Mr. Harry drive like hell.' Some of us hesitated about getting Pillans; one on the moral Responsibility of the into the coach before we had been robbed. We Legal Profession for the Administration of Public thought we were entitled to have the regulation Justice, by D. S. Troy; two on the Administration
programme carried out in full. But a motion from of Criminal Law, by Mr. Daniel Coleman and Mr. H. one of the maskers with his gun persuaded us to D. Clayton, Jr., respectively; and one by Mr. R. W. | obey the order, and we got on board, and the driver Walker, on Separate Courts of Chancery. The ad- put the horses to such speed, that I began to think dress by Mr. John A. Campbell, formerly an associ- the terrors of road-agents were more endurable than ate justice of the United States Supreme Court, is of those of a driver attempting to obey such an order. a tone that indicates that its author has not learned A moment after we started we heard the report of so much of our political affairs in the last twenty eight or ten guns, crack! crack! and we supposed a yeas as many of his brethern have learned. He is load of passengers by another conveyance had been
Vol. 30-No. 21.
fired into. The firing came about in this way. The bring out the fact that pictures might be either desheriff of an adjoining county and another man in cent or indecent, and that the canons of pure art a buggy were coming to court, and the sheriff, who would accept those of one class and reject those of had a Winchester with him, discovered one of our the other, was properly rejected as an attempt to masked men behind a rock, and sprang from his prove a self-evident proposition. If the question was buggy and demanded of him what he was doing intended to be followed by proof, that according to there, whereupon a bullet went tearing through the the standard of judgment adopted and recognized sheriff's coat from another direction, but he stood by artists, the photographs in question were not obhis ground like a rock and returned the fire, and scene or indecent, it was properly rejected for the thinks be killed or wounded one or more of his as- reason that the issue was not whether in the opinsailants. We came on to town not more than six ion of witnesses, or of a class of people, the photomiles away, and the sheriff of this county and the graphs were indecent or obscene, but whether they other sheriff with a company of armed men imme- were so in fact, and upon this issue witnesses could diately started in pursuit of the ruffians, but have not neither be permitted to give their own opinions, nor yet captured them. If they succeed I shall have to state the aggregate opinion of a particular class the pleasure of sending them to the penitentiary." or part of the community. To permit such evidence It was hardly necessary for the chief justice to ex- would put the witness in the place of the jury, and plain that the purpose of the attack was not robbery, the latter would have no function to discharge." but the rescue of some criminals supposed to be on board. Nobody would dream of attacking a chief justice for the purpose of robbery,
NOTES OF CASES.
The decision of a very curious question of expert N Barrett v. Hart, 41 Ohio St. 41, it was held evidence will be reported in People v. Muller, 96 N. Y. 408. It was there held that on the trial of an possession of the goods whenever " he shall deem indictment for selling obscene photographs, opin- himself in danger," etc., may take possession ions of artistic experts on the question of obscenity when in good faith, and upon facts arising after are incompetent. The photographs were from pic- the making of the mortgage he deems himself in tures exhibited in the Salon in Paris and at the such danger. The court said: “The facts of danCentennial exhibition in Philadelphia; among oth- ger are not made the condition, but that Hart shall ers, “La Asphyxie,” “After the Bath,” and “La deem himself in danger. To fulfill this condition Baigneuse." Andrews, J., observed: “ It does not Hart cannot simply say he so thinks, nor can be require an expert in art or literature to determine act from malice or caprice. Still the state of his whether a picture is obscene or whether printed mind as to his danger of loss is the determining words are offensive to decency and good morals. fact agreed upon to decide whether or not he has These are matters which fall within the range of or- à right to take possession. The mortgagee is dinary intelligence, and a jury does not require to made the judge, his mind is to be moved to a cerbe informed by an expert before pronouncing upon tain state, his judgment is to arrive at a certain them. It is evident that mere nudity in painting conclusion, and his mind must be moved by facts — or sculpture is not obscenity. Some of the great not opinions on questions of law — and the facts works in painting and sculpture, as all know, repre- must be those arising after the giving of the mortsent nude human forms. It is a false delicacy and gage. The mortgagor trusts the mind of the mortmere prudery which would condemn and banish gagee, such as that mind is, whether that be active, from sight all such objects as obscene, simply on clear, strong and correct, or dull, weak and nearly account of their nudity. If the test of obscenity certain to go wrong. And being thus trusted the or indecency in a picture or statue is its capability mortgagee must act in good faith, and when he of suggesting impure thoughts, then indeed all such thus acts and 'deems himself in danger of losing representations might be considered as indecent or said debt, or any part thereof by delaying the colobscene. The presence of a woman of the purest lection thereof, until the expiration of the time character and of the most modest behavior and bear-above limited for the payment thereof,' he may ing may suggest to a prurient imagination images take possession of the property in accordance with of lust and arouse impure desires, and so may a pic- the terms of the mortgage. The facts of danger ture or statue not in fact indecent or obscene. alone cannot determine the breach of this condi
It is not impossible certainly that the pub- tion. To a judge or jury on the trial such facts lic exhibition of indecent pictures may have been may show only apparent and not real danger, and permitted in Paris or Philadelphia, and the fact yet the mortgagee deem and know the danger real; that a picture had been publicly exhibited would or to such judge or jury the facts may show real not necessarily determine its character as decent or danger, and the mortgagee deem and know the indecent. Indeed there is but little scope for proof danger only apparent. The true standard must be bearing upon the issue of decency or obscenity, be- whether or not the mortgagee, acting in good faith yond the evidence furnished by the picture itself. at the time, deems himself in danger. And the The question which was excluded, if intended to mortgagee, if a competent witness in the case, may
testify as to whether or not he then deemed himself in consequence of the defendant being already amin such danger. Then the grounds of such thought ply supplied with other articles of the same kind? may be tested to ascertain whether or not he did the learned judge did not adopt that course, but deem himself in such danger.” Citing Roy v. Goings, withdrew altogether from the jury the evidence as 96 III. 361; S. C., 36 Am. Rep. 151; Bailey v. God to the previous supply. Now reference has been frey, 54 Ill. 507; S. C., 5 Am. Rep. 157; Lewis v. made to the case of Ryder v. Wombwell, ubi sup., D'Arcy, 71 Ill. 648; Furlong v. Cox, 77 id. 293; and it has been suggested that this court is bound Davenport v. Ledger, 80 id. 574; Huebner v. Koebke, hy the decision in that case as being the decision of 42 Wis. 319; Cline v. Libby, 46 id. 123; S. C., 32 a court of co-ordinate jurisdiction, and also as beAm. Rep. 700; Evans v. Graham, 50 Wis. 450; ing the last decision on the point. Another observHuggans v. Fryer, 1 Lans. 276; Smith v. Post, i ation as to the case of Ryder v. Wombwell, ubi sup. ; Hun, 516. See also Werner v. Bergman, 28 Kans. when that case was taken on appeal to the Ex80; 8. C., 42 Am. Rep. 152, and note, 158; Gibson chequer Chamber, the judges who then decided it, v. Cranage, 39 Mich. 49; S. C., 33 Am. Rep. 351. carefully as it seems to me, kept open the point
arising in the present case.
It is therefore open to
us to act upon the case of Foster v. Redgrave, ubi In Baines v. Toy, Q. B. Div., July, 1884, 51 L. T: sup., and previous to that case there is an unRep. (N. S.) 292, an action for necessaries supplied broken chain of authorities in favor of the decision to an infant, it appeared that the infant was already
we now arrive at."
In Commonwealth v. Pomphret, Massachusetts been submitted to the jury. By Field and Lopes, Supreme Court, Oct., 1884, that the furnishing of JJ., Manisty, J., doubting, but not dissenting, fol. spirituous liquors by a club to its members by the lowing Foster v. Redgrave, L. R., 4 Ex. 35, n.; / glass is not a " selling” within the statute. The Brayshaw v. Eaton, 7 Scott, 183; and not following court said the legislature “has not undertaken to pro Ryder v. Wombwell, L. R., 3 Ex. 90. Lopes, J., hibit the drinking or buying of intoxicating liquor, said: “If it had not been for what has been said or the distribution of it in severalty among persons by my brother Manisty I should have said that I who own it in common. If therefore two or more take a very strong view of this case, and have ex
persons unite in buying intoxicating liquor, and pressed the opinion that the learned judge had mis- then distribute it among themselves, they do not directed the jury. I do not propose to go through | violate the statute, and the intent with which they the cases that have been cited to show that the do this is immaterial. If they intend in this manner direction was wrong A contract by an infant for to obtain intoxicating liquor to drink, without goods cannot be enforced unless the articles be thereby subjecting any person to the penalties of necessaries, the policy of the law being to protect the statute, they still act with impunity, because the infant. In point of fact a tradesman dealing what they do, is not prohibited by the statute. The with an infant does so at his own peril, and he word club' has no very definite meaning. Clubs must lose his money unless he can prove that the are formed for all sorts of purposes, and there is no goods supplied were necessaries for the infant, ac-uniformity in their constitutions and rules. It is cording to his station in life. That being the law, well known that clubs exist which limit the number we come to the question what are necessaries. To of the members and select them with great care, determine this question we must take into account which own considerable property in common, and in what the infant had at the time of the order; for which the furnishing of food and drink to the memexample, a watch may be prima facie a necessary, bers for money, is but one of many conveniences but if the infant were supplied with other watches which the members enjoy. If a club were really then it would cease to be a necessary. It is admit- formed solely or mainly for the purpose of furnishited in this case that regard must be had to the sup- ing intoxicating liquors to its members, and any ply the infant had at the time of the order if the person could become a member by purchasing tickplaintiffs knew at that time that the infant was ets which would entitle the holder to receive such amply supplied; but it is contended on behalf of intoxicating liquors as he called for, upon a valuation the plaintiffs that this is not so if the plaintiffs did determined by the club, the organization itself not know of the previous supply. If this were so might show that it was the intention to sell intoxthe protection given to the infant would dependicating liquors to any person who offered to buy, entirely on what might be the state of knowledge and the sale of what might be called a temporary of the tradesman, which would in effect deprive membership in the club with a sale of the liquors, the infant of the protection intended by the law. I would not substantially change the character of the think it is immaterial whether the plaintiffs did or transaction. One inquiry always is, whether the ordid not know of the supply; it is immaterial even ganization is bona fide a club with limited memberwhether they knew or did not know that the de- ship into which admission cannot be obtained by fendant was a minor. The learned judge ought to any person at his pleasure, and in which the prophave admitted the evidence, and the question ought erty is actually owned in common with the mutual to have been left to the jury whether the articles rights and obligations which belong to such comwere necessaries, and if so, did they cease to be so mon ownership under the constitution and rules of
the club; or whether either the form of a club has With the loyalty of disciples, and the faithfulness
In the first chapter the author considers two popruling and instruction in this case seems to us to ular fallacies. The first imputed want of moral assume that this was bona fide a club; that the liq- tone to lawyers who were willing to defend persons uors were owned in common by the members, and apparently guilty of crime; the second imputed to that they were kept by the defendant as one of the Mr. Choate the practice of using his powers of members and as steward of the association. On the persuasion to prevent the due administration of assumptions upon which we understand the instruc- criminal law. These fallacies are exposed, and the tions proceed, we think that under the decision in arguments drawn from social, ethical and historical Commonwealth v. Smith, 102 Mass. 144, it was not sources, are full and conclusive. We have always competent for the jury to find the defendant guilty.” thought that Mr. Choate was one of the greatest See Tennessee) Club of Memphis v. Dryer, 11 Lea, advocates, and the best of men. We believe with 452; S. C., 47 Am. Rep. 298.
Judge Neilson that “no one has suggested that he
pure, inflexible, benign administration of the law NEILSON'S MEMORIES OF RUFUS CHOATE.
more dear than to Mr. Choate.”
Soon after persons on trial for capital offenses in THIS work is not a mere biography. The author the English courts were allowed the benefit of
having in mind, it would seem, that others – counsel, a question arose as to the lawyer's duty Mr. Parker, Mr. Whipple, Professor Brown, and and privilege; and from the time of Erskine to the the present editor of this journal — had written of present the rule that they could not withbold their Mr. Choate, turns aside somewhat and pursues a aid in the defense of criminal cases has been generpathway of his own. In this he was wise, and ally respected. The question took a peculiar form with his facile and original modes of treatment the as to the case of Professor Webster, indicted for special traits and peculiarities of Mr. Choate, his the murder of Doctor Parkman. It appears that studies, services, devotion and self-sacrifice become, the friends of the professor, including some distinas it were, articulate, and must satisfy the curiosity, guished professional men in Boston, believing that and excite the admiration of the reader. Thus, be was innocent, and that if Mr. Choate acted for "Out of the old fields cometh all this new corn." him he might be saved, urged him to undertake
The book is dedicated to the memory of Isaac the defense. But they had one theory, Mr. Choate Grant Thompson, the former editor of this jour- had another, and as neither would yield he did not nal. This was becoming and appropriate. It was go into the case. Their theory was set up on the in deference to his wishes that in 1877-8 Judge trial and failed, as Mr. Choate had foreseen that it Neilson contributed to the JOURNAL a series of pa- would fail. His view of the duty and privilege pers in respect to Mr. Choate, parts of which are of counsel, as deduced from that case by the aureproduced in this volume.
thor, was correct, and should be followed by others In recalling and collecting these memories of Mr. who are called upon to defend the accused: Choate Judge Neilson was indulging the hope “While accepting the theory that in a criminal
that facts and incidents, resting in the silent case a lawyer is not at liberty to withhold his sermemories of his friends, might be called out and
vices absolutely, Mr. Choate did not think him preserved.” He had more than twenty contribu- bound to go into court contrary to his own convictors, of whom he says:
tions, and assert what he did not believe to be true, “ The writers, whose contributions are now pub- or take a line of defense which he considered unlished, held various relations to Mr. Choate — his tenable.” associates in the college, his students in the law
As to one literary habit Mr. Choate and Daniel office, his professional brethren, his friends — those Webster are contrasted. As speakers they cach friends who were with him in hours of joy and of had a style as rich and ornate as was consistent sorrow, and those who saw and heard him occasion- with severe thought or argument. But they difally, and knew him in the supreme felicity and at- fered in their final disposition of rhetorical ornatraction of his genius and character.
ments. Mr. Choate let his stand with his other