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agreeable style, and forming an interesting compen- he what is needful on this topic, and few if any know dium for laymen. Lawyers must of course resort to better how to supply it. There is also a real demand the larger works, but a perusal of this work will even for a work like his, for as he says in his preface, the to them prove instructive and entertaining. It has practice in these courts “to most of the profession is a an index, references to cases, and a table of contents. mystery, passed over in their preparatory studies, and
in consequence not followed in after years.” In addiHALL'S INTERNATIONAL LAW.
tion, the new Code has become the authoritative and International Law. By William Edward Hall, M. A., Bar- comprehensive and complete system of practice. We
rister at Law, Oxford, at the Clarendon Press, 1880. therefore agree that the new edition is "an absolute This work, recently published, is one of great merit. necessity." So far as we can judge from a cursory exWe know of no one work which contains a more com- amination, not tested by actual practice under the new plete and thorough discussion of the many questions system, and not much aided by experience in these of international law than this. The learned author is courts, we should think that Mr. McClellan has done not a mere gleaner in a field in which he was preceded his work well. His divisions are methodical, and the by Grotius, Pufendorf, Heineccius, Vattel, Wheaton treatment is concise and plain, and at the same time and other publicists. But he is an original thinker, sufficiently extensive. The forms must prove very who grasps with great vigor the many problems falling valuable assistants. The volume is furnished with within the scope of his work. He shows great research tables of contents and cases, an index of forms, and a and learning, and his views are generally in accord general index. We cordially recommend it as a timely with the ablest writers and statesmen who are consid- and useful work. ered authorities upon the matters discussed. Some of the principles of international law are yet open to dis
CORRESPONDENCE. pute, and when he differs from any of his predecessors
“MIDSUMMER'S” PROBLEM. in the same field the arguments pro and con are fairly presented and his views are generally found on the Editor of the Albany Law Journal: side of the most advanced thinkers. Those portions The interesting problem propounded by “Midsumof the work relating to the rights and duties of neu- mer," is, it seems to me, correctly solved by Mr. trals and to State sovereignty are particularly able and Whitaker, who leaves A out in the cold. interesting. We commend the work as a valuable ad- I reason thus: It is adınitted that A's lien is prior to dition to legal literature.
B's; B's to C's, and C's to A's. There are $10,000 to
be divided between these three. B takes $5,000, learMCCLELLAN'S SURROGATE'S COURT PRACTICE. ing an equal amount for A. But Cintervenes, and by Practice in Surrogates' Courts : Being a Treatise of the Juris
reason of his priority, causes the balance which В left diction of the Courts and the Remedies offered thereby; for A to be paid to him, thus leaving A out in the cold. comprising also the Law of Wills, Executors, Adminis- A cannot complain of B, because the latter acknowl. tration, Legacies, Guardians, and Dower, with complete edged his priority and provided for the payment of his Forms for Practice. Second edition, conformed to the mortgage, and C's priority is recognized and yielded Code and greatly enlarged, by Robert H. McClellan,
to by A, who has only himself to blame for his sorry Counselor at Law, and former Surrogate of Rensselaer plight. The fallacy in the reasoning of E. M. S. and county. Albany, N. Y., W. C. Little & Co., 1880. Pp. xx, 1024.
Subscriber appears to be this, viz., they make B pro
vide $10,000 for A instead of $5,000. They make the We are sometimes inclined to think it is a gracious fund for distribution, as between A and B, $5,000 incourse in a critic to find the fault first, and to wind up stead of $10,000, by first withdrawing C's share. But with the praise. Does it not leave a more pleasant B has nothing to do with this, as C takes A's share, taste? We should prefer a dose bitter in the mouth
which has been already provided for by B. According and sweet in the belly, to the contrary, as we read of
to the theory of these gentlemen, A would get the in regard to the book in the Apocalypse. At any rate, entire fund, and giving C $5,000, would keep the balance we shall try this course for once.
for himself. On the third page of the text of this book we are
Again: B has the second lien. As there is enough startled at finding a section numbered 2483, succeeded to pay the prior lien and his own, I do not see how he by others on other pages numbered up to 2800 and odd, but skipping “all about between.” The explanation, demonstration with it.
can be ousted. This statement seems to carry its own which the author has omitted to furnish, is that these
Another form of statement would be this; As B are the sections of the new Code. We find many
shares after A, and there being enough for both, Boould marks of haste and bad proof-reading. For example, only be deprived of his share by C, whose lien is conthe author cites the famous Roderigas case, on the fessedly subordinate. first trial, in the Superior Court, from Howard, but
I therefore conclude that “Midsummer” will pay does not cite the case, on the first trial, in the Court of
the mortgages of B and C out of the fund in his Appeals. It is exasperating to find the title as Rodri- hands, and will leave A to enter his judgment for gas, Rodrignez, Rodrignes, and Rodrigner, for this is deficiency.
SOL. Kohs. twice as many views of the name as the court took of
NEW YORK, Sept. 8, 1880. the principle. The book, although sumptuously printed, on fine paper, double leaded, with large margins, is too cumbersome for a book of constant reference, and
Editor of the Albany Law Journal: might well have been typographically compressed to The query of “Midsummer" as to the priority of two-thirds its size, with the advantages of convenience mortgages, which appeared in No. 8 (Aug. 31, 1880, p. and economy of price. The forms might better have 160), of your current volume, seems to be satisfactorily been put in smaller type and solid.
answered in White & Tudor's Leading Cases in Equity Mr. McClellan does not attempt to supplant elabo- (last ed.), vol. 2, p. 216, where the following rule is rate treatises, like Williams and Redfield, but to give a found: “Where the same estate or interest is conveyed book of ready reference, with ample citations of our or pledged successively to different persons, and the statutes, simple and explicit directions, and carefully second purchaser has notice of tho first grant or mortprepared forms. For this work he possesses unusual gage, and the third of the second, but not of the first, qualifications, being unquestionably one of the most the first purchaser will have priority over the third to experienced practitioners in the surrogates' courts the extent of the right or interest conveyed to the now living in this state. No man knows better than | second, because the third purchaser cannot hold his ground against the second, and he in his turn must Editor of the Albany Law Journal : yield to the first.” Several cases are there cited in sup- The case of Bacon v. Van Schoonhoven, 19 Hun, 158, port of this rule. See Manufacturers' Bank v. Bank you will find involves substantially the legal problem of Pennsylvania, 7 W. & S. 335.
propounded by “Midsummer,” in the Law JOURNAL The following formula for the solution of the ques- of Aug. 21, 1880. See, also, comment thereon, 21 Alb tion is found in the opinion of Agnew, J., in Thomas's L. J. 79.
Yours, Appeal, 69 Penn, St. 122: “When the lien of the first
SUBSCRIBER. creditor is superior to that of the second, but inferior Troy, N. Y., Sept. 4, 1880. to that of the third, and the lien of the second is supe
COUNTY COURT JURISDICTION. rior to that of the third, the first creditor will take the fund because of his superiority to the second, by rea
Editor of the Albany Law Journal: son of the superiority of the second over the third.'
Those who were exercised on the above subject, as This rule would give A $5,000, and B $5,000, and C shown in your issue of Aug. 21st ult., were quieted by nothing.
S. T. N. a decision in your issue of 4th inst., that L. 1880, ch. TITUSVILLE, PENN., Sept. 8, 1880.
480, is clearly unconstitutional. As no grounds were stated in the opinion, a doubt may exist whether it
was based upon a contradiction, by that statute, of an Editor of the Albany Law Journal:
express mandate of the organic law, or wholly or E. M. 8. inquires if "Midsummer's" legal problem partly upou defects in the employment of the machinever arose? It was decided in Stephens v. Benton, in ery of statute amendments and repeals. If any conthe Kentucky Court of Appeals. 1 Duvall, 112, (1863). siderations can be adduced in favor of the possible
The Covington & Lexington Railroad Company had validity of the statute, its unconstitutionality becomes executed a first mortgage for $400,000, but had issued to that extent less clear. under it, by a mistake, $420,000 of bonds. It then Probably it is within the powers of the Legislature made a second mortgage. Both were recorded in their to revive a repealed law by implication; and a law, in order. Subsequently income bonds were issued, which terms ameuding a repealed law, would be evidence of were made in terms a charge upon the plant, but were an intent to effect such a revival. Such a course might not secured by any recorded instrument. Lastly, a be termed unusual or a blunder. If, then, L. 1870, ch. third mortgage was executed, and was taken, with 467, § 1, had been repealed by L. 1880, ch. 245, when its notice of the income bonds. Neither the holders of amendment was attempted by L. 1880, cb. 480, the latthe second or third mortgage or of the income bonds ter act was effectual to revive and amend it. But had had any notice of the over-issue. The road having it been repealed ? By its terms, L. 1880, ch. 480, took been sold under foreclosure and the proceeds being effect May 28, 1880. By its terms, L. 1880, ch. 245, took insufficient to pay all liens, the question of the order effect Sept. 1, 1880. It is submitted that an act, passed of their payment arose. The court held as follows: 1. at a date prior to that of its taking, effect, has no The company is estopped to deny that the over-issue is vitality in the interval, beyond the certainty
beprotected by the lien of the first mortgage. 2. But coming law at the latter date, unless previously rethis lien must give way to innocent subsequent incum- pealed. Therefore L. 1870, ch. 467, § 1, was not repealed brancers who claim under recorded instruments. 3. by L. 1880, ch. 245, at the date, May 28. And L. 1880, The lien by estoppel being prior in time to the unre- ch. 245, though taking effect after L. 1880, ch. 480, corded income bonds is superior in dignity to them, as and though repealing L. 1870, ch. 467, § 1, does not such. 4. But the holders' of the income bonds are affect the act of 1880 amending that of 1870. See L. entitled to be substituted to the rights of the third 1880, ch. 245, § 3, subd. 9. Hence L. 1880, ch. 480, must mortgage, which was recorded, and thus to a prefer- be law to-day, unless, fôr other reasons, it contravenes ence over the over-issue of the first mortgage.
the Constitution. Does it? It seems to the writer that upon the theory of sub- The Constitution says, in art. 6, § 15 (a): “The stitution only the true solution can be found. Judge county courts shall have the powers and jurisdiction Bullitt, who delivered the opinion of the court, thus they now (Jan. 1, 1880) possess, until altered by the lucidly illustrated the principle: “The owner of land Legislature.” (6) “They shall also have original jurisgives a title bond to A, and a second title bond to B, diotion in all cases where the defendants reside in the who has no notice of A's equity, and afterward con- county, and in which the damages claimed shall not veys the legal title to C, who has notice of the equity exceed one thousand dollars." (c) “They shall also of B, but no notice of the equity of A. Who is enti- have such other original jurisdiction as shall, from tled to the land? As between A and B, A is entitled time to time, be conferred upon them by the Legislato it, his being the oldest equity; as between A and C, ture.” To begin with the assumption that clause (6) is, C is entitled to it, having purchased the legal title with- ex vi terminorum, equivalent to - "They shall not have out notice of A's equity; but as between B and C, B is original jurisdiction in any cases * in which entitled to it, because C had notice of his equity. In the damages claimed shall exceed one thousand dolsuch a case our opinion is that B would be entitled to lars" would be begging the question, which is it. If, in an action to which A was not a party, B had whether clauses (a) and (c) do not preclude such a conrecovered the land and obtained a conveyance of the struction. The case of Landers v. S. I. R. R. Co., 53 legal title from C, and A should afterward sue B, it N. Y. 450, may throw some light on clause (c), at least seems clear that B, having united the legal title to his by analogy. As the jurisdiction of the superior city junior equity, could not be compelled to convey to A. courts was subject to no pecuniary limitation, the The fact that all of them are parties to the action, question now at issue did not arise; but the decision asserting their respective claims, can make no differ- discussed questions of residence of parties, and locus ence, because the legal title cannot be taken from C of subject-matter and of origin of cause of action, and except by virtue of B's equity; if taken from C it intimated that L. 1873, ch. 239, in attempting to exerm'ist pass to B; and as it then becomes united to his cise, with respect to those courts, the power conferred junior equity, it cannot be taken from him for the on the Legislature by a clause of Const., art. 6, $ 12 benefit of A. Moreover, the chancellor, if necessary, ("and such further civil and criminal jurisdiction as would consider that as having been done which should may be conferred by law"), was void, so far as it purbe done, and would treat the case as if C had conveyed ported to erect those tribunals into courts of general to B, as he was bound to do."
jurisdiction. But it appears to have been conceded
WM. REINECKE. that the act was void, only so far, and is valid so far as LOUISVILLE, Ky., Sept. 11, 1880.
consistent with the local character of the city courts. Id.; People v. Green, 58 N. Y. 295; Story v. N. Y. El. the Law of Slander as applicable to Physicians, by W. R. R. Co., 3 Abb. N. C. 478. It is difficult to see why H. Whitaker; the case of Finch v. Great Western Ry. this principle does not goveru, in the construction of Co., concerning the restriction of use on an express clause (c), unless a fatal evil potency exists in the dif- grant of a private way, with a note by Edmund H. ference between “other” and “further."
If it so
Bennett; and the case of Kincaid v. Hardin County, governs, then L. 1880, ch. 480, is valid, unless incon- concerning a county's liability for negligence in the sistent with the local character of the county courts. construction and keeping of a court-house, with a note That it is so inconsistent is, to the minds of some peo- by M. D, Ewell. In connection with Mr. Whitaker's ple, not clear.
article, we would draw attention to the recent case of Is it impossible to contend that when (A. D. 1869) the Rodgers v. Kline, 56 Miss. 808; S. C., 31 Am. Rep. 389, people gave the Legislature authority to “alter” the where it was held that to charge a physician with then existing jurisdiction of the county courts, and, “malpractice" in a particular case is not conclusively at the same time, doubled the pecuniary limitation in libellous in itself, if untrue, but it is for the jury to actions for damages, they intended to fix such a limit, determine whether the word was used in a general and in such cases, which the Legislature should have no actionable sense. We are glad to learn, from the pubpower to diminish, while, by clause (c) they conferred lisher's advertisement, that the (monthly) Register has power to increase the pecuniary limitation, in their facilities for publishing the most important decisions discretion, generally.
“long before they can be elsewhere reported." Those who strictly construe clause (c) have to explain the consistency of the Constitution, in limiting money actions to one thousand dollars, while allowing replevin
The United States Supreme Court has adopted the for a chattel of any value, or foreclosure of a mort- following rule: “All records and arguments printed
for the use of the court must be in such form and size gage for any amount.
If the people, in clause (c), intended only to confer that they can be conveniently cut and bound so as to authority to bestow “new powers" and jurisdiction
make an ordinary octavo volume. After the first day upon “new subjects," it would be instructive, if, keep
of October, 1880, the clerk will not receive or file reing in view the principle of the Landers case, and the cords or arguments intended for distribution to the extensive enumeration of powers and subjects pos- judges that do not conform to the requirements of sessed and controlled by the county courts, on Jan. 1, this rule.” The requisite size is 9x5% inches. 1870 (old Code, $ 30), one would indicate the powers and subjects intended to be added.
“It is evident that the Albany Law Journal was To construe clause (c) as justifying L. 1880, ch. 480, not consulted in the organization of the American would be in the direction of a beneficial reform; re- Bar Association. Its notes upon the meetings of the lieving the over-burdeued Supreme Court calendars Association are written in an ill-natured, mocking and clearing away occasions for the exercise of 'extra- spirit, which is discourteous to the gentlemen of the
association and unworthy of the dignity of the Albany judicial energies on the part of county judges.
T. F. C. D. NEW YORK, Sept. 8, 1880.
So says the New Jersey Law Journal. On the same
principle it is evident that the New Jersey Law JourEditor of the Albany Law Journal:
nal was consulted in the organization of the American The letter of brother Moak, in your last issue, was Bar Association. In truth, New Jersey has had so sound in the conclusion that the Legislature exceeded much honor this year from the Association, that we their powers in attempting to confer upon county fear the learned editor is not exactly in an impartial courts a jurisdiction superior to that authorized by frame of mind. He says: “It is gratifying that New the Constitution.
Jersey was called upon to furnish the second annual The “blunder" is only of the harmless kind so likely address of the American Bar Association, and that the to be committed by legislators unfamiliar with the occasion was so happily used to perpetuate the name organic law.
and eminent services of one of our early lawyers and Chapter 245, Laws 1880, passed May 10, and which statesmen, William Patterson, honored and remembrother Moak says expressly repeals chapter 467, Laws bered here, but not elsewhere, according to his de1870, was not to take effect until Sept. 1, 1880. The act serts.” On the other hand, we have never desired, of May 28, 1880 (ch. 245, Laws 1880), which brother sought nor received honors from the Association, and Moak construes as amending a repealed statute, merely regard ourselves as perfectly unbiased, and in a position injects about three months of unconstitutionality into to tell the exact truth about the new institution. We what was left of chapter 467, Laws 1870.
intend so to remain. So far from being ill-natured, or Yours truly,
intending to be discourteous to its members, many of 'EDWARD GEBHARD.
them are our friends, and we would gladly see it prosNEW YORK, Sept. 4, 1880.
per. It is amusing to note that our contemporary regards our truth-telling about the Association as un
worthy of our dignity. Unpleasant truths are freNOTES.
quently regarded by some people as undignified. We
have dealt with the Association just as we have with THE current number of the Journal du Droit Inter- that of our own State. We are not attending a bar
national Privé devotes nineteen pages to abstracts meeting upon the death of a lawyer, and therefore we of decisions of the courts of the United States, nearly shall be understood literally and not euphemistically. all reproduced from and credited to this JOURNAL. It we have said its membership is not increasing; that its also contains leading articles on the Competency of recent meeting was not more largely attended than that French courts to take jurisdiction of suits between of last year; that its proceedings were not so interestforeigners, by M. Féraud-Giraud; on Private Interna- ing; that the annual address was upon a trite subject; tional Law in Italian jurisprudence, by Prof. Esper- that many of the committees do not perform their son; on the Influence of the Religion of the married duty; that there is an apparent homage to great names on causes of divorce in Austria, by Prof. Lyon-Caen; rather than to humble, useful, working material; in and other valuable matter. The London Law short, that the Association " is not a great success." Times now has a department devoted to abstracts of Is not this the exact truth? We will put ourselves recent American decisions. The August number upon the country" upon this, and we will not even of the American Law Register has a leading article on challenge the members of the association as jurors.
The Albany Law Journal.
Berne. The following gentlemen were appointed officers of the Conference: President of the Confer
ence, Dr. F. Sieveking, President of the lanseatic ALBANY, SEPTEMBER 25, 1880. High Court of Appeal, Hamburg; Vice-Presidents
of the Conference, E. J. B. Cremers, late Minister CURRENT TOPICS.
of Foreign Affairs, Member of the Second Chamber
of the Netherlands; F. R. Condert, Counsellor-atA
GREAT moralist has arisen in Danville, Va., in Law, New York; Theodore Engles, President of the the person of a young man of the name of De
Board of Underwriters, Antwerp; Daniel de Follejarnette. This young man had a sister living out at
ville, Professor of Law, Douai; Dr. Ch. G. Koenig, domestic service, who was seduced under promise of Society of Jurists ; Sir Travers Twiss, Q. C.; G. E.
Professer of Law, Berne, and President of the Swiss marriage and abandoned, but who refused to divulge Wendt, D. C. L.; and General J, Grant Wilson, of the name of her betrayer, and was at last driven by New York. The president, Dr. Sieveking, delivered distress and desperation to a house of ill-fame. After a week spent in this life, she wrote to her brother, a
the opening address. Sir Travers Twiss read a telegraph operator in a neighboring town, express- and the Status of Foreigners in the Ottoman Courts
paper “On Consular Jurisdiction in the Levant, ing her penitence, asking forgiveness, and beseech
of Law.” One of the members of the Japanese ing him to take her away from that place of shame. This was the first intelligence the brother had re
embassy, Mr. Irige, a member of the English bar, ceived of the desperate act of his unfortunate sister,
read a paper on “Consular Jurisdiction in Japan.”
The latter was especially interesting. Papers were and he at once went to her, and with six pistol shots deliberately killed her. He publicly confessed the London; on the International Protection of Sea
also read on Bankruptcy, by Dr. Fred. Tomkins, of act, avowing that he performed it to make an ex
Cables, by Sir Travers Twiss; on the International ample of her sin and shame. A jury have just con
Law of Commandite and of Limited Partnership, victed him of murder in the first degree, with a recommendation to mercy. We hope the authorities by Mr. H. D. Jencken; on Domicile as Regulating will hang this moralist on a particularly high gal tram; on the International Bearing of Marriage
Testamentary and Matrimonial Rights, by Dr. Trislows. There is altogether too much of this lofty Laws, by Dr. J. G. Alexander. The latter recomemotional virtue in society, which seeks to right one
mended the abolition of all restraints on marriage crime by committing another, and a worse
not absolutely necessary. Important communicaSuch was the severe virtue of the boy Walworth,
tions were read from the American committee on who killed his father for writing offensive letters to
the subject of International Copyright, and discusthe wife and mother, and a jury did violence to
sion ensued. The Conference approved resolutions justice by acquitting him on the ground that his emotions were apt to be too much for him. Then respecting international regulation of the law of
securities payable to bearer. Notice was taken of there was that other young Virginia gentleman, who was filled with emotion against a shoemaker who Ninety-eight new members have joined since the
the death of Dr. J. Thompson, of the United States. praised the pretty feet of his betrothed, and slew
last meeting. The attendance was smaller than him. He got off with two years' imprisonment.
usual. The Virginia jury in the present case have kept their oaths, but have shown great weakness in recom- Our last Legislature passed a bill providing for mending to mercy one of the most cruel, merciless, the payment by the city of New York of certain unnatural, and wicked of his kind. Christ would money to the widow of the late Judge Stemmler in have said, “neither do I condemn thee; go and sin lieu of the salary of which he had been deprived by no more;” but this hard-hearted brother coolly kills the action of the courts in delaying the decision on his erring and penitent sister as an “example.” If
his contested election case. Gov. Cornell, it is said, the young man had simply killed himself from a signed the bill, and then, without proceeding further, sense of his shame, society would have condoned changed his mind and erased his signature. On behis fault. The jury would probably have acquitted half of Mrs. Stemmler, it is claimed that the govhim if he had found out and killed her seducer. ernor's signature was final, and that he could not This would have been bad enough. But the line reconsider the case. Proceedings were therefore must be drawn somewhere, and we say, draw it taken for a writ of mandamus requiring Comptroller right here, and hang the careful Spartan brother. Kelly to pay the amount of the appropriation. Otherwise society will grow so virtuously refined, Thereupon Judge Beach issued an order for the exemotional and hysterical, that every man will be ad- amination of the governor and his private secretary ministering his own code of morals, at the mouth of to ascertain the facts. This order Gov. Cornell rea six-shooter, upon the persons of his relatives who fuses to obey, on the ground that the proper places offend his sense of right, finer and holier than of inquiry for the ascertainment of the enactment Christ's.
of laws of the State are the officially published vol
umes of the State and the office of the secretary of The eighth annual Conference of the Association State, and that any inquiry as to the details or parfor the Reform and Codification of the Law of Na- ticulars of the discharge of the governor's constitions opened on the 24th ult., at the Federal Palace, tutional prerogatives in the executive chamber is
VOL. 22.- No. 13.
unconstitutional, and an unwarrantable interference American writer so little in harmony with the ideas with these prerogatives, and an implied censure upon of the working men's advocates as to pronounce the integrity and propriety of official action. He this proposed change in the law 'so impolitic, unsays: “There is but one tribunal authorized to make just, and unequal as to verge on folly.' This is the such inquiry, and the governor is unwilling to be language of the ALBANY LAW JOURNAL.” When questioned by any other authority.” A bill to be- we wrote those words we had not the text of the come a law not only needs the governor's signature, bill, and supposed the changes much more sweepbut his indorsement of approval, and delivery to the ing than they are. The bill does not embrace mesecretary of State. The statute law is as follows: nial or domestic servants. In regard to defective “Every bill thus passed and certified must, before machinery and appliances, and in regard to the neg. it becomes a law, be presented to the governor; if ligence of one delegated with the employer's auhe approves he must sign it; and he shall indorse thority, the bill establishes no new liability. So thereon a certificate of his approbation, and deliver probably, in regard to obedience to rules, by-laws, the same so indorsed to the secretary of State, who or instructions of the employer, if we rightly guess shall certify and indorse upon every such bill the at the meaning of the provision. The new liability day, month and year when the same so became a seems to be in the following cases: first, when the law.” All this before it “becomes a law.” It is injury arises from the negligence of a superintendtrue the Constitution simply requires the signing, ent; second, when it arises from the negligence of a but the Legislature have added the other requisites, superior servant whose orders the injured one was and they seem just as essential parts of the law as bound to obey; third, when it arises from the neglithe signing. If this is a correct view, there can be gence of any servant having charge or control of no question that the governor's action is justifiable. any signal, points, locomotive engine, or railway Even if it is not a correct view, we do not suppose train. Now considering this new doctrine with rethe governor is compellable as a witness in respect spect to natural persons (and not to corporations, as to his official action. This was held in the late case to whom the common law makes some exceptions of Hartranft's Appeal, 85 Penn. St. 433; S. C., 27 because they can only act by agents), we do not feel Am. Rep. 667. The governor in refusing to obey inclined to retract our former expressions concernthe order, states that the bill was never" approved ing the impolicy of the bill. Even as to corporaby him.
tions we should scarcely modify them. For exam
ple, suppose it is a rule of a railway company that a The Legislature of Illinois must be an exceedingly certain train shall leave a certain station at a certain careful and competent body. The Constitution of hour. The conductor is informed by telegraph from that State enjoins upon the judges the duty of point- headquarters that an extra train is in the way, and ing out every year to the governor such defects and
he must delay ten minutes. He disregards this, diomissions in the laws as they may find to exist, and
rects the leaving as usual, a collision ensues in conof suggesting appropriate forms of bills to cure
sequence, and the engineer is killed. Under the them. Only one report has been made under this bill
, the company would be liable, for the fatality provision, and that was in 1877. One of the judges occurred in consequence of the act of the superior recommends a modification of the divorce law, lim
servant to whose order the inferior was bound to iting the right of divorce to the single case of adul
conform. Why should this be so ? The master is tery. He says: “It is the testimony of careful ob
not negligent. He exercised the precaution of a servers that marital and family duties and rights are
special direction, and the conductor's disregard was the more carefully observed, where divorces are not
an act which he could not foresee nor provide allowed. If the law did not allow a divorce, a vin- against. Why should the engineer not take his culo matrimonii, then would people be more careful chances, as against the employer? Or let us supabout contracting marriages. Hasty marriages
pose the conductor told the engineer to delay ten would not take place. The laws of the country minutes, and he delayed only eight, and in conseshould not allow a divorce for any cause. Origin- quence the fireman was killed. Under the bill, the ally divorces were only allowed ‘for the hardness of men's hearts. It is not expected that this view, curred in consequence of the negligent act of one
company would be liable, because the fatality ochowever sound, can prevail. But very many who
in charge of a locomotive engine. And yet, not have carefully considered the subject, do hold that only had the employer been diligent, but so had the divorce, a vinculo matrimonii, should only be granted conductor who was set over the engineer. Why for adultery.” Possibly the “careful observers"
should the employer be held responsible ? Why above mentioned have never extended their travels
should the servant, who voluntarily incurs the risk so far as France. It is difficult, at all events, to
and is paid for running it, be put on the footing of understand why the denial of divorce should tend
the public? The Legislature acknowledges the to restrain men from committing adultery. One hardship of the new theory by limiting the recovery would suppose that in very many cases the tendency in any case to three years' wages
. If the theory is would be precisely the contrary.
right, why fix any arbitrary limit? The truth is, it
is an unwise and idle tampering with the law out of Speaking of the Employers' Liability Bill, the
tenderness for the working men and forgetfulness of London Law Journal says: “With reference to the justice to employers. We say idle, because the new spirit of the bill it is somewhat singular to find an provisions will be defeated by special contract.